Sport administrators the world over can rest a little easier following a decision by the High Court of Australia which cleared the International Rugby Board of any liability for serious injuries sustained at club level.  In a ruling which removed a cloud that hung over the world governing body of rugby union for nearly two years, the High Court overturned a 1998 decision by the NSW Court overturned a 1998 decision by the NSW court of Appeal to allow two players who broke their necks in separate club matches to sue the IRB for damages.

In 1986, Warringah colts hooker Luke Hyde, then 19, was playing against Gordon.  A poorly formed scrum collapsed on his neck, causing a permanent disability.  A year later, Wagga Wagga player Peter Worsley, then 18, was confined to a wheelchair for the rest of his life after a scrum collapsed during a match against RivColl.

In seeking to sue the IRB, Hyde & Worsley argued that, as the sole body responsible for the laws of the game, the IRB had neglected its duty of care by failing to change the rules to make scrums safer.  The argument was originally dismissed by the NSW Supreme Court.  When the NSW Court of Appeal agreed with the argument, however, the potential ramifications reverberated not only across rugby, but also other sporting codes.

The High Court found that to argue the IRB held a duty of care to every person who chose to play Rugby around the world bordered on the absurd, given it is such a physical sport.  While agreeing the laws of rugby could be changed to make the game safer, the High Court found voluntary, adult participants knew the risks and were therefore responsible for their own safety when they took the field.

"If the laws of the game define the conduct to which an adult participant consents, the law makers should not be liable because they have made the activity that the participants chose to undertake less dangerous," Justice Mary Gaudron, Michael McHugh, Bill Cummow and Ken Hayne wrote.

"The absurdity of this proposition is highlighted by the fact that in many activities the danger is part of the activity's attraction.  The participant may therefore not have chosen to engage in the activity at all if it was less dangerous."

Justice Ian Callinan went on to add that sport, and in particular amateur sport, could not be legally compared to workplaces, roads, marketplaces or other places where people expect a duty of care.

"Should the international body controlling cricket have been held liable for not prescribing the wearing of helments by batsman before West Indies cricket selectors unleashed upon the cricketing world their aggressive fast attack of the 1970's", Callinan asked rhetorically.

"Should cricket be played with a soft, rather than hard ball?  Should hockey sticks be made of semi-rigid material only?'

In concluding, Chief Justice Murray Gleeson commented: "The only way to avoid all risk of injury is not to play at all.  No doubt the rules could be altered in many respects to make it safer but people playing or watching rugby football have other priorities."

Hyde has separate Supreme Court actions pending against the Australian Rugby Union, the NSW Rugby Union, the Sydney Rugby Union Referees Association and the Gordon Rugby Club.  Worsley has claims against the ARU and the local authority which sanctioned the match.

Reproduced with permission from Chip Le Grand, The Weekend Australian 5 August, 2000
                                                                         Spring 2000