The Bump under review

[bowzer]

Bump under scrutiny
4:39:33 PM Wed 18 October, 2006
Paul Gough
Sportal for afl.com.au
The future of the bump is set to be decided over the next month when the AFL conducts its annual review of the tribunal and match review panel.

The league has written to all 16 clubs, the AFL Players' Association and those involved in the reporting process seeking their thoughts on what changes should be made for the 2007 season.

Clubs have been given until November 13 to make their submissions as the league continues to tinker with its new reporting system which was introduced at the start of the 2005 season.

But it is the debate over what constitutes a legal bump that is set to cause the most debate with front-on bumps to a player with his head over the ball likely to be banned next year.

Other areas up for discussion include whether to retain the "behind play" category in assessing reportable incidents, given such incidents are usually classified more harshly by way of intentional conduct anyway and whether the 25 percent points discount for players who have a clean record over the past five years should be extended to only those players that have a clean record (no suspensions) over the past seven years.


And the league has also asked clubs for their thoughts on how the match review panel should classify any reportable incidents involving a player striking another player in the testicles.

At the moment such incidents are classified as being to the body, which carries a lesser penalty than a strike considered to be high, but given the potential for serious injury from such an offence the league has asked clubs whether a strike to the groin should be classified in the same way as a blow to the head.

"At the end of every season we review all our systems including the match review panel and the tribunal system and look at ways we can continue to improve and refine our processes," the AFL's general manager of football operations Adrian Anderson said.

"The feedback from the clubs and their views on a number of key issues as well as suggestions on improvements to the system will be considered by tribunal review committee."

In the AFL's letter to the clubs, the league says it is considering a "specific rule and reportable offence" to protect players with their head over the ball from being bumped front-on, following a submission from the AFL Medical Officers Association.

The AFLMOA recently expressed its concern over the potential for serious injury as a result of "front-on impact when a player is over the ball."

However even bumps when both players are standing upright will also come under serious review, especially those bumps which result in what this year was ruled by the match review panel as "accidental" contact to the head.

Collingwood's Alan Didak and Bulldog Daniel Giansiracusa were both cleared of such incidents in 2006, even though the players they made contact with in Carlton's Heath Scotland and St Kilda's Justin Koschitzke received concussion and a fractured skull respectively.

The AFL has asked the clubs and the players' association for their thoughts on a proposal which will no longer allow players to escape punishment for a bump which makes contact to the head of an opposition player, even if such contact was not the player's intention.

"We have received a proposal that a greater onus should be placed on the aggressor to ensure that the bump is carried out correctly and that no contact to the head occurs," the AFL's letter to the clubs reads.

"This may be achievable by a guideline or rule which specifies that any bump to an opposition player's head will be deemed to be at least negligent where that player had a legitimate option of (instead) tackling or shepherding with arms out."

Another aspect being considered is to whether to increase the points tally assigned to reportable offences arising from such bumps, such as charging and rough conduct to "reflect the fact that these offences are more likely to cause injury."



to put it nicely...this angers me.

[Jazz_84]

seriously AFL is turning into bullshit!!

how soft is it becoming? politics are ruining this game

grrrrr frustrates this shit out of me

[Rusty1978]

I am telling you now, if the AFL restrict the bump any further or even get rid of it, I will go and supprt lawn bowls or something like that as it will have more toughness and hard knocks!!!
Honestly, the AFL needs to f*** these do gooders off and leave the game alone. It is still the best game in the world and EVERYONE loves all of the old vision from yesteryear when it used to be football!!! If they keep f****** with the rules and the game itself, who, in 10-20-30 years is going to want to watch the replays??? Answer! NO-ONE!!!
Anderson and demitriou should just f*** off and leave it alone.

[BenDoolan]

Bump under scrutiny

At the moment such incidents are classified as being to the body, which carries a lesser penalty than a strike considered to be high, but given the potential for serious injury from such an offence the league has asked clubs whether a strike to the groin should be classified in the same way as a blow to the head.

We will now see written officially into the laws of the game "dickhead" followed by signaturies Mr Andrew Demetriou, Mr Adrian Anderson and co with the approval of all 16 clubs.

Once they have butchered "the bump", they will target aggressive tackling next. Seriously, the game is becoming as boring as bat shit. How about concentrating on image issues such as "keepings off" and "flooding" FFS. I don't have the passion for the game as I once used to and it's for reasons such as this.

[Megan]

Oh I thought this was speculation as to what position Lloyd Jnr might be able to play for us in 2024.

[Jazz_84]

Anderson and demitriou should just f*** off

sounds good to me

[jimmyc1985]

Oh I thought this was speculation as to what position Lloyd Jnr might be able to play for us in 2024.

... i get it, i get it!!!

[F111]

seriously AFL is turning into bullshit!!

how soft is it becoming? politics are ruining this game

grrrrr frustrates this shit out of me

You know, I don't think it's politics. I suspect the WorkSafe Act is wielding some influence here.

If a company/organisation eg AFL are deemed to contribute to the injury or death of an employee (I'm guessing a player can be described as an employee) then the organisation can be fined up to around $900,000. Obviously, that'd be something like a spinal injury, permanent head injury or death.

I suspect, and have for a while now, that the AFL are moving to cover their responsibilities by changing the rules to reduce the circumstances that lead to serious injury. If the rules allow certain things to exist, eg the shirt front, and someone gets injured, the law /workcover just may get involved.

Worksafe law has become VERY important in Victoria since the new act was "enacted" within the last two years or so.

The first test case might be very interesting. Also, remember Joe Misiti and Shaun Rehn both sued the AFL over ground hardness and the centre mark that were involved in injury to each of them? Is this coming home to roost with the AFL and now the rules?

I don't know. It's just a thought.

[Jazz_84]

seriously AFL is turning into bullshit!!

how soft is it becoming? politics are ruining this game

grrrrr frustrates this shit out of me

You know, I don't think it's politics. I suspect the WorkSafe Act is wielding some influence here.

If a company/organisation eg AFL are deemed to contribute to the injury or death of an employee (I'm guessing a player can be described as an employee) then the organisation can be fined up to around $900,000. Obviously, that'd be something like a spinal injury, permanent head injury or death.

I suspect, and have for a while now, that the AFL are moving to cover their responsibilities by changing the rules to reduce the circumstances that lead to serious injury. If the rules allow certain things to exist, eg the shirt front, and someone gets injured, the law /workcover just may get involved.

Worksafe law has become VERY important in Victoria since the new act was "enacted" within the last two years or so.

The first test case might be very interesting. Also, remember Joe Misiti and Shaun Rehn both sued the AFL over ground hardness and the centre mark that were involved in injury to each of them? Is this coming home to roost with the AFL and now the rules?

I don't know. It's just a thought.

well thats what i mean, the world is too revolved around being fined and introducing lawyers at the drop of a hat, it's just the same as world oil prices or prices for anything really..... whens it going to stop!

[Madden]

Oh I thought this was speculation as to what position Lloyd Jnr might be able to play for us in 2024.

=D>
Quality.

[Boyler_Room]

I understand what you're saying Filthy, but the laws of the game allowed those sorts of thiings when they chose to become professional players of the sport. It's like the idiots who move next door to a live music venue that has existed for 30 odd years, then complain about the noise.

I think there should be a little more protection for the bloke with his head over the footy, but to take the physicality out of the game... what are we left with? Keepings off? Marks up?

