Back to sport - Phase 1.
NGB’s, clubs and organisations have produced road-maps and measures. It’s about reducing the risk. The health risk is that somebody might contract COVID-19 in the sporting arena. There is also a legal risk.
Both risks will increase with each phase, but can be minimised by the introduction of certain measures.
However, much like the virus in the absence of a vaccine, the risks cannot be eliminated.
The legal risk is that a member, employee or patron could contract the virus and/or spread the virus on the ‘Return to Sport’ phases, and then take a claim.
The main type of legal claim that could be brought is a personal injury claim in negligence. Claims in negligence are based on an alleged breach of a ‘Duty / Standard of Care’. The breach is caused by an act or omission which could cause “reasonably foreseeable” damage to a third party. Further claims could be brought for breach of contract and misrepresentation but are not as likely.
Consequences of Non-Compliance:
- Financial impact of a claim;
- Reputational damage;
- Prospect of insurance cover being declined;
- Low morale / loss of confidence of employees and members;
- Legal risks for the officers themselves.
Meeting the Standard of Care
Ultimately, if NGB’s, clubs and members can show they took the measures that were reasonably expected of them in the circumstances, they will more likely than not have fulfilled their duty of care. This will involve taking practical measures and managing the risk. The situation is fluid and the measures may vary for each organisation. The practical measures have been well documented (particularly by the construction industry) and include education sessions, sanitation and hygiene, tracking systems, having a COVID response plan, appointing COVID champions etc.
Managing Legal Risk
In addition to the practical measures, the following steps could be taken to minimise legal risk:
- Declaration (everyone completes a health self-assessment form, including an acknowledgment and acceptance of certain risks and a waiver before returning to sport);
- Disclaimer (physical posters to be erected on premises and on club websites);
- Indemnity/Limitation of Liability;
- Amending existing documents / policies / Constitution;
- Insurance assessment;
- Continually reviewing protocols and government guidance.
We’re working with many organisations on this. For more on this , please contact Morgan Crowe or Larry Fenelon of Leman on +355 1 639 3000 or visit www.leman.ie
as the restrictions are lifted and more people are gathering, there is a risk of a significant surge which has been the experience in some countries.