Recent
Legal Decisions
Encouraging For Sport .....
Reference
was made in the decision to the relevant legal principles stated by
King CJ in Giumelli v Johnston (1991) Australian Torts Rep
81-085: "Although a player's consent to the application of force
to him in the course of the game extends not only to the application
of force within the rules of the game but also to certain commonly
encountered infringements of the rules, ... such consent cannot be
taken to include physical violence applied in contravention of the
rules of the game by an opposing player who intends to cause bodily
harm or knows, or ought to know, that such harm is the likely result
of his actions".
In
regard to the league, there was no evidence that it had
"allowed" any risk to exist, or "allowed" games to
be played with violence, or "tolerated" any dangerous state
of affairs in the competition it organised. It was also stated
that the judgement in Agar v Hyde [2000] HCA 41 provided a
further reason for setting aside the judgement against the league.
The
second case was considered by the Supreme Court of Western Australia -
Court of Appeal, in Prast V Town of Cottesloe [2000] WASCA 274,
with judgement being delivered on 22nd September 2000. In this
case Prast, an experienced bodysurfer, was dumped by a wave that
rendered him a Tetraplegic.
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He
took action against the defendant under the Occupiers Liability Act
1985 (WA) and under common law, claiming that he was owed a duty of
care that had been breached. Prast's case concentrated on the
proposition that the respondent "failed to give any or any
adequate warning to the appellant by sign of the danger of being
dumped in a manner which might result in severe spinal injury".
The
Court of Appeal agreed with the trail judge (who had found in favour
of the defendant). The judge determined that the respondent had
not breached that duty of care. The judge was not persuaded that
had warning signs been erected the appellant would have refrained from
body surfing. It was not established that any breach of duty was
causative of the loss.
The
court acknowledged that the risk of being dumped by a wave was
inherent in the activity of body surfing which distinguished this case
from others such as Nagle v Rottness Island Authority (1993)
177 CLR 423 where injuries were incurred by the materialisation of a
risk of which those injured were not aware. Again Agar v Hyde
[2000} HCA 41 was raised in discussions, particularly the quotation by
Gleeson CJ from that case: "People who pursue recreational
activities regarded as sports often do so in hazardous circumstances;
the element of danger may add to the enjoyment of the activity.
Accepting risk, sometimes to a high degree, is part of many
sports".
....Continued page 3
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