Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc

[2003] HCA 4 State Rail Authority of NSW v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 TCN Channel 9 Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 West v Mead [2003] NSWSC 161 Zaburoni v The Queen (2016) CLR 482; [2016] HCA 12 Texts Cited: RP Balkin and JLR Davis Law of Torts (4th ed, LexisNexis Butterworths, 2009) Category: Principal judgment Parties: Michael Leslie Dickson (Appellant) Northern Lakes Rugby League Sport & Recreation Inc (1st Respondent) Brendan Fletcher (2nd Respondent) Representation: Counsel: M Cranitch SC/M Daley (Appellant) J Sexton SC/M Best (Respondents)

Solicitors: Be Legal (Appellant) Wotton & Kearney (Respondents) File Number(s): 2019/278581 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: [2019] NSWDC 433 Date of Decision: 23 August 2019 Before: Abadee DCJ File Number(s): 2017/350448

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] In 2016 Mr Dickson was seriously injured in a rugby league match, when subjected to a spear tackle, or dangerous throw, by an opponent, Mr Fletcher. The incident was recorded on video. Mr Dickson sued Mr Fletcher for damages in tort, alleging that the injuries were caused by his negligence for whose negligence it was further asserted that North Lakes Rugby League Sport & Recreation Club Inc ("the Club") was vicariously liable. At trial Mr Fletcher conceded that the spear tackle was an intentional act. The question was whether Mr Fletcher intended to cause injury, thereby excluding the operation of the Civil Liability Act 2005 (NSW) ("the CLA") by reason of s 3B(1)(a). By s 3B(1)(a) the CLA does not apply to the civil liability of a person in respect of an intentional act done with intent to cause injury or death. The primary judge concluded that Mr Dickson had failed to establish that Mr Fletcher intended to cause injury. He accordingly entered judgment for the respondents and ordered Mr Dickson to pay their costs of the proceedings. Mr Dickson appealed against the fundamental finding that Mr Fletcher had not been shown to have acted with intent to cause injury. The question on appeal remained whether by reason of s 3B(1)(a), the operation of the CLA was excluded because Mr Fletcher intended to cause injury. The Court (Simpson AJA, Basten and White JJA agreeing) dismissed the appeal and held: Per Basten JA:

1. In the context of the CLA, the ordinary meaning of the expression "with intent to cause injury" is of a specific actual or subjective intention to achieve the consequence of injury: at [4]-[9]. RP Balkin and JLR Davis Law of Torts (4th ed, LexisNexis Butterworths, 2009), Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714.
2. "Injury" in s 3B(1)(a) of the CLA refers to the injury which has resulted in compensable loss: at [10]. It is not possible to read s 3B(1)(a) as engaged where the intent is to cause an injury which is not the subject of the claim: at [15]. The question as to whether the intentional act must be "unlawful" did need not be resolved: at [16]. Per White JA:
3. The intent to cause injury (or death) referred to in s 3B(1)(a) is an actual subjective intent: recklessness is insufficient: at [19].
4. The Court's acceptance of the primary judge's finding of fact as to the absence on the part of Mr Fletcher of an intention to injure Mr Dickson meant that it was unnecessary to express any view as to any possible implied limitations on the scope of the words "… an intentional act that is done by the person with intent to cause injury or death …" in s 3B(1)(a): at [32]. Per Simpson AJA:

Judgment

1. BASTEN JA: The appellant, Michael Leslie Dickson, was seriously injured in a rugby league match, when subjected to a dangerous throw by an opponent, Brendan Fletcher. The appellant claimed damages in tort. It was common ground, both at trial and on the appeal, that if the claim were governed by the Civil Liability Act 2002 (NSW) (the Act) the appellant should fail due to the operation of the defence under s 5L involving the materialisation of an obvious risk of a dangerous recreational activity. If the claim were not governed by the Act, but was to be determined in accordance with the general law, the appellant was entitled to succeed; defences available under the general law were rejected by the trial judge, a result not challenged on appeal. Whether or not the Act applied depended on whether the case fell within s 3B(1)(a) of the Act: if it did, relevant provisions in the Act, including the defence available under s 5L were not engaged. Consequently, the appellant's case was that the civil liability of Mr Fletcher was "in respect of an intentional act that is done by the person with intent to cause injury": s 3B(1)(a).
2. The trial judge concluded that s 3B(1)(a) was not engaged because the tackle was not effected "with intent to cause injury"; accordingly, the Act, with its defence under s 5L, applied. The claim therefore failed. I agree with Simpson AJA that the appeal from that finding fails. I explain my own reasons for concluding that s 3B(1)(a) was not engaged, but otherwise adopt the reasoning of Simpson AJA.
3. There is no doubt that the tackle undertaken by Mr Fletcher which resulted in injury to the appellant was an intentional act for the purposes of s 3B(1)(a). The critical question is whether it was an act done with intent to cause injury. There are two elements to that question, namely (i) the nature of such an "intent", and (ii) the nature of the relevant "injury".

