The legal tests for liability in the sports world have evolved.
The new, less-predictable standards may mean increased risks for
the associations which govern. So what has changed, and what can
organizations do to protect themselves?
From ‘volenti’ to the ‘reasonable
player’—two ends of the liability spectrum
Liability for injuries suffered in sports used to be judged by a
different standard than injuries caused by, say, a car accident.
The idea was that many sports, especially contact sports, carried
with them an implied assumption of risk. The determination of
whether defendants were liable included a discussion of
‘Volenti non fit injuria’—‘to a willing
person, injury is not done.’
In short, while competitors may not follow the rules, they do
have to stay within the ‘code’ of the sport. For
instance, collisions, and indeed fighting, happen in hockey.
That’s generally an assumed risk. But vicious stick-swinging
with intent to cause serious harm is over the line. It isn’t
deemed to be part of the sport, isn’t expected, and may
Recently, however, some courts in other provinces, and even in
Ontario, have applied a general negligence standard that now blurs
the line between liability in sport and in other ordinary
endeavours. Proof of intent or recklessness is no longer as
important. Instead, courts are starting to ask more nuanced
questions about liability. For each individual case, they seek to
determine, ‘What would a reasonable competitor have
done?’ – a much less predictable test and potentially
more plaintiff-friendly than the traditional standard.
What does this mean for sports organizations?
That unpredictability makes it harder for associations to
identify and manage their liability risk. But the best
organizations effectively reduce their exposure by improving their
performance in five key areas:
Implement a strong waiver process. Make the waiver as simple
and clear as possible. Make sure everyone reads it. Explain what it
means. And make sure everyone signs.
Continue to improve education, for players and sports
officials, around injury risks and the legal issues associated with
Continue to modify rules to reduce risk of harm and encourage
reasonable player behavior.
Continue to refine referee training and coaching certification
in support of those rules.
Optimize medical training and injury protocols to increase
The last word
Voluntary assumption of risk is still part of the analysis when
determining liability, but the courts are moving towards a less
predictable, ‘reasonable competitor’ standard. To
reduce their exposure, associations need to see that potential
risks are clearly understood by all and should continue to improve
the rules and processes that might reduce those risks.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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