Peter Joseph Haylen v New South Wales Rugby Union Limited

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Einstein J 15 March 2002 11883/88 PETER JOSEPH HAYLEN v NEW SOUTH WALES RUGBY UNION LIMITED JUDGMENT

The Proceedings 1 On 17 April 1982, Mr Peter Joseph Haylen, then 20 years of age, suffered injuries resulting in quadriplegia whilst participating in a Second Grade Colts rugby union football match as a member of the Sydney University Football Club team playing against a St George Rugby Union Club team. 2 On 15 April 1988, Mr Haylen commenced two sets of proceedings in the Common Law Division of this Court. Proceedings No 11883/88 ["the first set of proceedings"] were commenced against New South Wales Rugby Union Limited ["the NSWRU"]. Proceedings No 11884/88 ["the second set of proceedings"] were commenced against the University of Sydney.

The Notices of Motion 3 Presently before the Court are the following Notices of the Motion for hearing: · The plaintiff's Notice of Motion filed in the first set of proceedings on 27 July 2001 seeking leave to file an amended statement of claim in the form annexed to the motion; · The NSWRU's Notice of Motion filed on 6 August 2001 seeking: Orders summarily dismissing the proceedings pursuant to Part 13 rule 5 or alternatively staying the proceedings pursuant to Part 33 rule 6 or alternatively that the statements of claim be struck out as disclosing no reasonable cause of action pursuant to Part 15 Rule 26. 4 At the commencement of the hearing the solicitor for the University of Sydney announced that it consented to orders made granting leave to file the amended statement of claim in the second set of proceedings. In the result it was only the motions before the Court in the first set of proceedings which were litigated. Hence references hereafter to 'the defendant' will be references to the NSWRU.

The relevant pleadings 5 The original form of the statement of claim in the first set of proceedings materially pleaded: · The incorporation of the defendant; [paragraph 1] · That the defendant at all material times propagated the game of rugby union within the State of New South Wales; [paragraph 2] [Particulars furnished as to what was meant by the word "propagated" were: "the general encouragement and promotion of the game in accordance with the objects set out in the defendant's Memorandum of Association and as regulated by the defendant." ] [Particulars furnished as to whether it was alleged that the propagation of the game of rugby union was communicated to or otherwise affected the plaintiff were: " with the authorities of the Sydney University Sports Union concerned with the organisation and running of the rugby union club within the student body. "] · That at all material times the defendant regulated and/or controlled the playing of rugby union within New South Wales and/or fixed the rules and/or procedures by which the said game was played within New South Wales; [paragraph 3] [Particulars were sought as to when, where and by whom on behalf of the defendant it was alleged that the defendant regulated, controlled, fixed the rules and/or the procedures by which the game of rugby union is played within the state of New South Wales. The response was: " By its control of the sport as played by affiliated bodies in the exercise of its powers under the Memorandum and Articles of Association of the defendant's body…" ] · That the plaintiff was at all material times a member of a rugby union football team of the University of Sydney playing rugby union football in the State of New South Wales; [paragraph 4] · That the defendant owed a duty of care to the plaintiff 'to so organise and regulate the playing of the game of rugby union so as not to expose the plaintiff to unnecessary risk of injury'; [paragraph 5] [Particulars were sought as to whether it was alleged that the defendant organised or regulated or controlled the playing of the game of rugby union in which it was alleged that the plaintiff had suffered his injury. If the answer was in the affirmative, particulars were sought as to the facts and circumstances upon which the allegation was made. The response was: " Yes. By virtue of its powers under its Memorandum and Articles of the Club in which he was playing with the defendant. The plaintiff also relies upon and independently of this the propagation of the sport by the defendant as regulated by the rules then approved by the defendant as at 1982. "] · That on or about 17 April 1982 whilst playing in a game of rugby union the plaintiff suffered injury in a scrum or attempted scrum at Lugarno; [paragraph 6] The particulars furnished were as follows: "The plaintiff's team packed over prior to engagement with the opposing team and the second row pushed forward prior to such engagement thus causing the two props to collapse forward with the plaintiff who had his arms pinned behind their backs. He thus broke his spine and became a quadriplegic" · That in breach of its duty of care the defendant negligently 'failed to take proper care for the safety of the plaintiff in the regulation and/or control of the game of rugby union'; [paragraph 7] · That by reason of such breach the plaintiff suffered injury; [paragraph 8] · That the plaintiff's injuries were occasioned by the negligence of the defendant. Particulars of negligence given were: (a) propagating the game of rugby union when the rules under which it was played exposed persons playing the sport to unnecessary risk of injury (b) failing to so control or regulate the sport to eliminate unnecessary risk of injury to persons playing therein

(c) failing to warn persons playing the sport of the risks of injury to which they were thus subjected · Particulars of damages were given and a claim to damages was made.

The proposed amendments to the statement of claim in the first set of proceedings

6 The proposed amendments to the statement of claim in the first set of proceedings are as follows [italics are used to identify the changes]: · to replace paragraph 3 by the following altered form of wording: " At all material times the defendant regulated and/or controlled the playing of rugby union within New South Wales both generally and specifically in respect of the match in which the plaintiff was playing in which he suffered the injuries hereafter referred to and/or fixed the rules and/or procedures by which the said game was played within New South Wales." · to replace paragraph 7 by the following altered form of wording: "In breach of its said duty of care the defendant negligently failed to take proper care for the safety of the plaintiff in the regulation and/or control of the game of rugby union generally and in respect of the specific match in which the plaintiff suffered his injuries ." · To replace the particulars of negligence by amending certain paragraphs and by adding a number of other paragraphs. 7 The proposed substitute particulars of negligence are as follows [italics are used to identify the changes]: (a) Propagating, controlling and organising the game of rugby union and specifically the match in which the Plaintiff was playing when , as the Defendant knew or ought to have known, the rules under which it was played exposed persons playing the said sport to unnecessary risk of injury.

(b) Failing to so control or regulate the said sport and specifically the match in which the Plaintiff was playing to eliminate unnecessary risk of injury, of which the Defendant knew or ought to have known, to persons playing therein.

(c) Failing to warn persons playing the said sport of the risks of injury, of which the Defendant knew or ought to have known, to which they were thus subjected.

(d) Failing to warn the Plaintiff of the dangers, of which the Defendant knew or ought to have known, to which he was subjected.

(e) Propagating, controlling and organising the game of rugby union in NSW and specifically the match in which the Plaintiff was playing when the defendant knew or ought to have known that persons (such as the Plaintiff) playing in the position of hooker might suffer catastrophic injury in scrums.

(f) Failing to so control or regulate the said sport to eliminate unnecessary risk of catastrophic injury, of which the Defendant knew or ought to have known, to persons playing therein.

(g) Failing to introduce, implement or enforce rules (such as those rules later introduced in 1984) to eliminate or minimise the risks of catastrophic injury to players, especially persons playing in the position of hooker, in circumstances where the Defendant knew or ought to have known of such risks.

(h) Failing to take all reasonable and necessary measures to avoid the plaintiff suffering a catastrophic injury.

(i) Failing to obtain any or any adequate information concerning the risks of injury and/or catastrophic injury to players in scrums, especially to persons (such as the Plaintiff) playing in the position of hooker, before promulgating or controlling or organising or continuing to promulgate or control or organise the game of rugby union in NSW and specifically the match in which the Plaintiff was playing and/or before permitting persons to play the game.

(j) Failing to take any or any adequate measures whether by introducing, implementing and enforcing rules (such as those rules later introduced in 1984), or otherwise to prevent or minimise injury and/or catastrophic injury in scrums, especially to persons (such as the plaintiff) playing in the position of hooker.

(k) Failing to warn persons such as the Plaintiff playing the said sport of the risks of catastrophic injury, of which the Defendant knew or ought to have known, to which they were thus subjected.

(l) Causing, permitting, allowing or encouraging dangerous sporting activities or practices, in circumstances where the Defendant knew or ought to have known of the dangers of such activities or practices.

(m) Causing or permitting players to engage in dangerous sporting activities and specifically in the match in which the Plaintiff was playing, in circumstances where the Defendant knew or ought to have known of the dangers of such activities.

(n) Causing or permitting the plaintiff to play in the position of hooker, in circumstances where the Defendant knew or ought to have known it was unsafe and dangerous to do so.

(o) Failing to eradicate or take steps to eradicate dangerous scrums and specifically in the match in which the Plaintiff was playing, in circumstances where the Defendant knew or ought to have known of the dangerous nature of the same.

