Green v Country Rugby Football League of NSW Inc - [2008] NSWSC 26

No judgment structure available for this case.

CITATION: Green v Country Rugby Football League of NSW Inc [2008] NSWSC 26
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 05/11/07-09/11/07, 13/11/07-16/11/07, 26/11/07-27/11/07

JUDGMENT DATE :
31 January 2008

JURISDICTION: Common Law

JUDGMENT OF: Walmsley AJ

DECISION: Verdict and judgment for Defendant.
Plaintiff to pay Defendant's costs.

CATCHWORDS: TORTS - negligence - Sport - rugby league - scrum collapse - catastrophic injury - where plaintiff sixteen years old - where plaintiff playing hooker - where plaintiff playing in unrestricted age competition - where plaintiff younger, smaller and lighter than opposing front row players - where plaintiff had long, thin neck - where plaintiff’s physical characteristics made him more susceptible to scrum injury - where plaintiff suffered tetraplegia upon scrum collapse - liability of Country Rugby League - where Country Rugby League administered sport in relevant part of New South Wales - whether Country Rugby League should have required medical examinations prior to registering players - whether Country Rugby League failed adequately to warn players of risk of injury - whether Country Ruby League failed adequately to disseminate information to participants about the risk of injury to players with certain characteristics who play in certain positions - whether Country Rugby League liable for failure to disseminate information to participants about neck-strengthening exercises - whether Country Rugby League ought to have prevented players of certain physiques from playing in certain positions - where evidence that de-powering scrums significantly reduces risk of scrum injury - whether Country Rugby League liable for failure to de-power contested scrums earlier - whether Country Rugby League ought to have instructed referees to de-power scrums - whether Country Rugby League owed plaintiff a non-delegable duty of care - whether Country Rugby League ought to have changed rules of rugby league - where plaintiff’s coach unaccredited - whether Country Rugby League ought to have allowed team to participate only if coach accredited - AGENCY - Imputed knowledge - whether Country Rugby League could acquire knowledge of a player’s bodily characteristics by reason of the coach’s knowledge - WARNINGS - Whether Country Rugby League had a common law duty to warn player or his parents of risk of spinal injury in rugby league games

LEGISLATION CITED: Civil Liability Act 2002, s. 5D(3)(b)

CATEGORY: Principal judgment

CASES CITED: Agar v Hyde (2000) 201 CLR 552
Anderson v Mount Isa Basketball Association Incorporated (1997) Aust Torts Reports 8-451
Brighton le Sands Amateur Fishermen’s Association Ltd v Vasilios Kormovokis [2007] NSWCA 331
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Ellis & Wallsend District Hospital (1989) 17 NSWLR 553
F v R (1983) 33 SASR 189
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269
Gold v Haringey Health Authority [1988] QB 481
Hawkins v Clayton (1988) 164 CLR 539
In the matter of the Phillip-Stephan Photo Litho and Typographic Process Pty Ltd (1890) 12 LR NSW (EQ) 4
Kondis v State Transport Authority (1984) 154 CLR 672
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR638
Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39
New South Wales v Fahy [2007] HCA 20; (2007) 81ALJR 1021
Nowak v Waverley Municipal Council (1984) Aust Torts Reports 80-200
Rogers v Whitaker (1992) 175 CLR 479
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Rosenberg v Percival (2001) 205 CLR 434
RTA v Dederer [2007] HCA 42; (2007) 238 ALR 761
Rufo v Hoskings [2002] NSWSC 1041
Vairy v Wyong Shire Council (2005) 223 CLR 422
Watson v Haines (1987) Aust Torts Reports 80-094
Wyllie v Pollen (1863) 3 De GJ & S 596; 46 ER 769
X v Pal (1991) 23 NSWLR 26

PARTIES: Shane Anthony Green - Plaintiff
Country Rugby Football League of NSW Inc - Defendant

FILE NUMBER(S): SC 20259/98

COUNSEL: P Deakin QC; K Andrews (Plaintiff)
M L Williams SC; A Radojev; R Sheldon (Defendant)

SOLICITORS: W H Parsons & Associates Solicitors (Plaintiff)
Ebsworth & Ebsworth Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WALMSLEY AJ

31 JANUARY 2008

20259/98 SHANE ANTHONY GREEN v COUNTRY RUGBY FOOTBALL LEAGUE OF NEW SOUTH WALES INC
JUDGMENT

1 HIS HONOUR:

Introductory

2 On 7 May 1994 the plaintiff, then a 16-year-old schoolboy, was playing in the position of hooker in a game of rugby league. In the course of a scrum he suffered a fracture of his cervical spine, resulting in tetraplegia. He claims damages for negligence from the second defendant, Country Rugby Football League of NSW Inc (“CRL”).

3 He alleges that given his young age, slight build, low weight and his having a long thin neck, CRL should have ensured he was not selected to play in the position of hooker, especially given his team was playing against an open age team with front row players of much greater stature and weight, and that front row players, especially hookers, had previously, to its knowledge, suffered severe spinal injuries.

4 The issue to be determined in the case is whether CRL is, as alleged, liable in negligence. The parties agree that if I find in favour of the plaintiff, I should award him damages of $6,500,000. The parties also agree that the case is not affected or governed by the Civil Liability Act 2002.

Summary of the plaintiff’s case

5 In essence, the plaintiff’s case is that CRL had sole responsibility for organising and controlling rugby league in country New South Wales. By exercising the powers it had to regulate the game, CRL should have insisted its constituent bodies, such as the club he played for, not permit players with his physical characteristics to play in the front row, especially in the absence of their having proper neck strengthening exercises. His club’s knowledge of the plaintiff’s physical characteristics was CRL’s knowledge, through the principles of agency law. Further, CRL did nothing, although it should have taken steps, to ensure players such as the plaintiff knew of the risk to people of his physical characteristics when playing in the front row. Alternatively, he argues that when, as it did in March 1994, his club sought and obtained his mother’s consent for him to play football, CRL did not warn her (as it could have) that there was a risk of serious spinal injury to him if he played in the front row. Had she been told of that risk, she would never have given her permission for him to play. Finally, and alternatively, the plaintiff argues that because he never had, nor was advised to have, neck strengthening exercises, which would, had he had them, have made him less vulnerable to serious spinal injury, he suffered the loss of a valuable chance to suffer no injury, or at least a less severe one.

Summary of CRL’s case

6 CRL denies it owed the plaintiff a duty of care. Quite apart from the interposition of two corporate entities between it and the plaintiff, CRL contends it did not even know of the plaintiff’s existence, let alone sufficient of his personal characteristics to permit it to take steps of the kind the plaintiff says it should have taken.

7 Further, it contends that in the rugby league structure, it had no role other than (a) as a conduit for the expression of concerns between its constituent members and New South Wales Rugby League (“NSWRL”) and the Australian Rugby League (“ARL”); (b) as a conduit for information to clubs in the country from the NSWRL and the ARL, and (c) to permit country clubs to form geographically based groups for the conduct of games and inter-club competitions.

8 CRL says that had it made a rule requiring clubs not to permit players with the plaintiff’s physical characteristics to play in the front row, such a rule would not have been enforceable and, because it would only have been a CRL rule, might have put CRL out of step with NSWRL and ARL.

9 Assuming it could have imposed a requirement that clubs not permit a player with the plaintiff’s characteristics to play in the front row, it would have needed additional staff to determine the suitability of players. Assuming it had the resources for that (which it did not), there was no appropriate standard by which a player’s suitability could be judged.

10 Further, the plaintiff was under no obligation to play the game. He consented to the application of physical force by volunteering to play, the rules of the game necessarily involving the application of physical force. There was no breach of the rules alleged.

11 The game of rugby league is renowned for its risks of serious injury. Even assuming CRL owed the plaintiff a duty of care, there was no breach, because it could not have known his personal characteristics, or that he was under age and playing in an open age competition; it did the best it could with its limited financial resources to train country coaches and it was reasonable to leave it to them to decide who played and in which position.

12 In any event, specialist rehabilitation physician Professor Yeo, an expert in the field of spinal injury in a football context, considered the plaintiff’s physique made him suitable to play in the front row, including in open age games.

13 As to the lack of warning to the plaintiff’s mother, her evidence was affected by the benefit of hindsight: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 581-2 (per Samuels JA). In any event the plaintiff would not have stopped playing rugby league if warned serious spinal injuries might arise.

14 As to the plaintiff’s not having had neck strengthening exercises, CRL relied on its constituent bodies to ensure coaches, who would require these exercises, be properly trained. Its resources did not permit more. In fact the plaintiff’s team did the appropriate exercises.

15 Finally, if any breach is found, the plaintiff voluntarily assumed the risk of serious spinal injury.

The course of the litigation

16 Although he had earlier sued a larger number of parties, by the time the case came to trial, the plaintiff was proceeding only against the second, fourth and fifth defendants. In the course of the first week of the trial, his case was settled as against the fourth (his team’s coach), and the fifth (the referee of the game in which he was injured). I was not told the terms of those settlements. Although his club, Laurieton United Rugby League Football Club Inc (“Laurieton”) remains, on the face of it, a party to the proceedings, I was told by Mr Deakin QC, who, with Mr K Andrews, appeared for the plaintiff, that it had not entered an appearance and had in any event been wound up. The case against the first defendant was discontinued before trial. Thus it is now only the plaintiff’s case against CRL that calls for my adjudication.

Background

17 The plaintiff was born in 1977. He was the youngest of three boys. He recently turned 30. When he was very young he developed a keen interest in and began to play, rugby league. With the exception of one year, when he played for Wauchope, the plaintiff from the age of six or seven played every year for Laurieton, in his age group. At the time of these events he was 16, and lived with his parents in North Haven, on the mid-north coast of New South Wales. He was in Year 10 at Kendall Central High School.

18 When the plaintiff turned 16 he began to play for Laurieton’s reserve grade team. That was an open age team. Laurieton did not have an under 18 team. Had he wanted to play in an under 18 team he would have needed to travel a considerable distance to train and play with a club that did. In the reserve grade, he was playing with and against some people who were considerably older and heavier than himself.

19 In 1994, so far as he recalls, he was 5’ 8” to 5’ 9” in height, and weighed 55 kgs to 57 kgs. He described his build as “slight”. He said there was no one else in the forwards as slightly built as he. His team practised on Tuesday and Thursday nights. On Tuesday nights the reserve grade team and the first grade team trained together, along with the first grade coach, Mr Warren Krough, and his own team’s coach, Mr Stephen Slater. Tuesday nights were for fitness. Thursday nights were for ball practice. Team selection occurred on Thursday nights. He usually played in the position of hooker.

