Cross v Queensland Rugby Football Union Ltd

[2001] QSC 173

SUPREME COURT OF QUEENSLAND

CITATION:

Cross v Qld Rugby Football Union & Anor [2001] QSC 173

PARTIES:

PERRY RAJAN CROSS
(plaintiff)
v
QUEENSLAND RUGBY FOOTBALL UNION LIMITED ACN 055 120 217
(first defendant)
GEOFFREY PEGG
(second defendant)

FILE NO:

SC No 3426 of 1997

DIVISION:

Trial Division

DELIVERED ON:

30 May 2001

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2001

JUDGE:

Chesterman J

ORDER:

1.   That the plaintiff have leave to deliver interrogatories to both the first and second defendants in terms of the draft to be submitted by counsel.

2.   That the plaintiff deliver its further amended statement of claim at the same time as it delivers the interrogatories.

3.   That the defendants have two months from the date of delivery of the interrogatories to deliver their answers.

4.   Costs reserved.

CATCHWORDS:

PROCEEDURE – DISCOVERY AND INTERROGATORIES – INTERROGATORIES – THE APPLICATION AND THE ORDER – OTHER MATTERS – where the plaintiff seeks leave to deliver interrogatories – where the defendants rely on the decision in Ranger v Suncorp General Insurance Limited – whether the decision in Ranger applies – interpretation of Uniform Civil Procedure Rules 1999 r 230

Supreme Court Rules  1900 (Qld) O 35 r 19, r 20, r 21

Uniform Civil Procedure Rules 1999 (Qld) r 228, r 229, r 230

Ranger v Suncorp General Insurance Limited [1999] 2 Qd R 433, distinguished

COUNSEL:

Mr J Griffith QC with Mr P Sacre for the plaintiff
Mr A M Daubney SC with Mr T Matthews for the defendants

SOLICITORS:

Conroy & Associates for the plaintiff
Quinlan Miller and Treston for the defendants

1. CHESTERMAN J: The plaintiff seeks damages against the defendants for personal injuries.  He was appallingly hurt on 17 April 1994 when playing a game of rugby football at Ballymore.  The occasion was a series of trial games to permit the first defendant (“QRU”) to select players to form an under 19 representative team for the South East Queensland region.  In the course of a maul during one of the trial matches the plaintiff suffered fractures to his cervical vertebrae very near the base of the skull.  He is now a quadriplegic and requires mechanical ventilation to breathe.  He has  no recollection of the particular event which led to his debilitation.

1. The plaintiff’s case is that on the fateful day he had played in a number of trial matches.  He was asked to participate in another.  The teams in this match were both composites, being made up of players from the under 19 teams and the under 21 teams.  He alleges (paras 29 and 30 of the amended statement of claim)

“29During the course of the two ten minute halves of mixed U/19 and U/21 the plaintiff was playing in the position of a second row forward in the U/21 team.

30In the course of the game … after taking a short pass off a ruck the plaintiff ran five metres, was tackled by two opponents, following which a large number of players drove their bodies into the plaintiff and each other …”

1. The defence (para 13A) alleges

“… in the course of the second half of the game, the plaintiff was carrying the ball and was tackled fairly (front on), and a maul immediately formed around the plaintiff.  The ball emerged quickly from the maul, and was then passed out the back line of the opposing team …”

1. Although a large number of particulars of negligence are advanced the plaintiff’s case comes down to this:  that to compile a team of players from different age groups (and therefore of different size and physical maturity) was to expose the younger (probably smaller) players to an unnecessary and avoidable risk of injury.  The QRU was negligent in promoting and/or allowing a match between such teams and selecting or permitting the plaintiff to play in it.

1. In addition there are allegations of a failure to warn the plaintiff of various features of the increased risk of injury of playing in and against a composite team of that kind.

1. A QRU publication appears to lend some support to the plaintiff’s claim.  Its published handbook for the year 1993 sets out the rules relating to mauls and instructions to referees with respect to that aspect of play.  The rules and instructions for under 21 matches are different to those applicable to under 19 play.  In particular there are “variations from the laws of the game of rugby football applicable to all Australian domestic football under the age of 19 years”.  Under 19 players are subject to the modified rules of the game.  The older players are controlled by the ordinary rules.  Relevantly the difference is that smothering the ball in a maul is recognised as a tactic which will lead the referee to call a halt to play and order a scrum in under 19 games.  There are only two notes of advice to referees with respect to controlling mauls in the under 21 game.  There are eight such notes in the modified rules which appear to be designed to prevent injury to the younger players.  For example, note (v) reads

“Referees must be particularly vigilant of any attempt by the team not in possession to wilfully collapse the maul … this action is considered dangerous.”

Rule (viii) provides

“The referee should take note of the defenceless position of any players in the maul …”

1. The plaintiff appears to suspect, but cannot prove, that the trial game in which he was injured was not part of the organised program but was the result of a spontaneous suggestion by some of the QRU staff and/or coaches present on the day and that, since his injury, the experiment has never been repeated.  He also suspects that the players were instructed that no goal kicking would be allowed.  The object was to have a game of “running rugby” to allow an assessment to be made of the ability of the players.  The consequence was that the game was played at a faster than normal pace and the referee was not to stop play.

1. The plaintiff suspects, but cannot prove, that the referee controlled the game in accordance with the unmodified rules, was not vigilant to prevent injury occurring to a defenceless player in the maul and, encouraged by the QRU staff’s desire for a fast game, did not stop play when he and the ball were caught in the maul.

