By: Nicholas Lawrence
Published: 20/12/2016
Alex McKinnon, a former Newcastle Knights NRL player left a quadriplegic after being upended in a tackle by the Melbourne Storm's Jordan McLean in 2014, is planning to sue the NRL and Mr McLean personally, seeking damages as a result of the incident.
 
If the matter proceeds to trial, sports organisations around the world will be watching on with interest, as the outcome will likely have implications on the way sports organisations administer their sport and review their rules to avoid potential liability for their athletes' injuries.
 
The likely litigation will grapple with fundamental issues over the nature and extent of consent when playing organised sport.  Some key questions that will require answering are:
 
  • Did Mr McKinnon consent to being tackled when he played in the NRL?
 
  • If so, was the tackle by Mr McLean within the bounds of Mr McKinnon's consent?
 
  • Can Mr McLean rely on a defence of consent? Is it reasonable in the circumstances for him to do so?
 
  • Are there broader public policy issues at play when players are personally liable for actions occurring during a sporting match?
 
These are all interesting and opinion-provoking questions.  In most sports there is usually no express consent by players to a particular level of risk or harm.  This means the level of physical contact sports people consent to be subjected to while playing is implied from the nature of the sport itself.  In simple terms – was the incident outside the normal parameters of what a player could expect whilst playing the sport?
 
So, is Mr McKinnon likely to be successful if he sues for damages?  And if so, what does this mean for sport in New Zealand?

As against Mr McLean:
 
  • Mr McLean performed the tackle and clearly intended to perform the tackle – therefore his only reasonable chance of defending proceedings is to argue that Mr McKinnon consented to being tackled in such a way when he played in the NRL.
 
  • That in turn would mean Mr McLean's conduct was not so out of the ordinary that he should be personally liable.  The problem facing Mr McLean, however, is that while the tackle was during the run of play and not off the ball, no reasonable NRL player would consent to being tackled in that manner.
 
  • It would therefore seem that Mr McLean might have to rely on a public policy argument that sports people should be exempt from liability for on-field transgressions for fear of ruining sporting contests.
 
As against the NRL:
 
  • Mr McKinnon is saying that the NRL is vicariously liable for the actions of its players (such as Mr McLean).
 
  • Mr KcKinnon's allegations will likely be that the NRL did not do enough, or take a robust enough stance to prevent the sorts of tackles that injured Mr McKinnon or provide enough education on tackling technique.
 
  • The public perception of the NRL will likely come into play here and it may struggle to distance itself from the frequent scandals its players and clubs have been involved in in recent years as well as its apparent condonation of the continued aggression and heavy hits in the game.
 
  • It will be important for the NRL to show that it was pro-actively reviewing and administering the laws of the NRL, and its education and code of conduct policies, to mitigate as much as reasonably possible the risks associated with playing the sport.
 
Unlike in Australia, the Accident Compensation Corporation (ACC) in New Zealand prevents players from suing other players or their sports organisations for injuries sustained while playing sport.  However, with the rising cost of healthcare, gaps in health insurance coverage and the increased desire in society for someone to be publicly 'accountable' for transgressions, it is likely that claims similar to Mr McKinnon's will increase in Australia (and possibly New Zealand through the awarding of exemplary damages).  In New Zealand, the outcome of any litigation could serve as a useful marker as to what steps sports organisations may need to take in order to avoid paying exemplary damages and any penalties under the Health and Safety at Work Act 2015.
 
It is becoming more and more common that dangerous play, regardless of the player's intentions, is not being tolerated and is met with severe penalties.  The Australian courts in the McKinnon case will have an opportunity to consider whether, in the light of this movement within sport, they wish to provide a clear direction that the law takes a firm stance over player safety. 
 
The outcome of the litigation, if the matter is not settled beforehand, will certainly be very interesting and represents a possible game-changer in sport for both players and sports organisations alike.

The simplest advice to players; do not go 'out of your way' to intimidate or injure your opponent because this will be a sure-fire way to get yourself in trouble both with the sport and possibly the law.

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