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‘Spear Tackle’ Case When Brian O’Driscoll was lifted and dropped unceremoniously by All Blacks Keven Mealamu and Tana Umaga in the first Lions test the issue of spear tackling became a hotly debated topic. Spear tackles have been in the news before and a recent Australian case involving a spear tackle in a rugby league match has reignited the debate on when the courts should intervene regarding violence in sport. Jarrod McCracken of West Tigers was spear tackled by two players from Melbourne Storm during a match between the sides in May 2000. McCracken suffered spine injuries and injuries to the vertebrae in his neck. In February, 2005 Mr McCracken successfully sued Melbourne Storm and the two players who tackled him claiming that the tackle ended his career. The NSW Supreme Court rejected the defence that the tackle in question was part of the game of rugby league after hearing expert evidence that a spear tackle was not only against the rules of the National Rugby League but would be regarded by all NRL coaches and any experienced observer of the game as unreasonably dangerous. It ruled that the players deliberately set out to injure McCracken and that the tackle was negligent. There will be a separate hearing shortly to assess Mr McCracken’s damages. What is the law in Ireland? (i) Criminal Liability We all know that the kind of violence we routinely see on the sports field would be a criminal offence if it occurred in a normal setting. It is a common misconception that because it happens in sport it cannot be subject to the same sanctions. This is not so and certain conduct will have criminal repercussions. However, it is impossible to be absolutely precise as to when violence in sport becomes criminal as each case has to be assessed on its own merits. As a general guideline violence in sport is capable of being a crime where that violence is not within the rules or norms of the game. While a criminal case was not brought against the Melbourne Storm rugby league players mentioned above, it is likely that an Irish court would construe their ‘spear tackle’ as an assault. The recent case involving Down inter-county gaelic footballer, James McCartan, is a good example of this point. In October 2004 a criminal prosecution was brought against James McCartan for breaking Westmeath player, Kenneth Larkin’s jaw with a punch during a match between the sides in May 2003. Mr. McCartan was found guilty of assault causing harm. Judge William Early stated that Gaelic football was a robust contact sport in which accidental injuries could be expected. He acknowledged that Mr. Larkin’s close marking had no doubt caused “a great deal of irritation” to Mr. McCartan. However, he held that Mr. McCartan’s punch was an assault with no legal justification. This kind of assault was clearly not part of or within the rules of the game. The English courts use a similar standard. On 16 October, 2003 Mark Barnes was convicted at Cantebury Crown Court in England for inflicting grievous bodily harm with a dangerous tackle on an opponent in a football match. The Court of Appeal concluded that a criminal prosecution should be reserved for situations where the violence was sufficiently grave to be beyond what the injured person could reasonably be regarded as having accepted by taking part in the sport in question. The Court of Appeal also held that this is not a licence for gratuitous violence and where the injury was clearly intentional and/or reckless and beyond the rules and norms of the game then that is a crime. (ii) Civil liability Just as violent conduct can give rise to criminal prosecution it can also lead to participants being sued for compensation for the injuries caused by the violence. The civil cases follow a similar pattern to the criminal cases. A player owes a civil duty to his fellow player to exercise reasonable care in ensuring the safety of his fellow player. A player is not entitled to deliberately injure or show reckless disregard for the safety of his fellow player. In practice the civil courts will also have regard to the rules and norms of the game in deciding whether a player has intentionally injured another player or shown reckless disregard for another player’s safety. In the leading case Elliott v. Saunders (1994), Paul Elliott, then of Chelsea, severed his cruciate ligaments during a 50/50 challenge with Dean Saunders, then of Liverpool. He sued Saunders but was unsuccessful. The trial judge was presented with the video footage of the incident and accepted Mr Saunders’ evidence that he had raised his feet at the last moment of the tackle in an instinctive attempt to avoid probable injury to himself. He held there was no evidence to demonstrate that Saunders had been guilty of “dangerous and reckless play”. This decision was endorsed by the English Court of Appeal in Caldwell v. Maguire and Fitzgerald (2001) which held that in order to establish breach of duty the plaintiff would have to show the defendant had shown reckless disregard for his safety. The court held that it was not possible to characterise “momentary carelessness”, an “error of judgment”, or an “oversight” as negligence. A similar case has not come before the Irish courts but we would expect that the approach in Caldwell would be taken. Targeting Players A recent Canadian case illustrates that it is not only the aggressor who can end up paying the price for violence in sport. In December 2004 a Canadian Court heard the criminal prosecution for assault of Todd Bertuzzi who plays professional ice hockey with the Vancouver Canucks in the American and Canadian National Hockey League. Vancouver had been involved in a series of particularly ill tempered games with Colorado Avalanche in February/March 2004. In the final game of the series Bertuzzi punched Steve Moore of Colorado in the head from behind and drove his face into the ice, knocking him unconscious. Mr. Moore was hospitalised with a broken neck, a concussion, and deep cuts on his face. At the criminal trial Mr. Bertuzzi pleaded guilty to criminal assault and was given a conditional discharge. What is unique about this incident is that Mr. Moore has now filed a civil case against not only Mr. Bertuzzi but also a number of other Vancouver players and the coach. Mr. Moore is claiming civil conspiracy against the coach and the other players on the grounds that they conspired to injure him before the match, as evidenced by their public post match interviews from the previous game. We will update you on the outcome of this civil law suit when it comes on for hearing.

 

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