Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 Hearing dates: 1 May 2020 Date of orders: 18 November 2020 Decision date: 18 November 2020 Before: Basten JA at [1]; White JA at [18]; Simpson AJA at [39] Decision: 1. Appeal dismissed. 2. The appellant to pay the respondents' costs of the appeal. Catchwords: TORTS – general principles – Civil Liability Act 2002 (NSW) – personal injury – "spear tackle" or "dangerous throw" during a rugby league match – whether "intent to cause injury" – presumption that a wrongdoer intends the natural and probable consequences of his or her conduct. WORDS AND PHRASES – meaning of "intent to cause injury" – Civil Liability Act 2002 (NSW), s 3B(1) – actual, subjective, intention NEGLIGENCE – defences – Civil Liability Act 2002 (NSW) – s 5L materialisation of an obvious risk of a dangerous recreational activity – whether intentional act – whether effected with intent cause injury – recreational activity where an intention to cause some degree of injury is likely or common. Legislation Cited: Civil Liability Act 2002 (NSW), s 3B, 5, 5L, 51, 52; Pt 1A, Pt 7 Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), s 9 Evidence Act 1995 (NSW), s 79 Interpretation Act 1987 (NSW), s 33 Supreme Court Act 1970 (NSW), s 75A Cases Cited: Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 107 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn (1893) 6 R 67 (HL) Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185 Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 Dean v Phung [2012] NSWCA 223; (2012) Aust-Tort Rep 82-111 Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (No 2) [2019] NSWDC 433 Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc [2019] NSWDC 426 Fede v Gray by his tutor NSW Trustee and Guardian [2018] NSWCA 316 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hayer v Kan [2014] NSWSC 126 Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56 McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107; [2007] NSWCA 353; [2007] Aust Tort Reports 81-295 NU v NSW Secretary of Family & Community Services (2017) 95 NSWLR 577; [2017] NSWCA 221 Palmer Bruyn and Parker v Parsons (2001) 208 CLR 388; [2001] HCA 69 Parker v The Queen (1963) 111 CLR 610; [1963] HCA 14 R v Willmot (No 2) [1985] 2 Qd R 413 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492 Scalise v Bezzina [2003] NSWCA 362 Smyth v The Queen (1957) 98 CLR 163; [1957] HCA 24 Stapleton v The Queen (1952) 86 CLR 358-365; [1952] HCA 56 State of NSW v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320 State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 State Rail Authority of NSW v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 TCN Channel 9 Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 West v Mead [2003] NSWSC 161 Zaburoni v The Queen (2016) CLR 482; [2016] HCA 12 Texts Cited: RP Balkin and JLR Davis Law of Torts (4th ed, LexisNexis Butterworths, 2009) Category: Principal judgment Parties: Michael Leslie Dickson (Appellant) Northern Lakes Rugby League Sport & Recreation Inc (1st Respondent) Brendan Fletcher (2nd Respondent) Representation: Counsel: M Cranitch SC/M Daley (Appellant) J Sexton SC/M Best (Respondents) Solicitors: Be Legal (Appellant) Wotton & Kearney (Respondents) File Number(s): 2019/278581 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: [2019] NSWDC 433 Date of Decision: 23 August 2019 Before: Abadee DCJ File Number(s): 2017/350448 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] In 2016 Mr Dickson 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. At trial Mr Fletcher conceded that the spear tackle was an intentional act. The question was whether Mr Fletcher intended to cause injury, thereby excluding the operation of the Civil Liability Act 2005 (NSW) ("the CLA") by reason of s 3B(1)(a). By s 3B(1)(a) the CLA 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 injury. He 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 CLA was excluded because Mr Fletcher intended to cause injury. The Court (Simpson AJA, Basten and White JJA agreeing) dismissed the appeal and held: 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]. 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]. Judgment 1. BASTEN JA: The appellant, Michael Leslie Dickson, was seriously injured in a rugby league match, when subjected to a dangerous throw by an opponent, Brendan Fletcher. The appellant claimed damages in tort. It was common ground, both at trial and on the appeal, that if the claim were governed by the Civil Liability Act 2002 (NSW) (the Act) the appellant should fail due to the operation of the defence under s 5L involving the materialisation of an obvious risk of a dangerous recreational activity. If the claim were not governed by the Act, but was to be determined in accordance with the general law, the appellant was entitled to succeed; defences available under the general law were rejected by the trial judge, a result not challenged on appeal. Whether or not the Act applied depended on whether the case fell within s 3B(1)(a) of the Act: if it did, relevant provisions in the Act, including the defence available under s 5L were not engaged. Consequently, the appellant's case was that the civil liability of Mr Fletcher was "in respect of an intentional act that is done by the person with intent to cause injury": s 3B(1)(a). 2. The trial judge concluded that s 3B(1)(a) was not engaged because the tackle was not effected "with intent to cause injury"; accordingly, the Act, with its defence under s 5L, applied. The claim therefore failed. I agree with Simpson AJA that the appeal from that finding fails. I explain my own reasons for concluding that s 3B(1)(a) was not engaged, but otherwise adopt the reasoning of Simpson AJA. 3. There is no doubt that the tackle undertaken by Mr Fletcher which resulted in injury to the appellant was an intentional act for the purposes of s 3B(1)(a). The critical question is whether it was an act done with intent to cause injury. There are two elements to that question, namely (i) the nature of such an "intent", and (ii) the nature of the relevant "injury". Nature of "intent" 1. An intention can be a state of mind subjectively held by the relevant person, or it can be an intention imputed by the law, based on a presumption that a person intends the natural and probable consequences of a particular act. As explained by the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection, [1] "an actual, subjective, intention" is one where the person's mind is directed to a particular result, achievement of that result being the purpose or design of the action. Even foresight that a particular action would have "an inevitable or certain consequence", whilst strong evidence of an actual subjective intention, was not to be equated with such an intention. [2] Thus, in discussing the definition of "torture" in the Migration Act 1958 (Cth) as involving the intentional infliction of severe pain or suffering to achieve a particular end, the reasoning required that the perpetrator "means to inflict suffering because it is part of his or her ultimate purpose or design to subject the victim to pain and suffering in order, for example, to obtain a confession." [3] 2. Gageler J in SZTAL stated: "[32] Does the policeman 'intend' to subject the person to the appalling gaol conditions? Not obviously; not obviously not; and no amount of contemplating the abstract meaning of 'intend' will supply the answer. The answer depends on why the question is asked." 1. In determining whether an actual intention, or merely a constructive intention, was the preferred meaning, Gageler J observed that "[i]ntegral to making such a choice is discernment of statutory purpose." [4] The choice was identified by Edelman J in SZTAL as follows: "[60] The central question in these two appeals is the meaning of 'intentionally' in s 5(1) of the Migration Act 1958 (Cth), as amended in 2012. [5] There is no dispute that, as the Full Court of the Federal Court held in each appeal, a person intends a result if the person 'means' to achieve it in the sense of having it as the person's desire, aim, or purpose. But the appellants submitted that the concept of intent does not have to bear a narrow meaning which is limited to this sense of desire, aim, or purpose. They submitted that it had a broader meaning in s 5(1). The essential submission of the appellants was that the broader meaning of intention extends beyond desire, aim, or purpose and also 'sees intent established once knowledge of the likelihood of the consequences [ie results] of an act reaches a sufficient degree of certainty'. The appellants submitted that it was a sufficient degree of certainty if the actor knew that the result would occur in the ordinary course of events." 1. Section 3B(1)(a) of the Civil Liability Act creates the same constructional choice. Importantly, it uses the concept of intention twice, first with respect to the act (which must be "intentional"), and then with respect to the consequence ("with intent to cause injury"). This language reflects what are sometimes described as general intent and specific intent. Balkin and Davis, explaining the state of mind of the defendant in a claim for battery, stated: [6] "An act will be intentional if it is a deliberate, wilful act, that is to say, if the defendant 'meant to do it'. [7] It is not a requirement of the tort of battery that the defendant's intention extended to injuring or harming the plaintiff; it is enough that the defendant intended to perform the act which caused the offensive contact with the plaintiff. [8] " It follows that many forms of battery will not fall within s 3B(1)(a). The claim for damages for false imprisonment by a prisoner who was detained beyond the end of his sentence illustrates the point: Cowell v Corrective Services Commission of New South Wales. [9] The detention was entirely deliberate; but the purpose was not to harm Mr Cowell, but to give effect to the terms of a warrant based on a court-ordered sentence. The miscalculation of the sentence, which had been partly remitted, was not necessarily even negligent. 1. Further, the distinction is drawn in a statutory context where the broad purpose of the Act is to deal with actions in negligence, meaning "failure to exercise reasonable care and skill." [10] Whether a person has failed to exercise reasonable care and skill is an objective test not dependent upon any specific intention. The distinction between an objectively determined failure to take precautions against a risk of harm, and positively intending to cause harm, suggests that the latter involves an actual, specific state of mind. By contrast, the distinction between harm which should reasonably have been foreseen and avoided and harm which is the natural and probable consequence of an act is less clear. In the context of the statute, the expression "with intent to cause injury" should be understood in its ordinary meaning of a specific actual or subjective intention to achieve that consequence. 2. Once it is accepted that the proper reading is one of subjective or actual intention, the further observations of Gageler J in SZTAL, quoting Dixon CJ, Webb and Kitto JJ in Stapleton v The Queen, [11] apply: "Where the question is one of subjective intention as to the result of conduct, 'introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous'." That is not to say that the natural and probable consequences, which may rise to the height of being inevitable, will not provide evidence of an actual subjective intention because often that will be the case; the point is rather that it is the actual subjective intention which is relevant. Nature of the injury 1. The second element of the statutory phrase concerns the meaning of "injury". The word appears in s 3B(1)(a) as an abstract concept, but it is clearly intended to refer, if not to the injury (or death) which is the subject matter of the claim, at least to an injury of that character. (It might not matter that the defendant intended to strike or shoot A and cause injury to A, but hit and injured B: such a case would likely engage s 3B(1)(a) although there was no intent to injure B.) The section refers to the injury which has resulted in compensable loss. 2. As explained by Simpson AJA, the evidence before the trial judge supported several possible gradations of injury. First, tackling generally is intended to be sufficiently vigorous to bring the player to ground with force. The intention is not to incapacitate the ball carrier, although it is no doubt foreseeable that on occasion a twisted knee or ankle or a dislocation may occur. There is no specific intent in such cases to cause injury, but rather to gain an advantage in a competitive game. Similarly, in cricket, a fast bowler may bowl short, intending to hit the batsman if he or she is unable to evade the ball. The intention is not to injure the batsman but to cause a sufficient fear of pain to make the batsman step away or otherwise act with indecision. 3. Secondly, there are injuries which may result from acts which contravene the rules of the game. Such actions may include dangerous throws in rugby (as in the present case), fast full tosses in cricket which are above the batsman's waist, or punches in boxing which are below the waist. Such conduct, which may be generically described as foul play, is rarely intentional, but usually involves a misjudgement. It will not usually be intentional, in the sense of a subjective intention to act outside the rules so as to injure the other player, because such conduct may result in the player being sent off or otherwise penalised. Further, to fall outside the rules of the game, generally such conduct need not be undertaken with intention to cause injury; it is sufficient that it has been identified as potentially dangerous at an unacceptable level. 