Soon they'll outlaw the specky over the top and the pack mark because someone could get injured. A knee to the back of the head could end someone's career, or the bloke taking the grab might hurt himself when he comes down from space, and we can't have that (Luke Toia sound familiar?).

One of the things that the Americans love about our game (and it's one of the great spectacles) is that why have a very physical game and no need for ridiculous amounts of padding all over our bodies. The way the current administration are heading, we'll be forced to wear excessive amounts of padding just like NFL players.

Vlad and Ando need to get on with running the competition and stop stuffing around with rules. I hate sports that continually change the rules for the hell of it. Aussie Rules Football is fast becoming one of those sports (that changes the rules constantly I mean).

[gringo]

seriously AFL is turning into bullshit!!

how soft is it becoming? politics are ruining this game

grrrrr frustrates this shit out of me

You know, I don't think it's politics. I suspect the WorkSafe Act is wielding some influence here.

If a company/organisation eg AFL are deemed to contribute to the injury or death of an employee (I'm guessing a player can be described as an employee) then the organisation can be fined up to around $900,000. Obviously, that'd be something like a spinal injury, permanent head injury or death.

I suspect, and have for a while now, that the AFL are moving to cover their responsibilities by changing the rules to reduce the circumstances that lead to serious injury. If the rules allow certain things to exist, eg the shirt front, and someone gets injured, the law /workcover just may get involved.

Worksafe law has become VERY important in Victoria since the new act was "enacted" within the last two years or so.

The first test case might be very interesting. Also, remember Joe Misiti and Shaun Rehn both sued the AFL over ground hardness and the centre mark that were involved in injury to each of them? Is this coming home to roost with the AFL and now the rules?

I don't know. It's just a thought.

well thats what i mean, the world is too revolved around being fined and introducing lawyers at the drop of a hat, it's just the same as world oil prices or prices for anything really..... whens it going to stop!

I never thought I'd see the day - legal discussion on BT. This site has become positively cosmopolitan! Well, you boys aren't completely off the mark, but you're not exactly close either. If you can be bothered, this case from the High Court sheds considerable light on the matter. Most of it concerns serving documents in a foreign jurisdiction (issues that fall within the realm of private international law and aren't relevant to the discussion at hand) but the facts of the case are. Basically, two young Australian boys got injured playing Union (in a scrum I think) and tried to sue the governing body for breaching their duty of care to the players. Enjoy!!!

High Court of Australia
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--------------------------------------------------------------------------------

Agar v Hyde; Agar v Worsley [2000] HCA 41 (3 August 2000)
Last Updated: 3 August 2000


HIGH COURT OF AUSTRALIA


GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, HAYNE AND CALLINAN JJ
A E AGAR & ORS APPELLANTS

AND

LUKE DOUGLAS HYDE RESPONDENT


Agar v Hyde [2000] HCA 41

3 August 2000

S159/1999

ORDER
1. Appeal allowed with costs.

2. Set aside the orders made by the Court of Appeal of New South Wales on 19 October 1998 and, in place thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

HIGH COURT OF AUSTRALIA


GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, HAYNE AND CALLINAN JJ
A E AGAR & ORS APPELLANTS

AND

PETER MICHAEL WORSLEY RESPONDENT


Agar v Worsley

3 August 2000

S160/1999

ORDER
1. Appeal allowed with costs.

2. Set aside the orders made by the Court of Appeal of New South Wales on 19 October 1998 and, in place thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

P J Deakin QC with A S Bell for the appellants (instructed by Garrett Walmsley Madgwick)

D F Jackson QC with M L Brabazon for the respondent (instructed by McClellands)


Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Agar v Hyde

Agar v Worsley

Negligence - Duty of care - Particular relationships - Sport - Administrators and players - Whether duty of care owed by rugby union rule-making body to players.

Private international law - Service out of jurisdiction - Service pursuant to Rules of Court - Discretion - Whether necessary to show a good arguable case - Setting aside service - Refusal to exercise jurisdiction.

Supreme Court Rules 1970 (NSW), Pt 10 rr 1A, 2 and 6A, Pt 11 r 8.



GLEESON CJ. These appeals raise the question whether a member of the board of a voluntary sporting association, which has the capacity to make and alter the rules of a sporting contest, is under a legal duty of care to players in relation to the risk of injury.

The appellants were individual members of the Board (or, in the case of one appellant, a corporation which was a member of the Union) of an international Union, formed in relation to the sport of rugby football. One of the functions of the International Rugby Football Board ("the Board" or "the IRFB") was to frame and interpret the rules of the sport, called the "Laws of the Game". The Board met once a year, usually, although not invariably, in London. The individual appellants attended annual Board meetings as representatives of national member unions.


The respondents are both men who, whilst playing the sport in local competitions in Australia, suffered serious injury. At the time of their injuries they were aged 19 and 18 respectively. They have sued various people, and organisations, (including the respective match referees, and local authorities involved with the control and management of the sport), in respect of those injuries, for damages for negligence. The present appeals are not concerned with those claims.


The respondents contend that the rules in force at the time they suffered their injuries were such that they were exposed to unnecessary risk. The particular deficiencies in the rules, of which complaint is made, are said to relate to the formation of scrums.


Fundamental to the claims made against the appellants is the contention that, by reason of the capacity of the Board to make and change the rules of the game of rugby football, each appellant owed a duty of care to all players of the sport, including the respondents. The content of that duty was formulated in oral argument as a duty to take reasonable care in monitoring the operation of the rules of the game to avoid the risk of unnecessary harm to players. In the course of further argument, the reference to monitoring the operation of the rules was altered to taking reasonable care to ensure that the rules did not provide for circumstances where risks of serious injury were taken unnecessarily.

In the argument for the respondents, references to "injury" were often made as references to "serious injury". On any view, the injuries suffered by the respondents were serious. However, if there is a duty of care related to risk of injury, there is no reason in principle to limit it to serious injury, and there are practical difficulties in seeking to do so. Depending upon the circumstances, what might be a minor injury to one person might have serious consequences, physical or economic, for another. It may be that the risk of injury from playing rugby football is so obvious, and the occurrence of injury to players so common, that unqualified references to injury were regarded as forensically embarrassing. Whether a solution can be found in the concept of "unnecessary risk" is a matter that will be considered below.


The existence of the asserted duty of care forms the central issue in these appeals. The context in which the issue arises, and the facts of each case, are explained in the reasons for judgment of other members of the Court.


The outcome of the appeals does not turn upon competing views as to the meaning and operation of Pt 10 of the Supreme Court Rules 1970 (NSW). I see no error in the approach to the relevant rules taken by the Court of Appeal in the present case[1]. The Court of Appeal stressed that, when considering, on an application for leave to proceed under Pt 10 r 2, whether there is a good arguable case, the test is to be related to the jurisdictional nexus required by Pt 10 r 1A, not the merits of the claim for relief[2]. It held that, in the present case, the test was clearly satisfied[3]. On the discretionary aspects of Pt 10 r 2, Pt 10 r 6A and
Pt 11 r 8, the Court of Appeal attached no practical significance, adverse to the respondents, to assertions that the jurisdiction invoked was exorbitant, and that restraint was appropriate[4].



