Agar v Hyde; Agar v Worsley

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ.,Gaudron,McHugh,Gummow,Hayne JJ.,Callinan J.
• Judgment Date: 03 August 2000
• Neutral Citation: [2000] HCA 41,2000-0803 HCA A
• Court: High Court
• Docket Number: S159/1999
• Date: 03 August 2000

[2000] HCA 41

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Hayne AND Callinan JJ

S159/1999

A E Agar & Ors

Appellants

and

Luke Douglas Hyde

Respondent

Agar v Hyde

Agar v Worsley

Negligence — Duty of care — Particular relationships — Sport — Administrators and players — Whether duty of care owed by rugby union rule-making body to players.

Private international law — Service out of jurisdiction — Service pursuant to Rules of Court — Discretion — Whether necessary to show a good arguable case — Setting aside service — Refusal to exercise jurisdiction.

Supreme Court Rules 1970 (NSW), Pt 10 rr 1A, 2 and 6A, Pt 11 r 8.

1 Gleeson CJ. These appeals raise the question whether a member of the board of a voluntary sporting association, which has the capacity to make and alter the rules of a sporting contest, is under a legal duty of care to players in relation to the risk of injury.

Gleeson CJ.

2 The appellants were individual members of the Board (or, in the case of one appellant, a corporation which was a member of the Union) of an internationalUnion, formed in relation to the sport of rugby football. One of the functions of the International Rugby Football Board (‘the Board’ or ‘the IRFB’) was to frame and interpret the rules of the sport, called the ‘Laws of the Game’. The Board met once a year, usually, although not invariably, in London. The individual appellants attended annual Board meetings as representatives of national member unions.

3 The respondents are both men who, whilst playing the sport in local competitions in Australia, suffered serious injury. At the time of their injuries they were aged 19 and 18 respectively. They have sued various people, and organisations, (including the respective match referees, and local authorities involved with the control and management of the sport), in respect of those injuries, for damages for negligence. The present appeals are not concerned with those claims.

4 The respondents contend that the rules in force at the time they suffered their injuries were such that they were exposed to unnecessary risk. The particular deficiencies in the rules, of which complaint is made, are said to relate to the formation of scrums.

5 Fundamental to the claims made against the appellants is the contention that, by reason of the capacity of the Board to make and change the rules of the game of rugby football, each appellant owed a duty of care to all players of the sport, including the respondents. The content of that duty was formulated in oral argument as a duty to take reasonable care in monitoring the operation of the rules of the game to avoid the risk of unnecessary harm to players. In the course of further argument, the reference to monitoring the operation of the rules was altered to taking reasonable care to ensure that the rules did not provide for circumstances where risks of serious injury were taken unnecessarily.

6 In the argument for the respondents, references to ‘injury’ were often made as references to ‘serious injury’. On any view, the injuries suffered by the respondents were serious. However, if there is a duty of care related to risk of injury, there is no reason in principle to limit it to serious injury, and there are practical difficulties in seeking to do so. Depending upon the circumstances, what might be a minor injury to one person might have serious consequences, physical or economic, for another. It may be that the risk of injury from playing rugby football is so obvious, and the occurrence of injury to players so common, that unqualified references to injury were regarded as forensically embarrassing.Whether a solution can be found in the concept of ‘unnecessary risk’ is a matter that will be considered below.

7 The existence of the asserted duty of care forms the central issue in these appeals. The context in which the issue arises, and the facts of each case, are explained in the reasons for judgment of other members of the Court.

8 The outcome of the appeals does not turn upon competing views as to the meaning and operation of Pt 10 of the Supreme Court Rules 1970 (NSW). I see no error in the approach to the relevant rules taken by the Court of Appeal in the present case1. The Court of Appeal stressed that, when considering, on an application for leave to proceed under Pt 10 r 2, whether there is a good arguable case, the test is to be related to the jurisdictional nexus required by Pt 10 r 1A, not the merits of the claim for relief2. It held that, in the present case, the test was clearly satisfied3. On the discretionary aspects of Pt 10 r 2, Pt 10 r 6A and Pt 11 r 8, the Court of Appeal attached no practical significance, adverse to the respondents, to assertions that the jurisdiction invoked was exorbitant, and that restraint was appropriate4.

