Australian Applied Law

Research Methodology and Literature Review

Semester 2, 2018

You are required to submit a research methodology and literature review on the allocated research topic (which is set out below) that will be applied in the final research paper. In preparing your literature review, you will be required to demonstrate your advanced Australian legal information retrieval skills by completing a series of focussed legal research questions. Your research methodology will provide a discussion of your overall research approach, including identification of legal and other information required for your research. Your literature review will critically analyse and synthesise the law relevant to the research topic.

WORD LENGTH: 1,000 – 1,500 words maximum. The word limit includes all material (this includes quotes) but does not include footnotes (which must not contain matters of substance) or bibliography. Material exceeding the word limit will not be read or marked.

WEIGHTING: 30%

ASSESSMENT No 2 TOPIC:

With the automation of many aspects of life through the use of robotics and artificial intelligence, the current laws often have difficulty applying fully.

Choose one or more area of life, in your work, sport or personal life, and discuss and analyse the impact of robotics or artificial intelligence, or both, by:

  1. Identifying some of the laws that apply to each area of life you have chosen;
  2. Explain how and why robotics or artificial intelligence, or both, is challenging the application of that current law and
  3. Explain what changes in the current law will resolve the challenges you have identified and how those changes can be achieved.

 

Provide reasons and authority for your analysis, including legislation, case law and other relevant sources of law.

 

Research Methodology and Literature Review: Criterion Referenced Assessment

Weighted at 30% – marked out of 30

 

Your research methodology and literature review should be 1,000-1,500 words, and uploaded to the turnitin link on blackboard.

Name:

 

Criteria 7 6 5 4 3-1 Maximum Mark Mark Awarded
 

(1)     Written Communication and Referencing

 

Written communication and Referencing Writing skills are of an excellent standard, eg:

·   Very professional, logical and appropriate structure;

·   Effective use of headings and subheadings;

·   accurate bibliographic details and citations are always provided; references are always in the correct style;

·   footnotes always used appropriately;

·   no mistakes in spelling and/or grammar;

·   language and writing style is very easy to read.

 

Writing skills are of a very high standard, eg

·   predominantly professional, logical and appropriate structure;

·   effective use of headings and subheadings;

·   accurate bibliographic details and citations are almost always provided; references are almost always in the correct style;

·   footnotes almost always used appropriately;

·   only very minor mistakes in spelling and/or grammar;

·   language and writing style is easy to read.

Writing skills are of a good standard, eg

·   generally professional, logical and appropriate structure;

·   good use of headings and subheadings;

·   accurate bibliographic details and citations are mostly provided, most references are in the correct style;

·   footnotes generally always used appropriately;

·   only small mistakes in spelling and/or grammar

·   language and writing style is easy to read

Writing skills are of a satisfactory standard, eg:

·   basic appropriate structure, but the component parts are not  all well-written and well-integrated;

·   some bibliographic details and references are correct;

·   some appropriate footnoting;

·   some footnotes lacking or inaccurate;

·   few mistakes in spelling and/or grammar, with evidence that proof-reading has not been thorough;

·   language and writing style is readable, but there may be sections which could improve.

Poorly written. Many of the following evident:

·   inappropriate and unprofessional structure, with a lack of logical progression;

·   many formalities missing;

·   bibliographic details and citations are missing or contain many errors

·   little or no use of headings;

·   inadequate references;

·   numerous mistakes in spelling and/or grammar;

·   language and/or writing style makes comprehension difficult.

 

 

2.5

 
 

 

(2)     Research Methodology

 

Topic Analysis and Issue Identification

You have

comprehensively, clearly,

and concisely analysed the

Assignment Topic by

indentifying the:

• nature of the research;

•jurisdiction;

•timeframe;

•relevant issues andsubject areas of law;

 

You provided a reasonably

comprehensive and clear

analysis of the Assignment

Topic in terms of identifying

the: nature of the research;

jurisdiction; and timeframe.

However whilst you identifiedalmost all of the relevantissues / subject areas:

•  some relevant issues /areas of law were

omitted; or

•  irrelevant areas of law

were included.