4. Thirdly, there is the possibility of an intentional act of a kind likely to cause minor injury, which is intended, but which also causes a serious injury which is not intended. It may be that this distinction underlay evidence given by Mr Ryan, set out by Simpson AJA. Mr Ryan was of the view that tackling was always designed to cause some "harm". 5. Based on that evidence, the appellant's case appeared to be that a more serious, but unintended, injury would nevertheless fall outside the scope of the Civil Liability Act, because liability for the act (namely the tackle) involved an intention to cause some injury. This appears from the critical paragraph of the statement of claim which alleged that "although he did not intend to cause the serious injury which in fact occurred, he did intend to cause the plaintiff some minor and temporary injury from contact with the ground, this being an inherent and inevitable feature of vigorous rugby league tackles." 6. 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. The injury which was the subject of the present claim resulted from the fact that the tackler fell onto the appellant's head. There was no evidence that he subjectively held an intention to do that, or to cause the injuries which resulted from that act. 7. There is a question as to whether the intentional act must be "unlawful". This concept would impose a constraint on the exclusion from the operation of the Act which is not expressed in the first limb of s 3B(1)(a). It is not even clear that it appears in the second limb ("sexual assault or other sexual misconduct"). The term "unlawful" is imprecise: it does not necessarily mean criminal. It could require an assessment of defences, such as self-defence. That would complicate the application of Pt 7 and possibly render s 51(3) anomalous in some cases. [12] It would introduce the difficulties in determining the scope of "unlawful" in s 52(1) into s 3B(1)(a), where the term does not appear. [13] Although this question need not be resolved, the problems facing any such implication should be noted. 8. It follows that the judge was correct to conclude that s 3B(1)(a) was not engaged and that the defence under s 5L was made out. For these reasons, in addition to those given by Simpson AJA, the appeal must be dismissed. 9. WHITE JA: The appellant, Mr Dickson, sued the second respondent, Mr Fletcher, for damages for personal injuries sustained in a rugby league game played in the local Central Coast competition. The appellant suffered injuries as a result of a tackle in which it was claimed Mr Fletcher wrapped his arms around the appellant, lifted him off the ground and then drove him forcefully to the ground before landing on top of him. The appellant alleged that Mr Fletcher executed the tackle negligently. The case was conducted on the basis that if the Civil Liability Act 2002 (NSW) applied, Mr Fletcher (and the club for which he played which was alleged to be vicariously liable for his alleged tort) would be entitled to the defence available under s 5L because the harm suffered by him was the result of the materialisation of an obvious risk of a dangerous recreational activity. To seek to avoid the operation of that provision, the appellant alleged that, in tackling the appellant and driving him forcefully to the ground, Mr Fletcher negligently did "an intentional act ... with intent to cause injury" within the meaning of s 3B(1)(a). The text of s 3B(1)(a) is quoted by Simpson AJA at [42]. 10. For the reasons given by Basten JA and Simpson AJA, the intent to cause injury (or death) referred to in s 3B(1)(a) is an actual subjective intent. Recklessness is insufficient. 11. The primary judge held that he was not persuaded that Mr Fletcher intended to injure the appellant (J [103]). The primary judge said: "105 ... the Second Defendant consistently denied an intention to injure the plaintiff. He described his tackling style as designed to disturb the balance of the ball carrier. He said that in the incident in question, he did not intend to lift both legs; that he lost control at the point where the plaintiff had both feet off the ground, but was perturbed that the plaintiff was still moving towards his team's in-goal area; and that it was ordinarily part of his objective to bring the ball carrier to the ground, and placed in a certain position for the re-start. None of this evidence was inherently implausible. I accept the second defendant's evidence about his intention in these respects. ... 107 ... I considered that the Second Defendant's intention, after the point where he had lifted the plaintiff, was relevantly to complete the tackle, using his force to stop his momentum (and if possible to move him back towards his own goal line) and to allow for his defensive line to re-align more quickly than the attacking line." 1. Mr Fletcher gave oral evidence and was cross-examined. The findings were based upon the primary judge's acceptance of his credibility. To overcome the findings the appellant had to establish that the findings were glaringly improbable or contrary to compelling inferences (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28] and [29]). 2. The primary judge's acceptance of Mr Fletcher's credibility is not open to appellate review because it might appear on a reading of the transcript that his answers to questions in cross-examination were at some times unresponsive, or that he repeated a mantra that his "only intention was to complete the tackle." The appellant's principal attack on the primary judge's acceptance of Mr Fletcher's evidence was that, according to the appellant's submission, the video evidence, and Mr Ryan's description of that evidence, did not support Mr Fletcher's description of his tackling style and the tackle he said he made. 3. Mr Fletcher gave evidence of a "tackling style" which he developed from his days playing junior football which he described as a "leg hook". The tackling style as described by Mr Fletcher involved the following steps: 1. orient the head and the feet to either the left or right depending on which side the oncoming player is carrying the ball; 2. lead with one leg and grab the oncoming player around 'their lower torso, hips and thigh'; 3. hook the arm under the front leg of the oncoming player and lift to arrest movement; 4. drive forward with the tackler's rear leg to land on top of them as they fall backwards. 1. Mr Fletcher gave evidence that he applied this technique in the tackle that was the subject of the proceedings by wrapping his arm around the appellant's thigh, putting his head to one side and hooking the appellant's leg, then rotating the appellant to stop his movement. He said: "My intention was to hook the leg, spin him to drive backwards towards his lower back or back on the ground." 1. He said that he intended to rotate the appellant. He said that he found that when he was semi-horizontal there was no power and he lost control over the tackle. He said that as he picked the appellant up and hooked his leg and as they turned to go in the air it felt awkward "... and then I felt his top go over. I – I can't pinpoint as to – I don't know when that was happening. It was only when I felt something in the tackle." There was only a moment when he felt loss of control in the completion of the tackle. 2. The appellant submitted that the primary judge should have rejected this evidence because it was inconsistent with the video evidence and Mr Ryan's description of that video evidence as to how the tackle was made. The appellant submitted that the video evidence showed that Mr Fletcher did not attempt to hook one of the appellant's legs to lift him off the ground so as to unbalance him, but rather, he lifted both legs off the ground and then commenced a spear tackle by lifting the appellant high into the air then shuffling his feet in order to twist the appellant and then drive the appellant (who was then upside down) forcefully to the ground, and then fell on him so that they landed heavily together, crushing his shoulder into the appellant's face. Thus, it was said that the primary judge's acceptance of Mr Fletcher's evidence that he did not intend to inflict an injury on the appellant and that his only intention was to complete the tackle, should be rejected because Mr Fletcher's evidence of the tackle he effected and intended to effect was inconsistent with the evidence of the tackle actually effected. 3. But even if the premise of this submission were accepted, it would not follow that the primary judge's acceptance of Mr Fletcher's evidence as to his intention in effecting the tackle should be rejected. If the premise of the submission were accepted, the only consequence would be that it should be found that Mr Fletcher did not make the kind of tackle that he said he was attempting to make, and, in his mind, the kind of tackle that he did make. 4. In any event, having viewed the video, it does not appear that Mr Fletcher lifted both of the appellant's legs off the ground with his arms locked around his thighs, as Mr Ryan deposed, rather than Mr Fletcher's having hooked an arm around one leg with the appellant's other leg remaining on the ground and below the horizontal line until control was lost in the tackle and Mr Fletcher drove the appellant into the ground. 5. There is nothing glaringly improbable in the primary judge's acceptance of Mr Fletcher's evidence as to how the tackle was effected or as to his evidence as to his intention in making the tackle. 6. Mr Ryan's evidence was that it is a feature of the way the game of Rugby League is played at an adult level that tackles are aimed at lowering the competence of the attacking players by physical attrition and the trauma of severe bodily impact, both in the tackle and when the tackled player hits the ground. His evidence was that this is how coaches for many years have coached and trained their players to defend. 7. The primary judge generally accepted the merits of Mr Ryan's opinions (J [66]), but that acceptance need not have translated, and did not translate, into a finding that in effecting the tackle Mr Fletcher intended to cause some injury to the appellant. There is no proper basis to set aside the primary judge's factual finding that depended upon his assessment of Mr Fletcher's credibility that Mr Fletcher did not intend to injure the appellant. I agree with the primary judge that Mr Fletcher's acceptance that he intended to put the appellant to the ground forcefully falls short of an intention to injure him (J [108]). 8. The acceptance by this court of the primary judge's finding of fact as to the absence on the part of Mr Fletcher of an intention to injure the appellant means that it is 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). 9. The doubt raised in the circumstances of a case such as the present is how the literal meaning of those words can be accommodated with the evident legislative intention expressed in Div 5 of Pt 1A to limit a defendant's liability in negligence for harm to a plaintiff resulting from a recreational activity engaged in by the plaintiff where an intention to cause some degree of injury might be an inherent part of the sport (such as boxing), or is likely or common (in various degrees) in sports such as in rugby league, rugby, Australian football and football. 10. Basten JA suggests that s 3B(1)(a) is engaged only where the intent is to cause the injury which is the subject of the claim (at [15]). It is arguable that the words "with intent to cause injury" should not be read as meaning "with intent to cause the injury". That is, it is arguable that the operation of s 3B(1)(a) is not excluded because the injury suffered is more severe than that that the tortfeasor intended to inflict. 11. Another possible way of reconciling the width of s 3B(1)(a) with the apparent legislative intention underlying Div 5 of Pt 1A would be to confine the exclusion of civil liability under s 3B(1)(a) to unlawful intentional acts done with intent to cause injury or death. That was the view apparently favoured by the primary judge (J [104]), contrary to the view expressed by Hulme J in McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107 at [38]-[41]. 12. As Simpson AJA observes, the primary judge's reservations as to the correctness of the view of Hulme J in McCracken that s 3B(1)(a) is not limited to criminal conduct did not affect his Honour's factual finding that Mr Fletcher did not intend to inflict an injury on the appellant. In the light of that finding, the question whether s 3B(1)(a) is confined only to criminal conduct as the primary judge suggested it might be, or applies only if the defendant intends to cause the particular injury suffered by the plaintiff (as Basten JA suggests), does not arise for decision. 