The Intent to Injure: Court Rules on Liability in Rugby Tackle Case

May 25, 2023 | Publication

In 2016, Mr Dickson sustained serious injuries after receiving a spear tackle, or dangerous throw by an opponent, Mr Fletcher. The tackle happened to be filmed, and the film was later used as evidence.

Mr Dickson pursed a claim against Mr Fletcher for damages in tort, alleging that the injuries sustained were due to the negligence of Mr Fletcher, and further, that the North Lakes Rugby League Sport and Recreation Club Inc, was vicariously liable. 

During the trial, Mr. Fletcher admitted that the spear tackle was an intentional act. The key question was whether Mr. Fletcher intended to cause injury, which would exclude the application of the Civil Liability Act 2005 (NSW) (“the CLA”) under section 3B(1)(a). Section 3B(1)(a) of the CLA states that it does not apply to civil liability arising from an intentional act done with intent to cause injury or death. The primary judge concluded that Mr. Dickson had failed to prove that Mr. Fletcher intended to cause injury, and judgment was entered in favour of the respondents. The primary judge also ordered Mr. Dickson to pay the costs of the proceedings.

Mr. Dickson appealed the finding that Mr. Fletcher did not intend to cause injury. The main issue on appeal was whether the CLA’s operation was excluded because Mr. Fletcher intended to cause injury, as per section 3B(1)(a).

The Court of Appeal, composed of Simpson AJA, Basten and White JJA, dismissed the appeal and provided the following key points:

Basten JA:

  • The ordinary meaning of “with intent to cause injury” in the context of the CLA refers to a specific actual or subjective intention to achieve the consequence of injury.
  • The term “injury” in section 3B(1)(a) of the CLA refers to the injury that has resulted in compensable loss. The section does not apply if the intent is to cause an injury that is not the subject of the claim.

White JA:

  • The intent to cause injury (or death) mentioned in section 3B(1)(a) requires an actual subjective intent. Recklessness alone is not sufficient.
  • Since the primary judge’s finding that Mr. Fletcher lacked an intention to injure Mr. Dickson was accepted, the court did not express a view on any possible limitations on the scope of the words in section 3B(1)(a).

Simpson AJA:

  • When the harm suffered is the natural and probable consequence of the tortious conduct, it lies within the presumed intention of the tortfeasor. Different considerations arise when the actual harm suffered is different from what the tortfeasor intended.

The presumption that a wrongdoer intends the natural and probable consequences of their conduct does not apply in this case. Although injury was foreseeable and Mr. Fletcher acted recklessly, neither factor was sufficient to establish the intent required under section 3B(1)(a).

The court acknowledged that there is no authoritative determination of the precise scope of “intent to cause injury” in section 3B(1)(a) of the CLA. However, it held that the term should be understood as an actual, subjective, and formulated intention, excluding recklessness, imputed intention, or presumed intention.

In summary, the court affirmed the primary judge’s finding that Mr. Fletcher did not possess the required actual, subjective intention to cause injury to Mr. Dickson. Therefore, the operation of the CLA was not excluded, and the appeal was dismissed.

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