Criminal Injuries Compensation Act 1983 and Todd Lenfield Bhnf Ivar Lenfield [1993] ACTSC 63 (5 July 1993)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ACT 1983 and TODD LENFIELD bhnf IVAR LENFIELD
No. SCA34 of 1993
Number of pages - 7
Criminal Law
(1993) Aust Torts Reports 81-222

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Criminal Law - Criminal injuries compensation - Prescribed injury - Whether criminal conduct - Assault - "Spear tackle" during football game - Whether consent - Rules of game.

Criminal Injuries Compensation Act 1983 (ACT), ss.2(1), 3(1), 5(1), 11(3)

Crimes Act 1900 (NSW, in its application to the ACT) ss.25, 26

McNamara v Duncan (1971) 26 ALR 584

Smith v Emerson (1986) Aust Torts Reports para.80-022

Giumelli v Johnston (1991) Aust Torts Reports para.81-085

Hilton v Wallace (1989) Aust Torts Reports para.80-231

Sibley v Milutinovic (1990) Aust Torts Reports para.81-013

HEARING

CANBERRA, 21 June 1993
5:7:1993

Counsel for the Applicant: Mr G Stretton

Instructing solicitors: Messrs Snedden Hall and Gallop

Counsel for the Respondent: Mr K Holmes

Instructing solicitors: ACT Government Solicitor

ORDER

The court orders that:
1. The decision of the Registrar of 17 February 1993 be set

aside.
2. In lieu thereof, the applicant be awarded compensation in
the sum of $10,234.00.
3. The judgment amount be paid into court.
4. The following sums be paid out to Messrs Snedden Hall and
Gallop, the appellant's solicitors;_
(a) The sum of $234.00 be applied in payment of Dr Coyle's report
fee in the sum of $170.00 and in payment of the fee to Woden
Valley Hospital for clinical notes in the sum of $64.00;
(b) Such sum as is approved by the Register as the appellant's
costs of bringing the application before the Register.
5. The balance of the judgment sum be paid out to the Public
Trustee to be dealt with in accordance with the provisions of
s.25 of the public Trustee Act.

DECISION

HIGGINS J The applicant, Todd Lenfield, was injured at school on 6 May 1992.

2. He was taking part in a game called "tackle" being played between two groups of Year 7 boys. It was a simple form of Rugby. The object was to score tries. The team opposing the ball carrier would tackle that person who would, if brought to the ground, play the ball and pass it to another player on the same team.

3. Whilst that game was progressing, two Year 9 boys, Darren Veale and Brett Simpson, insisted on joining in.

4. Simpson was much taller and heavier than the rest.

5. During the course of the game the applicant obtained the football. Simpson tackled him. As he moved in to do so, he said "I will get you" to the applicant.

6. It is the nature of the tackle then executed which is of importance.

7. The application alleges that it was a "spear tackle". It refers to the tackle as having "involved grabbing him (the applicant) below the hips, turning him around and up into the air then dumping him head first into the ground".

8. The evidence given by the applicant before the Registrar was,

"Well he picked me up below the hips sort of, and lifted me up
into the air and then sort of continued to spear tackle me,
which is drive me into the ground sort of head first."

9. It is clear that the applicant was not complaining that he was driven into the ground literally head first. He said it was his left shoulder that first hit the ground, although he had to tilt his head to the side to avoid it striking the ground with force.

10. That the force with which the applicant struck the ground was considerable may be inferred from the injury he suffered as a result.

11. It was described by Dr W J Coyle, orthopaedic surgeon, in the following terms,

"... an oblique fracture of the outer end of his left clavicle,
lateral to the coraco-clavicular ligaments which hold the clavicle
down, which ligaments had obviously been ruptured as well as there
was upward migration of the main medial clavicular fragment of
about 1.5 cms."

12. In Dr Coyle's opinion, which was unchallenged, this injury was consistent with the applicant having been "dumped head first onto the ground, in this case landing on his left shoulder".