You demonstrated an ability to analyse the AssignmentTopic.  However your analysis

may be unclear, incomplete orlacking in some of the

following ways:

•  no identification of the nature of the research;

•  no identification of the

jurisdiction and/or

timeframe;

•  relevant issues / areas of

law were omitted;  and/or

•  irrelevant areas of lawwere included.

You demonstrated a limited

ability to analyse the

Assignment Topic as your

analysis was unclear,

incomplete or lacking in

many of the following ways:

•  no identification of the

nature of the research;

•  no identification of the

jurisdiction and/or

timeframe;

•  relevant issues / areas of

law were omitted;and/or

•  irrelevant areas of law

were included.

No identification of: the

nature of the research;

jurisdiction; timeframe; or

relevant issues and subject

areas of law.

 

 

 

2.5

 
Research Questions A comprehensive, clear and concise statement of your research questions that are all appropriate and highly relevant to your research topic. A reasonably comprehensive, clear and concise statement of your research questions that are all appropriate highly relevant to your research topic. One or two research questions highly relevant to your research topic may have been overlooked. A statement of your research questions is included, however your statement may be unclear, lacking detail or verbose. Almost all your research questions are appropriate and highly relevant to your research topic. You may have overlooked a number of research questions highly relevant to your research topic. A statement of your research questions is included, however your statement may be unclear, lacking detail or verbose. Some of your research questions are appropriate and highly relevant to your research topic. You may have overlooked a number of research questions highly relevant to your research topic. You have not included as statement of your research questions, or you have included a statement of your research questions, but you demonstrated a limited ability to articulate and identify appropriate research questions.  

2.5

 
Research Plan and Strategy Across all subject areas of

law relevantly raised by

the Assignment Topic, you

have provided a research

plan which:

•is very appropriate to

the location of primary

and secondary source

materials relevant to the

Assignment Topic; and

•comprehensively,

clearly, and concisely

outlines your research

method in terms of:

o  the types of primary

and secondarysources used;

o  a variety of databases

(or other sources) and

their usefulness; and

o  the search strategies

used.

Across all subject areas of

law relevantly raised by

the Assignment Topic, you

have provided a research

plan which:

•is reasonablyappropriate to thelocation of primary andsecondary sourcematerials relevant to the

Assignment Topic; and

• mostly outlines your

research method clearly

in terms of some of:

o  the types of primary

and/or secondarysources used;

o the databases (orother sources) andtheir usefulness; and

othe search strategies

used.

You have provided a researchplan which is reasonablyappropriate to the location ofprimary and secondary sourcematerials relevant to theAssignment Topic.  Howeveryour plan does not:

•  sufficiently span all subjectareas of law

relevantly raised by the

Assignment Topic.

You have provided a

research plan whichdescribes how primary and

secondary source materials

might be located.  However

your plan:

•insufficiently outlines

your research method

clearly in terms of:

o  the types of primary

and secondarysource materialsused; and/or

othe databases (orother sources) andtheir usefulness;and/or

othe search strategies

used,as relevant to theAssignment Topic.

Additionally, it may not

sufficiently span all subject

areas of law relevantly

raised by the Assignment

Topic.

Either you have:

•not provided aresearch plan; or

• provided only a very

limited outline of your

research method.

 

7.5

 
 

(3)     Literature Review

 

Demonstrated skills in finding relevant high quality primary and secondary sources from law and (where relevant) other disciplines A comprehensive coverage of relevant materials (including legislation/regulation, case law, treaties, commentary/research). Excellent choice and prioritisation of appropriate sources. Sources are always current. Very good coverage of relevant materials (including legislation/regulation, case law, treaties, commentary/research). Very good choice and prioritisation of sources. Sources are current. Good coverage of relevant materials (including legislation/regulation, case law, treaties, commentary/research). Good choice and prioritisation of sources. Sources are usually current, but a small number may be outdated. Satisfactory coverage of relevant materials (including legislation/regulation, case law, treaties, commentary/research). Satisfactory choice and prioritisation of sources. Some sourses are current, but others are outdated. Inadequate or no coverage of relevant materials (including legislation/regulation, case law, treaties, commentary/research). Poor choice and prioritisation of sources. Sources are outdated and/or irrelevant.  

