Critique on the Role of Consent as a Defense to Trespass Torts in Sports

This article discusses the role of consent as a defense to trespass torts in sports, including the circumstances required for consent to operate as a valid defense and when consent should fail as a defense. It also explores the role of referees and other officials in protecting participants from harm.

Running head: CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 1
Critique on the Role of Consent as a Defense to Trespass Torts in Sports
Name
Institution

CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 2
Critique on the Role of Consent as a Defense to Trespass Torts in Sports
How Trespass Occurs in Sports
Besides land and chattels, trespass encompasses all kinds of unlawful direct and
intentional interferences with individuals.1 As a matter of law, the ancient tort of battery is
construed as a form of legally actionable trespass, which comes about as a result of a person
directly and either negligently or intentionally causing some physical contact with another
without consent.2 For instance, a deliberate kick on another player qualifies as an act of trespass.
There is a direct and deliberate coming up into contact with the other person.
Contact sports which involve possible hits and strikes to the head –including boxing,
martial arts and even football, played at any level- implicate violent physical contact to
participants: contact that would otherwise accrue civil and even criminal liability outside the
context of sporting competition.3 The assumption is that the participants in these sports accept, to
some extent, the risks of injury that come with taking part in such sports. There is an implied
voluntary assumption of risk by the players taking part in the game.4 Therefore, a bone of
contention is centered on the issue of consent.
Consent as a Defense
A Canadian case of Agar v Canning saw the court rule that “[a] person who participated
in [the sport of hockey] must be assumed to admit the risk of unintended harm and to waive any
claim he would have apart from the match for trespass to his person in return for enjoying a
corresponding immunity with respect to other players.”5 This is also the prevailing view in the
1 VerSteeg, R., 2016. Consent in Sports & Recreational Activities: Using Contract Law Terminology to Clarify Tort
Principles. DePaul J. Sports L. & Contemp. Probs., 12, p.1.
2 Centner, T.J., 2015. Tort liability for sports and recreational activities: expanding statutory immunity for protected
classes and activities. J. Legis., 26, p.1.
3 Epstein. A. 2003. Sports Law. Delmar Leaning.
4 Teacher, Law. (November 2013). Trespass to person. Retrieved on August 30, 2018 from
https://www.lawteacher.net/free-law-essays/jurisprudence/trespass-to-person.php?vref=1
5 Agar v. Canning [1965] 54 W.W.R. 302 (Man QB)

CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 3
NSW courts. That imposing a duty on an athlete to take care for the safety of his counterparts
during their sporting actions would be inconsistent with the implied consent of the other layers in
taking part on the game.6 Therefore, if a player signs into a particular sport, he or she knows
what the sport entails and consents to even the risks that come with it.
The courts recognize that in sporting activities, there is an implied consent by a player to
certain types of physical contact. However, over the past decade, the principle of implied consent
has been defined to include a limited scope of contact between players during a sporting activity.
The complainant in McNamar v Duncan successfully sued the accused for injuries sustained
during a match. The defendant struck him while playing Australian football and the actions were
deemed to contravene the sport rules. It was stated that while the bodily contact was foreseeable
by both parties as it was part of the game, the acts by the defendant surpassed the scope of what
the plaintiff impliedly consented to.
Circumstances Required for Consent to Operate as a Valid Defense
For one to be considered to have fully agreed to be a part of a sport that would involve
hits and strikes to the head, with a consequent risk of concussion, the player must have consented
to take part in the game. There are four aspects that need to be present for consent to be
validated. This include the fact that the decision has to be i) voluntary, ii) given with knowledge
of the risk or act, iii) made by a competent person and in relation to the act in question.7
Voluntary Decision
In ascertaining whether a decision to contract is voluntary, the standard rule is that it has
to be genuine. The person must show the will to consent. Decisions made under duress or undue
influence are considered to be involuntary. In the case of Norberg v Wynrib, a doctor was found
6 Citron. J. A., & Abelman. M. 2003. Civil Liability in the Arena of Professional Sports. U.B.C Law Review.
Retrieved August 30, 2018 from
http://www.goodmans.ca/pdfs/CIVIL_LIABILITY_IN_THE_ARENA_OF_PROFESSIONAL_SPORTS.pdf
7 Barker, K., Cane, P., Lunney, M. and Trindade, F., 2012. The law of torts in Australia. Oxford University Press.

CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 4
to have unduly influenced his patient into accepting drugs in exchange of sexual favors. Undue
influence was due to the unequal power in a doctor patient relationship.8 The question here is
whether an athlete genuinely consents to the predicaments that come with participating in the
sports.
Knowledge of the Risk of Act
With respect to knowledge of the act, the stance is that even when the contracting party is
unaware of certain aspects of the act, validity of the consent can still be proven. In other words,
an athlete does not necessarily have to know the predicaments of getting involved in a sporting
event for him or her to be considered as consenting to it. Fraudulent misrepresentation
Competency of the Contracting Party
The consideration being looked at in this case is the ability of the contracting party to
understand what he or she is signing up for. It excludes minors, intellectually disabled or
incapacitated persons as such lack the capacity to rationalize the contents of an agreement. The
person making the decision has to be of sound mind.
Relation to the Act Combined
It was ruled in the case of McNamara v Duncan that playing a contact sport does not
necessarily mean that consent has been given to all types of body contacts that could take place
in the course of a match.9 As it was in the case, a contact which is intentional and not part of the
game is considered malicious and treated as trespass to person.
When Consent Should Fail As a Defense
Sports which involve hits and strikes to the head, with a consequent risk of concussion
should be treated with a greater degree of care. A mere defense of consent should not suffice
8 [1992] SCR 226
9 (1971) 26 ALR 584

CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 5
even if the aforementioned aspects have been ascertained. In boxing matches, for instance, a
player exerting hostile blows that do not form part of the set regulations of skill and rules of
contest will be considered to be acting ultra vires. Such will be treated as trespass as it was the
case in Pallante v Stadiums Pty Ltd Ltd [1976]. Fox J in the case of McNamara opined that
despite the fact that forcible bodily contact was part of the game – “I do not think it can be
reasonably held that the plaintiff consented to receiving a blow such as he received in the present
case. It was contrary to the rules and was deliberate.”10 As such, it is not just about consenting to
the sport. An objective test should be taken prior to upholding consent as a defense and
disregarding a plaintiff’s plea for damages. Rationally, two aspects have to be considered. These
are intent and severity of the injury.
Intent
The intent of the opposing player is a plausible rebuttal to the defense of consent. A hit
that is deliberate or malicious cannot stand on the basis that the aggrieved party consented to a
contact sport. It comes out to be just beyond the line of consent.11 For instance, coalition after the
whistle, when the play has stopped or outside the ring or field. A recent incident in Queensland
stands out as a timely reminder that there is only but a limited scope of consent which will be
accepted as implied by the courts in relation to contact that takes place in a sporting action. An
AFL Queensland’s independent tribunal sustained the charge that saw an Ipswich Eagles Aussie
player banned from playing for 20 years.12 The respondent was accused of a “deliberate and
sickening” kick during an AFL game which saw the opponent experience a series of migraines.
After falling to the ground, the opponent –who was the accused- booted him in the side of the
head. As told by a witness in the match, the ball was on hold and the opponent just kicked him in
10 Ibid. 9.
11 Seaton v. Gagnon [1997] O.J. No. 3982 (Gen. Div.)
12 Lloyd. E. 2017. Law for Non-Lawyers Course: Torts in Sports. Retrieved on August 30, 2018 from
http://bucketorange.com.au/torts-sports/

CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 6
the head out of the blues. The move was deliberate and intended to cause harm to the opponent.
In addition, his name was deregistered in what appears to be a career crashing penalty.13
Yet even if the motive is laudable, if the striking is intentional, then that should accrue
liability on the part of the injuring player. This was the reasoning adopted in the McNamara
case. The two players were in opposing sides of an AFL match. The complainant had just kicked
the ball after which the respondent rammed into him, upturned his elbow and struck him on the
side of his head. He fractured his skull and underwent an emergency surgery which saw a deadly
clot removed from around his brain. He was left with a minor degree of permanent disability.
The judge opined that while the motive was justified, the technique was flawed.
Severity of the Injury
The severity of the injury ought to be considered when a defendant sites consent as a
defense to acts of trespass to persons in football matches. While this is rarely or never applied, it
is a reasonable rebuttal to consent. A player should not be taken to have consented to prohibited
acts such of serious battery causing grievous body harm even though it is anticipated that such
may occur. Players are subjected to severe and devastating injuries in the course of sport action
that letting the perpetrators scot free is illogical and unreasonable. To the least, potentially
career-ending challenges, hits or strikes ought not to be covered in the bracket of consented
sporting activities.
A degree of duty should be placed on the part of players to ensure that they do not
involve in acts that would grievously affect the biological set up of their opponents. Tackles,
strikes or challenges that fracture the vertebrae column, damage the brain, lead to a loss of limb
or part of body or even end up in death should be condemned and be the perpetrator’s burden
13 Clark. C., Smith. E. Ipswich Eagles Aussie rules player banned from playing for 20 years. The Courier Mail.
Retrieved on August 30, 2018 from https://www.couriermail.com.au/questnews/ipswich-eagles-aussie-rules-player-
banned-from-playing-for-20-years/news-story/2f2a18be760220f86b579f97c6db4b0b

CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 7
regardless of a lack of intention. A failure to uphold this duty, marked by the severity of the
injury, is a reasonable basis for liability. As such, compensatory damages –in hospital bills,
mental distress and losses incurred among others- should be covered by the accused person in
such cases. Drawing from ethics, it is not fair for a person injured by another to incur the burden
of expenses while the perpetrator walks scot free.
Role of Referees and Other Officials in Protecting Participants from Harm
The presence of certain personnel who are supposed to mitigate the possibilities of
serious injuries is mandatory in every sports. Referees are the ambassadors of order in any
match. They undertake a regulatory role ensuring that both participants of the sports are playing
within the required rules. Any act of malice intended to harm or injure a player is punished by
the referee. In a bid to mitigate possible injury that would arise, Section 66 of the Combats
Sports Act outlines a number of provisions pertaining to the obligations of a referee has in
stopping a contest. This includes if, in the referee’s judgment, a combatant is injured or
exhausted to such an extent as to be incapable of defending himself or herself or to continuing
the contest.14 The responsibility is accorded in a bid to stop furtherance of any injury. In addition,
every sport requires the presence of doctors. In boxing, a ring-side doctor is required and must
direct the referee to halt a contest if he or she is convinced that the combatant is injured or too
exhausted to defend himself or keep on with the contest.15 However, it is important to note that
actions taken by the referees are only sport-related and do not include damages for the injuries
suffered during sports.
14 Section 63 of the Combats Sports Act
15 Section 63 of the Combats Sports Act

CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 8
Bibliography
Books
Barker, K., Cane, P., Lunney, M. and Trindade, F., 2012. The law of torts in Australia. (5th ed.)
Oxford University Press.
Epstein. A. 2003. Sports Law. (1st ed.). Delmar Leaning.
Cases
Agar v. Canning (1965) 54 W.W.R. 302 (Man QB)
Norberg v Wynrib (1992) SCR 226
McNamara v Duncan (1971) 26 ALR 584

CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 9
Seaton v. Gagnon (1997) O.J. No. 3982 (Gen. Div.)
Statute
The Combats Sports Act
Journals
Centner, T.J., 2015. Tort liability for sports and recreational activities: expanding statutory
immunity for protected classes and activities. J. Legis., 26, p.1.
Citron. J. A., & Abelman. M. 2003. Civil Liability in the Arena of Professional Sports. U.B.C
Law Review. Retrieved August 30, 2018 from
http://www.goodmans.ca/pdfs/CIVIL_LIABILITY_IN_THE_ARENA_OF_PROFESSIO
NAL_SPORTS.pdf
VerSteeg, R., 2016. Consent in Sports & Recreational Activities: Using Contract Law
Terminology to Clarify Tort Principles. DePaul J. Sports L. & Contemp. Probs., 12, p.1.
Websites
Lloyd. E. 2017. Law for Non-Lawyers Course: Torts in Sports. Retrieved on August 30, 2018
from http://bucketorange.com.au/torts-sports/
Clark. C., Smith. E. Ipswich Eagles Aussie rules player banned from playing for 20 years. The
Courier Mail. Retrieved on August 30, 2018 from
https://www.couriermail.com.au/questnews/ipswich-eagles-aussie-rules-player-banned-
from-playing-for-20-years/news-story/2f2a18be760220f86b579f97c6db4b0b
Teacher, Law. (November 2013). Trespass to person. Retrieved on August 30, 2018 from
https://www.lawteacher.net/free-law-essays/jurisprudence/trespass-to-person.php?vref=1

CRITIQUE ON THE ROLE OF CONSENT AS A DEFENSE 10