Sporting Injuries: where (statutory) defence is the best form of offence
In November 2020, two decisions were delivered by the superior courts of NSW in relation to sporting injuries and, particularly, the extent to which the Civil Liability Act 2002 (NSW) (Act) provides protection against claims for such injuries.
In Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc  NSWCA 294, the NSW Court of Appeal dismissed an appeal brought by a rugby league player who was seriously injured during a game after he was ‘spear tackled’ by an opposing player.
Mr Dickson sued both the opposing player, Mr Fletcher and Northern Lakes Rugby League Club, alleging that his injuries were the result of Mr Fletcher’s negligence, which the Club was vicariously liable for.
The key issue which fell for determination was whether, in performing the spear tackle, Mr Fletcher intended to cause injury, thereby engaging s 3B(1)(a) of the Act – a provision which excludes the application of the Act to “the civil liability of a person in respect of an intentional act done with intent to cause injury or death”. This issue assumed significance in circumstances where, if the operation of the Act was excluded, the defendants would be unable to rely on the protection available pursuant to s 5L of the Act with respect to “harm suffered … as a result of the materialisation of an obvious risk of a dangerous recreational activity”.
Whilst the Court accepted the tackle was an “intentional act’ for the purpose of s 3B(1)(a), it did not find the requisite “intent to cause injury” was present. In coming to this conclusion, the Court confirmed that “intent to cause injury” (as the phrase is used in s 3B(1)(a)) comprises two key elements, both of which must be satisfied:
- firstly, the concept of “intent’ requires “a specific actual or subjective intention to achieve the consequence of injury” – mere recklessness is insufficient; and
- secondly, the word “injury” means “if not the injury … which is the subject matter of the claim, at least … an injury of that character” – a general intention to cause an injury, or even a specific intention to cause a different type of injury, may be insufficient.
In Castle v Perisher Blue Pty Limited  NSWSC 1652, the Supreme Court of NSW rejected a claim brought by a skier who sustained serious injury when she collided with a ski instructor on the slopes of Perisher Blue.
Ms Castle sued the ski instructor’s employer, Perisher, alleging it was vicariously liable for its employee’s negligence. The Court found that the collision had occurred as a result of the ski instructor’s failure to take reasonable care and Perisher was vicariously liable for that failure. However, in its defence, Perisher relied on s 5L of the Act and asserted that the collision reflected “the materialisation of an obvious risk of … a recreational activity that involves a significant risk of harm”. Ms Castle opposed such a finding, pointing to the fact that “[s]kiing is a well-known and popular activity undertaken by persons of all ages and levels of competence”.
The Court observed that, in determining whether skiing involved “a significant risk of harm” it was necessary to examine not only the “likelihood of harm materialising”, but also “the potential nature and degree of harm as well” – that is, “[e]ven if the rate of collision per skier is low, the potential harm is high or great … [i]t is not permissible to focus merely on the rate of collisions/accidents or injuries without having regard to the potential consequences.”Having regard to the fact that “the very nature of [skiing] involves proceeding down slopes, often steep, often quickly [and] [o]ne of the thrills of the activity is to go fast”, “[p]ersons participate in the activity often in close proximity to solid objects such as rocks and trees” and “persons have been killed and suffered catastrophic injuries whilst skiing”, the Court determined that skiing was a dangerous recreational activity and, consequently, Perisher was entitled to rely on the defence provided by s 5L of the Act.