DON’T ARGUE WITH THE REF! –

LEGAL LIABILITY FOR INCORRECT DECISIONS OF

SPORTS’ OFFICIALS

John O’Brien*

Abstract

This paper continues the conversation from recent articles examining potential

remedies available for incorrect decisions by sports officials. In particular, this

article focuses on bringing an action against an official in negligence for pure

economic loss. Using precedent cases, it determines that such an action would

have a low chance of success, as a duty of care would be difficult to establish.

Even if that could be overcome, an aggrieved player or team would still face

further hurdles at the stages of breach, causation and defences. The article

concludes by proposing some options to further reduce the small risk of liability

to officials.

I Introduction

In his excellent book on cricket and the law, David Fraser opens by providing

the following two quotes from former players1:

I want to stress again one aspect of the game which is most important. Never argue

with an umpire. (Ian Botham)

I don’t understand why, in a democratic society, where government and all the

accepted standards in every walk of life are being questioned, umpires should be

immune. (Asif Iqbal)

These two positions sum up beautifully the inherent tension in whether a

sporting official2 such as a referee or umpire should bear any legal

responsibility for their actions.

This article aims to continue the conversation regarding if and when liability

should exist for a wrong decision made by a sporting official. In doing so, it

acknowledges two fine contributions on this issue – by David Trodden3 and

Mark Lebbon4 in the sixth and seventh volumes of this journal respectively.

While this article finds much in agreement with those previously, it does

attempt to further the discussion on some of the issues and questions raised

therein. This issue of officials’ liability is still quite current, in light of further

recent examples where field-of-play decisions have been criticised by

* Queensland University of Technology (QUT), Faculty of Law, School of Law.

1 David Fraser, Cricket and the Law : The man in white is always right (Routledge, Abingdon, 2005), v.

2 Throughout the article, ‘official’ will be used as a generic term to cover any ‘in-play rule enforcer’, whether

they go by the name of umpire, referee, judge, or a variety of other names. 3 David Trodden, ‘Wests Tigers Rugby League Football v National Rugby League – the case that could have

stopped the NRL’ (2011) 6(1) Australian and New Zealand Sports Law Journal 1. 4 Mark Lebbon, ‘Field of Play Decisions and Fairness: Lessons from Sirengate’ (2012) 7(1) Australia and New

Zealand Sports Law Journal 121.

commentators and media as incorrectly determining the outcome of the match.

It has been suggested that the reluctance of courts to become involved in such

disputes is more based in social convenience than rigorous legal reasoning.5

However, using these recent examples, this article will explain the difficulties,

based in legal principle, with attaching liability to a sporting official.

This article will do so by first addressing some of the previous work on the

topic. It will briefly explain general considerations of liability for sports

officials, including in contract. Section III discusses how negligence may apply

to an official by using case law regarding negligent provision of contractual

services which cause loss to a third party. Finally, some conclusions will be

drawn and recommendations made to minimise the risk of officials being liable

in negligence.

It is important to state a particular assumption this article makes when

discussing officiating errors. That is, such decisions are made in good faith, and

that any error is unintentional. Should the decision be tainted by bias or some

other form of bad faith, then there may be legal remedies for an aggrieved

participant through particular economic torts, or the official may face criminal

consequences for fraud, or match-fixing in jurisdictions which have specific

laws covering that.

Overview of previous work

Whilst this article should be read in conjunction with those previously

mentioned, it is beneficial to briefly summarise some of the main points raised

by them in order to give this article its proper context.

Trodden describes a hypothetical test case involving the Wests Tigers Rugby

League Club, and the body responsible for organising the top-level rugby league

competition in Australia, the National Rugby League. While the case itself is

fictitious, the facts are not.

Wests Tigers were denied a penalty in the closing stages of their 2010

Preliminary Final – where the winner would advance to the Grand Final. The

incident involved a player from the opposing St George-Illawarra Dragons team

illegally making contact, knees-first, into a Tigers player who was on the

ground. At the time this occurred, with ten minutes remaining, the scores were

level, and had a penalty been awarded by the referee, the Tigers could have

attempted a penalty goal, worth two points. As it happened, while the game

paused for the injured Tigers player to receive treatment, the video referee

advised the on-field referee that the incident was not serious enough to warrant

a penalty and that play should continue. The Dragons later kicked a field-goal

(one point) and won the game by that margin. After the match, the offending

Dragons player was cited by the Match Review Committee, based on the same

evidence which the video referee had viewed. The player pleaded guilty to the

5 GM Kelly, ‘Prospective Liabilities of Sports Supervisors’ (1989) 63 The Australian Law Journal 669, 677.

offence, which seems to indicate that there was indeed a breach of the rules

which could have justified an on-field penalty also.6

Using this example, Trodden analyses whether liability could exist for the NRL,

based either on the contract between it and the Tigers club, or in negligence.

Cases from Australia, based on horse racing, were analysed, as was

jurisprudence from the USA and the Court of Arbitration for Sport.

He found that the Tigers would have a case, based either in contract or in

negligence. While he was realistic that there would be some legal hurdles to

overcome, he believed that the Tigers deserved a legal remedy from the NRL. A

significant difference between his example and this article is that this article will

focus more on the negligence aspect in relation to the individual official, which

was not covered in as much depth as the breach of contract action against the

governing body.

The second author, Lebbon, uses ‘sirengate’ – a scenario from another major

Australian football code, the AFL. In a match during 2006, the Fremantle team

led the St Kilda team by one point, when the siren sounded to signify the end of

the game. However, the teams were playing at a venue not normally used for

top-level AFL games, and the volume of the siren was not sufficient to be heard

by any of the three field umpires. Play was allowed to continue, and St Kilda

kicked a ‘behind’ (worth one point), and tied the game. The siren was sounded

for a second time, which was heard by the umpires, who then stopped the

game.7

While the match was initially declared a tie, Fremantle appealed to the AFL

Commission, the body granted interpretative authority over the Rules of AFL.8

The Commission decided that under the rules, the match should have been

ended by the umpires once the siren had first sounded. At that point in time,

Fremantle was leading, and therefore they were declared to be the winners of

the match.

Lebbon’s main point is that, in taking such action, the AFL Commission

achieved what many thought to be a ‘fair’ result. However, he points out that

the Commission may have been acting ultra vires, that is, without the

jurisdiction to overturn an on-field decision. This is because the rules of AFL

state that play ends “when any one of the field umpires hears the siren”.9 The

rules also require the timekeeper to continue to sound the siren until the umpire

acknowledges it by bringing play to an end10

– which did not happen.

6 Trodden, above n 3, 1-5.

7 Lebbon, above n 4, 128.

8 Ibid, 129.

9 Australian Football League, Laws of Australian Football, Rule 10.4.2

<http://www.afl.com.au/staticfile/AFL%20Tenant/AFL/Files/Images/2212%20LawsAusFootball_Web.pdf>.

These rules are current as at 2014 – however they were amended after the incident to allow for the hearing of the

siren by the emergency umpire. See Lebbon, above n 4, 129. 10

Australian Football League, above n 9, Rule 10.4.1; See Lebbon, above n 4, 130.

The assumption implicit in the Commission’s decision was that had the

timekeepers properly performed their role, then the umpires would have made

the ‘correct’ call to end the game – yet this clearly conflicts with the first-

mentioned rule that the game only ends once an umpire hears the siren. St Kilda

did not challenge the overturning of the tied result, however as Lebbon states,

such a challenge would have showed an interesting divergence between what

might be considered the ‘fair’ outcome and the ‘legal’ outcome.11

By

overturning the field umpires’ decision (or lack thereof), the AFL Commission

may have perpetuated further unfairness.

