Zantuck v Richmond Football Club

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S ECI 2021 01223

BETWEEN:

TY ZANTUCK	Plaintiff
v
RICHMOND FOOTBALL CLUB LIMITED (ACN 005 563 011) & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	31 March 2022 - 1 April 2022
DATE OF RULING:	19 July 2022
CASE MAY BE CITED AS:	Zantuck v Richmond Football Club & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 405

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LIMITATION OF ACTIONS – Personal injuries – Application for extension of time during which action may be brought – Delay – Delay between accrual of cause of action and application – Reasons for delay – Prejudice – Whether extension of time should be granted – Limitation of Actions Act 1958 (Vic) ss 27D, 27F, 27K, 27L – Azzam v Commonwealth [2019] VSC 484 - Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L W L Armstrong QC with Mr Hamilton	Griffins Lawyers
For the First Defendant	Mr P H Solomon QC with Mr B Jellis	Lander & Rogers
For the Second Defendant	Mr J Hooper	Perry Maddocks Trollope Lawyers
For the Third Defendant	Mr A N Murdoch QC with Mr M J Hooper	Ball & Partners

TABLE OF CONTENTS

Evidence............................................................................................................................................... 2

Background......................................................................................................................................... 3

Back injury claims......................................................................................................................... 3
Training camp...................................................................................................................... 3
Treatment.............................................................................................................................. 5

Concussion claim.......................................................................................................................... 6

Mr Zantuck’s submissions............................................................................................................... 6

RFC’s submissions........................................................................................................................... 13

Dr Bradshaw’s submissions........................................................................................................... 15

Dr Hickey’s submissions................................................................................................................ 20

Mr Zantuck’s evidence.................................................................................................................... 22

Dr Bradshaw’s evidence................................................................................................................. 29

Dr Hickey’s evidence...................................................................................................................... 32

Mr Pilimon’s evidence.................................................................................................................... 36

Applicable principles...................................................................................................................... 36

Analysis.............................................................................................................................................. 38

Conclusion......................................................................................................................................... 49

HER HONOUR:

The plaintiff, Ty Zantuck, was a professional footballer employed by Richmond Football Club. In this proceeding, he makes personal injury claims against Richmond Football Club and two of its doctors: Christopher Bradshaw and Gregory Hickey.

Mr Zantuck’s claims are made significantly out of time. The issue for determination in this ruling is whether time should be extended pursuant to s 23K of the Limitations of Actions Act 1958 (‘LAA’). I find that time should be extended.

Evidence

Mr Zantuck, relies on the following:

(a) his own affidavit, sworn on 25 February 2022 (‘Zantuck affidavit’);

(b) affidavit of Antony Pilimon, a former sports trainer at the Richmond Football Club, sworn on 24 March 2022 (‘Pilimon affidavit’); and

(c) affidavits of his solicitors, Laura Dry sworn on 29 March 2022 (‘Dry affidavit’) and Gregory Michael Griffin sworn on 1 April 2022 (‘Griffin affidavit’).

Mr Zantuck sought to rely on an affidavit of Katherine Ka-Lin Barreto, solicitor, sworn on 29 March 2022. I ruled that it was inadmissible.[1] Mr Zantuck was given leave to file an affidavit deposing to the existence of video evidence of him playing football for the first defendant. Consequently, the Griffin affidavit was filed.
[1]Order of Ierodiaconou AsJ in Zantuck v Richmond Football Club Limited & Ors (Supreme Court of Victoria, S ECI 2021 01223, 31 March 2022).

The first defendant, Richmond Football Club (‘RFC’), relies on the affidavit of its in‑house legal counsel, Hannah Hopper, affirmed on 8 December 2021 (‘Hopper affidavit’). RFC filed written submissions on 21 December 2021.

The second defendant, Dr Hickey, relies on his affidavit affirmed on 21 March 2022 (‘Dr Hickey affidavit’).

The third defendant, Dr Bradshaw, relies on his own affidavits, affirmed on 1 December 2021 (‘first Dr Bradshaw affidavit’) and 18 February 2022 (‘second Dr Bradshaw affidavit’).

Background

From December 1999 to October 2004, Mr Zantuck was employed by RFC, as an Australian Football League (‘AFL’) player.[2] He played for the senior team pursuant to a contract of employment. Mr Zantuck played 22 games in 2002, 22 games in 2003, and 14 games in 2004 for RFC.[3]
[2]Zantuck affidavit, [1].
[3]Hooper affidavit, [9].

At the end of 2004, Mr Zantuck was traded from RFC to Essendon Football Club. He played nine games for Essendon Football Club in early 2005.[4] He ceased work as an AFL player at the end of 2005.[5]
[4]Zantuck affidavit, [48].
[5]Ibid, [49].

On 21 April 2021, Mr Zantuck filed a writ and statement of claim in this proceeding. Mr Zantuck made claims relating to his injury of his back. The claims are made against all defendants.[6] On 11 March 2022, Mr Zantuck filed an amended statement of claim (‘ASOC’). It expands his claim to include a brain injury arising from concussions.
[6]On 6 December 2021, the claim against the fourth defendant, Dr Vincent Healy, was discontinued.

Broadly, there are three aspects to the ASOC: Mr Zantuck’s back injury, the management of his back injury, and the management of concussion injuries. I will briefly outline the claims. The claims are contested by the defendants.

Back injury claims
Training camp

Mr Zantuck alleges the following.

In December 2001 or January 2002, he was directed by RFC to attend a seven day pre‑season training camp that took place in the Grampians, Victoria (‘training camp’).[7] As part of the training camp, players were required to carry heavy backpacks on lengthy hikes under the direction of coaches and physical trainers engaged by RFC.[8]
[7]ASOC, [8].
[8]Ibid, [8.3].

Prior to the training camp, he complained to RFC, and thereafter to Dr Bradshaw, of soreness and increasing levels of lower back pain.[9] Dr Bradshaw diagnosed him with two stress fractures in his lower back as a result of RFC’s weight-training and running program.
[9]Ibid, [9.1].

Mr Zantuck requested Dr Bradshaw grant him a dispensation from training camp attendance by reason of the stress fractures in his lower back. The dispensation was not granted.[10]
[10]Ibid, [9.5]–[10].

Without medical supervision, RFC training camp staff directed that Mr Zantuck carry a 30 kilogram backpack on daily hikes.[11] During the training camp, he reported to RFC staff that he was suffering from lower back pain and asked for a dispensation from the training. The dispensation was refused, save that he was permitted to change to a 15‑20 kilogram backpack.[12]
[11]Ibid, [15].
[12]Ibid, [16].

During the course of the training camp, he suffered from increased and ongoing pain in his lower back, notwithstanding the reduced backpack load.[13]
[13]Ibid, [17].

In early 2002, after the training camp, he attended RFC’s first official pre‑season training session in Sandringham. He suffered back spasms and pain during the training session.[14] He then underwent a magnetic response imaging (‘MRI’) scan. Dr Bradshaw subsequently diagnosed him with a “slipped disc at lumbar segment 4 or 5”.[15]
[14]Ibid, [18.1]-[18.2].
[15]Ibid, [18.3]-[18.5].

Dr Bradshaw’s refusal to grant a dispensation, and/or RFC’s failure to medically supervise the training camp, caused an aggravation of the stress fractures, and the slipped disc and further back injury.[16]
[16]Ibid, [19].

Treatment

Mr Zantuck alleges the following.

After the diagnosis of a slipped disc, he diligently followed the directions of RFC medical staff and returned to RFC’s senior team for the season‑opening match in March 2002.[17]
[17]Ibid, [26].

In April 2002, after playing in the first two matches of the 2002 season, he complained of pain in his lower back to Dr Bradshaw. Dr Bradshaw treated him with injections of local anaesthetic to his lumbar spine.[18]
[18]Ibid, [27].

In June 2002, Mr Zantuck advised Dr Bradshaw that the injections were no longer significantly numbing the pain in his lower back. He was instructed by Dr Bradshaw to attend Victoria House, a medical clinic popular with AFL clubs.[19] At Victoria House, Dr Healy administered an epidural injection to him.[20]
[19]Ibid, [28].
[20]Ibid, [31].

In the period from June 2002 - August 2004, Mr Zantuck continued to suffer severe back pain.[21] From June 2002 - January 2004, he consulted with Dr Bradshaw and was administered further cortisone or epidural injections, or referred to Dr Healy at Victoria House for the same.[22] From January 2004 - August 2004, Mr Zantuck consulted with Dr Hickey, who followed the same treatment approach as Dr Bradshaw.
[21]Ibid, [32.1], [33.1].
[22]Ibid, [32.2].

RFC, Dr Bradshaw, and Dr Hickey each filed a defence to Mr Zantuck’s first statement of claim. By these defences, it is evident that the defendants contest Mr Zantuck’s back injury and treatment claims. The defendants have not yet filed defences to the ASOC.

Concussion claim

Mr Zantuck alleges the following.

Due to RFC’s negligence, he has a brain injury. RFC owed the players a duty of care to manage concussions by: properly monitoring the players for signs of ‘head knocks’, requiring examination of players who were subject to head knocks, and properly treating players with concussion symptoms by requiring the player to stop playing and not resume normal duties unless and until certified by an appropriately qualified medical practitioner as fit to resume normal duties.[23] RFC had “no or no adequate system” for ensuring these steps were taken.[24] Therefore, RFC breached its duty of care to manage concussions.[25]
[23]Ibid, [50]-[55].
[24]Ibid, [56].
[25]Ibid, [57].

By summons filed on 20 September 2021, Mr Zantuck seeks an extension of time pursuant to ss 27K and 27L of the LAA. All parties proceeded on the basis that the application for an extension is in respect of both the back injury and concussion claims.

Mr Zantuck’s submissions

In all the circumstances of this case, it is just and reasonable to extend the limitation period.

