Picken v Australian Football League & Ors
[2024] VSC 127
•20 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2023 00894
| LIAM PICKEN | Plaintiff |
| v | |
| AUSTRALIAN FOOTBALL LEAGUE | First Defendant |
| FOOTSCRAY FOOTBALL CLUB LIMITED trading as | Second Defendant |
| DR GARY ZIMMERMAN | Third Defendant |
| DR JACOB LANDSBERGER | Fourth Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 March 2024 |
DATE OF RULING: | 20 March 2024 |
CASE MAY BE CITED AS: | Picken v Australian Football League & Ors |
MEDIUM NEUTRAL CITATION: | [2024] VSC 127 |
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PRACTICE AND PROCEDURE — Application to stay proceeding pending determination of related group proceeding — Substantial overlap in legal and factual issues to be determined — Substantial overlap in interlocutory steps to be taken — Where no significant preparatory work wasted — Degree of prejudice to plaintiff if proceeding stayed — West v Rane (No 2) [2020] FCA 616 — Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | T Tobin SC | National Compensation Lawyers |
| For the First Defendant | B Ihle KC with R Singleton | DLA Piper Australia |
| For the Second Defendant | B Jellis | Lander & Rogers |
| For the Third Defendant | J Hooper | Perry Maddocks Trollope Lawyers |
| For the Fourth Defendant | N Murdoch SC | Avant Law |
HIS HONOUR:
The plaintiff, Liam Picken (‘Picken’), played Australian football for the second defendant, Footscray Football Club Limited (‘Western Bulldogs’) in a national competition conducted by the first defendant, the Australian Football League (‘AFL’). The third defendant, Dr Gary Zimmerman, was the club medical officer at the Western Bulldogs. The fourth defendant, Dr Jacob Landsberger, provided medical services to the Western Bulldogs and its players. Picken brings this proceeding against the defendants claiming damages for concussive head injuries he alleges he suffered during the course of his career as an AFL player.
A group proceeding issued in this court, Rooke v Australian Football League (S ECI 2023 00969) (‘Rooke proceeding’), concerns a claim for damages by AFL players and/or their estates and close relations against the AFL for loss and damage suffered as a result of concussive head injuries sustained during their playing careers.
This proceeding was temporarily stayed shortly after it was issued on the application of the AFL and Western Bulldogs so that the two proceedings, and other proceedings issued in this Court concerning the same subject matter, could be appropriately case managed. This ruling considers whether this proceeding should continue to be stayed until determination following the principal trial in the Rooke proceeding.
For the following reasons, I have concluded that this proceeding should be temporarily stayed.
Procedural history
This proceeding was issued by the filing of a writ and statement of claim on 8 March 2023.
The Rooke proceeding was commenced by filing a writ and general indorsement on 14 March 2023.
A second group proceeding concerning the same subject matter, Tuck v Australian Football League & Ors (S ECI 2023 01055) (‘Tuck proceeding’), was issued on 17 March 2023.
Defences were filed in this proceeding in May 2023.
At a case management conference held on 14 June 2023 involving the three proceedings, John Dixon J made orders staying this proceeding until a case management conference following resolution of a multiplicity contest between the Rooke and Tuck proceedings. The stay orders allowed for some discovery steps to be taken in this proceeding.
Before the multiplicity contest occurred, the plaintiff in the Tuck proceeding applied to discontinue the proceeding.
A statement of claim was filed in the Rooke proceeding on 6 December 2023, followed by the defence on 12 February 2024 and a reply on 4 March 2024.
Principles and authorities
The relevant principles are not in issue. The court has a general power to control its own proceedings, including by granting a temporary stay.[1]
[1]Supreme Court Act 1986 (Vic) s 30.
The court must exercise its jurisdiction so as to ensure, as far as possible, that ‘all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided.’[2]
[2]Ibid s 29(2).
The court must give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’[3] when determining whether to temporarily stay a proceeding.
[3]Civil Procedure Act2010 (Vic) s 7.
