What is a "Duty of Care"?

[yeah-nah]

In the history of AFL, how often do these sort of collisions take place? thousands! In the history of AFL, how often has this sort or level resulted from those impacts? 2-10 max! That to me is the definition of Freak Accident!

More players get seriously injured in marking contests ( and in other ways deemed ok cos the opposing player was playing the ball) than players who have received a legal bump.

 

[yeah-nah]

"Duty of care" is the disclamer that allows any action on a football field to be chargeable.

Say Maxwell screws himself into a tiny little ball, tucks his head into his body like a turtle and bumps the youngfella in the hip, could he still be charged with not exersising a duty of care, if the bumped player falls over and bumps his head on the turf?

Yes. Same applies in a tackle.

 

[greennick]

How is what happened to Lonergan a freak accident? He is there backing back unprotected you run into him with 100kgs and your knees go up into his back at full pelt, are you telling me its a freak accident he got seriously hurt?. Id rather take my chances copping a fair bump and wearing a possible head clash thanks. AFL is a single country game under pressure from competing sports with world wide appeal. What other sport of any meaning has rules which allow what happened to Lonergan?

NFL allows that to happen all the time. In the NFL the rules are now that you can't use your helmet as a weapon (you are not allowed to lead with your helmet - it is dangerous for both parties really). People still do it all the time though.

 

[Dean3]

I'm in favour of the rules forcing players to focus on contesting the ball rather than just picking off players as they see fit.

Question:

If McGinnity was in the act of marking the ball and Maxwell came from front on and without attempting to contest the ball collided with him and accidentally (via a head clash) broke his jaw, would you expect Maxwell to be reported and suspended? I would.

I don't see a lot of difference in this case. Just like a player going for a mark, McGinnity, with his eyes on the ball, is entitled to expect that any contact he receives, while his eyes are on the ball and the ball is in dispute, should not be of such force that it may break his jaw.

 

[Xsess]

Yes. Same applies in a tackle.

By extension that's what the tribunal has said with this ruling.

By accepting that it was a head clash that caused the injury they are in effect saying it is the secondary impact resulting from the bump, that warranted the suspension.

 

[mollyfud]

I think we all understand your point. There is an argument that he was acting illegally as the law as the law stands. I think the issue people have is with the laws as they stand at the moment. The law has been changed recently resulting in this kind of situation, arguing technicalities on newly introduced laws that many don’t agree with isn’t overly useful. Personally I’m not convinced either way, I am however of the opinion that players having a duty of care should extend to both parties. If I go after the ball I should take all due care for MY OWN safety as well. That is the heart of this game, courage and the strength of will to put yourself in harms way. The reason (intelligent) people are upset about the sanitation of the game is not to do with an interest in thug acts. It’s because the core of this game has always been about this concept – more so than pinpoint passes or quick handballs.

Okay, the only reason to bring the laws up again is that you suggested in your comment (that I was replying too) that he was acting legally. He wasn't. Enough on that.

On you own safety, you do have to look after yourself but you have to assume things in doing so. McGinnity was fine with the idea that he could be bumped going the ball, but he would have expected (because of the laws of the game) that he wouldn't be hit in the head by someone not going after the ball. With this in mind, he felt it acceptable to chase after the ball. I can't see that we should discourage this action!

Oh, and on the "recent law change" it is over two years now that it has been changed. I think thats long enough for people to know it. If they haven't been taught it now through three preseasons, coaches heads should roll!

 

[mollyfud]

More players get seriously injured in marking contests ( and in other ways deemed ok cos the opposing player was playing the ball) than players who have received a legal bump.

Not life threatingly injured though and that was your point. Some of the most serious injures (knees for example) happen just running along or turning. Injuries happen but in this case, the AFL have a law that says if you bump and have alternatives, don't hit the head or your in trouble!

 

[joxstrap]

Simply put, if something goes wrong then duty of care must not have been applied. For instance Police and emergency vehicles are allowed to break road rules if duty of care is observed meaning (a) the situation warrants the breach and (b) it is safe to do so. Therefore if a police officer is involved in an accident while speeding then they are guilty of an offence whether or not the situation warranted them speeding in the first place.

