McNamara v Duncan

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Citation: McNamara v Duncan (1979) 45 FLR 152.

This information can be found in the supplementary materials to LAWS1052 - Introducing Law & Justice.


Background facts

  • The defendant deliberately struck the plaintiff during a game of AFL. The plaintiff had just kicked the ball, but the defendant continued to run at him and hit him on the head, fracturing his skull.
  • This is an infringement of the rules to a serious extent. It was argued that there was implied consent to a little bit of foul play in the game

Legal issues


  • There is mutual consent to tackles which are within the rules and commonplace fouls. However, this consent has been exceeded in this case, and therefore the actions amounted to battery.
  • While forcible contact is normal in AFL, it is not to be expected where it is both outside the rules AND a deliberate or reckless blow. In such cases, consent has been exceeded and battery and/or assault will hold.
  • “Even if the act were not deliberate, there would be scant basis for holding that the plaintiff should be taken as having consented to receive a blow such as he received”
    • i.e. even if it were not a deliberate act, the fact that it was both direct and reckless beyond normal foul play would constitute trespass vi et armis.


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