12/10/2020 A Comparative View of Organizers’ Liability for Player Injuries | SLPC Blog

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A Comparative View of Organizers’ Liability for

Player Injuries

POSTED BY SLPC ⋅ JUNE 22, 2012 ⋅ LEAVE A COMMENT

FILED UNDER ON-FIELD CONDUCT, PLAYER INJURY, PLAYER SAFETY, SPORTS DISPUTES
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 pu ing 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 la er 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

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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 a ributing 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
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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

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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 a ached 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 a ached 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 ma er 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 a ached to theorganizers or promoters of sporting events in the case of an injury to a

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player or a spectator in such events, especially if such injury is a ributable to negligence or omission in
rule making.

© The Law Offices of Nandan Kamath

h p://www.lawnk.com
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