2.5

 
Demonstrated skills in summarising relevance of primary and secondary sources from law and (where relevant) other disciplines. Excellent and concise summary of the chosen sources, and their authoritative nature. Very good summary of the chosen sources, their relevance to the law reform question, and their authoritative nature. Good summary of the chosen sources, their relevance to the law reform question, and their authoritative nature. Satisfactory and concise summary of the chosen sources, their relevance to the law reform question, and their authoritative nature. Inadequate summary of the chosen sources. Little or no consideration of the relevance of the sources to the law reform question, and/or their authoritative nature.  

2.5

 
Critical analysis and reflection

 

 

 

Sophisticated and very high levelof analysis of the patterns, strengths and weaknesses of the sources chosen, and the contribution of the sources to understanding about the topic. Excellent reflection on the connections and underlying themes between sources and relevance to the law reform question.

 

Very high level of analysis of the patterns, strengths and weaknesses of the sources chosen and the contribution of the sources to understanding about the topic. Very high order reflection on the connections and underlying themes between sources and relevance to the law reform question.

 

Good level of analysis of the patterns, strengths and weaknesses of the sources chosen and the contribution of the sources to understanding about the topic. Generally a good level of reflection on the connections and underlying themes between sources and relevance to the law reform question.

 

Satisfactory level of analysis of the patterns, strengths and weaknesses of the sources chosen and the contribution of the sources to understanding about the topic, but more detail could have been provided. Some attempt to reflect on the connections and underlying themes between sources and relevance to the law reform question, but this was superficial in parts.

 

Inadequate or no analysis of the patterns, strengths and weaknesses of the sources chosen and/or the contribution of the sources to understanding about the topic. Inadequate or no reflection the connections and underlying themes between sources and relevance to the law reform question.  

10

 
               

 

TOTAL MARKS                                                                                                                                                                                                                                                          /30

RESEARCH METHODOLOGY

Topic analysis

To what extent contact sport governing bodies owea duty of care in negligence to playersrequires research into common law andlegislationdealing with principles of negligence and personal responsibility.In cases brought in Australia in 2016 the relevant state or territory law would apply.  Key issues include the nature of risk to which the sport exposes the players, the obligation to manage it and participants’ voluntary assumption of that risk.

 

Search terms

Initial search termsfrom the research question:duty of care; negligence; voluntary engagement; foreseeable harm; risk of harm; individual autonomy; personal responsibility; risk management; compensation.  Search on‘mild traumatic brain injury’was narrowed to‘contact sport’AND‘head trauma’.Searches on ‘professional sport’,‘recreational sport’ and ‘contact sport in Australia’were used to capture a broad perspective.

 

Research Strategy

Searched Library Catalogue andGoogle Scholar, utilised Lecture slides and own textbooks.

 

Secondary sources

  • Searched “LexisNexis AU”, ‘Encyclopaedic Australian Legal Dictionary’ to determine the legal meanings of the terms and help identify the areas of law to be investigated.
  • ReadSports Law,[1]Ch 5 and, Law in Commerce,[2]Ch 2. These both have excellent overviews of negligence plus the history of negligence action.
  • In the Library Catalogue “CCH Intelliconnect”browsed Sport and Medical Law – Australian Sports Law and retrieved commentary on Personal Injury, Negligence. From Torts and Personal Injury Law retrieved existence of a duty of care; voluntary assumption of risk. Searched ‘duty of care’AND‘professional sport’AND‘concussion’, retrieved obligations of an employer at common law. Searched ‘individual autonomy’, retrieved Voluntary assumption of risk and consent.  These resources have provided links to cases and legislation.
  • Same search in Google Scholarwith significant number of results. Refined search by year 2000-2016 and ‘Australia’. Retrieved articles by Horvarth and Lupo;[3]Powe;[4]Schot;[5]Clacy, Sharman, Goode, Salmon and Lovell;[6]Greenhow;[7]Fordham;[8] Khurana and Kaye[9]and Brain Injury Australia’s Policy Paper Concussion in Sport.[10]All provided links to a range of sources including articles and cases.  Searched ‘American NFL Concussion Injury Litigation’. Article by Hanna[11]provided an excellent overview.
  • Searched ‘personal responsibility’ AND ‘sport’AND‘autonomy’ in Westlaw Au and LexisNexis and refined by ‘torts’. Retrieved articles by Anderson,[12]Purshouse,[13]Windholz[14]and Lunney.[15]  Read the article by Opie[16]referred to in the research question.

