Negligence in Sports Injuries - Essay Example

Negligence in Sports Injuries The governing premise for determining whether negligence has occurred was laid out by Lord Atkin in the case of Donaghue v Stevenson1 in which he stated that "reasonable care" must be taken to "avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor."2 A neighbor, as further defined by Lord Atkin includes people closely and directly affected by the negligent act3. Negligence will occur when there has been a breach of the duty of care. A breach will occur when (a) the damage is foreseeable (b) there is a sufficiently proximate relationship between the parties and (c) it is fair, just and reasonable to impose such a duty.4 Where sporting events are concerned, the finding of negligence is complicated by the volenti non fit injuria principle, whereby the underlying premise is that those who participate in sports knowing the risks that may exist5, are in effect, consenting to a breach of duty of care and hence negligence claims may not hold good6. For example, in the case of Woolridge v Sumner7 where a spectator was injured, it was held to be the result of an error of judgment rather than negligence. It was also held that liability could be established only when it could be shown that there had been a reckless disregard for the safety of the spectator/s. The notion of "reckless disregard" as laid out by Lord Diplock is inherently based upon the premise that a player acts negligently when he foresees risks and yet proceeds with his actions despite the risk. Reckless disregard thus involves a breach of not only the duty of care owed to prevent a claim of negligence, but also a duty of skill. Thus, in the case of Woolridge, for example, Lord Diplock clarified that when a participant was aware of his lack of skill to perform a sporting feat and the risk his lack of skill might pose to spectators, he would be guilty of negligence to the spectator, if he still goes ahead and performs the act in question8. As a result, while negligence implies the owing of a duty of care, reckless disregard implies the owing of a duty of care and a duty of skill. Reckless disregard is in essence, negligence applied within a sporting context, with a higher threshold to allow for the inherent risks in sports which players voluntarily assume under the volenti fit non injura principle. Reed, in analyzing the judgment rendered in the case of R v Barnes9 has explained how, within the context of sports, reckless disregard occurs when a player inflicts harm or injury maliciously10. A defendant who is "reckless" is one who is able to foresee that there is a risk for bodily harm occurring through his actions and yet, chooses to ignore the risk and continue with the offending act. "Recklessness implies a greater degree of culpability or wrongdoing than negligence" because recklessness amounts to willfully exposing another person to harm and causing injury, rather than it occurring as a result of an accident or unforeseen event11. This does not however, necessarily imply that reckless disregard requires a modified duty of care to be established before a claim of negligence can succeed. As Lord Oaksey stated in the case of Bolton v Stone12 the standard of care in ordinary negligence is the "standard of an ordinarily careful man, an ordinarily careful man does not take precautions against every foreseeable risk'.he takes precautions against risks which are reasonably likely to happen."13 Where sporting events are concerned, there is already an inherent risk of injuries and accidents occurring, but the standard of duty of care applied in negligence will also be applied within the sporting context, albeit with a higher threshold. Since sporting events involve some element of rough shod treatment, they of necessity involve some element of risk. Applying the standard of care as laid out by Lord Oaksey above, it is not possible to take precautions against every such risk. Rather it is those injuries occurring as a result of actions over and above what is considered normal and on par with sporting activities, which could include scope in negligence. When a grave risk exists and is acknowledged, yet action is taken despite such risks, then reckless disregard occurs and creates a claim in negligence, because reckless disregard overrides the volenti non fit injura principle. In the case of Condon v Basi14 the volenti non fit injuria principle did not apply and an amateur footballer was held to be guilty of "serious foul play"15 in causing an opponent's leg to break when tackling him. The Court held that the duty of care did apply in these circumstances and the footballer had a duty to take reasonable care not to injure others, and was liable. The footballer's actions amounted to a disregard of the foreseeable risks, hence there was a breach of the duty of care that was owed. This was also the case in Blake v Galloway16where injuries were held to be caused due to recklessness. Dyson LJ explained in this case that owing to the application of the volenti non fit injura principle, the ordinary standards of negligence as laid out in cases such as Donaghue v Stevenson17 and Caparo v Dickman18 cannot apply in sporting activities, the