Recent Question/Assignment

Plaintiff - Peter Joseph Haylen
Defendant – New South Wales Rubgy Union Limited (NSWRU)

On 17 April 1982, Peter Joseph Haylen suffered injuries which resulted in quadriplegia while he was playing in a Second Grade Colts rugby union football match as a member of the Sydney University Football Club team playing against a St George Rugby Union Club team.

The plaintiff believes NSWRU owes him a duty of care as they monitor and regulates the rules of rugby union in New South Wales and should ensure that players like the plaintiff are not exposed to serious injury. Therefore when the plaintiff was seriously injured in a scrum, which caused the plaintiff to become a quadriplegic, NSWRU was negligent in failing to take proper care of the plaintiff and not warning him of the risk to injury playing the sport.

Does defendant owe duty of care to plaintiff?


Duty of Care


Reasonableness can be used as a determining factor for duty of care but can only be used in a context. While the risk of broken necks occurring in Rugby football is serious, other and lesser risks are also associated with the sport for example tackling, scrummaging, rucking and mauling. These activities common in the sport is seen as obviously dangerous by the community and injuries received from these activities would be regarded as serious. Therefore what standard can be used to determine what is classified as a necessary or unnecessary risk? What is regarded as an ‘unnecessary’ risk in an inherently dangerous sport? How can a court determine a certain level of risk for a adult engaging voluntarily in an obviously risky activity? There is no objective standard by reference to decide a given level of risk involved in rugby that is acceptable, and beyond that to be ‘unnecessary’. Furthermore, there is a risk to an individual player with a vulnerability or it can be caused by another player (a team mate or the opponent) with vigour. The case cannot be made that all avoidable risks must be eliminated. The only way to avoid injury is to not play.

Agar v Hyde will impact on this case, as it deals with duty of care and if there is a legal responsibility provided in contact sports, such as rugby football.

Agar v Hyde conveys several reasons for denying duty of care, summarized as follows:
“1 ?In sport played by freely consenting adults, it is contrary to notions of individual autonomy and responsibility to impose a legal duty on the rule-making body to make the sport safer.

2?The content of the duty was problematic in that it required defining -unnecessary” risks in an inherently risky activity.

3?The duty as alleged obliged the foreign defendants to take positive action to protect the plaintiffs and there was no relationship between them that warranted reversing the law's general unwillingness to impose positive duties in the tort of negligence.

4?The plaintiffs were members of an indeterminate class.

5?Each foreign defendant was not individually in a position to amend the rules of rugby union to make the sport safer and the IRFB could not require local bodies to adopt rule changes.”

In the high courts, the Chief Justice held that no such duty of care was owed to the plaintiffs in Agar v Hyde. The judgement of Gaudron, McHugh, Gummow and Hayne JJ was also that the defendant did not owe the appellants a duty of care. The reasoning is that It would be unrealistic if there was a duty of care by appellants for the respondents, as they must have the same duty of care for every person who has played rugby union throughout the world under the laws of the games created by IRFB. The respondents’ complaint was the failure of the appellants to change the rules of the game, in which the respondents played in. They had “done nothing that increased the risk of harm to either of the respondents”. The appellants -no more owed a duty of care to each rugby player to alter the laws of rugby union than parliamentarians owe a duty of care to factory workers to amend the factories legislation.- Additionally, there was too many intervening levels of decision-making that the appellants did not have the power change the laws of the game and conduct of individual matches in which the respondents were injured. The IRFB itself did not have the power to ensure the laws of the game were adopted by individuals, associations, etc.


The plaintiff’s counsel relied as evidence on material which allowed NSWRU various powers, such as the Memorandum and Articles of Association of the NSWRU. They referred to provisions that support the submission that the defendant was in position to ensure the rules of the games were adopted and had powers to punish on affiliated bodies and players if rules were not adopted. However, there was no evidence from the plaintiff to argue with the defendant’s affidavit evidence in relation to lack of practical control the rules of the game.

There are serious practical difficulties in characterising duties, like the determining the duty to make rule changes or the duty of inform/advise to the ‘risks of catastrophic injury’. An distinction cannot be made between what may be regarded as risks of serious injury and risks of catastrophic injury. A reference cannot be used as it is impossible to find an objective standard to measure a level of risk involved in inherently dangerous body contact to consider what is acceptable, but beyond is unnecessary. Additionally, the High Court in Agar distinguished and recognized under common law (as between positive acts causing damage and a failure to act which resulted in damage, with the common law not ordinarily imposing a duty on a person to take action where no positive conduct of that person had created a risk of injury to another person.

Even if the NSWRU had the clearest power to make and enforce rule changes, there is still no duty of care to make such changes to eliminate or reduce the risk of catastrophic injury. The idea of a duty care requiring a rule maker to change the rules suggests the extends notions of duty of care too far.