 

Primary Sources

  • Searched ‘Casebase’for Agar v Hyde[17]. Searched ‘duty of care’ AND ‘sporting organisation’ in ‘LexisNexis AU’, ‘Westlaw AU’ and ‘Google scholar Case Law’to find cases cited in secondary sources.[18]
  • Searched ‘AustLII’ forCivil Liability andWork Health and Safety legislation across jurisdictions.

 

LITERATURE REVIEW

Introduction

As the commercial nature of professional contact sport at an international, national and state level has grown over the past few decades, so too has awareness of the dangers and effects of sport-related concussions.  A literature search on the legal relationship of sporting governing bodies and players relating to these risks in Australia in 2016 was undertaken.Reviewing the literature this paper will critically analyse and synthesise the relevant law on duty of care in negligenceand consider how an appropriate balance should be struck to promote autonomy and personal responsibility whilst protecting the health and well-being of players.

 

Duty of care

The decisions of Agar v Hyde,[19]Haylen v New South Wales Rugby Union Ltd andGreen v Australian Rugby Football League[20]consider the question of whether Australian sporting governing bodies hold a duty of care to players in regard to the rules of the game.  In each case no duty of care was found.  The damages suffered by the plaintiffs were not concussions and,although topical, with media coverage suggesting that players had commenced legal action,[21] no Australian cases relating to players and concussions were found so cases from other jurisdictions could be considered.

 

Agarv Hyde is considered the leading authority in this area.[22]The High Court held that the defendant lacked sufficient ‘control’ over the way local games were played, the injuries were due to inherent risks of the game and the decision to participate was made voluntarily.[23]Alternatively, in Green v Country Rugby Football League of NSW[24]it was held that the Country Rugby League did hold a duty of care to Green. In Woods v Multi-Sport Holdings Pty Ltd,[25]though an organising not governing body, it was held that there was a duty to ‘avoid the risk of injury to players’.  If the injuries were caused by actions outside the rules, as in the case of McCracken v Melbourne Storm Rugby League Football Club Ltd, these decisions would have been different.[26]Hovarth and Lupo contend that Australian case law already places a legal obligation for rule changes in professional sports, notwithstanding the decision in Agar v Hyde. Further, the recent American National Football League Concussion Injury Litigation action should impel sporting governing bodies to continually review and modify the rules of their sports to reduce the risk of head and neck injuries.[27]

 

Since 2002 Civil Liability Legislation has been introduced across Australian jurisdiction. Whilst Civil Liability Acts provide general principles on duty of care, common law continues to be important in establishing a duty of care and whether that duty has been breached.[28]The literature analyses the exemptions provided for within the Acts, for example the Civil Liability Act 2002 (NSW),which are relevant to sport and negligence including activities which involve inherent risk, dangerous recreational activity and voluntary assumption of risk.[29]Criticism is that the statute law has made the system less uniform,[30] with a balance favouring defendants,[31]though there is consensus that a duty of care in negligence may be found inthe sporting arena for both an individual and an organising body.[32] In addition Thorpe notes that in the case of Dodge v Snell[33]it was held that the dangerous recreational activity provision did not protect the negligent in a professional sporting field.  He suggests there will be significant implications on liability in professional sport should other jurisdictions accept this ruling.[34]

 

In the cases cited, plaintiffs were amateur sportspeople and the claims against governing bodies focus on voluntary participation rather than work-related participation. As activities of professional sportspeople meet the Safe Work Australia’s criteria for determining an activity as work under the Work Health and Safety Act2011 (Cth), professional sporting bodies hold a duty of care to ensurethe health and safety of players as workers under this legislation.[35]As an employer a club could be vicariously liable for a player’s action, particularly if they have encouraged it, as was the case in Budgen v Rodgers,[36]and organisers or managers of sports programs have a duty of care to make them as safe as possible for participants.[37]

 

With the rise in commercialism and corporatisation of sport it is possible a duty of care might arise between sporting governing bodies and players in other legal areas with Opie likening professional sport to manufacturing[38] and Greenhow suggesting the structure creates a parent-subsidiary relationship.[39]