Time within which the cause of action was discoverable

As to his back injury, Mr Zantuck experienced severe pain. However, his cause of action was not reasonably discoverable by him. The evidence shows his injury was discoverable between 2000 to 2004. Mr Zantuck’s personal view was subsequently that RFC had done something wrong, but he was constrained by the circumstances in which he found himself.

The concussion claim was not discoverable until about 2021.

Length of, and reasons for, the plaintiff’s delay
Back injury claims

In 2006 or 2007, Mr Zantuck sought to gain access to his medical records held by RFC via a text message to Dr Hickey, RFC’s head doctor. That request was ignored.[26] Mr Zantuck later approached the AFL Players’ Association (‘AFLPA’). He was advised to the effect that he had no chance of making a successful claim against the AFL or RFC for compensation for his back injury.[27] It is not suggested that Mr Zantuck received anything in the nature of legal advice from the AFLPA. He applied for benefits under a benevolent scheme.
[26]Zantuck affidavit, [52], [78].
[27]Ibid, [53].

In 2011, there was a change in Mr Zantuck’s circumstances. Despite his trauma and the medication he was taking, he was looking down the barrel of his first major operation, and he went to see solicitors.

In 2012, Mr Zantuck met with solicitors from Slater & Gordon’s personal injury team. He spoke of his back injury and RFC’s prescribed treatment. However, he was advised to the effect that there was nothing the solicitors could do to assist him because no‑one had ever successfully sued the AFL and its clubs.[28] Having sought and received professional legal advice, Mr Zantuck cannot now be criticised for not taking the matter further at that time.
[28]Ibid, [56].

In the period from 2012 to 2017, he pursued other avenues that reasonably seemed to be the ones available to him, namely correspondence through Mr Peter Jess, an AFL player agent, to the AFLPA. As a result of further operations in 2017, and at the urging of Mr Jess, he went to see his current solicitors. In those circumstances, there was no unreasonable delay.

Concussion claim

There is no relevant delay by Mr Zantuck in respect of the concussion claim. This type of claim does not manifest until many years after the person has suffered an injury that leads to dislocation of brain tissue.

In 2021, Mr Zantuck’s solicitors fortuitously uncovered evidence of his concussions in the form of video footage on open source websites. This led to his referral to medical specialists. Prior to that, in February 2018, he had been tested by neuroscientist Dr Alan Pearce. At that time, Dr Pearce’s opinion was that the tests revealed “nothing of concern”.[29]
[29]Exhibit ‘TZ28’ to the Zantuck affidavit. See also Dr Pearce’s report for evidence about concussion and traumatic encephalopathy syndrome.

Mr Zantuck only discovered the existence of his acquired brain injury following diagnosis, and receipt of expert reports. That is, the reports of neurologist Dr Rowena Mobbs, on 15 September 2021 and 26 October 2021, and the report of neuropsychologist Assoc Prof Jennifer Batchelor dated 21 October 2021.[30] Assoc Prof Batchelor identified the existence of criteria for suspected traumatic encephalopathy syndrome (‘TES’) and evidence of acquired cognitive impairment. TES is the ‘in life’ correlate of chronic traumatic encephalopathy (‘CTE’). The expert scientific evidence is that detectable symptoms generally only emerge later in a person’s life when concussion injuries are sustained in their 20s.
[30]The reports are contained in Exhibit ‘TZ25’ and ‘TZ26’ to the Zantuck affidavit. See also the Zantuck affidavit, [97]-[99]. Evidence about TES is contained in Exhibit ‘TZ25’ (411, see especially 417) and ‘TZ26’ (see especially 437).

There was no challenge to evidence that Mr Zantuck’s TES was only able to be diagnosed in about 2021.

Whether plaintiff acted promptly and reasonably once defendants’ role known

In respect of the back injury claims, he acted promptly and reasonably in seeking advice from the AFLPA and Slater & Gordon. In respect of the concussion claim, Mr Zantuck effectively acted immediately upon diagnosis, as already discussed.

Steps taken by plaintiff to obtain medical, legal or other advice

In respect of the back injury claims, Mr Zantuck sought advice from Slater & Gordon and AFLPA in 2012.

In respect of the concussion claim, Mr Zantuck immediately sought expert medical advice in September/October 2021 after being informed by his solicitors that they had identified video evidence of him having sustained multiple concussions while playing football for RFC.

Prejudice
Back injury claims

There is no genuine impediment to the defendants receiving a fair trial of Mr Zantuck’s claims.

RFC’s doctors treated Mr Zantuck during his employment with RFC. They are defendants to the proceeding, and are able to give evidence at trial.

Dr Hickey appears to have some memory of the relevant period. He denies epidural injections were given to Mr Zantuck.

Dr Hickey has discovered Mr Zantuck’s medical records covering the whole of the 2004 AFL season.[31] It appears from a review of those medical records that no written evidence was kept in regards to the injections administered or prescribed to Mr Zantuck by RFC’s doctors. If medical records are missing, then it is not the fault of Mr Zantuck.
[31]Exhibit ‘TZ6’ to the Zantuck affidavit.

The affidavits made by Dr Bradshaw indicate that he has reasonably good recollection of events from the relevant period.[32] He clearly recalls his practice at the time. Dr Bradshaw clearly recollects the training camp and, in particular, expressed disgruntlement about the way it was set up.[33]
[32]First Bradshaw affidavit, see, eg, [33], [35], [42].
[33]Email from Dr Bradshaw to Mr Zantuck’s solicitors dated 17 May 2021 contained in Exhibit ‘TZ2’ to the Zantuck affidavit.

Mr Zantuck relies on circumstances that indicate the doctors engaged in a course of conduct over a period of time in respect of him. The simple fact they do not have notes of particular incidents is less important than in most cases, because what is alleged is a course of conduct that is likely to have represented a practice. Dr Bradshaw’s evidence is that his practice was that he did not usually take notes of injections he gave players. The absence of notes is a problem of his own making. Mr Zantuck’s evidence is that he never observed Dr Bradshaw or Dr Hickey taking notes of the treatment they gave to him. There is no reliable evidence that the notes ever existed. Subpoenas have not proved fruitful.

The evidence from Victoria House would only deal with offsite injections and Mr Zantuck’s evidence is that most of the injections were received onsite at RFC and not offsite. On 23 July 2004, there is evidence Mr Zantuck received one computed tomography (‘CT’) guided injection. Records show he played an AFL game two days later, namely on 25 July 2000. This is immediate corroboration.

The present limitations on documented records of his treatment become a less important consideration than in other types of cases. Here, the recordkeeping practices are patchy at best.

The allegations are in relation to a course of conduct, so it is likely that there will be other witnesses to the conduct. The defendants have not provided evidence of searches they might have made for other officials or players who might be witnesses. RFC has an entire suite of player support officials, both for training and game days. The fact they have not inquired about the recollection of people present then, such as players, runners, physiotherapists and coaches, is relevant to the assessment of whether the defendants have discharged the evidentiary burden of establishing prejudice. They fall well short of establishing prejudice.

Concussion claim

There is no relevant prejudice to the defendants in relation to the concussion claim.

The claims by the defendants in respect of missing records, and the nuanced treatment decisions made week to week have no material bearing on the concussion claim. Nor does the death of the former head coach and physiotherapist. Mr Zantuck’s case is primarily that RFC had no adequate policies or systems in place.[34] The likely utility of specialist witnesses is more probable. There is an alternative form of evidence available, being the television broadcast footage. The specialists can provide opinions based on that.
[34]Zantuck affidavit, [95]; ASOC, [56]-[57].

In reply to the defendants’ submission that what the camera sees is not what Dr Bradshaw sees: the concussion claim is presently against RFC. What Dr Bradshaw saw was not what club officials necessarily saw when reviewing the post-match video. The video evidence is of high quality because it is professionally shot footage of particular incidents that allegedly gave rise to injury. The September and October Mobbs Reports, and the Batchelor Report, illustrate that video footage can be used by experts to assess the kind of impact that suggests concussion and the kinds of physical responses from players. The medical experts refer to indicia of concussion. The footage is not limited to Mr Zantuck. The footage of RFC’s handling of other concussion incidents involving other players is likely to be relevant and highly probative of the absence of a good protocol for managing concussion. The video evidence will show that Mr Zantuck’s experience was similar to other players. It will show how RFC dealt with events that are assessed by medical experts as concussions. There is no evidence from any of the defendants that positively asserts or even suggests that RFC had a concussion management protocol in place at the time. There are just a couple of weekly notes.

In reply to the defendants’ submission that there is only reference to five incidents of concussion: at the time of preparing the ASOC, five matches where there were incidents of concussion are identified and described in Annexure A of the ASOC. Once there is review of all the video evidence of matches in which Mr Zantuck played, then further particulars will be provided.

Other circumstances
Back injury claims

Mr Zantuck’s back injury and the adverse consequences on his life are unquestionably very serious. He has effectively had his life crippled by his back injury. It has effectively prevented him from maintaining any form of stable employment, and has required him to undergo numerous and repeated medical procedures to treat his back pain. He has undergone procedures since the conclusion of his professional AFL career in 2005, and as recently as 2017.

The nature of the defendants’ alleged conduct is egregious. It is alleged there was repeated prescription or administration of injections into Mr Zantuck’s spine so as to allow him to play a high contact professional sport while ‘numb’. It is alleged that this occurred in circumstances where the defendants had knowledge of his underlying and unhealed stress fractures, and a slipped disc in his back.

Concussion claim

It is alleged that having Mr Zantuck subject to multiple concussions which led to traumatic brain injury is a very serious matter. The consequences of Mr Zantuck’s acquired brain injury seem very likely to become more pronounced over time.

RFC’s submissions

Mr Zantuck’s claim is very significantly out of time. It is about two decades after the relevant events. Both the three‑year limitation period in s 27(1)(b) of the LAA and the 12 year ‘long-stop limitation period’ in s 27D(1)(b) of the LAA have long since expired. The Court should dismiss Mr Zantuck’s application. It would not be just and reasonable to extend time. It would occasion significant unfairness. The two central issues are delay and prejudice.