20 The year 1994 was his first year in the open age competition. He noticed when he began playing open age that the players were bigger, and the game speed faster, and that there was more pushing in scrums.

21 The game of rugby league is played in accordance with a set of rules called “The International Laws of the Game and Notes on the Laws”.

22 At the time of these events the March 1994 version of the rules was the one in use in New South Wales.

23 Section 5(1) of the rules, with the heading “Mode of Play”, provides:

“The object of the game shall be to ground the ball in the opponents’ in-goal, to score tries … and to kick the ball over the opponents’ cross-bar to score goals …”

24 Before a game begins, the captains of the two teams toss for choice of ends. The team of the captain losing the toss kicks off to start the game. Play stops from time to time. Depending on what stops play, there are various means of restarting it. One such method is the scrum. Section 12 of the rules has this to say about the scrum:

“1. A scrum is formed to restart play whenever play is not being re-started with a kick-off, a drop-out (Section 8), a penalty kick (Section 13) or a play-the-ball (Section 11).

The forward in the centre of a front row (i.e. the hooker) shall bind with his arms over the shoulders of the two supporting forwards.

3. No more than six players on each team shall assist in the formation of a scrum and when the ball is in the scrum no more than seven players of each team shall act as backs.

It is permissible for forwards to push once the scrum has been correctly formed

(my emphases)

25 The Australian Rugby League (“ARL”) is Australia’s national rugby league body. It has constituent members. One of those is the body which administers rugby league in Sydney, viz NSWRL. Another is CRL, which administers rugby league in the country areas of New South Wales. CRL had a representative on NSWRL’s board of directors. But NSWRL had no representatives on CRL. Each was an autonomous body. CRL had the largest number of registered players of any league in the world. On any winter weekend there were more than 1,500 games played throughout country New South Wales. Until 1994 CRL had a full time staff of two, working from offices in Phillip Street, Sydney. The ARL and the NSWRL also worked from those offices. From 1994 onwards CRL had a full time staff of four. CRL did not of itself conduct football games. The country games were organised by incorporated associations called “Groups”. The players, who in 1994 numbered about 50,000 in country New South Wales, played for individual teams. Each team was also an incorporated association. Laurieton became an incorporated association on 12 June 1991. Group Three Rugby Football League Inc was incorporated on 15 February 1988.

26 CRL did not select team members. That was done by the coaches. Nor did CRL select coaches. That was done by the clubs. As I have noted, the plaintiff originally sued Laurieton for negligence, but has not pursued that claim, since it has been wound up. The plaintiff has never sued the relevant group – Group Three, which organised the games he played in and to some extent controlled football within its area. Nor did the plaintiff’s counsel argue that CRL was vicariously liable for any acts or omissions of Laurieton or Group Three.

The scrum, and Laurieton’s front row

27 On 7 May 1994 the plaintiff’s team was playing a reserve grade match of a sixth round fixture of what was known as the Group Three Saturday Rugby League Competition. The game was played at a ground known as the Old Bar Park, Old Bar Road, Old Bar. Old Bar is a small seaside village close to Taree, on the mid-north coast of New South Wales. The opposing team was called The Old Bar Pirates (“the Pirates”). As he usually did, the plaintiff played in the position of hooker. He had been selected for that position by the team’s coach.

28 The plaintiff has little memory of the game. He recalls he was injured in the first half, that the ground was wet, and that there were scrums before the final one. To his recollection, the Pirates’ front row “were a fair bit heavier than us” and a “fair bit bigger”, particularly his opposing hooker, whose weight he estimates at 70 kgs.

29 A team mate, Jim Hoye, was aged about 25 at the time. He said the Pirates “outweighed us on the day”, their front row being almost twice his 55 kg weight. However he conceded the Laurieton props were its two biggest players and that each weighed about 80-100 kgs. He recalled that there were several scrums. Then, about 15 minutes into the game, one was set just before the halfway line on the Pirates’ side. As half back, his job included feeding the ball into the scrum. He fed the ball. The referee told him he had not fed it into the middle of the scrum. He fed it again. There was a “knock on” and his team was penalised. The ball was given to the Pirates’ half to feed. During each of the first two scrums there was a lot of hard pushing by both sets of forwards. In the third scrum the forwards pushed again, the ball was put in, and passed out to the Pirates five-eighth. At that stage, since Mr Hoye took off in pursuit of the Pirates’ five-eighth, he lost sight of the scrum. He heard the whistle blow. Play was stopped. He saw the plaintiff lying on the ground.

30 Mr Darren Griffin usually played for the reserves but this day played first grade. However, he was present when the plaintiff’s team played the Pirates. He assessed the Pirates’ pack compared with Laurieton’s, as older and larger. He observed that during scrums the Pirates would push Laurieton backward. Sometimes the scrum would get screwed around. In the last scrum before play was stopped, the ball was fed, the Pirates pushed Laurieton, and then about five Laurieton players ended up on the ground, with the Pirates’ front row on top of them, while others hung on. He could not see the plaintiff. Most of the players then got up and he saw the plaintiff lying on the ground.

31 He told me the Laurieton team jersey had on it a Laurieton symbol, namely an eagle, and a CRL badge.

32 The other player who gave evidence was Mr Gregory Carr. He was aged 21 at the time of the game and weighed about 90 kgs. He played prop for Laurieton. Asked to describe the size of the opposing team, he said their forwards were quite big and the prop opposing him was “quite a bit bigger than us”. He described what happened in the scrum as follows:

“Q. Perhaps you should just tell us what you can recall about what happened immediately prior to you becoming aware that Shane had been injured?
A. Okay. The scrum, usually you pack, normally you get down ready to engage the other front row, and it went down, the other bloke on the other side sort of come in force in between us and I got, (indicated) I couldn't hang on, and basically the scrum went down on the ground and I was standing up and there was a pile of bodies and that's about all I remember, mate.

33 Mr Carr had not previously experienced this manoeuvre where the opposition prop forced his way between him and his hooker.

34 With one exception, not material to this incident, CRL’s counsel did not address me on credit. It was put by the CRL’s counsel to all the players that the Pirates’ hooker was no larger than the plaintiff. That proposition was not accepted. CRL called no eyewitnesses. Insofar as there are differences between the eyewitnesses, I prefer and accept the evidence of Mr Carr to that of Mr Hoye. I consider, because of the position he played in, that Mr Carr was in a better position to assess the Pirates’ front row, especially his opposite number. I also accept the plaintiff’s description of the Pirates front row.

35 Mr Williams SC, who, with Mr A Radojev and Mr R Sheldon, appeared for CRL, ultimately submitted there had not been, as was put in opening and as pleaded, a scrum collapse. However, I reject that submission. A scrum collapse seems to me a reasonable description of the event the eyewitnesses described.

36 I find that at about 1:45 pm on 7 May 1994 the plaintiff was playing in the position of hooker in a game of rugby league football at Old Bar. The ages and weights of the Pirates’ front row were significantly greater than of the Laurieton front row. At about a quarter of an hour into the game, the referee directed that a scrum be set. The scrum was formed. The front rows engaged. Pushing occurred. As the opposing team pushed the plaintiff’s team the plaintiff was separated from one of his props by an opposing prop. That, and the pushing, caused the scrum to collapse, the plaintiff and some fellow team members falling to the ground, with three members of the opposing team on top of them, the plaintiff being on the bottom. As a result of those events the plaintiff suffered catastrophic spinal injuries which have left him a permanent tetraplegic. At the time the scrum collapsed, the plaintiff weighed approximately 57 kgs, was of slight build, and was aged 16.

37 I infer that by reason of its greater size, the Pirates were able to, and did, push the Laurieton players backwards, contributing to the scrum’s collapse.

The plaintiff’s neck shape and its relevance

38 It was a significant part of the factual background underpinning the plaintiff’s case that at the time he was injured he was of slight build and had a long, thin, neck – sometimes called a “swan neck”. His case was he should never have been selected to play hooker with his bodily characteristics, especially without having had neck strengthening exercises. There were photographs of the plaintiff in evidence taken a few months before the accident. Taken alone, they suggest to me he was of slight build, but they do not enable me to judge the shape of his neck. His mother, Mrs Buttsworth, said that at the time “he was tall, thin and he had a long thin neck.”

39 Dr Yeo is a highly qualified specialist in the area of spinal cord injuries. His views were a significant aspect of the plaintiff’s case. He expressed views about the plaintiff’s neck shape and its significance in a rugby league context. In a report of 15 December 1995 he said:

“I am not able to place any significance medically on Shane’s age at the time of his football related accident on the 7.5.94. Players with long, thin necks are in my opinion, more susceptible to neck injury when playing in the front row of the scrum. This opinion is based on my experience with motor cycle riders who are wearing either full face or open face helmets. In a study of over one hundred riders I was able to identify the increased risk of riders on motor cycles wearing open face helmets without the chin piece. These riders were more prone to neck injury than those riders wearing full face helmets with chin piece where the impact through the helmet was transmitted more readily to the collar bones and upper trunk away from the neck. I therefore indicated to both the authorities in Rugby League and Rugby Union that strengthening the neck muscles to simulate the effects of the motor cycle riders full face helmet would in my opinion, provide more protection to the neck and spinal cord of the player who was involved in scrummaging as well as in the tackle situation.

Shane has indicated to me in our recent consultation that the scrummaging was not unusual and I am unable therefore to indicate medically that the water logged ground was a contributing factor to his neck injury. Obviously his foot hold would be less secure in a water logged situation and this in theory could lead to overbalancing more readily than if the ground was firm.”

40 Dr Yeo gave a further opinion, this time in a report of 27 October 2004. He said inter alia:

I have formed the opinion that Mr Green has always had a relatively long, thin neck but would have been reasonably chosen for the position of hooker had he had appropriate preparation and the building up of the paraspinal cervical neck muscles.

It was in fact appropriate, in my opinion, for the patient to play if he had had appropriate training and playing in a position for which he felt comfortable and well prepared.