The important point of difference between Grove J, at first instance, and the Court of Appeal, concerned Grove J's conclusion, expressed in terms of proximity, that the material before the court justified and required the conclusion, even at this interlocutory stage, that there was no duty of care of the kind alleged by the respondents to be owed to them by the appellants. The Court of Appeal disagreed with that conclusion, but acknowledged that, if the conclusion were correct, Grove J was right in refusing to grant leave under Pt 10 r 2[5]. By implication, the Court of Appeal also approved the further order made by
Grove J, setting aside service of process on the appellants, under Pt 10 r 6A. It does not matter for present purposes whether the rubric of Pt 10 r 2 or Pt 10 r 6A is invoked. If Grove J was correct in holding that the present is a case where, even in the absence of a hearing on the facts, it is proper to conclude that the claims made against the appellants are bound to fail, then the respondents should not be permitted to proceed with those claims. For the reasons which follow, I consider that Grove J was correct. The appellants did not owe the respondents a duty of care of the kind upon which the claims against them depend. That appears from the material already before the Court, which consists of the pleadings and undisputed evidence explaining a number of the matters referred to in the pleadings. There is no reason to suppose that evidence might emerge at a trial which would alter that position.



The question which arises is not whether those who are, in one way or another, concerned with making, altering, and interpreting the rules of the game of rugby football are, or should be, interested in the safety of players. They would probably all agree that they should be, and would probably all maintain that they are. It is common ground that, from time to time, rules are changed with considerations of safety in mind. What is in issue is not a matter of moral obligation, or social responsibility, but a legal duty of care, breach of which might result in liability in damages to any participant in the sport, anywhere in the world, for any injury suffered in consequence of the breach.


The Court of Appeal pointed out that claims for damages by people engaged in sport are not novel. Their Honours said (omitting references to authorities)[6]:
"After all, opposing players can already sue each other for intentionally and negligently inflicted injuries; they can sue the referee for negligent failure to enforce the rules; and the sports administrator that dons the mantle of an occupier assumes well-established duties of care towards players, spectators and (in the case of golf clubs) neighbours. A duty of care is not negated merely because participation in the sport is voluntary."

Whilst declining to express any concluded view, especially in the light of the significance of issues of policy which it was thought would require elucidation and examination at a final hearing, the members of the Court of Appeal (Spigelman CJ, Mason P and Stein JA) identified control and reliance as the key to any potential duty of care. They said[7]:
"There are clear indications that the IRFB saw itself as the law-giver for the sport of rugby and that it regarded the safety of players as an important factor. Serious injuries are not uncommon. There is evidence of assumption of control by the members of the IRFB board and tenable allegations of reliance by players of the sport. This is arguably the basis of an assumption of responsibility giving rise to a prima facie duty of care, albeit one that may be relatively easy to discharge. The class of potentially affected persons may be very large, but it is finite and readily identifiable."


It will be necessary to return to the nature of the control which is here said to exist. It is to be noted, however, that it is not control of the kind that might exist where the participants in the risky activity concerned are subject to legal compulsion, or are in a relationship involving protective care of a parental or educational kind. We are not dealing, for example, with children playing compulsory sport at school, or with people in an employer-employee relationship. We are concerned with adults participating voluntarily in amateur sport. The concept of control requires closer analysis in a context such as the present.


Voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of a duty of care in any other participant or in any person in any way involved in or connected with the activity[8]. That, however, is not to deny the significance of voluntary participation in determining the existence and content, in a given case, or category of cases, of an asserted duty of care.


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. A great deal of public and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also of the public benefit of sport. Sporting activities of a kind that sometimes result in physical injury are not only permitted; they are encouraged. Sport commonly involves competition, either between individuals or teams. A sporting contest might involve body contact where physical injury is an obvious risk, or the undertaking by individual competitors of efforts which test the limits of their capabilities in circumstances where failure is likely to result in physical harm. Rules are of the essence of sporting competition. Individuals, or teams, wishing to compete must agree, personally or through membership of some form of association, upon the rules which will govern their competition. In the case of rugby football, as in the case of many other sports, there are layers of voluntary associations, from a local to an international level, which provide facilities for individuals who wish to enjoy the game to participate in contests, and which, as part of providing those facilities, make, amend, interpret and enforce the rules of the game. Making and changing the rules may require giving weight to many considerations, some conflicting. It is not in dispute that they may include considerations relating to the safety of participants in the sport. It is at this point, and in this context, that the question of a legal duty of care arises.

The Court of Appeal said that the IRFB is a law-giver, and controls the game. The appellants are sued as individuals; and the essence of the respondents' complaints is that the Board did not change the rules which were in force at the time of the matches in which they were injured. The respondents claim that the rules about scrummaging which were then in force, (and, by inference, the rules as they had been in force for a long time), required amendment in the interests of the safety of players. No individual appellant could amend the rules. No individual appellant controlled the game internationally. No individual appellant was a law-giver. The most that can be said is that each appellant was one of a number of participants in a process by which, from time to time, the rules of the sport at an international level could be made and changed. There were other participants in the same process who have not been sued, but that simply serves to emphasise that it is individual responsibility that is in question, even though it is said that the appellants had that responsibility as members of a group. To speak of persons who were sent once a year to London, as representatives of national unions, as controlling a game of football played in a Sydney suburb, or a country town, by reason of their collective capacity to alter the international rules, is to speak of a remote form of control.


The content of the suggested duty is elusive. Reasonableness is the ultimate test, but reasonableness can only be determined in a context. The obligation, it is argued, is to see that the rules of the game do not expose players to unnecessary risk of serious injury. The risk of young men having their necks broken is a matter to be taken seriously; but some would say the same about other, and lesser, risks associated with rugby football. The game is based on activities such as tackling, scrummaging, rucking and mauling which, by the standards of most members of the community, are obviously dangerous, and which regularly result in injuries which many people, even if not all footballers, would regard as serious. By reference to what standards are such risks to be classified as necessary or unnecessary? What is an unnecessary risk in an inherently dangerous sport? When an obviously risky activity is engaged in, voluntarily, for pleasure, by an adult, how does a court determine whether a certain level of risk is unnecessary?


The qualification, "unnecessary", is of critical importance to the respondents' argument. If it were removed, the contention would be manifestly implausible. But ideas of what is an unnecessary risk in playing a sport vary widely. It is probably the case that most people in the community would not play rugby football, and would regard any possible pleasure associated with the game as being outweighed by the risk of injury. Even amongst enthusiasts, there would be differing views as to the degree of risk that is acceptable. Individuals playing in the one match might have different levels of risk they are personally willing to accept. There are sports, including some codes of football, which carry much less risk of injury to players than rugby football. There is no objective standard by reference to which it is possible to decide that a given level of risk involved in rugby is acceptable, but that beyond that level, it is "unnecessary". The high degree of subjectivity of an assessment as to what level of risk inherent in the sport, as played according to a certain set of rules, is unnecessary, is a factor which weighs against a conclusion that there is a legal duty which, in its practical application, depends upon such an assessment. Furthermore, the risks involved in playing a body-contact sport arise from various sources. A risk might be inherent to an individual player with a particular vulnerability. Or it might result from the vigour with which an opponent, or a team-mate, plays. It cannot be the case that all avoidable risks have to be eliminated. The only way to avoid risk of injury is not to play. No doubt the rules of the game could be altered in many respects to make it safer, but people who enjoy playing, or watching, rugby football have other priorities.


