Assault and Consent - The Law in Sport

Sport is engrained into the Australian culture. It forms a significant part of our economy and serves to inspire millions. When we examine contact sports like rugby, league and Australian-rules football, it is rare that we stop to consider the legal ramifications of such events. Tackling someone to the ground and taking possession of their ball might be seen as assault and theft in an urban area, but it is a source of national pride when performed in a stadium for the world to witness. Where do we draw the line? When do we stop regarding wanton acts of violence as recreational and begin to perceive them as criminal?

Assault is the physical application of force to another without their consent. Clearly the keyword for our application to assault in sport is consent. Where deliberate violence does not exceed the tolerance of the law, consent is a complete defence. There are two types of consent; express and implied.

Express Consent

There is little chance of criminal liability arising from physical contact permissible under the express rules of the sport. Play that is within the rules and practice of the game and does not go beyond them will be a firm indication that what has happened is not criminal.

Implied Consent

A breach of rules involving physical contact will not be actionable unless a breach is outside the reasonable expectation of the reasonable player, or beyond the unwritten code and customary norms of the game.

Factors bearing upon implied consent include:

o   The nature of the game played (whether amateur or professional);

o   The nature of the particular acts and their surrounding circumstances;

o   The degree of force used;

o   The degree of risk of injury; and

o   The state of mind of the accused.

·         A player being sent off might not be sufficient to say consent was not there.

·         Instinctive reactions might be consented to.

·         Intentional causing of harm may mitigate against a finding of deemed consent.

·         Unwillingness of the victim to participate is a factor.

Where contact exceeds consent, the contact is deemed illegal.

Other considerations

·         The victim is deemed to have consented to any unintended harm which results from the consensual contact.
·         Violent contact outside the tolerable limits of the criminal law, although within the express or implied rules of the sport, is prosecutable.
·         Behind the play assaults are not consented to.

Agents, their duties and secret commissions

When we hear the word agent our first thoughts are of real estate agents. However, an agent in a legal sense actually covers an expansive range of relationships between a person or company (an agent) and another (referred to as a principal) who has undertaken to serve their best interests.

Whether or not a relationship of agency exists is a question which the courts approach objectively. There are many examples of established agency relationships. Here are a few;

·         Real estate agent and client

·         Solicitor and client

·         Employee and employer

·         Joint venturers (to each other)

·         The director of a company (to the company)

Scope of an agent’s duties

While the scope of the duties owed by an agent to their principal will vary depending on the type of agency, a fundamental duty of an agent is not to use their position to make a gain for themselves without the knowledge and assent of the principal.

An agent should consider if there is any personal interest in the matter which might conflict with the duty owed to the intended principal and, if so, he or she should decline to act as agent without the fully informed consent of the principal.

Profit from position and secret commissions

If an agent is aware of any circumstances which might influence their client’s decision to enter into a negotiation, and fails to disclose that information to their client, the commission may be forfeited.

If the agent does receive profit as a result of that non-disclosure, these profits are recoverable by the principal on learning the true facts.

Should an agent receive a secret commission or profit the principal may recover it as well as dismiss the agent.

Application to Real Estate

Let’s apply this to a real estate transaction, where agencies most commonly arise.

Perhaps you have heard of agents who desired to act for both a buyer and seller and to obtain commission from both. It is the duty of the agent to make full disclosure to both the buyer and seller of an intention to act for, and receive payment from, the other party. Both parties must be made fully aware of this intention and agree to the agent doing so. In the event the agent does not tell both parties, or does not gain their consent, the commission will be lost.  These obligations apply in addition to any PAMDA or POA obligations.

Abandonment of Land

Have you ever considered what happens when someone abandons a property? Imagine a scenario where someone with good legal title to a property decides to walk away and not return. If a squatter then decides to take up residence in the property, and lives there for 15 years before the owner returns, who owns the property? In actual fact, it is possible that the squatter has acquired a good title to the property, enforceable even against the original owner!

From a legal position, an action cannot be brought by an owner to recover land after the expiration of 12 years from the date on which the right of action accrued. A right to recover land accrues when the land is in the possession of someone who is not entitled to it (for example, a squatter).

Let’s say the squatter takes a property, puts up a fence, changes the locks, declares it is home and excludes all others from the property. If the owner subsequently brings an action to recover possession the squatter can bar that action by the owner as long as;

·         They have been in constant, visible occupation for at least 12 years,

·         The possession is open, not secret, and peaceful, not by force,

·         The owner did not give them consent to be on the property (as an employee or contractor), unless the owner did but then revoked that consent, and

·        They intended to possess the property.

The court will consider such things as; 

·         paying rates,

·         erecting and maintaining fences, and

·         cultivating the land

highly convincing, but not definitive in determining whether a person has possessed the land.

To establish a requisite intention to possess the land, the person in actual occupation must show an intention to exclude the world at large, including the registered owner, but it is not necessary to prove a conscious intention to exclude the registered owner.

There are interesting considerations within this, most notably;

·         where a person derives ownership of the dispossessed property via a will or intestacy,

·         where the interest gained in the property is by some assurance or guarantee,

·         where action to recover land is based on fraud,

·         If a person has a future interest in the land (a right to ownership at some point in the future),

·         Where the owner holds the land as trustee, and

·         Where the squatter used the property as a weekender/vacation home.

All of these instances require a more thorough explanation of the law.

If anything you have read here applies to you or a relative, or if you are interested in a more thorough explanation, make an appointment to speak with one of our experts.