Free Instant Case Review - 1300 720 544

Law of Negligence in Sport Injury Compensation

Anyone who has played sport, either in a recreational or competitive capacity, can attest to the risk factors involved. Injuries sustained in sport can range from minor sprains to fatal injuries. With respect to Queensland law, when someone is injured as a result of another person’s negligence there is potential for the injured party to seek compensation through legal action.

Can you be compensated if you play sport and you are injured?

An injured player’s ability to claim for compensation will depend upon numerous factors including the circumstances, the nature of their injury and any barriers impeding legal action being taken, such as those outlined in the Civil Liability Act 2003 (Qld).

Avenues for compensation include:

  • Tort law
  • Contract law (insurance policy)
  • Criminal law



To be able to commence a claim for negligence the applicant has to prove:

  • The other player or occupier of the sporting facility owed them a duty of care;
  • That duty of care was breached;
  • The breach caused the applicant’s damage; and
  • The application is made within the time period stipulated by the appropriate legislation.

Please see below for a non-exhaustive list of the relationships that do owe a duty of care:

  • Occupiers of sporting facilities: Welsh v Canterbury (1894) 10 TLR 478.
  • Sport supervisors such as managers, trainers, sports and physical education teachers and event organisers: Watson v Haines Unreported, 10 April 1987.
  • Fellow players: Fraser v Johnston (1990) Aust Tort Reports 80-248.
  • Mothers to their unborn child Lynch v Lynch (1991) 25 NSWLR 411.
  • Employers if the employer has encouraged the negligent action or if the damage sustained was in the course of the applicant’s course of employment. For example, if the employer organised and encouraged the employee to be involved in playing football between staff members. Rogers v Budgen (1993) Aust. Torts Reports 81-246.

Barriers impeding a claim for compensation for damages

As outlined earlier, there are limitations in place with respect to the injured player being able to seek compensation if they are injured. For those injured in Queensland, legislative limitations are found in the Civil Liability Act 2003 (Qld), Personal Injuries Proceeding Act 2002 (Qld) and common law cases.

Volenti non fit injuria: to a willing person, injury is not done

If the defendant can prove volenti, that is, that the injured player had knowledge, comprehension and appreciation of the risks inherent in that particular sporting activity, then the injured player cannot hold the other player liable. It is important to note that particular activities or roles in a certain sport have a greater risk than others. For example, in cricket it is common knowledge that a batsman will be injured at a higher rate than that of bowler. Source: Jim Corkey. (2011) “Dangerous Sports and Obvious Risks – Anyone for Cricket”,

Section 14 of the Civil Liability Act 2003 (Qld)

The common law doctrine of volenti non fit injuria is reflected in section 14 of the Civil Liability Act 2003 (Qld). This section however, has the effect of further restricting the opportunity of the injured player to make a negligence claim as the legislation has effectively reduced the standard of knowledge of the risk . Thus, the injured player does not need to be aware of the precise manner, nature or extent of the risk to be deemed aware and thus consent to the risk.

Sections 13 & 16 of the Civil Liability Act 2003 (Qld)

Section 13 of the Civil Liability Act 2003 (Qld) potentially provides another opportunity for the defendant to escape liability. If the defence can establish that the injured player was engaged in a sporting activity with an obvious risk the court will most probably determine that the injured player consented to the risk and thus cannot hold anyone liable for their injury.

What is of significance is that even though the risk of an injury occurring had a low probability or was not considered conspicuous, the risk can still be determined as being an obvious risk.

Furthermore,  Section 16 of the Civil Liability Act 2003 (Qld) states that if a court finds that there was an inherent risk, meaning the risk of the injury occurring could not be avoided, then the defendant can avoid liability.

Section 18 of the Civil Liability Act 2003 (Qld)

This section applies to sporting activities that are considered a “dangerous recreational activity”. A defendant will not be held liable if the court establishes that the injury was sustained as a result of a dangerous recreational activity and that activity involved a significant risk of physical harm.

It will be a subject of vigorous legal debate as to whether the sporting activity should be considered as a dangerous recreational activity and if the risk of physical harm was significant.

