Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc and Anor (No.2)

[2019] NSWDC 433

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc & Anor (No.2) [2019] NSWDC 433
Hearing dates:	12 - 15, 21 August 2019
Date of orders:	23 August 2019
Decision date:	23 August 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 178
Catchwords:	TORTS – action in negligence under common law – plaintiff was a player in a Second Division Country Rugby League competition game - plaintiff injured as a result of a ‘spear tackle’ by second defendant whilst carrying the ball - whether liability provisions of Civil Liability Act excluded on basis of ‘intentional act’ of the second defendant that was done ‘with intent to cause injury’ to the plaintiff – whether ‘intent to injure’ is satisfied by mental state of recklessness – whether duty of care – whether duty of care breached – causation – voluntary assumption of risk – contributory negligence
Legislation Cited:	Civil Liability Act 2002 (NSW), s 3B(1)(a) Crimes Act 1900 (NSW), s 59 Evidence Act 1995 (NSW), s 140
Cases Cited:	Agar v Hyde (2000) 201 CLR 552 Canterbury Municipal Council v Taylor [2002] NSWCA 24 Chapman v Hearse (1961) 106 CLR 112 Chappel v Hart (1998) 195 CLR 232 Condon v Basi [1985] 1 WLR 866 Croucher v Cachia [2016] NSWCA 132 Dean v Phung [2012] NSWCA 223 Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2019] NSWDC 426 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316 Fuz v Carter [2006] NSWSC 771 Goode v Angland [2017] NSWCA 311 Herne Investments (NSW) Pty Ltd v Don Watson Proprietary Ltd [2016] NSWCA 72 Imbree v McNeilly (2008) 236 CLR 510 Frazer v Johnston (1980) Aust Torts Rep 80-248 Johnston v Frazer (1990) 21 NSWLR 89 Li v R [2005] NSWCCA 442 March v E & M Stramare Pty Ltd (1991) 171 CLR 506 McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107 McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353 McHale v Watson (1964) 111 CLR 384 McIntyre v R [2009] NSWCCA 305 McNamara v Duncan (1971) 26 ALR 584 Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388 R v Lardner (NSWCCA, Unreported 10 September 1998) Re Lenfield (1993) Aust Torts Rep 81-22 Roggenkamp v Bennett (1950) 80 CLR 292 Rootes v Shelton (1967) 116 CLR 383 Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218 State of New South Wales v Ibbett (2005) 65 NSWLR 168 State of New South Wales v McMaster [2015] NSWCA 228 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 Vairy v Wyong Shire Council (2005) 223 CLR 422 White v Johnston [2015] NSWCA 18 Williams v Milotin (1957) 97 CLR 465 Wilson v Nilepac Pty Ltd [2011] NSWCA 63 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40
Texts Cited:	C. Sappideen & P. Vines’ Fleming’s The Law of Torts (10th ed) D. Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed) H. Luntz, “Compensation for Injuries to Sport” (1980) 54 ALJ 588 P Cane, “Mens Rea in Tort Law” (2000) 20 Oxford JLS 533 S Yeo, ‘Determining consent in body contact sports’ (1998) Torts Law Rev 199 The Restatement of the Law of Torts (2nd)
Category:	Principal judgment
Parties:	Mr Dickson (Plaintiff) Northern Lakes Rugby League Sport & Recreation Club Inc (First Defendant) Mr Fletcher (Second Defendant)
Representation:	Counsel: Mr B Gross QC (Plaintiff) Mr M Best (First and Second Defendants)   Solicitors: Be Legal (Plaintiff) Wotton & Kearney (First and Second Defendants)
File Number(s):	2017/350448
Publication restriction:	Nil

Judgment

Introduction

1. On 24 April 2016, the plaintiff was playing for his local Rugby League team, the Berkely Vale ‘Panthers’ against the Northern Lakes ‘Warriors’ in a Second Division game of the Country Rugby League competition in Northern Lakes. He became the victim of what is colloquially called a ‘spear tackle’, or what is also called (more formally) a ‘dangerous throw’. A spear tackle is not only inherently dangerous but was (and remains) also contrary to the Laws of Rugby League at the relevant time. It essentially involves a ball carrier being lifted by the tackler above an imaginary ‘horizontal’ line in the air and is thereafter driven to the ground. It is most dangerous when the result of the tackle is that the ball carrier contacts the ground head, or neck first. Though there were two other Northern Lakes defenders involved in the second defendant’s completion of the tackle, the spear tackle was instigated wholly by the second defendant. The result of the tackle here was that the plaintiff landed on the neck and, in the process of completing the tackle, the second defendant also fell on the plaintiff, with his left shoulder contacting the plaintiff’s head around the nose and eyes. For anyone watching the incident (in real time, or slow motion) the incident made for confronting viewing.

2. Following the tackle, the plaintiff suffered very severe injuries to his head. There is no dispute that there was a serious physical injury to the plaintiff’s head caused by the tackle, but the curious aspect was that the part of the head what was injured was the face, not the neck (as might have been feared, if not expected from a spear tackle) and that the facial injury was caused by the application of the second defendant’s left shoulder when he fell upon the plaintiff in completing the tackle.

3. The plaintiff brings this proceeding against the Northern Lakes club, for whom the second defendant was a registered player. He seeks damages against the club in common law for being vicariously liable for the negligence of the player which caused personal injury. No cause of action was pleaded for the tort of a battery. That being so, it might have been expected that the claim for damages would be affected by Parts 1A and 2 of the Civil Liability Act. However, the plaintiff says that the conduct of the second defendant was such as to engage in conduct that fell within one of the exclusionary provisions, s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (the ‘Act’). Specifically, the plaintiff says that the provisions in Part 1A and 2 of the Act do not apply since the civil liability (and award of damages sought in relation to it) arose in respect of “an intentional act that is done by the person with the intent to cause injury or death …” The plaintiff contends that the circumstances in which the injury occurred was virtually on all fours with an earlier decision of the Supreme Court of New South Wales, being McCracken v Melbourne Storm Rugby League Football Club & Ors [2005] NSWSC 107 (“McCracken (NSWSC)”.

4. If the plaintiff is right, then, insofar as the general question of liability is concerned, the Court not only need not be concerned about restrictions on the recovery of damages under Part 2 of the Act, but also need not be concerned with a range of special defences contained within Part 1A which the defendants specifically plead in their respective Defences. These include: s 5L (obvious risk); s 5I (inherent risk); s 5J (recreational activity) and 5K (dangerous recreational activity). The test for causation (s 5D) might also be modified.

5. At the early stages of the trial, there were arguments, as between Counsel, as to whether reports relevant to the plaintiff’s case on damages had been served, within the Court rules. There was also a shared belief among Counsel that it would be desirable for the parties’ psychiatric experts to engage in a conclave ahead of giving evidence concurrently, but there had been practical difficulties in achieving that outcome. Faced with these issues, and unprompted by the Court, Counsel for the parties made a joint application that I should make an order to separately determine issues of liability ahead of the plaintiff’s case on damages. Mr Gross QC supported this application by reference to the McCracken litigation, where the trial judge in that case had also separated issues of liability over the damages claim. In the circumstances (including the fact that there was no dispute that the plaintiff had actually suffered loss and damage, constituted by serious facial injuries), I acceded to this application [1] .

   1. A not dissimilar situation arose in the McCracken decision, upon which the plaintiff heavily relied, where the parties felt that to forestall a need for adjournment in order to obtain evidence relating to quantum, it was expedient to consider questions of liability in advance of damages: McCracken v McCracken (NSWSC) at [4]

6. On the final day of the hearing (specifically fixed for closing addresses), I was initially presented with a foreshadowed application by Mr Gross QC, that the hearing be adjourned. This was on the basis that one of the liability issues to be decided was whether, if the second defendant’s liability was made out, the first defendant would be vicariously liable. It was suggested that in that circumstance, Counsel for the defendants might be faced with conflicting duties. Without entering into the merits of the application in any way, I considered that the most expedient course (having regard to case-management objectives) was to add to the list of issues (ie ‘damages’ issues) that had already been ‘hived off’ the question whether, in the event that the second defendant was found liable, the first defendant was vicarious liable. That means that, for the purpose of this judgment, I consider the liability of the second defendant (although see paragraph [178] below).

Factual background

7. At the time of the game, the plaintiff was living with his parents at Chittaway Bay on the Central Coast. At that time, he was 25 years of age.

8. At the time of the incident, the plaintiff had been playing rugby league with his club for a number of years, at different stretches (2008-9 and 2013 until the date of the incident). His position was a prop forward, weighing about 110kg. In accordance with the prevailing rules, he was a registered player with his club. Registration was a precondition for players to play the game at this level of competition.

9. In his pleading, it was alleged that the plaintiff had been contracted to play for the Berkley Vale club.

Circumstances leading to the incident

10. The plaintiff had played against the second defendant before. The second defendant was also a prop forward. They had had no personal dealings. This was no grudge match between closely rivalrous teams; nor any local derby, of the kind that accentuates passions in the players. The customary role of the prop forward (aside from its role at scrum time) was to take ‘hit ups’, that is, hard running towards the defence; as well as to partake in team defence.

11. There was no suggestion that, leading up to the incident in question, there had been any animosity between the plaintiff and the second defendant during the game. The incident occurred shortly before half time, being about 32 minutes into the game. There was no suggestion that when the second defendant made the tackle in question, he had any particular slight, or was actuated by personal malice towards the plaintiff. That said, being a fellow prop forward, it might be said that players in rugby league might be especially disposed to additional aggression against their counterpart; in order to assert an ascendancy or ‘dominance’ over the counterpart.

12. A video recording was taken of the incident occasioning the plaintiff’s injury. It was played in both ‘real time’ and also ‘in slow motion’, numerous times. It was the subject of commentary by the plaintiff’s expert on liability, Mr Warren Ryan, a vastly experienced Premiership-winning (in what is now called the National Rugby League) rugby league coach and commentator. The matters which Mr Ryan had identified in the video recording, which formed the basis of assumptions for his opinions were, more or less, agreed to by the Second Defendant when the latter was cross-examined. This is subject to some qualification since, notwithstanding the second defendant’s general agreement with the assumptions, Counsel for the defendants generally attacked their reliability. I will return to that attack later when recording Mr Ryan’s evidence.

13. Before I consider the particular incident question, there were other matters that I observed in the video recording of the first half (the incident occurring at the back end of the first half). I observed:

1. many tackles around the head and shoulders of the ball carriers;

2. one instance whereby even though it was clear that the momentum of the ball carrier was arrested, a defending player fell on the ball carrier lying on the ground;

3. one instance where a ball carrier was tackled in a way that he was back slammed to the ground;

4. one instance where a ball carrier had been lifted from the ground, but not above the imaginary horizontal line;

5. one instance where a ball carrier was held by two defenders and had no momentum; but yet a third defender came in and lifted the ball carrier’s leg, causing him to fall to the ground.

14. This was in a game which, the plaintiff had agreed, had been played in ‘good spirits’ up to the point when the incident had occurred.

