The NSW District Court found that a plaintiff who suffered injury from a spear tackle during a game of rugby league could not bring a claim at common law as there was no intent to injure.
In Issue
- Whether a spear tackle constitutes an intentional act to cause injury
- Whether the claim was governed by the Civil Liability Act 2002 (CLA)
The Background
In 2016 Mr Dickson was playing a game of Rugby League for his local club when he was spear tackled by Mr Fletcher, an opposing player. At the time of the incident, spear tackling was (and still is) against the laws of Rugby League.
Mr Fletcher had attempted a conventional tackle on Mr Dickson but ended up spear tackling him. The tackle resulted in Mr Dickson landing on his neck and Mr Fletcher falling onto him with Mr Fletcher’s left shoulder coming into contact with his face. Mr Dickson sustained severe facial injuries.
Mr Dickson commenced proceedings against Mr Fletcher, the Northern Lakes Rugby League Club (Northern Lakes) and sought to rely on the decision of McCracken v Melbourne Storm Rugby League Football Club Limited (2007) NSWCA 353 (McCracken). Mr Dickson proceeded against Northern Lakes on the basis that it was vicariously liable for the actions of Mr Fletcher.
Mr Dickson sought to establish that the CLA did not apply by virtue of section 3B(1)(a) and that any assessment should be pursuant to the common law. Section 3B(1)(a) states that the provisions of the Act do not apply in respect of civil liability that is the result of an intentional act that is done by the person with the intent to cause injury or death.
The Decision at Trial
The Court noted that the test for section 3B(1)(a) is two pronged: was there an intentional act; and, was there intent to cause injury. The defendants conceded that Mr Fletcher’s conduct was an intentional act and satisfied the first limb of the test. It was the second limb of section 3B(1)(a) that was in dispute.
According to the Court, the critical question was what was going through Mr Fletcher’s mind during the course of the tackle. His Honour Judge Abadee found that Mr Fletcher did not have any intent to cause injury because whilst he did intend to use force to put Mr Dickson to ground, his intention was only to complete the tackle. The Court was of the opinion that, when considering the application of the second limb of the test intention should not be equated with recklessness.The Court also did not give any weight to Mr Fletcher’s guilty plea in the Rugby League disciplinary proceeding on the basis that it was only an admission of fault, not intent.
His Honour declined to follow the precedent set in McCracken which involved similar circumstances in a professional Rugby League context where the NSW Court of Appeal held that a spear tackle was an intentional act with intent to cause injury. The point of difference in McCracken was that one of the tacklers had admitted intent to cause injury, albeit not to the degree of harm actually suffered by the plaintiff.
As the second limb of the test was not satisfied, only the CLA applied to the claim. Given that Mr Dickson only sought to rely on the common law, the Court held the defendants had no liability.
However, in the event that His Honour was incorrect about the common law not applying, he found that the plaintiff would have succeeded. He held that the admission of guilt by Mr Fletcher in the disciplinary proceeding was an admission that he had not exercised reasonable care.
Implications for you
The approach taken by the Court indicates that injuries suffered during physical contact sports will not fall within the scope of section 3B(1)(a) of the CLA unless the Court is satisfied that the player at fault harboured an actual intent to cause injury. An intent to cause injury is more than a foreseeable risk that certain conduct, by virtue of its very nature, could cause harm.
The decision is a reminder that the Court will assess each case on its own facts. Relying on the judgment of a higher Court is not a sure safe way to plead a case, and a claim must be considered from all angles, plaintiffs and defendants alike.
Insureds and their players should also be conscious that a guilty plea in sport disciplinary proceedings may impact the outcomes of civil proceedings.
Dickson v Northern Lakes Rugby League Sports & Recreation Club Inc & Anor (No 2) [2019] NSWDC 433
