New South Wales Supreme Court CITATION : Green v Country Rugby Football League of NSW Inc [2008] NSWSC 26 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 05/11/07-09/11/07, 13/11/07-16/11/07, 26/11/07-27/11/07 JUDGMENT DATE : 31 January 2008 JURISDICTION : Common Law JUDGMENT OF : Walmsley AJ DECISION : Verdict and judgment for Defendant. Plaintiff to pay Defendant's costs. CATCHWORDS : TORTS - negligence - Sport - rugby league - scrum collapse - catastrophic injury - where plaintiff sixteen years old - where plaintiff playing hooker - where plaintiff playing in unrestricted age competition - where plaintiff younger, smaller and lighter than opposing front row players - where plaintiff had long, thin neck - where plaintiff's physical characteristics made him more susceptible to scrum injury - where plaintiff suffered tetraplegia upon scrum collapse - liability of Country Rugby League - where Country Rugby League administered sport in relevant part of New South Wales - whether Country Rugby League should have required medical examinations prior to registering players - whether Country Rugby League failed adequately to warn players of risk of injury - whether Country Ruby League failed adequately to disseminate information to participants about the risk of injury to players with certain characteristics who play in certain positions - whether Country Rugby League liable for failure to disseminate information to participants about neck-strengthening exercises - whether Country Rugby League ought to have prevented players of certain physiques from playing in certain positions - where evidence that de-powering scrums significantly reduces risk of scrum injury - whether Country Rugby League liable for failure to de-power contested scrums earlier - whether Country Rugby League ought to have instructed referees to de-power scrums - whether Country Rugby League owed plaintiff a non-delegable duty of care - whether Country Rugby League ought to have changed rules of rugby league - where plaintiff's coach unaccredited - whether Country Rugby League ought to have allowed team to participate only if coach accredited - AGENCY - Imputed knowledge - whether Country Rugby League could acquire knowledge of a player's bodily characteristics by reason of the coach's knowledge - WARNINGS - Whether Country Rugby League had a common law duty to warn player or his parents of risk of spinal injury in rugby league games LEGISLATION CITED : Civil Liability Act 2002, s. 5D(3)(b) CATEGORY : Principal judgment Agar v Hyde (2000) 201 CLR 552 Anderson v Mount Isa Basketball Association Incorporated (1997) Aust Torts Reports 8-451 Brighton le Sands Amateur Fishermen's Association Ltd v Vasilios Kormovokis [2007] NSWCA 331 Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 Ellis & Wallsend District Hospital (1989) 17 NSWLR 553 F v R (1983) 33 SASR 189 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 Gold v Haringey Health Authority [1988] QB 481 Hawkins v Clayton (1988) 164 CLR 539 In the matter of the Phillip-Stephan Photo Litho and Typographic Process Pty Ltd (1890) 12 LR NSW (EQ) 4 Kondis v State Transport Authority (1984) 154 CLR 672 CASES CITED : Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR638 Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39 New South Wales v Fahy [2007] HCA 20; (2007) 81ALJR 1021 Nowak v Waverley Municipal Council (1984) Aust Torts Reports 80-200 Rogers v Whitaker (1992) 175 CLR 479 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Rosenberg v Percival (2001) 205 CLR 434 RTA v Dederer [2007] HCA 42; (2007) 238 ALR 761 Rufo v Hoskings [2002] NSWSC 1041 Vairy v Wyong Shire Council (2005) 223 CLR 422 Watson v Haines (1987) Aust Torts Reports 80-094 Wyllie v Pollen (1863) 3 De GJ & S 596; 46 ER 769 X v Pal (1991) 23 NSWLR 26 PARTIES : Shane Anthony Green - Plaintiff Country Rugby Football League of NSW Inc - Defendant FILE NUMBER(S) : SC 20259/98 COUNSEL : P Deakin QC; K Andrews (Plaintiff) M L Williams SC; A Radojev; R Sheldon (Defendant) SOLICITORS : W H Parsons & Associates Solicitors (Plaintiff) Ebsworth & Ebsworth Lawyers (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION WALMSLEY AJ 31 JANUARY 2008 20259/98 SHANE ANTHONY GREEN v COUNTRY RUGBY FOOTBALL LEAGUE OF NEW SOUTH WALES INC JUDGMENT 1 HIS HONOUR: Introductory 2 On 7 May 1994 the plaintiff, then a 16-year-old schoolboy, was playing in the position of hooker in a game of rugby league. In the course of a scrum he suffered a fracture of his cervical spine, resulting in tetraplegia. He claims damages for negligence from the second defendant, Country Rugby Football League of NSW Inc ("CRL"). 3 He alleges that given his young age, slight build, low weight and his having a long thin neck, CRL should have ensured he was not selected to play in the position of hooker, especially given his team was playing against an open age team with front row players of much greater stature and weight, and that front row players, especially hookers, had previously, to its knowledge, suffered severe spinal injuries. 