The Law - Preventing liability for negligence
This area of Australian law deals with people’s obligations to take reasonable care to prevent other people being harmed.
Duty of care
A person or an organisation will, in certain circumstances, owe a ‘duty of care’ to another person or organisation to take reasonable care to prevent them being harmed. Whether a duty of care exists will depend on the relationship between those concerned. In sport, those who may have a duty of care include people who assume a responsibility (for instance, by agreeing to coach an athlete or referee a game), or those who have relevant skills or expertise (for instance, a sports administrator).
Sporting organisations, administrators and facility managers usually have a duty of care to participants to take reasonable care to ensure that safe playing surfaces and equipment are provided. Participants have a duty to ensure that they take reasonable steps to prevent injury to other participants, officials or spectators in the course of play.
Doctors have a duty of care to their patients to take reasonable steps to provide them with proper information and health care.
In the case of Lynch v Lynch (1991), a child successfully sued her mother for prenatal injury, claiming that her mother’s actions were negligent. In this case, the claim concerned a car accident. The court said that the mother did owe a duty of care to the unborn child, and that this duty could be breached by prenatal neglect or carelessness that causes injury. This means that, legally, a pregnant woman may be personally responsible for the health of her unborn child.
Duty of care to pregnant athletes
Organisations and administrators
Sporting organisations may owe a duty of care to pregnant athletes to advise them that there are theoretical risks involved in participating while pregnant, and to advise them that they should obtain medical advice about whether to participate and for how long. Sports administrators can fulfil this duty of care by including a clear statement containing this advice in the registration form for their sport or competition, or similar documents, and by displaying a similar notice in a prominent place where competitors will see it.
Sporting organisations and their personnel should not provide advice to pregnant participants on the health risks of participating. Doing so could put both staff and organisations at risk of being found liable and sued for negligence. Providing such advice, or even issuing guidelines, could also mean that sporting organisations then become liable for the accuracy of the information and for ensuring that it’s properly disseminated.
Sports administrators’ duty of care to pregnant athletes does not require them to place a blanket ban on the athletes’ participation in a particular sport from a specific stage of pregnancy. Such a ban could be seen as discriminatory (see Preventing discrimination), and may also assume an additional responsibility, and therefore an additional potential liability.
Other participants
Other participants owe a pregnant athlete the same degree of duty of care as they would any other participant — they must take reasonable care not to cause harm to other participants. Participants will be liable for injuries that they cause by playing outside the rules of the game in a way that other players would not ordinarily and reasonably expect.
Duty of care to the unborn children
Pregnant athletes
Pregnant athletes owe a duty of care to their unborn children to take reasonable care to avoid foreseeable risks of injury. They can usually fulfil that duty by obtaining advice from appropriately qualified medical practitioners as to the risks involved in participating in a particular sport while pregnant, and following that advice.
Sports administrators
Sports administrators can fulfil their main duty of care to the unborn children of pregnant athletes by fulfilling the duty of care owed to the athletes themselves. As we have seen, they should advise the athletes that there are theoretical risks involved in participating while pregnant, and that they should obtain medical advice about whether to participate, and for how long.
Sports administrators may owe an extra duty of care where they are aware, or ought to be aware, that a pregnant sportswoman either has not obtained appropriate medical advice, or is ignoring it (see below for more information on what the options are in these situations).
Other participants
Other participants can also fulfil their duty of care to the unborn children of pregnant athletes as they fulfil their duty to the pregnant athletes themselves. Participants will be liable for injury if they play outside the rules of the game in a way that other players would not ordinarily and reasonably expect.
Managing the risk of liability in sporting organisations
It is impossible to eliminate all risk from our lives: many women choose to live with the substantial risks of driving a car, smoking and drinking while pregnant, but society does not ban pregnant women from these activities. Instead of imposing bans on pregnant participants, organisations might instead consider asking participants to sign a release or indemnity from claims for injury, which could be part of the registration form for the sport, facility or activity.
However, the obligation to take reasonable care to prevent participants being injured or harmed cannot be removed, and agreements of this sort cannot always protect the organisation or its administrators. Agreements that seek to absolve organisations from liability for injuries related to pregnancy alone may be discriminatory too, and could then attract other law suits. Organisations and their staff should warn pregnant players that there may be risks involved in continuing to participate, and advise them to obtain medical advice about their health and the health of their foetuses.
Bans
It has been suggested that one way organisations may contain their legal liability for injury is by banning the participation of pregnant women, because the cost of an anti-discrimination claim that might result may be less than the cost of a negligence claim made by a pregnant woman who continued to play and was injured. However, not only does this approach ignore the rights of the women concerned, it also assumes that a negligence claim will arise and succeed, and that insurance will not cover that event.
