Introduction

"Sports can be a double-edged sword. While it brings joy and exhilaration, we must always remember that injuries and accidents are an inherent part of the game." - Gary Player

The world of sports is commonly associated with being rather injurious towards its participants, however, there are often scenarios where it is, in fact, the enthusiastic spectators who find themselves at risk of injury.

Whether it is a golf ball deviating from its intended path or a cricket fan with questionable reflexes, captivated fans are never entirely safe when they choose to witness the action in person. Consequently, liability in spectator sports consistently manifests itself in this thrilling domain.

Therefore, both spectators and stadium owners have a vested interest in understanding the circumstances where liability arises in spectator sports, the available remedies for spectators in such cases, and the potential defences that stadium owner’s may use to escape liability and combat the spectators’ claims.  

Sources of Stadium Liability

1. The Common Law Duty of Care Owed by Premises Possessors

A ‘Premises Possessor’ in the context of spectator sports typically refers to the owner the grounds where a spectator sport is takes place, such as the owner of a golf course or cricket stadium. In South Africa, spectator liability in sports is governed by the specific rules set out by the organisers and/or premises possessors, alongside the principles of common law such as Law of Delict. A “delict” occurs when one party’s conduct causes harm or injury to another, giving the injured party the entitlement to claim damages, as seen when a spectator suffers an injury at a sporting event.

Courts will look at the foundational elements of the law of delict which are  derived from common law principles established by the courts over time. It has been established that for a delict to arise, the following elements are typically necessary but the court retains discretion in their application:[1]

1. Wrongful conduct: The conduct of a premises possessor is deemed wrongful or unlawful. Examples of such conduct include negligence, intentional harm, defamation, or infringement of rights. Negligence is particularly common in cases involving spectators within specific premises.
2. Fault or culpability: The premises possessor either failed to exercise reasonable care (negligence) or purposefully caused harm to a spectator (intention).
3. Causation: There must be a direct causal link between the premises possessor’s conduct, and the harm suffered by the spectator. In other words, the harm is a direct result of the premises possessor’s actions or failures to act.
4. Damage or harm: The spectator must have suffered harm. This harm is not limited to physical harm but also includes emotional or financial harm.
5. No legal justification or defence: In order for a delict to be established and for a premises possessor to be held liable for injury to a spectator, it must be proven that there is no defence that would absolve such possessor of such liability.

This was the case in Van Eeden v Minister of Safety and Security where a spectator was hit by a cricket ball and sustained severe injuries.[2] When dealing with a potential “delict” such as this, the courts will consider the duty of care owed by the stadium as the possessor of the premises. In the courts consideration, in the Van Eeden case, it was necessary to establish  whether the stadium was negligent. It was established that the stadium had a duty to take reasonable measures to protect spectators from foreseeable harm, including providing adequate safety measures and warnings. However in the Van Eeden case, the stadium failed to uphold its duty of care as the possessor. All elements of delict were present, resulting in the stadium being held liable for the injuries suffered by the spectator.

2. Contract Law

When attending a sporting event, it is typically required for spectators to purchase tickets to gain access to said event. These tickets often include specific terms, conditions and/or applicable laws or regulations, referred to as “ticketback” terms, as outlined by the event organiser or the premises possessor.

It is important to note that liability will vary depending on the facts and circumstances of each case. For instance, if the stadium was negligent, the premises possessor could be held liable, as discussed earlier. However, the terms and conditions printed on the ticket or attached to the purchase of the ticket may expressly state that attendees assume all risks and waive any claims for injury. In such cases, a stadium's liability can be limited.

The purchase of a ticket may also establish an implied contractual relationship, based on mutual understanding, normal practices or reasonable expectations of the parties involved. A spectator would expect that the venue would take reasonable measures to ensure the safety of the attendees. When there is a breach of such implied contractual relationship, the venue could be liable although the outcome would depend on the specific details of the case.

3. Legislative: Safety at Sports and Recreational Events Act 2 of 2010 (“SASREA”)[4]

The main objectives of SASREA are to “provide for measures to safeguard the physical well-being and safety of persons and property at sports, recreational, religious, cultural, exhibitional, organisational or similar events held at stadiums, venues or along a route.”[5] The Act aims to protect the rights of attendees at such events.

