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UNDERSTANDING YOUR LEGAL RISK
SPORT OFFICIALS CANADA OFFICIELS SPORTIFSJune 2009
2 TYPES OF RISK IN SPORT
PHYSICAL RISKThe risks, dangers and hazards that are inherent in the sport activity. These risks are unavoidable, reasonable and in many cases, desirable
LEGAL RISKThe risk that the organizers of the sport activity will behave negligently. This risk is not inherent in the sport, nor is it desirable, reasonable or acceptable
CONSENTING TO RISKS
PHYSICAL RISKA participant can consent to physical risks by the act of participating or by verbal or written agreement.
LEGAL RISKA participant can
consent to legal risks ONLY by means of a written agreement. This is a “waiver of liability” agreement
Areas of ResponsibilityProvide a Safe Environment and
Manage Conflict Effectively
Enforcing the Rules of the SportControl and Supervise the SportProtect ParticipantsWarn of RiskAnticipate foreseeable Risk
Forgetting Responsibilities
May result in a lawsuit Will cost you/your organization money
(legal costs, damages, future insurance costs)
Will take up your valuable time Will “turn off” your volunteers Will harm your public image
PRACTICAL RISK MANAGEMENT
Identify risks ask, what are the possible things that can go wrong?
Measure risks ask, how likely is it things will go wrong, and what are the consequences if they do go wrong?
Control risks ask, what can I do to keep things from going wrong?
OR PUT ANOTHER WAY ...Ask yourself “What are the possible things
that can go wrong?”
Ask yourself “How likely is it things will go wrong and what are the consequences if they do go wrong?”
Ask yourself “What can I do to keep things from going wrong, or if they do go wrong, to minimize the resulting harm?”
RISK CONTROL STRATEGIES
Retain the risks you don’t do anything because the likelihood of occurrence is low and the consequences are slight
Reduce the risks you take steps to reduce the likelihood of occurrence, and/or the consequences, largely by changing human behavior
Transfer the risks you accept the level of risk but you transfer this risk to others through contracts
Avoid the risks you decide simply to NOT do something
IDENTIFY RISKS –obvious, foreseeable….
IDENTIFY RISKS –not obvious, not foreseeable….
NEGLIGENCENegligence occurs only when:
A Duty of Care is owed,
and the Standard of Care is breached,
and Harm or Loss occurs,
and the breach of the Standard causes or substantially contributes to the Harm or Loss
NEGLIGENCE BASICS
Duty of Care An official owes a duty to anyone who
they ought to know could be affected by his/her actions
A duty arises by virtue of a “relationship” between two parties, and the official-athlete relationship is clearly one which establishes a duty of care.
STANDARD OF CARE
Written/published standards
Unwritten/Unpublished Standards
Case law
Common sense
WRITTEN STANDARDSGovernment
Statutes and Regulations
Equipment Standards
RulesGuidelinesInternal Policies
and ProceduresCode of Ethics
Sport RulesTechnical
RegulationsSafety and
Emergency Procedures
Tournament or Event Guidelines
Officiating ManualsJob Description
UNWRITTEN STANDARDS Common Practices of other Officials
Remain current with new developments Network Pursue and Participate in Professional
Development.
Failure to act is often an indication of a lack of caring!!
COMMON SENSEIntuition
Knowledge
Experience
Gut
CASE LAWPrevious court decisions about similar
fact situations.Principles of Common Law which
evolve over time.Acts as a guides and provides
important information to officials.
Hamstra v. BC Rugby Union (1989)
Rendered quadriplegic when scrum collapsed.
Sued coach for mismatching athletes playing the prop positions.
Test for negligence is “whether [the coach] acted in accordance with the ordinary skill and care of a coach in the circumstances in which he found himself.”
Hamstra ContinuedWritten Standards
Court ruled coach acted in accordance with the Rules of the Game and safety regulations promoted by the sport’s governing body.
Unwritten StandardsCoach properly taught all players proper
technique.
STANDARD OF CAREObjective Standard of Conduct
This invariably means that sports referees are required to conform to a standard of conduct for the protection of others against unreasonable risks.
ReasonablenessWhat a reasonable official similar in skills
and experience would do, or not do, in similar circumstances.
STANDARD OF CAREHighest possible level of care - risk is eliminated
Reasonable standard of care in the circumstances - risk is appropriately managed
Failure to exercise any care - risk is ignored
Behaviour is not
negligent
Behaviour is
negligent
LIABILITY
LIABILITY refers to responsibility for negligent conduct (… it might not be the person who was negligent!!) –
Contributory NegligenceDirect LiabilityVicarious Liability
The law never expects perfection, it only expects reasonableness
Do the circumstances impose a duty of care?
YES NO
Has the standard of care imposed by this duty been breached?
YES NO
Is there resulting harm or loss?
YES NO
Did the breach of the standard cause or substantially contribute to the harm or loss?
YES NO
Is there liability? maybe YES, maybe NO
265. (1) A person commits an assault when(a)without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
ASSAULT
WORDS OF CAUTION A lack of standards may be
viewed as condoning inappropriate behavior
If governing organization adopts or recommends certain standards, you should too
Make sure that you have the ability to enforce standard (for example, eyeguards, mouthguards)
Don’t make your standards so strict that they cannot be enforced
… or so slack that the court will impose a higher standard on you
Ignoring a written standard will only bring you trouble!
MOST TIMES THE SOLUTIONS ARE EASY …
Steven [email protected]