(p) Failing to provide or to take steps to ensure the provision of any or any adequate system for the instruction, coaching or supervision of players in safe or proper scrums and scrum techniques generally and specifically in respect of the match in which the Plaintiff was playing.

(q) Failing to advise, direct or ensure that there was a pause before the engaging in the scrum generally and specifically in respect of the match in which the Plaintiff was playing.

(r) Failing to advise, direct or ensure that scrums were properly packed before engaging generally and specifically in respect of the match in which the Plaintiff was playing.

(s) Failing to advise, direct or ensure that force was not applied in the scrum situation from either behind the front row or at all until engagement was made generally and specifically in respect of the match in which the Plaintiff was playing.

(t) Failing to direct, require or advise proper neck strengthening exercises by players, especially persons (such as the Plaintiff) playing in the position of hooker, in circumstances where the Defendant knew or ought to have known of the dangers of injury and/or catastrophic injury to such players without them having undertaken such exercises.

(u) Causing and/or permitting the Plaintiff to participate in a rugby union match without having had necessary neck strengthening exercises.

(v) Failing to ensure that the Plaintiff had proper neck strengthening exercises.

(w) Failing to supervise the activities of the Plaintiff to ensure that any training program included necessary neck strengthening exercises. (x) Failing to warn the Plaintiff of the dangers, of which the Defendant knew or ought to have known, of him playing in a rugby union match without him having had necessary neck strengthening exercises. 8 During argument counsel for the plaintiff submitted that the duty contended for could be defined along the following lines: "The defendant owed a duty to the plaintiff to make rule changes to eliminate or minimise the risk of catastrophic injury, to inform him that there were risks of catastrophic injury and to advise him about how the risk of catastrophic injury may be avoided ." [Transcript page 166]

An overview of the issues 9 The decision of the High Court of Australia in Agar v Hyde; Agar v Worsley (2000) 201 CLR 552 handed down on 3 August 2000 has a special relevance to these motions in a number of ways. 10 First and foremost the reasons for judgment deal generally with the question of duties of care and the conception of legal responsibility in terms of contact sports such as the game of rugby football. The parties before me were at issue as to what was the ratio decidendi of the High Court decision. Additionally they were at issue as to the application of the principles in that decision to the present proceedings. 11 Secondly it seems that the current litigation and features of the parties to that litigation has at material times been closely influenced by the progression through the courts of the Agar litigation. Indeed it appears that the NSWRU was a defendant in the Agar litigation but following the High Court judgment (and as that litigation was never determined upon its merits), the proceedings were terminated as against all defendants including the NSWRU. 12 Thirdly the plaintiff in the proceedings before me sought very carefully to distinguish the Agar proceedings and in particular the High Court judgment from the way in which the plaintiff sought to put the present proceedings. 13 Clearly, very great care has been taken in an endeavour to frame the particulars which are now sought to be relied upon, so as to avoid wherever possible the obscurities of definition pointed out in relation to the particulars before the Court in Agar and to achieve a degree of precision which may be sufficient to ground an arguable cause of action in this area. 14 At the same time the problems which Agar threw up in terms of the inability of the Board of the IRFB (or the delegates attending its meetings) to control what happened at matches in either a legal sense or in a practical sense are sought to be addressed by the pleadings in issue here.

An analysis of Hyde v Agar 15 Agar involved separate sets of proceedings brought by two players against individual members of the International Rugby Football Board a number of whom resided outside Australia. One of the functions of the Board was to frame, alter and interpret the rules of rugby union football known as the "Laws of the Game of Rugby Football". It was common ground that from time to time the rules were changed with considerations of safety in mind. The plaintiffs alleged that the Board members were liable in negligence to them for injuries sustained while playing the game. In general terms the allegation was that the rules relating to the formation of scrums exposed them to unnecessary risk of physical injury and that each of the members of the Board owed them a duty to take reasonable care in monitoring the operation of the rules to ensure that they did not provide for circumstances where risks of serious injury were taken unnecessarily. The members of the Board denied that such a duty of care existed. The injuries were alleged to have been respectively incurred on 23 August 1986 and on 19 August 1987. In each action, the plaintiff applied pursuant to Part 10 rule 2 of the Supreme Court Rules 1970 (NSW) for orders granting leave to proceed against the Board members who had been served outside Australia and for orders extending the limitation period against them. Those members applied under Part 11 rule 8 and Part 10 rule 6A for an order setting aside service, a declaration that the Supreme Court of New South Wales had no jurisdiction over them or an order that it decline to exercise its jurisdiction in the proceedings against them or that it determine that it was an inappropriate forum for the trial of the proceedings. An order was made by Grove J at first instance setting aside service and dismissing the applications for leave to proceed. The Court of Appeal allowed both appeals and granted leave to proceed: Hyde v Agar, Worsley v Australian Rugby Football Union Ltd (1998) 45 NSWLR 487. 16 Individual judgments were delivered by Gleeson CJ and by Callinan J. A joint judgment was delivered by Gaudron, McHugh, Gummow and Hayne JJ. Each judgment was unanimous in allowing the appeals and setting aside the orders of the Court of Appeal.

The judgment of the Chief Justice 17 In my view, although there were a number of disparate factors which contributed to the Chief Justice holding that no such duty of care was owed, the holding was critically that the suggested duty was simply of uncertain content. 18 Having said that, it may be convenient to shortly summarise the judgment of the Chief Justice as follows: "fundamental to the claims made was the contention that, by reason of the capacity of the Board to make and change the rules of the game of rugby football, each appellant owed a duty of care to all players of the sport, including the respondents." [paragraph 5] · The content of that duty as formulated before the Court was: "a duty to take reasonable care in monitoring [meaning to take reasonable care to ensure that the rules did not provide for circumstances where risks of serious injury were taken unnecessarily] the operation of the rules of the game to avoid the risk of unnecessary harm to players." [paragraph 5] · The existence of the asserted duty of care formed the central issue in the appeals; [paragraph 9] · The fundamental question was whether or not the appellant owed to the respondents a duty of care of the kind upon which the claims against them depended. No such duty of care was owed; [paragraph 9] · The question which arose was "not whether those who are, in one way or another, concerned with making, altering and interpreting the rules of the game of rugby football are, or should be, interested in the safety of players…. What is in issue is not a matter of moral obligation, or social responsibility, but a legal duty of care, breach of which might result in liability in damages to any participant in the sport, anywhere in the world, for any injury suffered in consequence of the breach." [paragraph 10] · The content of the suggested duty was elusive: "Reasonableness is the ultimate test, but reasonableness can only be determined in a context. The obligation, it is argued, is to see that the rules of the game do not expose players to unnecessary risk of serious injury. The risk of young men having their necks broken is a matter to be taken seriously; but some would say the same about other, and lesser, risks associated with rugby football. The game is based on activities such as tackling, scrummaging, rucking and mauling which, by the standards of most members of the community, are obviously dangerous, and which regularly result in injuries which many people, even if not all footballers, would regard as serious . By reference to what standards are such risks to be classified as necessary or unnecessary? What is an unnecessary risk in an inherently dangerous sport ? When an obviously risky activity is engaged in, voluntarily, for pleasure, by an adult, how does a court determine whether a certain level of risk is unnecessary? The qualification, "unnecessary", is of critical importance to the respondents' argument. If it were removed, the contention would be manifestly implausible. But ideas of what is an unnecessary risk in playing a sport vary widely. It is probably the case that most people in the community would not play rugby football, and would regard any possible pleasure associated with the game as being outweighed by the risk of injury. Even amongst enthusiasts, there would be differing views as to the degree of risk that is acceptable. Individuals playing in the one match might have different levels of risk they are personally willing to accept. There are sports, including some codes of football, which carry much less risk of injury to players than rugby football. There is no objective standard by reference to which it is possible to decide that a given level of risk involved in rugby is acceptable, but that beyond that level, it is "unnecessary ". The high degree of subjectivity of an assessment as to what level of risk inherent in the sport, as played according to a certain set of rules, is unnecessary, is a factor which weighs against a conclusion that there is a legal duty which, in its practical application, depends upon such an assessment. Furthermore, the risks involved in playing a body-contact sport arise from various sources . A risk might be inherent to an individual player with a particular vulnerability. Or it might result from the vigour with which an opponent, or a team-mate, plays . It cannot be the case that all avoidable risks have to be eliminated. The only way to avoid risk of injury is not to play. No doubt the rules of the game could be altered in many respects to make it safer, but people who enjoy playing, or watching, rugby football have other priorities." [paragraphs 17, 18] [emphasis added] · The reasons of the Court of Appeal had identified 'control' and 'reliance' as the key to any potential duty of care; [paragraph 12] · In so far as the Court of Appeal had held that if a duty existed, its foundation was the combination of control and reliance:

"The control attributed to the members of the Board was remote from the respondents, and extended only to participating, or having the capacity to participate, in a process of laying down the conditions of a sporting contest in which people might voluntarily engage. As to reliance, the sporting contest involved an obvious risk of injury; a risk that would be affected by a number of factors, including the attitudes, capacities and propensities of individual players , which were beyond the influence of the appellants." [paragraph 21] [emphasis added] · The liability sought to be imposed upon people in the position of the appellants was practically indeterminate in extent: "I am unable to accept that the circumstances of life in this community are such that the conception of legal responsibility should be applied to the relation which existed between the appellants and all people who played the game of rugby football and were, on that account, affected by their action or inaction in relation to the rules of the game. Undertaking the function of participating in a process of making and altering the rules according to which adult people, for their own enjoyment, may choose to engage in a hazardous sporting contest , does not, of itself, carry with it potential legal liability for injury sustained in such a contest." [paragraphs 22,23] [emphasis added]

The judgment of Gaudron, McHugh, Gummow and Hayne JJ 19 Again it is convenient to shortly summarise the joint judgment as follows: · On an application to set aside service under Part 10 Rule 6A where the criteria were not met, the prospects of success of a claim fell for consideration. The same test is to be applied in deciding whether the originating process served outside Australia makes claims which have such poor prospects of success that the proceedings should not go to trial as is applied in an application for summary judgment by a defendant served locally. · A Court whose jurisdiction is regularly invoked in respect of a local defendant should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. The test to be applied had been expressed in various ways. Once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process. All of the verbal formulae which had been used were intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [paragraph 57 and cases cited] · The essential gravamen of each respondent's claim concerned the following contentions: · That the Board of the IRFB made, and from time to time amended, the laws of the game of rugby football; · That the individual appellants who attended the meetings of the Board that were held in the year or so before the respondent was injured (or the corporate or unincorporated bodies who nominated persons to attend those meetings) could cause changes to be made to the laws of the game; · That the persons who attended those meetings (or those who nominated them to attend) owed a duty of care to all players who played the game. [paragraph 62] · It was not arguable that the appellants in either case owed the respondent a duty of care. [paragraph 65] · Duties of care are owed to individuals and the basic rule of the law of negligence was that it is incumbent on a claimant to establish breach of an independent duty to himself as a particular individual. [paragraph 67] · If the appellants owed a duty to the respondents, they must have owed a similar duty to the many thousands, perhaps hundreds of thousands, of persons who played rugby union throughout the world under the laws of the game which the IRFB had made. To hold that each of the individual appellants owed a duty of care to each person who played rugby under those laws was so unreal as to border on the absurd. [paragraph 67] · An important distinction was generally drawn under the common law between a positive act causing damage and a failure to act which resulted in damage, with the common law not ordinarily imposing a duty on a person to take action where no positive conduct of that person had created a risk of injury to another person. [paragraph 68] · The complaint was that the appellants had failed to alter the status quo in failing to alter the rules under which the respondents voluntarily played the game. The appellants were members of an institution which saw itself as the law-giver for the sport of rugby. They had "done nothing that increased the risk of harm to either of the respondents". The appellants "no more owed a duty of care to each rugby player to alter the laws of rugby union than parliamentarians owe a duty of care to factory workers to amend the factories legislation." [paragraph 69] · The exact content of the duty which had been said to concern the rule-making function of the Board was not entirely clear. [paragraph 71] · A particular of negligence which had described the duty as "to exercise reasonable care in the rules made for the playing of the game to ensure that the foreseeable risk of injury to players, particularly, for scrummaging, was avoided," left obscure what was meant by saying that the duty was to "exercise...care in the rules." [paragraph 71] · If the words "risk of injury" were intended to refer to any and every kind of injury (as the particulars suggested) then they were clearly too wide when used in the context of a vigorous, sometimes violent, body contact sport like rugby union football. [paragraph 71] · If the negligence of the appellants consisted in their failure to change the laws of the game, a number of problems arose: · No individual member of the IRFB had the power to change the laws of the game; [paragraph 77] · The IRFB itself did not have the power to ensure that the rules it promulgated were adopted; [paragraph 79] · "The participation of individuals in any particular match was regulated by whatever association organised the match. Whether that association chose to adopt, without modification, the laws of the game promulgated by the Board of the IRFB was for it to say, perhaps influenced (even very probably influenced) by whatever affiliations that particular association had with state, national or international associations. The byelaws of the IRFB expressly acknowledged that local variations were not unknown. The decisions about what rules would be adopted were, therefore, made at each level of this process (club, regional, state and national level) by groups of part-time volunteers, many of whom were doing nothing more than trying to give something back to a sport from which they believed they had derived benefit as youths and young men". [Paragraph 79] · "The laws of a game like rugby football differ from norms of conduct enforced by the courts. The application of the rules embodied in the laws of the game in any particular rugby match is, in very important respects, a matter for the skill and the judgment of the particular officials who controlled the match… What is 'unduly' rough play in a body contact sport? What is 'dangerous' play? All these and many other judgments must be made by the officials." [Paragraph 80] · It followed "that in no relevant sense did the Board of the IRFB or those who attended its meetings as delegates, control what happened in the matches in which the respondents were injured. The IRFB did not organise either of these matches. It did not decide whether the laws of the game which it promulgated would be adopted in these matches. The highest point to which the respondents contentions could arise was to assert that the IRFB 'influenced' the way in which rugby football would be played in Australia. But it is not arguable that the influence amounted to control over the sport: at least at the level at which the respondents played. In particular, they were not subject to any legal control by the IRFB or the delegates to its meetings. Nor can it be argued that they were subject to control in any practical sense. There were too many intervening levels of decision-making between the promulgation by the IRFB of laws of the game and the conduct of the individual matches in which the respondents were injured. What happened depended to a greater or lesser extent upon the several decisions of the national union, the local union and the association which organised the competition and on the decisions of the referees who acted in those matches". [Paragraph 81] · "Neither the Board nor the delegates invited, let alone directed or required, either respondent to play in the match in which he was injured." [paragraph 82] · The appellants did not have the power to change the laws of the game to reduce the risk of players being heard by the conduct of other players. [paragraph 83] · In so far as the duty alleged was a duty to alter the laws of the game there were very clear difficulties in the path of such holding. "Is it alleged that what happened to each respondent resulted from a breach of the then existing laws or that it happened notwithstanding that there was no breach of those laws? Would different laws have prevented the injuries suffered by the respondents? Which of the many different possible variations to the laws should have been adopted?"…If the argument was that 'the law-makers should have altered the laws by providing such severe penalties for conduct of the kind in which his opponents engaged as to deter its occurrence or made new rules governing the formation of scrums… what is there to say that even the changed law would have been obeyed?" [Paragraphs 84, 86] · "To hold that the appellants owed a duty to propose and join in making a law of the game which would have better deterred breach of the existing rules is to extend notions of duty of care too far. It would cast a positive duty to act on individuals who could not control the involuntary conduct of others (the opposing players) which was the immediate cause of harm to the respondent…. to cast a positive duty on the appellants to change the laws of the game would provide for compensation of a person who was injured, not because of anything which the appellants did but because of the wrongful act of other players. To impose such a duty would attribute to the appellants a capacity to control the conduct of the players which they did not have. It would deflect attention from those who were responsible and it would divert the notion of individual responsibility which lies at the core of the law of negligence." [Paragraph 87] [emphasis added] · If there was no breach of the laws there could be no claim against the player's opponents. 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. [Paragraph 88] · [W]hy should the law-makers be liable when the player who inflicted the injury is not? If the laws of the game define the conduct to which an adult participant consents, the law-makers should not be liable because they could have made the activity that the participant chose to undertake less dangerous. The absurdity of this proposition is highlighted by the fact that, in many activities, the danger is part of the activity's attraction. The participant may therefore not have chosen to engage in the activity at all if it was less dangerous. [Paragraph 89] · It was not arguable that the appellants owed the respondents a duty of care. [paragraph 92] The judgment of Callinan J 20 Callinan J held that such powers and functions as the appellants possessed were entirely voluntary and not compatible with any duty to the respondents. Referring to the judgment of Gaudron J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 18: "[l]iability will arise in negligence in relation to [a] failure to exercise a power or function only if there is, in the circumstances, a duty to act", his Honour held that no such duty could be discerned in the proceedings before the High Court. 21 In the course of his Honour's judgment the following was said: "Rugby union is notoriously a dangerous game. It is a game, often of quite violent bodily contact. Everyone who plays it is vulnerable. Some positions, such as the front row, are almost equally notoriously more dangerous than others, for example, the three-quarters, especially the wings. The respondents here could not possibly have been ignorant of any of these matters. And, in any event, in one of the cases, the injuries resulted from an infringement of the Laws then current, by opposing players, in no different way from those which could have been inflicted as a result of infringements of the amended Laws. This last matter could raise an issue of causation in Hyde's case also, but it is unnecessary to pursue that. It is relevant however to refer to some other matters which bear upon the question of a duty of care. Sport, particularly amateur sport, stands in an entirely different position from the workplace, the roads, the marketplace, and other areas into which people must venture. When adults voluntarily participate in sport they may be assumed to know the rules and to have an appreciation of the risks of the game. In practically every sport safer rules could be adopted . Should the international body controlling cricket have been held liable for not prescribing the wearing of helmets by batsmen before the West Indian cricket selectors unleashed upon the cricketing world their aggressive fast attack of the 1970s? Should cricket be played with a soft, rather than a hard ball? Should hockey sticks be made of semi-rigid materials only? Rugby union, particularly that with which the appellants might primarily be thought to be concerned, the international game between national sides, is not just a game for players. It is also a game for spectators. The very existence and continuation of the international competition might well depend upon their interest and attendance at matches. No doubt many spectators attend because of the vigorous nature of the contest. Furthermore, at both the representative and lower levels of the game there can be no doubt that fit, usually young men are attracted to, and play the game because it involves an opportunity to dominate physically other like young men in circumstances in which injuries of various kinds will be inevitable. Fitness, technique, familiarity with the Laws, flexibility, strength, physical shape, weight, and skill, and disparities in these between opposing sides, will all as well have a part to play in the avoiding and sustaining of injuries. Not only is the number of rugby matches played world-wide incalculable, but even more so is the number of scrums set during those matches, scrums in which six people are always engaged in the front row. This matter may give rise to the spectre of an indeterminate number of claims by an indeterminate number of people throughout the world, a factor which, taken with others provides reason to hold that no relevant duty of care arises in the circumstances. Those others, I would summarise as: the respondents were engaged in amateur sport; the voluntary participation of the appellants; the unenforceability of the IRFB's Laws; the voluntary nature of the IRFB itself; the absence of reliance ; the notoriety of the dangers the game presented ; the appellants' answerability to and relationship with their home Unions; and, the distance in time, place, and contemplation between the respondents playing in the games in which they were injured and the appellants." [Paragraphs 126, 127] [emphasis added]

