McCracken v Melbourne Storm Rugby League Football Club and 2 Ors

[2005] NSWSC 107

CITATION:	MCCRACKEN v MELBOURNE STORM RUGBY LEAGUE FOOTBALL CLUB AND 2 ORS [2005] NSWSC 107
HEARING DATE(S):	14-22 February 2005
JUDGMENT DATE :	22 February 2005
JUDGMENT OF:	Hulme J at 1
DECISION:	See paragraph 47 and 48

CATCHWORDS:	Judgment on Liability
PARTIES:	Jarrod McCracken Melbourne Storm Rugby League Football Club Stephen Kearney Marcus Bai
FILE NUMBER(S):	SC 20071/03
COUNSEL:	Plaintiff: B Gross QC; T Boyd Defendant: ML Williams SC Defendants: RS Sheldon
SOLICITORS:	Plaintiff: Thurlow Fisher Defendant: Moray & Agnew

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
No: 20071/03
HULME J
Tuesday 22 February 2005

Jarrod McCRACKEN v MELBOURNE STORM RUGBY LEAGUE FOOTBALL CLUB LIMITED, Stephen KEARNEY AND Marcus BAI
JUDGMENT

1 HULME J: On 12 May 2000, the Plaintiff was playing rugby league football as a member of the Wests Tigers Rugby League Football Club Pty Limited first grade team against the corresponding team of the First Defendant. The Second and Third Defendants were members of the First Defendant's team and employed by the First Defendant. During the course of the game the Plaintiff, carrying the ball, was tackled by the Second and Third Defendants, struck the ground with his head and was injured. He has not played football since.

2 The Plaintiff claims damages from the Defendants contending that in the tackle, the Second and Third Defendants lifted the Plaintiff to a dangerous position, causing him to fall head first to the ground.

3 With an eye to the provisions of section 3B of the Civil Liability Act, in the Statement of Claim the Plaintiff also asserted that the actions of the Second and Third Defendants were "intentional and done with intent to cause injury, in that the Second and Third Defendants intended, during the performance of the tackle, to lift the Plaintiff and, having completed doing so, to then drive the Plaintiff forcefully into contact with the ground causing the Plaintiff's body to suffer some physical trauma and temporary non-serious soft tissue injury".

4 The hearing of the Plaintiff's claim commenced on Monday of last week. There were, for reasons which I need not go into at this stage, difficulties in obtaining or obtaining access to a number of bank and other documents thought likely to bear on the extent of the Plaintiff's economic loss claim and the prospects of success. It became apparent that the case would have to be adjourned to ensure these documents were available and in circumstances permitting proper consideration of them, but the parties agreed that in that situation it was appropriate to separate the issues of liability and damages, and submissions have proceeded today on the question of liability.

5 I think the course envisaged by the parties in this respect is appropriate, and accordingly I order that the issues of liability and damages be determined separately in the proceedings.

6 These reasons concern the topic of liability.

7 The Plaintiff gave little evidence as to the circumstances of the tackle. However, the precise circumstances of the tackle were the subject of video recording at the time. A copy of the video recording, both playing at normal and slow speed, became an exhibit, as did a series of still photographs taken from the video recording at various intervals. The recording would seem to have been effected by two cameras taking photographs from different angles.

8 The video shows that the incident happened while the Plaintiff was moving towards, and something of the order of ten metres from, the Melbourne Storm's goal line.

9 A verbal description of what otherwise is depicted on the video recording does not do it justice, but some summary is appropriate. At a very early stage of the tackle, the Plaintiff and the Third Defendant met, not exactly, but substantially front to front, the principal points of contact being appreciably above the waists of both. The forward progress of the Plaintiff was slowed. There would then seem to have been separation of the two with the Third Defendant towards the Plaintiff's right. The Second Defendant was in front of the Plaintiff but towards the Plaintiff's left, bent down. Firstly the Second Defendant, and then the Third Defendant, sought to grab hold of the Plaintiff on the lower half of his person. The Second Defendant placed his right hand between the Plaintiff's legs, the Second Defendant's fingers in contact with and extending about halfway across the front of the lower part of the Plaintiff's left thigh.

