Sheldon, Robert; Lee, James --- "Dangerous (Professional) Recreational Activities" [2015] PrecedentAULA 61; (2015) 130 Precedent 28

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DANGEROUS (PROFESSIONAL) RECREATIONAL ACTIVITIES

By Robert Sheldon SC and James Lee

Is sport a ‘recreational pursuit’ within the meaning of the civil liability legislation if it is engaged in by professionals? In this article we explore that question, and the following, related, questions: If a professional sports player is employed to ‘cause harm’ to an opponent and is sued by that injured opponent, does the matter fall within civil liability legislation (and its attendant caps on compensation)? In such a case, would his or her employer be vicariously liable? Is the fact that an injury occurs at a location where recreational pursuits are enjoyed more important than the fact that the injured person was a professional sportsperson?

In a case that drew considerable interest at the time of its hearing at first instance, Steven Frederick Rogers sued Mark Bugden and the Canterbury Bankstown Rugby League Football Club Limited for injuries he received in a game of rugby league played on the Sydney Cricket Ground on 16 March 1985.^[1] Rogers’ case, accepted by both Lee CJ at CL and the NSW Court of Appeal, was that Bugden deliberately struck him across his face with his forearm.

Rogers successfully sought to make the club liable for Bugden’s actions. He did so on two bases: because Bugden was an employee of the club and what he had done was authorised by the club; or, because what he had done, though not authorised by the club, was within the scope of his employment. Mahoney JA explained that the second of these involved the propositions that Bugden was required by his employment as a rugby league footballer to grapple with Rogers, to stop him and bring him to the ground and, to do so, he was allowed by the rules of the game to use his forearm to Rogers’ chest or shoulders. But the rules forbade the use of the forearm to the head. As his Honour put it, ‘what Mr Bugden did was to do to the head what he was authorised to do to the body and he did it for the purpose for which he was employed by the club’. The first basis for making the club liable for Bugden’s actions was, however, important to the plaintiff because if striking his head with the forearm was something the club encouraged Bugden to do, as Rogers contended, then the pecunious club would be liable for exemplary or aggravated damages. In that way, the case is of some relevance in understanding the background, at least, to the provisions of the civil liability legislation that resulted from the Ipp Report,^[2] whereby intention to cause harm takes the proceedings outside the operation of that legislation.

The first basis for liability depended upon characterising what the coach had said to the players before the match. Mahoney JA declined to accept that what the coach had said, coupled with what might have been the players’ anticipated reaction to what was said, did not amount to an instruction from the coach to adopt illegal tactics to ‘stop’ Rogers. But his Honour thought that the ‘revving up’ given by the coach, coupled with the connection between a player’s success and his remuneration – where success in the particular game was measured, in part, by his success in ‘stopping’ Rogers – gave rise to ‘a clear risk that a player who was ‘revved up’ might yield to the temptation to ‘stop’ Mr Rogers by whatever means could be employed. The risk that motivating professional sportspeople might lead to them adopting illegitimate means of winning was, his Honour considered, plain. An employer who encourages action ‘close to the line’ between what is permitted and what is not ‘may have to bear the consequences of action over the line’. His Honour saw this prospect as relevant to the question of whether the club was responsible, saying:

‘If the employee, in seeking to win, uses means which are legitimate in one area but not in another, and the employer, by his attitude to winning and his motivation of or instructions to the employee, creates a real risk that the employee will act illegitimately, that may assist the finding that the employer is liable for what happened.

... practices adopted to achieve success may involve the risk not merely that the employer, the club, must bear the burden of damages for injury caused by its players but also that the damages may be so increased as to make an example of it.’

Giles JA analysed the position a little differently. His Honour drew attention to the absence of personal animosity (at least prior to the tackle) between the protagonists and that the tackle was not done in furtherance of Bugden’s own interests. (It may be noted that this last statement causes some tension between his Honour’s view and that expressed by Mahoney JA concerning the connection between remuneration and success: thus, it might be thought, if Bugden ‘stopped’ Rogers, as was his job, and enhanced his reputation as a player in consequence, he might command a greater salary.) What was done was done, said Giles JA, in order to assist the club in defeating Rogers’ club. That result could have been achieved by a legitimate tackle and, accordingly, the use of an illegitimate tackle constituted an unauthorised means of achieving the object for which Bugden was employed. The violence employed was not such as to take the act beyond the employment, in part because a head-high tackle ‘was a well-recognised event’, occurring not infrequently.