13. The injury was both painful and disabling but resolved well after six months. The applicant complains of some residual symptoms. He no longer swims butterfly stroke as he finds it uncomfortable. There is some "occasional" back pain and the shoulder, though not painful, is "tender". He feels "some weakness" in it. Dr Coyle felt all symptoms would resolve and could not explain the persistence of the symptoms complained of.

14. The Registrar was not satisfied that the applicant had sustained a prescribed injury (see s.5(1), Criminal Injuries Compensation Act 1983 (ACT) ("CIC Act")) in that the tackle in question did not, in his opinion, constitute "criminal conduct".

15. The Registrar was of the opinion that to find "criminal conduct" he had to be satisfied that Simpson's act was "a hostile assault".

16. He was not so satisfied. First, because the words Simpson uttered were not indicative of an intention to hurt the applicant under the pretence of executing a tackle. It was thus not a statement indicating an intention to perform a "hostile" act.

17. Second, because a witness, whose statement was put to the applicant, had not considered that any "hostility" was involved in the tackle.

18. Third, because a tackle of the kind deposed to by the applicant seemed "a logical consequence of what might happen in a game of football".

19. I agree with the first of the Registrar's reasons. "I will get you" is ambiguous and certainly does not support a view that Simpson was deliberately attempting to hurt the applicant.

20. However, the Registrar was clearly in error in relying on a statement of a person who had not given evidence and whose statement he declined to admit into evidence. The statement could have been of evidentiary value in those circumstances only if the applicant had adopted it in his evidence. However, he did not. He disagreed with it.

21. The third reason given supports a conclusion that if it was necessary to infer that Simpson had intended to cause injury to the applicant, that inference could not reasonably be drawn from the nature of the tackle itself.

22. However, it does not follow from the fact that the tackle was, presumably, executed for the primary purpose of pursuing the proper objectives of the game, that it is a normal incident of it.

23. It is well-known that in all football codes dangerous tackles are not permitted even if the motive of the tackler is to play the game rather than to injure the opposing player. It does not matter that dangerous tackles often happen. They are no less outside the rules for that. If they are outside the rules and dangerous, they do not lose their character which they possess as unlawful assaults if deliberately or recklessly executed.

24. The case to which the Registrar obliquely refers is probably McNamara v Duncan (1971) 26 ALR 584.

25. The plaintiff, in that case, was injured by an elbow blow to the head. The blow was delivered as the plaintiff, playing Australian Rules Football, gathered, ran with, and then, kicked, the football. The blow occurred just after the football was kicked. The plaintiff's skull was fractured.

26. It was urged upon the trial judge (Fox J) that the blow was accidental or was, even if deliberate, "part of the game". As to the objective of the defendant, Fox J found as follows,

(587) "I have come to the conclusion that the striking of the
plaintiff by the defendant was intentional; he meant to do it. I
do not suggest that he meant to incapacitate the plaintiff or
indeed to cause him any serious injury."

27. The defendant then suggested, in effect, that not only does a player accept accidental injury from players acting within the rules but also from common forms of "foul play".

28. Fox J rejected this contention, in the following terms,

(588) "I do not think it can be reasonably be (sic) held that
the plaintiff consented to receiving a blow such as he received
in the present case. It was contrary to the rules and was
deliberate. Forcible bodily contact is of course part of
Australian Rules Football, as it is with some other codes of
football, but such contact finds justification in the rules and
usages of the game. Winfield on Tort, (8th ed) says (at p748)
in relation to a non-prize fight, "a boxer may consent to
accidental fouls, but not to deliberate ones". Street on Torts
(4th ed, p75) deals with the presumed ambit of consent in cases
of accidental injury: "A footballer consents to those tackles
which the rules permit, and, it is thought, to those tackles
contravening the rules where the rule infringed is framed to
maintain the skill of the game; but otherwise if his opponent
gouges out an eye or perhaps even tackles against the rules and
dangerously." Prosser, Law of Torts (3rd ed, p103) says: "One
who enters into a sport, game or contest may be taken to consent
to physical contacts consistent with the understood rules of the
game.""

