Green v Australian Rugby Football League Ltd

[2003] NSWSC 749

CITATION:

Green v Australian Rugby Football League Ltd & Ors [2003] NSWSC 749

HEARING DATE(S):

25 June 2003

JUDGMENT DATE:

14 August 2003

JURISDICTION:

Common Law

JUDGMENT OF:

DECISION:

(1) Leave to join the propsed seventh defendant NSWRL as a defendant is refused; (2) Leave to extend the limitation period against the proposed seventh defendant in relation to a cause of action and injury suffered by the plaintiff on 7 May 1994 is refused; (3) The notice of motion filed 19 March 2002 is dismissed; (4) The plaintiff is to pay the proposed seventh defendant's costs as agreed or assessed.

CATCHWORDS:

Extension of time to commence proceedings - ss 60C & E - quadriplegic collapsed rugby league scrum - hooker

LEGISLATION CITED:

Civil Liability Act 2002
Limitation Act 1969 (NSW) - s 60C & E
Supreme Court Rules - Part 8

CASES CITED:

Agar v Hyde [2000] HCA 41
Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549
BHP v Waugh (1988) 14 NSWLR 360
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485
Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995)
Guest v Southern & Anor (NSWSC, unreported 22 September 1995)
Haylen v New South Wales Rugby Union Ltd [2002] NSWSC 114
Holt v Wynter [2000] 49 NSWLR 128
McAndrew v Wyoming Nursing Home (Sperling J, unreported, 5 December 1997)
McLean v Sydney Water Corporation [2001] NSWCA 122
Manfield v Heather [2000] NSWCA 36
Sophron v The Nominal Defendant (1957) 96 CLR 469
Stollznow v Calvert (1980) 2 NSWLR ATR 81-164
Szerdahelyi v Bailey; Ortado v Bailey; Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997)
The Council of City of Sydney v Zegarac (1998) 43 NSWLR 195

PARTIES :

Shane Anthony Green
(Plaintiff)

Australian Rugby League Football Limited
(First Defendant)

Country Rugby League Football of New South Wales Inc
(Second Defendant)

Laurieton United Rugby League Football Club Inc
(Third Defendant)

Steven Slater
(Fourth Defendant)

Michael McKenzie
(Fifth Defendant)

Greater Taree City Council
(Sixth Defendant)

New South Wales Rugby League Limited
(Proposed Seventh Defendant)

FILE NUMBER(S):

SC 20259/1998

COUNSEL:

Mr K Andrews
(Plaintiff)

Ms Tjidng
(Sixth Defendant - excused)

Mr G Parker
(Proposed Seventh Defendant)

SOLICITORS:

Mr W H Parsons of
W H Parsons & Associates
(Plaintiff)

Mr W Hawson of
Ebsworth & Ebsworth
(Proposed Seventh Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 14 AUGUST 2003

20259/1998 - SHANE ANTHONY GREEN v
AUSTRALIAN RUGBY LEAGUE LIMITED
& 6 ORS

JUDGMENT (Extension of time to commence
proceedings – ss 60C & E;
quadriplegic - collapsed rugby league
scrum - hooker)

1 MASTER: By notice of motion filed 19 March 2002, the plaintiff seeks, firstly, an order to join New South Wales Rugby League Limited as seventh defendant, secondly, an order extending the time to commence proceedings against New South Wales Rugby League Limited (NSWRL) pursuant to s 60C of the Limitation Act 1969 (NSW) (as amended) (the Act); thirdly, leave to amend the statement of claim filed on 12 August 1998; and fourthly, an order that should the proposed seventh defendant fail to comply with the subpoena issued against it the plaintiff have leave to administer interrogatories against it.

2 The first defendant is Australian Rugby League Football Limited (ARL). The second defendant is Country Rugby League Football of New South Wales Inc (CRL). The third defendant is Laurieton United Rugby League Football Club Inc (the Laurieton Club). The Club has not filed a notice of appearance and has not taken any active step in these proceedings to date. The fourth defendant is Steven Slater who was the coach and selector for the Laurieton Club. The fifth defendant is Michael McKenzie, the referee. The sixth defendant is Greater Taree City Council. The plaintiff relied on his affidavit sworn 30 August 2002, the affidavit of William Henry Parsons sworn 3 September 2002. The plaintiff was not cross- examined. The seventh defendant relied on the affidavit of Christopher Turner sworn 6 February 2002.

