O'Brien, John --- "What Happens On the Field Stays On the Field?: Battery in Sport" [2015] PrecedentAULA 60; (2015) 130 Precedent 23

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WHAT HAPPENS ON THE FIELD STAYS ON THE FIELD?

BATTERY IN SPORT

By John O’Brien

This article provides an overview of battery, with a particular focus on the role that consent plays in contact sports. The limits of implied consent in sport are discussed, followed by a brief overview of other relevant defences. Finally, issues of damages and vicarious liability are addressed.

Contact sports in Australia, such as rugby league, rugby union and Australian Rules, have often had to walk a fine line between acceptable and dangerous levels of violence in their games. For example, in 2013 the Australian Rugby League Commission changed the rules of rugby league to outlaw the manoeuvre known as a ‘shoulder charge’. In more recent times, the ‘spear tackle’ or upending the tackled player ‘above the horizontal’ has been outlawed. (The horrendous injuries to Newcastle player, Alex McKinnon, are still prominent in the minds of many.) However, other high-risk plays, such as the ‘body slam’ that put Robbie Farah out of action in the recent State of Origin series, still create concern. The Australian Football League has also made changes to its rules over recent seasons, penalising defenders for making any contact with an opponent’s head. It, too, has its new controversy – the ‘sling tackle’, whereby an attacker has their arms pinned from behind and is then slung to the ground, unable to protect their head from impact.

Despite the risks of injury in contact sports, a common adage in many sporting environments is that ‘what happens on the field stays on the field’. While this might be seen as a sensible approach to promoting sportsmanship and discouraging grudges from continuing after the final siren, it must be asked whether there are limits to this principle. Can a sporting action have legal consequences?

Take, for example, the following scenario. A sports player has dominated their game for numerous years. They have previously led their club team to grand final appearances, and they have been voted the best player in the competition. They have frequently been chosen to represent their state. They have played for Australia and even been the captain of that team. Unsurprisingly, opposition coaches identify this player as a danger and suggest that his or her impact on the game needs to be minimised. In the opening minutes of a new season, an opposition player breaks the jaw of our star athlete, by making deliberate contact with their head, in a manner outside the rules of the game. The star player requires surgery and does not return to the top-grade competition that year. Should we invoke ‘what happens on the field stays on the field’?

These were the facts of well-known rugby league player, Steve Rogers, who was struck in the head by the forearm of opposition player Mark Bugden while being tackled in 1985. Rogers successfully brought a battery case against Bugden (and Bugden’s employer, the Canterbury Bankstown Bulldogs club).^[1]

WHAT IS BATTERY?

Battery can be described at a basic level as a direct, voluntary act by a defendant which causes physical contact with a plaintiff.^[2] It is part of a broader category of torts, being ‘trespass to the person’. These, and other similar trespass claims, are often referred to by the shorthand phrase, ‘intentional torts’. In this sense, ‘intent’ means that the defendant’s actions were voluntary – that they were caused by his or her conscious mind, as opposed to that of an automaton or a sleepwalker, for instance.^[3] ‘Intent’ in battery does not mean that the particular injury suffered by the plaintiff needs to be intended.^[4] In fact, there is no requirement that the plaintiff actually suffer any injury – battery is actionable per se.^[5]

So the use of the word ‘intentional’ can be misleading to a degree, because there is no actual requirement for the contact to be intentional – reckless contact is also actionable in battery.^[6] What battery does require is that the defendant be considered at law to be at fault because of their voluntary act – that is, they either intended physical contact to occur or made such contact recklessly.^[7] It is therefore possible for injuries caused through the defendant’s lack of care to be pleaded as both battery and negligence, and there can be substantial overlap between the actions.^[8]

Apart from the requirement of fault, the interference with the plaintiff must also (in most cases) be ‘direct’.^[9] This feature of directness is what differentiates torts based in trespass from actions on the case such as negligence. Directness is concerned with the immediate connection between the defendant’s act and the interference with the plaintiff.^[10]

CONSENT AND THE RULES OF A SPORT

While the tort of battery will prima facie encompass any offensive physical contact, it is necessarily restrained by the concept of consent. Whether the existence of consent is properly considered a defence (for the defendant to prove), rather than a lack of consent being an element (for the plaintiff to prove), is seemingly still debatable in Australia.^[11] However, the onus of proof surrounding consent is not the focus of this article, but rather how the concept of consent impacts on sport.

