Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc

District Court of NSW|2019-08-15

Judgment

In this proceeding the plaintiff seeks damages for serious facial injuries, and an alleged psychological condition, arising from a 'spear tackle' or 'dangerous throw' he was subjected to by the second defendant in a rugby league match in a second division game that was part of a Country Rugby League competition in April 2016.
The plaintiff seeks to tender two 'evidentiary statements' from Mr Warren Ryan, said to be expert opinions admissible under s 79 of the Evidence Act 1995 (NSW). Mr Ryan's first and principal evidentiary statement was dated 20 December 2018. His supplementary evidentiary statement was only prepared during the trial (on the second day) on Tuesday 13 August. The supplementary statement explained or clarified the circumstances in which his list of assumptions and first evidentiary statement were typed; and made some corrections to the first statement.
The statements were admitted, subject to objections.
I have heard evidence of the voir dire, as to the admissibility of those statements in the light of the defendants' objections and have received brief oral submissions from counsel.

The specific objections

Specific objection is taken to the following parts of certain paragraphs in Mr Ryan's first evidentiary statement: 1. Paragraph 14: "Tackles are aimed at lowering the competence of the attacking players by physical attrition and the trauma of severe bodily impact both in the tackle and when the tackled player hits the ground. This is how coaches for many years have in my experience coached and trained their players to defend." 2. Paragraph 16: "(Rugby League players in adult competition matches) are also taught and encouraged by the coaches and trainers that when they have caught an attacking player, to put him onto the ground forcefully to cause hard and bruising impact with the ground which will hurt and discourage the attacker. Minor injury to the tackle player is a necessary and obvious outcome of such tackling." 3. The last 2 paragraphs feature the answers 'Yes', given, respectively, to the questions: 1. whether the injuries to the plaintiff were caused by (the Second Defendant) without any causal contribution being made by any other player; and 2. whether the video footage of the tackle reveals an intentional act which was done with intent to cause injury.

Mr Ryan's coaching expertise

The curriculum vitae annexed to Mr Ryan's first evidentiary statement sets out a very long history and association that Mr Ryan has had to the game of Rugby League. It also sets out some history associated with Mr Ryan acting as a physical education teacher, for a very long time at a time which considerably overlapped with his coaching.
The thrust of the defendants' objection to his expertise is coaching, so to a certain extent it is appropriate to focus upon the extent of that experience. In my view, however, it is artificial to detach his playing and commentating experience from that assessment.
Mr Ryan: 1. Was a player of the Sydney premiership competition between 1964 and 1968; 2. Captain/coached a team in the Illawarra region from 1968 to 1972; 3. Represented the Country Firsts team, as player in 1971 and 1972; 4. Coach of a First Grade Rugby League premier competition from 1979 for 17 seasons, ultimately retiring as a First Grade Coach in 2000. In this period he coached two Premiership-winning teams and coached other teams to Grand Finals and semi-finals. 5. In 2007 was a coaching consultant to the Canberra Raiders team in the NRL competition;
When examined on the voir dire, Mr Ryan indicated that he still keeps in contact with First Grade Premiership coaches. As recently as the middle of this year, Mr Ryan was approached to provide consulting assistance to the New South Wales State of Origin's coaching staff (Mr Andrew Johns, the Technical director, and Mr Alexander) as part of the team's successful campaign in that series.
In addition to his coaching, for a very long time, Mr Ryan has been a radio and print commentator of the game. His print journalism commenced in 1984 and continued to 2014. His radio commentary commenced from 1988 to 2014. Some of his radio commentary during that part of his career concerned country games. This occurred on Sundays in the lead up to the NRL Premiership Grand Final when there was an absence of games for the mainstream media to cover metropolitan games.