Not to get overly technical, but this analogy is seriously flawed.

1) If it is reasonably foreseeable that injury to a person would result from a lack of care to that person, a duty of care is owed.

• For example a road user owes a clear duty of care to other road users, pedestrians, proximate businesses, parked cars, passengers etc.

2) Once a duty is established you need to work out what the appropriate standard of care is. You can have a duty of care, but provided that you have acted as a reasonable person would have in the situation and met the standard owed to the other person, you have committed no breach, regardless of the damage caused. Thus your injury = duty of care not applied is false.

• Eg: A supermarket has a duty to it's customers. In terms of wet, slippery floors the supermarket is held to a standard roughly that a) they appropriately supervise and routinely check for spills and clean them, and b) place signs warning of recently cleaned floors.
• To generalise: a supermarket who's customer who falls on a spill with no signs, no checks, and no system in place has breached their duty of care and not met the standard of care owed, but:
• A person who slips having ignored multiple signs, in a supermarket with good procedures, signs etc will have no recourse as the duty of care has been met, despite any injury!

Also: voluntary assumption of risk, contributory negligence and other fun topics will also modify your incorrect rule that injury = not meeting a duty of care.

A person in a crowd at a cricket game who is injured by a flying ball may will break their skull, but will have no action against a) the batsmen b) bowler c) ground owner d) club e) etc, because of the principle of voluntary assumption of risk.

I know this is a discussion about Football 'duty of care' which may well be a different concept - but your example about real world traffic/police duty of care needed correcting.

Go pies.

 

[Timmy from Thomastown]

I'm in favour of the rules forcing players to focus on contesting the ball rather than just picking off players as they see fit.

Question:

If McGinnity was in the act of marking the ball and Maxwell came from front on and without attempting to contest the ball collided with him and accidentally (via a head clash) broke his jaw, would you expect Maxwell to be reported and suspended? I would.

I don't see a lot of difference in this case. Just like a player going for a mark, McGinnity, with his eyes on the ball, is entitled to expect that any contact he receives, while his eyes are on the ball and the ball is in dispute, should not be of such force that it may break his jaw.

Interfering with a player while going in for the mark is a totally different set of circumstances.

Maxwell was fully entitled to apply the bump. Nobody is stupid enough to argue that he wasnt allowed to bump his opponent in that contest.

The only thing under question is whether or not the bump was applied legally.

 

[Dean3]

Interfering with a player while going in for the mark is a totally different set of circumstances.

Maxwell was fully entitled to apply the bump. Nobody is stupid enough to argue that he wasnt allowed to bump his opponent in that contest.

The only thing under question is whether or not the bump was applied legally.

Isn't that what I just said?

While your eyes are focussed on the ball in dispute, I reckon you should be entitled to expect that any contact made with you is not of such force that it will break your jaw.

I didn't say that you were entitled to expect NO contact.

 

[greennick]

Interfering with a player while going in for the mark is a totally different set of circumstances.

Maxwell was fully entitled to apply the bump. Nobody is stupid enough to argue that he wasnt allowed to bump his opponent in that contest.

The only thing under question is whether or not the bump was applied legally.

Spot on, it was a legal time to do a bump, the issue is whether he executed it legally. All these commentators who say he did don't seem to understand the rules around head high contact.

 

[Zvim]

I'm in favour of the rules forcing players to focus on contesting the ball rather than just picking off players as they see fit.

Question:

If McGinnity was in the act of marking the ball and Maxwell came from front on and without attempting to contest the ball collided with him and accidentally (via a head clash) broke his jaw, would you expect Maxwell to be reported and suspended? I would.

I don't see a lot of difference in this case. Just like a player going for a mark, McGinnity, with his eyes on the ball, is entitled to expect that any contact he receives, while his eyes are on the ball and the ball is in dispute, should not be of such force that it may break his jaw.

Your point is irrelevant because going for the ball in any situation allows you to bypass the rule that Maxwell was charged on. If he went crashing into a marking contest and wasn't going for the ball then he would be on the same charge because when you are not going for the ball it is considered a bump (if within 5m of the ball) or a charge if it is not.

