Negligence in Sports – Chidera Nwokeke

Sports is an essential part of our life.  It provides for increased fitness and relaxation from hectic lives.  It enhances social interactions and development of relationships.  However, participation in sports involves elements of risk of injury and where there is negligence, there is scope in the sporting arena for those harmed to take legal actions. A perusal of the above named topic, will determine the following

1. What is Negligence?
2. What are the Elements of Negligence in Sports?`
3. Defences to Negligence in Sports

What is Negligence?

The court in plethora of cases particularly in the case of ADESINA V PEOPLE OF LAGOS STATE (2019) LPELR-SC. 622/2014 defined Negligence as any conduct that falls below the legal standard established to protect others against unreasonable risk of harm.

The law of negligence applies even to those engaging in risky games.  There are basic standards that should be expected in any official sporting events;  safety checks and maintenance of equipment, a referee to ensure that rules are followed in Sports involving physical contact and first aid should be at hand for the event relative to the kind of injuries that could potentially happen in sports.

However, there are instances where an action for negligence can be maintained in sports.

1. Negligent Coaching: If a coach fails to recognize a player’s inability to compete at a particular level or an inherent danger in playing, he can potentially be held liable for any injury that arise.
2. Product Liability: Defectively designed, manufactured or marketed sports equipment and kits that causes injury may give rise to a legal claim.

3. Recklessness: A player that recklessly injures another player may be held liable for the injuries that result.

In the case of ALUMINUM MANUFACTURING COMPANY OF NIGERIA LTD V VOLKSWAGEN OF NIGERIA LTD (2010) LPELR-CA-L/414/2003 – the onus of proving negligence is on the plaintiff who alleges it.  Where plaintiff pleads and relies on negligence by conduct or action of the defendant, he must prove by evidence the conduct or action and the circumstances of its occurrence giving rise to the breach of the duty of care.  Once plaintiff has discharged the onus, the burden shifts to the defendant to adduce evidence in challenge.

What are the Elements of Negligence in Sports?

To succeed in an action of negligence in sports,  the victim must be able to prove the followings:

1. That he was owed a duty of care
2. That that duty of care was breached
3. The damage suffered was caused by that breach.

These elements as mentioned above received judicial blessing in the case of SPDC NIG LTD V NWAGBARA (2018) LPELR-CA/OW/208/2014, TOM TOTAL NIG LTD V SKYPE BANK (2017) LPELR-CA/L/456/2007.

DUTY OF CARE: Duty of care means taking reasonable care to avoid acts/omissions which one can reasonably forsee would likely to injure his neighbour–OILSERV LTD V L. A. IBEANU & COMPANY LTD & ANOR (2007) LPELR-CA/PH/294/2006. Finding that a duty of care exists is the first step in maintaining an action for negligence. In an action for negligence, the plaintiff must plead the duty of care owed him by the defendant as well as facts upon which the duty is founded and this was the position of the court in the case of W NIG LTD V MANSEL MOTORS LTD & ANOR (2017) LPELR-CA/J/240/2016.

 In the case of I. M. N. L V NWACHUKWU (2004) LPELR-SC/32/2000, the court held,  to establish a duty of care;  Harm must be a reasonably foreseeable results of the defendants conduct (foreseeable but highly improbable for a reasonable person to anticipate the harm to the plaintiff and to take any action to avoid it.  There must be a relationship of proximity between the defendant and the plaintiff and it must be fair,  Just and reasonable to impose liability.  The risk involved and likelihood of injury.

Some recognized duty of care in Sports – A sports supervisor has a duty of care to participants and spectators.  The participants owe one another a duty to prevent foreseeable risk of injury–FRASER V JOHNSON (1990) AUST TORT REPORTS 80-248. Referees and other match officials also owe a duty to participants to ensure the rules of the game are enforced and to penalize those infringing THEM–WOLVES V EVANS [2003] ALL ER (D) 134. On the duty owed between participants,  BARWICK CJ in the case of ROOTES V SHELTON (1967)116 CLR 383 said that “the rules of the sport are neither definitive of the existence nor the extent of the duty nor does their breach or no observance necessarily constitute a breach a breach of that duty.  Duties and their breaches depends on the circumstances of the individual case.