Nature of "intent"

1. An intention can be a state of mind subjectively held by the relevant person, or it can be an intention imputed by the law, based on a presumption that a person intends the natural and probable consequences of a particular act. As explained by the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection, [1] "an actual, subjective, intention" is one where the person's mind is directed to a particular result, achievement of that result being the purpose or design of the action. Even foresight that a particular action would have "an inevitable or certain consequence", whilst strong evidence of an actual subjective intention, was not to be equated with such an intention. [2] Thus, in discussing the definition of "torture" in the Migration Act 1958 (Cth) as involving the intentional infliction of severe pain or suffering to achieve a particular end, the reasoning required that the perpetrator "means to inflict suffering because it is part of his or her ultimate purpose or design to subject the victim to pain and suffering in order, for example, to obtain a confession." [3]
2. Gageler J in SZTAL stated: "[32] Does the policeman 'intend' to subject the person to the appalling gaol conditions? Not obviously; not obviously not; and no amount of contemplating the abstract meaning of 'intend' will supply the answer. The answer depends on why the question is asked."
3. In determining whether an actual intention, or merely a constructive intention, was the preferred meaning, Gageler J observed that "[i]ntegral to making such a choice is discernment of statutory purpose." [4] The choice was identified by Edelman J in SZTAL as follows: "[60] The central question in these two appeals is the meaning of 'intentionally' in s 5(1) of the Migration Act 1958 (Cth), as amended in 2012. [5] There is no dispute that, as the Full Court of the Federal Court held in each appeal, a person intends a result if the person 'means' to achieve it in the sense of having it as the person's desire, aim, or purpose. But the appellants submitted that the concept of intent does not have to bear a narrow meaning which is limited to this sense of desire, aim, or purpose. They submitted that it had a broader meaning in s 5(1). The essential submission of the appellants was that the broader meaning of intention extends beyond desire, aim, or purpose and also 'sees intent established once knowledge of the likelihood of the consequences [ie results] of an act reaches a sufficient degree of certainty'. The appellants submitted that it was a sufficient degree of certainty if the actor knew that the result would occur in the ordinary course of events."

Nature of the injury

1. The second element of the statutory phrase concerns the meaning of "injury". The word appears in s 3B(1)(a) as an abstract concept, but it is clearly intended to refer, if not to the injury (or death) which is the subject matter of the claim, at least to an injury of that character. (It might not matter that the defendant intended to strike or shoot A and cause injury to A, but hit and injured B: such a case would likely engage s 3B(1)(a) although there was no intent to injure B.) The section refers to the injury which has resulted in compensable loss.
2. As explained by Simpson AJA, the evidence before the trial judge supported several possible gradations of injury. First, tackling generally is intended to be sufficiently vigorous to bring the player to ground with force. The intention is not to incapacitate the ball carrier, although it is no doubt foreseeable that on occasion a twisted knee or ankle or a dislocation may occur. There is no specific intent in such cases to cause injury, but rather to gain an advantage in a competitive game. Similarly, in cricket, a fast bowler may bowl short, intending to hit the batsman if he or she is unable to evade the ball. The intention is not to injure the batsman but to cause a sufficient fear of pain to make the batsman step away or otherwise act with indecision.
3. Secondly, there are injuries which may result from acts which contravene the rules of the game. Such actions may include dangerous throws in rugby (as in the present case), fast full tosses in cricket which are above the batsman's waist, or punches in boxing which are below the waist. Such conduct, which may be generically described as foul play, is rarely intentional, but usually involves a misjudgement. It will not usually be intentional, in the sense of a subjective intention to act outside the rules so as to injure the other player, because such conduct may result in the player being sent off or otherwise penalised. Further, to fall outside the rules of the game, generally such conduct need not be undertaken with intention to cause injury; it is sufficient that it has been identified as potentially dangerous at an unacceptable level.
4. Thirdly, there is the possibility of an intentional act of a kind likely to cause minor injury, which is intended, but which also causes a serious injury which is not intended. It may be that this distinction underlay evidence given by Mr Ryan, set out by Simpson AJA. Mr Ryan was of the view that tackling was always designed to cause some "harm".

