Can the participants in a sport be held liable for negligent acts which they commit while playing the sport?
Many injuries occur to participants while playing sport and often this is seen as an accepted part of participating in the sport. There are however certain injures that occur which simply cannot be considered as part and parcel of the game. In certain instances the law can intervene finding certain actions as illegal.
Often criminal cases can be brought when a dangerous tackle for example in a football match or a punch thrown in a sporting contest can result in an assault. In this instance there can also be a civil claim for the tort of an offence against the person. Injuries such as this are often caused by a deliberate act such as a foul whereby the participant intended to injure another. This article will look at the situation where the act may have not been deliberate but instead was caused by a negligent act of another participant.
What is negligence?
The tort of negligence is probably the most famous tort and can be found in such areas as the driving of automobiles to the administering of medical practices and is often extended to cover the sporting arena. For a claim of negligence to be found in these areas the following thus needs to be established:
- Duty of care
- That the breach of the duty of care caused the damage or injury to the victim
Duty of Care
For any claim of negligence to be actionable the first thing to establish is whether a duty of care existed between the two individuals involved in the claim.
How do we establish a duty of care in the sporting context?
From the early cases on negligence in sport the following points should be noted:
- That each participant in a lawful sporting contest owes every other participant in that contest a duty of care
- That the duty is to exercise all care that is objectively reasonable in the prevailing circumstances in order to avoid injury to such co-participants
What is meant by the prevailing circumstances?
The prevailing circumstances have been defined as the following:
- The prevailing circumstances must include the object of the sport, the demand made upon the contestants, the inherent dangers, its rules, conventions and customs and the standards, skills and judgments reasonably to be expected of the participants
How do we establish breach of the duty of care?
Once a duty of care has been established in order to find liability it must be shown that the duty of care has been breached taking into account the prevailing circumstances of that particular sport.
Two tests in order to establish liability have thus been established. They are as follows:
- Reckless disregard
- Playing Culture of the Sport
The standard of care to establish negligence in the sporting arena was previously said to the reckless disregard of safety test. Accordingly the following points must be noted from the decisions concerning reckless disregard:
- That the threshold for liability would be high and that proof of a mere error of judgment or a lapse of skill would not be sufficient to establish a breach of the duty
- In practice it may be difficult to prove a breach of duty unless there is proof of conduct amounting to reckless disregard for a co-participants safety
An example of reckless disregard
This standard of the duty of care did not necessarily relate just to the other participants in the sport and could also be extended to the participants owing a duty of care to spectators and photographers. For example in one case it was held that a competitor would only be responsible in negligence for the injuries caused to a press photographer where he had shown a reckless disregard for the safety of the photographer.
Following this case it was widely accepted that the standard care in order to establish negligence in the sporting arena was if there had been a reckless disregard for safety. This caused issues in such sports such as horseracing where often the participants have to be reckless in relation to safety in order to finish a race triumphantly.
Playing Culture of the Sport
Following a case decided in 2002 a new test in relation to establishing a duty of care and breach of that duty in the sporting contest has been established. That of the playing culture of the sport.
This new test has not replaced that a duty of care in the playing of sport exists towards those other participants and spectators etc but what it does change is the test to establish breach of this duty of care. Under the playing culture of the sport test in order to establish liability the playing culture of the sport and the conditions in which participation takes place are the two factors which need to be considered.
By focusing on the playing culture of the sport the court is able to establish whether the act of the defendant was in fact an integral part of the playing of the game and an inherent risk taken by all the participants in the playing of the sport, or if it was in fact unconnected with the proper playing of the sport and therefore negligent.
The main advantage of this test is that it looks directly at the playing of the game and its inherent dangers rather than trying to impose an increased degree of negligence on the defendant.
The decision in this case in ridding sport of the reckless disregard standard it has been ensured that sports participants are judged by the same legal standard as any other kind of negligence claim. The law does therefore not enter the sporting context when it is not required but is also able to enter the context when it is in fact required. The new test emphasises that the playing of the sport and the conditions in which participation takes place are the prevailing circumstances that must be taken into consideration when deciding on liability of participants in the tort of negligence.
What needs to be established for this test?
In order to establish whether an act was outside the playing culture of the sport the injury causing incident must be shown to be an unacceptable means of playing the sport. For example in the case of horse riding careless riding was held to be an inherent danger of professional horse riding and therefore an acceptable means of playing the sport.
This means that in a sport such as football a foul will often be considered as an acceptable means of playing the sport depending upon the nature of the foul. A stamp or a punch will not be considered an acceptable means of playing the sport but a bad tackle in certain circumstances may be. Again this is a test which will have to be applied on a case by case basis.
The final thing that needs to be proved in a claim for negligence is that the negligent act caused the injury to the claimant. This will be easy to prove in the case of a sporting contest where there is direct contact between the participants.