New scenarios involving contentious decisions – the Cowboys ‘conspiracy’

The sport of rugby league has produced some further examples of contentious

decisions. In what has led some fans to suspect a ‘conspiracy’, the North

Queensland Cowboys have featured as ‘victims’ multiple times.

In their 2012 semi-final,12

the Manly-Warringah Sea Eagles were leading 16-12

over the Cowboys (due to a controversial Manly try awarded by the video

referees in the 52nd

minute). In the 62nd

minute, a high kick was put up by

Manly close to the Cowboys’ line, and after opposing players contested the ball

and neither caught it, the ball ended up in the in-goal area and was grounded by

Manly player David Oldfield. The on-field referee requested the assistance of

the video referees Steve Clarke and Paul Simpkins. The replay appeared to

show that the kick was knocked forward by Manly player Kieran Foran, in

which case, no try should be awarded and possession of the ball given to North

Queensland. All commentators on the Channel 9 television coverage

confidently thought the Manly player had ‘knocked the ball on’. However the

video referees thought otherwise and awarded the ‘try’, albeit with an

acknowledgement that there was a ‘benefit of the doubt’ involved. This (with

the resultant ‘conversion’) made the score 22-12 in favour of Manly, which was

the final score at full-time.13

While the video footage was not conclusive, most

commentators writing or speaking after the match believed that the incorrect

decision was made.

One year later, the Cronulla-Sutherland Sharks met the Cowboys in the first

week of finals. The Cowboys led 6-0 thanks to an early try. The Sharks soon hit

back with a try at the seven-minute mark to level the score. However, in the

lead-up to the try, the referees had mistakenly allowed the Sharks to have

possession of the ball for one more play than the rules permit – the Sharks

scored on their ‘7th’ tackle14

. The Sharks ended up winning the match 20-18.15

11

Lebbon, above n 4, 131. 12

Despite the use of the term ‘semi-final’, the winner of such games only progresses to one of two ‘preliminary

finals’, where the winner of those games meet in the ‘grand final’. 13

Highlights of the game are available on YouTube: <https://www.youtube.com/watch?v=_cBHrbABYwg>. 14

The rules of rugby league require a change of possession should a team be tackled six times in a row. 15

Highlights of the game are available on YouTube: <https://www.youtube.com/watch?v=yV5zDKrGcR0>.

In a heart-breaking scenario for their fans, the Cowboys lost the 2014 semi-final

to the Sydney Roosters. The Roosters jumped out to a massive 30-0 lead after

34 minutes – the margin and momentum seemingly too large to be overcome.

However, the Cowboys mounted a spirited fight-back to level the score at 30-30

at the 55 minute mark. The Roosters kicked a field goal to lead 31-30 with four

and a half minutes remaining. The Cowboys’ Jonathon Thurston thought he had

scored the match-winning try with one minute to go, however the on-field

referee disallowed the try due to a knock-on in the lead-up. This scenario can be

distinguished from the other two, because opinion was genuinely evenly-split as

to whether the referee had made the correct decision or not. The video cameras

were not directly in line with the player who dropped the ball, and the replay

was unable to conclusively prove whether the ball had travelled forward or

backward. This scenario will therefore not be used in making arguments about

prospective liability of officials.

II Disputing a Decision Generally

Sport is in no way immune to legal liability. Sport, at least at the top levels of

competition, bears much resemblance to any other commercial enterprise. As

Healey states, legal proceedings are an accepted part of sporting landscape, and

that:

Sporting participants can now expect to protect many of their rights in court, and

sporting organisations use the law to reinforce and advantage their positions, in the

same way as other businesses.16

In light of this, it must be asked whether the decision of an on-field official

could be overturned. Is there some especially convincing logic as to why a

sporting result must stand?

One such sport where the initial competition outcome is far from sacrosanct is

that of horse racing. It is not unusual for a protest to be lodged against one of

the placegetters for committing some sort of unfair manoeuvre during the race,

and for the Stewards to rule that the finishing order of the horses be changed.

Such decisions are accepted by the racing community as ‘part and parcel’ of the

sport – particularly because horse racing really does not take place for any

intrinsic sporting value (such as pushing the boundaries of human endurance or

displaying amazing feats of skill), but rather to allow gambling on the result.

Therefore the importance of an independent official with power to correct an

unfair result is crucial for the integrity of the sport. However, having internal

mechanisms for overturning a result is one matter, but having a court do so is

another.

16

Deborah Healey, ‘The Court as Referee in Sport – what are the limits?’ (2006) 88 Reform 39, 39.

Also, it may be more acceptable to alter the result in a ‘race’ sport, (i.e. horse

racing, motor racing, athletics, swimming etc.) based on the assumption that

competitors ‘run their own race’. That is, the way each competitor performs is

usually (somewhat) unaffected by their fellow competitors’ performance. If a

competitor does unfairly impede another, or false start, or break a particular

rule, there is often no ability for the affected partipant/s to recover from the

injustice, and this might justify the changing of the initial result. This might be

contrasted to ‘opposition’ sports, where there are two opposing players or

teams, and each is trying to out-play the other. The style that each team

implements may dictate the opposition response, and it can be difficult to know

how a result would have played out if there were no breaches of the rules and no

errors by officials. These sports have officials making continuous decisions

throughout the match, and therefore it is up to these officials to control the game

during play and not up to external review bodies to alter it later. (This of course

assumes that the officials themselves are competent in performing their

‘judicial’ role, rather than being the cause of injustice.)

There are few reported cases in the common law where a court has intervened to

change a decision of a sporting official. Unsurprisingly, the majority of

instances where courts have been petitioned to do so hail from the USA. Those

that were successful at trial have then been overturned on appeal, such as

Georgia State High School v Waddell.17

In a case that has perhaps more amusement value than legal value, the claim in

Bain v Gillispie18

was based on an apparent error in an important US College

basketball game. The referee brought a defamation action against the

defendants, who ran a store selling home team merchandise, for using his image

on a shirt with a noose around his neck. Showing considerable front, the

defendants counter-claimed for lost profits due to the referee’s bad call. After

failing in their counter-claim, they remarkably chose to appeal – and failed

again. This reasons why this result had to be the case will become apparent

from the discussion in Part III below.

Trodden19

gives an overview of some of the Australian cases involving horse

racing, and some examples from overseas, and it is not required to repeat them

at length in this article. It may simply suffice to say that early cases such as

Sinclair v Cleary,20

where the court found in favour of the defendant turf club

and race judge against the claims of a defeated horse’s owner, are no longer

authoritative precedents in light of the recognition of a general duty of care

which exists beyond a contract. Similarly, the recognition of pure economic loss

(discussed below) also affects the reasoning of such cases.21

17

285 S.E.2d 7 (Ga. 1991), cited in Jason Loomis, ‘The emerging law of referee malpractice’ (2001) 11 Seton

Hall Journal of Sports Law 73, 90. 18

357 N.W.2d 47 (Iowa Ct. App. 1984), cited in Jason Loomis, ‘The emerging law of referee malpractice’

(2001) 11 Seton Hall Journal of Sports Law 73, 91. 19

Trodden, above n 3, 14-20. 20

[1946] St R Qd 74. 21

Kelly, above n 5, 677-8.

While not binding on Australian courts, it is worth noting that the Court of

Arbitration for Sport (‘CAS’) has consistently refused to adjudicate on ‘field-of-

play’ decisions in the absence of any evidence of arbitrariness or bad faith.22

Lebbon also analyses relevant CAS cases and his analysis of these is

recommended.23

Liability in Contract

An official, when hired (either as an independent contractor or as an employee)

owes duties to the party who they contract with. If it were not explicit in their

agreement, it seems reasonable that a term could be implied that the official

would perform their tasks with due care and in accordance with the rules of the

game.24

The first difficulty with a club or player suing a referee directly for beaching

this contractual obligation is the doctrine of privity – they are not a party to a

contract between an official and a sporting association. There are legislative

exceptions that may allow a third party beneficiary to enforce a contract despite

lacking privity,25

but the application of such is outside the scope of this article.