Although the Court of Appeal denied that this would be a case of indeterminate liability, the extent of the potential liability is confined only by the number of people who choose to play the sport anywhere in the world. According to the Bye-Laws of the IRFB, at the relevant time, the first of the stated purposes for which the Board existed was to determine and safeguard the principles relating to amateurism in rugby football. Such an amateur sport may be played in many countries, in widely different circumstances, ranging from organised competitions to casual games, by people of different ages, physical abilities, vulnerabilities, and degrees of skill, enthusiasm, recklessness and courage. It is said that there is a duty, in relation to the rules of the sport, to take reasonable care to protect them all against unnecessary risk of injury. For practical purposes, the liability is indeterminate.


It cannot be denied that, to paraphrase the words of Lord Atkin in
Donoghue v Stevenson[9], players of rugby football are so closely and directly affected by what the IRFB does that members of the Board ought to have them in contemplation as being so affected, but neighbourhood in that sense is not the issue in the present case. Of course, the rules of the game affect the players of the game. It is equally clear that the rules will expose the players to the risk of injury in the sense that they will lay down the conditions of a physical contest in which some people are likely to be hurt. In that respect, harm is foreseeable. It does not follow that the members of the Board were under a legal duty of care to the players of the game of the kind presently alleged. No existing category of case in which a duty of care has been held, in this Court, to exist, covers the present. That is not determinative, but it is significant. The Australian cases in which a duty of care has been found to exist in a sporting context are distinguishable from the present, and no attempt is made to argue that they are directly in point.



The Court of Appeal said that, if a duty exists, its foundation is the combination of control and reliance. As appears from what has been said above, the control attributed to the members of the Board was remote from the respondents, and extended only to participating, or having the capacity to participate, in a process of laying down the conditions of a sporting contest in which people might voluntarily engage. As to reliance, the sporting contest involved an obvious risk of injury; a risk that would be affected by a number of factors, including the attitudes, capacities, and propensities of individual players, which are beyond the influence of the appellants. The suggested duty is of uncertain content. The liability sought to be imposed upon people in the position of the appellants is practically indeterminate in extent.


In Donoghue v Stevenson[10], Lord Macmillan said:
"In the daily contacts of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life."


I am unable to accept that the circumstances of life in this community are such that the conception of legal responsibility should be applied to the relation which existed between the appellants and all people who played the game of rugby football and were, on that account, affected by their action or inaction in relation to the rules of the game. Undertaking the function of participating in a process of making and altering the rules according to which adult people, for their own enjoyment, may choose to engage in a hazardous sporting contest, does not, of itself, carry with it potential legal liability for injury sustained in such a contest.


I would allow the appeals with costs, set aside the orders of the Court of Appeal and order that the appeals to that Court be dismissed with costs.


GAUDRON, McHUGH, GUMMOW AND HAYNE JJ. These two appeals raise questions about the assumption and exercise of jurisdiction by the Supreme Court of New South Wales over defendants who have been served with originating process outside Australia. Both appeals are brought by defendants who were served outside Australia with a Statement of Claim by which (in each case) the plaintiff claimed damages for personal injuries he sustained when playing rugby union football in a match conducted in New South Wales. The immediate question is whether the Court of Appeal of New South Wales (Spigelman CJ, Mason P and Stein JA) was correct in allowing an appeal from the orders of the primary judge (Grove J) and concluding (in effect) that there should be orders in both actions refusing to set aside service of the process outside the jurisdiction; granting leave to proceed against those defendants who had been served outside the jurisdiction; extending the limitation period up to and including the date upon which the defendants were, by the order, deemed to have been served; and making certain consequential orders[11].
The claims in Hyde v Agar




The plaintiff, Mr Hyde, who is the respondent to one of the present two appeals, alleges in the Further Amended Statement of Claim which was served on the overseas defendants that, on 23 August 1986, he was playing rugby football in the position of hooker for the team from the Warringah Rugby Club Ltd in a first grade Colts game against a team from the Gordon Rugby Club Ltd. Paragraph 14 of the plaintiff's pleading alleges that:
"Shortly after half time a scrum was directed to be formed by the Fifth Defendant [the referee of the match]. The front row of the scrum which comprised the Plaintiff and the two props supporting him had not formed into position when the players from the Seventh Defendant's [the Gordon team's] scrum which had then formed charged into the Plaintiff. The Plaintiff's neck was positioned at such an angle that when it was struck by the force then exerted by the opposing players the Plaintiff's neck was broken and he suffered severe spinal injuries."


Nine defendants, or groups of defendants, are sued. The first group, referred to collectively as the "first defendants", comprises 12 individuals (of whom several are now dead) who, it is alleged, were "representatives of the Member Unions on the Council" of the International Rugby Football Board ("the IRFB") and who attended meetings of that Council held in April 1986. These individuals are said to have been members, at all material times, of the executive or governing councils of unincorporated Member Unions on the Council of the IRFB.


The reference to a "Council" of the IRFB is not wholly accurate. The "Bye-Laws of the International Rugby Football Board", which were in force at the relevant time and were tendered in evidence on the hearing before the primary judge, provided for no body known as the "Council". They referred to "the Board", and defined that term as "the Representatives appointed by Member Unions". The term "Council" was introduced in bye-laws made in March 1991 and the pleader appears to have used this term in preference to "Board" to distinguish between the IRFB and those who attend its meetings.


The Australian Rugby Football Union Ltd ("the Australian Union") and the New Zealand Rugby Football Union Incorporated ("the New Zealand Union") are sued (as the second and ninth defendants respectively) and the plaintiff alleges that those corporations were, at all material times, "Member Unions on the Council of the IRFB". Four other individuals (the eighth defendants) are also alleged to have been representatives of Member Unions on the Council of the IRFB and it may be that the pleading is to be understood as asserting that they were representatives of the Australian Union and the New Zealand Union. In any event, we were informed that two of these individuals were ordinarily resident in Australia at the time of service of the process in this matter.


Finally, the proceeding names the New South Wales Rugby Union Ltd, the Sydney Rugby Union, the match referee, the Sydney Rugby Referees Association, and the company which fielded the opposing team, as the third, fourth, fifth, sixth, and seventh defendants respectively.


The appellants in this Court, in Mr Hyde's matter, are the surviving first defendants, all of whom were served outside Australia, the eighth defendants (who were all served outside Australia notwithstanding that two were ordinarily resident in this country) and the ninth defendant (the New Zealand Union).


It is convenient to notice the allegations made in Mr Hyde's pleading against the first and eighth defendants (the individuals who, it is alleged, were representatives of the Member Unions on the Council of the IRFB) and against the ninth defendant (the New Zealand Union). Omitting some particulars given in the pleading, the allegations are:
"1 At all material times an unincorporated association known as the International Rugby Football Board ('IRFB') has made and changed the laws of the game of the sport of Rugby Football at international level and, in certain respects hereafter appearing, in Australia.
1A At all material times the First and Eighth Defendants were representatives of the Member Unions on the Council of the IRFB and attended meetings of the Council with voting rights in that capacity.
1B As such representatives the First and Eighth Defendants could cause changes to be made to the laws of the game of Rugby Football.