13. If there is an ambiguity in s 3B(1)(a), which the appellant would deny, then recourse to the Explanatory Note for the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) would support the primary judge's observations (at J [97]) as to the correctness of Hulme J's observations (at [38]-[41]) in McCracken. The Explanatory Note states that s 3B was designed to "deal with how the [Civil Liability Act] is to apply to intentional criminal acts ...". Section 3B was a successor provision to s 9 of the original Act which was repealed in the restructure of the Act by the Civil Liability Amendment Act. Section 9(2)(a) was in relevantly identical terms to s 3B(1)(a) and was commented on in the Second Reading Speech: "Clause 9(2) sets out the awards that are excluded from the operation of the bill. Importantly, intentional acts done with intent to cause injury or death or acts involving sexual assault are excluded. This exclusion ensures that the compensation for injuries arising from serious criminal acts is not limited by the bill." Whether the word "unlawful" should be implied as qualifying "intentional act" in s 3B(1)(a) need not be decided. 1. For these reasons I agree with the orders proposed by Simpson AJA. 2. SIMPSON AJA: By Statement of Claim filed in the District Court on 17 November 2017 the appellant (Michael Leslie Dickson) claimed damages for personal injury he suffered in the course of a rugby league match on 24 April 2016. He asserted that his injuries were caused by the negligence of the second respondent (Brendan Fletcher) for whose negligence he further asserted that the first respondent (Northern Lakes Rugby League Sport & Recreation Club Inc – "the Club") was vicariously liable. On 23 August 2019 Abadee DCJ dismissed the claim and ordered that judgment be entered for the respondents: Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc and Anor (No 2) [2019] NSWDC 433. 3. Put shortly, Mr Dickson pleaded that, at a point in the match when he was carrying the ball, Mr Fletcher lifted him off the ground before driving him forcefully to the ground (in a manoeuvre known as a "spear tackle"). A curiosity of the pleading is that the final paragraph was in the following terms: "14. The Plaintiff claims damages in accordance with s 3B(1)(a) of the Civil Liability Act (NSW) on the basis that Brendan Fletcher in tackling the Plaintiff and driving him forcefully to the ground negligently did 'an intentional act that was done by the person with intent to cause injury' in that although he did not intend to cause the serious injury which in fact occurred, he did intend to cause the Plaintiff some minor and temporary injury from contact with the ground, this being an inherent and inevitable feature of vigorous rugby league tackles." 1. Reliance placed on s 3B(1)(a) in the Civil Liability Act 2002 (NSW) ("the CLA") in this manner is inapposite. Section 3B(1)(a) does not create a cause of action. Section 3B specifies various categories of proceedings in which the generally restrictive provisions of the CLA do not apply. 2. Section 3B(1)(a) of the CLA is relevantly in the following terms: "(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 of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person – the whole Act except." (italics added) [the paragraph goes on to identify other presently immaterial exclusions]. 1. What was intended by paragraph 14 of the Statement of Claim was, no doubt, an assertion that the provisions of the CLA were excluded on the basis that Mr Dickson's claim came within s 3B(1)(a) because the act that gave rise to the claim was an intentional act done with intent to cause injury. On behalf of Mr Dickson it was at all times expressly acknowledged that, if the CLA applied, the claim would be defeated by reason of various defences for which that legislation provided. 2. Reliance on s 3B(1)(a) was incompatible with the pleading in negligence. In State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Gummow and Hayne JJ said, at [270]: "As Williams v Milotin [(1957) 97 CLR 465; [1957] HCA 83] makes plain, negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence." This passage was extracted in the decision of this Court in McCracken v Melbourne Storm Rugby League Football Club Limited [2007] NSWCA 353. 1. However, no point to that effect was taken at first instance, the respondents have not sought to raise the issue by notice of contention, and the Court has not heard any argument on the apparent paradox in Mr Dickson's pleading. This Court must therefore proceed on the basis that there was no impediment to Mr Dickson's simultaneous assertions that the injury on which he sued was negligently inflicted, and was inflicted with the intention of causing harm. The initial question, both in the District Court and in this Court, was whether, by reason of s 3B(1)(a), the operation of the CLA is excluded because Mr Fletcher intended to cause injury. 2. There are, relevantly, two limbs to s 3B(1)(a), proof of each of which is essential if s 3B(1)(a) is to operate to exclude the application of the provisions of the CLA to a claim. The two limbs are: (i) that the "person" (the putative defendant) does an intentional act; and (ii) that that act is done with intent to cause injury or death. In my opinion, the onus of proof of the application of s 3B(1) lies on the plaintiff: see Fede v Gray by his tutor NSW Trustee and Guardian [2018] NSWCA 316 at [119]. If both limbs were established Mr Dickson's claim for damages would be determined on common law principles. 1. The first limb was not in issue. Mr Fletcher conceded that the act (the "spear tackle") that caused Mr Dickson's injury was an intentional act. What was in issue was whether that act was done with intent to cause injury (there being no suggestion that it was done with intent to cause death). 2. In separate but relevantly identical defences each respondent denied that s 3B(1)(a) applied to the claim, and pleaded a number of defences for which the CLA provides. Specifically the respondents relied on * s 5H, which protects a defendant from liability for failure to warn of an obvious risk (Mr Dickson had not particularised failure to warn as a head of negligence); * s 5I which protects a defendant from liability for harm resulting from the materialisation of an inherent risk; and * s 5L, which protects a defendant from liability for harm resulting from the materialisation of an obvious risk of a dangerous recreational activity. 1. Alternatively, the respondents pleaded the common law defence of volenti non fit injuria and alleged that Mr Dickson was guilty of contributory negligence. 2. Given the concession made by Mr Dickson, noted at [43] above, it is not necessary to explore the CLA defences. 3. The claim came on for hearing before Abadee DCJ (the primary judge) in August 2019. At an early stage of the proceedings it was agreed that the hearing would proceed only on the issue of liability and that any question of the assessment of damages would be deferred to a later date. Also deferred to a later date was the question of the asserted vicarious liability of the Club for any wrongdoing by Mr Fletcher. It was not suggested that the Club was liable in any other way. 4. The first and principal question for determination was whether the operation of the CLA was excluded. The answer to that question depended on whether Mr Dickson could establish that, in the manner in which he executed the tackle, Mr Fletcher intended to cause injury to Mr Dickson. That is a question of fact. If that question were determined in Mr Dickson's favour the second question was whether, on the application of common law principles, Mr Fletcher was liable in negligence for Mr Dickson's injuries. 5. The primary judge found against Mr Dickson on the first question. After an exhaustive review of the evidence and relevant authority he found (at [103]) that Mr Dickson had failed to establish that Mr Fletcher intended to cause injury. He considered it unnecessary to determine the defences pleaded under the CLA. He accordingly entered judgment for the respondents and ordered Mr Dickson to pay their costs of the proceedings. 6. Against the possibility of error in his primary conclusion, the judge proceeded, on a contingent basis, to determine the common law issues. He concluded that, if common law principles operated, Mr Fletcher would be found to have owed Mr Dickson a duty of care, that his conduct was in breach of that duty, that the breach of duty caused injury to Mr Dickson, and that neither of the common law defences advanced on behalf of the respondents would succeed. Accordingly, Mr Dickson would have been entitled to an award of damages to be assessed at common law. 7. Mr Dickson appeals against the fundamental finding that Mr Fletcher had not been shown to have acted with intent to cause injury. The appeal is governed by s 75A of the Supreme Court Act 1970 (NSW) pursuant to which (subject to limitations imposed by Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and numerous decisions thereafter) the appeal is a rehearing and this Court has the powers and duties of the court from which the appeal is brought, including powers to draw inferences and make findings of fact. The respondents have not sought to challenge the contingent finding of negligence, nor the rejection of their hypothetical defences (volenti non fit injuria and contributory negligence). The relevant facts 1. Mr Dickson was contracted to play rugby league for the Berkeley Vale Rugby League Club, known as the "Panthers". He was a "prop forward". Mr Fletcher was contracted to play for the Northern Lakes "Warrior" rugby league team. He was also a "prop forward". On 24 April 2016 the two teams were scheduled to play against each other in a "Second Division" game of the "Country Rugby League" competition in Northern Lakes. Rules of the National Rugby League "(NRL)" ("Rugby League Laws of the Game") applied. The entire match was video recorded. 2. After about 32 minutes of the match and shortly before half time Mr Dickson had possession of the ball and was running towards the Northern Lakes goal line. Mr Fletcher sought to impede his progress. To do this he used the manoeuvre commonly called a "spear tackle", but, in the Laws of the Game, called "a dangerous throw". 3. It was found by the primary judge (and does not appear to have been disputed) that a spear tackle is inherently dangerous and is contrary to the Laws of the Game. 4. As a result of Mr Fletcher's manoeuvre Mr Dickson hit the ground, landing on his neck. Mr Fletcher completed the tackle and fell on Mr Dickson with his (Mr Fletcher's) left shoulder contacting Mr Dickson's head around the nose and eyes. Mr Fletcher remained with Mr Dickson until first aid officials arrived on the scene, apologised, and expressed concern for his welfare. Mr Dickson suffered very severe head injuries, specifically to his face. Fortunately, he suffered no spinal injury. It seems to be reasonably clear that the injuries were caused, not by Mr Dickson hitting the ground, but by Mr Fletcher falling on him, with his shoulder to Mr Dickson's face. 5. Having watched the video of the incident a number of times, both in real time and slow motion, the primary judge described it as "confronting viewing". 6. Following the match a complaint of contravention of the Laws of the Game was made against Mr Fletcher. Eventually, he pleaded guilty to a charge that he engaged in "a dangerous throw". The trial 1. A short summary of the trial is as follows. It will be necessary to outline in some detail the evidence relevant to the issue of Mr Fletcher's intention. 2. Both Mr Dickson and Mr Fletcher gave oral evidence. A former rugby league coach, Mr Warren Ryan, provided two evidentiary statements that were admitted over objection and were treated as expert reports for the purposes of s 79 of the Evidence Act 1995 (NSW): Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2019] NSWDC 426. Mr Ryan answered four specific questions to which his attention was directed. He gave oral evidence and was cross-examined. No challenge is now made to the admission of his evidentiary statements nor his opinion evidence. Also in evidence was the video recording of the whole of the match. Only one other witness, Mr Ken Smith, who was the President of the Berkeley Vale Rugby League Club, gave evidence. Mr Smith was cross-examined at some length about the circumstances of the tackle, and the disciplinary proceedings against Mr Fletcher, but neither he nor Mr Dickson could cast any light on the question whether Mr Fletcher intended to cause injury to Mr Dickson. That fell to be determined on the evidence of Mr Fletcher, whatever inferences could be drawn from observation of the video, and (to a limited extent) the evidence of Mr Ryan. 3. Mr Fletcher denied any intention to cause injury. He agreed that, in the completion of the tackle, he had lifted Mr Dickson into a dangerous position. Under sustained cross-examination he maintained that his (only) intention had been "to complete the tackle". But he answered "yes" to the question: "Is it the fact that you intended to drive him to the ground with force using your body weight and your effort?" 