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

AppearingĀ for the Plaintiff: Mr Lunney (Instructed by Macphillimy Cummins & Gibson)
AppearingĀ 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.