…

In 1994 I and others involved in contact sport had emphasised to the community including the Rugby League authorities, the importance of adequate preparation for contact sport and appropriate choice of players for certain positions on the field. It was my impression that the New South Wales Country Rugby League, headed by Mr Peter Corcoran, Senior Administrator in Coaching were seeking to improve player safety at that time and have continued to emphasise important aspects of player preparation, application of the rules and appropriate treatment for injury both in the city and country areas.” (My emphases)

41 He gave a further opinion on 9 February 2005, when he said inter alia:

“In my previous correspondence dated 27.10.04 I indicated that in and around 1994 I was involved with Mr Peter Corcoran, the Senior Administrator in Coaching for the Rugby League in advising coaches with regard to choice of players for particular positions and the training of those players for that position.

I was involved in advising coaches in the preparation of players for Rugby Union, I assisted in the development of appropriate videos for distribution to clubs both in country and city areas. I personally lectured to a number of players and initiated the Spinesafe program which was introduced to schools to emphasise the importance of adequate training and player preparation in school boy football (both Rugby League and Rugby Union). The risks of serious spinal injuries in contact sport were raised and discussed at various seminars and I contributed to a number of newspaper and magazine articles between 1984 and 1994.

Documentation of these recommendations was included in various publications including the National Coaching Scheme for coaching Rugby League …”

42 In a report of 18 September 2007, he said inter alia:

If players of Shane’s age were playing in an all age open Rugby League competition against older and more physically developed players, physiologically they would be disadvantaged or compromised to varying degrees, depending on their fitness, position in which they were playing and the grades in which they were playing.

In my opinion, Shane was at increased risk of injury to his neck when playing hooker in the front row at his age of sixteen due to his “long, thin neck profile

There is evidence, particularly in Rugby Union, where the scrum has been depowered, that there has been a reduced number of incidences of spinal cord injury as a result of this depowering and, I believe, better player preparation.

43 When he gave evidence, Dr Yeo was cross-examined about the difficulty of characterising a neck. He was shown a diagram from a book of which he was a joint author. The diagram is of three young men with different lengths and thicknesses of neck. One, with a squat neck, is identified as “most suitable” to play in the front row. The one furthest from him, with a long neck, is said to be “not suitable”. The one in the middle is said to be “suitable”. Dr Yeo agreed that people could reasonably disagree about how to characterise players between the two extremes. He conceded there was a risk of injury no matter how well prepared and coached a team was. In that context Dr Yeo referred to his opinion dated 27 October 2004, which is set out above. Having corrected a minor error, he said:

“[In reference to my statement] ‘that Mr Green has always had a relatively long, thin neck but would have been reasonably chosen for the position of hooker had he had appropriate preparation and building up of the spinal cervical neck muscles’.

In answering your question that would suggest that he had the appearance of the middle person of those three. Having in mind that he was going into a position of increased risk then it would have been appropriate for him before being allowed to play to have an appropriate preparation and hopefully build up those neck muscles which were at that time inadequate for the task that eventually he was faced with

44 CRL tendered no medical evidence.

45 In the end there was not a great deal of controversy about the plaintiff’s neck shape. I find that at the time he was injured the plaintiff had a long, thin, neck. As Dr Yeo observed when cross-examined, there are gradations of length and thickness of neck. By reason of Dr Yeo’s view he would have been reasonably chosen to play as hooker with appropriate preparation, I find that the plaintiff’s neck was not as long and thin as some, but more so than others. I shall turn later to consider the implications, if any, of my findings, and of Dr Yeo’s evidence.

The known and disclosed risk of injury

46 I heard evidence from three very experienced former rugby league players. Two of them, Mr Barnhill and Mr Corcoran, became rugby league administrators. The third Mr Hewson, became a coach and a teacher of coaches. It is apparent from their evidence, and from that of Dr Yeo, that in 1994, it was well known in rugby league circles that front row players, especially hookers, could suffer spinal injuries in the course of playing, and that players with long, thin necks, and of slight build, were more vulnerable to spinal injuries. Both the plaintiff and his mother told me that before he began to play in the 1994 season they were not told by anyone that the plaintiff might suffer severe spinal injuries or (as I find was then well recognised in rugby league circles) that there was a well recognised risk of it for hookers, especially those with a slight build and a long neck. I accept their evidence.

The case pleaded

47 The Third Amended Statement of Claim contains a lengthy list of allegations of negligence. In their written submissions, counsel for the plaintiff said:

“The particular acts and omissions relied upon by the plaintiff are spelt out in detail in the Statement of Claim, however the plaintiff places particular emphasis on the following matters.”

48 Thereafter, they set out 10 measures which they contended should have been taken, and which had they been taken, would have prevented injury to the plaintiff. They submitted CRL should have:

“(a) Put into place a medical examination prior to the game’s commencing to establish the physique of the player as was set out in the Coach’s Recorder referred to above, and as was set out and had taken place in the Group 19 Division in September 1993.

(b) Ensured that all coaches were provided with Coaches Manual whether accredited or not, thus ensuring that all coaches were aware of the risk of injury to persons such as the Plaintiff playing as Hooker or in the Front Row, as was set out in the Level 1 Coaching Accreditation Manual.

(c) Published and disseminated information to groups, clubs and registered players providing for warnings of the risk of injury, being severe spinal injury to players of certain physiques playing in the front row.

(d) Arranged for warnings to be placed on the Registration Forms with an acknowledgement that players and/or their parents or guardians had seen such warnings.

(e) Amended the Skills Manual to include specific warnings in relation to the risk of injury to players of certain physique playing in the Front Row particularly as Hooker.

(f) Arranged for the scrums to be de-powered and could have given appropriate recommendations to referees to ensure that that took place, as had already occurred in junior competition and as later occurred in the open age competition.

(g) Directed that physical mismatching of players did not take place when persons underage and of certain physical attributes were playing, or excluded such persons from playing in certain positions in the game.

(h) Included on the back of the registration form additional information to be supplied by the players including:

· Age;

· Weight;

· Height; and

· Position or positions in which you are likely to play.

Such information could then have been easily checked to avoid exposing lightly built players to the risk of injury arising from playing in the front row.

(i) Regulated or controlled CRL games by stipulating that players of inappropriate physique were not to play in the front row.

(j) Introduced a Medical Record Card for recording physical characteristics of players as had occurred in 1993 in at least one area of the CRL competition.”

49 In the course of his address Mr Deakin abandoned some of the particularised allegations in the Third Amended Statement of Claim: viz 14(e), (f), (i), (j), (k), (m), (o), (p), (t), (u), (v) and 18(c). As he conceded, the 10 particulars in [48] above do not respond exactly to the remaining particulars. However, I shall attempt to reconcile them when I deal with them one by one, without, I hope, doing any of them a disservice.

50 In the course of his oral argument Mr Deakin expanded on his written submissions to show how, by various measures, CRL could and should have taken steps to see players of the plaintiff’s youth and bodily characteristics were not selected to play in the front row. Had they been taken, he submitted, the plaintiff would not have been playing there that day, and he would not have been injured.

51 So that the plaintiff’s submissions can best be understood, particularly as CRL argues the impracticability of many of the suggested measures, including its inability to institute, impose or enforce them, it is necessary that I say something about the corporate structure of CRL, its relationship with Laurieton, the plaintiff’s club, and Group Three, the corporate entity in whose geographical area Laurieton teams played rugby league.

CRL’s corporate structure

52 CRL became an incorporated association on 4 May 1989. Its constitution has a number of definitions and objects. Its definitions include these:

“‘League’ shall mean the Country Rugby League of New South Wales Inc …

‘Constituent Body’ shall mean any football organisation mentioned in Clause 4 of this constitution …”

53 Relevant objects in Clause 3 are:

(e) to regulate and control the operation of all Constituent Bodies and affiliates

…

(h) To determine the terms and conditions upon which persons may play for Constituent Bodies

…

(o) To impose fines or penalties … for any breach of the Constitution or the Rules and Regulations of the League or the laws relating to rugby league football

(p) to regulate and control the activities of players, coaches and referees of the League in any activity associated with rugby league football

…

(w) Generally to do all things necessary for or incidental to the pursuit of the objects of the League.”

54 Clauses 4 and 5 provide:

“4. The League shall be composed of the following Constituent Bodies …

(b) The football organisations known as Group 1, Group 2, Group 3 …

(c) Clubs within Divisions or Groups.

5. Each Constituent Body shall be bound by and operate under this constitution and all by-laws and regulations made thereunder and shall also be bound by and operate under its own constitution and the by-laws and regulations made thereunder except to the extent that such last mentioned constitution is repugnant to this constitution PROVIDED: - Amended 27.11.93

(a) That the General Committee of any Constituent Body may from time to time amend, vary or repeal any part of or all its constitution and from time to time make by-laws and regulations or adopt a complete set of by-laws and regulations not repugnant to this constitution: and

(b) That no such amendment, variation, repeal or adoption shall have any effect until it has been approved by two thirds of those present and voting at a properly convened meeting to its General Committee and is approved by the League in writing.

(1) The Boundaries of each Constituent Body and the area under its control shall be those as prescribed by the League

(2) For the purpose of evidence the boundaries of each Constituent Body and the area under its control shall be the boundaries referred to.”

55 Clause 46(1) provides inter alia:

“No player who has attained the age of sixteen years shall play in any grade competitions conducted by a Constituent Body without prior registration with the League in that year …”

56 Clause 46(3) provides that applications for registration are to be on the prescribed form signed personally by the applicant:

“… and in the case of a professional player under the age of 18 years by his parent or guardian forwarded to the Group or Division Secretary and thence to the League accompanied by the prescribed fee and such necessary Clearance Certificate”.

57 Clause 48(2) provides:

“No Constituent League or Club shall permit any team to participate in any match competition or fixture with or against any organisation not subject to the control of the Constituent Body of the League.”

58 The Constitution contains a form of constitution to be adopted by Groups.

59 It includes these objects:

“(a) to encourage, foster, promote, extend, develop, govern and control rugby league Football within the area under control of the Group as determined by and under the Constitution of the League.

…

(g) To affiliate and co-operate with the League and with any other organisation whose objects are altogether or in part similar to those of the Group.”

60 Clause 20 gives the corporation (whether a “Group” or a club), acting through one of its committees, this power:

PROVIDED THAT no such by-law shall be effective until seven days after a copy thereof has been forwarded by post to the General Manager/Treasurer of the League and approved.”

61 The last part of CRL’s constitution consists of a set of rules called “Rules and Regulations of Country Rugby League of New South Wales Inc General Competitions and Challenge Trophy Rules.”