1. Mr Ryan worked from a list of assumptions (which he had helped to compile) as the foundation for his opinion. The assumptions were a step by step description of the relevant part of the match, including the tackle. Mr Ryan's opinion, expressed in a report dated 20 December 2018, was based on a close analysis of the video recording of the match, from which the list of assumptions was drawn. Having watched the video recording, both in real time and slow motion (and on a sophisticated large screen at Fox Studios) Mr Ryan compiled an account of what had happened as he perceived it. That account is as follows: Mr Dickson had possession of the ball and was running from right to left towards the "defenders" (Northern Lakes). Mr Fletcher came towards him to make the tackle; Mr Dickson attempted to step to his left. Mr Fletcher came from the right side and made contact, using his right shoulder, and grabbed both of his arms in a circle below Mr Dickson's hips and "largely" around his thighs. Mr Fletcher manoeuvred himself into a position directly underneath Mr Dickson from where he was able to lift him. Mr Dickson remained vertical, rotating his body to face the reverse direction. Mr Fletcher rose to his full height and lifted Mr Dickson off his feet, causing Mr Dickson's body to rotate clockwise, so that his "legs and body alignment got beyond the horizontal", and his head, neck and shoulders were closer to the ground than his feet. Mr Fletcher lifted his left elbow and had Mr Dickson "well and truly off the ground". His left elbow was quite high, at the end above his own head. He was rotating his upper trunk so that when he finished the tackle he was not just dropping Mr Dickson but "bringing him down to the ground with the whole weight of the tackler's upper body being put into the driving down". The tackler (Mr Fletcher) was "lifting, turning and rotating his own torso" so as to be in a position to drive Mr Dickson down to the ground. During the entire tackle Mr Fletcher had both hands clenched together forming a circle below Mr Dickson's hips and "largely around his thighs". 2. The last of four specific questions Mr Ryan was asked to answer was: "(d) whether the video footage of the tackle revealed an intentional act which was done with intent to cause injury". 1. On the basis of the series of events described above Mr Ryan considered that the tackle was both a "dangerous throw" and "foul play", each of which was contrary to the Laws of the Game. 2. Uncontroversially, Mr Ryan considered that the tackle was an intentional act. He considered, with respect to the question of intention to cause injury, that three matters called for consideration. These were: "(a) The manner in which, according to my experience and knowledge of Rugby League, tackles are performed. (b) The goals which are sought to be achieved by players in making tackles at an adult level. (c) The manner in which coaches of rugby league teams have taught and encouraged their players as to (a) and (b)." 1. Mr Ryan noted that, although his experience had very largely been at "elite levels", he was familiar with how the game is played at adult levels, and that, in any event, the Laws of the Game are generally applicable, and govern reserve grade matches in country competitions. Mr Ryan then expressed the following opinions: "14. Rugby league is a fast, intense, physical contest involving heavy and often violent collisions by defenders on attackers. Most tackles are vigorous, with a view to discouraging the attacker's run, reducing the attacker's energies, enthusiasm and confidence and disrupting the flow of the attack. Tackles are aimed at lowering the confidence of the attacking players by physical attrition and the trauma of severe bodily impact both in the tackle and when the tackled player hits the ground. This is how coaches for many years have in my experience coached and trained their players to defend. … 16. Rugby league players in adult competition matches will ordinarily endeavour, if possible, and are certainly so taught and encouraged by their coaches and trainers, to make significant impact at the initial collision stage of a tackle, by using timing, footwork and weight transference to accelerate into the tackle with optimum force. They are also taught and encouraged by their coaches and trainers that when they have caught an attacking player, to put him onto the ground forcefully to cause hard and bruising impact with the ground which will hurt and discourage the attacker. Minor injury to the tackled player is a necessary and obvious outcome of such tackling. [In a later evidentiary statement Mr Ryan modified the last sentence so that it read]: "Minor injury to the tackled player is an obvious outcome of such tackling"]. 17. It is not possible from examining the video footage depicting the tackle to conclude that Fletcher actually intended to cause serious injury or the particularly severe injury which the plaintiff unfortunately suffered. 8. However, from my viewing of the video footage, I conclude that in executing the tackle, Fletcher used a tackling method which would be regarded by virtually all Rugby League coaches, adult players and experienced observers of the game as unreasonably dangerous and which Fletcher could and should have avoided. 19. At the stage when the plaintiff was being lifted by Fletcher, this threw the plaintiff's legs upwards, sending the plaintiff into a spin which rotated and eventually inverted his body so that his downward descent would be head first. These actions as depicted on the video footage constituted unreasonably dangerous play for this reason." 1. Mr Ryan gave an affirmative answer to question (d) – that is, he considered that the video footage revealed that the tackle was both an intentional act, and was done with intent to cause injury. As mentioned above, there is no challenge to the admission of that evidence. 2. In a supplementary report prepared during the course of the hearing Mr Ryan made some minor corrections, including to par 16 (incorporated in the extract above), to his first report. Other than that to par 16 the corrections are immaterial. The primary judgment 1. Drawing on both Mr Ryan's account of his observations of the video and also his own observations the primary judge recorded a description of the tackle which he accepted as accurate. That description included the following: "(7) [Mr Fletcher] comes in from the right side of [Mr Dickson] to tackle him and makes contact, using his right shoulder; and wraps both of his arms in a circle below the hips and largely around [Mr Dickson's] thighs (to interpolate, this struck me as being a perfectly normal approach to tackling); (8) When [Mr Fletcher] has got hold of [Mr Dickson], using both arms, [Mr Fletcher] has his legs trailing well behind him. At this point his body is in an angle position and is in no position to lift [Mr Dickson], the tackled player; … (12) [Mr Fletcher] then lifted [Mr Dickson] off his feet, doing so by rising to his full height, his feet under him; (13) When [Mr Fletcher] lifted [Mr Dickson], he caused [Mr Dickson's] body to rotate clock-wise, so that [Mr Dickson's] legs and body alignment go beyond the horizontal, and [Mr Dickson's] head, neck and shoulders are closer to the ground then [sic – than] his feet; (14) During the lift, [Mr Fletcher] lifts with his left elbow coming up and he then has [Mr Dickson] well and truly off the ground. [Mr Fletcher's] left elbow is quite high, even above his own head. [Mr Fletcher] is also rotating his own upper front so that when he finishes the tackle he is not just dropping [Mr Dickson] but is bringing him down to the ground with a whole weight of [Mr Fletcher's] upper body being put into the motion of driving and down. [Mr Fletcher] which was lifting, turning and rotating his own torso so he was in a position to drive [Mr Dickson] down to the ground [sic]; (15) During the entire tackle, [Mr Fletcher] had both hands in effect clenched together forming a circle below the tips [sic - hips] of [Mr Dickson] and largely around his thighs." 1. The primary judge accepted both Mr Dickson and Mr Fletcher as truthful witnesses. He considered that Mr Fletcher: "57 … listened intently to and patiently answered a long series of questions in cross-examination as to his objectives when he made the tackle and how he sought to accomplish those objectives. He made many concessions, when appropriate." He rejected characterisation of Mr Fletcher as "evasive" put by senior counsel for Mr Dickson and said that he detected no unwillingness by him to answer questions. 1. He found Mr Ryan to have been "sometimes less than impressive", but rejected a number of specific criticisms directed at him, and ultimately found that, while cross-examination of him was 'hostile", there was little of substance in the attack on the merits of his opinion. He accepted, generally, Mr Ryan's detailed description of the tackle. 2. Directing himself to the critical question of Mr Fletcher's intent to injure, the primary judge extracted passages of his cross-examination, in response to which he maintained, firmly, that he had no intention of injuring Mr Dickson. The primary judge found that Mr Fletcher: "72 …intended to use his force to bring [Mr Dickson] to the ground … so that [Mr Dickson's] head would be facing towards the Northern Lakes goal line…" and: "73 …although [Mr Fletcher] intended to go to ground with [Mr Dickson], he did not intend that any part of his body (ie his shoulder) would connect with [Mr Dickson's] face, or head." 1. He added that no such suggestion had been put to Mr Fletcher and that any such intention would have constituted a "clear contravention" of Rule 15(b) of the Laws of the Game, by which, intentional, reckless or careless contact with the head or neck of an opponent when tackling constitutes misconduct. 2. He accepted Mr Fletcher's evidence that following the tackle he remained with Mr Dickson and apologised and expressed concern for his welfare. 3. The primary judge referred to Mr Ryan's evidence to the effect that tackling in rugby league: "86 …necessarily involves the tackler intending to exert force in a fashion intended to result in at least a 'minor' injury: … 'to cause a hard and bruising impact with the ground which will hurt and discourage the attacker'." 1. He considered that if that evidence were "true", he would agree with a submission advanced by the respondents: "87 …that prima facie, every tackle in Rugby League involving some level of carelessness of the tackler(s) would satisfy both limbs of s 3B(1)(a) in the unfortunate event that the ball carrier was injured." He expressed doubts about whether such a result came within the intention of Parliament in enacting the CLA, adding: "…it seems to me a surprising result that Parliament could have intended that the [CLA] (intended to encourage 'personal responsibility') would operate in such a fashion that the question of whether a Rugby League player could be sued in a way that would exclude the [CLA], for tackling another player, who was injured as a result of the tackle because of some level of carelessness (actionable in negligence or in battery), would depend upon the extent of the injury to the tackled player. That does not seem to me to represent a principled position; but would rather bring about capricious results." 1. The primary judge referred to the decision of the Supreme Court in McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107, and, on appeal ([2007] NSWCA 353); [2007] Aust Torts Reports 81-295 upon which Mr Dickson had relied, and stated that he considered himself not bound by the first instance decision in that case. 2. McCracken was a case that bore significant factual similarities to the present. Mr McCracken suffered injury as a result of being tackled in a rugby league match by two players from the opposing team. The description given of the tackle closely resembles the tackle by Mr Fletcher. Mr Ryan gave expert evidence in similar terms to that he gave in the present case. 3. Hulme J, at first instance, held that the tacklers intended to cause injury, and, accordingly, by the application of s 3B(1)(a), the CLA did not apply. He held that "an intentional act that is done with intent to injure" is not limited to conduct that is criminal and that Mr McCracken's injuries were caused by the negligence of the tacklers. He therefore proceeded to award damages assessed at common law. 4. Hulme J's conclusions with respect to s 3B(1)(a) were not the subject of decision on appeal. That may have been because it was, belatedly, realised that the relevant law was not that of NSW, but that of Victoria, and no equivalent of the CLA appears to have been applicable. Whether by reason of s 3B(1)(a) or otherwise, the CLA did not apply. 5. Both at first instance and on appeal (by reference to video recording of the match) it was held that negligence had been established.) In this Court, at [19] Ipp JA, with whom Beazley JA and Basten JA agreed, said: "…but in the end, the issue of liability must be determined largely by this Court's impression of what the video recording reveals." 1. In saying that he was not bound by the decision in McCracken the primary judge drew attention to factual differences between the two cases. He thought that, in McCracken, the tackle produced: "…what might be viewed as the natural and probable consequence of a spear tackle – spinal damage to the ball carrier caused by the force applied to the ball carrier's neck after its impact on the ground." 