The plaintiff’s evidence

15. The plaintiff recalled landing on the back of his neck. He felt the second defendant’s left shoulder strike his face in the completion of the tackle. After the tackle, he did not feel immediate pain. This was probably attributable to the influence of adrenaline. He was not unconscious, and was able to walk off the field (being escorted by a trainer). But he did notice, almost immediately, that he could not close his jaw.

16. With the benefit of the video recording, the plaintiff accepted that after the tackle, the second defendant had, firstly, held his neck, prior to the entry onto the field of first aid officials (the second defendant informed me that he was qualified with first aid); and, thereafter, with the plaintiff in a sitting position on the ground, the second defendant approached the plaintiff again. It was put to the plaintiff that the second defendant had said words to the effect “Sorry mate, I hope you’re okay.” The plaintiff could not recall that being said, but did not deny that it was said.

Plaintiff’s appreciation of risks of injury

17. In cross-examination of the plaintiff, Counsel for the defendants elicited the following concessions, that before playing the game on 24 April 2016:

1. in playing the game he was aware that inherent risks included that he might suffer physical injury;

2. he was aware that the risk of injury might not only result from being tackled;

3. he was aware that the risk of injury from a tackle might be minor (such as being ‘winded’) or could be catastrophic (as was exemplified by the tragic case of Alex McKinnon who, in 2014, was rendered a quadriplegic from a tackle);

4. Rugby League is an activity – a sport – in which there is a significant risk of physical harm;

5. there was a real risk that during a game, a dangerous throw could occur;

6. there was a foreseeable risk that an injury might occur as a result of a dangerous throw.

18. More specifically, the plaintiff acknowledged that the nature of his position, within the broader contest of the game, could make him liable to the risk of injury. He admitted that:

1. At all times, when his team was on the attack, he was expected to be a ball carrier and to be tackled. Being tackled, and tackling, was an inherent part of the game;

2. The nature of the contest, between ball carrier, and tackler (or other tacklers) is that:

1. the ball carrier tries to advance the ball as far as s/he could towards the tackler’s goal line; and this would continue even after the initial point of contact. (To this it might be added, the further the ball carrier progressed, the more likely the attacking team would be likely to gain momentum for the subsequent tackle);

2. After the point of contact, depending upon the extent of the tackle, a ball carrier might look to free his or her arms to off-load passes to surrounding attacking players;

3. The tackler(s) was or were endeavouring to stop the ball carrier’s momentum, cut-off the possibility of off-loads and bring the ball carrier to the ground in such a way (commonly involving one or more tackler being on top of the ball carrier) that the tackler(s) could resume their positions more quickly than the ball carrier – this would allow the defending team to re-start more quickly than the attacking team at the next play.

4. For all of these reasons, it was common for there to be multiple tacklers to effect a tackle on a ball carrier and, indeed, the plaintiff acknowledged that he was trained to utilise these multiple numbers at the tackle contest;

5. The tackle would be completed according to the referee’s verbal adjudication that the player is “held”; reflecting the referee’s assessment whether the carrier can continue to advance the ball any further;

6. In what was, after all, a competition, misconduct featuring violent behaviour could flare up at any time, for multiple reasons: fights might arise for perceived slights and the result might be injuries to players.

7. Some regulation of the physical risks of playing the game arises from the responsibility of the referee (supported by touch judges) to enforce the laws of the game, during the game; and this includes sanctions (such as penalties and even the partial or entire sending off of players); and further regulation is achieved through the use of a judiciary empowered to impose further sanctions, such as suspension of players from matches. These forms of regulation are intended to deter player misconduct and mitigate the risk that players will engage in unlawful and dangerous conduct. Supplementary to this, perhaps, is the sense in a player that if the laws against misconduct are contravened by him or her, the player may be letting down his or her team as a sanction will inevitably carry a ‘sting’ against the whole team (such as losing an advantageous position on the field by a penalty; or, worse, losing a player off the field for some of or even the remainder of a game).

Mr Smith’s evidence

19. Mr Smith was the President of the Berkeley Vale ‘Panthers’ (the club for which the plaintiff played) at the time of the incident. He was also a Football Operations Manager. He produced a document which verified the plaintiff’s registration to play at the time of the incident.

20. During cross-examination, Counsel for the defendants took the opportunity to put to Mr Smith an email that he had sent in the aftermath of the incident. The gist of the email was to complain about the officiating by the match officials in respect to the incident, with a view to agitating for the Central Coast judiciary taking follow-up action. Mr Smith took the opportunity to complain about the leniency of the sanction imposed upon the second defendant (a sin-binning, rather than sending off). But Mr Smith also expressed his own view that the two other defenders (Mr Hayes and Mr Oliveri), who were, with the second defendant, involved in the subject tackle were also responsible for the outcome; albeit that his view was that the second defendant was primarily responsible. This expression of opinion by Mr Smith was made, partly on the basis of his own observations during the game – which were limited on account of his being in a position at the ground far away from the tackle – but mainly were based upon his viewing of video replay, both in ‘real time’, and slow motion.

Second Defendant’s account

21. The second defendant had been playing rugby league since he was about six years old; more or less continuously. In the previous six years to the date of the incident, he had been predominantly playing either in the second row or the front row. He explained that his particular position in the defensive line was to occupy the middle third section of the field (this being one of three sections, the other two being the right and left edge of the field). In this position, he customarily expected to be defending against and tackling players of equal or bigger size than himself.

21. A prominent part of the second defendant’s evidence was that he had been trained in what he called a ‘hooking the leg’ technique. He appeared to accept that this description of a tackling technique was not in common parlance. This was a style of tackling that he had developed in his earlier playing days. He explained that technique involved the following:

1. he would line himself up with the ball carrier coming towards him;

2. he would adjust his footing, depending upon the direction in which the ball carrier was travelling;

3. he would orient his head on the left or right hand side of the ball carrier and plant his front foot before that player at the point of contact, with his other leg behind him (with the back leg to be utilised to create power in the tackle);

4. he would contact the ball carrier with his arm around the ball carrier’s lower torso, his hips and his thighs;

5. he would use his arm under the ball carrier’s front leg and lift that leg so that the ball carrier only had one leg on the ground. This was intended to knock the ball carrier off balance; so that the ball carrier would be unable to progress forward. In this way he, as the tackler, was in control of the tackle and was in a position to put the ball carrier on the ground; and he could get on top of the ball carrier on the ground so as to facilitate his team’s alignment for the next tackle.

23. The second defendant said that this technique could be used by himself individually, or (more often) in concert with other tacklers. If other tacklers became involved, the second oncoming tackler’s role was to wrap the ball carrier’s arms up, around the ball (to prevent an offload); with the third defendant’s role to (also) lie on top of the all carrier so as to slow down the ‘play of the ball’ after completion of the tackle. He explained that where multiple tacklers were used, there were verbal communications between the defenders as to who would take what role. This was something that his team had trained for.

24. The second defendant relevantly accepted that in the process of tackling the plaintiff, he used his right arm around the plaintiff’s thigh; put his head towards the side of the plaintiff, and used his left arm to wrap around the plaintiff’s leg. However the plaintiff was still progressing towards the attacking line (albeit that, by this time, the plaintiff’s body had rotated so that his back had been facing towards Northern Lakes’ goal line). He recalled his own body rotating, with his feet moving towards the plaintiff and he was in a semi-horizontal position at this point. But because of an absence of power, the second defendant placed himself in a more upright position and he intended to spin the plaintiff around so as to drive him backwards (towards the direction of the Berkley Vale goal line) into the ground. In this way, the second defendant would be able to get up from the ground more quickly than the plaintiff and be in a better position for the unexplainable. The second defendant recalled that as he lifted the plaintiff, “something didn’t feel right”. In completing the tackle he knew that the plaintiff had landed on his neck or the top of the shoulder. In answer to a question from myself, the second defendant was aware that at some point during the tackle, the plaintiff’s legs had been lifted above the imaginary horizontal line.

25. After the tackle had been completed, the second defendant said that he had assisted the plaintiff to hold his neck and removed his mouthguard. He noticed a lot of blood on the face of the plaintiff. He said that after first aid officers had entered the field and when he had the opportunity, he approached the plaintiff to say to him “I’m sorry mate I hope you’re okay”.

26. After the tackle, the second defendant was sent to the ‘sin bin’, being a temporary (10 minute) period of the field. Over the next few days he was notified of a complaint having been made against him by the Berkley Vale Club. At an initial hearing before the Central Coast Judiciary, a complaint was dismissed but upon review, before the Country Rugby League Judiciary panel, he pleaded guilty to a charge of a ‘dangerous throw’. He was suspended from playing for a period of nine weeks. Prior to the incident in question, he had been charged for misconduct once before but for the much more minor charge of showing dissent. That charge had been dismissed.

27. In cross-examination, the second defendant identified the two other players, in Northern Lakes’ defensive line, who were in the general vicinity of the middle third section of the field and might be said to have been more directly in front of the plaintiff when he received the pass from the play the ball: they were Jayden Oliveri and Simon Hayes. These players were also forwards. The second defendant was cross-examined to the effect that both of these players were available to have given evidence on behalf on the second defendant, but neither was called.

28. It was put to the second defendant that his objective, when making the subject tackle, was to make a ‘dominant’ tackle. Indeed, in a previous tackle not long before his tackle on the plaintiff, he had made a forceful tackle on another Berkeley Vale (‘white’) player and had tried to lift him too. The second defendant was challenged as to his ‘leg hook’ tackling technique. It was put to him, and the second defendant accepted, that by lifting the player off the ground it was likely, at the very least, that the ball carrier would over balance and possibly have his legs rise above his head; and from there, the ball carrier’s head would (absent any further step by the tackler) likely head to the ground. He accepted that it was not necessary to make a ‘powerful’ tackle in order to stop the ball carrier. Mr Ryan’s observations of the video recording were put to the second defendant’s consideration (described further below at paragraph [40]). The second defendant did not substantially disagree with them. The second defendant admitted that he wanted to make a dominant tackle on the plaintiff and that his intention was only to lift one leg; not his entire body.

29. It was put to the second defendant that in performing the tackle he had failed to exercise reasonable care for the plaintiff’s safety. To this, the second defendant responded that he did not intend to cause the plaintiff injury. He accepted that, in the completion of the tackle that he had lifted the plaintiff into a dangerous position; and that he lifted both legs of the plaintiff above the ground. He also accepted that he had the plaintiff under control, in the tackle, at least up to the point of the lift, but, at that point, he lost control of the plaintiff when his “top half” got heavy. He disputed the proposition that at the point when the plaintiff was lifted, with his head back towards the plaintiff’s team’s own goal line, the plaintiff’s progress had been stopped. He also disputed the propositions that:

1. he intended to lift both legs of the plaintiff off the ground,

2. he lifted them up as high as he possibly could,

3. he intended to place himself in a vertical position;

4. he lifted his left elbow with the intention of twisting the plaintiff

30. When it was suggested that he intended to put the plaintiff’s head to the ground, the second defendant says his intention was to complete the tackle. It was put to the second defendant that at the point just prior to when the plaintiff had been lifted, the second defendant could have safely put him back on his back and when the plaintiff had reached the imaginary horizontal line, he was aware that the appropriate thing to do was to not go on with a driving tackle likely to cause the ball carrier’s head to hit the ground.