10 The Second Defendant's left-hand was in front of the Plaintiff's abdomen, and then moved so as to grip the Second Defendant's right wrist, thus encircling the Plaintiff's left thigh. The Second Defendant's left shoulder was against the Plaintiff's body, somewhat above the level of the Plaintiff's hips, although after a time the shoulder was more to the Plaintiff's rear, the Second Defendant's left upper arm being the part of the Second Defendant nearest the Plaintiff's left hip.

11 There was some criticism of the Second Defendant for putting his hand between the Plaintiff's legs, but I am not disposed to regard the criticism as justified. As an incident of running, the Plaintiff's thighs were well apart and, desirous of stopping any further forward movement of the Plaintiff's rear leg, or placing the Plaintiff off balance, it seemed to me that the Second Defendant was well justified in grabbing one thigh when, as it seems to me and may well have seemed to him at the time, he could not reach both.

12 During the course of the events just described, the Third Defendant had again made contact with the Plaintiff, the Third Defendant's right shoulder pushing against the front of the Plaintiff's hip or abdomen on the Plaintiff's right side. During or about the same time the Third Defendant moved his right hand out in front of the Plaintiff and his left hand down to the Plaintiff's lower left leg.

13 During all of this time the Plaintiff was leaning to a significant degree forward and also moving in that direction. Thereafter there was movement of the Plaintiff's body as follows: The upper half of his body came to a more or less horizontal position at about or perhaps a little above the level of the Second Defendant's waist with the bottom half of the Plaintiff's body somewhat lower and his feet off but near the ground. Then the distance between the top of his chest and head, on the one hand, and the ground, on the other, decreased while the distance between the ground and lower part of the Plaintiff's waist and lower part of his legs increased markedly.

14 For a time the level of his head seems to have remained fairly constant while that of the lower part of his head, chest and lower part of his body increased more until his head and body to his hips was upside down and close to vertical, with his legs somewhat less so. Then all moved downwards. The Plaintiff's head being the first part to strike the ground after a hand and arm.

15 During nearly all of the time taken by the above events the Second Defendant's hands and arm were around the Plaintiff's left thigh and one of the Third Defendant's hands around or lifting the Plaintiff's right leg.

16 Also during this time both of these Defendants by straightening their legs or bodies or a combination of both moved upright from bent over or much lower positions. These movements had the effect of moving those parts of the Plaintiff with which the Defendants were in contact and other adjacent parts of the Plaintiff also upward. Towards the end the Second Defendant's knees also became bent for a time and he was virtually kneeling on the ground.

17 At the time of the hearing the Second and Third Defendants were in England playing football and they gave evidence via video link. According to the Second Defendant his aim was to stop the Plaintiff's momentum and to do so by lifting one of the Plaintiff's legs off the ground. The Second Defendant said it was not his intention to lift the bottom half of the Plaintiff's body higher than the top half. He said that it was also not his intention to injure the Plaintiff and not his intention to drive the Plaintiff into the ground so as to hurt him. He said he was not aware until the tackle finished that the Third Defendant would be or was involved in the tackle and attributed the fact that the Plaintiff's head was lower than his heads or legs to the fact that Mr Bai lifted also, the Plaintiff's momentum, and an inability on the part of the Second Defendant once a certain stage was reached to correct himself or stop.

18 The Second Defendant agreed it was a normal part of rugby league tackling that you tackle a man hard and put him on the ground hard. His evidence also included the following:

Q. It was your intention to administer a powerful tackle?
A. Again it was my intention to stop his momentum.
Q. Yes, but you intended to do that by picking him up and putting him hard on the ground, that's right, is it not?
A. If you put it like that, yes."

And later:

Q. What I am putting to you is that you picked him up and were driving him into the ground so he intended to hurt himself, do you agree with that?
A. Definitely not.”