Length of and reasons for the plaintiff’s delay

RFC does not criticise in any way the truthfulness of Mr Zantuck. His evidence is that he was told of the existence of limitation periods in the letter of advice from Slater & Gordon. He agreed, under cross-examination, that he broadly understood what the limitation period was and how it applied. He believed he had a claim from at least 2006.

Mr Zantuck provided an explanation for the delay, which should be treated as accurate and honest. That explanation is that he wished to bring proceedings after he received advice, but he could not afford it and there were no family resources available to assist. He commenced the case nine years later, in 2021, when family resources became available to assist him. For 15 years, Mr Zantuck deliberately did not commence proceedings although he thought he had a claim. Further, from 2012, at the latest, he did so after receiving legal advice that claims become statute‑barred. If the limitation period were extended here, the Court would be countenancing that proceedings may be commenced when plaintiffs have funding, and there is no requirement to do so before. Mr Zantuck has not provided a sufficient explanation so as to persuade the Court to extend time.

Prejudice

There is great prejudice to RFC, both specific and general. The prejudice arises out of the nature of the allegations made by Mr Zantuck in this proceeding. Those allegations seek to challenge specific decisions made about the medical and physical management of Mr Zantuck, about two decades ago, in the dynamic environment of professional sporting competition. The decisions about the proper management of Mr Zantuck would have necessarily been informed by many intangible and impressionistic things including how he presented, how he moved, what he said or did not say, his overall fitness, and clinical course. All of the details and nuances of the player’s presentation, from week to week, and time to time, have been irretrievably lost in the intervening two decades.

There are missing documents, including records of injuries at RFC.[35] It is RFC’s general practice not to require backups of data to be kept for a period longer than seven years.[36]
[35]Hopper affidavit, [11].
[36]Ibid, Documents [9].

There are missing witnesses including, the most critical witness for RFC, the head coach for all of the years that are the subject of the claim, Mr Danny Frawley. He died on 9 September 2019.[37] Mr Frawley would have given evidence on the management of Mr Zantuck and his knowledge of any injury sustained or carried by Mr Zantuck at the relevant time.
[37]Ibid, Prejudice [2].

Mr Ian Macindoe was a physiotherapist at RFC through the relevant period. He had particular expertise in the management of back injury issues. He was a prolific notetaker, however his notes cannot be located. He died in July 2021.[38] He would have been a key witness of the allegations made by Mr Zantuck about the presentation of his alleged back injury from time to time.
[38]Ibid, Prejudice [7(b)].

RFC engaged and relied on registered medical practitioners for diagnosis, treatment, and medical management of any physical injury to its players.[39] They were Dr Bradshaw, until about January 2004, and Dr Hickey thereafter.[40] They were present at all games and at training.[41] Mr Zantuck alleges that RFC is vicariously liable and responsible for the judgments of those practitioners. Any prejudice identified by those practitioners applies with the same force to RFC. RFC is entirely dependent on the practitioners’ recollections and records to meet the case.[42] RFC relies on the prejudice identified by Dr Bradshaw. The recollections of both Dr Bradshaw and Dr Hickey are that they never gave epidural injections to Mr Zantuck.
[39]Ibid, [12], Prejudice [2].
[40]Ibid, [12].
[41]Ibid, [13].
[42]Ibid, Prejudice [3].

Mr Zantuck’s case is discordant with the limited records available. The limited medical records available do not support his claim that he suffered chronic back pain from 2002 and required repeated injections to play. Those records are consistent with only one CT-guided epidural injection in July 2004, as documented in RFC and Victoria House records. There appears to be no basis for the assertion that he ever received an injection in his back at RFC, let alone dozens of them. There is no basis in such limited records that are now available for the assertion that he was ever diagnosed with concussion while playing for RFC. Moreover, it is standard practice that a player is not traded without a medical assessment occurring.[43] Mr Zantuck’s career playing for RFC ended when he was traded to Essendon Football Club. Presumably both Mr Zantuck and that club were of the opinion he was fit to be an AFL player. Relevant documents and recollections from Essendon Football Club about his presentation would have been objective evidence to contest the claims made here. Essendon Football Club was subpoenaed, however confirmed it has no documents. Its doctor at the relevant time, namely Dr Bruce Reid, is deceased.[44]
[43]Ibid, [10].
[44]Ibid, Prejudice [7(c)].

Dr Bradshaw’s submissions

Dr Bradshaw adopts the submissions of RFC, save for where otherwise indicated.

Mr Zantuck has not satisfied the burden of showing it is just and reasonable to extend the limitation period. The delay is at least 18 years and, for some events, more than 20 years. The extension of time should be refused and the proceeding be dismissed.

Length of, and reasons for, the plaintiff’s delay

Mr Zantuck has not provided any adequate explanation for his delay in commencing this proceeding.

It is clear from Mr Zantuck’s evidence that by mid-2005 he knew more than enough to take action against RFC and Dr Bradshaw. His back injury was sufficiently serious to prevent him from playing: he could not maintain a career with Essendon Football Club. Subsequently, he attributes blame on the current defendants.

Regard must be had to the date of discoverability in deciding whether to extend time. This is relevant to the question of delay.

Mr Zantuck’s evidence is quite clear that his back was enough of a problem from 2005 onwards to justify taking legal action. However, he took no action of any significance for nearly seven years after the alleged injuries, namely from 2005 to 2012. The only conceivable act he undertook was an alleged text message to Dr Hickey. Mr Zantuck proffered no explanation of substance. He says that he was in constant severe pain, but he does not say it stopped him from commencing legal proceedings. He says that at times he was affected by medication, but does not say it prevented him from undertaking investigations or consulting a lawyer. Records now indicate that it was not until 2012 that he consulted Slater & Gordon. Records now evidence that it was not until 2017 that he contacted AFLPA.

As discussed further below, Mr Zantuck’s evidence is challenged as being generally unreliable.

The Slater & Gordon advice did not say that an AFL club is somehow immune from legal action. That is not part of the advice. The advice was that the claimant was likely to fail on its merits. Also, by 2012, the limitations period was already potentially a problem.

There was no change of circumstances that pushed Mr Zantuck towards legal action, such as a deterioration in his physical condition. The surgery on his back in 2011 does not amount to a changed circumstance. The evidence of further treatment in 2017 does not reflect a worsening of his condition, but rather the development of the back situation without being a deterioration. Mr Zantuck does not say things dramatically worsened in 2017. His case in 2018 is no different to that in 2005.

Mr Zantuck relies upon an email to his solicitors from Dr Bradshaw dated 17 May 2021 regarding the training camp.[45] That email must be read in the context: proceedings had already been issued so what Dr Bradshaw said in the email is irrelevant.
[45]Email from Dr Bradshaw to Mr Zantuck’s solicitors dated 17 May 2021 contained in Exhibit ‘TZ2’ to the Zantuck affidavit.

Prejudice

The length of the delay is inordinate, and that in itself is evidence of prejudice.

There is presumptive prejudice because the allegations are not confined. The allegations concern a series of incidents over a period of two to three years. The allegations refer to the administration of at least 30 local anaesthetic injections and 25 epidural injections, and a referral of as many as 10 CT-guided injections. This is a situation where perhaps the evidence lost cannot be identified. The passage of time is likely to have a real impact on evidence.

The question is whether it is possible for Dr Bradshaw to answer the allegations, given they relate to events from 20 years ago and are made in circumstances where Mr Zantuck’s evidence has changed.

In addition to general prejudice, there is specific prejudice.

There is unavailability of witnesses due to their death: Mr Frawley, Mr Macindoe, and Dr Reid. Mr Zantuck’s evidence is that he saw Mr Macindoe, RFC’s senior physiotherapist, weekly. It is likely that Mr Macindoe made notes and attended the weekly meetings, described by Dr Bradshaw, that touched upon the injury status of each player. Dr Bradshaw’s evidence is that he worked closely with Mr Macindoe and they effectively worked as a team at RFC. Mr Zantuck’s evidence is that he had a close relationship with Mr Frawley. Mr Frawley’s evidence would likely have been well‑informed about the extent of Mr Zantuck’s injuries. According to Mr Zantuck, Dr Reid arranged a pre-season operation in 2005. There is an absence of any documents from Essendon Football Club regarding Mr Zantuck. It is fanciful to suggest that alternative witnesses can plug the gaps arising from the deaths of these important witnesses. Moreover, the alternative witnesses, being professional witnesses, would likely be dependent on medical records given the passage of time. RFC says those records do not exist. Even Mr Zantuck agrees that the weekly notes are not medical records. They are updates rather than a full medical explanation.

There is a loss of medical records and related documents that would have been highly probative in the claims made by Mr Zantuck. Dr Bradshaw practiced as an independent contractor (for Olympic Park Sports Medicine Centre) at RFC. He also had consulting rooms at Olympic Park Sports Medicine Centre. It is the evidence of both Mr Zantuck and Dr Bradshaw that players were treated at his consulting rooms, and not at RFC. If Mr Zantuck was treated by him at his consulting rooms, he would have made a note in the normal way as a medical practitioner would seeing a patient, and they would have been available from Olympic Park Sports Medicine Centre. Those records are no longer available. The documents created by Dr Bradshaw at the time of the alleged events are no longer available. There are some weekly notes in evidence, but not the notes that he wrote by hand at the time. Those notes were kept in a filing cabinet at RFC.

The referrals to radiology by Dr Bradshaw and others are no longer available. There is only a small number of radiology examination records that investigations have produced. The evidence produced from the 2001 weekly notes references a disc injury sustained by Mr Zantuck in 2001. The implication is that a CT scan or MRI was carried out to diagnose this. However, that study is not available. It must be assumed to be lost or destroyed. There is no reference to it in the records produced. Those records would be relevant because they would have shown what was investigated at the time and the outcome of those investigations. Those records are important for Dr Bradshaw to be able to defend himself.

