Introduction

Negligence is part of the law of torts.

Negligence consists of falling below the standard of care required in the circumstances to protect others from the unreasonable risk of harm and is regulatory in nature.

It does not require an intention to actually cause harm or damage.

In order to commence an action in negligence the plaintiff must have incurred damage which the law regards as compensable.

If a plaintiff has incurred compensable damage, then the following elements must be established by the plaintiff:

1. Duty of Care – this is a duty owed by one party (the sport trainer) to another (participant). This is a legal obligation to avoid causing harm where the harm is foreseeable;

2. Breach of Duty – the standard of care – the plaintiff has to show that the defendant has breached a duty to them by falling below the standard of care imposed by the law. This requires that a defendant exercise a certain degree of care or standard of conduct (based on the reasonable person);

3. Causation – the plaintiff must show that the defendant’s breach caused the injury which they are now complaining about; and

4. Remoteness of damage – the plaintiff must show that the injury they suffered which was caused by the defendant was reasonably foreseeable.

A plaintiff must establish each of these elements in order to have a successful claim.

Duty of Care

The elements of the duty of care for a sports trainer can be summarised as follows:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your patient/sport player.

In order to establish the existence of a duty of care the following requirements should be considered:

1. Was the loss reasonably foreseeable?
2. Was the defendant in a controlling position (through resources, knowledge, legal duty or right) and knew this?
3. Was the plaintiff reliant on the defendant?
4. Was the defendant in a position that required them to be protective of the plaintiff?

Standard of Care – Breach of Duty

The test for breach of duty is whether a reasonable person would have foreseen that their conduct involved a degree of risk of injury to the plaintiff. A risk which is not far fetched or fanciful is real and therefore foreseeable.

The standard of care is flexible and will vary from situation to situation. Expert witnesses can be called to establish the appropriate level of reasonableness and the court can take into account the relevant relationship between the parties and personal characteristics of the defendant.

A defendant will be in breach of its duty if:
1. the risk of injury was reasonably foreseeable; and
2. there was a reasonable likelihood of the injury occasioned by it.

The main factors in determining the reasonable standard of care include:

1. the probability of risk or injury (if risk is small then may not be foreseeable);
2. the seriousness of the consequences if an injury occurs;
3. opportunities for, and cost of, eliminating the risk (eg. jogger injured while jogging on a grass area when he tripped on a tree root and injured his leg and ankle – evidence produced that cost of removing all tree roots would have been prohibitive for the council and that the council had a responsible and reasonable system of maintenance in place to identify hazards).

Other relevant factors might include:

1. paid or voluntary – a higher standard of care might be applied if the sports trainer is paid;
2. a professional sportsperson might expect and receive a higher standard of care as opposed to an amateur sportsperson.

Reasonable person?

If a person professes to have a particular skill they are required to show the skill normally possessed by such persons professing such a skill. The person must show such (reasonable skill) as any ordinary member of the profession to which they belong would normally show.

In summary when determining whether a sport trainer has discharged his/her duty of care, a court will have regard to what sports trainers with the same skills and expertise would have done in the same circumstances.

Another duty a sports trainer will have is to properly inform and warn the player of material risks in any proposed treatment and, in a sports context, this duty would extend to advising and warning players of the long and short term material risks if he/she were to continue to play with an injury. If a sports trainer was not qualified to give this advice the sports trainer could discharge the duty by advising the player to consult a doctor/physio or other suitably qualified professional.

Examples Where A Sports Trainer May Be Found To Have Breached The Standard Of Care.

Australian

1. negligent supervision of a player – this could include training or playing during periods of high temperature or humidity without taking adequate precautions to ensure proper hydration of participants or failing to supervise training adequately (NB: in this instance the club and/or coach may also be found to breach their duty to the players);
2. asking or forcing a player to participate whilst under injury or supplying players with drugs, such as pain-killing injections or drugs to assist in recovery from injury, which facilitate further injury;
3. in addition to acts of commission a sports trainer could be liable for omissions (ie failing to give the right advice or take the right precaution).

Examples from the United States include:

1.The Maine Supreme Court in Searle v Trustees of St Joseph’s College ruled that a trainer may incur negligence liability for failing to communicate the severity of a player’s injuries to the team’s coach, or for failing to advise an athlete that he/she should not continue playing with his/her medical condition.