19 Mr Kearney said at the time he was 189 centimetres tall and weighed approximately 103 kilograms. The Third Defendant said he weighed 95 kilograms at the time. He agreed he had first tried to stop the Plaintiff with an unsuccessful "ball and all" tackle. He said all he could remember of the final tackle was going into the tackle, lifting the Plaintiff's right leg to get him off balance so the Third Defendant could put him on the ground and stop the Plaintiff's forward momentum. He said at the time of the tackle he didn't know if someone would be there to assist him and didn't know that another team member was assisting in the tackle. He denied an intention to injure the Plaintiff. However under cross-examination his evidence also included the following:

Q. What I suggest to you is you actually put your left hand on his right leg in order when you lifted Mr McCracken using your right shoulder it would assist in lifting Mr McCracken's right leg above the horizontal, is that right?
A. That's right.
Q. You did definitely lift Mr McCracken in the tackle, did you not?
A. I lifted his leg.
Q. I am also suggesting you lifted his lower body through the contact of your lower body and contact of your right arm, do you agree with that?
A. Yes.
Q. Put aside the play the ball you were in, you are intending to put Mr McCracken hard on the ground in the tackle, are you not?
A. That's correct.
Q. You did not intend to cause him serious injury to his head or neck, did you?
A. No.
Q. Is it the intention that you intended to do some minor injury by at least driving him to the ground vigorously?
A. Yes.

And later:

Q. Did you at some stage let go of Mr McCracken?
A. Yes.
Q. Did you in fact have hold of Mr McCracken's right leg with your left hand push up with your left hand so as to Mr McCracken's body got into a more vertical direction with his head in the ground?
A. I realised I had already lifted his right leg. Then I realised it was in the bad position. That's why I sort of let go.
Q. Is it the fact when you knew he was in a dangerous position you pushed your left hand up so it pushed Mr McCracken's left hand into the air?
A. Yes.
Q. You did not have to do that, did you?
A. No.
Q. And you knew if you did that it would mean that Mr McCracken would land on the ground and suffer some injury, is that right?
A. Yes.
Q. I may have asked you this already to a degree, but to clarify you moved from a squatting position to a fully upright position lifting Mr McCracken using your right shoulder, is that correct?
A. That's correct.
Q. You did that intentionally?
A. No.
Q. But you must have done it intentionally, is that not the case?
A. I intended to lift his right leg up, as I said before, to get him off balance in the sense of lifting his right leg.
Q. I am suggesting you are also lifting his right hip at the same time using your right shoulder so that Mr McCracken's lower half of his body went up in the air, is that correct?
A. That is correct.
Q. You did that intentionally, is that correct?
A. Yes.

20 There was also evidence in case from Mr Ryan. Mr Ryan played rugby league in first grade for a number of years and has coached first grade rugby league teams for a total of about 17 seasons until the end of 2000. He has had other involvement with the game.

21 In a report which became Exhibit E, Mr Ryan said inter alia,:

"11. Rugby League at elite levels, (i.e.First Grade in the NRL competition, or its predecessor competitions), is a fast, intense, physical contest involving heavy and often bodily collisions by defenders on attackers. Most tackles are vigorous with a view to discouraging the attacker's run of enthusiasm and confidence and disrupting the flow of the attack. Tackles are aimed at lowering the competency of the attacking players by physical attrition and the trauma of severe bodily impact in the tackle and when the tackled player hits the ground. This is how ARL and NRL coaches for many years have in my experience coached and trained their players to defend.”
"13. Players at elite levels of Rugby League will ordinarily endeavour, if possible, and are personally taught and encouraged by their coaches and trainers to make significant impact at the initial collision stage of a tackle by using timing, footwork and weight transference to accelerate into the tackle with optimum force. They are also taught by their coaches and trainers when they have caught an attacking player to put him onto the ground forcefully to cause hard and bruising impact with the ground which will hurt and discourage the attacker…”

"15. However, from my viewing of the video and stills I conclude both Kearney and Bai in executing the tackle each used unreasonably dangerous methods which would be regarded by virtually all NRL coaches and any experienced observers of the game as being unreasonably dangerous and which the players (Kearney and Bai) given their training, skill and experience could and should have avoided:”
"(a) For many years it has been widely recognised by first Grade Rugby League players, and regularly enforced by Rugby League judiciaries, coaches and trainers that a tackle on a stationary or slowed player should not be made by grabbing the player between the legs and lifting him by one leg because of the clear danger, given that the fulcrum or balancing point is well below the attacker's centre of gravity, that the player's body will pass rapidly below the horizontal to the point where there is unreasonable danger of landing on his head or neck when the tackle is completed. Kearney's actions as depicted on the video and stills clearly constituted unreasonably dangerous play for this reason.”

