Tortious Liability in Sports: Understanding Negligence and Duty of Care in Sports Law, Summaries of Law

Download Tortious Liability in Sports: Understanding Negligence and Duty of Care in Sports Law and more Summaries Law in PDF only on Docsity! Sharing Session on SPORTS LAW Tortious Liability in Sports Dr. Mahyuddin Daud Outline • Definition • Elements of Tort • Legal Wrong • Legal Damage • Legal Remedy • Aims and Objectives of Tort • Negligence Breaching the “Limit” = Wrong = Tort Definition • Literally: “wrong” • Technically: • A wrongful act or omission by a person, not authorized by law • Such act/omission encroaches to other’s interest which is protected by law i.e. “legal injury” • Such encroachment may/may not result in actual or physical “damage” • The person wronged is entitled to a legal remedy • Tort as “law”: a branch of private law that deals with the types of tortious acts and the matters incidental thereto such as the remedies. Elements of the Wrongdoing Wrong • eg: Negligence • Trespass to body, land or property Damage • Body injury • Property damage • Reputation loss Remedy • Monetary damages • Injunction Primary liability A person is liable for his own act or omission in breach of a legal duty A commits a tort against B, A is primarily liable to B Vicarious liability A person is liable for the act or omission of another person with whom he stands in some special relationship i.e. employer & employee C employs A as a factory worker. In the course of his employment, A negligently dropped a tool on B’s head causing injury. B can sue A for primary liability and also sue C for vicarious liability. Forms Actionable per se Torts where defendant is liable without proof of actual damage to plaintiff i.e. Trespass to land, trespass to person Not actionable per se Defendant is only liable if there is proof of actual damage to plaintiff I.e. Negligence Negligence Liability based on fault Defendant was blameworthy for the act or omission done Strict liability Liability independent of any fault Defendant is liable for act or omission regardless whether he acted innocently DUTY OF CARE DAMAGE BREACH OF DUTY OF CARE Plaintiff must prove that there exists a duty of care on the part of defendant That duty of care is not duly performed or breached; i.e. by the commission or omission of the defendant Damage occurred and suffered by the plaintiff due to the defendant’s breach of his duty of care Elements of Negligence “DUTY OF CARE” Element of Negligence “There is no liability for negligent conduct involving harm unless the law exacts in the circumstances of each particular case a duty to take care.” Gill J. in Jaswant Singh v Central Electricity Board [1967] 1 MLJ 272 How to identify the existence of a duty of care? APPLYING NEIGHBOUR PRINCIPLE! Are they neighbour to each other? If yes  there is duty of care! DUTY OF CARE? Neighbour Principle (cont’d) 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 reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question…” Lord Atkin in Donoghue v Stevenson [1932] AC 562 • Neighbour Principle involves an objective test – asking a hypothetical questions: • Would a reasonable man, who is in the same circumstances as the defendant, foresee that his conduct will adversely affect the plaintiff? • If ‘No’  P is not D’s neighbour No duty • If ‘Yes’  P is D’s neighbour Duty arises • Sporting organizations, administrators and facility managers usually have a duty of care to participants to take reasonable care to ensure that safe playing surfaces and equipment are provided Caparo Industries pIc v Dickman [1990] 2 AC 605 House of Lords • Lord Bridge (on the Caparo test) • “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.” Caparo v Dickman (1990) • Three steps to establish duty of care are; ie to ask three questions; 1. Was loss to the claimant foreseeable? 2. Was there sufficient proximity between the parties? 