The easier option would be for a participant to sue the sporting association for a

breach of the contract between them – presumably based on some type of

implied term that the competition will be managed according to the rules of the

sport. Trodden gives first-hand explanation of the club licensing contracts used

in the NRL.26

As he identifies, there is a hurdle here too – the rules of the sport

often provide for the finality of the on-field officials’ decision. Hence, the rules

limit the sporting association’s contractual obligations. Furthermore, the

contract may contain specific exclusions – for instance NRL contracts state that

the NRL has no liability to a club under the Agreement.27

So, in order to bring

an action for breach, such exclusion clauses must be overcome. Whilst this is

certainly not impossible, it is an additional difficulty for an aggrieved club or

player. This could be more easily avoided if there was evidence of the

association directly breaching the contract, for example in failing to properly

train their officials, appointing officials they knew to be not competent for the

standard of the game, or instructing them to act in contravention of the rules,

however such a situation has not yet arisen and is unlikely to.

With all things considered, it is theoretically possible for a breach of contract

action to succeed. However, should it fail, it may be useful to examine in detail

the potential negligence action against the official themselves.

22

Trodden, above n 3, 17. 23

Lebbon, above n 4, 122-8. 24

Shlomi Feiner, ‘The personal liability of sports officials: don’t take the game into your own hands, take them

to court!’ (1997) 4 Sports Lawyers Journal 213, 217. See also Trodden, above n 3, 16. 25

See, eg, Property Law Act 1974 (Qld) s 74. 26

Trodden, above n 3, 22. 27

Ibid.

III Liability of an Official in Negligence

For an official to face liability for negligence, it must first be established that

they owed a duty of care to the plaintiff – in the context of this article, this is to

the participants. It has been established by case law that such a duty can exist,

although to date, the scope of that duty seems limited to physical injuries.

In the English case of Smoldon v Whitworth,28

a 17 year-old rugby player was

injured when a scrum collapsed. He suffered spinal injuries in his neck serious

enough to result in his paralysis. The player, Smoldon, successfully sued the

referee for negligently applying the rules of the sport, in a way that caused his

injury. However this judgement should not be seen as an opening of the

floodgates for claims against referees – there were particular facts which the

outcome arguably turned on.29

Nor should it be seen as a particularly novel or

surprising result30

– given the unique facts, the result sits easily within the

established negligence framework.

A far more controversial topic is whether an official could face liability should

their erroneous decision lead to pure economic loss (‘PEL’) for a participant.

The North Queensland Cowboys’ defeats during the NRL finals series of 2012

and again in 2013, potentially due to the referring mistakes detailed in Part I

above, led some to opine on the merits of taking legal action.31

In this context, PEL is used to describe the situation whereby the only losses a

plaintiff suffers are monetary. That is, there is no physical harm suffered.

Where physical harm is first suffered and economic losses follow, these

‘consequential’ economic losses do not present the same difficulties in

establishing a duty of care (to be discussed below) as does ‘pure’ economic loss.

As described earlier, the US case of Bain v Gillispie32

would be an example

where PEL was allegedly suffered, although in that case, the plaintiff was not

the sporting participant but a business owner.

This section will discuss the likelihood of success in a negligence action for

PEL brought against a sporting official. It should be noted that if the official

was in an employment relationship with a sporting association, then the

employer would likely be vicariously liable should a court find the official

negligent. However, the action being discussed is still related to the personal

negligence of the official, not any alleged negligence of the association – for

example, in failing to provide competent officials for a particular game.

28

Smoldon v Whitworth (1997) ELR 245. 29

Hayden Opie, ‘Referee liability in sport: negligent rule enforcement and Smoldon v Whitworth’ (1997) 5 Torts

Law Journal 1, 7. 30

Ibid, 3. 31

See, eg, Ben Dorries, ‘North Queensland Cowboys could sue over seven-tackle try scandal, says legal expert’,

Daily Telegraph (online), 18 September 2013 <http://www.dailytelegraph.com.au/sport/nrl/north-queensland-

cowboys-could-sue-over-seven-tackle-try-scandal-says-legal-expert/story-fni3g8pa-1226721210823>. 32

357 N.W.2d 47 (Iowa Ct. App. 1984), cited in Jason Loomis, ‘The emerging law of referee malpractice’

(2001) 11 Seton Hall Journal of Sports Law 73, 91.

This article also focusses on professional sport. The reason for this is that

negligence requires actual loss – damage is the “gist of the action”.33

So PEL is

more likely to occur in professional sport, where there is the possibility of

match payments, prize money bonuses, and sponsorship. This requirement for

damage should also be a partial answer to apocalyptic floodgates claims that

fear of liability could dissuade people from officiating social or junior sport -

although floodgates arguments may still be relevant to professional sport.

Duty of Care

1 Background to novel duties

Although an official is under a duty of care in respect of physical injury, the

imposition of such a duty to prevent PEL, even where such loss to a plaintiff is

foreseeable, is a more difficult proposition.

Courts have long treated pure economic loss differently to cases of personal

injury or property damage. While these latter categories of cases present a fairly

straight-forward approach to determining the existence of a duty (most are

merely based on precedents involving similar relationships), PEL cases are

treated as ‘novel’.

The existence of a duty of care in a novel case can be traced to concepts of

foreseeability found in Lord Atkin’s famous ‘neighbour principle’.34

However,

courts have always required ‘something more’ for novel cases such as those

involving PEL:

The foreseeability of harm, whilst an essential ingredient of the tort of negligence, is

not enough by itself to give rise to a duty of care…there are situations which lie

outside the boundaries of compensable damage even though harm may be reasonably

foreseeable.35

Exactly what that ‘something more’ is though, has been the source of some

judicial divergence and development. While the scope of this paper is not to

recount the history of such discussions, it will be necessary to briefly touch

upon such concepts in order to explain the approach the courts now favour and

how that might be applied in the case of sporting officials.

The earliest recognition of PEL as a recognised category of damage can be

traced to the English decision of Hedley Byrne & Co Ltd v Heller & Partners

Ltd.36

That case, and a subsequent line of Australian authority, involved what

would become classed as ‘negligent misstatement’ – that is, the negligent giving

of information or advice in a situation where the speaker assumes responsibility

33

Williams v Milotin (1957) 97 CLR 465, 474. 34

Donohue v Stevenson [1932] AC 562, 580. 35

Hill v Van Erp (1997) 188 CLR 159, 174 (Dawson J). 36

[1964] AC 465 (‘Hedley Byrne’).

for the accuracy of their statement, and the recipient reasonably relies on the

statement.

Whilst negligent misstatement continued to be refined by over time, it also

became apparent that pure economic loss might occur in ways other than by

negligent advice. Perhaps an appropriate analogy might be to describe PEL is

the ‘genus’ and negligent misstatement as but one ‘species’ thereof. Other

related species of PEL arose, such as liability to subsequent owners for

defective buildings, liability to third parties who rely on another’s damaged

property, and liability to a third party for negligent provision of services. These

might share some of the characteristics of negligent misstatement, but as novel

cases, each might place different weight on those aspects.

The judicial quest, both here in Australia and elsewhere, for a unifying concept

that could be applied in the same way to all novel cases has led down many

paths. The preferred approach of the High Court of Australia currently is

explained by Sullivan v Moody.37

In addition to concepts of foreseeability and

legally-recognised damage being suffered, the court requires an analogy to be

made with an established category of cases, so that the ‘salient’ features of that

type of case can be identified and applied. Policy considerations are also seen as

directly relevant to the existence of a duty, and there is no exhaustive list of

these.

