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Is rugby in the health and safety firing line?

12 July 2017

Sonny Bill Williams' red card for a no-arms shoulder charge on Lions wing Anthony Watson has gathered significant attention.

Players who are sent off the field must appear before the rugby judiciary for disciplinary action to be determined. But could Sonny Bill, the New Zealand Rugby Union (NZRU) as the employer, Steve Tew the chief executive, or other players in test rugby face legal liability for injuring someone in the course of their duties as a rugby player?

The Health and Safety at Work Act imposes penalties of up to five years imprisonment and a fine of up to $3 million in some cases where someone is injured in their place of work. The Act imposes health and safety obligations on "persons conducting a business or undertaking" (PCBU) and captures employers, certain employees, contractors, or other persons in control of a workplace.

Although we don't often think about it, Westpac Stadium is a workplace and the All Blacks are a finely tuned, high performing business. The All Blacks are employees, and the NZRU is their employer.

PCBUs have the primary obligation of ensuring the health and safety of those affected by their enterprise. Presumably, under the Act the NZRU would be a PCBU.

An "officer" of a PCBU is anyone who exercises significant influence over the management of the business. Officers must exercise due diligence to ensure the PCBU complies with the Act. An officer will generally be someone like a chief executive, such as Steve Tew.

The rugby players themselves would also be under obligations to take reasonable care for their own health and safety and take reasonable care that their actions do not harm others.

In theory, at least the NZRU, the chief executive, and the individual player could face prosecution under the Act if, for example, a tackle went wrong and caused harm and the parties had not taken the steps required to prevent the risk of harm.

In the famous 1993 English House of Lords case, R v Brown, Lord Mustill considered why professional boxing is immune from criminal prosecution. He also contemplated how crucial deliberate bodily contact is to the game of rugby and that in any other context a rugby tackle would be painful battery or even grievous bodily harm.

Although the consent of the players to engage in a physical sport is relevant, the criminal law only allows individuals to consent to a certain level of harm being inflicted upon them. Once this threshold is passed the act becomes criminal despite the consent.

Lord Mustill explained that rugby tackles and boxing punches are not criminal because such sports are 'special situations' that stand outside the ordinary criminal law because society chooses to tolerate it.

The World Rugby Council is certainly taking steps to protect players from neck and head injuries by continuing to develop and tighten the rules of the game.

Tackles like Sonny Bill's are prohibited in order to prevent injuries and referees are expected to give red cards to infringements such as the one in question.

What about rugby matches involving local teams where the players are not paid, such as the Jubilee Cup competition and junior rugby?

Just over a week ago there was a club rugby game that went very wrong. In the final minutes of the Waikato club rugby championship match between Southern United Football Club and Taupiri, Braden Coates suffered a serious spinal injury when two of his vertebrae broke during a tackle and maul.

Purely volunteer organisations, where volunteers work together for a community purpose and there are no employees, are not strictly covered by the Health and Safety at Work Act. Volunteer associations are not PCBUs and therefore are excluded from the obligations under the Act.

However when they employ someone the Act will apply. The Act provides that volunteers are not liable for some of the offence provisions of the Act. Despite this it is advisable that volunteers still comply with the Act to avoid other liability and to prevent injury or death. It may also be that liability will lie elsewhere.

An example of this is seen in the 2005 Court of Appeal case involving 'Le Race' organiser Astrid Andersen. In 2001 Andersen faced charges of criminal nuisance under s 145 of the Crimes Act following the death of a cyclist.

Ms Caldwell was competing in the annual cycling event from Christchurch to Akaroa when she was struck and killed by an oncoming car as she approached a blind corner on the wrong side of Summit Road, Christchurch.

Andersen was initially convicted and fined $10,000. The Court of Appeal overturned the conviction, holding that the offence needed recklessness for a conviction. This had not been proven and she was accordingly acquitted.

The lesson remains that those who are employed, including professional rugby players and those responsible for their management, are caught by our Health and Safety at Work Act. The officers have significant responsibilities, as do the players themselves for the safety of other players.

In voluntary community sport, the Act will not generally apply but the ordinary criminal law may be invoked for the most serious offending.

The shield of sport will not protect against the most malicious or reckless of actions.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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