NSW Court of Appeal spear tackles intentional torts
Originally Published by Peter Ford and Demi McGowan on Thursday, December 3, 2020 9:34:32 AM
The NSW Court of Appeal has considered the playing field of s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (CLA) and confirmed that recklessness is insufficient to meet the threshold which requires subjective intent to cause injury.
Author: Demi McGowan
Judgment date: 18 November 2020
Citation: Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294
Jurisdiction: NSW Court of Appeal
Mr Dickson (the plaintiff) sustained significant head injuries when he was subjected to a spear tackle by Mr Fletcher during a rugby league game. The plaintiff commenced proceedings in the District Court of NSW against Mr Fletcher and also North Lakes Rugby League Sport & Recreation Club Inc (the Club) alleging that the Club was vicariously liable.
Notwithstanding Mr Fletcher conceded that the spear tackle was an intentional act, the primary judge found that the plaintiff failed to establish that Mr Fletcher intended to cause injury.
The plaintiff appealed against the fundamental finding that Mr Fletcher had not been shown to have acted with intent to cause injury. The question the Court of Appeal had to answer was whether Mr Fletcher intended to cause injury and therefore, whether the operation of the CLA was excluded by reason of s 3B(1)(a).
If s 3B(1)(a) was applicable, the relevant provisions of the CLA including the obvious risk of a dangerous recreational activity defence under s 5L would not be available to Mr Fletcher and the Club.
The Court of Appeal upheld the primary judge's decision that Mr Fletcher did not intend the injury sustained by the plaintiff. Although evidence established that Mr Fletcher acted recklessly, the Justices of the Court of Appeal, in separate judgments, all found that recklessness was not sufficient to establish intent to injure.
Usefully, her Honour Simpson AJA held that intent to cause injury “means, at least, "actual, subjective"… ["formulated] intention", to which the defendant has turned his or her mind. It does not include recklessness. It does not include imputed or presumed intention.” 1
The decision adds clarity to the construction of s 3B(1)(a) of the CLA with the intent to cause injury being an actual subjective intent. Recklessness is insufficient.
If intent to cause injury in s 3B(1)(a) has a lower threshold such as recklessness or presumed intention, many sports or other recreational activities to which the CLA is clearly designed to apply would not be afforded the protection of s 5L.
1 [186]
Author: Demi McGowan
Judgment date: 18 November 2020
Citation: Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294
Jurisdiction: NSW Court of Appeal
Principles
- Section 3B(1)(a) of the CLA is a two-limbed test. The first limb requires that the person does an intentional act. The second limb requires actual, subjective and formulated intention, that an act is done with the intent to cause injury or death.
- If proved by the plaintiff, s 3B(1)(a) of the CLA provides an exclusion of the operation of the CLA and therefore, the operation of the statutory defences.
- The Court has confirmed that recklessness is insufficient to meet the threshold that a person intended to cause injury.
Background
Mr Dickson (the plaintiff) sustained significant head injuries when he was subjected to a spear tackle by Mr Fletcher during a rugby league game. The plaintiff commenced proceedings in the District Court of NSW against Mr Fletcher and also North Lakes Rugby League Sport & Recreation Club Inc (the Club) alleging that the Club was vicariously liable.
Notwithstanding Mr Fletcher conceded that the spear tackle was an intentional act, the primary judge found that the plaintiff failed to establish that Mr Fletcher intended to cause injury.
The plaintiff appealed against the fundamental finding that Mr Fletcher had not been shown to have acted with intent to cause injury. The question the Court of Appeal had to answer was whether Mr Fletcher intended to cause injury and therefore, whether the operation of the CLA was excluded by reason of s 3B(1)(a).
If s 3B(1)(a) was applicable, the relevant provisions of the CLA including the obvious risk of a dangerous recreational activity defence under s 5L would not be available to Mr Fletcher and the Club.
Decision
The Court of Appeal upheld the primary judge's decision that Mr Fletcher did not intend the injury sustained by the plaintiff. Although evidence established that Mr Fletcher acted recklessly, the Justices of the Court of Appeal, in separate judgments, all found that recklessness was not sufficient to establish intent to injure.
Usefully, her Honour Simpson AJA held that intent to cause injury “means, at least, "actual, subjective"… ["formulated] intention", to which the defendant has turned his or her mind. It does not include recklessness. It does not include imputed or presumed intention.” 1
Why this case is important
The decision adds clarity to the construction of s 3B(1)(a) of the CLA with the intent to cause injury being an actual subjective intent. Recklessness is insufficient.
If intent to cause injury in s 3B(1)(a) has a lower threshold such as recklessness or presumed intention, many sports or other recreational activities to which the CLA is clearly designed to apply would not be afforded the protection of s 5L.
1 [186]