Tragic rugby injury highlights need for vigilance over school games

A new judgment from the Supreme Court of Appeal (SCA) should be a wake-up call for schools and other bodies responsible for rugby-playing children. It’s the tragic story of Izak Foster, who, in May 2006, when he was a matric student, played in a school rugby tournament. He could not have known that this was the last game he would ever play. And that, in fact, it would be the last time he would ever walk.

Read judgment

http://www.saflii.org/za/cases/ZASCA/2023/11.html#_ftn2

In that fateful game, Izak Foster, then an 18-year-old matric student, represented Hoërskool Lichtenburg against the hosts, Hoër Volkskool Potchefstroom. During play, he was tackled by a player from Volkskool, and he fell to the ground. Another player fell on top of him, and Foster suffered an injury to his neck as a result of the impact.

Two first-aid personnel carried him from the field. But they did not stabilise his neck with a spine board or a solid neck brace. This caused a second injury, one that was to have devastating consequences. He was taken by ambulance to Potchefstroom Medi-Clinic, and then airlifted to Pretoria Hospital – but the damage had already been done. After the first of two operations, doctors told him he would never walk again.

Damages suffered

Foster and his father, Guillaume Foster, then sued the Member of the Executive Council of Education (MEC): North West Province. On the main question of who was liable for the damages suffered, the court found the MEC liable for 100% of Foster’s proven damages resulting from the way he was carried off the field.

Although the high court refused leave to appeal, when the MEC approached the SCA directly, that court agreed to hear a challenge to the high court’s outcome. At the SCA once again, the central question was whether the MEC was liable for the second injury suffered by Foster during the rugby match or whether the school had acted ‘reasonably’ by doing enough to prevent such injuries.

Without stabilising his neck

There was no dispute that the first aid personnel, in carrying Foster from the field without stabilising his neck with a spine board, despite his protests that his neck should be supported, caused the second, irreparable injury.

The two medical experts involved in the case, one for the MEC and the other for Foster, agreed that there had been a second ‘deterioration’ in his condition as a result of the ‘further spinal cord injury’ caused by his neck not being appropriately immobilised while he was being carried off the field.

The appeal judges commented that this agreement between the medical experts was “easy to understand,” since carrying someone with a suspected spinal injury from the field without carefully stabilising the neck and with the head “dangling about” could severely aggravate an initial injury. It was correct for the high court to have accepted this joint opinion, said the judges.

‘School activity’

Was the MEC liable for the second injury, as the high court had found?

The Schools Act says that the state is liable for any delictual or contractual damage or loss caused by “any act or omission” in connection with any ‘school activity’ by a public school for which the school would otherwise be liable.

Clearly, the rugby game qualified as a “school activity,” and the school had a legal duty to avoid negligently causing harm. So, the remaining question was whether the high court was correct to find Volkskool negligent in failing to take reasonable steps to ensure the presence of a ‘competent and properly equipped first aid provider’ at the game.

First aid personnel

Volkskool, for its part, denied that it (and thus the MEC) was directly and solely responsible for the second injury since this injury was caused by the first aid personnel.

The school had appointed Kosh Sport and Trauma Services, an independent contractor, to provide first aid services during the tournament. In doing so, the school acted reasonably. According to counsel for the MEC, Kosh had the necessary expertise. Thus, the school had taken reasonable steps under the circumstances.

At the time, Rugby Guidelines: the Green Book required only two first aid personnel to be present at a game but made no reference to the experience and qualifications required. Kosh provided five first aid personnel, including a Mr van Staden, the sole director of Kosh. Counsel argued that there was no evidence that linked the second injury to ‘a lack of services on the day’.

‘Well-resourced’

Even if the SCA were to find that the steps taken at the time weren’t enough, it wasn’t necessary that Van Staden be registered with the Health Professional Council of South Africa (HPCSA). “He was experienced and well known at schools, and his services had been used over the years without any complaints,” said counsel.

A majority of the five appeal court judges hearing the case weren’t impressed by this argument. They spoke about Volkskool being ‘well-resourced’, equipped to organise games, and fully aware of the basic requirements that had to be in place before a game could start. It had the resources, experience, and knowledge to make sure that the correct equipment, facilities, and emergency services were available during games.

