Play-on – informed consent
Players are generally taken to consent to injury caused within the rules of the game.
In a case involving rugby union, two injured players argued that the rules about scrums should have been changed to make the game safer. The High Court rejected that notion, finding that scrums are an inherent part of rugby and the game is notoriously dangerous, so those who play accept the risk of injury (Agar v Hyde (2000) 201 CLR 552).
Similarly, in a case involving indoor cricket, the High Court held by a 3:2 majority that the risk of serious injury from a ball moving at high speed in a confined space was obvious, so participants were taken to have voluntarily assumed that risk, and organisers did not need to warn participants about it (Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460).
The analysis becomes more complicated if a sporting body makes rule changes which inadvertently increase the risk of injury. The current public conversation about Australian Rules Football provides a topical case study.
AFL football: a case study
AFL football has undergone many rule changes since the 1990s with the stated aim of making the game faster and more free-flowing. There is ongoing debate about whether that objective has been achieved. The general consensus is that the game has become congested, and more changes are currently being proposed and trialled to combat this issue.
Some, including highly regarded commentator and former player and coach Dennis Cometti, say the congestion has been caused by two rule changes made in the 1990s. The first change involved modification of the holding the ball rule; the second an increase in the number of interchange players. He contends that the congestion has in turn increased the level of player injury (Herald Sun, "Just Go Back to the Future", 28 July 2018).
Those two rule changes are examined below to demonstrate the difficult task that confronts governing bodies like the AFL when making rule changes. For example, are the rules in question an inherent feature of the game within the meaning of Agar v Hyde? Was the alleged risk of injury "obvious" to the AFL or participants at the time the rules were changed? Is it obvious now?
The stats don't lie – more tackles, running and injuries
Since the two rule changes were introduced, Australian football has become quicker, with more tackling.
In 1990, the average number of tackles per game was about 60. That number increased to about 140 in 2017. The amount and intensity of running has also increased; there is more intensive running in Australian football than comparable sporting codes:
Average distance run per match: 13.2 km
Running at speeds greater than 18 kph: 5 minutes 16 seconds
Elite European soccer
Average distance run per match: 10.86 km
Running at speeds greater than 18 kph: 1 minute 24 seconds
English rugby union
Average distance run per match: 7.52 km
Running at speeds greater than 18 kph: 300 metres
Source: Saw et al, "Injuries in Australian Rules Football: An Overview of Injury Rates, Patterns and Mechanisms Across All Levels of Play" Sports Health Journal, May/June 2018.
The average number of AFL games missed through injury, per season, per club, rose from 116.3 in 1994 to 156.2 games in 2015.
Rule changes – obvious or inherent?
The first rule change involved increasing the size of the interchange bench from two players to three in 1994, and from three players to four in 1998. The change was intended to reduce player fatigue and promote wellbeing by spreading the workload and allowing players to rest.
The interchange system was introduced in 1978, enabling the two substitute players (as existed since 1946) to rotate on and off the field. Prior to the interchange system, the two substitutes could replace players but the replaced players could not return to the field.
Accordingly, while some form of player substitution system is likely to be inherent to the game, the current version is by no means set in stone.
When making the changes in 1994 and 1998, the AFL had the benefit of historical experience about how interchange had operated since its introduction in 1978. In particular, interchange was used sparingly, mostly to take injured or poor performing players out of the game. For example, in the 1980 grand final, the premiers, Richmond, made only two interchanges for the entire game. Against that background, increasing the bench size would have been viewed as a positive step.
However, in practice, introducing two additional interchange players enabled new game styles to develop, requiring unprecedented levels of continuous running and at faster speed. From the early 2000s coaching styles emerged deploying basketball-like zones and structures which could only be sustained by constant running. Even after recent caps on the number of rotations, the interchange bench remains a rotating pit-stop where players take short rests. The question is whether this outcome and any consequent risk of harm was obvious or foreseeable.
The second rule change involved an amendment to the holding the ball rule to introduce the concept of "prior opportunity".
The holding the ball rule has existed in some form since the 1870s and is therefore likely to be regarded as an inherent part of the game. That said, there have been a number of variants of the rule (as seen below) so it is unlikely that the current version is "inherent" to the game.
The rule as applied between the 1870s and the 1930s required a tackled player to "immediately" drop the ball to the ground or be penalised for holding the ball. By the 1930s that was found to cause congestion, so the rule was changed to require a tackled player to immediately clear the ball by kicking or handballing it rather than merely dropping it to the ground. The onerous requirement to do so immediately encouraged players to stand back, let their opponent take possession of the ball and then tackle them to try to win a free kick. This practice was known as “malingering”, and the rule dubbed the “Bludgers’ Rule”. In the late 1940s, to combat malingering, the rule was again changed to give a player a "reasonable chance" to dispose of the ball rather than requiring disposal immediately.
The AFL would have had the benefit of the above history when devising the modern prior opportunity rule which was introduced in 1996. The experience with congestion in the 1930s would have been known, as would the fact that back then congestion was not coupled with full body tackling (a style which emerged in the 1950s) nor the intense speed which the enlarged interchange system has allowed.
The stated intention of the new rule was to protect the ball carrier by introducing a number of hurdles before the player would be adjudged to be holding the ball. These include an assessment of whether a player has had "prior opportunity" to dispose of the ball, had a "reasonable opportunity" to do so, and made a "genuine attempt" to do so. This multistage rule is complex and highly discretionary, with the ball carrier generally given the benefit of the doubt. It has therefore become common for contests to end in a stalemate and resultant ball up. This process is often repeated, with multiple tackles involving several players in a confined space.
As noted above, some consider that the combination of the increased interchange bench and the prior opportunity rule has created an environment which makes the game less attractive and more dangerous.
It is said that the prior opportunity rule enables players to create congestion by deliberately drawing stoppages at the cost of absorbing tackles, and this is compounded by the speed and intensity which the increased interchange bench allows.
The AFL would likely argue that any adverse consequences were not foreseeable and were caused by intervening events such as changing coaching tactics. That said, the rules have been in operation for over 20 years and issues of duty, foreseeability and causation will need to be viewed as part of a continuum, having regard to how the AFL monitored and modified rule changes throughout that time. What may not have been obvious 20 years ago may be obvious now.
Paradoxically, given that alleged risks associated with the current rules and game styles are being widely discussed and are therefore becoming well-known, future players are more likely to be said to have given informed consent on the basis that any risks are now obvious.
Time for a new game plan?
Participants can hardly be said to consent to unknown risks. Equally, organisers cannot warn of risks they have not foreseen. The issue may turn on whether they ought to have foreseen the risks, and the steps taken once the risks become known or foreseeable.
As is evident from the AFL example, the position is complex and evolving. While debate has centred around questions of aesthetics, all parties would benefit from refocussing the conversation on questions of potential injury and liability.