DELICTUAL LIABILITY FOR SPORTS’ INJURIES AND FATALITIES

Published Date: June 15, 2022

Delictual claims ordinarily dominate our courts. This is evident from the annual statistics relating to legal claims against various organs of the State and departments of government. Not only do such claims get instituted against public entities, but there are also various claims of such nature against private institutions. What is seldom, however, is to encounter delictual liability claims relating to sports’ injuries and fatalities. Notwithstanding serious injuries that we see in most sports codes, the number of delictual court cases remain extremely minimal. There is a good reason for this, as it will become clear below. The risk of physical harm and death varies from sport to sport – depending on the nature of the sport. The risk of physical harm, for example, in non-contact sports such as tennis, golf, swimming, cricket, track and field, etc., differs significantly from contact sports such as wrestling, boxing, soccer, rugby, karate, etc. Therefore, although legal liability is generally minimal insofar as sports are concerned, the degree of risk differs amongst different sports. Although such court cases are rare, the reality is that there are injuries, and sometimes fatalities, in sports. It is, therefore, apposite to explicate, albeit briefly, the general legalities relating to sports’ injuries and fatalities. This piece will, consequently, consider the relevant legal principles; instances where such liability may arise and legal ramifications in such instances.

It is unsurprising that there are seldom court cases for sports’ injuries and fatalities. This is because of the laws that are in place for such occurrences. For some sports, there is legislation in place. For some, general common law principles apply. Further, there are legally binding regulations within different bodies of sporting codes. For example, in boxing, there is a Boxing Act 11 of 2001 (which should be considered in conjunction with the Boxing Regulations). Beyond the statutory regulations, there are various common law principles that find application. Naturally, these types of claims would be determined in accordance with the principles of law of delict. Thus, the 5 (FIVE) natural elements of delict will need to be proved, for one to succeed in such a claim. Herewith are the said elements:

  • Wrongful;
  • Conduct;
  • Fault;
  • Causation; and
  • Harm

These elements have elaborative legal principles and case law attached to them which, for purposes of this piece, do not need to be explained.

With sports, mainly contact sports and, more so boxing and wrestling, infliction of harm is the core part of sport. Thus, by their very nature, harm is foreseeable and regarded as a reasonable occurrence. The society generally accepts such infliction of harm between the participants. Thus, reasonableness plays a critical role in the determination of liability. In some instances, harm is extreme and possibly unforeseeable. This would not necessarily result in a delictual claim being successful. A close scrutiny of the incident and how the harm transpired will prove pivotal. If, for example, in a soccer match, a hard but generally acceptable tackle leads to a serious tibia fracture, any claim arising from that incident is unlikely to succeed. By their nature, many sports have inherent risks which the participants consent to.

Consent

The main impediment to potential claimants for sports injuries and fatalities is consent. Although sports’ people do not necessarily consent to injuries and death, they consent to the possibility/probability of such incidents occurring. The said consent has to meet the following legal prerequisites:

  • Consent must be given voluntarily and freely (without influence/duress);
  • Capacity to consent and make decisions; and
  • Full understanding and appreciation of the nature and extent of risk involved.

Once more, there are several legal principles and considerations in relation to consent which would be inapt to elaborate on for purposes of this piece.

As seldom as such court cases are, there are instances where such cases can succeed. For example, where the conduct of the wrongdoer is so remarkedly inconsistent with what would be generally expected in that particular sport; where the convictions of the society seriously reject and condemn such conduct; where consent was not legally granted or where it was withdrawn but the wrongdoer persisted; etc. In such cases, a delictual claim may succeed. Depending on the nature and extent of harm, the victim may sue for the following damages: past and future medical expenses; general damages; past and future loss of earnings; emotional trauma, etc. Where the victim passes on as a result, the dependants of the victim can sue for loss of support. The wrongdoer; team or club; the relevant governing body; the relevant association; etc. may be held legally responsible. A number of factors, including the contracts in place will determine who should bear the responsibility.

Court cases of such nature are seriously discouraged and unfavoured. This is applaudable as such cases has the effect of demotivating participation in the game and, the effect of taking so much out of the game. To ensure fairness and compliance with the laws of general application, different sporting codes have relevant governing bodies which ensure and promote compliance with the rules. Any participant who breaches such rules is dealt with in accordance with the penalties provided in those rules and regulations.

Mtho Maphumulo
Senior Associate | Litigation Attorney

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