Two recent NSW decisions further clarify the liability of sporting bodies and participants for injuries sustained in the course of play.
McCracken v Melbourne Storm Rugby League FC & Ors  NSWCA 353
Jarrod McCracken, a high profile rugby league player, had his career cut short on 12 May 2000 as a result of injuries sustained in a 'spear tackle' whilst playing for Wests Tigers against the Melbourne Storm (the Storm).
According to the evidence, Stephen Kearney and Marcus Bai, both Storm players (and employees) were responsible for the spear tackle, which involved lifting McCracken's legs off the ground, raising him into the air, turning him around so that his head was below his legs and dropping him head first onto the ground. This resulted in McCracken suffering serious neck injuries, which prevented him from playing rugby league ever again. At the time of the injury, the rules of rugby league prohibited spear tackles from being carried out.
McCracken filed proceedings in the NSW Supreme Court against Kearney, Bai and the Storm, alleging that the tackle was carried out in a negligent fashion. He further claimed that Storm, as the employer of Kearney and Bai, was vicariously liable.
Justice Hulme found in favour of McCracken and held that McCracken's injuries were caused by the negligent tackle. His Honour awarded $90,000 in general damages and $1,000 for future out of pocket expenses. His Honour rejected McCracken's claim for loss of earning capacity.
McCracken appealed Justice Hulme's findings in relation to loss of earning capacity for loss incurred prior to the trial. The defendants cross appealed, maintaining that the tackle was not carried out negligently. It is convenient to first deal with the cross appeal given this raises issues of liability.
At trial and at the appeal, the defendants maintained that Kearney and Bai approached McCracken from opposite sides and, although each tackled him virtually simultaneously, each was not aware of the other, each acted in accordance with the laws of the game and what occurred was an unfortunate accident.
In dismissing the cross appeal, reference was made to the evidence of an expert, Warren Ryan, who testified that in executing the tackle, the Storm players 'used unreasonably dangerous methods which would be regarded by virtually all NRL coaches, NRL judiciary and any experienced observers of the game as unreasonably dangerous and which the players...could and should have avoided'.
Reference was also made to the fact that Kearney and Bai were both charged by the Australian Rugby League (ARL) for the incident and pleaded guilty to 'making a dangerous throw and effecting the tackle'.
While noting that the expert evidence and guilty pleas were relevant, the Court of Appeal (Ipp JA, with Beazley JA and Basten JA agreeing), held that 'in the end, the issue of liability must be determined largely by this Court's impression of what the video recording reveals'. On this front, the Court had little difficulty in finding that the 'tackle constituted a gross infringement of the laws of the game and there was no modicum of care in the actions of Kearney and Bai'.
In an interesting aside, the Court commented on the way in which the case was pleaded having regard to tort law reform provisions which purport to limit entitlement to damages except in the case of an intentional act (as opposed to negligence). Ultimately, nothing turned on this issue for underlying factual reasons. However, in a warning to prospective litigants, the Court made reference to the joint judgment of Gummow and Hayne JJ in NSW v Lepore  HCA 4:
'...Negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence...'
In dismissing McCracken's appeal in relation to damages for loss of earning capacity, the Court of Appeal adopted Justice Hulme's findings that McCracken earned far more through his business ventures following the injury than he would have had he not been injured.
Green v Country Rugby Football League of NSW  NSWSC 26
On 7 May 2004, Green, a 16 year old school boy, suffered devastating spinal injuries (tetraplegia) in a 'scrum' while playing in the position of 'hooker' for the Laurieton Reserves against the Old Bar Pirates team, in a game administered by Country Rugby Football.
Green issued proceedings against a number of parties in the NSW Supreme Court, including his coach, the referee of the game in question and his Club. The proceedings against all defendants other than the Country Rugby Football League (CRFL) were either settled or abandoned before and during the first week of trial. CRFL was left to defend the case on its own.
Following is a summary of Green's allegations against CRFL:
- Given his young age, slight build, low weight and long thin neck, CRFL should have ensured that Green was not selected to play in the position of hooker particularly as Green was playing in an open age category where he was opposite players who were much larger and stronger than himself.
- CRFL had sole responsibility for organising and controlling rugby league in country NSW and by exercising powers it had to regulate the game, CRFL should have insisted that its constituent bodies, such as the club Green played for, not permit players with Green's physical characteristics to play in the position of hooker.
- CRFL should have used its rule making powers to change the way scrums are conducted, with less physical contact ('depowering').
- The Club's knowledge of Green's physical characteristics was also CRFL's knowledge, through principles of agency law.
- CRFL should have warned and or advised Green of the risks involved in playing in the front row for people with his physical characteristics.
- CRFL should have advised Green to carry out neck strengthening exercises, which would have reduced his chances of suffering injury.
