New South Wales Supreme Court CITATION : Malo v South Sydney District Junior Rugby Football League Ltd & Anor [2006] NSWSC 1133 HEARING DATE(S) : 19 October 2006 JUDGMENT DATE : 30 October 2006 JUDGMENT OF : Simpson J DECISION : (i) pursuant to UCPR 29.2(6) the time for filing a notice of motion seeking an order that the proceedings be tried by jury is extended, so as to expire on 19 October 2006; (ii) subject to the plaintiff complying with the requirements of subs85(2)(a) of the Supreme Court Act 1970, the proceedings are to be tried by a jury. CATCHWORDS : personal injury claim - amateur rugby league football match - negligence alleged against administrators of rugby league competition - denial of negligence - defence of volenti non fit injuria - contributory negligence - application for claim to be determined by a jury - quantum of damages agreed - liability contested - causation in issue - claim against first defendant to be determined on common law principles - claim against fourth defendant subject to provisions of Civil Liability Act 2002 - whether interests of justice require trial by jury - construction of section - factors warranting trial by jury - application of general community contemporary values - whether determination involves moral, ethical and general social values - whether questions ought to be resolved by jury employing common sense and values of average jury person - whether administrators ought to be held liable for injury resulting from management decisions - standard of care of administrators - whether public confidence in verdict a relevant consideration - whether enhancement of settlement prospects a relevant consideration - jury trial ordered Civil Liability Act 2002 s5F LEGISLATION CITED : Supreme Court Act 1970 s85(1), s85(2) Uniform Civil Procedure Rules 2005 r29.2 CASES CITED : Muir v The Council of Trinity Grammar School [2005] NSWSC 555 Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278 Harry Malo - Plaintiff PARTIES : South Sydney District Junior Rugby Football League Ltd - 1st Defendant Maroubra Rugby League Football Club Incorporated - 4th Defendant FILE NUMBER(S) : SC 20659/01 RV Letherbarrow SC - Plaintiff COUNSEL : J Callaway - 1st Defendant K Rewell SC - 4th Defendant Maurice Blackburn Cashman Lawyers - Plaintiff SOLICITORS : Riley Gray-Spencer - 1st Defendant Thompson Cooper Lawyers Pty Ltd - 4th Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE LIST SIMPSON J Monday 30 October 2006 20659/01 Harry Malo v South Sydney District Junior Rugby Football League Ltd & Anor JUDGMENT 1 HER HONOUR: The plaintiff, Harry Malo, has commenced proceedings against four defendants, claiming damages for serious personal injury sustained by him on 26 July 1998 in the course of an amateur rugby league football match. The proceedings against the second and third named defendants have resolved, leaving only the first and fourth. For the purpose of the present decision it is convenient to assume the accuracy of certain factual assertions made in the second amended statement of claim, which is the presently operative pleading. As a result of his injury the plaintiff was rendered an incomplete quadriplegic. 2 By the present application the plaintiff seeks, pursuant to s85(2) of the Supreme Court Act 1970, an order that his claim be determined by a jury. 3 Put briefly, as I understand it, the plaintiff's case against the defendants is this. The plaintiff was a member of the Maroubra Lions Rugby League Football team ("the Maroubra Lions"). The first defendant conducted an amateur rugby league football competition in which the Maroubra Lions participated. The fourth defendant managed the Maroubra Lions. 4 As a member of the Maroubra Lions, the plaintiff was one of a number of men who took part in the matches organised by the first defendant. 5 On Saturday 26 July 1998 the plaintiff was scheduled to play in a match at Malabar. He attended for that purpose. The number of players who attended was inadequate to constitute a team. There were present some additional team members, who had already played in an earlier game. Five of these were recruited to make up the team in which the plaintiff was to play. Even with these additional players, only a team of 11 (that is, two short of the 13 ordinarily required) could be put together. The opposing team experienced no such shortage of players. 6 The case proposed to be made on behalf of the plaintiff is, as I understand it, that, because five of his team mates had already played a match on that day, they were fatigued and that the team was, additionally, significantly under-strength by the shortage of two players. The team was pitted against an opposition that suffered no such disadvantage: it was made up of a full quota of 13 fresh players. As a consequence of the deficiencies in his team, the plaintiff was required to shoulder a greater than appropriate share of the burden of the play. During the second half he was tackled by opposing players, fell to the ground, and was unable to move. Thus he suffered his injury. 7 It is not contended on behalf of the plaintiff that there was anything untoward about the manner in which he was tackled: rather the contention is that, because of the additional physical demands placed upon him by reason of the fatigue of his team mates, and the shortage of players, he himself became fatigued, as a result of which he was unable adequately to prepare himself for, or to deal with, the tackle. It is alleged that the defendants were negligent in permitting the match to proceed in the circumstances that almost half of the players on the plaintiff's team had already played a match, and that the team played with less than its full quota of players. 8 The parties have reached agreement on the question of damages to be awarded to the plaintiff should he be successful in his claim against either defendant or both defendants. Liability will be vigorously contested. I was told, without dissent, that, for example, causation will be a major issue. 9 Both defendants have filed defences, raising, in addition to denials of negligence, defences of contributory negligence and volenti non fit injuria. 