1. By contrast, in the present case, the damage to Mr Dickson was caused by the contact between Mr Fletcher's shoulder and Mr Dickson's face. The primary judge concluded: "91 …I am not convinced that the natural and probable consequences of a spear tackle include part of the tackler's body falling upon the ball carrier's face.: 1. The primary judge then considered the question: "what is meant by 'intent' to injure?" and referred to what he called a "maxim" that wrongdoers are presumed to intend the natural and probable consequences of their conduct. He referred specifically to the decision of the High Court in Palmer Bruyn and Parker v Parsons (2001) 208 CLR 388; [2001] HCA 69. Notwithstanding what he had said at [91], he appears to have considered that the "maxim" as stated in Palmer Bruyn was confined to "classically 'intentional torts'" (in that case, the tort of injurious falsehood). He considered it "not obvious" that the High Court applied the maxim to the tort of negligence or (negligent) battery. 2. The primary judge expressed doubt about the correctness of Hulme J's construction of s 3B(1)(a), that is, that it is not limited to criminal conduct (at [97]). 3. He expressed himself "not persuaded" by Mr Dickson that Mr Fletcher intended to injure him, and gave nine cumulative reasons for that. 4. As it will be necessary when addressing the grounds of appeal to explore in more detail some of these reasons, for present purposes a short synopsis will suffice. The nine reasons may be summarised as: (i) Mr Dickson carried the onus of proof; s 140(2) of the Evidence Act 1995 (NSW) requires that the "level of proof" reflect the gravity of the conduct in question; it is a "very serious matter" to say that, in executing a tackle, even a dangerous and unlawful spear tackle, Mr Fletcher intended to injure Mr Dickson; a finding that Mr Fletcher intended to injure Mr Dickson was "tantamount to a finding that he committed the criminal offence of assault" (at [104]); (ii) Mr Fletcher consistently denied any intention to injure and explained his "tackling style" as "designed to disturb the balance of the ball carrier" and said that, in the incident in question, he did not intend to lift both of Mr Dickson's legs, that he lost control at the point at which both of Mr Dickson's feet were off the ground and that he was perturbed that Mr Dickson was still moving towards the goal area. That evidence was not "inherently implausible"; (at [105]); (iii) it was not clearly put to Mr Fletcher that he intended to injure (as distinct from intending to cause serious injury; cross-examining counsel framed his questions on the basis that Mr Fletcher did not intend to cause the severe injuries in fact suffered, or any serious injury) (at [108]); (iv) that the tackle was illegal according to the Laws of the Game did not point to an intention to injure (at [110]); (v) significant weight was not to be ascribed to Mr Ryan's evidence that the object in every tackle is to cause minor injury (at [111]); (vi) there were factual distinctions between the circumstances of this case and those of McCracken (at [113]); (vii) although the manoeuvre of tackling by lifting is inherently dangerous and gives rise to a real risk of injury, in the circumstances as perceived by Mr Fletcher, intent to injure was not established (at [114]); (viii) almost instantaneously after the tackle, Mr Fletcher showed concern for Mr Dickson and apologised; that conduct was not consistent with an intention to injure (at [117]); (ix) some limited support for the conclusion that intent had not been established could be drawn from a factual decision of the Supreme Court of the Australian Capital Territory (Re Lenfield (1993) Aust Torts Rep 81-22) that a school boy who performed a spear tackle "probably did not intend to injure" and that infringement of a Law of the Game intended to give effect to player safety was not conclusive proof of an intent to injure (at [118]). 1. These nine reasons may be reduced to a single compendious proposition: that, having regard to: * the onus of proof, the nature of the fact sought to be proved, and the standard of proof required by s 140 of the Evidence Act; and * Mr Fletcher's own evidence of what he perceived, what he did and his denial of any intention to injure; * Mr Dickson had failed to discharge the onus he bore. 1. The references in the reasons to the decisions in McCracken and Lenfield can be put to one side; the primary judge acknowledged that each of those decisions involved findings of fact in different cases. Although included in the nine reasons, they do not appear to have borne substantially on the outcome. 2. The primary judge then summarised his conclusions as follows: "119 …the way in which s 3B(1)(a) was pleaded …, the evidence of [Mr Fletcher], the requisite standard of proof (affected by s 140(2) of the Evidence Act) and the absence of cogent evidence to the contrary, point to the conclusion that the intentional act of making the tackle involved a mental state of negligence. As was determined in Croucher, at [117] a negligent battery will not engage s 3B(1)(a)." (Italics in original) The reference to Croucher was a reference to the decision of this Court in Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132. 1. As an inevitable consequence of his conclusions, the primary judge dismissed the claim against Mr Fletcher and, notwithstanding that the issue of the Club's liability had been deferred, he also dismissed the claim against it, but allowed the parties an opportunity to review that determination if they considered it appropriate to do so. So far as the evidence goes no application has been made. Plainly, if Mr Dickson could not succeed against Mr Fletcher, he could not succeed against the Club and the approach taken by the primary judge was both sensible and practical. Grounds of appeal 1. Fourteen grounds of appeal were pleaded. Seven attacked intermediate factual findings made by the judge en route to his ultimate conclusion on intention. Seven grounds alleged errors of law which, Mr Dickson contended, infected the fact finding process. 2. In large measure Mr Dickson's contention was that the ultimate factual conclusion, that the intent to injure had not been proved, and at least some of the intermediate facts, were contradicted by what could be seen on the video. He relied on the decision in McCracken (in the Court of Appeal) (at [19]) as authority for the proposition that this Court is able to draw its own conclusions from the video footage. 3. Mr Dickson further submitted that the primary judge failed to give adequate consideration to the whole of the evidence in specific identified respects, in particular to Mr Ryan's evidence and the video recording. 4. By grounds 1 to 6 and ground 13 respectively Mr Dickson asserts various errors of fact and errors in the process of reasoning to the ultimate factual conclusion. In the interests of economy I paraphrase and/or summarise: (i) that the finding (at [105]) that Mr Fletcher did not intend to lift Mr Dickson's legs but that he lost control of the tackle could not be supported when regard is had to the video footage and Mr Fletcher's "admissions" and "concessions" in cross-examination (the submissions did not descend to any identification of the "admissions" or "concessions"); (ii) that the primary judge failed to consider the whole of the evidence and, specifically, failed to give adequate consideration to Mr Fletcher's evidence that, having lifted Mr Dickson, he intended to drive him forcefully to the ground and did so at a point when it was no longer necessary in order to prevent Mr Dickson's progress with the ball; (iii) that a finding (at [141]) that Mr Fletcher "inadvertently" allowed his shoulder to fall on Mr Dickson's face was erroneous because, rather than being a "separate or concurrent event" as (it was contended) the primary judge treated it, it was "an inherent part of the manner" in which Mr Fletcher tackled Mr Dickson [par [141] appears in that part of the judgment in which the primary judge dealt, contingently, with the question of negligence]; (iv) that the primary judge wrongly characterised "the end stage" of the tackle as "merely a case of [Mr Fletcher] falling and landing on a player who was on the ground when in fact the injury was caused by the intentional act of Mr Fletcher"; (v) that the primary judge erred in his consideration of the facts by failing to hold that the relevant "intentional act" was the whole of Mr Fletcher's conduct in effecting the tackle; (vi) that the primary judge misconceived the facts and erred in law by drawing a distinction between a neck injury intentionally caused in a spear tackle and the facial injury so caused (at [91]); (xiii) that the primary judge's finding with respect to Mr Fletcher's credibility was flawed because he thought, wrongly, that Mr Fletcher was "not evasive" in answering questions. 1. By grounds 7-12 and 14 respectively Mr Dickson asserts that the primary judge erred in law in: (vii) failing to apply the "presumption in tort law that a defendant intends the natural and probable consequences of his acts"; (viii) holding (at [97]) that s 3B(1)(a) may be limited only to criminal conduct; (xi) placing reliance on s 140 of the Evidence Act and the potential effects on Mr Fletcher's reputation if a finding that he intended to injure were made; (x) reasoning that Parliament could not have intended that the application of the CLA would depend upon the extent of any injury to a player; (xi) holding that, if Mr Ryan's evidence (that in rugby league tackling necessarily involves an intention to exert force intended to result in at least minor injury) were "true", the result would be a significant encroachment on the provisions of Pt 1A, Div 5 of the CLA (which is concerned with dangerous recreational activities); (xii) applying the rule in Browne v Dunn (1893) 6 R 67 (HL) (at [108]); (xiii) relying on an irrelevant consideration, namely that, after the tackle, Mr Fletcher apologised to Mr Dickson. 1. Since it is argued that the asserted errors of law affected the factual findings it is convenient to deal first with those grounds. Ground 7 1. Ground 7 invokes what is said to be a presumption that a person intends the natural and probable consequences of his or her conduct: Palmer Bruyn and Parker v Parsons (2001) 208 CLR 388; [2001] HCA 69. In Palmer Bruyn, Gummow J said: "73 … Thus, it is said as a general rule that a man is presumed to intend the natural consequences of his acts." 1. On behalf of Mr Dickson it was submitted that he was deprived of the opportunity to persuade the primary judge that the element of intention could be established by looking to the natural and probable consequences of Mr Fletcher's conduct. 2. That submission is unfounded and unfair. Mr Dickson was not deprived of the opportunity to put to the primary judge any argument considered relevant. There is nothing in the opening by senior counsel, in his written submissions, or in the transcript of his final oral submissions, that raises any hint of the presumption. No such submission was made because, and only because, senior counsel did not choose to make one. 3. As mentioned above, the primary judge alluded to Palmer Bruyn but appears to have discarded the presumption as inapplicable in torts other than intentional torts. Rather, he adopted the construction given to "intention" in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 [2017] HCA 34 where intention was said to refer to "a person's actual, subjective intention". 4. Apart from the unfair complaint that he was denied an opportunity to make submissions, Mr Dickson's argument in support of ground 7 involved two propositions: (i) that High Court authority (Palmer Bruyn) and authority in this Court (TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82) established that a presumption exists in law that a person intends the natural and probable consequences of his or her conduct; and (ii) the presumption is not limited, as the primary judge suggested, to intentional torts but is of more general application. 1. Mr Fletcher's response was also confined to two propositions: (i) that, "even if there was some error by the primary judge … [Mr Dickson] does not identify the consequences which would flow from such error"; and (ii) "presumptions can be rebutted and in this case the primary judge has made a demeanour-based finding which has the effect that any presumption of intention is rebutted." 1. As will be seen from the above, neither party engaged with the meaning and scope of what is said to be the presumption. 2. Mr Dickson placed heavy reliance on the passage from Palmer Bruyn extracted above, and also on a single paragraph from the decision of this Court in Anning, in which Spigelman CJ said (with the agreement of Mason P and Grove J): "100. The High Court has recently explained recovery for consequential loss in the case of intentional torts by invoking a general test. Damages can be recovered for harm that is intended or that is the natural and probable consequence of the tortious act … Damage that is the natural and probable consequence of conduct is within the 'presumed intent of the actor' … though [Palmer Bruyn] involved injurious falsehood, the High Court's reasoning is of more general application to intentional torts." (italics added) That passage was quoted and adopted in State of NSW v Cuthbertson (2018) 99 NSWLR 120 [2018] NSWCA 320 at [43]. 1. Mr Dickson's reliance on these decisions reflects a misunderstanding of the context in which the High Court and this Court applied the presumption. Each of those cases concerned, as the primary judge observed, an intentional tort. But that was not the salient issue, and is not the salient point of distinction. The issue in both Palmer Bruyn and Anning was the extent (if any) of liability of a defendant for damage flowing from tortious conduct. 