4 The issue to be determined in the case is whether CRL is, as alleged, liable in negligence. The parties agree that if I find in favour of the plaintiff, I should award him damages of $6,500,000. The parties also agree that the case is not affected or governed by the Civil Liability Act 2002. Summary of the plaintiff's case 5 In essence, the plaintiff's case is that CRL had sole responsibility for organising and controlling rugby league in country New South Wales. By exercising the powers it had to regulate the game, CRL should have insisted its constituent bodies, such as the club he played for, not permit players with his physical characteristics to play in the front row, especially in the absence of their having proper neck strengthening exercises. His club's knowledge of the plaintiff's physical characteristics was CRL's knowledge, through the principles of agency law. Further, CRL did nothing, although it should have taken steps, to ensure players such as the plaintiff knew of the risk to people of his physical characteristics when playing in the front row. Alternatively, he argues that when, as it did in March 1994, his club sought and obtained his mother's consent for him to play football, CRL did not warn her (as it could have) that there was a risk of serious spinal injury to him if he played in the front row. Had she been told of that risk, she would never have given her permission for him to play. Finally, and alternatively, the plaintiff argues that because he never had, nor was advised to have, neck strengthening exercises, which would, had he had them, have made him less vulnerable to serious spinal injury, he suffered the loss of a valuable chance to suffer no injury, or at least a less severe one. Summary of CRL's case 6 CRL denies it owed the plaintiff a duty of care. Quite apart from the interposition of two corporate entities between it and the plaintiff, CRL contends it did not even know of the plaintiff's existence, let alone sufficient of his personal characteristics to permit it to take steps of the kind the plaintiff says it should have taken. 7 Further, it contends that in the rugby league structure, it had no role other than (a) as a conduit for the expression of concerns between its constituent members and New South Wales Rugby League ("NSWRL") and the Australian Rugby League ("ARL"); (b) as a conduit for information to clubs in the country from the NSWRL and the ARL, and (c) to permit country clubs to form geographically based groups for the conduct of games and inter-club competitions. 8 CRL says that had it made a rule requiring clubs not to permit players with the plaintiff's physical characteristics to play in the front row, such a rule would not have been enforceable and, because it would only have been a CRL rule, might have put CRL out of step with NSWRL and ARL. 9 Assuming it could have imposed a requirement that clubs not permit a player with the plaintiff's characteristics to play in the front row, it would have needed additional staff to determine the suitability of players. Assuming it had the resources for that (which it did not), there was no appropriate standard by which a player's suitability could be judged. 10 Further, the plaintiff was under no obligation to play the game. He consented to the application of physical force by volunteering to play, the rules of the game necessarily involving the application of physical force. There was no breach of the rules alleged. 11 The game of rugby league is renowned for its risks of serious injury. Even assuming CRL owed the plaintiff a duty of care, there was no breach, because it could not have known his personal characteristics, or that he was under age and playing in an open age competition; it did the best it could with its limited financial resources to train country coaches and it was reasonable to leave it to them to decide who played and in which position. 12 In any event, specialist rehabilitation physician Professor Yeo, an expert in the field of spinal injury in a football context, considered the plaintiff's physique made him suitable to play in the front row, including in open age games. 13 As to the lack of warning to the plaintiff's mother, her evidence was affected by the benefit of hindsight: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 581-2 (per Samuels JA). In any event the plaintiff would not have stopped playing rugby league if warned serious spinal injuries might arise. 14 As to the plaintiff's not having had neck strengthening exercises, CRL relied on its constituent bodies to ensure coaches, who would require these exercises, be properly trained. Its resources did not permit more. In fact the plaintiff's team did the appropriate exercises. 15 Finally, if any breach is found, the plaintiff voluntarily assumed the risk of serious spinal injury. The course of the litigation 16 Although he had earlier sued a larger number of parties, by the time the case came to trial, the plaintiff was proceeding only against the second, fourth and fifth defendants. In the course of the first week of the trial, his case was settled as against the fourth (his team's coach), and the fifth (the referee of the game in which he was injured). I was not told the terms of those settlements. Although his club, Laurieton United Rugby League Football Club Inc ("Laurieton") remains, on the face of it, a party to the proceedings, I was told by Mr Deakin QC, who, with Mr K Andrews, appeared for the plaintiff, that it had not entered an appearance and had in any event been wound up. The case against the first defendant was discontinued before trial. Thus it is now only the plaintiff's case against CRL that calls for my adjudication. Background 17 The plaintiff was born in 1977. He was the youngest of three boys. He recently turned 30. When he was very young he developed a keen interest in and began to play, rugby league. With the exception of one year, when he played for Wauchope, the plaintiff from the age of six or seven played every year for Laurieton, in his age group. At the time of these events he was 16, and lived with his parents in North Haven, on the mid-north coast of New South Wales. He was in Year 10 at Kendall Central High School. 