EXAMPLES OF RISKS Organization is sued when a rugby scrum collapses, plaintiff alleges mismatching of players Coach, club and arena are sued for failing to ensure a safe skating surface Instructor is sued for failing to follow proper progression in instruction Member of club complains of harassment and abuse by a coach Player challenges selection decisions made by a committee Hockey player injured by an illegal check sues coaches and officials for failing to enforce the rules
THESE RISKS WILL - Cost your club money Take up time and other valuable resources Increase future insurance costs Distract your staff and volunteers Harm your public image
OUR FOCUS TODAY... What’s the risk Physical injury: resulting in a loss for which there is a legal remedy, and for which the sport organization may be responsible What’s the responsibility Provide a safe environment: have policies and standards that promote safe programs in safe facilities, overseen by qualified personnel
OUTLINE Question 1 - How does the law expect me to behave? ( negligence & liability) Question 2 - Given what the law expects, how do I ensure that I behave appropriately? ( risk management) We won’t give you all the answers but hopefully we’ll give you enough knowledge that you’ll ask the right questions
NEGLIGENCE An action is negligent only when: a duty of care is owed, and the standard imposed by this duty is breached, and harm or loss is suffered, and the breach of the standard causes or substantially contributes to the harm or loss
DUTY OF CARE To whom do you owe a duty of care? “To anyone who you ought to know could be affected by your actions” The court will ask “would a reasonably average person have foreseen the possibility of harm or injury”
STANDARD OF CARE “What a reasonable person would do, or not do, in similar circumstances” The reasonable person is interpreted to mean a person similar to yourself, in skills, experience and knowledge
STANDARD OF CARE Written/published standards Unwritten/unpublished standards Case law Common sense
WORDS OF CAUTION A lack of standards may be viewed as condoning inappropriate behaviour 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!
STANDARD OF CARE Highest 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
St. John’s School Canoe Accident - June 1978 No route maps drawn up, no-one familiar with route Group had no rescue equipment and no emergency procedures Some participants could not swim: leaders did not know which could and could not No-one had canoed since the previous autumn There had been no preparation for the trip such as physical conditioning, learning canoe rescue techniques, lifesaving training Canoes had been modified to accommodate more cargo Participants’ physical endurance was reduced by all night driving and early start, lack of hot food at breakfast or lunch
Do the circumstances impose a duty of care? YESNO Has the standard of care imposed by this duty been breached? YESNO Is there resulting harm or loss? YESNO Did the breach of the standard cause or substantially contribute to the harm or loss? YESNO Negligence! Is there liability? maybe YES, maybe NO
NEGLIGENCE v. LIABILITY NEGLIGENCE refers to conduct LIABILITY refers to responsibility for negligent conduct
STANDARD OF CARE Breach of the standard of care is the most critical of the four elements of negligence Fortunately, this is an area over which you have the greatest control Risk management efforts focus on MEETING OR EXCEEDING THE STANDARD OF CARE
WHY MANAGE RISKS? Reduce injuries to participants Improve your defense against litigation Reduce insurance costs/meet requirements of insurers Meet requirements of funding agencies Protect your volunteers Improve customer service and public image Help you to govern more effectively Practice good business management (“bottom line”)
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?
IDENTIFYING RISKS Sources of risk: Facilities (fields, roads, trails, buildings) Equipment (belonging to club or to participants) People (participants, staff, volunteers, spectators) Program (the activity itself)
MEASURING RISKS The magnitude of a risk is a function of its frequency (likelihood of occurrence) and its severity (seriousness of resulting harm) It is usually adequate to assess the magnitude of risk in terms of low moderate high
RISK CONTROL STRATEGIES Regardless of how little or how big you are, or who you are, or what you do, there are FOUR strategies to control risks ….
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 behaviour 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
CHOICE OF STRATEGY severity avoid transfer reduce retain L M H VH frequency
RISK TRANSFER METHODS WAIVERS have all participants in program sign a waiver agreement INSURANCE review all insurance needs and renew policies appropriately CONTRACT MANAGEMENT include proper indemnification provisions in all contracts signed by the organization CONTRACT FOR SERVICES contract out work to other parties (instructional clinics, event management, security, catering/bartending, transportation) JOINT VENTURES create separate corporate entity to host major events
RISK CONTROL STRATEGIES - another perspective Strategies to retain risks and to transfer risks (including insurance) do nothing to prevent the risk, harm or loss from occurring in the first place Strategies to reduce risks and to avoid risks are directed towards preventing the risk, harm or loss from occurring
REMEMBER …. The law never expects perfection, it only expects reasonableness Risk management is the same way - your risk management program is a a reasonable mix of risk control measures suited to your organization’s needs, circumstances and resources
RISK MANAGEMENT PLAN Step 1 – Use brainstorming techniques to identify risks (use best judgment) Step 2 - Measure risks using the low, moderate, high categories (use best judgment) Step 3 - Identify appropriate measures to control risks Step 4 - Implement measures Step 5 - Review and adjust your plan on a regular basis
RISK MANAGEMENT = ORGANIZED COMMON SENSE (where common sense = sum of knowledge + experience)
WHAT IS A WAIVER? It is a contract by which a participant agrees to accept the risks involved in an activity in exchange for the opportunity to participate in the activity
TWO TYPES OF RISK IN SPORT PHYSICAL RISK The risks, dangers and hazards that are inherent in the sport activity. These risks are unavoidable, reasonable and in many cases, desirable LEGAL RISK The 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
HOW TO CONSENT TO RISKS By the act of participating By verbal agreement (verbal contract) By written agreement (written contract)
CONSENTING TO RISKS PHYSICAL RISK A participant can consent to physical risks by the act of participating or by verbal or written agreement. LEGAL RISK A participant can consent to legal risks ONLY by means of a written agreement. This is a “waiver of liability” agreement
WHAT IS A WAIVER? A waiver is a written contract in which a participant agrees not to hold the Association, Club or program organizers responsible for the legal risk of their negligence in exchange for the opportunity to participate in their program.
WHAT IS A WAIVER? An intentional, informed and voluntary agreement to give up a known legal right
WAIVERS - 3 ESSENTIALS Description of risks you are asking participant to accept - including both physical risks of the sport and legal risk of your negligence Participant’s “release” or “waiver” of liability - the backbone of the waiver is the participant’s knowing relinquishment of their right to sue you Participant’s acknowledgement - that they have understood the terms of the waiver - and are signing it voluntarily
WHAT IS COVERED Training Pre-event activity Event itself Travel to and from event Post-event events Season vs. Single event vs. Multiple events
WAIVERS WORDING - is the waiver easy to read and understand? WHAT’S COVERED - are all activities, all parties, all risks covered EXECUTION - does person have authority to sign a contract, and did they have an opportunity to read and understand the waiver?
CONSISTENT PROCEDURES Sign in advance of activity Allow ample opportunity to review Execute in person (not through mail) Have a witness No alcohol around Check proof of age if unsure Store safely and for a long time
CONSIDER ALTERNATIVES Assumption of Risk Informed Consent Participant Agreements
www.sportlaw.ca “Risk management for sport organizations and sport facilities” – Sport Management Symposium “Using waivers in university programs and facilities” - CURIE Newsletter “What is the standard in the standard of care” – Coaches Report (and other Coaches Report articles) “Waivers” – Topics page of web site Online Bookstore – see all ten handbooks