Shoulder charging with the full force of the law

Last week I was reading perhaps the most unusual yet surprisingly underrated source of legal and political debate: a rugby league forum.

The hot topic of course was the banning of the shoulder charge and one forum poster quickly thanked lawyers for ruining rugby league and society in general.

It is not often that I have the opportunity or stupidity to defend my profession. After all, although we are competent at defending the seemingly indefeasible in a court of law, defending our own profession can often be a bridge too far.

On this occasion however, my attitude was different. I was outraged! After all, was it not a decision forced upon the by the Australian Rugby League Commission by the consensus of all the Doctors in the National Rugby League? Why is it that Doctors are exempt from criticism yet lawyers wear it all?

In all fairness, fans and administrators of all sports have grounds to fear the law and how lawyers and courts interpret them.

Rugby league itself historically has more grounds to fear barristers and judges in wigs than the AFL.

While the game is notorious for being a brutal gladiatorial battle and the greatest test of a person’s strength, toughness and athleticism, the game has struggled to protect that image from the law.

Most famously the late and great Steve Rogers, one of the games most gifted centres was successful in suing the Canterbury-Bankstown Bulldogs and its player Mark Bugden after Bugden was deemed to have intentionally hit Rogers in the head causing Rogers a broken jaw in a New South Wales Rugby League match in 1985.

The ’90s and early 2000s followed and the courts saw an explosion in litigation with many cases involving claims arising out of recreational activities and sports.

Insurance quickly became expensive and there was a looming crisis where in particular amateur and junior sporting organisations became fearful that it was simply too hard and too dangerous to conduct any sporting games.

Ironically it was the non-sport loving Premier Bob Carr who came to sports rescue by setting up the catalyst for incredible changes to liability in this country. A most unlikely saviour.

The subsequent Civil Liability Act reforms in the New South Wales and other States has been subject to much analysis by my fellow lawyers.

I once was drinking with a mate at a pub and spent thirty minutes trying to explain the effect of the changes. I was met with blank silence for the best part of thirty minutes as if I was speaking a language from a far-fetched planet inhabited by only lawyers.

My by then intoxicated friend finally had enough and bluntly said “are you trying to say people must accept consequences for their actions?”.

Non-lawyers always explain it better.

Armed with my knowledge of the law, when reading the forum I quickly recalled the various sections of New South Wales Civil Liability Act.

I recalled how in some cases persons participating in a dangerous recreational activity cannot sue for any injury arising out of that activity. Rugby league, the most brutal of games surely falls within that character one initially would think.

I then thought that the ARLC administers a multi-million game involving huge player contracts and surely they would exclude any liability whatsoever least of all for shoulder charges gone wrong in accordance with the Act.

I then recalled the sad case of Jarrod McCracken. I quickly changed my mind.

While some may stop reading the case when in the first line Justice Ipp of the Supreme Court of New South Wales says that “Mr Jarrod McCracken, was an outstanding rugby league football player”, it is a case which probably justifies rugby league’s stance.

McCracken successfully sued after Melbourne Storm’s internationals Stephen Kearney and Marcus Bai ended McCracken’s career in a nasty spear tackle which was clearly outside of the rules of the game.

“Expert evidence” was brought by former player and coach Warren Ryan that the actions of Kearney and Bai were “unreasonably dangerous”.

McCracken succeeded despite the Civil Liability reforms. Importantly the Court remarked that the changes included a provision where the reforms would not apply to intentional acts to hurt or harm.

Anyone that has ever watched one rugby league tackle can quickly satisfy themselves that the whole game is based on an intention to hurt others and there is also the complication that although a shoulder charge was a part of the game, contact to the head is not.

While the game may successfully argue some of the defences to claims brought about by the reforms, the McCracken case justifiably shows that it is a risk too great and the consensus of the various Doctors was the final nail in the coffin for the shoulder charge.

So once again, my profession may be partially to blame. However, in our final defence, laws are enacted by government and government are allegedly responsible to the people, or some would argue a certain tabloid in Sydney.

Which leaves me with one my final remark. The shoulder charge crisis was undoubtedly sparked by Greg Inglis’ massive hit on Dean Young.

I was fortunate to have been only some five rows away from the last great shoulder charge and I will be able to tell my grandchildren one day that “I was there”.

In the debate that followed the most amusing comment bandied about by many including a leading sports editor was that if Greg Inglis did that shoulder charge while walking down the street it would be assault.

While the laws of personal injury may not be clear cut, the law of assault certainly is. Any tackle made down the street would be assault.

However, if anyone is charged by the police for assault after they make a desperate cover tackle for the last macaron by Adriano Zumbo, please contact me. After all, they are that good that we may be able to plead the defence of necessity.