Has anyone ever wondered how sports where the purpose of the activity is to cause harm to another, yet, not fall foul of criminal laws such as assault? Combat sports such as boxing, kick boxing, and wrestling may seemingly conform to some aspects of assault laws, however, such activities aren’t considered as such and we’ll explain why. For the purposes of this piece, we’ll primarily focus on boxing.
Jurisdictions in Australia have their own legislative instruments that allow for combat sports to take place, such as the Combat Sports Act 2008 (NSW), and the Professional Boxing and Combat Sports Act 1985 (VIC).
Using s 5 of the Professional Boxing and Combat Sports Act 1985 (VIC) as our legislative example, professional boxing and combat sports means any contest or exhibition:
- conducted for profit; or
- where the contestants participate for a monetary reward; or
- where the public is admitted on the payment of a fee for admission, except if the fee is for a public charitable purpose, or is an event organised by, or under the control of, an amateur boxing association recognised by the Minister.
It’s worth contrasting the provisions of the New South Wales and Victorian legislation in relation to combat sports, with the laws that constitute assault. So if we look at ss 33, 54 and 59 of the Crimes Act 1900 (NSW) for example, the provisions outlaws wounding or grievous bodily harm with intent, causing grievous bodily harm, and assault occasioning actual bodily harm – all acts that some would argue, may also feature in boxing.
Boxing and the common law
The common law has had to deal with the question of whether boxing constituted unlawful acts in a number of cases, beginning with R v Young (1886) 31 JP 215; 10 Cox CC 371, which was a matter that resulted in the death of a boxer during a bout that was conducted in a private room. The participants both wore gloves; however, the surviving fighter was charged with manslaughter when the deceased died from his injuries as a result of hitting his head against the post after falling. Medical evidence was produced at trial that boxing with gloves was not inherently dangerous, and that because the bout was conducted in a private room, there was no breach of the peace. Additionally, it was also accepted that sparring was not illegal, and that it instead was a display of skill.
In R v Coney (1882) 8 QBD 534 the House of Lords took the view that unregulated prize fights threatened the public interest in the maintenance of good order. R v Coney dealt with a matter involving a knuckle fight that was held in public with spectators able to bet on the outcome of the fight. Both fighters were found guilty of assault and their Honours noted that consent to an activity that was in breach of the peace was not sufficient, as Lord Coleridge CJ observed (at 567):
“I conceive it to be established... that as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeated held to be a breach of the peace. An individual cannot by such consent destroy the right of the Crown to protect the public and keep the peace.”
Stephen J also noted (at 549):
“[T]he injuries given and received in prize fights are injurious to the public… because it is against the public interest that the lives and the health of the combatants should be endangered by blows.”
However, with the adoption of the Marquis of Queensbury Rules, and a broader acceptance of boxing, the activity was deemed to be a safe pursuit as was noted in the unreported case of R v Roberts. The court held in R v Roberts that the new rules meant that boxing was a demonstration of sparring, therefore, legal.
If we look for an Australian context, the issue of boxing was addressed in the matter of Pallante v Stadiums Pty Ltd (No 1)  VR 331. The issue that was to be determined was whether a bout that was conducted under the official Australian rules was a prize fight, therefore, making the bout illegal.
The plaintiff in Pallante suffered from severe injuries to his eyes and made a claim for damages against the promoter, organisers, referee and his trainer. The defence in the case argued that the bout was a prize fight, and since all prize fights were illegal, the plaintiff could not bring about any proceedings that were based upon an unlawful action. McInerney J did not accept the argument put forward by the plaintiff that boxing centred upon the complete subduing of an opponent with little regard to the effects of the actions of participants. Instead, his Honour stated that the correct test when determining if a contest was illegal was the need to show that the blows inflicted was intended to do grievous bodily harm. His Honour stated that boxing (at 332), “predominately is an exercise in boxing skill and should not be seen as a criminal act.”