New South Wales Supreme Court CITATION : MCCRACKEN v MELBOURNE STORM RUGBY LEAGUE FOOTBALL CLUB AND 2 ORS [2005] NSWSC 107 HEARING DATE(S) : 14-22 February 2005 JUDGMENT DATE : 22 February 2005 JUDGMENT OF : Hulme J at 1 DECISION : See paragraph 47 and 48 CATCHWORDS : Judgment on Liability PARTIES : Jarrod McCracken Melbourne Storm Rugby League Football Club Stephen Kearney Marcus Bai FILE NUMBER(S) : SC 20071/03 COUNSEL : Plaintiff: B Gross QC; T Boyd Defendant: ML Williams SC Defendants: RS Sheldon SOLICITORS : Plaintiff: Thurlow Fisher Defendant: Moray & Agnew LOWER COURT JURISDICTION : - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No: 20071/03 HULME J Tuesday 22 February 2005 Jarrod McCRACKEN v MELBOURNE STORM RUGBY LEAGUE FOOTBALL CLUB LIMITED, Stephen KEARNEY AND Marcus BAI JUDGMENT 1 HULME J: On 12 May 2000, the Plaintiff was playing rugby league football as a member of the Wests Tigers Rugby League Football Club Pty Limited first grade team against the corresponding team of the First Defendant. The Second and Third Defendants were members of the First Defendant's team and employed by the First Defendant. During the course of the game the Plaintiff, carrying the ball, was tackled by the Second and Third Defendants, struck the ground with his head and was injured. He has not played football since. 2 The Plaintiff claims damages from the Defendants contending that in the tackle, the Second and Third Defendants lifted the Plaintiff to a dangerous position, causing him to fall head first to the ground. 3 With an eye to the provisions of section 3B of the Civil Liability Act, in the Statement of Claim the Plaintiff also asserted that the actions of the Second and Third Defendants were "intentional and done with intent to cause injury, in that the Second and Third Defendants intended, during the performance of the tackle, to lift the Plaintiff and, having completed doing so, to then drive the Plaintiff forcefully into contact with the ground causing the Plaintiff's body to suffer some physical trauma and temporary non-serious soft tissue injury". 4 The hearing of the Plaintiff's claim commenced on Monday of last week. There were, for reasons which I need not go into at this stage, difficulties in obtaining or obtaining access to a number of bank and other documents thought likely to bear on the extent of the Plaintiff's economic loss claim and the prospects of success. It became apparent that the case would have to be adjourned to ensure these documents were available and in circumstances permitting proper consideration of them, but the parties agreed that in that situation it was appropriate to separate the issues of liability and damages, and submissions have proceeded today on the question of liability. 5 I think the course envisaged by the parties in this respect is appropriate, and accordingly I order that the issues of liability and damages be determined separately in the proceedings. 6 These reasons concern the topic of liability. 7 The Plaintiff gave little evidence as to the circumstances of the tackle. However, the precise circumstances of the tackle were the subject of video recording at the time. A copy of the video recording, both playing at normal and slow speed, became an exhibit, as did a series of still photographs taken from the video recording at various intervals. The recording would seem to have been effected by two cameras taking photographs from different angles. 8 The video shows that the incident happened while the Plaintiff was moving towards, and something of the order of ten metres from, the Melbourne Storm's goal line. 9 A verbal description of what otherwise is depicted on the video recording does not do it justice, but some summary is appropriate. At a very early stage of the tackle, the Plaintiff and the Third Defendant met, not exactly, but substantially front to front, the principal points of contact being appreciably above the waists of both. The forward progress of the Plaintiff was slowed. There would then seem to have been separation of the two with the Third Defendant towards the Plaintiff's right. The Second Defendant was in front of the Plaintiff but towards the Plaintiff's left, bent down. Firstly the Second Defendant, and then the Third Defendant, sought to grab hold of the Plaintiff on the lower half of his person. The Second Defendant placed his right hand between the Plaintiff's legs, the Second Defendant's fingers in contact with and extending about halfway across the front of the lower part of the Plaintiff's left thigh. 10 The Second Defendant's left-hand was in front of the Plaintiff's abdomen, and then moved so as to grip the Second Defendant's right wrist, thus encircling the Plaintiff's left thigh. The Second Defendant's left shoulder was against the Plaintiff's body, somewhat above the level of the Plaintiff's hips, although after a time the shoulder was more to the Plaintiff's rear, the Second Defendant's left upper arm being the part of the Second Defendant nearest the Plaintiff's left hip. 11 There was some criticism of the Second Defendant for putting his hand between the Plaintiff's legs, but I am not disposed to regard the criticism as justified. As an incident of running, the Plaintiff's thighs were well apart and, desirous of stopping any further forward movement of the Plaintiff's rear leg, or placing the Plaintiff off balance, it seemed to me that the Second Defendant was well justified in grabbing one thigh when, as it seems to me and may well have seemed to him at the time, he could not reach both. 12 During the course of the events just described, the Third Defendant had again made contact with the Plaintiff, the Third Defendant's right shoulder pushing against the front of the Plaintiff's hip or abdomen on the Plaintiff's right side. During or about the same time the Third Defendant moved his right hand out in front of the Plaintiff and his left hand down to the Plaintiff's lower left leg. 13 During all of this time the Plaintiff was leaning to a significant degree forward and also moving in that direction. Thereafter there was movement of the Plaintiff's body as follows: The upper half of his body came to a more or less horizontal position at about or perhaps a little above the level of the Second Defendant's waist with the bottom half of the Plaintiff's body somewhat lower and his feet off but near the ground. Then the distance between the top of his chest and head, on the one hand, and the ground, on the other, decreased while the distance between the ground and lower part of the Plaintiff's waist and lower part of his legs increased markedly. 14 For a time the level of his head seems to have remained fairly constant while that of the lower part of his head, chest and lower part of his body increased more until his head and body to his hips was upside down and close to vertical, with his legs somewhat less so. Then all moved downwards. The Plaintiff's head being the first part to strike the ground after a hand and arm. 15 During nearly all of the time taken by the above events the Second Defendant's hands and arm were around the Plaintiff's left thigh and one of the Third Defendant's hands around or lifting the Plaintiff's right leg. 16 Also during this time both of these Defendants by straightening their legs or bodies or a combination of both moved upright from bent over or much lower positions. These movements had the effect of moving those parts of the Plaintiff with which the Defendants were in contact and other adjacent parts of the Plaintiff also upward. Towards the end the Second Defendant's knees also became bent for a time and he was virtually kneeling on the ground. 17 At the time of the hearing the Second and Third Defendants were in England playing football and they gave evidence via video link. According to the Second Defendant his aim was to stop the Plaintiff's momentum and to do so by lifting one of the Plaintiff's legs off the ground. The Second Defendant said it was not his intention to lift the bottom half of the Plaintiff's body higher than the top half. He said that it was also not his intention to injure the Plaintiff and not his intention to drive the Plaintiff into the ground so as to hurt him. He said he was not aware until the tackle finished that the Third Defendant would be or was involved in the tackle and attributed the fact that the Plaintiff's head was lower than his heads or legs to the fact that Mr Bai lifted also, the Plaintiff's momentum, and an inability on the part of the Second Defendant once a certain stage was reached to correct himself or stop. 18 The Second Defendant agreed it was a normal part of rugby league tackling that you tackle a man hard and put him on the ground hard. His evidence also included the following: Q. It was your intention to administer a powerful tackle? A. Again it was my intention to stop his momentum. Q. Yes, but you intended to do that by picking him up and putting him hard on the ground, that's right, is it not? A.