By Andy Gibson / June 2020
The Think Tank 5 session on Tuesday 9th June, organised by Play by the Rules, was on the topic of “How do we ensure the safe return to sport and mitigate the risk, using the Sport Australia Return to Sport Toolkit”. It was both interesting and informative for all who attended. Sport Australia’s Return to Sport Toolkit is a proactive response to a difficult and complex problem for sports administrators planning a safer return to sport.
One of the questions that arose out of the Forum was the issue of recruiting volunteer COVID-19 Safety Coordinators. As sports administrators are more than well aware, clubs and associations are already finding it difficult to recruit volunteers at the best of times. But in the case of COVID-19 Safety Coordinators, a lot of potential volunteers are not prepared to offer their services because of the complexity of the role and which in turn brings with it perceived potential legal liability issues.
There is no doubt that the duties of COVID-19 Safety Coordinators are both important and onerous. They are the main contact for all matters related to COVID-19 for their club or association including overseeing the development and implementation of the safe return of their club or association to the sporting arena. They have the responsibility of completing the Return to Sport Checklist and Return to Sport Safety Plan and Checklist, and that they meet all the necessary legal requirements.
Can you protect a COVID Safety Coordinator from Liability?
It is understandable that given the role and the responsibilities of a COVID-19 Safety Coordinator that a volunteer would be nervous. The position appears to be full of potential legal pitfalls and that only a lawyer should consider the position. But is that really the case? Is the COVID-19 Safety Coordinator going to be the ‘fall guy’ and exposed to potential legal liability if something goes wrong?
The short answer to the question of legal liability insofar as a COVID-19 Safety Coordinator is concerned is probably ‘no’. It is impossible to say never but the person who takes on the role is a committee member or a volunteer from the general membership, is highly unlikely to attract personal legal liability while carrying out the task of COVID-19 Safety Coordinator. Note the wording though here. The Coordinator may not be personally liable (unless gross negligence can be established) but the club or association may be. Why I hear people say?
Why the type of Structure of the Club or Association is Important
To minimise risk of personal liability depends to some extent on the type of structure of the club or association. Is it an unincorporated or incorporated body? If it is unincorporated, it has no existence apart from its members and is the one with the most risks, particularly for the committee members. In this case, insurance becomes an important consideration and the Coordinator should check whether the club has insurance coverage and ask what it covers. Does it extend to cover the activities of a COVID-19 Safety Coordinator?
If the club or association is an incorporated body under either Associations Incorporation legislation of the relevant state or territory or a company incorporated under the Corporations Act, then it becomes a different ball game to the unincorporated body. Now the club or association is an independent body to its members and it has its own identity or legal personality.
An advantage of incorporation is protection from liabilities. In other words, liabilities are usually only enforceable against the club and not the members or the committee members personally. If the COVID-19 Safety Coordinator is already a committee member, then assuming that they act with due care and diligence in carrying out their duties as a Coordinator (that is, with the degree of care and diligence that a reasonable person might be expected to show in the role), then they will be protected from litigation. The courts have consistently shown a reluctance to interfere with bona fide decisions.
If it is not possible to find a committee member who wants to take on position of a COVID-19 Safety Coordinator, then the committee is going to have to find a person who is appropriately skilled to take on the role. A committee needs to be careful here to only select a person who can carry out the role or they find themselves with a problem if things go wrong because they did not exercise due care and diligence.
Options for Incorporated Bodies
To allay a volunteer’s concerns about exposure to potential litigation should things go wrong (short of gross negligence), and depending on the club or association’s constitution, there are at least three options for the committee. First, co-opt the volunteer on to the committee as the COVID-19 Safety Coordinator. They can then take advantage of the protection offered to committee members under relevant incorporation legislation.
The second option is for the Committee to establish a safety sub-Committee and appoint the volunteer to chair that Committee. This gives the Coordinator a little more flexibility in administering the position if the club or association is large and requires the efforts of more than one person.
The third option is to take out insurance. Most clubs and association have insurance and it is then a case of seeing what they cover and extending that coverage if necessary to include the Safety Coordinator.
In Summary
There are options available to protect the COVID-19 Safety Coordinator from being personally sued. A Committee needs to be familiar with what their Constitution allows them to do and they must act in accordance with that. But it also needs to be remembered that it may still be possible for a Coordinator who acts in bad faith or is grossly negligent to be personally liable (and possibly make committee members liable as well. Hence the reason why care needs to be exercised in the selection of the person who is to be a COVID-19 Safety Officer.
Andy Gibson
ANZSLA Life Member and Academic
Southern Cross University