29. The tackle Simpson effected was deliberate. He waited for the applicant to come to him. He picked him up using his superior strength and height. He "dumped" the applicant forcefully into the ground head first (though not necessarily vertically).

30. Of course, Simpson's conduct is not as obviously reprehensible as a deliberate punch to the face (see Smith v Emerson (1986) Aust Torts Reports para.80-022) or a deliberate elbow to the head (see Giumelli v Johnston (1991) Aust Torts Reports para.81-085).

31. In the latter case, King CJ did comment on the expectation of body contact outside the rules.

(68,709) "Those who participate in a football match are taken
to consent to the infliction on them of such physical force as
is permitted by the rules of the game. It was accepted by the
respondent in evidence, moreover, that some bodily contact outside
the rules of the game is to be expected as an ordinary incident
of a football match. The respondent in his evidence instanced
"tripping, or grabbing someone's legs or pushing someone in the
back" as applications of physical force which were to be expected
in the course of a game. I think that it may be accepted that
the consent which a participant in a football match gives to the
application of physical force to him extends to physical force
of that kind notwithstanding that it involves some infringement
of the rules."

32. Of course, that observation was strictly obiter. However, I would regard it, with due respect, as correct, particularly in the context of an Australian Rules game where tackles on a ball carrier are prohibited not merely if dangerous (as with Rugby) but also if performed as instanced in the evidence (for example, below the knee). His Honour is not suggesting that an illegal and dangerous application of force would be excused on the ground of consent.

33. The sort of contact in breach of the rules which would be excused is exemplified in Hilton v Wallace (1989) Aust Torts Reports para.80-231.

34. In that case, the defendant physically pulled tacklers off a tackled team mate, during a game of Rugby League (Souths v Norths at Lang Park), to enable that player to get up and play the ball. That act was in breach of the rules as it amounted to tackling a player (the tackler) when not in possession of the ball. Unfortunately, he inadvertently poked his finger in one of the eyes of the plaintiff who was one of the tacklers. The plaintiff lost the sight of the eye.

35. Kelly SPJ noted that the fact that the injury was unintentional did not mean that the defendant's actions could not constitute unlawful assault. The further question was whether what occurred was within "the accepted rules of the game" (68,449).

36. Nor was the fact that pulling a tackler off the tackled player was contrary to the written rules of the game decisive. His Honour expressed the central consideration as follows,

(68,450-1) "It appears to me that it could be said that an attempt
by the defendant to lift the plaintiff up and push him to the side
in these particular circumstances, having regard to the fact that
conduct of this nature frequently occurs without any penalty being
incurred, provided no doubt that undue force is not involved, could
be regarded as being within the "spirit and intendment of the rules
of the game" as they are applied in practice, notwithstanding that
if Law 1 of sec. 11 were to be strictly applied it would be treated
as being illegal and a penalty imposed in consequence of it. That
being so, in my view, if in the course of such an attempt the
defendant's finger enters the plaintiff's eye without any
intention on the part of the defendant that this should occur,
this would not constitute an unlawful assault."

37. The reference to "undue force" is, to my mind, significant. As the defendant had done no more than follow the usual practices of the game without undue force the unintended injury was not something for which he could be held liable.

38. Sibley v Milutinovic (1990) Aust Torts Reports para.81-013 is illustrative of the consequences both of illegal force where such force was directly prohibited by the rules of the game and where undue force is used in carrying out an act otherwise permitted by the rules.

