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A Comparative View of Organizers’ Liability for Player Injuries

By Nandan Kamath

Introduction

The inherent nature of sports tempts the participants to pursue excellence in their quest to reach the pinnacle. However, one of the major challenges faced by the athlete in such a pursuit is injuries. Injuries in sports mostly result from the risks indigenous to the sporting activity; however, occasionally they are a consequence of the failure of other parties who are an integral part of the sporting activity to observe a reasonable duty of care towards the players such as other participants, coaches, match officials, organizers of the event etc. Organizers of a sporting activity play a pivotal role in the sporting activity as they are primarily in charge of putting together the event and hence, have to ensure that they perform the obligations entrusted on to them efficiently to provide a safe environment to the performing athletes. Thus, it would be reasonably expected from organizers of a football tournament to adequately maintain the football field to avert injuries resulting out of uneven surface, protrusions etc. This article aims at analyzing the tortuous liability of an event organizer for injuries sustained by players on the playing field during an event across various jurisdictions such as USA, Australia, England and Wales and New Zealand.

Liability of the Organizer

Generally, under the law of torts, to extend liability to the organizer in the event of an injury to a sports person the latter would have to prove the following:

1) the sporting organization owed a duty of care towards the participant;

2) such an organization breached the reasonable duty of care; and

3) the injury sustained by the participant was a result of such breach of duty.

The Courts may hold the organizer liable if it fails to observe the duty of care it owes the players with this being the direct cause of the injury sustained by such player. There have been numerous decisions which focus on the duty of care owed by the officials and event organizers (which may include occupiers) towards participating sports persons. In the case of Francis v. Cockrell ((1870) L.R 5 Q.B 501, 515),it was held that the occupiers of the sporting facilities owe a duty of care to all those on the premises to guard them against dangers.

There have been various instances in the past wherein the owners, coaches and match officials have been held liable for injuries to players; however, the rise in such player injuries has led many countries to examine the liability of organizers as well.

USA

USA hosts four major contact sports in the world being American football, baseball, basketball and baseball. Statistically, these sports have the highest injury rates. Hence, the role of a sports organizer or a coach or official, increases even more when dealing with such sports. The role of a coach or sports organizer is such that they are morally accountable as well as legally responsible. USA jurisdictions have increasingly adopted the recklessness rule as the applicable test which based on ordinary negligence standards.

In the state of Illinois, there are two legal principles, “contact sport exception” and “assumption of risk”. The doctrine of assumption of risk is also referred by the USA courts as the common law doctrine of volenti non fit injuria. The doctrine is based on “knowledge, comprehension and appreciation of the risk”. For example, under Illinois law, there are two types of assumptions of risk:

1) Express assumption of risk such as an exculpatory clause – This is wherein the plaintiff expressly consents to relieve the defendant (organizer) of an obligation of conduct owed towards him.

2) Implied assumption of risk – Here a plaintiff’s willingness to assume a known risk is determined from the conduct of the parties rather than from an explicit agreement.

Contact Sport Exception – Illinois law also recognizes an exception to the ordinary negligence liability for the injuries sustained by the participants during the course of the game. This exception is judicially created for ordinary negligence claims and it provides that voluntary participants in a contact sport may potentially be held liable for injuries to other participants for injuries caused intentionally and willfully, but not for injuries caused by ordinary negligence. Recently, in the case of Karas v. Strevell (227 Ill. 2d 440, 884 N.E 2d 122),the Supreme Court of Illinois had extended this exception to certain sporting organizations as well.

Australia

There was a rising fear in the late 1990s in Australia, that the increasing number of awards for damages being accorded by the court for personal injuries would hinder the sporting culture in the country. There was a popular belief that the judiciary was backing the culture of ‘blame and claim’. It was eventually felt that this practice of indiscriminately attributing liability to the owners, organizers etc. for injuries would place huge financial burdens on various parties involved in the sporting activity there by making the sport an impractical indulgence. Thus, it was realised that the ability to claim damages for injuries sustained in the course of the game has to be balanced with the inherent risks and dangers in the sport itself and the individual responsibility during the sporting activities.

As a result of this, a National Expert Panel, chaired by Justice Ipp was commissioned to recommend changes to the law of negligence. Legislation was enacted in all jurisdictions of Australia after the submission of the recommendations by Justice Ipp. In Queensland they are found in the form of Civil Liability Act 2003 and the Personal Injuries Proceedings Act 2002. The Act defines Dangerous Recreational Activity to mean one involving significant risk of physical harm. Under this Act, where there is a combination of a dangerous sport and an obvious risk, there will be no liability for negligence, even if the plaintiff was not aware of such risks. The effect of the Civil Liability Act has been that if a sporting organizer can prove that there were inherent or obvious risks involved in the sport, they will not be liable despite any negligence on their part causing an inherent or obvious risk to materialize.

The Civil Liability Act also made the following major changes:

  • It placed a cap on damages for past and future economic loss.
  • It nullified liability in cases where the person injured was engaged in criminal activity that contributed to the risk of injury.
  • It allowed for restricted claims where a person’s intoxication contributed to their personal injury.
  • It abolished liability for failure to warn of ‘obvious risks’.