The principles and permissible evidentiary bases in respect of the disparate motions 22 It has to be recalled that the disparate motions being heard together carry with them in some cases different and in some cases overlapping approaches to the admissibility and relevance of an evidentiary base. 23 Insofar as the application for leave to amend is concerned, the types of factor generally available to be taken into account were summarised in State of Queensland v J L Holdings Pty Ltd (1996) 189 CLR 146 where the High Court carefully analysed the development up to 14 January 1997 of approaches taken to the exercise of the discretion to permit amendments to pleadings. Generally that judgment of the High Court, without purporting to be exhaustive, serves to set out the types of consideration which ought to direct the mind of the decision maker on such applications. At the same time the judgment generally underlies the wide-ranging form of evidentiary materials available to be mobilised on applications for leave to amend. However, the Court accepted that the trial judge is afforded a large discretion in relation to the exercise and that it would be unwise and contrary to principle to seek to fetter that discretion with rigid rules. The special significance of the decision is to direct the mind of the decision maker to many of the considerations which may be taken into account in exercising the discretion and to emphasise, if it needed to be emphasised, that justice is the paramount consideration in determining such an application. 24 J L Holdings dealt, of course, with the particular circumstances before the Court and whilst the general statements to be found in the joint judgment of Dawson, Gaudron and McHugh JJ and in the judgment of Kirby J assist a decision maker considerably, the obvious fact is that each and every case in which an application for leave to amend is pursued requires the Court to deal with the special and peculiar matrix of circumstances which obtain at the material point in time in the litigation in respect of which such application is pursued. 25 To my mind the following statements of principle affirmed in J L Holdings are fundamental and clearly and succinctly express the general approach to be taken: (a) "Now, I think it is a well established principle that the object of Courts is to decide the right of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the under division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Court's do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment has a matter of favour or of grace." [ Cropper v Smith (1884) 26 Ch D 700 per Bowen LJ at 710]

(b) "As the defence, if established, would be a complete answer in the either action, the amendments sought should have been an amount unless it appeared that injustice would thereby have been an occasion to the respondent, there being nothing to suggest fraud or improper concealment of the defence on the part of the appellants. With the exception of the suggestion of prejudice arising in respect of the loss of the possible claim against the nominal defendant, the matters relied upon by the respondent in opposition to the amendments sought go at the most to delay and irregularity only, matters which are relevant to costs by do not constitute injustice to the respondent in the sense in which that expression is used" [ Clough v Rogers (1974) 48 ALJR 481 at 482] 26 A recent development in this State, which the Court is also entitled and indeed required to take closely into account, relates to Part 1 of the Supreme Court Rules as modified by Amendment No 337, which elucidates the overall objectives of practices and procedures as specified in the Rules. The overriding purpose of the Rules is to facilitate the "just, quick and cheap resolution of the real issues" in civil proceedings. The overriding purpose clause imposes an obligation on the Court to give effect to the overriding purpose when it exercises any of its powers. 27 The motion for summary dismissal permits of an evidentiary base but is not available for the purpose of litigating factual matters which may fairly be open to be litigated. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Barwick CJ at 130 referred to not only the significance of a case having to be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination by the Court [which principle is pervasive and is followed in this judgment - cf Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J] but also to the inherent jurisdiction of the Court to stay actions which are frivolous and vexatious and an abuse of process, for which purpose the defendant had relied "on affidavits whereof the only material outcome is my knowledge of the existence and particulars of the authorities from the Commissioner to the other defendants to which I have already referred". And in Agar the Chief Justice at paragraph 9 referred to the material before the Court which consisted "of the pleadings and undisputed evidence explaining a number of matters referred to in the pleadings [there being] no reason to suppose that evidence might emerge at a trial which would alter that position". 28 Barwick CJ further made plain, as I accept, that the exercise of the jurisdiction to summarily dismiss proceedings is not to be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiffs claim. As the Chief Justice pointed out: "[a]rgument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." [at 130] 29 Insofar as the motion pursued by the defendant relies upon a want of prosecution, the obvious evidentiary base permissible goes to the progress of the proceedings from the commencement date onwards and of course includes prejudice as well as any explanations or appropriate inferences as to how such a very long period has been permitted to pass without the proceedings being brought on for hearing. 30 Notwithstanding that the motions have been heard together by consensus, it is particularly important on the issue of the existence of the alleged duties of care for the Court not to stray outside of the pleading and particulars and those matters which are not in issue or could not fairly be said to be in issue.

An inherently dangerous game 31 It is absolutely clear that the game of a rugby union is inherently a dangerous game often involving quite violent bodily contact. As Callinan J has pointed out, everyone who plays it is vulnerable. Hence I proceed upon the basis that these matters are not in issue and could not be said to be in issue. [see transcript page 164.18]

The defendant's evidence that the NSWRU did not exercise the type of control for which the plaintiff contended 32 A question arises as to whether, as the defendant's counsel submitted, the Court was entitled to take into account the detailed evidence said not to be contradicted and not to be controversial and to negative the proposition that in no way shape or form could it be said that in 1982 the NSWRU exercised any form of relevant control of the type for which the plaintiff contended. Principally this form of evidence from the defendant compromised a number of affidavits made by persons who had been involved in the administration of rugby at material times including for example the affidavits of Mr Peter Falk who was a former director of NSWRU from 1972 to 1985 and who had deposed inter alia: · That in respect of the 1982 game the subject of the plaintiffs claim, it was played as part of the Sydney grade competition · That in 1982 the Sydney Grade competition was controlled by Sydney Rugby Union ["SRU"] · That the SRU organised the competition, but in no way did it have any control over who played for individual clubs in that competition · That the SRU did not in anyway direct or compel the plaintiff to take part in the match in which he was injured · That the NSWRU managed the New South Wales State team and the coaching and development of the State side. It had no involvement in running any rugby competitions such as the Sydney grade competition in which Sydney University Club, and in particular its club team participated. · That the NSWRU did not in any way direct or compel the plaintiff to take part in the match in which he was injured. · That neither the SRU nor the NSWRU had the ability to control or direct who individual clubs appointed as coaches for their teams nor did the SRU or the NSWRU have any capacity to direct individual clubs as to how the game was to be played. · That the SRU and the NSWRU had no control over refereeing of individual matches, as referees were appointed by the Sydney Rugby Referees Association. · That neither the SRU nor the NSWRU had the power to amend the laws of the game and that at no time during the period in which he was administrator of rugby did any rugby union in Australia ever play the game other than in complete accordance with the laws of rugby football as propagated by the International Rugby Football Board. The only exception to that general position was that from time to time Australia had dispensations in relation to certain laws regarding the replacement of players during first-class matches.

