Last updated 25 October 2021
Occupier’s liability to people on the premises
An occupier is a person or company in actual possession of a place or area. This could be an owner, landlord, a tenant, a licensee or any other person who has some legal authority to control how land is used and who is able to come onto the land. It does not have to be the person who owns the land. It is the person who has control over the land who owes a duty of care to participants, spectators and visitors who have lawfully, or even unlawfully, entered onto the land and suffered an injury. In each case this is a question of fact. Thus, if a local council exclusively leases a ground to a tenant sporting club and gives it money for ground maintenance, the club is the occupier for the term of the lease.
As a consequence, sporting organisations that have control over land, especially where they can control who is able to enter onto the land, must ensure that any premises, and the playing and training surfaces are safe. The duty of care that arises from occupation as a result of the occupier’s control and management is a duty to take reasonable care to avoid foreseeable risk of injury to anyone who attends a sporting event, and the scope of that duty will be adjudged on a case-by-case basis.
It is not possible to say if people want to come onto the land (including trespassers) that they assume any and all risks associated with that. As noted above, the basis of the duty is control over the premises or land (i.e. the control the occupier has over the conduct of others, knowledge of the state of the premises or land and knowledge of who is coming on to the premises or land).
Sporting organisations must ensure that:
- land and buildings are properly maintained
- dangerous areas and equipment are secured
- play equipment is maintained and is as safe as possible
- playing fields are at the standard that will not cause or exacerbate injuries.
Clearly, an occupier is liable to a sporting participant if they do not take reasonable steps to ensure that the venue or area is safe for participants. This does not mean that the occupier is an insurer for the injured party. What it does mean is that the occupier takes all reasonable steps to reduce or eliminate real or significant risks of which they have, or ought to have, knowledge, and to make the venue or area as reasonably safe as possible (see Woods v Multi-Sports Holdings Pty Ltd (2002) 208 CLR 460). Failure to ensure participant safety can arise from inadequate sporting surfaces, negligent conduct of operations at the venue, lack of warnings or proper signage warning of risk and not adequately providing for the safety of participants. Not all playing surfaces need to be ‘first class’ – many social sporting competitions take place on surfaces well below what professionals would play on. It will be a question of fact in each case as to whether the occupier has acted reasonably in the circ*mstances. For example whether the costs of upgrading the surface and the social utility (benefit) that comes from community sporting facilities outweighs the risk of harm from their less-than-perfect state.
An event organiser is also under a duty of care to ensure that premises are reasonably safe for officials and spectators. The organiser needs to take into account the knowledge of the ordinary official or spectator. The court will consider whether reasonable diligence would have enabled the sporting organisation to have foreseen the accident that took place, and whether it should have taken steps to minimise the risk of injury to the official or spectator. To reduce the risk of liability (it is almost impossible to remove risk entirely), event organisers should have risk assessment strategies in place in conjunction with risk management programs for players, officials and spectators.
It should be noted that the normal duty of care is increased once children become involved, whether as participants or spectators (see Ohlstein bht Ohlstein & 3 Ors v E & T Lloyd trading as Otford Farm Trail Rides [2006] NSWCA 226).
See the chapter on Accidents and Injury for more information on the elements of the civil wrong of negligence.
Sporting organisation’s liability
Where a sporting body assumes the role of a rule maker in a sport where safety is important or where dangers abound, there is, arguably, a risk of a duty being owed by the organisation to each and every participant. The assumption of responsibility may be greater when the sporting body has extensive resources, such as full-time employees and administrators, insurance and sponsorship designed to attract viewers, and has extensive control of the sport’s rules and their implementation.
On the other hand, administrators of an organisation whose sole purpose is to enable the sport to be enjoyed and who are part-time amateurs, assume less of a duty (see Peter Joseph Haylen v New South Wales Rugby Union Limited [2002] NSWSC 114, and Agar v Hyde [2000] HCA 41). As stated earlier, it is a question that would depend on what the sporting body is able to control and who is foreseeably at risk of suffering harm.
The courts are entitled to look at the public utility of sport weighed against the consequence that placing onerous duties upon administrators might have for the sport. Where there is little difficulty in terms of people power or cost to minimise the effects of a known sporting danger, there should arguably be steps taken to minimise the danger.
Ensuring a governing body’s duties are satisfied is no easy task. Where the assumption of a duty is at the semi-professional or professional level, it at least involves the creation of specific rules, the authority and ability to enforce those rules through umpiring, the authority to sanction in the event of breach of the rules by a participant and the maintenance of an effective system whereby breaches of rules can be detected.
A sporting organisation may also find itself vicariously liable for the actions of a participant, coach or official, who causes injury to a third party. It is a form of strict liability, as the person held responsible for the acts or defaults of another may not have been personally at fault. The most common example is the relationship of employer and employee such as football club (employer) and football player (employee). If the player causes injury to a third party (e.g. an opposing player) in the course of their employment, the club as the employer may be vicariously liable.
For the club to be found liable, it has to first be established that the player was an employee, and then that they were acting in the course of their employment when they injured the third party. While a participant is authorised to play according to the rules, and it is expected that there will be infringements of the rules during the course of play, infringements will only be tolerated up to a certain point. Thus, using illegitimate means, especially deliberately, to cause serious injury will not be tolerated (see Canterbury Bankstown Rugby League Football Club Ltd v Rogers; Rogers v Bugden (1993) Aust Torts Reports ¶81–426 and McCracken v Melbourne Storm Rugby League Football Club and 2 Ors [2005] NSWSC 107). If the act of the employee occurred in a way unrelated to their sporting role (e.g. an assault at a nightclub), this would likely not come under the employer’s vicarious liability. However, a punch thrown after a scrum in a melee might result in liability for the employer if it can be shown that the melee and the punch were part of the game and thus part of the employee’s employment.