3 On or about 7 May 1994, (then aged 16 years) the plaintiff was playing in a reserve grade game of rugby league. He played in the position of hooker. It is alleged that during the game, which was being played at Old Bar Park in Old Bar in New South Wales, the plaintiff packed into a scrum set at the direction of the game’s referee. The scrum collapsed and the plaintiff suffered spinal injuries, which tragically rendered him a quadriplegic

4 The allegations made against the seventh defendant are set out at paragraph 15 of the proposed amended statement of claim (Ex A). The particulars of negligence include: (a) adopting and retaining rules relating to scrummaging which created an unreasonable risk of spinal injury, in particular s 12 of the Law of the Game; (b) failing to amend the Laws of the Game to reduce the risk of spinal injury, as could reasonably have been done by providing firstly, that the opposing front rows were properly positioned against each other prior to engagement of the scrum; secondly, that the opposing front rows were in a crouched position with head and shoulders no lower than their hips; thirdly, that the crouch referred to was the extension of normal stance by bending the knees sufficiently to step into the engagement without a charge; fourthly, that the crouched position be adopted by the front rows not more than one arm’s length from the opponent’s shoulders; fifthly, that the scrum should be formed by the stationary engagement of opposing first rows, followed by the second row; sixthly, that opposing forward packs should not engage without a process designed to prepare then for the force of engagement and bring them as close together as possible, such as the “crouch – touch – pause – engage” rule adopted in the game of Rugby Union by the International Rugby Union Football Board in 1988; (c) Failing to provide, or sufficiently to provide, for local variations in the laws of the game for safety reasons, particulary amongst younger players; (d) Failing to take reasonable steps to ensure that persons coaching and selecting teams, firstly, did not select players of inappropriate build or physique for positions exposed to particular risk of spinal injury such as a position of hooker; secondly, did not implement a programme of neck strengthening exercise for hookers; thirdly, did not appropriately warn and educate players concerning the risk of spinal injury; and fourthly, failed to ensure that the players themselves became aware of the risk of spinal injury and of methods to guard against it; (e) Failing to take reasonable steps to ensure that rugby league referees so controlled rugby league games as to guard against the risk of spinal injury by firstly, preventing scrums from engaging until both forward packs were ready; secondly, warning players when a scrum was about to engage; and thirdly, adequately instructing referees as to the exercise of their discretion under s 16 r 5 of the International Rules of the game; (f) Failing to take reasonable steps to ensure that rugby league referees were properly trained and informed concerning the risk of spinal injury in scrums; (g) it is also alleged that the defendant should have known, by reason of its administration and control of the sport of rugby league football and/or from the available medical evidence, of the risk of severe spinal injury created by, firstly, having the rules as they were when the plaintiff was injured; secondly, inappropriate player selection; thirdly, lack of appropriate training and education; and fourthly, failing to adopt specific measures to guard against spinal injury. In summary, the particulars of negligence involve the rules adopted by the NSWRL in relation to scrums and the training and education of referees.

The Law

5 The plaintiff relies on ss 60C and E of the Act in relation to the actions pleaded against the seventh defendant. Sections 60C and E fall within subdivision 2 of the Act, which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides:

“Ordinary action (including surviving action)

60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines."

6 Section 60E provides:

“Matters to be considered by the court

60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:


(a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff’s injury or loss.”

7 In relation to ss 60C and 60E of the Act, Mason P in The Council of City of Sydney v Zegarac (1998) 43 NSWLR 195 at 197 referred to propositions which were uncontroversial. They are:

(1) Section 60C confers a judicial discretion.

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is “just and reasonable” to make the order for extension.

(3) In exercising the discretion, the court is required “to have regard to all the circumstances of the case” (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) “to the extent that they are relevant to the circumstances of the case”.

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General’s second reading speech that are set out in the order judgments, and which McHugh J discusses in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 [139 ALR 1] at 552-553.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles.

8 Justice Powell in Zegarac stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA’s further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do; and secondly, that, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant.

9 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 128, by the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 where their Honours stated that the effect of the High Court decision in Taylor’s case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal – see McLean v Sydney Water Corporation [2001] NSWCA 122.

10 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a)

11 The cause of action accrued on 7 May 1994 when the plaintiff was a minor. The limitation period commenced to run on 15 August 1995 and expired on 15 August 1998. The application seeking the extension of time was filed on 19 March 2002, almost 3½ years out of time.

12 The plaintiff’s explanation for delay is that firstly it was not until 15 March 2002 that he learned that there may be a relationship between the New South Wales Rugby League Association and the other defendants who have been previously named in the proceedings, and that, secondly, it was not until 28 August 2002 that the plaintiff became aware that the New South Wales Rugby League Association had issued directions in relation to training for persons playing in scrums and restrictions on the type of person who should engage in scrums.

13 In March 1995, the plaintiff instructed his solicitor, Mr Parsons to commence proceedings. On or about January of 1996, Mr Parsons contacted Prime Television to obtain footage available of the oval at which the plaintiff was injured and which showed the plaintiff being carried from the field. In May 1996, Mr Parsons also made inquiries of the Laurieton United Football Club regarding the club’s association with the football competition in which the plaintiff participated. In or around June of 1996, Mr Parsons sought advice from counsel. In September 1996, Mr Parsons arranged for searches of the club and other associations involved in the organisation of the game to be conducted.

