MCCRACKEN v MELBOURNE STORM RUGBY LEAGUE FOOTBALL CLUB AND 2 ORS

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."

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