Consent may be given expressly by a plaintiff, which in a sporting context might arise when a person agrees to play a particular sport and, in doing so, acknowledges to the opponent that they agree to certain forms of bodily contact, usually within the defined rules of the sport.^[12]

However, many instances of consent in sport involve implied consent. That is, where there has been no express consent given, but the law will nonetheless determine that a competitor has consented to certain contact. This type of consent is determined objectively, by examining the ‘customary norms’ of a sport – which may include contact prohibited by the rules of the sport.^[13]

The rules of the sport are one factor to consider when attempting to define the boundaries of implied consent, but they are far from determinative. Many contact sports involve frequent violations of the rules (which may or may not incur on-field sanctions); however, a player cannot demand strict legal adherence to all rules in a fast-paced game. They must be taken to have consented, based on the standard of a reasonable player of that sport, to receiving certain bodily contact outside of the rules. Obviously, the nature of the sport will be relevant – a player might reasonably expect certain contact in a game of rugby, whereas the same contact in a game of cricket might be highly objectionable. Similarly, an intense professional final may be viewed differently to a friendly training match.^[14]

In the case of Hilton v Wallace,^[15] Hilton had tackled an opposition player while playing rugby league. Wallace, a teammate of the tackled player, tried to lift Hilton off of his teammate in order to speed up play. In performing this action, Wallace put his finger in one of Hilton’s eyes, causing total and permanent loss of sight in that eye. The rules of rugby league only allow for the tackling of a player in possession of the ball, not for such contact to be made with a defender. Hilton brought an action against Wallace but he was unsuccessful because it was held that he had impliedly consented to the contact. Even though interference with a defender was not permitted by the rules of the sport, it frequently occurred – the court found that it was ‘ordinarily and reasonably to be contemplated as incidental to the sport’.^[16]

WHAT ARE THE LIMITS OF IMPLIED CONSENT?

Deliberate infliction of injury

It was of importance in the above example that Wallace, while acting intentionally for the purposes of determining fault, had not actually intended to cause Hilton any harm. So the limits of implied consent in sport might be that the reasonable player does not consent to a deliberately inflicted injury, especially outside of the rules.

The case of Giumelli v Johnston^[17] provides a useful contrast to that of Hilton v Wallace. In this case, Johnston was struck in the face by Giumelli’s elbow. This contact was outside the rules of AFL, and was, in the opinion of the trial judge, done with intent to cause injury. On appeal, the Supreme Court of South Australia acknowledged that consent can extend to ‘commonly encountered infringements of the rules’,^[18] but it could not cover ‘physical violence applied in contravention of the rules of the game by an opposing player who intends to cause physical violence or knows, or ought to know, that such harm is the likely result of his actions’.^[19] A similar result had been reached in earlier AFL cases, McNamara v Duncan^[20] and Smith v Emerson.^[21]

In addition to battery cases, criminal cases of assault related to sporting violence also seem to establish that intentional infliction of actual bodily harm will not come within a player’s implied consent.^[22] This is even more likely where grievous bodily harm is suffered.^[23] However, these principles are not entirely clear, because sports such as boxing still continue to enjoy immunity despite involving intentional actions, sanctioned by the rules, which could reasonably cause such harm.^[24]

Much will depend upon the nature of the sport – for instance, there is no doubt that professional boxers intend not just to make contact with their opponent but to injure them. But, because of this inherently combative nature of the sport, would greater leeway also be given to a boxer who caused injury to their opponent in a manner outside of the rules? It may be a question of degree. It is speculated that a (deliberate) blow delivered just after the bell, while against the rules, may still be within the realms of implied consent. A situation such as Mike Tyson famously biting the ear of Evander Holyfield might not.

