David Graeme Sibley v Slavoljub Milutinovic [1990] ACTSC 6 (9 February 1990)

SUPREME COURT OF THE ACT

DAVID GRAEME SIBLEY v. SLAVOLJUB MILUTINOVIC
S.C. No. 1228 of 1987
Tort

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Tort - assault during "friendly" training game - defence of consent - burden of proof of defence - scope of "rules of the game" in training games.

Damages - right to recover out-of-pocket expenses where recovery creates obligation to refund insurers.

Smith v. Emerson (unreported, Miles C.J., Supreme Court of the ACT, 23 May 1986)

McNamara v. Duncan (1979) 26 ALR 584 at p 588

Pallante v. Stadiums Pty. Limited (No. 1) (1976) VR 331 at pp 339-341

Street on Torts (4th ed. p 75)

Criminal Law in Australia 4th ed. p 126

Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
9:2:1990

Counsel for the Plaintiff: Mr Lunney

Solicitors for the Plaintiff: Macphillimy Cummins & Gibson

Defendant represented himself.

ORDER

1. There be judgment for the plaintiff in the sum of $8,157.61.

2. The defendant pay the plaintiff's costs.

DECISION

This is an action and cross action for assault arising out of incidents occurring on the evening of 27 May 1987 at a sports oval at Hughes. The plaintiff was a member of a soccer team and the defendant was the member of another soccer team playing against each other for the purpose of training. There was no refere to adjudicate any dispute that arose during the course of the training game.

2. The plaintiff was represented by experienced counsel, no less than the President of the ACT Bar Association, and the defendant was unrepresented. Hence, whilst more or less evenly matched on the soccer field, there was a certain "inequality of arms" between the opposing parties in the courtroom, which has not assisted the defendant in the resolution of what has turned out to be a nice point of fact and law.

3. The plaintiff belonged to the Lyons Church of Christ team and the defendant to a team associated with the Serbian Club at Mawson. The two teams had trained together on previous occasions. The defendant said, "It was always regarded as a friendly game". A witness, Mr. Timothy Bourke, agreed that previous games were "friendly" and that there were no previous "similar incidents".

4. The first incident occurred when the plaintiff was playing in a defensive position and the defendant was playing centre half. The evidence of the exact position of the plaintiff is not clear, but does not matter. The defendant gained possession of the ball and was making for the opposing goal. In order to prevent the defendant from scoring, the plaintiff ran at him from behind at a forty-five degree angle. The plaintiff said that he "decided instinctively to go in for a low sliding tackle" and extended his right leg aiming at the ball. This had the effect of dispossessing the defendant of the ball, but at the same time brought both men to the ground. The defendant abused the plaintiff and in robust terms told the plaintiff to "watch out". Mr. Bourke approached them and the defendant said to him, "Tell him to take it easy". Mr. Bourke agreed that he thought the plaintiff's tackle had been over enthusiastic. He said that he "probably told him to be a bit careful".

5. The game continued with the plaintiff in the position of sweeper, which I understand to be a defensive position between the goal-keeper and the other players. Again the defendant had the possession of the ball and was dribbling it towards the goals. The plaintiff ran towards him and attempted what he called "another slide tackle", which involved extending his right leg and bending his left leg. Once again the defendant was dispossessed of the ball and fell to the ground. The defendant claims that he received a kick to the right ankle and he sues in his cross action in respect of that kick. The defendant got up and after reminding the plaintiff of his previous warning hit the plaintiff hard on the point of the jaw with a closed fist. The other players came in and the defendant left the field, was joined by a friend and drove off in a car.

6. Both in the action and in the cross action the defence of voluntary assumption of risk was pleaded. As I said on a previous occasion (Smith v. Emerson, unreported 23 May 1986) although the defence of voluntary assumption of risk is appropriate to an action for negligence, it is, strictly speaking, not appropriate to an action for assault where the party sued wishes to raise a defence of consent. However, as it is clear that it was the defence of consent that each party wished to raise I will deal with the matter on that basis.