Athlete’s liability
An athlete owes a duty of care to other athletes and spectators. However, it may be that the standard of care that a player owes to another player is regulated by the legal relationship between the players. While this section focusses on the tort of negligence, it is also possible that liability for physical injuries might also arise under the tort of battery.
The courts have recognised that a participant is expected to do their best to win and have consistently stated that the duty of care owed by a participant must be regulated by what is reasonable in the circ*mstances. The rules of the sport are a good starting point for determining what is acceptable conduct, and what is not. It must be stressed, however, that the rules of any sport or game are not going to exhaustively determine the level or existence of a legal duty owed by one player to another. The sport’s rules may be relevant to defences based on consent and acceptance of risk.
What the law seeks to avoid is injuries caused to players by reckless or dangerous play well outside the rules (McCracken v Melbourne Storm Rugby League Football Club & 2 Ors [2005] NSWSC 107). If the defendant has simply made an error of judgment in the heat of playing a fast-paced sport, generally the plaintiff is likely to fail in a negligence action (Ollier v Magnetic Island Country Club Inc & Anor [2004] QCA 316).
In situations involving participants and spectators, it will have to be shown that the participant failed to exercise such care as was reasonable in all the circ*mstances (i.e. that they blatantly disregarded the spectator’s safety). Again, it must be necessary to consider the context in which the player is acting and the nature of the sport. For instance, kicking a football into a crowded stand is likely to be reasonable, as there are often legitimate reasons why a player would do this in a game, and the player would not be expected to consider whether their kick is likely to hit a particular person. This might be contrasted with a tennis player smashing a ball blindly into the crowd after a frustrating umpiring decision, where it could be argued that the player should have considered the risk of harm to others.
The liability of umpires, officials and coaches
Umpires and referees owe participants in a match a duty of care by sensibly applying the rules of the game.
The factual context within which particular events take place will shape the duty of care. The level of care required is that which is appropriate in all the circ*mstances, and the threshold for liability is generally high because the officials only have limited prospective control over what occurs in the game. An umpire or referee is unlikely to be held liable for errors of judgment, oversights or lapses in applying the playing rules. However, liability may arise where the umpire or referee fails to ensure the safety of players by negligently allowing breaches of the rules that endanger the safety of the players and ultimately lead to the injury of a player. It follows, that an organising body that engages umpires or referees may also be vicariously liable as well as independently liable in negligence, if it can be established by the plaintiff that they suffered the injury because the umpire or referee had not undergone sufficient or proper training.
Officials and coaches owe a duty of care to participants. For example, it is often the responsibility of an official (or the relevant council if they have responsibility for the field of play) to determine the playability of the field, including for training purposes. If they fail to ensure that the ground is in a safe condition to train or play on, the official may be in breach of their duty of care towards the plaintiff (see Wagga Wagga City Council v Mark Sutton [2000] NSWCA 34). And it is certainly the responsibility of officials to set safe standards of competition. A coach must ensure that their training methods are safe and appropriate to the skill level of the athlete. While a coach’s role is to ‘push’ their athletes, this must not be done carelessly by expecting the athlete to perform at a level that is too advanced.
Importantly, sporting organisations, coaches and officials should ensure that adequate first aid and emergency services are available to respond to any injury. The more dangerous the sport, the more comprehensive the service should be, particularly if there is little difficulty in terms of people power or cost to minimise the effects of a known sporting danger.
Liability towards children
Many parents coach or umpire junior sports. Obviously, as parents or carers of children, those people have a special responsibility to ensure children are not unnecessarily hurt. Where children are concerned, it is also necessary to recognise that those responsible for coaching or umpiring/refereeing children may owe a higher standard of care than they would to adults, because a child is less able to appreciate the risks involved.
Supervision of activities is a critical element of the duty, especially in dangerous situations such as swimming training, trampolining, boxing and wrestling. The coach should have knowledge of anatomy and the injuries common to the particular sport, and risks of playing or training when it is hot (for more information see Sports Medicine Australia’s resources on hot weather).
Coaches should be appropriately qualified or at least have a basic knowledge of the skills of coaching (Sport Australia offers free online basic coaching and officiating courses) and provide adequate preparation.
Children must not be allowed to participate in competitive sport until the coach believes that the child has a good understanding of the rules, is physically capable of playing and is physically prepared on the playing day. This also includes providing appropriate instruction, especially in terms of how to avoid unnecessary injury. This instruction must be prioritised ahead of instruction on how to win.
Coaches and umpires must explain to the child and the parents the danger of any sport and, more particularly, the danger of any particular element of the sport. Further, dangerous play by children must be warned against and sanctioned.
Coaches, other officials and sporting organisations may be liable for poorly maintained equipment or grounds that cause injuries to children. Examples may include protective clothing and equipment for hockey and cricket, suitable padding for gymnastics, suitable padding around goalposts in football and ensuring the wearing of mouth guards, eye protection and helmets where necessary.
Liability may even extend to injuries caused by other people if it was reasonably foreseeable that the injury might occur. An example of this is where a coach asks a child to fit goalpost pads, but that child fails to do it or fails to do it properly and another child is injured.