62 Rule 7 says:

“No person shall participate in an age limit competition unless he has submitted satisfactory proof of age to the Secretary of the Club and League controlling such fixture.”

63 For the purpose of rugby league games the State of New South Wales, together with the ACT, is by CRL’s constitution, divided into group areas. All rugby league clubs played in a competition run by one or other of the groups. Laurieton was in May 1994 a member of Group Three. Group Three covered an area in the Port Macquarie area. Each group and each club as well as being an incorporated association, was a “constituent member” of CRL.

What did CRL know about the plaintiff?

64 It is part of the plaintiff’s case as pleaded [para 10 Third Amended Statement of Claim] that when he was injured CRL knew:

(a) he was 16;

(b) he weighed approximately 57 kgs and/or was of slight build;

(c) he had a long, thin, neck; and

(d) he was participating in an open/unrestricted age game.

65 As to the alternative allegation that CRL owed a general duty of care, [para 11 Third Amended Statement of Claim] the plaintiff pleaded:

“CRL owed a general duty of care to players, including the plaintiff, and/or the parents of a player that was playing in an open/unrestricted age game competition who, while playing in a front row position:

(a) were under the age of 18 and/or

(b) had a physique and/or weight inappropriate for the position; and/or

(c) had a long thin neck.”

66 In argument the plaintiff’s counsel did not contend CRL had actual knowledge of anything other than the plaintiff’s age and that he was playing in an open age competition. There is evidence it knew his age. Players in the plaintiff’s club were required to sign a registration form each year. There was a standard registration form used by players throughout country New South Wales. When the hearing of this matter began, senior counsel for CRL submitted that there would be a significant factual issue about whether any registration form signed by the plaintiff had ever found its way to CRL’s office. It followed from that, I understood him to say, that CRL simply did not know of the plaintiff’s existence, and that it was impossible to say it owed him any duty.

67 The plaintiff, in the absence of the original, tendered over CRL’s objection, copies of several versions of a document called “Country Rugby League of N.S.W. Inc Official Registration Form”, apparently signed by Mr Whatson, Laurieton’s then secretary, and by the plaintiff.

68 One version has the date “28/3/94” next to Mr Whatson’s signature. The other has that and another (illegible) signature, with the date “12/4/94”, and the words “Group Secretary”. The form has space for up to ten players to sign. There are columns for, inter alia, registration number, surname, Christian name, date of birth, address, signature and occupation. At the top are the words:

“I the undersigned, make application to be registered as a player with the ______Rugby League Football Club and agree to abide by the NSWRL Constitution, the 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 /or additional rules, if any, which from time to time be made by the said club or bodies …

It is agreed between myself and the club that this document constitutes a contract between us …”

69 As part of the plaintiff’s preparation for trial there were some interrogatories delivered to, and answered by, CRL. They and the answers were in evidence. In one, CRL was asked:

“As at 7 May 1994, was Shane Anthony Green a registered player in the North Coast Division or Group 3 Division as referred to in the Country Rugby League of New South Wales Constitution?”

“Yes”

70 The plaintiff called Mr David Barnhill. As I have noted, he is a former rugby league player and administrator. For most of his life he had a close association with the game of rugby league in country New South Wales. For many years, including 1994, he was employed by CRL, and worked from CRL’s office in Sydney. From 1990 until 2002 he was CRL’s general manager. Mr Barnhill told me he recalled learning of the plaintiff’s accident. CRL had a policy of insurance to cover injuries to players. It had been necessary, he said, at that time, for a player to be registered as a player with the CRL before a claim could be made under CRL’s group insurance policy. His duties at the time included notifying the insurer of a claim. He recalled on the Monday after the accident, seeing a document concerning the plaintiff. In describing it, he gave me a fair description[1] of one of CRL’s player registration forms. He said that unless the document had the two signatures the player would not have been “one of mine"[2]. I took him to conclude the plaintiff was one of his. (No original registration form was produced during the trial. I am satisfied there once was one, but that since 1994 it has been lost).

71 When he was addressing me at the conclusion of the trial, I asked Mr Williams if CRL maintained that no registration form signed by the plaintiff had ever reached his client. I took him to say that he made no concession about the issue, but would no longer argue to the contrary.

72 I find that when he was injured, the plaintiff was registered as a player with CRL. I do so by reason of the following:

(a) Mr Barnhill, who was CRL’s employee, recalled the plaintiff’s accident;

(b) Mr Barnhill recalled seeing the plaintiff’s name on a document shortly after 7 May 1994. I am satisfied from his description of it that the document was a player registration form kept at that time by CRL;

(c) One version of the document tendered has two signatures, leading Mr Barnhill to conclude the plaintiff, whose name is on it, was “one of mine” ;

(d) It was Mr Barnhill’s duty to contact CRL’s insurer when a claim was to be made;

(e) A player had to be registered with CRL before its insurer would meet a claim;

(f) In fact a claim was made to CRL’s insurer; and

73 I am satisfied a registration form signed by the plaintiff and given by him to his club was sent by his club to CRL at a time between 28 March 1994 and 7 May 1994.

74 CRL objected at trial to the two photocopies of the plaintiff’s registration form going into evidence. But in view of Mr Barnhill’s evidence and CRL’s answer to the interrogatory, I allowed the documents into evidence against CRL.

75 As appears from the copies of the registration form signed by the plaintiff, his date of birth is set out. I conclude, given CRL received the original before 7 May 1994, that as at 7 May 1994 CRL had been informed one of its registered players, namely the plaintiff, was 16.

76 The plaintiff’s counsel submitted CRL also knew his bodily characteristics. They based that contention on the laws of agency, and the presumption that the knowledge of an agent is imputed to his or her principal. However, there are limits to the doctrine: Wyllie v Pollen (1863) 3 De GJ & S 596 at 601; 46 ER 769 at 770. The degree to which knowledge is imputed varies according to the scope of the agency: In the Matter of the Phillip-Stephan Photo Litho and Typographic Process Pty Ltd (1890) 12 LR NSW (Eq) 4 at 9 per Owen CJ in Eq. I am of the view that although Laurieton had an agency to receive and pass the registration form to CRL, the agency’s scope did not extend beyond that to imputed knowledge of any of the plaintiff’s bodily characteristics Laurieton’s coach or players or officials may have observed. Mr Deakin concedes that if I reject his agency argument (as I do) it must follow CRL had no knowledge of the plaintiff’s bodily characteristics.

77 As I have noted, Mr Deakin also submitted CRL knew the plaintiff was playing in an open age competition. Mr Deakin put to me this information came from what was contained in the Laurieton games programme, and the fact that the whole of “Group Three” was an open age competition. However the programme, on its face, is merely a Laurieton club publication. The evidence does not show CRL received it before 7 May 1994. It is true the club name (Laurieton) appears on the top of the registration form. But there is no reference on the form to Group Three.

78 There was evidence about what happened to player registration forms in CRL’s office. That suggests CRL had the capacity to work out which under 18 players were playing in the open age teams. Mr Barnhill said this:[3]

“When a form is received, they'd quite often be put in a folder for their group and then when it come to reconciliation of payment from that group, we would go through them and quite often we would find younger players registered in the open age division. Their fee was a different fee. We would be trying to help clubs and groups by making sure they paid the right fee.

79 There is no evidence anyone from CRL ever looked at the plaintiff’s registration form before he was injured, put it in a Group Three folder, or identified him as an under age player. Mr Barnhill said they were just kept in a file and generally only looked at if a claim was made or when registration payments were being reconciled. Mr Barnhill, however, said it was common for under age players to play senior football. I find that on 7 May 1994 CRL knew that some players who were under 18 were playing in open age competitions, and that information in its possession would have enabled it to discover, had one of its employees looked at the information, that the plaintiff was such a player.

The duty of care issue

80 Mr Deakin submitted in opening the case that at the time the plaintiff was injured, CRL owed him a non-delegable duty of care, alternatively, a general duty of care. He relied on, and referred me to, a number of cases, including Watson v Haines (1987) Aust Torts Reports 80-094, where claims had been made arising from sporting injuries.

81 I am not persuaded that the relationship of CRL to the plaintiff was one of the limited number of categories of relationships in which a non-delegable duty arises. That duty is a form of strict liability: Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 638.

82 It arises:

“because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.”

Kondis v State Transport Authority

83 The plaintiff’s relationship with CRL could not, I consider, satisfy those criteria.

84 In the end I took Mr Deakin to concede no non-delegable duty arose here.

85 I am persuaded that if a duty arose, it was a general duty of care. Although Watson had facts similar to those here, that case, as Mr Deakin conceded, concerned the obligation of a school authority to a student, a relationship traditionally held to fall into the small number of relationships giving rise to a non-delegable duty.

86 In RTA v Dederer [2007] HCA 42; (2007) 238 ALR 761 at [18]; 767, Gummow J said:

Wyong Shire Council v Shirt

87 At [69] his Honour said:

Shirt

88 In general, a duty of care is owed only if a defendant ought reasonably to foresee that his or her conduct may be likely to cause loss or damage to the plaintff or a class of persons to which the conduct belongs: Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021. But as Kirby J said in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at [122]:

“It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty.”

89 In Nowak v Waverley Municipal Council (1984) Aust Torts Reports 80-200 an injured rugby league footballer sued his club and the Eastern Suburbs District Junior Rugby Football League (which apparently organised the games) when he was injured in a game, having tripped on a protruding water sprinkler. At 67, 808-67,809 Mahoney JA said:

“The duty of care which the League and the Club owed to the plaintiff did not derive, or derive simply, from the fact that they had the permission of the Council to use the field and to have those that they nominated play football on it. Their duty derived from the fact that, in the particular context, they had taken it upon themselves (to put the matter generally) to organise and present the football games to be conducted on the field. Whether they were, by the rules of the League organisation obliged so to do, it is in my opinion, the proper inference to be drawn that they had taken it upon themselves to do so and that the plaintiff and his team mates had seen them so to do. Where, in such a context as the present, a person takes it upon himself to do such things, he may be liable in negligence in respect of the dangers which arise from what he does.”

90 In Anderson v Mount Isa Basketball Association Incorporated (1997) Aust Torts Reports 81-451 a referee sued the organiser of a basketball competition. At 64,588 Davies JA and Demack J said:

“Plainly the relationship between the appellant and the respondent was such as to give rise to a duty of care in the respondent to take reasonable care to avoid a foreseeable risk of injury to the appellant. The respondent was in charge of the administration of basketball in Mt Isa. Clubs and individual players paid it a registration fee. The respondent's responsibilities included the organizing of a number of competitions in various grades and the provision of referees for games. It paid referees including the appellant a small remuneration for their services. At the relevant time the appellant was a new and inexperienced referee.”