18 When the plaintiff turned 16 he began to play for Laurieton's reserve grade team. That was an open age team. Laurieton did not have an under 18 team. Had he wanted to play in an under 18 team he would have needed to travel a considerable distance to train and play with a club that did. In the reserve grade, he was playing with and against some people who were considerably older and heavier than himself. 19 In 1994, so far as he recalls, he was 5' 8" to 5' 9" in height, and weighed 55 kgs to 57 kgs. He described his build as "slight". He said there was no one else in the forwards as slightly built as he. His team practised on Tuesday and Thursday nights. On Tuesday nights the reserve grade team and the first grade team trained together, along with the first grade coach, Mr Warren Krough, and his own team's coach, Mr Stephen Slater. Tuesday nights were for fitness. Thursday nights were for ball practice. Team selection occurred on Thursday nights. He usually played in the position of hooker. 20 The year 1994 was his first year in the open age competition. He noticed when he began playing open age that the players were bigger, and the game speed faster, and that there was more pushing in scrums. 21 The game of rugby league is played in accordance with a set of rules called "The International Laws of the Game and Notes on the Laws". 22 At the time of these events the March 1994 version of the rules was the one in use in New South Wales. 23 Section 5(1) of the rules, with the heading "Mode of Play", provides: "The object of the game shall be to ground the ball in the opponents' in-goal, to score tries … and to kick the ball over the opponents' cross-bar to score goals …" 24 Before a game begins, the captains of the two teams toss for choice of ends. The team of the captain losing the toss kicks off to start the game. Play stops from time to time. Depending on what stops play, there are various means of restarting it. One such method is the scrum. Section 12 of the rules has this to say about the scrum: "1. A scrum is formed to restart play whenever play is not being re-started with a kick-off, a drop-out (Section 8), a penalty kick (Section 13) or a play-the-ball (Section 11). 2. To form a scrum not more than three forwards of either team shall interlock arms and heads and create a clear tunnel at right angles to the touch-line. The forward in the centre of a front row (i.e. the hooker) shall bind with his arms over the shoulders of the two supporting forwards. Not more than two second row forwards on each team shall pack behind their respective front rows by interlocking arms and placing their heads in the two spaces between the hooker and his front row forwards. The loose forward of each team shall pack behind his second row forwards by placing his head in the space between them. All forwards must pack with their bodies and legs at right angles to the tunnel and the upper parts of their bodies horizontal. Once the ball has been put in the scrum no other player can lend his weight to it. 3. No more than six players on each team shall assist in the formation of a scrum and when the ball is in the scrum no more than seven players of each team shall act as backs. 4. It is permissible for forwards to push once the scrum has been correctly formed but if it moves an appreciable distance to the disadvantage of any one team before the ball is put in then the Referee shall order the scrum to re-form in its original position." (my emphases) 25 The Australian Rugby League ("ARL") is Australia's national rugby league body. It has constituent members. One of those is the body which administers rugby league in Sydney, viz NSWRL. Another is CRL, which administers rugby league in the country areas of New South Wales. CRL had a representative on NSWRL's board of directors. But NSWRL had no representatives on CRL. Each was an autonomous body. CRL had the largest number of registered players of any league in the world. On any winter weekend there were more than 1,500 games played throughout country New South Wales. Until 1994 CRL had a full time staff of two, working from offices in Phillip Street, Sydney. The ARL and the NSWRL also worked from those offices. From 1994 onwards CRL had a full time staff of four. CRL did not of itself conduct football games. The country games were organised by incorporated associations called "Groups". The players, who in 1994 numbered about 50,000 in country New South Wales, played for individual teams. Each team was also an incorporated association. Laurieton became an incorporated association on 12 June 1991. Group Three Rugby Football League Inc was incorporated on 15 February 1988. 