threshold for a legally actionable suit had to be higher. The principle of volenti non fit injuria assumes the element of consent of players and spectators to risks inherent in sporting activities. Consent functions as an appropriate defence in mitigating the liability of the offender19. However, there may be instances where, in the public interest, consent cannot be held to be a valid defense when bodily assault has occurred20. Criminal liability may be established in some instances when it is in the public interest to initiate a prosecution or when there has been a severe instance of foul play.21 For example, in the case of R v Gingell22 a rugby player was held guilty of inflicting grievous bodily harm, while in the case of R v Johnson23 a player was convicted of a criminal offence for biting off a part of an opponent's ear. Where the question of negligence is concerned, the question of whether civil or criminal liability is to be established will be a matter for the discretion of the Courts, depending upon the individual circumstances of a particular case24. The courts are also required to take into account the gravity of the injuries and the extent to which the rules of the game have been breached to determine whether criminal liability can be imposed. In both the cases of Gingell and Johnson mentioned above, the events which occurred extended beyond the scope of the risk of injuries normally associated with sporting events. These incidents represented instances of malice and foul play, where players were aware of foreseeable risks, yet chose to ignore them and disregard the rules of the game. As a result, their actions fell within the scope of a breach of the duty of care to take reasonable precautions not to injure another person, thereby laying ground for a claim in negligence. Thus, the volenti non fit injuria principle does not imply that there is no duty of care at all, although the threshold in application may be higher. Negligence may be established when there has been a deliberately reckless act that caused injury, or when the rules of the game have been breached. In the case of Smoldon v Whitworth25for example, action was brought against the referee for causing injuries to a player as a result of failure to enforce the rules of the game. In the case of R v Barnes26 a player who tackled an opponent from behind was not held to be guilty of foul play and resultant liability, it was held in this case that the nature of the harm had to be sufficiently grave enough to be regarded as criminal. As Gardiner27 points out, when games are played by the rules, there may be little scope to bring about a successful action in negligence. However when the rules are breached, it is the extent of the injury and the manner in which the injury occurs which will determine the extent of liability. Foul play that leads to serious bodily injuries will lead to claims and make the player liable, while negligence applying the general standards of duty of care may not normally apply in sporting events due to the violenti non fit injuria principle. As shown in some of the cases above, players have been held to have a duty of care to other players, despite the element of consent to the risk of injury which is said to operate in the sphere of sporting events. According to Livings28 it is the concept of legitimate sport which in effect determines whether or not criminal liability can be established for an injury that occurs. Courts are not likely to automatically impute criminal liability every time the rules of the game are breached, or every time that foul play occurs. According to Lord Woolf in the case of Barnes29, an actionable breach of duty of care would only occur when "something quite outside what could be expected to occur in the course of a football game ... even if a tackle results in a player being sent off, it may still not reach the necessary threshold to constitute criminal conduct."30 This shows that when sports are being played according to the rules, there may not be an objective standard of duty of care which arises. Livings states that the existence of rules may be grounds in favor of the defense, as also the consent principle, both of which would fall within the realm of events that may characterize legitimate sport. The notion of legitimate sport is also explained by Gardiner, who has put forth a standard that may be used in an examination of the defense of consent in determining the extent of liability. He refers to this objective standard as the playing culture.31 Applying this standard, the courts would need into account all of the circumstance surrounding the sport/game in question, including its rules and the level of ability of the individual players. After taking all of these factors into account, the court would be able to arrive at a decision on how far the player can be held to have consented to the injuries received, thereby mitigating the liability of the player who has caused the injury. This is similar to the conclusions that Livings32 has reached on when criminal liability may be attributed in the event of an injury resulting during sport. On the one hand, the rules of the sport establish the context within which the offence has occurred, while