The relevant 'affiliations' 33 The parties were apparently unable to agree upon a document which would record the relevant affiliations said to be proven by the materials before the Court. The defendant's submission is that the position was as follows:

34 The plaintiff's submission in terms of the relevant affiliations was put in the following table terms:

The plaintiff's reliance upon 'lawful authority to command' 35 It is fair to say that counsel for the plaintiff appeared to place reliance upon materials sought to be placed into evidence which it was submitted gave the NSWRU sundry powers. Hence for example he relied upon the Memorandum and Articles of Association of the NSWRU. The submission, praying in aid a phrase to be found in Zuijs v Wirth Brothers Limited (1955) 93 CLR 561 at 571, was that "what matters is lawful authority to command so far as there is scope for it". [transcript page 169] Many provisions were referred to in support of the submission that the defendant was in a position to ensure that its rules were adopted and had sundry powers in terms of the punishment which could be visited upon affiliated bodies and players if its rules were not adopted. The convenient course is to include as Appendix "A" to this judgment, an extract of the formal sections of materials generally relied upon by the plaintiff. 36 Generally counsel for the plaintiff's approach was to seek to distance the position said to obtain here from that which was said to have obtained in Agar. It was submitted that in Agar: "there were too many intervening levels of decision-making between the promulgation by the board of the laws of the game and the conduct of individual matches. What happened depended to a greater or lesser extent upon the several decisions of the national union, the local union and the association which organised the competition, and on the decision of the referees." [transcript page 52] 37 The facts, matters and circumstances said by the defendant to be borne out by the evidence and said to be undisputed were put in the following terms: · In the 1982 season, Sydney University Football Club matches, including the subject match, were played in the Sydney Metropolitan Rugby First Division Competition. · The Defendant was a voluntary organisation involved in the general encouragement and promotion of rugby football (Falk Affidavit, 16.08.01, para. 4). · The Plaintiff voluntarily chose to participate as a member of his team in the subject match and in the scrum. · The Defendant did not make or alter the rules of rugby union football in accordance with which the subject match was played (Falk Affidavit, 16.08.01, para. 10). · The team in which the Plaintiff played and his participation as a member of that team was controlled by the Sydney University Sports Union through its Club, Sydney University Football Club (Kelly Affidavit, 10.12.99, para. 7). · The Plaintiff was trained and coached by the Sydney University Football Club. · The Sydney University Football Club fielded the team in which the Plaintiff played the subject match in the Sydney Metropolitan Rugby Competition. · The Sydney Metropolitan Rugby Competition was organised, promoted, funded and controlled by the Sydney Rugby Union (Winstanley Affidavit, 25.02.00, para. 8 and Annexure "JMW4" at p. 12; Carroll Affidavit, 25.02.00, para. 10; Falk Affidavit, 16.08.01, para. 7). · The Sydney University Football Club was affiliated with Sydney Rugby Union (Winstanley Affidavit, 25.02.00 and Annexure "JMW3" at p. 11). · Sydney Rugby Union was a body affiliated with the Defendant (Gunson Affidavit, 16.02.00, para. 29 and Annexure "PJG11" at p. 42; Carroll Affidavit, 22.02.00, para. 6). · Neither rugby clubs such as Sydney Football Club nor their players such as the Plaintiff were directly affiliated with or members of the Defendant. · The Defendant, Sydney Rugby Union, Sydney University Sports Union and Sydney University Football Club were separately administered bodies (Winstanley Affidavit, 25.02.00, para. 9 and Annexure "JMW3" at p. 11; Carroll Affidavit, 22.02.00, para. 19; Gunson Affidavit, 16.02.00, para. 34; Kelly Affidavit, 10.12.99, para. 7). · The Defendant was responsible for managing the New South Wales State representative team, international touring teams, coaching and development of the New South Wales State team and representation of the State of New South Wales at the Australian Rugby Union (Carroll Affidavit, 22.02.00, paras. 7 and 9). · The Defendant did not: (1) select players of the Sydney Metropolitan Club teams;

(2) coach players of the Sydney Metropolitan Club teams;

(3) organise the Sydney Metropolitan Competition; or

(4) control matches played in the Sydney Metropolitan Competition; (Carroll Affidavit, 22.02.00, para.10; Gunson Affidavit, 16.02.00, Winstanley Affidavit, 25.02.00; Falk Affidavit, 16.08.01, paras. 8 and 9). [Defendants written submissions 21 September 2001] 38 In truth there was simply no evidence adduced by the plaintiff to controvert the defendant's affidavit evidence in relation to lack of practical control. In relation to the evidence before the Court on the control issue, the parties were by and large as ships passing in the night - each focusing upon a different dimension to that focused upon by the other. A summary of the relevant cross contentions is appended as appendix "B".

Dealing with the issues 39 I have come to the clear view that no duties of care of the type sought to be pleaded in any part of the proposed statement of claim (including the original unamended content thereof) exist in law.

Primary approach to the issues 40 Ultimately in the primary way in which I view the proper approach to the decision on these motions, it is strictly unnecessary for me to rely upon the defendant's evidence in relation to control. So much will appear from what follows. Duty to so organise and regulate the playing of the game so as not to expose the plaintiff to unnecessary risk of injury (pressed as duty to make rule changes to eliminate or minimise the risk of catastrophic injury)

Agar in context 41 Clearly enough Agar "demonstrates [that] participation in sport involves an appreciation of the risks of that participation" [Buttita v Strathfield Municipal Council, (unreported, 8 October 2001, NSWCA, BC 200106180) per Giles JA at paragraph 11, with whose judgment Spigelman CJ and Fitzgerald AJA agreed] 42 In my view it is inappropriate to adopt a very narrow approach to determining the ratio decidendi of the High Court decision in Agar by dint of the series of reasons which emerged from the various judgments for denying the relevant duty of care. Opie in 'The Sport Administrator's Charter: Agar v Hyde' (2001) 9 TLJ 131 at 134, expresses the view that a number of reasons for denying a duty of care emerged from the various judgments which may be summarised as follows: "1 In sport played by freely consenting adults, it is contrary to notions of individual autonomy and responsibility to impose a legal duty on the rule-making body to make the sport safer.

2 The content of the duty was problematic in that it required defining "unnecessary" risks in an inherently risky activity.

3 The duty as alleged obliged the foreign defendants to take positive action to protect the plaintiffs and there was no relationship between them that warranted reversing the law's general unwillingness to impose positive duties in the tort of negligence.

