Footy player’s “spear tackle” negligence case gets a red card from the Court of Appeal

2020 has been a year of ”big hits” in the dangerous recreational activity space.
 
It has also been in a year in which our sportsmen have featured in the evening news, often for their off‑field behaviour.  
 
The recent news that former England Rugby international, 42 year old Steven Thompson, has been diagnosed with early onset dementia, and is involved in a potential class action in relation to the repetitive head trauma he says gave rise to his condition; has sent shock waves through the sporting world.
 
His story has focused attention on the duty of care owed to athletes, professional and amateur, by our sporting bodies and clubs.  
 
The Court of Appeal recently examined this issue, albeit in an entirely different context, in the case of Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294.
 
Mr Dickson suffered severe maxilla-facial and cranial fractures after being “spear tackled” by an opposing player, Mr Fletcher, during a rugby league match.
 
Mr Dickson brought a negligence action against Mr Fletcher and the Northern Lakes Warriors Rugby League Football Club (NLWRLFC), for whom Mr Fletcher played.
 
The thrust of Mr Dickson’s case was that the Civil Liability Act 2002 (CLA) did not apply, as the act of Mr Fletcher constituted an intentional tort, for which the NLWFLCU was vicariously liable.  
 
At first instance, the District Court entered verdict and judgment for Mr Fletcher and Northern Lakes Warriors.
Mr Dickson appealed.
The Appellate Court
It was common ground that if the CLA applied, Mr Dickson would fail due to the defence of s5L of the CLA; noting the subject risk of harm, was the materialisation of an obvious risk of a dangerous recreational activity.
 
It was common ground also that if the CLA did not apply, and the claim was subject to the general law; that Mr Dickson would succeed, as the defences available to the defendants at common law were rejected by the trial judge and no appeal was raised in that regard.
 
Although Mr Dickson was able to prove that Mr Fletcher had acted recklessly, the Appeal Judges agreed with White JA who held that “The intent to cause injury (or death) referred to in s 3B(1)(a) is an actual subjective intent: recklessness is insufficient" [1]
 
Accordingly, the appeal was dismissed.

Our observations
There has been increasing attention paid to the risks and dangers our sportsmen and sportswomen are subjected to.
 
Our law recognises however, that some of our most cherished sports and pastimes involve some significant risk of harm; and that the participants in those activities know, or ought to know, that those risks do materialise, sometimes with tragic consequence.  In this case the materialisation of the risk was not compensable.
 
The case is one of a series of 2020 Court of Appeal decisions on the issue of dangerous recreational activities.  These cases have demonstrated the gulf in outcomes for litigants, in cases concerning obvious risks which materialise in recreational and non-recreational settings.

Posted by Senior Associate, Robert Mitas, and Paralegal, Jonathon Gilmour
[1] [19].

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