‘A professional Australian rules footballer injured when an opposition player makes physical contact with him in any manner whatsoever is prevented from successfully suing that opposition player for trespass to the person because all such professional footballers consent to the risk of physical injury when they play football”.
Critically analyse this statement.
In a game of football, the event of physical contact between players can result in not only physical repercussions but also legal consequences. Under civil law, a football player who has been trespassed or affronted by another player could potentially sue him on the grounds of trespass to the person. The law recognises that in most sports, physical contact is to be expected and as such, will only award damages to certain cases. In addition, professional footballers consent to the risk of physical injury, further limiting the prospects of launching successful legal action. Despite this, physical contact can attract legal liability and professional footballers sometimes sue successfully – whether or not the judge awards him damages.
Battery is the main type of trespass to the person action if a football player wants to sue an opposition player for making physical contact with him. It can be defined as a deliberate or negligent act that directly causes physical contact with another. It is actionable per se and therefore there does not need to be any quantifiable damage for there to be a viable action. However, in order to launch a successful action, all elements of battery must be proved in court. These elements include: directness of the act, positive action, interference and unlawful justification
The concept of what constitutes directness has been the subject of some judicial debate. Two cases, Innes v Wylie[citation] and Haystead v Chief Constable of Derbyshire[citation] provide some clarification on this element. In Innes v Wylie, Denman CJ directed the jury that if the defendant had stood ‘entirely passive like a door or a wall put to prevent the plaintiff from entering the room’, this would not constitute a battery[citation]. Laws LJ further added in Haystead v Chief Constable of Derbyshire that the directness of the act could also be a “direct consequence of an application of force” [citation, at 13].
It is arguable that most of the physical contact present in football is not passive and this factor of directness would probably be conveniently supported in court through footage recorded from the match. If a player strikes an opposition player, which then causes him to fall down and sustain damage on his head, this could also attract legal liability as a result of Laws LJ judgement. The combination of this increased scope in liability and active nature of physical contact in football makes it significantly straightforward in arguing that there is an element of directness – should a professional football player want to sue under trespass to the person.
Australian cases tend to support the proposition that hostility is not a necessary element to battery. In the case of Rixon v Star City Pty Ltd[citation], Sheller JA stated that:
‘the absence of anger or hostile attitude by the person touching another is not a satisfactory basis for concluding that the touching was not a battery. No error has been demonstrated which would entitle this Court to interfere with the trail judge’s finding that the touching lacked ‘the requisite anger or hostile attitude.’
This further increases the chance of successfully taking legal action against another player as this element no longer needs to be proved.
Additionally with the above elements, is the principle that only a positive action can constitute a battery. Fagan v Metropolitan Police Commissioner [citation] established that the battery had to be of a “knowingly, provocatively and unnecessary” [citation] positive act. Most physical contact in football is intentional but it is arguable whether it constitutes a positive act of battery.
In light of these elements, the ability to successfully sue under battery is also affected by the possible defences to it. Part of Sheller JA finding for the defendant in Rixon v Star City Pty Ltd was because his actions were part of his “ordinary conduct of daily life”. For a professional football player, this could be used in defence if it can be argued that the manner in which the physical contact was taken, formed part of his ordinary conduct as a professional football player. The concept of “Volenti non fit injuria” is another defence to battery. Generally, if the plaintiff consents to the physical contact then no battery will occur. Mason CJ, Toohey, Dwason, and Gaudron LL in Department of Health and Community Services v JMB and SMB went to affirm that “consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact”
Contention: Although the game of football requires physical contact, the manner in which this is undertaken could attract legal attention. Despite some AFL players escaping severe penalties for criminal offenecs outside of the game such as assualt, civil actions arising from unlawful physical contact with another player in the game has accrued “harsh” results.
Trepass to the person
Since the statement specifies that “an opposition player makes physical contact”, the main type of trepass to a person I will look at will be battery. Although assualt could occur in a game of football , physical contact will be assumed and if not already, consented and hence there would be a lower likelyhood of a direct threat. Consent will also most likely be agreeded on in a contract and my research assingment will look into AFL(Australian Footbal League) contracts.
Physical contact/any matter whatsoever
The elements of battery must be proved in order for a successful legal action to occur. I will contextualise each of them(directness and positive acts;interferes;with the person of another and without lawful justification) from a “ profesional footballer’s” point of viewand analyse each one on “probablities”.
directly and intentionally – Innes v Wylie (1844) 174 ER 800.- Active contact in football could be when a AFL player aggresively pushes another whilst passive could be just sanding infront of the player “like a door or a wall” to prevent him from kicking a goal
Haystead v Chief Constable of Derbyshire  3 All ER 890.-The act must be a direct cause. Discuss about the neccesisty and likely hood of linking up a chain of events to prove battery
Fagan v Metropolitan Police Commisioner  1 QB 439.- Discuss the idea of a positive action. Discuss the essence of the manner in which the purported battery takes place in.
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 – The concept of engaging in acts that were “generally accepatable in the ordinary conduct of life”, how it could be used as a defene in the “ordinary conduct of life” for a AFL player.
Giumelli v Jackson (1991) Aust Torts Reports 81-085; BC8900184- Discuss the notion of consent to physical force within game rules, including “commonly encountered infringements of the rules” and give examples of where this implied consent does not etent to physical violence with intention to cause bodily harm.
McNamara v Duncan (1971) 26 ALR 584 – Another example of implied consent in AFL. Mention how even a blow could be sued upon.
Discuss other cases regardeing sports other than football with physical contact e.g Rugby
The goal of a professional AFL player sueing might not only be limted to an award of damages. Although in most cases this is probably the case, some AFL players might want media attention and the “political” ramifications that come with it. This in turn, could turn a unsuccseful claim in torts in the court system to a successful one in the eyes of the plantiff where the goal could be just to get negative media atteion onto the defnedant.
There could also be a possible criminal element in some situations.
Risk of physical injury
Discuss the extent of the risk players typically consent to. Refer to essential cases
Other resoruces to look at:
Francis Trindade and Peter Cane, The Law of Torts in Astralia (2nd edition,1991)
Wrongs Act 1958 (Vic)
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