The relevant facts

1. Mr Dickson was contracted to play rugby league for the Berkeley Vale Rugby League Club, known as the "Panthers". He was a "prop forward". Mr Fletcher was contracted to play for the Northern Lakes "Warrior" rugby league team. He was also a "prop forward". On 24 April 2016 the two teams were scheduled to play against each other in a "Second Division" game of the "Country Rugby League" competition in Northern Lakes. Rules of the National Rugby League "(NRL)" ("Rugby League Laws of the Game") applied. The entire match was video recorded.
2. After about 32 minutes of the match and shortly before half time Mr Dickson had possession of the ball and was running towards the Northern Lakes goal line. Mr Fletcher sought to impede his progress. To do this he used the manoeuvre commonly called a "spear tackle", but, in the Laws of the Game, called "a dangerous throw".
3. It was found by the primary judge (and does not appear to have been disputed) that a spear tackle is inherently dangerous and is contrary to the Laws of the Game.
4. As a result of Mr Fletcher's manoeuvre Mr Dickson hit the ground, landing on his neck. Mr Fletcher completed the tackle and fell on Mr Dickson with his (Mr Fletcher's) left shoulder contacting Mr Dickson's head around the nose and eyes. Mr Fletcher remained with Mr Dickson until first aid officials arrived on the scene, apologised, and expressed concern for his welfare. Mr Dickson suffered very severe head injuries, specifically to his face. Fortunately, he suffered no spinal injury. It seems to be reasonably clear that the injuries were caused, not by Mr Dickson hitting the ground, but by Mr Fletcher falling on him, with his shoulder to Mr Dickson's face.
5. Having watched the video of the incident a number of times, both in real time and slow motion, the primary judge described it as "confronting viewing".
6. Following the match a complaint of contravention of the Laws of the Game was made against Mr Fletcher. Eventually, he pleaded guilty to a charge that he engaged in "a dangerous throw".

The trial

1. A short summary of the trial is as follows. It will be necessary to outline in some detail the evidence relevant to the issue of Mr Fletcher's intention.
2. Both Mr Dickson and Mr Fletcher gave oral evidence. A former rugby league coach, Mr Warren Ryan, provided two evidentiary statements that were admitted over objection and were treated as expert reports for the purposes of s 79 of the Evidence Act 1995 (NSW): Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2019] NSWDC 426. Mr Ryan answered four specific questions to which his attention was directed. He gave oral evidence and was cross-examined. No challenge is now made to the admission of his evidentiary statements nor his opinion evidence. Also in evidence was the video recording of the whole of the match. Only one other witness, Mr Ken Smith, who was the President of the Berkeley Vale Rugby League Club, gave evidence. Mr Smith was cross-examined at some length about the circumstances of the tackle, and the disciplinary proceedings against Mr Fletcher, but neither he nor Mr Dickson could cast any light on the question whether Mr Fletcher intended to cause injury to Mr Dickson. That fell to be determined on the evidence of Mr Fletcher, whatever inferences could be drawn from observation of the video, and (to a limited extent) the evidence of Mr Ryan.
3. Mr Fletcher denied any intention to cause injury. He agreed that, in the completion of the tackle, he had lifted Mr Dickson into a dangerous position. Under sustained cross-examination he maintained that his (only) intention had been "to complete the tackle". But he answered "yes" to the question: "Is it the fact that you intended to drive him to the ground with force using your body weight and your effort?"
4. Mr Ryan worked from a list of assumptions (which he had helped to compile) as the foundation for his opinion. The assumptions were a step by step description of the relevant part of the match, including the tackle. Mr Ryan's opinion, expressed in a report dated 20 December 2018, was based on a close analysis of the video recording of the match, from which the list of assumptions was drawn. Having watched the video recording, both in real time and slow motion (and on a sophisticated large screen at Fox Studios) Mr Ryan compiled an account of what had happened as he perceived it. That account is as follows: Mr Dickson had possession of the ball and was running from right to left towards the "defenders" (Northern Lakes). Mr Fletcher came towards him to make the tackle; Mr Dickson attempted to step to his left. Mr Fletcher came from the right side and made contact, using his right shoulder, and grabbed both of his arms in a circle below Mr Dickson's hips and "largely" around his thighs. Mr Fletcher manoeuvred himself into a position directly underneath Mr Dickson from where he was able to lift him. Mr Dickson remained vertical, rotating his body to face the reverse direction. Mr Fletcher rose to his full height and lifted Mr Dickson off his feet, causing Mr Dickson's body to rotate clockwise, so that his "legs and body alignment got beyond the horizontal", and his head, neck and shoulders were closer to the ground than his feet. Mr Fletcher lifted his left elbow and had Mr Dickson "well and truly off the ground". His left elbow was quite high, at the end above his own head. He was rotating his upper trunk so that when he finished the tackle he was not just dropping Mr Dickson but "bringing him down to the ground with the whole weight of the tackler's upper body being put into the driving down". The tackler (Mr Fletcher) was "lifting, turning and rotating his own torso" so as to be in a position to drive Mr Dickson down to the ground. During the entire tackle Mr Fletcher had both hands clenched together forming a circle below Mr Dickson's hips and "largely around his thighs".

