@Fade To Black said:
Glad to see it took less than 10 minutes for you to rush to the Storm's defence….kinda looks like you have been waiting in anticipation of an anti-Storm response so you could have a little blubber hey Happy. Kinda sad if that is the case don't you reckon?
So you are making your argument that the NRL should be hauled over the coals for this but Melbourne Storm and its parties are without blame? Good argument bud...
There is precedent for a club being held liable - Canterbury Bankstown Rugby League Football Club Ltd v Rogers; Bugden v Rogers [1993] NSWCA 49 (i.e. the Steve Rogers case).
Some relevant parts of the judgment of Mahoney JA:
_It was within the scope of Mr Bugden’s employment, ie, it was one of the things that as a player he was to do, to grapple with Mr Rogers, stop him and bring him to the ground. He was allowed to do this by using his forearm against Mr Rogers’ chest or shoulders; that was proper under the rules. But it was contrary to the rules of the Rugby League to do it by applying his forearm to Mr Rogers’ head. That is agreed. In the relevant sense, what Mr Bugden did was to do to the head what he was authorised to do to the body and he did it for the purpose for which he was employed by the Club. That, in my opinion, supports the conclusion that the Club is liable upon the scope of employment basis.
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What Mr Bugden did to Mr Rogers was contrary to the rules of the Rugby League. It was not suggested that the coach, in precise words, told the players to strike Mr Rogers or other Cronulla players about the head. However, the judge concluded - and it is, I think, clear - that the coach “revved up” the members of the team including Mr Bugden and that he told them that they were to “stop” three players, one of whom was Mr Rogers. The submission suggested, I think, two things: that the coach gave the players to understand that they should do whatever was necessary, including involvement of the heads of the players targeted, to “stop” them; or, alternatively, that the fact that they were “revved up” and told what they were told would, because of the generation of enthusiasm and otherwise, make the doing of what was done likely or even probable.\
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I would not conclude that what the coach said to the players was intended to convey to them the instruction to adopt illegal tactics of this kind: the evidence did not establish that. It is clear, of course, that a person may say one thing and mean another. To say “do not break the rules” may mean the contrary if said with a smile or a wink and an instruction to “stop” a particular player. It was not suggested and I do not find that, in this case, the coach did something of this kind. The evidence establishes only that he “revved up” the players and told them to “stop” Mr Rogers. No further finding is to be made against the coach.\
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But some things, I think, are clear. If Mr Bugden did what is alleged against him, he did it deliberately: that is not in contest. If he did it, the purpose of doing it was to cause Mr Rogers to be “stopped”: there was no animosity between the men and no other reason was suggested. Rugby league is a professional game: it may be inferred that the club benefits from the success of its players; that the players are paid for what they do; and that they are apt to be paid more if they are successful in doing it. Therefore there is, to put the matter no higher, a temptation to do what will win games and ensure that the player appears of use to the club in achieving its purposes. In the circumstances of this case there was, I believe, a clear risk that a player who was “revved up” might yield to the temptation to “stop” Mr Rogers by whatever means could be employed. These things are, on one view, obvious. But it is proper that, having regard to the way in which the case has been conducted, they be spelled out.\
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And they are, in my opinion, relevant in determining the responsibility of the Club. The court may take a degree of notice of the role which “motivation” or the like may play in achieving success in sporting and other areas of activity. It may be that, in professionalised sport, winning, and not playing, is the object. But motivating to win carries with it consequences. The risk that motivation will, in some, lead to illegitimate means of winning is, I believe, plain. There is a line between what is permitted and what is not. If an employer encourages action close to the line he may, in such circumstances, have to bear the consequences of action over the line. These matters are not conclusive. But, in my opinion, they are relevant in determining, inter alia, whether what was done was within the scope of the employment.\
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An employer is vicariously liable for damage for which his employee is liable if what the employee has done was within the scope of his employment. He is ordinarily liable if the employee does in an illegitimate way what he was employed to do in a legitimate way. But the employer will not be liable if what the employee has done is so far beyond what he was employed to do that liability should not be imposed._
Going after the Storm would not be out of the question...although not on the basis that McKinnon was specifically targeted in the way Rogers was.
