Legal
December 08, 2016
Or an opportunity for significant improvements in safety?
Ian McGregor, Ph.D.
President, SportRisk
Is the writing on the wall for Sport Club programs as we know them? The issue that has the potential to severely impact higher risk Sport Clubs is concussions. It’s hard to ignore recent news reports about concussions – particularly in the NFL, and more recently in the NCAA (check out class action lawsuit report: http://ow.ly/qgQa306BuUu
In Canada, the Federal Government has announced significant funding to develop ‘national concussion management guidelines’: http://ow.ly/hI5x306Dq4t, with the injury-prevention charity Parachute (www.parachutecanada.org) tasked with ‘leading the development of harmonized concussion protocols through an advisory committee that includes doctors, teachers and coaches from across the country’.
In addition, with more and more concussions being reported, and the number of concussion-related lawsuits increasing dramatically, the Insurance industry has taken notice. A major insurer in the North American market has recently made a decision to exclude coverage of all traumatic brain injuries (this would include concussions) for all colleges, universities, educational institutions, municipalities and school districts. This new directive would be implemented on the policy renewal date. A wake up call indeed!
So it’s not a big stretch to realize that this issue is going to trickle down to Campus Recreation – sooner as opposed to later. Read more
March 10, 2015
10. Standard of Care in Recreation
Determining the standard of care is industry specific. So what does it look like in Recreation?
In keeping with the overall theme of this blog, ‘keep it simple’, I’ve distilled the issues down to the ‘5 Key Risk Areas’:
Supervision & Instruction
Training
Documentation
Facilities & Equipment
Emergency Response
In this blog we’ll explore ‘Supervision & Instruction’
As somewhat of a disclaimer – remember the title of the blog (Negligence Simplified)! Thus the focus here is on the KEY issues, and not all the issues!
Key Issues in Supervision & Instruction:
1. Quality of supervision
In short: Hire qualified supervisors/ instructors
2. Quantity of supervision
In short: Establish reasonable supervision ratios that are based on activity type, space size, activity risk level, age and number of participants.
3. Lesson plans and progressions
In short: If you are offering higher risk programs which involve instruction, instructors should follow lesson plans (or standard protocols) which document progressive instruction.
In the next blog, we’ll look at the Key Issues in Training.
To follow the blog from the start, go to www.sportrisk.com/blog/
February 16, 2015
9. Standard of Care
Determining the ‘Standard of Care’ in a court of law is the trickiest part of the whole proceedings.
Essentially, what the court is trying to do is draw a line representing the standard. Once the line is drawn, the court will then determine if the defendant’s behavior is above the line (hence no negligence), or below the line (hence negligence).
What is the standard of care in the Recreation setting – and how is it determined?
The courts will generally focus on 3 key issues:
- Case Law
- Published Standards
- Industry Practices
Case Law
Lawyers on both side will research similar court cases and (if it advantageous for their client), argue that the case is essentially identical to a previous case. If the judge agrees, then (s)he is required to follow the precedent set by the ruling. (Note that cases are generally too unique for this argument to gain traction).
Published Standards
The obvious place to start is to determine if there are published standards out there that relate to the situation in hand. For example, in a pool drowning situation, the court would review relevant standards governing pool operations.
The difficulty is that there are not a lot of published standards out there to refer to (the pool being one of the exceptions).
So the courts will generally have to rely on:
Industry Practices
What are the current industry practices? Hence for a Climbing Wall accident, what are the current practices for institutions operating climbing walls? The focus needs to be narrowed further. So for a post secondary institution operating a climbing wall with a student population of 20K, the courts will try to focus on post secondary institutions of the same size (and in the same state/province if possible). While other climbing wall operations may also be reviewed (e.g. privately operated walls), the key comparison will be between like industries. (A great example of this is supervision of pools: the supervision standard is totally different for hotel pools relative to almost any other pool situation).
The courts will obviously need to look at the operating practices at a number of similar industries in order to determine where the line needs to be drawn i.e. what the current ‘standard’ is.
In the next blog in this series, we’ll look at what the ‘Standard of Care’ looks like for professionals working in the Sport, Recreation and Leisure fields.
To follow the blog from the start – go to www.sportrisk.com/blog
February 10, 2015
8. Proximate Cause
The 4th and final step in determining if there has been negligence is to answer the question – was the defendant’s behaviour the proximate cause of the the plaintiff’s damage? In other words, did the defendant’s actions (or inactions) directly lead to the damage or injury?
In many situations this might appear to be obvious. For example, if someone drowns while a lifeguard is inattentive or absent, then the conclusion might be that the lifeguard’s behaviour directly led to the drowning i.e. there is proximate cause.
However, this may not be the whole story. Another way of looking at it is to ask the question: if the plaintiff had acted differently, would the outcome still have been the same? For example, if the plaintiff had been cautioned earlier for running on the pool deck, then the defendant’s lawyers might argue that the plaintiff slipped and fell into the pool as a result of running on the deck. Hence the argument would be that the lifeguard’s behaviour was not the direct cause of the damage, rather the result of the plaintiff’s own actions. We’ll revisit this possibility later under ‘contributory negligence’.
In the next blog, we’ll return to ‘Standard of Care’ since this is the key issue focused on by the courts. What is the standard, and how is it determined?
To follow the blog from the start – go to www.sportrisk.com/blog
January 14, 2015
7. Was there Damage?
The third step in establishing negligence is to determine if there was actual damage caused.
While serious or catastrophic damage to a person or property is usually easy to demonstrate, it may be more difficult to establish in some situations. For example if the damage is reported as severe and ongoing mental trauma, then this may be harder to prove in court.
The last step in the process to determine if there has been Negligence is to show ‘proximate cause’ – the topic of the next blog.
To follow the blog from the start, go to www.sportrisk.com/blog
November 17, 2014
6. Standard of Care
The next step in the 4-part test to determine if there’s been Negligence is to answer the question:
Did the Defendant breach the ‘Standard of Care’?
If the answer is ‘Yes’ – then there may be Negligence (still 2 more tests to go!)
If answer is ‘No’ then there is no Negligence (because the 4-part test requires 4 ‘yes’ responses for there to be negligence).
However, the tricky part is this: what is the standard?
The courts will spend a lot of time trying to determine the answer to this question!
Why? – because there are not a lot of written ‘standards’ out there.
This is such an important issue that it needs more time to explore – so we’ll return to this after looking at the last two tests: ‘Damage’ and ‘Proximate Cause’.
To follow the blog from the start – go to www.sportrisk.com/blog
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