...
2C At all material times the First Defendants were members of the executive or governing councils of unincorporated Member Unions of the Council of the IRFB.
...
9 The Council of the IRFB made and from time to time amended the Laws of the game of Rugby Football.
9A At all material times the persons who were responsible for the conduct of the Council of the IRFB in making, not making, changing or not changing the Laws of the game of Rugby Football were:-

(i) The First Defendants and the Eighth Defendants, and/or
(ii) The First Defendants, the Second Defendant and the Ninth Defendant.

...

15 The injury to the Plaintiff was caused by the negligence of the persons responsible for the conduct of the Council of the IRFB referred to in paragraph 9A above."
It will be necessary to return to consider some other aspects of the plaintiff's pleading in the action, including the particulars he gives of the allegation of negligence. For the moment, however, it is sufficient to note that the pleading alleges that the injury sustained by the plaintiff (in New South Wales) was caused by the negligence of the individuals who are named as the first and eighth defendants or by the negligence of those who are named as the first defendants, the Australian Union and the New Zealand Union.

The claims in Worsley v Australian Rugby Football Union Ltd




In his action, Mr Worsley alleges that, on 19 August 1987, at Wagga Wagga, he was playing a first grade game of rugby football in the position of hooker for the Wagga Agricultural College Rugby Union Football Club against a team fielded by the Rivcoll Rugby Union Football Club. Shortly before full time, a scrum was formed and the Rivcoll forward pack engaged before the plaintiff and his pack were ready to receive them. The plaintiff's head was so positioned that, when the scrum engaged, his neck was broken and he suffered severe spinal injury.


The Australian Union is named as first defendant in the action. The second defendants are individuals who, it is alleged
"were members of the executive of the Rugby Football Union, the Scottish Rugby Football Union or the Welsh Rugby Football Union in 1987. At all material times each of the said associations was a Member Union of the IRFB. At all material times the Second Defendants were representatives from their respective Member Unions on the Board of the IRFB."
The New Zealand Union is named as twelfth defendant


"as representative of itself and:
(a) all other members of the executives of unincorporated Member Unions (other than the Second Defendants) and;

(b) all other incorporated Member Unions other than incorporated the First Defendant [sic]

of the International Rugby Football Board as in 1987".

Paragraph 19 of the pleading (omitting particulars) alleges that:


"The Plaintiff's injury was caused by the negligence of the Member Unions of the IRFB as in 1987 which were bodies corporate (including the ARFU, the Twelfth Defendant and the corporate persons [represented] by the Twelfth Defendant) and the members of the executives of the Member Unions of the IRFB which were not bodies corporate (including the Second Defendants and the natural persons represented by the Twelfth Defendant or alternatively, of the representatives of the Member Unions on the Board of the IRFB (including the Second Defendants)."
Again it will be necessary to return to consider some further aspects of the pleading in this action but, as in Mr Hyde's matter, this pleading alleges that the injury sustained by the plaintiff (in New South Wales) was caused by the negligence of the second defendants and (among others) the natural persons represented by the twelfth defendant and by the negligence of the twelfth defendant itself.




The appellants in Mr Worsley's matter are the surviving second defendants and the twelfth defendant.
The applications at first instance and in the Court of Appeal




In each action the plaintiff applied for an order giving leave to proceed against the defendants who had been served outside Australia and for an order that the limitation period for the plaintiff's cause of action against those defendants be extended pursuant to the Limitation Act 1969 (NSW). The defendants who had been served outside Australia did not enter an appearance. They applied for various orders: notably, that service of the originating process be set aside; that the Court declare that it has no jurisdiction over those defendants, or that the Court decline to exercise its jurisdiction in the proceedings in respect of those defendants; or that it determine that it was an inappropriate forum for the trial of the proceedings.


These applications came on for hearing before Grove J who dismissed the plaintiffs' applications and set aside the service outside Australia of the originating process[12].


The plaintiffs appealed to the Court of Appeal. The appeals were allowed and the orders we have mentioned earlier were made. It is from these orders that the present appeals are brought.
The applicable Rules of Court




Service of originating process of the Supreme Court of New South Wales on defendants outside Australia is regulated by Pt 10 of the Rules of that Court. It is necessary to pay close attention to the terms of those Rules and to notice the several ways in which the present Rules differ from rules that apply, and have been considered, in other jurisdictions. Learning that has developed in connection with those other rules cannot automatically be applied to the Rules which govern the proceedings which are the subject of the present appeals.


Four features of Pt 10 of the Rules (in the form in which they stood at the time relevant to these proceedings) should be noted at the outset. First, r 1A of Pt 10 provided that
"[s]ubject to rule 2 and rule 2A, originating process may be served outside Australia in the following cases"
and there then followed 24 paragraphs describing those cases. Secondly, r 2 (to which r 1A was expressly subject) provided that:


"(1) Where an originating process is served on the defendant outside Australia and the defendant does not enter an appearance within the time limited for appearance, the plaintiff shall not proceed against that defendant except with the leave of the Court.
(2) A motion for leave under subrule (1) may be made without serving notice of the motion on the defendant."

Thirdly, r 2A (to which r 1A was also expressly subject) provided that "[w]here an originating process is served outside Australia, a notice in the prescribed form shall be served with the originating process". That notice informed the person who was served that he or she was liable to suffer judgment, or an order against him or her, unless Notice of Appearance was received in the Registry within a specified number of days. It also informed the person served that the Court may set aside service where service was not authorised by the Rules or the Court was an inappropriate forum for the trial of the proceedings.




The latter aspects of the notice reflected the fourth feature of Pt 10 of the Rules which should be noticed. Rule 6A provided that:
"(1) The Court may make an order of a kind referred to in Part 11 rule 8 (which relates to setting aside etc originating process) on application by a person on whom an originating process is served outside Australia.
(2) Without limiting subrule (1), the Court may make an order under this rule on the ground:

(a) that the service of the originating process is not authorised by these rules; or

(b) that this Court is an inappropriate forum for the trial of the proceedings."

The rule to which Pt 10 r 6A referred (Pt 11 r provided (so far as relevant) that:


"(1) The Court may, on application made by a defendant to any originating process on notice of motion filed within the time fixed by subrule (2), by order:
(a) set aside the originating process;

(b) set aside the service of the originating process on the defendant;

(c) declare that the originating process has not been duly served on the defendant;

(d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State;

...

(g) declare that the Court has no jurisdiction over the defendant in respect of the subject matter of the proceedings;

(h) decline in its discretion to exercise its jurisdiction in the proceedings;

(i) grant such other relief as it thinks appropriate.

(2) Notice of motion under subrule (1):

(a) may be filed without entering an appearance;

...

(3) The making of an application under subrule (1) shall not be treated as a voluntary submission to the jurisdiction of the Court."

Service out of the jurisdiction - an exorbitant jurisdiction?




In Amin Rasheed Corpn v Kuwait Insurance[13], Lord Diplock said that jurisdiction exercised by an English court over a foreign corporation which has no place of business in England, as a result of granting leave under the relevant rule of court to serve out of the jurisdiction[14]:
"is an exorbitant jurisdiction, ie, it is one which, under general English conflict rules, an English court would not recognise as possessed by any foreign court in the absence of some treaty providing for such recognition. Comity thus dictates that the judicial discretion to grant leave under this paragraph [of the rules] should be exercised with circumspection in cases where there exists an alternative forum, viz the courts of the foreign country where the proposed defendant does carry on business, and whose jurisdiction would be recognised under English conflict rules."
Considerations of comity, and consequent restraint, have informed many of the reported decisions about service out of the jurisdiction[15]. It is, however, important to notice that rules of court, or local statutes, providing for service outside the jurisdiction are now commonplace - at least in jurisdictions whose legal systems have been formed or influenced by common law traditions. Further, as the Court of Appeal rightly noted in its reasons in these matters, contemporary developments in communications and transport make the degree of "inconvenience and annoyance"[16] to which a foreign defendant would be put, if brought into the courts of this jurisdiction, "of a qualitatively different order to that which existed in 1885"[17].




