Laws of Eve | The legal risks involved in playing sports

Football fever overtook the world within the past several weeks. Emotions in Russia ran the gamut from the thrill of victory to the agony of defeat, as traditional favourites were eliminated. Meanwhile, the entire world was transfixed by the daring rescue of one little football team, The Wild Boars, and their coach from the deep recesses of a cave in Thailand.

How is any of that relevant to the law, you ask? While I am making no direct correlation, many stories came out of the events that bring legal issues to mind. For example, one Moroccan player reportedly suffered memory loss after sustaining a concussion during a match, and there were doubts as to whether one of France's players might have missed the finals due to a suspected concussion.

Let us start by considering some of the basic legal principles that surround participation in sporting activities. This begins with the general concept that all persons have a duty of care to ensure that they avoid activities that might cause injury to others. There are some activities, however, that are inherently dangerous and involve taking risks that qualify that general duty. For example, when a baker, who needs to stand for the greater part of his working day, engages in jujitsu, fractures his leg and is unable to work for at least six weeks, or a professional football player suffers a concussion while playing the game and develops severe mental-health issues some years later, who is responsible?

The law treads a path in the sporting arena, because although there is an overwhelming desire to encourage and support engagement in sports, there is clear recognition that sports involve rules and the activities of players are still subject to traditional legal principles.

In most cases related to sports injuries, the claimant is the injured player and the defendant is the player on the opposing side or the organisers of the event. The defendant is likely to rely on the defence Volenti Non Fit Injuria to assert that the claimant consented to participate in the sport, and, therefore, consented to the risk of danger that is associated with it.

DIFFICULT CLAIMS

Claims in this area are usually very difficult, and the results vary. In one English Court of Appeal decision - Condon v Basi [1985] 1 WLR 866 - the claimant suffered a broken leg when a player from the opposing team effected a late sliding tackle that earned him a red card. ". . . There was here such an obvious breach of the defendant's duty of care towards the claimant. He was clearly guilty ... of serious and dangerous foul play which showed a reckless disregard of the claimant's safety and which fell far below the standards which might reasonably be expected in anyone pursuing the game."

A later decision in the case of Caldwell v Maguire [2002] PIQR 6 involved serious injuries that were suffered by one jockey when two other jockeys rode their horses across the path of others and caused the claimant's horse to hit the rail. The English Court of Appeal upheld the trial judge's finding that the defendants were not negligent, even if they might have been careless.

In the 2012 case of Harrison v Jagged Globe [2012] EWCA Civ 835, the Volenti defence succeeded when an experienced mountaineer sued the organisers of an expedition for injuries she suffered during a fall. The expedition was being filmed, and the court found that the claimant volunteered and accepted the risk associated with what was a staged fall or stunt.

I suppose the best advice in this area is to carefully assess the risks associated with the sport in which you have an interest before becoming engaged. Once those risks are known, it should be accepted that there could be a complete defence to any claim that you suffered injury while participating in the sport.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.