Basic HTML Version
42
| TOUCHLINE
MAGAZINE.COM
risk of something occurring that cannot
be avoided by the exercise of reasonable
care’.
Arguments can be made that in a
fast moving contact sport involving
large men tackling one another quickly
and with heavy impacts, even a properly
executed tackle has a risk of catastrophic
injury. Whether such an argument is
accepted will, of course, depend upon
the factual and expert witness which is
put before the Court.
Obvious risk of a ‘dangerous recreational
activity’:
The jurisdiction in which an injury
occurs can have a critical effect on the
availability of statutory defences under
civil liability legislation. In contrast to
the Victorian Wrongs Act, section 5K
and 5L of the Civil Liability Act 2002
(NSW) exclude liability in negligence
for harm suffered as a result of the
materialisation of an obvious risk of a
dangerous recreational activity engaged
in by the plaintiff.
Rugby league is a fast moving contact
sport involving forceful tackles between
players. Although there are no cases on
point, it would probably be characterised
as a ‘dangerous recreational activity’ for
the purposes of the New South Wales
Act because it involved a significant risk
of physical harm to players, particularly
in the execution of tackles. Even though
the New South Wales legislation refers
to ‘recreational activity’, it has been
found to apply to professional sport.
The recent New South Wales Supreme
Court decision in Goode -v- Angland
(2016) NSWSC 1014 held that the
statutory defence of obvious risk of a
dangerous recreational activity applied
to professional sport, in that case, horse
racing.
Consequently, had the match taken
place in New South Wales rather than
in Melbourne the defendants would
have an additional potential defence
to the claim. Whilst not certain to
succeed, credible arguments could be
made that despite its low probability,
the risk of catastrophic spinal injury
would be obvious to a professional
rugby league player.
Conclusion:
In summary, if Alex McKinnon
does pursue a common law claim
in respect of his injuries, the claim
against the opposing player and his
club (as a matter of vicarious liability)
will have the strongest prospects of
success. There do not appear to be any
relevant statutory defences and given
the catastrophic nature of the injury,
the common law defence of voluntary
assumption of risk is unlikely to apply.
Accordingly, if the claim went to
trial the outcome would hinge upon
whether the tackle was executed
negligently. The answer to this question
will depend upon the factual and expert
evidence which emerged at trial. The
fact that the opposing player was found
guilty of a dangerous tackle is not
conclusive proof of negligence, as seen
in Dodge -v- Snell [2011] TASSC
19 in which the Tasmanian Supreme
Court noted that a finding that a
breach of a rule of the sport does not
determine the issue of negligence.
RISK MANAGEMENT
Governing bodies and federations
Although they are somewhat
removed from control of play on
the field, governing bodies and
federations retain an important role
in risk management, for example, by
identifying facets of play that bear an
unreasonable risk of injury (such as
spear tackles) and where necessary,
modifying rules or alerting referees,
clubs and coaches to the risk and
educating them in appropriate remedial
measures.
Allegations regarding the standard
of refereeing are relatively unlikely
to arise in the context of professional
sport. However, at the amateur
level there is a greater likelihood
of allegations that unsatisfactory
refereeing led to the claimant’s injury.
A system of diligent record-keeping
of the qualifications and training or
coaching provided to referees will assist
in rebutting allegations that a referee
lacked the necessary qualifications or
experience to officiate in the match in
which the injury was sustained.
Clubs:
In the context of professional sport,
liability for a player’s negligent play
causing injury can be readily established
through vicarious liability. The relative
lack of control which amateur clubs
and federations can exercise over their
players reduces the likelihood they
will be found liable for the allegedly
negligent actions of an amateur player
resulting in injury. This will not
immunise them from being named
as defendants to common law claims
and being put to the expense and
inconvenience of defending those claims.
In relation to potential allegations
that a club failed to take appropriate
steps to deal with a player who
had ‘form’ in regard to negligent or
dangerous play, defending the claim
effectively requires the club to prove
a negative – the absence of previous
negligent or dangerous conduct. A
club or federation’s ability to do this
will (subject to available resources)
depend upon diligent maintenance of
disciplinary records to provide credible
evidence that a player did not display
a propensity for negligent or careless
conduct on the field.
Ultimately, federations and clubs
need to carefully review their insurance
arrangements and policy wordings to
assess the extent to which their policies
may respond to such claims.
James McIntyre
has extensive experience
advising commercial insurers, self insurers
and the Australian Government in relation
to liability claims. James has defended a
wide range of liability claims arising from
sports including horse and greyhound racing,
mountain biking, motor sport and soccer as
well as school physical education lessons.
James has also spoken on sporting
liability issues at an international sports
law conference. In addition to his liability
experience, James has worked as an in-house
lawyer at Lloyd’s of London.
Level 19, 480 Queen Street Brisbane QLD 4000
Phone +61 7 3169 4840
jtmcintyre@hwle.com.au
www.hwlebsworth.com.au
RISK MANAGEMENT FOCUS