oa Comparative and International Law Journal of Southern Africa - The ambit of the consent defence in sport injury litigation: the American judicial attitude
The American judicial approach to resolving sport injury litigation is as contentious as it is unstandardised. In general a case by case approach is adopted with extensive use, though not so clear application, being made of assumption principles. No doubt this approach is commendable where the peculiarity of the sport demands it. It is however undesirable where it becomes the rule rather than the exception since inter alia it retards the crystallisation of a uniform set of principles. It is an open question whether injury-causing conduct in sport should be evaluated in terms of the objective reasonable man test and not in terms of sports industry standards and customs. Still it is possible that the former test would reduce gratuitous violence in sport. It is also possible that the application of traditional delictual principles would allow the plaintiff participant compensation that the law of delict promises him as a member of society. In any event, the article argues that the present American legal position is far from satisfactory.
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