The characterisation of a compulsory insurance no fault scheme is rooted in the principle of distributive justice, compensating victims without having to establish causation and fault. Conversely, the current liability for negligence claims for sports injuries involves fault considerations based on legal theoretical concepts determined through judicial precedent, which are inherently limited within the confines of the established legal principles of duty of care, proximity and negligence. This in itself creates a tension as wider concepts of "fault" are not currently covered under the law of negligence. To this end, the range of sports injury claims amenable to recovery has widened significantly, creating a risk of floodgate claims.
[...] Accordingly, the parameters of liability have remained uncertain with regard to who the appropriate tortfeaser is, along with the extent of liability for both professional and amateur players bringing claims in negligence. For example, in the leading case of Smoldon v Whitworth (1997] PIQR 133) it was determined that a referee of the Rugby Union match was liable for injuries suffered by a rugby player by another player as a result of a collapsed scrum. In this particular case, the referee had failed to enforce the rules of the International Rugby Board as applied to a rugby game, in which there were more than 20 collapsed scrums. [...]
[...] Justification, Summary and Key elements of the bill However, the growth of insurance as customary practice has introduced the notion of loss distribution, where the question is not who is to blame, but who can most easily bear the loss caused by a particular accident. For example, in the case of Smith v Eric S Bush 2 WLR 790) Lord Griffith asserted that: “There was once a time when it was considered imprudent to even mention the possible existence of insurance cover in a lawsuit. [...]
[...] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows: - 1. General Insurance Obligations and Definitions Except as otherwise provided by this Act, every sports professional participating in organised sport in Great Britain at both professional and amateur club and league level shall insure, and maintain insurance under one or more approved policies with an authorised insurer or insurers against liability for bodily injury sustained by them, arising out of and in the course of participating in the organised sport in Great Britain, but except in so far as regulations otherwise provide not including injury suffered outside Great Britain. [...]
[...] What is being proposed is a draft Bill: no final decisions have yet been made. This consultation therefore invites views of anyone with an interest and forms a significant part of the process of shaping the Government's final policy proposals. COMPULSORY INSURANCE (SPORTS) BILL Purpose A Bill to require sports professionals in both contact and non-contact sport to insure against their liability for personal injury to other sports players in the course of organised sport; and for purposes connected with the matter aforesaid. [...]
[...] Accordingly, if a participant fails to exercise an appropriate degree of skill which is appropriate in all the circumstances or acts in a way which a claimant cannot be expected to have consented then there will be liability in negligence. However, in the sporting context it is evident that sports are played in accordance with the formal regulatory rules as well as established norms within the game. As such, conduct which is normally unacceptable will be accepted within the accepted method of playing a sport and the internal “playing culture” of a sport, will be a normal part of the game. [...]
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