All Sports and sport related gyms, clubs, leagues, and events by their very nature bring about inherent risks of injury and other forms of liability, with some carrying a much greater risk. Even though, to a certain extent, adult athletes should be expected to accept an element of risk if they choose to take part in any sport which gives rise to unavoidable occurrences. Take for example, in the case of rugby or skiing, a complete defense for the organizer of these activities cannot always be provided. It should also be remembered that greater care must be taken to ensure the safety of child participants.
Quite simply, facilities and equipment should be kept reasonably safe for use by legitimate users of a sports club or clients of an activity provider. If they are not, or if a member of staff or a volunteer is negligent in carrying out tasks that fall within his or her employment or responsibility leading to injury of a participant, then a claim may be very difficult to defend.
Common types of claim
A number of common types of claims have emerged:
- Poor maintenance and inspection of equipment
It must be remembered that while a business or club will benefit from the work of employees and volunteers, they will also be responsible if that employee/volunteer does something wrong. For example, if an instructor is tasked with carrying out inspections of climbing equipment and misses an obvious defect, which ultimately causes injury, then the instructor, or the business/club he is working or volunteering for, will be responsible.
- Lack of supervision
Allegations of a lack of supervision during an activity or pushing participants into carrying out an activity that is beyond their capability, are more regularly seen in claims arising out of more dangerous activities such as gymnastics and trampolining. The duty on the individual coach will be to ensure that standards of coaching have not fallen below the standard expected of a competent coach. If an injury arises as a reasonably foreseeable consequence of poor coaching or supervision, then liability will be imposed on the employing club, even if in a voluntary capacity.
An example is of a coach asking a claimant to carry out a front somersault on a trampoline which the claimant said was beyond their capability. Lack of notes from the coach meant that there was no evidence to show the claimant’s progression and resulted in a finding that the coach had been negligent in pushing her too fast.
- Rugby and football and other contact sports
These sports also generate many claims. Allegations range from something simple like a problem with the playing surface to allegations that participants have injured opponents with illegal tackles. Referees can be legally responsible for ensuring that games are run in a way that does not lead to an inevitable injury, including ensuring the playing area is safe and discipline is maintained.
Claims relating to children present a particular challenge. While an adult is expected to bring a claim within three years of an injury, a child will have additional time. This can present difficulties where staff have moved on and documents have not been retained.
The US government has highlighted that sport has benefits, and clubs and activity providers should not be put off organizing activities that have an inherent risk just because they are fearful of claims. As long as there has been no negligence, most state laws allows a defense to a claim where it is seen that the benefits of the activity outweigh the risks.
Minimizing risk and defending claims
So what can sport clubs and activity providers do to minimise the risk of injury and successfully defend claims where an injury does arise?
- Ensure that staff and volunteers are properly trained in the task that they are expected to do. Keep records of their training.
- Make sure that professionals such as coaches keep records of progression of their athletes/students. This will help to refute an allegation that someone has been forced to perform beyond their capabilities.
- Be aware of any National Governing Body guidance, codes of conduct, rules of the sport when performing an activity. If followed it will help to demonstrate that reasonable care to avoid injury has been taken.
- Where systems/procedures are in place, ensure that they are followed.
- Do not expect staff to carry out tasks that are beyond their capability.
- Ensure records of inspection are retained. Where the activity involves children, documents should be kept as long as is reasonably practical due to the risk of a claim arising many years later.
- Encourage staff to give an honest view of what went wrong if an accident arises rather than saying what they think a court would want to hear. It is far cheaper to settle a claim at an early stage if something has gone wrong.
- Use common sense. Don’t put anyone, whether staff or participants, in a situation which puts them at risk.
And finally and most importantly – identify legal counsel in your area that understands your sport and you business. Have them review your hiring policies, training policies, insurance policies, and anything else that they recommend. Be prepared in advance to any possible claim and protect yourself every step of the way.
*Club Sport Owner and Operator is not providing legal counsel, we are merely reporting on the legal issues that are facing sports club owners and operators. If facing a liable issue, retain an attorney for legal advice.