2 Establishing a duty to a third party for negligent provision of services

The possibility of a sporting official owing a duty of care to participants in

respect of PEL has no authority in Australia. The question, pursuant to Sullivan

v Moody38

is whether there is any category of case similar enough in which to

draw an analogy.

Of the varying ‘species’ of PEL so far classified by the High Court, the closest

category that could apply to a sporting official is ‘liability to a third party for

negligent provision of professional services’. That is, officials are usually

contracted by sporting associations to adjudicate the contest. The official is not

contracted directly by the participants, however the participants are clearly

foreseeable victims should the official err.

The leading case for this category of PEL is Hill v Van Erp.39

While this case

presents a vastly different factual matrix to that involving a sporting official, it

is relevant to analyse the features of the relationship which the High Court

considered salient when imposing a duty, in order to apply them to new

situations.40

It may be thought that such a category is not analogous enough to

37

Sullivan v Moody (2001) 207 CLR 562. 38

Sullivan v Moody (2001) 207 CLR 562. 39

Hill v Van Erp (1997) 188 CLR 159 (‘Hill v Van Erp’). 40

A different analogy might also be drawn to the immunity a commercial arbitrator receives under uniform

Commercial Arbitration Acts, see e.g. Commercial Arbitration Act 2013 (Qld), s 39. However, an arbitrator is

performing a quasi-judicial role, and their immunity is backed by statute – neither of which applies to sporting

officials. However, this approach may be an avenue for further research.

the sporting official-participant relationship. If this is so, then the case would be

‘purely novel’, in which instance, most of the same elements would be

examined by a court anyway.

In Hill v Van Erp a solicitor, Ms Hill, was retained to draw up a will for a Mrs

Currey. Mrs Currey wished to leave a share of her house to a neighbour, Mrs

Van Erp. The intended beneficiary’s husband, Mr Van Erp, had arranged for Ms

Hill to attend Mrs Currey’s home to take instructions, and was present when Ms

Hill returned with the completed will for execution. Ms Hill signed as one of the

required witnesses, and asked Mr Van Erp to do the same. The effect of this was

that the gift to Mrs Van Erp became void by virtue of a legislative prohibition

on a witness (or their spouse) benefitting under the will. Ms Hill’s error was

only discovered upon the death of Mrs Currey, by which time it was impossible

to rectify. Mrs Van Erp brought a negligence action against Ms Hill, and the

High Court was required to determine whether a duty of care was owed.41

The issue was that Ms Hill had been retained by Mrs Currey, and hence owed a

range of professional duties (under contract, tort and equity) to her, but Mrs Van

Erp was not a party to this contract, nor had Ms Hill ever met Mrs Van Erp or

provided any advice or representation to her. Because of the doctrine of privity,

it was argued that Mrs Van Erp should not be permitted to take the benefit of

promises of professional competence (by Ms Hill) as those promises had not

been made to her. Finding such a duty to a third party could place a solicitor in a

position of conflict. Also, it was argued by Ms Hill that should a duty be found

allowing Mrs Van Erp to recover the value of the void gift, this would be unfair

when considering that had the error had been discovered before Mrs Currey

passed away, the damages payable would have been merely the cost of fixing

the will rather than the value of the gift.42

By a majority of 5-1, the Court found that such a duty did exist. There were four

substantive judgements delivered affirming this result, which therefore provided

a variety in legal reasoning. All of the majority recognised that such a duty

could only exist in fairly limited circumstances. It was also clear the Mrs Van

Erp was foreseeable as someone at risk of loss should Ms Hill not comply with

the required formalities. The majority judges though did emphasise different

additional factors for establishing a duty, detailed below.

(a) Coincidence of interests

Chief Justice Brennan stated that just because a solicitor or other professional

might owe a range of duties to the client with whom they contract, that does not

preclude a tortious duty arising to a third party. Such a statement of principle

accords entirely with Donohue v Stevenson. Of particular importance to his

Honour in recognising a duty to the third party was that their interest was

coincidental43

to the client’s: 41

Ibid, 171-2. 42

Ibid, 216 (McHugh J) 43

Ibid, 167 (Brennan CJ), 185(Dawson J, with whom Toohey J agreed), 236 (Gummow J)

There is no reason to refrain from imposing upon a solicitor, who is contractually

bound to the testator to perform with reasonable care the work for which [they have]

been retained, a duty of care in tort to those who may foreseeably be damaged by

carelessness in performing the work. The terms of the retainer determine the work to

be done by the solicitor and the scope of the duty in tort as well as in contract.44

Imposing a duty was seen as consistent with the existing body of legal doctrine

– an important policy consideration.45

If the solicitor was bound to do the task

competently for the client, and the intended beneficiary shared the client’s

interests, there could be no conflict for the solicitor in having to consider the

third party’s interests when acting46

.

This case can be contrasted with others, such as David v David,47

where a

solicitor had no duty of care to the other party in a contract with his client:

…there was plainly no duty owed to persons not clients of the solicitor to undertake

steps that would have been contrary to the interests of the solicitor’s client…it would

be an extraordinary development of the law to impose upon the solicitor a duty to take

some step or give some advice to a third party that was inconsistent with the interests

of his primary client.48

(b) Control

Ms Hill argued against the application of Hedley Byrne principles, in particular

that she did not assume responsibility, in a legal sense, for the interests of Mrs

Van Erp. The various members of the court dealt with this differently.

Gaudron J felt that the notion of control was a more relevant criterion to satisfy,

and that while assumption of responsibility was important to misstatement

cases, it was not essential for all PEL claims:

The relationship in this case as between Ms Hill and Mrs Van Erp is not one that is

characterised either by the assumption of responsibility or reliance. Rather, what is

significant is that Ms Hill was in a position of control over the testamentary wishes of

her client and, thus, in a position of control whether Mrs Van Erp would have the

right which the testatrix clearly intended her to have, namely the right to have her

estate properly administered in accordance with the terms of the will.49

(c) Vulnerability

McHugh J, although delivering the dissenting judgment, did draw attention to

the presence of vulnerability as a relevant characteristic in establishing a duty.

A proposed beneficiary has very little means to protect themselves from the risk

44

Ibid, 167 (Brennan CJ). 45

Ibid, 223 (Gummow J). 46

Ibid, 236 (Gummow J). 47

David v David [2009] NSWCA 8. 48

Ibid, [92]. 49

Hill v Van Erp (1997) 188 CLR 159, 198 (Gaudron J).

of loss. Whilst it is possible that they could seek their own legal advice, this is

highly unlikely, especially as some beneficiaries might only learn of the

intended gift after the testator has died – at which point the previously

concealed error becomes irreversible.50

(d) General policy factors

Often important in novel situations is an examination of policy consequences

which might result from the decision. The often-quoted concern from Cardozo J

in the US case of Ultramares is that finding a duty might expose defendants to

potential liability “in an indeterminate amount for an indeterminate time to an

indeterminate class”.51

However the majority judges felt that indeterminate

liability did not pose any concerns as the duty would be limited to those named

in the will (or more specifically, any named beneficiaries who also witnessed

the execution, or whose spouses did so). The amount was limited to the value of

the gift (although McHugh J did point out in dissent that such values could

potentially increase greatly over the course of a testator’s lifetime).52

Also a relevant concern is whether imposing a duty might stifle legitimate

competitive advantage.53

That is, doing business often involves the allocation

and pricing of risk, and that may be a good reason to not impose a duty of care.

However, that was irrelevant in this case as the solicitor was not losing a

commercial advantage by imposing higher standards upon her work.54

To put it

another way, the added costs of imposing a duty would not be unreasonable

given that she had contracted to do the task properly anyway.

