14th Greek Australian Legal and Medical Conference
Cape Sounion, Greece 2013

Don’t Stick Your Neck Out

Judge Anthony Puckeridge

Risk, meaning a chance or possibility of an adverse consequence is involved in all of our varied pursuits. In the sporting or recreational field many consider that by engaging willingly in such activity, participants accept the risks involved. Such an attitude reflects a philosophy that people of sound understanding are to look after themselves and take responsibility for their actions. But where severe spinal injury results from play within the rules of the game, the tragic personal consequences and subsequent high demands on community resources has caused research to occur into the mechanism and incidents of such injuries and claims for legal redress.

In an article in the Medical Journal of Australia considering severe cervical spinal cord injuries relating to rugby union and league football in NSW, it was stated that during the 1970s and early 1980s there was an approximately two-fold increase in the incidents of severe cervical spinal cord injuries in many countries where such games are played.

In 1976 in an article which appeared in the South African Medical Journal by a Dr A T Scher, then attached to the Spinal Cord Injuries Unit at Canradie Hospital at Cape Town, the author referred to an analysis of orthopaedic injuries in 20 patients who sustained injury to the cervical spinal cord while playing rugby. Of those analysed 8 were injured during scrums and the remainder 12 were injured during tackling. The analysis of the scrum injury indicated that the mechanism was by way of flexion – rotation of the neck.

In a British Medical Journal Report of December 1978, it was said that all players should be aware of the dangers of submitting their necks to flexion forces when movement of the top of the head is restrained by contact with another player or the ground. The report in the British Medical Journal stated that the deliberate clashing of heads when both scrums engage constituted a special danger.

With the increase in severe cervical spine injuries during the 1970s and the early 1980’s relating to rugby union and league football in NSW, to which I have already referred, the NSW branch of the Sports Medical Association came to the opinion that certain people of a particular physique were susceptible to neck injuries if they were playing in the front or second row. The consensus of all the medical personnel was that the longer the lever or the longer the neck on any biomechanical basis, the more likely that a flexion rotation injury would occur. The person most at risk was considered to be the hooker. A poster was prepared which pictured a somewhat long necked individual and headed, “Don’t Stick Your Neck Out”. Hence the title to this paper.

The increase in the number of severe spinal cord injuries occurring in rugby union and league football also caused Dr Yeo, then attached to the Royal North Spinal Unit to take action. He caused a booklet to be printed which contained a number of slides. The booklet was entitled “The Lost Cord”. The booklet contained comments on the slides indicating the “Do’s” and “Don’ts” in relation to various recreational activities. Slide No. 25 showed two individuals. The long necked individual has the word “No” underneath him and the booklet explains that such an individual should not play in the first or second row in scrums.

For the benefit of the uninitiated in both League and Union football there is a front row of three players and a second row of two players. Movement of the top of the head of players in the front row is restrained by contact with the heads of the opposing team when both scrums engage. The middle person in the front row is referred to as the hooker and he has his arms around the other two players in the front row and strikes the ball when it is put into the tunnel that is formed when the scrums engage. Movement of the top of the head of players in the second row is restrained, by the positioning of their heads between the bodies of the players in the front row.

Dr Yeo took the booklet with the slides to the then Minister for Education in NSW, a Mr Paul Landa. According to evidence which Dr Yeo gave in the case of Watson v Haines the Minister stated that he would arrange for the information in the booklet and slides to be distributed to schools in NSW, but such action was not taken and the booklet and the slides remained in a cabinet file in the department until subpoenaed in that case.

Watson was a 16-year-old schoolboy who was playing as the hooker in a schoolboy game. His neck was the prototype of the player’s neck shown in slide 25 with the work “No” under the player. [Slide 25 is shown]

Watson brought an action against the Department of Education claiming damages for breach of the duty of care owed to him by allowing him to play as the hooker with his particular physique.

The evidence showed that his injury was caused by flexion rotation forces on his neck when the two scrums engaged. The action was heard in 1987 and the law as at that time was that in circumstances where a duty of care arose the duty was to use reasonable care to prevent foreseeable risk of injury. A foreseeable risk of injury was said to be one that was not fanciful or farfetched.

The court held that there was a foreseeable risk that Watson might sustain injury with engagement of the scrums and that the injury could have been avoided by not allowing him to play as the hooker with his particular physique, and the Education Department breached the duty of care owed to him.