CRFL denied it owed Green a duty of care, noting that it did not even know of his existence. Further, it contended that in the rugby league structure, its roles were limited to the following:
- Acting as a conduit for the expression of concerns between its constituent members and the NSW Rugby League (NSWRL) and ARL.
- Acting as a conduit for information to clubs in the country from NSWRL and ARL.
- Permitting country clubs to form geographically based groups for the conduct of games and inter-club competitions.
In addition, CRFL raised, among others, the following defences at trial:
- Any rule it made restricting players of certain physical attributes from playing in the front row would not be enforceable.
- It did not have sufficient resources to enforce such a rule. There were no existing standards in any case which could be used to determine the suitability of a player.
- Green was under no obligation to play the game. He consented to participating in a game in which physical force would be used. In this regard, rugby league is renowned for its risks of serious injury.
- Green's own expert specialist rehabilitation physician, Professor Yeo, was of the view that Green's physique made him suitable to play in the front row, including in open age games.
- If any breach was found, Green voluntarily assumed the risk of serious spinal injury.
Justice Walmsley found that CRFL did know of Green (through player registration forms and the like) but that it had no knowledge of Green's physical characteristics. While the Club had an agency to receive and pass player registration forms to CRFL, 'the agency's scope did not extend beyond that to imputed knowledge of any of the plaintiff's bodily characteristics'.
Duty of care
On the duty of care issue, Justice Walmsley first dismissed the claim that CRFL owed Green a non-delegable duty of care. In this regard, he noted that the relationship between Green and CRFL could not satisfy the criteria set out in Kondis v State Transport Authority (1984) 154 CLR 672 (see also Leichhardt Municipal Council v Montgomery  HCA 6).
As to whether CRFL owed a general duty of care to Green, Justice Walmsley found that such a duty did exist. He made reference to the following evidence:
- CRFL was ultimately responsible for administering the sport in country NSW.
- CRFL had power to disallow groups and clubs from amending their bylaws.
- CRFL arranged insurance for all players.
- CRFL was responsible for training coaches and, further, was aware that some coaches had not undertaken training courses.
- CRFL knew that a number of players playing in open age competitions were under the age of 18.
- CRFL knew that front row players with slight physiques and long, thin necks were playing in the front row.
Justice Walmsley also noted that for a duty of care to exist, a defendant need not know of the plaintiff's existence.
Having found that CRFL did owe Green a duty of care, Justice Walmsley went on to consider whether Green's injuries were caused by a breach of that duty. He did so by analysing Green's allegations of negligence and ultimately decided that CRFL had not breached its duty for the following reasons:
- If it had chosen to, CRFL could have made rules to enhance the safety of young players. This included rules for the 'depowering' of scrums. However, depowering had occurred gradually between the late 1980s and 1996 (when depowering was finally introduced) without rule changes. Further, CRFL would have had some difficulties (including financial) with NSWRL if it had introduced the rule change unilaterally. Finally, reference was made to the difficulties in formulating rule changes in the context of an admittedly dangerous activity, and in particular, where the line should be drawn (see Agar v Hyde (2001) 201 CLR 552).
- CRFL's omission to insist on medical examinations to determine the suitability of a player to play in the front row did not amount to a breach of duty. There was no evidence of any other organisation involved with the game insisting on such examinations and the implementation of such a regime would 'come at some expense'. There would also be difficulties when it came to assessing people with borderline physiques.
- CRFL's system in place at the time for warning players about the risks of neck injuries (relying on the coaching system, development officers and management committee systems) was appropriate having regard to CRFL's financial constraints.
- It was appropriate for CRFL to leave decisions regarding which player was to play in a certain position to the clubs and coaches.
- There was no obligation on CRFL to warn players or parents about the risk of spinal injuries to players with Green's physique. In any event, His Honour formed the view that Green would still have played even if such a warning had been given.
- There was no requirement on CRFL to ensure that all coaches had attended accreditation courses. Once again, lack of resources was raised in favour of the defendant.
Given Green failed to establish breach against CRFL, there was no need for Justice Walmsley to consider CRFL's voluntary assumption of risk defence.
While very little was said directly in his judgment, Justice Walmsley may have ruled in favour of Green if some of the other defendants, such as his club and coach, had been the subject of a verdict.
Green highlights difficulties faced by injured plaintiffs who issue proceedings against sporting bodies for failure to implement or amend particular rules that would or may have resulted in a safer playing situation. As noted by Gaudron, McHugh, Gummow and Hayne JJ in Agar:
'[W]hy should the law-makers be liable when the player who inflicted the injury is not? 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.'
On the other hand, McCracken highlights the difficulty in defending sporting participants who have acted negligently and in obvious breach of the sporting body's rules. Given many matches, both amateur and professional, are now taped, video recordings will no doubt prove more popular in the courtroom in assisting a judge or jury in determining whether a player's conduct amounts to negligence.
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