Despite this view of consent, there may be other reasons why a player who deliberately injures an opponent might not face liability, such as self-defence, and in some states, provocation. These will be discussed below.

Age

While implied consent can be applied to adults exercising their free will in choosing to play a particular sport, there may be greater difficulty in applying the same doctrine to minors.

Junior football competitions must also deal with players who make contact with opponents outside the rules of the sport. Children, often influenced by watching their adult heroes, may transgress and it is not unheard of for physical violence to occur. While contract law deals with capacity issues based on a definite distinction between persons over and under the age of majority, tort law determines consent for a minor based on whether they did in fact have sufficient capacity to understand fully what is involved.^[25] This means that a 16 year old might impliedly consent to some forms of violence which a 10 year old might not.

Determining the capacity of minors to consent is obviously a difficult issue. If a child was found not to have capacity to consent, the consent of their parent would be sufficient. However, does the reasonable parent consent to the same level of violence being applied in a children’s game as they may consent to receiving themselves? The majority of reported cases involving parents, children and consent are based on undergoing medical procedures, where policy factors may play a larger role. It remains to be judicially considered whether a child injured by conduct outside the rules of a sport had capacity to impliedly consent, or whether their parents’ consent extended to such injuries.^[26]

OTHER POTENTIAL DEFENCES

Self-defence

Self-defence is applicable to the tort of battery, and the burden is on the defendant to prove its application.^[27] In order to satisfy the defence, the contact used as a response must be both reasonably necessary and reasonably proportionate to the threat.^[28] This defence can also extend to the defence of another person.^[29]

In a sporting sense, this defence could be raised where it was reasonably apparent that one player was about to punch another – the latter would be justified in making bodily contact to the former in order to avoid that result from happening. Similarly, a player may protect their teammate by physically restraining an opponent who wishes to engage in a brawl.

The distinction must be made between contact which is proportionate and that which is not. The defence will not protect a player whose main objective is to fight, rather than merely defend.^[30] Additionally, if the threat has since passed, this defence does not authorise acts done in retaliation, even if done in the heat of the moment.

Provocation

In the majority of Australian jurisdictions, provocation is not a defence to the tort of battery, although it may be relevant in determining the extent to which the defendant may be liable for exemplary damages.^[31]

However, in Queensland, the legislative definition of criminal assault found in the Criminal Code 1899 (Qld) is also used by courts when defining the civil tort of battery. It has therefore been accepted that criminal defences such as provocation could also apply to the tort of battery in that state.^[32] In this instance, it is required that the actions of the defendant occur before their ‘passion has cooled and the force is not disproportionate to the provocation’.^[33]

AGGRAVATED AND EXEMPLARY DAMAGES

Players who are found to have committed a battery, and who cause injury, will be liable for general damages. However, the prospect of further damages being awarded is also very real. In the case of Steve Rogers,^[34] described earlier, aggravated damages were awarded for the public humiliation that Rogers, a player of high standing in the game of rugby league, suffered by being intentionally injured in front of family and a crowd of fans.^[35] The quantum of aggravated damages was increased on appeal, and was apportioned between Bugden personally and his club vicariously (see below).^[36]

In addition, the NSW Court of Appeal overturned the trial judge’s refusal to award exemplary damages. The rationale for an award of this type is to punish a defendant in order to provide both specific and general deterrence.^[37] The fact that Bugden only had a modest income and had already received a hefty 14-week suspension from playing was relevant in determining the level of deterrence that the court considered appropriate, but the majority still believed that a further pecuniary punishment was warranted.^[38]

This case demonstrates the consequences when a player sets out to intentionally injure another under the guise of sporting competition. Clubs must also be aware of the role they play in such injuries.