Bugden v Rogers was decided well before the various legislative enactments following the Ipp Report. The Civil Liability Act 2002 (NSW) (the ‘CLA’), which represents that state’s response to the Ipp Report, does not apply to intentional acts done with intent to cause injury or death.^[3] There are subtle but important differences in the way in which the legislation in each Australian jurisdiction deals with this area, which are substantially beyond the scope of this article.^[4]

On 12 May 2000, a well-known rugby league player, Jarryd McCracken, was injured in a tackle when in Victoria playing against the Melbourne Storm Rugby League Football Club. He sued the club and two opponents responsible for the tackle.^[5] RS Hulme J was satisfied that the intention of the tacklers was to injure McCracken, but not to such an extent that he was prevented from playing.^[6] The injury envisaged by that finding was based in evidence given by the tackler to the effect that it was the aim that McCracken should land on the ground and suffer some injury.^[7] There was no suggestion that the injury intended by the action of completing a conventional tackle would be either serious or even arguably compensable. His Honour did not determine how major a minor hurt needed to be to come within the concept of an act done with the intention of causing injury.^[8]

What was not in play in McCracken was the CLA’s dangerous recreational pursuit provisions, because they were enacted only after the commencement of the proceedings.^[9] Not at issue was whether or not those provisions apply to a person engaging in what otherwise might be considered to be a recreational activity, as a professional sportsperson.

The question of whether those provisions apply to a professional sporting endeavour, and make any difference, has not yet been the subject of consideration in NSW,^[10] but it is expected to feature prominently in the recently commenced proceedings brought by Michael Greenfield against the Australian Rugby League Commission in the Supreme Court of NSW. Greenfield suffered a career-ending injury as a result of a shoulder charge form of tackle in 2012 when playing for the Melbourne Storm against the Brisbane Broncos.^[11] The type of tackle was outlawed by the ARL within months of the incident. (The problems of control of the laws of an international game which were present in Agar v Hyde^[12] appear to have been absent in the case of the ARL.)

In Tasmania, the question has been answered at first instance by the decision in Dodge v Snell.^[13] Although the wording of the relevant provision of the Civil Liability Act (TAS) 2002 is slightly different to the Civil Liability Act (NSW) 2002,^[14] a common element of both provisions is that they do not distinguish between a recreational activity and a recreational activity which was being engaged in for reward.^[15]

The Tasmanian legislation defines a ‘dangerous recreational activity’ to be one that involves ‘a significant degree of risk of physical harm to a person’.^[16] It also provides:

‘recreational activity includes –

(a) any sport (whether or not the sport is an organised activity); and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure.^[17]

In NSW, the definition adds a third characteristic to the concept and directs attention to the location at which the activity was pursued so that ‘any pursuit or activity’ occurring ‘at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure’ can be a dangerous recreational activity.^[18] It is notable that the type of sport or pursuit generally engaged in at the location need not, arguably, be one that involves a ‘significant risk of physical harm’, provided the activity in which the plaintiff was engaged involved a ‘significant risk physical harm’.^[19]

Dodge involved a plaintiff jockey who suffered serious injury when thrown from his mount as a result of another horse in the race tripping and falling. The plaintiff alleged the fall to be the fault of the defendant, the jockey of another horse.^[20] The defendant accepted that his conduct caused the plaintiff to fall but maintained at trial that he was not negligent.^[21] Wood J found negligence in that the defendant rode his horse in a manner which did not take reasonable care for the safety of the other jockeys in the race, including the plaintiff.^[22]

His Honour considered whether or not the plaintiff was engaged in a dangerous recreational activity at the time of suffering his injuries.^[23] Wood J found that as a professional jockey working in his occupation at the time of suffering injury, the plaintiff was not engaged in a recreational activity and therefore the statutory immunity from liability in negligence did not apply.^[24] The basis for that conclusion was that the use of the word ‘recreational’, given its proper meaning, should not be construed so as to apply to professional sport.^[25] The primary judge found that the construction contended for by the defendant would have the effect that all professional sports participants would be precluded from claiming damages for negligence and there was no indication in the wording of the statute or the extrinsic material which suggested that Parliament had intended that result.^[26]

A difficulty with this approach is that it may not accord the defined term ‘recreational activity’ its prescribed meaning. It is not apparent that the term ‘recreational’ is intended to limit the meaning which is ascribed to the entire phrase by the two definitional sub-paragraphs. Although consisting of two words, the phrase is a composite one with the meanings conferred upon it by what follows in s19. In this regard it is not without significance that the definitional elements commence with the word ‘any’: so that any ‘sport’, whether organised or not, is defined to be a ‘recreational activity’ whether, in the particular case, it was ‘engaged in for enjoyment, relaxation or leisure’.

