UNDERSTANDING YOUR LEGAL RISK SPORT OFFICIALS CANADA OFFICIELS SPORTIFS June 2009

2 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

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

Areas of Responsibility Provide a Safe Environment and Manage Conflict Effectively Enforcing the Rules of the Sport Control and Supervise the Sport Protect Participants Warn of Risk Anticipate 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….

NEGLIGENCE Negligence 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 STANDARDS Government Statutes and Regulations Equipment Standards Rules Guidelines Internal Policies and Procedures Code of Ethics Sport Rules Technical Regulations Safety and Emergency Procedures Tournament or Event Guidelines Officiating Manuals Job 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 SENSE Intuition Knowledge Experience Gut

CASE LAW Previous 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 Continued Written Standards Court ruled coach acted in accordance with the Rules of the Game and safety regulations promoted by the sport’s governing body. Unwritten Standards Coach properly taught all players proper technique.

STANDARD OF CARE Objective 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. Reasonableness What a reasonable official similar in skills and experience would do, or not do, in similar circumstances.

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

LIABILITY LIABILITY  refers to responsibility for negligent conduct (… it might not be the person who was negligent!!) – Contributory Negligence Direct Liability Vicarious Liability The law never expects perfection, it only expects reasonableness

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 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 Indig