OK, you may be more used to political correctness being inserted into this phrase but I would argue Health and Safety is a (relatively!) close second. I am sure you will all have heard grumblings from time to time about safety regulations making everything take longer or be more difficult than it used to.
Recently, health and safety considerations have been in the news across a wide variety of sports, as collisions become bigger, safety technology becomes better and our understanding of the implications increases. Just a few examples include:
- Jamie Cudmore, is suing his old club, Clermont Auvergne, for allowing him back on the pitch after suffering concussion.
- My colleague, Tim Lowles, wrote earlier in the week regarding the calamitous England rugby training camp resulting in more injuries than a series of Casualty.
- The inquest into the tragic death of Australian batsman Phillip Hughes after being struck by a ball while batting in a match has finished this week in Australia.
- The recent tragic death of Mike Towell following a bout in the ring.
- Another colleague, Phil Bonner, also wrote recently about the spotlight on mental health in sport, particularly following Tyson Fury’s admission of his struggles.
This list could go on. While some of the incidents that occur can be shocking and distressing, sometimes, a positive legacy of these kinds of stories is to help improve health awareness and safety conditions for future generations:
- Soon after Hughes’ death, safety pieces had been invented for cricket helmets in order to try to protect the area of the neck where Hughes was unfortunately struck and are now worn by large numbers of batters, including internationals.
- Concussion is one of the hottest topics for rugby chiefs at the moment and new methods are being tested for picking up head injuries sooner so that players can be tested quickly and kept off the field if concussed.
- Formula 1 continues to consider safety measures to protect the driver’s head from flying debris, with the halo concept looking to be the most viable option, although aspects of it are still open for debate with some of the drivers.
- The NHL continues to seek ways to reduce concussion issues, introducing a centralised spotting team to help identify players who may be suffering from concussion.
As an employment lawyer, the professional in me considers the news stories of players or sportspersons suing their clubs or governing bodies in a legal sense as well as sporting interest. Specific employment claims will be of little use, unless an injury is so bad that the individual is disabled and has been discriminated against. For example, a club could have made reasonable adjustments towards helping the player back towards playing, but did not and simply dismissed them. Awards in such claims are not capped and can take into account loss of future earnings.
However, other claims may be more sensible in an injury context from an individual’s point of view. Negligence claims are certainly as applicable in the employment world as anywhere else, particularly so when a duty of care is relatively clear. However, a possible defence for an employer to run is that the individual has willingly accepted the risk of injury by taking part (“volenti non fit injuria” for the scholars).
Personal injury claims themselves could arise, or possibly claims of breach of contract, for example where a sports professional can point to a contractual duty of care contained in their contract. Alternatively, going back to employment law for a moment, a breach of contract could also be claimed where the implied duty of trust and confidence between an employee and employer has been broken. A good reason to have sports contracts well drafted!
Of course, there is an inherent risk of injury in many sports, some more so than others. Many who play sport are well aware of this and accept the risk. In fact, there may be those taking part in certain more extreme sports that cite the risk as the basis of the thrill they experience.
However, no one, apart from possibly the most partisan team supporters in their darker moments, actively wants to see anyone injured. Therefore, the intention to improve health and safety aspects in sport must be welcomed where possible. Yes, participants and fans do not want to see their sports totally sanitised but that must not stop progress.