Further, the reverse floodgates argument to which his Honour was attracted may be less of a concern when the approach adopted in McCracken is available; that is, that if the act is done with intent to injure, then the provisions will not apply, by one means or another, in most jurisdictions.^[27] (It is true that there was no suggestion that the careless riding in question in Dodge carried any element of intention to injure.)

The additional criterion present in the NSW provisions would seem to take the argument further: if a racecourse can be characterised as a place at which people gather for enjoyment (which the authors understand to be the belief of many), then ‘any activity’ pursued at such a venue which had a significant risk of physical injury could be a ‘dangerous recreational activity’. That the provision could reach so far is, perhaps, indicative of the width of operation for which the NSW Parliament wished to provide: the presence of the locational characteristic in the definition of ‘recreational activity’ in the CLA in NSW^[28] detracts significantly from the persuasiveness of the reverse floodgates argument considered in Dodge.

There is pending in the NSW Supreme Court an action by a jockey in the matter of Goode v Angland which arises in similar circumstances to those considered in Dodge. Presumably an issue in the proceedings will be the extent to which the ‘dangerous recreational provisions’ apply to a person working as a jockey. Assuming that the accident took place on a racetrack, the extended provisions discussed above may mean that there is little significance in whether the jockey was paid or not since the accident occurred at a place where people customarily gather for relaxation and enjoyment.

On one view the decision in Dodge, in respect of the application of the dangerous recreational activity provisions to professional sportsmen, is arguably not correct. Because of the different structure of the legislation in each jurisdiction, intermediate appellate courts are relatively less constrained by judicial comity in their application of the decisions of other intermediate courts of appeal dealing with the legislative responses to the Ipp Report. The legislative regimes provide a readily distinguishable context from case to case. In particular, the characterisation of an activity by reference to the place at which it occurs and what ordinarily occurs at that place tends to suggest that the precise circumstances in which a plaintiff came to be injured may be relatively less significant in this area in determining the scope of the CLA and its equivalents: the fact that a participant in an activity involving a significant risk of physical harm was paid to participate may be ‘trumped’ by the fact that the activity was undertaken at a location at which people gather for recreational purposes. The limits remain to be seen.

Returning to the McCracken case, the possible impact of the CLA on similar cases raises a series of issues: given the intent of the players to cause some, albeit minor, injury to their opponents, the provisions concerning dangerous recreational activity would not apply. However, in less violent sports such as, perhaps, soccer, since the intent of a defender is unlikely to be to cause injury the provisions would prima facie seem applicable, subject to what follows.

In any of the collision sports (the rugby codes, Australian Football, lacrosse, Gaelic football)^[29] there must be a distinct possibility of the court finding as a fact that the purpose of tackling, or its relevant equivalent in each sport, is to hurt one’s opponent and, in that sense, to cause injury, though arguably only fleetingly. If so found, then the provisions of the various enactments (in some jurisdictions) will cease to apply and the plaintiff will be entitled to proceed on the basis of the approach taken in Bugden.

In sports in which deliberate collision is not an element, the intent to cause harm will be lacking in most cases, one assumes, and accordingly the various legislative responses to the Ipp Report will apply. But it seems highly unlikely that they will make any difference. This is because, with a few exceptions such as motor racing and horse-racing, the non-collision sports probably do not involve a substantial risk of physical harm.^[30]

Thus, a professional soccer player may well be able to recover damages for a poorly executed tackle from the employer of his opponent as non-collision tackling is something the opponent is employed to do and that it misfired only renders the action an unauthorised means of performing an authorised act. On the other hand, a participant in one of the other football codes is likely to do substantially better because none of the damages limitations or the other fetters on common law damages will apply to him or her. Additionally, he or she will avoid having to run the gauntlet of a submission that the activity, though remunerated, was recreational within the meaning of the various Acts.

