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15
Through Legal Eyes
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Canadian Perspective
Australian Perspective
On any weekend across
Australia, men, women
and children can be found
participating in a whole range of
sporting and recreational activities.
These activities vary greatly in standard,
competitiveness and physicality. What
they all have in common is the risk of
injury to participants.
Unfortunately, with injury comes the risk
of liability. In considering whether some
organisation or person should be found
liable for causing injury on the sporting
field, courts in Australia have recognised
the uniqueness of sport. In general
physical contact which causes a person
to suffer personal injury is frowned upon.
However, on the sporting field, the law
recognises that participation in sport
often carries with it the risk of injury.
Courts in Australia appreciate that when
people voluntarily participate in sporting
activities, it is often the risks involved in
the particular sport which are the main
attraction. Courts have long respected the
rights of individuals to participate in sport,
and are reluctant to curtail the conduct of
a particular sport by finding someone liable
when injury occurs. This support of sporting
activity is underlined by courts’ willingness to
accept, in certain circumstances, the defence
of voluntary assumption of risk.
It is important to recognise that courts do
not condone a sporting ‘free for all’ where
was injured after being struck by a golf ball hit
by a fellow group member. The court refused to
find the golfer liable in negligence for striking
the other golfer with his golf ball because,
among other things, it found that the golfer
had conducted himself in accordance with the
accepted rules of the golf club. In contrast, in
a situation where a golfer teed off without first
checking whether the fairway ahead was clear,
the court found that his conduct fell outside the
accepted golfing practice to first check if any
golfers were within range before teeing off.
In the much more dangerous arena of
Rugby Union, courts have recognised that
the risk of injury is inevitable. In this sport,
participants are exposed to the risk of suffering
catastrophic injuries if a scrum collapses.
Despite the dangerous nature of Rugby Union,
courts will look to the rules of the sport to
determine whether players were exposed to
an unreasonable risk of injury in a particular
game. In the Rugby League context, a court
determined that when a player was injured as
a result of a dangerous throw, the conduct of
the perpetrators of the tackle fell outside the
accepted rules of play and was unreasonably
dangerous.
Therefore, whilst courts recognise that
participants in sport are taken to have
voluntarily assumed the risks which are inherent
to a particular sport, if the particular sport is
conducted in a manner which is outside the
accepted rules, and a person is subsequently
injured, the defence is unlikely to apply.
Playing by the rules is imperative
A
consequence
of
increased participation
in physical activity and
sport is an increase in negligence
actions commenced when a person is
injured. Defendants in lawsuits brought
by claimants who have been injured in
the course of participating in sport have
historically relied on the established legal
doctrine of
volenti non fit injuria
. This
defence is premised on the supposition
that –
to a willing person, no harm is
done
. Because a successful defence
acts as a complete bar to responsibility,
Canadian courts have significantly limited
its scope.
Volenti
has been constrained to apply
only in situations where the plaintiff has
made a free and informed choice to
assume both the physical
and
legal risks
of an activity.
1
To succeed there must be
an express or implied agreement whereby
the plaintiff gives up their right of action
in negligence.
2
In general, when someone is injured
while participating in sport, the law
does not usually hold anyone else
responsible.
3
However, there exists a duty
not to place another in a position where
it is foreseeable that injury could be
suffered.
4
This general duty is buttressed
1
Dube v. Labar,
[1986] 1 S.C.R. 649
2
Ibid
., at para. 7
3
Crocker v. Sundance Northwest Resorts Ltd.
[1988] S.C.J.
No. 60, at para. 16
4
Ibid
., at para. 21
by the fact that in most sports there is an
inherent risk of injury. Those who willingly
participate in sports do so with the acceptance
of this risk.
5
For example, in the sport of ice
hockey, Canadian courts have reasoned that it
is common to have contact with the body, puck
and stick. Therefore, a person who engages in
the sport of ice hockey must accept a certain
risk of harm and waive any claim in return
for enjoying the same immunity from other
players.