31. Senior Counsel for the plaintiff put it to the second defendant that through his training, experience and familiarity with the game (including watching games), he knew that once a tackler had lifted a ball carrier, there was a potentially dangerous situation, in terms of the risk of injury. The second defendant agreed that players are trained not to engage in dangerous throws when defending. The second defendant disputed the proposition that when he lifted the plaintiff, the plaintiff was at risk of a significant injury.

32. It was also put that the other defenders involved in the tackle made no material contribution to the end result. The second defendant said that he was focussed on what he was doing at the time.

33. The second defendant accepted that inherent in the game was the expectation that players would abide by the laws and rules of the game; and that an important feature of those laws or rules was to provide for player safety. It was put to him that there was no inherent risk that players would be subject to illegal tackles. The second defendant said that he did not expect to get seriously injured, nor be subjected to spear tackles when he played.

Laws of the Game – as at the date of the incident

34. An extract of the February 2016 edition of the NRL ‘Laws of the Game’ was put before the Court. There is no dispute that it was this version of the laws that was applicable to this game, at the relevant time.

35. Section 11 dealt with the tackle. An explanatory note to the section said that:

“A tackler must not make any use of … ‘throws’ which are likely to cause injury .. in the tackle ..’

36. Section 2 was the Glossary section. It defined “Foul play” by reference to the types of “Misconduct” (specified in Section 15) – Law 1(a),(b), (c), (d), (l) and (m).

37. Section 15 was titled ‘Player’s Misconduct’.

38. At paragraph (b) of Section 15, one species of misconduct occurs if a player ‘when effecting ... a tackle makes contact with the head or neck of an opponent intentionally, recklessly or carelessly’. I note that the plaintiff did not, in terms rely upon this species of contact in his complaint of negligence; though in my view this law is part of the context in which to consider some of the defendants’ defences, considered below.

39. At paragraph (d) of Section 15, another species of misconduct occurs when a player uses any ‘dangerous throw when affecting a tackle’. An explanatory note elaborated the concept of a ‘Dangerous throw’, as follows:

“if, in any tackle of, or contact with, an opponent that player is so lifted that he is placed in a position where it is likely that the first part of his body to make contact with the ground will be his head or neck (‘the dangerous position’) then that tackle or contact will be deemed to be a dangerous throw unless, with the exercise of reasonable care, the dangerous position could not have been avoided.”

Expert opinion evidence

Mr Ryan’s evidentiary statements

40. I described Mr Ryan’s expertise as player, coach, commentator and analyst in my reasons for admitting parts of the evidentiary statements that were objected to. [2] After many viewings of the video footage of the incident that was put in evidence (some of which was in ‘real time’ and some of which was in slow motion), Mr Ryan provided a description of the tackle in his first evidentiary statement, which formed the assumptions for the opinions he later expressed. His observations of the video recordings (and therefore his “assumptions”) (including some of my own observations) were as follows:

    2. Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2019] NSWDC 426 at [6]-[10]

1. The plaintiff played in a team wearing, white jerseys (the ‘white team’); the second defendant played in a team wearing green jerseys (the ‘green team’);

2. a white player who has been tackled, played the ball;

3. Another white player, who is the ‘dummy half’ receives the ball at the ‘play the ball’ and then passes the ball to his right to the plaintiff, who is moving forward as the ‘first receiver’;

4. At this point, in the defensive line, there were 3 players, in the middle part of the field (as distinct from the left and right ‘fringes’); who were generally sizable front-rowers or back-rowers, and expecting to confront sizable front rowers or backrowers who were potential ball carriers. The second defendant was one of these defenders and the plaintiff was first receiver who, if he was to run straight, would be moving towards this channel;

5. the plaintiff runs from his right in a leftward direction towards the defenders in the green team;

6. a green player, the second defendant (moving with good ‘line speed’), comes in to make the tackle on the plaintiff, as the plaintiff attempts to (side-) step to the second defendant’s left

7. the second defendant, comes in from the right side of the plaintiff to tackle him and makes contact, using his right shoulder; and wraps both of his arms in a circle below the hips and largely around the plaintiff’s thighs (to interpolate, this struck me as being a perfectly normal approach to tackling);

8. when the second defendant has got hold of the plaintiff, using both arms, second defendant has his legs trailing well behind him. At this point his body is in an angle position and is in no position to lift the plaintiff, the tackled player;

9. the second defendant then hurries with his footwork, by taking a few quick small stutter or dolly steps, to get into a position so he is directly under the plaintiff and therefore in a position to lift him;

10. having accelerated is his legs quickly to get his feet under the plaintiff, the second defendant is in a position to pick him up, lift him and then dump him onto the ground;

11. meanwhile, the plaintiff has stayed vertical, rotating his body so he is facing in a reverse direction from his original part, possibly in order to flop or to pass the ball to another white team player;

12. the second defendant then lifted the plaintiff off his feet, doing so by rising to his full height, with his feet under him;

13. when the second defendant lifted the plaintiff, he caused the plaintiff’s body to rotate clockwise, so that the plaintiff’s legs and body alignment go beyond the horizontal, and the plaintiff’s head, neck and shoulders are closer to the ground then his feet;

14. during the lift, the second defendant lifts with his left elbow coming up and he then has the plaintiff well and truly off the ground. The second defendant’s left elbow is quite high, even above his own head. The second defendant is also rotating his own upper front so that when he finishes the tackle he is not just dropping the plaintiff but is bringing him down to the ground with a whole weight of the second defendant’s upper body being put into the motion of driving and down. The second defendant which was lifting, turning and rotating his own torso so he was in a position to drive the plaintiff down to the ground;

15. during the entire tackle, the second defendant had both hands in effect clenched together forming a circle below the tips of the plaintiff and largely around his thighs.

16. at various stages, two other Green players (No. 6 & No. 15) come in to lend a hand to the second defendant. However, nothing that was done by the other two players, affected in any way, the manner in which the second defendant executed his tackle, or change the speed and direction of movement of the plaintiff’s body at any stage while the second defendant was making in completing the tackle.

41. Mr Ryan said that, following his viewing of the video footage, the above description (or ‘assumptions’) was “completely accurate.”

42. Following his observations from the video (and statement of assumptions), Mr Ryan relevantly opined that the second defendant’s tackle upon the plaintiff:

1. involved him performing an ‘intentional act’ in the sense that any rugby league tackle involves the deliberate action by the defender to stop the attacker, by forcefully hitting and grabbing the offender using the shoulder, upper limbs and sometimes the chest in order to bring the ball carrier to the ground.

2. also involved an intentional act by the second defendant ‘done with the intent to cause injury’. This part of Mr Ryan’s opinion was objected to (but the objection was overruled).

43. In answering this second question, Mr Ryan started by explaining the way in which coaches teach and train players to tackle. He said that Rugby League is a fast, intense, physical contest involving heavy and often violent bodily collisions by defenders on the attackers. Most tackles are vigorous and are designed to discourage the attacker’s run, reducing his (or her) energies, enthusiasm and confidence as well as disrupting the flow of the attack. In particular, tackles were aimed at lowering the competence of the attacking players, by physical attrition, and the trauma of severe bodily impact, both in the tackle and when the tackle plaintiff the ground. Strong tackles are necessary and frequent because of the need to stop, if possible, both the ball and the players simultaneously; as well as to gain time for the defensive line to reorganise for the next play.

44. Mr Ryan said that in adult competition matches, players are taught and encouraged that when they have caught the attacking player, to put him (or her) onto the ground forcefully to cause hard and bruising impact with the ground which will hurt and discourage the attacker: “minor injury to the tackle player is a necessary and obvious outcome of such tackling.” (emphasis supplied)

45. Mr Ryan said, after having viewed the video footage, that in executing the tackle, the second defendant was using a tackling method which would be regarded by virtually all rugby league coaches, adult players and experienced observers of the game, as unreasonably dangerous and which the second defendant could and should have avoided. Specifically, the way in which the second defendant lifted the plaintiff and the lifting of the plaintiff’s leg legs upwards, the plaintiff’s downward descent would suggest that it was inevitable that he would hit his head first on the ground. (I interpolate, at this point, that according to the laws of the game, once the ball carrier is placed in a ‘dangerous position’ (being one where it is likely that the first point of contact will be with the ball carrier’s head or neck) then the tackle will be deemed to be a dangerous throw (and therefore constitute misconduct) effectively unless the tackler exercises reasonable care).

46. As indicated, Mr Ryan prepared a second evidentiary statement, during the hearing. He said that the ‘list of assumptions’ he had prepared was provided to him by Mr Gross QC, in conference; and had been typed by Mr Gross’ secretary. His first evidentiary statement had also been typed by Mr Gross’ secretary. He explained that the list of assumptions had been prepared in Mr Gross’ chambers, based upon conferences Mr Ryan had with Mr Gross which they had had at the Fox Studios (more specifically, the premises of ‘Definition Films Pty Ltd’). Mr Ryan indicated that the video footage at those premises was produced by special equipment and a very large screen. He viewed the footage at both ordinary speed and in slow motion.

47. In his second evidentiary statement, Mr Ryan noted that he had made errors in identifying the numbers on the jerseys of the second defendant and of one of the two other defenders who were, along with the second defendant, part of the defensive line towards whom the plaintiff was running before the subject tackle. In his second evidentiary statement, he corrected the number of the other defendant to number ‘6’, rather than number ‘8’.

48. As it happens, after sitting in and listening to the evidence of the plaintiff and second defendant, and being privy to yet more viewings of the video footage put before the Court, Mr Ryan corrected himself again in his evidence in chief. The number of the nearby defender to the second defendant (who Mr Gross called defender ‘A’ and whose name was later identified as being Jayden Oliveri) was not number ‘6’, but rather number ‘13’.

Mr Ryan’s evidence

49. Over the objection of Counsel for the defendants, I allowed the plaintiff to tender two ‘evidentiary statements’ of Mr Ryan (see Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2019] NSWDC 426).

49. The reliability of Mr Ryan’s opinion evidence was challenged in a number of ways:

1. unusually for an expert witness, he was said to have authored the assumptions that he expressed opinions about;

2. his observations of the video were made without having any expertise in ‘video analysis’;

3. he repeatedly made errors in identifying from the video footage the numbers of two of the (‘A’ and ‘B’) defenders in the defensive line who were ‘involved’ (to use a neutral term) in the subject tackle, notwithstanding having viewed the video recording of the game many times, in many places, prior to, and indeed during the trial itself.

4. the video footage itself was blurry; and assessment would be difficult to someone like Mr Ryan who professed some difficulty with his eyesight; and

5. the assumptions he made to express his opinions were generally based upon his observation of the video footage.

51. In more substantive terms, Mr Ryan was challenged as to his evidence, to the extent that such evidence spoke of the intention of any of the participants in the tackle. It was suggested that the coaching methods (generally) on such matters as tackling might vary from coach to coach. It was suggested that when Mr Ryan spoke of a coach’s method for teaching or training players to tackle, comprising a desire to cause ‘minor’ injury, this was contradictory to indications (such as the NSWLR coaching manual) that the position is, in fact, the opposite; that players’ duty is to avoid injury.