7. In the Australian Capital Territory the law on this subject was succinctly put by Fox J. in McNamara v. Duncan (1979) 26 ALR 584 at p 588:
"I do not think it can be reasonably held that the

plaintiff consented to receiving a blow such as he
received in the present case. It was contrary to
the rules and was deliberate. Forcible bodily
contact is of course part of Australian Rules
Football, as it is with some other codes of football,
but such contact finds justification in the
rules and usages of the game. Winfield (op cit)
says (at p 748) in relation to a non-prize fight,
"a boxer may consent to accidental fouls, but not
to deliberate ones". Street on Torts (4th ed,
p 75) deals with the presumed ambit of consent in
cases of accidental injury "A footballer
consents to those tackles which the rules permit,
and, it is thought, to those tackles contravening
the rules where the rule infringed is framed to
maintain the skill of the game; but otherwise if
his opponent gouges out an eye or perhaps even
tackles against the rules and dangerously."
Prosser, Law of Torts (3rd ed, p 103) says "One
who enters into a sport, game or contest may be
taken to consent to physical contacts consistent
with the understood rules of the game."

8. There was no evidence in the present case about the usual rules of the game of soccer and in this respect I have to act within the scope of the judicial knowledge of the Court. It is likely, I think, that the playing of soccer involves some inevitable physical contact as Fox J. remarked of Australian Rules Football, but soccer is basically a non-contact sport in that the intentional application of force by one player to the body of another player is outside the rules at least where the degree of force is likely to cause injury. In this respect there can be no question that the behaviour of the defendant in punching the plaintiff on the jaw was outside the rules and outside the scope of the plaintiff's consent to a degree of physical contact during the game. The defendant gave some explanation of his conduct, that he did not intend any injury to the plaintiff, that he acted on the spur of the moment and that he acted in justified retaliation. None of those reasons, however, affords justification in law and the plaintiff must succeed in his action against the defendant.

9. The defendant's cross action, however, raises more difficult questions. It takes as its starting point the allegations, which I find proved, that the defendant received a second kick which caused him to fall in circumstances similar to those in which he had been caused to fall earlier in the game. The kick and fall were likely to cause injury. The game being played was not a competition match and the extent to which players were entitled to adopt tactics likely to result in physical injury to an opposing player is, in my view, to be distinguished from conduct justifiable during the course of a competition match. Some of these matters were touched on by McInerney J. in Pallante v. Stadiums Pty. Limited (No.1) (1976) VR 331 at pp 339-341 where his Honour contrasts the various types of boxing matches, ranging from prize fights to sparring bouts. However, little profit is to be gained from comparing factual situations in other forms of sport. As the quotation from Street on Torts by Fox J. in McNamara v. Duncan indicates, a player may not consent to the action of an opponent who "tackles against the rules and dangerously".

10. It was submitted on behalf of the plaintiff that he did not intend any injury to the defendant. However, whilst an element of hostility is conventionally regarded as an ingredient in the tort or crime of assault, it is established that an assault may be committed without the intent to cause injury so long as the act causing injury is reckless. (See Howard, Criminal Law in Australia 4th ed. p 126 and Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56). In my view, on the evidence, the act of the plaintiff in the second incident was likely to have been committed with foresight of the consequence that, as in the first incident, the defendant would be kicked and brought down by the tackle. In that respect it was a reckless and dangerous tackle. Was it outside the rules? As I have no evidence about what the rules were in relation to such tackles, the evidence of Mr. Bourke that the plaintiff was over-enthusiastic and the evidence of the defendant that "on a normal field he would have been sent off", leaves me in a position where I am not satisfied that the action of the plaintiff was within the ambit of the rules which the players on that evening expected to be observed. Accordingly, the ultimate question whether there was in law an assault or not, is to be decided on the onus of proof. In his article "Onus of Proof of Consent in an Action for Trespass to the Person" (1987) 61 ALJ 25, Mr. S.K.N. Blay, writes at p 26 that:

"The specific issue of proving or disproving con-
sent in trespass to the person has never arisen
for determination by the Australian Courts."

11. Somewhat paradoxically, he also quotes Trindade & Cane, "The Law of Torts in Australia" (1985), who write at p 40 that:

"Such Australian authority as there is suggests
that consent is a defence and like all defences in
the law of torts must be raised and substantiated
by the defendant."

12. Trindade & Cane cite in support the decision of Fox J. in McNamara v. Duncan where his Honour refers to consent as "the defence of consent". After surveying the authorities in England and the United States on the one hand and in Canada on the other hand, Blay comes down on the side of the former and the view that absence of consent is an ingredient of trespass and must therefore be alleged and proved by the plaintiff. The writer's reasoning is attractive but he concedes that it is out of line with Canadian authority, and, more importantly, with the decision of Fox J. That is a decision of this Court and in the absence of Australian authority to the contrary I follow it. I therefore approach the matter on the basis that consent is a defence and must therefore be alleged and proved by the person against whom the assault is alleged. In the defendant's cross action the person against whom the assault is alleged is the plaintiff. I am not satisfied that the plaintiff has discharged the onus of proving that the defendant consented to the sliding tackle upon which the defendant's cross action is based and I therefore find for the defendant in his cross action.