14 In August 1997, Mr Parsons briefed senior counsel and arranged a conference. On 12 August 1999, the plaintiff filed a statement of claim against the six defendants referred to earlier in this judgment. Thus the statement of claim against the other six defendants was filed within time.

15 In February 2002, new counsel was briefed to provide advice. Subsequently this motion was filed seeking to join the NSWRL. On 25 March 2002, a subpoena was issued to the NSWRL for the production of documents.

16 There was some delay in the plaintiff’s legal representatives inspecting these documents. On 4 June 2002, inspection took place. On 9 August 2002 and on 13 August 2002, documentation was provided to counsel. On 28 August 2002, Mr Parsons spoke with the plaintiff regarding some of the documents produced by the NSWRL. Up until this date, the plaintiff was unaware of any relationship between any of the defendants and the respondents and any inter-relationships between the parties. The plaintiff was also not aware that the NSWRL had issued directions in relation to training for persons playing in scrums and restrictions on the type of person who should engage in scrummaging. Hence the explanation for delay is essentially that of a change of counsel who gave advice to join the NSWRL.

17 In Guest v Southern & Anor (NSWSC, unreported 22 September 1995) (which involves the extension of the limitation period under the Motor Accident Act) Studdert J held that the plaintiff was not personally responsible for the delay and considered it to be reasonable for the plaintiff to have relied upon his solicitors to the extent he did. The plaintiff’s solicitors were essentially to blame for the delay. Studdert J held that this was a very material consideration and referred to Sophron v The Nominal Defendant (1957) 96 CLR 469 and Stollznow v Calvert (1980) 2 NSWLR 749. Similar statements have been expressed in Morton v Jools (1992) ATR 81-164 and McAndrew v Wyoming Nursing Home (Sperling J, unreported, 5 December 1997) in relation to an extension of time pursuant to s 151D of the Workers Compensation Act. It could not be expected that the plaintiff would have been aware of the relationship between the ARL, NSWRL and CRL. The plaintiff was entitled to rely upon his solicitors to determine and sue the correct defendants. The plaintiff is blameless for this delay.

Extent to which delay caused prejudice - s 60E(b)

18 There is no evidence that the plaintiff’s failure to commence the proceedings within the limitation period has had the result that any evidence has been lost. There is no evidence of actual prejudice. However, I accept that with the passing of 9 years since the accident there will, indisputably, be presumptive prejudice.

The time at which the injury became known to plaintiff - s 60E(c); time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant’s act or omission and extent of plaintiff’s injury or loss - s 60E(d), (e) and (h)

19 The plaintiff became aware of the injury and its extent on or soon after 7 May 1994. Shortly after the accident, the plaintiff would have been aware that his injuries were serious and permanent. As previously stated, it was not until on or around 28 August 2002 that the plaintiff became aware of the connection between his injury and the proposed seventh defendant’s acts and omissions and the inter-relationship between the ARL, NSWRL and CRL. The plaintiff was playing for the third defendant: Laurieton United Football Rugby League Football Club Inc, and believes he was registered with the second defendant: the CRL, which is affiliated with the NSWRL.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f)

20 There is no conduct by the defendant which induced the plaintiff to delay brining action.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g)

21 There would be hospital records from the date of the plaintiff’s accident and his subsequent rehabilitation available. In December 2000, the plaintiff had been seen by a rehabilitation specialist. On 5 April 2002, documents including the medical reports and tax returns for the financial years ending 1995-2000 were served on the defendants.

Just and reasonable

22 The proposed seventh defendant submitted that the plaintiff’s case is futile. This is the critical issue in this matter. Normally, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff’s cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (NSWSC unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485; Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995); and Manfield v Heather [2000] NSWCA 36.

23 The ARL, NSWRL and CRL are all located on level 5, NSW Leagues Club, Phillip Street, Sydney (located just across the road from this Court). The same firm of solicitors act for NSWRL and the CRL. Hence, the defendant’s solicitors have been involved in the preparation of the case from a quantum point of view since 1998. It is important to appreciate that they have also in their possession the video footage of the actual game in which the plaintiff was injured. They would have been in a position to have made enquiries as to the names of the players, their whereabouts and taken statements.

24 The plaintiff submitted that an extension of time should be granted against the proposed seventh defendant in accordance with the principle espoused in Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549. In Briggs, Hope JA said at 554:

"...[W]here a plaintiff brings an action against two defendants alleging that one or both are liable, and there is some evidence to connect each defendant with the events the subjects of the action, then provided the plaintiff establishes a prima facie case against one of the defendants, the other defendant will not be dismissed from the action until the whole of the evidence has been heard. As it seems to me this means that a plaintiff is entitled to bring an action against two defendants if he has evidence to establish a prima facie case against one of the defendants, and also has evidence pointing to the possibility of the other defendant being liable."