2. In Palmer Bruyn the tortious conduct alleged was the publication of a letter by the defendant purporting to have been written by, or on behalf of, the plaintiff (a company carrying on a surveying business). The letter was "bogus". It was republished by the recipient and, eventually, a report of the letter appeared in a local newspaper. Thereafter the plaintiff lost a valuable contract and suffered economic loss. It attributed the loss of the contract to the publication of the letter. 3. In Anning employees of the defendant (a television broadcaster) entered a rural property occupied by the plaintiff, without express or implied licence to do so. The purpose of the entry was to film activities on the property. The plaintiff claimed, inter alia, to have suffered psychiatric injury as a result of the unlawful entry. 4. The factual circumstances of each case are necessary to an understanding of the principles stated in the judgments. In each case the underlying issue concerned the causation of the harm the plaintiff claimed to have resulted from the conduct established as tortious. 5. In Palmer Bruyn both Gleeson CJ (at [13] at [14]) and Gummow J (at [73] and [81]) saw two independent routes to liability for harm alleged to have been suffered: (i) where the harm actually suffered was the intended result of the tortious conduct; and (ii) where the harm actually suffered is the natural and probable consequence of the tortious conduct. 1. In the case of the latter, 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: see [81]. In such a case, Gummow J said: "[Liability] will depend upon the relation of that which the wrongdoer intended to the consequences which actually resulted. This relation will generally be assessed by asking whether the damage was the 'direct and natural result' of [the tortious conduct]'." 1. 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. In Palmer Bruyn the plaintiff company failed to establish the necessary causal connection because the harm suffered was not the natural and probable consequence of the initial publication of the letter: at [15] per Gleeson CJ, [97] per Gummow J, [126] per Kirby J. 2. Similarly, in Anning, the court found that mental trauma suffered by the plaintiff resulting from the tortious entry onto his land was not the natural and probable consequence of that tort and damages awarded in that respect (psychiatric injury) were not recoverable. 3. What these cases show is that the presumption to which Gummow J (and others) refer is directed, essentially, to questions of causation and remoteness of damage. 4. Mr Dickson identified no case in which the presumption has been applied where the tortfeasor's actual intention is in question. The presumption has long been abandoned in criminal cases: Stapleton v The Queen (1952) 86 CLR 358 at 365; [1952] HCA 56; Smyth v The Queen (1957) 98 CLR 163; [1957[ HCA 24; Parker v The Queen (1963) 111 CLR 610 at 632-633; [1963] HCA 14. In Stapleton, the Court said at [365]: "The introduction of the maxim or statement that a man is presumed to intend the reasonable consequence of his act is seldom helpful and always dangerous. For it either does no more than state a self-evident proposition of fact or it produces an illegitimate transfer of the burden of proof of the real issue of intent to the person denying the allegation." 1. In this case the issue of intent arose, not in the context of the cause of the injury suffered by Mr Dickson, or the extent of Mr Fletcher's liability for the harm suffered, in which the presumption may have had some materiality, but 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. There was no error on the part of the primary judge in failing to apply the presumption in that context. As will be seen below, it would have been erroneous to have done so. 2. It will be necessary to return to the decision in SZTAL on which the primary judge relied in the construction of "intent to cause injury" in s 3B(1)(a). For the purpose of the disposal of ground 7 of the appeal it is sufficient to say that Mr Dickson has not established error of law. Grounds 8 and 9 1. By ground 8 Mr Dickson complains that the primary judge erred by concluding that s 3B(1)(a) is, or may be, limited to criminal conduct. By ground 9 he asserts error in the reliance by the primary judge on s 140 of the Evidence Act 1995 (NSW). 2. Section 140 is concerned with the standard of proof in civil proceedings. It provides as follows: "140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account— (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged." 1. These grounds call for some further explanation. They are connected in a way that may not be immediately apparent. 2. In McCracken, Hulme J held (at [41]) that, on no reasonable interpretation of s 3B(1)(a), could the words "an intentional act that is done with intent to cause injury" be regarded as limited to conduct that is criminal in nature. At [97] the primary judge doubted the correctness of that proposition (which was not the subject of criticism on appeal to this Court). The corollary of the primary judge's expressed doubt is that s 3B(1)(a) may be limited to criminal conduct. But his Honour did not reach, or did not state, a clear conclusion on that question. 3. It is difficult to know what, if any, impact the doubt expressed had on the ultimate conclusion. The primary judge concluded the paragraph in which he expressed doubt by saying: "But the question remains as to the proper construction of the expression 'intent to cause' (injury)." That does not suggest that he was limiting his consideration to conduct that was, or may have been, criminal. On the other hand, there are indications in [104] that the primary judge considered that a finding that Mr Fletcher intended to cause injury to Mr Dickson involved a finding of criminal conduct, and that pointed against reaching such a conclusion. 1. It is necessary to set out the whole of the paragraph under attack by ground 8. It is as follows: "104 First, I find that the plaintiff carries the onus of proof to establish the plaintiff's [sic] intention, and that the level of proof has to reflect the gravity, or seriousness of the finding of an intent to injure under s 140(2) of the Evidence Act. It is a very serious matter, I think, for the purposes of [Mr Fletcher's] reputation, to say that in executing a tackle, even a dangerous and unlawful spear tackle, [Mr Fletcher] intended to injure [Mr Dickson]. An assault may be a crime as well as a tort. Although in McCracken (NSWSC) Hulme J said at [41] that conduct does not need to be criminal in order to satisfy s 3(b)(a) [sic-s 3B(1)(a)], a finding that a tackle satisfied both limbs of intention, within the meaning of s 3(b)(a) [sic], might be regarded as tantamount to a finding that [Mr Fletcher] committed the criminal offence of assault occasioning bodily harm, however [Mr Dickson] chooses to formulate his cause of action for the purpose of making a civil claim." (italics in original; citations omitted) 1. The sum total of Mr Dickson's submissions under ground 8 was that the passages of which he complains were contrary to the decision of Leeming JA in Croucher (although he did not identify any particular finding or conclusion in that decision on which he relied), and that they adversely influenced the decision. 2. The primary judge mentioned s 140 in three places in the judgment. First, at [83] he referred to the view stated by Leeming JA in Croucher (at [87]) that, in that case, a particular finding of fact (that one of the parties had recklessly injured the other with gardening shears) was a sufficiently serious matter to attract the operation of s 140(2) and said that: "… [That reasoning must apply, all the more so, where it is contended that a defendant intended to cause injury by the intended act." (italics in original) That was correct. If reckless injury is sufficient to attract the operation of s 140(2), axiomatically, intentional injury must also do so. 1. The second reference to s 140 appears in [104] of the judgment (which has been set out in full above), where the primary judge reminded himself that the "level of proof" had to reflect the gravity of the finding under consideration. 2. The third reference to s 140 appears in [119], where in summarising the route to his determination, the primary judge gave the "requisite standard of proof (affected by s 140(2) of the Evidence Act)" as one of the reasons for reaching the conclusion that the intentional act of tackling Mr Dickson "involved a mental state of negligence" (presumably, as distinct from intention). 3. Mr Dickson's submissions on ground 9 were limited to the propositions that "undue weight" was given to s 140, and that, by implication at least, the primary judge rejected (without reasons or explanation) the "cogency" of the video evidence and Mr Ryan's evidence. 4. The doubts expressed by the primary judge about the correctness of Hulme J's construction of s 3B(1)(a) are apt to create an impression that he proceeded to his factual determination on the basis that the second limb of s 3B(1)(a) is established only if the act relied upon amounts to criminal conduct. Plainly, on the construction given to s 3B(1)(a) by Hulme J, that is not so. But it does not seem to me that, in expressing his reasons for his ultimate conclusion, especially in [104], the primary judge proceeded on that basis. He expressly noted that an assault may be both a crime and a tort. His observation that a finding that Mr Fletcher intended to injure Mr Dickson might be "tantamount" to a finding of the commission of a crime represents an attempt to apply s 104(2) of the Evidence Act, consistently with what Leeming JA said in Croucher. A fair reading of [104] shows that the primary judge was aware of the significance of the finding he was asked to make, and applied a proper standard of proof. Grounds 10 and 11 1. By grounds 10 and 11 Mr Dickson attacked the process of reasoning exposed in [87] and [88] of the judgment. In those paragraphs the primary judge addressed Mr Ryan's evidence that, in rugby league, tackling necessarily involves an intention (on the part of the tackler) to exert force in a fashion intended to result in at least minor injury. Paragraph [87] begins with: "If this evidence was true …" 1. The primary judge then appears to have considered that acceptance of Mr Ryan's evidence in this respect would have significant consequences in the application of the CLA because: "87 … every tackle in Rugby League involving some level of carelessness on the tackler(s) would satisfy both limbs of s 3B(1)(a) in the unfortunate event that the ball carrier was injured." and would result in the exclusion of the CLA. That, in turn, his Honour said, would have similar implications in other contact sports such as boxing and wrestling, and would: "88… act as a significant encroachment on the provisions of Part 1A Division 4 [sic – 5] of the [CLA], specifically devoted to dangerous recreational activities, one specific of which is playing sport": In [87] the primary judge went on to say: "It seems to me a surprising result that Parliament could have intended that the [CLA] (intended to encourage 'personal responsibility') would operate in such a fashion that the question of whether a Rugby league player could be sued in a way that would exclude the [CLA], for tackling another player, who is injured as a result of the tackle because of some level of carelessness (actionable in negligence or in battery), would depend upon the extent of the injury to the tackled player." (Italics in original) His Honour considered this did not "represent a principled position; but would rather bring about capricious results". 1. This reasoning is obscure. Equally obscure are Mr Dickson's submissions in support of these grounds, which are largely directed to recounting some historical circumstances concerning the entitlement of plaintiffs injured in sporting activities to recover damages, both before and after the enactment of the CLA. The most that I can draw from the submissions is a complaint that the primary judge appeared to rely on a "presumed parliamentary intention". 2. Parliamentary intention, when it can be ascertained, is an established resource in statutory construction, and, in some circumstances, is required, for example by s 33 of the Interpretation Act 1987 (NSW). It is not an appropriate factor in the determination of whether or not to accept factual evidence. Mr Ryan's conclusions were either accurate or they were not. If they were accurate, and were accepted by the primary judge, it would be a significant (but not the sole, and not a conclusive) factor in the determination of the critical question, whether Mr Fletcher intended to injure Mr Dickson. Acceptance or otherwise of Mr Ryan's evidence as a fact was not dependent on the potential implications, for the applicability of the CLA, or on the achievement (or otherwise) of Parliamentary intention of the legislature. Whether or not to accept Mr Ryan's evidence that every tackle involved an intention to inflict some form of injury did not depend on potential ramifications for the continued operation of the CLA in relation to sporting activities. 