Playing sport is an essential part of the Australian lifestyle, facilitated by our (mostly) great weather and our love of competition.
Injuries are part and parcel of our addiction to sport, whether playing or, in some unfortunate cases, watching it, but what’s the compensation situation when you’re hurt in the sporting arena?
Under the civil liability legislation passed around Australia after the insurance crisis of the early noughties, it requires negligence on the part of another person which results in your injury in order to be able to make a compensation claim for sporting injury. But there are also many defences to such a claim, including whether you may have contributed to your own injury, or whether the activity was inherently dangerous. Some of these are outlined below.
Situations which can lead to compensation claims
Injuries are most likely to occur, of course, when you’re playing sport. Some but certainly not all scenarios that may result in sporting injury include playing on an unsafe pitch or surface; using unsafe sporting equipment; unsafe play as a result of a referee/umpire failing to ensure the reasonable safety of the players; or deliberate, careless and reckless conduct by an opponent which causes injury.
Proof that your injury was caused by negligence in any of the above scenarios (or other similar situations) may provide you with grounds for compensation. Organisers of sporting events have a duty of care both to their participants and spectators to ensure their safety from foreseeable risks of injury. Yes, this means you may be able to claim for compensation even if you’re only attending a sporting event, should you be injured due to situations such as a crowded, slippery or litter-strewn walkway at the venue.
In short, to be able to commence a compensation claim for negligence you will need to be able to show:
- Another player or occupier/owner/operator of the sporting facility owed you a duty of care;
- that this duty of care was breached;
- that the breach caused your damage (injury); and
- that you’ve made your compensation application within the time period stipulated by the legislation.
Limits to a compensation claim
Under the Civil Liability Act 2003 (Qld), any civil action for compensation is restricted by a legal concept known as Volenti non fit injuria. Essentially this means that if the person who you claim was negligent, resulting in your injury, can show that you had knowledge, comprehension and appreciation of the risks inherent in that particular sporting activity, then you cannot hold them liable for your injury. Playing a sport like rugby union, for example, inherently brings more risk than playing tennis, for example.
It should be noted that under the terms of the legislation, ‘knowledge’ does not mean you have to be aware of the precise manner, nature or extent of the risk to be considered aware and thus consent to the risk when you play.
The concept of ‘obvious risk’ also applies to limit an injured party’s claim for compensation. If the person you accuse of negligence can show the sport you were engaged in carried an obvious risk (like rugby) – even if the probability of injury occurring from that risk is low – then they can potentially escape liability for your injury. It should be noted that illegal play by an opponent, such as attacking the head in a tackle, does not constitute ‘obvious risk’.
The Act also limits liability on the basis of a sporting pursuit constituting a ‘dangerous recreational activity’, that is, that the activity – such as base-jumping, for example – involved a significant risk of physical harm. It is often a contested point as to whether a sporting activity is a dangerous recreational activity, and this is where experienced legal advice can prove vital.
Finally, a claim to compensation may be limited if the person who breached a duty of care can show that you in any way contributed to your own injury, i.e. by reckless, careless or illegal conduct while playing. Damages can be reduced by up to 100% if the defendant can show this to be the case. Again, professional legal advice is essential to contesting contributory negligence.
Insurance and waiver forms
As anyone who plays sport in Australia will be familiar, most organised sporting clubs are now covered by insurance policies which cover players (or others involved in the activity, such as officials) injured in the course of participating.
This allows the injured party to make a claim against the insurance policy provider, depending on the terms of the policy. Some insurance policies, for instance, do not cover claimants for Medicare ‘gap’ payments and others do not provide income protection in the event that a player cannot work as a result of their injury. By contrast, both of these costs can potentially be included in a compensation claim.
Operators of activities which ask you to sign a waiver form before participating do not necessarily get out of their duty of care or potential liability should a negligence claim arise. But in certain circumstances, a court will give greater weight to a person’s ability to freely contract (by signing the waiver) and therefore, the capacity of an operator to effectively contract out of their duty of care. Whenever possible it’s advisable to get the terms of the waiver form checked by someone with knowledge of its implications.
Negligence claims in the event of a sporting injury can be difficult to prove, with a number of defences available to those who run the sports, particularly if the activity necessarily involves physical contact or an element of danger.
While insurance policies held by clubs, venues and operators of sporting activity have taken some of the uncertainty out of the question of “who’s responsible?” in the event of injury, there are still many examples where the injured party will feel they need to pursue a civil negligence claim for damages, particularly in the event of onerous rehab costs or missing periods of work due to the injury.
If you’ve been injured while playing or watching sport, consult experienced lawyers such as McNamara Law to have your situation assessed and your options explained. With offices in Ipswich, Gatton, Brisbane and Springfield, contact us today on 13 58 28.