Third, there is reliance in a general sense by members of the public on lawyers

when drafting a will.55

However, McHugh J does make a fair point that it is

unprincipled to hold a solicitor liable to a disappointed beneficiary, when had

Mrs Currey drafted her own will and incorrectly executed it, Mrs Van Erp

would have no cause of action, as a promise of a gift is unenforceable without

valuable consideration.56

Additionally, there are considerations of general deterrence – that is, it is fair to

impose a duty to ensure that solicitors properly perform their tasks with due

care. Should no duty be found, the only parties who could bring a claim would

be the testator, Mrs Currey, for the costs she incurred in having a void will

drafted, or subsequently rectified; or her estate, in tort or contract, but that

would only result in nominal damages. It was said in an earlier English case

involving similar facts, “the only person who has a valid claim has suffered no

50

Ibid, 216 (McHugh J). See, also, 186 (Dawson J, with whom Toohey J agreed). 51

Ultramares Corporation v Touche (1931) 255 NY 170, 179. 52

Hill v Van Erp (1997) 188 CLR 159, 180 (Dawson J, with whom Toohey J agreed). See also 216 (McHugh J). 53

See, eg, Bryan v Maloney (1995) 182 CLR 609. 54

Hill v Van Erp (1997) 188 CLR 159, 180 (Dawson J, with whom Toohey J agreed). 55

Ibid, 186 (Dawson J, with whom Toohey J agreed). 56

Ibid, 211 (McHugh J).

loss, and the only person who has suffered a loss has no valid claim”.57

This gap

in the law should be remedied, not only to give effect to the proper transmission

of property, but to promote proper performance of solicitors’ duties.58

This previous argument also ties in with the concept of coherency:

One consideration of some significance when determining the existence of a duty of

care is the provision already made, if any, by the general law in that regard…[The

court must] determine whether there is a need consistently with the overall policy of

the law to provide a coherent and comprehensive system of civil obligations, to

supplement those established rules.59

This means that if there are already other remedies available, is the extension of

negligence into the same area actually necessary? As stated above, it was

necessary in this case, as there was previously no remedy available for the only

person who suffered loss.

3 Could a sporting official be subject to such a duty?

The relevant question is how would these salient principles from Hill v Van Erp

apply to a sporting official? Could the North Queensland Cowboys have sued

the referee for the errors they made? Like in Hill v Van Erp, a referee in the

NRL has a contract (in this instance, of employment) with the Australian Rugby

League Commission and not with individual teams, so the Cowboys would need

to show the existence of an independent duty of care should they wish to take

action against the referee personally.

A key question before applying the doctrine from Hill v Van Erp, is to consider

whether there is any significance in that decision of the type of contractual

relationship a lawyer has with their client, as opposed to an official with their

sporting association. The case discusses the role of lawyers as professionals,

serving the interests of their client as defined by the contract of retainer. While a

contract is not required in order for a tortious duty to exist, it can be helpful in

defining the scope of one.60

When a lawyer’s professional duty to their client is

examined, the source of the duty is contractual, tortious and fiduciary. In the

situation of Hill v Van Erp, the lawyer was engaged as an independent

contractor, to provide professional services. A sporting official is not under the

same fiduciary duties, and they may be an employee rather than a contractor.

The judges do not make any particular comment on whether the multiple

sources of a lawyer’s obligations were material in their finding of a duty. So it is

at least conceivable that this case could provide a framework to determine the

duty of care question for a sports official.

57

Ross v Caunters [1980] Ch 297, 303, quoted in Hill v Van Erp (1997) 188 CLR 159, 165 (Brennan CJ), 187

(Dawson J, with whom Toohey J agreed), 195 (Gaudron J), 202 (McHugh J). 58

Hill v Van Erp (1997) 188 CLR 159, 195 (Gaudron J). 59

Ibid, 223 (Gummow J). 60

Ibid, 167 (Brennan CJ).

When considering the base requirement for a duty, the sporting participants are

reasonably foreseeable victims of PEL should a referee make an error. This is

particularly so in elimination matches such as a finals series or a tournament-

style sport (such as tennis). Winning brings with it greater prizemoney (or the

chance thereof), greater chance for commercial endorsements, and potentially

greater fan interest in purchasing merchandise and tickets (although whether all

of these are compensable will depend on the availability of evidence to quantify

them).

But, are the interests of the Cowboys and the NRL coincident? At one level,

sporting participants might claim that their interest is simply to have the game

officiated according to the rules of the sport – an interest shared by the

association. However, this may be a little naïve. A sporting participant’s real

interest is in winning. If they were to bring an action, they would not be citing

the official’s mistakes which may have gone in their favour. Should a mistake

occur, the sporting association does not really mind who wins – they may suffer

some media and fan criticism, but it would be unlikely to lead to a great

economic loss. After all, the team who benefits from the erroneous decision will

live to play another week, pleasing a different group of fans and sponsors. This

is in contrast to Mrs Currey, whose clear intention was that Mrs Van Erp inherit

a share of her house, and Mrs Van Erp shared this interest completely.

As stated above, a contractual duty, , can be useful in determining what work

the professional has agreed to undertake, and can therefore assist with defining

the scope of any tortious duty. Without actually being privy to such a contract

between a sporting association and the officials it engages, this article will need

to speculate to an extent. The official would likely be required to act, in good

faith, according the rules of the sport – if such a term were not express, it may

be implied. In addition, terms implied at law would apply if the relationship was

one of employment, such as to follow reasonable instructions. But the contract

would not (and could not) demand ‘perfection’ in the same way that a lawyer is

expected to draft a will. Adjudication in sport, at least involving humans, is

always subject to error.

It is true to an extent that an official exercises ‘control’ – they are after all,

contracted to control the game according to the rules. Many sports’ rules

provide that the official will be the sole interpreter of the rules and their

decision is final. So in that regard, the participant cannot influence the official

when they are required to make a decision. However, is the participant as

vulnerable as Mrs Van Erp? A participant usually has many opportunities

throughout a contest in which to prove their superiority. On some occasions,

they may be thwarted by their opposition, other times by their own errors.

Usually, mistakes by officials would be a ‘distant third’ in terms of the causes

for a particular sporting outcome – the participants have a significant influence

on the result. The same degree of control and vulnerability that exists when a

solicitor executes a will would not seem to apply in most sporting situations.

Sporting participants have a greater ability to protect their own interests than an

intended beneficiary.

There are also significant policy considerations which militate against a finding

that an official owes a duty of care to a participant to prevent PEL. When

considering indeterminate liability, an argument might be made that only the

competing teams or athletes would come within a duty of care. However, the

floodgates risk would always be present – and it may not beyond the realms of

possibility for an aggrieved sponsor, fan with a wager on the result, or business

owner to try their luck as was seen in the US case of Bain v Gillispie described

earlier in Part II. The potential amount of liability is also far less certain than in

Hill v Van Erp. It may be possible to foresee lost prizemoney, but more difficult

to estimate lost sales or sponsorship.

The issue of whether the imposition of a duty would negate competitive

advantage is partly relevant – whilst a duty would not impose additional tasks

on an official beyond what they have already agreed to do for the sporting

association, it would severely impact how the official would approach the task

of adjudication. The official could not make decisions in the heat of the game

without running the risk of answering for it in court (this argument also applies

to the issue of ‘breach’ – see below). There is not the same level of public

dependence on sporting officials as there is with lawyers (although sport is of

the utmost importance to many Australians). While the purpose of engaging a

solicitor is to ensure that the testator’s wishes can be carried out, the purpose of

a referee is to make judgement calls amongst the often frantic action of the

sport. Imposing a duty of care would negate the very purpose for which the

official was engaged.