CONSIDERATION

Issues

52. In his opening address at the hearing, his Statement of Issues and again in his written closing submissions, Mr Gross QC emphasised that the plaintiff’s claim was based solely in the common law and was not made in accordance with the common law, as it had been modified by Parts 1A or 2 of the Civil Liability Act 2002 (NSW). Mr Gross QC even said, in his Opening, that if the plaintiff did not have the benefit of s 3B(1)(a), the particular provisions of the Civil Liability Act (in relation to recreational injuries) would bar the plaintiff from a claim in damages (T 19.9 – 21.6).

53. During the closing addresses, Mr Gross QC agreed that it was essential to the plaintiff’s success that he persuade me of his s 3B(1)(a) argument (T 314.31). Mr Best, Counsel for the defendants, agreed the issue was potentially dispositive (T 334.12).

54. I agree that the question that the question of the application of s 3B(1)(a) is a threshold question which is potentially dispositive of the proceeding. Although the terms of s 3B(1)(a) are premised upon a finding of a ‘civil liability incurred’ – which is a separate and distinct matter to the question of whether it is ‘in respect of an intentional act that is done .. with the intent to cause injury – and although conventionally, perhaps, the matter of civil liability is adjudicated initially [3] prior to consideration of s 3B, in my view, the circumstances of this case incline me to consider the s 3B(1)(a) question on the assumed premise that a ‘civil liability’ has been incurred. I adopt that course, not only because Counsel for the parties agree that the question is dispositive, but because the way in which the plaintiff has pleaded his case, being an action in (common law) negligence, there may be doubt whether a ‘civil liability’ was incurred at all, depending upon the question whether the applicable legal regime is the common law or Part 1A of the Civil Liability Act. Specifically, there may well be a material difference, in terms of whether a civil liability has incurred, between the operation of the defence of voluntary assumption of risk in a common law claim of negligence, and the application of the special defences raised by the defendants in Part 1A, Divisions 4 & 5 of the Civil Liability Act, in response to a claim in negligence affected by the Civil Liability Act. Consideration of s 3B before consideration of liability for the cause of action was also the course adopted by Basten JA in Dean v Phung [2012] NSWCA 223 at [10].

    3. As it had been, at first instance, in the decisions in Croucher v Cachia and Fede v Gray, both of which are referred to below.

55. Thus, I propose to consider s 3B first.

Credit – lay witnesses

56. No significant attack was made by Counsel for both parties on the credit of the plaintiff or first defendant, at least whilst they gave evidence. I was impressed by both when they gave evidence. In respect to the plaintiff, I did not detect any sign of embellishment or exaggeration; particularly when he gave an account of the injurious consequences of the tackle. I was also impressed by the circumstance of his attempts to return to work promptly notwithstanding what appeared to be ongoing concerns about his face.

57. In respect to the second defendant, he listened intently to and patiently answered a long series of questions in cross-examination as to his objectives when he made the tackle and how he sought to accomplish those objectives. He made many concessions, when appropriate. In his closing address, Mr Gross QC characterised the second defendant as being “evasive”. I disagree with that characterisation. I did not detect unwillingness on his part to answer each question put to him.

58. I had no reason to doubt the reliability of Mr Smith.

Credit – Mr Ryan

59. As to his demeanour, Mr Ryan was sometimes less than impressive. Many times, I thought he was pugnacious or combative under cross-examination which often led to argument with Counsel. Mr Gross QC attributed this to a natural disposition to irritability not uncommonly found in a person of Mr Ryan’s age, but I think his demeanour went beyond irritability. This led him to sometimes give non-responsive answers to questions. In fairness to him, the cross-examination was hostile and it seemed to me that Mr Ryan had little understanding as to the nature of the process of giving evidence: often he appeared to resent his inability to provide explanations to his answers. He appeared to come to court expecting to be asked about the substance of his opinions and appeared frustrated when he was cross-examined as to the nature of his preparation for his reports. When he was challenged on more substantive matters, the witness tended to manifest his view that the questions were trifling. Nevertheless, on matters of substance, he clearly gave his evidence knowledgably and with conviction.

60. As to the general attacks on the reliability of Mr Ryan’s evidence, firstly, I agree that Mr Ryan performed a somewhat unique role of a prospective expert witness in having a hand in the ‘assumptions’ put to him. In this regard, in terms of the nomenclature, I am not sure that it is altogether accurate to say that what Mr Ryan did was to involve himself in, or to formulate, ‘assumptions’ in the conventional sense. What he did was to form observations of the subject tackle incident from many viewings of the video recording of the incident. From those observations, he was asked to, and did, express opinions. For all but one of those observations (being his identification of player numbers) Mr Ryan was not seriously challenged upon the correctness of them.

61. Secondly, Mr Ryan was attacked as being advocate for the plaintiff. I do not accept that submission. I accept that Mr Ryan was sympathetic to the plaintiff’s plight, but do not consider that such sympathy meant that he was incapable of dispassionately or objectively expressing his views. He had no apparent personal attachment or association with the plaintiff and in his radio commentary of the game over many years, I expect he would have understood and been trained to call incidents as he saw them. That training and experience would have assisted him to form his opinions objectively. I note that for both of his evidentiary statements, Mr Ryan agreed to be bound by the expert witness code of conduct. It was not squarely put to him that he failed in the duty expected of an expert witness.

62. Thirdly, I do not consider that Mr Ryan’s opinions are undermined by his lacking formal qualifications in video analysis. It was not suggested, with any precision, what such qualifications were, or whether or where they could be acquired. To the contrary, Mr Ryan had had much experience, as coach, commentator and, on-going analyst, at looking at video replays of incidents in a game. Not all of that viewing would necessarily have been of the quality that he apparently saw at the theatre room of the Fox Studios; particularly when he started radio commentary in about the mid-1980s.

63. Fourth, I think it is an exaggeration to say that the video footage that Mr Ryan (and the Court) observed was blurred, in terms of its quality. I note, in this regard, that the defendants did not object to the various versions of video footage placed before the Court: indeed, they had put one version of them in evidence themselves. All versions of which were taken from the same camera. I note, in this regard, that Mr Ryan may have had the benefit of a better picture, on a large screen and with higher resolution than the images seen in Court, when he viewed the video in a theatre at the Fox Studios.

64. As to the images of the video footing shown in Court, they may not have been of comparable quality of a Channel Nine or Fox Sports picture seen on television screens at this time; where the footage is from ‘side on’ to the play; and where there are abundant cameras around the field. Here, the camera was at something of a diagonal direction relative to the play the ball area and where the subject tackle incident occurred. I also accept, and note that Mr Ryan acknowledged, that the location of the video camera was such that at about the point when the plaintiff’s head collided with the ground after the tackle, what happened next was obscured by a white (Berkeley Vale) player (jersey number ‘15’). But to my observation, the video footage gave a good, or at least reasonable, demonstration of the lead up to and the execution of the tackle by the second defendant on the plaintiff: it clearly displayed the process by which the second defendant lifted the plaintiff, with both legs off the ground, to a point above the middle horizontal line, the second defendant’s use of his elbow to raise the plaintiff to a position where his head was pointing in the direction of the ground; and the point at which the plaintiff’s neck, or shoulder, did in fact strike the ground. In other words, the video recording clearly showed all that needed to be showed to demonstrate a spear tackle. Mindful of the caution that the trier of fact must place on photographic or video evidence, in my view it was cogent evidence enabling the Court to determine factual issues associated with how the tackle occurred[4] .

    4. Herne Investments (NSW) Pty Ltd v Don Watson Proprietary Ltd [2016] NSWCA 72 at [42]

65. Fifthly, I do not agree with the submission that the weight of Mr Ryan’s opinions was substantially undermined from the evident confusion he had about the numbers on the backs of the Northern Lakes defenders alongside the second defendant. For one thing, the backs of the Northern Lakes defenders, upon which their numbered jerseys appeared, were positioned away from the camera. For another, it was not easy to see the number on the player’s jersey against the light green colour of the jersey. Thirdly, I accept the evidence, as it emerged through re-examination, that throughout the course of his coaching and (more especially) his commentary career, Mr Ryan was accustomed to training his eyes on what the players were actually doing, in their respective team positions – rather than identifying them by their jersey number.

66. Finally, although the tenor of the cross-examination of him was hostile, there was little, of substance, in the attack on the merits of Mr Ryan’s opinions. Further, no expert evidence was called by the defendants to dispute Mr Ryan’s opinions. In this last respect, I do not regard Mr Smith’s evidence, forged from his viewing of a video, as to his belief in the involvement of two other players as of comparable weight to Mr Ryan. Plainly when Mr Smith sent his email he was not doing so with the intention of expressing expert opinion – it was too vaguely expressed for that purpose. It was a view that was conveyed in order to encourage another panel to conduct a disciplinary review of the incident.

Factual Findings

67. I generally accept Mr Ryan’s description of the tackle. First, with the exception of the last of the observations (or ‘assumptions’) (xv), (concerning the causal effect on the tackle of the two other players) Mr Ryan was not specifically challenged on the correctness of any other assumption. Secondly, the second defendant essentially agreed with the description of what occurred (T 158-163, 170-178). Thirdly it generally accords with my own observation of the video recording(s) put before the Court.

68. The gist of Mr Ryan’s description, which was not disputed, was that the second defendant started his tackle in a conventional way, around the plaintiff’s waist. When it appeared to him that this had not arrested the plaintiff’s momentum, the second defendant used his ‘leg hook’ technique which involved lifting one leg of the plaintiff. When that did not achieve the intended outcome of throwing the plaintiff off balance, the second defendant wrapped his other arm around, moved into a vertical position and lifted the plaintiff so that both of the plaintiff’s feet were off the ground; and indeed, one or both of his legs were lifted above the imaginary horizontal line. However, I accept the second defendant’s evidence that he soon thereafter felt a loss of control in the tackle and further, impelled by the idea that it would be advantageous to get the ball carrier to ground, the second defendant drove the plaintiff to the ground in a situation where the plaintiff’s head was pointing to the ground. Before he did so, there was some twisting of the plaintiff’s body so that, upon contact with the ground, the plaintiff would be placed in a certain way on the ground designed to advantage the defending team in its re-alignment of its defensive line. In the process of driving the plaintiff to the ground and in order to complete the tackle, the defendant fell to the ground on the plaintiff’s body. Specifically, his shoulder fell on the plaintiff’s head, in the area of the nose and it was this contact which caused the severe facial injuries to the plaintiff.

69. The critical question, for the purposes of the s 3B(1)(a) question was what was going through the second defendant’s mind during the course of the tackle. This was the subject of cross-examination of the second defendant (especially T 169-179). It is pertinent to reproduce parts of that cross-examination:

(T 169)

“Q:   … do you say you did not intend to cause him the severe injuries which he suffered?

A   I didn’t intend to cause those injuries.

Q:   And you didn’t intend to cause any serious injury. Is that right?

A:   I didn’t intend to cause any injury.

