That which cannot be cured by dreams: can consent to injury still exclude liability for sports injuries?

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Sport has been an aspect of human society since the earliest times and sports injuries have probably also been part of human existence from the outset. The contests in ancient sports often led to serious injury or death and athletes were viewed as expendable resources that could be sacrificed in the quest for glory. It would seem that this notion of expendable athletes has remained with us throughout the ages.

The old Roman principle of volenti non fit injuria endured through the Middle Ages and today we know it as consent to injury or assumption of the risk of injury. Athletes believe in “no pain, no gain” and regard pain as a necessary by-product of sport. Sports managers rely on the self-motivation of players to push themselves beyond the bounds of normal human endeavour in pursuit of success. Athletes who push on and continue to compete despite excruciating pain are hailed as heroes who put their team or country above their own interests.

In addition, sport and state authorities seem to accept that injuries and deaths are inevitable in sport. Almost every sport can erect its own “war memorial” for fallen athletes who have met their fate while training for or participating in sport. The number of serious injuries are even higher and there are innumerable short-term injuries that result in athletes’ sitting out on training sessions. Even in cases where team managers or team crews have pushed athletes to the point of death or compelled racing drivers to compete in unsafe cars, authorities have not taken action against such managers or crews. It would seem that sports federations and clubs can do no wrong. The general message to athletes everywhere seems to be: if you play and get hurt, that is your problem.

However, an analysis of the principles shows that the position in respect of liability for sports injuries is not quite as simple as it may appear at first glance. Initially, the courts appeared to be mostly reluctant to hold sports federations, clubs or players liable for sports injuries because of the doctrine of consent to injury or assumption of the risk of injury. It would appear that courts generally submit to the rules of the sport concerned. The reason for this could be that organised sport is played on the basis of a contractual relationship between the sports federation, sports league, sports club, event organiser and players. The terms of this contractual relationship are found, inter alia, in the rules of the sport and players agree to play according to these rules. In this regard it is worth mentioning that, in the law of contract, there is a presumption that the parties intended to conclude a legally valid contract. In the context of sport, this means that there is a presumption that the rules of the sport are also lawful. Courts will therefore assume that the rules of the sport are lawful, unless the contrary is proven.

The position might be different where friends or family engage in social sports for recreation or entertainment. Social engagements generally do not give rise to binding contracts. Social participation in sport is therefore not based on contract and participants generally also do not observe the rules strictly.

The defence of consent to injury or the risk of injury is problematic in the context of sport. Many claims based on sports injuries have failed because apparently conduct which would otherwise be unlawful, can be excused on the grounds that the participants in the sport concerned consented to the risks inherent in that sport. But participation in sport does not in itself provide an all-embracing defence against all claims based on sports injuries.

Firstly, consent to injury is a unilateral juristic act which limits the rights of the party granting consent. Consent to injury therefore binds only the player and does not extend to any third parties. Apart from the injured player, a sports injury can cause harm to other interested parties, such as dependants, the player's club and support staff employed by the player. These third parties could still have valid claims against the wrongdoer if they should suffer loss when an athlete gets injured.

Secondly, consent to injury is problematic when children participate in sport. The golden rule when children are involved is that one must always determine what is in the best interest of the child. It is not certain that participation in sport and the corresponding consent to injury is necessarily always in the best interest of the child concerned. Accordingly, a court may refuse to exclude liability on this ground when children are involved.

Thirdly, professional players are compelled by their employment to run the risk of sports injuries and therefore it cannot be said that consent is granted freely.

Fourthly, it is not clear that parties who participate in merely social sports, as well as beginners, necessarily appreciate the extent to which they run the risk of injury. It also seems that professional players find this aspect of consent to be problematic and it puts further doubt on the validity of any consent which may indeed be granted. Consent must also be lawful. Despite indications that the courts might even in some instances condone wilful violations of the rules if these should lead to injuries, there are several policy factors which require that consent can be a valid defence only if the offender played by the rules. One of these factors is a simple matter of occupational health and safety. Another is the high rate of injury in sport. Statistics show that the risk of injury to professional players is up to 5 000 times higher than the risks to workers in the mining industry. Sports federations should do more to promote the safety of players so that they can avoid claims by retired or current players. Some sports federations, such as Athletics South Africa and the National Football League in the USA, have already felt the brunt of such claims. It is time that all sporting codes got their houses in order.

Keywords: assumption of risk; athletics; consent to injury; delict; football; Formula 1; liability; motor sport; soccer; sport; sports injury; tort

Lees die artikel in Afrikaans: Wat die drome nie genees nie: kan toestemming tot benadeling steeds aanspreeklikheid weens sportbeserings uitsluit?

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