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).