Mr Ryan's evidence

On the voir dire, some part of the cross-examination centred upon the unusual circumstances in which Mr Ryan prepared his report. Mr Ryan prepared expert opinion evidence for the claimant in the McCracken v Melbourne Storm litigation in the middle part of the last decade. That litigation concerned a spear tackle which occurred in the 2000 premiership season; which tackle effectively ended the career of a well-known player. Mr McCracken was represented by Mr Gross QC in that litigation. Mr Gross QC represents the plaintiff in this proceeding. It appears that the McCracken litigation commenced in 2003. The trial occurred in 2005.
Counsel for the defendants explored with Mr Ryan on the voir dire, the similarity between much of the content of Mr Ryan's report in the McCracken litigation, and the content of the his main evidentiary statement in this proceeding. From this, it was intimated, in not the most tactful fashion, that Mr Ryan was generally "regurgitating" opinions from the McCracken litigation to this case. To be sure, one important difference, Counsel submitted, was the circumstance that when providing his opinion as to how players are taught, or trained, by their coaches to tackle in the McCracken litigation, Mr Ryan was referring to how the game is played, and coached, at the elite level of the NRL Premiership. But in this proceeding, Mr Ryan was expressing substantially similar opinions about the playing and coaching the game, more generally, at all adult levels.
Counsel for the defendants also explored the closeness of the association between Mr Ryan and Mr Gross QC and, indeed, Mr Gross' son. Further exploration was made as to the involvement of Mr Gross QC, and his son, in the preparation of his evidentiary statements in this proceeding. It was pointed out that a stand-alone document setting out the list of assumptions that formed the basis of his opinions in his main evidentiary statement were different in some respects to the assumptions finally incorporated in Mr Ryan's evidentiary statement prepared in December 2018.
In relation to the last two points, I do not consider that either of them cast sufficient doubt upon the reliability of Mr Ryan's opinions as to render them inadmissible. Though he did not refer to the provision, in terms, this was more an objection grounded upon s 55 of the Evidence Act than for non-adherence to the requirements of s 79 of the Evidence Act. I do not consider the objections have any substance. If they did, in areas of litigation, such as personal injury litigation, where recurring issues arise, where parties are commonly represented by the same legal representatives and expert witness are commonly called, the same complaint could be made. Fortunately, there is no niche area for personal injury litigation involving spear tackles in body contact sports; but it is hardly a surprise that Mr Ryan might be called again, as an expert to address relevantly similar issues in this case as he had in the McCracken litigation. To what extent the views he expressed in that litigation may readily be transposed to this case will ultimately be a matter of weight for the Court's determination.
In arguing against the tender of both evidentiary statements, Counsel for the defendants submitted that Mr Ryan was not sufficiently expert, as a coach, in opining upon the practices of coaching in Country Rugby League competitions in 2016. He said that Mr Ryan had finished coaching by 2000 and that his coaching career had generally been confined to coaching at the elite Premiership level; rather than the level at which the plaintiff and second defendant were playing at; being Second Division in the Country Rugby League.
He submitted further that the discrepancies between the assumptions that Mr Ryan was instructed to make, and the assumptions actually incorporated in his main evidentiary statement in December 2018, indicated an absence of reliability in the opinions expressed.
Finally, he submitted, with particular reference to his objections to the sub-paragraphs 20(c) (relating to the issue of causation) and (d) (relevant to the issue of the second defendant's intention when making the tackle) of Mr Ryan's first evidentiary statement that they are conclusions without the basis being adequately articulated; and/or go to the question which the Court must ultimately decide.

Determination

I note that the objections are narrowly based. No submission was put to me that the subject matter as to how a Rugby League coach will train a player to tackle is irrelevant, or could not be the subject of specialised knowledge. The main objection is Mr Ryan's expertise, or to put it more formally, the extent of his 'specialised knowledge'.
In Honeysett v The Queen (2014) 253 CLR 122, the High Court said: "Specialised knowledge is knowledge which is outside the persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience."

Penultimate sentence of paragraph 14

In the first sentence in paragraph 14 that is objected to, the opinion goes to the intentions or objectives of the tackler.
In my opinion, this part of the statement falls well within Mr Ryan's expertise, not only as a coach, but also as a player, commentator and general analyst of the game. I note that the second defendant and the plaintiff themselves have given evidence as to the objectives of a tackler. I did not understand that, when doing so, the evidence elicited from them by their respective Counsel sought to differentiate how tacklers intended to tackle in the NRL premiership competition from the objective of a tackler playing in the Second Division Country Rugby League completion involving adult participants. It is not immediately obvious there is any material difference between the objectives of a tackler during the times that Mr Ryan has been a player, coach, commentator, analyst or close observer of the game (a period spanning over 50 years) and the objectives of a tackler in 2016. If there truly are distinctions in these issues, then the matter can be explored further in cross-examination of Mr Ryan. I reject the challenge to the admissibility of the penultimate sentence in paragraph 14.

Last sentence of paragraph 14 and penultimate sentence of paragraph 16

In the last sentence in paragraph 14 and the sentence in paragraph 16 to which objection is taken, the opinion goes to how players in adult competitions are coached. Both parts relate to how coaches train their players to tackle. I disagree with the submission that because of the context in which Mr Ryan has mainly coached - at an elite level, dealing with teams from the suburbs and the major metropolitan regions or capital cities across the Eastern coast of Australia - that Mr Ryan is ill-equipped to opine on coaching practices in the context of a Second Division Country Rugby league game. As a game, Rugby League is over 100 years old, and played in several different countries. Certainly at a high elite level, coaches frequently move from one place in Australia to another; and sometimes overseas. Mr Ryan gave some evidence about his contacts with coaches. It would not surprise me if there was some cross-fertilisation of ideas about attacking or defensive techniques between coaches. At any rate, part of the subject matter of this proceeding - the objectives and techniques for coaching tackling to players in 2016 - would not be, I would have thought, likely to have been radically different in Sydney, Port Moresby or the Northern Lakes in the regions of New South Wales. If there are, than this can be established by evidence. As it happens, Mr Ryan has, in fact, had experience coaching representative country teams, albeit a long time ago. But if there be material differences in coaching methods for tackling between the elite level at which Mr Ryan has had more extensive experience with and coaching methods of players in the Country Rugby League competition, then this can be demonstrated by evidence. I am not persuaded that Mr Ryan's views should be shut out on the basis of locality. That would be an unnecessary refinement, if not gloss on the notion of specialised knowledge. It would be akin to prohibiting the reception of expert evidence in a medical negligence case from a practitioner as to what was the reasonable practice for a medical procedure on the basis that the practitioner may be more sophisticated in deploying forms of treatment.
Mr Ryan has made clear, in his main evidentiary statement that, in his view, coaching methods in this regard do not differ at the elite level and all adult competitions. In saying this, he did not distinguish the locality of the competition or even the skill level. Whilst there may certainly be differences in skill level, it is not obvious that tackling technique and objectives would differ between elite levels and that seen in the Second Division of the Country Rugby League Competition. If there is, that may also be demonstrated in evidence. It is not a basis for rejection of Mr Ryan's evidence on account of a lack of specialised knowledge.

