Liability under tort law for injury to co-participants
By Vidya Narayanswamy
A question that most frequently visits sport is – who is responsible for injuries resulting from sporting accidents? The answer to this question lies in a branch of law known as “tort” law. Unlike other legal words such as “contract” and “crime”, tort does not form part of our daily vocabulary and is therefore unfamiliar to many people. The word “tort” is derived from the word “tortus” meaning “twisted”. It later came to be used as a synonym for the word “wrong” and it is from here that it developed its legal origins. The role of tort law is to establish whether a person has suffered any loss as a result of any action/inaction on the part of another, and whether such loss needs to be compensated.
Participating in any form of sport involves the risk of injury. Tort law can be used to address the issue of liability for injuries sustained during playing of competitive sport. This module examines the concept in tort law known as “negligence” and its application to injuries caused by co-participants. It also surveys the assumption of the risk doctrine also known as “volenti non fit injuria”, meaning “one who consents cannot receive an injury”, and its application in the current context.
Application of Negligence to Sport
Since most sports, and in particular contact sports, involve certain inherent risks, one of the principal questions to be asked is whether the law of negligence finds any application to situations in which persons voluntarily engage in risky sports. The line of argument adopted previously (in the cases of Rootes v. Shelton  ALR 33 and Condon v. Basi  1 WLR 866) was that by engaging in a sport the participant may be said to have accepted the risks inherent in that sport, including the risk of injury.
In Boshoff v. Boshoff, 1987 (2) SA 695 (O), the plaintiff’s claim for damages for injuries suffered during a squash game, was rejected. The court, referring to the legal doctrine of volenti non fit injuria held that the plaintiff had lawfully consented to the risk of injury arising out of the game. For injuries sustained in the ordinary course of practicing a sport, negligence is often excluded by virtue of deemed consent to the risk or injury. This doctrine operates as a complete defense against negligence and absolves the person causing injury from action for breach of duty. However, for the doctrine to take effect, certain requirements of valid consent must be met, namely:
- The participants must be aware of the existence of risk
- They must understand the nature of the risk; and
- They must voluntarily accept the risk.
Participating in lawful sporting activity may, in appropriate circumstances, constitute consent to the risk of bodily injury. However, in those cases where a participant has disregarded the rules of the game, and what the sporting community considers as being acceptable behaviour and conduct in the game, liability may attach. From this principle stems the current trend with regard to assessing negligence in sporting activities. Presently, the law of negligence is applied even to those engaging in risky/contact sport, provided the following essentials are satisfied, namely:
- The defendant (alleged wrong-doer) owed the plaintiff (the injured) a duty of care
- . The defendant failed to exercise the required standard of care, and. As a result, damage/injury was caused to the plaintiff.
When applied to sport, the injured sports person/plaintiff must first establish that the other players owed him a duty not to injure him during the course of the game. Second, the plaintiff must establish that the defendant acted in a manner so as to breach that duty. Finally, the plaintiff needs to prove that he suffered reasonable loss as a result of the injury. Once the first two requirements are established, the third requirement is relatively simple to show as any injury will result in the sports person being prevented from playing the game, either temporarily or permanently.
Review of cases from the U.K.
In determining a claim of negligence, the courts take into consideration the circumstances in which a particular incident took place, with due regard to the reality that in any sporting event the competitor is expected to go all-out to win. For instance, in the landmark case of Caldwell v. Maguire ( EWCA Civ 1054), during a horse race, a jockey was seriously injured when two other jockeys, in a bid to overtake him, pulled across in front of him, causing his horse to veer dangerously, and throw him to the ground. The lower court held that the defendants had committed a few errors of judgment, but these were expected during a competition, and therefore they were not guilty of negligence. The plaintiff appealed the decision. The Court of Appeal held that the accident was a result of a split second decision made by the jockeys in an endeavour to win the race and therefore negligence was not established. While arriving at this decision, the Court relied on the decision in Smolden v. Whitworth  P.I.Q.R. 133 where the question revolved around negligence of a referee for injuries sustained by a player in a rugby match. The referee had failed to enforce a rule and the player’s neck was broken as a result of a collapsed scrum. The court, however, did not hold the referee liable. It reasoned the referee “could not be held liable for errors of judgment in the context of a fast moving and vigorous contest. The threshold of liability is a high one. It will not be easily crossed.”
