In the past, it was difficult to imagine that the law is concerned with sports matters because the concept of sports was unrelated to the law. However nowadays, the law has a strong influence in the sport matters. The reason for that is because sport was inserted into the business world and considered as a commercial matter. The current commercialization of sport brought the law to regulate all sports processes as it regulates all business processes. Consequently, many cases have been taken to the courts in respect to sports issues and many precedents were set by judges to deal with sports cases.
No doubt that most sports activities bring risks of injuries and could result harm for sport parties.According to Gleeson CJ, "the only way to avoid all risks of injury is not to play at all". Any way, sports liability was one of the big issues regarding sport issues. Thus, this portfolio will focus on sports liability under the law of negligence and the so-called insurance crisis. It will analyze critically whether or not statutory response is consistent and whether the insurance crisis is a real beat-up or has been much exaggerated. Also, it will examine whether or not the above issue can deter participation in sport.
2-Main aspects of the law of negligence 2-1 The establishment of sport liability under the law of negligence. To begin with negligence is defined, as “a fault to meet the appropriate standards of care required by the law in particular circumstances to protect others from an unreasonable risk of injury or harm".Thus, the plaintiff (injured player or participant) does not require proving that the defendant was intended to injure him/her, but he/she is required only to prove the three following elements to be successful in his/her action. A- The defendant owed the duty of care for the plaintiff. In that case, such duty arises if the risk of harm to the plaintiff is reasonable foreseeable.
B- The defendant breached such duty of care. C- The plaintiff has suffered a loss or damage caused by the defendant’s breach of such duty of care. It can be noted that the law of negligence is preferable than other basis of law in regards to claim for compensation from the person who caused an injury.However, the plaintiff cannot prove the above elements before the level or stander of that care (the care that the defendant owed for the plaintiff) was established. Here, due to the objectiveness of that level or stander, the court will decide the suitable standards of care that should be in a relevant situation.
2-2 Parties in sports liability disputes Sport liability disputes whether, under the law of negligence or under other type of law may involve several parties. Players / participants, organizer, manager / coach, spectators and others are the examples of these divers. These various parties illustrate how the concept of liability is extensive and can include categories beyond the ordinary expectations.Rootes v SheltonThe participant’s liability is considered as one of the most popular cases in sport liability.
The High Court of Australia stated that players and competitors owed the duty of care for each other. Practically, in the case of Rootes v Shelton, the driver of the towing boat whom did the injured skier sued. The High Court stated that even though the sport of skiing is inherently a hazard, this status does not revoke participant’s duties from taking a reasonable care. Thus, it holds that the driver of the towing boat was negligent because he was not as a reasonable careful person at the time when he owed the duty of care for the injured skier. Further, it declared that each case should be decided based on its own circumstances.
Frazer v JohnstonFurthermore, the case of Frazer and Johnston, which was between jockeys in horse racing, is another example for sport liability under the law of negligence. In that case, the court made a test to check whether or not the defendant had behaved as a reasonable licensed jockey in a horse race. It was found out that the relevant defendant action was taken contrary to the reasonable action, which should have been taken. The court also found that this action was done against the rules of the horse racing.Thus, the court easily held that the defendant was negligent because he had owed the duty of care for other participants (fellow jockeys) and was failed to act reasonably regarding other jockeys. Obviously, the court asserted on the principle of the Rootes v Shelton case and concluded that participants owed a duty of care for each other.
In that case, the court held the previous precedent based on the test of how reasonable person would be careful in dealing with the same circumstances.Comments and critical analysis These two cases show that the duty of care is owed by participants, even if the sport considered as a risky sport, the participants still owe the duty of care of each other; in other words, the players should take a reasonable care when they play against each other or against the competitors. However, the court based on its own circumstances should test each case. Therefore, the success in establishing the case of negligence in sport liability is dependent on whether the defendant (the participant who caused the injury) has acted as a reasonable participant or not.
Significantly, what is reasonable in case does not necessarily be reasonable in other case; therefore, each case should be tested as a single case by just looking to its own circumstances. 3 - The main aspects in the insurance crisis.The insurance crisis.In general, the phenomenon of insurance crisis has quite old roots tracing five decades back. At that time, it used to affect the fields of third party and workers compensation insurance. This issue emerged again in 2000; however the collapse of the HIH Insurance Group in March 2001, was one of the significant reasons, which introduced such crisis again.
The reason for that collapse and crises was that those insurance companies reduced the prices of their insurance premiums for personal injury, but unfortunate they were not able to afford the results. This situation led other insurance firms, which survived by increasing their insurance premiums.However, the increase of the amount of premiums that charged professional sectors to cover their works has affected wide rang of people's life. Many sectors around the country have been affected by increased price of the insurance premium. Medical practitioners, local councils and community organizations are the most affected sectors. For instance, some recreational public facilities, such as, public swimming pools were halted by their local councils because they could not meet the expenses of new insurance premium.
Sport sector is also among those sectors that have been affected. The impact of the insurance crisis spread throughout Australia with different effects, from state to state. This issue made the Commonwealth government more concerned about its impact on the national economy