 

Concussion risk management

Khurana and Kaye provide a thorough review of the literature on concussion in sport from a clinical perspective.  Looking at the evidence they found that concussion, if experienced by players multiple times, may have long-term adverse health effects. To reduce the risk they recommend a more conservative approach to managing players following concussion.[40]Discussions agree that concussion risk management requires better education throughout all levels of the sport including players,families, trainers and sporting officials and should be the responsibility of the governing body.[41]

 

Individual autonomy and personal responsibility

Fordham raises the point that the notion of autonomy has a significant influence on Australian courts evidenced by the fact that a duty is infrequently held to exist and seldom results in liability.[42]The decision in Agar v Hyde highlights that ‘with autonomy comes responsibility’.[43]Education on concussion and the rules of the game would assist players make an informed decision to participate[44]however, a player’s ability to make an informed decision to play on despite head injury shouldbe questioned given the nature of concussion[45]and the pressure to win.[46]Lunney suggests that a consequence of the introduction of statutory reforms into the law of negligence may be the defence of volenti non fit injuria[47] becomingredundant for organising bodies.  He concludes ‘in anaction for negligence the personal responsibility of both parties is in issue’.[48]Compensation for injured players is better achieved through adequate insurance than litigation where there is a need to prove fault.[49]

 

Conclusion

It is understood that professional and recreational contact sport has an inherent risk of personal injury[50] with evidence that there is a relatively high prevalence of concussion.[51]This is a topical issue with a growing body of work around it.  In addition it is also accepted that contact sport has a significantrole in Australian society and culture so that balance is needed between promoting participation and protecting players.[52]  The major football codes in Australia have been proactive in putting risk management into practice[53] with international experiences of litigation likely to influence future cases in the law of negligence.

 

 

BIBLIOGRAPHY

 

A         Articles/Books/Papers

 

Alzheimer’s Australia NSW, Football, Head Injuries and the Risk of Dementia (2013)

 

Anderson, Jack , ‘Personal injury liability in sport: Emerging trends’ (2008) 16 Tort Law Review 95

 

Burns, Kylie, ‘It’s not just policy: The role of social facts in judicial reasoning in negligence cases’ (2013) 21 Torts Law Journal 73

Clacy, Amanda , Rachel Sharman, Natassia Goode, Paul M Salmon and Geoff Lovell, ‘Responsibilities in the prevention of concussions in community rugby union’ (2015) 3 Procedia Manufacturing 1173 – 1180 www.sciencedirect.com

 

Ellis, Elizabeth, Principles and Practice of Australian Law (Thomas Reuters (Professional) Australia Limited, 3rded, 2013)

 

Fordham, Margaret, ‘Saving us from ourselves’ (2010) 18 Torts Law Journal 22

 

Forrester, Kim and Debra Griffiths, Essentials of Law for Health Professionals (Elsevier Australia 3rded, 2010)

 

Greenhow, Annette, ‘Concussion policies of the National Football League:  Revisiting the ‘Sport Administrator’s Charter’ and the role of the Australian Football League and National Rugby League in concussion management’ (2011) Sports Law eJournal, http://epublications.bond.edu.au/slej/13

 

Handford, Peter, ‘Intention, negligence and the Civil LiabilityActs’, (2012) 86 Australian Law Journal 100

 

Hanna, Joseph M, ‘Third Circuit Unanimously Votes to Uphold NFL Concussion Settlement’(18 April 2016) Sports and Entertainment Law Insider, http://sportslawinsider.com/third-circuit-unanimously-votes-to-uphold-nfl-concussion-settlement/

 

Horvarth, Paul and Emily Lupo, ‘The knockout blow:  How Australia is tackling concussion & neck injuries’ (2015) LawInSport,http://www.sportslawyer.com.au/the-knock-out-blow-how-australia-is-tackling-concussion-neck-injuries/

 

Khurana, Vini G and Andrew H Kaye, ‘An overview of concussion in sport’, (2010) 19 Journal of Clinical Neuroscience 1–11

 

Lane, Samantha , ‘Head injury payouts revealed’ The Age (online), 1 April 2011,

 

