Edition 04/2001
Legal
Actions Expose Further Risks For Sport
In this
edition of the IEA Sport Monthly Update we look at recent legal
actions and decisions that further underline the exposure of sporting
organisations and individuals associated with those organisations to
negligence claims.
The
first two cases are reported in Volume 11, number one (March 2001) of
the Australian and New Zealand Sports Law Association magazine, "The ANZSLA
Commentator". Under an article titled "Amateur Club
Vicariously Liable for Players "King Hit", Terrence O'Riain
and Craig Pett report as follows:
"On
8th February this year the Chief Judge of the NSW District Court,
Blanche J, delivered a ruling that has significant ramifications for
all amateur sporting clubs. In Kennedy v Narooma Rugby League
Football Club & Anor, Bega District Court, his honour found an
amateur rugby league club vicariously liable for on field foul play.
[1] The accepted position, prior to this decision, was
that an amateur club could not be vicariously liable for the actions
of its volunteer players as there was no employment relationship.
The
incident occurred in a match between the Bega Roosters and the Narooma
Red Devils at Bill Smythe Oval in southern NSW on 4th May 1997.
Bega Roosters' centre Darren Kennedy was on the receiving end of a
late head high tackle by Narooma centre Gary Pender, resulting in a
broken jaw and emergency surgery.
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Kennedy
filed a claim in the Bega District Court against Pender and the
Narooma Rugby League Football Club. Pender could not be
found and was never served, but the claim was vigorously defended
by the club. It did not contend the facts surrounding the
tackle. Nor did it consider it appropriate to run the volenti
defence. However it submitted that it could not be
vicariously liable for Pender's actions for two reasons.
First, it argued that Pender's actions were not authorised by it
and so far exceeded any authorised act that they were beyond the
scope of his authority (relying on the 'frolic of his own'
authorities). In the alternative, relying on Bugden v
Rogers (1993) ATR 81-246, it argued that vicarious liability
can only attach where there is a master and servant
relationship. It gave evidence that it made no match
payments to Pender in season 1997, and submitted that there was
therefore no master/servant relationship in existence. Both
submissions were rejected. In relation to the volunteer argument,
Justice Blanche relied upon obiter in the judgments of Dixon J (as
he then was) and Kitto J in the high court decision of Attorney-General
for NSW v Perpetual Trustee Co (Ltd) (1951-52) 85 CLR
237. Both justices looked at the history of the master and
servant relationship and commented that it was not contingent upon
monetary remuneration.
In
a landmark decision for all amateur sporting clubs, Blanche J
awarded damages of $41,808.10. It was victory all round for
the Bega Roosters. Narooma was ordered to pay its
costs, and the king hit was all to no avail - Bega won the game
(minus Kennedy) 16-12". Note
[1].
Kennedy's solicitor was ANZSLA member Terence O'Riain of Border
Attorneys, an accredited personal injury specialist and a veteran
Sydney 1st grade rugby union front rower.
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