The primary judgment

1. Drawing on both Mr Ryan's account of his observations of the video and also his own observations the primary judge recorded a description of the tackle which he accepted as accurate. That description included the following: "(7) [Mr Fletcher] comes in from the right side of [Mr Dickson] 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 [Mr Dickson's] thighs (to interpolate, this struck me as being a perfectly normal approach to tackling); (8) When [Mr Fletcher] has got hold of [Mr Dickson], using both arms, [Mr Fletcher] has his legs trailing well behind him. At this point his body is in an angle position and is in no position to lift [Mr Dickson], the tackled player; … (12) [Mr Fletcher] then lifted [Mr Dickson] off his feet, doing so by rising to his full height, his feet under him; (13) When [Mr Fletcher] lifted [Mr Dickson], he caused [Mr Dickson's] body to rotate clock-wise, so that [Mr Dickson's] legs and body alignment go beyond the horizontal, and [Mr Dickson's] head, neck and shoulders are closer to the ground then [sic - than] his feet; (14) During the lift, [Mr Fletcher] lifts with his left elbow coming up and he then has [Mr Dickson] well and truly off the ground. [Mr Fletcher's] left elbow is quite high, even above his own head. [Mr Fletcher] is also rotating his own upper front so that when he finishes the tackle he is not just dropping [Mr Dickson] but is bringing him down to the ground with a whole weight of [Mr Fletcher's] upper body being put into the motion of driving and down. [Mr Fletcher] which was lifting, turning and rotating his own torso so he was in a position to drive [Mr Dickson] down to the ground [sic]; (15) During the entire tackle, [Mr Fletcher] had both hands in effect clenched together forming a circle below the tips [sic - hips] of [Mr Dickson] and largely around his thighs."
2. The primary judge accepted both Mr Dickson and Mr Fletcher as truthful witnesses. He considered that Mr Fletcher: "57 … 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." He rejected characterisation of Mr Fletcher as "evasive" put by senior counsel for Mr Dickson and said that he detected no unwillingness by him to answer questions.

