Intentional acts with intent to cause harm + recklessness.

With thanks to Hilbert Chiu for drawing my attention to Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294, available on JADE.

Not a medical case (though referring to Dean v Phung), the claim by Mr Dickson was made as he 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 (though this issue was not argued at the trial).

Mr Fletcher conceded that the spear tackle was an intentional act. The question at trial was whether Mr Fletcher intended to cause injury, thereby excluding the operation of the Civil Liability Act 2002 (NSW) by reason of s 3B(1)(a) which states that the Act 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 injuryHe 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 Act was excluded because Mr Fletcher intended to cause injury.

The Court (Simpson AJA, with Basten and White JJA agreeing) dismissed the appeal and held as follows (mostly drawn from the headnote):

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:

5. Where the harm actually suffered is the natural and probable consequence of the tortious conduct, the harm lies within the presumed intention of the tortfeasor. Different questions arise where the harm actually suffered is not of the same kind as that the tortfeasor intended: at [113]-[114].

6. References to a presumption that a wrongdoer intends the natural and probable consequences of his or her conduct are to be understood in that context: at [115]. There was no error on the part of the primary judge in failing to apply the presumption in the context of the exclusion of the CLA in the event that Mr Fletcher was found to have intended to cause injury to Mr Dickson: at [119].

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82; Palmer Bruyn and Parker v Parsons (2001) 208 CLR 388; [2001] HCA 69; State of NSW v Cuthbertson (2018) 99 NSWLR 120 [2018] NSWCA 320.

7. The video recording considerably diminished the advantage that the primary judge had in observing the witnesses. The Court was in as good a position as the primary judge to make an assessment of that aspect of the evidence. The video recording confirmed that the inevitable result of the tackle was that some injury would be caused to Mr Dickson. It does not follow from the inevitability of injury that Mr Fletcher intended to cause injury. The presumption that a person intends the natural and probable consequences of his or her conduct is inapplicable in these circumstances. The evidence established the foreseeability of injury and recklessness by Mr Fletcher, however neither was sufficient to establish the intent necessary to be proved for the purposes of s 3B(1)(a): at [164]-[170].

McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107; [2007] NSWCA 353; Fox v Percy (2003) 214 CLR 118; HCA 22; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679.

8. There appears as yet to be no authoritative determination of what is encompassed in the term “intent to cause injury” in s 3B(1)(a): at [171]-[172]. It means actual, subjective and formulated intention, to which the defendant has turned his or her mind. It does not include recklessness, imputed or presumed intention: at [181]-[186]. (However intention, including intention as used in the second limb of s 3B(1)(a), may be proved by inference to be drawn from established facts: [181].)

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34;

9. A strict view of the meaning of “intent to injure” in s 3B(1)(a) is supported by reference to s 33 of the Interpretation Act 1987 (NSW). If “intent to cause injury” is taken to include something less than actual, subjective, intention such as recklessness, or “imputed” or presumed intention, many sports or other recreational activities to which the CLA is clearly designed to apply would fall outside its ambit: at [187]-[189]. The Court did not determine the precise scope of “intent to cause injury” in s 3B(1)(a): at [190].

State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445; Hayer v Kan [2014] NSWSC 126; Dean v Phung [2012] NSWCA 223; (2012) Aust Torts Rep 82-111; Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492; Croucher;Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56; Zaburoni v The Queen (2016) CLR 482; [2016] HCA 12; R v Willmot (No 2) [1985] 2 Qd R 413; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34; Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185

10. The primary judge’s finding that Mr Dickson failed to establish an actual, subjective, intent was conclusive, and was not disturbed by the application of the presumption on which Mr Dickson sought to rely nor an independent review of the evidence: at [192].