Posted: June 8th, 2016

In 2000, in Agar v Hyde, the High Court held that an international rule-making body of a sport did not owe a duty of care in negligence to amend the sport’s rules so as to reduce the risk of harm to people who played the sport

In 2000, in Agar v Hyde,  the High Court held that an international rule-making body of a sport did not owe a duty of care in negligence to amend the sport’s rules so as to reduce the risk of harm to people who played the sport. In that case, Gaudron, McHugh, Gummow and Hayne JJ   said:
The decision to participate is made freely. That freedom, or autonomy, is not to be diminished. But with autonomy comes responsibility. To hold that the appellants owed a duty of care to Mr Worsley would diminish the autonomy of all who choose, for whatever reason, to engage voluntarily in this, or any other, physically dangerous pastime. It would do so because it would deter those who fulfil the kind of role played by the IRFB and the appellants in regulating that pastime from continuing to do so lest they be held liable for the consequences of the individual’s free choice. The choices available to all would thus be diminished.
This decision has been criticised by Hayden Opie who concluded that “…the principle in Agar v. Hyde that rule-makers of sport may lawfully sit on their hands regarding safety-promoting rule changes because the sport’s inherent risks are the responsibility of participants is too wide and an inappropriate charter.”
By contrast, in April 2015, the American National Football League (NFL) reached a settlement of nearly US$1 billion in the NFL Concussion Injury Litigation which was brought by over 4,500 former players. One of the allegations against the NFL was that the sport’s key administrators had knowledge of the specific risk of serious head and concussive injury   and did not take preventative action, nor warn or educate players about this.
If similar litigation was brought by former players against governing bodies of contact sports in Australia in 2016, to what extent would the governing bodies be held to owe a duty of care in negligence to reduce and/or not increase the risk to players of the dangers and effects of concussions?
In such cases, how should an appropriate balance be struck between the promotion of individual autonomy and personal responsibility of participants in sport, protecting player safety and encouraging risk management by contact sport governing bodies, and providing access to just compensation for injured players?