ROUGH PLAY, ASSAULT AND CIVIL CLAIMS FOR COMPENSATION
BRUCE KENT, PARTNER

When a suburban footballer “king hit” an opposition player and broke his jaw, the judge described it as a “cowardly and aggressive act of on-field violence” and noted that “any footballer – at any level – could be jailed for such acts of on field violence”. He took into consideration that the offender had no prior convictions and sentenced him to a 12 - month jail term, suspended for two years. This case is a clear indication that the law does not distance itself from violence inflicted on the sporting field compared to violence in society.

A “king hit” is a more obvious and well known instance where it would be expected that the law will intervene.  In some other areas, the line between rough play and “assault” (being an action that could lead to criminal charges and, more probably, a civil claim for compensation) can often be difficult to distinguish.

If a sport is to be conducted in a civilised manner it must be carried out according to the rules, which generally promote fairness and good order. Without rules in body contact sports, such as Australian rules and rugby, players could be exposed to serious violence. Although many people do not see assault on the playing field in the same light as violence on the street, intentional sport violence is against the rules of the game and is ultimately against the law. This has been established in numerous cases including R v Bradshaw (1878) 14 Cox CC 83, R v Billinghurst (1978) Crim LR 553, McNamara v Duncan (1971) 26 ALR 584, Rogers v Bugden (1990) Lee CJ CL 14 and Giumelli v Johnson (1991) Aust. Torts Reps 81-085.

Traditionally, there has been an unwritten law that “what happens on the field stays on the field”. However, there has been a growing trend towards litigation by those that have been injured by the actions of others. Today, it is uncommon for players to completely accept their injury as part of the game. If an individual is injured as a result of another person’s actions and they suffer pain, loss of income or the injury is career ending, then more often than not they will seek compensation for it.

It should be understood that in physical contact sports such as Australian Rules, rugby and soccer, players expect and consent to some sort of contact outside the rules purely by playing. However, players should not expect that they will receive deliberate punches, elbows and blows to the head or body, or any other form of assault or violent behavior outside the rules of the game.

The line between “rough play” and “assault” involves a consideration of “implied consent”.  The issue of implied consent to an assault or physical contact by fellow players has been one of the main issues in any consideration of whether the actions of one player against another could result in criminal or civil liability. 

It is now becoming clearer that players do not consent to deliberate acts that are in breach of the rules, especially, if the act in question is one which the offending player intends to cause harm or ought to know that harm is a likely result of his or her actions.  It now appears clear that the courts will refuse to accept that the innocent player has consented to these types of acts even though it may be known that the acts may and probably will occur. 

Instances of assault, as outlined in the cases listed above, have also provided many headaches for sports administrators. With over 4 million participants in organised sport throughout Australia the reality is that not everyone will play by the rules. Sporting bodies have recognised this and have been proactive to counter on field violence. For instance, AFL Victoria has implemented a Player and Official De-Registration Policy. AFL Victoria’s Community Football Manager - Peter McDougall, stated that “AFL Victoria are committed to providing the safest possible environment for player’s and official’s and the De-Registration Policy aims to de-register players and officials that pose an unacceptable risk to other players and officials”.