The question of who has duty of care, and therefore who is at fault, is the main issue with negligence leading to a sports injury.
In sports, the duty owed to and between participants, spectators, coaches, sports administrators and occupiers must be considered. There is also the concept that someone who chooses to play a sport understand that they are taking a risk. In some cases, the risk is inherent and obvious.
To understand the legal consequences of negligence and sports, we will look at a few football examples.
In the case of Agar v Hyde; Agar v Worsley (2000) 201 CLR 552 two young men who had been severely injured in scrums argued that the International Rugby Football Board owed them a duty of care to monitor rules of the game and to change them to reduce “unnecessary risk” to players. The High Court rejected this because of the problem of determining what unnecessary risk was in a game which necessitated risk, and because the IRFB had no control over what the rules would be used in any particular game on the ground, as it was a decision for local sporting associations. As well, the court emphasised that “If the laws of the game define the conduct to which an adult participant consents, the law-makers should not be liable because they could have made the activity that the participant chose to undertake less dangerous. The absurdity of this proposition is highlighted by the fact that, in many activities, the danger is part of the activity’s attraction. The participant may therefore not have chosen to engage in the activity at all if it was less dangerous.” The judges in this case thought that the risk of playing rugby was obvious.
Similarly, in McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107, it was argued that where the defendants raised the plaintiff to a dangerous position in a rugby league match and caused him to fall head first to the ground, he could only directly sue the players and not the NRL institution.
More recently, in March 2014, National Rugby League player, Alex McKinnon was left in a wheelchair after an on-field tackle in a round three game against Melbourne Storm at AAMI Park. In 2015, he expressed a desire to sue the club and his Melbourne Storm opponent. He received $1.2 million from fund-raising efforts by the Knights after it became apparent the second rower would not be able to play again due to neck and spinal damage from a tackle.
McKinnon hinted at legal action by stating, “If you do something illegal while driving a car and render somebody for the rest of their life in a wheelchair, you pay the consequences.”
To this date, the NRL has never been sued, although players have sued other players over injuries deemed to have resulted from illegal play. These cases have focused on legal concepts such as duty of care, voluntary assumption and vicarious liability. In light of this, often it is the opposing player, rather than an institution, who is at fault for an athlete's injury.
If you have questions regarding a sporting injury, contact Nathanael Coles at ncoles@franklaw.com.au or by calling (02) 9688 6023.
This is not legal advice.
Photo by Olga Guryanova on Unsplash