26 CRL did not select team members. That was done by the coaches. Nor did CRL select coaches. That was done by the clubs. As I have noted, the plaintiff originally sued Laurieton for negligence, but has not pursued that claim, since it has been wound up. The plaintiff has never sued the relevant group – Group Three, which organised the games he played in and to some extent controlled football within its area. Nor did the plaintiff's counsel argue that CRL was vicariously liable for any acts or omissions of Laurieton or Group Three. The scrum, and Laurieton's front row 27 On 7 May 1994 the plaintiff's team was playing a reserve grade match of a sixth round fixture of what was known as the Group Three Saturday Rugby League Competition. The game was played at a ground known as the Old Bar Park, Old Bar Road, Old Bar. Old Bar is a small seaside village close to Taree, on the mid-north coast of New South Wales. The opposing team was called The Old Bar Pirates ("the Pirates"). As he usually did, the plaintiff played in the position of hooker. He had been selected for that position by the team's coach. 28 The plaintiff has little memory of the game. He recalls he was injured in the first half, that the ground was wet, and that there were scrums before the final one. To his recollection, the Pirates' front row "were a fair bit heavier than us" and a "fair bit bigger", particularly his opposing hooker, whose weight he estimates at 70 kgs. 29 A team mate, Jim Hoye, was aged about 25 at the time. He said the Pirates "outweighed us on the day", their front row being almost twice his 55 kg weight. However he conceded the Laurieton props were its two biggest players and that each weighed about 80-100 kgs. He recalled that there were several scrums. Then, about 15 minutes into the game, one was set just before the halfway line on the Pirates' side. As half back, his job included feeding the ball into the scrum. He fed the ball. The referee told him he had not fed it into the middle of the scrum. He fed it again. There was a "knock on" and his team was penalised. The ball was given to the Pirates' half to feed. During each of the first two scrums there was a lot of hard pushing by both sets of forwards. In the third scrum the forwards pushed again, the ball was put in, and passed out to the Pirates five-eighth. At that stage, since Mr Hoye took off in pursuit of the Pirates' five-eighth, he lost sight of the scrum. He heard the whistle blow. Play was stopped. He saw the plaintiff lying on the ground. 30 Mr Darren Griffin usually played for the reserves but this day played first grade. However, he was present when the plaintiff's team played the Pirates. He assessed the Pirates' pack compared with Laurieton's, as older and larger. He observed that during scrums the Pirates would push Laurieton backward. Sometimes the scrum would get screwed around. In the last scrum before play was stopped, the ball was fed, the Pirates pushed Laurieton, and then about five Laurieton players ended up on the ground, with the Pirates' front row on top of them, while others hung on. He could not see the plaintiff. Most of the players then got up and he saw the plaintiff lying on the ground. 31 He told me the Laurieton team jersey had on it a Laurieton symbol, namely an eagle, and a CRL badge. 32 The other player who gave evidence was Mr Gregory Carr. He was aged 21 at the time of the game and weighed about 90 kgs. He played prop for Laurieton. Asked to describe the size of the opposing team, he said their forwards were quite big and the prop opposing him was "quite a bit bigger than us". He described what happened in the scrum as follows: "Q. Perhaps you should just tell us what you can recall about what happened immediately prior to you becoming aware that Shane had been injured? A. Okay. The scrum, usually you pack, normally you get down ready to engage the other front row, and it went down, the other bloke on the other side sort of come in force in between us and I got, (indicated) I couldn't hang on, and basically the scrum went down on the ground and I was standing up and there was a pile of bodies and that's about all I remember, mate. Q. Where was Shane in relation to that pile of bodies? A. On the bottom." 33 Mr Carr had not previously experienced this manoeuvre where the opposition prop forced his way between him and his hooker. 34 With one exception, not material to this incident, CRL's counsel did not address me on credit. It was put by the CRL's counsel to all the players that the Pirates' hooker was no larger than the plaintiff. That proposition was not accepted. CRL called no eyewitnesses. Insofar as there are differences between the eyewitnesses, I prefer and accept the evidence of Mr Carr to that of Mr Hoye. I consider, because of the position he played in, that Mr Carr was in a better position to assess the Pirates' front row, especially his opposite number. I also accept the plaintiff's description of the Pirates front row. 35 Mr Williams SC, who, with Mr A Radojev and Mr R Sheldon, appeared for CRL, ultimately submitted there had not been, as was put in opening and as pleaded, a scrum collapse. However, I reject that submission. A scrum collapse seems to me a reasonable description of the event the eyewitnesses described. 