Jarrod McCracken / NRL negligence case

25 Feb 2005 - Bernie Shinners

Until a more detailed consideration of the judgement can be made, there are some general observations that can be made in relation to the case.

The first is that the decision reinforces the existing state of the law that the civil law in particular the law of negligence applies to those participating in sporting activities.  Whether in a particular incident, the actions of a player participating in a contact sport that results  in an injury to a fellow player will render that player liable at law for any damages that might be suffered, is a complex matter that would need to be considered on the merits of each case as it involves a number of issues including whether what occured was a normal incident of the sport involved or within the accepted norms of the sport.  The judgement in the McCracken case found that what occured in the tackle applied by Bai and Kearney was not "a normal incident of the game of rugby league." 

Nonetheless, it is timely to recognise that whilst there are risks inherent in participating contact sports such as Australian Rules Football, a player cannot partipate in a game intentionally acting outside the rules of the game or recklessly without regard to the rules of the game and the presence of others on the playing arena.

The second aspect is that whilst the court action has been taken against the induvidual players and the individual players will be liable to meet any damages awarded against them, some press reports suggest that any damages awarded will be covered by the insurer of the Melbourne Storm.  Under a legal principle referred to a vicarious liability, an employer is liable for the acts of its employees which occur in the course of the employment.  The liability of an employer under this principle is not unlimited and does not extend to circumstances to an employee "on a frolic of his own".  For example, the act of a player intentionally and forcefully striking another player 60 metres off the ball would generally be considered to be the act of a person "on a frolic of his own".

A prudent employer would normally insure the risk of it being liable for the actions of its employees and that appears from the press reports to be the case with the Melbourne Storm.  The AFLPA has made inquries of the AFL in relation to the extent of the insurance the AFL has, on behalf of the 16 clubs, taken out to cover the liability of players in respect of an action by one player against another.

The AFL has advised that it has taken out insurance on behalf of the 16 Clubs to cover the liability of players for up to $1 million in respect of an action by one player against another for injuries caused by that player.  The AFL further advises that whether the insurance policy applies will be determined having regard to the particular circumstances of each individual case but that deliberate and intentional acts will not, as a general rule, be covered.   

Whilst the McCracken judgement directly involves the game of Rugby League, the AFLPA will review the judgement (which may, in any event, be appealed), further consider all the issues involved and keep the members informed of developments.

Bernie Shinners

Legal Services Consultant

Disclaimer:

This article is intended by the author to provide a general outline of the issues involved for the information of the readers and does not take into account of any individual circumstances.  This article is neither intended to be nor should it be relied upon as a complete or definitive statement of the law on the matters dealt with in the article.