13. I turn now to damages.

14. The plaintiff was admitted to Woden Valley Hospital where x-ray examination revealed fractures on the right side and left side of the lower jaw and a partially erupted lower right wisdom tooth. That tooth was removed and the jaw was wired together by Dr Gaudry. The plaintiff was discharged from hospital several days after his admission. His jaws remained wired together until 3 July 1987 and he resumed work the day after.

15. When next seen by Dr Gaudry on 11 August 1987, the plaintiff had no problems with eating and was able to bite effectively. He was advised not to play soccer again for the remainder of the season. At that stage there was some restriction in forward movement of the lower jaw. The latter problem persisted for about about six months but has now resolved. The only continuing effect of the injury is that over the last twelve months the plaintiff has on one or two occasions in damp and cold weather experienced aching in the jaw. I am not convinced that there will be any future problem.

16. The plaintiff was absent from work for about five weeks. His weekly salary was about $300 net per week. His out-of-pocket expenses amounted to $1,070, but these were, except for a small amount of $19.10, paid by Medicare or by a private insurer. It was submitted on behalf of the plaintiff that in the event of recovering damages the plaintiff will be obliged to refund these amounts. However, there was no evidence before me of the contractual basis or any other basis from which this alleged contingent liability derives. In particular, I am not convinced that any liability arises unless the Court awards the plaintiff the out-of-pocket expenses claimed and which it is alleged will be refundable. There is circularity in the argument that, because the plaintiff would be under a liability to refund the out-of-pocket expenses in the event of being awarded those expenses as part of his claim for damages, then it follows that that contingent liability creates a present right to recover those expenses as part of the damages. As I see it, no liability to refund arises unless and until the plaintiff recovers the out-of-pocket expenses, and accordingly the Court should not award those expenses merely in order to create that liability. I therefore limit the award for out-of-pocket expenses to $19.10.

17. During the time the plaintiff's jaws were wired together he was unable to partake of solid food or to speak and there was a substantial interference with the ordinary enjoyment of life during that period. It was, however, a limited period. For pain and suffering and loss of enjoyment of life I award $6,000.00.

18. By reason of his injuries the plaintiff was absent from work from 28 May 1987 to 3 July 1987. The records of his employer indicate that his usual salary was approximately $300 net per week, a total of about $1,500.00. However, he has to repay $1,554.08 gross to the Australian Customs Service if he is to reinstate his sick leave entitlements. I think it is reasonable that he should be awarded this latter amount. It includes a component similar to that in Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438. This reduces the claim for loss of wages, however, which is restricted according to the statement of claim to $651.43. That amount also will be awarded to the plaintiff.

19. Interest is claimed. I am unable to determine the difference between the net amount of wages the plaintiff lost and the net sick pay he received after tax during the period in question. The difference could not have been very great and I decline to award interest in respect of the wage loss. I award interest on the whole of the award for pain and suffering and loss of enjoyment of life at seven per cent. That interest amounts to $1,120.00 and will be added to the damages. The total award to the plaintiff is therefore $9,344.61.

20. The defendant suffered a very minor injury to the right ankle. He was seen by Dr Sangster on 12 June 1987 where tenderness of the medial side of the right ankle joint was noted with normal range of movement in the joint. X-rays were normal. When seen by Dr Mann on 4 October 1988 and Dr Goldrick on 1 November 1988 no abnormality was detected upon examination which supported the defendant's complaints of pain and numbness and swelling in and around the ankle. The defendant's evidence was supported to some extent by that of a witness, Mr. Koncar, which I do not accept unreservedly. However, the defendant's wife also gave evidence about observing bruising and swelling around the ankle which lasted for ten days or so after the day of injury. She also said that the defendant had complained a few times about his ankle since the day in question. On that day he appeared distressed and was limping. She assisted by putting ice on the area of injury. She confirmed the defendant's evidence that he has not played soccer since the injury, but I am not convinced that there has been any persisting disability after the first couple of weeks. The defendant lost no time from his work as a cabinet maker. The award in favour of the defendant will be quite modest and I award him the sum of $1,000. Interest on that amounts to $187. The total of $1,187 will be offset against the damages awarded to the plaintiff and the plaintiff is therefore to have judgment for $8,157.61. The defendant is to pay the plaintiff's costs.