His intention is what is important.

He intended to make body contact and not go for the ball when he had other options. If he was running for the ball and the eagles player was running for the ball and they both bumped eachother in the process and was unavoidable then he would not fall under the rule.

Once you choose to make contact and not go for the ball then there is a duty of care. You MUST execute the bump perfectly. There was head high contact, so the bump was not perfect. His technique was fine, his feet were on the ground and his arm kept in but contact was made high.

The only problem I have with the rule is the inconsistent application of it. A lot of people have not been charged or found guilty of this offense when they clearly were. The problem for the Collingwood defense is they can not bring past cases up as precedence so they can't ask what the difference was between Maxwell and say Ablett's hit on Wirra.

A problem we have is that the MRP and Tribunal are incapable of applying the laws consistently.

 

[Timmy from Thomastown]

Isn't that what I just said?

While your eyes are focussed on the ball in dispute, I reckon you should be entitled to expect that any contact made with you is not of such force that it will break your jaw.

I didn't say that you were entitled to expect NO contact.

If he clashed that hard while McGinnity was in an attempt to mark he would get suspended even if there was no high contact. You could hit the guy 100% in the ribcage and you'd still get suspended.

Its totally different. You are not allowed to interfere with a player who is attempting a mark. But you are allowed to bump a player in general play as long as the bump is legal and the ball is in the vicinity.

Different rules for different situations and not really a good analysis, imo.

 

[Dean3]

Your point is irrelevant ...

Funny, you call my point irrelevant and then go on to make exactly the same point I was making.

I agree with you.

 

[Dean3]

If he clashed that hard while McGinnity was in an attempt to mark he would get suspended even if there was no high contact. You could hit the guy 100% in the ribcage and you'd still get suspended.

Its totally different. You are not allowed to interfere with a player who is attempting a mark. But you are allowed to bump a player in general play as long as the bump is legal and the ball is in the vicinity.

Different rules for different situations and not really a good analysis, imo.

It's not totally different in the eyes of the AFL, and that's the point I'm making.

Leaving rules and conventions aside for a moment, philosophically there isn't much difference in going for a mark and chasing a loose ball. In both situations, you are focussed on winning the ball and are to some extent vulnerable to those whose focus is on you.

The rules are changing to change the focus of players onto contesting the ball, and if you choose to focus on the man, then you must execute well. That's why I was bringing in the marking example, because that is the most prevalent example of players being protected when eyes are on the ball.

I think focussing on the contest for the ball, rather than pretty cheap hits like Maxwell's, is a good thing.

 

[PowerForGood]

Cut and paste from the best post that I have seen on this subject, from the Robert Murphy incident last year.

The AFL uses legal concepts such as intent, negligence (incorporating causation and reasonableness) and recklessness in determining a player's culpability in causing contact to another player's head or neck. The AFL does not seem to have gone so far as to adopt the concept of "accident". The criminal law recognises an accident as an unintended or unforeseen consequence of a willed act that no ordinary person could reasonably have foreseen.

By the nature of the sport of Australian Rules football itself (a fast-paced running sport where correctly-executed bumps, tackles and other bodily contact is legal, endorsed and actively encouraged), these unintended consequences are more than foreseeable: they are highly probable.

The criminal law, in the context of offences against the person, imposes a very high level of culpability on people for the consequences of their willed acts. Unless a person can establish that the consequences were unintended or unforeseen AND unforeseeable, he will be culpable for his act and its consequences. The criminal law is effectively saying "we don't look too kindly upon acts of that kind, and you are culpable for the consequences unless you can show they were so unlikely as to be unforeseen".

There is no parity with Australian Rules football because the willed acts themselves (running at and taking possession of the football, executing a bump, laying a tackle, shepherding et al) are actively encouraged by the AFL through the rules of the game itself. So the criminal law concept of "accident" has no application to unintended acts on the football field. They are all foreseeable and therefore cannot be accidental.

The only defence that players can raise is that the high contact was reasonable in the circumstances. Where a player is seeking to execute a legal action and inadvertently makes contact with another player's head, even though it is foreseeable, that is reasonable.

