McNamara v Duncan (1971) H&FLR 2014-5

McNamara v Duncan (1971) H&FLR 2014-5

Supreme Court of the Australian Capital Territory

6 April 1971

Coram: Fox J

Appearing for the Plaintiff: J.B. Norris (Instructed by Gallen, Guild & Johnston)
Appearing for the Defendant: I.A. Curlewis (Instructed by Davies, Bailey & Cater)

Catchwords: Australian Capital Territory – Australian Rules football – striking in the course of tackle – against the rules – consent

Facts: The parties were playing on opposing teams in an Australian rules football match on 15 September 1968. The court found that the defendant deliberately struck the plaintiff in the course of tackling him, causing a significant head injury. It was common ground that intentionally striking the head of a player was against the rules, and that it would normally result in a free kick to the opposing team and the offending player being reported.

The defendant raised a defence of consent (volenti non fit injuria).

Held: upholding the plaintiff’s claim, that it could not reasonably be said that the plaintiff consented to the physical contact which was deliberate and against the rules. Although intentional forcible contact causing ‘sensible hurt’ was part of this code of football, it found justification in the rules and usages of the game. Acts done solely or chiefly with the aim of causing harm, however, were not justified by the rules.

Judgment

Judgment reported at 26 ALR 584 (interestingly, the report in the Australian Law Reports was prepared by Susan Crennan – then of counsel – who was in 2005 appointed to the High Court of Australia).

Sibley v Milutinovic (1990) H&FLR 2014-4

Sibley v Milutinovic (1990) H&FLR 2014-4

Supreme Court of the Australian Capital Territory

9 February 1990

Coram: Miles CJ

Appearing for the Plaintiff: Mr Lunney (Instructed by Macphillimy Cummins & Gibson)
Appearing for the Defendant: Self-represented

Catchwords: Australian Capital Territory – soccer – non-competitive match – tackle – punch – consent – rules.

Facts: The parties were members of two soccer teams which held a friendly training match on 27 May 1987. The match was unrefereed. Two incidents took place between the parties. In the first incident the plaintiff undertook a “low sliding tackle” which caused both men to fall over. The defendant abused the plaintiff and told him to watch out. In the second incident the plaintiff performed another slide tackle on the defendant, who again fell. The defendant got up and punched the plaintiff breaking his jaw. The defendant received a kick to the ankle in the tackle and for which he made a cross-claim. Both parties pleaded a defence of voluntary assumption of risk.

There was no evidence as to the rules of soccer. The court relied on judicial knowledge to find that while soccer involved some inevitable physical contact between players, the intentional use of force by one player against another was outside the rules where the force was likely to cause injury.

Held: Upholding both claims –

(1) The defence of voluntary assumption of risk is not appropriate to an action for assault. The court worked on the assumption that the parties had actually intended to raise a defence of consent.

(2) The blow to the plaintiff’s jaw was outside the rules and outside the scope of the plaintiff’s consent to some physical contact during the game. Hence, the plaintiff’s claim succeeded.

(3) Because the match was non-competitive, “the extent to which players were entitled to adopt tactics likely to result in physical injury to an opposiiung player is … to be distinguished from conduct justifiable during a competition match”.

(4) The court was not satisfied that the plaintiff’s slide tackles were within the rules that the parties had expected to be observed. Because the plaintiff had not proved that the defendant consented to the sliding tackle, the cross-action succeeded.

Judgment

The Court’s judgment is available here.

Smith v Emerson (1986) H&FLR 2014-3

Smith v Emerson (1986) H&FLR 2014-3

Supreme Court of the Australian Capital Territory

23 May 1986

Coram: Miles CJ

Appearing for the Plaintiff: Not recorded
Appearing for the Defendant: Not recorded

Catchwords: Australian Capital Territory – Australian Rules football – deliberate punch – contact sports – consent – aggravated or exemplary damages.

Facts: The plaintiff and defendant were involved in two incidents while playing on opposite sides of an Australian Rules football match on 13 May 1984. In the first incident the plaintiff alleged that after he had tackled the defendant, the defendant punched him a glancing blow just under his left ear. The defendant alleged that he had simply pushed the plaintiff away after that person stepped on his foot. In the second incident the plaintiff alleged that the defendant had run at him and struck him while he (the plaintiff) was shepherding a team-mate. The plaintiff’s jaw was broken in this incident. The defendant alleged that he had simply tried to push the plaintiff’s right arm downwards and upper body to the left.

It was agreed that the actions the defendant claimed to have performed were within the rule of the game. The court noted that the incidents alleged by the plaintiff – deliberate punches to the head – were outside the rules.

Held: (1) Upholding the plaintiff’s claim, that it was well established that players of contact sports consent to physical contact (which would normally be an assault) as long as the acts are within the relevant sport’s accepted rules. The Court found the plaintiff’s case more probable than that of the defendant and therefore his claim succeeded.

(2) Rejecting the claim for aggravated or exemplary damages, that while the defendant’s actions were assaults, they did not go so far beyond acceptable conduct on a football field that there was a need for punishment or making an example of the defendant.

Judgment

The Court’s judgment is available here.