2. Jareau v Orleans Parish School Board – a sports trainer for a high school football team was found to have negligently failed to refer a player with a wrist injury to an orthopaedist until after the season ended. The athlete complained that his wrist continued to hurt and was swollen, but he was not withheld from competition although his play was adversely affected by the injury. The trainer’s delay in referring the player for treatment of his fracture necessitated an extended period of treatment and caused a permanent disability (NB: player was found to be 1/3 at fault for not consulting his own physician).;

3. A college footballer had injured his neck in 3 prior games. The team’s trainer, believing that the player has suffered an extension injury to his neck, fixed a ten-inch elastic strap to the face guard of the player’s helmet and connected it to the front of his shoulder pads. The device prevented the player’s head from going back and was approved by the team’s doctor. The trainer tightened the strap downward causing the player to “walk like a robot . . . . . with his head down”. While making a tackle with his head constrained by the device, the player broke his neck and was rendered a quadriplegic. The player asserted the trainer and team doctor were negligent for permitting him to play with a serious neck injury and with equipment that placed his neck in a position making it vulnerable to being broken. The claim was settled for $800,000 before the trial.

A sports trainer is not negligent if the treatment provided exacerbates an athlete’s injury. In Gillespie v Southern Utah State College the Utah Supreme Court held that a sports trainer was not liable for treating a player’s ankle injury that ultimately would have healed by itself without medical treatment. The court ruled that the athletic trainer’s liability depended upon proof of negligent treatment contributing to the athlete’s enhanced injury.

Conflict of Interest

The role of a club doctor/sports trainer is vexed, as there is a potential conflict of interest.

The doctor/sports trainer has a responsibility to the club, which will often pay a fee for their service, and a responsibility to the players. The interests of the club and the player are not always the same.

Club doctors/sports trainers play an active role in helping clubs prepare players for the upcoming season’s competition, develop risk management strategies for players to reduce the risk of injury and attend to the consequences of injury both at training and during competition.

If they are to minimise the possibility of being sued, any decision that a club doctor/sports trainer makes must be in the best interests of the player.

Insurance

A sports trainer can have their own, or have the club that employs them arrange for them, professional indemnity insurance.

No matter how well qualified or competent you are, mistakes can still occur and when they do, professional indemnity insurance will help protect you against liability.

As these types of policies are “claims made” policies, you would need to be insured at the time a claim is made. This means that you may still need coverage for several years AFTER you have left the sport. This can usually be done in the form of run down cover at a reduced cost.

The issue of insurance is probably best dealt with on a collective basis. You should investigate whether:

(a) your club takes out a policy that would cover you;
(b) the league/association your club is affiliated with takes out a policy that would cover you; or
(c) there is a trainers association you can join that takes out this policy.

Risk Management/Recommendations

As stated previously, no matter how well qualified or competent a sports trainer is mistakes will always happen.

In order to lower the risk that a sports trainer does not breach the duty of care to his/her patients the following recommendations should be considered:

1. The keeping of medical records in relation to the diagnosis and treatment of injuries and the advice given to players is especially important in a sports context. These matters should be properly documented in order to provide a history of treatment given to a player during competition. Any system used should be user-friendly, efficient and consistent.

2. Before the beginning of each season a compulsory medical education session should be given to the players at your club. This session should address the following issues:

(a)role of the sports trainer and other medical personnel;
(b)common injuries sustained in the relevant sport;
(c) risks of sustaining injury in the relevant sport;
(d) keys to injury prevention and management and recommended use of any protective equipment;
(e) risks of playing with an injury;
(f) short term and long term risks of playing with injuries;
(g) importance of informed consent;
(h) emergency management procedures;
(i) use of other medicines and drugs;
(j) importance of open and frank communication between medical personnel and players;
(k) keeping of medical records;
(l) dissemination of information between the medical personnel and the club for the purposes of assessing injuries and availability for selection;
(m) any other relevant or topic issue at the time.

3. Formalise procedures for what happens when an injury occurs during competition eg are ambulances to be used to transport players to hospital / when should it be referred to a doctor?

"This information has been prepared for the purpose of general information and should be used as a guide only. You should seek professional advice if required. The AFL does not accept any liability or responsibility for any resulting loss suffered except where liability cannot be excluded under statute."