Case Name and Citation: McNamara v Duncan (1971) 26 ALR 584
- Supreme Court of the Australian Capital Territory
- Date: 6 April 1971
- The learned Judge: Fox J
- Areas of Law: Tort Law, Consent and Liability, Negligence, Battery
McNamara v Duncan (1971) 26 ALR 584 is a significant Australian legal case that addressed issues of consent and liability within the context of sports, specifically Australian Rules football.
Facts (McNamara v Duncan)
On September 15, 1968, during an Australian Rules football match, the plaintiff, McNamara, had just kicked the ball when the defendant, Duncan, deliberately struck him on the side of the head with his elbow. This action resulted in a fractured skull, necessitating emergency surgery, leaving McNamara unconscious for ten days, and causing a minor permanent disability.
Legal Issue
The case addressed whether the defendant’s actions could be considered battery, and whether the plaintiff, McNamara, had consented to such contact by virtue of his participation in the game.
Decision of the Court
Fox J. ruled that the blow was intentional and deliberate, and, importantly, it was in contravention of the rules of the game. The Court held that a player participating in a sport like Australian Rules football does not consent to actions that are outside the scope of the game’s rules, even if such contact might sometimes occur within the course of the game. The fact that McNamara knew some level of contact might occur in the game was deemed irrelevant, as the action in question was intentional and illegal according to the rules of the sport.
As a result of this, McNamara was awarded $6,000 in damages.
Reasoning: The Court distinguished between the physical contact typically accepted in the sport and actions that grossly exceed acceptable conduct. It emphasized that consent does not extend to deliberate or intentional acts, especially when such acts are in clear violation of the game’s rules.
Further, while the defendant argued that he did not intend the injury itself, the fact that Duncan meant to strike McNamara was sufficient to establish intent, regardless of whether he foresaw or intended the extent of the harm caused.
Takeaway (McNamara v Duncan)
The key takeaway from this case is that the defense of consent (volenti non fit injuria) does not apply if the physical contact exceeds what is acceptable within the rules of the sport.
While players implicitly accept certain risks inherent to the sport, such as physical contact within the rules, they do not consent to actions that are deliberate and violate the game’s regulations.
References:
- https://eprints.qut.edu.au/53131/1/53131P.pdf
- https://healthfitnesslawreports.wordpress.com/2014/04/25/mcnamara-v-duncan-1971-hflr-2014-5/
- https://s3.studentvip.com.au/notes/9513-sample.pdf
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