By Paul Adams | 8 September 2023
The Rugby League match between the Newcastle Knights and Melbourn Strom on 24 March 2014 is emerging as a key event in challenging the boundaries of negligence in the sporting field. The controversial tackle by Storm prop, Jordan McLean that injured and rendered Knights player, Alex McKinnon a quadriplegic,[6] led to McLean being charged with a dangerous throw.[7] The guilty verdict by the sport’s judiciary has raised the controversial question of whether Jordan McLean or the Melbourne Storm Club can now be tortiously liable for the incident. Since Alex McKinnon’s injury, the topic of tortious liability has been a recurring subject, both in the media and in the Courts. Recent cases of players suing their clubs have opened the door to further claims of negligence against individual players and their clubs.
Therefore, the question remains:
What duty of care does a player owe another?
Negligence law provides that if a duty of care is owed to another and that duty is breached, then legal liability for compensation will flow to those who owed the duty of care.[8] The foundational principle is the recognition of a duty of care between the injured person and a person or entity that should have foreseen the reasonable possibility of injury.[9] In NSW, there are currently statutory limitations to liability for certain persons involved in sporting activities.[10] For example, a person is not liable in negligence for harm suffered by a person engaged in a dangerous recreational activity, which includes any sport, whether or not the sport is an organised activity,[11] that poses an obvious risk.[12] Nor does a person owe a further duty of care to warn of the risks of undertaking recreational activities where an oral or written warning[13], such as a sign was made to the plaintiff.[14] According to the legislation, liability only results where the contract, which caused the injury, was an intentional interference, to which the plaintiff did not consent.[15]
Recent Australian illustrations of successful negligence actions in sport include:[16]
- An amateur golfer was held liable for failing to ensure that it was reasonably safe to strike a ball before playing at, consequently striking another golfer on the course.[17]
- Liability arose where a young rider in a motor cross event was seriously injured after falling off a jump, and failure to take sufficient measure to warn of this contributed to the rider being struck by another motorcyclist.[18]
On the other hand, High Court authority, Agar v Hyde[19] held that a duty of care in sports does not necessarily extend to bodies that make the rules for the sport. The risk of sustaining a spinal injury during a scrum while playing in the position of hooker in a rugby match was considered to be an inherent risk no matter how unfortunate the consequences may be.[20] The question was whether a duty of care was owed by a rugby union rule making body to the players. Chief Justice Gleeson held that:
‘Undertaking the function of participating in a process of making and altering the rules according to which adult people, for their own enjoyment, may choose to engage in a hazardous sporting contest, does not, of itself, carry with it potential legal liability for injury sustained in such a contest.’[21]
In 2005, the decision of Hulme J in McCracken v Melbourne Storm
Rugby League Football Club[22]
arguably reversed the common law position to allow a club to be vicariously
liable. Hulme J considered s.3B of the Civil Liability Act 2002 (NSW) that
requires the injury must be ‘intentional and done with intent to cause
injury’ for a player to be liable.[23]
The case involved a Rugby League Football player of Wests Tigers Rugby League
Club and two players from Melbourne Storm Rugby League Club. During the course
of the game, McCracken who was carrying the ball, was tackled by the Melbourne
Storm players and injured as his head struck the ground. It was contended that
in the tackle, the Melbourne Storm players lifted McCracken to a dangerous
position, causing him to fall head first to the ground. Hulm J concluded that
McCracken was entitled to sue Melbourne Storm Rugby League Club as the team
employed the Melbourne Storm players and it was concluded that the two players
ad intentionally caused injury to McCracken.[24]
The outcome in the McCracken case arguably has serious ramifications
across Australia for participants in all professional contact sports.
Interestingly, since the 2005 decision there have been further players
of professional Australian sports attempting to sue their own clubs or
organisations to date. Furthermore, there is potentially a controversial issue
brewing for NRL players, as they remain the only Australian athletes uninsured
for permanent disability.[25]
A further blow to the NRL comes from the changes to Medicare policy that
requires clubs and sports groups to bear the full costs of operations and other
medical procedures that would previously have at least been partly covered by
Medicare.[26]
[1]. Mark Doepel and Sarah Love, ‘Where to strike the
balance – appropriate damages and unfortunate sports related injuries’ (2013)
10(3) CL 46.
[2]. Woods v Multi-Sport Holdings Pty Ltd (2002)
208 CLR 460; Rootes v Shelton (1967) 116 CLR 383.
[3]. Athony Podosky, ‘Civil and Criminal Liability of
Players’ (Working Paper No 39, Australian Sports Management, 27 January 1994)
1.
[4]. Australian Institute of Health & Welfare
Canberra, Australia’s medical indemnity claims 2010-2011, (2012) 27.
[5]. Dean Laing, ‘Liability of Contact Sports
Participants’ (1993) 66 Wisconsin Lawyer 12, 12.
[6]. Barry Toohey, ‘Newcastle Knights Alex McKinnon has
reportedly been diagnosed as a quadriplegic’ Sydney Morning Herald
(Sydney) 1 April 2014.
[7]. The punishment for a dangerous throw varies
depending upon the discretion of the judiciary panel and whether the individual
has any previous charges.
[8]. Civil Liability Act 2002 (NSW) s.5B.
[9]. Ibid.
[10]. Civil Liability Act 2002 (NSW); Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW); Sporting Injuries Insurance Act 1978 (NSW).
[11]. Rockdale City Council [2004] NSWLEC 592 (27
September 2004).
[12]. Above n8 at s.5L.
[13]. Action Paintball Games Pty Ltd (in liquidation)
v Barker [2013] NSWCA 128 (13 May 2013) Where the NSW Court of Appeal found
that a general warning given by Action paintball that there were a lot of
sticks and obstacles in the way and to not run at full speed was a sufficient
warning of the risk to engage s.5M of the CLA (NSW) and the plaintiff could not
recover damages.
[14]. Above n8 at s.5M(1)-s.5M(4).
[15]. Rootes v Shelton (1967) 116 CLR 383; Woods
v Multi-Sport Pty Ltd (2002) 208 CLR 460; Flavo v Australian Oztag
Sports Association & Anor (2006) Aus Torts Reports 81-83. This has been
the consequence of legislative reform seeking to provide more protection to
operators of those recreational and adventure businesses.
[16]. Campbell v Hay [202124] NSWCA 129 (16 April
2014).
[17]. Deborah Healey. ‘Protecting Participants: Whose
Responsibility? [1997] Sports Injuries: Legal and Risk management Issues in
Professional Sport – Seminar Paper 2.
[18]. Macarthur Districts Moto Cycle Sportsmen In v
Ardizzone 41 MVR 235.
[19]. (2000) 201 CLR 552.
[20]. Agar v Hyde (2000) 201 CLR 552, 11
[21]. Ibid at 23.
[22]. (2007) NSWCA 353.
[23]. Above n8 at s3B.
[24]. Above n20 at 44
[25]. This can be compared to an Australian rugby star
who would receive $1.5 million under the super 15 Rugby insurance scheme.
[26]. John Stensholt and Samantha Lane, ‘Supplement
scandal: Change to Medicare Policy could cost millions’ The Age (Sydney)
11 July 2014.