Meek v New Zealand Rugby Union Incorporated
[2022] NZHC 2591
•7 October 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-211
[2022] NZHC 2591
BETWEEN STUART JAMES MEEK
Plaintiff
AND
NEW ZEALAND RUGBY UNION INCORPORATED
Defendant
Hearing: 21 September 2022 Appearances:
S J Meek in person
J Shackleton and K S Ginders for the Defendant
Judgment:
7 October 2022
JUDGMENT OF COOKE J
(Striking out plaintiff’s claim)
[1] By application dated 4 July 2022 the defendant, New Zealand Rugby Union (NZRU), applies to strike out the plaintiff’s claim on the basis it discloses no reasonably arguable cause of action. The application is supported by an affidavit of Gerard Peter van Tilborg, a former director of NZRU and Chair of the New Zealand Rugby Foundation Incorporated (the Foundation) and Dr Kenneth Quarrie, the Chief Scientist for the NZRU. The application is opposed by the plaintiff who appears in person in these proceedings. He has filed a document responding to Mr van Tilborg’s affidavit.
The allegations
[2] In outlining Mr Meek’s allegations I consider not only what he has said in his statement of claim dated 24 March 2022, but also in his response to Mr van Tilborg, and all matters he has advanced in his various written and oral submissions.
MEEK v NEW ZEALAND RUGBY UNION INCORPORATED [2022] NZHC 2591 [7 October 2022]
[3] By way of summary Mr Meek alleges that when he was playing rugby as a schoolboy game in the 1980s that the scrum collapsed on top of him causing him to be knocked out. He says he has very little memory of the rest of the day although he remembers two people carrying him from the field. The next day he woke up in bed but could not walk. His mother arranged for the doctor to come around to see him, and that the doctor gave him an injection and some pain medication advising that the feeling in his legs should come back.
[4] He says that the feeling in his legs did come back and he could walk again but he was in a lot of pain. He says that no report was made to ACC. He also says that his medical records have been lost in the Christchurch earthquakes. Mr Meek says he has suffered from his injuries ever since that time. He says that:
It is very hard to have lived in pain all my life and never been able to work because of it even though I have tried. I get no treatment or support from anyone and [this] has [affected] my mental health to the point where I have tried suicide more than once.
[5] Mr Meek says that in around 2005 he was accepted by the Foundation as a Very Injured Player (a “VIP”). The Foundation is a charitable organisation that provides assistance to injured players. Mr Meek says that the Foundation was established by the NZRU. He says he initially received assistance from the Foundation and he was treated like other VIPs. But he says for the last four years the Foundation has refused to help him, and that no one has sat down to talk through his issues with him, and he has been declined assistance and support. For example he says he has not been invited to attend test matches along with other VIPs.
[6] Mr Meek alleges that the NZRU failed in its duty of care in the 1980s to ensure that he received the right level of care and treatment, that he has missed out on ACC lump sum payments because of the lack of support, that NZRU’s conduct amounts to ill treatment and neglect, that he has suffered a great deal and forced to live on a benefit with little hope, and that the NZRU has a duty of care now to look after him as an injured player.
[7] Mr Meek seeks $5 million in damages, and a weekly wage of $800 in order that he can live with dignity.
Strike out
[8] Under r 15.1(1)(a) of the High Court Rules 2016 a proceeding may be struck out if it discloses no reasonably arguable cause of action. The approach applied to an application to strike out a statement of claim involves the following:1
(a)The pleaded allegations, whether or not admitted, are assumed to be true, although this does not extend to pleaded allegations that are entirely speculative and without foundation.
(b)The cause of action must be clearly untenable. It is inappropriate to strike out a claim summarily unless the Court can be certain that it cannot succeed.
(c)The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court’s reluctance to terminate a claim without a trial.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument. The Court should be particularly slow to strike out a claim in any developing area of the law.
(e)Where a defect can be cured by amending the pleading the Court will likely permit amendment rather than striking the claim out.
Assessment
[9] Having carefully considered the written and oral submissions on behalf of the NZRU and Mr Meek, I am satisfied that this is a case where Mr Meek’s claim ought to be struck out.
[10] The origin of Mr Meek’s claims is an alleged serious injury that he suffered when playing schoolboy rugby in the 1980s. A difficulty in making an assessment about these allegations is the lack of information, including medical information,
1 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [31]–[33]; Attorney-General v Prince [1998] 1 NZLR 262 at 267; Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 at 232 and 328 (HC).
about the nature of the injury he suffered at the time, although Mr Meek says that the relevant records have been lost. Mr van Tilborg makes the point that no information has been provided by Mr Meek to support his account of the injury. I nevertheless proceed on the basis that Mr Meek would be able to establish at a trial that he was seriously injured in some way at the time, and that this has adversely affected his life, with the adverse effects continuing to this day.
[11] There are two insurmountable obstacles to Mr Meek’s claim for damages based on this injury, however.
ACC bar
[12] The first is that any claim in civil proceedings against the NZRU is statute barred. Section 317 of the Accident Compensation Act 2001 provides:
317 Proceedings for personal injury
(1)No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of—
(a)personal injury covered by this Act; or
(b)personal injury covered by the former Acts.
