Sport – we play it, watch it, bet on it and argue about it. Most Australians love sport and not many weekends go by without participating, spectating or having some involvement in a sporting activity, whether at the amateur or professional level.
The same might be said for our love of outdoor adventure and activities such as hiking, abseiling, river rafting or bungee jumping. For some, the greater the thrill, the more appealing the activity.
Sport and adventure can keep us fit, healthy and entertained. On the downside, these activities keep the medical profession very busy – just look at how many patients in hospital emergency departments over a weekend are wearing a sports uniform or ‘geared-up’ for what was going to be a great adventure.
Unfortunately, sporting and recreational injuries can be very serious and life changing, resulting in significant personal and financial loss. In such circumstances, can an injured person be compensated?
Liability for personal injury – who is accountable?
Organisations, business owners and individuals have a duty of care to protect others from risk of injury or harm. A civil liability claim is a potential entitlement to compensation for injuries or loss suffered due to a breach of that duty. The injured person must show that the party against whom they are claiming (the defendant) had a duty to prevent reasonably foreseeable harm and, because of a negligent act or omission, that duty was breached, causing the injury.
Typical examples of a public liability claim include slips, trips and falls in public places like shopping centres and carparks, due to slippery or unmaintained surfaces. Proving negligence in such cases is sometimes more straightforward than attributing liability when a person is injured playing sport or taking part in certain recreational activities.
Why is this so and where does this leave an injured sportsperson or outdoor enthusiast?
Sporting and recreational injuries – understanding obvious and inherent risks
Legislation across Australia effectively confines liability for injuries sustained when undertaking certain activities. A ‘voluntary assumption of risk’ applies when a person engages in activities for which an obvious risk exists. Although this does not prevent an injured person from making a claim, his or her decision to take part in an activity such as a contact sport, is deemed acceptance of the risks involved – in other words, the person is assumed to have known of such risks unless he or she can prove otherwise.
When attributing liability for injuries sustained during many sporting and recreational activities, the following laws are relevant:
- In many cases, there is no proactive duty to warn of an obvious risk unless a person requests advice or information pertaining to the risk or there is a legal requirement to do so. An obvious risk is a risk that, in the circumstances, would have been obvious to a reasonable person in that position, even if the risk has a low probability of occurring.
- Liability for negligence will not be attributed for harm suffered from the materialisation of an inherent risk. An inherent risk means a known or obvious risk of injury attached to the activity – a risk of something happening that cannot be avoided by exercising reasonable care and skill.
- Liability will not be attributed for harm suffered by a person from the materialisation of an obvious risk of a dangerous recreational activity. Dangerous recreational activity means ‘an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person’.
So, what compensation rights do injured sportspersons have?
Despite some obstacles in proving liability for injuries sustained while participating in sports and recreational activities, certain acts or omissions may still be deemed negligent enabling an injured person to pursue a claim. There may also be other avenues for claiming compensation. Each case is unique and must be assessed according to the individual and surrounding circumstances.
A risk will not be considered obvious if it is created due to a failure to properly maintain or service equipment used for an activity, or directions are issued to use equipment contrary to the manufacturer’s recommendations. For example, a person who is injured while rock climbing may successfully pursue a claim if the fall is caused by faulty or poorly maintained equipment.
Similarly, persons participating in amateur sport may be injured due to:
- defective or malfunctioning sports equipment;
- unsafe or dangerous sporting grounds;
- inadequate supervision;
- failure of an umpire or referee to control a game to ensure the players’ reasonable safety.
Sporting associations have a responsibility to ensure that playing fields are safe and equipment is in good order and usually hold relevant liability insurance. Alternatively, an action in negligence may be made against the owner of a sporting facility such as a local council if an injury occurs on unsafe or unmaintained sporting fields.
Some associations hold personal injury insurance that may assist players who are seriously injured in circumstances where nobody was at fault.
Employed professional sports persons who are injured while training, competing, or travelling between games may be covered for their injuries by workers compensation insurance.
Courts have also found those engaged in intentional foul play during a sporting event liable for injury caused to their opponents. For example, in Giumelli v Johnston (1991) Aust Torts Reps 81-085, the plaintiff was injured during a ‘hip and shoulder’ when the defendant lifted his elbow striking the plaintiff’s cheekbone. The defendant claimed there was ‘implied consent’ for the contact based on the fact that the plaintiff had taken part in the football game. The court rejected this argument as it considered that implied consent by participation in a game did not extend to consenting to violent acts outside the rules of the game.
If you are injured from participating in a sport or recreational activity, a lawyer can assess your circumstances and advise on your legal rights regarding avenues for compensation in light of the relevant laws. As with all personal injury claims, time limits apply, so it is important to obtain advice promptly.
This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.
If you or someone you know wants more information or needs help or advice, please contact us on 02 9790 7000 or email [email protected].