Q:   But you certainly intended to put him down hard on the ground so as to make forceful contact with the ground. Is that right?

A:   There was no intention. The intention was to complete the tackle.

….

(T 170)

Q:   And do you agree that you lifted the plaintiff into a dangerous position as defined (by reference to the explanatory notes of the Laws of the Game)?

A:   With the completion of the tackle, yes.

Q:   Well, what I’m saying is, did you lift him up to the point where he was at risk of being injured by descending vertically upside down to the ground?

A:   I couldn’t predict if he was going to be injured or not.

…..

Q:   And do you also agree that you intended to put him down on the ground hard?

A:   I didn’t intend to put him down hard. I intended to put him down.

(T 171)

Q:   But what I’m suggesting to you is that you lifted him to the height you lifted him with your arms intentionally. That right?

A:   I lifted him to complete the tackle

….

Q:   Let’s get back to my question. Do you agree that you lifted him so that both his feet were off the ground?

A:   Yes.

(T 172)

Q:   And you intended to get him as high as possible off the ground, didn’t you?

A:   No.

….

(T173)

Q:   The tackle you intended to make was a powerful, driving tackle.

A:   Was – I was attempting to get into position where I could make my regular tackling style. Whether it be powerful or not –

Q:   I suggest to you that you got your legs into position under him so you could lift him up.

A:   Yeah, that’s my driving position.

Q:   You did so as you intended to get both his feet off the ground.

A:   I did my normal tackling style, both wouldn’t come off the ground.

….

(T174)

Q:   Do you agree that you did in fact lift both of his legs off the ground?

A:   Yes.

Q:   That was what you intended to do, isn’t it?

A:   My intentions were to complete the tackle.

(T177)

Q:   Do you agree that you elevated your left elbow as shown on the video?

A:   Yes.

Q:   Do you agree that when you did so, you did so at same time as getting yourself - you got yourself into a vertical position. That’s right?

A:   At the same time, yes

Q:   So in other words you increased your height, first of all by straightening out your back from a near-horizontal, position with your legs bent up to the point where you were vertical. And also had your legs fully extended?

A:   Yes.

Q:   And that was something you intended to do?

A:   There is no intention unless - to complete the tackle. I can’t – I can’t—

Q:   We’ll come back to that later, I’m just asking you about getting yourself vertical and also getting your left elbow up in a manner that shown in the video. That was all intentional, wasn’t it?

A:   I got my legs into a position so I could get power in the tackle.

Q:   Just concentrate, if you can, on the question. You got yourself vertical, in fact, with your legs extended and your back basically vertical and with your left elbow up. You did all of that intentionally, didn’t you?

A:   No.

Q:   Why do you disagree?

A:   I – I think I- sorry - explained what my positioning was. My legs came up so I could get power in the tackle. There is no intention to get my legs straight, elbow above my head. It’s not an intentional purpose of the tackle. That’s not even a process.

(T 178)

Q:   The lifting of the left elbow is a stage when you intended to twist him in order to put him on the ground in the way he ended up. Is that right?

A:   I can’t agree because you keep using “intent”. And there’s no intent in –

Q:   Let’s put aside the word “intent”, come to this. Was the way in which you executed the tackle, one so ultimately he ended up on his back and with his feet facing your goal line?

A:   Yes.

Q:   And you intended he’s - end up in that position?

A:   With my tackling style, yes.

…..

(T 179)

Q:   Is it true to say that in order to twist him over and put him on the ground, you intended to get his right leg as high as possible using your left arm?

A:   No.

Q:   Is the fact you intended to drive into the ground with force using your body weight and your effort?

A:   Yes

70. I find that the second defendant made a tackle that satisfied the definition of a dangerous throw, in contravention of the Laws of the Game. By his guilty plea in disciplinary proceeding, the Second Defendant admitted as much. That plea entailed his admissions that (a) in making the tackle upon the plaintiff, it was likely that the first part of the plaintiff’s body to make contact with the ground would be the plaintiff’s neck or head; (b) in the absence of reasonable care by the Second Defendant, the tackle would be deemed to be a dangerous throw unless the dangerous position could not have been avoided.

71. There was no suggestion put on behalf of the Second Defendant that the dangerous position of the plaintiff’s head in this tackle could not have been avoided.

72. I also find that, with the plaintiff’s legs in the air, and with the second defendant in a vertical position, the second defendant intended to use his force to bring the plaintiff to the ground. Moreover, he intended to put him to the ground in a position, for tactical reasons, in a certain way so that the plaintiff’s head would be facing towards the Northern Lakes goal line (the direction in which Berkley Vale were attacking).

70. I also find that although the second defendant intended to go to ground with the plaintiff, he did not intend that any part of his body (ie his shoulder) would connect with the plaintiff’s face, or head. No suggestion was put to this effect to the second defendant. Had there been such intention, in my view, that would have amounted to a clear contravention of Section 15(1)(b) (with intention as the mental state. It is not necessary, nor appropriate for me to consider whether the second defendant might have contravened this Law by reason of contacting the plaintiff’s head by reason of the other two mental states referred to in that particular Law).

71. I accept that second defendant’s evidence, which is consistent with what is observed on the video recording, that after the tackle was completed, he stayed down on the ground with the plaintiff. Although it could not be heard on the video recording, the defendant was not challenged on his evidence that he apologised, and expressed concern, for the plaintiff. This was after cradling the plaintiff’s head prior to the entry onto the field of first aid officials. The second defendant’s evidence in these respects was not challenged.

Section 3B(1)(a) – are the provisions of the Civil Liability Act excluded?

The parties’ submissions

75. By his written submissions, the plaintiff submits that both limbs of s 3B(1)(a) of the Civil Liability Act are established. He submitted that the second defendant had committed a battery, in that he failed to establish an absence of consent. He submits, also that the findings in the McCracken litigation guide me in resolving the legal arguments in this case. In his closing oral address, Mr Gross QC argued that the position of the second defendant’s ‘feet, arms and body betrayed his intention’ to ‘thump’ the plaintiff. All of these events were controllable by the second defendant and given the second defendant’s own awareness of the illegality of a spear tackle, his decision to drive the plaintiff to the ground in a forceful fashion was akin, Mr Gross QC, said to a person throwing another person against a wall. Mr Gross emphasised that the intent (to injure) need not be to generate any serious injury; it was enough to engage s 3B(1)(a) that a minor injury was caused (even the winding of a player would suffice).

76. The defendants concede that the second defendant’s tackle was an ‘intentional act’ for the purposes of the first limb of s 3B(1)(a). They submit that the decision in McCracken (NSWSC), which also dealt with a spear tackle, and which determined that both limbs of s 3B(1) was engaged, is neither binding on me nor persuasive. To the contrary, there were a number of authorities which emphasised that, for the purposes of the second limb of s 3B(1)(a), it was necessary for the plaintiff to prove that the second defendant’s subjective state of mind was to injure the plaintiff.

Determination

77. At paragraph 14 of his pleading, the plaintiff alleged:

“The plaintiff claims damages in accordance with s 3B(1)(a) of the Civil Liability Act (NSW) on the basis that Brendan Fletcher in tackling the plaintiff and driving him forcefully to the ground negligently did “an intentional act that was done by the person with intent to cause injury” in that although he did not intend to cause the serious injury which in fact occurred, he did intend to cause the Plaintiff some minor and temporary injury from contact with the ground, this being an inherent an inevitable feature of vigorous rugby league tackles.” (emphasis supplied)

78. The defendants denied the application of s 3B(1)(a) of the Civil Liability Act in their entirety in the Defences. In their (separate) defences, each defendant specifically denied that the Second Defendant had intended to cause the plaintiff minor and temporary injury from contact with the ground.

79. There are two limbs to s 3B(1)(a): (a) the act of the defendant was intentional; and (b) the act was done with the intention to cause (relevantly) injury. ‘Injury’, in the context of Part 1 of the Act is not a defined term.

80. It is well-established that the facts of a case may fulfil the requirements of a cause of action in battery and negligence[5] . In his pleading in this case, the plaintiff relied upon the tort of negligence against the second defendant. He did not, in terms, plead that a battery had been committed against him by the second defendant (which cause of action did not require intent); although in his closing oral address, Mr Gross QC argued that the plaintiff had pleaded this tort, even if indirectly. I do not regard that position as satisfactory. In my view, it would be appropriate to expressly plead this tort, even if some of the material facts underlying it might arguably have been pleaded, so as to avoid surprise: see Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135. The same issue – doubt about what action the plaintiff was suing upon – was alluded to by the Court of Appeal in McCracken (NSWCA)[6] in which Mr Gross QC had appeared. As Leeming JA said in Croucher v Cachia [2016] NSWCA 132 at [19], the torts of negligence and battery have different elements, different defences [7] and are differently affected by statute. If the plaintiff wanted to run an action of battery in addition to negligence, he should properly have pleaded it.

    5. Williams v Milotin (1957) 97 CLR 465

    6. [2007] NSWCA 353 at [27]-[29]. The Court of Appeal noted that in McNamara v Duncan (1971) 26 ALR 584, the plaintiff had run an action solely on trespass to person; and not negligence.

    7. For the tort of battery, this includes the defendant needing to establish an absence of intent or negligence in causing physical contact: Croucher at [21]. See paragraph 175, below, in relation to doubt about the onus of proof in establishing ‘consent’ to the tort of trespass to the person.

81. At any rate, it is unnecessary, for consideration of s 3B(1)(a) to be fixated upon the precise cause of action relied upon. This is because in Croucher, Leeming JA held (at [33]) that s 3B(1)(a) did not operate upon the particular cause of action, but upon the particular act which gives rise to the civil liability and the intent of the person doing that act. It was necessary, therefore, to look to the character of the underlying conduct, rather than whether the claim was in respect of an ‘intentional tort’. Further, his Honour determined (at [104] that although the ‘intention’ of a defendant, in the statutory sense, is a subjective matter, the subjective state of mind of the defendant might be inferred from circumstances other than his or her own statement as to his or her perceptions.

82. In the circumstances of Croucher, his Honour identified three possible mental states that required consideration at the time when after it was found that the intended to perform the act giving rise to the civil liability: intention, recklessness and negligence. As to the latter two mental states, his Honour questioned whether recklessness could be sufficient to satisfy the second limb of the provision, even where the conduct amounted to an intentional tort (like a battery); as well as saying that a battery (or assault) which involved merely negligent conduct would not engage the provision (at [117]-[118]).

83. Earlier in the reasons for judgment, Leeming JA held (at [86]) that a finding at first instance that the defendant had, in that case, recklessly injured the plaintiff was of such seriousness as to attract the operation of s 140(2) of the Evidence Act 1995 (NSW). That reasoning must apply, all the more so, where it is contended that a defendant intended to cause injury by the intended act.

84. In Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316 McColl JA [8] held (at [119]) that the onus of proof was on the plaintiff to establish that s 3B(1)(a) applied.

    8. Her Honour ultimately dissented in the result, but not on this statement of principle.

85. In my view, there can be no doubt that the first limb of s 3B(1)(a) is satisfied here: however one would characterise the mode of the second defendant’s tackle upon the plaintiff, or its legality, he meant to tackle the plaintiff and, in particular, he meant to bring the plaintiff to ground by the use of physical force. The second defendant concedes, properly in my view, that this limb is established.