There is not the same need for deterrence – the sporting association may still

take action against the official for breaching their contract. In the Cowboys

seventh-tackle example described earlier, none of the six officials involved were

appointed to semi-finals in the following week.

Additionally, there are various policy considerations against courts interfering

in sport. There is great desirability in achieving finality of a result.61

Even in

sports where there are internal mechanisms for review, usually the time limit set

for lodging a protest is quite soon after the completion on the event. This is one

reason why the courts are reluctant to overturn a result or order a re-match,

although it does not necessarily affect whether damages should be awarded or

not.

Another policy factor is that judges are not experts in sport.62

While the same

could be said for judges in many other fields of human endeavour, the fact that

sports’ officials are specifically engaged to be expert adjudicators leads to

further judicial reluctance to intervene.

61

Trodden, above n 3, 11. 62

Ibid, 12.

4 Conclusion regarding duty of care

While Hill v Van Erp provides an interesting comparison, it should be

remembered that the court is generally reluctant to allow PEL claims,

particularly in new situations or where there are existing remedies. Justice

Dawson stated this clearly:

There is nothing in what I have said which is intended to convey the view that

whenever a person’s performance of a contractual obligation may, if performed

negligently, injure a third party’s economic interests, that person owes the third party

a duty of care.63

While ‘never say never’ is a prudent attitude to take with regards to the

development of negligence principles, it is highly unlikely that, under the

current state of the law, a sporting official could owe a duty to participants in

respect of PEL.

Breach of Duty

In the unlikely event that a duty of care could be established, it is worthwhile

examining the remaining negligence elements.

In determining breach, the initial question of law is what should be the

appropriate standard of care? This is an objective test.64

In the case of a sports

official, who possesses special skill and knowledge,65

the standard would be of

the reasonable official with a similar level of training. In the Cowboys’

examples, this would equate to the reasonable full-time, first-grade rugby league

referee.

Breach of such a standard is determined by legislation in most of the various

Australian states and territories, and is a question of fact. Relevant

considerations for the court are, first, whether the risk of harm is foreseeable

and not insignificant, and second, whether a reasonable person would take

precautions against that risk of harm. Such use of precautions can be analysed

by examining the probability and seriousness of potential harm, as opposed to

the burden involved and whether there is social utility in not taking

precautions.66

While there may exist a foreseeable and not insignificant risk of

harm should an official make a wrong decision, the question of breach depends

on what the hypothetical reasonable official would do in response to that.

63

Hill v Van Erp (1997) 188 CLR 159, 187 (Dawson J, with whom Toohey J agreed). 64

See, e.g. Glasgow Corporation v Muir [1943] AC 448, 454; Paris v Stepney Borough Council [1951] AC 367,

384. 65

See, eg Chin Keow v Government of Malaysia [1967] 1 WLR 813. 66

See Civil Law (Wrongs) Act 2002 (ACT), s 43; Civil Liability Act 2002 (NSW), s 5B; Civil Liability Act 2003

(Qld), s 9; Civil Liability Act 1936 (SA), s 32; Civil Liability Act 2002 (Tas), s 11; Wrongs Act 1958 (Vic), s 48;

Civil Liability Act 2002 (WA), s 5B. The Personal Injuries (Liabilities and Damages) Act 2002 (NT) does not

have an equivalent provision.

It has been argued, particularly in the USA, that the standard of reasonableness

to be applied to a sporting official’s actions should be lowered, to whether an

incorrect decisions amounts to ‘gross negligence’, or a decision so reckless that

no reasonable official could have made it.67

This has been enshrined in the

legislation of many US states68

as specific protection for sporting officials,

although it is more aimed at protecting them should a participant suffer physical

harm. It is unclear whether such a standard could apply in Australia. It seems

unlikely given the High Court’s approach has been against the creation of

special immunities. But even using a normal negligence standard of

‘reasonableness’, it is important to remember that this does not require

perfection from a sports official, nor that a particular decision be correct. It

requires an official to make decisions in a reasonable way, and leaves open the

possibility that there may be different, yet equally reasonable, interpretations of

a factual scenario.

1 Decisions unsupported by facts

Hypothetically, what type of conduct might amount to a breach of duty?

Perhaps where an official was not in position to make a call yet proceeded to do

so, or had no facts upon which to base their decision. For example, a rugby

league referee slips over and while play continues downfield, the referee makes

a ruling on an incident that occurs fifty metres from where they lay on the

ground. But even in such a contrived example as this, it is difficult to prove that

no reasonable grounds existed for the making of a decision – the referee acts on

what they saw, or at least what they, in good faith, believe that they saw. A

reasonable referee has to make the best decision they can with the evidence

available to them.

2 Failure to utilise technology

An area that could potentially amount to a breach of duty is the failure to utilise

technological aids where the discretion to do so exists. However, such a failure

would not automatically constitute a breach – where a referee, in good position

to see events unfolding, makes a decision based on their view, they may not be

negligent, even if that decision is later proven to be incorrect by technology.

This is because the use of video and other technology slows down the sport –

which can be an annoyance to fans and can change the fundamental nature of

the game, introducing ‘rest breaks’ where previously there were none. In the

language of the law, even though there is (always) a foreseeable risk of harm

caused by an incorrect decision, a reasonable official may not always take every

precaution (of using technology). A reasonable referee may believe the

probability of error is low based on the view the referee had, and that there is

67

See, eg Jason Loomis, ‘The emerging law of referee malpractice’ (2001) 11 Seton Hall Journal of Sports Law

73, 94; Kenneth W. Biedzynski, ‘Sports officials should only be liable for acts of gross negligence: is that the

right call?’ (1994) 11 Entertainment & Sports Law Review 375, 407. 68

Biedzynski, above n 67, 388-97.

utility in keeping the game moving quickly without resorting to a video reply

for every decision. The risk of error might rightly go un-prevented.

However, in the hypothetical situation posed earlier, where an official slips over

and is badly unsighted on the play, yet fails to request assistance from available

technology or fellow officials, this may amount to the sort of negligence which

objectively constitutes a breach. A reasonable person in the official’s position

would take precautions. This reasonableness would be amplified in play-off

games with close scores and little time remaining – such facts increase the

gravity of any potential error. Given the high stakes of professional sport, the

added burden of a short delay in the game does not seem an unreasonable

consequence to incur, and hence consulting technology would be a reasonable

response to foreseeable harm.

3 Lack of knowledge of rules

A further example where an official has greater risk of liability is with incorrect

knowledge of the rules of the sport. Whilst the application of the rules is always

subjective – that is, what the referee ‘saw’ may not be what the aggrieved

participant ‘saw’, the rules themselves are more objective. In the same way, a

question of fact is usually not reviewable by an appellate court, whereas an error

of law is.

A reasonable official, at least in professional sport, should know the relevant

rules. So for the Cowboys’ 2013 loss, it could be argued that the applicable

refereeing error was not a subjective judgement call, such as whether a dropped

ball went forward or not, but rather allowing Cronulla seven tackles worth of

possession instead of the six required by the rules. As ‘seven’ is not ‘six’ – there

is no grey area – it was a clear failure to enforce the rules of the game.

Or was it? Let’s put it in context. Again assuming the absence of any bad faith

motivation to err, no referee would consciously allow a team to play outside of

the rules in such a fashion. While the hypothetical reasonable referee would

usually get the tackle count correct, we would also have to consider the

possibility of error caused by having to adjudicate many other parts of the game

simultaneously. A reasonable referee is not the perfect referee. Providing

Cronulla with an extra tackle was an inadvertent oversight, and completely

reasonable in a fast-paced game. None of the other officials, either on the field

or in the video review box noticed the error. It seems to be a very rare

occurrence, and must be attributed to an unfortunate accident, where no liability

should arise.