In ANYAH V IMO CONCORDE HOTELS LTD (2002) LPELR-SC/175/1995 , if no duty of care is owed,  then it is immaterial that the defendant suffered damage by reason of the plaintiff’s negligence.

BREACH OF DUTY: This is the next important aspect to see if there exist a duty of care. The defendant breached the duty of care that he owed to the plaintiff.  In JULIUS BERGER NIG LTD & ANOR V EDE (2002) LPELR-CA/ L/3/95 – any breach of duty of care whether grave or venial, which causes a loss constitutes negligence.  The plaintiff must show that the defendant owes him a duty of care and that he has suffered damages in consequences of the breach of that duty of care towards him. The standard of care required or expected of a defendant is reasonable care. Reasonable care is determined by objective standards, having regard to the particular circumstance of the case. The inexperience or professionalism of the participants is therefore a factor to take into account. A higher standard of care may be due from a professional sports ground occupier and higher league Association.

 In the case of 7UP BOTTLING COMPANY PLC V EMMANUEL (2013) LPELR-CA/I/74/2009 — in case of negligence, the plaintiff must be able to link the breach of duty of care which occasioned the injury to the defendant.  So failure of a participant or player to link the defendant to the breach of duty of care to the defendant will be fatal.

DAMAGES FOR INJURIES: This is the third element the plaintiff has to prove, that he has suffered damage which in most cases cases will be physical injury arising from the sporting activities. The plaintiff must show that the defendant’s negligence caused,  or materially contributed to the plaintiff’s injury.  One method use is the “but for” test,  namely;  would the plaintiff loss have occurred “but for” the defendant negligence? If the loss would have occurred even if the defendant had not been negligent, the defendant is not liable.

In IGHOSEWE V DELTA STEEL COMPANY LTD (2007) LPELR-CA/B/79/2003 –– Once a plaintiff has successfully shown that he suffered personal injury as a result of the breach of duty of care owed to him by the defendant,  the court will proceed to access the damages claimed on available fact.  Where the defendant’s negligence has caused the plaintiff’s injury,  the plaintiff is only entitled to claim where the damage caused by the defendant was reasonably foreseeable.

DEFENCES FOR NEGLIGENCE

Certain defences are available to a defendant to claim in negligence.

1. CONTRIBUTORY NEGLIGENCE: In NIGERIA DYNAMIC ENGINEERING CONSTRUCTION LTD V DASSO & ORS (2017) LPELR-CA/J/164M/2005 — The term Contributory Negligence means that the party charged is primarily liable, but that the party charging him has contributed by his own negligence to what had eventually happened. This partial defence allows the court to apportion damages by reducing the damages by however much the plaintiff is deemed t have contributed to his own injury. The burden of proving contributory negligence vests on the defendant. But this may be inferred from the plaintiff’s own evidence or on a balance of probabilities from the facts – TASALLA V BA’ARE & ANOR (2018) LPELR-CA/S/115/2015.

2. VOLUNTARY ASSUMPTION OF RISK (SCIENTI NON FIT INJURIA): This may be equated to consenting to the risk of injury. If the court finds that voluntary assumption of risk applies, the plaintiff loses the case.  In effect, this defence provides that the plaintiff has waived his rights to complain of the damage suffered and as a result the defendant owes no duty of care to the plaintiff.  In the case of  ROOTES V SHELTON — If the act causing the injury is within the rules of the game,  then the defendant is not liable for any loss suffered as a result.  The rules of the game or event may be an important factor in deciding whether the plaintiff has consented to the risk of injury.

Chidera Nwokeke is a 500 Level Law Student of Ebonyi State University