The aim of this paper is to investigate the tort of negligence for participants and employers in sport, analyse whether the ‘dangerous recreational activity’ exception should apply to professional athletes through statute and common law in all states as a removal of negligent liability, and critique the effects of this potential decision on Australian sporting organisations.
Author: Vanessa Mihov, LLB (Hons), BBus (Econ)
You can visit Vanessa’s LinkedIn page here.
Australia encourages participation in recreational and sporting activities as an amateur or professional athlete for physical wellbeing, economic benefits, and personal achievement. However, this participation does not come without the acceptance of the risk of physical injury, and this scope allows those harmed by the negligence of others to seek legal remedy through litigation.
Negligence is considered any conduct which involves a failure to conform to a legal obligation and failure to protect the interests of someone with whose interests a defendant ought to be concerned. This paper will explore the tort of negligence by providing an in-depth analysis of the three elements – liability, causation, and quantum – in a sporting setting. Focussing specifically on the relevant legislation from the Civil Liability Act 2003 (Qld) and application of Australian common law, this paper will also investigate whether the ‘dangerous recreational activity’ exception should apply to all states by examining their current statutory and common law positions, and analyse the implications of this decision on Australian sporting organisations.
THE ELEMENTS OF NEGLIGENCE
Negligence is one of the most relevant tortious acts to participants and employers in professional and amateur sports, and consists of assessing liability, causation, and quantum.
The first element to prove in a negligence claim is liability which involves judging whether a duty of care exists between the parties. The following recognised relationships exist in the sporting industry:
- Occupiers of sporting facilities with authority and control over a premise, owe a duty of care to all those on the premises to exercise reasonable care to avoid foreseeable risk of injury.
- The scope of the duty of care owed by volunteers is dependent on the type of activity, age and ability of athletes, and experience and protected by Queensland’s Civil Liability Act (CLA) which states that a volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work organised by a community organisation or as an office holder of a community organisation.
- The scope of duty for referees and officials is significantly broad but focuses primarily on the person’s ability to ensure safety by guaranteeing the rules of any sporting game are strictly followed and prohibiting negligent breaches. This duty does not discriminate between professional and amateur games.
- Athletes owe other athletes a duty of care to act in a manner that is reasonable in the circumstances and regulated by a legal relationship. Whilst athletes are expected to perform at their best to win, conduct outside the scope of the rules of the particular sport may give rise to liability.
- Coaches owe athletes a duty of care to remove inherent risk from training exercises and the ‘field’ by being appropriately qualified, providing adequate care, and warnings – where the level of supervision is dictated by the age of the athlete.
In addition to the recognised duties of care, there exists ‘non-delegable’ duties of care where the defendant cannot escape liability by passing on the duty to take care of the plaintiff’s safety to a third party. This concept is related to vicarious liability which exists for an employer who assumes responsibility for the behaviour of its employees. Sporting organisations can be vicariously liable for employees including referees, officials, and athletes acting in the course of employment if the tortfeasor is an employee, the employee committed a tortious act, and the tort was committed in the course of employment. For instance, if a professional rugby player acting as an employee for a rugby club injures a player on another team during a match, the rugby club may be vicariously liable for their employees’ actions depending on whether these actions fall within the scope of the game’s rules. If the player punched the opposing player out of frustration after losing a game, then the club would not be liable for their actions; but if the opposing player was injured as a result of an accidental punch during a scrum, then the club may be vicariously liable for the player’s actions if the Court is satisfied that the punch was a part of the scrum and therefore the player’s employment.
The element of causation within a sporting negligence claim requires the Court to make an assessment of what the accepted risks are when participating in the sport which does not eliminate all duty of care of one participant to the other. In Queensland, the test from the High Court case Wyong v Shirtis applied to each negligence case to determine whether, without hindsight, a defendant has breached a duty of care and requires an investigation in:
- Whether a reasonable person in a similar position as the defendant would have foreseen a risk of injury to the plaintiff arising from their conduct.
- What a reasonable person would have done in response to that foreseeable risk.