There is clearly only one record of a CT-guided injection, namely that given in July 2004 by Dr Healy. If Mr Zantuck is right in alleging there were more injections, then the records of those have been lost. It is not Dr Bradshaw who has personally destroyed or lost any record. He retained on his computer the unadorned copy of the weekly notes, and otherwise left records with his employer. The practical reality is that documents are not in existence. Adequate inquiries have been made to the holders of documents. Subpoenas were issued. This is not a situation where other people could have been subpoenaed for relevant records.

The nature and extent of Mr Zantuck’s alleged loss regarding his concussion and back injury claims are both contested. The causation of the back injury is in issue. The evidence is that Mr Zantuck had a disc injury of some sort as early as 2001. However, in 2017 the treatment seems to be addressing pain in the cervical and thoracic spine, rather than lumbar spine.

Mr Zantuck’s concussion claim is only against RFC. However, RFC have foreshadowed contribution proceedings against Dr Bradshaw, should the extension of time be given. Dr Bradshaw’s evidence is that he has no memory of any head injury sustained by Mr Zantuck at the relevant time. His evidence is that if Mr Zantuck were found to have a concussion injury, it is likely to have been recorded in the weekly notes or a medical file, or both. The first date that Mr Zantuck says he received a head knock is on 24 May 2001. There are weekly notes for that period exhibited to his affidavit. There is no mention of a head injury of any kind. There are no weekly notes available for the alleged following four episodes of concussion.

The video evidence of AFL matches cannot ever be determinative of the question of prejudice. Dr Bradshaw says he attended every match in person. Dr Bradshaw’s perception of the game is not that of the television camera. He would have moved between the oval and the changing rooms. The video available is only one piece of evidence relevant to the case, not the whole case. It does not provide a complete answer to the question of prejudice.

There is no real cure for the prejudice, which will substantially affect Dr Bradshaw’s defence process.

Dr Hickey’s submissions

It would not be just and reasonable to extend the limitation period.

Length of and reasons for the plaintiff’s delay

Any cause of action was accrued in 2004, and the delay is therefore 17 years. The delay is inordinate. The submissions of the other defendants are adopted regarding the issue of delay. There is no sufficient explanation for Mr Zantuck’s very long delay in commencing proceedings. The combined circumstances weight significantly against granting an extension of time.

Prejudice

Dr Hickey will be unfairly prejudiced if he has to defend this proceeding.

Inordinate delay may itself be taken as evidence of prejudice. The function of time affects the quality of evidence from all parties, not just a defendant. It is a salient factor informing the Court’s discretion as to whether to extend time. Neither side might adequately know or recall all the events - but it would be Dr Hickey who is left in a position of defending a claim brought on evidence about which he cannot give adequate instructions. Dr Bradshaw’s submissions on prejudice are adopted insofar as they are relevant to Dr Hickey.

There is specific prejudice to Dr Hickey. He has no independent recollection about particular events and treatments from the 2004 season. He has deposed that he does not recall the circumstances surrounding entries in the weekly notes, including a conversation with Mr Zantuck, because the events were 18 years ago. The best that Dr Hickey can do is speculate what he would have done, bearing in mind his practices at the time.

Relevant documents are no longer available, having been lost or destroyed.

Game day notes prepared by Dr Hickey of Round 16, a game between RFC and St Kilda Football Club, are available. The records relate to the administration of corticosteroid and painkilling injections. This was the first entry into the weekly notes for 2004 regarding a complaint of back pain from Mr Zantuck. Mr Zantuck’s complaint relates to the management of an injury from week to week during training and matches. His allegation is one of a continuous course of severe back pain. The way he presented and was allegedly treated from January to July 2004, from week to week, will be an issue at trial. There are many incidents relevant to the allegations. This gives rise to two specific issues of prejudice. Firstly, there are no notes of events that occurred approximately 18 years ago, and Mr Zantuck has revealed himself as having an unreliable memory. This is not to criticise him rather to reflect the passage of time. Secondly, two key witnesses are deceased in relation to that period of time. The Court does not know, and cannot know, whether they had independent recollections regarding the treatment of Mr Zantuck and advice given to him. This is particularly an issue in circumstances where there are no weekly notes entries recording a back complaint from Mr Zantuck in the January to July 2004 period.

The second relevant period of time is from 17 July 2004 until when Mr Zantuck finished his time as a player at RFC, namely October 2004. The 23 July 2004 document from Victoria House records that Mr Zantuck had a CT-guided injection to his facet joints. There is likely to be significant prejudice to Dr Hickey compounding his lack of recollection regarding the period of 17 July 2004 to October 2004 for two reasons. Firstly, the detail of the weekly notes is scant. It does not bear upon what happened week to week regarding Mr Zantuck’s treatment and presentation. This is not to criticise the notes, as they were taken in a fast-paced sporting environment where Dr Hickey was attending to the needs of several players at any one time. Mr Zantuck’s evidence is that Dr Bradshaw was under pressure, attending to players who were trying to get out to training. It can be inferred from this that Dr Hickey operated in a similar dynamic football environment in 2004. Dr Hickey deposes that there were 40 players on RFC’s list at that time. The notes do not record details of the conversations between doctor and patient. Secondly, as already described, two witnesses are deceased.

Mr Zantuck’s evidence is that he allegedly sent a text message to Dr Hickey. Dr Hickey’s evidence is that he does not believe that he received such a text. His evidence is that if he had received such a text, he would have acted upon it. There is no record of the alleged text message. There is no evidence of any follow-up message or telephone call. It would have been reasonable for Mr Zantuck to have promptly contacted someone else at RFC. Mr Zantuck’s evidence that he sent the text message to Dr Hickey about 15 years ago is unreliable. No weight should be given to it.

This is not a case where there is significant moral opprobrium attached to the negligent conduct allegedly engaged in by Dr Hickey. It is primarily a ‘failure to warn’ case. There are no allegations of deliberate or nefarious action on the part of Dr Hickey in treating Mr Zantuck’s back injury.

Mr Zantuck’s evidence

Mr Zantuck’s evidence was challenged as unreliable, both generally and in relation to certain matters. There was no challenge to his honesty.[46] Dr Bradshaw’s counsel submitted that Mr Zantuck gave evidence of:
[46]Transcript of Proceedings, Zantuck v Richmond Football Club & Ors (Supreme Court of Victoria, S ECI 2021 01223, Ierodiaconou AsJ, 31 March and 1 April 2022) 29-31 (‘Transcript’).

(a) different accounts of what happened to him in 2001-04. For example, the Slater & Gordon letter dated 8 February 2012 (‘Slater & Gordon 8 Feb 12 letter’) records his instructions that three or four injections were given over the entirety of his career at RFC, which is much less than the amount he now says. His explanation is that they have wrongly recorded what he said. There is an issue about the accuracy of Mr Zantuck’s memory;

(b) the lack of funding being the reason he took no action to commence proceedings. This evidence was given under cross-examination. There was no reference to this central issue in his lengthy affidavit;

(c) obtaining advice from Slater & Gordon in 2008-09. He proffered this as part of the explanation of the delay in commencing proceedings. This evidence was given in his affidavit. At the hearing, he gave evidence that the date is wrong. The Slater & Gordon documents evidence the contact being in 2012;

(d) contacting AFLPA in 2008-09. This evidence was given in his affidavit. At the hearing, he gave evidence that the date is wrong. His evidence now is that the contact was in 2012. The AFLPA documents evidence the contact in 2017; and[47]

(e) being advised by Slater & Gordon that there was nothing they could do to help him because no one had ever succeeded in successfully suing the AFL and its clubs. This evidence was given in his affidavit. The advice given in the Slater & Gordon 8 Feb 12 letter is that the claim is likely to fail on its merits. It does not state that it is particularly difficult to sue an AFL club. It is not any part of the advice that an AFL club is somehow immune from legal action. The Slater & Gordon 8 Feb 12 letter refers to a time limit issue, which was potentially already a problem.

[47]Tender of Evidence, Zantuck v Richmond Football Club & Ors (Supreme Court of Victoria, S ECI 2021 01223, Ierodiaconou AsJ, 1 April 2022) Third Defendant, Exhibit D7, application to AFLPA dated 10 June 2017, 4 (‘Exhibit D7’).

On the other hand, Mr Zantuck’s counsel made the following submissions.

(a) Mr Zantuck is a witness of impeccable honesty and candour, and made concessions appropriately. It was not put to him during cross-examination that he was being dishonest and this is not a submission that should be entertained in such circumstances.

(b) The only aspect in which his reliability is questioned relates to his recollection of the dates of his interactions with Slater & Gordon and his first approach to the AFLPA. With respect to his interactions with Slater & Gordon, in his affidavit, Mr Zantuck recalled it was 2008-09. Once the subpoenaed documents were returned, and he read them, he immediately corrected the date to 2012.

(c) Although Mr Zantuck has a good recollection of his AFL playing days, for some of the period afterwards, namely 2009-12, his memory is affected by the heavy medication that he was taking. A faulty memory of the period in which he was heavily medicated should not undermine his memory about his AFL playing days. Nothing in cross-examination suggested there was an inherent problem with the reliability of his memory in respect of the period which would be examined at trial, namely 2000-04. The weekly notes prepared by Dr Bradshaw and Dr Hickey show that Mr Zantuck’s memory of that period is demonstrably good.[48]
[48]See exhibits TZ4, TZ5 and TZ6 to the Zantuck affidavit.

(d) Mr Zantuck was challenged as to the reliability of his memory regarding the advice given by Slater & Gordon. He was not shaken remotely in the evidence as to what he had told them about injections. The fact that the Slater & Gordon 8 Feb 12 letter does not set everything out in detail is neither here nor there. It was a free consultation, with the letter sent afterwards. There is no tenable suggestion Slater & Gordon sought to give an exhaustive account of his evidence in their letter.

(e) Mr Zantuck was challenged regarding the document he had prepared for Mr Jess. He explained he had prepared the document in 10 minutes, to sketch out a chronology.

(f) As to the correspondence from Mr Zantuck’s solicitors referring only to epidurals at Victoria House:[49] it was not suggested to Mr Zantuck that he reviewed the letter before it was sent.