86. It is the second limb which is contentious: Mr Ryan opined that the tackle contest in a sport like Rugby League necessarily involves the tackler intending to exert force in a fashion intended to result in at least a ‘minor’ injury: in the words of Mr Ryan, ‘to cause a hard and bruising impact with the ground which will hurt and discourage the attacker’. Viewed in this way, the tackler’s intended injury upon the ball carrier may be seen as having both a physical dimension (hurting, or bruising the ball carrier through ‘severe bodily impact’) and a mental dimension (‘reducing the attacker’s energies, enthusiasm and confidence’).

87. If this evidence was true, I agree with the submission advanced by the defendants that prima facie, every tackle in Rugby League involving some level of carelessness of the tackler(s) would satisfy both limbs s 3B(1)(a) in the unfortunate event that the ball carrier was injured. But if that was so, it raises the question whether every injury associated with a sport like rugby league (or other football codes, such as rugby union or Australian Rules Football) or other contact sports like boxing or wrestling could ever expose the participant who exerts physical force against another could be exposed to the commission of a tort (of negligence or a negligent battery) that would fall outside the purview of the Civil Liability Act. For contact sports like the above, the conduct is engaged in lawful recreational activities. At its most elite level, the marketing and advertising of the game of Rugby League emphasises, if not celebrates, the physicality, if not (to some) brutality, of some of the tackles. But the sport is simultaneously extolled as having general health benefits for its participants [9] and assuredly plays a vitally important role in contributing to community and social life. It seems to me a surprising result that Parliament could have intended that the Civil Liability Act (intended to encourage ‘personal responsibility’) would operate in such fashion that the question of whether a Rugby League player could be sued in a way that would exclude the Act, for tackling another player, who is injured as a result of the tackle because of some level of carelessness (actionable in negligence or in battery), would depend upon the extent of the injury to the tackled player. That does not seem to me to represent a principled position; but would rather bring about capricious results. I am not convinced by the argument advanced by Mr Gross QC that it will not matter since a plaintiff’s decision to sue would practicably only be founded upon a serious injury.

    9. I do not overlook the recent and (very likely) on-going debate about the incidence of concussion in the football codes

88. It would also, in my view, act as a significant encroachment upon the provisions of Part 1A, Division 4 of the Civil Liability Act, specifically devoted to dangerous recreational activities; one species of which is playing sport. That is also, paradoxically, counter to the policy articulated by the plaintiff (to support his case in negligence) from cases such as Woods v Multi- Sport Holdings Pty Ltd (2002) 208 CLR 460 that “The law of negligence applies in the sporting arena with the same force and effect as it does in the factory and on the roadway” (per McHugh J at [79]).

The precedential status of McCracken

89. The plaintiff says I should follow the precedent of the decision of McCracken [10] at first instance. He says I should follow what the trial judge said in McCracken. The decision in McCracken at first instance did indeed involve similar circumstances as this case, in terms of the mode of and execution of a spear tackle on a player. It was also a case in which the cause of action pleaded was negligence (and not trespass to the person). With respect, much of the analysis of Hulme J (particularly from [18]-[36]) did not, however, clearly identify whether the findings related to the first limb of s 3B(1)(a) or the second limb, or both. Further, it was not clear whether they were directed to findings of a breach of duty of care, or intention to injure, or both. For present purposes, the factors which appeared to lead Hulme J to conclude that the two tacklers in that case intended to injure (for the purposes of the second limb of s 3B(1)(a)) Mr McCracken were:

    10. McCracken (NSWSC)

• an admission by both tacklers that they intended to put Mr McCracken hard on the ground;

• an admission by one of the two tacklers that he intended to so some ‘minor’ injury by driving Mr McCracken to the ground vigorously;

• another admission, by the same tackler that by placing Mr McCracken in the dangerous position he was in, the latter was likely to land on the ground and suffer an injury;

• the guilty pleas to the charges of making a dangerous throw (by both tacklers);

• the conduct that occurred was not a normal incident of the game;

• ‘lifting’ tackles are far removed from what is needed to prevent forward movement as to be unjustified;

• Mr Ryan’s expert evidence, amongst other things, as to how coaches train their players to tackle; and

• It was enough that ‘some’ injury was intended by the tacklers.

90. As to the last of these matters, it has been said elsewhere that it is not necessary that the defendant intended to cause the actual injury eventually suffered by the plaintiff – it is sufficient that the defendant intended to cause “some” injury[11] . “Injury”, of course, is not defined for the purposes of s 3B. A definition of ‘personal injury’ appears in Part 1A (s 5) [12] , but that Part will not apply if s 3B is engaged. Nevertheless, in State of New South Wales v Ibbett (2005) 65 NSWLR 168, it was determined that injury was to be defined by its ordinary and natural meaning, which would encompass ‘personal injury’ and be broad enough to also include ‘stress and anxiety’. It is not a high bar.

    11. Fuz v Carter [2006] NSWSC 771 at [56]-[59]

    12. Which, at its broadest, extended to any ‘impairment’ of a person’s physical or mental condition’

91. There were some obvious factual differences with the facts in McCracken. First, in McCracken, the injury occurred during a game in the NRL Premiership season, involving professional elite players. There were two tacklers in that case; not three, as here. Further, in McCracken, the spear tackle produced what might be viewed as the natural and probable consequence of a spear tackle – spinal damage to the ball carrier caused by the force applied to the ball carrier’s neck after its impact on the ground. In this case, there was no damage to Mr Dickson’s neck. The damage was caused when, in the course of completing what may be accepted was a dangerous throw, or spear tackle, the second defendant (by his left shoulder) fell upon the plaintiff’s face, with specific impact on the nose and under the plaintiff’s eyes. A tackler falling on a ball carrier’s face, although contrary to the laws of the game (Section 15(1)(b)) and although amounting to misconduct and foul play, could occur in any tackle; and not just as a result of the execution of a spear tackle. I am not convinced that the natural and probable consequences of a spear tackle include a part of the tackler’s body falling upon the ball carrier’s face.

92. In the video recording of the game itself, as noted earlier, I observed that prior to the incident, a tackler had fallen upon a ball carrier who was already lying on the ground (and therefore in a vulnerable position). The evidence before me suggests that tacklers are commonly trained to fall on a ball carrier lying on the ground; most often with the intention to prevent the ball carrier progressing forward again; or passing the ball; and, probably, also, for the purpose of delaying the re-alignment of the attacking line. In falling upon a tackler, the Laws of the Game make provision for the tackler to exercise some care: another definition of Player Misconduct (and ‘foul play’) is where a part of the tackler’s body connects with the ball carrier’s head (Section 15(1)(b) of the Laws of the Game). But sometimes (as in the incident I observed) the tackler might misjudge the question whether the ball carrier is in a position to advance at all; and sometimes the tackler who proposes to go to ground might not even see the location of the ball carrier’s head prior to the completion of the tackle. These and other circumstances might explain why a tackler might easily misjudge the situation and fall upon the ball carrier who has been grounded. In the event that the tackler does strike the head of the ball carrier, it could be said that the tackler had unnecessarily inflicted force upon the head of a vulnerable ball carrier.

93. But there are two points that lead me to consider that I am not bound by the decision at first instance in McCracken. First, the Court of Appeal itself indicated that in circumstances where the question of liability was to be determined in accordance with Victorian law, it was “irrelevant and unnecessary” for the trial judge to consider whether or the actions of the two tacklers in that case fell within the concept of ‘intentional (act) done with the intention of harm’ in s 3B(1)(a) [13] .

    13. McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353 (“McCracken (NSWCA)” per Ipp JA at [27]-[28] (with whom Beazley and Basten JJA agreed)

94. Secondly, and in another way of saying the same thing, the case was ultimately determined (partly for procedural reasons) by the Court of Appeal only on the basis whether the action in negligence was made out: not on the basis of whether an intentional act was committed with the intention to cause injury[14] . At first instance, the factual findings made led to a primary finding of negligence (at [37] of his Honour’s reasons for judgment); but his Honour also relied upon them to make the finding of an intention to injure Mr McCracken. So at most, what was said about s 3B(1)(a) was obiter.

    14. Ibid at [29]

95. For these reasons, I do not, with respect, consider myself bound to apply the views of the trial judge in McCracken and further, whilst the views of the trial judge in McCracken should be given due respect, I do not consider myself constrained to follow them if I consider that they are wrong and certainly not where there are factual matters in this case that render the decision distinguishable in the circumstances of this case.

What is meant by ‘intent’ to injure?

96. In his treatment of the topic in his text, Annotated Civil Liability Act 2002 (NSW) (3rd ed), Mr Villa SC referred (at [1.3B.030]) to the doctrine in American law of ‘substantial certainty’ in civil cases of battery: whereby the defendant’s intention is a question of fact to be determined not only having regard to the defendant’s subjective state of mind but also by reference to objective facts from which it may be inferred that contact was intended. This is, as I have noted above, consistent with what Leeming JA said in Croucher (at [104]). This, Mr Villa noted, is consistent with the presumption in tort law that a defendant intends the natural and probable consequence of his acts. In this regard, Mr Villa cited, amongst other authorities for this maxim, the High Court’s decision, and specifically the observations of Gummow J (with whom Gleeson CJ agreed, in this respect) in Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388. However, the reference to the maxim of wrongdoers being presumed to intend the natural and probable consequences of their actions was made in the context of classically ‘intentional torts’ (in that case, the tort of injurious falsehood)[15] . It was not obvious that their Honours were applying the maxim to the tort of negligence, or (negligent) battery.

    15. Palmer Bruyn was applied in another case of an intentional tort (trespass to land) in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333

125. In the same case, Kitto J said (at 389):

“in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of the war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff’s injury. That does not necessarily mean the compliance of that conduct with the rules, and conventions or customs (if there are any) by which the correctness of conduct the purpose of the carrying on of the activity it as an organised affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff’s injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though the infringed the ‘rules of the game’. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness, but it is only one, and it may be of much more little or even no weight in the circumstances.”

126. These passages was cited by the English Court of Appeal in Condon v Basi [1985] 1 WLR 866, in holding as liable a footballer, in a competitive game of soccer, for causing the serious leg injury to another as a result of a foul tackle, on either one of two bases: the tackler’s absence of due care, or, more relevantly (for present purposes) acting in a way in which the injured player could not have been expected to consent to (at 878E).

127. Sir John Donaldson MR preferred the views of Kitto J. So too did the Court of Appeal in Johnstonv Frazer (1990) 21 NSWLR 89 (per Priestley JA, with whom Clarke JA and Hope AJA agreed) at 93-94.

128. In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, observations were made by members of the High Court as to the reach of the law of negligence to a dangerous recreational activity such as a body contact sport. At [79], McHugh J said that:

“Sporting arenas are not where the common law does not run. The law of negligence applies in the sporting arena with the same force and effect as it does in the factory and on the roadway.”

