Sports and injuries often go hand in hand, regardless of the type of sport or whether it is considered a ‘contact’ sport. But where does an expectation of some sort of injury begin to cross the line into being a legal issue?
In this article we consider the role of voluntary assumption of risk and where the line is drawn between an expected injury in sport and when it might become a negligence claim.
What is voluntary assumption of risk?
The voluntary assumption of risk is a concept where a person knowingly and willingly takes on the inherent risks associated with their sport and decide to participate anyway.
For motorsport, this might be that you race a car knowing that there is a chance you could have an accident. For ball sports like AFL or NRL, one would participate knowing that they could suffer injuries from tackles or even muscular injuries.
Generally, if a participant suffers an injury, they can’t then seek compensation for that injury, unless very specific criteria are met, including whether the injury was caused as a result of another’s negligence.
Negligence and duty of care in sport
Sporting injuries can give rise to a claim based on negligence. However, there are three essential elements that must be met before this can be proven:
- the defendant must owe the injured person a duty of care;
- there must have been a breach of that duty; and
- this breach must have caused loss or harm to the injured person.
Duty of care refers to the common law obligation of a party to ensure that another party does not suffer harm. In sport, a duty of care commonly arises between participants and by event organisers, sporting clubs and venues to participants spectators.
The obvious risks of sports: Voluntary assumption of risk
“Accepting risk, sometimes to a high degree, is part of many sports.” – Gleeson CJ, Agar v Hyde (2000) 201 CLR 552, 561.
In Australia, ‘voluntary assumption of risk’ can be a defence to a claim of negligence against a person. This defence can be used when an individual has voluntarily exposed themselves to the risk of injury by participating in a sport, and that risk is ‘obvious’.
But what is obvious risk? The Wrongs Act 1958 (Vic) provides that ‘obvious risk’ is a risk that would have been obvious to a reasonable person in the position of the injured party.
Take a football player, for example. The football player is taken to have fully appreciated the obvious risks associated with playing football. Injuries such as strains, sprains, bruising should be expected. So, if the football player were to incur an injury arising from an obvious risk (say, they tear their hamstring) they cannot seek compensation for that injury because this defence would likely apply.
Not obvious: When a claim can be made
The voluntary assumption of risk defence does not apply where the risks assumed are not the same as the risk that eventuated. So if a risk was not reasonably obvious in the circumstances or inherent to the sport, there may be an action in negligence.
By way of example, in the case of Beaumaris Football Club v Hart [2017] VSCA 226, an amateur footballer was injured because the boundary lines in the field were too close to the fence. When attempting to mark the ball during a game the player landed awkwardly and with his foot caught in the fence, resulting in severe injury to his knee. The court ultimately held that Beaumaris Football Club were negligent on the balance of probabilities because the distance between the boundary line and the fence were significantly less than the mandated league minimum of three metres.
Another example is the recent case of Byrne v Motorsport Vision Racing Ltd [2024] EWHC 2966 (KB) in the UK where a professional motorcycle racer sought compensation from Motorsport Vision Racing Ltd and Motorsport Vision Ltd from an accident he sustained after colliding with a barrier on a race track. It was found that while the barrier was appropriate for racing cars, it did not offer sufficient protection for motorcycle riders. Despite the inherent risks associated with motorcycle riding, the court held that the defendant was negligent for failing to fulfill their duty of care to the rider.
Claims may also arise against other participants in sport who engage in reckless or intentional foul play. For example, in Elbanna v Clark [2024] EWHC 627 (KB) in the UK, a rugby player was found liable in failing to reduce his speed or alter his line of run which resulted in a collision with another player while the ball was still in the air. The court held that the rugby player was reckless in running directly at his opponent at full speed and failing to make any effort to avoid the collision or prevent injury.
Furthermore, cases of intentional foul play can give rise to other common law claims, such as battery or assault. For example, in the case of Giumelli v Johnston (1991) Aust Torts Reports an AFL footballer intentionally elbowed his opponent in the head during play. He was held liable for battery (the deliberate infliction of physical interference on another person). The violence had infringed the rules of play and therefore, the injured player had not consented to the associated risk.
Key takeaways
Sport can be dangerous. In agreeing to participate, you are taken to appreciate the nature and extent of the inherent and obvious risks associated with that sport. If you are injured while participating in sport, you should be aware that a claim for compensation could be defended on the basis that you were aware of the risks and accepted them by participating anyway.
However, there may be certain circumstances where a negligence claim may be possible. For example, a claim for compensation may arise in cases where:
- the risk of injury is not obvious in the circumstances nor inherent to the sport;
- the sporting venue is not properly built or maintained; or
- an opponent has engaged in intentional or reckless foul play.
