McManus v Knights Rugby League Pty Ltd

[2019] NSWSC 1179

Supreme Court

New South Wales

Medium Neutral Citation:	McManus v Knights Rugby League Pty Ltd [2019] NSWSC 1179
Hearing dates:	6 September 2019
Date of orders:	10 September 2019
Decision date:	10 September 2019
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)   Direct the plaintiff to provide answers to the particulars requested in the first defendant’s letter dated 31 August 2019 by no later than 21 days from the date of these reasons for judgment. (2)    Subject to compliance with order (1), grant leave to the plaintiff to amend the statement of claim in the form of the document annexed to the affidavit of Laura Kate Barnett affirmed on 17 June 2019. (3)   Direct any party or proposed party wishing to argue for a particular costs order to provide me with written submissions by no later than 2 November 2019. (4)    Reserve costs.
Catchwords:	PLEADING – statement of claim – application to amend – whether proposed amended statement of claim in proper form – where first defendant requested particulars to enable the preparation of a defence – where leave to amend granted subject to earlier provision of answers to particulars
Legislation Cited:	Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 5
Category:	Procedural and other rulings
Parties:	James Alan McManus (Plaintiff) Knights Rugby League Pty Ltd (First Defendant) Newcastle Knights Pty Ltd (Second Defendant)
Representation:	Counsel: C T Barry QC and D R Benson (Plaintiff) D Villa SC (First Defendant)   Solicitors: Slater + Gordon Lawyers (Plaintiff) Kemp Strang (First Defendant)
File Number(s):	2016/367956
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By notice of motion filed on 17 June 2019, the plaintiff seeks leave to file an amended statement of claim. The proposed amended document is annexed to the affidavit of Laura Barnett affirmed on that date, which was read without objection on this application.

2. The first defendant opposes the grant of leave to amend. The first defendant’s concerns about it are set forth in detail in a letter (erroneously) dated 31 August 2019. The following paragraphs of that letter serve adequately to explain the position:

“We refer to your notice of motion filed on 17 June 2019 and to the proposed First Amended Statement of Claim annexed to the affidavit of Laura Barnett affirmed on 17 June 2019.

We note that one of the bases said to justify the amendment of the pleading is that, as at the date of the filing of the original Statement of Claim on 8 December 2016, the Plaintiff was unaware of the content of the NRL Operations Manuals dealing with the management of concussion injuries. We not [sic, note] that these documents were provided to you in answer to a subpoena served on the NRL in August 2017. No explanation has been provided for the delay in making the amendments to the extent they rely upon the NRL Operations Manual, or the failure to provide particulars of the previous pleading upon obtaining access to that Manual.

We also note that one of the other bases said to justify the amendment of the pleading is that by reason of the production of the Plaintiff’s “baseline test” dated 5 March 2014 it is clear that Knights Rugby League Pty Ltd, and not the previous entity that operated the Newcastle Knights (the Second Defendant) is the party responsible for the injuries and disabilities sustained by the Plaintiff. We note that the Plaintiff must have been aware of the fact that he had undergone a baseline test, and yet without (apparently) knowing what the result of the baseline test was nonetheless proceeded to commence proceedings against the Second Defendant. In these circumstances we are surprised that the Plaintiff’s case was certified as one having reasonable prospects of success against those previous entities (or indeed against the First Defendant).

We further note that there is no indication in Ms Barnett’s affidavit as to whether or not it is now proposed by the Plaintiff [sic] will seek to adduce further evidence in respect of the proposed amended claim (some two and a half years after proceedings were originally commenced, and some 12 months after service of the Plaintiff’s expert evidence in respect of liability which itself was served some considerable months late).

Neither the proposed pleading, nor the expert evidence served to date, articulates in any meaningful way critical aspects of the Plaintiff’s [sic] that it will be necessary for the First Defendant to understand before it is able to consider its position in respect of the proposed pleading. Accordingly, we request the following further and better particulars of the proposed pleading…”

3. The request for particulars that follows is extensive. The plaintiff has indicated that he is able to respond to the request within a short timeframe. The first defendant has correspondingly indicated that it will be in a position to file a defence to the proposed amended statement of claim if the requested particulars are provided.

4. On one view of the matter, the attitude of the first defendant is exceedingly generous. The proposed amended statement of claim is an extremely curious document. Although it pleads a duty to exercise reasonable care not to expose the plaintiff to the adverse effects of concussive injuries, it fails other than in a discursive and anecdotal way to particularise how this duty has been breached.

5. Paragraphs 82 to 86 of the document are in these terms:

“82. The protocols for the management of concussion were reasonable precautions that the Defendant could have taken to manage the risk of the Plaintiff suffering permanent disability in the nature of post-concussion syndrome and/or chronic traumatic encephalopathy and/or frontal lobe damage.

83. It was foreseeable that if the Defendant did not follow its protocols that permanent injury in the nature of post-concussion syndrome and/or chronic traumatic encephalopathy and/or frontal lobe damage could be caused to the Plaintiff.

84. The risk of developing permanent disability in the nature of post-concussion syndrome and/or chronic traumatic encephalopathy and/or frontal lobe damage was not insignificant.

85. A reasonable employer in the position of the Defendant would have followed the protocols by which it was bound to protect the Plaintiff from developing disabilities in the nature of post-concussion syndrome and/or chronic traumatic encephalopathy and/or frontal lobe damage.

86. The failure of the Defendant to follow its own protocols, as it was contractually bound to do, was both a breach of contract and a breach of the duty of care owed to the Plaintiff.”

6. The proposed amended statement of claim conspicuously fails to plead the material facts necessary to enable the first defendant to know the claim it is expected to meet. The protocols are on one view insufficiently identified in the body of the document. However, accepting for the sake of efficiency the suggestion that the manifold defects in that document, and the difficult position in which they place the first defendant, might be capable of remedy or at least amelioration if the requested particulars are provided, I shall adopt the attitude that is evident from the terms of the letter referred to earlier and direct the plaintiff to answer the first defendant’s request for particulars within 21 days of the date of these reasons. Provided that the plaintiff does so, I will grant him leave to file and to rely upon the proposed amended statement of claim.

7. Several issues arise concerning the costs associated with or thrown away by reason of the proposed amendments and to the now abandoned proposal by the plaintiff to join Lloyd’s of London & Chubb Insurance Co of Australia Ltd pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017. That proposal was predicated upon the contention that the second defendant was a proper or worthwhile defendant. As the plaintiff has now abandoned that contention, the prospect of joining its insurer has fallen away. The question of who should pay the costs of that exercise remains to be determined.

8. As the competing assertions about the costs of the application to amend and the costs of the proposal to join an insurer have not yet been fully argued, I will invite any party or proposed party wishing to argue for a particular costs order to provide me with written submissions by no later than 2 November 2019.

9. I will therefore make the following orders:

1. Direct the plaintiff to provide answers to the particulars requested in the first defendant’s letter dated 31 August 2019 by no later than 21 days from the date of these reasons for judgment.

2. Subject to compliance with order (1), grant leave to the plaintiff to amend the statement of claim in the form of the document annexed to the affidavit of Laura Kate Barnett affirmed on 17 June 2019.

3. Direct any party or proposed party wishing to argue for a particular costs order to provide me with written submissions by no later than 2 November 2019.

4. Reserve costs.

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