39. There was a soccer match in progress. It was a training match without a referee. The plaintiff brought the defendant down and dispossessed him of the ball by a "sliding tackle". That is regarded as a dangerous manoeuvre so far as the ball carrier is concerned. The defendant was angered by the move although not significantly hurt. Later, the plaintiff executed another sliding tackle on the defendant. This hurt the defendant's right ankle. He was so angered by this that he struck the plaintiff in the jaw. Each sued the other for assault. Each pleaded what Miles CJ interpreted as "consent".

40. There was, of course, no doubt that the punch was outside the rules and usual incidents of the game. There was evidence that the "sliding tackle" was conduct for which a player might well be sent off the field of play. In his Honour's view, it was for the defendant to show that the plaintiff had consented to the possible use of such tactics. He had not shown that. Indeed, given the evidence that the plaintiff would be "sent off" in normal play for executing or attempting such a tackle and that it was conduct likely to cause injury, I would have thought that it could have been positively concluded that there was no such consent.

41. The question, therefore, is whether the type of tackle performed by Simpson was outside the rules of the game of "tackle" as played.

42. It is a matter of common knowledge of which I can take judicial notice that, in the game of Rugby League, a player may tackle another in any manner that involves grasping the player with the ball and bringing that person to the ground. It is not permissible deliberately to cause hurt or injury as, for example, by striking the tackled player. Certain forms of dangerous tackles are prohibited. Head high tackles and "spear" tackles are such. The essence of danger in the spear tackle is lifting a player up and driving the upper part of his or her body into the ground with force.

43. That is what Simpson did. He did it deliberately although he probably did not intend to cause injury. Given his relatively greater height and weight, the tackle may have been more enthusiastic than intended. I do not believe the rules and usages of the game of "tackle" would sanction conduct more dangerous than that permitted in Rugby League. It follows that the tackle was outside what would be tolerated as part of the game, particularly when executed by an older, taller and heavier player than would usually be expected to participate.

44. It follows that the Registrar was not correct in concluding that the tackle was a normal or expected incident of the game. He should have concluded that the applicant had not consented to such a tackle being applied to him.

45. The term "hostility" in that context refers to the deliberate resort to the tackle applied. It can also refer to a use of a more conventional tackle to injure rather than pursue the game. In either case, if not consented to, the tackle will be an unlawful assault.

46. In any event, it is an offence in this Territory not only to assault another person (Crimes Act 1900 (NSW, in its application to the ACT) ("Crimes Act") s.26) but also to cause grievous bodily harm to any person by any unlawful or negligent act or omission (Crimes Act, s.25).

47. It follows that, prima facie, the conduct of Brett Simpson is properly to be characterised as "criminal conduct" as defined in s.2(1) of the CIC Act.

48. The injury suffered by the applicant clearly resulted from that conduct. It is, therefore, a "prescribed injury" within s.2(1).

49. The fact that prosecuting authorities might not consider it appropriate to prosecute does not preclude such a finding. The presence of a finding of guilt by a court of competent jurisdiction facilitates proof of "criminal conduct" (see s.3(1), CIC Act). It is not a necessary pre-condition to such a finding (see s.11(3) CIC Act).

50. It follows that an award should be made in favour of the applicant.

51. Given that legal costs are not recoverable, it is preferable to assess the quantum of the award now rather than to remit it to the Registrar to do so.

52. It is, of course, the injury which attracts the award. The degree of criminality that caused it is not relevant. It is the effect on the victim which is relevant.

53. There was, here, a moderately severe injury. The sequelae, though persistent, are more of a nuisance value than anything else.

54. I would assess compensation at $10,000.00 for pain and suffering both past and future.

55. It was not suggested that there was any prospect of recovery from Simpson. It also cannot be said that anything the applicant did contributed in any relevant sense to the prescribed injury.

56. The only additional expenses of which evidence was adduced were report fees of $234.00. I assume all other expenses have been covered by medicare or health insurance.

57. I set aside the Registrar's decision. In lieu thereof, I award $10,234.00 to the applicant.

58. I will hear the parties as to any consequential orders required.