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ABOUT JAMES MCINTYRE
James McIntyre has extensive experience advising commercial insurers, self insurers
and the Australian Government in relation to liability claims. James has defended a
wide range of liability claims arising from sports including horse and greyhound racing,
mountain biking, motor sport and soccer as well as school physical education lessons.
James has also spoken on sporting liability issues at an international sports law
conference. In addition to his liability experience, James has worked as an in-house
lawyer at Lloyd’s of London.
COMPLIANCE WITH THE
GUIDELINES ISSUED BY A
SPORT’S GOVERNING BODY
The decision in Miller illustrates that mere
compliance with a sport’s guidelines will not
provide immunity against a finding of negligence.
Although track start dives were permissible under
the FINA guidelines of that time, the Court noted
that professional coaches are obliged to take into
account additional risks and ‘not simply follow
(limited) standards’. Guidelines are, as the name
indicates, merely guides. It is up to coaches to
carefully consider the components of the programme
they have devised and the environment in which the
programme is to be completed and assess whether
those elements combine to create an unreasonable
risk of injury.
IMPLICATIONS FOR FACILITY
OPERATORS
Although the Council escaped a finding of liability
against it in Miller, the decision turned upon the facts
of the case. A critical factor in the Council avoiding
liability was the Court’s finding that a Royal Lifesaving
Society Practice Note specifically addressing the risks
of competitive dive starts in shallow water issued
four weeks before the claimant’s accident, had come
to the Council’s attention. Given that this document
has now been in circulation for seven years and there
is now greater awareness of the hazards associated
with a failed track start dive, it is now less certain
that a pool operator would escape liability if a similar
incident occurred in the present.
For facility operators, the decision illustrates that
effective risk management goes beyond physical
inspection of the facilities to identify potential
hazards. Operators should monitor guidelines from
peak bodies of sports conducted at their facilities
and assess whether they impact on activities being
conducted at their facilities.
RISK MANAGEMENT LESSONS
FOR SCHOOLS, CLUBS AND
FACILITY OPERATORS
Although Miller turned on its individual facts,
the Court’s discussion of the evidence and its
conclusions contain the following practical
lessons for schools, clubs and facility operators:
1.
A school or club’s potential exposure to
liability may extend beyond its own training
facilities. Where athletes are training offsite,
where practicable, schools and clubs should
conduct inspections to satisfy themselves
that the facilities to be used are appropriate
for the athlete’s training programme.
2.
The need for a formally qualified coach to
be present during training will depend upon
the potential risks of the sport and the type
of training being undertaken by the athlete.
3.
Many clubs and schools are dependent
on volunteer coaches who may not hold
formal qualifications. Resources permitting,
volunteer coaches should be trained in risk
identification and management. Younger
coaches (who may not be much older
than their charges) need to be able to
demonstrate the ability to influence their
charges to avert potentially hazardous
behaviour.
4.
Compliance with a sport’s guidelines will
be relevant to the assessment of whether
a school, club or facility operator has
discharged their duty of care. Schools, clubs
and facility operators need to consider the
nature of activities being conducted at their
facilities and whether any features of the
facility give rise to a risk of injury despite
apparent compliance with the sport’s
guidelines.
5.
In addition to physical inspection of their
premises, facility operators should monitor
relevant industry publications and guidance
from relevant peak sporting bodies
and assess whether remedial action or
modification to activities is required.
TOUCHLINE
ISSUE 21 | AUGUST 2015 |
19