Insurance & Risk Management

Negligence

Any sport and recreation organisation would dread newspaper headlines such as:

  • Injured cricketer entitled to payments.
  • Crosby Park Cricket Club faces lawsuit over grandstand collapse.
  • Cricket Captain faces negligence charge.

Many sports and many recreational activities involve an element of danger or risk. In most cases, participants accept the risks as a part of the challenge of participating in the activity. However, carelessness can cause injuries to participants, officials, spectators, organisers and the general public.

It is important for administrators to understand that there is no automatic legal protection, and that they can be held legally responsible for injuries that occur in the conduct of activities under their control. One particular area of concern is negligence.

Negligence occurs when someone does something that a reasonably prudent (wise with good judgement) person would not do, or fails to do something that a reasonably prudent person would do.

Negligence is part of the law of torts and as a general rule a person must not injure their neighbour. They are owed a duty of care.

Duty of care

When undertaking any activity associated with their organisations, administrators should consider the following questions:

1. Do I owe a duty of care to the participant and if so, is the risk of any injury reasonably foreseeable?
A duty of care depends on establishing some relationship between the parties. If an injury occurs, the courts will ask whether the relationship between the parties was such that the defendant should have foreseen that his or her negligent act would lead to the damage suffered by the participant.

2. What is the standard of care that must be achieved?
The test for the required standard of care is how a reasonably prudent person would have behaved in the same situation. The law has developed this reasonable person test but what is reasonable will depend on the particular circumstances existing at the time. For example, the standard may vary depending upon:

    o Type of activity. Generally the more hazardous or risky the activity is deemed to be, the greater the duty of care that is owed to the participants (e.g. abseiling).

    o Age of the participant. Generally the younger the participant, the greater the duty of care that is owed. Similarly, frail or    aged adults may place greater demands on supervision. For example, taking a school-aged group abseiling compared to a group of young adults.

    o Ability of the participant. Age should not be considered in isolation but considered along with the ability of the participant. 'Beginners' in any program need greater supervision than more experienced and skilled participants (e.g. first time Have a Go players compared to those with several years training and experience).

    o Coach's, instructor's, administrator's level of training and experience. The more highly trained and experienced a person is, the greater the standard of care that is expected. For example, a higher standard of care would be expected from a trained and highly skilled instructor than from someone who is volunteering and who may have undertaken only a little training.

3. What steps can I take to avoid the foreseeable risk of harm or injury?
Administrators may not be able to take all possible steps to avoid causing injury but the law requires them to take all reasonable steps. To help establish those reasonable steps the administrator should develop a risk management plan for the organisation and the programs or activities it conducts.

The following case study highlights how it is in the best interests of administrators and coaches to ensure that participants face only the risks inherent with any activity.

Sad Example

Fifteen-year-old John Dixon was a promising young cricket player in a Saturday morning district cricket competition. In last Saturday's semi-finals, when trying to catch a skied ball, John fell over and broke his leg in three places. The doctors have said he will never play again. John's parents, already upset with the injury, were unhappy with the coach's explanation of the incident and decided to find out exactly what happened.

They discovered that before the game John had told the coach that he did not feel well and did not want to play. The coach reminded John of the game's importance and urged him to play anyway and to 'just do his best'. When John's team was warming-up, several players noted deep ruts in the field. Concerned about the danger of turning an ankle, the players informed the coach. The coach told them to try to avoid the holes and he failed to raise the problem with the game umpires.

Midway through the first session of play, the accident occurred. Running for the ball, John's foot got caught in a rut and a much larger fellow player, also running for the ball, fell onto his leg. Everyone heard a terrible crack. The coach decided not to wait for an ambulance but rushed John in his own car to hospital about five kilometres away from the ground. John was in terrible pain when the players carried him over to the coach's car. The ruts were left in the field following 'improvement work' that was undertaken during the week by the local council, after a request from the club. The cricket club leases the ground from the council.

Oh Dear......

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