Insights from Lemans Solicitors: Return to Sport – Managing legal risk

May 20, 2020

Finally.

Back to sport –  Phase 1.

We’ve waited patiently. NGB’s, clubs and organisations have produced roadmaps and measures. It’s about showing leadership. It’s about reducing the risk. The health risk is that somebody might contract COVID-19 in the sporting arena.

Is there a legal risk ?

The answer is yes. It can be minimised (like the health risk) with the introduction of certain measures. But, much like the virus in the absence of a vaccine, it cannot be eradicated.

Legal risks.

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 damage to a third party that is “reasonably foreseeable”. Other claims could be brought for breach of contract and misrepresentation.

Consequences of Non-Compliance:

  1. Financial impact of a claim;
  2. Reputational damage;
  3. Prospect of insurance cover being declined;
  4. Low morale / loss of confidence of employees and members;
  5. Legal risks for the officers themselves.

 

Meeting the Standard of Care

Ultimately, if NGB’s, clubs and members can show that they did all that was reasonably expected in the circumstances, they will more likely than not have fulfilled their duty of care. Practical measures to manage risk are fluid and may vary for each organisation.  Some examples are:

  1. Education and Assistance
  2. Appoint COVID-19 Champions
  3. COVID-19 Response Plan,
  4. Tracking system / online booking
  5. PPE and sanitiser
  6. Contactless Payment

 

Managing Legal Risk

In addition to practical measures, the following steps could be taken to minimise legal risk:

  1. Declaration (everyone completes a self-assessment form, including an acknowledgment and acceptance of certain risks and a waiver etc..).
  2. Disclaimer (physical posters be erected on premises and on club websites)
  3. Indemnity/Limitation of Liability
  4. Amending existing documents / policies / Constitution
  5. Insurance assessment
  6. Continually review of protocols and government guidance