Facts: The plaintiff and defendant were in opposing teams in a game of Australian Rules football. The plaintiff had just kicked the ball when the defendant ran up to him and struck him on the side of the head with his elbow, fracturing the plaintiff's skull. The plaintiff underwent emergency surgery for the removal of a potentially fatal blood clot around the brain and was unconscious for 10 days. He was left with a minor permanent disability. He sued the defendant for damages for trespass to the person.
Issue: Had the plaintiff consented to possible injuries?
Decision: The plaintiff had not consented to prohibited acts that caused harm.
Reason: The court held that there was implied consent to a bit of ‘foul play’ beyond what was within the rules of the game, because such conduct is to be expected. But prohibited conduct that goes well beyond the rules, which is either deliberate or reckless, is beyond the scope of any such implied consent and is therefore trespass to the person. Fox J said (at 587, 589, 590):
"... [T]he striking of the plaintiff by the defendant was intentional ... The striking was an infringement, a serious infringement, of the rules ... [A] player is not to be taken as having consented to prohibited acts, even although it is known that they may, and probably will occur... [T]he present case is concerned with deliberate injury ... [and] ... the plaintiff is entitled to succeed."