McCracken v Melbourne Storm Rugby League Football Club Limited & 2 Ors [2007] NSWCA 353

New South Wales Court of Appeal

CITATION: McCracken v Melbourne Storm Rugby League Football Club Limited & 2 Ors [2007] NSWCA 353

HEARING DATE(S): 28/11/07

JUDGMENT DATE: 13 December 2007

JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Basten JA at 131

DECISION: Appeal and cross-appeal dismissed with costs.

CATCHWORDS: TORTS – negligence – breach of duty of care – sport – rugby league – appellant spear-tackled during a game of rugby league – whether, having regard to the speed of the game, the time available for decision-making and the fact that hard tackling was an accepted incident of the game, the second and third respondents were negligent in tackling the appellant in the manner in which they did - REMEDIES – damages – past loss of earning capacity – appellant no longer able to play rugby league as a result of his injuries – appellant a property dealer prior to his injury – substantial increase in earnings from property development after his injury – whether the trial judge erred in having regard to the appellant's earnings from property dealings – whether the appellant's increase in earnings from property development came as a result of his own skill and efforts. D

LEGISLATION CITED: Civil Liability Act 2002 (NSW), s 3B(1)(a) Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic)

Abalos v Australian Postal Commission (1990) 171 CLR 167 Adams v Ascot Iron Foundry Pty Limited (1968) 72 SR (NSW) 120 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Cousins v Wilson [1994] 1 NZLR 463 Devries v Australian National Railways Commission (1993) 177 CLR 472 Enston v Pardel (1957) 75 WN (NSW) 370 Fobel v Dean [1991] 6 WWR 408 Fox v Percy (2003) 214 CLR 118 Giorginis v Kastrati (1998) 49 SASR 371 Government Insurance Office v Johnson [1981] 2 NSWLR 617 Graham v Baker (1961) 106 CLR 340 Husher v Husher (1999) 197 CLR 138 J K Kealley v Jones [1979] 1 NSWLR 723 CASES CITED: Jongen v CSR Ltd (1992) Aust Torts Reports 81-192 Kschammer v R W Piper & Sons Pty Limited [2003] WASCA 298 Lee v Sheard [1956] 1 QB 192 McCracken v Melbourne Storm Rugby League Football Club and 2 Ors [2005] NSWSC 107 McCracken v Melbourne Storm Rugby League Football Club and 2 Ors [2006] NSWSC 1250 McNamara v Duncan (1971) 26 ALR 584 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Minchin v Public Curator of Queensland [1965] ALR 91 Paff v Speed (1961) 105 CLR 549 Rauk v Transtate Pty Ltd (2001) Aust Torts Reports 81-592 Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39 State of New South Wales v Lepore (2003) 212 CLR 511 State of New South Wales v Moss (2000) 54 NSWLR 536 Williams v Milotin (1957) 97 CLR 465 Yammine v Kalway [1979] 2 NSWLR 151