"(b) Bai's actions as depicted in the video constituted unreasonably dangerous play for this reason.”
"16. I coached Stephen Kearney at Western Suburbs for his first two seasons in grade football.”

(The first sentences of subparagraphs 15(a) and (b) were not admitted as evidence of the facts asserted but only as assumptions. However Mr Ryan gave somewhat similar evidence in cross examination.)

22 The opinions expressed in paragraph 15 as to the dangerousness of the tackle were based to an appreciable extent on Mr Ryan's interpretation of what is to be seen on the video. While I see no reason to reject those opinions or Mr Ryan's appreciation of what the video recording shows, as he gave it in cross-examination, and many reasons to justify their and its acceptance, I do not find it necessary to rely on these matters. There was no challenge to the evidence of Mr Ryan expressed in paragraphs 11 and 13 of Mr Ryan's report which I have quoted and which I accept.

23 Arising from the incident in which the Plaintiff was injured, the Second and Third Defendants were charged with having made a dangerous throw in that in "effecting a tackle on Wests Tigers' player Jarrod McCracken, (the Defendant) lifted him to a dangerous position causing him to fall head first to the ground". Each of the Second and Third Defendants pleaded guilty to the charge against him.

24 The charge reflected the terms of part of the Laws of the Game of the Australian Rugby League. Section 15 of those Laws provides inter alia that "a player is guilty of misconduct if he uses any dangerous throw when effecting a tackle." Dangerous throw is explained: "If in any tackle 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.”

25 Taken in cross-examination to his plea in the charge against him, the Second Defendant acknowledged that his plea was after he had seen the video and received advice from the coach and CEO of the Melbourne Storm Club and that the reason he pleaded guilty was because he accepted he was guilty.

26 In my view the video recording of the tackle whether run at normal or slow speed permits no doubt that the actions of the Second and Third Defendants, not only in tackling the Plaintiff but in lifting and upending the Plaintiff, more or less to the extent it occurred, were intentional and done with the intent that he should fall heavily onto the ground.

27 Each has said he was not aware until late of the involvement of the other in the tackle. That may well have been so at an early stage, but again the video demonstrates to my satisfaction that each must have been aware of the other long before the end of the tackle and been aware of what was happening to the Plaintiff.

28 These conclusions derive support from the evidence of Mr Ryan, but I have arrived at them without the need to rely on his evidence.

29 In reaching these conclusions I do not ignore the fact that the tackle took but seconds, there were likely to have been a number of matters in the minds of the Second and Third Defendants immediately before and during the tackle, and during a game of football is not the time for calm and reflective thought. However each was an experienced player and tackling is a normal part of the game. Incidental to tackling are matters such as where the tackler places his hands on the subject of a tackle and what is happening to various parts of the bodies of those involved. There is undoubtedly scope for truly accidental error but I am satisfied this is not an explanation for any significant part of the actions of either of the Second or Third Defendants.

30 In this connection I accept that it was legitimate for each to seek to lift the Plaintiff's leg or legs off the ground with a view to stopping his forward movement or unbalancing him. However there is a vast difference between lifting his legs from the ground and lifting them to the height - one may say unusual height that occurred here.

31 Furthermore, I have no doubt that “lifting” is a proper characterisation of what occurred. In this connection there is to be noticed particularly the actions of both Defendants in virtually standing, and in the case of the Third Defendant whose feet seem to have left the ground, jumping up and the actions of the Second Defendant in holding onto the Plaintiff's legs and moving downwards with the Plaintiff until the latter's head had hit, if indeed it had not been driven into the ground. I am also satisfied by the Second and Third Defendants’ actions generally and particularly by their leg straightening and other upward movement and the degree of lifting that the Defendants’ actions in these respects were deliberate.

32 The actions of the Second Defendant as depicted on the video are impossible to reconcile with his evidence that he simply could not correct himself in time during the course of the tackle.