91 In Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39, an injured rugby league footballer in his action against his club alleged it was negligent by failing to prescribe rules to prevent matches being played when a team was unable to field a full side. The case was before the Court of Appeal on an interlocutory issue. “Duty of care” does not seem to have been argued. However, at [49]-[50] Mason P said:

“A key matter that will have to be addressed at the trial is the reasonableness of the conduct of defendants as bodies administering the conditions in which amateur rugby league football is conducted. Negligence will have to be determined as at 1998, based on the evidence, having regard to what was known and what ought to have been known at that time and the standards and practices at that time of administrators similarly placed.

Furthermore, there is a significant distinction between participation in a sport or observation of it, on the one hand, and its administration, on the other. Determining compliance with the standard of reasonable care of a sports administrator will need to be informed by the evidence, not the perceptions of persons standing on the sporting sidelines as it were.”

92 Here there is evidence, which I accept, and from which I find:

(a) CRL was ultimately responsible, within rugby league circles, for administering the sport in country New South Wales, although it did not organise games, or rosters, choose coaches or select teams;

(c) CRL arranged insurance for all country players and insisted players be registered with their clubs, and, to ensure cover, that the registration forms be sent to it;

(d) the plaintiff was a country rugby league player who played in a competition organised by CRL’ s constituent;

(e) CRL took it upon itself through NSWRL to arrange for country coaches to undergo accreditation courses organised by NSWRL, and took steps to ensure they had the coaching. The coaching courses gave attention inter alia to the special vulnerability in the front row of players with small stature and with long, thin, necks; and the need for and importance of neck strengthening exercises;

(f) CRL knew that a number of players aged under 18 played in and against open age teams;

(g) CRL knew that front row players of slight physique, and whose necks were long and thin, were more vulnerable to serious spinal injury than players who did not have those characteristics;

(h) CRL knew some of the coaches who coached open age clubs had not undertaken coaching courses.

93 I am satisfied from those matters there was, here, a duty to take reasonable care owed by CRL to the plaintiff. It is true CRL knew little about him, and there were two other corporate entities involved in the conduct of the game on 7 May 1994 with whom the plaintiff had a much closer relationship, namely Group Three and Laurieton. But a defendant does not necessarily need to know of someone’s existence to owe that person a duty of care. Indeed, the person to whom the duty is owed may not even exist at the time a wrong is done, yet later be found to be owed a duty: Hawkins v Clayton (1988) 164 CLR 539 at 577-578 (per Deane J); X v Pal (1991) 23 NSWLR 26 at 41 (Clarke JA).

94 Although I am satisfied CRL owed the plaintiff a duty to take reasonable care, it is necessary to examine the ways the plaintiff says it was in breach of that duty in the context in which his injuries were received. What is required to discharge the duty in any case where negligence is alleged depends on all the circumstances of that case: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [20] (per McHugh, J). In Brighton le Sands Amateur Fishermen’s Association Ltd v Vasilios Kormovokis [2007] NSWCA 331, Tobias JA (with whose reasons Giles JA and Handley AJA agreed) said at [23]:

“The enquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a forseeable risk of injury, could have made to that risk. One of the possible answers to that enquiry must be ‘nothing’.”

Here I take the risk to be that the plaintiff would suffer severe spinal injury.

The individual particulars of negligence

95 Against that background of principle, I shall turn to deal with the individual particulars of negligence, and whether I consider any are made out. It is important when considering these allegations to distinguish between what Group Three or the plaintiff’s coach, or team could or should have done, in the execution of their respective duties of care to the plaintiff, from what CRL could or should have done. Apart from specifying the particulars still relied on, the plaintiff’s counsel mainly only put specific arguments to me about the ten particulars in [48] above. However, although they were not referred to specifically I shall deal with all other particulars not withdrawn.

96 The first, second and third allegations of negligence in the Statement of Claim are:

Particulars of Negligence of the Second Defendant

Adopting and retaining or failing to vary laws relating to scrummaging which created an unreasonable risk of spinal injury; in particular s.12 of the Law of the Game.

Failing to amend or vary the Law of the Game to reduce the risk of spinal injury, as could reasonably have been done:-

BY PROVIDING

that opposing front rows were properly positioned against each other prior to engagement of the scrum;

that the opposing front rows were in a crouched position with head and shoulders no lower than their hips;

that the crouch referred to was the extension of normal stance by bending the knees sufficiently to step into the engagement without a charge;

that the crouched position be adopted by the front row not more than one arm’s length from the opponent’s shoulders;

that the scrum should be formed by the stationary engagement of opposing first rows, followed by the second row;

that opposing forward packs should not engage without a process designed to prepare them 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.

that there be no force exerted during the course of the scrum.

Failing to provide, or sufficiently provide, for local variations in the laws of the game for safety reasons, particularly amongst younger players.

97 As I construe them, particulars a, b and c, deal essentially with rule making, and amount to an allegation that CRL should have used its rule making power to change the way scrums were conducted, with less physical contact. There is obvious correspondence between these three allegations, and allegation (f) in [48] above, where it is said depowering should have been “arranged” with appropriate recommendations being given to referees, as had already occurred in junior competition and as occurred later in all open age competitions.

98 In his opening, Mr Deakin submitted that it was CRL which “called, conducted and organised” the competition in which the plaintiff’s team was playing when he was injured. CRL’s primary position however was that at the time of these events it had a somewhat passive role, and was a mere information conduit; that there was nothing meaningful it could have done to change the laws of rugby league in the way the plaintiff alleges it should have.

99 However, as CRL’s constitution shows, CRL had the power to play a significant role in promoting and controlling rugby league in New South Wales country areas. Further, its objects included the power to determine the “terms and conditions upon which persons may play for Constituent Bodies.” It also had the object of regulating and controlling the activities of players, coaches, and referees. Its constituent bodies (of whom the plaintiff’s club, Laurieton, was one) were bound by its constitution. Its constitution insisted players of 16 or more register, using a prescribed form, and, if the player was under 18, that the parent or guardian also sign.

100 By its pleading ([2] Amended Defence to Third Amended Statement of Claim) CRL admitted that at all material times it was responsible for the administration of the sport of rugby league in country New South Wales including the country rugby league of NSW Inc Group Three Competition. Of course, as CRL submitted, there can be difficulties in defining what is meant by “administration”.

101 According to Mr Barnhill, CRL in 1994 had a management committee of 12 or 13, with representatives from various divisions. The committee met approximately two monthly and made recommendations to a general committee of CRL. Its recommendations were invariably accepted.

102 Mr Barnhill said that each group controlled the football in its own area, and CRL controlled the groups. Mr Barnhill was often consulted about CRL’s constitution, to assist clubs and groups with his interpretation of it. Further, although a group was permitted to change its constitution, CRL could disallow the changes and had in fact disallowed quite a few.

103 In cross-examination Mr Barnhill gave this evidence:

“Q. Do you agree with this statement, before May 1994 the Country Rugby League had no direct involvement with the day-to-day management and administration of club competitions?
A. No.

104 At times, according to Mr Barnhill, CRL imposed local rules on certain clubs. He gave as an example, a club for which CRL imposed a set of rules providing for the club’s responsibility for its players. That followed incidents of violence on and off the field, associated with excessive alcohol consumption.

105 Mr Barnhill was asked about the purpose of the registration form. He said it:

“… was something we needed, the little strip on the top, the whole works, was to keep it as legal as we could over a number of 40,000, 50,000 players. They signed that and then, at the time we were told that was a protection for the league.”

106 He said CRL had a system of keeping track of the number of players playing in each of the under age and over age competitions. This enabled CRL, he said, to show it was a very powerful organisation, and say that it had the largest number of registered players in the world.

107 He was asked about the implications for CRL if its decisions or policies were not in accord with those of the ARL. He agreed that funding CRL received from ARL, and services provided by NSWRL’s development officers to CRL, might be affected.

108 I am persuaded that, far from being a mere conduit, as counsel for CRL contended was CRL’s position, CRL played an active role in the rugby league organisation in country New South Wales. When CRL, late in the course of the proceedings, sought to amend its defence, by raising this “conduit” defence: (see [2] a., b., c. Amended Defence to Third Amended Statement of Claim), the plaintiff objected. I gave leave. I did so as I considered the plaintiff must have known always it had to prove CRL had the ability to do what the plaintiff alleged it should have done to avoid harm to the plaintiff. That necessarily raised the causation issue and required the plaintiff to consider CRL’s functions compared with those of the groups and the teams, and what capacity it had to change rugby league rules, or their interpretation, and see the changes were carried out.

109 I conclude also that had it chosen to, CRL could have varied the laws of the game in the ways set out in [14] a., b. and c. It was within its legal power to direct through its constituent bodies, the groups, and the teams, including, in particular, Group Three and Laurieton, that they adopt local variations in the laws of the game for safety reasons, particularly to protect younger players.

110 It is, however, another matter whether CRL should have used those powers. And putting aside rule changes, it is another matter, too, whether CRL should have “arranged” for depowering of scrums to occur.

Should the laws have been changed?

111 Agar v Hyde (2000) 201 CLR 552 involved a claim by two injured adult rugby union players who suffered spinal injuries in scrums in games in New South Wales. They sued some individual members of a board made up of representatives of various national member rugby football unions. They claimed the unions had the power to make and change the rules of the game. They alleged they were each owed a duty by each board member to take reasonable care in monitoring the operation of the rules to ensure they did not provide for circumstances where risks of serious injury were taken unnecessarily. It was found they owed no duty of care. It was argued the rules should not have been such as to expose the plaintiffs to “unnecessary risk of serious injury”. What Gleeson CJ said (at [17]) is, I consider, relevant to the plaintiff’s allegation of negligence (a), referring as it does to “unreasonable risk”. Gleeson CJ said:

“The content of the suggested duty is elusive. Reasonableness is the ultimate test, but reasonableness can only be determined in a context. The obligation, it is argued, is to see that the rules of the game do not expose players to unnecessary risk of serious injury. The risk of young men having their necks broken is a matter to be taken seriously; but some would say the same about other, and lesser, risks associated with rugby football. The game is based on activities such as tackling, scrummaging, rucking and mauling which, by the standards of most members of the community, are obviously dangerous, and which regularly result in injuries which many people, even if not all footballers, would regard as serious. By reference to what standards are such risks to be classified as necessary or unnecessary? What is an unnecessary risk in an inherently dangerous sport? When an obviously risky activity is engaged in, voluntarily, for pleasure, by an adult, how does a court determine whether a certain level of risk is unnecessary?”

