November 26, 2020
The New South Wales Court of Appeal has recently delivered judgment in the decision of Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc  NSWCA 294
In tragic circumstances, the Appellant (Mr Dickson) sustained significant head injuries when he was spear tackled during a country rugby league game. The tackler (Mr Fletcher) was playing for Northern Lakes Warriors and the Appellant brought proceedings against Mr Fletcher and also the Club on the basis that it was vicariously liable.
The Appellant based his case on the decision of McCracken v Melbourne Storm Football Club Ltd  NSWCA 353 (which also involved a player injured by a speak tackle) and ran a narrow legal argument in that the Civil Liability Act 2002 (NSW) (CLA) did not apply to the circumstances of the claim because the tackle was “an intentional act that [was] done… with the intent to cause injury or death”. This was because the Appellant accepted at trial and on appeal that if the CLA was not excluded, then the claim would fail due to the operation of the dangerous recreational activity defence (section 5L CLA). There was no cause of action in common law assault advanced.
At first instance, Abadee DCJ rejected the Appellant’s argument in the District Court trial and delivered judgment for the Respondents. The decision was appealed though the Court of Appeal agreed with the trial judge and unanimously dismissed the appeal.
The judgment focusses on the interpretation of section 3B(1)(a) CLA and whether Mr Fletcher’s tackle was effected with intent to cause injury. It should be noted that in disciplinary proceedings brought after the game but before the District Court trial, Mr Fletcher entered a plea of guilty to a charge of a dangerous throw (spear tackle) which the trial judge considered was an admission that he had breached his duty of care (following the McCracken decision).
Although Mr Fletcher had conceded that the spear tackle was an intentional act, as he had intended to bring the appellant to the ground (satisfying the first limb), the Court of Appeal agreed that he did not intend the injury that was sustained- that test being a subjective one, such that he did not satisfy the second limb. The tackle was caught on film and Mr Fletcher was observed to assist the Appellant on the ground after the tackle and express concern for him.
In delivering separate judgments, each justice of appeal considered that Mr Fletcher’s actions were reckless but that recklessness did not constitute intent to injure. It was also pointed out that if recklessness was enough to meet the threshold for intent to injure then a significant range of sports and recreational activities that were intended to fall within CLA would fall outside of it.
The decision provides useful guidance as to the application of s3B(1)(a) of the NSW CLA and just how finely balanced the subjective test of intent to cause injury can be in circumstances where facts quite similar to the McCracken decision resulted in a totally different finding.