Grounds of appeal

1. Fourteen grounds of appeal were pleaded. Seven attacked intermediate factual findings made by the judge en route to his ultimate conclusion on intention. Seven grounds alleged errors of law which, Mr Dickson contended, infected the fact finding process.
2. In large measure Mr Dickson's contention was that the ultimate factual conclusion, that the intent to injure had not been proved, and at least some of the intermediate facts, were contradicted by what could be seen on the video. He relied on the decision in McCracken (in the Court of Appeal) (at [19]) as authority for the proposition that this Court is able to draw its own conclusions from the video footage.
3. Mr Dickson further submitted that the primary judge failed to give adequate consideration to the whole of the evidence in specific identified respects, in particular to Mr Ryan's evidence and the video recording.
4. By grounds 1 to 6 and ground 13 respectively Mr Dickson asserts various errors of fact and errors in the process of reasoning to the ultimate factual conclusion. In the interests of economy I paraphrase and/or summarise: (i) that the finding (at [105]) that Mr Fletcher did not intend to lift Mr Dickson's legs but that he lost control of the tackle could not be supported when regard is had to the video footage and Mr Fletcher's "admissions" and "concessions" in cross-examination (the submissions did not descend to any identification of the "admissions" or "concessions"); (ii) that the primary judge failed to consider the whole of the evidence and, specifically, failed to give adequate consideration to Mr Fletcher's evidence that, having lifted Mr Dickson, he intended to drive him forcefully to the ground and did so at a point when it was no longer necessary in order to prevent Mr Dickson's progress with the ball; (iii) that a finding (at [141]) that Mr Fletcher "inadvertently" allowed his shoulder to fall on Mr Dickson's face was erroneous because, rather than being a "separate or concurrent event" as (it was contended) the primary judge treated it, it was "an inherent part of the manner" in which Mr Fletcher tackled Mr Dickson [par [141] appears in that part of the judgment in which the primary judge dealt, contingently, with the question of negligence]; (iv) that the primary judge wrongly characterised "the end stage" of the tackle as "merely a case of [Mr Fletcher] falling and landing on a player who was on the ground when in fact the injury was caused by the intentional act of Mr Fletcher"; (v) that the primary judge erred in his consideration of the facts by failing to hold that the relevant "intentional act" was the whole of Mr Fletcher's conduct in effecting the tackle; (vi) that the primary judge misconceived the facts and erred in law by drawing a distinction between a neck injury intentionally caused in a spear tackle and the facial injury so caused (at [91]); (xiii) that the primary judge's finding with respect to Mr Fletcher's credibility was flawed because he thought, wrongly, that Mr Fletcher was "not evasive" in answering questions.

Ground 7

1. Ground 7 invokes what is said to be a presumption that a person intends the natural and probable consequences of his or her conduct: Palmer Bruyn and Parker v Parsons (2001) 208 CLR 388; [2001] HCA 69. In Palmer Bruyn, Gummow J said: "73 … Thus, it is said as a general rule that a man is presumed to intend the natural consequences of his acts."
2. On behalf of Mr Dickson it was submitted that he was deprived of the opportunity to persuade the primary judge that the element of intention could be established by looking to the natural and probable consequences of Mr Fletcher's conduct.
3. That submission is unfounded and unfair. Mr Dickson was not deprived of the opportunity to put to the primary judge any argument considered relevant. There is nothing in the opening by senior counsel, in his written submissions, or in the transcript of his final oral submissions, that raises any hint of the presumption. No such submission was made because, and only because, senior counsel did not choose to make one.
4. As mentioned above, the primary judge alluded to Palmer Bruyn but appears to have discarded the presumption as inapplicable in torts other than intentional torts. Rather, he adopted the construction given to "intention" in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 [2017] HCA 34 where intention was said to refer to "a person's actual, subjective intention".
5. Apart from the unfair complaint that he was denied an opportunity to make submissions, Mr Dickson's argument in support of ground 7 involved two propositions: (i) that High Court authority (Palmer Bruyn) and authority in this Court (TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82) established that a presumption exists in law that a person intends the natural and probable consequences of his or her conduct; and (ii) the presumption is not limited, as the primary judge suggested, to intentional torts but is of more general application.
6. Mr Fletcher's response was also confined to two propositions: (i) that, "even if there was some error by the primary judge … [Mr Dickson] does not identify the consequences which would flow from such error"; and (ii) "presumptions can be rebutted and in this case the primary judge has made a demeanour-based finding which has the effect that any presumption of intention is rebutted."

Grounds 8 and 9

1. By ground 8 Mr Dickson complains that the primary judge erred by concluding that s 3B(1)(a) is, or may be, limited to criminal conduct. By ground 9 he asserts error in the reliance by the primary judge on s 140 of the Evidence Act 1995 (NSW).
2. Section 140 is concerned with the standard of proof in civil proceedings. It provides as follows:

"140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account - (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged."