25 Briggs followed the earlier decision of BHP v Waugh (1988) 14 NSWLR 360. Briggs has been applied by the Court of Appeal in Dow Corning Pty Ltd v Paton (1998) Aust Torts Reps 81-485. Hence, if there is some evidence to connect the NSWRL with one of the existing defendants, then NSWRL should be joined as a defendant.

26 It is convenient at this stage that the relationship between the plaintiff and the defendants including the proposed seventh defendant be analysed.

27 The plaintiff signed a registration form in which he stated that he was a student. The form also relevantly stated that:

“The undersigned, make application to be registered as a player with the Port Macquarie Rugby League Football Club and agree to abide by the N.S.W.L. constitution, Country Rugby Football League Inc. constitution, the group or division and all rules and by-laws of the above club and of the said bodies in their entirety and to observe all directions and additional rules, if any, which from time to time be made by the said club or bodies. I have not signed any other registration form for the 1994 season .”

28 Thus the plaintiff agreed to abide by both the NSWRL and the CRL constitutions.

29 Mr Christopher Turner, the recent former general manager of NSWRL gave evidence of the role of the NSWRL in 1994. I have no hesitation in accepting his evidence. A précis of his evidence of the organisation of rugby league in 1994 is as follows. There is the international governing body of rugby league called RFLIB. The RFLIB has representatives from various countries, including Australia, which have an interest in rugby league football. The Australian representatives on the RFLIB are those appointed by the ARL. These laws of the game of rugby league as approved and adopted by the RFLIB are in use in New South Wales, for players over the age of 12 years.

30 In 1994, the bodies which had an interest in the game of rugby league in New South Wales were the ARL, NSWRL; and CRL and clubs fielding teams, and teams in various competitions for rugby league played in New South Wales.

31 The ARL is principally concerned with the promotion and organising of interstate competition for rugby league teams and interstate competition or rugby league teams.

32 The NSWRL is principally concerned with the promotion and organising of intrastate competition between rugby league teams, the “city” being competition between teams fielded by any of the bodies defined as “club” in the articles of association. In respect of the Country League, the articles of association stated that it should have complete autonomy “in dealing with disputes, protests and disqualifications...” Additionally, under the heading “Membership and General Committee” the articles also state that the country league shall be entitled to nominate 4 eligible persons for membership of the league, one of whom was to be secretary of the Country League.

33 In the memorandum of association (Ex D), the NSWRL stated under clause (b) that the objects for which the League was established and its powers were to “foster and control the game of Rugby League Football throughout the State of New South Wales and generally to take such action as may be considered conducive to its best interests”. Under clause (f) it also stated that its object was to “regulate and control the operation of all member bodies and affiliates.” The object stated under clause (k) is to administer laws relating to rugby league football and to take such action as is necessary to achieve uniformity in such laws.

34 The CRL is concerned with the promotion and organising of competition between rugby league clubs and teams in country areas of New South Wales. The Laurieton United Rugby League Football Club Inc and the Old Bar Pirates are clubs which provided teams for competition in a country area of New South Wales. The CRL is affiliated with the NSWRL. The CRL has one representative on the board of directors of the NSWRL.

35 Before and since 1994, the NSWRL did not and does not have any representatives on a committee of or organising body of the CRL. The CRL is not a subsidiary of or subject to the control and direction of the NSWRL. The CRL was and is an autonomous body.

36 Some relevant provisions of the constitution of the CRL are clauses 4, 16 and 39. Clause 4 provided that the CRL shall be composed of the constituent bodies there identified including “the football organisation known as Group Three” and “clubs within divisions or groups”. Clause 16 provided that the general committee of the CRL shall consist of the persons and representatives there identified, which does not include any representatives from the ARL or NSWRL. Clause 39 provided for the grouping of constituent bodies into divisions of which Group Three was part of the North Coast division. Clause 39(2) provided that a general committee of a division shall comprise an equal number of delegates from all groups within the division and clause 39(2) provided that the general committee of a division shall have the powers there enunciated including the power to control all intra divisional fixtures and to determine all disciplinary action on all intra divisional matters.

37 In 1994 CRL competition for country rugby league teams was divided into 28 competitions throughout country areas in New South Wales consisting of divisions 1 to 6. In 1994, the Laurieton United Rugby League Football Club Inc was involved in a strictly amateur social rugby league football competition. Group 3 was organised into areas. The Laurieton United Rugby League Football Club Inc was a member of the Hastings League. The Hastings League included clubs and teams from regional areas around Taree in New South Wales. The Hastings League had its own committee with a chairman and judiciary. The Hastings League appointed a representative on the Group 3 committee which in turn appointed representatives, pursuant to the constitution of the CRL, to the CRL.