the element of consent also implies that to some extent, injuries may be associated with the context of the sport and risks accepted prior to taking part in the game. When injuries occur within this context, or when foul play occurs but the extent of injury is caused is not grievous and some extent of foul play is concomitant with the game, then it will fall within the purview of legitimate sport and may not give rise to a claim in negligence. The standard of care that is to be applied in sport is thus of a higher threshold than that applied in ordinary negligence, where an ordinary man is expected to take reasonable precautions not to cause foreseeable injuries to another. McArdle argues that reckless disregard cannot as such be used as an objective standard in establishing general negligence where sporting events are concerned, it can merely function as an evidential guide for the courts33. Rather, as laid out in Bolton v Stone, participants in sports are obliged to achieve the standards of ordinary, careful men, but the breach of such duties are to be examined by the courts by taking into account the circumstances of the particular case, as well as the normal rules and standards that exist in the field of sport. Another aspect that must be taken into account by the courts in establishing negligence in sporting events is the question of vicarious liability, thus expanding the scope of liability imputed in sporting events to persons beyond individual players. For example, in the case of Smoldon v Whitworth cited earlier, the referee was held guilty of failing to enforce the rules. In the case of Hall v Brooklands Auto racing Club34contributory negligence played a role. The Court held that the owners of a racing car circuit were not liable in respect of injuries sustained by spectators, since they had also contributed to the injury by choosing to sit close to the railing and had therefore accepted the attendant risks. In the case of Harrison v Vincent35the rider of a motorcycle and sidecar was held liable for injuries caused to his passenger due to his failure to carry out a proper inspection of the vehicle. In the case of Coney36, the mere presence of certain individuals at a fight was held to be prima facie evidence of complicity in aiding the battery and injuries caused by the principals, thereby causing a breach in negligence by vicarious liability. In its consultation Paper37, the Law commission has pointed out that the standard of care owed in negligence can also be applied to secondary parties when they are indirectly to blame for the injuries caused. "Whoever shall aid, abet, counsel or procure the commission of any offence'..shall be liable to be tried, indicted and punished as a principal offender."38 This suggests that liability will be imposed based upon the extent to which the player, spectator or secondary person is deemed to be responsible for the injuries in question. In the context of sporting activities, the element of consent plays an important role in limiting the scope of recovery possible under a claim of negligence. Within the normal rules of sport, there is automatically an element of danger that must be assumed and claims in negligence in sport cannot be placed on par with the requirements of reasonable care by an ordinary man in negligence. Rather', there must be a demonstration of a deliberate disregard for the rules of the game and the requirement to exercise reasonable care against foreseeable injury, before liability can be established. Lord Diplock's quote in the case of Woolridge v Sumner thus indicates that there is a higher threshold in sporting events where the establishment of negligence is concerned. Bibliography * Fafinski, 2005. "Consent and the rules of the game: The interplay of civil and criminal liability for sporting injuries", Journal of criminal law,69(5):414 * Gardiner, Simon, 2005. "Should more matches end in court'", New Law Journal, 155.7183 (998) * Gardiner, S et al, 2006. "Sports law" (3rd edn), London: Cavendish. * Law Commission Consultation Paper, 162, "Sports, games martial arts and dangerous exhibitions". * Livings, Ben, 2006. "Legitimate sport or criminal assault' What are the roles of the rules and the rule makers in determining criminal liability for violence on the sports field'" Journal of Criminal Law, 70 (495) * McArdle, David, 2005. ":The enduring legacy of reckless disregard", Common Law World Review, 34(4):316 * Reed, Alan, 2005. "R v Barnes (2005) EWCA (Crim) 3246, The Times (10 January, 2005)", Journal of Criminal Law, 69(3):201 Cases cited: * Attorney-General's Reference (No. 6 of 1980) [1981] 2 All ER 1057 * Blake v Galloway [2004] EWCA (Civ) 814 * Bolton v Stone (1951) 1 All ER 1078 * Caparo Industries v Dickman (1990) 1 All ER 568 * Condon v Basi , CA (1985) 1 WLR 866 * Coney (1882) 8 QBD 534 * Donaghue v Stevenson (1932) AC 562 * Hall v Brooklands Auto racing Club (1993) I KB 205 * Harrison v Vincent (1982) RTR 8 * Home Office v Dorset Yacht Company (1970) AC 1004 * R v Barnes [2005] 1 WLR 910 * R v Brown (1994) 1 AC 212 * R v Gingell Crim LR 553 * R v Johnson (1986) 8 Cr App R (S) 343 * Smoldon v Whitworth, CA (1997) PIQR PI33 * Woolridge v Sumner, CA (1963) 2 QB 43 . Read More