Legal Obligations

Legal Liability - Duty of Care

The courts have shown that the law is involved in sport and recreation in many ways, including civil and criminal negligence.  It is important for administrators to understand that there is no automatic legal protection, and that they can be held legally responsible for injuries that occur in the conduct of activities under their control.

Negligence is one area of particular concern.  It does not require an intention to actually cause harm or damage, and whilst sporting injuries generally do not come about as a result of a desire to injure, they can involve a careless disregard for another’s safety, so negligence can be an appropriate action for a damages claim.

When undertaking an activity, administrators should consider the following questions:

1. Do I owe a duty of care to the participant and if so is the risk of any injury reasonably foreseeable?

A duty of care depends on establishing some relationship between the parties.  If an injury occurs, the courts will ask whether the relationship between the parties was such that the defendant (or administrator) should have foreseen that his or her act would lead to the damage suffered by the participant.

2. What is the standard of care that must be achieved?

The test for the required standard of care is how a reasonably prudent person would behave in the same situation. The law has developed this reasonable person test but what is reasonable will depend on the particular circumstances existing at the time. The standard may vary depending upon:

• The type of activity
  Generally the more hazardous or risky the activity is deemed to be, the greater the duty of care that is owed to the participants.
• The age of the participant
  Generally the younger the participant, the greater the duty of care that is owed. Similarly, frail or aged adults may place greater demands on supervision.
• The ability of the participant
  Age should not be considered in isolation but considered along with the ability of the participant.  ‘Beginners’ in any program need greater supervision than more experienced and skilled participants.
• The coach’s/instructor’s/administrator’s level of training and experience
  The more highly trained and experienced a person is, the greater the standard of care that is expected.  For example, a higher standard of care would be expected from a trained and highly skilled instructor than from someone who is volunteering and who may have undertaken only a little training.

3. What steps can I take to avoid the foreseeable risk of harm or injury?

Administrators may not be able to take all possible steps to avoid causing injury but the law requires them to take all reasonable steps.  To help establish those ‘reasonable steps’ the administrator should develop a risk management plan for the organisation and the programs or activities it conducts.