The considerations of comity and restraint, to which reference has so often been made in cases concerning service out of the jurisdiction, will often be of greatest relevance in considering questions of forum non conveniens[18]. The starting point for the present inquiry, however, must be the terms of the Rules, not any general considerations of the kind just mentioned.


Before the commencement of the new regime established by the Supreme Court Act 1970 (NSW) ("the 1970 Act"), different provision with respect to service outside the jurisdiction was made on the equity side and on the common law side of the Supreme Court. Rule 90 of the Consolidated Equity Rules of 1902 required applications to be supported by an affidavit that, in the belief of the deponent, the applicant had good grounds for relief. In the leading practice work[19], it was stated that an applicant under r 90 "must make out a prima facie case":
"In this State where the Court has before it the statement of claim, it would probably be sufficient for the solicitor to state that he believes his client will be able to prove the necessary facts to support the case made by the statement of claim, and the Court would look at the statement of claim to see that it discloses a probable cause of action."
The observation was offered, by way of contrast, that, in England, "the affidavits necessarily enter into considerable detail".




On the common law side, in the Common Law Procedure Act 1899 (NSW), provision was made, without the need for a prior application, for writs of summons in personal actions against British subjects residing out of the jurisdiction (s 18) and against foreigners residing out of the jurisdiction (s 19). Leave to proceed was necessary before a final or interlocutory judgment might be signed. The Supreme Court Procedure Act 1957 (NSW) repealed ss 18 and 19 and inserted a new s 18 covering all defendants not within the jurisdiction, but again requiring leave to proceed to sign final or interlocutory judgment[20].


Part 10 of the New South Wales Rules in force at the time relevant to these proceedings ("the applicable Rules") followed the pre-1970 Act practice on the common law side and did not provide that leave was required to serve originating process out of the jurisdiction. Nor did Pt 10 of those Rules provide for the kind of evidence which must be adduced in support of an application for leave to proceed. In these respects Pt 10 of the applicable Rules stands in sharp contrast to the provisions practised in the equity jurisdiction of the Supreme Court and with other rules based on the English 1875 rules and 1883 Rules[21]. Those models derived from the previous Chancery practice[22] and rules based on them provided that the court's leave was required to serve out of the jurisdiction and that an application for leave to serve out of the jurisdiction be supported by an affidavit[23]
"stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made".
Moreover, those Rules provided that[24]


"no such leave shall be granted unless it shall be made sufficiently to appear to the Court or Judge that the case is a proper one for service out of the jurisdiction under this Order".
Provisions of this kind found analogies in Pt 10 of the Supreme Court Rules 1970 (NSW) as originally enacted in the Fourth Sched to the 1970 Act ("the 1970 Rules"). Part 10 r 2 of the 1970 Rules provided that unless service outside the State was in accordance with the prior leave of the Court, or the Court confirmed the service, or the person served waived objection by entering an appearance, service outside the State was not valid under that Part. Part 10 r 2(2) of the 1970 Rules provided that leave might be granted "[w]here the Court is satisfied on the following matters ... (b) that the applicant has a prima facie case for the relief which he seeks".




The applicable Rules, however, mark the departure from the models based on the Chancery practice and do not require leave to serve out of the jurisdiction and do not require that the party seeking to serve out demonstrate a prima facie entitlement to the relief sought in the originating process. All that the applicable Rules say is that "the plaintiff shall not proceed against [a defendant served outside Australia who has not entered appearance] except with the leave of the Court"[25]. The applicable Rules are silent about what matters can or should be taken into account in granting or refusing that leave.


Part 10 r 1A of the applicable Rules permits the service of originating process outside Australia only in certain specified cases. If a defendant served outside Australia has not entered an appearance, an applicant for leave to proceed must demonstrate that one or more of the cases set out in r 1A applies. Those cases are described either as "where the proceedings are founded on" a particular kind of claim, or as "where the subject matter of the proceedings" is of a particular kind.


To take the particular paragraphs which the respondents relied on in these matters, it was said that the originating process in each action might be served outside Australia because:
"(a) ... the proceedings are founded on a cause of action arising in the State;
...

(d) ... the proceedings are founded on a tort committed in the State;

(e) ... the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring;

...

(i) ... the proceedings are properly brought against a person served or to be served in the State and the person to be served outside the State is properly joined as a party to the proceedings".



In deciding whether Pt 10 r 1A applied, and thus permitted service outside Australia of the originating process in these two actions, attention must be directed to the way in which the claims made by the respondents are framed. The paragraphs speak of "proceedings [which] are founded on" a specified matter such as a cause of action arising in the State or a tort committed in the State. That focuses attention upon the nature of the claim which is made. That is, is the claim a claim in which the plaintiff alleges that he has a cause of action which, according to those allegations, is a cause of action arising in the State?


The inquiry just described neither requires nor permits an assessment of the strength (in the sense of the likelihood of success) of the plaintiff's claim. The Court of Appeal was wrong to make such an assessment in deciding whether the Rules permitted service out. In so far as the contrary was held in Bank of America v Bank of New York[26] it should be overruled. The application of these paragraphs of r 1A depends on the nature of the allegations which the plaintiff makes, not on whether those allegations will be made good at trial. Once a claim is seen to be of the requisite kind, the proceeding falls within the relevant paragraph or paragraphs of Pt 10 r 1A, service outside Australia is permitted, and prima facie the plaintiff should have leave to proceed.


Often enough, the statement of claim will reveal all that it is necessary to know to assess whether a plaintiff's claim is of the requisite kind. But that may not always be so. For example, the place of making of a contract, or the place of breach of a contract, may not appear from the pleading and some evidence may be required to establish that a relevant paragraph of Pt 10 r 1A[27] is engaged. And where, as here, a plaintiff relies on Pt 10 r 1A(1)(i), which provides for service outside the State on a person who is properly joined as a party to proceedings "properly brought against a person served or to be served in the State", other considerations may arise in deciding both whether the joinder is proper and whether the action is "properly brought". Those questions may, however, be left to one side in the present cases because (subject to one consideration to which it will be necessary to return) it is clear that each of the proceedings is "wholly or partly ... founded on, or [is] for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring"[28]. The claim in each of the present matters is framed in negligence and alleges that tortious acts or omissions caused the damage which the respondent suffered when injured in New South Wales.
The intersection of applications for leave to proceed and applications to set aside service




In some cases, an application for leave to proceed will not be opposed. It is an application which may be made without serving notice of the motion on the defendant[29]. Where the application is made without notice to a defendant, there will be no occasion to consider any question about the strength of the plaintiff's claim. If, however, as was the case in each of these matters, the application for leave to proceed is opposed, and is joined with an application by parties served outside Australia to set aside service or to have the Court decline to exercise its jurisdiction[30], other considerations arise. It is necessary, in such a case, to recall that there are different issues raised on the hearing of an application for leave to proceed from those that arise on the hearing of applications to set aside service or to decline to exercise jurisdiction.