The CAS has had to consider similar situations involving errors in the rules. In

the 2012 London Olympics, the result of the women’s triathlon was so close

that a photo-finish was called for. In a somewhat unusual situation, one athlete

(Nicola Spirig of Switzerland) crossed the line leaning backwards, whilst the

other (Lisa Norden of Sweden) was leaning forwards. The photo-finish judge

decided that the Swiss athlete had been the first to cross the line. However it

was later argued that the judge had based their decision more on the position of

the Swiss athlete’s belly, rather than their ‘torso’ as required under the rules of

the sport, and that the Swedish athlete, by leaning forward, had crossed with

their torso at least simultaneously with, if not earlier than, the Swiss athlete..

However the CAS still treated this as a ‘field-of-play decision’, rather than as a

lack of knowledge of the rules, and refused to change the outcome. That is,

there was no evidence that the wrong rule was used, and it had to be assumed

that the official did consider the position of the torsos in reaching the decision.69

A final, very recent example where the misapplication of the rules occurred was

in a high-school football game in the USA. With just over a minute remaining

in a quarter-final match of an Oklahoma school district competition, the

scoreline read 20-19. The team behind, Frederick A. Douglass High School,

appeared to score a touchdown, which would likely have won them the game.

The referees negated the touchdown because a Douglass coach was excitedly

running along the sideline and unintentionally impeded or bumped a referee.

This was against the rules, and the school had been previously warned about

such behaviour. In this case, while the breach of the rule was correctly

identified, the penalty was not. The touchdown should not have been

invalidated, as the offence (a minor one), merely calls for a 5-yard penalty to be

imposed on the extra-point kick attempt, or kick-off.70

Douglass was successful in obtaining a temporary injunction preventing the

semi-final matches from taking place without them. However, on the

substantive question of whether some part or all of the game should be replayed,

Judge Bernard Jones denied Douglass a remedy, stating “it borders on the

unreasonable…to think this Court more equipped or better qualified than the

Defendant to decide the outcome or any portion of a high-school football

game.”71

His Honour went on to state, “courts ought not meddle in these activities or

others…especially when the parties have agreed to be bound by and have

availed themselves to the governance of these activities associations.”72

So despite a clear error by officials, based on incorrect knowledge of the rules, a

court refused to intervene. While this case was not one where damages were

being sought for PEL, it does indicate the reluctance of courts to overturn the

on-field decisions of officials and suggests that proving breach would be

difficult.

69

Swedish National Olympic Committee & Swedish Triathlon Federation v International Triathlon Union

(2012) CAS Arbitration No CAS OG 12/10. Available from

<http://sportslawcircle.com/assets/Uploads/Decision-2010-CAS-between-Swedish-Triathlon-Federation-and-

International-Triathlon-Union-re-Olympic-Games-120811.pdf> 70

Jere Longman ‘After referees blunder, next call is a judge’s’, New York Times (New York), December 9 2014,

B12. Also available online at <http://www.nytimes.com/2014/12/09/sports/court-weighs-intervening-in-

oklahoma-high-school-football-playoffs.html?ref=sports&_r=1>. 71

Judge Bernard Jones, cited in Alan S. Goldberger, ‘Why courts should not overturn a referee’s call’

(December 2014) <http://reflaw.com/whatsnew/courts_not_overturn.html>. 72

Ibid.

Causation of damage

The third element of negligence requires foreseeable damage to be caused by

the defendant’s breach of duty. Similar to breach, causation is also dealt with

under the various pieces of state civil liability legislation. Liability will exist

where the negligent act was the ‘factual cause’ of the harm, and it is within the

appropriate ‘scope of liability’.73

1 Factual Causation

Factual causation builds upon the old ‘but for’ test,74

and requires the

defendant’s actions to be a ‘necessary condition’ of the harm. In the event of a

refereeing error, this may be hard to establish. In a fast-paced sport such as

rugby league, the referees may be faced with many ‘50-50’ decisions, where

they make a decision based on what they see, but which may in fact be

objectively incorrect. It is impossible to say what would have happened, had

each of those calls been made ‘correctly’, because presumably both teams

would have received incorrect decisions in their favour throughout the course of

a match, and this alters the flow of the game. Even where the decision relates to

a scoring play, and the aggrieved team ends up losing the match by less points

than the erroneous decision cost (such as the ‘seventh-tackle try’ described

above), presuming causation is still fraught with danger. A team may play

differently depending on the score. Had the correct decision been made, it may

have caused the opposing team to play in a different style than what occurred in

reality. As the Cronulla Sharks coach stated in the wake of the game, “there was

a lot of footy to be played [the refereeing error occurred in the 8th minute of an

80-minute game] and we still could have scored off the last tackle.”75

This point is unlikely to placate Cowboys fans, but it is true – had the referee

correctly notified players of the ‘real’ fifth tackle, the Sharks would likely have

kicked the ball instead of running with it, and they may have scored from that

play – we will never know. Had the match result been later overturned (as with

‘sirengate’ above), the Sharks could rightly point out that this would deny them

a last-tackle option of kicking – that they would then be victims of an incorrect

refereeing decision. With the majority of officiating errors, it is far from clear

that but for the incorrect decision, the result would have been different.

Situations where the error occurs in the final play of the game may provide

more confidence for establishing factual causation. Such examples include

‘sirengate’ in the AFL (described above) and the Melbourne Storm victory over

73

See Civil Law (Wrongs) Act 2002 (ACT), s 45; Civil Liability Act 2002 (NSW), s 5D; Civil Liability Act 2003

(Qld), s 11; Civil Liability Act 1936 (SA), s 34; Civil Liability Act 2002 (Tas), s 13; Wrongs Act 1958 (Vic), s

51; Civil Liability Act 2002 (WA), s 5C. The Personal Injuries (Liabilities and Damages) Act 2002 (NT) does

not have an equivalent provision. 74

See Strong v Woolworths Ltd (t/as Big W) (2012) 285 ALR 420. 75

Shane Flanagan, citied in Stuart Honeysett, ‘Tackle fallout: North Queensland Cowboys lost $1m’, The

Australian (online), September 17 2013, <http://www.theaustralian.com.au/sport/nrl/tackle-fallout-north-

queensland-cowboys-lost-1m/story-fnca0von-1226720481813>.

the St George-Illawarra Dragons in Round 6 of the 2014 NRL season. Both

involved play being allowed to continue beyond the final siren, where a match-

winning scoring play ensued. We can be certain that in these situations, had the

error not occurred, the other team would have won the game. Interestingly, the

AFL Commission overturned the match result, while the NRL decided to not

intervene – an approach consistent with the CAS in field-of-play decisions. Also

worth noting is that the error in the NRL game involved the siren sounding less

than one second before the scoring play in question began,76

and thus it would

be difficult to prove that the referee acted unreasonably in allowing the play to

continue.

2 Scope of Liability

Relevant considerations in determining the ‘scope of liability’ include not only

the foreseeability of the particular type of damage, but also policy factors:

“whether or not and why responsibility for the harm should be imposed on the

party who was in breach of the duty.”77

While economic loss may be foreseeable as a consequence of negligent

refereeing, there does seem to exist some policy reasons that militate against the

scope of liability being extended this far. A sporting official is contracted to

adjudicate, and regardless of their best efforts, will normally still end up being

criticized for something or blamed by fans of the losing team. In such an

already hostile environment, imposing legal responsibility on them would

effectively prevent them from doing their job and limit the class of persons

willing to act as officials. As stated above, while officials who control

professional sport (i.e. where damage may be suffered) would likely be

employed, imposing liability on the employer would also make running a

sporting competition financially unviable if multiple teams could legitimately

claim the spoils of victory via the legal remedy of damages, rather than by

winning the competition.