10 A further complication lies in the following circumstance. The claim against the first defendant falls to be determined on common law principles. The claim against the fourth defendant is subject to the provisions of the Civil Liability Act 2002. The fourth defendant has pleaded, invoking s5F of the Civil Liability Act, that the harm suffered by the plaintiff was the result of the manifestation of an inherent risk, and, invoking s5I of the Act, that the harm suffered was the result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. the notice of motion 11 By an amended notice of motion filed in court on 19 October 2006, the plaintiff seeks, in substance, leave to amend the statement of claim by filing a Third Amended Statement of Claim, and an order, pursuant to s85(2) of the Supreme Court Act, that his claims be tried by a jury. The amendments proposed to be made to the statement of claim are three additional particulars of negligence, two of which specifically raise issues about the competence or qualifications of the coach. By reason of UCPR 29.2, before the s85(2) order can be made, the plaintiff requires an extension of time to make the application. That is opposed by the defendants, but their opposition to an extension of time is based, essentially, upon the same grounds as their opposition to the principal application: that is, the defendants contend that, since the order for trial by jury ought not to be made, an extension of time to make the application would be futile and also ought not to be granted. It is therefore unnecessary to take further time considering an extension of time: that application will stand or fall with the principal application. The real and only issue is whether the plaintiff ought to be permitted to have his claim decided by a jury. 12 The application for amendment was not argued in the present proceedings, and is not the subject of this judgment. It will be stood over to a date to be fixed. I am not to be regarded as part heard in relation to that application. jury trial 13 Since January 2001 the previous long-standing entitlement of a party to civil proceedings to trial by jury has been reversed. S85(1) of the Supreme Court Act now provides: " 85 Trial without jury unless jury required in interests of justice (1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise." Notwithstanding the provisions of subs(1), by subs(2) the court may order trial by jury; by sub-para (b) a necessary condition to the seeking of the order is that the court is: "(b) …satisfied that the interests of justice require a trial by jury in the proceedings." (The force of the word "require" is not to be overlooked.) 14 The relative recency of the enactment of the section means that there is, to date, little judicial guidance on its application. It has, however, been considered by Hall J in Muir v The Council of Trinity Grammar School [2005] NSWSC 555. That was a case in which a former schoolboy sued the administrators (the Council) of the school he had attended, alleging that while a student he had been repeatedly sexually assaulted by other students. The plaintiff's allegation against the Council was that it failed to discharge its duty to provide supervision and protection of students so as to prevent events of the kind the plaintiff alleged had occurred. 15 In that respect the claim there made had some parallels with the present case. 16 Hall J refused the application. In doing so, his Honour made a number of observations about the construction and application of s85(2)(b) which I have found helpful in my consideration of the same issues. In particular, his Honour held (I paraphrase and adapt) that the onus lies upon the applicant for trial by jury to establish that the interests of justice so require (a conclusion with which I respectfully agree); that the use of the word "require" demonstrates that the legislature intended to impose a more demanding test than, for example, the use of the word "favour" might have done, but that it does not impose a test of necessity or essentiality; that the inquiry by the court requires the identification of specific factors (that is, a substantial reason) that indicate that jury trial is warranted and justified in the interests of justice. 17 If I read his Honour's judgment correctly, at the heart of his approach to the section was the notion that the sort of circumstance that may call for (require) jury trial is a case that may involve consideration or determination or application of general community contemporary values, or "moral, ethical or general social values". The latter two phrases were drawn from a decision of Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278, on an application in the Federal Court for transfer to this Court of proceedings that included (but were not limited to) a defamation claim, on the basis that a jury trial was more readily available in this Court. Tamberlin J rejected the application, saying that the case did not have features that mandated trial by jury, it not being a case: "… where general community contemporary values are involved, as may be the case in proceedings where moral, ethical or general social values are involved." 18 A forceful argument was mounted on behalf of the present plaintiff to this effect. The plaintiff's claim involves the administration of a local amateur sporting competition. It involves the community at a fundamental neighbourhood level. Accordingly, it is appropriate for the community, through the jury process, to be engaged in the determination of the claim. 19 While I accept that the tests referred to by Tamberlin J and Hall J in the two judgments to which I have referred are relevant, and identify considerations relevant to the exercise of the s85(2) discretion, the test so stated is not an exhaustive one. The discretion conferred is stated in very general terms. There is nothing in the section which would permit the conclusion that it is only where "general community contemporary values" are involved, or which raise issues of "moral, ethical or general social values" that an order may be made. A more general test was mentioned by Hall J in the following terms: "[The application of s85(2)(b)] … does involve an evaluation as to whether the proceedings raise questions that ought to be resolved by a jury employing the common sense and values of the average jury person." 