112 The difficulty of applying rules was referred to by Gaudron, McHugh, Gummow and Hayne JJ, as follows:

”

“

”

…

“89 … [W]hy 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.

90 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.”

113 At [127] Callinan J said:

“127 Rugby union is notoriously a dangerous game. It is a game, often of quite violent bodily contact. Everyone who plays it is vulnerable. Some positions, such as the front row, are almost equally notoriously more dangerous than others, for example, the three-quarters, especially the wings. …

127 … Sport, particularly amateur sport, stands in an entirely different position from the workplace, the roads, the marketplace, and other areas into which people must venture. When adults voluntarily participate in sport they may be assumed to know the rules and to have an appreciation of the risks of the game. In practically every sport safer rules could be adopted. Should the international body controlling cricket have been held liable for not prescribing the wearing of helmets by batsmen before the West Indian cricket selectors unleashed upon the cricketing world their aggressive fast attack of the 1970s? Should cricket be played with a soft, rather than a hard ball? Should hockey sticks be made of semi-rigid materials only? Rugby union, particularly that with which the appellants might primarily be thought to be concerned, the international game between national sides, is not just a game for players. It is also a game for spectators. The very existence and continuation of the international competition might well depend upon their interest and attendance at matches. No doubt many spectators attend because of the vigorous nature of the contest. Furthermore, at both the representative and lower levels of the game there can be no doubt that fit, usually young men are attracted to, and play the game because it involves an opportunity to dominate physically other like young men in circumstances in which injuries of various kinds will be inevitable. Fitness, technique, familiarity with the laws, flexibility, strength, physical shape, weight, and skill, and disparities in these between opposing sides, will all as well have a part to play in the avoiding and sustaining of injuries. Not only is the number of rugby matches played world-wide incalculable, but even more so is the number of scrums set during those matches, scrums in which six people are always engaged in the front row. This matter may give rise to the spectre of an indeterminate number of claims by an indeterminate number of people throughout the world, a factor which, taken with others provides reason to hold that no relevant duty of care arises in the circumstances. Those others, I would summarise as: the respondents were engaged in amateur sport; the voluntary participation of the appellants; the unenforceability of the IRFB's laws; the voluntary nature of the IRFB itself; the absence of reliance; the notoriety of the dangers the game presented; the appellants’ answerability to and relationship with their home unions; and, the distance in time, place, and contemplation between the respondents playing in the games in which they were injured and the appellants.”

114 It is important to recall that at the time of these events the plaintiff, unlike the rugby union players in Agar was not an adult. But what their Honours say is relevant to the difficulty in imposing norms in what the evidence here shows to be a potentially dangerous sporting activity.

115 In the context of whether CRL had power to make and enforce rules it is to be observed there was debate at trial about a possible rule that a player of certain physique not play in a certain position. It is apparent from the evidence of Mr Barnhill that CRL through its officers such as he, had known for years prior to 1994 that there was a risk of significant spinal injuries to front row players. He was asked about making and enforcing a rule such as that someone of small stature and with a long, thin, neck not be selected for the front row. He considered that if a rule were introduced to require a player with a long thin neck to be excluded from the front row it could not be enforced, because of differences of opinion about whether a player’s neck was long and thin.

116 Mr Barnhill was quite familiar with the Watson case, since it apparently achieved a degree of notoriety in rugby league circles. It involved a claim for negligence by a boy who was 15 at the time he was injured, and playing hooker in a schoolboy team. He suffered quadriplegia when the two halves of the scrum engaged. He had a long thin neck.

117 The Education Department had been warned that boys with his physique should not be selected to play hooker and in any event should be given neck strengthening exercises. That information was not passed on to the teachers who coached and selected him.

118 His claim against the department’s nominee was successful. That was because, it was held, the State of New South Wales had a non-delegable duty, alternatively a general duty, to ensure reasonable care was taken, so that pupils with his physique were not exposed to the risk of spinal injury.

119 Mr Corcoran, a former ARL director of coaching, told me that after the Watson case became known in rugby league circles, player safety was given greater attention. Mr Corcoran worked a great deal with Dr Yeo on issues of spinal safety, and was the co-author of a publication initially sponsored by the Rothmans Foundation, called “National Coaching Scheme, Coaching Rugby League: Level 1 Coaching Certificate Course” (“the Coaching Manual”). The publication went through several editions. Its most recent before 1994, was in 1991. That edition was in evidence. Lesson 8, commencing at page 88 of the publication, is about scrummaging: At that page, a player is seen to ask the coach – “Coach – where can I play in the scrum?”. At pages 89-90 the following appears:

HOW DOES A FORWARD AVOID INJURIES IN SCRUMS?

· Selection of players of suitable build for each position.

· Players to be given special exercises to strengthen their necks and shoulder muscles.

· These exercises to include Static Neck Muscle … and Dynamic Neck Muscle … Exercises, together with players’ Neck Wrestling …

· Coaching in proper scrum techniques.

· Avoid any collapsing of scrums by using correct feet placements and proper binding.

· Proper on-field supervision of scrums.

THE FORWARDS’ MENTAL APPROACH IS AS IMPORTANT AS THEIR PHYSICAL APPROACH TO SCRUMMAGING

· Forwards need to mentally push themselves to be first to the scrum mark and ready to pack down.

· Each forward should have a positive mental approach towards winning the ball in every scrum.

· They should concentrate fully at all times on their respective duties, in the scrum, as they carry out practise sessions.

· All should frequently mentally rehearse their scrummaging technique – so as to be able to do their best even when fatigued.

WHAT ARE THE PHYSICAL REQUIREMENTS FOR FORWARDS SELECTED IN EACH SCRUM POSITION OF THE FRONT ROW

· It is important that these three forwards’ builds should include short, strong necks and strong shoulders.

187 Assuming CRL came under a duty to give this direction and assuming further there would not have been a need to have someone present “to see who runs onto the paddock”, it is hard to see how from CRL’s perspective this could work in practice. I am not persuaded it would, in 1994, have been reasonably practicable. Nor do I consider it would have altered the outcome. Someone such as the plaintiff’s coach would still have needed to exercise judgment. Despite Mr Deakin’s assurance, the mismatch may not necessarily have been known until the other team arrived, shortly before the game. Then, assuming the coach decided the other front row looked too big, it may not have been possible to find a replacement front row, or even a replacement hooker, at such short notice. Of course, there could have been steps taken ahead of a game, to put small players in positions other than the front row on a permanent basis. So judgments would not have been needed in every match. But the opposing team, presumably having had the same direction, might then have been in trouble, with similar problems of finding last minute replacements. I am satisfied that giving a direction of the type envisaged would have been a wise course. But I am not persuaded CRL was in breach by not giving it. It acted reasonably in leaving this matter to clubs and the coaches.

(i) CRL should have regulated or controlled CRL games by stipulating that players of inappropriate physique were not to play in the front row.

188 One may readily see why, given the known hazards to front row players of the plaintiff’s physical attributes, a club, or a coach, may owe a duty to players to ensure proper care is taken in allocating team positions. But it does not follow that an organisation such as CRL which in day to day management of the game does not have that direct contact with players, has the same obligation. CRL could have given the postulated stipulation to groups and clubs. The cost and inconvenience would I find have been relatively slight. But did reasonable care require it? I am not persuaded it did. As I have noted, there was a distance between CRL and the plaintiff. CRL did not choose players or where they played. It could not have done so. There were too many players. That was a club function. By the system CRL had in 1994 for accrediting coaches, CRL reasonably left it to the coaches to pass information of this type down the line and to use it when choosing players and deciding where to play them.

(j) CRL should have introduced a medical record card to record physical characteristics of players as had occurred in 1993 in at least one area of the CRL competition.

189 I am satisfied this measure would not have imposed a cost on players. They would have been given a form to fill in. Players may well have agreed to fill in such a form as a condition of being allowed to play. I assume it is put that the clubs would keep the records, which would be made available to the coach.

190 This proposed measure is similar to (h). I consider it would have been relatively inexpensive and not inconvenient for it to have been introduced. Depending on the degree of particularity to which physical characteristics are recorded, useful information could be made available. But much of it would be obvious to the coach. Had there been such a system when the plaintiff was selected I am not persuaded any more information would have been available to the coach than he had. His physical characteristics would have been obvious. I consider reasonable care did not, in 1994, require it.

191 As I have now dealt with the ten particulars in [48] I shall return to the Third Amended Statement of Claim to deal with those allegations of negligence not already dealt with or abandoned.

14.g Failing to warn the plaintiff and/or his parents, that playing in an open/unrestricted age competition when he

(i) was under the age of 18 and/or

(ii) had a physique and/or weight inappropriate for the position; and/or

(iii) had a long thin neck

exposed him to a substantial risk of spinal injury .

14.l. Failing to warn the plaintiff and/or the plaintiff’s parents, the plaintiff being under the age of 18 that the second defendant was aware that players who have long thin necks were not suitable for the front and second row of the scrum in the second defendant’s competition.

192 There is an underlying assumption in these allegations that CRL had an obligation to give the warnings.

193 Was there a duty? The common law does recognise cases where someone who owes an obligation to take reasonable care has an obligation to warn. Obvious examples are professional relationships such as doctor/patient. For example, doctors were held to have had obligations to warn patients of risks, or effectiveness of medical procedures: F v R (1983) 33 SASR 189; Gold v Haringey Health Authority [1988] QB 481; Rogers v Whitaker (1992) 175 CLR 479. In Law of Torts (Balkin and Davis, Third Edition, Butterworths) the learned authors say the basis of liability in those cases, though not fully explored by the courts, appears to stem from the fact that the doctor as the repository of specialised information or knowledge, is, effectively, the only source on which the individual can draw, and on whom the individual must rely. I do not consider the relationship between a football league such as CRL and a player or a player’s parent is such a relationship. It could not be said CRL was the only source of information about the dangers to front row players of certain physiques.

