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From Sport Victoria:

A series of injury prevention reports and fact sheets, designed to reduce injuries and promote safe participation in sport are available for a range of sports by contacting Smartplay.

Recently Released fact sheets include:

• Preventing Downhill Skiing Injuries (PDF 251kb)
• Preventing Cross-Country Skiing Injuries (PDF 297kb)
• Preventing Snowboarding Injuries (PDF 246kb)

Tackling Australian Football Injuries (PDF 1.44mb) is an example of an injury prevention report. Additional reports are available from Smartplay and the Monash University Accident Research Centre (MUARC).

Sports Ground Conditions and Injury Risk – Implications for sports grounds assessment practices in Victoria

Good Practice Match Day and Training Session Checklist (PDF 21 kb)
Good Practice Match Day and Training Session Checklist (Word 53 kb)
Good Practice Sports Ground Inspection Form (PDF 25 kb)
Good Practice Sports Ground Inspection Form (Word 72 kb)

Public Liability……….what’s going on? (from www.sport.act.gov.au )

We have heard so many stories of spiralling insurance premiums, events that have been cancelled and clubs that are staring down the barrel of extinction, unable to afford, or even obtain insurance regardless of the cost.  Similarly, we have heard numerous public figures and industry leaders speak on the issue, countless forums held to discuss “solutions” and no real answers seeming to present itself.  We have heard terms like “self insurance”, “risk management”, “insurance pooling” and “group purchasing” thrown around with much abandon.

While all this discussion continues, the media continues to inform us, and many of us have directly experienced, how the sport and recreation industry is being adversely affected.  Here in the ACT, we have not been immune to the public liability crisis. 

So what has caused this crisis?

The facts are that we are currently faced with the confluence of two significant impacts – a cyclical peak in the insurance market and rising cost of claims.  These two factors have largely driven the current crisis.

The insurance market is currently in a ‘hard’ phase, characterised by reduced competition, withdrawal of capital and the weeding out of poorly performing firms.  For the last 7 to 8 years, the Australian insurance industry has been highly competitive, with insurance firms aggressively chasing market share.  As a result, underpricing of many of the liability products occurred.

In recent years returns from investment of premiums has declined, and further exposed the underlying losses of these classes of insurance.  Successive losses by insurers, culminating in the demise of HIH have drastically reduced competition and insurers are taking the opportunity to recover past losses. This represents an example of the “hard phase” which was  referred to earlier.  HIH’s underwriting practices, and in particular its aggressive underpricing, drove the market down to unsustainable levels.  HIH secured a large proportion of the public liability market, which exacerbated the negative effects on business and the community when the company eventually collapsed.

The Australian prudential environment and market was incapable of detecting or halting the destructive impacts of HIH’s practices because pertinent statistical information was unavailable.  That was, and remains, a Commonwealth responsibility.

The events of 11 September 2001 added to the distress already emerging in the Australian market from the “HIH effect”.  In particular, 11 September managed to remove 20 to 30% of available capital in the world reinsurance market, with disastrous effects on capacity.  The tightening of the availability of capital has now translated into higher premiums.  It has also forced insurers to be more selective about the risks they underwrite.

What is Government doing?

Government, both at the Federal and State level, have been active in addressing this issue.  An initial meeting of Federal and State Ministers in March 2002 convened a national working group to report on this issue, meeting again in May to receive their report. Ministers made substantial progress on developing consistent national approaches for implementing measures to tackle the problems of rising premiums and reduced availability of public liability insurance.  Ministers met with the Insurance Council of Australia and chief executives of some major insurers and made it clear that there is an expectation that the insurance industry will deliver affordable public liability products to the community on the basis of the reform package being implemented.

Ministers agreed on a package of socially responsible initiatives aimed at reducing and containing claims costs and increasing the transparency of insurance industry practices through better data collection.

Tort Law Reform – One of the initiatives is a review of the law of negligence. The purpose of this review is to examine and report on reform options designed to limit common law liability and quantum of damages arising from personal injury or death.  Further, the Federal Government has introduced alterations to the Trade Practices Act to allow for self assumption of risk for people who choose to participate in inherently risky activities, subject to the preservation of adequate consumer protection.

Compensation Capping – While there is no clear evidence to justify capping in relation to the cost of claims, some jurisdictions favour applying damages caps in relation to public liability claims. The ACT Government is philosophically opposed to the watering down of individual rights to fair compensation for injury and loss caused by the negligence of another party.  However, the community needs to understand that, in tackling the insurance problem, a balance may have to be achieved between individual rights and holding costs to a reasonable level to ensure preservation of our way of life and fairness to all parties. While we may not wish to consider such a compromise, the ACT is too small a market to stand alone.

