Malo v South Sydney District Junior Football League Ltd & Anor

CATCHWORDS : Extension of time to commence proceedings - ss 60C and 60-E Limitation Act 1969 (NSW) - rugby league tackle - quadripleiga LEGISLATION CITED : Limitation Act 1969 (NSW) - s 60C & E Supreme Court Rules 1970 (NSW) - Part 52A r 17 Agar v Hyde (2000) 201 CLR 552 Bendix Mintex Pty Limited & Exxon Ltd, Jsekarb v Barnes (1997) 42 NSWLR 307 BHP Steel (AIS) Pty Limited v Giudice (& Ors) (unreported, NSWCA, 7 March 1997) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 Council of the City of Sydney v Zegarac (1998) 43 NSWLR 196 Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485 CASES CITED : Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995) Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143 Lightowler v SRA of NSW & Anor (unreported NSWDC, Puckeridge, 23 June 2000) McLean v Sydney Water Corporation [2001] NSWCA 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 Szerdahelyi v Estate of Bailey; Ortado v Estate of Bailey; Lewis v Bailey (unreported, NSWSC, Badgery-Parker J, 1 May 1997 Williams v The Minister, Aboridinal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 Wyong Shire Council v Shirt (1980) 146 CLR 40 Harry Malo (Plaintiff)

PARTIES : South Sydney District Junior Rugby Football League Limited First (Defendant) Maroubra Lions Rugby League Football Club Incorporated (Second Defendant) FILE NUMBER(S) : SC 20659/2001 Mr M J Jenkins (Plaintiff)

Mr Turnbull COUNSEL : (First Defendant)

Mr D Priestley (Second Defendant)

Ms Peta Piper Maurice Balckburn Cashman (Plaintiff)

SOLICITORS : Riley Gray-Spencer (First Defendant)

J Cross Yeldham & Associates (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20659/2001 - HARRY MALO v SOUTH SYDNEY DISTRICT JUNIOR RUGBY FOOTBALL LEAGUE LIMITED (ACN 051 393 992)

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.

5 It is alleged that MLRLC was negligent in that firstly, it failed to abandon and/or forfeit the match at half time when it was apparent that the opposition were overwhelming and the players were fatigued; secondly, it failed to supervise the match so as to ensure the safety of the players having regard to the fact that the team was under-strength, badly mismatched and included already fatigued players; thirdly, it failed to abandon and/or forfeit the match in the absence of a fully fresh manned team; and fourthly, it failed to abandon and/or forfeit the match in the absence of a full team of players. 6 It is alleged that the plaintiff's injuries and incomplete quadriplegia, were caused by the negligence of the proposed defendant. Breach of contract is also pleaded.

The Law 7 The plaintiff relies on s60C(2) the Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (Unreported, NSWCA, 7 March 1997); Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. 8 Sections 60C and E are to be found in subdivision 2 of the Act. Subdivision 2 is headed 'secondary limitation period'. The notice of motion was filed on 20 September 2002. The plaintiff's cause of action arose on 26 July 1998. 9 Section 60C of the Act provides: "60C Ordinary action (including surviving action) (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 10 Section 60E provides: "60E Matters to be considered by the court (1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff's injury or loss." 11 In relation to ss 60C and 60E of the Act, Mason P in Council of the City of Sydney v Zegarac at 197 referred to propositions that were uncontroversial. They are:

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

(3) In exercising the discretion, the court is required "to have regard to all the circumstances of the case" (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) "to the extent that they are relevant to the circumstances of the case".

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's second reading speech that are set out in the order judgments, and which McHugh J discusses in Taylor at 552-553.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well - known principles. 12 Justice Powell in Council of the City of Sydney v Zegarac at 240-241 stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA's further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do. Secondly, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made, lies on the applicant. 13 The principles concerning prejudice have been considered in Wynter, by the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at para 119 where their Honours stated that the effect of the High Court decision in Brisbane South Regional Health Authority v Taylor is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122. 14 I turn now to consider s 60E.

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.

Extent to which delay caused evidence to be lost - s 60E(b) 20 There is no evidence that the plaintiff's failure to commence the proceedings within the limitation period has meant that any evidence has been lost.

The time at which the injury became known to plaintiff - s 60E(c) 21 While the plaintiff does not specifically give evidence in this regard, he was taken to the Prince of Wales hospital by helicopter. He remained there as a patient until mid 1999. Shortly after admission, the plaintiff would have become aware that he had suffered L5 spinal chord damage and incomplete quadriplegia. The plaintiff would have become aware of the seriousness of his injuries and the dramatic changes it would make to his lifestyle within that nine-month period. He would have realised that he would be confined to a wheelchair and that he had only limited use of his arms and use of his lower body.

Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(d), (e) and (h) 22 As stated above, the nature and extent of the plaintiff's injury would have become known to him within the first nine months after injury. 23 After reading the investigative report of Duncan & King and Mr Wynyard's advices, the plaintiff did not draw a distinction between the MLRLC and the liability of South Sydney Junior Rugby League Club being the controlling body in relation to the football competition. The plaintiff's solicitor deposed that the plaintiff's sign on form, accident claim form and the report of Duncan & King identified the liability of South Sydney Junior Rugby League Club but did not identify the liability of the MLRLC and Mr Quigley's focus in advising the plaintiff was distracted from the MLRLC as these documents did not refer to the material fact that there was an entity known as MLRLC. 24 In relation to the time at which the plaintiff became aware of the connection between the injury and proposed defendant's act or omissions, as previously stated it was on 23 August 2002 when Julie Mahony contacted the plaintiff by telephone. The plaintiff then understood that the MLRLC should be joined as a defendant to the proceedings. 25 In relation to the extent of the plaintiff's loss he was a fit and healthy man who is now wheelchair bound. He is in regular employment working 9 hours per week. He is dependant on others for domestic care, including a morning and evening carer and during other hours from his partner, Pamela Sapsford.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f) 26 There is no conduct by the defendant, which induced the plaintiff to delay bringing action.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 27 The plaintiff sought legal advice while he was in Prince of Wales hospital. The plaintiff's medical file is available and would include reports by Professor Jones, Spinal Specialist, from Prince Henry Hospital (now retired); Dr Lianne Hunt, Spinal Specialist at the Prince of Wales Hospital who has since left the Prince of Wales and moved to the Royal North Shore Hospital and Dr Lee, Spinal Specialist, at the Prince of Wales Hospital, who presently treats the plaintiff every few months. Part 33 particulars have been filed.

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.

66 A team using only 11 regular players would be at a distinct disadvantage. Players in this situation would, of necessity, have to undertake a much heavier work-load than normal.

67 The Maroubra Lions Club by fielding a team of only 6 regular players supported by 6 junior players, who had just completed a full match in 'heavy conditions' was less than prudent. The decision, especially in the 'heavy conditions' that existed exposed players to fatigue and hence the potential for serious injury.

68 The Laws of Rugby League do not specify a minimum number of players that are required to field a team. However it would seem unreasonable to expect a significantly depleted team, made up of only 6 regular players to compete effectively and safely against a fully strong opposition.

69 The potential for a serious injury to occur is further exacerbated when the team was playing a strong team." 33 According to Dr Ewens because the Club fielded a team short of two players, the forwards would have been required to undertake the increased work load, both in attack and defence, and the danger of injury would have increased considerably. 34 Dr Ewens concluded [at paras 80 - 82]: "80 The Maroubra Lions Club administration was less than judicious in requiring an under strength, makeshift team of 11 players, made up of 6 regular players and 5 under 19 players [who had already played a 'full' game] to take the field in a senior A.Reserve grade Rugby League match.

81 The mismatch of the teams in numbers, physical maturity, physical status and the additional workload required, contributed to excessive fatigue of the Lions players, especially in the second half.

82 The failure of the Maroubra Lions Club, by requiring an inappropriate team to take the field, placed players at risk and therefore was the major factor contributing to the incident that caused Mr Malo's injury." 35 It is apt, I think to repeat the well established test of foreseeability by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 where he says: "A risk of injury which is quite unlikely to occur… may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable."

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.

39 In relation to prejudice, as previously stated, I accept that due to the effluxion of time from 1998 there will be presumptive prejudice. The proposed defendant has not deposed to any actual prejudice it will suffer. The are two sporting accident claim forms completed on the day of the accident and 7 August 1998 and a groundsman's report also completed on the day of the accident. The players' sign on form for the day of the accident is available and provides the names of the players, coach and trainer on that day. There are minutes of the meeting of the South Sydney Junior Rugby Football Club Ltd, which refer to the injury of the plaintiff which are available (Ex A). There are medical reports from the date of the accident to date available. 40 Taking the above factors into account it is my view that the defendant will be afforded a fair hearing. The plaintiff has discharged his onus and I am satisfied it is just and reasonable to extend the limitation period. 41 Costs are discretionary. In Wynter, Sheller JA at paras 147-148 stated that, in relation to costs, ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The defendant's opposition was not wholly unreasonable. Further Part 52A r 17 of the Supreme Court Rules 1970 (NSW) provides that where a party applies for an extension of time, unless the Court otherwise orders, he or she shall, after the conclusion of the proceedings, pay the costs of and occasioned by the application. This is not a matter where the Court would 'otherwise order'. It is my view that the appropriate order for costs is that the plaintiff should pay the proposed defendant's costs.

(1) Leave is granted to the plaintiff to extend the limitation period in respect of the Maroubra Lions Rugby League Football Club Incorporated in relation to causes of action pleaded as occurring on 26 July 1998 pursuant to ss 60C and E up to and including 22 June 2004.

(2) The plaintiff is to file and serve an amended statement of claim, adding Maroubra Lions Rugby League Football Club Incorporated as a defendant, by 22 June 2004.

(3) The plaintiff is to pay the proposed defendant's costs. (4) The matter is to be allocated a status conference after 22 June 2004. Court to notify parties. **********

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