Welcome to the December 2015 edition of the Personal injury and fatal accident brief.
Standard of Care in Sports Accidents
Kennedys acted for the Defendant in this case involving an alleged minor injury arising from a pool volleyball game between friends on holiday - Ma Yong Mei v Cheng Muk Lam DCPI 631/2012 (December 2015).
At the material time, the Plaintiff and the Defendant were in Malaysia playing water volleyball for fun and leisure. The Plaintiff alleged that the Defendant’s hand inadvertently hit her right eye when he extended his hand over the net, while spiking the ball. She claimed nearly $900,000 in loss and damage.
The Defendant disputed that his hand made contact with her eye. His position was that both parties had been striking and blocking the ball for a while and the Plaintiff was standing quite close to the net. Just before the incident, the ball came near him and he jumped and reached to hit the ball, which was all part and parcel of the game. It was a natural and instinctive reaction to the ball coming close to him. He had no intention and could not reasonably have known that his actions might cause injury to the Plaintiff.
The Court found for the Defendant. On the facts, the Court said the Defendant’s hand could not have possibly made contact with her eye and that it was the volleyball which hit her, not the Defendant’s hand. The Court also disagreed that there was any liability attached to the Defendant. It reiterated that the standard of care in a sporting context is different than a non-sporting context. To establish liability, one would have to prove recklessness, as opposed to mere negligence.
There should not be any liability for errors of judgment, oversights or lapses, as there is always an inherent risk of injury in sports. By willingly taking part in the game, the Plaintiff impliedly consented to any contact which could reasonably be expected to occur in the course of a vigorous sport. Jumping to reach a ball and attempting to hit the ball over the net is normal and reasonable and it is part and parcel of the game of water volleyball. The Defendant was not acting recklessly when he spiked the ball, which inadvertently hit the Plaintiff’s eye. At most, it was an error of judgment or lapse of skill on his part but he was not reckless.
Although the Judgment did not introduce any new law, it helped to clarify the position in Hong Kong where there has been very few cases on sporting injuries. However, we note that sports injury claims are on the rise and this Judgment shows that courts are prepared to take a robust view and not always award in favour of claimants, just because they have been injured.