4 The plaintiffs were members of an indeterminate class.

5 Each foreign defendant was not individually in a position to amend the rules of rugby union to make the sport safer and the IRFB could not require local bodies to adopt rule changes." 43 To my mind this is correct as a broad but not exhaustive description of the reasons given in Agar. 44 When six members of the High Court have expressed close reasons for denying a duty of care, a judge of first instance should proceed on the basis that those reasons are pervasive and binding. Even if the remarks of the High Court may in certain instances be regarded as only obiter dicta, they are not dicta of a character which it is open to a first instance judge now to refuse to apply. [cf Chief Executive Officer of Customs v Tony Longo Pty Ltd [2001] NSWCA 147, Court of Appeal at paragraph 39 per Mason P, Heydon JA, Rolfe AJA; WB Anderson & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All ER 850 at 857 per Cairns J] And in any event the reasons which follow express my own views even if not bound as aforesaid. 45 The characterisation of the suggested duties which confine the same, whether in terms of the duty to make rule changes or the duty to inform/advise [see paragraph 8 above], to 'risks of catastrophic injury' poses grave practical difficulties in this context. No line is capable of being drawn as between what may be regarded as risks of serious injury and risks of catastrophic injury. [cf Gleeson CJ in Agar at paragraph 6]. As the Chief Justice observed "Depending upon the circumstances what might be a minor injury to one person might have serious consequences….for another". And as his Honour observed at paragraph 17: "The risk of young men having their necks broken is a matter to be taken seriously; but some would say the same about other, and lesser risks, associated with rugby football. The game is based on activities such as tackling, scrummaging, rucking and mauling which by the standards of most members of the community, are obviously dangerous, and which regularly result in injuries which many people, even if not all footballers, would regard as serious." 46 To my mind there is no objective standard by reference to which it is possible to discern as between, on the one hand, what is a risk of catastrophic injury throwing up the suggested duty of care and, on the other hand, what is a risk of serious but non-catastrophic injury, when no such duty would be owed. As Gleeson CJ pointed out, ideas of what is an unnecessary risk in playing a sport vary widely. The very words used in the form of duty of care sought to be pleaded in paragraph 5 of the proposed amendment are grounded upon the concept of a duty to so act as not to expose the plaintiff "to unnecessary risk of injury". It is impossible to find an objective standard by reference to which a decision may be reached that a level of risk (whether as to 'catastrophic' or 'serious' or indeed 'other' injury) involved in an inherently dangerous body contact sport is acceptable, but beyond that level is unnecessary. 47 Critically the suggested duties are of uncertain content. 48 Reasonableness, as the Chief Justice pointed out [Agar paragraph 17] being the ultimate test, must be determined in context. The subject context does not permit of the alleged duties of care. As Callinan J pointed out in Agar, injuries of various kinds are inevitable when a dangerous body contact sport involves opportunities for fit, usually young men, to dominate other like young men. In such an environment, the notion that the risk of particular classes of injury would throw up the suggested duties of care is seen to be misconceived. Where freely consenting adults play an inherently dangerous sport, it is contrary to the terms of individual autonomy and responsibility to impose a legal duty upon the rule-making body to make the sport safer. 49 There are clear difficulties in the practical application of a principle which depends upon an assessment as to what is and what is not acceptable in terms of inherent risk in a sport. The high degree of subjective assessment as to what level of risk inherent in a sport as played according to a certain set of rules is acceptable or is unnecessary is a clear pointer against their being a legal duty of the type sought to be pleaded. [cf Gleeson CJ in Agar at paragraph 18] 50 Assume for a moment that one was to accept for the purpose of argument, but without deciding this matter, that a workable distinction exists between, on the one hand, non-inherent risks (meaning risks representing events that ought not occur if the sport is conducted as it ought to have been, arguably termed 'sport not conducted according to specification') and, on the other hand, inherent risks (meaning risks that can materialise even though everything is carried out to specification) [See generally Opie supra at 138: "[a]n inherent risk in a sport is one that can materialise even though everything is carried out to specification. Injuries can arise from the tackles and bumps promoted by the rules, as well as by the collisions, falls and spills that inevitably occur in any vigorous physical activity. Additionally, the inherent risks of a sport include physical contact even though they may constitute an accidental breach of the rules, provided they are not negligent in the circumstances of the sport. All of these incidents occur in varying degrees as normal adjuncts to sporting activity"]. Even if it be the case that this form of distinction was appropriate to be drawn so that non-inherent risks may, depending upon the particular circumstances, give rise to a relevant duty of care, the plaintiff's claim here would seem clearly to fall into the category of inherent risks in this particular game. I note in this regard that in Insurance Exchange of Australia Group v Dooley (2000) 50 NSWLR 222, the Court of Appeal, dealing with a claim that a regional baseball league in Australia ought to have amended the rules of baseball affecting collisions occurring between fielders and base runners, regarded the prospect of collision in the circumstances to be a well-known and understood inherent risk of the sport. [I note in passing that the expression "inherent risks" may clearly be used in more than one sense. The recent decision in Woods v Multi-Sport Holdings Pty Ltd [Unreported, High Court of Australia, [2002] HCA 9, 7 March 2002] involved use by the trial judge of this expression to describe risks which are "by their nature obvious to persons participating in the sport". In Rootes v Shelton (1967) 116 CLR 383 at 386 Barwick CJ referred to risks that are inherent in a sport or pastime which may be regarded as accepted by participants] 51 Further the distinction pointed out in the High Court in Agar and recognised under the common law (as between positive acts causing damage and a failure to act which resulted in damage, with the common law not ordinarily imposing a duty on a person to take action where no positive conduct of that person had created a risk of injury to another person), provides yet a further basis for rejecting the duty of care to make such changes 'to eliminate or minimise the risk of catastrophic injury'. 52 In the result the primary reasoning set out above leads to the holding that even upon the basis that the NSWRU had the clearest of powers to make and enforce rule changes of the type for which the plaintiff contends, there is still simply no duty of care to make such changes 'to eliminate or minimise the risk of catastrophic injury'. The concept of a duty of care requiring a rule maker to alter the rules as suggested is to extend notions of duty of care too far. 53 The evidence was that there would have been something in the order of 25,000 to 30,000 playing rugby in New South Wales in 1982. [Affidavit of Mr Falk, 16 August 2001 paragraph 5] The plaintiff appears to accept, as the defendant asserts, that the potential liability extends also to players in the ACT. [Points of Distinction from Agar submission] The Article 96 [NSWRU Articles of Association] provision dealing with a register of players still leaves open the spectre of an enormous number of claims. Albeit that liability may not be 'indeterminate' it remains clear that very grave difficulties remain for the defendant if the pleaded duties of care exist. This suggests that the relationship between this defendant and the plaintiff was not sufficiently proximate to give rise to the duties of care which were contended for.

Secondary approach to the issues 54 If, however, it were necessary to go further and to add into the equation as relevant integers, what I regard as the undisputed evidence in relation to matters of control, it has to be acknowledged that the plaintiff has clearly been unable to adduce any evidence to suggest that the defendant, in a de facto sense, exerted control of a practical nature of the type for which the plaintiff contends in its pleadings and particulars. The above extract of facts, matters and circumstances [see paragraph 37], said by the defendant to be borne out by the evidence, is indeed so borne out and I have no reason to suppose that evidence might emerge at a trial which would alter that position. Furthermore at the level of specifics, the plaintiff has clearly not established any evidence of control at a practical level in respect of the specific match in which the plaintiff suffered his injuries, nor indeed suggested any such form of control. Finally, the defendant's affiliations tree is reasonably accurate and points up the number of intervening levels of decision-making capable of having input into what ultimately happens on the field. 55 Clearly taking these matters into account, the statement of claim whether in its original form or in form as sought to be amended, requires to be summarily dismissed. Those matters serve to further underline the fact that no duties of care of the type alleged exist in the current circumstances. Those matters additionally make clear that it would be oppressive to permit the proceedings to continue in circumstances where the plaintiff seeks to put its case as earlier described, but yet can adduce no evidence at all to show or indeed to suggest that the defendant, in a de facto sense, exerted control of a practical nature of the type for which the plaintiff contends in its pleadings and particulars.