3. Is it fair, just and reasonable to impose a duty of care? DUTY OF CARE DAMAGE BREACH OF DUTY OF CARE Plaintiff must prove that there exists a duty of care on the part of defendant That duty of care is not duly performed or breached; i.e. by the commission or omission of the defendant Damage occurred and suffered by the plaintiff due to the defendant’s breach of his duty of care Elements of Negligence How to measure the Standard of Duty? Omission & Commission Reasonable, not Fantastic Possibilities Reasonableness; not perfection! If the possibility of danger emerging is only a mere possibility which would never occur to the mind of the reasonable man, then there is no negligence in not having taken extraordinary precautions. People must guard against REASONABLE possibilities but they are not bound to guard against FANTASTIC possibilities. – Fardon v Harcourt-Rivington (1932) “Negligence is the OMISSION to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, OR DOING something which a prudent and reasonable man would not do” – Blyth v Birmingham Waterworks (1850) An objective standard taking no account of the D’s incompetence… he may do the best he can and still be found negligent. – Blyth v Birmingham Waterworks (1850) Idiosyncrasies are excluded! The degree of the care required on the particular facts depends on the accompanying circumstances, and may vary according to the amount of risk to be encountered – Glasgow v Muir (1943) Standard of Duty for Professionals? Professional Standard? Error of Judgment? A man or a woman who practices a profession is bound to exercise the care and skill of an ordinary competent practitioner in that profession – be it an accountant, a banker, a doctor, a solicitor or otherwise. – Swamy v. Matthews [1968] 1 MLJ 138 Merely to describe something as an error of judgment tells us nothing about negligence; it depends on the nature of the error. If it is an error that such a reasonable competent professional man, acting with ordinary care, might have made, then it is not negligent. – Dr Chin Yoon Hap v Ng Eu Khoon [1998] Which Professional Standard? There may be one or more perfectly proper standards; and if the medical man conforms with any one of those proper standards then he is not negligent – Bolam v Friern Barnet Hospital Management Committee (1957) • An ordinary or unqualified person who holds himself out as possessing certain skill – Which standard applies: ordinary or professional? • James Foong J. in Steven Phoa Cheng Loon v. Highland Properties [2000] 4 MLJ 200: • The law would judge him by the standards of a reasonably competent qualified person. DUTY OF CARE DAMAGE BREACH OF DUTY OF CARE Plaintiff must prove that there exists a duty of care on the part of defendant That duty of care is not duly performed or breached; i.e. by the commission or omission of the defendant Damage occurred and suffered by the plaintiff due to the defendant’s breach of his duty of care Elements of Negligence • Rinaldo v McGovern in the United States • In this case, the plaintiff, who was playing golf, hit a golf ball which struck the vehicle of the defendant. • The plaintiff was not found to be liable, and the court ruled that a player could be held liable for such an act only if they had “aimed so inaccurately as to unreasonably increase the risk of harm” (Anonymous, n.d.). • This judgement may show the difficulties Plaintiff will have in taking his case to court, unless he can prove that the football was kicked in a way that increased any risks to the spectators. • Woods v. Rogers in 1997 in the United Kingdom involved a golfer, the plaintiff, who was injured when he was hit by a ball shot by another golfer, the defendant. • The defendant claimed that he was unable to see the plaintiff due to the layout of the course. The plaintiff’s partner who was golfing with the plaintiff had waved him through, • The court agreed could be taken as a sign that both golfers would be able to protect themselves from being hit • VNFI = Consent. But occasionally courts give different meaning: • “Consent applies when the plaintiff does give consent; whereas VNFI applies when he does not consent but so conducts himself as to lead the D to believe that he does.” (Sir John Donaldson M.R. in Freeman v. Home Office (No. 2) [1984] • Consent can be implied from conduct or expressed in words • E.g. participating in a boxing match • Presenting one’s arm for injection • Smoking cigarettes! Requirements to Prove VNFI • Generally the D will have to prove two things: 1. That P knows about the Risk; AND 2. That P consents to such Risk • “if the defendants desire to succeed on the ground that the maxim VNFI is applicable, they must obtain a finding of fact that the claimant freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.” From Case of: Letang v. Ottawa Electric Rly Co [1926] Consent in Sport? • Can VNFI apply against those who are injured in a sport event?