It is also possible that any resulting claim of discrimination would succeed if pregnant women were excluded on a discriminatory basis, so the organisation may find itself out of pocket, and with increasing insurance premiums, as a result (see Preventing discrimination). Other disadvantages of such bans include:
- Even women who would wish to inform their sporting organisations about a pregnancy may not be able to do so at an early stage, as many women do not know that they are pregnant until months after conception.
- They would be very difficult to enforce and monitor, as the sporting organisation would have no authority to obtain information about the health status of participants (unless particular legislation or a contractual agreement made this possible).
- They may encourage some women to lie or not disclose their pregnancy in order to continue to participate.
- They do not recognise that every woman, every pregnancy, every sport and every position/activity on the field is different and that a response that treats these as the same may infringe the rights of some of those affected.
- They do not recognise women’s right to take responsibility for their own bodies, health and wellbeing.
Pregnant professional sportswomen may be under contract to organisations as employees, and in this situation the organisations and their administrators owe those women an even greater duty of care than if they were not employed. Organisations employing pregnant sportswomen, and wishing to limit their participation, may also be limited by the laws of restraint of trade (which prevent parties from adversely affecting how others engage in their businesses). It would be difficult for a club that had, for instance, imposed a blanket ban on pregnant players, to show that this was reasonable to all parties (such as women who play sport for a living), as the law requires. Each case is different and organisations should ensure that they obtain professional legal advice in such situations.
A blanket ban may also contravene the Trade Practices Act 1974, if it results from an agreement between clubs in a professional league and prohibits a club from using the services of a particular person (in this case, this might be the pregnant participant) or a particular class of person (pregnant participants in general). If sporting organisations set limits on how long pregnant women may compete, they may also be assuming a responsibility, and perhaps a duty of care, that they did not have previously, and they may run the risk of applying it incorrectly. Sports administrators should also obtain legal advice on such matters through the referral service provided by ANZSLA — the sports law association.
Other management issues
Sports administrators may face additional problems in the rare circumstances where pregnant athletes are not acting in their own best interests. An administrator may become aware that a pregnant athlete is continuing to participate against medical advice, or has not obtained medical advice when a doctor would probably recommend against participating. Examples of this include an obviously pregnant athlete continuing to participate in kickboxing or rugby union.
As we have seen, the duty of care that a sporting administrator owes an unborn child of a participant is usually fulfilled when the administrator fulfils the duty of care owed to the athlete herself. However, if the administrator knows that the athlete is not heeding medical advice, or may not have obtained it, despite recommendations from the administrator’s organisation, the situation is different. In these extreme circumstances, the administrator may owe an additional duty to the unborn child to attempt to stop the pregnant athlete participating.
The obligations that may be imposed on a sporting administrator in such a case will depend on the individual circumstances of the case. If an administrator knows that, despite being advised to do so, an athlete has not sought medical advice about the risks of continued participation, and that that advice would probably be that she stop participating, the administrator should then communicate directly with the athlete, preferably in writing. The communication should clearly state that the athlete should obtain medical advice about the safety of continued participation in the sport for both herself and her unborn child. Such correspondence should be recorded and, if possible, endorsed by the athlete.
If the administrator believes that the player has still not obtained medical advice even after such a communication, it would then be prudent for the administrator to do what in ordinary circumstances he or she should never otherwise do — provide the athlete with material about the medical reasons for retiring from play. It would also be prudent for the administrator to try to counsel the athlete about retiring from play, for the sake of the athlete’s own health and that of her unborn child.
In the situation where a player continues to participate contrary to medical advice, it would also be prudent for the administrator to try to counsel the athlete about retiring from play.
If, in either of these cases, the player cannot be persuaded to stop participating, the responsible sporting organisation may then have to face an even more difficult question — should it ban the player from participating? Banning her participation would be in both her interests and the interests of her unborn child, but imposing such a ban could contravene the federal Sex Discrimination Act 1984 (SDA), or similar state or territory laws, and expose the organisation to prosecution under those laws.
In these circumstances, the sporting organisation could discuss the matter directly with the Human Rights and Equal Opportunity Commission (HREOC). The commission may grant the sporting organisation an exemption from the provisions of the SDA for up to five years (see page 25 for more information on the operation of the SDA). Even if the commission decides not to grant an exemption, it may still be able to assist with information and strategies in relation to pregnancy and discrimination issues.
Who can sue and who can be sued?