Additionally, the Government is considering clearing the way for structured payments within the Australian compensation system.  Court awards and compensations have been traditionally being made by way of one lump sum. There is a concern that dissipation of damages awards is occurring, pointing to victims losing their funds, in some cases less than five years from date of receipt. Structured settlement overcomes the dissipation problem by converting the lump sum to periodic payments through an arrangement with a court-approved life company, although modifications to taxation law would be required so that periodic payments were no longer considered income and thus be considered tax free. The Federal Government has introduced amendments to the Income Tax Assessment Act to accommodate structured settlements.

Legal System Reforms - The Federal Government is considering a range of reforms to the legal system to address the insurance crisis, including allowances for pre-litigation exchanges of evidence to allow for increased preparation for a claims defence, compulsory conferencing prior to the commencement of proceedings, and closer scrutiny of “no win, no pay” legal practitioners.

What specifically is happening in the ACT?

As well as being involved in various forums and surveys at the national level, a range of initiatives have been developed in the ACT to assist the sport and recreation industry confront the insurance crisis

In June, the Legislative Assembly passed the Duties (Insurance Exemptions) Amendment Act 2002 to assist not-for-profit sporting and community groups by excluding them from paying duty on public liability insurance and any other general insurance “prescribed” by the guidelines – these prescribed insurances being those required to conduct public events.  Whilst this Act does not solve the greater problems that have caused this crisis, it does provide a level of relief for aggrieved organisations.

Other proposals are currently before Cabinet and these will be publicised as they are approved.  However, the Territory is committed to providing liability protection for individual Volunteer/Good Samaritans, facilitating waivers for high-risk activities, facilitating group insurance arrangements and risk advisory services for local community, sporting and recreational groups.

The risk advisory service is under development at present. For those who need immediate information about public liability insurance as it concerns their relationship with the ACT Government, please call the insurance hotline (02) 6207 0184.

What can the sport and recreation industry do?

Whilst it may seem that the industry is helpless in dealing with this crisis, waiting for Governments to step in and fix the problem, this is not the case as there are a few basic things that organisations and individuals can do to help the situation.

·        Education – national surveys have recognised that there is a lack of understanding by sports administrators, coaches and officials about insurance and there requirements. The Australian and New Zealand Sports Law Association recommends that organisations and individuals be aware of exactly what insurance they current have, what it covers and for how much, does it include any exclusions, what is the policy period, are there any geographical limitations, and what is the excess payable in the event of a claim?

·        Risk management – It is essential the organisations develop and implement a formal risk management plan to assist in reducing the likelihood of accidents occurring.  Ideally the risk management plan should be developed by the National Sporting Organisation and have a flow on effect to the state, association and club level. (Note the Risk Management module being conducted by the Bureau as advertised in this edition of “Bureau Links”)

·        Waivers – A waiver or a release is a contractual document that seeks to exclude the sporting organisation from potential liability toward participants. A waiver is commonly found on a membership or entry form where the individual is asked to waive any right that they may have against the organiser in exchange for the opportunity to participate.

Whilst a well drafted waiver can effectively negate liability, they are not litigation proof and their limitations must be acknowledged.  Gross negligence cannot be excluded by any contractual agreement and there exists a range of statutory obligations under the Trade Practices Act (and state Fair Trading Acts) that cannot be waived.  Rigby Cooke Lawyers offer five tips for drafting of waivers;

1.       There must be an offer, inviting the participant to take part in the activity or obtain membership services.

2.       The participant must agree to participate in the activity or accept the offer of membership.

3.       Consideration must flow from the transaction, usually by means of an entry or membership fee.

4.       The participant and the sporting organisation must intend to enter into a legal relationship, evidenced by the terms of the entry form or membership application.

5.       A participant under the age of 18 has no contractual capacity and cannot enter into a legally binding agreement.  However, having a minor and their legal parent/guardian sign a waiver may be useful to demonstrate the organisations attempt to bring the risks involved in participation to the attention of the minor.

At time when we work so hard to encourage the community to get out and be active, the last thing that is needed is reduced physical activity opportunities or rising participation costs that may convince an individual not to participate.  Both Government and the industry are addressing the issue, and whilst we will see benefits from this work, it is unlikely that premiums will ever return to pre-crisis levels.