Contributory Negligence

Published May 4, 1995

When a coach fails to meet the standard of care toward athletes, he or she may be negligent. But negligence does not equate with liability. Whether or not a negligent coach is held liable, or responsible, for the injury or damages is another matter entirely.

There are many factors that may reduce liability or eliminate it completely, including the concepts of contributory negligence, assumption of risk and vicarious liability, as well as certain risk management techniques including waiver agreements and insurance. In this column, we will explain how contributory negligence can be a partial defense to liability.

Contributory negligence is defined in Black"s law dictionary as an em"act or omission amounting to [a] want of ordinary care on the part of the [plaintiff] which, [combined] with the defendant"s negligence, is [a] proximate cause of injury". In determining liability for negligence, the Courts will examine the conduct of the plaintiff to see if the plaintiff"s own lack of care contributed to his or her injuries. In other words, the Courts will decide if the plaintiff, like the defendant, failed to achieve a reasonable standard of behaviour, and thus was negligent.

The law expects prudent behaviour from everyone. If an injured person"s own inattention, recklessness or disregard for reasonable safety precautions contributes to his or her injuries, the Court has the option of assigning a portion of the responsibility to the plaintiff, thus reducing the amount of damages awarded against the defendant. Such a finding does not absolve the defendant, but merely reduces the degree to which he or she was responsible for the plaintiff"s injuries.

This principle of contributory negligence can be illustrated by looking at three sport cases. While none of these cases involve coaches, all a involve instructors, leaders or experienced participants in the position of "expert" in relation to a "novice", and in this regard, revolve around a standard of care which is very similar to that of a coach.

The first case, Smith v. Horizon Aero Sports Ltd. (1981, 19 C.C.L.T. 89, 130 D.L.R. 1 (3d) 91) is a leading case on sport instruction in Canada. This case was brought by a young woman who was severely injured after failing to steer her parachute properly as she had been instructed. The B.C. Supreme Court found the instructor negligent on a number of grounds, including having misjudged the woman"s readiness to make her first jump.

Even though the plaintiff was in a state of sever shock at the time of her jump, the Court was satisfied that she should bear some responsibility for her injuries. In particular, the Court noted her high degree of self-motivation, her successful completion of all the physical exercises during the course, and her apparent confidence until just moments before her jump. In the Court"s view, she shared in the decision that she should jump. However, because she was a novice and her instructor an expert, the Court assigned liability between them on the ratio of 30 percent against the plaintiff and 70 percent against the parachuting school and the instructor.

In the second case, Scurfield v. Cariboo Helicopter Skiing Ltd. (1993, 74 B.C.L.R. 225), the balance of blame swung the other way. Scurfield, a participant on a back-country ski trip, was killed while crossing an avalanche slope. At trial, the Court found Scurfield 75 percent at fault for the accident and the defendants (Cariboo and the guide) 25 percent at fault. Scurfield had been negligent on several fronts, including failing to wait for the skier ahead to finish crossing, failing to wait for the guide"s signal to cross, and failing to "ski alert" -- all of which he had been instructed to do. The guide was found to be negligent for taking the skiers to that particular slope, although on appeal, this finding was overturned.

The final case, Finnie v. Ropponen (1987, 40 C.C.L.T. 155) involved a golfer with twenty years experience who was hit squarely in the face by a golf ball shanked off the tee box by a novice. In finding the experienced golfer 25 percent responsible for his own injuries, the Court noted that the golfer observed the novice taking practice swings and knew (or should have known) that he was in danger of being hit, yet failed to warn the novice of this danger and of his position on the course.

While it does not eliminate liability entirely, successfully arguing contributory negligence is one way to reduce the financial impact of a finding of liability for negligence. Like the defendant, the plaintiff also must meet a standard of care -- plaintiffs are expected to take reasonable steps to protect themselves from harm, and when they fail in this duty, they may be held partly responsible for the outcome.

Original: Coaches Report (1995) Vol. 2(2)

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