The same test is emphasised in Queensland legislation in s 9 of the CLA and s 305B of the Workers Compensation and Rehabilitation Act 2003 (Qld).
Ultimately, the final element that must be satisfied is damage or quantum. Court assesses damage suffered by the plaintiff only if the damage is a legally recognised harm and occurred as a result of the defendant breaching a duty of care. Compensation and awards are given based on medical expenses, loss of past and future earnings, disfigurement, pain and suffering and loss of amenities.
THE ‘DANGEROUS RECREATIONAL ACTIVITY’ EXEMPTION
The ‘dangerous recreational activity’ (DRA) exception applies in most Australian states and allows defendants who have caused harm to a plaintiff to be relieved of legal liability if the injuries suffered by the plaintiff are a result of the materialisation of an obvious risk of a dangerous recreational activity.The exemption does not apply to activities involving a significant risk of an insignificant injury – for example, trips and falls as part of a regular football game – but rather activities that involve a significant risk of a significant injury as in many Australian contact sports. Whether the exemption applies in the applicable states is determined by an objective test of the level of risk of significant harm to a person participating in an activity and absolution of liability occurring if the injury occurs as a materialisation of an obvious risk of a dangerous recreational activity. However, whilst statutory law in some state jurisdictions agree that the DRA exemption excuses legal liability, whether this defence applies to professional athletes lies in the definition of ‘recreational activity’ which varies throughout these states based on the application of both statutory and common law authorities. The decisions in the Supreme Court of Tasmania and New South Wales Court of Appeal provide particularly conflicting legal opinions on this issue.
States differing opinions
In 2017, Paul Goode (the appellant) participated in a professional horseracing event as a professional jockey and suffered serious injuries when his horse fell on the racecourse. The appellant claimed that the physical harm he suffered and other resulting losses were caused by the competitor jockey Tye Angland’s (the respondent) negligence and breach of duty of care by riding in a manner that interfered with the appellant and his horse. One of the primary issues the Court assessed was whether the DRA exemption provided a defence to the respondent under s 5L of the Civil Liability Act 2002 (NSW). The New South Wales Court of Appeal ruled in favour of the defendant and allowed the application of the DRA exemption to dismiss the plaintiff’s appeal of the decision that left him unable to claim any damages for his participation in the professional event. The Court ruled that under NSW jurisdiction, professional horseracing was included in the definition of ‘recreational activity’ under ‘any sport’ and the DRA exemption extended to professional athletes as there was no relevant distinction drawn between recreational activities or those pursued by reason of employment.As a result, the Court found that the plaintiff falling from his horse and his resulting injury was an obvious and serious risk of harm that materialised while undertaking a ‘recreational activity,’ providing a complete defence against liability to the defendant.The same defence and definition is mirrored in Western Australia’s civil liability legislation.
Prior to October 2019, Tasmanian statutory law also included the terms ‘any sport’ as part of the definition of ‘recreational activity’ however, the Supreme Court ruled in Dodge v Snells that ‘recreational activities’ could not include professional sports on the grounds that legislature could not have intended to deprive employees of the rights to sue their employers. This prompted Parliament to pass a bill amending Section 19 of the Civil Liability Act 2002 (Tas) omitting any mention of sport in the definition of ‘recreational activity’ and substituting it with the definition ‘pursuit or activity engaged in for enjoyment, relaxation or leisure’. Under s 18 of the Civil Liability Act 2003 (Qld), Queensland also engages a similar definition exempting any mention of sporting activities.
Civil liability legislation in both Australian territories, South Australia, and Victoria is silent as to any exemption for participating in dangerous recreational activities and continue to rely upon the common law or other defences to negligent liability – and where these defences rely on a definition of recreational activities, the Court adopts the same definition of ‘recreational services’ as the Trade Practices Act which includes sporting activities. This inconsistency between New South Wales and Western Australia including the definition of sport in recreational activity, Queensland and Tasmania exempting sport from the definition, and statutory silence among the rest of the states and territories result in a tripartite divide between the application of statute and common law in all of Australia. This lack of uniformity in the assessment of negligent liability claims produces outcomes with inconsistent rulings and application of the law which is unfair to sportspeople who rely on the Courts to provide them with a fair process to claiming compensation for injuries.
