PROCEDURAL FAIRNESS

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RISK MANAGEMENT WORKSHOP

• Presentation to
• Ontario Cycling Clubs
• November 16, 2002

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EXAMPLES OF RISKS

• Organization is sued when a rugby scrum
  collapses, plaintiff alleges mismatching of
  players
• Coach, club and arena are sued for failing to
  ensure a safe skating surface
• Instructor is sued for failing to follow proper
  progression in instruction

• Member of club complains of harassment and abuse
  by a coach
• Player challenges selection decisions made by a
  committee
• Hockey player injured by an illegal check sues
  coaches and officials for failing to enforce the
  rules

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THESE RISKS WILL -

• Cost your club money
• Take up time and other valuable resources
• Increase future insurance costs
• Distract your staff and volunteers
• Harm your public image

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OUR FOCUS TODAY ...

• Whats the risk
• Physical injury resulting in a loss for which
  there is a legal remedy, and for which the sport
  organization may be responsible

• Whats the responsibility
• Provide a safe environment have policies and
  standards that promote safe programs in safe
  facilities, overseen by qualified personnel

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OUTLINE

• Question 1 - How does the law expect me to
  behave?
• ( ? negligence liability)
• Question 2 - Given what the law expects, how do
  I ensure that I behave appropriately?
• ( ? risk management)

We wont give you all the answers but hopefully
well give you enough knowledge that youll ask
the right questions
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NEGLIGENCE

• An action is negligent only when
• a duty of care is owed,
• and the standard imposed by this duty is
  breached,
• and harm or loss is suffered,
• and the breach of the standard causes or
  substantially contributes to the harm or loss

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DUTY OF CARE

• To whom do you owe a duty of care?
• To anyone who you ought to know could be
  affected by your actions
• The court will ask would a reasonably average
  person have foreseen the possibility of harm or
  injury

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STANDARD OF CARE

• What a reasonable person would do, or not do,
  in similar circumstances
• The reasonable person is interpreted
• to mean a person similar to yourself, in
  skills, experience and knowledge

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STANDARD OF CARE

• Written/published standards
• Unwritten/unpublished standards
• Case law
• Common sense

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WORDS OF CAUTION

• A lack of standards may be viewed as condoning
  inappropriate behaviour
• If governing organization adopts or recommends
  certain standards, you should too
• Make sure that you have the ability to enforce
  standard (for example, eyeguards, mouthguards)

• Dont make your standards so strict that they
  cannot be enforced
• or so slack that the court will impose a higher
  standard on you
• Ignoring a written standard will only bring you
  trouble!

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STANDARD OF CARE

• Highest possible level of care - risk is
  eliminated
• Reasonable standard of care in the circumstances
  - risk is appropriately managed
• Failure to exercise any care - risk is ignored

Behaviour is not negligent
Behaviour is negligent
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St. Johns School Canoe Accident - June 1978

• No route maps drawn up, no-one familiar with
  route
• Group had no rescue equipment and no emergency
  procedures
• Some participants could not swim leaders did not
  know which could and could not
• No-one had canoed since the previous autumn

• There had been no preparation for the trip such
  as physical conditioning, learning canoe rescue
  techniques, lifesaving training
• Canoes had been modified to accommodate more
  cargo
• Participants physical endurance was reduced by
  all night driving and early start, lack of hot
  food at breakfast or lunch

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Do the circumstances impose a duty of
care? YES NO Has the standard of care
imposed by this duty been breached? YES NO
Is there resulting harm or loss? YES NO Did
the breach of the standard cause or
substantially contribute to the harm or
loss? YES NO Negligence! Is there
liability? maybe YES, maybe NO
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NEGLIGENCE v. LIABILITY

• NEGLIGENCE refers to conduct
• LIABILITY refers to responsibility for
  negligent conduct

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VICARIOUS LIABILITY
Club
Volunteer
Injured person
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STANDARD OF CARE

• Breach of the standard of care is the most
  critical of the four elements of negligence
• Fortunately, this is an area over which you have
  the greatest control
• Risk management efforts focus on MEETING OR
  EXCEEDING THE STANDARD OF CARE

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WHY MANAGE RISKS?

• Reduce injuries to participants
• Improve your defense against litigation
• Reduce insurance costs/meet requirements of
  insurers
• Meet requirements of funding agencies

• Protect your volunteers
• Improve customer service and public image
• Help you to govern more effectively
• Practice good business management (bottom
  line)

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PRACTICAL RISK MANAGEMENT

• Identify risks ? ask, what are the possible
  things that can go wrong?
• Measure risks ? ask, how likely is it things will
  go wrong, and what are the consequences if they
  do go wrong?
• Control risks ? ask, what can I do to keep things
  from going wrong?

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IDENTIFYING RISKS

• Sources of risk
• Facilities (fields, roads, trails, buildings)
• Equipment (belonging to club or to participants)
• People (participants, staff, volunteers,
  spectators)
• Program (the activity itself)

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MEASURING RISKS

• The magnitude of a risk is a function of its
  frequency (likelihood of occurrence) and its
  severity (seriousness of resulting harm)

• It is usually adequate to assess the magnitude
  of risk in terms of
• low
• moderate
• high

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RISK CONTROL STRATEGIES

• Regardless of how little or how big you are, or
  who you are, or what you do, there are FOUR
  strategies to control risks .