3. To that extent the reasoning in [87]-[88] was beside the point. However, Mr Dickson was able to articulate no rational argument to explain the significance of those paragraphs on the outcome of the fact finding exercise. I would reject these grounds. Ground 12 1. The subject of ground 12 was what was asserted to have been the reliance by the primary judge (at [108]) on the rule stated in Browne v Dunn. The rule in Browne v Dunn is a rule of long standing and frequently invoked. It has been said to be: "…a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings": Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR1. That statement has been repeatedly adopted. For present purposes important words in the formulation are "unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters". 1. The third of the reasons given by the primary judge for his decision was that it was not clearly put to Mr Fletcher that he intended to injure Mr Dickson, although the primary judge noted that it had been put to him that he had no intention to cause serious injury. Mr Dickson did not dispute that the relevant question had not been put to Mr Fletcher, but contended that there was no procedural unfairness as Mr Fletcher and his legal representatives were fully aware, from the pleadings, from Mr Ryan's report, and from senior counsel's opening, the case that he intended to make. 2. The proper application of the rule in Browne v Dunn has been discussed in numerous cases. In Scalise v Bezzina [2003] NSWCA 362 at [96] Mason P said that the rule is, in part, "grounded in considerations of judicial economy" in saving the time and expense of duplicating evidence that is uncontroversial. To that I would add the saving of time in ritualistically putting to a witness, including a party, a proposition that is already clearly in issue. 3. In State Rail Authority of NSW v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 at [53] Basten JA said (consistently with Allied Pastoral) that the real issue is the fairness of the trial. 4. It has, nevertheless, been held in Victoria, that, even where the inference sought to be drawn is clear from, for example, the exchange of affidavits and expert reports, and the parties are clearly on notice of what facts are in issue, that circumstance does not absolve the cross-examining party from observance of the rule: Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 107 at [13]. 5. In this State a more relaxed view is taken. In West v Mead [2003] NSWSC 161 Campbell J said that the application of the rule will depend on the nature of pre-trial preparation and whether sufficient notice has been given to put the witness on notice of the submission ultimately intended to be made. Campbell J said: "99 Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case." (Italics added) 1. In NU v NSW Secretary of Family & Community Services (2017) 95 NSWLR 577; [2017] NSWCA 221 Beazley P (with whom McColl JA and Schmidt J agreed) said: "58 There is a clear corollary of the rule, namely, that if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter. This was explained in Browne v Dunn by Lord Herschell LC at 71, who pointed out that there was no obligation to raise such a matter where it is: '… perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling … all I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.'" 1. The central, and, indeed, on this aspect of the trial, the sole question for determination was whether Mr Fletcher intended to cause injury to Mr Dickson. Yet, curiously enough, neither counsel put a direct question to him on that subject. In his evidence in chief he was asked three questions concerning his intention, recorded in the transcript as follows: "What was your intention in respect of completing the tackle? … Well, if you could describe what your intention was in respect of the spinning motion that you've described Mr Dickson had already commenced to perform … And where if you could orient Mr Dickson's intended final position, was it your intention that he be placed in a position to play the ball facing the Berkeley Vale ingoal touchline or facing the Northern Lakes in goal line? 1. Mr Fletcher answered these questions, respectively: "My intention was to hook the leg, spin him to drive backwards towards his lower back or back on the ground. … I was attempting to put him into a position for to play the ball. … facing the Northern Lakes ingoal line." 1. It may be observed that none of the questions was directed to his intention with respect to injury to Mr Dickson. 2. In cross-examination Mr Fletcher gave the following evidence: "Q. … do you say you did not intend to cause him the severe injuries which he suffered? A. I didn't intend to cause those injuries. Q. And you didn't intend to cause any serious injury. Is that right? A. I didn't intend to cause any injury. Q. But you certainly intended to put him down hard on the ground so as to make forceful contact with the ground. Is that right? A. There was no intention. The intention was to complete the tackle." 1. These answers, particularly the second and third in cross-examination, demonstrate that Mr Fletcher was fully aware that what was in issue, and what Mr Dickson sought to prove, was whether he intended to cause any degree of injury. He seized the opportunity to deny intention to cause any injury. There was no operative unfairness in the failure of senior counsel to put, directly, that he intended to cause other than serious injury to the defendant. 2. In his submissions, Mr Fletcher made no attempt to justify the primary judge's reliance on the failure to put clearly to him that he intended to cause injury. His response to the submissions in relation to ground 12 was pithy. It was: "Even if correct that the asserted error was made, it does not justify appellate intervention consistently with the principle stated in Fox v Percy." 1. In my opinion the failure to put a direct question to Mr Fletcher concerning his intention was not a valid reason for finding that intention had not been proved. That, alone, would be insufficient to warrant interference with the decision. Misapprehension about the significance of Browne v Dunn has not been shown to have had operative effect in the ultimate determination. Ground 14 1. By ground 14 Mr Dickson asserted that the primary judge took into account an irrelevant consideration, namely that, immediately after the tackle, Mr Fletcher apologised and showed some solicitude for Mr Dickson's welfare. The primary judge considered that conduct to be inconsistent with an intention to cause injury. 2. Mr Dickson submitted that this was not relevant; he further submitted that any assistance or apology given by Mr Fletcher was "an apology" within s 68 of the CLA and, by s 69(1)(b), not relevant. 3. Mr Dickson's reliance on these provisions of the CLA are, to put it mildly, puzzling. His fundamental proposition is that the CLA is inapplicable. That is the very point of this exercise. 4. Putting that aside, I am not able to conclude that reliance on Mr Fletcher's immediate post-tackle conduct was entirely irrelevant, although its weight is limited. It was open to the primary judge to conclude that an immediate apology to some degree was a contra-indication of intention to injure. I would not uphold this ground of appeal. Grounds 1-6, 13 1. I return now to grounds 1-6 and 13, by which Mr Dickson asserts factual error. This being an appeal to which s 75A of the Supreme Court Act applies, it is to be conducted as a rehearing (subs (5)), and on the basis that the court has the powers and duties of the court of first instance, including powers and duties to draw inferences and to make findings of fact (subs (6)). The review is to be "a real review" which involves weighing conflicting evidence and drawing inferences, always bearing in mind and making due allowance for the fact that the court has not seen or heard the witnesses. Findings of fact made by the primary judge should not be interfered with unless demonstrated to be wrong by "incontrovertible facts or uncontested testimony", are "glaringly improbable", or "contrary to compelling inferences": Fox v Percy; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]. 2. The submissions made on behalf of Mr Fletcher laid heavy emphasis on the last-stated principles. The submissions made on behalf of Mr Dickson paid no regard to them at all. It was only in submissions in reply to those of Mr Fletcher that Mr Dickson so much as acknowledged the relevant principles. 3. These grounds of appeal, it seems to me, reduce to a number of propositions: * that the primary judge failed to have appropriate regard to what can be seen in the video recording, or to the evidence of Mr Ryan; * when that evidence is given appropriate weight, the conclusion that intention to injure had not been proved is contrary to compelling inferences; * that the primary judge inappropriately broke up the tackle into component parts rather than viewing it as a single, continuous, incident commencing with the lifting of Mr Dickson's leg, moving to lifting his second leg, and culminating in the collapse of Mr Fletcher onto Mr Dickson's face; * that the primary judge wrongly assessed the last stage of the tackle, when Mr Fletcher collapsed onto Mr Dickson's face, as "inadvertence", when, in reality, it should be seen as the inevitable and natural outcome of a spear tackle; * that the primary judge's assessment of Mr Fletcher as a credible witness because he was "not evasive in answering questions" was wrong; on the contrary, the transcript reveals that Mr Fletcher was evasive and that examination of the video shows that some of his answers were false. 1. The last proposition, which finds its expression in ground 13, can be quickly disposed of. The written submissions did not descend to identification of any answers said to have been evasive. The submissions did identify answers said to be false, but, as was pointed out on behalf of Mr Fletcher, the asserted falsity depended upon findings of fact contrary to those made by the primary judge. 2. In oral argument senior counsel for Mr Dickson (who did not prepare the written submissions) pointed to questions which, he argued, were answered evasively. He referred to the following cross-examination: "Q: But in order to effectively stop him, you didn't need to lift him up by both feet, did you? A: It – the start of the tackle, what I was going to – how I was going to tackle him would have been a legal tackle." Reference was also made to Mr Fletcher's repeated answers that his intention in lifting Mr Dickson's legs off the ground was "to complete the tackle". 1. It may be observed that, in an immediately following question, Mr Fletcher answered a direct "Yes" to the proposition that he intended to drive Mr Dickson to the ground with force. That was a significant admission, and does not strike me as evasive. 2. Assessment of a witness's demeanour lies peculiarly within the province of a trial judge, who is best placed to make the assessment. It is rare that an appellate court will intervene to disturb such an assessment. This is not an occasion to do so. 3. I would reject this ground of appeal. 4. With respect to the remaining grounds, I have, as required by s 75A of the Supreme Court Act and Fox v Percy, conducted an independent review of the evidence. As was the case in McCracken, I consider that the video recording is an important basis for that review. Moreover, to a considerable extent, it diminishes the advantage that the primary judge had in observing the witnesses. This Court is in as good a position as the primary judge to make an assessment of that aspect of the evidence. That was the view that this Court took in McCracken. 5. Mr Ryan's evidence cannot be overlooked. Notwithstanding some criticisms of the manner in which he gave his evidence the primary judge accepted him and noted that, despite a hostile examination, there was of little substance by way of attack on the merits of the opinions he expressed. 6. The most important of the opinions expressed by Mr Ryan, to my mind, concern the purpose of tackling in rugby league. According to Mr Ryan: "Tackles are aimed at lowering the competence of the attacking players by physical attrition and the trauma of severe bodily impact both in the tackle and when the tackled player hits the ground." "[tacklers] are also taught and encouraged by their coaches and trainers that when they have caught an attacking player, to put him onto the ground forcefully to cause hard and bruising impact with the ground which will hurt and discourage the attacker. Minor injury to a tackled player is an obvious outcome of such tackling." That evidence was not the subject of challenge. 1. I omit from this consideration Mr Ryan's affirmative answer to question (d) posed to him, whether the video footage of the tackle revealed an intentional act which was done within intent to cause injury. This is a conclusion that can be reached as well by this Court (informed by Mr Ryan's description of the purpose of tackling) as by Mr Ryan. Although it is not contested on appeal, the admission of that opinion is, at best, dubious. 2. Mr Ryan's evidence, as a generality, that tacklers intend to put a tackled player "onto the ground forcefully" was confirmed in this case by Mr Fletcher, who assented to a proposition that that was his intention. It might be expected that some injury would result. 