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The New South Wales Court of Appeal in Australia recently made a ruling which opens the way for sports administrators to be held liable for injuries sustained by players.
In the two cases of Hyde v Agar & ors and Worsley v Australian Rugby Football Union & ors, two rugby union hookers became quadriplegics as a result of injuries suffered in scrums in two different games.
The court held that those who are responsible for making rules, which are subsequently proved to be unsafe for players, may be held liable in negligence. It must be noted that the court was deciding on the issue of potential personal liability and not on liability itself.
The decision to extend accountability to rule makers is somewhat surprising considering the general principles of "remoteness", but ever since sport became big business rather than simply a game, it was surely only a matter of time until this type of litigation appeared.
The Smolden case in the UK last year put referees in the firing line and the Australian appeal court considered rule makers to be a logical extension.
The judge was at first instance concerned by novel policy issues arising where voluntary administrators of what was then an amateur sport could be liable to players in teams playing anywhere in the world.
He determined that the International Rugby Board defendants had no duty of care. A number of interesting issues arise:
Firstly, it may be irrelevant where the laws are actually made. In this case they were made in the UK and France. Two of the three appeal court judges held that the alleged torts are located where injuries are suffered. Ultimately the trial judge will have to determine this.
Secondly, if rule makers are found to be liable, will they be jointly liable or jointly and severally liable?
Thirdly, as sport is international, will we find that injured sportsmen will "jurisdiction hop" and seek to sue in jurisdictions which award the highest damages?
This important decision cannot be regarded merely as an Australian one. I have no doubt that English courts will in due course be considering the same issues. So, anyone who is in the potential firing line should insure themselves immediately.