1. These grounds call for some further explanation. They are connected in a way that may not be immediately apparent.
2. In McCracken, Hulme J held (at [41]) that, on no reasonable interpretation of s 3B(1)(a), could the words "an intentional act that is done with intent to cause injury" be regarded as limited to conduct that is criminal in nature. At [97] the primary judge doubted the correctness of that proposition (which was not the subject of criticism on appeal to this Court). The corollary of the primary judge's expressed doubt is that s 3B(1)(a) may be limited to criminal conduct. But his Honour did not reach, or did not state, a clear conclusion on that question.
3. It is difficult to know what, if any, impact the doubt expressed had on the ultimate conclusion. The primary judge concluded the paragraph in which he expressed doubt by saying: "But the question remains as to the proper construction of the expression 'intent to cause' (injury)." That does not suggest that he was limiting his consideration to conduct that was, or may have been, criminal. On the other hand, there are indications in [104] that the primary judge considered that a finding that Mr Fletcher intended to cause injury to Mr Dickson involved a finding of criminal conduct, and that pointed against reaching such a conclusion.
4. It is necessary to set out the whole of the paragraph under attack by ground 8. It is as follows: "104 First, I find that the plaintiff carries the onus of proof to establish the plaintiff's [sic] intention, and that the level of proof has to reflect the gravity, or seriousness of the finding of an intent to injure under s 140(2) of the Evidence Act. It is a very serious matter, I think, for the purposes of [Mr Fletcher's] reputation, to say that in executing a tackle, even a dangerous and unlawful spear tackle, [Mr Fletcher] intended to injure [Mr Dickson]. An assault may be a crime as well as a tort. Although in McCracken (NSWSC) Hulme J said at [41] that conduct does not need to be criminal in order to satisfy s 3(b)(a) [sic-s 3B(1)(a)], a finding that a tackle satisfied both limbs of intention, within the meaning of s 3(b)(a) [sic], might be regarded as tantamount to a finding that [Mr Fletcher] committed the criminal offence of assault occasioning bodily harm, however [Mr Dickson] chooses to formulate his cause of action for the purpose of making a civil claim." (italics in original; citations omitted)

Grounds 10 and 11

1. By grounds 10 and 11 Mr Dickson attacked the process of reasoning exposed in [87] and [88] of the judgment. In those paragraphs the primary judge addressed Mr Ryan's evidence that, in rugby league, tackling necessarily involves an intention (on the part of the tackler) to exert force in a fashion intended to result in at least minor injury. Paragraph [87] begins with: "If this evidence was true …"
2. The primary judge then appears to have considered that acceptance of Mr Ryan's evidence in this respect would have significant consequences in the application of the CLA because: "87 … every tackle in Rugby League involving some level of carelessness on the tackler(s) would satisfy both limbs of s 3B(1)(a) in the unfortunate event that the ball carrier was injured." and would result in the exclusion of the CLA. That, in turn, his Honour said, would have similar implications in other contact sports such as boxing and wrestling, and would: "88… act as a significant encroachment on the provisions of Part 1A Division 4 [sic - 5] of the [CLA], specifically devoted to dangerous recreational activities, one specific of which is playing sport": In [87] the primary judge went on to say: "It seems to me a surprising result that Parliament could have intended that the [CLA] (intended to encourage 'personal responsibility') would operate in such a fashion that the question of whether a Rugby league player could be sued in a way that would exclude the [CLA], 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." (Italics in original) His Honour considered this did not "represent a principled position; but would rather bring about capricious results".
3. This reasoning is obscure. Equally obscure are Mr Dickson's submissions in support of these grounds, which are largely directed to recounting some historical circumstances concerning the entitlement of plaintiffs injured in sporting activities to recover damages, both before and after the enactment of the CLA. The most that I can draw from the submissions is a complaint that the primary judge appeared to rely on a "presumed parliamentary intention".
4. Parliamentary intention, when it can be ascertained, is an established resource in statutory construction, and, in some circumstances, is required, for example by s 33 of the Interpretation Act 1987 (NSW). It is not an appropriate factor in the determination of whether or not to accept factual evidence. Mr Ryan's conclusions were either accurate or they were not. If they were accurate, and were accepted by the primary judge, it would be a significant (but not the sole, and not a conclusive) factor in the determination of the critical question, whether Mr Fletcher intended to injure Mr Dickson. Acceptance or otherwise of Mr Ryan's evidence as a fact was not dependent on the potential implications, for the applicability of the CLA, or on the achievement (or otherwise) of Parliamentary intention of the legislature. Whether or not to accept Mr Ryan's evidence that every tackle involved an intention to inflict some form of injury did not depend on potential ramifications for the continued operation of the CLA in relation to sporting activities.