194 Counsel for the plaintiff did not direct my attention to any authority on the issue. The argument simply proceeded on the assumption that this was a case where the common law imposes such an obligation. It has to be recalled that this case involves an organisation which in 1994 had tens of thousands of registered players and many thousands of coaches. The submission involves the notion that CRL would arrange explanations to the parents of the many thousands of child players. Even assuming CRL had an obligation to give the warnings, there would be practical difficulties about the giving of them. Who should have given them? Should there have been an interview? Who should have conducted it? The coach? As Mr Deakin did not address me specifically on the practical execution of this allegation it may be that he considered the written warnings of the kind I have dealt with above were more practicable. That can readily be accepted.

195 Assuming the law did impose an obligation to warn, and there were no practical impediments, would it have made a difference?

196 The plaintiff said that prior to his injuries no one had told him that someone playing in the front row of an open age competition with a physique like his was at risk of sustaining serious spinal injury. If they had, he said, “I would have probably tried to find another position to play in"[18].

197 Then, asked what would have happened if parental permission had been refused he said: “If mum and dad said no, that was it.” He conceded both of his brothers had played rugby league, his elder brother in first grade. He agreed that he would still have played if told there was a risk of serious injury. However he said “serious injury I would have thought broken bones, not hanging in a wheelchair.” I took him to say that if warned he might be rendered a tetraplegic he would not have played. He conceded his answer was “tinged with a fair bit of hindsight"[19], and that no position on the field is free from risk of injury.

198 As I have noted, the plaintiff’s mother signed a statutory declaration in which she said she gave her consent for the plaintiff to play. The document said:

“I, CHRISTINE MARY GREEN of 55 the Parade, NORTH HAVEN in the State of New South Wales do solemnly and sincerely declare as follows:

I give my permission for my son, Shane Anthony Green, to play football for Laurieton United Football Club in the 1994 season.

199 She said that before she signed that document she was not told anything about the risk of spinal injury to front row players. Nor had she been told anything of risks to slightly built players, especially ones with long necks. She was asked[20]:

200 She said the plaintiff in 1994 was tall and thin and had a long thin neck.

201 As the person who gave the plaintiff permission to play, she said she would have expected to be told of any particular danger to a player of her son’s physique playing in the front row of an open age competition.

202 In cross-examination she denied having been aware rugby league players had suffered catastrophic injuries. She conceded that when giving her consent she knew the plaintiff would be playing against bigger and stronger players. She said her understanding was that her consent had been necessary because of her son’s age. When she had previously given consents for school excursions, risks were not explained, she conceded, but said:

“You would expect the school if the kids were going to be exposed to any dangers that they would tell you.” [21]

203 It was put to Mrs Buttsworth that if she had not given her permission the plaintiff would just have gone to his father and got him to give consent. She said: “He would have probably gone and asked his father.”

Q. “And his father would have let him play, wouldn’t he?

A. I don’t know.”

The plaintiff’s father was not called. It is possible that had she refused and he had appealed to his father, the plaintiff would have obtained his permission. But in the end I do not consider it necessary for me to make a finding about that.

204 Mr Williams submitted I would treat Mrs Buttsworth’s evidence with caution, because of its necessarily hindsight nature. In that context I should say that I found both the plaintiff and his mother impressive, straightforward, witnesses. On factual issues I accept their evidence without hesitation. It is of course another matter whether I accept their evidence on the necessarily hypothetical issue as to what they would have done if adequately warned. This type of evidence has the difficulties discussed by Samuels JA in Ellis v Wallsend Hospital at (1989) 17 NSWLR 553 at 581-582; Rosenberg v Percival (2001) 205 CLR 434 at [104] (per Kirby J) and [214], [221] (per Callinan J); Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 at [137] (per Basten JA). No evidence could have been given by the plaintiff on this issue had the Civil Liability Act applied: s 5D(3)(b).

205 Whilst I am confident the plaintiff’s evidence, and his mother’s, was honestly given, I do not accept that their position would have been different had they been warned. I am satisfied that in 1994 they each knew injuries, some serious, though not necessarily such as occurred to the plaintiff, could be suffered in rugby league. They were a committed rugby league family. The plaintiff’s father and both brothers had played, his elder brother in first grade. I have no doubt the evidence of each of them is, not unreasonably, affected by hindsight.

206 One may reasonably pause to consider why CRL insisted on a parent or guardian’s giving a consent for a player under eighteen to play rugby league. Mr Barnhill said it was “the legal advice we received"[22]. But the fact that CRL saw it as necessary to have such a consent does not I think elevate the relationship between the plaintiff and the CRL to one where CRL had an obligation to tell him or his mother of its awareness that players with long, thin necks were not suitable for the front or second row. Further it is to be recalled that Dr Yeo thought that provided he did the neck exercises the plaintiff would not have been ruled out for the front row. I conclude that these allegations are not made out. There was no obligation on CRL to warn. And I am not persuaded that if a warning had been given the plaintiff would have played in a different position.

h. Failing to prohibit clubs who fielded teams in the Second Defendant’s open/unrestricted age competitions from registering players and allowing them to play when they:-

(i) were under the age of 18 and/or

(ii) had a physique and/or weight inappropriate for the position; and/or

(ii) had a long thin neck.

207 The practicability of taking steps to stop players with the characteristics in (ii) to (iii) from playing, or at least from playing in the front row, have been canvassed. The only issue not canvassed was the actual prohibition on registration of players with those characteristics for open age competitions. No arguments were put to show why reasonable care required CRL to take that or any steps in h. Nor do I consider that they were so required. CRL did what it reasonably could in leaving these matters to coaches and clubs. The allegation is not made out.

n. Failing to warn the plaintiff and/or his parents or guardian who had registered to play in the open/unrestricted age reserve grade teams in the second defendant’s competition of the risk of spinal injury and methods to guard against it.

208 My reasons in paras [192]-[206] apply equally to this particular.

q. Failure to ensure that only appropriately physically suitable players are selected for scrummaging.

209 I took the ten steps set out in [48] as representing the way the plaintiff says CRL would have ensured only appropriately physically suitable players were selected for scrummaging. Thus my reasons given for rejecting them should stand as my reasons for rejecting q.

r. Failure to ensure that all players playing in scrums performed and are trained in neck and upper body strengthening exercises

.

210 It was Dr Yeo’s evidence that strengthening the neck muscles would provide protection to the neck and spinal cord of a player in the scrum. He said [report 27 October 2004]:

“In 1994 I and others involved in contact sport had emphasised to the community including the Rugby League authorities, the importance of adequate preparation for contact sport and appropriate choice of players for certain positions on the field. It was my impression that the New South Wales Country Rugby League, headed by Mr Peter Corcoran, Senior Administrator in Coaching were seeking to improve player safety at that time and have continued to emphasise important aspects of player preparation, application of the rules and appropriate treatment for injury both in the city and country areas.”

211 He also said: [report 18 September 2007].

“It has been my understanding that Rugby League Administrators have since the early 1990’s, continued to promote educational programs which emphasise the importance of adequate preparation and appropriate choice of player for particular positions, having in mind the recognised susceptibility of certain players to neck injury.”

212 In his report of 27 October 2004 he said:

“On reviewing the patient’s history and anatomical appearance, I have formed the opinion that Mr Green has always had a relatively long, thin neck but would have been reasonably chosen for the position of hooker had he appropriate preparation and the building up of the paraspinal cervical neck muscles.

It was in fact appropriate, in my opinion, for the patient to play if he had had appropriate training and playing in a position for which he felt comfortable and well prepared.”

213 There was evidence that the plaintiff’s team did exercises when they trained. However, neither Mr Hoye nor Mr Griffin recalled any neck strengthening exercises. After 1994, Mr Hoye had attended a coach accreditation course. In that course he learnt about these exercises. He told me he recalled nothing like them being done by the plaintiff’s team in 1994. The plaintiff could not recall any such exercises. Mr Carr recalled there were exercises for the neck but described them merely as “warm up” ones. I accept the plaintiff’s submission that the exercises Dr Yeo had in mind were more than any exercises the plaintiff’s team did. Dr Yeo described them[23] as:

“Exercises that would be carried out, at the very least, three times a week in the home situation and preferably every day by the, you know, by the committed footballer.”

214 I find that prior to 7 May 1994 the plaintiff was not advised to undertake such a regime.

215 But whilst I consider it would have been desirable for him to be so advised, and for the plaintiff to have undertaken the exercises, I do not consider CRL was in breach of its duty in not ensuring all players in scrums performed them or were trained how to do them. The plaintiff was young and active and a very experienced and skilled player. The regime in the brief way Dr Yeo described it suggests it would have required a degree of commitment. The plaintiff did not say he would have done exercises requiring such a degree of commitment.

216 The issue concerning neck exercises was raised in the coaching accreditation programme. For the reasons given I have found CRL was not in breach by not doing more to ensure coaches were appropriately taught and qualified. For the same reasons, I am not persuaded CRL was in breach for not ensuring all players in scrums performed appropriate exercises. In my view CRL acted reasonably in leaving matters such as this to the clubs and their coaches.

s. Failing to prohibit the plaintiff from being placed in the front row of the scrum when he was physically not suitable for such position due to his physique and long thin neck.

217 For the reasons I have given in [97]–[109], I consider CRL had the power to insist clubs not allocate positions to players with particular physical characteristics.

218 Whilst CRL knew the plaintiff’s age, it can only have learned his bodily characteristics through relying on his coach to make an appropriate assessment. The coach was selected by Laurieton. He was a volunteer. The plaintiff was an experienced and skilled player who had played all his life. He was one of 50,000 New South Wales country players. I consider CRL was not unreasonable in leaving to the coach decisions about where to place the plaintiff, especially given my view that CRL acted reasonably in the way it went about arranging for coaches to be accredited. I do not consider CRL was in breach of duty in failing to bring about the prohibition.

w. Permitting the plaintiff to remain and play in the front row of the scrum when he had a long thin neck and/or inappropriate physique and weight for the position, contrary to articles prepared by Peter Corcoran and provided to the second defendant and/or third defendant.

219 This, I think, restates s. in a slightly different, but immaterial, way. I take the reference to the articles to be those drawing attention to the need for care in selecting the front row, and to unsuitability for front row positions of people with certain of the plaintiff’s physical characteristics. For the reasons as to s. I do not consider this particular is made out.

x. Failure to have regard to warnings provided by P Corcoran and/or Dr J Yeo as to the risk of injury to the plaintiff due to his long thin neck and/or inappropriate physique and weight for the position, and therefore failing to ensure that the plaintiff was not allowed to participate in the front row of the scrum.