The increase of professional participants in dangerous recreational sports in Australia, in addition to the number of people experiencing threatening injuries, gives rise to many civil liability claims. As of 2019, the sporting industry employs 60,000 employees ranging from sports coaches, instructors and officials to professional sportsmen and women. Additionally, the industry is projected to increase employment growth by 8.7 per cent over five years from 2019 to 2023, increasing the likelihood of negligence liability claims and injury compensation. The cost of treating these sportspeople is $2 billion per year with 36,000 Australians hospitalised in 2011-2012 because of sporting injuries. From this figure, a significant number of sportspeople can be potentially compensated under a negligence claim – particularly in football where up to 35% of injuries are caused by foul play.However, decisions in the higher Courts in Australia creating a common law precedence over lower courts provides an unfair and conflicting system of claiming compensation for those affected by serious sporting injuries. Whether the Queensland courts rely on either Tasmania or NSW’s cases to form a common law precedent over future cases, or whether all legislation should be reformed to include sport and therefore professional athletes in the definition of ‘recreational activity’ comes down to whether this removal of negligent liability will provide a fair process for claims.
If professional sport is included in the definition of ‘recreational activity’ through reform of each state and territory’s legislation, then the interpretation of recreational activities has broadened, and the application of the DRA defence has expanded. This can negatively affect the result of claims by professional athletes seriously injured in high-contact sporting games who may lose their only source of income – as opposed to amateur athletes who, by definition, participate in sport on an unpaid, recreational basis. Furthermore, the broader interpretation of the term ‘recreational activity’ poses a risk to an athlete’s ability to sue when harmed due to a direct decrease in a sporting organisation’s insurance premiums as the likelihood of liability decreases. The scope of a uniform definition to include ‘any sport’ prevents those participating in professional sports from taking legal action through the DRA exemption, further decreasing the window of liability. Contrariwise, there are other defences that can be argued should the DRA exemption be inapplicable to sportspeople; for example consent – where a player can argue that they did not consent to interferences that are infringements of the laws of the game.Other defences include waivers, though to be effective, plaintiffs must be adequately informed with warnings directed to the activity in question. Ultimately, athletes participating in high-contact sports must assume a greater risk of injury with a restricted ability to pursue a civil liability claim should the definition of ‘recreational activity’ include ‘all sport’ nationwide.
Alternatively, if the legislation is comprehensively reformed to exclude any mention of sport in the definition of ‘recreational activity,’ then theoretically the judicial system should become more consistent nationwide due to the principle of parliamentary sovereignty which states that statute law prevails over common law. This reform would encourage the Courts to make more uniform decisions across Australia and prevent the current presence of lengthy and expensive court cases that often arise from plaintiffs appealing to a higher court and thus inconsistent rulings and damages. The current consequences of this is highlighted by the damages awarded in Tasmania’s Dodge v Snell case and New South Wales Goode v Angland, where Mr Dodge suffered a non-catastrophic injury to the neck and was awarded $772,895 as opposed to Mr Goode who received no damages but suffered a catastrophic neck injury confining him to a wheelchair. However, counter-intuitively, if the DRA exemption does not exempt liability for professional athletes, employers are directly affected by the assessment of damages due to their non-delegable duty of care and vicarious liability. This could also lead to the abuse of monetary court-awarded damages by athletes, though most sporting negligence cases are a question of fact as opposed to the question of law which the Court is able to assess through appropriate objective tests.