Defences

Finally, if it were possible for an official to owe a duty of care to participants, to

act so unreasonably as to breach that duty, and in doing so, causing in fact and

in law, the economic loss, an action may still fail due to relevant defences.

Like officials, the participants in sport are human, and they themselves make

errors. It is arguable that contributory negligence could apply to reduce any

potential liability of the official. Take, for example, a contentious ‘stripping’

76

Fox Sports, NRL admits referee made error allowing final play in controversial Storm win over Dragons (15

April 2014) Fox NRL <http://www.foxsports.com.au/nrl/nrl-admits-referee-made-error-allowing-final-play-in-

controversial-storm-win-over-dragons/story-e6frf3ou-1226885238613>. 77

Civil Liability Act 2003 (Qld), s 11(4); See also Civil Law (Wrongs) Act 2002 (ACT), s 45(4); Civil Liability

Act 2002 (NSW), s 5D(4); Civil Liability Act 1936 (SA), s 34(4); Civil Liability Act 2002 (Tas), s 13(4); Wrongs

Act 1958 (Vic), s 51(4); Civil Liability Act 2002 (WA), s 5C(4). The Personal Injuries (Liabilities and

Damages) Act 2002 (NT) does not have an equivalent provision.

call in rugby league (where a referee must decide if a dropped ball was purely

the fault of the ball-carrier, in which the attacking team loses possession, or

rather was illegal pulled from the ball-carrier’s grasp by a defender, earning the

attacking team a penalty). An attacking player who does have the ball illegally

stripped, but without the referee noticing, is often at least partly at fault by not

carrying the ball firmly, by looking to offload, or by trying to play the ball too

quickly. Players often make errors of judgement which expose themselves to

uncertain decisions from officials.

Additionally, it is argued that participants voluntarily assume the risk of an

incorrect decision. Civil liability legislation deals with this by referring to

‘obvious risks’, that is, those obvious to a reasonable person in the position of

the plaintiff. Such obvious risks are presumed knowledge of the plaintiff, unless

proven otherwise.78

Everyone who has ever participated in, or watched sport,

would know that officiating is a human task, and therefore subject to human

error. The risk of error, whilst it should be minimised as much as possible, will

always be present, and it is consented to by participants when choosing to play.

This may seem like a simplistic response to a participant who has lost

considerable sums of money due to an officiating error. However, while sport is

more a business than ever before, the participants engage in that business of

their own accord, knowing that commercial success is not solely within their

control. If this business environment carries too much external risk, then the

rational, wealth-maximising business-person would not engage in it.

IV Conclusion and Recommendations

Errors in sport will always occur. As the NRL head of football stated after the

seventh-tackle error, “we also need to accept that in a game as intense and as

fast-paced as rugby league that you will never eradicate all mistakes, either on

the part of the players or the officials.”79

[emphasis added]

It has been argued above that it is highly unlikely for a sporting official to owe a

duty of care in respect of pure economic loss. While they owe contractual duties

to their sporting association, such a duty does not extend to interested third

parties (the participants) in the same way as a lawyer’s duty to a client may

extend to an interested beneficiary under a will. The reason for this is that an

official and a sporting participant do not have a coincidence of interest, nor does

the official exercise control in the same way as a lawyer. Policy reasons do not

favour the imposition of a duty.

78

See Civil Liability Act 2002 (NSW), ss 5F, 5G; Civil Liability Act 2003 (Qld), ss 13, 14; Civil Liability Act

1936 (SA), ss 36, 37; Civil Liability Act 2002 (Tas), ss 15, 16; Wrongs Act 1958 (Vic), ss 53, 54; Civil Liability

Act 2002 (WA), ss 5F, 5N. The Civil Law (Wrongs) Act 2002 (ACT), and Personal Injuries (Liabilities and

Damages) Act 2002 (NT) do not have an equivalent provision. 79

Todd Greenburg, cited in Stuart Honeysett, ‘Tackle fallout: North Queensland Cowboys lost $1m’ The

Australian (online), September 17 2013, <http://www.theaustralian.com.au/sport/nrl/tackle-fallout-north-

queensland-cowboys-lost-1m/story-fnca0von-1226720481813>.

Even if such a duty could be found to exist, it is difficult to imagine situations

where a good-faith official would breach such a duty, given their role is often to

make decisions instantaneously, based on the information they have observed.

The most likely scenario would be a failure to consult available technology

where reasonable to do so, or a lack of competency in knowing the rules.

Causation presents a further impediment to liability, given that an erroneous call

may change the way the opposing participants play the sport for the remainder

of the game. It is difficult to know what would have occurred had the error not

been made. For the strongest argument of causation being satisfied, the error

would need to occur late in the game, preferably on the final play, and it must

change the result of the match. Further, a loss in the particular match must bring

a loss of economic benefits, not merely the loss of the win, or the loss of

‘momentum’ in a season.

Finally, even if actionable negligence could be established, an official would

have strong defences, particularly of ‘voluntary assumption of risk’. This is

stronger still where the relevant sport’s rules provide for the finality of the

official’s decision, and the participants agree to this by consenting to play the

game under those rules.

Given the arguments above, what about concepts of justice or fairness as

Lebbon80

discusses? It is undeniable that should a wrong decision occur in the

final seconds of a grand final, and causes the result to change, that this seems

‘unfair’. Many sports have used technological aids to assist officials to make the

correct decision – however this often opens up a raft of new problems, for

example, if the camera view is obscured or not perfectly aligned so that a

definite decision can be reached.

A further problem is that the on-field official may be required to acknowledge

their own doubt before invoking such technology, such as in the major

Australian football codes, where the referee/umpire decides whether the

assistance of a video official is required. An on-field official who believes that

they have already gained the facts necessary to make a decision, and is

reasonable in holding that belief, may not check with the video official,

preventing a ‘fair’ result.

The answer may lie in what sports like tennis, cricket and gridiron have

introduced. That is, the limited ability of participants to request an on-field

decision be reviewed by a video official. The NRL has trialled such an option

with its Under-20 competition,81

but has not yet brought it into senior football.

Limiting the number of unsuccessful appeals puts the onus on the participants to

be confident that an error was made, whilst ensuring that the game is not

continuously interrupted. Using technology to achieve a ‘correct’ result, and

especially having its use invoked by participants, raises some vexed 80

Lebbon, above n 4. 81

National Rugby League, ‘Captains Challenge’ to be trialled in NYC (14 August 2012)

<http://www.nrl.com/captains-challenge-to-be-trialled-in-nyc/tabid/10874/newsid/69269/default.aspx>

jurisprudential questions on the purpose of adjudication in sport, however that is

not for consideration in this article.82

What such an opportunity provides from a legal perspective is greater control

for the potential plaintiff. An argument about the official exercising complete

control over vulnerable players or teams carries less weight if the players have

the ability to request a review.

A further solution could be created in the civil liability legislation already

present in the Australian jurisdiction. Some authors have described the benefits

of a ‘competition judgement rule’.83

This would operate in a similar way to the

business judgement rule in corporate law, which provides a rebuttable

presumption that a director satisfies their duty if they make rational decisions in

good faith after informing themselves to the extent they believe is necessary.84

This protection would eliminate ‘hindsight bias’, the risk that once an erroneous

decision is detected, it is felt that the official acted unreasonably in making it.85

Many states in the USA already have such provisions and its introduction in

Australia would provide certainty to officials who already have a difficult job as

it is in adjudicating their sports.

82

See especially Fraser, above n 1, Ch 11. 83

S. Christopher Szczerban, ‘Tackling Instant Replay: A proposal to protect the competitive judgments of sports

officials’ (2007) 6(2) Virginia Sports and Entertainment Law Journal 277, 316. 84

Corporations Act 2001 (Cth), s 180(2). 85

Szczerban, above n 83, 321.