Central to the inquiry on an application for leave to proceed is whether the originating process makes claims of a kind which one or more of the paragraphs in Pt 10 r 1A mention. If the originating process makes such a claim, r 1A provides that the process may be served outside Australia and, on proof of service of the process, the Court's jurisdiction is, prima facie, properly invoked over the party who has been served. In the absence of some countervailing consideration, leave to proceed should then be given.


On an application to set aside service, or to have the Court decline to exercise jurisdiction, attention might be directed to any of a number of features of the proceeding, the claims made in it, or the parties to it, in aid of the proposition that the Court should not exercise jurisdiction. Part 10 r 6A is cast in general terms and it would be wrong to attempt some exhaustive description of the grounds upon which the rule might be invoked. Nevertheless, it may be expected that three common bases for doing so are first, that the claims made are not claims of a kind which are described in Pt 10 r 1A[31], secondly, that the Court is an inappropriate forum for the trial of the proceeding[32] and thirdly, that the claims made have insufficient prospects of success to warrant putting an overseas defendant to the time, expense and trouble of defending the claims. Whether the Rules prescribe a different test for determining questions of inappropriate forum from that developed at common law[33] is a question which we need not stay to consider. In these cases, it is necessary to deal only with the last of the bases we have mentioned. It was on this that the appellants chiefly relied.
Insufficient prospects




If service was authorised by the Rules, and has been properly effected, the Court's authority to determine the issues that are raised by the proceeding has been regularly invoked. If the Court is not persuaded that it is an inappropriate forum for trial of the proceedings, it will have reached that conclusion having given due weight to the considerations of comity and restraint which we mentioned earlier. Only then do the prospects of success of a claim made in originating process served outside Australia fall for consideration.


It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[34], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.


It was suggested, in the present matters, that some less demanding test should be adopted in cases where a defendant served overseas seeks to have that service set aside. There are at least two reasons why that should not be done. First, and most fundamentally, what is the criterion which is to be applied? Are proceedings to be terminated upon a prediction (on what almost invariably will be less evidence and argument than would be available at trial) of the "likely" or "probable" outcome of the proceeding? That cannot be so. It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities. And if it is not to be enough to persuade the court that it is more probable than not that the case against a defendant will fail, and some higher test (less than that now applied in applications for summary judgment) is to be applied, how is that test to be described? The attachment of intensifying epithets, such as "very" or "highly", offers little useful guidance for those judicial officers who would have to apply the test and who would have to do so, often enough, in a busy practice list. Such a test would be unworkable.


Secondly, as the present proceedings show, the application of some different, and lower, test in favour of overseas defendants would lead to unacceptable results. It would mean that proceedings must continue to trial against those defendants who happen to have been served with the originating process within the jurisdiction, but can be brought to a summary end by those who are served overseas even where the claims against the local and overseas defendants are identical.


For these reasons, the same test should be applied in deciding whether originating process served outside Australia makes claims which have such poor prospects of success that the proceeding should not go to trial as is applied in an application for summary judgment by a defendant served locally.


The appellants submitted that the respondents' claims against them were doomed to fail: first, because the claims made were statute barred and secondly, because the appellants owed no duty of care to the respondents. We deal first with the appellants' alleged duty of care.
Duty of care




Reduced to essentials, each respondent's claim makes the following contentions:
(a) the Board of the IRFB made, and from time to time amended, the laws of the game of rugby football;

(b) the individual appellants who attended the meetings of the Board that were held in the year or so before the respondent was injured (or the corporate or unincorporated bodies who nominated persons to attend those meetings) could cause changes to be made to the laws of the game;

(c) the persons who attended those meetings (or those who nominated them to attend) owed a duty of care to all players who played the game.




The respondents emphasised evidence, adduced on the primary hearing of the applications, which it was submitted demonstrated that injuries of the kind they sustained were not uncommon in rugby games played in Australia according to the laws of the game in force at the time that they were injured. The risk of injury was, therefore, so the respondents submitted, reasonably foreseeable[35]. They submitted that, as the Court of Appeal said[36], "the IRFB saw itself as the law-giver for the sport of rugby and that it regarded the safety of players as an important factor". These considerations, coupled with the Court of Appeal's conclusion[37] that "[t]here is evidence of assumption of control by the members of the IRFB board and tenable allegations of reliance by players of the sport", were sufficient, so the respondents contended, to reveal an arguable case that the appellants owed each a duty of care of the kind alleged or implied in his pleading.


It may be difficult for a court to say from the pleadings that a claim by a plaintiff that the defendant is liable in negligence is bound to fail because it is not arguable that the defendant owed the plaintiff a duty of care. Such cases do arise. In Esanda Finance Corporation Ltd v Peat Marwick Hungerfords[38], this Court held that the statement of claim did not disclose a cause of action in negligence against the defendant auditors. In Mutual Life & Citizens' Assurance Co Ltd v Evatt[39], the Privy Council held that the declaration in that case was demurrable because it did not describe a relationship which imposed upon the defendants a duty of care in giving advice to the plaintiff. However, as Barwick CJ observed in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd[40]:
"[In] fact pleading as it was introduced in the judicature system, there is no necessity to assert or identify a legal category of action or suit which the facts asserted may illustrate, involve or demonstrate and on which the particular relief claimed is based or to which it is relevant."
The result is that frequently the conventional form of pleading in an action of negligence will not reveal the alleged duty with sufficient clarity for a court considering an application for summary termination of the proceeding to be sure that all of the possible nuances of the plaintiff's case are revealed by the pleading. Further, and no less importantly, any finding about duty of care will often depend upon the evidence which is given at trial. Questions of reliance or knowledge of risk are two obvious examples of the kinds of question in which the evidence given at trial may take on considerable importance in determining whether a defendant owed the plaintiff a duty of care.




In these cases, however, we are persuaded that it is not arguable that the appellants in either case owed the respondent a duty of care.


First, duties of care are owed to individuals and must be considered in relation to the facts of that individual's case[41]. That does not mean that the conduct of a person cannot give rise to a duty of care to many persons. Nor does it mean that a person cannot owe a duty to someone whom he or she does not know or cannot identify.


Nevertheless, the basic rule of the law of negligence is that it is "incumbent on a claimant to establish breach of an independent duty to himself as a particular individual"[42]. If the appellants owed a duty to these respondents, they must have owed a similar duty to the many thousands, perhaps hundreds of thousands, of persons who played rugby union throughout the world under the laws of the game which the IRFB had made. To hold that each of the individual appellants owed a duty of care to each person who played rugby under those laws strikes us as so unreal as to border on the absurd.


Further, from the earliest times, the common law has drawn a distinction between a positive act causing damage and a failure to act which results in damage. The common law does not ordinarily impose a duty on a person to take action where no positive conduct of that person has created a risk of injury to another person.


Here the appellants were members of the IRFB, an institution which "saw itself as the law-giver for the sport of rugby"[43]. But they have done nothing that increased the risk of harm to either of the respondents. The complaint is that they failed to alter the status quo, failed to alter the rules under which the respondents voluntarily played the game. In our view, they no more owed a duty of care to each rugby player to alter the laws of rugby than parliamentarians owe a duty of care to factory workers to amend the factories legislation.