Kirby J [21] said (at [101]:

“.. Sporting activities do not occur in a law-free zone. Simply because people participate in sporting events ... they are not cast beyond the pale of the law’s protection.”

21. McHugh J and Kirby J were both in the minority, in the outcome, but that outcome turned on the factual question of whether the duty of care was breached

Scope of duty

129. More specifically, with reference to the significance of the rules of a game, in Woods, Kirby J said (at [103]-[105]):

“.. Reference to the rules of the particular game makes it necessary to clarify the significance of such rules for the law of tort. Ordinarily, a participant in a sporting match will be taken to agree that it will be conducted in accordance with any rules governing such activities that are either universally accepted or accepted by the particular players.

To talk of sporting activities as if they inevitably import physical harm to which the law is indifferent is to ignore the contemporary attempts to reduce unnecessary and excessive damage to players ... There will remain some inescapable risks in sport, as in most human activity. But the Lord is not necessarily accept the rules or practices of sporting bodies as setting the law’s standard of reasonable care.

… The law, and specifically the law of negligence, promotes a greater consciousness of the need for safety, accident prevention and the avoidance of needless or excessive injury in sport. In doing so, it promotes the true values of sport rather than the brutal and excessive features that debase sport, leaving victims and their families to pick up the pieces over many years, long after the watching crowd’s cheering has subsided.”

130. Professor Luntz once wrote[22] that:

“There is no doubt that players may owe each other a duty of care; sport is not like a war.

It is submitted that in negligence as in trespass, compliance with the rules of a regular game such as … football will carry considerable weight in favour of the defendant and that breach of those rules not designed for the protection of the players will carry little weight one way or the other. Breach of the ‘safety’ rules may amount to negligence in the circumstances, but will not be conclusive. It will all depend on whether the defendant has fallen below the standard of the reasonable competitor”

These statements were adopted as correct in Finlay J’s decision in Frazer v Johnston (1980) Aust Torts Rep 80-248. The appeal from Finlay J’s decision was dismissed. I agree with them.

22. “Compensation for Injuries to Sport” (1980) 54 ALJ 588 at 590

131. More recently, it has been reaffirmed suggest that the rules, or laws of the game, are not conclusive of the content of the duty. In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, Kirby J said (at [102]) that:

“.. When, in respect of a game of sport, the question arises as to the scope of the duty owed to participants... the answer necessarily depends, upon all of the circumstances. Relevant circumstances include such matters as the age and experience of the claimant, the formal or informal character of the game on the occasion in question, whether there was any commercial element in its conduct and in the participation of the claimant, the rules and recognised practices of the sport and whether those rules were observed or breached in the particular case.”

132. I consider that these observations are apt in this case, and that although the laws of the game are not determinative, where the particular ‘law’, or rule of the game which has been breached is intended to provide for player safety, as Section 15(1)(d) plainly does, then it is a clear marker of the scope of the duty.

133. In my view, it is sufficient for present purposes to hold that the second defendant agreed (and if not, was taken to have agreed) that his participation in the game was to be conditioned upon those with whom he came into contact playing in accordance with the laws of the game. That included laws identifying, as a species of misconduct and foul play, dangerous throws. I note also that the game in question was played between grown men, in a competitive context where the playing level was relatively high (if not necessarily at the elite level of the NRL competition). Although the risks of physical harm are generally accentuated, I do not see that as a decisive matter: the risk of injury from a dangerous throw may or may not be more accentuated in a game of NRL than it is in any other competitive game played by adults.

134. I accept the plaintiff’s submission that the second defendant owed a duty to the plaintiff exercise reasonable care for the safety by not unreasonably exposing him to the risk of injury in the course of making a dangerous tackle proscribed by the laws of the game. I have omitted the word ‘unnecessarily’ as that term appears too vague and subjective.

Breach of duty

135. I did not understand Counsel for the defendants to seriously dispute that the tackle not only constituted misconduct (and ‘foul play’, within the laws of the game, but also constituted an absence of reasonable care. He accepted that in affecting the tackle, the second defendant had admitted that he had lost control. What followed was a manifestation of that loss of control.

136. In Wyong Shire Council v Shirt (1980) 146 CLR 40, the High Court held that a person cannot be liable for failing to take precautions against a risk that might be regarded as far-fetched or fanciful, even if it was foreseeable. The task for the Court is to identify the reasonable person’s response to foresight of the risk of occurrence of injury. That must be viewed prospectively[23] . The plaintiff must show that the defendant did not act reasonably in failing to take that reasonable response[24] . It is not necessary for the plaintiff to show the precise manner in which the plaintiff sustained his injuries was reasonably foreseeable[25] .

     23. Vairy v Wyong Shire Council (2005) 223 CLR 422

     24. Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317

     25. Chapman v Hearse (1961) 106 CLR 112

‘Foreseeable risk’

137. On the issue of breach, I primarily rely upon my own observations of the video recording. I lost count of the number of times that the video recording was played during the trial. Versions of it (in real time and slow motion) were put to all of the plaintiff, the second defendant and Mr Ryan, when they gave evidence (in the case of the players, to refresh their recollections of what had occurred in the tackle).

138. Those observations are fortified by the views of Mr Ryan, which I accept, that:

“… in executing the tackle, (the second defendant) used a tackling method which would be regarded by virtually all Rugby League coaches, adult players and experienced observers of the game as unreasonably dangerous and which (the second defendant) could and should have avoided.

At this stage when the plaintiff was being lifted by (the second defendant), this threw the plaintiff’s legs upwards, sending the plaintiff into a spin which rotated and eventually inverted his body so that his downward dissent would be head first. These actions as depicted on the video footage constituted unreasonably dangerous play for this reason.”

139. I note that no coach, or other expert, was called on the second defendant’s behalf to challenge Mr Ryan’s opinions based upon the video footage. I am satisfied that Mr Ryan was qualified to express those views, not only as a coach, but also as a long-standing commentator and analyst of the game. I agree with them.

140. But, if necessary, I think the subject tackle can be broken down further to demonstrate the foreseeable risk to which the tackle gave rise.

141. The first (and most important) is that the second defendant’s tackling technique involved him lifting the ball carrier’s leg. The second and third factors were linked. This is where, as the second defendant described it, the lifting of the plaintiff’s leg did not achieve its intended outcome of causing the plaintiff to lose balance to such degree as to fall to the ground. The second factor arose from the second defendant causing the plaintiff’s other leg to be lifted off the ground (whether or not he actually intended this). At this point, the plaintiff was already placed in a vulnerable position. The third factor was that notwithstanding the vulnerable position in which he had placed the plaintiff by lifting him, the second defendant felt impelled to bring the plaintiff to the ground. To do that, necessarily, meant that the plaintiff’s legs were lifted above the imaginary horizontal line. Once that happened, it was, I consider, inevitable, that on the assumption that the second defendant would proceed to bring the plaintiff forcefully to the ground, the plaintiff would contact the ground either on the head, or the back of the neck or at least a shoulder. The fourth factor, following the third, was that the second defendant had lost control: from a vertical position, he held the plaintiff above him. To get the plaintiff to ground, he had to lift his right elbow to its highest extreme. In attempting to get the plaintiff to ground he inadvertently allowed part of his body (his shoulder) fell on the plaintiff’s face when the second defendant fell to the ground to complete the tackle.

142. In the Court of Appeal’s decision in McCracken, the Court [26] rejected the arguments advanced on behalf of the tacklers, in that case, that, having regard to the speed of the game, the time available for decision-making and the fact that hard tackling was an accepted incident the game, meant that there was no negligence on the part of the tacklers. I see no reason why those observations would not apply in this case as well.

     26. McCracken (NSWCA) [2007] at [15]

143. I am comfortably satisfied that the second defendant’s tackling technique, when applied to his tackle upon the plaintiff gave rise to the foreseeable risk of causing injury to the plaintiff’s head.

‘Reasonable precautions’

144. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44, Mason J said that once it is determined that a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff, it is for the tribunal of fact to determine what the reasonable man would do by way of response: “the perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”

145. If it was not unreasonable to lift the plaintiff by one leg, it most assuredly was to lift both and in such in a way that one or both legs were lifted above the imaginary horizontal line; since that would generate the likely outcome that the first contact that the plaintiff had with the ground was with his head or neck. Having lifted the plaintiff and inherently placing him in a vulnerable position through the tackle, I have no doubt that physical injury to the plaintiff would occur if the second defendant had failed to take care; and that such physical injury was likely to be extremely serious, involving a head injury.

146. It is not uncommon, in rugby league or rugby union, for players to be in contact with opposing players when their opponents have both legs in the air. An obvious example is a high kick made, as an attacking move, near a defendant’s goal line. In such case, there is very often a contest to catch the ball. But whilst an ‘attacking’ player is entitled to leap to contest the catch, there are laws against him or her interfering against the defending player shaping to catch the ball with his or her feet off the ground. The same situation arises, in a rugby union game, in a lineout contest. In these scenarios, there are strong sanctions attached if, when the defending catching player is in the air, s/he is touched in any way.

147. Closer to the present context, if a tackler has been responsible for lifting a ball carrier off the ground, the reasonable – and obvious - precaution is to ensure that the ball carrier’s feet are both placed back on the ground, before resuming the tackle contest. Not to do so would, as here, invite the laws of physics: that is, it would mean that the lifted ball carrier’s trajectory towards the ground will be quicker and assuredly more forceful than if the carrier’s feet were on the ground. That means, in practical terms, that whilst the plaintiff had both feet in the air, the second defendant was not entitled to resume to drive him to the ground (whether the plaintiff’s legs had passed the imaginary horizontal line or not). The need to take precautions is even greater where the ball carrier’s leg (or legs) is 'above the horizontal,' since that is likely to produce the result that the carrier’s head becomes closer to the ground and, if the tackle continues, carries the increased risk that the head will directly contact the ground.

148. It was the second defendant’s decision to drive the plaintiff, whose legs were lifted above the ground, to the ground, without ensuring that both of his feet were first back on the ground which, in my opinion, merits the epithet that Ipp JA used in the McCracken case, of a ‘gross’ departure from the standard of reasonable care. This is because the second defendant considered it was more important to gain a tactical advantage (placing the plaintiff on the ground in a particular position) then responding in a way to safeguard the plaintiff’s safety after the second defendant’s tackling technique had produced the dangerous situation. The plaintiff’s safety was entirely subordinated to the second defendant’s perception of a tactical advantage for his team.

149. There was no ‘burden’, in taking those precautions here, in the second defendant ensuring that the plaintiff’s feet were on the ground. At this point, the second defendant had been joined by two other teammates. Once the plaintiff had both of his feet placed back on the ground, if he sought to advance further (which might be doubted), he would have had to have done so from a standing start and would have had his progress checked by three defenders; not one.

150. I recognise that participating in a body contact sport such as rugby league has social activity[27] . But as Tobias JA said Wilson v Nilepac Pty Ltd [2011] NSWCA 63, what is in issue is the social utility of the action that created the risk of harm. That activity, in this context, was not the playing the game of rugby league itself, but subjecting a ball carrier to a ‘leg hook’ tackle involving the lifting of one leg which might, as here, precipitate a spear throw tackle. There was no utility in engaging in foul play.