Of note, a flagrant disregard of the game’s rules by another player is not regarded as an obvious or inherent risk consented to by the injured player. For example, if a football player is spear tackled by another player, thereby breaking the rules of the game, and the other player suffers damage, the injured player can seek damages.

Contributory negligence

If the defendant can successfully argue that the injured party was in some way responsible for their injuries the Civil Liability Act 2003 (Qld) allows the court to reduce damages by up to 100%. Thus, even if the injured party can prove that the defendant owed them a duty of care, breached that duty of care and this breach caused the injured party damage, the defendant may not have to pay any damages at all.

This particular application of the Civil Liability Act 2003 (Qld) has the capacity to render great injustice. Just because an injured party did contribute somewhat towards their injury, why should the court have the capacity to deny the injured party any compensation for the damages inflicted by the negligent actions of another?

Example of a successful claim for negligence: Ollier v Magnet Island Country Club (2004)

The case of Ollier v Magnet Island Country Club (2004) NSWCA 145 is an example of a successful negligence action claim. The circumstances of the case are quite unfortunate. Mr Olliver was playing golf at Magnetic Island Country Club for a charity match. Another participant, who was also playing in the golf charity day match, accidently, hit the ball into the back of Mr Olliver’s head causing Mr Olliver serious brain injury. Mr Olliver brought legal proceedings against the Country Club and the golfer who hit the ball into the back of his head. The defendant who hit the ball into the back of Mr Olliver’s head was found to be negligent as he owed Mr Olliver a duty of care to check to see if it was safe to hit the ball. Indeed, if he had simply checked and waited for Mr Olliver to move to the next green, the injury would have been avoided. Mr Olliver was awarded damages and costs.



Most sporting teams will have an insurance policy which their players pay for at the beginning of each season.

If a player, umpire, club official or volunteer does have insurance and their accidental injury was sustained as a result of their participation in the sporting activity they were insured under, then the injured party may be able to make a claim against the insurance policy provider.

The Product Disclosure Statement (PDS) will outline what an insured party is covered for. For example, some insurance policies do NOT cover claimants for Medicare Gap payments. Some insurance policies also do not provide income protection so in the event that a player cannot work as a result of their injury, they will not be compensated for any loss of wages due to the fact that they cannot work as a result of their sporting injury.

Contracts: what happens if I sign a waiver form?

Previously, courts would not uphold any terms of a contract, such as a waiver or exclusion clause, that deprived a party of any of their rights. This used to mean that persons facilitating sporting or recreational activities could not contract out of their duty of care owed to participants. This, however, has now changed.

The deliberations of the court have revealed that courts now place greater weight on a person’s ability to freely contract, and thus, accept that a party can effectively contract out of their duty of care in some instances.

Although a party may have signed a waiver form or contract with an exclusion clause, this does not necessarily mean that their rights have been effectively removed or are effective in excluding liability in a negligence claim.


Criminal prosecutions relating to criminal acts committed in the course of playing sport are very rare in Australia. They are rare because it is sometimes difficult for the courts to distinguish between the violence that is sometimes inherent in a particular sport and violence that is illegitimate. Most often it is the sporting club or association or private sport tribunal that sanctions or penalises the player who inflicted the injury.

It is still possible for players to be charged with assault or even manslaughter. According to section 246(1) of the Criminal Code Act 1899 (Qld) a person can be charged with assault if the act is unlawful, in other words, the act was not authorised or does not have the consent of the other party.

In the context of a contact sport, the court will interpret that the player has consented to a certain level of contact. However, contact inflicted upon a player that is outside the rules of the game or normal play could lead to criminal charges.

In the case of R v Billinghurst (1978) Crim LR 553 a player fractured the jaw of an opposing player in an off-the-ball incident. The player who inflicted the harm was charged and convicted of inflicting grievous bodily harm. In this case, the judge directed the jury to find that although a ruby player can consent to a certain level of violence, there is a distinction between the level of violence accepted in sport and violence used outside legitimate play. In other words, just because a person may be involved in a sport that necessitates a high level of violence, such as mixed martial arts, this does not mean that players have no limitations with regards to the amount and type of violence they can inflict upon others.