In our opinion, when an appellant attended meetings of the Board, the law of negligence did not require him to conclude that thousands, perhaps hundreds of thousands, of rugby players were so closely and directly affected by his presence as a Board member that he ought to consider whether he should propose an amendment to the laws of the game to protect each player from injury[44]. Unless it did, no duty of care to the respondents could arise.


The duty was said to concern the rule-making function of the Board, but its exact content was not entirely clear. In Mr Hyde's case, one of the particulars of negligence described the duty as "to exercise reasonable care in the rules made for the playing of the game to ensure that the foreseeable risk of injury to players, particularly, for scrummaging, was avoided". But what was meant by saying that the duty was to "exercise ... care in the rules" is obscure. Further, if the words "risk of injury" were intended to refer to any and every kind of injury (as the words of the particulars suggest) then they are clearly too wide when used in the context of a vigorous, sometimes violent, body contact sport like rugby union football.


In Mr Worsley's case, there is no allegation or particular which expressly states the duty alleged. But the general tenor of the duty can be understood from the particulars of negligence "of the Member Unions of the IRFB" that are given in his pleading. Those particulars refer to "[a]dopting and retaining rules regulating scrummaging which created an unreasonable risk of spinal injury" and "[f]ailing to amend the Laws of the Game to reduce the risk of spinal injury, as could reasonable [sic] have been done".


Each respondent, then, asserts that the appellants failed to cause a change in the laws of the game and that this failure was a breach of duty which caused the respondent injury. This statement of the argument tends to obscure the fact that it is an argument which has several discrete steps in it. It is necessary to give close attention to each of those steps.
Changing the laws of the game




If the negligence of the appellants consisted in their failure to change the laws of the game, it is important to consider their power to change those laws. How were they to "cause a change in the laws of the game"?


As has already been mentioned, the IRFB is an unincorporated association. Its bye-laws provided at the relevant time for a body, called "The Board", which "shall consist of two Representatives from each of the Member Unions who shall manage and exercise full control over the affairs" of the IRFB. The Board existed for the purpose (among others) of "Framing and Interpreting the Laws of the Game". The bye-laws provided that the laws of the game "shall be promulgated by the Board ... and shall be binding and uniformly observed in all matches" subject to two exceptions. The first concerned certain experimental variations of the laws and the second related to the continued use by the Australian Union and the New Zealand Union "in domestic matches" of a particular variation of the laws about the replacement of injured players.


Bye-law 11 provided:
"No alterations ... in the Laws of the Game shall be made except at the Annual Meeting of the Board, or at a Meeting specially convened for that purpose, and unless carried by a majority of a

[tom9779]

massive over reaction to a couple of very isolated incidents.

the AFL is over administrated.

which is easy to do when you have millions in the bank to play with.

[gringo]

I have gone through and highlighted the more important parts of Justice Gleeson's judgment. I have highlighted and italicised the ratio decidendi of the case. It's quite a good judgment actually, and is currently the law in this country in regard to governing sporting bodies and their duty of care to players.

[Madden]

Are you actually a lawyer Gringo? Or just trying to big-note yourself?

[gringo]

I just thought it might clarify the matter beign discussed! I'm not sure if you've taken the time to read it, but it really is quite interesting. If anyone has any questions, let me know.

[Ramanama]

Anderson and demitriou should just f*** off

sounds good to me

And me

[F111]

Worksafe/workcover act of 2004 (Ithink it's 2004) is L.A.W. law. Gringo, your very interesting though laborious read is a civil action and dated 1998. With new law, I'm wondering if the AFL thinks it can be charged if a player gets injured. Workcover inspectors can now apply fines to persons and organisations just like the police can.

The Kosi clobber this year for example. If he had sustained damage, might workcover have an issue? Might they have one anyway? In the normal workplace, all it needs is a notification or a report of an incident to get the process started. Caracella's hit is another?

Of course the concept of knowledgeable adults playing a game that carries risk of injury just muddies the discussion.

What is an unnecessary risk in an inherently dangerous sport? When an obviously risky activity is engaged in, voluntarily, for pleasure, by an adult, how does a court determine whether a certain level of risk is unnecessary?

This is sport, and as such there may be issues that make it a little different, a bit more difficult to conceptualise the differences to the traditional workplace. Maybe time will change that though. The above High Court discussion also writes

The starting point for the present inquiry, however, must be the terms of the Rules..

The AFL are being seen to be managing change towards a safer work environment by manipulating these rules. Maybe that's enough for the moment?

I have no idea if I'm anywhere near the mark here. It's just supposition in the context of changes in footy rules and workplace safety law. They may have no relationship, but then again, they just might.

The other concept that is often mentioned is the perception of footy as a rough game. What effect does that have on mum's and their little boys, and the future involvement of youngsters?? Is the AFL looking to protect itself from the ever present soccer?

[BenDoolan]

As an Occupational Health & Safety Consultant, I fail to see how Occupational Health & Safety legislation significantly impacts upon a sporting arena. Footballers are contracted to a football club, not employed, and I am not aware of any arrangements to suggest that WorkCover premiums are paid by clubs to cover player injuries (I could be wrong though).

The definition of a "workplace" is defined as a place, whether or not in a building or structure, where employees or self-employed persons work. The Occupational Health & Safey Act 2004 is not "new", it has been re-issued and replaces the OH&S Act, 1985. Overall, there are some changes, but none of great significance. Duties upon "employers" has been around for 21 years and are detailed in section 21 of the Act. Employers also have a duty to contractors that they engage. One has to ask who the employer is in this case. Is it the AFL? Is it the footy club?

In my own opinion, I believe the AFL handles injuries using Risk Management principals to manage liability. Public liability, professional indemnity insurances etc, etc. I am yet to hear about any prosecutions, issuing of fines or improvement notices being issued by the Victorian WorkCover Authority to any club or the AFL as a whole over any matter that has risen from any injury incurred by the game itself. Within the Act is a mandatory incident notification where the employer must notify the authority within 48 hours of any employee who has been hospitalised. If they are bound by this Act then WorkSafe inspectors would be very busy indeed. Even if a player enters hospital for scans, the authority has to be notified.

Under the huge umbrella of the Act, are a number of Regulations that organisations must comply with. Among them are Manual Handling Regulations and Prevention of Falls Regulations. If an employee has the potential to fall greater than 2 metres, control must be implemented to prevent that fall from occurring. Take a player leaping on top of a 205cm ruckman......problem! Looks like we have to ban the speckie!!

I seriously doubt that OH&S legislation has any bearing on the rules of the game at all. Let us not forget that this is a National competition, therefore, it is not only the Victorian OH&S Act that is relevant, but all states that the sport is played. Players are able to sue the AFL if they have been negligent in some way that has contributed to the players misfortune. As I have said, I am yet to hear of any action taken by VWA or any other authority regarding injuries sustained during the game itself.

Please enlighten me if anyone knows anything to the contrary.

Is there a yawning emoticon somewhere?.........

[F111]

BD, Will this do? Are you tired? The night is but young!

it's good to get the opinion of a knowledgeable professional in the area of discussion.

As I say in my post, it's only supposition in the context of changes noticed...just supposition. I appreciate the opinion.

Regarding

As I have said, I am yet to hear of any action taken by VWA or any other authority regarding injuries sustained during the game itself.

Neither have I. Taking that leap from workplace to sporting arena might not be easy, but the way this world is heading, it would not be a surprise.