20 I also approach the section on this basis. The legislature did not intend entirely to preclude jury trials in civil cases. If that had been its intention there would have been no call for the enactment of subs(2). The power conferred by subs(2) is a real one, with real content, intended to be used in appropriate cases. The availability of jury trial in appropriate circumstances is not illusory, and the power conferred upon the court is not to be interpreted as illusory. It would be erroneous to treat the section as though (whether by reason of the use of the word "require" or otherwise) there are no, or virtually no, circumstances in which an order would be appropriate. In other words, the section must be approached and construed on the basis that it was genuinely intended that there would arise some cases in which the presumption otherwise enacted by s85(1), for trial of civil proceedings without a jury, is to be overridden. 21 During the course of argument I pressed senior counsel for the fourth defendant (in whose argument counsel for the first defendant concurred) for an illustration of a case that, on the approach to the section that he proposed, might warrant an order under s85(2). Initially, he adverted to the facts pleaded in Muir, suggesting that, if the alleged perpetrators in the sexual assaults had also bee sued, then that would be such an instance. I disagree with this proposition. Had the alleged perpetrators been sued, the proceedings would have involved questions of fact, demonstrating no apparent reason why the now preferred mode of trial ought to be varied. 22 After having time to give more detailed consideration to the question, senior counsel suggested that cases of a kind concerning eligibility of a particular painting or artist to qualify as winner of an art prize such as the Archibald might be another. I pay tribute to his ingenuity, and that may well be a good example. Whether such a case would justify an order for a jury trial would, of course, depend upon the nature of the issues raised in the proceedings. But I do not believe that the circumstances in which a jury trial might be ordered are limited to cases of such an unusual nature. 23 The plaintiff's proceedings against the two defendants are, so far as I am aware, quite novel. They raise issues concerning the extent to which the administrators of local community clubs ought to be held liable for injury resulting from their management decisions. They raise questions concerning the standard of care demanded of administrators of such community facilities. 24 Contrary to my initial view, I have concluded that there is substance in the argument advanced on behalf of the plaintiff. 25 Senior counsel for the fourth defendant pointed to a number of circumstances which, he contended, militated against an order for jury trial. In doing so, he placed heavy reliance upon the construction of the section taken by Hall J in Muir. I have already made it plain that while I have no disagreement with that approach, I do not read it as laying down a single "community values" test. Further, senior counsel pointed to the complex legal issues which will be involved, resulting from the different legal regimes which will govern the plaintiff's cases against the two defendants; and from the issues of contributory negligence and volenti. 26 Juries have, however, long been accustomed to determining complex issues of fact and law. It is the task of the trial judge, with the assistance of counsel, to formulate the questions for determination in such a way as to make them comprehensible by a jury. I do not regard the potential complexities in this case as being of such moment as to dictate, or even support, refusal to make an order. 27 It is appropriate here to observe that I reject as not relevant one argument advanced on behalf of the plaintiff. This was that, while the defendants have expressed themselves as determined not to engage in settlement negotiations, the prospects of a trial by jury is likely to enhance settlement prospects. In my opinion, this, when properly analysed, merely seeks to make capital out of the unpredictability of a jury verdict, in such a way as to be potentially unfair to the defendants. I disregard it as a consideration. 28 A further argument put on behalf of the plaintiff also has little weight. This is that, the plaintiff's claim being somewhat novel and unusual, a result in his favour from a jury would command more public confidence than a similar verdict delivered by a judge. I have very real doubts that this is so. Should the plaintiff be successful in his claim against either or both of the defendants, there may or may not be public comment on or criticism of the verdict. But it is unlikely (as past experience shows) that a distinction would be made between a judge and a jury verdict. Further, a judge's decision would have to be supported by detailed reasons explaining the result, something which is available for examination and analysis by those outlets of the media or members of the public who saw fit to undertake that task. Such is not the case with a jury verdict. 29 As I have said, I have come to the view that, largely because the issues are novel, and involve an examination of the limits of liability of those who administer a quintessentially community activity, it is appropriate to make an order under s85(2). It is, therefore, also appropriate to grant the plaintiff the extension of time he requires. The orders I make are: (i) pursuant to UCPR 29.2(6) the time for filing a notice of motion seeking an order that the proceedings be tried by jury is extended, so as to expire on 19 October 2006; (ii) subject to the plaintiff complying with the requirements of subs85(2)(a) of the Supreme Court Act 1970 , the proceedings are to be tried by a jury. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.