Did you see that bouncer coming? Sports injuries and the civil liability regime in Australia

Co-authored by Isabelle Afaras, Graduate.

Have you ever broken your nose from a cricket ball that bounced unexpectedly due to poor outfield conditions? Or been hit in the ribs by a short-pitched ball that skidded low off an erratic patch on the pitch? Of course, in the world of sport, injuries are an inevitability. But when they occur, the legal implications can be far from straightforward. For insurers, club administrators, athletes, coaches or event organisers, it is crucial to understand how liability is decided in the event of a serious sports-related injury.

The civil liability laws introduced across Australian states and territories were enacted in response to the perceived insurance crisis. While the approach is not entirely uniform, the legislation is broadly consistent nationwide. In New South Wales, the Civil Liability Act 2002 (NSW) (CLA) replaces the old common law rules of negligence. However, the CLA is not easy to navigate. Whilst the definitions of “dangerous recreational activity” and “obvious risk” used to invoke the defence under Section 5L may seem simple enough, in practice, that is not the case.

Navigating this complex regime effectively can be the difference between a quick resolution and a costly court case. The CLA removes the liability of a defendant in negligence for harm suffered by the plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity.¹ An obvious risk is one that would have been obvious to a reasonable person in the position of that person who suffers harm.² A dangerous recreational activity is one that involves a significant risk of physical harm.³

This article examines how this plays out by considering the highly litigious sport of horse riding and some hypothetical scenarios in the cricket context.

Horse riding: Even the warm-up is risky

Horse riding has been recognised in the judicial context in Australia as a dangerous recreational activity.⁴ But what if the injury occurs outside the event itself – such as during warm-up? Can the sport be segmented into distinguishable and separate sets of activities, rather than treating it as one holistic event?

In Menz v Wagga Wagga, the plaintiff sustained serious injuries when her horse was startled during the warm-up for an event. Children playing near the arena made contact with a metal sign on the fence, causing a sudden noise. The facts of Menz raise two interesting issues:

• Issue 1: Was the warm-up a component of the activity? In short, yes. Nevertheless, Leeming JA warned against an overemphasis on segmentation, as it is inconsistent with the core purpose of Section 5K which concerns “significant risk” associated with the recreational activity, not its division into segments.
• Issue 2: Was the harm suffered the materialisation of an obvious risk? The harm was characterised as the “materialisation of the obvious risk of her horse being spooked by some stimulus”.⁵ His Honour rejected the more specific formulation of risk as being “the noise made by children [which] spooked the horse”, which was probably not obvious.⁶ Thus, the “additional particularity” of the precise mechanism causing the spooking was unnecessary,⁷ and the application of substantive law in this case has been affirmed in the most recent High Court decision on these issues, Tapp.⁸

What about injuries caused by another rider’s recklessness?

In Singh v Lynch, the rider was injured when the respondent rode in a careless manner that pushed an adjacent horse into the path of the injured rider’s running line. The majority held that it was an obvious risk.⁹

But the minority warned that the defence should not grant a free pass to defendants to engage in reckless conduct that conveniently fits within a generalised concept of “obvious risk”.¹⁰ To hold otherwise could lead to a moral hazard issue – if defendants can easily invoke Section 5L, there is less incentive to prioritise or adhere to good safety practices. 

What is the position from the most recent High Court decision?

In Tapp, the rider suffered serious injuries when she fell from her horse during a race. The Court considered that the characterisation of the risk must include the “general causal mechanism” that led to the injury.¹¹ The risk was then particularised as being the “substantially elevated risk of physical injury by falling from a horse that slipped by reason of the deterioration of the surface of the arena”.¹²

Was it obvious? No. A reasonable person in the position of the plaintiff would not have had concerns about the condition of the ground.¹³

The key takeaway? The characterisation of the risk matters. If defined too broadly, defendants can escape liability even if their conduct was clearly unsafe.

Cricket: From stumps to statutes

Whilst cricket may seem to be an innocuous sport, the risks are real and the issues lurking beneath the surface are still complex.

Is cricket a dangerous recreational activity?

In Australian cricket between 1858 – 2016, there were 174 fatalities, with three occurring since 2000.¹⁴ Whilst fatalities have declined since the mandating of helmets, injury rates remain high, at about 155 per 100,000 participants.¹⁵ Cricket is arguably a dangerous recreational activity, and even informal matches can pose serious dangers due to the likelihood for poorly maintained turf pitches and lower skill levels.¹⁶

Obvious risk?

Consider the following scenarios, which cast ambiguity on the application of the “obvious risk” principle. These hypotheticals assume the injury sustained is severe and could become real, litigated cases in the near future:

1. A close infielder is injured by a bat that splits on impact. Is this an obvious risk? Bats are known to split. But if it were due to negligent manufacturing, a reasonable person would not expect this to happen.
2. An umpire is injured when a ball ricochets off the edge of a slightly elevated synthetic turf pitch from a boundary fielders’ throw. A rare incident, but nonetheless possible. What if, instead the ricochet occurs during warm-up where the ball deflects off a stray pole left near the playing area, injuring a fielder? Should the administrators have moved this pole or should ricocheting balls causing injury be broadly particularised as being an obvious risk? What about a ball ricocheting off “Spider-Cam” during the Ashes at the MCG injuring a player?
3. A bowler slips during their run-up due to an undetected wet patch left on the ground after some rain. Is the way the person slips relevant? What about the fact the patch was not spotted?
4. A batter is struck by a ball that unexpectedly balloons upwards off an uneven turf pitch. Of course, a ball may deviate off the pitch, but a significant deviation raises safety concerns for batters.
5. A boundary fielder trips over the boundary rope and collides with advertising placed nearby. How close is too close?
6. An outfielder receives an eye injury after attempting a diving save on the boundary due to turf spray. Is the groundskeeper responsible for these foreign particles?
7. A batter loses their grip mid-shot, and the bat strikes and injures a nearby player. In fast-paced formats, powerful swings increase this risk.
8. After heated exchanges, a bowler in their next delivery bowls the ball at the batters’ head on the full – a beamer, causing serious injury. A proven intentional act (subjective test) to injure would exclude the operation of the defence under Section 3B(1)(a) CLA. But subjectivity is difficult to establish. Accidental beamers are part of the game – and the bowler could allege as such. Nonetheless, should a reckless act to injure be shielded by the obvious risk defence?¹⁷

These examples illustrate how civil liability can arise in cricket, potentially exposing clubs and other key stakeholders to legal risk – and these risks are also present across a range of other sports.

The cool down

Our lawyers understand the sports sector, having advised clients across the full range of business law services. With the increased attention on sport in Australia, now is the time for key stakeholders to review their legal strategy. Practically speaking:

• Clubs, audit your risks now and consider whether you are currently exposed. For example, are you continuing to use already damaged equipment?
• Event organisers, do you have risk-management strategies for key decision-making, such as for managing wet weather?
• Insurers, review the terms of your policies. Consider the extent of coverage you are providing.

Remember, liability is a team sport. So, let’s talk about the googly of liability – before a bat slips, a pitch cracks or a case lands in court. After all, it can be said with certainty that the law around “obvious risk” is anything but obvious.