Contentious Trust and Probate Quarterly Round-Up: Q2 2020
The passion, drive and competition; it’s what defines sport. The thrill of competing and winning is what athletes dedicate their lives to. It is an addictive drug which reaps with it benefits such as good health, fitness, a competitive edge and a disciplined mind set. However, as with any drug, there is one potential side effect, which if not controlled, can be life or death. This is safety.
Over the last decade, safety and prevention of injuries has become a focal point. There has been a surge of “freak” accidents which, with the power of hindsight, could have been prevented or treated quicker if the correct safety measures were in place. The most notable examples include:
Though each of the above have all been described as rare, you can’t help but think what dangers are there in sport. More importantly, once the dangers are identified, how can they be prevented or better still, how can they be eliminated in their entirety?
Following both Fabrice Muamba and Phil Hughes accidents, significant changes have been implemented. On every football and cricket pitch, a defibrillator is available. Batting helmets have also been redesigned to now have shielding which covers the neck area, just underneath the ears. These precautions may seem extreme to some, but given the risks and dangers in sport, prevention of injury should outweigh success.
But how does the law deal with injuries sustained in sport? The main question to ask is whether an injured player is entitled to compensation for injuries suffered from an act of participatory risk or violence. We all know sports can be dangerous, but does voluntarily participating in this “danger” void any means of receiving compensation if you do sustain an injury?
The law started with the test established in the case of Donoghue v Stevenson, which is the “Neighbourhood test”. When determining negligence, 3 requirements need to be established:
The case of Condon v Basi later clarified that participants in sport contests owe a duty of care to all other participants to take reasonable care not to cause them harm. But as with the test in Donoghue, the law failed to address the degree of carelessness that is required of a Defendant in order to establish negligence. Most sports involve a degree of contact and whilst it is true a reasonable amount of care is owed, the extent of this was not established. For example, taking football, if I was to perform a legitimate slide tackle and injure the opponent in the process, by the test stated above, I have been negligent and therefore liable. The question which failed to be addressed was whether breach of constitutive rules of sport should be determinative of liability or whether some other standard should be applied.
This question was finally clarified in the case of Caldwell v Maguire and Fitzgerald. The Court of Appeal upheld the above principles and added; “in sporting context, seeking to win and making a mere error of judgement in the pursuance of that legitimate aim should not invite liability for negligence”. So if an error occurs during the course of the game, this can be reasonably expected given the heat and tension and whether there was a possibility of winning. If so, liability for negligence cannot be established.
The Court of Appeal summarised the test in a sentence; “the test to be applied is negligence taking into account the prevailing circumstances, as well as the playing culture of the sport and what is acceptable or not”.
When Phil Hughes passed away from receiving a bouncer* to his neck, an inquest revealed no players or umpires were at fault and it was down to misjudgement of the batsman. A bouncer is a legitimate delivery in cricket, and thus liability for negligence would not be established. It was in line with the legal test and playing culture of the sport.
So if you do play any form of sport, what should you take from this? Well above all, always make sure you take every safety measure you can. Wear the protective gear available, assess the playing conditions before starting and ensure you are playing at the correct level. Sport can be dangerous, so take the protective measures.
Furthermore, know and have an understanding of the playing culture of the sport. You need to know what is allowed and not allowed, for trying to win can be a defence against negligence but if your action is not in line with the sport, you can be liable. For example, in football, a 2 footed tackle in football is strictly an offence, and may fall outside the defence of “heat of the moment” and trying to win. This goes with other actions such as elbowing, head-butting, biting etc.
Winning is every part of the game, but playing again is the goal.
* a delivery from a bowler which bounces short causing the ball to be aimed at the upper body of the batsman
This blog has been written by Satvir Sokhi, Paralegal, Clinical Negligence and Personal Injury, 020 7369 3847
For further information, please a member of the Clinical Negligence and Personal Injury team on 020 7814 1200 or by emailing us at email@example.com.
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