The spinal cord injury sustained by Watson resulted in quadriplegia and he was awarded one million dollars in damages.

Watson v Haines was the first one million dollar damages award for personal injury in NSW. More were to follow as the scope of damages recoverable for negligent acts or omissions expanded. It has been suggested that the test that a risk was foreseeable if not farfetched or fanciful led to liability being found to exist in a variety of circumstances where recreational activities took place. Local authorities were found liable for failing to erect warning signs as to the danger of diving into the shallow end of a pool or the failure to warn of the danger of diving from a height into a waterhole of variable depth. Increased premiums resulting from the expansion in damages recoverable led to reports of the cancellation of social events such as dances, fetes and of recreational activities including the closure of children’s playgrounds and horse riding schools. A Sydney tabloid referred to “the death of fun”. There was an inquiry to review the law of negligence which resulted in legislation in all states and territories affecting liability for negligence and damages recoverable.

Legislation now provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is it is a risk of which the person knew or ought to have known) and the risk was not insignificant and in the circumstances a reasonable person in the persons position would have taken those precautions. Reasonableness has been emphasised but the requirement that the risk is not insignificant may be a higher order of possibility than a test that the risk was not farfetched or fanciful.

A range of factors to be taken into account when determining whether a breach of duty has occurred. Those factors include probability of harm, seriousness of harm, the burden of taking precautions, the social utility of the activity and precautions that may be required by similar risk not just the particular causal mechanism of the case before the court. The likelihood of risk of harm occurring is a fact to be taken into a count without being determinative of negligence.

There are now legislative provisions concerning assumption of risks and a person is not not liable in negligence for harm suffered by another person as a result of a materialisation of an inherent risk. Further, as far as recreational activities are concerned a person is not liable in negligence for harm suffered by another person upon the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

At the time of the hearing of Watson v Haines the Minister for Education for whom Dr Yeo had handed the booklet and slides had died and was not available to dispute the statement of Dr Yeo that he would arrange for distribution of the information contained in the booklet to schools throughout NSW. The evidence was significant in the finding that the Department was liable.

The NSW Civil Liability Act of 2002 now provides that for the purposes of determining the scope of liability the court is to consider whether or not and why responsibility for the harm should be imposed on the negligent party. If Watson v Haines was to be heard today. That provision together with other sections in the Act relating to public authorities would allow the Department of Education to call evidence as to the resources available to the department to distribute the booklet to schools throughout NSW and the practicality of such action and whether the duty of the Department was to ensure that Watson was not to play as the hooker.

There was no appeal from the Watson case. If the liability of the department was to be determined in accordance with the NSW Civil Liability Act of 2002 the factors to be taken into account in determining liability would result in consideration by a Court of Appeal.

Football is but one of a number of sporting activities associated with risk of injury. In recent years there have been three deaths in the surfing championships conducted by the Australian Life Saving Association at Kurrawa Beach Queensland. In each case surfing conditions at that beach were treacherous and objectively it could be considered there was a foreseeable risk of injury that was not insignificant. After all death is not insignificant. But did the participants assume the obvious risk in participating in the championship in the prevailing conditions and would the organisers be not liable because of the materialisation of an obvious risk of a dangerous recreational activity in the circumstances.

The second incident involved a young person by the name of Saxon Bird and occurred on the 19th March 2010. According to reports Saxon was a 19 year old national age champion renowned as a strong swimmer and was knocked unconscious by a riderless ski just as officials, after numerous warnings were about to call off his event. The coroner stated in his inquest findings that the reluctance of championship officials to respond constructively to the concerns about the conditions raised by the boat crews was disturbing. He further stated that he did not accept the submission of the Australian Surf Life Association that the competitors voluntarily participated and therefore assumed the intrinsic risk if that was meant to suggest the organisers were free of responsibility.

I have been informed by a friend of the family of Saxon Bird that the family does not intend to bring any action in respect of his death. Following the last incident in 2012 legal action is being considered by the family and the questions which have been raised in this paper may be answered. The organisers have moved the surfing championships to another beach which is understood not to be affected to the same extent by weather conditions at the scheduled time.

Pending determination of whether participants in sporting activities assume the risk associated with such activities perhaps the best advice that could be given is, “don’t stick your neck out.”