6
The Canadian threshold for physical violence
in sport is that a participant consents to that
degree of physical contact which is part of the
game, as it is ordinarily played. The courts
have recognized that “the leave and licence
will include unintentional injury resulting from
one of the frequent infractions of the rules of
the game.”
7
The issue then turns to a standard
of care and whether or not the behaviour was
reasonable in view of the rules of the game.
8
In constraining the
volenti
defence the courts
have limited what can be consented to. It would
appear that the policy is to allow the freedom
to accept a certain level of risk, but with
limitations. In the case of
R. v. Ciccarelli
, where
a professional ice hockey player struck another
player in the head three times with his stick, the
court found that there was an implied consent
that physical force would be used; however,
5
Matheson v. Dalhousie College and University
, [1983] N.S.J.
No. 86 at para. 85
6
Agar v. Canning
(1966), 54 W.W.R. (N.S.) 302 at p. 304
7
Ibid.
, at p. 304
8
Dunn v. University of Ottawa
(1995) Ont. Ct. J. Unreported
O.J. 2865
the consent was limited to “ordinary or usual
risks and hazards of the sport”.
9
In an action
involving a Canadian university (gridiron)
football match, a punt return specialist was
speared (head-butted) by a 102-kg linebacker
while in a vulnerable position. In accepting that
the players, by their participation, accepted a
certain degree of violence, the court stated
that “only when there is a deliberate intention
to cause injury or a reckless disregard for
the consequences of one’s actions in an
uncontrolled or undisciplined manner will a
finding of negligence result.”
10
Due to the limits on the use of the
volenti
defence, waivers and releases have come
to the forefront as a way for organisations
involved in sport or recreational activities to
limit their liability. The courts have concluded
that as longs as reasonable steps are taken to
alert a participant or a visitor to a waiver, an
organisation or an occupier can rely on waiver
clauses.
11
What constitutes a ‘reasonable step’
varies on the facts of each case, and will likely
be considered a triable issue. Therefore, the
drafting of a well-framed waiver and release
may in due course become imperative to limit
liability.
Graeme Mew is a partner with Nicholl Paskell-
Mede LLP in Toronto (
gmew@npm.ca
). He is
also an arbitrator for the Court of Arbitration for
Sport and a Judicial Officer for the International
Rugby Board.
9
[1988] O.J. No. 2547 at para. 11
10
Dunn
, at para. 36
11
Pelechytik v. Snow Valley Ski Club
, [2005] A.J. No. 875,
at para. 15
The importance of a well-framed waiver
participants are exposed to unnecessary risk
of injury. The defence of voluntary assumption
of risk is by no means easy to establish, as a
court will need to be convinced that prior to
participating in the particular sport, the injured
person fully understood the risk of injury, and
despite that risk chose to participate.
An example of where a court has accepted the
defence involved a BMX rider who was injured
whilst attempting to negotiate a particularly
challenging jump. The court found that prior to
attempting the jump, the rider knew it had been
altered to make it more demanding. Despite
his awareness of the risks posed by the jump,
the rider chose to attempt the jump. In those
circumstances, the court found that the council,
which managed the bike track, was not liable
for the rider’s injuries. In contrast, a person
who was injured when his head struck car tyres
placed around a beach volleyball court was
found not to be fully aware of the risks involved
in participating in a game of beach volleyball.
Establishing that a person actually had
knowledge of all the risks associated with a
particular sporting activity will often be difficult.
A court will examine all of the surrounding
circumstances to determine whether or not it
can infer that a person knew of the particular
risks involved in the sport, and despite that
knowledge, participated in the sport.
Courts will often consider what the accepted
rules of a particular sport are to decide what
risks are inherent to that sport. A good example
is in the golfing context. In one situation, a golfer
Peter Dobeli is a solicitor with DLA Phillips Fox in Melbourne.