3. Viewing the video recording confirms, in my opinion, that the inevitable result of the tackle was that some injury would be caused to Mr Dickson, even if relatively minor. That is not the same as saying that Mr Dickson intended to cause injury. It does not follow from the inevitability of injury that Mr Fletcher intended to cause injury. I have already, in relation to ground 7, explained that the presumption that a person intends the natural and probable consequences of his or her conduct is inapplicable in these circumstances. There is no issue here that the tackle caused Mr Dickson's injuries. Whether Mr Fletcher intended to cause those injuries (or any injuries) as required by s 3B(1)(a) of the CLA must be approached from a different angle. 4. The evidence established, in my opinion, that Mr Fletcher foresaw, or ought to have foreseen, the very real possibility, even likelihood, that his conduct would cause injury to Mr Dickson. It could further be said that, in all the circumstances, the evidence was sufficient to establish recklessness on his part, but, as I explain below, neither of those circumstances is sufficient to establish the intent necessary to be proved for the purposes of s 3B(1)(a). Intent to cause injury 1. Neither party directed any attention in this Court to the interpretation to be given to the phrase "intent to cause injury" as it appears in s 3B(1)(a) of the CLA. Yet that, in my opinion, is the key to this appeal. 2. Although s 3B(1)(a) has arisen in several previous appeals to this Court I am unaware of any authoritative determination of the meaning to be given to "intent to cause injury" (and the Court was referred to none). In State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 the conduct in question was that of two police officers who unlawfully entered private premises and pointed a gun at the plaintiff. Pointing the gun constituted an assault. Application of s 3B(1)(a) appears from the judgments to have been somewhat peripheral (the issues were whether the definition of "injury" in the CLA applied to the use of that word in s 3B(1)(a), and whether limitations imposed by s 21 on awards of exemplary, punitive or aggravated damages applied) but Spigelman CJ was of the opinion that s 3B(1)(a) was satisfied in the case of the assault because the police officers intended, by the action of pointing the gun, to cause injury. 3. In Hayer v Kan [2014] NSWSC 126 an application was made to strike out a pleading that alleged against a hospital an intentional tort in the provision of medical services and treatment. Particularisation of the intentional tort suggested that reliance was to be placed, not on an assertion of actual intention to cause injury, but on an inference to be drawn from the conduct alleged. Just how s 3B(1)(a) arose is not clear from the judgment. Hoeben CJ at CL noted a submission made on behalf of the hospital that the second limb of the subsection: "38 … excluded any reliance upon concepts such as 'recklessness' or the proposition that damage that is the natural and probable consequence of a tortious act, is presumed to have been intended by the tortfeasor … ." 1. His Honour said that he found that reasoning "attractive" and that, if the matter were free from authority, he would have adopted that interpretation. But he considered that the decision in Dean v Phung [2012] NSWCA 223; (2012) Aust Torts Rep 82-111 precluded that because it allowed for a contrary interpretation. 2. In Dean v Phung the plaintiff sued a dentist for alleged negligent treatment. Basten JA, with the agreement of Beazley and Macfarlan JJA said: "So far as the operation of s 3B is concerned, it would have been sufficient for the appellant's purposes to establish that the dentist knew at the time of giving the relevant advice that the treatment was not reasonably necessary." 1. Because of that finding Hoeben CJ at CL declined to strike out the pleading in Hayer. 2. In Croucher (where, in an altercation between neighbours, one was seriously injured by gardening shears wielded by the other) Leeming JA considered the application of s 3B(1)(a) on the basis that the trial judge had found, not that the defendant had intended to injure the plaintiff, but that he had been recklessly indifferent to that prospect. His Honour said: "117 It is far from clear that conduct which is reckless, even if it amounts to an 'intentional tort' such as battery, engages s 3B(1)(a). It is perfectly clear that a battery which involves merely negligent conduct will not engage s 3B(1)(a). This is because, as noted above, s 3B(1)(a) looks to the nature of the conduct found to occur, rather than to the cause of action which has been pleaded." 1. Leeming JA referred to Ibbett and Hayer, but not (in this context) to Dean v Phung. He expressed tentative agreement with the views of Hoeben CJ at CL in Hayer. Because, in Croucher, the appeal had to be allowed on other grounds, it was unnecessary for Leeming JA to reach a concluded view on this question. 2. From this it can be seen that 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). 3. As stated above, for the s 3B(1)(a) exclusion of the CLA to operate, a plaintiff must prove intention on the part of the defendant in two respects: - first, intention to do the act (here, the tackle) that caused the injury; - second, intention, by that act, to cause injury or death. 1. As also stated above, only the second is here in issue. By ground 7 Mr Dickson appears to contend that it may be presumed, from the inevitability of injury (which I have accepted) that Mr Fletcher had the intention required by the second limb of s 3B(1)(a), to cause injury. For reasons given in relation to ground 7 I do not accept that any such presumption applies in the circumstances of this case. The intention, proof of which is required by the second limb of s 3B(1)(a), is of a different kind. It is, in my opinion, actual, formulated, intention. I accept that 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: Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492 at [153], cited in Croucher by Leeming JA; see also Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56 at p 502. 2. The High Court has accepted that: "The ordinary and natural meaning of the word "intends" is to mean, to have in mind. … what is involved is the directing of the mind, having a purpose or design." Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12 at [8]; at [9], in each case approving that formulation in R v Willmot (No 2) [1985] 2 Qd R 413. 1. In Zaburoni the issue was whether an accused person intended to transmit a serious disease to another, an offence under the Criminal Code of Queensland. The plurality in the High Court (Kiefel, Bell and Keane JJ) accepted that common law concepts of foreseeability, likelihood and probability are not relevant to proof of the element of intention for the purposes of proof of the offence (at [13]). Their Honours accepted that, while knowledge that conduct will certainly produce a particular result gives rise to a compelling inference that that result was intended, proof of knowledge or foresight of a result is not a substitute for proof of specific intent. To engage in conduct knowing that it will probably produce a particular harm is reckless. Recklessness as to result does not equate to intention to produce that result. 2. True it is that Zaburoni (i) was a criminal case, requiring the criminal standard of proof with the safeguards that attend proof of criminal conduct; and (ii) involved the construction of particular words in a particular statute. But the reasoning outlined above did not depend on any statutory interpretative provisions applicable to the offence-creating provision. Rather, the plurality accepted what was stated in Willmot as the "natural and ordinary meaning" of the word "intends". That is of general application. 3. In SZTAL the question was the interpretation to be given to the words "severe pain or suffering … intentionally inflicted on a person" in the definition of "cruel and inhuman treatment or punishment" in the Migration Act 1958 (Cth) s 5(1). The plurality, while recognising (as had the plurality in Zaburoni) that foresight of an inevitable consequence of conduct "goes a long way to proving intent", rejected such foresight as determinative (at [16]). Their Honours preferred the view that "intention" refers to "actual, subjective intention", citing Zaburoni as authority for the proposition that: "15 … a person is ordinarily understood to intend a result by his or her action if the person means to produce that result. What is involved is the directing of the mind, having a purpose or design. So understood, intention refers to a person's actual, subjective, intention." 1. In my opinion, the words "intent to cause injury" in s 3B(1)(a) of the CLA should be treated in the same way as equivalent words under consideration in SZTAL. It means, at least, "actual, subjective", [I would add, "formulated] intention", to which the defendant has turned his or her mind. It does not include recklessness. It does not include imputed or presumed intention. That is not to say that the relevant intention cannot be proved by inference; it clearly can, as was acknowledged in Zaburoni and SZTAL. But an inference of fact, that the defendant had the actual, subjective, intention is necessary. 2. Taking 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), which requires that a construction that would promote the purpose and object of the relevant statutory provision is to be preferred to one that would not. 3. That calls for some examination of the purpose and object of the CLA. I discussed this in Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185. I do not propose to repeat all that I there said. It is sufficient to observe that the expressed purpose of the enactment of the CLA was to modify or reduce, to a significant extent, the availability of damages for negligently inflicted personal injury. 4. That purpose is achieved by Pt 1A, which deals, generally, with negligence. Various Divisions of Pt 1A limit the circumstances in which damages may be awarded. Specifically, Pt 5 deals with the award of damages for injury suffered during engagement in recreational activity (which, by definition, includes "any sport"). By s 5L a putative defendant is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (A dangerous recreational activity is a recreational activity that involves a significant risk of physical harm). 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. 5. The precise scope of "intent to cause injury" in s 3B(1)(a) cannot here be determined. It may be thought, by reference to s 5L, (as the primary judge observed in an earlier part of [87] than that extracted above) that body contact sports involving significant risk of physical injury, for example, rugby league and boxing, were included in the operation of the CLA in such a way as to exclude liability in negligence where injury resulted from the materialisation of an obvious risk of the activity. It cannot be doubted, that, in boxing, every blow landed is an intentional act done with intent to cause injury. On any ordinary interpretation of "intent to cause injury" that "sport" would be excluded from the provisions of the CLA, including Pt 1A, Div 5. Whether that is so will be determined on another day. 6. For the purposes of the present case, it is sufficient to say that to prove "intent cause injury" Mr Dickson needed to prove more than that injury was inevitable or that, in tackling Mr Dickson as he did, Mr Fletcher foresaw (or ought to have foreseen) or anticipated injury, or that Mr Fletcher was reckless in the manner in which he performed the tackle, and more than that, as a generality, tackling in rugby league is likely and is intended to result in some injury, even minor. His proof did not go so far. 7. The primary judge's finding that Mr Dickson failed to establish an actual, subjective, intent is conclusive, and is not disturbed by the application of the presumption on which Mr Dickson seeks to rely. Nor is it disturbed by an independent review of the evidence. The most that independent review establishes is that Mr Fletcher's action carried a real and significant risk of injury to Mr Dickson. It faltered at the final step, of proving an "actual, subjective" intention to injure. 8. Accordingly, the appeal must be dismissed. 9. The orders I propose are: 1. Appeal dismissed; 2. The appellant to pay the respondents' costs of the appeal. ********** Endnotes 1. (2017) 262 CLR 362; [2017] HCA 34 at [15]. 2. SZTAL at [16]. 3. SZTAL at [17]. 4. SZTAL at [39]. 5. Migration Amendment (Complementary Protection) Act 2011 (Cth). The amending provisions commenced by proclamation on 24 March 2012. 6. RP Balkin and JLR Davis Law of Torts (4th ed, LexisNexis Butterworths, 2009) at [3.2]. 7. McNamara v Duncan (1979) 26 ALR 584 at 587 (Fox J). 8. T v T [1988] Fam 52; [1988] 1 All ER 613; Trindade, "Intentional Torts: Some Thoughts on Assault and Battery" (1982) 2 OJLS 211; 220. 9. (1988) 13 NSWLR 714. 10. Section 5, providing a definition for the purpose of Pt 1A, which relevantly includes s 5L. 11. (1952) 86 CLR 358 at 365; [1952] HCA 56. 12. Brighten v Traino [2019] NSWCA 168 at [19]-[23]. 13. See State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [204]; Brighten v Traino at [22]-[29]. Amendments 22 December 2020 - [7] offensive conduct now offensive contact. [114] change wrong doer to wrongdoer. [144] change he pointed out to who pointed out [173] change concept to concepts [182] purpose of design to purpose or design [182] before CLR add 256 [186] add a full stop between SZTAL and But DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2020