…
(7)Nothing in this section is affected by—
(a)the failure or refusal of any person to lodge a claim for personal injury of the kinds described in subsection (1); or
(b)any purported denial or surrender by any person of any rights relating to personal injury of the kinds described in subsection (1); or
(c)the fact that a person who has suffered personal injury of the kinds described in subsection (1) is not entitled to any entitlement under this Act.
[13] There were equivalent provisions applicable in the legislation in existence at the time of the alleged injury — including s 27 of the Accident Compensation Act 1982. A claimant who at one point had cover for a personal injury loses the right to
sue for damages if a claim was not made at the appropriate time.2 Mr Meek does not suggest that the injuries that he suffered were not covered by ACC. Indeed the essence of his allegation is that the NZRU had a duty to ensure that a claim for ACC was lodged, and that it breached its duty by not doing so. As Mr Shackleton submitted the fact that no ACC claim was lodged does not prevent provisions such as s 317 having effect in their terms. Section 317(7)(a) confirms that a failure to lodge a claim does not affect the operation of the section.3 For these reasons I accept that Mr Meek’s claim for compensatory damages arising from his injury is statute barred.
[14] These sections do not protect a claim for exemplary damages. Such claims are preserved by s 319 of the present Act.4 But I do not accept that Mr Meek has a reasonably arguable claim for exemplary damages. There are no pleaded allegations that could give rise to such a claim, and I do not accept that such a claim could exist that is capable of being identified in an amended pleading.5
Limitation
[15] The second point is that even if a claim could survive the Accident Compensation Act provisions it is statute barred by the Limitation Act 2010. By s 62 of that Act longstop limitation periods were inserted into the Limitation Act 1950. In particular s 23B of the Limitation Act 1950 provides:
23B Longstop period of limitation
(1)No action to which this section applies may be brought after the last to end of the following periods:
(a)5 years ending on the close of 31 December 2015:
(b)15 years after the date of the act or omission on which the action is based.
…
[16] Mr Meek’s claims are in tort, although he does advance a claim in contract that I will consider below. Section 23B requires the claim to be commenced by
2 W and W v Attorney-General [2010] NZCA 139 at [161].
3 See Austin v Roche Products (New Zealand) Ltd [2021] NZSC 30, [2021] 1 NZLR 294 at [19].
4 See also Donselaar v Donselaar [1982] 1 NZLR 97 (CA).
5 See Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 at [84]–[90].
31 December 2015, or 15 years after the omission which is alleged to have occurred in relation to the NZRU’s failures in the 1980s. At one point Mr Meek said that it occurred shortly after the 1987 World Cup. This claim was commenced this year, and is accordingly well outside the longstop limitation period.
[17] I do not need to go on to address the NZRU’s other points about the claims made against it arising from the injury. But I note that there is no recognised duty of care on a sports organising body to ensure that a person lodges an ACC claim when an accident arises in the course of engaging in the sport administered by that body. It is highly unlikely that such a duty of care would be held to exist, not only because of the existence of the ACC bar, but also given the indirect and indeterminate nature of the relationship. In the present case, for example, the NZRU would not even have known of this injury at the time. Mr Meek confirmed that the relevant coach of his team was one of his teachers from his school. The more obvious persons who might have taken steps to see that such a claim was lodged would have been Mr Meek’s doctor, and even his mother. Dr Quarrie says in his affidavit that the responsibilities for notifying injuries to ACC rest with the player and their medical adviser. It is difficult to see how a duty of care could exist on the NZRU.
[18] Mr Meek’s response to these points is to say that his allegations were not based on his injury in the 1980s. Rather he contended that his allegations focused on more recent conduct by the NZRU, and in particular its conduct in not recognising his seriously adverse situation arising from the injury, and in failing to give him the support, and give him the respect that he is due. In his written submissions Mr Meek says that his claim “… is not about the [injury] I suffered while playing schoolboy rugby and I want to make that very clear, it is about the way I have been treated by rugby”.
[19] Whilst I understand Mr Meek’s argument, and respond to it in greater detail below, the fact that he is barred from pursuing any claim for damages for compensation arising out of his injury for the above reasons likely prevents any claim for damages compensating him for a failure to recognise the harm caused by that injury at later times. He is not able to sue for any compensation arising out of his injuries, and this would cover any compensation from the alleged failure to recognise the injuries. But
I nevertheless proceed to consider the allegations of more recent actions or inactions by NZRU.
Claim in contract
[20] In advancing the argument that his claim was based on the more recent failure of the NZRU to recognise his position Mr Meek contends that he has a claim in contract. In particular Mr Meek contends that by accepting him in 2005 as a VIP “… this formed a contract and when dealing with [vulnerable people] with physical disabilities or mental or both they deserve to be treated with dignity and respect”. I note Mr van Tilborg’s evidence that the Foundation has been providing support to Mr Meek and that opportunities are available to Mr Meek to apply for this support from the Foundation. But again I proceed on the assumption that Mr Meek can establish at trial that he has been provided with no meaningful support in recent times.
