The law related to sports injuries and accidents is still sketchy and only test cases will change this. The two points that do exist are that people have a duty of care to all other individuals that are participating, and that failure to carry out this duty of care could be construed as negligent. Failure to implement Codes of Practice, not carrying out Risk Assessment and not following the National Governing Body Guidelines, plus any University rules and regulations that have been set, could also be construed as negligent.
What is duty of care?
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". Who then, in law, is my neighbour? The answer seems to be – "persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so directly affected when I am directing my mind to the acts or omissions which are called into question".
This test will be applied to all sporting activities. Anyone involved in sport must be aware that their actions or in-actions may affect anyone else involved in that activity or even persons not actually involved as such but spectating or even just living nearby.
For example, if the Club decides to organise a canoeing expedition for students it puts itself in a duty of care situation. If a student Club decides to run a competition for Club members and others, it (i.e. the Club Committee) puts itself in a duty of care situation. If a student who is an experienced climber organises a group of inexperienced climbers to go climbing, he or she is putting themselves in a duty of care situation.
In deciding exactly what comprises this duty of care the law is not and cannot be precise. It can only establish general principles to be applied in each particular situation.
Who is negligent?
All participants in recreational activities run the risk of injury. The problem facing lawyers when someone is injured is deciding which injuries are ‘occupational hazards’ and which should be the subject of a claim for financial compensation from the person responsible, because there has been some element of recklessness or carelessness resulting in a breach of the duty of care exercised.
A person who has been injured may seek financial compensation if that person can show that someone has been negligent and that it was that negligence that caused the injury. Although the burden of proof normally lies on the person making the claim, in the case of extreme negligence ‘res ipsa loquitur’ (the thing speaks for itself) applies. To establish that there has been negligence the following 3 elements must exist:
- A duty of care must be owed
- There must be a breach of that duty
- Actual damage must have resulted from that breach
The issue of exactly what ‘duty of care’ is owed may require some thought. Those with greater experience will owe a greater duty of care, as will those in defined positions of responsibility, e.g. trip leader, committee member.
More information may be found in the club’s safety policy.