There is a counter-intuitive element to this outcome: by playing the inherently more violent code, and thereby consenting to more violence being done to one, the participant in the collision codes may be able recover more by way of damages than the similarly injured player who consented to less violence.

Thus, characterisation of the activity as dangerous in the sense envisaged by the Act is very likely to carry with it absolution from the operation of the Act by virtue of the infliction of some injury being the intention of the players.

It therefore seems at least possible that, had the Civil Liability Act 2002 (NSW) been in force, the dangerous recreational provisions would not have played a significant role in the outcome of the McCracken case. Answers to some of the questions posed in this article may be decided by the case brought by Michael Greenfield, assuming that case proceeds to hearing. Until then, the position, at least in NSW, on the scope of what constitutes a dangerous recreational activity and, further, whether a dangerous recreational activity includes those engaged in for reward, remains uncertain.

Robert Sheldon SC is a senior counsel practising predominately in tort law from 10^th Floor Selborne Wentworth Chambers in Sydney. PHONE [phone] EMAIL [e-mail].

James Lee is a junior barrister practising in both tort and commercial law from 10^th Floor Selborne Wentworth Chambers in Sydney. PHONE [phone] EMAIL [e-mail].

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^[1] Canterbury Bankstown Rugby League Football Club Limited Bugden v Rogers [1993] NSWCA 49; (1993) Aust Torts Reports 81-246.

^[2] Commonwealth of Australia, Review of the Law of Negligence: Final Report, (2002).

^[3] See Civil Liability Act 2002 (NSW) s3B(1)(a).

^[4] See s28C(2) of the Wrongs Act 1958 (Vic). See s3A(1) of the Civil Liability Act 2002 (WA) which excludes Part 1A of that Act (which concerns liability for harm caused by fault) for damages relating to personal injury caused by ‘an unlawful intentional act that is done with an intention to cause personal injury to a person, whether or not a particular person. Note that s51 of the Civil Liability Act 1936 (SA) takes a different approach again by causing the Act to apply to claims for damages arising, relevantly, from negligence, some other unintentional tort and/or a ‘breach of a contractual duty of care’. Queensland’s equivalent deals with the problem slightly differently by preventing the awarding of punitive or exemplary damages except in the case, relevantly, of ‘an unlawful intentional act done with intent to cause personal injury’, see Civil Liability Act 2003 (Qld) s52 (2)(a) and s72A.

^[5] McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107.

^[6] At [37].

^[7] At [19].

^[8] At [42].

^[9] Civil Liability Act 2002 (NSW) s5L-s5N.

^[10] Or any other state or territory except Tasmania.

^[11] Adrian Proszenko, ‘Michael Greenfield shoulder charge Court case could open the ARLC to millions in lawsuits’, Sydney Morning Herald, 20 June 2015.

^[12] Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552.

^[13] Dodge v Snell [2011] TASSC 19.

^[14] The provisions in the states’ and territories’ civil liability legislation in respect of dangerous recreational activity (to the extent they exist) are not uniform, but they are uniform to the extent that they do not differentiate between recreational activities generally and recreational activities engaged in for a reward.

^[15] Civil Liability Act 2002 (NSW) s5L, Civil Liability Act (TAS) 2002 s20.

^[16] Civil Liability Act 2002 (TAS) s18.

^[17] Ibid, s19.

^[18] Civil Liability Act 2002 (NSW) s5K(c).

^[19] Similar definition as in Civil Liability Act (Qld) 2003 s18 and Civil Liability Act (WA) 2002 s5E.

^[20] Dodge v Snell [2011] TASSC 19 at [1].

^[21] At [5].

^[22] At [202].

^[23] At [243].

^[24] At [278].

^[25] At [277].

^[26] At [272].

^[27] S3B(1)(a) Civil Liability Act (Tas) 2002.

^[28] Civil Liability Act 2002 (NSW) s5K(c).

^[29] Boxing is outside the context of this article and is not discussed. Boxing, on any view, involves an intention to injure others.

^[30] See, for example, Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17 at [32]- [33] where Ipp JA held that touch football did not involve a significant risk of physical injury.