The guiding principles have been distilled in the authorities into two propositions:
(i)‘[F]or obvious reasons it is undesirable that two courts should determine the same dispute’[4]; and
(ii)‘Practical considerations based on common sense and fairness should dictate which action should proceed first.’[5]
[4]Bella Products Pty Ltd v Creative Designs International Pty Ltd (2009) 258 ALR 538, [23] (Finkelstein J).
[5]Ibid.
The authorities have identified that considerations which may inform the common sense and fairness assessment include:
•Which proceeding was commenced first.
•Whether the termination of one proceeding is likely to have a material effect on the other.
•The public interest.
•The undesirability of two courts competing to see which of them determines common facts first.
•Consideration of circumstances relating to witnesses.
•Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
•The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
•How far advanced the proceedings are in each court.
•The law should strive against permitting multiplicity of proceedings in relation to similar issues.
•Generally balancing the advantages and disadvantages to each party.[6]
[6]Tucker v State of Victoria [2021] VSCA 120, [121] (Kyrou, McLeish and Sifris JJA).
Evidence
The AFL relied on affidavits sworn by its solicitor, Kieran John O’Brien (‘O’Brien’), on 19 April 2023 and 5 March 2024.
The Western Bulldogs relied on affidavits sworn by its solicitor, Ari Abrahams (‘Abrahams’), on 19 April 2023 and 5 March 2024.
The evidence of O’Brien and Abrahams sets out some procedural history and identified the commonality between the pleaded cases in this proceeding and the Rooke proceeding.
This proceeding
Picken alleges that between 2009 and 2019 he was an AFL player employed by the Western Bulldogs and registered with the AFL. He alleges he entered into a Standard Player Contract (‘SPC’) with the AFL and Western Bulldogs.
Picken alleges that between July 2011 and November 2017, at the direction of the Western Bulldogs, he underwent a number of baseline cognitive tests, and that on some of those tests his results were below the normal range compared with his matched peer group. He alleges that despite these irregular results, he was not referred for retesting and medical assessment and continued to perform full training and compete in the AFL competition.
Picken alleges that in incidents that occurred on 8 April 2017 and 3 March 2018 he suffered further concussive head injuries.
Picken pleads, relevant to causation:
As a result of the training and playing in the AFL Competition with irregular results, and/or the 8 April 2017 incident, and/or returning to full training and play immediately after the 8 April 2017 incident, and/or the 3 March 2018 incident the Plaintiff suffered injury.
Picken pleads that the content of the duty owed to him by the AFL required it to avoid exposing him to unnecessary risk of harm by:
(a)developing rules, policies and procedures which took into account the best practice medical advice at any given time, in particular with respect to concussion;
(b)enforcing those rules, policies and procedures;
(c)ensuring that the clubs licensed with the First Defendant abided by the rules, policies and procedures;
(d)providing education to the club and players as to concussive symptoms and the risks associated with an early return to play;
(e)requiring certification for fitness to play from a suitably qualified expert in sports concussion following a concussion or brain injury.
The AFL admits that it owed Picken a duty of care, but does not admit the alleged scope of the duty.
The particulars of breach alleged by Picken against the AFL are:
(a)Failing to provide a safe system of work;
(b)Failing to provide appropriate instruction and supervision;
(c)Placing the Plaintiff in a position of danger;
(d)Allowing or permitting the Plaintiff to continue to play in the AFL Competition following the 8 April 2017 incident;
(e)Failing to require the Second Defendant to supply the First Defendant with a SCAT 3 test following the Match Head Trauma Assessment conducted on 10 April 2017;
(f)Failing to enforce non-compliance with the First Defendant’s policies and protocols;
(g)Failing to have any, or any sufficient, return to play policy following a concussive episode;
(h)Failing to enforce best practice medical treatment following a concussive episode;
(i)Failing to provide any, or any sufficient, education to clubs or AFL players around concussion and management of concussion;
(j)Failing to comply with the provisions of the Occupational Health and Safety Act 2004 and the Occupational Health and Safety Regulations 2007 and Occupational Health and Safety Regulations 2017.
