We have received your instructions and provide our advice as follows.
Claims against the Players
Your primary claim is against the players that spear-tackled you for negligence. Claims in negligence are governed by the Civil Liability Act. In order to succeed in claims against the players, their employers or the rugby boards, you would need to satisfy the criteria of the Act. These are, in summary:
1) Duty of Care
Participants in sport owe each other a duty of care to not cause harm to one another. It would need to be established that the players could foresee that their actions could cause injury. We are of the view that a duty of care would be held to be owed by the opposing players and that they would have foreseen that spear-tackling could cause serious injury.
2) Breach of Duty of Care
Law 10.4(e) of the IRB rules prohibits spear-tackles. Although these rules are not law, they can be used to support your case for negligence if they have been breached. It is our view that a Court would find, based on the video evidence, that the players breached their duty of care.
It needs to be established the player’s negligent actions caused the injury that you sustained. As the spear-tackle resulted in an immediate injury it is likely a court would find the element of causation has been satisfied.
The players and their club could argue a defence of voluntary assumption of risk. This defence is that you consented to playing a game with the prior knowledge that serious injury could occur.
We consider it is unlikely that this defence would stand given the numerous changes to the IRB rules to ensure safety in the game.
Claim against Western Force
In addition to your claim against the competitors, the Act provides that a negligent person’s employer may be vicariously liable for the acts their employee commits in the course of their employment. If you are successful in your claim of negligence against the competitors, the prospects of your claim for vicarious liability against the employer are good.
In addition to the defence of voluntary assumption of risk the employer could argue that the acts of their employees in breaking the rules of the game were beyond the scope of their employment. We consider that such a defence would be unsuccessful as it could reasonably be expected that actions that occurred on the field of play of the type complained about would be foreseen and expected. Nevertheless, it must be taken into consideration.