SASREA specifies the statutory requirements and obligations that event organisers must adhere to. These obligations can be summarised as follows:

1. Developing and implementing an event safety and security plan.
2. Appointing designated safety officers.
3. Ensuring compliance with safety and security standards.
4. Granting safety officers the power to enforce compliance and take necessary actions to prevent or address risks or threats.

These obligations are similar in nature to those imposed on event organisers under the common law. The common law duty of care entails the event organiser exercising reasonable care to prevent foreseeable harm to the attendees. Therefore, event organisers are required to comply with both SASREA and the common law duty of care to avoid any potential liability.

Remedies

The available remedies for spectators who have suffered a delict will vary depending on the nature of the harm or injury suffered. Our common law recognises five common remedies  and the courts will apply the one(s) most suited to the particular case. These remedies are as follows:

1. General damages (patrimonial): This category entails compensation for the actual harm suffered. For example, in the aforementioned case of the cricket spectator, if the spectator had broken his wrist, the stadium owner would be liable to pay an amount sufficient to cover the medical expenses incurred for treatment of the spectator’s wrist.
2. Special damages: These are awarded to compensate for the financial losses directly resulting from the delict. If the spectator was a paid professional athlete themselves and now, and as a direct consequence of the delict, suffered a loss of income due to being unfit to participate, the premises possessor would provide compensation for this loss of income. This principle  is applicable to the various professions a spectator might have.
3. Future damages (lucrum cessans): Where a spectator has suffered a delict and continues to incur ongoing medical expenses or suffer an ongoing loss of income, the stadium owner will be liable for such costs.
4. Restitutionary damages: Although highly unlikely in spectator sports, if the premises possessor somehow derived a benefit from the harm caused to the spectator (delict), restitution might be necessary to prevent unjust enrichment.
5. Interdicts and injunctions: This refers to a non-monetary compensation aimed at preventing or stopping ongoing harm caused by the delict. A premises possessor may be required to act or refrain from acting in a certain manner to prevent the future occurrence of similar incidents.

In addition to the above patrimonial losses (actio legis Aquiliae), a spectator’s right to dignity and bodily integrity might have been infringed as a result of the delict. The law of delict in South Africa acknowledges this actio iniuriarum.[3] An example of this would be a spectator being captured on live TV during the commission of the delict. Such exposure can be both embarrassing and humiliating, potentially entitling the spectator to seek compensation for harm caused to their dignity through the actio iniuriarum.

Defences to Stadium Liability

1. Delictual

There are several defences available to stadium owner when faced with claims of damages from spectators. The following are some common defences that stadium owners could employ:

1. Spectators’ negligence: The stadium owner must prove that the spectator was negligent and contributed to their own injury. If established, this would limit or extinguish the stadium owner’s liability.
2. Voluntary assumption of risk/consent to inherent risk of injury: Attending a sporting event often implies an assumed risk such as attending a cricket game where there is a possibility of the ball being hit into the stands. If it can be shown that the spectator was aware of and consented to the risks of attending, it could reduce or extinguish the stadium’s liability. The requirements for such consent are (see Hattingh v Roux 2011 (5) SA 135 (WCC)):

• • Consent must be given freely or voluntarily;
  • The person giving the consent must be capable of volition;
  • The consenting person must have full knowledge of the nature and extent of the risk of possible prejudice;
  • The consenting party must also comprehend and understand the nature and extent of the harm or risk;
  • The person consenting must in fact subjectively consent to the prejudicial act. This consent has to be inferred from the proven facts; and
  • The consent must be permitted by the legal order; in other words, it must not be contra bonos mores.

However, irrespective of the presence of the above elements, consideration must always be had for what is “reasonable” in light of the nature of the sport being watched. For example, a golfer who angrily throws their club into the crowd would likely not be viewed as being a “normal part of the game” (Boshoff v Boshoff 1987 (2) SA 694 (O)). In instances where all the elements for consent are not met, the defence of contributory negligence may arise. This occurs where a plaintiff willingly embraces the possibility of danger by deliberately subjecting themselves to a hazardous situation, fully aware of the potential outcomes, all while behaving in an unreasonable manner.

Unforeseeable: If a spectator was injured due to unforeseeable circumstances beyond the stadium owner’s control, the stadium owner’s liability may be reduced or extinguished. Natural disasters, such as a spectator being struck by lightning, would fall under this category.