LexisNexis, Australian Encyclopaedic Legal Dictionary, January 2011

 

Lunney, Mark , ‘Personal responsibility and the “new” volenti’ (2005) 13 Tort Law Review 76

 

Opie, Hayden, ‘The Sport Administrator’s Charter: Agar v Hyde’ (2001) 9 Torts Law Journal 131, 152

 

Power, Edward, The Law of Negligence and Australian Rules Football, Chairman AFL VIC Tribunal, December 2014

 

Purshouse, Craig, ‘Liability for lost autonomy in negligence: Undermining the coherence of tort law?’ (2015) 22 Torts Law Journal 23

 

Rushworth, Nick, Concussion in Sport, Policy Paper, Brain Injury Australia, October 2012

 

Safe Work Australia, Model Work Health and Safety Act The Meaning of ‘Person Conducting a Business or Undertaking,’Interpretive Guideline (at 20 April 2016)

 

Schot, Natasha, ‘Negligent liability in sport’ (2005) Sports Law eJournal, http://epublications.bond.edu.au/slej/2

 

Sweeney, Brenden, Jennifer O’Reilly and Andrew Coleman, Law in Commerce (LexisNexis Butterworths, 5thed, 2013)

 

Thorpe, David , Antonio Buti, Chris Davies, Saul Fridman and Paul F Johnson, Sports Law (Oxford University Press, 2013)

 

Windholz, Eric L ,‘Team-based professional sporting competitions and work, health and safety law: Defining the boundaries of responsibility’ (2015) 43 Australian Business Law Review 303

 

 

BCases

 

Agar v Hyde [2000] HCA 41

 

Budgen v Rodgers (1993) AustTortsReports 81-246

 

Green v Australian Rugby Football League [2003] NSWSC 749

 

Green v Country Rugby Football League of NSW[2008] NSWSC 26

 

Haylen v New South Wales Rugby Union Ltd [2002] NSWSC 114

 

McCracken v Melbourne Storm Rugby League Football Club Ltd (2005) 2(1) CL 10

 

Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9

 

 

 

 

 

C   Legislation

 

Civil Liability Act 2002 (NSW)

 

Work Health and Safety Act 2011 (Cth)

[1] David Thorpe, Antonio Buti, Chris Davies, Saul Fridman and Paul F Johnson, Sports Law (Oxford University Press, 2013) ch 5.

[2]Brendan Sweeney, Jennifer O’Reilly and Andrew Coleman, Law in Commerce (LexisNexis Butterworths, 5thed, 2013) ch 2.

[3] Paul Horvarth and Emily Lupo, ‘The knockout blow:  How Australia is tackling concussion & neck injuries’

(2015) LawInSport,http://www.sportslawyer.com.au/the-knock-out-blow-how-australia-is-tackling-concussion-neck-injuries/.

[4] Edward Power, The Law of Negligence and Australian Rules Football, Chairman AFL VIC Tribunal, December 2014.

[5] Natasha Schot, ‘Negligent liability in sport’ (2005) Sports Law eJournal, http://epublications.bond.edu.au/slej/2

[6] Amanda Clacy, Rachel Sharman, Natassia Goode, Paul M Salmon and Geoff Lovell, ‘Responsibilities in the prevention of concussions in community rugby union’ (2015) 3Procedia Manufacturing 1173 – 1180www.sciencedirect.com.

[7] Annette Greenhow, ‘Concussion policies of the National Football League:  Revisiting the ‘Sport Administrator’s Charter’ and the role of the Australian Football League and National Rugby League in concussion management’ (2011) Sports Law eJournal, http://epublications.bond.edu.au/slej/13.

[8]Margaret Fordham ‘Saving us from ourselves’ (2010) 18 Torts Law Journal 22.

[9]Vini G Khurana & Andrew H Kaye, ‘An overview of concussion in sport’, (2010) 19 Journal of Clinical Neuroscience 1–11.

[10] Nick Rushworth, Concussion in Sport, Policy Paper, Brain Injury Australia, October 2012.

[11] Joseph M Hanna ‘Third Circuit Unanimously Votes to Uphold NFL Concussion Settlement’(18 April 2016) Sports and Entertainment Law Insider, http://sportslawinsider.com/third-circuit-unanimously-votes-to-uphold-nfl-concussion-settlement/.

