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Michael Schumacher’s unforeseen skiing injury undoubtedly came as a massive shock to all. However, head injuries are an increasing and unsettling trend in the world of sport and there are many legal issues surrounding them.
One major cause of head injuries in sport is the scrum. In rugby, the referee is probably the most important part of the game. Not only for making the correct decisions, but also in protecting the players. The two floodgate cases of Smoldon v Whitworth and Vowles v Evans and WRU demonstrate the duty of care owed to players by referees. In both cases, the referee was successfully sued for negligence for injuries to the players resulting from the scrum.
The debate centred around three issues: the clear inherent dangers of rugby; the duty of care owed to the players; and the competitive nature of the sport. Today, the scrum has been limited, curtailed and undertaken more cautiously as a result of this negligence ruling. As most law students will know, there exists the legal principle of ’Volenti non fit injuria’ (a voluntary assumption of the risks in sport). The problem - how far does this rule go to prevent a flood of negligence claims?
Given our prominent litigious nature, the results of the above cases have made, and will continue to to make, an impact on sport. For example, take a player who knows of this legal principle. He has no proficiency in scrummaging, but decides one day to “try it out”, knowing that he is “inexperienced”; and so, if he is injured, he may have a claim in negligence as was the case in Smoldon.
How far do we go to prevent these claims, while still offering protection to sports participants? Do we pressure governing bodies to play a more active part? Do we make new rules or even new laws?
There is no doubt that both athletes and officials need protecting. Governing bodies, along with Leagues and Federations, need to collaborate to play a more active role preventing the rise of sports injury cases. Decisive action is necessary, but only if it does not affect the competitive nature of sport. After all, it is undesirable for individuals to constantly second-guess their own actions on the sports field.
Sport should not be a burden to the courts. Its cathartic, open nature and free spirit should always prevail. Both clarity and certainty are needed, but not at the price of restricting, hindering or even changing a sport.
Of course, athletes’ health is an important consideration; however, we cannot continue to live in fear of the risks of litigation in sport. There is a very fine margin to achieving progression in this area. For now, we have to get the ball rolling and instill certainty in both participants and referees in order to safeguard the very nature of sport that we have all grown to know and love.
Daniel De Saulles is an LPC student at the University of Law, Birmingham