This month, many of us are keenly following the AFL Finals Series.

A common joke is that calling it Australian Rules Football was a bit of Aussie humour because the game often looks to the uninitiated as though it has no rules. So, were did it all begin? And, where did the rules of the game come from?

Australian Rules football first began back in the 1850s by a group of sportsmen, including Thomas Wentworth “Tom” Wills. Tom is something of a celebrity in Australian sporting history, being one of our first cricketers of significance and a pioneer of Australian Rules Football. Some people believe the game was adapted from a kicking game played by local aboriginal people with a stuffed possum skin for a ball. Parts of the game have similarities to Gaelic Football, originating from Ireland. When the game first started it was simply called “footy”. There was no set playing time, in the game’s early days. The winner was the first team to score 2 goals. Many early games ended when it got dark or because of quarrels. Captains acted as umpires, so this may have caused a not entirely unbiased application of the rules. Sometimes the games stopped because the ball burst and there were no spares because the balls were too expensive. Wills was born in New South Wales, although he went to boarding school in England. Returning to Victoria, in 1858 he called for the formation of a “foot-ball club” with a “code of laws” to keep cricketers fit during the off-season. After founding the Melbourne Football Club the following year, Wills and 3 other members codified the first laws of Australian Rules Football.

When the game first started to emerge it was invented to keep players of the sport of cricket (which was a Summer activity) fit during the Winter season. A unique trait of Australian Rules Football is that the size of the grounds has never been universal, so that some are bigger and some smaller than others.

In today’s football a game being postponed for any reason is very rare, particularly with the huge money at stake in relation to the TV broadcasting of the game, yet there have been moments when this has happened for different reasons. An example was postponement of game due to the telecast of Princess Diana’s funeral in September, 1997.

Is it the most dangerous sport in Australia? Studies have shown that it is the highest ranking sport in which players have been hospitalised. Over a 1 year period nearly 4,000 hospitalisations were from footy.

If you play contact sport are you legally accepting the risk of injury? The answer is that a player accepts the inherent risk in playing the game, such as injury from accidental contact or contact within the laws of the game. Where a player is injured by another player’s action outside of the rules of the game, such as a deliberate punch or elbow to the face, the offending player is likely to be held liable and will be legally responsible for the financial consequences, (as illustrated in the case noted in the footnote at the end of this Article). If the injured player loses his football career the offending player might be responsible to financially compensate for lost salary in addition to medical expenses and pain and suffering (which can include physical pain, worry, frustration and anxiety, and could also include the trauma of disfigurement). Such an outcome is the result of the application of the legal concept of negligence, in which it is determined that another person has breached the responsibility of a duty of care towards another person (being the fellow sports person). Plus, there are situations in which the legal responsibility to financially compensate the injured person can extend to the football club who engaged the offending player, meaning that an employer/employee relationship exists in which the employer (club) is legally responsible for the actions of its employee (offending player). For indigenous Australians, footy is the sport of choice with over 90,000 participants involved with AFL programs around Australia.

Team Logos

Can girls play footy? They sure can! Back in 2003, there was a most interesting Court case in which 3 teenage school girls in Melbourne took a stand to defend their right to play Australian football in mixed competition with boys. Emily Stanyer, Penny Cula-Reid and Helen Taylor took Football Victoria to the Victorian Civil and Administrative Tribunal (VCAT) to defend their right to play Australian Rules Football in mixed competition with boys. Having played in their respective teams since early primary school, they were devastated to be banned from playing once they reached aged 12, as per Football Victoria’s Female Participation Regulation Rule. At that time, the rules prevented girls from playing footy once they reached aged 12. The girls had been banned by the regulatory body from participating in footy games. The teenagers won their Court case and the result opened the way for a National Women’s Australian Football League. There are now over 100,000 registered female footy players. History was made earlier this year with 8 existing AFL professional clubs granted a licence to compete in the inaugural season of the National Woman’s League next year (2017). A documentary movie was made about the inspiring story of the 3 teenage school girls standing up for a fair go, called “Even Girls Play Footy”.

As we follow the current footy Finals series with close interest, here is a thought on the importance of the perseverance of footballers (and maybe a humorous yet telling command for the rest of us in our own jobs and homes) by the legendary footy coach of Hawthorn, John Kennedy, “At least DO SOMETHING! DO! Don’t think, Don’t hope, Do!” His booming voice and stirring words inspired generations of Hawthorn players, taking them from easy beats to one of the most revered clubs in the AFL. The Hawthorn team is again one of the favourites for the flag this year. We’ll see, since footy (like life) can turn in unexpected ways.

And, how about this as the final thought? …….. As some of us madly cheer-on our team (or rue our favourite team coming “second” and look forward to next season), spare a thought for how our crazy yet fantastic game must have looked to folk when it first originated and thanks to a true Aussie character like Tom Wills for developing this special sport back in a much more colonial Australia in the 1850’s.

In the case, McNamara v Duncan (1971) 26 ALR 584 at 588, Fox J. illustrated the problem for an offending player as follows: “I do not think it can be reasonably held that the plaintiff consented to receiving a blow such as he received in the present case. It was contrary to the Rules and was deliberate. Forcible body contact is of course part of Australian Rules football as it is with some other codes of football, but such contact finds justification in the Rules and usages of the game. Winfield (op cit) says (at 748) in relation to a non-prize fight ‘a boxer may consent to accidental fouls, but not to deliberate ones’. Street on Torts (4th edit. P 75) deals with the presumed ambit of consent in cases of accidental injury ‘A footballer consents to those tackles which the rules permit, and, it is thought to be those tackles contravening the rules where the rule infringed is framed to maintain skill of the game: but otherwise if his opponent gouges out an eye or perhaps even tackles against the rules and dangerously’. Prosser Law of Torts (3rd Ed p103) says, ‘One who enters into a sport, game or contest may be taken to consent to physical contacts consistent with the rules of the game.”

This Article was written by Mitchell Clark, MBA Partner.

Mitchell was one of the first Lawyers in Queensland to receive (in 1998) specialist accreditation from the Queensland Law Society in the field of Personal Injuries Law.