A case where the defendant was found liable was Leatherland v. Edwards (1998, unreported). Here the players were involved in a friendly hockey game. The defendant, in a serious breach of the rules of the game, raised his hockey stick above waist height and struck the plaintiff in the eye. This happened when the plaintiff was defending his goal and the defendant followed through in a manner that he hit the plaintiff in the face. The court held that raising the stick above waist height was a breach of a rule which was “at the heart of and central to the spirit and purpose of the game”. While a simple breach of rules was not, taken by itself, sufficient to establish negligence, the breach in this case was so blatant and fundamental that negligence was made out.
Review of cases from the U.S.
In the U.S., a majority of the courts require the plaintiff to establish that the co- participant defendant acted with “recklessness” for an action of negligence to succeed. They recognise that in a sports setting, actions that may normally be viewed as dangerous form part of the sport itself. Many sports involve harmful contacts and manoeuvres and subjecting participants to liability for merely unreasonable actions could lead to excess litigation which dampens the spirit of vigorous competition on which sporting activities so heavily rely.
In 2001, in a case concerning injury caused in the cycling component of a triathlon, when one athlete cut another athlete causing her to fall, the question whether such an act amounted to negligence was considered. The Indiana Court of Appeals held that the defendant was not liable as the standard of recklessness was not satisfied.
The bounds of recklessness were tested again in 2008 in a case involving an ice hockey player who was violently checked into the sidewall of an ice hockey rink. The plaintiff was bent over near the boards that acted as the boundary of the rink with his head pointed towards the boards. The defendant checked him from behind causing the plaintiff’s head to hit the board, and resulting in serious injury. The Illinois Court of Appeal emphasised that determination of the recklessness of the defendant’s conduct was based on fact and would depend on the positioning of the puck at the time of the incident. However, despite the absence of such information, and on the basis of the facts established, the Court held the defendant guilty. The defendants appealed to the Illinois Supreme Court. The Supreme Court in its decision carved out an exception for “full contact sports” which included football and hockey, and where even consciously disregarding another’s safety could not be a ground for liability. For liability to attach, the standard was of “extreme misconduct”. This included intentionally injuring a co-participant and conduct that is totally outside the range of ordinary activity expected in sport. Accordingly, the Court exonerated the defendant.
Courts in Texas have adopted a similar standard known as the ‘competitive sports doctrine’ which functions on the principle that while players of competitive contact sport consent to the inherent risks of the sport, they do not agree to take on the risk of deliberate injury or recklessness of another player. This standard includes within its ambit, the standard of “recklessness” discussed above.
The discussion with regard to the standard of liability more suitable to sporting activities has been largely focused on ‘ordinary negligence’ and ‘recklessness’. Adopting the ‘recklessness’ standard does allow players the opportunity to play without holding back and free of any fear of litigation. However, it does compromise on the safety of sport, and leaves players to define their own boundaries of acceptable conduct, where possibly, even undue aggression may be tolerable.
Perhaps a middle ground can be found in a decision of the Western Cape High Court which came down strongly on serious aggressions in sport. The facts of Ferdi Hattingh v. Roux and others (Case No: 18650/07) were as follows – during a school rugby contest, the defendant executed a dangerous and unacceptable manoeuver known as the “jack knife” manoeuver at the time of a scrum, which left the plaintiff with a broken neck. The court found that the move executed was deliberate and intentional, knowing fully well that the injury was a likely result thereof. The court noted that rugby is a high- speed contact sport where participants can expect to sustain injuries, even serious injuries, in the course of the game. Serious neck injuries are often sustained while scrumming. However, given the present set of facts, the court held the defendant liable for the injuries. The court reasoned that the conduct of the defendant was “not only forbidden by the laws of the game, but constituted such a serious transgression, not normally associated with the game of rugby, that it would not reasonably have been expected to occur in a rugby game… The injured player should not, by virtue of the game, be regarded as having consented to the risk of being injured as a result of serious aggressions, which are not normally associated with the game of rugby.”
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