38 The Laurieton United Rugby League Football Club Inc was not “affiliated” with the NSWRL. According to Mr Turner, it was not a subsidiary of or subject to the direction, control or instruction of the NSWRL. No representative of the NSWRL was a member of or member of any of the committee or any management body of the club. It was responsible for organising the engagement of its own players and appointment of its own coaches, trainers or other officers. The NSWRL did not select, organise or arrange for or have any involvement in the selection of the ground on which the match in which the plaintiff participated was played on 7 May 1994.

39 The NSWRL did not appoint, select, direct or instruct Steven Slater or any other person in the selection of the plaintiff for the team of Laurieton United which was fielded to play in the match on 7 May 1994. Nor did the NSWRL appoint or select Michael McKenzie as referee for the match played on 7 May 1994. On 7 March 1994, neither Steven Slater nor Michael McKenzie were employees or otherwise contractors or agents of the NSWRL.

40 According to Mr Turner, the NSWRL did not and could not exercise any power or control or direction over the referee’s conduct of the match played on 7 May 1994. It is the nature and function of a referee that he exercise his authority without fear or favour and without influence or direction from any other party or person. At this stage, the NSWRL is not aware of what coaching or training the plaintiff received and from whom before he participated in the match on 7 May 1994.

41 In, and prior to, 1994, the NSWRL did not and could not coach or train or be involved in the coaching or training of every person who played or wished to play rugby league football in New South Wales. In 1994, and for the years prior to and since that date, the NSWRL conducted a coach training and accreditation scheme available for persons seeking to be trained as and accredited as a coach of rugby league football.

42 In 1994, and for many years before that date and for the years since, the NSWRL employed a coaching and developments manager and coaching and developments officers. Part of the duties of the manager and officers was to provide or organise coaching instruction for persons interested in being coaches of rugby league in New South Wales. Prior to 1994, 4 coaching and development officers were sent individually to the North Coast, the Riverina, the northern rivers and the Western groups. These officers were charged with the responsibility of providing information regarding coaching techniques and protocols. In each of the four groups, the officers assisted with coaching and the development of players (t 12.1-5). Mr Turner did not know whether a program for a preliminary coaching certificate (Ex CT 4, p 283), which included a session on safety in playing, was part of the training provided by the various coaching and development officers when they moved out into the different areas (t 14.1-8). However, a coaching development course was set in place by the ARL and used in the Northern Rivers (t14.26-49). The ARL and ACC (Australian Coaching Council) specifically encouraged coaches to include, as part of their up-dating requirements, activities which developed coach awareness in the areas of safety procedures/injury prevention; injury management and legal liability (Ex CT 4, p 303).

43 In coaching courses given in 1994 and prior to that date, instruction was given about selection of players with appropriate physical build for the position of hooker and about preparing players for engaging in a scrum and instruction was given about exercises to strengthen the necks of players (aff C. Turner 7 February 2003 par 23).

44 According to Mr Turner, the act of joining a club which fields a team of rugby league players is a voluntary one. Participation in a game of rugby league whether in a team organised by a club or otherwise is voluntary. Participation in courses was and is voluntary. From at least 1989, the ARL and the NSWRL had resolved that it be compulsory for a person coaching players in rugby league to be the holder of, at least, a level I coaching certificate. However, the NSWRL cannot and could not compel any person that proposes to coach any other person in rugby league to attend a level 1 coaching certificate course or any other course which was part of the national coaching scheme.

45 The NSWRL did not have and was unable to exercise any control over the Laurieton United Rugby League Football Club Inc its members or officers to “require” that any person coaching the plaintiff had completed the level 1 coaching certificate course of the ARL National Coaching Scheme and was an accredited coach. As the evidence presently stands, there is no evidence that the coach attended a coaching course organised by the NSWRL. Nor is there any evidence to suggest the NSWRL trained the referee of the match.

46 Mr Turner made an assumption that the NSWRL by its employees or officers was not present when the match in which the plaintiff participated on 7 May 1994 was held at the ground at Old Bar Park. I have accepted that it is not known whether in fact there were any NSWRL representatives at the match. The NSWRL does not know the persons who played in the match, although a video of the match is available. If the accident had occurred at say, Leichhardt Oval, it would have been likely that Mr Turner would have received a telephone call on that day appraising him of the incident and the injured persons medical condition.

47 In cross-examination, Mr Turner stated that he was uncertain as to whether a memorandum of the NSWRL Coaching and Development Academy addressed to all Coaching and Development officers (CT 4 p 311) was actually applied in the North Coast division (t 15.1-7). The memorandum set out the components of the programme for the Level 1 coaching certificate course. One of the components of the course set out sports safety and codes of conduct. Mr Turner stated that he was aware that in, prior to and since 1994 the national coaching scheme of the ARL provided courses for the instruction and training of coaches (t 3.40-44). He said that he had personal knowledge that coaching courses and instruction were held in 1994 and prior to that time at the NSWRL academy at Narrabeen and at various other venues throughout New South Wales (t 15.27-33). He was unaware of the situation prior to 1994.