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RISK CONTROL STRATEGIES

• Retain the risks ? you dont do anything because
  the likelihood of occurrence is low and the
  consequences are slight
• Reduce the risks ? you take steps to reduce the
  likelihood of occurrence, and/or the
  consequences, largely by changing human behaviour
• Transfer the risks ? you accept the level of risk
  but you transfer this risk to others through
  contracts
• Avoid the risks ? you decide simply to NOT do
  something

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CHOICE OF STRATEGY

• severity
• avoid
• transfer
• reduce
• retain
• L M H VH
• frequency

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RISK MANAGEMENT MEASURES
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RISK TRANSFER METHODS

• WAIVERS
• have all participants in program sign a waiver
  agreement
• INSURANCE
• review all insurance needs and renew policies
  appropriately
• CONTRACT MANAGEMENT
• include proper indemnification provisions in all
  contracts signed by the organization

• CONTRACT FOR SERVICES
• contract out work to other parties (instructional
  clinics, event management, security,
  catering/bartending, transportation)
• JOINT VENTURES
• create separate corporate entity to host major
  events

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RISK CONTROL STRATEGIES- another perspective

• Strategies to reduce risks and to avoid risks
  are directed towards preventing the risk, harm or
  loss from occurring

• Strategies to retain risks and to transfer risks
  (including insurance) do nothing to prevent the
  risk, harm or loss from occurring in the first
  place

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REMEMBER .

• The law never expects perfection, it only
  expects reasonableness
• Risk management is the same way - your risk
  management program is a a reasonable mix of risk
  control measures suited to your organizations
  needs, circumstances and resources

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RISK MANAGEMENT PLAN

• Step 1 Use brainstorming techniques to identify
  risks (use best judgment)
• Step 2 - Measure risks using the low, moderate,
  high categories (use best judgment)

• Step 3 - Identify appropriate measures to control
  risks
• Step 4 - Implement measures
• Step 5 - Review and adjust your plan on a regular
  basis

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RISK MANAGEMENT IS NOT ROCKET SCIENCE
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RISK MANAGEMENT

• ORGANIZED
• COMMON SENSE
• (where common sense sum of
• knowledge experience)

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WHAT IS A WAIVER?

• It is a contract by which a participant agrees
  to accept the risks involved in an activity in
  exchange for the opportunity to participate in
  the activity

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TWO TYPES OF RISK IN SPORT

• PHYSICAL RISK
• The risks, dangers and hazards that are inherent
  in the sport activity. These risks are
  unavoidable, reasonable and in many cases,
  desirable

• LEGAL RISK
• The risk that the organizers of the sport
  activity will behave negligently. This risk is
  not inherent in the sport, nor is it desirable,
  reasonable or acceptable

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HOW TO CONSENT TO RISKS

• By the act of participating
• By verbal agreement (verbal contract)
• By written agreement (written contract)

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CONSENTING TO RISKS

• PHYSICAL RISK
• A participant can consent to physical risks by
  the act of participating or by verbal or written
  agreement.

• LEGAL RISK
• A participant can consent to legal risks ONLY by
  means of a written agreement. This is a waiver
  of liability agreement

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WHAT IS A WAIVER?

• A waiver is a written contract in which a
  participant agrees not to hold the Association,
  Club or program organizers responsible for the
  legal risk of their negligence in exchange for
  the opportunity to participate in their program.

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WHAT IS A WAIVER?

• An intentional, informed and voluntary agreement
  to give up a known legal right

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WAIVERS - 3 ESSENTIALS

• Description of risks you are asking participant
  to accept - including both physical risks of the
  sport and legal risk of your negligence
• Participants release or waiver of liability
  - the backbone of the waiver is the participants
  knowing relinquishment of their right to sue you
• Participants acknowledgement - that they have
  understood the terms of the waiver - and are
  signing it voluntarily

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WHAT IS COVERED

• Training
• Pre-event activity
• Event itself
• Travel to and from event
• Post-event events
• Season vs. Single event vs. Multiple events

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WAIVERS

• WORDING - is the waiver easy to read and
  understand?
• WHATS COVERED - are all activities, all
  parties, all risks covered
• EXECUTION - does person have authority to sign a
  contract, and did they have an opportunity to
  read and understand the waiver?

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CONSISTENT PROCEDURES

• Sign in advance of activity
• Allow ample opportunity to review
• Execute in person (not through mail)
• Have a witness
• No alcohol around
• Check proof of age if unsure
• Store safely and for a long time

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CONSIDER ALTERNATIVES

• Assumption of Risk
• Informed Consent
• Participant Agreements

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DO WAIVERS WORK?

• Yes - if done properly!!

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www.sportlaw.ca
Risk management for sport organizations and
sport facilities Sport Management
Symposium Using waivers in university programs
and facilities - CURIE Newsletter What is the
standard in the standard of care Coaches
Report (and other Coaches Report
articles) Waivers Topics page of web
site Online Bookstore see all ten handbooks