9 The important point of difference between Grove J, at first instance, and the Court of Appeal, concerned Grove J's conclusion, expressed in terms of proximity, that the material before the court justified and required the conclusion, even at this interlocutory stage, that there was no duty of care of the kind alleged by the respondents to be owed to them by the appellants. The Court of Appeal disagreed with that conclusion, but acknowledged that, if the conclusion werecorrect, Grove J was right in refusing to grant leave under Pt 10 r 25. By implication, the Court of Appeal also approved the further order made by Grove J, setting aside service of process on the appellants, under Pt 10 r 6A. It does not matter for present purposes whether the rubric of Pt 10 r 2 or Pt 10 r 6A is invoked. If Grove J was correct in holding that the present is a case where, even in the absence of a hearing on the facts, it is proper to conclude that the claims made against the appellants are bound to fail, then the respondents should not be permitted to proceed with those claims. For the reasons which follow, I consider that Grove J was correct. The appellants did not owe the respondents a duty of care of the kind upon which the claims against them depend. That

appears from the material already before the Court, which consists of the pleadings and undisputed evidence explaining a number of the matters referred to in the pleadings. There is no reason to suppose that evidence might emerge at a trial which would alter that position.

10 The question which arises is not whether those who are, in one way or another, concerned with making, altering, and interpreting the rules of the gameof rugby football are, or should be, interested in the safety of players. They would probably all agree that they should be, and would probably all maintain that they are. It is common ground that, from time to time, rules are changed with considerations of safety in mind. What is in issue is not a matter of moral obligation, or social responsibility, but a legal duty of care, breach of which might result in liability in damages to any participant in the sport, anywhere in the world, for any injury suffered in consequence of the breach.

11 The Court of Appeal pointed out that claims for damages by people engaged in sport are not novel. Their Honours said (omitting references to authorities)6:

‘After all, opposing players can already sue each other for intentionally and negligently inflicted injuries; they can sue the referee for negligent failure to enforce the rules; and the sports administrator that dons the mantle of an occupier assumes well-established duties of care towards players, spectators and (in the case of golf clubs) neighbours. A duty of care is not negated merely because participation in the sport is voluntary.’

12 Whilst declining to express any concluded view, especially in the light of the significance of issues of policy which it was thought would require elucidation and examination at a final hearing, the members of the Court of Appeal (Spigelman CJ, Mason P and Stein JA) identified control and reliance as the key to any potential duty of care. They said7:

‘There are clear indications that the IRFB saw itself as the law-giver for the sport of rugby and that it regarded the safety of players as an important factor. Serious injuries are not uncommon. There is evidence of assumption of control by the members of the IRFB board and tenable allegations of reliance by players of the sport. This is arguably the basis of an assumption of responsibility giving rise to a prima facie duty of care, albeit one that may be relatively easy to discharge. The class of potentially affected persons may be very large, but it is finite and readily identifiable.’

13 It will be necessary to return to the nature of the control which is here said to exist. It is to be noted, however, that it is not control of the kind that might exist where the participants in the risky activity concerned are subject to legal compulsion, or are in a relationship involving protective care of a parental or educational kind. We are not dealing, for example, with children playing compulsory sport at school, or with people in an employer-employee relationship. We are concerned with adults participating voluntarily in amateur sport. The concept of control requires closer analysis in a context such as the present.

14 Voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of a duty of care in any other participant or in any person in any way involved in or connected with the activity8. That, however, is not to deny the significance of voluntary participation in determining the existence and content, in a given case, or category of cases, of an asserted duty of care.

15 People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the...