Volkskool should have foreseen that if any neck injury was not treated properly and immediately, it could lead to a spinal injury. Volkskool therefore had to take reasonable measures to ensure the appointment of a first aid provider and personnel “qualified for the job.” They may not have been qualified as prescribed by the HPCSA, but they should at least have been “experienced and competent to deal with neck injuries,” which, the court added, were “typical of rugby games.”

‘Hopelessly incompetent and ill-equipped’

Even Foster, then just 18 and hardly an expert on the subject, protested to the two first aid personnel that they should use proper equipment to carry him from the field. The medical evidence, supported by eyewitnesses, showed that the employees of Kosh were “hopelessly incompetent and ill-equipped,” said the court.

Volkskool had done “nothing really” to ensure that the first aid personnel were competent and properly equipped to do the job. They engaged Kosh on the “simple basis” that Van Staden was well known, provided emergency first aid services for schools in the area, and that there had been no complaints about the company.

Only afterwards did it emerge that Kosh did not have the necessary qualifications and competence to do the work. Reasonable inquiries would probably have uncovered that Van Staden had a “certificate of an ambulance driver,” dated 2006.

If Volkskool had applied reasonable scrutiny and made even the most basic inquiry, it would very easily have established that Van Staden was not registered (with the HPCSA), didn’t have the training needed for the circumstances, and, in addition to his ‘incompetence’, it would have discovered the lack of equipment. “It was indeed ‘chilling’,” commented the court, to find that there was “only one spine board available.”

One of the five appeal judges disagreed

“On the basis of the evidence, the conclusion reached by the high court couldn’t be faulted,” said the appeal judges. The manner in which Foster was carried off the rugby field caused his second injury. The steps Volkskool took in preparation for the games to prevent foreseeable injuries were not reasonable under the circumstances, and the appeal against the high court’s finding of liability could not succeed.

One of the five appeal judges, however, disagreed, saying that the school had in fact acted reasonably under the circumstances and that the minimum requirements for staging such a rugby tournament in 2006 (when Foster was injured) had been met.

However, the judges’ 4:1 split means that the high court decision was upheld and the MEC will indeed have to pay damages.

Further delay still possible

The decision highlights several issues that should concern readers.

First, Foster’s injury occurred in 2006. This means that the SCA decision was delivered 17 years later, and a further delay is still possible since the MEC might challenge the outcome at the constitutional court. That’s a terrible indictment of the pace of legal satisfaction in South Africa, particularly in a case like this one.

The judgment makes the point that the host school was “well-resourced.” It’s a point worth developing: there’s a significant problem with the level of medical preparedness required between rich and poor schools. The court looked at, for example, what appeared to be the current SA Rugby rules on safety in the playing environment, which set out the minimal standards required for three levels of the game: ‘green’ (normal school rugby matches, “community rugby,” etc.), ‘gold’ (SARU youth weeks, schoolboy festivals, etc.), and ‘gold+’ (involving games at a high level such as internationals).

First Aid bag

The ‘green’ checklist stipulates eight side-line equipment requirements, one of them a “first aid bag.” But a note to the list adds, in relation to this bag: “Where indicated, in certain underprivileged or disadvantaged communities, this cannot be seen as a requirement.”

So, what is in the bag that it can be dispensed with when games are played in ‘certain underprivileged or disadvantaged communities’?

It doesn’t include anything particularly high-tech. Among the 22 items listed in the first aid kit are a pair of blunt-ended scissors, surgical gloves, gauze swabs, a nasal pack, a towel, petroleum jelly, an ice pack, and a water bottle. That such a basic first aid kit can be dispensed with indicates the financial challenges faced by many schools and communities.

And then there’s the challenge posed by this case to parents and the staff of schools. It’s true that the SA Rugby rules on safety requirements for school rugby matches are more demanding now than in 2006. But should parents of rugby-playing children merely assume that they are being adhered to, or should they help ensure these safety requirements are followed? Foster’s case shows the terrible consequences that may result when safety rules are disregarded or not properly observed.