While the state of Queensland has enacted the Civil Liability Act 2003, Sporting Injuries Insurance Act 1978 provides compensation for certain sporting injuries in New South Wales. However, the NSW Act does not prevent an injured person from suing for damages in trespass and negligence. There is an express exclusion of double recovery.  The New South Wales Act is a ‘no fault’ scheme which means that the injured person does not have to show negligence or intention on the part of any other person for a claim to be successful. It covers both amateur and professional players and is financed by premiums contributed by the participating sporting organizations.

England & Wales

In some cases it may be alleged by the participants that the injury sustained could have been avoided had the organizer of the event taken certain necessary precautions. Event organizers obviously owe duties of care to both the participants and the spectators, both at Common Law and to some extent under the Occupier’s Liability Act, 1957. Under this Act, an event organizer will become occupier, even if he is not the owner of the land, but because he has sufficient control over the activities carried out on the land.

Traditionally, in England, the ‘neighborhood test’ which was discussed in the case of Donoghue v. Stevenson ([1932] All ER Rep 1; [1932] AC 562)is applied prima facie to all sports torts cases where negligence is present. One of the first cases which discussed the existence of a duty of care towards players was Condon v. Basi ([1985] 1 WLR 866). The main drawback of this case was the court did not discuss the degree of carelessness of the defendant that is required to be established. The onus is thus on the plaintiff to prove that the acts of the defendant fell below the standard of a reasonable sportsperson.

In Watson v. British Board of Boxing ([2001] 2 WLR 1256) the Board was held liable for failing to provide adequate emergency facilities to a boxer who was injured during a bout organised by the Board, which was expected to provide medical care to boxers. This care was insufficient, and as such Watson was in a coma for 40 days, and spent 6 years in a wheelchair thereafter. After recovering consciousness, he sued the Board for negligence, and was awarded approximately £1 million by the High Court of Justice, which determined that the relationship between the Board and Watson was sufficient to create a duty of care. The Court of Appeal of England and Wales held the Board liable for negligence in the exercise of its rule-making functions, as well as established an exception to the defence of consent to trespass to the person and an extension of the duty of care expected in cases of negligence. The Court also noted that the Board had a duty not only to ensure that injuries did not occur, but that injuries were properly treated

New Zealand

Organizers of sporting events or the promoters, due to their roles in organizing events and as overseers of sports, are always at the risk of liability being attached to them in case of an injury to a participant or a spectator. A leading example of this is the case of Evans v. Waitemata Pony Club ([1972] NZLR 773), in which the organizers were held liable for damages as they failed to ensure that the area and mode of operation were reasonably safe because of which many spectators sustained injuries. The organizers may also have vicarious or secondary liability for the acts or omissions of other people. This legal principle, which is applicable in employment law, can also be applied to volunteers, participants, or officials. Thus, sporting organizations can be held liable for their actions as well.

The Injury, Prevention and Rehabilitation Act 2001 (“IPRA”) and The Crimes Act 1961 are applicable laws in almost all cases of sports injuries. IPRA is a no fault scheme to compensate people suffering from injury.

Other relevant regulatory codes and regimes which are present in New Zealand are the Health and Safety Employment Act 1992 and the Land Transport Act of 1998. According to the Health and Safety Employment Act, the employers have the duty to provide safe environments and workplaces for all employees and volunteers engaged in work activities. Under the Land Transport Act 1998, the sports and recreation organizations should ensure that the vehicles that they use conform to the conditions prescribed in the Act.

India

Litigation with regards to liabilities attached to organizers of sports events is virtually non-existent in India. However, the law of negligence, which is based primarily on the ‘neighbourhood test’ that was laid down in Donoghue v. Stevenson ([1932] UKHL 100) helps in effecting some form of responsibility on the organizers and promoters of events to ensure the safety of spectators and participants.

At a general level, the duty of venue owners to provide a safe environment to spectators/viewers was laid down by the High Court of Delhi in Association of Victims of Uphaar Tragedy v Union of India (2003 ACJ 1631), wherein the negligence of the venue owners of the cinema hall resulted in a stampede which caused 69 fatalities by asphyxiation.  It was held that the venue owners were duty bound in the interest of the society to provide safe environment to spectators or viewers. The crux of the matter rested upon the contention by spectators/viewers that survived the tragedy alleging that the incident could have been avoided had the owner of the venue taken certain necessary precautions.

The Supreme Court of India’s decision in  M/S Zee Telefilms Ltd. & Anr v. Union Of India & OrsWrit Petition ([2005] 4 SCC 649) is best remembered for its exclusion of the BCCI from the ambit of Article 12 of the Constitution of India. However,the Supreme Court of India also observed that while the BCCI is an autonomous body, laid down that the BCCI is responsible for rule making so as to mitigate injuries to players and promote safety in general, “The Board which represents a nation with or without a statutory flavour has duties to perform towards the players, coaches, umpires, administrators and other team officials. They have a duty to create safe rules for the sport, if by reason thereof a physical injury to the player is to be avoided and to keep safety aspect under ongoing review.”

This judgement clearly establishes the principle that the governing body for a sport is ultimately responsible for prudent exercise of its rule making ability. The judgment has opened up the prospect of liability being attached to theorganizers or promoters of sporting events in the case of an injury to a player or a spectator in such events, especially if such injury is attributable to negligence or omission in rule making.

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