The AFL denies breach of duty.
Picken pleads that he has sustained a brain injury with sequelae and a psychological injury. He alleges that as a consequence he has retained only a partial capacity for employment since 3 March 2018, and that he has been totally incapacitated from undertaking work consistent with his academic, vocational and commercial training.
The Rooke proceeding
The period covered by the claim in the Rooke proceeding is 1 January 1985 to 14 March 2023. Group members include persons who:
(a)played in the AFL Competition during the period; and
(b)during the course of matches or training sustained head knocks; and
(c)after sustaining head knocks, suffered from temporary loss of normal brain function or symptoms consistent with temporary loss of normal brain function, known as concussion (‘concussion’); and
(d)suffered an acquired brain injury after sustaining concussion/s.
The plaintiff in the Rooke proceeding brings a claim in negligence and for breach of statutory duties imposed by regulations made from time to time under the Occupational Health and Safety Act 2004 (Vic) and its predecessors (‘OHS regulations’).
Rooke alleges that the AFL and the AFL players were in a position analogous to employer and employee, and that the AFL owed a non-delegable duty to provide players with a safe system of work during matches and training, and to avoid unnecessarily exposing players to the risk of long-term and/or permanent personal injury or death as a result of head injury or concussion injury during matches and training. The AFL admits that it owed players a duty of care, but denies the scope of duty alleged by Rooke.
Rooke relies on a number of matters to establish foreseeability of the risk of concussion. These include identified medical and scientific studies and publications in the period 1906 to 2008, and an AFL Medical Officers Report to the National Health and Medical Research Council demonstrating actual knowledge of the AFL from at least November 1993.
Rooke alleges that acting reasonably the AFL should have taken the following precautions against the concussion risk of harm:
(a)having a rigorous system for the identification of symptoms of concussion by way of monitoring, or requiring responsible delegates to monitor, matches and training for symptoms of concussion;
(b)where symptoms of concussion were suspected or identified, having the player immediately withdrawn from participation in matches or training, as the case may be;
(c)where symptoms of concussion were suspected or identified, having a mandatory period of no training or playing in matches of a minimum of 12 days;
(d)after the mandatory period of no training or playing in matches, requiring the player to be assessed by a medical officer as being fit before resuming play or training;
(e)once being assessed as fit to resume matches or training, graduating the player to return to training while observing for any subtle changes to the player caused by the concussion;
(f)if no subtle changes were identified while the player gradually returned to training, then only permitting the player to return to matches while monitoring the player for any subtle changes caused by the concussion;
(g)if a player had suffered one or more concussions in matches or training, assessing whether the player was ever capable of returning safely to matches or training;
(h)assessing the risk of head knocks and concussions to AFL players while playing in matches and training;
(i)studying and monitoring the effect of head knocks and concussions on AFL players in matches and training, including over time; and
(j)advising, warning and educating the AFL players on the risks of head knocks, signs and symptoms of concussions and the concussion risk of harm.
Rooke alleges the AFL breached the duty it owed to players by failing to take the identified precautions. The AFL denies breach.
Rooke also alleges that in the period 1 July 1999 to 14 March 2023, the AFL owed relevant duties to players under various iterations of the OHS regulations. In particular, Rooke alleges that the circumstances in which players suffered head knocks resulting in concussive head injuries amounted to hazardous manual handling within the meaning of the OHS regulations. Rooke alleges the AFL breached its duties under these regulations by failing to identify; undertake an assessment of; and eliminate, reduce or control the relevant risk. The AFL denies breach of the OHS regulations.
The common questions pleaded by Rooke include:
(b)Whether the AFL owed a non-delegable duty of care to the AFL players.
…
(d)The state of medical knowledge regarding the concussion management risk of harm from time to time over the period.