Duties to warn or advise 56 There is a threshold question which appears to arise. The only paragraph in the proposed amended statement of claim in which a duty of care is pleaded is paragraph 5. The pleaded duty is "to so organise and regulate the playing of the game of rugby union so as not to expose the plaintiff to unnecessary risk of injury". Although this matter was not argued, to my mind the now suggested duties to inform the plaintiff that there were risks of catastrophic injury and to advise him about how the risk of catastrophic injury may be avoided do not fall within the terms of the pleaded duty of care. 57 If I be wrong in this approach to the pleaded duty then dealing with the matter as one of substance, in my view none of the suggested duties to warn or advise [cf paragraph 8 above and the proposed amended statement of claim paragraph 5], were duties owed by the defendant to the plaintiff. They suffer from the very same insuperable difficulties as have been pointed out in terms of the alleged duty to make rule changes. In precisely the same way, no line can be drawn as between what may be regarded as risks of serious injury and risks of catastrophic injury. In precisely the same way, there is no objective standard by reference to which it is possible to decide as between, on the one hand, what is a risk of catastrophic injury throwing up the suggested duty of care to inform of those risks and to advise about how those risks may be avoided and, on the other hand, what is a risk of non-catastrophic injury such that no duty of care is owed. The duties as sought to be formulated are of uncertain content. 58 The court is not here dealing with an alleged duty of care in a defendant to take reasonable steps to avoid the risk of injury to players. Where such a duty is pleaded "the risky nature of a sporting activity in which an adult participant has chosen to engage may be of factual importance in a decision as to whether such a case has been established": Woods v Multi-Sport Holdings Pty Ltd [Unreported, High Court of Australia, [2002] HCA 9, 7 March 2002], per Gleeson CJ at paragraph 37. In such a circumstance the ultimate question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk: Wyong Shire Council v Shirt (1980) 140 CLR 40 at 47 per Mason J. 59 In Woods Gleeson CJ at paragraph 41 also made the point that where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant. 60 No question arose in Woods as to the formulation of the relevant duty of care, the argument being about the steps which the respondent, the owner and operator of an indoor cricket facility in which the appellant whilst playing indoor cricket, had suffered serious eye injury, ought reasonably to have taken. 61 Here the court is dealing with whether the claimed duty of care exists. 62 The decision of the High Court of Australia in Sullivan v Moody (2001) 183 ALR 404 points up the way in which over the 70 year period separating the decision in Donoghue v Stevenson [1932] AC 562 and the present day, courts have strained to identify a unifying principle in the determination of the existence and nature or scope of a duty of care. Reference was made in Sullivan [at paragraph 48] to the statement by Professor Fleming, The Law of Torts, 9th ed (1988) at page 151, "no one has ever succeeded in capturing in any precise formula a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence". 63 Clearly any focus which might be appropriate in terms of foreseeability in the context of the existence of the claimed duty of care involves a more generalised inquiry than is appropriate in relation to foreseeability in the context of breach of duty. 64 In precisely the same way as earlier pointed out in terms of the alleged duty to make rule changes, the context makes plain that no such duties of care to inform/warn or advise exist. 65 Arguably it suffices to say that the problems which arise in the present context are bound up with the harm suffered by any plaintiff injured whilst engaged in an inherently dangerous or hazardous sporting activity for only his or her enjoyment. Arguably the problem, at least in part, reflects the difficulty of confining within reasonable limits the class of persons to whom the alleged duty to warn or advise may be owed. Certainly the circumstances of life as they obtain in the environment the subject of these proceedings, particularly bearing in mind the identity of the defendant and the way in which the plaintiff puts its case against the defendant, negative the imposition of legal responsibility of the type the subject of the plaintiff's claim. 66 Had it been necessary to deal with what reasonableness required in the present context it would have been necessary to consider the content of such warning, if any, as may have been appropriate. Rugby Union being a fast-moving body contact sport of the nature earlier described, difficulties may be anticipated in singling out one form of injury and warning of that. In Woods the plaintiff's case was that there should have been a warning of the dangers associated with indoor cricket and, in particular, the danger of serious eye injury. Gleeson CJ, Hayne and Callinan JJ in separate judgments upheld the trial judges findings that the duty of care had not been breached. McHugh and Kirby JJ in separate judgments dissented. Gleeson CJ said: "It is useful to reflect upon what exactly might have been the content of the warning. There was no reason to limit it to the risk of head injury, much less eye injury. There was one particular respect in which the type of eye injury suffered at indoor cricket can be different from the type suffered at outdoor cricket, but there were probably also a number of respects in which the risk of back injury, or concussion from collisions, might be different from the risks associated with outdoor cricket. The risk that, in the confined space in which the game was played, any player, batsman or fielder, might receive a severe blow to any part of the head, including the eye, was, the trial judge found, obvious, and well known to the appellant. It was argued that the appellant was not aware of the precise nature, and full extent, of the risk. But warnings of the kind here in question are not intended to address matters of precision …." [at paragraph 43] 67 Hayne J held that there was no reason to single out one form of injury and warn of that bearing in mind the obvious risks of players suffering serious injuries to a number of parts of their bodies. [at paragraph 144] 68 Kirby J said: "……….in this case, the common law did not oblige the respondent to install a warning to alert players such as the appellant to the fact that the game of indoor cricket carried occasional risks such as collision and body blows from the ball used in play. Such features of the game were indeed self-evident." [at paragraph 129] 69 McHugh J held that the nature of the particular risk was not one that would readily occur to the mind of the uninformed player so that the respondent in his Honour's view breached its duty by failing to warn of the risk. [at paragraph 80] Mr Haylen's case is that he was an uninformed player unaware that there were any significant risk to him of serious injury.

Failure to prosecute 70 In light of the above holding, it is strictly unnecessary to deal with the motion insofar as it seeks to have the proceedings dismissed for want of prosecution. Having said that, it does seem to me that there are very serious questions indeed which arise in terms of the length of time which has now expired since the date of the plaintiff's injury and since the filing of the statement of claim. It will shortly be 20 years since the injuries were sustained. It will shortly be 14 years since the proceedings were commenced. 71 It is convenient to commence with the principles

The Principles which apply in an Application to Dismiss for Want of Prosecution. 72 In Cassa Commerciale Australia Ltd v Sofia (unreported, 14 July 1998, NSWSC, Einstein J) I referred to the principle stated by Lord Diplock in Birkett v James [1978] AC 297 at 318 which is as follows: "That the second defendant in order to succeed required to establish:

(a) That there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and

(b) That such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiffs or between each other or between them and a third party.' 73 That statement, it may be noted, was repeated by Waddell J in Southern Cross Exploration NL v Fire & All Risks Insurance Company Limited (1986) 4 NSWLR 491 at 497. The same statement was repeated by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197 at 1203 [in turn cited by Hayne J, as his Honour then was, in Casauria & Ors v De Kever & Ors (unreported, 21 November 1994, VSC, page 9] 74 As pointed out in Cassa Commerciale, a close examination of the second limb or parameter of Lord Diplock's Birkett v James test reveals a disjunctive within that test. In short, the test appears to permit a defendant to succeed if the defendant establishes either under: A. That there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or

B. That there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and that such delay is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiff or between each other, or between them and a third party. 75 My own view is that the correct test is that identified by Walsh J in Witten v Lombard Australia Limited as applied and referred to by the Court of Appeal in Stollznow v Calvert (1980) 2 NSWLR 749 at 751: "A balance must be struck as between the plaintiff and the defendant and, in the end, the Court must decide whether or not on balance justice demands that the action should be dismissed." 76 Moffitt P in Stollznow v Calvert, with whose reasons for judgment Hope JA and Mahoney JA agreed, said as follows: "He [referring to Walsh J - Witten v Lombard Australia (1968) 88 WN (Pt 1) (NSW) 405 at page 411] further said the exercise of the court's discretion should not be fettered "by rigid rules" but required "a decision to be reached upon a balance of the relevant circumstances". It is of assistance to quote again what he ultimately said "Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised . . . It is entirely proper that, in the exercise of a judicial discretion, guidance should be sought and obtained from decided cases of a similar kind, but I think that care must be taken to ensure that a discretionary power is not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors in the case which may point to the opposite conclusion. . . . The premise upon which an application is made in each case is that there has been delay in bringing or pursuing the plaintiff's claim. In each case the cause of, blame for and prejudice caused by the delay are relevant factors." [At page 752]

"I would interpose that likewise, on an application to dismiss a proceeding for want of prosecution, fixed formulae cannot be prescribed to limit the judicial discretion to do that which is just between the parties in the circumstances. . . . As a matter of principle, the blamelessness of a plaintiff personally for the delay is a fact relevant to be considered, along with other relevant facts. The submission of the appellant to the contrary, namely, that the fault of the respondent's solicitor should be attributed vicariously to the respondent so that, despite the absence of any personal fault she should be held to be to blame and the proceedings necessarily dismissed, should be rejected. Similarly, despite some judicial observations concerning the right of defendants to let sleeping dogs lie and that defendants should not be penalised for earlier inaction when subsequently an application is made to dismiss proceedings for want of prosecution, no rigid rule can be laid down on the matter. By way of example, which I give because of its relevance in the present case, in some cases inaction by a defendant in the face of impending prejudice to him if delay continues, may render a later claim of actual prejudice less credit worthy, and the prejudice, if established, a less weighty factor. A defendant in proceedings which have been instituted, particularly as in the present case, proceedings brought to issue on the pleading is in a quite different position from that of a nominal defendant who may be unaware of the relevant occurrence. A defendant of the former type is in a position to prepare his case for trial, including interview of witnesses and inquiry as to their availability to be called to give evidence. A plaintiff may have legitimate reasons for some delay, as where he is about to undergo an operation expected to clarify his medical future. It is too simplistic an approach to regard preparation for, and bringing the proceedings to trial, as a one sided affair resting entirely on the plaintiff, who has the carriage of the action. I cannot accept, for example that a defendant who has written complaining of the delay and warning that particular prejudice will occur to him if delay continues is not, on a later application to dismiss the proceedings, in a position superior to that of a defendant who has lain silent, and later claims for the first time that prejudice has occurred by reason of the delay. Whatever may have been past views of the adversary system in regarding skill in exploiting the laws in an adversary dual as some kind of virtue, current ideas of justice, at least in this country, are directed to the substance of things. The exercise of the undoubted right of a defendant to do nothing runs the risk of being classified in the circumstances of some cases as being in the category of the "ambush" approach to litigation ". [At pages 753-754] [emphasis added] 77 Clearly questions of prejudice to the defendant are to be taken into consideration together with the many other factors and circumstances which throw light upon how it has come about that such an extensive delay has been permitted to occur. 78 The parties have agreed upon a chronology identifying the progress of the proceedings in a relatively formal manner. The convenient course is to append this chronology to this judgment as Appendix "C". 79 The defendant relies upon an 'inferred prejudice' said to arise by reason of the amount of time which has gone by and said to require to be weighed in terms of the very different and 'new' approach sought to be taken if the amendments are to be allowed. It seems to me that there is some substance in these submissions. As was observed by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551: "For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose." [footnotes omitted]