[21] For two reasons I accept Mr Shackleton’s argument that the allegations have no reasonable prospect of a successful claim for damages.
[22] The first point is that the Foundation is an independently established charitable body. It is an incorporated society that is a separate legal entity from the NZRU. I accept the evidence of Mr van Tilborg in this respect. The NZRU provides some funding, but the Foundation manages itself and operates independently. There was one representative of the NZRU on the Foundation board, but the NZRU does not have any other involvement with the Foundation’s decision-making. There is nothing in Mr Meek’s statement of claim or other material that suggests Mr van Tilborg’s evidence is inaccurate. The short point is that the NZRU cannot be legally liable for the Foundation’s acts or omissions.
[23] Secondly, the fact that the Foundation accepted Mr Meek as a VIP does not create a contract between Mr Meek and the Foundation. There is no offer and acceptance, consideration, or intention to create binding legal relations. These are necessary elements for a claim in contract. They are not pleaded, and there is nothing in the material relied on by Mr Meek that suggests that such allegations could be made in an amended pleading. More generally, a charitable organisation has no legal obligation to give any particular claimant for charitable benefits any particular benefit.
It might be possible for a beneficiary of a charity to obtain a contractual entitlement, or even an entitlement arising from an estoppel when the elements for such claims are established. But no such allegations are advanced, or otherwise identified here.
[24] For these reasons any claim by Mr Meek against the NZRU in contract cannot be sustained. The claim has no reasonable prospects of success. Neither could any such claim be advanced in an amended pleading.
Tort
[25] I also accept Mr Shackleton’s arguments that there can be no claim in tort in relation to the NZRU’s alleged failure to recognise Mr Meek’s position and treat him with greater dignity or provide him with support. No such duty of care is recognised at law, and neither could it reasonably be argued that such a duty could be held to exist. That is particularly so given the existence of the Accident Compensation regime, and the other points made at [17] above.
[26] There are then two final potential claims referred to in Mr Meek’s statement of claim, and his submissions to the Court.
Discrimination
[27] The first is that NZRU has engaged in discriminatory conduct towards him. The essence of this allegation is that Mr Meek has been treated differently from other VIPs. This is not accepted by either NZRU or the Foundation, but I proceed on the basis that Mr Meek could establish at trial that he is not being treated the same way as other VIPs.
[28] There are two central problems with these allegations. The first is that it is the Foundation and not the NZRU that has dealt with the VIPs. There is no conduct by the NZRU itself that can be alleged to involve differential treatment. Secondly any allegation of discriminatory conduct would need to raise a prohibited ground of discrimination as identified by s 19 of the New Zealand Bill of Rights Act 1990 and s 21 of the Human Rights Act 1993. No such prohibited ground of discrimination is pleaded or otherwise identified, and none arises from Mr Meek’s submissions. The
Human Rights Act also then sets out a specific regime for advancing claims in relation to a prohibited ground of discrimination. There is no basis to allow a separate claim in tort in the High Court.
[29] For these reasons there is no reasonable arguable claim against NZRU arising from the alleged discrimination.
Defamation
[30] Mr Meek’s final claim is in defamation. The essence of this claim appears to be that the NZRU’s failure to accept Mr Meek’s claims effectively involved it contending that he is a liar.
[31] I accept Mr Shackleton’s submission that the requirements for a claim in defamation could not arise in the circumstances here. To establish such a claim it would need to be shown that NZRU made a defamatory and untrue statement about Mr Meek that was published by the NZRU. No such statements are identified, and it is not alleged that such statements have been published. Mr Meek says that by failing to accept what he has contended the NZRU have effectively said what he is contending is untrue, and therefore that he is a liar. Even if I were to accept that this logically follows (which I do not) they do not establish the requirements for the tort of defamation. The NZRU have not published any statement saying that Mr Meek is a liar.
[32] For these reasons Mr Meek’s remaining two alleged causes of action are not reasonable arguable.
Conclusion
[33] For the above reasons I grant the defendant’s application to strike out the plaintiff’s statement of claim on the basis that it discloses no reasonably arguable cause of action.
[34] In doing so it is appropriate to make clear, as I hope I did at the hearing, that this conclusion should not be taken to involve any criticism of Mr Meek, or to indicate
any lack of sympathy or respect for him. It is plain that he has struggles with his life, and I acknowledge the difficulties that he faces.
[35] In the end, however, what he seeks to advance in this case is a claim that the NZRU should accept some moral responsibility for his situation, and that it should treat him with more respect. But this is a court of law and it is the Court’s function to identify legal claims and dispassionately rule on them. In the present case there is no arguable legal responsibility on the NZRU for Mr Meek’s situation. There is no legal basis for Mr Meek to be awarded damages. One of the main reasons for this is the existence of the ACC regime, but there are other reasons why Mr Meek’s legal claims cannot succeed. For that reason the statement of claim is struck out.
[36] I note that the formal application sought an order for costs. I hope any claim for costs may not be required. But memoranda may be filed within 20 working days if there is any issue as to costs.
Cooke J
Solicitors:
Simpson Grierson, Wellington for the Defendant
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