[49]Letter from Griffins Lawyers to Victoria House Medical Imaging dated 21 September 2018 contained in Exhibit TZ16 to the Zantuck affidavit.

I find Mr Zantuck to be an honest and credible witness. I accept that, due to his medication, some of his memory is blurry between 2009-12.[50] As Mr Zantuck says, his memory is unreliable for those couple of years.[51]
[50]Transcript, 53.
[51]Ibid, 54.

I accept Mr Zantuck’s evidence that his “memory was fine when [he] was at Richmond”.[52] His evidence is that his memory from 2000–04 is crystal clear.[53] He started to lose a little bit of memory from 2009 onwards.[54]
[52]Ibid, 55.
[53]Ibid.
[54]Ibid.

I accept his evidence as to the explanation for delay being that he did not have the funds to pursue legal proceedings and, once his current solicitors were retained, further time was needed to investigate his claim, and particularly, to obtain medical material.

Mr Zantuck was forthright and explained differences between his affidavit and oral evidence. His error with respect to the dates he obtained advice from Slater & Gordon and AFLPA was corrected during his examination: contact with Slater & Gordon was in 2012 and that there was an approach to AFLPA about the same time.[55] With respect to the Slater & Gordon consultation, he explained under cross-examination that he was unable to find the date for the actual meeting because he was unable to locate their letters. Also, he was medicated at that time and he “just get[s] times and dates mixed up in terms of those meetings and stuff”.[56] Mr Zantuck gave evidence that he had only recently seen the Slater & Gordon letters produced to the Court.[57] He could not recall seeing a letter from Slater & Gordon dated 25 January 2012 containing information about an upcoming appointment with Paul Henderson, principal lawyer, and Sasha Molinaro, managing clerk, on 7 February 2012.[58] As to the meeting dates with AFLPA, his evidence was that it was not until receiving subpoena material that he could find the actual dates.[59]
[55]Ibid, 32.
[56]Ibid, 33, 52.
[57]Ibid, 34.
[58]Exhibit D7, 31-32.
[59]Transcript, 54.

Dr Bradshaw caused a subpoena to be issued to AFLPA on 2 March 2022 for “all documents relating to [Mr] Zantuck and any proposed or actual claim by him against [RFC] or [AFL], including but not limited to any documents relating to meeting with an in-house lawyer of the AFLPA regarding the same.” AFLPA did not produce any documents regarding this, although it stated that there were privileged documents regarding advice it had received that it had not produced.[60]
[60]Exhibit D7, 1.

I do not draw the inference that Mr Zantuck’s evidence regarding his contact with AFLPA in 2012 is unreliable for the following reasons. In addition to Mr Zantuck’s own evidence, there is documentary evidence, produced in response to a subpoena to Slater & Gordon, that contact was made with AFLPA on his behalf in 2012. There is an undated email from Mr Henderson to Mr Bernie Shinners. [61] It refers to seeing Mr Zantuck that morning and therefore appears to have been sent on the same date that Mr Henderson met with Mr Zantuck. Incidentally, that email also refers to Mr Zantuck going to see someone at AFLPA in January 2012, but the person did not contact him or show up. In the Slater & Gordon 8 Feb 12 letter, Mr Henderson states that he has contacted Mr Shinners of AFLPA.[62] Further, that letter states that Mr Shinners would discuss the matter with Steve Alessio, and the latter would contact Mr Zantuck. In his 2017 application to AFLPA for financial assistance, Mr Zantuck refers to contacting AFLPA legal team to understand his legal rights on numerous occasions.[63]
[61]Ibid, 34.
[62]Ibid, 35-36.
[63]Ibid, 34.

Mr Zantuck’s affidavit did not address the lack of funding as a reason for delay. The affidavit should have addressed it. However, Mr Zantuck truthfully explained the lack of funding under cross-examination. This evidence regarding his desperate financial circumstances is consistent with his application to the AFLPA benevolent scheme dated 10 June 2017.[64]
[64]Ibid, 6.

In January 2001, Mr Zantuck was aware that he was suffering from a disc injury in his back.[65] His evidence is that he could “push through” and it was only from 2002 that he had severe back pain.[66] Mr Zantuck’s evidence is that he did not depose to the 2001 injury in his affidavit and he was cross-examined about this. I do not infer that Mr Zantuck’s memory is unreliable as a consequence of excluding reference to the 2001 injury in his affidavit. Mr Zantuck gave an explanation for excluding the reference to the 2001 injury: it was general soreness that could be managed with “massage and physio and stuff”, so he did not think it was important to address in his affidavit.[67] He recalls it as a bulging disc injury and not major or extreme when compared to his later back injury[68] Moreover, there is no lack of transparency regarding the 2001 injury. Mr Zantuck’s affidavit exhibits a weekly note for 21 January 2001 where it is noted ‘Back … disc’ and ‘ongoing physio/ hydrotherapy’ and prognosis as 6-8 weeks.[69] His evidence is that he developed severe back pain in about December 2001 or January 2002, that is, about two weeks before the training camp.[70]
[65]Transcript, 57.
[66]Ibid, 59.
[67]Ibid.
[68]Ibid, 58.
[69]Exhibit TZ4 to the Zantuck affidavit.
[70]Transcript, 65, 66.

Mr Zantuck was cross-examined about the various injections he says he was given, and the dates. There are differences between his evidence and the Slater & Gordon 8 Feb 12 letter recording his instructions. I decline to draw any inferences regarding these differences. These are issues to be explored at trial. I make no finding about them here. The same analysis applies to the timeline which Mr Zantuck prepared for Mr Jess.[71] His evidence is that he prepared the document in the middle of 2018 and typed it up in about 10 minutes as a rough guide, a brief outline, for Mr Jess.[72] The timeline reads as such. It is not detailed. It contains years, but no months or specific dates. It does not contain any names, save for two (Dr Bruce Reid and Steve Alessio, AFLPA). It contains no details of medical consultations, but is general in nature. For instance, it includes the note: ‘HAD OVER 15 SURGERIES / PROCEDURES TO MY BACK IN PAST 10 YEARS.”
[71]Tender of Evidence, Zantuck v Richmond Football Club & Ors (Supreme Court of Victoria, S ECI 2021 01223, Ierodiaconou AsJ, 31 March 2022) Third Defendant, Exhibit D1 (‘Exhibit D1’).
[72]Zantuck affidavit, [26]; Transcript, 76.

Mr Zantuck was also cross-examined about the differences between his evidence and a letter from his solicitors to Victoria House Medical Imaging dated 21 September 2018.[73] This letter must be read in context. It is a one‑and‑a‑half page request for medical records, enclosing a medical authority. There is one sentence in the letter on instructions regarding epidural injections. I decline to draw an inference that Mr Zantuck’s evidence is unreliable on the basis of that. The allegations concerning whether or not there were repeated epidural injections ought not be determined here.
[73]Letter from Griffins Lawyers to Victoria House Medical Imaging dated 21 September 2018 contained in Exhibit TZ16 to the Zantuck affidavit.

Doctors Hickey and Bradshaw gave evidence by affidavit. They were not cross‑examined. The key evidence given by them regarding this application follows.

Dr Bradshaw’s evidence

From 1992 to 2003, Dr Bradshaw was paid by Olympic Park Sports Medicine Centre to provide services as RFC’s doctor. In January 2004, he handed over his role as RFC doctor to Dr Hickey.

In the period of 2000-03, Dr Bradshaw worked closely with Mr Macindoe.

In the period of 2000-03, the reserve doctors were: Dr Tim Barbour until the end of the 2002 season and then Dr Greg Harris for the 2003 season. The reserve physiotherapist was Anthony Schache. He provided services from time to time.

As RFC’s doctor, Dr Bradshaw attended weekly meetings, training sessions (which were usually twice a week), and match days. He would treat RFC players as required at other times.

The purpose of the weekly meetings was to discuss the injury status of each player with others in RFC including Mr Macindoe, Mr Frawley, assistant coaches, and members of the fitness staff. Dr Bradshaw would bring printed copies of the weekly notes to distribute at the weekly meetings. The weekly notes named each player and their injuries or medical issues. Dr Bradshaw would then usually make handwritten notes on the printed copy. Mr Macindoe would do likewise on his copy. After the meeting, Dr Bradshaw would place his copy of the weekly notes in a filing cabinet at RFC head office. There was a folder for each player and they contained handwritten notes when the players were seen by the doctor, as well as some radiology reports and any specialist reports. Dr Bradshaw retained some electronic copies of the weekly notes on an old laptop for the dates between 20 November 2000 - 11 December 2002, but cannot locate any others. He has also contacted Olympic Park Sports Medicine Centre and has been informed they hold no medical records for Mr Zantuck. He does not know what happened to the documents in RFC’s filing cabinet.

Dr Bradshaw did not normally document minor matters at training sessions. If there was a specific injury, then he may have created a record and placed it in the medical file in RFC’s filing cabinet.

If Dr Bradshaw administered an injection at a training session, he did not always record it. If he did, the note would go onto the player’s medical file or onto the weekly notes. Dr Bradshaw cannot recall what notes he would have made if a player needed an injection on a game day “as it is too long ago”.[74] He believes it would have been recorded and placed on the player’s medical file at RFC “but [he] cannot now remember”.[75]
[74]First Bradshaw affidavit, [35].
[75]Ibid.

Dr Bradshaw deposes that he is “no longer able to remember to whom, when and how often [he] gave corticosteroid injections in 2001 to 2003, as this was 17 to 20 years ago”.[76] He deposes that he never gave an epidural injection to anyone, let alone Mr Zantuck. Dr Bradshaw deposes that he did not give injections so Mr Zantuck could play “numb”, as alleged. If a player had become numb after an injection, he would not have allowed them to play. If a player reported being sore or in pain, they would not have played. Dr Bradshaw could not compel a player to play a game, or declare him fit to play, in such circumstances.
[76]Ibid, [40].

