Negligence and duty of care in sports
Our case is about Frank, a football lover who frequently attended games in the local stadium. On one occasion the soccer ball was kicked into the stands where he was sitting, hitting him in the head and knocking him out of his seat, causing him to break his arm. Frank is interested in finding out whether he can sue local council or football club or both. First, the definitions of negligence and duty of care will be discussed in order to highlight any lack of care towards Frank as a spectator. Certain authoritative figures or organizations owe a duty of care towards people to take reasonable steps to prevent any foreseeable injury; however, the existence of any duty of care also “depends on the relationship between those concerned" (NSW Basketball Association, 2005). The NSW Basketball Association states that in sport, those who may have a duty of care include people who assume a responsibility such as a person who agrees to coach an athlete or referee a game), or those who have relevant skills or expertise, for example, a sports administrator (2005). Sporting organizations, administrators and facility managers usually have a duty of care to participants to take reasonable care to ensure that safe playing surfaces and equipment are provided (NSW Basketball Association, 2005). Participants have a duty to ensure that they take reasonable steps to prevent injury to other participants, officials or spectators in the course of play (NSW Basketball Association, 2005). Furthermore, finding that a duty of care exists is the first step in maintaining a claim of negligence (Wong, 2002 cited in Schot, 2005). The relationship between the owners of public stadiums and spectators will be discussed as well as legal concepts of risk management, which includes negligence, duty of care and foresee ability in details. Moreover, some other legal issues will be discussed such as: standard of care, voluntary assumption of risk, vicarious liability, legal status and corporate liability and due diligence and similar negligence cases and their outcomes will be discussed.
Negligence is defined as the failure to exercise the care that a reasonably prudent person would exercise in similar circumstances (Britannica, 2010). An act of negligence may occur in the case of a breach of duty of care which the Merriam-Webster Online Dictionary defines as “a duty to use care toward others that would be exercised by an ordinarily reasonable and prudent person in order to protect them from unnecessary risk of harm" (2010).
In order for anyone to pursue a claim of negligence, a valid reason must exist: a duty of care must be breached. For a duty of care to be breached, a damage that is reasonably foreseeable to an ordinary person must have occurred, especially if reasonable steps to prevent that possible damage from occurring were not taken (Government of Western Australia, 2008).
One recognized duty of care relationships is the relationship between occupiers and those on their premises (Sparre, 1995 cited in Schot, 2005). Occupiers of sporting facilities owe a duty of care to anyone on their premises and must ensure they take necessary precautions to ensure their safety (Sparre, 1995 cited in Schot, 2005). Participants also owe spectators a duty of care to prevent any foreseeable injury (Sparre, 1995 cited in Schot, 2005). In Frank’s case, there is a chance he will be able to pursue a claim of negligence as he was injured as a result of the actions of a football player while sitting in the stadium. This breach in the duty of care makes Frank able to sue for negligence.
However, there are certain legal issues that must be clarified before Frank decides who to sue; the standard of care, voluntary assumption of risk, vicarious liability, legal status and corporate liability and due diligence. Standard of care is defined to be “the degree of care a reasonable person would take to prevent an injury to another" (Anonymous, n.d.). The more highly trained the person is, the greater standard of care is required. In Frank’s case, the football club or the occupiers owe the standard, or duty, of care.
Next issue discussed, the voluntary assumption of risk or ‘Volenti non fit injuria’, is when the aforementioned standard of care can be removed if and only if the harmed person is knowledgeable of the possible risks that can occur (Government of Western Australia, 2008). An example of this is if Frank knew about the possibility of being harmed by a football, by reading the terms and conditions, then Frank should not complain about being injured and therefore, should not sue.
A third issue taken into consideration is the ‘vicarious liability’ which defined by Encyclopedia.com as ‘liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently’ (n.d.). A case study example of this is Warren v. Henlys Ltd. In 1948: “A garage attendant, as an act of personal vengeance, assaulted a customer of the garage. The attendant abused a customer at a petrol station as he drove off without paying. The customer then paid, called the police and then threatened to report the attendant to his employers. At that point the attendant physically assaulted the customer, who now sued the employer. Held: The employers were not liable. The act of assault was one of personal revenge, and was outside the scope of his employment" (Anonymous, 2010). Therefore, if the football player was at fault, then the football club will take full responsibilitiy.
Legal status and corporate liability is when a company gives a club legal status, which means that the club is able to sue and be sued in its own name (Government of Western Australia, 2008). Therefore, Frank must know if the football club has a legal status. If it does, then he can directly sue the club, otherwise he is unable to do so.
