Malo v South Sydney District Junior Football League Ltd & Anor

Malo v South Sydney District Junior Football League Ltd & Anor - [2004] NSWSC 495 - NSWSC 2004 case summary — Zoe

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JUDGMENT (Extension of time to commence proceedings - ss 60C & 60E Limitation Act 1969 (NSW); rugby league tackle - quadriplegia) 1 MASTER: By notice of motion filed 20 September 2002 the plaintiff seeks an order extending the time within which to commence proceedings for damages for personal injury arising out of an accident on 26 July 1998 against Maroubra Lions Rugby League Football Club Incorporated (MLRLC) pursuant to s60C & E of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on the affidavits of: Julie Ann Mahony sworn 19 September 2002, 7 August 2003 and 24 August 2003; Harry Malo sworn 5 December 2002 and 23 July 2003 and Andrew Peter Quigley sworn 5 December 2002 and 9 October 2003. Mr Quigley was cross-examined. The proposed defendant did not rely upon any affidavit evidence. The first defendant is South Sydney District Junior Rugby Football League Limited. The second defendant is South Sydney District Rugby League Referees Association Incorporated. The third defendant is Randwick City Council. The proceedings have been resolved as against the second and third defendants. The central issue in this case is whether the plaintiff has a real case to advance against the proposed defendant. 2 For the purposes of this application I have taken the plaintiff's case at its highest. The plaintiff was born in New Zealand in 1966. He was 32 years of age at the time of the accident. He had previously actively played union. On 26 July 1998 the plaintiff suffered a serious spinal injury when he was tackled in open play while playing a rugby league match in the A Grade Reserve competition for the Maroubra Lions Rugby Football Club against South Eastern. He was playing in the second row. 3 The plaintiff remembers taking the ball up, he was tired and had his head down. He was then tackled. He cannot recall how many players tackled him or how he was tackled. He felt his neck twist and a stinging sensation. The plaintiff then fell to the ground landing on his back. He tried to get up using his entire body but was not able to. He realised then that something was wrong. The referee approached the plaintiff and asked him if everything was okay. The plaintiff said to the referee "I cannot move". The tackle was not unlawful or performed in an excessively aggressive manner. It is not alleged that the tackle was dangerous. As a result of the injury the plaintiff suffered C5 spinal chord damage resulting in incomplete quadriplegia. The plaintiff spent many months in hospital, during which time he underwent an intensive course of rehabilitative therapy and treatment. The plaintiff is now confined to a wheelchair and has only limited use of his arms and upper body. He has no functional use of his lower body. 4 It is alleged that MLRLC had decided to field an under-strength team of 11 players in wet weather against a full strength side of 13 players, in circumstances where 5 of the Maroubra players were from the under 19 team who had already played a game earlier that day and were fatigued.

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The length and rea s ons for delay - s 60E(a) 15 The proposed defendant submitted that the plaintiff could have obtained an expert's report on liability at an earlier date and then would have been in a position to seek to join it at an earlier stage. 16 The accident occurred on 26 July 1998. The limitation period expired on 26 July 2001. The application was lodged about 14 months after the expiration of the limitation period. 17 The plaintiff since 1999 has received advice from two Counsel, namely Mr Kevin Ryan and Mr Wynyard, that his claim would not be successful. On 7 November 2000 Mr Wynyard of Counsel advised that a factual investigation and expert liability was required if the plaintiff intended to support any allegations of negligence. Preliminary factual investigations were undertaken but were unhelpful in assisting the plaintiff's solicitor to form a final view as to the viability of the claim. This report did not refer or identify the potential liability of MLRLC. The plaintiff had accepted the prior advice by Counsel and was reluctant to put financial resources into obtaining expert reports on the basis of this advice. Upon obtaining further advice just prior to the expiration of the limitation period from Mr David Elliott of Counsel, the plaintiff gave his solicitor instructions to file a statement of claim. On 26 June 2001 the statement of claim was filed. Mr Elliott advised the plaintiff he should obtain a report on liability from a qualified sports injury expert. Some difficulty was encountered by the plaintiff's solicitor identifying such an expert. 18 The plaintiff's explanation for delay is that it was only when his solicitors received the report from Dr Wilfrid Ewens, Sports Scientist (report dated 5 August 2002) and Julie Mahony his solicitor contacted him by telephone on 23 August 2002 to inform him of its contents, that he came to understand that Maroubra Rugby League Football Club Incorporated should be joined as a defendant to the proceedings. Ms Mahony indicated that in his report, Dr Ewens had made comments regarding the potential liability of various parties and that consequent upon the issues raised in the report, a number of measures would need to be taken as a matter of urgency. These measures included: firstly, discontinuing proceedings against the South Sydney District Rugby League Referees Association Incorporated and the Randwick City Council and secondly, seeking leave for an extension of time to join the Maroubra Rugby League Football Club Incorporated as a defendant. As previously stated the South Sydney District Rugby League Referees Association Incorporated and Randwick City Council are no longer defendants in these proceedings. 19 On 26 August 2002, the plaintiff telephoned Ms Mahony and gave her instructions take the necessary action to pursue the case. Prior to that time, the plaintiff had not been aware that he had any entitlement to bring proceedings against Maroubra Rugby League Football Club Incorporated. I accept the plaintiffs explanation that he did not obtain this report earlier in the light of the two prior advices of Counsel not to initiate proceedings and he was therefore reluctant to expend financial resources.