36 I find that at about 1:45 pm on 7 May 1994 the plaintiff was playing in the position of hooker in a game of rugby league football at Old Bar. The ages and weights of the Pirates' front row were significantly greater than of the Laurieton front row. At about a quarter of an hour into the game, the referee directed that a scrum be set. The scrum was formed. The front rows engaged. Pushing occurred. As the opposing team pushed the plaintiff's team the plaintiff was separated from one of his props by an opposing prop. That, and the pushing, caused the scrum to collapse, the plaintiff and some fellow team members falling to the ground, with three members of the opposing team on top of them, the plaintiff being on the bottom. As a result of those events the plaintiff suffered catastrophic spinal injuries which have left him a permanent tetraplegic. At the time the scrum collapsed, the plaintiff weighed approximately 57 kgs, was of slight build, and was aged 16. 37 I infer that by reason of its greater size, the Pirates were able to, and did, push the Laurieton players backwards, contributing to the scrum's collapse. The plaintiff's neck shape and its relevance 38 It was a significant part of the factual background underpinning the plaintiff's case that at the time he was injured he was of slight build and had a long, thin, neck – sometimes called a "swan neck". His case was he should never have been selected to play hooker with his bodily characteristics, especially without having had neck strengthening exercises. There were photographs of the plaintiff in evidence taken a few months before the accident. Taken alone, they suggest to me he was of slight build, but they do not enable me to judge the shape of his neck. His mother, Mrs Buttsworth, said that at the time "he was tall, thin and he had a long thin neck." 39 Dr Yeo is a highly qualified specialist in the area of spinal cord injuries. His views were a significant aspect of the plaintiff's case. He expressed views about the plaintiff's neck shape and its significance in a rugby league context. In a report of 15 December 1995 he said: "I am not able to place any significance medically on Shane's age at the time of his football related accident on the 7.5.94. Players with long, thin necks are in my opinion, more susceptible to neck injury when playing in the front row of the scrum. This opinion is based on my experience with motor cycle riders who are wearing either full face or open face helmets. In a study of over one hundred riders I was able to identify the increased risk of riders on motor cycles wearing open face helmets without the chin piece. These riders were more prone to neck injury than those riders wearing full face helmets with chin piece where the impact through the helmet was transmitted more readily to the collar bones and upper trunk away from the neck. I therefore indicated to both the authorities in Rugby League and Rugby Union that strengthening the neck muscles to simulate the effects of the motor cycle riders full face helmet would in my opinion, provide more protection to the neck and spinal cord of the player who was involved in scrummaging as well as in the tackle situation. Shane has indicated to me in our recent consultation that the scrummaging was not unusual and I am unable therefore to indicate medically that the water logged ground was a contributing factor to his neck injury. Obviously his foot hold would be less secure in a water logged situation and this in theory could lead to overbalancing more readily than if the ground was firm." 40 Dr Yeo gave a further opinion, this time in a report of 27 October 2004. He said inter alia: "On reviewing the patient's history and anatomical appearance, I have formed the opinion that Mr Green has always had a relatively long, thin neck but would have been reasonably chosen for the position of hooker had he had appropriate preparation and the building up of the paraspinal cervical neck muscles. It was in fact appropriate, in my opinion, for the patient to play if he had had appropriate training and playing in a position for which he felt comfortable and well prepared. … In 1994 I and others involved in contact sport had emphasised to the community including the Rugby League authorities, the importance of adequate preparation for contact sport and appropriate choice of players for certain positions on the field. It was my impression that the New South Wales Country Rugby League, headed by Mr Peter Corcoran, Senior Administrator in Coaching were seeking to improve player safety at that time and have continued to emphasise important aspects of player preparation, application of the rules and appropriate treatment for injury both in the city and country areas." (My emphases) 41 He gave a further opinion on 9 February 2005, when he said inter alia: "In my previous correspondence dated 27.10.04 I indicated that in and around 1994 I was involved with Mr Peter Corcoran, the Senior Administrator in Coaching for the Rugby League in advising coaches with regard to choice of players for particular positions and the training of those players for that position. I was involved in advising coaches in the preparation of players for Rugby Union, I assisted in the development of appropriate videos for distribution to clubs both in country and city areas. I personally lectured to a number of players and initiated the Spinesafe program which was introduced to schools to emphasise the importance of adequate training and player preparation in school boy football (both Rugby League and Rugby Union). The risks of