80 There is substance in the defendant's submission that, if the amendments are allowed, it will now be necessary for a very intensive investigation to be conducted into a number of organisations and their memberships and as to what they communicated to one another prior to April 1982 in terms of this specific game and in terms of the matters which obviously would require to be covered to deal with the new particulars of negligence. 81 Ultimately, however, I am persuaded that the blame for the extensive delay cannot be sheeted to the plaintiff alone. The defendant was a party to the Agar proceedings. The Court is entitled to infer that the pendency of those proceedings was likely a factor in terms of the defendant's approach to the instant litigation. On the hearing of the motions the subject of this judgment the Court was given some information from the bar table as to the recollections of both parties. Mr Richardson's instruction is that on an occasion Mr McGrath for the plaintiff informed him that the plaintiff wished to obtain an adjournment to await the outcome of the Agar proceedings, but that Mr Richardson did not consent to the course. In this respect it should be recalled that the motions in the Agar proceedings were heard by Grove J in July 1996, the matter coming on before the Court of Appeal in June 1998, judgment being delivered in the Court of Appeal in October 1998 and the proceedings being ultimately heard by the High Court in March 2000, judgment being delivered in August 2000. Mr McGrath recalls having informed Mr Richardson that it was appropriate that the substantive matter await the outcome of the Agar proceedings, but accepts that Mr Richardson would not agree to this as a basis for the matter being adjourned although on some occasion he consented in any event to adjournments. Mr McGrath apparently recalls that on some occasion the Court was told of the plaintiff's position in respect of the pendency of the Agar proceedings. None of this information put from the bar table comprises evidence that the parties were, it seemed to me, content for the Court to be given the understanding that Agar had at least been discussed between the parties and on the probability it seems to me likely from what I was informed from the bar table that the pendency of Agar would have been met by the plaintiff to the Court, as there would be no reason why the plaintiff would not have mentioned the matter. While certainly one cannot disregard the very extensive delay by the plaintiff in terms of prosecuting the proceedings, there were many opportunities over the years for the defendant to move to have the proceedings struck out and in my view such communications as there were between the parties and the Court in relation to the pendency of Agar do require that the pendency of that litigation be weighed in balance. The plaintiff became a paraplegic by reason of the injuries he sustained in this game. His circumstances have been both tragic and very difficult, as the Court may accept from the evidence and as must be obvious. From time to time his difficulties in terms of obtaining legal advice and representation caused delays and legal aid issues arose. 82 All of these matters require to be weighed at the same time and ultimately the interests of justice must prevail. It does not seem to me that to strike the proceedings out for want of prosecution would accord with the interests of justice, particularly bearing in mind the nature of the defendant and the difficulties experienced from time to time by the plaintiff in working through the maze of interrelated and overlapping administrative and affiliated entities playing various roles in the administration of the game of rugby union in New South Wales and in Sydney in the attempt to ascertain which of the putative defendants should be pursued. The search for the correct defendant in the environment in which the causes of action were sought to be pursued could not have been an easy search. 83 I would not strike the proceedings out for want of prosecution and had the matter depended upon this portion of the notice of motion I would have given directions for bringing the matter on for hearing as swiftly as practicable in the circumstances.

Short minutes of order 84 The parties are to bring in short minutes of order dismissing the proceedings against the NSWRU. Costs may be argued.

I certify that paragraphs 1 - 84 and Appendices "A" and "B" are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 15 March 2002

      Susan Piggott
      Associate

15 March 2002 APPENDIX "B" POINTS OF DISTINCTION BETWEEN THIS CASE AND AGAR v HYDE; WORSLEY

3 Power to Change the Rules NO DISTINCTION

(a) No power in the Defendant in Agar to change the rules (a) Rules made by IRFB and disseminated by ARU - Exhibit P1. NSWRU a conduit

(b) Defendant has the power: TDK1, p. 15, Cl. 3 (b) (b) Plaintiff volunteered to play the game according to the rules in the course of which he was injured

(c) Agar v Hyde at paras. 79-81 (c) Indisputable evidence of no relevant influence (control) over rules

(d) NSWRU's influence to change rules weaker even than IRFB member - ARU interposed

4 Power to Implement Rules to Ensure They Are Adopted NO DISTINCTION

(a) No power in IRB to do this (a) Indisputable evidence of:

(i) no relevant influence (control) over the competition or moment of play;

5 Organisation of Matches and Control NO DISTINCTION

(a) IRFB did not organise matches (a) As for 3 and 4 above

TDK1, p. 15, Cl. 3 (b), (c), (d) and (e) - objects for which the Union was established

TDK1, p. 23, definition of "affiliated club or body" (SRU was an affiliated body - (Tab 15), para. 29) and so was, by definition, the SUFC (b) SUFC affiliated to SRU not NSWRU; (Tab 11) - Falk, paras. 6 and 13; (Tab 15) - Gunson, paras. 19 and 20 and PJG7 at p. 23, para. 8; (Tab 16) - Gunson, PJG11, p. 42 - affiliated bodies; (Tab 18) - Winstanley, JMW3, p. 11 - Grades Committees - SUFC Representative Paul Gresham NSWRU had control and "control" clauses in the Articles of Association include 42, 45, 46, 47, 57, 58, 65, 66, 68, 69, 77, 83, 84, 87, 88, 89, 90, 91, 92, 93, 94 and 96 (c) Organisation and promotion of rugby within Sydney was the principal activity of SRU (Tab 18) - Winstanley, JMW5, p. 13 - Directors Report (b) TDK4, Tab 21, p. 68 (report of SRU) and p. 72 (principal activities of Union)

TDK5, Tab 21, p. 116 (report of SRU) and p. 120 (principal activities)

Plaintiff's affidavit, Tab 22, Annexure B - Defendant organising insurance (b) NSWRU had this power:

TDK1, p. 15, Cl. 3 (b) TDK1, p. 40, Articles 83, 84, 88, 89, 90, 91, 92 and 94

(b) In 1982, NSWRU proximity to a player not relevantly less removed than IRFB member in 1986 or 1987 (Hyde and Worsley)PLAINTIFF DEFENDANT

(c) Agar v Hyde at paras. 79-81 (c) SRU Memorandum of Association same as NSWRU: (Tab 18) - Winstanley, JMW2, p. 6 - no question raised

Organisation of Matches and Control NO DISTINCTION

(a) IRFB did not organise matches (a) As for 3 and 4 above

TDK1, p. 15, Cl. 3 (b), (c), (d) and (e) - objects for which the Union was established

TDK1, p. 23, definition of "affiliated club or body" (SRU was an affiliated body - (Tab 15), para. 29) and so was, by definition, the SUFC (b) SUFC affiliated to SRU not NSWRU; (Tab 11) - Falk, paras. 6 and 13; (Tab 15) - Gunson, paras. 19 and 20 and PJG7 at p. 23, para. 8; (Tab 16) - Gunson, PJG11, p. 42 - affiliated bodies; (Tab 18) - Winstanley, JMW3, p. 11 - Grades Committees - SUFC Representative Paul Gresham NSWRU had control and "control" clauses in the Articles of Association include 42, 45, 46, 47, 57, 58, 65, 66, 68, 69, 77, 83, 84, 87, 88, 89, 90, 91, 92, 93, 94 and 96 (c) Organisation and promotion of rugby within Sydney was the principal activity of SRU (Tab 18) - Winstanley, JMW5, p. 13 - Directors Report (b) TDK4, Tab 21, p. 68 (report of SRU) and p. 72 (principal activities of Union)

TDK5, Tab 21, p. 116 (report of SRU) and p. 120 (principal activities)

Plaintiff's affidavit, Tab 22, Annexure B - Defendant organising insurance

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