Powered by
MOMENTUM
MEDIA
With summer sport in full flight across Australia, the first anniversary of the tragic death of a young cricketer has resurfaced important questions about player safety, the responsibilities of sporting clubs and the legal options available to families following a sporting fatality.
Sporting clubs have a responsibility to take reasonable steps to protect players from preventable injury, but determining where that responsibility begins and ends can be complex.
While some risks are an inherent part of playing sport, others may arise from inadequate supervision, unsafe facilities, unsuitable equipment, or failures in safety procedures.
Attwood Marshall Lawyers’ compensation law special counsel, Claire Gibbs, spoke to Lawyers Weekly to explain the legal responsibilities of sporting clubs, when an injury or fatal accident may amount to negligence, and what options are available to families seeking answers and accountability.
The reminder of player safety comes almost one year after the tragedy of 17-year-old Ben Austin, who was struck by a cricket ball when practising before a match, and later died as a result of the injuries sustained.
Duty of care and responsibilities
Gibbs highlighted that understanding the legal framework governing community athletics requires examining how Australian law balances risks with standard obligations for participant safety.
“Australian law draws a distinction between the inherent risks of playing sport, which are generally not actionable, and preventable safety hazards, which may give rise to legal liability,” Gibbs said.
“Sporting clubs will ordinarily owe participants a duty to take reasonable care for their safety, which may extend to playing surfaces and facilities, equipment, supervision, training practices, enforcement of safety rules and emergency procedures.
“Australian law recognises several principles relevant to sporting injuries, including inherent risk, obvious risk, voluntary assumption of risk and contributory negligence.”
Gibbs noted that sporting clubs must comprehend the difference between the risks of playing sport and preventable hazards that could expose clubs to legal liability, and thus create more difficulty.
“There is an important distinction between the risk of the game and the risk around the game,” Gibbs said.
“A footballer encounters tackles, collisions and falls; a cricketer faces a hard ball travelling at speed.”
“Those risks are closely connected with participation in the activity itself.
“Where the risk results from the condition of the playing surface, unsuitable equipment, inadequate supervision or the way the activity has been organised, that risk could be eliminated or reduced through reasonable precautions.”
Negligence and liability after sporting injuries and understanding insurance
Turning to the issue of legal liability, Gibbs explained that a sporting injury or death can amount to negligence where an organisation owed a duty of care.
“A sporting injury or death may amount to negligence where a person or organisation owed a duty of care, breached that duty by failing to take reasonable precautions, and the breach is shown to have caused the relevant harm under the law of the applicable jurisdiction,” Gibbs said.
“Sporting cases can be complex because responsibility may be distributed among several parties.
“A club may control training and supervision, a council or venue operator may control the ground or facilities, and a governing body may have responsibilities relating to rules or standards.”
Further, Gibbs noted the importance of understanding insurance benefits at sporting clubs and what you are entitled to, particularly as some organisations aren’t as clear with the policies surrounding injury cover.
“I would be reluctant to suggest that sporting clubs are deliberately hiding insurance information to save costs without evidence to support that allegation,” Gibbs said.
“Community sport is largely run by volunteers who give their time to keep local clubs operating, often while managing complex administrative, safety and insurance requirements.”
“Players and parents should be able to understand what protection is available, and what is not covered, before an injury occurs.”
Lessons from a tragedy and strengthening player safety
Pointing to the legal options available to families following a sporting fatality, Gibbs indicated that there are several legal avenues available, be it legal, statutory, or financial, with not all of them depending on negligence.
“If negligence caused or contributed to a fatal accident, an eligible person may have a dependency claim for specified financial loss or loss of services, and a cause of action may also survive for the benefit of the deceased’s estate,” Gibbs said.
“A person affected by the death may also have a separate claim for recognised psychiatric injury, sometimes called nervous shock or a secondary-victim claim. However, ordinary grief and distress will not, without more, establish such a claim.”
Referencing the inquest into the Ben Austin tragedy, Gibbs further explained that the coronial process operates separately from civil proceedings, with a coroner responsible for investigating the circumstances of a death and identifying potential safety improvements, rather than determining whether a family is entitled to compensation.
“The fundamental lesson is that a catastrophic outcome does not itself establish negligence, but the absence of legal fault does not mean there is nothing to learn from a death,” Gibbs said.
“Regarding the tragedy of Ben Austin, as presently reported, the coroner has indicated that Ben Austin’s death was a misadventure and that no individual or organisation contributed to it.
“Those involved were described as well-meaning young people using proper equipment correctly.”