33 In that regard reference may again be made to the disciplinary proceedings against the Second and Third Defendants. In my view the proper interpretation of each plea of guilty in the circumstances as they were explained in evidence is an acknowledgment by each of the Second and Third Defendants that he lifted the Plaintiff and it was not a case of the simple accidental momentum of a tackle leading to the Plaintiff being in the upside down position that he was. The pleas also indicate an acceptance on the Defendants’ part of the danger and that each of them did not exercise reasonable care.

34 On behalf of the Defendants it was submitted that the movements of the three persons involved were but normal, and to an appreciable degree unavoidable, incidents of an event involving three heavy players. I do not agree. A consideration of the video demonstrates the contrary. Similarly I do not agree that what occurred was but a normal incident in the game of rugby league.

35 In that connection there are at least three factors which stand out. One is the inherent dangerousness of a player being upside down particularly when lifted to that position. A Second is that the rules of the game both recognise the danger and prohibit the event described as a dangerous throw. A Third is that it is not necessary in preventing the forward movement of a player to deal with him as the Plaintiff was dealt with.

36 In connection with that I do not suggest some fine judgment in the middle of play is necessary. But actions of lifting as occurred in this case are so far removed from what is needed to prevent forward movement that there is in my view no justification for them.

37 Many of the matters to which I have referred lead inevitably to the conclusion that the Defendants breached the duty of care that they owed the Plaintiff. I am further satisfied that the intent of both of the Defendants in the tackle was to injure the Plaintiff. I do not by that suggest that injury of the severity that occurred was intended, but the evidence of Mr Ryan and Mr Bai quoted above satisfies me that some injury was intended by each of the Second and Third Defendants. Consideration of the nature and circumstances of the tackle as depicted in the video leads to the same conclusion.

38 The Civil Liability Act 2002 imposes limits on civil liability. Section 3(B) however provides:

"(1) the provisions of this Act do not apply to (or in respect of civil liability and awards of damages in those proceedings) as follows:
(a) civil liability in respect of an intentional act that is done with intention to cause injury or death or sexual assault or other sexual misconduct - the whole Act except Part 7 (Self Defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with an intent to cause injury or death.”

39 It was submitted on behalf of the Defendants that a consideration of the Second Reading Speech of the Premier when introducing the Bill which led to the Act indicates that this exception was designed to apply to only criminal conduct or perhaps criminal conduct and sexual misconduct. It is the fact that in his speech the Premier said:

"Importantly, intentional acts done with intent to cause injury or death or acts involving sexual assault are excluded. This exclusion ensures that the compensation for injuries arising from serious criminal acts is not limited by the Bill.”

40 There is a vast difference between that exposition of section 3(B) and the terms of the section.

41 It was suggested that I should adopt a purposive construction of the Act recognising that it was intended to impose limits on civil liability and thus should grant a narrower rather than a wider operation to section 3(B). However, the civil liability which is excepted from the general provisions of the Act by section 3(B) is defined by reference to "an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct.” By no reasonable interpretation of those words can one regard them as limited to conduct which is criminal. I would add, although I do not need to rely on it, that the reference to sexual assault would have been unnecessary if criminal conduct was the type of conduct which was excepted. In my view the words of the section should be given their ordinary English meaning.

42 A question arises: What is encompassed within the word “injury”? I do not for the purposes of this case need to decide how minor a hurt may be to come within the expression. I am satisfied, particularly from Mr Ryan's evidence and from my consideration of the video, that what was intended by the Second and Third Defendants was injury which was not so minor that it could be regarded as perhaps an inappropriate use of the term. (Again I emphasise I do not suggest, and it was not suggested on the part of the Plaintiff, that the Second and Third Defendants intended to cause injury of the seriousness which occurred.)

43 It follows from the conclusions at which I have arrived that the Plaintiff is entitled to succeed against the Second and Third Defendants. The First Defendant was, as I have said, someone who employed the Second and Third Defendants and it was not suggested that in that situation if they were liable the First Defendant was not.

44 Accordingly, the Plaintiff is entitled to succeed against the First Defendant also.

45 I direct judgment for the Plaintiff against each of the Defendants with damages to be assessed.