(e)What the AFL actually knew, or ought reasonably to have known, of the concussion management risk of harm from time to time over the period.
(f)The content and/or scope of any duty of care owed by the AFL to players including whether reasonable care required the AFL to undertake any and which of the reasonable precautions in response to the concussion management risk of harm.
(g)Whether during the period the AFL had the ability to control and enforce the rules relating to medical assessment of AFL players, management of player injuries and concussion management.
…
(i)Whether the AFL players are able to bring a claim for breach of statutory duty pursuant to the OHS regulations.
(j)Whether the AFL players were ‘employees’ of the AFL under the extended definition of ‘employee’ in the OHS regulations.
(k)Whether the AFL players were engaging in hazardous manual handling under the OHS regulations.
(l)Whether the AFL breached any and which of the OHS regulations.
(m)The principles for identifying the cause of Rooke’s and the injured players’ and deceased players’ [acquired brain injuries] (but not including a determination of causation of injury of the injured players and the deceased players).
(n)The principles for identifying and measuring Rooke’s and the injured players’ damages, and, where relevant to past losses, the damages suffered by the deceased players, resulting from the breaches alleged (but not including the assessment of damages of the AFL players).
Picken’s submissions
There is a fundamental difference between the claims made in this proceeding and those advanced in the Rooke proceeding. Picken does not complain about the AFL regulations governing head knocks and concussive head injuries, or the testing procedure adopted by the AFL in respect of those matters. In the main, Picken’s complaint against the AFL is that it failed to ensure that the Western Bulldogs and the doctors complied with the testing procedure and responded as required to the results of tests.
The state of knowledge as it developed over the period since 1985 is in issue in the Rooke proceeding. Knowledge of the risks associated with head knocks and concussive head injuries is less significant in this proceeding. By the time of Picken’s injuries, the AFL had identified the testing of players that was required, but failed to take steps to ensure compliance with the testing and associated recommendations in circumstances where Picken’s test results were irregular.
The witnesses and evidence in the Picken proceeding will predominantly be different to that called in the Rooke proceeding. Determination of one proceeding will have no influence on the other.
Picken has suffered a major brain injury. He is young and cannot undertake any significant employment. An indefinite stay of his proceeding will cause significant prejudice to him.
Analysis
I reject Picken’s submissions. The legal and factual commonality between the Rooke and Picken claims, and the matters put in issue by the AFL in both proceedings, is inescapable.
Picken accepts that he is a group member within the definition in the Rooke proceeding. He further accepts that the claim he makes against the AFL is within the scope of the claim pleaded in the Rooke proceeding.
The answers to the common questions in the Rooke proceeding are likely to have a material effect on the determination of this proceeding. Such answers include those about whether the duty owed by the AFL was non-delegable; the state of medical knowledge over time regarding the concussion risk of harm; the content or scope of the duty owed by the AFL to players; the degree of control exercised by the AFL over medical assessment and management of player injuries, including concussive head injuries; whether the AFL owed duties to players under OHS regulations; and principles for identifying injury and assessing damages.
Practical considerations weigh in favour of a temporary stay of this proceeding. The proceedings were issued within days of each other. Both are at an early stage with pleadings having just closed, meaning a stay of this proceeding will not result in any substantial waste of work. There will likely be significant overlap in interlocutory steps, such as discovery and gathering expert evidence, if the two proceedings progress in tandem. A significant additional cost burden would be placed on the AFL if this proceeding were allowed to progress prior to determination of the common questions in the Rooke proceeding. There is likely to be significant waste in the preparation that would need to be undertaken by all parties in relation to the matters in issue in this proceeding, because of the overlap with the common questions in the Rooke proceeding that are yet to be answered.
There would be a risk of inconsistent findings if both proceedings were allowed to progress to trial. It is undesirable that this occur.
