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legal focus
38 | Touchline issue 23 | April 2016
W
hile sporting rules and safety protocols continue
to improve every year, it is still widely accepted
that injuries are a part of the game, particularly
in contact sports. It is rare to watch a football
game and not see a player subbed off the field
due to an injury. Injuries in sport are common
but thankfully damages claims are not and court decisions
on this area of law are few and far between. This article
looks at some of the key principles protecting players of
contact sport from an ever more litigious society.
VOLUNTARY ASSUMPTION OF RISK
In contact sport scenarios, where a player has suffered
catastrophic injuries, voluntary assumption of risk ("VAR") is
the defence of choice. VAR (or in Latin volenti non fit injuria)
provides a complete defence to a negligence action. At
common law, participation in an activity which involves the
risk of physical contact invokes an implied acceptance of the
consequent possibility of injury, where the activity is within
the reasonably accepted bounds of the game. Even where the
contact breaches the rules of the game, the infringer may still
be relieved of liability. We all know penalties are an ordinary
part of a close game where pushing the rules to their limits can
add a competitive advantage. No player expects infringement
free play from the opposition. Referees would be out of a job.
However there are limits and participants in contact sport still
owe a limited duty of care for the safety of other players.
VAR IN THE COURTS
In order for VAR to succeed as a complete defence, the court
must be satisfied that the person who suffered the injury
consented to the eventuation of risk of injury which did, in fact,
occur. As a starting point for considering this, the court will
look at the rules of the specific sport. Fox, J discussed this in
McNamara v Duncan,
4
where an AFL player was intentionally
punched in the face, Fox J said: 'forcible body contact is of
course part of Australian Rules Football, as it is with some other
codes of football, but such contact finds justification in the rules
and usages of the game.’ Hence, an intentional punch is quite
clearly outside the rules of the game.
In the English case of Condon v Bassi,
5
the plaintiff successfully
sued in negligence when he suffered a broken leg caused by
the defendant’s tackle in a soccer game. In this case the referee
gave evidence and the tackle constituted serious foul play and
was outside the rules of the game. However the rules of the
game are not conclusive in determining the accepted level of
risk. The courts also considers what the plaintiff assumed the
risks of playing or participating in the sports were as well as
other factors such as the players’ level of skill and experience.
As well as considering the nature of the particular sport and the
plaintiff’s assumption of risk, the courts have also emphasised
public policy considerations in deciding cases regarding
negligence in sport. In the High Court case of Agar v Hyde,
7
Gleeson CJ noted that:
‘People who pursue recreational activities regarded as sports
often do so in hazardous circumstances; the element of danger
may add to the enjoyment of the activity. Accepting risk,
sometimes to a high degree, is part of many sports. A great deal
of public and private effort, and funding, is devoted to providing
facilities for people to engage in individual or team sport. This
reflects a view, not merely of the importance of individual
autonomy, but also of the public benefit of sport. Sporting
activities of a kind that sometimes result in physical injury are
not only permitted; they are encouraged.’
In the well-known Australian case of McCracken v Melbourne
Storm,
9
Jarrod McCracken suffered a spinal injury after being
spear tackled by two players. McCracken sued their employer,
the Melbourne Storm, alleging the tackle was in serious breach
of the law of the game. McCraken was successful in the action
and the court held the Melbourne Storm club vicariously liable
for the conduct of its two players. In doing so, the court rejected
CONTACT SPORTS
AND VOLUNTARY ASSUMPTION OF RISK
" YOU CAN ' T MAKE AN OME L ETTE
WI THOUT BREAK I NG SOME EGGS "