Latest statistics from Boksmart reveal that a total of 14 serious or catastrophic injuries were reported in 2011 in the South African Rugby Union for school- and club-level combined.
According to admitted attorney Warwick Scott-Rodger, regional manager: Gauteng MUA Insurance Acceptances, while it tends to happen infrequently, the financial repercussions should someone face a personal liability claim as a result of being found legally liable for causing personal injury can be significant.
Scott-Rodger provides a typical school rugby scenario as an example: "Even though the rugby players have consented to play in an Under 11 school rugby game, the prop forward may be replaced by a 13-year old unbeknown to the referee. If this older player high tackles a player from the opposing team and accidentally breaks his neck, the question arises as to whether the injured player consented to play the sport under these conditions and who is liable for the medical costs associated with his treatment: the referee because he should not have let the 13 year old play; the coach who should have found an age appropriate player; or the 13 year old himself; or the player's family as he is underage and cannot be sued.
"Everyone will agree that rugby is a high contact sport involving huge physicalities; however do the players consent to injuries relative to the game or those injuries sustained wide of the rule book? Can a high tackle be deemed as part of the game, representing the 'inherent risk' of the sport or can it be construed as gross negligence resulting in civil action?"
In South African law, there is such a thing as volenti non fit injuria, which translated means: to a willing person, no injury is done, says Scott-Rodger. "This doctrine holds that a person who knowingly and willingly puts himself in a dangerous situation cannot sue for any resulting injuries. The real question then is to what exactly does the player consent to before the whistles blows."
He says there have also been cases where certain 'moves' have been designed by teams to intentionally cause physical harm to the opposing team. "Should intent to cause harm be discovered and proven to have caused injury to another player, civil liability could quite easily arise, however the insurance policy would not cover this because, as with any insurance policy, intentional damage is specifically excluded."
Personal injury claims are on the rise. In Ireland, the Personal Injuries Assessment Board (PIAB), a government body that makes personal injury awards, recorded a 4.1% year-on-year increase in personal injury claims to 14,600 in the first six months of 2012. The PIAB attributes this rise to the fact that more people are making claims after an accident, or are being prompted to make claims.
The South African culture as a whole is also becoming more litigious, says Scott-Rodger: "These days many attorneys are willing to take cases on a 'no-win-no-fee' basis, resulting in a rise in the number of cases heading to the courts that may not have proceeded previously."
Scott-Rodger says there are two points consumers should always bear in mind when it comes to personal liability cover. "Firstly, no one can tell someone not to sue them, even if it is a bogus charge. Once those papers have been served, the consumer will have to defend them. This will result in the consumer often having to appoint an attorney and incur legal defense costs. Secondly, consumers need to ask themselves what limit is enough when it comes to liability cover? They need to remember that they also cannot tell the claimant to stop claiming as they are running out of personal liability insurance. They will continue ahead, even by attaching the consumer's home and the rest of their assets."
Furthermore, it is not only the party that has suffered the injury or damage who can sue, but also their insurance company that has the right to claim back the financial losses, says Scott-Rodger. "Amateur referees must also take precaution here as they could potentially be held liable in instances where they are seen to be grossly negligent, acting in ways contrary to that of a 'reasonable referee'.
"Personal liability cover provides two types of cover: the defense costs against the legal action and the sum of the judgment order if the policy-holder is found liable. Some policies also include proactive legal costs cover, where they provide a limit allowing the consumer to pursue legal action against someone and not just defend against same. It is also important to note that liability cover under personal polices will not cover those whilst conducting sport as a professional. Some policies define a professional as someone who generates more than 50% of his or her earnings from a professional sport. In this case, specialist cover needs to be arranged."
"South Africa is a country full of sports lovers, with the interest in many recreational activities growing each day. Concern over liability claims should not curb participation but rather make everyone aware of the possible implications and to ensure that the necessary cover is in place at inception as at claims stage it is too late," concludes Scott-Rodger.