Ultimately, there are several arguments for both including and excluding the mention of sport in the definition of ‘recreational activity’ which affects both athletes and their sporting organisations. However, after thorough analysis of both contrasting sides, I am in the belief that the individuals suffering harm from the negligence of other players should have the right to sue both the negligent player and their employer. The current system is failing sportspeople whose damages and compensation, after an extensive and costly court process, will essentially depend on what jurisdiction applies to their event. There should be a change in legislation in all states and territories to create a uniform defence and clear definition to exclude sport from the DRA exemption, as the current system statute bars claims for injuries arising from negligence in professional sport.
 Tame v New South Wales  at .  With similar provisions nationwide.  Woods v Multi-Sport Holdings Pty. Ltd.  HCA 9.  Civil Liability Act 2003 (Qld) s 39.  Foscolos v Footscray Youth Club  VSC 418.  Vowles v Evans  EWCA Civ 318.  McCracken v Melbourne Storm Rugby League Football Club & 2 Ors  NSWSC 107.  Thomas Hurst and James Knight, ‘Coaches Liability for Athletes’ Injuries and Deaths’ (2003) 13 Seton Hall Journal of Sport Law 33.  Caxton Legal Centre Inc, ‘The Queensland Law Handbook’, Duty of Care (Web Page, 28 March 2018) <https://queenslandlawhandbook.org.au/the-queensland-law-handbook/health-and-wellbeing/accidents-and-injury/duty-of-care/>.  Kondis v State Transport Authority (1984) 154 CLR 672.  Hollis v Vabu Pty Ltd  HCA 44.  Canterbury Bankstown Rugby League Football Club Ltd v Rogers; Rogers v Bugden (1993) Aust Torts Reports 81–426 at 62,551.  Rootes v Shelton  ALR 33.  Wyong v Shirt (1980) 146 CLR 40.  Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B.  H Luntz, Assessment of Damages for Personal Injury and Death, 4th edn, Butterworths, Sydney, 2002.  Civil Liability Act 2002 (NSW) ss 5J-5N; Civil Liability Act 2003 (Qld) ss 17-19; Civil Liability Act 2002 (Tas) ss 18–20; Civil Liability Act 2002 (WA) ss 5E, 5J.  Falvo v Australian Oztag Sports Association & Anor  NSWCA 17, .  Ibid.  Goode v Angland  NSWSC 1014.  Ibid.  Civil Liability Act 2002 (NSW) s 5K.  Ibid s 5L.  Civil Liability Act 2002 (WA) ss 5H, 5E.  Civil Liability Act 2002 (Tas) s 19.  Dodge v Snell  TASSC 19.  Civil Liability Amendment Act 2019 (Tas).  For example, obvious or inherent risk defences in Civil Liability Act 1936 (SA) ss 36–7 and Wrongs Act 1958 (Vic) ss 53–5.  Dominic Villa, ‘Liability for Personal Injury Arising from the Supply of Recreational Services’ (2009)4(1) Australian and New Zealand Sports Law Journal 55, 56.  Civil Laws (Wrongs) Act 2002 (ACT); Personal Injuries (Liabilities and Damages) Act (NT).  Australian Government, Department of Jobs and Small Business, ‘Australian Jobs 2019’ Jobs by Industry (Online National Government Publication, 2019) 20 <https://docs.employment.gov.au/system/files/doc/other/australianjobs2019.pdf>.  Ibid.  Australian Institute of Health and Welfare, Australian Sport Injury Hospitalisations 2011-12 (Report, 4 November 2014) 4 < https://www.aihw.gov.au/reports/injury/australian-sports-injury-hospitalisations-2011-12/contents/table-of-contents>.  Sports Medicine Australia, ‘Football (Soccer) Fact Sheet,’ Facts of Football Injuries (Web Page, 2008) <https://sma.org.au/resources-advice/sport-fact-sheets/football-soccer-fact-sheet/>.  McNamara v Duncan (1971) 26 ALR 584; 45 FLR 152.  Belna Pty Ltd v Irwin  NSWCA 46.  David Thorpe and Leanne Houston, ‘Game Changer? Professional Sport and Dangerous Recreational Activity: Revisiting the Ruling In Dodge V Snell’ (2016) 11(1) Australian and New Zealand Sports Law Journal 75, 76.