It is becoming an established legal principle that, under certain circumstances, a player can be held liable if he causes serious injury to another player.
Participation in certain sports, especially contact sports like rugby and soccer, carry an inherent risk of injury. As long as the game is played within its rules, players are deemed to have consented to the risk of injury. If a player is injured under such circumstances, the law will stay on the touchline. But the law will enter the field of play if the injury was caused as the result of a deliberate transgression of the rules of the game.
The issue was recently once again considered by the highest court in the country. In an U.19 schools rugby match, a hooker was seriously injured by his direct opponent when the latter performed an illegal and dangerous scrumming manoeuvre, referred to as a “jack-knife”.
With the help of expert evidence, the court carefully analysed the “jack-knife” manoeuvre. It came to the conclusion that it was extremely dangerous, amounting to such a serious violation of the rules of rugby that it cannot be regarded as conduct acceptable to rugby players as part and parcel of the game’s normal risks.
The main issue to be considered when evaluating whether a player should be held liable for an injury caused in a contact sport, should therefore be whether the conduct is normal for the specific game being played. In rugby, conduct which constitutes a flagrant contravention of its rules and which is aimed at causing serious injury (or accompanied by a full awareness that serious injury may ensue), will be regarded as wrongful in law and hence attract legal liability for the resulting harm.
It is important to note that not every injury that occurs as a result of transgressing a rule of the game will be punishable by law. It only applies to cases where the infringement is serious and obvious enough to warrant legal action. If it was not so, it would place an overly onerous burden on a player not to contravene any rule of the game to avoid punishment.
A lot of rugby injuries are sustained in the course of rule infringements, but it does not follow that that the offending player is automatically delictually liable. The offending player must do more than that. The rule infringement must also be deliberate and flagrant. He must know that the infringement will or might cause serious injury to an opposing player. If this is the case, it logically follows that the offending player has reconciled himself with the infringement of the laws of the game and is willing to accept the consequences. The offending player can then be held legally liable.
There is no need to alter the way in which rugby has been played for almost 200 years because of the fear of legal consequences. However, players must be aware that malicious actions on the field of play may lead to serious repercussions.