The prejudice to Picken if this proceeding is stayed should not be overstated. The proceeding has not progressed beyond the close of pleadings. It is likely, given the complexity of matters in issue, that the proceeding would be listed for trial in mid to late 2025 at the earliest. The process of discovery and commissioning expert evidence in the Rooke proceeding may infect this proceeding causing further delays. The timeline to a trial of the common questions in the Rooke proceeding may be similar. It is difficult to say at this stage what delay will be caused to Picken achieving an outcome of his claim if a stay is granted.
The AFL relied on a ruling by Lee J in West v Rane (No 2) (‘West’)[7] as a case in which a temporary stay of individual proceedings was ordered where the claimants were group members in a proceeding that was still on foot. The plaintiff had succeeded in a trial division judgment determining common questions in the group proceeding.[8] An appeal from that judgment by the respondents was yet to be heard. The individual claimants in the West proceedings were group members in Gill. The individual claims concerned the same injuries and circumstances, but were being advanced in the West proceeding against alleged wrongdoers other than the Ethicon respondents in Gill. Lee J said, in relation to those circumstances:
35.As might be expected in the case of alleged concurrent tortfeasors, in response to an enquiry by me, senior counsel for the Ethicon respondents confirmed that at any future hearing of any of the Ethicon GMs’ claims against the Ethicon respondents, it may be that those respondents will seek relief against the other alleged concurrent tortfeasors by way of contribution (pursuant to statute or in equity).
36.In these circumstances, and as a matter of common sense, it is in the interests of justice that the entire justiciable controversy between the claimants and all those said to be responsible for the wrongs that they allege they have suffered (and the attribution of any responsibility between those alleged concurrent wrongdoers) be determined concurrently; to do otherwise would not only run the risk of potential inconsistency in fact finding, but would be inefficient (and accordingly inimical to facilitating the overarching purpose). Needless to say, this assessment would change in the event that a claimant opted out of the Ethicon Class Action and hence made a deliberate step to restrict any claim for personal injury damages to other than the Ethicon respondents. In these circumstances, the appropriate course is to order a temporary stay of the Federal Proceedings advanced by the Ethicon GMs until further order and then reserve liberty for the stay to be lifted at a time when the Court makes directions in relation to dealing with individual issues in the Ethicon Class Action. At least theoretically, this might occur at a time prior to “declassing”, for example, by sending out a group or sub-group of individual claims to a referee for the purposes of inquiry and report on identified issues. During the course of argument this proposed course did not engender any sustained opposition and became relatively uncontroversial.[9]
[7][2020] FCA 616 (‘West’).
[8]Gill v Ethicon Sarl & Ors (No 5) [2019] FCA 1905 (‘Gill’).
[9]West (n 7).
While each application for a stay is to be determined on its own circumstances, the analysis undertaken by Lee J is informative. The conclusion I have reached is consistent with his Honour’s analysis.
The circumstances in West direct attention to an issue that the parties in the Rooke proceeding will need to consider. In that proceeding, the AFL denies that the duty it owed players was non-delegable or that it was analogous to the duty owed by an employer to an employee. The AFL pleads that it was the AFL clubs, as employers of the players, that had responsibility for any relevant ‘system of work’, and that the clubs were responsible for the health and wellbeing of players during matches and training. Because the AFL clubs, or possibly a representative club, are not named as defendants in the Rooke proceeding ‘the entire justiciable controversy between the claimants and all those said to be responsible for the wrongs that they allege they have suffered’[10] will not, as things stand, be determined concurrently in that proceeding. That is an issue that will need to be considered by both parties in the Rooke proceeding.
[10]Ibid [36].
I accept Picken’s submission that a stay order should not prohibit some interlocutory steps being taken in this proceeding that will not be materially affected by determination of the common questions in the Rooke proceeding. The orders I will make will provide for discovery of documents relevant to the particular circumstances of Picken’s claim, and for the exchange of expert evidence relevant to the assessment of damages. These orders will ameliorate any prejudice to Picken from a stay of the proceeding. Subject to these matters, a stay of this proceeding will be ordered. I will hear from the parties as to the form of the order that is made.
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