Vicarious liability

While many of the battery in sport cases have involved amateur level competition, the issue of vicarious liability will be relevant where players are employed professionally by a club. In the case of Canterbury Bankstown Rugby League Football Club Ltd v Rogers,^[39] it was held that Bugden’s club, Canterbury, should be vicariously liable for Rogers’ injuries, including a portion of the aggravated damages awarded.^[40]

This was because Bugden was engaging in an act which was within the course of his employment – that is, making physical contact with opposition players in order to halt their progress. Although by making contact with the head of Rogers, Bugden breached the rules of rugby league, this was merely seen as an improper mode of carrying out his employment function, as opposed to being a frolic of his own.^[41]

It was also submitted by Rogers that Bugden’s actions were more than merely in the course of employment, but rather were tacitly authorised by the coach and therefore the club. The benefit of this argument would be that the club might also be vicariously liable for exemplary damages. The NSW Court of Appeal did find that the Canterbury coach had ‘revved up’ his players and told them to ‘stop’ Rogers, but declined to find that this alone amounted to an authorisation for Bugden to strike Rogers’ face.^[42] However, it was suggested that the outcome of this issue was close, and Mahoney JA gave the following warning regarding the motivating of players:

It may be that, in professionalised sport, winning, and not playing, is the object. But motivating to win carries with it consequences. The risk that motivation will, in some, lead to illegitimate means of winning is, I believe, plain. There is a line between what is permitted and what is not. If an employer encourages action close to the line he may, in such circumstances, have to bear the consequences of action over the line.^[43]

It may be that, in the future, courts would be prepared to make an employing club liable in such a way. This would particularly be the case should there be evidence of specific targeting of players and explicit encouragement to injure them, as was seen in the NFL competition in the United States with the New Orleans Saints team of 2009. There, ‘bounties’ (bonus payments of money) were placed on star opposition players, and any New Orleans player who could cause injury to such a player would receive the bounty. It was found that the program was devised by a defensive coach, and the head coach had knowledge of it.^[44]

CONCLUSION

Some of the risks involved with playing contact sport are clear, and players must be seen to have consented to certain physical contact based on an objective standard. While the rules of a particular sport offer guidance to the types of contact consented to, they are not conclusive. Contact outside the rules might not result in an actionable trespass. The line seems to be drawn where the infliction of injury is done intentionally, rather than as a mere incident of playing the game. However, such a distinction is blurred in combat sports such as boxing. Participants with reduced capacity to consent also present an interesting problem. While many professional players might seem to adhere to the ‘what happens on the field, stays on the field’ motto, it is understandable that, if a serious injury occurs outside the realms of consent, a player would consider their legal options, particularly given the high stakes in professional sport. The law does not cease to operate on the sporting field. While sporting heroes are at times described as gladiators or warriors, they should not be expected to have this tag applied literally.

John O’Brien is an Associate Lecturer in the Faculty of Law at Queensland University of Technology, Brisbane, where he teaches a number of units including Sports Law. His research interests are in Education Law and Sports Law. PHONE: [phone] EMAIL: [e-mail].

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^[1] Rogers v Bugden (unreported, SC (NSW) Lee CJ, 12022/85, 14 December 1990).

^[2] Carter v Walker [2010] VSCA 340; (2010) 32 VR 1, 38.

^[3] Morriss v Marsden [1952] 1 All ER 925, 928.

^[4] Carter v Walker [2010] VSCA 340; (2010) 32 VR 1, 45.

^[5] Ibid, 38.

^[6] Ibid.

^[7] Cole v Turner (1704) 90 All ER 958.

^[8] Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465, 470. This was reaffirmed in NSW v Knight [2002] NSWCA 392, [16]; NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511, 602-3; and, from a sporting perspective, was discussed in McCracken v Melbourne Storm Rugby League Football Club Limited [2007] NSWCA 353, [26]-[29].

^[9] Carter v Walker [2010] VSCA 340; (2010) 32 VR 1, 38-40. However, it should be noted that in Queensland, ‘indirect’ interferences are also potentially covered by the tort of battery, due to the Queensland courts applying a legislative definition of criminal assault to civil torts of battery. See Criminal Code 1899 (Qld) s245, and also Amanda Stickley, Australian Torts Law (LexisNexis Butterworths, 3^rd ed, 2013) 32.

^[10] Scott v Shepherd [1746] EngR 121; (1773) 96 ER 525.