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Just and reasonable 28 I turn now to consider whether it is just and reasonable to extend the limitation period. Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to extension of limitation period applications, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (see Szerdahelyi v Estate of Bailey (Unreported, NSWSC, Badgery-Parker J, 1 May 1997); Ortado v Estate of Bailey (Unreported, NSWSC, Badgery-Parker J, 1 May 1997); Lewis v Bailey (Unreported, NSWSC, Badgery-Parker J, 1 May 1997); Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497; Zegarac; Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485; and Fitzgerald v Bankstown City Council (Unreported, NSWCA, 6 November 1995). 29 Establishing liability in this case will be a difficult task but it will depend in part upon facts and circumstances given in evidence at the trial. The plaintiff stated that the Club had not previously during his time with it, fielded a team short of players. 30 The High Court in Agar v Hyde (2000) 201 CLR 552 at 583 of rugby (union) stated [at para 88]: "…Each participant in the match was adult and must be taken to have consented to the application of physical force in accordance with the laws of the game. And not only would there be no actionable trespass in the opposing team doing what it did, there is nothing which would suggest that any player conducted himself, in playing within the laws of the game, so as to have broken any duty of care which he owed to the respondent." 31 The proposed defendant submitted that the plaintiff did not have a real case to advance and in particular the expert's report does not adequately deal with the issue of foreseeability. In his 5 August 2002 report, Dr Ewens stated that the risk of injury during football matches depends on a number of factors. The following issues should be considered in developing a strategy to minimise the risk of injury. (a) The facilities where the competition is played; (b) The age, sex and disposition of the participants; (c) The standards set by the National Sporting Association; (d) The law and conditions set by the club/association authorities; (e) The weather conditions that exist at a given time; (f) The level of ground supervision provided; and (g) The quality of the referees and other match officials. 32 Dr Ewens stated [at paras 65 - 69]: "65 The modern game of Rugby league makes heavy physical demands on players. To take account of these increased demands the 'Substitute' rule [Section 4] was introduced to allow for interchange of players during play. Teams now consist of more than the 13 allowed on the field at any one time.

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And at para 48: "…a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable." 36 The plaintiff referred to Lightowler v SRA of NSW & Anor (Unreported, NSWDC, Puckeridge J, 23 June 2000) and Bendix Mintex Pty Limited & Exxon Ltd, Jsekarb v Barnes (1997) 42 NSWLR 307 at 329 where Beazley JA stated: "It is clear from Mason J's formulation that the test of foreseeability does not require foreseeability of the precise risk of injury suffered. This is consistent with well-established authority. In Mount Isa Mines v Pusey (1970) 125 CLR 383, Windeyer J (at 402), noted that: '… Foreseeability does not mean foresight of the particular course of events causing the harm. Nor does it suppose foresight of the particular harm which occurred, but only of some harm of a like kind'; see also Chapman v Hearse (1961) 106 CLR 112; Beavis v Apthorpe (1962) 80 WN (NSW) 852; [1963] NSWR 1176; Commonwealth v McLean (1996) 41 NSWLR 389." 37 True it is, Dr Ewens does not specifically state that the injury of the kind the plaintiff suffered was foreseeable, rather he says that the failure of the MLRLC by requiring an inappropriate team to take the field placed the players at risk and was a major contributing factor to the incident (the tackle) and subsequent fall that caused the plaintiff's injury. At trial, the trial judge is entitled to take Dr Ewen's evidence and that of any other experts into account and come to his or her own view as to whether in the circumstances referred to by the expert, the injury of the kind the plaintiff suffered was foreseeable. Nevertheless, it is my view that the plaintiff has a real case to advance. 38 The current first defendant submitted that it is a party likely to be affected by this application and objected to an extension of the limitation period being granted on the basis that it will suffer prejudice because it may be exonerated from liability in its own right but if the proposed club is joined, it may choose to cross-claim against it seeking indemnity.

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Cases Cited (15)