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RISK MANAGEMENT

Rachel CorbettSwim Ontario AGM

TorontoSeptember 2007

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www.sportlaw.ca

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Responsibility safe environment

Theory the law (tort, human rights, administrative, criminal)

Practice risk management

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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”

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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Unwritten/unpublished standards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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WRITTEN STANDARDS

Government statutes and regulations

Equipment standards

Organization policies and rules

Code of Conduct Facility rules

Technical rules Safety and

emergency response procedures

Coaching manuals Tournament/event

guidelines Job description

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UNWRITTEN STANDARDS

COMMON PRACTICES OF OTHER COACHES/ADMINISTRATORS/OFFICIALS– Remain current with new developments in

your sport– Attend workshops such as this one– Continually upgrade your certification– Pursue other professional development – Network with peers– Read!

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CASE LAW

Previous court decisions about similar fact situations

Principles of common law which evolve over time

Acts as a guide and provides important information to coaches

– Dyck v. Manitoba Snowmobile Association– Myers v. Peel County Board of Education– Hamstra v. B.C. Rugby Union

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COMMON SENSE

Intuition KnowledgeExperienceJudgment“Gut” feeling

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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. John’s School - 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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Strathcona Tweedsmuir School - February 2003

OE 25 – For credit course for 10th graders

Year-long preparation and training for trip (fitness, avalanche awareness and rescue)

2 avalanche-certified leaders

Day before accident practiced digging avalanche pits, doing snow-pack and compression testing

Avalanche hazard “moderate” at and below tree-line

Students followed avalanche protocol (50 ft. separation)

At mid-morning break quizzed on avalanche safety

Each student carried shovel, probe and beacon

All 17 on trip buried – 10 survived

Group executed a perfect rescue

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EMERGING CONCEPT IN RISK MANAGEMENT …

Risk management efforts must recognize the “culture” of an organization or program

Risk management analysis must occur in context of an organization’s “tolerance for risk”

Understanding and articulating this requires skilled communication

The answers are not black and white

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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 (… it might not be the person who was negligent!!)

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RISK CONTROL STRATEGIES

Retain the risks you don’t do anything because the risk is inherent in the sport

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 STRATEGYRisks occur along a continuum from low to high …

Risk control strategies tend to follow the same pattern …

Low Medium High

Retain Reduce Transfer Avoid

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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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EVOLUTION IN RISK MANAGEMENT APPROACHES

Traditional approach (1980s) risk management to prevent injury and

liability Modern approach (1990s)

risk management to avoid a wider array of legal issues and loss exposures

‘True Sport’ approach (today) risk management is a comprehensive

approach to improve performance through effective governance, efficient planning, relevant programming (AS/NZS 4360)

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OTHER LEGAL ISSUES OF INTEREST TO

COACHES Coaches most often come to us for

assistance with employment contracts, dismissal from coach positions, misconduct complaints, parent problems, discrimination matters and ‘procedural fairness’ issues

Board of School Trustees of School District No. 37 (Delta) v. British Columbia Secondary Schools Association (2006)

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www.sportlaw.ca

All the articles in Coaches Report/Coaches Plan

1994 to present

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PrefaceAcknowledgements1 – The Law2 – Negligence and Liability3 – Violence in Sport – A Legal Perspective4 – Administrative Law – Fairness in Decision Making5 – Doping in Sport

6 – Discrimination in Sport7 – Working Relationships8 – Intellectual Property and Licensing Agreements9 – Contracts10 – Dispute Resolution Systems11 – Risk Management GlossaryIndex