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Through Legal Eyes
HOC140
Tickets available at www.ticketmaster.com.au
ABN AMRO HOckey
cHAMpiONs TROpHy
MeN
|
2009
28 Nov–6 Dec, Melbourne
|
State Netball Hockey Centre
Australia | England | Germany | Korea | Netherlands | Spain
After reviewing the findings of fact in the criminal proceeding, it
does not appear that the actions of the coaches, teams or referee
would warrant a finding of civil liability. It is unlikely, based on
the events leading up to the eventual spear-tackle, that the
defendant’s actions were reasonably foreseeable by the potential
parties in a civil action: the school board, team, coaching staff
and referee. With respect to the liability of the coaching staff of
the defendant, there does not appear to be any evidence of pre-
meditation nor any intention to instruct their players to injure the
deceased. Accordingly, a finding of vicarious liability on behalf of
the school board is highly unlikely. Though the court found that
the defendant stood out from the other players as a result of his
skill and aggressive behaviour both in play and words (including
protesting various calls by the referee), his eventual conduct was
likely not reasonably foreseeable based on his prior actions. It
would, therefore, be unlikely that the referee will face any civil
penalty for allowing the play to escalate to the degree that it
In both the Canadian case of
Moore v. Bertuzzi
[2008] O.J. No.
347 and the English case of
Gravil v. Carroll
[2008] EWCA Civ
689, courts have recognised that the acts of a player, during
a game, may attach liability to both teams and coaches if a
player commits a tort in a manner that is so closely connected
with their employment that it can be said to be authorised or
encouraged by the team and/or coach.
UK Perspective
The UK draws the line
between competition
and assault
F
19
In contact sport, where to draw the line
between fearless competitiveness and needless aggression
tantamount to assault is an issue of international interest.
Keeping with the theme of rugby, we recently saw Schalk
Burger cleared at a disciplinary hearing of allegedly gouging
Luke Fitzgerald’s eye during the Lions tour of South Africa.
Had he been found guilty, would that have given Fitzgerald
grounds to press charges?
In
Andrew Gravil v (1) Richard Carroll (2) Redruth Rugby
Football Club
[2008] EWCA Civ 689, a rugby club was found
to be vicariously liable for a
tortious assault
by one of its
rugby players, where the victim had been punched in the
face during a melée on the pitch. In that case, there was a
specific clause in the contract between the Defendant and
the rugby club which expressly stated that the Defendant
should not physically assault an opponent, and that the club
might be vicariously liable for the player’s acts during his
employment. The Defendant was held liable for assault, and
the club had to pay the victim an award in damages.
Similarly, in
R v Mark David Moss (1999)
, the Defendant was
sentenced to eight months’ imprisonment for grievous bodily
harm after punching the victim in the face following a “ruck”
in a rugby match. The judge acknowledged that rugby is a
contact sport, but stated that that cannot be construed as
a licence for “thuggery”. The Defendant was found to have
committed an “off-the-ball” offence so serious that only a
custodial sentence could be justified.
It seems that the Courts, both in the UK and internationally,
are prepared to reprimand excessive and unnecessary
force in competitive sport. It stands to reason that the
umbrella of “sport” should not exist a shield to criminally
aggressive behaviour, and Justice Duncan must be right that
“the laws of the land apply [to sport] in the same way as
they do elsewhere”. However, the danger is that genuine
competitiveness (which always carries an inherent risk of
injury in contact sports) might be confused with a criminal
act of violence. Could we find ourselves in a situation
did. The actions of the defendant seem to have escalated to a
degree that no one could have predicted. However, individuals,
teams, schools, referees, players and organizations must always
take the necessary precautions to protect against such risk as the
sports field has found its way in to the civil liability arena on many
occasions.
Graeme Mew (
gmew@npm.ca
) and Morgan Martin
are lawyers with Nicholl Paskell-Mede LLP in Toronto.
In
Smolden v Whitworth and Nolan
[1997] PIQR P133, a
referee of a rugby match was found liable for allowing the
scrum to collapse approximately 25 times before a player
suffered a catastrophic injury. The court, in assessing the duty
of a referee, divided the rules into those which are there for
the proper running of the game and those that contained an
element of safety for participant – only a failure to apply the
latter could result in liability.