Ground 12

1. The subject of ground 12 was what was asserted to have been the reliance by the primary judge (at [108]) on the rule stated in Browne v Dunn. The rule in Browne v Dunn is a rule of long standing and frequently invoked. It has been said to be: "…a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings": Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR1. That statement has been repeatedly adopted. For present purposes important words in the formulation are "unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters".
2. The third of the reasons given by the primary judge for his decision was that it was not clearly put to Mr Fletcher that he intended to injure Mr Dickson, although the primary judge noted that it had been put to him that he had no intention to cause serious injury. Mr Dickson did not dispute that the relevant question had not been put to Mr Fletcher, but contended that there was no procedural unfairness as Mr Fletcher and his legal representatives were fully aware, from the pleadings, from Mr Ryan's report, and from senior counsel's opening, the case that he intended to make.
3. The proper application of the rule in Browne v Dunn has been discussed in numerous cases. In Scalise v Bezzina [2003] NSWCA 362 at [96] Mason P said that the rule is, in part, "grounded in considerations of judicial economy" in saving the time and expense of duplicating evidence that is uncontroversial. To that I would add the saving of time in ritualistically putting to a witness, including a party, a proposition that is already clearly in issue.
4. In State Rail Authority of NSW v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 at [53] Basten JA said (consistently with Allied Pastoral) that the real issue is the fairness of the trial.
5. It has, nevertheless, been held in Victoria, that, even where the inference sought to be drawn is clear from, for example, the exchange of affidavits and expert reports, and the parties are clearly on notice of what facts are in issue, that circumstance does not absolve the cross-examining party from observance of the rule: Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 107 at [13].

Ground 14

1. By ground 14 Mr Dickson asserted that the primary judge took into account an irrelevant consideration, namely that, immediately after the tackle, Mr Fletcher apologised and showed some solicitude for Mr Dickson's welfare. The primary judge considered that conduct to be inconsistent with an intention to cause injury.
2. Mr Dickson submitted that this was not relevant; he further submitted that any assistance or apology given by Mr Fletcher was "an apology" within s 68 of the CLA and, by s 69(1)(b), not relevant.
3. Mr Dickson's reliance on these provisions of the CLA are, to put it mildly, puzzling. His fundamental proposition is that the CLA is inapplicable. That is the very point of this exercise.
4. Putting that aside, I am not able to conclude that reliance on Mr Fletcher's immediate post-tackle conduct was entirely irrelevant, although its weight is limited. It was open to the primary judge to conclude that an immediate apology to some degree was a contra-indication of intention to injure. I would not uphold this ground of appeal.

Grounds 1-6, 13

1. I return now to grounds 1-6 and 13, by which Mr Dickson asserts factual error. This being an appeal to which s 75A of the Supreme Court Act applies, it is to be conducted as a rehearing (subs (5)), and on the basis that the court has the powers and duties of the court of first instance, including powers and duties to draw inferences and to make findings of fact (subs (6)). The review is to be "a real review" which involves weighing conflicting evidence and drawing inferences, always bearing in mind and making due allowance for the fact that the court has not seen or heard the witnesses. Findings of fact made by the primary judge should not be interfered with unless demonstrated to be wrong by "incontrovertible facts or uncontested testimony", are "glaringly improbable", or "contrary to compelling inferences": Fox v Percy; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43].
2. The submissions made on behalf of Mr Fletcher laid heavy emphasis on the last-stated principles. The submissions made on behalf of Mr Dickson paid no regard to them at all. It was only in submissions in reply to those of Mr Fletcher that Mr Dickson so much as acknowledged the relevant principles.
3. These grounds of appeal, it seems to me, reduce to a number of propositions:

• that the primary judge failed to have appropriate regard to what can be seen in the video recording, or to the evidence of Mr Ryan;
• when that evidence is given appropriate weight, the conclusion that intention to injure had not been proved is contrary to compelling inferences;
• that the primary judge inappropriately broke up the tackle into component parts rather than viewing it as a single, continuous, incident commencing with the lifting of Mr Dickson's leg, moving to lifting his second leg, and culminating in the collapse of Mr Fletcher onto Mr Dickson's face;
• that the primary judge wrongly assessed the last stage of the tackle, when Mr Fletcher collapsed onto Mr Dickson's face, as "inadvertence", when, in reality, it should be seen as the inevitable and natural outcome of a spear tackle;
• that the primary judge's assessment of Mr Fletcher as a credible witness because he was "not evasive in answering questions" was wrong; on the contrary, the transcript reveals that Mr Fletcher was evasive and that examination of the video shows that some of his answers were false.

Intent to cause injury

1. Neither party directed any attention in this Court to the interpretation to be given to the phrase "intent to cause injury" as it appears in s 3B(1)(a) of the CLA. Yet that, in my opinion, is the key to this appeal.
2. Although s 3B(1)(a) has arisen in several previous appeals to this Court I am unaware of any authoritative determination of the meaning to be given to "intent to cause injury" (and the Court was referred to none). In State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 the conduct in question was that of two police officers who unlawfully entered private premises and pointed a gun at the plaintiff. Pointing the gun constituted an assault. Application of s 3B(1)(a) appears from the judgments to have been somewhat peripheral (the issues were whether the definition of "injury" in the CLA applied to the use of that word in s 3B(1)(a), and whether limitations imposed by s 21 on awards of exemplary, punitive or aggravated damages applied) but Spigelman CJ was of the opinion that s 3B(1)(a) was satisfied in the case of the assault because the police officers intended, by the action of pointing the gun, to cause injury.
3. In Hayer v Kan [2014] NSWSC 126 an application was made to strike out a pleading that alleged against a hospital an intentional tort in the provision of medical services and treatment. Particularisation of the intentional tort suggested that reliance was to be placed, not on an assertion of actual intention to cause injury, but on an inference to be drawn from the conduct alleged. Just how s 3B(1)(a) arose is not clear from the judgment. Hoeben CJ at CL noted a submission made on behalf of the hospital that the second limb of the subsection: "38 … excluded any reliance upon concepts such as 'recklessness' or the proposition that damage that is the natural and probable consequence of a tortious act, is presumed to have been intended by the tortfeasor … ."
4. His Honour said that he found that reasoning "attractive" and that, if the matter were free from authority, he would have adopted that interpretation. But he considered that the decision in Dean v Phung [2012] NSWCA 223; (2012) Aust Torts Rep 82-111 precluded that because it allowed for a contrary interpretation.
5. In Dean v Phung the plaintiff sued a dentist for alleged negligent treatment. Basten JA, with the agreement of Beazley and Macfarlan JJA said: "So far as the operation of s 3B is concerned, it would have been sufficient for the appellant's purposes to establish that the dentist knew at the time of giving the relevant advice that the treatment was not reasonably necessary."

Endnotes

1. (2017) 262 CLR 362; [2017] HCA 34 at [15].
2. SZTAL at [16].
3. SZTAL at [17].
4. SZTAL at [39].
5. Migration Amendment (Complementary Protection) Act 2011 (Cth). The amending provisions commenced by proclamation on 24 March 2012.
6. RP Balkin and JLR Davis Law of Torts (4th ed, LexisNexis Butterworths, 2009) at [3.2].
7. McNamara v Duncan (1979) 26 ALR 584 at 587 (Fox J).
8. T v T [1988] Fam 52; [1988] 1 All ER 613; Trindade, "Intentional Torts: Some Thoughts on Assault and Battery" (1982) 2 OJLS 211; 220.
9. (1988) 13 NSWLR 714.
10. Section 5, providing a definition for the purpose of Pt 1A, which relevantly includes s 5L.
11. (1952) 86 CLR 358 at 365; [1952] HCA 56.
12. Brighten v Traino [2019] NSWCA 168 at [19]-[23].
13. See State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [204]; Brighten v Traino at [22]-[29].

Amendments 22 December 2020 - [7] offensive conduct now offensive contact. [114] change wrong doer to wrongdoer. [144] change he pointed out to who pointed out [173] change concept to concepts [182] purpose of design to purpose or design [182] before CLR add 256 [186] add a full stop between SZTAL and But DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2020