NSW Court of Appeal finds intent to tackle does not automatically mean intent to injure

By Rachael Arnold, Holly Turner and Gemma Shaw

The NSW Court of Appeal has dismissed an appeal from Berkley Vale Rugby League Club (BVR) player Michael Dickson who suffered serious facial injuries after Northern Lakes Rugby League Sport & Recreation Club (NLR) player Brendan Fletcher performed an ‘unlawful’ tackle on him during a rugby league match.

The decision, handed down on 18 November 2020, confirms that a claim arising out of contact sport will likely fall within the parameters of the Civil Liability Act 2002 (Cth) (CLA) unless it can be established that the international act was intended to cause injury[1]. Further, in most contact sport cases, the Dangerous Recreational Activity defence in the CLA will provide protection to associations/clubs and their insurers.

Background: a ‘spear tackle’, disciplinary hearing and court proceedings

On 24 April 2016, BVR played NLR. After 32 minutes, Dickson had possession of the ball and Fletcher attempted to complete a tackle called a ‘leg hook’ on Dickson. Fletcher lost control of the tackle and instead executed was an unlawful ‘spear tackle‘, resulting in Dickson hitting his neck on the ground. Dickson suffered significant head and facial injuries. Fletcher apologised and expressed concern for Dickson’s welfare. Fletcher stayed with Dickson until first aid officials arrived.

Following the match, the tackle was determined to be unlawful pursuant to NRL rules and Fletcher was charged and pleaded guilty to engaging in a ‘dangerous throw’ in a subsequent disciplinary hearing. Fletcher conceded that the tackle was intentional but denied it was intended to cause injury to Dickson.

Dickson commenced proceedings in the District Court of NSW against Fletcher and NLR (for its alleged vicarious liability) seeking common law damages, arguing that the exclusion in section 3B(1) of the CLA applied (relying on McCracken[2]). Abadee DCJ found that Fletcher’s conduct was not excluded under the CLA and that the defence in Dangerous Recreational Activity was made out.

The Appeal

Dickson appealed against the finding that Fletcher had not been shown to have acted with intent to cause injury. An inquiry into Fletcher’s state of mind was critical. Actual subjective intent needed to be established, as recklessness is insufficient. The extent of the injury is not relevant.

While the principals of McCracken were considered, distinctions were drawn between the sheer lack of intent to cause injury Fletcher showed in comparison. Basten JA drew from the tortious act of battery and criminal act of assault to highlight the CLA’s broad purpose to deal with only negligence, and did not find that Fletcher acted deliberately or wilfully in executing the tackle.[3]

Justice White did not compare Fletcher’s action with intentional tortious or criminal acts because the ‘spear tackle’ executed was not actually the tackle Fletcher intended to make. While Fletcher’s tackle was executed recklessly and was unlawful, those factors did not automatically mean Fletcher had an intention to injure.

The Court of Appeal unanimously dismissed the appeal.

Commentary

Of interest, former rugby league coach Warren Ryan gave expert evidence to the effect that tackling in the sport of rugby league was designed ‘to cause harm and bruising impact with the ground which will hurt and discourage the attacker’ to the opposing player, as he considered minor injuries as a result of tackling in rugby league an obvious risk.

However, the Court of Appeal stopped short of determining the scope of ‘intent to cause injury’ and declaring whether body contact sports involving a significant risk of physical injury such as Rugby League or boxing should be excluded from the operation of the CLA, with Simpson AJA commenting ‘whether that is so will be determined on another day.’

While this decision is of assistance to insurers of contact sport associations/clubs, each matter will still turn on the precise facts and the intention behind the tortfeasor’s actions will always need to be examined closely.

[1] Pursuant to section 3B(I)(a) of the CLA
[2] McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107. In this matter it was established that the tackling player intended to harm his opponent.
[3] Element of battery as at McNamara v Duncan (1979) 26 ALR 584 at 587 (Fox J)