Accidents and the law
This article used to be available elsewhere on the internet but has now gone missing so is recreated here – full acknowledgements go to Kris Lines the original author:
Trampolining accidents – a legal perspective
This article is intended to follow on from Richard Ollerenshaw’s recent article – “Living in a Legal Age” I hope to put across a different viewpoint, by exploring some of the legal implications of trampolining. However, This article is not intended to be definitive, or representative of any Governing Body, or of any other viewpoint except my own.
This perspective is also based on UK law. America and other jurisdictions allow gymnasts to sign disclaimers to stop any legal action in the event of an injury / dispute. This and certain other actions are not allowed in the UK.
As a brief background, I currently research Sports Law and Negligence, in addition to coaching both Trampolining and Gymnastics.
What is Negligence?
As Richard rightly quoted, “Coaches as experts responsible for their sessions and the equipment, bear a legal responsibility to ensure the safety of participants and anyone else who might be affected by their actions.”
Negligence is a scary word. Mention it to an instructor, or club official and everybody usually clams up. Not surprising really, as the word itself implies that through the coach’s actions / omissions, they caused the accident. It also usually leads to compensation being paid and mountains of paperwork. The word is most commonly associated with big cases and people paralysed for life. No wonder so many people are afraid.
Contrary to popular belief, you can make a mistake, or an error of judgement and not be guilty. Negligence is when your action becomes dangerous, or irresponsible, or reckless. People and parents put their personal safety in an instructor’s hands and we should be held accountable. That said, there are a growing number of malicious, or trivial claims and to be protected against these, you have to understand how the law actually works.
Essentially there are several steps to proving a case in Negligence:
- Duty of Care
- Breach of that Duty
- Injury / Damage
- Causation – i.e. the Breach of the Duty led to the injury
Duty of Care
Coaches are responsible for the activity they are instructing. They have a legal duty to ensure that the sport is safe for all participants, helpers and bystanders.
Nothing contentious yet, most people would accept this quite happily. Trouble is, the concept of Duty is very wide and encompasses most actions. Why?
The courts have to consider who was in the best position to supervise or control the action / event, or to take responsibility to ensure it doesn’t happen. In the majority of cases, this will be the Head Coach.
It is right that they should have that duty. We don’t question whether a bus driver is liable to their passengers, or to other road-users, so why object to the liability of coaches? Some coaches argue that the job they do, is in the main voluntary and they shouldn’t have to risk all the aggravation of being sued. Unfortunately this is an indictment of our times. If the necessary safeguards and policies are in place within a Club, then any claim will fail very early on.
Breach of that Duty
A Duty of Care to the Plaintiff (the person suing) might have been established but, at the end of the day they still need to prove that there was a breach of that duty. Answering this is the million pound question. Phone a friend? Ask the audience?
Before determining whether there was a breach, the courts need to decide what the normal standard is. This is done by reference to the REASONABLE PERSON TEST. Essentially this can be summarised as: “would a reasonable coach have acted in that way?”
It doesn’t matter whether the coach was International level, or newly qualified, the test is still that of a reasonably skilled person.
On top of this, anybody owing a duty of care to children either by virtue of loco parentis, or in the course of everyday activities, will be held subject to a higher standard than normal.
Still, it all seems straightforward and logical, the difficulty arises when people try to define what is reasonable.
A coach might become scared that because a gymnast had an accident learning back drops and broke an arm, they will automatically get sued. Safe coaching practice is a vague, imprecise concept. I might teach my backdrops from a flatback progression, but a coach at a sports centre round the corner teaches her back drops from bent knees and “kicking a beach ball away”. Was I wrong not to teach it her way?
No. If you can show that what you taught was safe and reasonable, i.e. it followed a body of opinion from other respected coaches supporting your action, then it doesn’t matter if there are other conflicting methods to teach the move. If however, you started skipping too many important and necessary progressions, or if you told a gymnast to do something that was quite blatantly dangerous, then you would be at fault.
Another key word in establishing a breach, is FORSEEABILITY.
- Was it foreseeable that – in teaching Double Backs to a complete beginner that they might not be ready for the move and hurt themselves?
- Was it foreseeable that – by not checking the way a sports centre had set up the equipment, a participant might injure themselves on an incorrectly assembled trampoline?
- Was it foreseeable that – if the coach left the participants to their own devices and went out the room to have a cup of coffee and chat to a colleague, then the gymnasts might hurt themselves.
Again, the majority of people reading this article would agree that the risk of injury, in the above examples, was reasonably foreseeable.
Courts generally will only let the Plaintiff recover compensation if they actually suffered a physical injury.
That is not to say psychological or nervous trauma will never be compensated, rather that they are judged by more stringent criteria. It is not enough for a party to show they were inconvenienced, or had hurt feelings.
2 Did the Breach of Duty contribute to the Injury?
There are lots of technical legal words such as causation, or proximity, but essentially, if the injured party can prove, that your failure to teach the skill correctly, caused them to break their arm, they win the case.
Any wrongdoing by the plaintiff such as messing around, ignoring instructions etc will give rise to what is termed CONTRIBUTORY NEGLIGENCE in which any damages will be reduced.
One EXCEPTION to the general rule arises if an event was under the sole control of the defendant. It may not matter that a plaintiff cannot single out a specific breach of duty, the plaintiff can allege carelessness, simply because no other explanation of the event is possible except by virtue of the defendants Negligence.