serious spinal injuries in contact sport were raised and discussed at various seminars and I contributed to a number of newspaper and magazine articles between 1984 and 1994. Documentation of these recommendations was included in various publications including the National Coaching Scheme for coaching Rugby League …" 42 In a report of 18 September 2007, he said inter alia: " If players of Shane's age were playing in an all age open Rugby League competition against older and more physically developed players, physiologically they would be disadvantaged or compromised to varying degrees, depending on their fitness, position in which they were playing and the grades in which they were playing. In my opinion, Shane was at increased risk of injury to his neck when playing hooker in the front row at his age of sixteen due to his "long, thin neck profile ". We have sought through education and tuition with and through the Rugby League administrators to disseminate the information regarding the importance of developing adequate strap muscles in the neck to provide an appropriate means of disseminating forces which can be applied to the head and neck in scrums and tackles. There is evidence, particularly in Rugby Union, where the scrum has been depowered, that there has been a reduced number of incidences of spinal cord injury as a result of this depowering and, I believe, better player preparation. It has been my understanding that Rugby League Administrators have since the early 1990's, continued to promote educational programs which emphasise the importance of adequate preparation and appropriate choice of player for particular, having in mind the recognised susceptibility of certain players to neck injury." (My emphases) 43 When he gave evidence, Dr Yeo was cross-examined about the difficulty of characterising a neck. He was shown a diagram from a book of which he was a joint author. The diagram is of three young men with different lengths and thicknesses of neck. One, with a squat neck, is identified as "most suitable" to play in the front row. The one furthest from him, with a long neck, is said to be "not suitable". The one in the middle is said to be "suitable". Dr Yeo agreed that people could reasonably disagree about how to characterise players between the two extremes. He conceded there was a risk of injury no matter how well prepared and coached a team was. In that context Dr Yeo referred to his opinion dated 27 October 2004, which is set out above. Having corrected a minor error, he said: "[In reference to my statement] 'that Mr Green has always had a relatively long, thin neck but would have been reasonably chosen for the position of hooker had he had appropriate preparation and building up of the spinal cervical neck muscles'. In answering your question that would suggest that he had the appearance of the middle person of those three. Having in mind that he was going into a position of increased risk then it would have been appropriate for him before being allowed to play to have an appropriate preparation and hopefully build up those neck muscles which were at that time inadequate for the task that eventually he was faced with ." (My emphases) 44 CRL tendered no medical evidence. 45 In the end there was not a great deal of controversy about the plaintiff's neck shape. I find that at the time he was injured the plaintiff had a long, thin, neck. As Dr Yeo observed when cross-examined, there are gradations of length and thickness of neck. By reason of Dr Yeo's view he would have been reasonably chosen to play as hooker with appropriate preparation, I find that the plaintiff's neck was not as long and thin as some, but more so than others. I shall turn later to consider the implications, if any, of my findings, and of Dr Yeo's evidence. The known and disclosed risk of injury 46 I heard evidence from three very experienced former rugby league players. Two of them, Mr Barnhill and Mr Corcoran, became rugby league administrators. The third Mr Hewson, became a coach and a teacher of coaches. It is apparent from their evidence, and from that of Dr Yeo, that in 1994, it was well known in rugby league circles that front row players, especially hookers, could suffer spinal injuries in the course of playing, and that players with long, thin necks, and of slight build, were more vulnerable to spinal injuries. Both the plaintiff and his mother told me that before he began to play in the 1994 season they were not told by anyone that the plaintiff might suffer severe spinal injuries or (as I find was then well recognised in rugby league circles) that there was a well recognised risk of it for hookers, especially those with a slight build and a long neck. I accept their evidence. The case pleaded 47 The Third Amended Statement of Claim contains a lengthy list of allegations of negligence. In their written submissions, counsel for the plaintiff said: "The particular acts and omissions relied upon by the plaintiff are spelt out in detail in the Statement of Claim, however the plaintiff places particular emphasis on the following matters." 