48 Mr Turner also gave evidence that he was not sure whether the NSWRL and the CRL worked together in coaching and development endeavours (t 18.12-26). He said he did not know whether the ARL passed information to the NSWRL and whether it then passed information on to the CRL (t 18.27-34). When cross-examined about records of serious injury in a game of rugby league conducted by the CRL, Mr Turner stated that these were held by the CRL and not the NSWRL (t 16.56-17.6). The NSWRL does not normally have access to records held by the CRL. When his attention was drawn to papers prepared by Dr J Yeo (Exs E, F, G) which indicated that the NSWRL had provided Dr Yeo with statistics on injuries to players throughout NSW, he stated that he was unaware of this (t 17.28-38).

49 In Agar v Hyde [2000] HCA 41 players participating in rugby union matches in the position of hooker sustained serious spinal injuries when an opposing team’s front row charged them while they still readying themselves to engage a scrum; a similar factual situation but a different code of football. Leaving to one side the issues of jurisdiction which were raised, the plaintiff/respondents in Agar argued on the strike out application, that the International Rugby Football Board (IRFB) owed them a duty to take reasonable care in the monitoring of the operation of the rules to ensure that they did not provide for circumstances where risks of serious injury were taken unnecessarily. The High Court found that the IRFB did not owe the plaintiff respondents a duty of care. The voluntary nature of participation in the sport, the obvious risks associated with playing rugby and potential indeterminacy of liability were amongst the reasons given for the decision.

50 In Agar at paragraphs 80-92 Gaudron, McHugh, Gummow and Hayne JJ made incisive statements about rugby. Their Honours stated:

“The laws of a game like rugby football differ from norms of conduct enforced by the courts. The application of the rules embodied in the laws of the game in any particular rugby match is, in very important respects, a matter for the skill and judgment of the particular officials who controlled the match. Often enough (and always if the bystander on the touch line is to be believed) those judgments turn on individual and qualitative assessments made by the officials which have to be made instantly, no matter what the speed of play. Should every infraction of the rules be penalised? When should advantage be allowed? Should the game be allowed to flow with as little interruption as possible? What is " unduly " rough play in a body contact sport? What is " dangerous " play? All these and many other judgments must be made by the officials.

It follows that in no relevant sense did the Board of the IRFB, or those who attended its meetings as delegates, control what happened in the matches in which the respondents were injured. The IRFB did not organise either of these matches. It did not decide whether the laws of the game which it promulgated would be adopted in these matches. The highest point to which the respondents' contentions could rise was to assert that the IRFB "influenced" the way in which rugby football would be played in Australia. But it is not arguable that the influence amounted to control over the sport: at least at the level at which the respondents played. In particular, they were not subject to any legal control by the IRFB or the delegates to its meetings. Nor can it be argued that they were subject to control in any practical sense. There were too many intervening levels of decision-making between the promulgation by the IRFB of laws of the game and the conduct of the individual matches in which the respondents were injured. What happened depended to a greater or lesser extent upon the several decisions of the national union, the local union and the association which organised the competition and on the decisions of the referees who acted in those matches.

The respondents were not participating as employees, whether of the IRFB or any of its constituent bodies or of any more local club or association. They were not subject to any legally binding obligation to accept direction from anyone else about their participation. Neither the Board nor the delegates invited, let alone directed or required, either respondent to play in the match in which he was injured. In this respect the cases which the respondents seek to make differ fundamentally from the case of an employee injured at work. An employer can direct the employee to go in harm's way and to do so in circumstances over which the employer can exercise control. They differ equally radically from the relationship between the statutory authority and waterside worker considered in Crimmins v Stevedoring Industry Finance Committee in which the authority could, and did, direct the worker where to work, and in which the authority had power to regulate the safety of the working environment.

The IRFB's lack of control over the matches in which the respondents were injured is important. The respondents contend that the appellants should have changed the laws of the game to reduce the risk of players being hurt by the conduct of other players. That is, they contend that the appellants should have acted to control, or at least influence, the conduct of third parties (the other players) which was the immediate cause of the injury to each respondent. The short answer to the contention is that the appellants did not have power to do so. There are, however, further aspects of the matters that require the conclusion that the appellants did not owe the respondents a duty of care.

A breach of existing laws?

If the duty alleged is a duty to alter the laws of the game, is it alleged that what happened to each respondent resulted from a breach of the then existing laws or is it alleged that it happened notwithstanding that there was no breach of those laws? Would different laws have prevented the injuries suffered by the respondents? Which of the many different possible variations to the laws should have been adopted?