[12] Jack Anderson, ‘Personal injury liability in sport: Emerging trends’ (2008) 16 Tort Law Review 95.

[13] Craig Purshouse, ‘Liability for lost autonomy in negligence: Undermining the coherence of tort law?’ (2015) 22 Torts Law Journal 23.

[14]Eric L Windholz, ‘Team-based professional sporting competitions and work, health and safety law: Defining the boundaries of responsibility’ (2015) 43 Australian Business Law Review 303.

[15] Mark Lunney, ‘Personal responsibility and the “new” volenti’ (2005) 13 Tort Law Review 76.

[16] Hayden Opie, ‘The Sport Administrator’s Charter: Agar v Hyde’ (2001) 9 Torts Law Journal 131, 152.

[17]Agar v Hyde [2000] HCA 41.

[18]Haylen v New South Wales Rugby Union Ltd[2002] NSWSC 114; McCracken v Melbourne Storm Rugby League Football Club Ltd (2005) 2(1) CL 10; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; Budgen v Rodgers(1993) AustTortsReports 81-246; Green v Australian Rugby Football League[2003] NSWSC 749; Green v Country Rugby Football League of NSW[2008] NSWSC 26.

[19] Above n 17.

[20]Above n 18.

[21] Samantha Lane, ‘Head injury payouts revealed’ The Age (online), 1 April 2011, .

[22]Fordham, above n 8, 9; Hovarth and Lupo, above n 3, 4.

[23] Thorpe, above n 1, 191; Opie, above n 16, 207.

[24] Above n 18.

[25] Above n 18.

[26]Horvarth and Lupo, above n 3, 3.

[27]Hovarth and Lupo above n 3, 4,5.

[28] Thorpe, above n 1, 141.

[29] Ibid; Lunney, above n 15, 1.

[30] Peter Handford, ‘Intention, negligence and the Civil Liability Acts’, (2012) 86 Australian Law Journal 100.

[31]Schot, above n 5, 14.

[32] Power, above n 4, 4.

[33]Dodge v Snell[2011] TASSC 19.

[34] Thorpe, above n 1, 177.

[35] Safe Work Australia, Model Work Healthand Safety Act The Meaningof ‘Person Conductinga Business or Undertaking,’Interpretive Guideline (at 20 April 2016); Windhowz, above n 14, 13.

[36]Schot, above n 5, 3.

[37] Power, above n 4, 4.

[38] Opie, above n 16, 209, 210; there is responsibility for the quality and safety of the product or service including providing adequate instructions and warnings of dangers.

[39] Greenhow, above n 7, 16; a duty of care might arise due to the ability of the governing body to influence team activity.

[40] Khurana and Kaye, above n 9, 9.

[41]Clacyet.al., above n 6, 1180; Khurana and Kaye, above n 9, 9; Hovarth and Lupo, above n 4, 8; Alzheimer’s Australia NSW, Football, Head Injuries and the Risk of Dementia (2013); Rushworth, above n 10, 5.

[42]Fordham, above n 8, 16.

[43] Above n 18.

[44]Schot above n 5, 14.

[45] Rushworth, above n 10, 3.

[46]Hovarth and Lupo, above n 3, 8.

[47] ‘There can be no injury to the willing. The basis for the defence to a negligence action known as ‘voluntary assumption of risk’ and for the defence to a trespass action known as ‘consent’ or ‘leave and licence’ (or simply ‘licence’)’.  LexisNexis, Australian Encyclopaedic Legal Dictionary, January 2011.

[48] Lunney, above n 15, 91.

[49]Schot, above n 5, 14.

[50] Anderson, above n 12, 1.

[51]Stephanie J. Hollis, Mark R. Stevenson, Andrew S. McIntosh, E. Arthur Shores, Michael W. Collins and Colman B. Taylor, ‘Incidence, Risk, and ProtectiveFactors of Mild Traumatic BrainInjury in a Cohort of AustralianNonprofessional Male Rugby Players’, (2009) 37 American Journal of Sports Medicine12, 2332; Khurana and Kaye, above n 9, 9.

[52]Schot, above n 5, 1.

[53] Rushworth, above n 10, 4.

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