Sports incidents : incurring responsibility beyond the playing field

Abstract

The author aims to hypothesise how Maltese Civil Courts would attribute responsibility to athletes causing injuries to other participants, while participating in physical contact sports, beyond the constitutive rules of each sport. Would it be feasible for them to come up with objective guidelines to establish whether violent conduct has crossed the line of consented risk inherent to each sport? There has been an attempt to indicate how the Courts may treat amateur and professional athletes differently regarding the diligence expected from them. Defences to such tortious actions have also been considered. The rationale behind such a study is owed to the jurisprudential lacuna in Maltese Courts, which triggers the necessity to carry out a comparative analysis with how the Italian Courts and Common Law Courts in England and Wales deal with such injuries. The foreign jurisprudence analysed will cover numerous physical contact sports, with football featuring more regularly. In Italy, jurisprudence has come up with the notion of rischio consentito, i.e. the permitted risk threshold which participants accept when taking part in a sport, and it has also shown that professionals are expected to adopt less diligence than amateurs. In the Common Law system, Courts have coined the term ‘playing culture’ to describe the rules and norms of the sport, and Condon v. Basi has shown that professionals are expected to exercise a higher level of care. However, the Courts in such legal systems were ambivalent about where the permitted risk threshold lies, and the Maltese Courts would, presumably, be no different as each judge may look at the gravity of a foul differently, while each sport has different rules. Therefore, it may not make sense for our, or any Court, to establish guidelines to determine what falls outside the boundary of consented risk for each sport, scrapping, therefore, the idea of European Union (EU) harmonisation of tort laws on the matter.