220 This is, I consider very similar to w. For the reasons under s. and w. this particular is not made out.

y. Failure to ensure that all junior players had clearance to play from the Second Defendant and/or the Second Defendant’s authorised officers in accordance with the Second Defendant’s memorandum dated 22 March 1990 from John O’Toole.

221 Although this particular was not abandoned at trial, counsel for the plaintiff did not address it. I am not persuaded the factual basis for it is established. Nor am I persuaded, if it were, CRL’s not obtaining the relevant clearance had any causative effect or amounted to a breach of duty.

z. Failure to prohibit players, including the plaintiff, from playing in the open/unrestricted age competition in the front row when they:

i. were under the age of 18 and/or

ii. had a physique and/or weight inappropriate for the position

iii. had a long thin neck.

222 I take this particular to be substantially covered by s. For the reasons I gave as to s. I consider this particular is not made out.

Unaccredited coaches

223 In paragraphs 15, 16, 17 and 18 of the Third Amended Statement of Claim the plaintiff alleges that prior to 1994 CRL knew there were unaccredited coaches, including Mr Slater, involved with teams in CRL’s competition.

224 Further, he alleges that CRL knew or ought to have known, that permitting that to occur involved an increased risk of serious injury to players. In permitting it, or not prohibiting it, CRL is said to have exposed the plaintiff to an “unnecessary and/or increased risk of injury”. Further, it was alleged that by allowing clubs to appoint such coaches to coach its open age teams, not ensuring all coaches had accreditation, and not telling development officers that all coaches must have level 1 accreditation, CRL was negligent.

225 As I have noted, CRL concedes it knew in 1994 a number of coaches who coached for its constituent clubs were not accredited. But for the reasons I have given I am persuaded that at least up to 1994 CRL did all that could reasonably have been expected of a large, largely voluntary, organisation, to see that the coaches were properly accredited. It did not have the resources to run the courses. It relied on NSWRL to run them. There were clearly difficulties in finding people to be coaches. The courses could not be made available all through the year. They were available before the season started. There was consultation with the clubs about when to hold the courses. The coaches had to pay to attend. They also had to give up a weekend of their time. A large number was accredited. CRL received undertakings from those who were not, that they would do the next course. When Mr Corcoran was asked about unaccredited coaches coaching in country New South Wales he said:

“The need for coach education and the recommendation to obtain a level one coaching certificate came in in the 80s. But at that stage until probably into the 90s, the number of course providers of development people and so on who could run the courses was limited at the beginning and gradually got greater, with the result that, if there was any non accreditation it was probably more because of the unavailability of courses or because of the distance or the remoteness in an area even where there might have been a course provider. So that the recommendation was there and the league took every effort to make sure that it was available within reason, but obviously, it wasn't until the number of people that could provide the courses became relatively sufficient to service all areas that the league then started to say, we will countenance making it not a recommendation or voluntary, but we would countenance it being obligatory. That wasn't until 2000.”

226 I am not persuaded that CRL could or should have done more as at 1994 to see that coaches of teams in the country were adequately trained.

227 I am not persuaded this particular of negligence is made out.

Loss of Chance

228 In [22] of the Third Amended Statement of Claim the plaintiff pleads:

“Due to the negligence of the Second and/or Third and/or Fourth and/or Fifth Defendant, the plaintiff has lost the opportunity of suffering less injury and/or no injury and in the alternative the plaintiff therefore claims a loss of opportunity in respect of the severity of the injuries he has suffered.”

229 In submissions, Mr Deakin identified CRL’s not ensuring the plaintiff was advised to do neck exercises, as at the root of this claim.

230 It is to be recalled that the plaintiff registered to play for the 1994 season on, at the earliest, 28 March 1994. I assume for the purpose of this claim that the lost opportunity arose from CRL’s not ensuring, through the Laurieton coach, that the plaintiff commenced these exercises in late March or early April 1996. The match was on 7 May 1994. So the plaintiff, at most, would have done the exercises for just under six weeks. There was no evidence about how long the exercises would have needed to be done before providing protection. Dr Yeo’s reference to “three times a week – in the home situation – and preferably every day” is rather suggestive of a long-term regime.

231 In Rufo v Hoskings [2002] NSWSC 1041 Studdert J in the context of a medical negligence claim said:

“[246] In order to recover damages for the loss of a chance of a better outcome, the plaintiff is required to prove on the balance of probabilities that there did exist a chance that the plaintiff would have had a better outcome had the negligence in treatment not occurred …

[247] … If so, then "unless the chance is so low as to be regarded as speculative - say less than one percent" (Malec at 643), the plaintiff is entitled to recover an appropriate award of damages referable to the quantification of the loss of the chance.”

232 The Court of Appeal ((2004) 61 NSWLR 678) disagreed with Studdert J’s view on the liability issue, but impliedly approved of his formulation of the test.

233 Because there was such a short time between when the plaintiff signed on, and the accident, and given the absence of any evidence as to what if any difference six weeks of exercises would have made, I am not persuaded that any loss of chance, assuming negligence were made out, (which it is not) would be other than speculative.

Conclusion

234 In its Amended Defence CRL pleads voluntary assumption of risk. By reason of the views I have reached, it is unnecessary for me to deal with that defence.

235 The plaintiff has not succeeded in establishing any of his allegations of negligence. I propose to enter a verdict for CRL.

Orders

2. Plaintiff to pay CRL’s costs.

**********

ENDNOTES

1. T179.54

2. T182.6

3. T543-544

4. (1979-80) 146 CLR 40

5. T564

6. Ex “K”

7. T104

8. T116-117

9. T105.18-34

10. Ex “J”

11. Ex “3”

12. See for example Ex “2”.

13. Mr Hoye T287.44

14. T297

15. T664

16. T208-9

17. T601

18. T369

19. T476

20. T424.41

21. T436

22. T483

23. T560.10

11/02/2008 - Footnotes deleted; Endnotes added - Paragraph(s) 70, 78, 86, 128, 133, 134, 135, 150, 157, 158, 159, 165, 167, 171, 181, 196, 197, 199, 202, 206, 213.

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Citations

Green v Country Rugby Football League of NSW Inc [2008] NSWSC 26

Cases Citing This Decision

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Cases Cited

24

Statutory Material Cited

1

Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505

Leichhardt Municipal Council v Montgomery [2007] HCA 6

CITATION:	Green v Country Rugby Football League of NSW Inc [2008] NSWSC 26 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	05/11/07-09/11/07, 13/11/07-16/11/07, 26/11/07-27/11/07
JUDGMENT DATE :	31 January 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Walmsley AJ
DECISION:	Verdict and judgment for Defendant. Plaintiff to pay Defendant's costs.
CATCHWORDS:	TORTS - negligence - Sport - rugby league - scrum collapse - catastrophic injury - where plaintiff sixteen years old - where plaintiff playing hooker - where plaintiff playing in unrestricted age competition - where plaintiff younger, smaller and lighter than opposing front row players - where plaintiff had long, thin neck - where plaintiff’s physical characteristics made him more susceptible to scrum injury - where plaintiff suffered tetraplegia upon scrum collapse - liability of Country Rugby League - where Country Rugby League administered sport in relevant part of New South Wales - whether Country Rugby League should have required medical examinations prior to registering players - whether Country Rugby League failed adequately to warn players of risk of injury - whether Country Ruby League failed adequately to disseminate information to participants about the risk of injury to players with certain characteristics who play in certain positions - whether Country Rugby League liable for failure to disseminate information to participants about neck-strengthening exercises - whether Country Rugby League ought to have prevented players of certain physiques from playing in certain positions - where evidence that de-powering scrums significantly reduces risk of scrum injury - whether Country Rugby League liable for failure to de-power contested scrums earlier - whether Country Rugby League ought to have instructed referees to de-power scrums - whether Country Rugby League owed plaintiff a non-delegable duty of care - whether Country Rugby League ought to have changed rules of rugby league - where plaintiff’s coach unaccredited - whether Country Rugby League ought to have allowed team to participate only if coach accredited - AGENCY - Imputed knowledge - whether Country Rugby League could acquire knowledge of a player’s bodily characteristics by reason of the coach’s knowledge - WARNINGS - Whether Country Rugby League had a common law duty to warn player or his parents of risk of spinal injury in rugby league games
LEGISLATION CITED:	Civil Liability Act 2002, s. 5D(3)(b)
CATEGORY:	Principal judgment
CASES CITED:	Agar v Hyde (2000) 201 CLR 552 Anderson v Mount Isa Basketball Association Incorporated (1997) Aust Torts Reports 8-451 Brighton le Sands Amateur Fishermen’s Association Ltd v Vasilios Kormovokis [2007] NSWCA 331 Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 Ellis & Wallsend District Hospital (1989) 17 NSWLR 553 F v R (1983) 33 SASR 189 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 Gold v Haringey Health Authority [1988] QB 481 Hawkins v Clayton (1988) 164 CLR 539 In the matter of the Phillip-Stephan Photo Litho and Typographic Process Pty Ltd (1890) 12 LR NSW (EQ) 4 Kondis v State Transport Authority (1984) 154 CLR 672 Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR638 Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39 New South Wales v Fahy [2007] HCA 20; (2007) 81ALJR 1021 Nowak v Waverley Municipal Council (1984) Aust Torts Reports 80-200 Rogers v Whitaker (1992) 175 CLR 479 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Rosenberg v Percival (2001) 205 CLR 434 RTA v Dederer [2007] HCA 42; (2007) 238 ALR 761 Rufo v Hoskings [2002] NSWSC 1041 Vairy v Wyong Shire Council (2005) 223 CLR 422 Watson v Haines (1987) Aust Torts Reports 80-094 Wyllie v Pollen (1863) 3 De GJ & S 596; 46 ER 769 X v Pal (1991) 23 NSWLR 26
PARTIES:	Shane Anthony Green - Plaintiff Country Rugby Football League of NSW Inc - Defendant
FILE NUMBER(S):	SC 20259/98
COUNSEL:	P Deakin QC; K Andrews (Plaintiff) M L Williams SC; A Radojev; R Sheldon (Defendant)
SOLICITORS:	W H Parsons & Associates Solicitors (Plaintiff) Ebsworth & Ebsworth Lawyers (Defendant)