Last sentence of paragraph 16

In this statement, Mr Ryan expresses an opinion about the 'obvious' consequences of the way that coaches teach, or train their players to tackle. In other words, a causal outcome.
Section 79 of the Evidence Act requires that the opinion must be based "wholly or substantially" upon the specialised knowledge.
In Velevski v The Queen (2002) 76 ALJR 402, Gaudron J said (at [82]) that: "The concept of 'specialised knowledge' imports knowledge of matters which are outside the knowledge or experience ordinary persons... So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion. So much is expressly acknowledged by s 80(b) of the Evidence Act."
Although her Honour was in dissent in that case, this passage was subsequently endorsed by the High Court in Honeysett at [24].
In my view, a statement as to the causal connection between a tackle, with the objectives that Mr Ryan has identified, and a player forcefully driven to the ground, is consistent with the requirements of the Evidence Act that the opinion is wholly or substantially based upon specialised knowledge.

Sub-paragraphs 20(c) and (d)

These are, in form, conclusions.
The defendants' first challenge is that the 'basis' rule, commonly attributed to, if not at least articulated by Heydon JA, as his Honour then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]. There have been variable views as to the strict correctness of his Honour's observations, in that regard [1] . In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, the plurality in the High Court at [37], accepted that there must be demonstrated a link between the specialised knowledge and the facts assumed or observed to produce the opinion propounded. The plurality described the 'basis rule' as a rule by which opinion evidence is excluded unless the factual bases are established by other evidence.
In my opinion, Mr Ryan's report does set out the factual bases for these conclusions.
Dealing first, with sub-paragraph 20(c), the conclusion goes to the causal contribution of other players to the tackle outcome. Contrary to the submission of Counsel for the defendants, the basis for this opinion appears earlier, in the List of Assumptions incorporated at paragraph 4(L)(xv). Whilst it appears that the defendants wish to challenge that assumption, by reference to a difference between what is stated in paragraph 4(L)(xv) and another version of the assumption; such difference goes to the weight of the opinion; not whether a basis for the opinion has not been articulated.
In relation to sub-paragraph 20(d), similarly, I consider that the basis for this conclusion is set out in paragraphs 16 and 17. It is arguable that paragraphs 18 and 19, by the reference to unreasonably dangerous play might, in combination with other evidence (such as admissions by the defendant of his awareness of whether a lifting tackle might be dangerous) may also provide a basis for the final conclusion.
The 'basis rule' does not prohibit the admissibility of these conclusions.
Counsel for both parties also referred to s 80 of the Evidence Act; and especially s 80(a). It should, I think, be obvious that s 80 should not be construed in a way that maintains the old common law prohibition. Further, in the context of the opinion in 20(c), although that opinion is directed to an issue of causation, it has been accepted that evidence from an expert is admissible on that subject (Allianz Australia Ltd v Sim [2012] NSWCA 68 per Allsop P (Meagher JA agreeing) at [34]-[35] and Basten JA at [118]-[121]).
I note the obvious matter that this is a trial by judge alone, and some of the concerns underlying the old common law prohibition about how the trier of fact will respond to expert opinion on ultimate issues are inapplicable. Nevertheless, I take heed of the cautionary observation of Mason P (in R v GK (2001) 53 NSWLR 317 at [40]) about trial judges scrutinising opinions of experts that move close to the ultimate issue, lest they arrogate expertise outside of their field.
I note that no reference or reliance was placed by the defendants' Counsel upon the exclusionary provisions of ss 135 or 136 of the Evidence Act.

ORDERS

For these reasons, I reject the generic and specific objections to Mr Ryan's two evidentiary statements.
The evidence adduced in the voir dire is to be treated as if it was adduced in the trial.

Endnote

S. Odgers, Uniform Evidence Law (4th ed) [EA.79.240] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2019

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Judgment (11 paragraphs)

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