Dr Bradshaw recalls giving one injection to Mr Zantuck in the medical room at RFC. He cannot remember anything about it, and does not recall giving any other injections to Mr Zantuck. A weekly note for 9 April 2001 refers to Mr Zantuck having a hip injury. It is possible the injection was a local anaesthetic for that injury, but Dr Bradshaw cannot recall. He denies giving Mr Zantuck repeated injections into his back.

Dr Bradshaw recalls that a member of the fitness staff at the training camp telephoned him and told him Mr Zantuck had a sore back. Dr Bradshaw does not remember any conversation with Mr Zantuck prior to the training camp.

Dr Bradshaw recalls diagnosing Mr Zantuck with a back injury. He believes this was a disc injury in early 2001, and that he had recovered by 2002. Dr Bradshaw does not have a memory of this. His belief is based on his review of the weekly notes and an email attachment from Mr Macindoe to him on 5 November 2002. The injury would not have been diagnosed without a CT scan or MRI. At the time, Dr Bradshaw’s usual practice was to refer patients to either East Melbourne Radiology or Victoria House for such scans.

Dr Bradshaw’s usual practice when referring a patient to a radiology provider was to handwrite a referral. He did not retain a copy of referrals.

Dr Bradshaw does not remember Mr Zantuck having back issues in 2002 or 2003. Dr Bradshaw does not recall Mr Zantuck having any chronic back pain during 2003. In November 2003, Dr Bradshaw attended a RFC training camp at Wilsons Promontory. He does not recall Mr Zantuck complaining of any back issues then.

Dr Bradshaw has “no recollection of Ty Zantuck sustaining any head injury or knock in a game or in training. Had he been found to have concussion it is likely that it would have been recorded in the weekly notes or his medical file or both”.[77]
[77]Ibid, [50].

Dr Bradshaw does not recall diagnosing Mr Zantuck with stress fractures. There are no scans available to him to verify that. If he did, it would have been recorded in the weekly notes. Dr Bradshaw does not believe Mr Zantuck ever had stress fractures.

Dr Bradshaw remembers an incident at Sandringham during a pre-season training session, which he thinks Mr Zantuck was involved in, but cannot recall if this was a back injury. Dr Bradshaw deposes that if Mr Zantuck had a problem with his back, then would have warranted investigation and he would have referred him for radiological examination.[78]
[78]Second Dr Bradshaw affidavit, [13].

Dr Bradshaw refers to Mr Zantuck’s allegation that he diagnosed him with a slipped disc. Dr Bradshaw deposes that he does not use the term ‘slipped disc’ to describe discal injuries as this is not the correct medical terminology. Dr Bradshaw says he would have used accurate medical terminology such as disc desiccation or disc protrusion, depending on the radiology.[79]
[79]Ibid, [15].

Based on his review of documents, Dr Bradshaw believes that there was a radiologist report concluding that Mr Zantuck had a past injury, namely a lumbar spine disc protrusion present in 2001. He deposes that as such, he would have told Mr Zantuck that he had a disc protrusion or disc bulge in 2001 and not, as he claims, that he had a slipped disc in early 2002. Dr Bradshaw does not believe the radiological report is available.

For completeness, I will refer to the dispute between the parties regarding the extent to which Dr Bradshaw made notes. It is unnecessary to resolve that here. Indeed, it could not be resolved fairly without giving Dr Bradshaw the opportunity to answer any such allegations. At any rate, the relevant issue here is the availability of medical records within the context of the broader issue of prejudice.

Dr Hickey’s evidence

Dr Hickey is the head doctor at RFC and has held that position since about January 2004. He took over the position from Dr Bradshaw. Dr Hickey oversees the diagnosis, treatment and management of any injuries, illnesses and related issues suffered by players. He attends all field training sessions during the week. He has attended all RFC matches since 2004. Since 2004, there have been approximately 40 players at any one time at RFC. He estimates that he has overseen or treated approximately 250 players.

Dr Hickey always kept notes detailing treatment plans, referrals and injuries reported by the players. His notes in 2004 included a weekly summary. This practice of weekly notes follows on from the practice maintained by Dr Bradshaw.

During 2004, Dr Hickey would meet with Mr Frawley, Mr Macindoe and other support staff to discuss each player’s injury status. The weekly notes were an aid for the meeting. The weekly notes have been discovered and are exhibited to Mr Zantuck’s affidavit. Mr Macindoe contributed to the weekly notes. Some of the notes contain Dr Hickey’s handwriting. As far as Dr Hickey is aware, all the typed notes would have been entered by Mr Macindoe.

Dr Hickey also prepared game day notes which have been discovered and are exhibited to Mr Zantuck’s affidavit. They are comprised of his notes relating to significant incidents during the game, and also notes following post-match discussions with each player. All players would attend a recovery session the day after each game. Dr Hickey attended those sessions to check players and assess them with regard to their injury status.

Dr Hickey does “not recall the circumstances surrounding the entries in the notes, including conversations with the plaintiff at the time, because the events in question were some 18 years ago. The best [he] can do is speculate as to what [he] would have done, bearing in [his] mind practices at the time.”[80]
[80]Hickey affidavit, [16].

Dr Hickey deposes that he never administered any epidural injections to Mr Zantuck. He has never administered an epidural injection to anybody. He considers an epidural injection to be a significant intervention. Dr Hickey referred people for epidural injections to be administered by other doctors on approximately 10 occasions. Such a referral would have been recorded in the notes because of the significance attributed to such injections. Notes were made of each injection given to the players in the 2004 season. These have been discovered and are exhibited to the Zantuck affidavit. The only injections that are recorded are cortisone injections (recorded as ‘CSI 2004’) and painkilling injections (under the heading “local anaesthetic pre-game”).

The only reference to Mr Zantuck in the notes is on 23 July 2004. Dr Hickey believes this is a reference to the injection administered by Dr Healy at Victoria House, rather than an injection that Dr Hickey administered. He deposes “I do not recall giving Ty Zantuck a cortisone injection or a pre-game local anaesthetic injection. I do not believe I gave him any such injection because, other than the reference to the injection on 23 July 2004, I did not record any such administrations in my notes.”[81]
[81]Ibid, [19].

Having reviewed his notes, Dr Hickey can see that he referred Mr Zantuck to Victoria House on one occasion. The referral was for a facet joint injection after a game on 17 July 2004, when Mr Zantuck must have complained about a sore back. Dr Hickey deposes: “I do not recall this event but surmise this from my notes”.[82] In his experience, such joint-related pain is not uncommon in football players. The facet joint is located outside the spinal cord. Cortisone injections are given to settle inflammation of the joint, thereby helping to relieve pain. Victoria House requires a new referral for each procedure and there is only one referral for Mr Zantuck. Dr Hickey deposes: “[t]here could not have been undocumented referrals to Victoria House in relation to his back”.[83]
[82]Ibid, [21].
[83]Ibid, [23].

The weekly note for the week starting 19 July 2004 records Mr Zantuck’s back injury and Dr Hickey has not entered anything in the prognosis. Mr Zantuck then had his facet joint injection at Victoria House on 23 July 2004, and played on 25 July 2004. There is no record of him suffering from any pain during that game. The record of the injection on 23 July 2004 in the weekly note contains a prognosis recorded by Dr Hickey as “ok”. Dr Hickey deposes: “I only record the prognosis as ’ok’ if an injury is under control and there is nothing of concern”.[84] The following weekly notes simply record that Mr Zantuck’s back injury was ”ok” and for it to continue to be monitored.
[84]Ibid, [24].

Dr Hickey deposes that he would not have committed Mr Zantuck to train or play games while feeling “numb”.

Dr Hickey deposes:

I have no recollection of ever receiving a text message from the plaintiff requesting access to any of the Club’s medical records. I have tried to search through my records to find this text message to no avail. I do not believe I received a text message from Mr Zantuck. If I had received that message, I would have taken steps to have the notes given to Mr Zantuck.[85]

[85]Ibid, [25].

None of the five alleged concussions occurred in the 2004 season. Dr Hickey deposes: “[t]he notes do not record that Mr Zantuck suffered from a concussion in 2004. I do not recall Mr Zantuck suffering any concussions in 2004”.[86] Dr Hickey deposes as to the weekly notes taken by him, with input from various other people including Mr Macindoe and Mr Frawley. Dr Hickey records instances of concussion suffered by players in the 2004 season and the management of the concussions. For example, one weekly note entry recorded that a player should be “check[ed] mon/tues [sic]”. Another note stated that a player should refrain from contact during training. There is not a single entry recording a concussion against Mr Zantuck’s name for the 2004 season or earlier in either the weekly notes or game day notes.
[86]Ibid, [28].

Dr Hickey deposes that he has no independent recollection of the circumstances surrounding each weekly note entry, given the significant passage of time. Although he can try to reconstruct what happened by reference to his notes and practices, his lack of independent recollection prejudices his ability to defend the claim.

Mr Pilimon’s evidence

Key parts of Mr Pilimon’s affidavit evidence follow. He was not cross-examined.

Mr Pilimon was a sports trainer at RFC from about February 2003, for approximately 12 months.

In addition to the head sports trainer at RFC, there was Noel Duncan, Head of Fitness and Nutrition. There were also two physiotherapists, the senior coach, various coach assistants and two runners.

Mr Pilimon remembers treating Mr Zantuck and other RFC players. Mr Pilimon did not keep any notes of the treatment he provided at RFC, and does not recall other trainers keeping notes either.[87]
[87]Pilimon affidavit, [10].

Applicable principles

Sections 27D, 27F, 27K and 27L of the LAA are relevant and follow.

27D Limitation period for personal injury actions— general
(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire—
(a) the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b) the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.
…

27F Date cause of action is discoverable
(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—
(a) the fact that the death or personal injury concerned has occurred;
(b) the fact that the death or personal injury was caused by the fault of the defendant;
(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a cause of action that arises under Part III of the Wrongs Act 1958 is not discoverable before the date of death of the deceased.

27K Extension of limitation periods
(1) A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.

(2) Subject to section 27L, the court—
(a) may hear any of the persons likely to be affected by the application as it sees fit; and
(b) may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.