A good example is where a player is contacted to the head during a marking contest. In Round 3 Anthony Rocca flew for a mark and his knee or leg caused head-high contact to Graham Polak, who suffered a cut head and concussion. Despite the head-high contact, this was not a Reportable Offence because the contact was unintended and reasonable in the circumstances. On a strict interpretation of recklessness, it was reckless (because Rocca could foresee the particular harm but went on to take the risk of that harm nonetheless). But the notion of recklessness is largely redundant in the Australian Rules context, as most if not all acts on a football field are reckless as to potential harm to others. What made the contact non-negligent was that it was reasonable in the circumstances. It all comes down to what is reasonable.

The AFL's interpretation of the notions of recklessness and negligence means that other forms of unintended head-high contact (to wit: head-high contact during a contest for a loose ball) are interpreted at the very least as unreasonable (and therefore negligent) because the player acted unreasonably by:

a) attempting to execute a legal tackle or bump rather than to take possession of the ball; or
b) attempting to take possession of the ball rather than avoid the contest.

The whole setup is counterintuitive. Every fair, legal act is classed as reasonable until someone receives head-high contact, then it magically transforms into unreasonable? It's all fun and games until someone loses an eye? Spare me. It's false logic to argue that the head-high contact (the unintended consequence) made the willed act unreasonable; if that were the case, the laws of the game would make no proviso that Reportable Offences must be "unreasonable in the circumstances", as all Reportable Offences would be unreasonable by their very nature.

Endorsing physical contact but then interpreting any head-high contact as unreasonable is akin to endorsing the firing of guns in a city street, then convicting when someone gets shot: "Look sport, you were told at the start of the year: shoot anyone and you're going to prison. Don't say you weren't warned. Righto, who's up for some shooting? OK boys, fire at will!"

 

[GoodFootyNorth]

Interesting thread. I agree that the attempt to use legal terms as a justification is anoying... as if saying the phrase "duty of care" is an answer to any criticism of the decision.

As has been pointed out, in its ordinary use in law, the idea of duty of care is part of the test in determining whether there has been negligence. But it's accompanied by a consideration of whether the person's actions breached that duty... basically whether they acted reasonably.

Here the AFL seems to be saying that if you don't contest the ball when you had the chance to, and bump someone in the head, you are negligent regardless of intention or any other assessment of whether you've acted reasonably.

So these kinds of considerations:

• keeping his feet on the ground
• tucking the elbow in
• initiating contact to McGinnity's shoulder

... all indicators that "care" was indeed taken to avoid high contact?

are not relevant.

 

[Timmy from Thomastown]

It's not totally different in the eyes of the AFL, and that's the point I'm making.

Leaving rules and conventions aside for a moment, philosophically there isn't much difference in going for a mark and chasing a loose ball. In both situations, you are focussed on winning the ball and are to some extent vulnerable to those whose focus is on you..

Leaving your philosophy aside and sticking to rules and conventions, going for a mark is totally different to chasing a loose ball. In one case you are allowed to shepherd or bump and in the other case you cant.

Its a nonsense analogy and I dont know why you are bothering with it.

 

[DaVe86]

I hate the fact legal words are entering into the AFL.


I study law and work at a law firm so i hear the words "duty of care" as often as i hear my own name. Yet i still would struggle to define it or completely understand it.


But, once a duty of care is established...then you have to prove a breach of that duty.

Did Maxwell breach that duty??? Ultimately the bump was executed perfectly...as admitted by the opposition to Maxwell.



But this is the problem with trying to make the AFL rules like a set of laws. It kinda made me sick seeing Nathan Buckley in today's papers talking about the rules as "legislation".


The tribunal should be able to use common sense as opposed to interpret a situation like a Supreme Court Judge. The way it stands...the panel add up a number of points and come to a result.

I'd much prefer the tribunal take a solid look at the incident, use their common sense and come to a conclusion based on the best interests of the game.


In this scenario, it is not in teh best interests to see players get injured...but we still want to encourage the hip and shoulder if done proparly. Maxwell deserves a week...perhaps 2 because he got suspended last year.



