Hockey: Reward and Risk

14 June 2016

As proud corporate sponsors of Ulster Elks Ladies Hockey Club Murphy O’Rawe were delighted to hear of their recent success when they won gold at the European Champions Challenge in Prague this year. The build-up to the tournament was not without drama however when Ulster Elks’ and Ireland women’s highest capped player, Shirley McCay literally smashed her finger in a practice game a matter of weeks before the tournament was due to start, leaving her on the side line. It was a stark reminder that despite all the fun of the game, it only takes a split second for the ball, a rogue stick, another player or even the pitch to inflict a nasty injury. As a player myself I can’t remember the last time I trained or played hockey without a fitted mouth guard, shin guards and a hand guard and yet despite that, I have torn ligaments, bruised just about every part of my body, broken my nose and had black eyes to name but a few injuries, yet I would still consider myself lucky that I haven’t been more seriously injured and I believe this is due to the protection that I routinely wore and was encouraged to wear for every training session and match.

Stephens J recently gave a Judgement in the High Court in the matter of Megan Murray –v- Mark McCullough as Nominee on Behalf of the Trustees and on Behalf of the Board of Governors of Rainey Endowed School (Ref: STE9907). In that case, a 15 year old girl (now 22) sustained serious dental injuries and a cut to her upper lip when she was struck with a hockey stick whilst playing a school hockey match. She was not wearing a mouth guard at the time and claimed damages against her school, Rainey Endowed on the basis that the wearing of a mouth guard ought to have been mandatory and that the school had failed to sufficiently warn both the Plaintiff and her parents of the risks associated with not wearing a mouth guard.

The school considered that it had fulfilled its duty of care owed to the Plaintiff and relied upon the warnings given by the school and members of staff, the guidelines published by the International Hockey Federation, the National Governing Bodies for Hockey, general practices in other schools and a publication entitled, “Safe Practice in Physical Education and School Sport”.

Stephens J considered the standard of care as set out in the Judgement of Dyson LJ in the matter of Kearn-Price v Kent County Council [2002] EWCA Civ 1539 P.I.Q.R and also the practice in other schools as considered in Clerk v Linsdsell on Torts 19^th Edition. Stephens J was of the view that if common practice was established, it was one of a number of circumstances to be taken into account.  However if a risk remained, the Court may conclude that the standard generally applied is not sufficient to discharge the duty of care.

In this instance the school were successful in defending the action on the basis that the annual “School Uniform Code” sent to the Plaintiff and her mother included a recommendation for shin guards and mouth guards to be worn. Furthermore, the Plaintiff’s mother had been present when her daughter purchased a boil and bite mouth guard and accepted that this was to protect her daughter’s mouth whilst playing hockey and was content to leave it to the Plaintiff to decide what she did with the mouth guard.  Arguably therefore the risks had been flagged to not only the actual participant but the parent as well. Oral testimony from the Plaintiff’s hockey teacher also satisfied the Judge that appropriate warnings had been given to the Plaintiff about the risks associated with not wearing a mouth guard and the teacher had, “brought those risks to her attention graphically and repetitively”.

Stephens J concluded that we ought to be aware of the, “magnitude of the risk, the likelihood of injury, the gravity of the consequences and the cost and practicability of reducing or avoiding the risk.” The Court of Appeal in Robert Lee Uren –v- Corporate Leisure (UK) Limited & MOD [2013] EWHC 353 (QB) looked further into the appreciation of risk. A 21 year old Plaintiff was rendered tetraplegic when he dived head first into a paddling pool as part of a game arranged at a fun day. The relevant equipment was supplied by the 1^st Defendant and the activity fun day was commissioned by his employer, the 2^nd Defendant. Mr Justice Foskett considered that the risk of serious injury was foreseeable but also concluded:

“Provided games on occasions such as these are fully and carefully risk-assessed, it will, it seems to me, be a rare case indeed in which a claim for injury (even serious injury) sustained will succeed if a proportionate and sensible response is taken to any real risk identified, including the giving of appropriate warnings”.

We are all vulnerable to injury particularly when playing sport or taking part in games or other leisure activities. Despite best efforts, we cannot prevent all injuries. The key is to consider the duty of care and the steps required to reduce the risk of injury where possible.

For all sports injury related queries, please contact Louise Wright.

Murphy O'Rawe 'To lead and to guide.' 

Telephone + (44) 028 90326636 for an appointment or email info@murphy-orawe.com.