The New South Wales Court of Appeal upheld Abadee DCJ’s decision that the appellant, who suffered injuries 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

The question before the New South Wales Court of Appeal (Basten JA, White JA and Simpson AJA) was whether Brendan Fletcher intended to cause injury to Michael Leslie Dickson when he performed a spear tackle, thereby excluding the operation of the Civil Liability Act 2005 (NSW) (“the CLA”) by reason of s 3B(1)(a).

By s 3B(1)(a), the CLA does not apply to the civil liability of a person in respect of an intentional act done with intent to cause injury or death.

The background

On 24 April 2016, the Berkeley Vale Rugby League Club and Northern Lakes Rugby League Club played against each other in a Second Division game of the Country Rugby League Competition in Northern Lakes, NSW. The entire game was video recorded and therefore used in evidence during the trial. After the 32nd minute Mr Dickson had possession of the ball, and was running towards the Northern Lakes goal line, when Mr Fletcher (a player for Northern Lakes), sought to impede his progress and used a “spear tackle” or “dangerous throw” in order to stop him. Due to this manoeuvre, Mr Dickson hit the ground, landing on his neck, and Mr Fletcher fell on him, causing Mr Dickson to suffer severe head injuries. Following the incident Mr Fletcher apologised and expressed concern for Mr Dickson’s welfare.

Mr Dickson sued Mr Fletcher alleging that his injuries were caused by Mr Fletcher’s negligence. He further asserted that Northern Lakes Rugby League Club was vicariously liable for those actions. The vicarious liability of Northern Lakes was not in issue during either the trial or the appeal.

The decision at trial

At trial Mr Fletcher conceded that the spear tackle was an intentional act. Despite this, Abadee DCJ found that Mr Dickson failed to establish that Mr Fletcher intended to cause injury. 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 the ground, his intention was only to complete the tackle. Judgment was entered in favour of the defendants, Mr Fletcher and Northern Lakes.

The Decision on appeal The Court of Appeal confirmed that there are two limbs to section 3B(1)(a), and that proof of each is essential if the section is to operate to exclude the application of the provisions of the CLA to a claim. The limbs are:

  1. That the “person” (in this case Mr Fletcher) does an intentional act; and
  2. That the act (in this case the spear tackle) is done with intent to cause injury or death.

The Court noted that if Mr Dickson could prove that both limbs were established, his claim for damages would be determined by common law principles. The first limb was not in issue as Mr Fletcher conceded at trial at the spear tackle was an intentional act. The Court of Appeal was therefore only concerned with the second limb.

In dismissing Mr Dickson’s appeal the Court closely scrutinised the meaning of the words “intent to cause injury”, however, did not determine the precise scope of “intent to cause injury” in s3B(1)(a).

Simpson AJA (with Basten JA and White JA agreeing) held that a strict view of the meaning of “intent to injure” in s3B(1)(a) should be taken. Her Honour said that if “intent to cause injury” is taken to include something less than actual, subjective intention such as recklessness, or “imputed’ or presumed intention, many sports or other recreational activities to which the CLA is clearly designed to apply would fall outside its ambit. Further, Her Honour said that Mr Dickson needed to prove more than that injury was inevitable or that, in tackling Mr Dickson as he did, Mr Fletcher foresaw (or ought to have foreseen) or anticipated injury or that Mr Fletcher was reckless in the manner in which he performed the tackle. Mr Dickson’s proof did not go so far in this case as Mr Fletcher, despite using a manoeuvre that was against the Rugby League Laws of the Game, was intending to complete the tackle.

Implications for you

The decision is authority that in order for the Court to be satisfied that the operation of the CLA is excluded by reason of s3B(1)(a), the player at fault must be shown to have had an actual intent to cause injury. A manoeuvre that is against the Rugby League Laws of the Game is not necessarily enough.

Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294