Lets not make our game adjudicated by the letter of the law. Lets not bring legal terms into the game. No one can understand them unless they work in the legal profession.

 

[yeah-nah]

Not life threatingly injured though and that was your point. Some of the most serious injures (knees for example) happen just running along or turning. Injuries happen but in this case, the AFL have a law that says if you bump and have alternatives, don't hit the head or your in trouble!

I know the bump rule. And I agree with not going high. Heck, if they want to say a fair bump is not allowed if there is a head clash or player hits his head on the ground, thats fine too. I just dont agree that an injury incurred from a fair bump is any worse, or likely to be more serious, or happen more frequently than an injury received from an opposing player playing the ball fairly. So I dont see why one legal act (the fair bump) is being singled out in the laws of the game as only OK so long as the player doesnt inadvertantly hurt his head, and the other (playing the ball fairly) is always OK no matter what the injury to an opponent. Afterall the objective of these rules is to minimise the risk and severity of injury in the game. It shouldnt matter how said injury is received as long as the act was executed fairly.

 

[DaVe86]

Interesting thread. I agree that the attempt to use legal terms as a justification is anoying... as if saying the phrase "duty of care" is an answer to any criticism of the decision.

As has been pointed out, in its ordinary use in law, the idea of duty of care is part of the test in determining whether there has been negligence. But it's accompanied by a consideration of whether the person's actions breached that duty... basically whether they acted reasonably.

Here the AFL seems to be saying that if you don't contest the ball when you had the chance to, and bump someone in the head, you are negligent regardless of intention or any other assessment of whether you've acted reasonably.

So these kinds of considerations:
are not relevant.

good post mate

 

[mollyfud]

I know the bump rule. And I agree with not going high. Heck, if they want to say a fair bump is not allowed if there is a head clash or player hits his head on the ground, thats fine too. I just dont agree that an injury incurred from a fair bump is any worse, or likely to be more serious, or happen more frequently than an injury received from an opposing player playing the ball fairly. So I dont see why one legal act is being singled out in the laws of the game as only OK so long as the player doesnt inadvertantly hurt his head, and the other (playing the ball fairly) is always OK no matter what the injury to an opponent. Afterall the objective of these rules is to minimise the risk and severity of injury in the game. It shouldnt matter how said injury is received.

I don't want to see picky because I think this is an important point. The act isn't being singled out when it causes injury to the head, its being singled out when contact to the head and even then only when it can be avoided! I guess the arguement is if you play the ball (as long as your not really reackless in doing it) your okay. When you choose to play the man, you have to protect your fellow player and do it safely.

I am pretty sure you have said that you see the bump is for match reasons and not just blood lust, so why can't they be expected to protect there fellow players? I haven't heard many players interviewed on this that have an issue with it. Its more the media and the fans and the past players.

I have said for a while now, I am happy to wear players missing games through suspension for this rule when there unlucky then a guys career ending because of the action of another player not playing the ball. I won't think the play missing the games is dirty. This is going to sound extremely silly, but I thought Maxwell did a really good job on Buddy the last time we played you for a quarter or so when the hawks where on top and it was raining kicks to Buddy, but he hit the guys head and has to wear it. The same way Buddy and Mitchell had to wear there reports/rulings/repremands when they bumped guys in the head last year.

 

[folester41]

basically your responsible for the effect your actions have on others.

 

[Dean3]

Leaving your philosophy aside and sticking to rules and conventions, going for a mark is totally different to chasing a loose ball. In one case you are allowed to shepherd or bump and in the other case you cant.

Its a nonsense analogy and I dont know why you are bothering with it.

I'm not sure why you're bothered getting bogged down with the analogy without addressing the issue: that focussing on the ball has become the issue.

 

[Timmy from Thomastown]

I'm not sure why you're bothered getting bogged down with the analogy without addressing the issue: that focussing on the ball has become the issue.

Bullshit. You're making it an issue but its not an issue. Nobody with a brain has any problems with a bump being applied in that situation. The bump was applied so that Maxwell's teammate (Corrie) could get the ball. Getting the ball was the objective - its a team sport, you know.

The only problem is with the execution of the bump and whether the high contact is actually illegal under the current rules.