Victoria is renowned for its love of sport. Massive crowds attend professional competitions each week and further large numbers are involved in local sport, either as spectators or participants. In the majority of cases this is an exciting and enjoyable experience, but occasionally someone is injured and the whole experience turns sour.

In Victoria, the rights of people who are injured at such sporting events are generally protected under public liability law.  Most sporting clubs and facilities hold public liability insurance to fund the costs associated with a public liability claim.  However there is no guarantee that all claims will be accepted and compensated.

‘Adventure’ type sports are considered to involve known inherent risks and there is an expectation that the public is aware that unforseen accidents may occur. That’s not to say that claims cannot be made, but it can be difficult to show that the activity provider was at fault (or negligent) rather than the injury having occurred by way of simply an unpreventable and unfortunate accident.

The High Court of Australia determined in 2002 that no liability existed where there is an obvious inherent risk such as an eye injury from playing indoor cricket¹. More recently in 2015, a NSW court² found that horse riding was a risky activity and it requires something more than just falling off the horse to make the horse riding company liable for any injuries sustained.

Australian Adventure Activity Standards (AAS standards) provide guidelines to minimise the risks associated with adventure based sports, but these guidelines are not mandatory and they are not the law. They are, however, a good starting point to determine whether the sporting provider was taking reasonable steps to maintain a quality operation and minimise the risk of accidents and injuries.

AAS standards are in place for the following sporting activities:

abseiling · artificial climbing structures · bushwalking · canoeing and kayaking · challenge ropes courses · snow · four wheel driving · horse trail riding · mountain biking · recreational angling · recreational caving · river rafting · rock climbing · snorkelling, SCUBA diving and wildlife swims · surfing lessons, and · trail bike touring

Another point of interest is where an “intentional tort” has occurred. This is where someone acts in such a way to deliberately harm or restrain another person against their will.  There are three categories:

• Battery: the deliberate infliction of physical interference on another;
• Assault: conduct that creates an understandable fear that battery is imminent; and
• False imprisonment: the intentional confinement of person without legal authority.

Sports players do not consent to contact outside of play or outside the rules of the game.  This means that potentially in cases of serious misconduct and resulting injury they may have legal options under this cause of action.

If a worker is asked by an employer to participate as a contestant in a sporting or athletic activity, they may be covered under WorkCover insurance. This also includes training or doing preparation for the contest; travelling between home and the competition; or while in attendance at the competition.

What to do if you are injured

• Initially the most important thing to do (if you are capable depending on the severity of the injury) is to record all the details of the accident. This refers to the time, date, address/location, why you were there, how the accident happened, who saw the incident etc.
• If possible take photos of the area, any hazards and your injury
• Report the incident to the premises/management where the incident occurred. This may entail completing an incident/injury form (request a copy of this form for your records)
• Keep the receipts/invoices for any expenses that you have incurred as a result of your injury
• If you require medical investigations or treatment, request a copy of any such reports. If this cannot be obtained, record details of who provided your care
• Keep any letters or documents that you may receive from the premises/management or any insurance providers
• If your injury is minor you may be able to claim reimbursement directly from the liable party; but if you have suffered more significant loss then you should seek legal advice from a lawyer specialised in this type of law.

Negligence

When you call our free Adviceline, or meet with one of our lawyers, the above information will be used to determine your potential rights and entitlements under the law of negligence. Negligence is when an action, or inaction of a person results in injury of another.

The three essential elements required to be met in determining if an injury resulted from negligence:

1. Were you owed a duty of care?
2. Did the other party breach this duty of care? and
3. Have you suffered harm or losses as a result of their lack of care?

Damages

If all three elements are met then you may be entitled to compensation. If you have suffered a significant or serious injury then you may be able to sue for the following:

• Medical treatment and hospitalisation
• Loss of wages and superannuation
• Damages for pain and suffering – physical and psychological
• Costs associated with domestic assistance
• Costs associated with home modifications

You may also be eligible for a superannuation lump sum or compensation through your own insurance policies.

Time limits

Please be aware that strict time limits apply for injuries in Victoria and generally claims need to lodged at court within 3 years from your date of injury. There are some limited exceptions to this rule, but its best to seek legal advice promptly once your condition has settled.

Get advice

Redlich's Work Injury Lawyers act on a ‘No Win, No Fee’ basis – meaning that if we proceed with a claim you will only have to pay legal costs if you receive compensation.  To book your free appointment, call our Adviceline on (03) 9321 9988.  When you call you will speak directly with a lawyer, not a secretary or a call centre.

¹ Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
² Mc Dermott v Woods [2015]NSWDC 27