Recent Developments 2005
Statutory interpretation and negligence
Relevance to:
§ Chapter 3 (statutory interpretation)
§ Chapter 5 (negligence and the operation of the civil liability legislation)
§ Chapter 6 (vicarious liability)
Court ruling on tackles in contact sport – McCracken’s case
The decision of Hulme J in the New South Wales Supreme Court in McCracken v Melbourne Storm Rugby League Football Club and 2 Ors [2005] NSWSC 107 created considerable media interest, and an equal amount of concern for administrators of contact sports, when it was handed down. The interest in the decision was created by Hulme J’s decision that the case did not fall within the scope of the Civil Liability Act 2002 (NSW).
All the States and the Australian Capital Territory had followed the Ipp Report Recommendations to a greater or lesser extent when introducing changes to the laws of negligence. The legislation that has been introduced is far from uniform but essentially it makes it more difficult for a plaintiff to succeed in a negligence case for a personal injury claim. However, in three jurisdictions it is still possible to avoid the operation of the changes and rely on the common law rules of negligence. The Acts of New South Wales (sec 3B(1)), Tasmania (sec 3B(1)(a)) and Western Australia (sec 3A) provided that the provisions of the civil liability legislation do not apply where the act was an intentional act (in the case of Western Australia, the act has to be an unlawful intentional act) done with the intention to cause injury.
In McCracken’s case, former Melbourne Storm rugby league football club players Kearney and Bai spear tackled McCracken during a match. That is, during the course of a tackle, they lifted McCraken of the ground and drove him head first into the ground. As a result he suffered neck injuries and was forced to retire from the game. At the time of his injury, McCracken was on a $300,000 contract with West Tigers rugby league football club.
The issue for Hulme J was whether sec 3B(1) of the Civil Liability Act 2002 (NSW) applied, in which case the provisions of the Act would not apply but the ordinary rules of negligence would apply. The relevant section reads:
"(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.”
It was argued by the defendants that Hulme J should adopt a purposive construction of the Act and interpret the section narrowly, limiting it to conduct which is criminal. However Hulme J rejected this argument and gave the words their ordinary English meaning.
On the issue of what was meant by the word “injury”, Hulme J felt that he did not need to consider how minor a hurt had to be to come within the expression “injury” as long as the plaintiff could establish an “injury”. In this case McCracken could establish that he had suffered an “injury”.
After watching video evidence and hearing the evidence of the defendant players, including the fact that both had pleaded guilty before the NRL judiciary to a dangerous tackle, Hulme J concluded from the facts that the players had breached their duty of care towards McCracken. More importantly for the operation of sec 3B(1), he also concluded that the intent of both of the players was to injure McCracken, although he noted that they probably had not intended such a severe injury. But whatever the intended end result, the effect was to satisfy the requirements for the operation of sec 3B(1).
As a result, Hulme J held that McCracken was entitled to succeed against the players. As the players were employed by the Melbourne Storm, and the injury to McCracken occurred during the course of play, Melbourne Storm was vicariously liable for the actions of its players and also liable to McCracken.
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