^[11] See, for example, Sibley v Milutinovic (1990) Aust Torts Reports 81-013, a case of battery in sport, which describes consent as a defence. This can be contrasted with the recent case of White v Johnston [2015] NSWCA 18; (2015) 87 NSWLR 779, in which the NSWCA determined that the absence of consent was the gist of the action and therefore for the plaintiff to prove. See also SKN Blay, ‘Onus of Proof of Consent in an Action for Trespass to the Person’ (1987) 61 Australian Law Journal 25, and FA Trindade, ‘Intentional Torts: Some thoughts on Assault and Battery’ (1982) 2 Oxford Journal of Legal Studies 211, 228-9.

^[12] See Smith v Emerson (1986) Aust Torts Reports 80-022.

^[13] See, for example, McNamara v Duncan (1971) 45 FLR 152; Pallante v Stadiums Pty Ltd (No. 1) (1976) VR 331; Jewell v Crimes Compensation Tribunal (unreported, Administrative Appeals Tribunal, Vic, General Division, No 860613, 16 January 1987); Hilton v Wallace (1989) Aust Torts Reports 80-231; Sibley v Milutinovic (1990) Aust Torts Reports 81-013.

^[14] Sibley v Milutinovic (1990) Aust Torts Reports 81-013.

^[15] Hilton v Wallace (1989) Aust Torts Reports 80-231.

^[16] Ibid, 68, 451. See also Pallante v Stadiums Pty Ltd (No. 1) (1976) VR 331, 339.

^[17] Giumelli v Johnston (1991) Aust Torts Reports 81-085.

^[18] Ibid, 68, 710.

^[19] Ibid.

^[20] McNamara v Duncan (1971) 45 FLR 152.

^[21] Smith v Emerson (1986) Aust Torts Reports 80-022.

^[22] See, for example, Re Lenfield (1993) 114 FLR 195; Abbott v The Queen (unreported, SCWA, July 1995, 98 of 1995, 950429); also R v Brown [1993] UKHL 19; [1994] 1 AC 212.

^[23] R v Brown [1993] UKHL 19; [1994] 1 AC 212.

^[24] Pallante v Stadiums Pty Ltd (No. 1) [1976] VicRp 29; [1976] VR 331.

^[25] Secretary, Department of Health and Community Services v JWB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218, 237-8.

^[26] The case of Re Lenfield (1993) 114 FLR 195 does involve junior sport, in the context of whether criminal acts occurred and therefore whether compensation could be payable to the victim. The action which caused injury to the 13-year-old victim was determined to fall outside the implied consent of a player (presumably of any age). The issue of capacity to consent was not discussed.

^[27] Lewandowski v Medrzycki [2003] VSC 227, [28].

^[28] Fontin v Katapolis [1962] HCA 63; (1962) 108 CLR 177; McClelland v Symonds [1950] VicLawRp 75; [1951] VLR 157.

^[29] Goss v Nicholas [1960] TASStRp 13; [1960] Tas SR 133, 144.

^[30] R v Nguyen [1995] NSWLR 397, 412. See also David Thorpe et al, Sports Law (Oxford, 2^nd ed, 2013) 110.

^[31] Fontin v Katapolis [1962] HCA 63; (1962) 108 CLR 177.

^[32] White v Connolly [1927] St R Qd 75.

^[33] Criminal Code 1899 (Qld) s269.

^[34] Rogers v Bugden (unreported, SC (NSW) Lee CJ, 12022/85, 14 December 1990); Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports 81-246.

^[35] Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports 81-246, 62, 545.

^[36] Ibid.

^[37] Ibid, 62, 554.

^[38] Ibid.

^[39] Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports 81-246.

^[40] Ibid, 62, 545.

^[41] Ibid, 62, 543.

^[42] Ibid, 62, 544.

^[43] Ibid.

^[44] ‘The Joy of Six: NFL cheating scandals from Spygate to Bountygate’, The Guardian (online) 24 January 2015 <www.theguardian.com/sport/2015/jan/23/the-joy-of-six-nfl-cheating-scandals>.