THE FIGHT AGAINST BOXING
THE FIGHT AGAINST BOXING H AYLEY C OHEN I.
INTRODUCTION
Boxing is a popular and legal sport in many parts of the world including Australia. Nonetheless, there has been an increasing voice of discontent in the community in relation to the legality of boxing, especially from the medical profession. The debate on whether boxing should be banned or not, demonstrates how liberalist democratic societies are abundant with competing interests and pluralistic ideas.
II.
REGULATION VERSUS PATERNALISM
The very nature of boxing- to injure and subdue the other participant by striking blows to the head and body- seems to elude the purview of criminal1 and tort law.2 However, in reality, the demarcation line between lawful and unlawful activity when it comes to contact sports is nebulous and ill-defined. When fighting is a “mere exhibition of skill”,3 an “amicable contest”4 and free from serious injury (which would otherwise be considered as grievous bodily harm),5 it is deemed licit under legal doctrine and public policy. This is evident in Pallante v Stadiums Pty Ltd6 (‘Pallante’). In this case, the plaintiff sued Stadiums Pty Ltd for a serious eye injury he received after participating in a consensual boxing match. Justice McInerney stated: “[Boxing is] … an exercise in boxing skill and should not be seen as a criminal act.”7 In Pallante, the legal principal embodied in the maxim, ‘volenti non fit injuria,’ was applied. Participants of contact sports in Australia ‘assume the risk’8 of being harmed. In boxing, ‘volenti’ may provide a complete defence to an action taken by a person injured in the boxing ring.9 Concepts such as ‘volenti’ stem from the liberal idea that reasonable, autonomous individuals have the right to make choices and must bear the responsibility for making them.10 Each jurisdiction in Australia has its own laws that regulate boxing, (except for Queensland and the Northern Territory).11 These legislative provisions are mostly concerned with the administration of events, rather than outlining explicitly, the legality of boxing. The idea that 1
For example, Crimes Act 1900 (NSW) s33, s54, s59, s61. For example, Civil Liability Act 2002 (NSW) s5B, s51. 3 R v Orton (1878) 14 Cox CC 226, 227. 4 R v Canniff (1840) 9 Car. & P. 359, 150-61. 5 R v Coney (1889) 8 QBD 534, 536. 6 (No 1) [1976] VR 331. 7 Ibid 332. 8 Civil Liability Act 2002 (NSW) s5F-I. 9 Marel Katsivela, ‘The Volenti Defence Under Australian and Canadian Law: A Comparative View’ 8(2) JLC 322-342, 322. 10 John Start Mill, Utilitarianism (Batoche Books, 2001) 55. 11 Boxing and Martial Arts Act 2000 (SA); Boxing and Wrestling Control Act 1986 (NSW); Boxing Control Act 1993 (ACT); Combat Sports Act 2008 (NSW); Combat Sports Act 1987 (WA); Professional Boxing and Combat Sports Act 1985 (Vic); Police Offences Act 1935 (Tas) s49B(1). 2
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