Lastly, due diligence refers to the “care a reasonable person should take before entering into an agreement or a transaction with another party" (Investopedia, n.d.). This concept is derived from Company Law. Frank must find out if the football club or the occupiers took every reasonable precaution in order to protect the spectators before allowing any spectator events to happen.
There have been similar occurrences and there are similar documented and undocumented cases to Frank’s which have taken place in Australia and worldwide. Although the specific occurrences in the cases differ, the judgements are relevant as courts may use these judgements when deciding if Frank is owed compensation. Two documented cases that have taken place and taken to court in Australia are Woods v. Multi-Sport Holding Pty. Ltd. and Prast v. Cottesloe Council. In the case of Woods v. Multi-Sport Holding Pty. Ltd. in 2000, a fielding cricketer was hit in the eye by a cricket ball during an indoor cricket match and sued the club for not giving him an adequate warning and for not providing protective gear. The judge ruled in the defendants’ favour, upholding the decision made in Romeo v Conservation Commission in 1998, ‘where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that an occupier must warn the entrant about the risk is neither reasonable nor just’ (Anonymous, 2002). This means that occupiers, organizers and administrators of sporting events cannot be held negligent for not warning participants and spectators of what they deem to be an obvious risk.
In the case of Prast v. Cottesloe Council, David Prast sued the council for negligence after being involved in a surfing accident that left him quadriplegic (Stingel, 1999). He claimed that the Cottesloe Council breached a duty of care by not posting warning signs stating the dangers of bodysurfing. The District Court ruled that the Council did not breach its duty of care and the Supreme Court dismissed his appeal on the grounds that the risks were obvious (Zapata, n.d.).
Similar negligence cases that have taken place outside of Australia have had similar results, and resulted in judgements that are relevant to Frank’s case. The case of Rinaldo v McGovern in the United States highlights the difficulties Frank may have when presenting his case. In this case, the plaintiff, who was playing golf, hit a golf ball which struck the vehicle of the defendant. The plaintiff was not found to be liable, and the court ruled that a player could be held liable for such an act only if they had "aimed so inaccurately as to unreasonably increase the risk of harm" (Anonymous, n.d.). This judgement may show the difficulties Frank will have in taking his case to court, unless he can prove that the football was kicked in a way that increased any risks to the spectators.
The case of Woods v. Rogers in 1997 in the United Kingdom involved a golfer, the plaintiff, who was injured when he was hit by a ball shot by another golfer, the defendant. The defendant claimed that he was unable to see the plaintiff due to the layout of the course. The plaintiff’s partner who was golfing with the plaintiff had waved him through, which the court agreed could be taken as a sign that both golfers would be able to protect themselves from being hit (The Australian and New Zealand Sports Law Association, 2009). The ruling in this case is an example of how some sports have certain rules or conventions, which in themselves, educate spectators and participants of any involved risks. Such as in golf where it is expected and accepted that participants may accidentally hit the ball in any direction and spectators and other participants are aware of this risk and cannot claim negligence in this case. However, this cannot be used as an excuse or a defense if reasonable acts were not taken in order to prevent reasonably foreseeable accidents or incidents.
In pursuing his claim of negligence, Frank will have to keep his medical records as proof of his injury and he will also have to prove that his accident is a direct result of the negligence of the football club or local council. As Frank was injured while in the stands at the football stadium, he would have to identify the owners of the stadium in order to find out if the local council can be held liable in any way for the injury he sustained injured on the premises that may belong to the local council. Frank will also have to find out certain information that will only be applicable to the state he lives in, such as the time within which he has to make a claim. For example, in Western Australia, such claims have to be made within six years of the incident occurring. It is a legal obligation of the occupiers, organisers and administrators of sporting facilities and events to ensure safety of anyone on their premises and avoid any reasonably foreseeable harm (Anonymous, 2009). Although the occupiers of the football stadium owe Frank a duty of care, this may have been reduced by the assumption of risk on Frank’s part, as it is possible for the ball to be kicked into the spectator stands. There may have also been a warning given to Frank in some way such as a printed warning on the ticket sold to him to watch the game or a verbal warning given before he sat in his seat. By attending the game, Frank may have also waived his rights to sue the football club or the football stadium owners in case of any personal injury sustained on the premises as could have been stated in the terms and conditions of attending the game. If Frank did attend the game knowing it was possible he would be injured, the defendants might be favoured as this would be an example of voluntary assumption of risk. The cases that have been discussed also reflect the possible judgement that might be held in this case, and it is quite possible that Frank may have been assumed to have attended the game under voluntary assumption of risk. The case of Rinaldo v. McGovern also shows how courts may favour the defendant, as the participant did not intend to create or increase any risks.