In Mr Hyde's case it is clear that he alleges that he suffered his injury when, in breach of the law forbidding opposing packs of forwards to engage in a scrum by one charging the other, the forwards of the opposing team charged his pack.

That breach of the laws may be relevant to claims he makes against other parties, but what is it alleged that the law-makers should have done? Although not spelled out in Mr Hyde's pleading, it may be argued that the law-makers should have altered the laws by providing such severe penalties for conduct of the kind in which his opponents engaged as to deter its occurrence or made new rules governing the formation of scrums. But what is there to say that even then the changed law would have been obeyed?

The IRFB, as law-maker, did nothing which facilitated or encouraged the breach of the rules by Mr Hyde's opponents. The most that can be said is that it did not sufficiently deter its breach. To hold that the appellants owed a duty to propose and join in making a law of the game which would have better deterred breach of the existing rules is to extend notions of duty of care too far. It would cast a positive duty to act on individuals who could not control the voluntary conduct of others (the opposing players) which was the immediate cause of harm to the respondent. It is not necessary to go so far as to decide that, as a general rule, a person owes no duty with respect to the acts of a third party. But to cast a positive duty on the appellants to change the laws of the game would provide for compensation of a person who was injured, not because of anything which the appellants did, but because of the wrongful act of other players. To impose such a duty would attribute to the appellants a capacity to control the conduct of the players which they did not have. It would deflect attention from those who were responsible and it would dilute the notion of individual responsibility which lies at the core of the law of negligence.

Autonomy and responsibility

Mr Worsley makes no allegation of any breach of the laws of the game. If there was no breach of the laws, Mr Worsley would have no claim against his opponents. Each participant in the match was adult and must be taken to have consented to the application of physical force in accordance with the laws of the game. And not only would there be no actionable trespass in the opposing team doing what it did, there is nothing which would suggest that any player conducted himself, in playing within the laws of the game, so as to have broken any duty of care which he owed to the respondent.

If that is so, why should the law-makers be liable when the player who inflicted the injury is not? If the laws of the game define the conduct to which an adult participant consents, the law-makers should not be liable because they could have made the activity that the participant chose to undertake less dangerous. The absurdity of this proposition is highlighted by the fact that, in many activities, the danger is part of the activity's attraction. The participant may therefore not have chosen to engage in the activity at all if it was less dangerous.

The decision to participate is made freely. That freedom, or autonomy, is not to be diminished. But with autonomy comes responsibility. To hold that the appellants owed a duty of care to Mr Worsley would diminish the autonomy of all who choose, for whatever reason, to engage voluntarily in this, or any other, physically dangerous pastime. It would do so because it would deter those who fulfil the kind of role played by the IRFB and the appellants in regulating that pastime from continuing to do so lest they be held liable for the consequences of the individual's free choice. The choices available to all would thus be diminished.

Separate questions may arise about school age children whose decisions are made or affected by others but those questions need not be considered in this case.

We consider that it is not arguable that the appellants owed the respondents a duty of care. It follows that it is not necessary to consider the limitation questions which were argued. It is as well, however, to say that we doubt the appellants' contention that if a limitation period has run, and the party whose claim is prima facie barred has applied for extension of time, or indicated an intention to do so, it would nevertheless be right to set aside service of process overseas without first having decided whether an extension should be allowed.

The appeals to this Court should each be allowed with costs. The orders of the Court of Appeal should, in each case, be set aside and in lieu there be an order that the appeal to that Court is dismissed with costs.”

51 In Haylen v New South Wales Rugby Union Ltd [2002] NSWSC 114, the Court was concerned with an application by the defendant for the summary dismissal of proceedings. In a case closely resembling Agar, the plaintiff had brought the proceedings after he suffered injuries resulting in quadriplegia while participating in a rugby union match in the position of hooker. The plaintiff’s forward pack charged forward prior to engagement causing the scrum to collapse and breaking the plaintiff’s spine. The plaintiff alleged the New South Wales Rugby Union Ltd (NSWRU) was negligent on a number of grounds, although principally for failing to control and regulate rugby so as to eliminate unnecessary risk of injury. The case closely resembled Agar and Einstein J analysed the various judgments given in Agar at some length.

52 Einstein J dismissed the proceedings against the New South Wales Rugby Union. Firstly, His Honour found, at [52], that there was no duty incumbent upon the NSWRU to make changes contended for by the plaintiff “to eliminate or minimise the risk of catastrophic injury”. His Honour stated that: “The concept of a duty of care requiring a rule maker to alter the rules as suggested is to extend notions of duty of care too far.” Secondly, His Honour held, at [38] and [54], that the plaintiff had been unable to adduce any evidence, at an overall level, to suggest that the defendant in a de facto sense, exerted control to make and enforce rule changes so as to avoid exposing persons playing the sport to unnecessary risk of injury. More specifically, the plaintiff failed to establish any evidence of practical control in respect of the match in which the plaintiff suffered his injuries. His Honour concluded, at [55], that the inability of the plaintiff to adduce evidence to suggest the NSWRU exerted the control for which it contended, made it clear that it would be “oppressive to permit the proceedings to continue...” An appeal against this decision was filed but later discontinued.