1. The plaintiff seeks leave to deliver interrogatories which are designed to elicit two types of information:

(a)         The facts and circumstances leading to his injury;

(b)         The circumstances in which the match between mixed aged groups was decided upon, the instructions given by the QRU staff to the referee with respect to that match and the rules by which the referee controlled the game.

1. The information is relevant to the plaintiff’s claim.  The second category is known only to the defendants.  The plaintiff has no personal knowledge of the first category.  Nevertheless the defendants vigorously opposed the application.  They sought to equate the circumstances of the application to those described in Ranger v Suncorp General Insurance Limited [1999] 2 Qd R 433 in which a refusal to allow interrogation of a plaintiff in personal injury litigation was upheld on appeal, and they stressed the wording of UCPR 230, that the court may give leave to deliver interrogatories:

“… only if … satisfied there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving the matters sought to be elicited by interrogatory.”

1. I felt some impatience with the defendant’s resistance to the application and the professed grounds for it.  I cannot believe that the amendments made to O 35  rr 19-21 of the Supreme Court Rules, repeated as UCPR 228-230 were meant to frustrate or obstruct a plaintiff’s prosecution of a case such as this.  The amendments were, no doubt, meant to discourage interrogatories in general because of their proclivity to cause inconvenience and expense beyond the benefit normally obtained from answers to them.  It is not my understanding that the new rules were meant to be applied in such a manner as to inhibit a plaintiff obtaining information which a defendant has, and without which he may fail to prove his case.

1. The plaintiff is crippled to a dreadful degree.  I am prepared to assume, given the age at which he was injured, that his financial resources are slender.  He has himself no recollection of exactly how he came to be injured.  Although his case, as I have outlined it, is clearly arguable it has obvious difficulties. The rules should not be allowed to be used to make it harder for the plaintiff to make out such case as he has.

1. It has always been a proper use of interrogatories to elicit information from a party who has knowledge of facts relevant to the facts in issue in the cause of action where the interrogator does not possess that information.  This is essentially what is sought by the draft interrogatories. 

1. The defendant points to the fact that the plaintiff’s solicitor knows the identity of a number of QRU staff and/or coaches who were present at the trial matches and who could be approached for the information sought by the interrogatories.  That is true, but the persons best able to provide the information are the QRU and the second defendant and I do not know that interrogating them is not at least as simple and inexpensive a way of proving the matters sought to be elicited as locating and questioning organisers and spectators who were present on the day.

1. The defendants do not contend that it would be excessively burdensome to answer the interrogatories, or that they do not have relevant information to impart should leave be given to interrogate.  Their only point is that the plaintiff should exhaust all other means of obtaining the information before it is proper to ask them for it.

1. This case is quite different from Ranger.  There it was the defendant insurer who sought to interrogate the plaintiff about the facts of a simple collision.  The primary judge described the application as

“… a case in which the resolution of the issue between the parties falls to be determined by issues of credibility, there having been only two persons present, the plaintiff and the defendant, each of whom have different accounts of what occurred.”

The plaintiff, who was sought to be interrogated, had “gone into detail, by particulars in the statement of claim”.  The defendant who had some memory loss nonetheless had “some recollection of the details of the incident”.  In giving judgment for the Court of Appeal Pincus JA said:

“The matters sought to be elicited by interrogatories can be ascertained at trial by the simple means of listening to the evidence of the respondent and cross-examining upon it.”

That, of course, was said with reference to a defendant’s application to interrogate the plaintiff.  Those remarks cannot apply in this case.  If the plaintiff cannot obtain information to advance his case he will fail at the threshold.  The defendants will not need to go into evidence and the plaintiff will have no opportunity to cross-examine them. 

1. The introductory words to UCPR 230 make it clear that the court may allow interrogatories in circumstances where there is likely to be available to the applicant at the trial another reasonably simple and inexpensive way proving the matter sought to be established by interrogation.  This point was accepted by Pincus JA in Ranger though his Honour went onto say that “quite special circumstances” should exist before leave will be given to deliver interrogatories where the conditions set out in rule 230(1)(b) is not satisfied.  With respect to his Honour the rule does not say that, but confers a discretion which leaves it to the good sense of the judge to decide in a particular case whether interrogatories should be allowed.  The fact that a simple and cheap alternative means of obtaining the information exists is clearly a most relevant factor in the exercise of the discretion but, beyond that, the rule does not appear to allow generalisations about the circumstances in which it will be appropriate to grant leave. 

1. In my judgment this is a case in which leave to interrogate should be given.  There is information in the defendant’s keeping which may assist the plaintiff to make out his case of negligence against them.  More fundamentally, the plaintiff seeks to learn how he came to be injured in the game which the first defendant organised and the second defendant controlled.  He does not know the facts which are essential to the proof of his case.  I do not know whether these circumstances qualify for the description of “quite special”, but I have no doubt that they make it proper to grant the plaintiff leave to interrogate.  In refusing leave to interrogate Pincus JA noted that the case was not one in which the facts alleged were “nebulous or vague,” by which I take his Honour to have meant that in cases such as this, where a party does not have knowledge of the facts necessary to advance his case interrogatories would be appropriate.

1. Some changes to the draft interrogatories were shown to be necessary by the course of debate during the hearing.  Accordingly the orders will be:

(1)         That the plaintiff have leave to deliver interrogatories to both the first and second defendants in terms of the draft to be submitted by counsel.

(2)       That the plaintiff deliver its further amended statement of claim at the same time as it delivers the interrogatories.

(3)         That the defendants have two months from the date of delivery of the interrogatories to deliver their answers.

(4)         Costs reserved.