At first glance this doesn’t seem right, or fair! Why should somebody be held liable in such a situation. It could have been any number of factors, just because they couldn’t prove it was the coaching, should they still win? The answer lies within the outcome. If the injured party was innocent of any wrongdoing, but they couldn’t prove the defendant was at fault either, then they would have no action and therefore no compensation. To rectify this, the defendants are held guilty because the event was in their sole control and because they are usually covered by an insurance policy, which will compensate the injured party.
So we now know the basics of Negligence law, how do you apply these principles to Trampolining.
Most of us have already taken the necessary steps:
- Warm the class up before starting the activity. If you don’t believe in, or want to do a full floor warm-up, there are enough exercises on a trampoline to prepare a gymnast – back bounces, turntables, orientation moves, shaped jumps…….
- Cool the class down at the finish of the activity with less vigorous activities.
- Keep a register of gymnasts attending each class
- Prove that the gymnasts completed the necessary progressions before trying difficult moves. You could keep a coaching log, give gymnasts training diaries, or record their progress through award schemes.
- The BTF Code of Conduct and the new policies from BG cover most contingencies – follow them. Make sure participants wear suitable sports clothing / take off jewellery, only trained people set up trampolines etc.
- If an assistant coach is teaching a move dangerously, you are still responsible for ensuring the gymnast is safe. Make sure assistants are properly supervised and that they coach at a suitable level.
- If you are coaching alone and your attention has to be focused on another area of the hall eg an injury/ complaint, stop the class bouncing on the trampolines,. You can’t effectively supervise them and deal with the other matters.
So, you supervised the class correctly, you taught every possible progression, the gymnast has been performing the move in question perfectly for months, and then she, quite unreasonably, forgets what she is doing, lands badly and hurts herself.
The sport is inherently dangerous – a slight risk of injury can lead to severe consequences. Accidents do happen. If you don’t want accidents ever to happen, the easiest alternative is to stop anybody from participating. Most gymnasts at some point in their careers will hurt themselves. They might twist an ankle, or strain a muscle, some break arms or legs. Not much of a consolation to parents, or the gymnast though! They might not even have known trampolining carried that risk.
In the US, a considerable number of clubs and organisations make their participants sign waivers for just this eventuality. In the UK, there is nothing to stop gymnasts signing the agreement and indeed everybody at some stage, has probably seen exclusion clauses: “the centre does not accept responsibility for any accident, and any participation is at your own risk” However, under the Unfair Contracts Act, the courts tend to just ignore or strike out such disclaimers and still hold the defendant liable.
Don’t write disclaimers, write participation agreements. Put the emphasis on the parents and gymnast. Richard rightly pointed out that parents can’t sign away the rights of a minor, so don’t ask them to. Simply inform them of the inherent risks of trampolining, and the fact that it is a vigorous activity. Ask them to abide by the BTF Code of conduct and any specific Club policies and to declare that the gymnast is in good physical health. You haven’t forced them to surrender any rights to sue, but you do have a signed and dated record of warning them about any dangers, you’ve informed them about any safety rules and they have made an informed consent to participate. (for an example of a club participation and consent form see www.dynamicstc.btinternet.co.uk)
Membership of a governing body also has advantages. British Gymnastics and SportsCoach UK both insure participants against injury. They also provide general advice and/or legal support in the event of any difficulties. In this sport, the author strongly recommends that all participants and clubs are covered by an insurance policy.
- Ask the parents to sign medical consent forms and keep a list of emergency contact numbers.
- Have you asked gymnasts if they have any prior injuries? Do they have any special conditions prohibiting them from trampolining: eg Atlanto-Axial instability?
- Keep a record of any accidents. What? When? How? Record what the diagnosis eventually was.
- If there is an accident, have you put in place emergency procedures – who calls the ambulance? Do the class know what to do in the event of a fire? Where is the assembly point outside?
- Is the equipment regularly serviced? Has a risk assessment been carried out?
- Is the equipment visually checked before use to make sure chains are tight, bolts are secure, legs are correctly fastened?
There has been a lot of panic recently, regarding trampolines being left out and coaches subsequently sued by burglars. Essentially, trampolines are a dangerous piece of equipment. We’ve all seen accidents, or could imagine some idiot taking off for a back somersault and landing on their neck. As coaches we are in the best position to stop this occurring. When we leave the room, it should be safe for anybody to walk in. It’s the same principle that stops me from laying mines in the patio, and putting razor wire on the garden fences, or leaving any shotguns lying around the living room.
What constitutes safe? Taking reasonable precautions. The trampolines shouldn’t be able to be used. Ideally, fold them up entirely, chain them and lock them away in a storeroom. If you do leave them out, make sure they cannot be bounced on – fold one end over and padlock that. Sunken trampolines built into the floor present added problems, but again they are dangerous items, unless they are rendered non-bouncy.
People become very passionate about their sport and it is fantastic to see the enthusiasm and atmosphere of successful coaching sessions. Unfortunately there will always be the threat of accidents (try watching a men’s voluntary final!!!). I would strongly recommend that all coaches become familiar with legal issues. Their impact doesn’t just relate to negligence, but to all areas of the Club and training sessions – record keeping, fees, discrimination and a myriad of other potential pitfalls.
In the vast majority of cases, the Law reaches a just result. It weighs up all the available evidence and balances out the facts. Where anomalies occur, it is often to ensure that either a defendants actions do not go unpunished, or to ensure that a victim is able to recover damages from at least one insured party.
I hope this article has gone some way to explaining part of the current legal trends. Please appreciate this was just an overview, in the interests of simplicity, I have deliberately avoided citing cases, or detailing every exception to the rule.
Kris Lines (England).