53 The element of control referred to by Einstein J in Haylen and the High Court in Agar has been relied upon in these proceedings by counsel for the NSWRL. It was submitted that Agar holds that a governing body, which in the case before this Court is the NSWRL, cannot be held liable for what occurs in the individual games of football that may be played across the state.

54 In passage quoted above, from Agar, the High Court stated that when considering autonomy and responsibility, the decision to participate in the match is made freely and that freedom and autonomy is not to be diminished but also with autonomy comes responsibility. However, the High Court specifically stated that separate questions might arise about school age children whose decisions are made or effected by others. The plaintiff was 16 years old at the time of the accident and the registration form discloses his occupation as student.

55 There are further matters to be considered when determining whether the seventh defendant owed a duty of care to the plaintiff. The allegations in negligence in the case before me are not just “to eliminate or minimise the risk of catastrophic injury” as in Haylen. It is significant that the NSWRL did not organise the matches. What happened on the day of the game depended to a greater or lesser extent upon several decisions of the ARL, NSWRL, CRL and the local rugby association which organised the matches and the referees who acted in those matches. In a real sense, the NSWRL did not have control over the match in which the plaintiff was injured. The highest that it can be put is that NSWRL may have had some influence on the coaching of the third defendant’s team and that it had the authority relating to the way the game was played. These are important considerations and mitigate against the NSWRL being joined as a defendant. At this stage, there is no evidence to show what caused the scrum to collapse, whether it was caused by players breaching the laws of league or otherwise.

56 Even if the laws were not obeyed, the same question posed in Agar arises here. If the laws of the game define the conduct to which an adult participant consents, the lawmakers should not be liable because they could have made the activity that the plaintiff chose to undertake less dangerous. It is, at least arguable, that different duties arise where the plaintiff is a minor. As pointed out earlier, the NSWRL did have the power to change the laws of rugby league. However, as stated in Haylen, to extend the notion of a duty of care to eliminate or minimise the risk of catastrophic injury is extending that notion too far.

57 In Agar, the High Court dismissed the application to join another defendant when there were already existing defendants. While I have found this case difficult, the only real difference between this case and Agar and Haylen, is that at the time of the accident the plaintiff was a minor. As noted, according to Agar separate questions may arise about school age children whose decisions are made or affected by others. This was not an inter-school game. In these circumstances there is no evidence to show that the NSWRL had any control at all to set an age limit on participants in the CRL competitions. If a team comprises of both minors and adults, it would be impossible to hold competition with separate rules for minors. It is my view that the plaintiff does not have a real case to advance against the proposed seventh defendant, nor is there evidence pointing to the possibility that the proposed seventh defendant might be liable.

58 Counsel for the NSWRL also submitted that if the plaintiff’s application is granted then his proceedings against the NSWRL will commence on the date upon which the NSWRL is added as a party in accord with SCR Part 8 r 11(3). This will be a date after 6 December 2002 in which case the Civil Liability Act 2002 must apply. It was submitted that if this is so the plaintiff’s action will fail as playing rugby league football is plainly an inherently dangerous recreational activity within s 5K of the Civil Liability Act. The plaintiff submitted that this is an issue that should be left for determination at trial. It is my view, that it would have been appropriate that this issue be determined at trial because there would have been a strenuous argument as to whether the Civil Liability Act should applied in relation to one defendant and not be applied in relation the other six defendants.

59 While it is my view that the defendant has not suffered significant prejudice, it is my view that the plaintiff does not have a real case to advance against the proposed seventh defendant, nor is there any evidence pointing to the possibility of the proposed seventh defendant being liable. Thus, the plaintiff has not discharged his onus and I am not satisfied that it is just and reasonable to extend the limitation period under ss 60C and E against the seventh defendant.

60 Costs are discretionary. In Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent’s opposition was wholly unreasonable. The opportunity was not wholly unreasonable. The plaintiff is to pay the proposed seventh defendant’s costs as agreed or assessed.

61 The orders I make are:

(1) Leave to join the proposed seventh defendant NSWRL as a defendant is refused.

(2) Leave to extend the limitation period against the proposed seventh defendant in relation to a cause of action and injury suffered by the plaintiff on 7 May 1994 is refused.

(3) The notice of motion filed 19 March 2002 is dismissed.

(4) The plaintiff is to pay the proposed seventh defendant’s costs as agreed or assessed.
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Last Modified: 08/21/2003