Sporting organisations in Australia can be incorporated or unincorporated bodies. Officers of an incorporated sporting organisation can be liable to the organisation itself if they fail to perform their duties adequately.
| If an officer of a sporting organisation failed to take reasonable care to ensure that a hockey surface was safe and a hockey player, whether pregnant or not, was hurt, that officer may be liable to the organisation for that failure, and so may be legally responsible for the injury. |
Officers in an unincorporated association are at even greater risk of being found liable because, unless the organisation is registered as an unincorporated association under relevant state laws, it is not a legal body at law. As a result, the association’s officers are legally responsible for its actions, even if they were not individually at fault.
While there have been no cases reported in Australia of pregnant athletes or their children suing for injuries caused during sporting activity, this does not mean that it will not happen at some time in the future. While the potential for injury is extremely small, it is not just limited to the mother and baby: other participants potentially have the right to sue, even spectators and sporting organisations. The law also says that people can claim compensation for psychological injuries, not just physical ones.
Those who can be liable for negligence include pregnant women themselves (as in the Lynch v Lynch case discussed above), sporting organisations and administrators, facility managers, officials and coaches. The degree to which sporting organisations exercise control over the participation of sportspeople can affect whether they would be considered by the law to have a duty of care for those people.
Many elite female athletes face immense pressures, both financially and professionally, to continue competing when pregnant. Those around them, including administrators and sporting organisations, may have a duty of care to ensure that those pressures do not adversely affect the health and wellbeing of mother and child. However, in exercising that duty of care, those involved must ensure that they do not ignore the rights of the pregnant woman to control her own life, or to make decisions on behalf of her child. This may mean that the administrators’ or organisations’ duty of care is limited to taking reasonable care to provide a safe sporting environment, advising pregnant women that there may be risks involved in participating, and advising them to obtain and act on medical advice.
Adult participants can be seen to have accepted the risks of their sport simply by continuing to play (which is called voluntary assumption of risk). They can also release sporting organisations from liability for injury by signing an agreement to that effect. However, an unborn child cannot consent to the risks of the game, and cannot sign a release. Mothers also may not give that release or consent on behalf of their unborn children.
Current legal precedent suggests that an unborn child is owed a duty of care by his or her mother, her treating doctor, and in some cases, by the mother’s employer (if she is employed in sport). Although children cannot sue until they are born, they can then sue retrospectively for injuries that occurred while in the womb. The law in this area must consider the rights of the child in conjunction with those of the mother to choose what to do with her own body while she’s pregnant. The pregnant woman must balance her right to do as she chooses against her duty to act in the best interests of herself and her child.
How do the courts assess liability and negligence?
A case under this area of law must show that:
- a duty of care existed;
- that there was a failure or breach of that duty of care;
- that this failure or breach of the duty of care caused the injury (called causation); and
- that the damage suffered was not so remote from the claimed cause that those owing the duty of care could not have reasonably foreseen the occurrence.
We have already discussed what is involved in a duty of care above. The law judges whether a duty of care has been breached by assessing what a ‘reasonable’ person might do in the circumstances of the case. There is more likely to be a duty of care if a contract is involved.
To show causation, a person making a claim has to prove that an action or omission by the person they are suing was the cause of the damage suffered. As little research has been done on foetal injury and miscarriage, it may be difficult to prove the connection between the injury and the cause in the case of an injury to a mother or unborn child in sport. Without that proof, there cannot be a successful negligence claim.
‘I’ve heard one leading obstetrician/gynaecologist say that, in terms of understanding miscarriage, what the medicos know at the moment is like a map of Australia and what they need is a street directory of every city and town. So there may well be problems in proving causation.’ Tim Frampton, O’Donnell Frampton Salzano Solicitors, and president of ANZSLA — the sports law association, at the National Forum on Pregnancy and Sport
The law says that the damage suffered by the person making the claim must not be so remote (for instance, in terms of time) from what is being claimed as the cause that it is difficult to make the connection between the two things. People are only expected by the law to foresee to a reasonable extent whether something that they do may later cause harm to others.
Defences against claims of negligence include voluntary assumption of risk, where the person making the claim is shown to have understood the risks involved yet continued to participate, so accepting the risks and absolving other parties of their duty of care and liability. However, injuries can result from risks that are not a regular part of the sport concerned, such as foul play, and it would be hard to show that a participant assumed such risks when playing.
Because of this voluntary assumption of risk, pregnant women who intend to remain active should be aware that they may be accepting the risks associated with that activity in the eyes of the law.
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This is an archive copy of a web document originally located at http://www.ausport.gov.au/asc/corpdocs/pregnancy.htm published by the Australian Sports Commission All copyright remains with the creator.
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