(3) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.

27L Matters to be considered in determining applications for extension of limitation period
(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;

(e) the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

(2) To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a) whether the passage of time has prejudiced a fair trial of the claim; and

(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant's conduct.
…

The authorities are well-established. I gratefully adopt the summary given by Incerti J in Azzam v Commonwealth. [88]
[88][2019] VSC 484, [62]-[71] (‘Azzam’).

Analysis

Turning now to the s 27L factors.

Length of and reasons for plaintiff’s delay
Back injury claims

The training camp was in about January 2002. Mr Zantuck alleges he was injured, or suffered an aggravation injury, at that time. In 2005, he moved to Essendon Football Club and their doctor would not administer the injections that he had received at RFC. By the middle of 2005, he was worried that the injections he had received at RFC had ruined the muscles in his body. He thought that what had happened at RFC was not right. By the end of 2005, Mr Zantuck was aware that his back injury was a serious problem for him.[89] He drew a direct connection between the administration of the injections at RFC and his back injury.[90]
[89]Transcript, 46.
[90]Ibid, 47-48.

There is inordinate delay in commencing the back injury claim. Given Mr Zantuck’s evidence above, I am satisfied that, pursuant to s 27F of the LAA, his back injury was discoverable at the end of 2005. Pursuant to s27D(1)(a), time commenced to run, and he had three years to bring his claim.[91] Time therefore expired at the end of 2008. He commenced this proceeding approximately 12.5 years’ later, in April 2021.
[91]Pursuant to s 27D(1), the earlier of the dates in (a) and (b) apply.

After Mr Zantuck ceased with Essendon Football Club, he attempted, unsuccessfully, to undertake other work. Save for a short period of time, Mr Zantuck has been badly affected by pain since he stopped playing AFL football.[92] He was heavily medicated between 2009-12.[93]
[92]Transcript, 55.
[93]Ibid, 53.

Mr Zantuck’s evidence was that he was advised by Slater & Gordon that the firm would not commence action against the AFL or any AFL clubs.[94] He says that Slater & Gordon advised it was “too hard, too lengthy and too expensive to take up a case against the AFL”.[95] After that meeting, he felt there was “really no point in going forward with Slater & Gordon” and went to the AFLPA.[96] The Slater & Gordon 8 Feb 12 letter, from solicitor Mr Henderson, stated:

As discussed with you and your parents it is my view that you do not have any claim against the Clubs or the fitness staff. Unfortunately sports persons are not covered by worker’s compensation provision’s such as Workcover so it is not possible to obtain compensation payments based on the fact that you suffered an injury during the course of your employment.
Nor on the description of your injury is there any substantive evidence that is likely to prove that the Clubs or fitness staff failed to exercise reasonable care in their treatment of you. In addition it would be difficult to establish the cause of your injury as being the responsibility of any particular club .i.e. Richmond. Your injury arises as a result of playing over a 10 year period which has aggravated your condition.
The possibility of bring a claim against one of your fitness advisers on the basis that in 2003-4 they could or should have warned you that there was a risk of injury should you continue to play is problematic as you are unlikely to prove that had you or a reasonable person in your position been warned in 2003-4 of the relevant risks, you or a reasonable person would have elected not to continue playing football. This assumes that a fitness advisor would have been in a position to give you such advice in 2003-4 when you suffered stress fractures to the vertebrae.
It is my view that any claim brought by you is likely to fail and I would not recommend that you take the matter any further.[97]

[94]Ibid, 38.

[95]Ibid, 39, 42.

[96]Ibid, 39.

[97]Exhibit D7, 35-36.

The Slater & Gordon 8 Feb 12 letter concludes: “I regret that I am unable to assist you further.”

I reject the submission that Mr Zantuck deliberately allowed time to expire. There is no evidence he was ever informed of the expiry date. Mr Zantuck’s evidence is that he was “sort of aware” that there were limitation periods, and they were discussed at the meeting with Slater & Gordon.[98] The Slater & Gordon 8 Feb 12 letter refers to limitation periods generally, and makes reference to legislation. However, it does not contain any specific limitation period expiry date.[99]
[98]Transcript, 39-40.
[99]I make no findings about the correctness of the advice given Mr Henderson, Ms Molinaro and Slater & Gordon were not on notice of that issue and did not appear.

Mr Zantuck discussed the limitations issue with his parents, and his evidence is:

We were – had the opinion of the wrong thing is the wrong thing. Whether it was seven years, 12 years, like, we – we’re of the … understanding we would at least get a hearing … as my … body was just really deteriorating badly and I was … unable to support my family.[100]

[100]Transcript, 40.

The idea he would obtain a hearing is consistent with the Slater & Gordon 8 Feb 12 letter which refers to the possibility of applications for extension of time but notes: “[h]owever, this is an expensive undertaking and any delay in bringing proceedings must be explained. Whether an application is granted is at the discretion of the Court.”[101]
[101]Exhibit D7, 36.

Mr Zantuck’s evidence is that in 2012, he thought he had a good cause of action against RFC.[102] He was hospitalised a lot in the period 2012-18.[103] He was in pain, and underwent numerous medical procedures, including surgery to his spine.[104] He was in financial distress. He did not commence proceedings because “I was not working and I would not have been able to fund a lawsuit”.[105] He sought advice from Slater & Gordon because it was a free consultation.[106] That advice was categorically against bringing proceedings. He did not obtain a second opinion. Mr Zantuck did not seek any other legal advice, apart from going to AFLPA’s lawyer.[107] Through his solicitors, and later Mr Jess, he made unsuccessful attempts to obtain assistance from AFLPA.[108] He wanted a solicitor “who really listened and … wasn’t worried about … the AFL, Richmond … these big powerhouses” and a solicitor that “just wanted to hear my story – and heard [it]”.[109] In 2017, he came into contact with Mr Jess.[110] Mr Jess assisted him to obtain copies of some medical records that helped him identify medical treatments and procedures for the period 2011-17.[111] Mr Jess introduced him to his current solicitors, who he met in 2018. It took three years after that to commence the case, as medical evidence needed to be obtained.[112]
[102]Transcript, 41.
[103]Ibid, 41.
[104]Zantuck affidavit, [60].
[105]Transcript, 41, 42.
[106]Ibid, 41.
[107]Ibid, 40.
[108]Exhibit D7.
[109]Transcript, 42.
[110]Zantuck affidavit, [58].
[111]Zantuck affidavit, [60].
[112]Transcript, 41.

Mr Zantuck’s reasons for the delay in commencing his back injury claim are understandable, in light of the evidence of his personal circumstances described above. The reasons for delay weigh in favour of extending time.

Concussion claim

As the medical reports below reveal, Mr Zantuck’s brain injury was only identified in late 2021, after being diagnosed with TES. RFC’s alleged omissions are said to have commenced from the beginning of Mr Zantuck’s employment in December 1999. It is alleged that he had numerous concussions during his employment with RFC. It is impossible to calculate the exact limitation period on the material before me. The 12‑year limitation period in s 27D(1)(b) of the LAA is applicable. For the purpose of this ruling, I will calculate the time as commencing, at the earliest, in December 1999 and expiring 12 years later in December 2011. Mr Zantuck commenced the concussion claim about 10‑and‑a‑half years later, by the ASOC filed in March 2022.

Turning now to the medical reports on brain injury. In a report dated 16 February 2018, Assoc Prof Pearce, neurophysiologist, opines that there are some changes in Mr Zantuck’s brain function, which may be the detrimental effects of previous injuries.[113] However, given Mr Zantuck’s young age, nothing other than monitoring was required. In a further report dated 15 September 2021, Assoc Prof Pearce opines that Mr Zantuck is suffering with chronic neurophysiological impairments following his history of head injuries sustained as result of playing as a professional footballer.[114]
[113]Exhibit ‘TZ8’ to Zantuck affidavit.
[114]Exhibit ‘TZ23’ to Zantuck affidavit.

In a report dated 15 September 2021, Dr Rowena Mobbs, neurologist, found that Mr Zantuck presented with a complex neurological picture that was characterised by decline in cognition, mood and behaviour. Dr Mobbs opines this raised the possibility of TES, the ‘in life’ correlate to CTE. In a further report dated 14 October 2021, Dr Mobbs reviewed video clips of Mr Zantuck playing football with RFC during 2000‑04 and identifies incidents that are consistent with Mr Zantuck suffering from concussion. Dr Mobbs opines that Mr Zantuck fulfils the criteria for suggestive TES and CTE. In a further report dated 26 October 2021, Dr Mobbs opines that Mr Zantuck meets the criteria for probable CTE due to repetitive head impacts sustained during his professional playing career in the AFL.[115]
[115]Exhibit ‘TZ25’ to Zantuck affidavit.

In a report dated 21 October 2021, Assoc Prof Jennifer Batchelor, neuropsychologist, referred to video clips showing concussive injuries sustained by Mr Zantuck between 2000‑04.[116] Assoc Prof Batchelor opines that Mr Zantuck meets the criteria for probable CTE. Further, that he meets each of the primary diagnostic criteria for TES.[117] Assoc Prof Batchelor opines that the time during which Mr Zantuck played for RFC would qualify as a substantive risk factor for TES.[118] Assoc Prof Batchelor opines that Mr Zantuck’s diagnosis is poor and that his condition will worsen over forthcoming decades.
[116]Exhibit ‘TZ26’ to Zantuck affidavit.
[117]Ibid.
[118]Ibid, 11.

Given the nature of CTE, and actions taken by Mr Zantuck to investigate it as outlined above, there was good reason for Mr Zantuck’s delay in commencing the concussion claim. This weighs in favour of extending time.

Nature and extent of the plaintiff’s loss

Mr Zantuck’s loss arising from the alleged injuries is substantial. I refer to the reports above in respect of the brain injury. His evidence is that as a consequence of pain arising from his back injury, he has been unable to work in a stable job save for a six‑month period in 2009.[119] This has placed him in financial distress.
[119]Transcript, 40.