Absence of causal link: If there is an obvious, unjustifiable and non-causal link between the stadiums conduct and the spectators’ injuries, the stadium owner would be exempt from any liability.

It is noteworthy that any factor that would negate any of the elements required for establishing a delict can be used as a defence. Therefore, this is not a complete list, and the defences available to a stadium owner will depend on the specific case. These are merely the more commonly used defences.

2. Contractual

• Express limitation of liability (“ticketback” terms): As mentioned previously, the ticket purchased for the sporting event may contain clauses that restrict or absolve the stadium from liability in specific circumstances. However, a court has the discretion to refuse to enforce such provisions if they are deemed unfair terms, contradict consumer protection legislation, contravene other statutory requirements, lack sufficient notice and awareness, or are incompatible with other public policy considerations.
• Implied limitation of liability: If a spectator voluntarily assumes the risks associated with attending a particular sporting event, the stadium owner may argue that the spectator has consequently accepted those risks and assumes responsibility for any injuries or resulting damages.

Practical Steps for Stadiums to Avoid/Mitigate Liability

The methods by which stadiums can avoid or mitigate liability may vary in different jurisdictions. Numerous social factors and economic factors can influence or restrict stadiums from taking measures to avoid or mitigate liability in various ways. Additionally, previous instances of a stadium being held liable would prompt the stadium and its owner to take practical steps prevent similar incidents in the future. The following is not a closed list and depends on the aforementioned factors and considerations, consists of practical measures to consider, even though  they do not eliminate liability:

1. Stadium policies: It is in the best interest of a stadium to establish its own, clear policies that can provide guidance when  scenarios of liability arise.
2. Duty of care: It is in the best interest of a stadium to go above and beyond its duty of care, which may include thorough maintenance and inspections, in order to eliminate any factors that could potentially result in liability for injuries sustained by a spectator. Other examples of a stadium’s duty of care in mitigating liability include providing clear signage on the premisses and raising awareness through different forms of advertising.
3. Adequate and trained staff: It is advisable for stadiums to employ a sufficient number of properly trained staff. This can aid crowd control as well as be used as a way to avoid liability on sight and in real time.
4. Relevant insurance policies: Stadiums should ensure they have appropriate insurance coverage to safeguard against potential liability arising from spectator injuries.
5. Indemnification provisions: Stadiums should ensure that their contractual agreements with teams or leagues regarding the use of the grounds are clearly outlined. This can help facilitate the resolution of cases or situations of potential liability and prevent any confusion or misconduct.

The above is not a closed list and its efficacy will depend on the factors and considerations mentioned. These measures are practical steps to consider when aiming to avoid liability, but cannot guarantee the complete elimination of liability.

Conclusion

Although a “fore” might be sore or cause substantial injury to a spectator, we have observed that the legal system in South Africa provides the necessary steps to obtain sufficient compensation.

Whether the courts rely on the common law principles of delict or elements contract law, it has been demonstrated that there are numerous circumstances in which liability can arise for a stadium owner resulting in them being liable for the injury or harm to a spectator. Just as a particular sport often allows for adequate defence, litigation also offers stadium owners the opportunity to present possible defences against claims for damages by spectators.

The determination of liability for stadium owners in spectator sports will differ from case to case. Much like the role of a referee in a particular sport, the courts or more specifically the judge will exercise discretion by taking into account the aforementioned factors and acting in accordance with relevant legislation (SASREA) and the Constitution to ascertain whether a stadium should be held liable for damages to a spectator.

[1] Neethling and Potgieter (2020) Law of Delict. 8th edn. LexisNexis. 3.

[2] Van Eeden v Minister of Safety and Security (176/01) [2002] ZASCA 132; [2002] 4 All SA 346 (SCA)

[3] Neethling and Potgieter (2020) Law of Delict. 8th edn. LexisNexis. 311.

[4] Safety at Sports and Recreational Events Act 2 of 2010.

[5] Ibid.

The views and thoughts expressed in this article are those of the author and don't necessarily reflect those of Javelin Sports Consulting. The information provided in this article is for general informational purposes only and should not be construed as legal advice. It is not a substitute for consulting with a qualified legal professional. The content is based on general knowledge and research up to the publication date and may not reflect the most current legal developments. No attorney-client relationship is formed by reading this article. Always seek the independent advice of a legal practitioner regarding your specific legal concerns.