In sports violence legal cases, we still don't know what's 'normal'

The issue of liability for professional sports injuries could soon face a fresh test following the decision by former National Rugby League (NRL) player Alex McKinnon to consider legal action.

McKinnon, left in a wheelchair after an on-field tackle last year, is reportedly considering seeking damages against both the club his opponent played for (Melbourne Storm) and the NRL.

In 1993, a sports injury case involving rugby league side Canterbury-Bankstown extended liability to include the offending player’s club:

… if the employee does in an illegitimate way what he was employed to do in a legitimate way.

In such cases, the club is vicariously liable. The law treats the player as an extension of the club, rather than a rogue agent. This often makes it easier for the victim to recover damages. This creates an incentive for clubs to better train and advise players to avoid future cases.

Actions in vicarious liability can be applied only when the professional athlete’s actions were within the course of their employment. For cases of negligent sporting violence, “on-field” actions in an authorised game are generally within the course of employment. However, the question of what constitutes negligence on the field is still determined individually as cases come before the courts.

Beyond the ‘norm’

Errors of judgement and mistakes in the moment are recognised as inevitable in professional sport. Only behaviour that goes beyond rules of the game and the “norm” – the playing culture – will be negligent. In 1985, a rally car driver driving the wrong way in a race was considered a common enough mistake in the sport not to amount to negligence.

Despite acknowledging that the circumstances of contact sport demand a higher standard in negligence, courts have left defining where the standard of care lies to be determined on a case-by-case basis. We can gain a limited indication of where to draw this line from the cases that have been decided to date in Australia.

In addition, injured players also need to overcome the defence that they:

1. knew of the danger;

2. fully appreciated the risk of injury; and

3. voluntarily agreed to accept the risk.

But what constitutes a “voluntary” assumption of risk is largely unsettled.

For rugby league, parallels have been drawn with Jarrod McCracken’s 2005 case against the Melbourne Storm. McCracken’s case became the first player violence matter to successfully overcome the cap on damages put in place by the Civil Liability Act.

The act limits the amount of money that can be sought for a negligence claim, but does not apply to acts intended to cause injury. This hurdle has encouraged increasing focus on the intention of the player. In McCracken’s case, players Stephen Kearney and Marcus Bai, intending to injure him through a spear tackle, were also liable to pay damages along with the club and the NRL.

McCracken was able to prove “that what occurred was [not] a normal incident of the game of rugby league” by showing, among other things:

… that it is not necessary in preventing the forward movement of a player to deal with him as [McCracken] was dealt with.

Another unique case

In McKinnon’s situation, the NRL’s punishment of Jordan McLean – for what it ruled a dangerous throw – will be important in judging just how “normal” the tackle was within the playing culture.

To move outside the Civil Liability Act, a consideration of all the facts – such as the speed of events – will be used to determine if an intention to cause injury existed.

The unique facts of McKinnon’s case, and lack of legal precedent, will make any decision to pursue legal action difficult to call. If it is litigated, the approach to standard of care, intention and risk may allow McKinnon’s situation to influence both future cases of sport violence and actions by clubs and players to protect professional sportspeople against injury.

Kyle Rowston-Wolcott, who is writing his honours thesis in sports law at the University of Sydney, and postgraduate business law student Ryan Hunter contributed to this article.

Giuseppe Carabetta does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.