     27. Agar v Hyde (2000) 201 CLR 552

151. There were not many alternative courses of conduct to avert the risk of harm, that the second defendant could have considered after he began to execute his ‘leg hook’ tackle (other than ensuring his feet were placed on the ground). Of course, the reasonable thing for him to have done would have been not to apply his ‘leg hook’ technique at all – that is, not to lift a leg of the ball-carrier off the ground. But once he placed the plaintiff in a vulnerable position once lifted, the proper alternative course to driving him to the ground was to ensure that the plaintiff’s legs were both placed back on the ground and avoid the risk that his head, neck or shoulder would strike the ground first.

152. Finally, there was the second defendant’s guilty plea. By pleading guilty to a charge of a dangerous throw, the definition of that term (which deemed the tackle to be a dangerous throw unless, with the exercise of reasonable care, the dangerous position could not have been avoided) in my view constitutes an admission by the second defendant that he did not exercise reasonable care.

153. I am comfortably satisfied that the second defendant breached his duty of care.

Causation

154. In the common law, the question of whether an event is to be regarded as a cause of particular harm, for legal purposes, is a question of fact, to be resolved as a matter of common sense and experience[28] , commonly, but not exclusively, as that by the application of the ‘but for’ test. Under general law, the plaintiff carries the onus of proof of causation[29] .

     28. March v E & M Stramare Pty Ltd (1991) 171 CLR 506 at 515, 522-523

     29. Eg Chappel v Hart (1998) 195 CLR 232 per McHugh J at [27]

155. I am comfortably satisfied that but for the second defendant’s deployment of his tackle technique, involving the lifting of at least one leg, and thereafter driving the plaintiff to the ground with his head pointing to the ground, the plaintiff would not have suffered an injury to the head.

156. I do not consider that it is necessary to consider the causal responsibility, if any, of the two other tacklers (the ‘A’ and ‘B’ defenders) who, put in a very general way, may be said to have ‘assisted’ second defendant to complete the tackle.

157. Mr Smith, somewhat obliquely, questioned the involvement of the two other players, but whatever the extent of that involvement, in my view, having seen the incident, if they had any contact with the plaintiff at all, it was peripheral. I agree with Mr Ryan’s evidence and Mr Gross QC’ submission that no real force was exerted by either. I further reject the defendants’ submission that the extent of the other players’ involvement was not sufficiently apparent from the video footage: although this was not perfect, to the point where the plaintiff was headed to the ground after being lifted by the second defendant, observations could clearly be made about what the other tacklers did.

154. The second defendant did not attribute any serious involvement by these other players in causing the harm. It was the second defendant who instigated and was responsible for the tackle and its outcome. It could not be said that the involvement of these other players, singularly or in combination, broke any causal nexus between the second defendant’s negligence and the plaintiff’s injury.

155. In the circumstances, it is not necessary to consider whether any Jones v Dunkel inference should be drawn against either party as a result of Messrs Oliveri and Hayes not giving evidence. The defendants did not positively plead that their contributions affected a severing of the causal nexus between the second defendant’s negligence and the plaintiff’s injury; nor did they bring any contribution claim against those players. The plaintiff did not plead anything about their involvement. The reference to their involvement appeared to have arisen for the first time from the evidence of Mr Ryan, perhaps in anticipation of what the defendants might say, and, although his evidence was not objected to, I could not see what relevance it had to the issues for my determination.

156. Nevertheless, whatever be the contributing role, if any of these two other tacklers to the plaintiff’s injury, in my opinion, it remains the position that the injury would not have occurred but for the second defendant’s conduct.

157. Causation would have been made out.

Contributory negligence

162. The defendants pleaded this defence. The particulars contended that the plaintiff failed to take reasonable steps to protect himself by failing to release the ball and failing to use his arms to avoid landing on his shoulder.

163. These matters were not put to the Plaintiff. At any rate, in the dangerous, disorienting and disconcerting position that he had been placed in by the second defendant, there is no merit to this defence.

164. This defence would have failed.

Voluntary Assumption of Risk

165. Under general law, the defendants would have to prove that the plaintiff freely and voluntary, and with full knowledge of the nature and extent of the risk, impliedly agreed to incur it[30] . It is necessary for the defendants to establish that the plaintiff (a) appreciated and (b) voluntarily agreed to accept the risk that he would suffer a head injury arising from the second defendant’s execution of a spear tackle[31] . There is a distinction between awareness of a danger, but not full comprehension of its extent or where, taking an ordinary and reasonable course, the plaintiff had not adequate opportunity to elect whether to accept the risk or not[32] .

     30. Imbree v McNeilly (2008) 236 CLR 510 at [81]

     31. Roggenkamp v Bennett (1950) 80 CLR 292 at 300

     32. Roggenkamp v Bennett (1950) 80 CLR 292 at 300

166. In Agar v Hyde (2000) 201 CLR 552, Gleeson CJ said (at [14]):

“Voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of the duty in any other participant or in any person in any way involved in or connected with the activity[33] . That, however is not to deny the significance of voluntary participation in determining the existence and content, in a given case, or category of cases, of an asserted duty of care.”

33. His Honour cited Rootes v Shelton (1967) 116 CLR 383 as authority for this particular proposition

167. Professor Fleming also said that participation in a dangerous activity (which is an appropriate classification for playing rugby league) does not involve the assumption of the risk of all acts of negligence committed in the course of the activity [34] .

     34. Fleming’s The Law of Torts (10th ed) pp 338-339

168. I would also add that, although it is not necessary to decide, there is much force to the submission of Mr Gross QC that the risk-taking aspects of rugby league are best accommodated within the tort of negligence, at the breach stage, by judging what is reasonable conduct in the circumstances of the sport, rather than by limiting the breadth of the duty or resorting to the defence of voluntary assumption or risk.

169. In Canterbury Municipal Council v Taylor [2002] NSWCA 24 the Court of Appeal distinguished awareness of a risk from a belief that the risk would not materialise. This was in a context of a cyclist’s injury in a sporting complex where the bike track adjoined a football field where some touch football was played. It was determined that although the cyclist knew, or should have known, that there was a risk of injury from a touch football player carelessly getting onto the cyclist’s path, the cyclist’s belief that such danger would not materialise negatived the proposition that he accepted the risk [35] .

     35. per Ipp AJA (with whom Spigelman CJ and Matthews AJA agreed) at [146]-[147]

170. The particulars that were pleaded for this defence were that:

1. The plaintiff knew that in playing the game of Rugby League, there was an inherent risk and danger of suffering injury;

2. The Plaintiff voluntarily participated in the game of Rugby League; and

3. The Plaintiff allowed himself to participate in the tackling of other players and allowing other players to tackle him when he played the game of Rugby League

171. In my view, even if these matters were made out, they would not suffice to establish the volens defence. What is not pleaded is that the plaintiff was aware of and voluntarily agreed to accept that he would suffer a head injury from a spear tackle. None of the concessions referred to in paragraph 18, above, get the defendants to their desired destination: that the plaintiff voluntarily agreed to accept the risk that he would suffer a head injury from a tackler effectuating a spear tackle on him. It was not put to the plaintiff that he did not believe that the danger would materialise.

172. Further, in my view, such concessions as were elicited were substantially diluted by the circumstance that all players (including both the plaintiff and the second defendant) in this competition entered into playing agreements with their clubs, through which they agreed to be bound by the laws of the game, including prohibitions against misconduct (and, specifically, foul play). I did not understand the plaintiff to admit that he voluntarily agreed to suffer a head injury as a result of an opponent’s misconduct and foul play.

173. This defence would have failed.

Consent

174. Although I have treated the plaintiff’s case as being pleaded in negligence only; and not trespass to the person, lest I am wrong, it is also appropriate to say something briefly about the defence of consent for trespass to the person.

175. Counsel for the defendants said the onus was upon the plaintiff to negative consent. He relied upon the view expressed, generally to that effect, by Leeming JA in White v Johnston [2015] NSWCA 18 at [130]. Counsel fairly qualified his submission by indicating that this view of his Honour appeared, with respect, contrary to the views expressed by McHugh J in Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218 at 310-311[36]. It was also contrary to Basten J’s view in Dean v Phung [2012] NSWCA 223 at [64]. Leeming JA expressed his views in the particular context where consent was said to be vitiated by fraud and expressly qualified his view in having any broader application as being ‘preliminary’ only (without the benefit of full argument). If it was necessary to determine, I would hold that the onus of negativing consent was upon the Second Defendant. (I interpolate that the arguably unsettled state of the law in this regard is further reason, or fortification for my view, that, subject to the s 3B question, it would only necessary for me to consider the defence of volenti in the action for negligence.)

     36. See also McHale v Watson (1964) 111 CLR 384 per Windeyer J at 388 and Fleming’s Law of Torts (10th ed) [5.30], p 90

176. Had the action been run in the intentional torts of battery or assault, and the defendant relied upon ‘consent’ as a defence, the plaintiff would have been in a position to say that his consent to playing in a violent body contact sport was exceeded by the defendant’s resort to deliberate foul play[37] . Another very similar way of putting that is that the plaintiff’s consent extended only to commonly encountered infringements [38] , or, as a variation, does not extend to physical contacts prohibited by rules designed to protect the safety of players [39] . Earlier in these reasons (at paragraph [118]), I referred to the Supreme Court of the ACT’s decision in Re Lenfeld. There it was found that the injured player had not consented to conduct by a tackler (even in an informal game) amounting to an infringement of a rule of the game involving a dangerous tackle. Professor Yeo regarded this decision as falling into the category of case of no consent where there was an infringement of a rule designed to protect players [40] .

     37. Fleming’s The Law of Torts (10th ed) [5.40] p 91, fn 30, citing McNamara v Duncan (1971) 26 ALR 584

     38. S Yeo, ‘Determining consent in body contact sports’ (1998) Torts Law Rev 199 at 206-7

     39. The Restatement of the Law of Torts (2nd), section 50, comment b, cited in McNamara v Duncan at 589

     40. Yeo, at 211-12 & 216

177. If, contrary to what my view of what the plaintiff’s pleading permits, an action for trespass to the person was available, the second defendant would not have succeeded with the ‘defence’ of consent.

SUMMARY & ORDERS

178. In the circumstances, the plaintiff’s claim against the second defendant solely based as it is under the Common Law is rejected. Although I separated the issue of the first defendant’s vicarious liability in a way which had the effect that the only matter for me to determine was the second defendant’s liability, by reason of the findings I have made, I see no reason why I should not also reject the claim against the first defendant. But if the plaintiff wishes to contend to the contrary, he may exercise the liberty to apply that I have granted below.

179. The orders I make are as follows:

1. There is to be Verdicts and Judgments for the Defendants.

2. The plaintiff is to pay the Defendants’ costs.

3. Liberty to apply on 7 days’ notice.

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Endnotes

Amendments

23 August 2019 - [23] Correcting typo error.

[26] Replacing 'of' with 'off'.

[54] Deleted 'Should be considered'.

[141] adding quotation marks.

[163] Deleted 'and'.

Decision last updated: 23 August 2019