Mr Zantuck’s back pain is such that he uses a spinal stimulator. Dr Ralph Mobbs, neurosurgeon, provides the following prognosis of Mr Zantuck’s back condition in his report dated 8 February 2022:[120]

Given the complexities of Mr Zantuck’s low back disorder and the chronicity of his pain extending over 20 years, at this stage I do not believe that further surgery beyond his discectomy surgeries and insertion of a spinal stimulator, would be of any benefit. Mr Zantuck will likely have an ongoing chronic pain disorder and will require relevant care for this moving forward.

[120]Exhibit ‘TZ25’ to Zantuck affidavit.

This factor weighs in favour of granting the extension of time.

Nature of defendants’ conduct

The allegations in respect of both the brain injury and back injury are grave. Both allege repeated acts or omissions resulting in significant injury. I refer to the allegations of injections, and the allegations of a failure to have an adequate policy or system to manage concussion. These are factors that “should be brought into the evaluation”.[121]
[121]Azzam, (n 88) [142], adopting the language of J Dixon J in Holcombe v Hunt [2018] VSC 55 [48].

Prejudice to the defendants
Back injury claims

Dr Bradshaw recalls the training camp. I refer to his 17 May 2021 email to Mr Zantuck’s solicitors regarding it. The email includes the following:

As a doctor all I ever wanted to do was to assist the athlete to achieve what they said they wanted. I would do so safely.
I would never do a procedure without the athlete’s consent (it’s very hard to inject someone that’s struggling). I know for a fact that the injections we have given to Ty had no way of causing any long term issues.
I don’t deny that the camp at the Grampians made him sore… but the medical staff were excluded from that camp and had no input. It was very frustrating and ultimately caused me to leave the club because I felt the conditioning staff were putting players at risk without our input. We did everything we could to help the players and nothing to hurt them in the short or long term.[122]

[122]Email from Dr Bradshaw to Mr Zantuck’s solicitors dated 17 May 2021 contained in Exhibit ‘TZ2’ to the Zantuck affidavit.

The email from Dr Bradshaw states “[m]ost of the allegations are totally inaccurate”.

As Mr Zantuck says, in addition to the training camp, the back injury allegations relate to a course of conduct. Dr Bradshaw has provided detailed evidence in his affidavits, refuting the allegations. He recalls his practices at the time.

Dr Hickey has no independent recollection. However, he produces his notes on Mr Zantuck, and deposes that he can surmise based on his notes and bearing in mind his practices at the time. The notes include handwritten entries on a notecard entitled ‘Ty Zantuck’ that are dated 23 and 27 July 2004 and refer to Mr Zantuck’s back.[123] Dr Hickey can, and does, give evidence of his practices: he denies the allegation of giving epidural injections and denies committing Mr Zantuck to train or play while ‘numb’.
[123]Exhibit ‘TZ3’ to Zantuck affidavit; Exhibit ‘TZ5’ to Zantuck affidavit.

It is common ground that there are missing medical records. I refer to the medical file for Mr Zantuck held in the filing cabinet at RFC, for instance. There were no documents produced in response to subpoenas to Olympic Park Sports Medicine Centre and Essendon Football Club.[124]
[124]Exhibits D8, D9.

There are weekly notes that are produced for some of the weeks in 2001-04. They are typically one line for each player and allow for notes to be made under the headings ‘injury’, ‘management plan’, and ‘prognosis’. They are scant on detail. Nevertheless, some refer to Mr Zantuck’s back: see for instance the weekly notes dated 21 January 2001 (discussed above).[125] The weekly notes dated 5 February 2001 record Mr Zantuck as having an injury: ‘Back … disc’ and the management plan as: ‘? Get into ball work’ and the prognosis as 1-2 weeks.[126] The weekly notes dated 12 February 2001 record Mr Zantuck’s injury as: ‘Back … disc’, the management plan as: ‘needs strength parameters to prog’ and the prognosis as ‘1-4 weeks’.[127] There are two versions of the weekly notes dated 12 March 2001: one does not have any injury recorded for Mr Zantuck and the other records injury as: ‘back ... disc’.[128] The week beginning 29 July 2022 records Mr Zantuck’s injury as: ‘back cork’ and management plan as: ‘check today’ and prognosis: ‘ok’.[129] The weekly records include many weeks where no injury is recorded for Mr Zantuck. These too may be relevant.
[125]Exhibit ‘TZ4’ to Zantuck affidavit.
[126]Ibid.
[127]Ibid.
[128]Ibid.
[129]Ibid.

In addition, there is the document ‘individual player summary season 2002’ for Mr Zantuck. It refers to back injury.[130] So does the ‘RFC Conditioning Unit Summary of Test Results – January 2004’.[131]
[130]Ibid.
[131]Exhibit ‘TZ5’ to Zantuck affidavit.

Mr Zantuck alleges that he had CT-guided injections during 2003-04 at Victoria House.[132] There is a report on Victoria House Medical Imaging letterhead from Dr Healy to Dr Hickey dated 23 July 2004. It records a CT-guided injection was given to Mr Zantuck.[133] There is also a handwritten note recording ‘CSI 2004’ that contains reference to his injuries.[134] A medical assessment on AFL letterhead dated 2004 refers to Mr Zantuck’s back.[135]
[132]Zantuck affidavit, [37], [40].
[133]Exhibit ‘TZ7’ to the Zantuck affidavit.
[134]Ibid.
[135]Ibid.

Mr Zantuck alleges that he had numbing injections administered into his lower back by either Dr Bradshaw or Dr Hickey and that this was usually done at RFC’s training facility or ‘off-site’ at Olympic Park Sports Medicine Centre.[136]
[136]Zantuck affidavit, [38].

There is evidence that other persons, such as trainers, were present during and after matches. I refer to the evidence of Mr Zantuck and Mr Pilimon. There is also evidence that the weekly meetings regarding the players (the subject of the weekly notes) were attended by a group of people as identified by Dr Bradshaw.

RFC refers to the elapse of time and the loss of intangible and impressionistic evidence that informed the proper management of Mr Zantuck. I accept that, with time, memory fades. There is also prejudice arising from the deaths of Mr Frawley, Mr Macindoe, and Dr Reid. However, I am not satisfied that RFC has made all necessary inquiries in respect of other witnesses. Nor do I draw the inference that the memories of any such witnesses would be unreliable because of the loss of medical records. Such evidence would need to be tested.

In conclusion, I accept there is general prejudice arising from the elapse of time. Further, that there is specific prejudice arising from the death of witnesses and the loss of medical records. However, weighing these factors with the evidence that is available, I am not satisfied that the prejudice to the defendants is such that a fair trial cannot be held.

Concussion claim

Mr Zantuck’s solicitor, Mr Griffin, deposes that his firm holds video footage of 29 AFL games in which Mr Zantuck played during 2000-04.[137] Mr Griffin deposes that he believes the AFL have a complete archive, or a near‑complete archive of matches played by its clubs, including the whole of the period the plaintiff was employed with RFC.[138] There was no other contemporaneous documentary evidence identified by the parties in relation to Mr Zantuck’s alleged concussion injuries.
[137]Griffin affidavit, [4].
[138]Ibid, [8].

The allegation against RFC in respect of the concussion claim is that it did not have adequate systems or policies for dealing with head injuries. RFC has not provided any evidence as to whether or not it has relevant documentary evidence.

Much of the concussion claim will be determined by expert evidence: both medical witnesses and those with expertise in occupational health and safety for professional contact sports.

I am satisfied that the prejudice to RFC is not such that a fair trial of the concussion claims could not be held.

Extent the defendants took steps to make available to the plaintiff the means of ascertaining facts which were or might be relevant to his cause of action

Mr Zantuck deposes that he sent Dr Hickey a text message seeking to access his medical records in 2006 or 2007, and that request was ignored. Dr Hickey deposes that he does not believe he received a text message. There is no evidence that Mr Zantuck followed up the text. It should not be inferred from this evidence that the defendants declined to make Mr Zantuck’s medical records available to him.

Mr Zantuck’s solicitors sought and obtained information regarding medical records by subpoena and direct request.

Extent to which plaintiff acted promptly and reasonably once he knew the acts or omissions of the defendants, to which his injuries were attributable, might be capable at that time of giving rise to an action for damages

Mr Zantuck did not act promptly in respect of his back injury claim. He did not obtain legal advice until 2012. However, given his personal circumstances, discussed above, I am satisfied that he acted reasonably.

Mr Zantuck acted promptly and reasonably in respect of his concussion claim. This was medically investigated and then pleaded in the ASOC.

Steps, if any, taken by the plaintiff to obtain medical, legal or other advice and the nature of the advice he received

These issues have been discussed above. Mr Zantuck sought advice from Slater & Gordon, AFLPA, Mr Jess and his current solicitors. He obtained medical advice in respect of both his back and concussion claims.

Synthesising competing considerations

The length of time, and the general and specific prejudice to the defendants weighs against the granting of leave. On the other hand, the prejudice is not such that a fair trial cannot be held. Mr Zantuck’s explanation for the delays in bringing his claims are understandable and, in light of his particular situation, reasonable. They weigh in favour of extending time. He did not act promptly and reasonably in obtaining legal advice. However, he did seek other advice, including medical advice. Further, the nature of Mr Zantuck’s loss, and the grave consequences that will ensue if this application is not granted, weigh in favour of granting leave. Synthesising the competing factors, I find it is just and reasonable to extend time.

Conclusion

Mr Zantuck’s application to extend time in relation to both the back injury and concussion claims is allowed. I will give the parties an opportunity to make submissions on orders consequential to this ruling.

SCHEDULE OF PARTIES

S ECI 2021 01223
BETWEEN:
TY ZANTUCK	Plaintiff
- v -
RICHMOND FOOTBALL CLUB LIMITED (ACN 005 563 011)	First Defendant
GREGORY HICKEY	Second Defendant
CHRISTOPHER BRADSHAW	Third Defendant

[2022] VSC 405

19 July 2022