48 Thereafter, they set out 10 measures which they contended should have been taken, and which had they been taken, would have prevented injury to the plaintiff. They submitted CRL should have: "(a) Put into place a medical examination prior to the game's commencing to establish the physique of the player as was set out in the Coach's Recorder referred to above, and as was set out and had taken place in the Group 19 Division in September 1993. (b) Ensured that all coaches were provided with Coaches Manual whether accredited or not, thus ensuring that all coaches were aware of the risk of injury to persons such as the Plaintiff playing as Hooker or in the Front Row, as was set out in the Level 1 Coaching Accreditation Manual. (c) Published and disseminated information to groups, clubs and registered players providing for warnings of the risk of injury, being severe spinal injury to players of certain physiques playing in the front row. (d) Arranged for warnings to be placed on the Registration Forms with an acknowledgement that players and/or their parents or guardians had seen such warnings. (e) Amended the Skills Manual to include specific warnings in relation to the risk of injury to players of certain physique playing in the Front Row particularly as Hooker. (f) Arranged for the scrums to be de-powered and could have given appropriate recommendations to referees to ensure that that took place, as had already occurred in junior competition and as later occurred in the open age competition. (g) Directed that physical mismatching of players did not take place when persons underage and of certain physical attributes were playing, or excluded such persons from playing in certain positions in the game. (h) Included on the back of the registration form additional information to be supplied by the players including: · Age; · Weight; · Height; and · Position or positions in which you are likely to play. Such information could then have been easily checked to avoid exposing lightly built players to the risk of injury arising from playing in the front row. (i) Regulated or controlled CRL games by stipulating that players of inappropriate physique were not to play in the front row. (j) Introduced a Medical Record Card for recording physical characteristics of players as had occurred in 1993 in at least one area of the CRL competition." 49 In the course of his address Mr Deakin abandoned some of the particularised allegations in the Third Amended Statement of Claim: viz 14(e), (f), (i), (j), (k), (m), (o), (p), (t), (u), (v) and 18(c). As he conceded, the 10 particulars in [48] above do not respond exactly to the remaining particulars. However, I shall attempt to reconcile them when I deal with them one by one, without, I hope, doing any of them a disservice. 50 In the course of his oral argument Mr Deakin expanded on his written submissions to show how, by various measures, CRL could and should have taken steps to see players of the plaintiff's youth and bodily characteristics were not selected to play in the front row. Had they been taken, he submitted, the plaintiff would not have been playing there that day, and he would not have been injured. 51 So that the plaintiff's submissions can best be understood, particularly as CRL argues the impracticability of many of the suggested measures, including its inability to institute, impose or enforce them, it is necessary that I say something about the corporate structure of CRL, its relationship with Laurieton, the plaintiff's club, and Group Three, the corporate entity in whose geographical area Laurieton teams played rugby league. CRL's corporate structure 52 CRL became an incorporated association on 4 May 1989. Its constitution has a number of definitions and objects. Its definitions include these: "'League' shall mean the Country Rugby League of New South Wales Inc … 'Constituent Body' shall mean any football organisation mentioned in Clause 4 of this constitution …" 53 Relevant objects in Clause 3 are: "(a) to encourage, foster and control the game of Rugby League football throughout the State of New South Wales … … (e) to regulate and control the operation of all Constituent Bodies and affiliates … (h) To determine the terms and conditions upon which persons may play for Constituent Bodies … (j) To administer laws relating to rugby league football and to take such actions as may be necessary to achieve uniformity in such laws … (o) To impose fines or penalties … for any breach of the Constitution or the Rules and Regulations of the League or the laws relating to rugby league football (p) to regulate and control the activities of players, coaches and referees of the League in any activity associated with rugby league football … (w) Generally to do all things necessary for or incidental to the pursuit of the objects of the League." 54 Clauses 4 and 5 provide: "4. The League shall be composed of the following Constituent Bodies … (b) The football organisations known as Group 1, Group 2, Group 3 … (c) Clubs within Divisions or Groups. 5. Each Constituent Body shall be bound by and operate under this constitution and all by-laws and regulations made thereunder and shall also be bound by and operate under its own constitution and the by-laws and regulations made thereunder except to the extent that such last mentioned constitution is repugnant to this constitution PROVIDED: - Amended 27.11.93 (a) That the General Committee of any Constituent Body may from time to time amend, vary or repeal any part of or all its constitution and from time to time make by-laws and regulations or adopt a complete set of by-laws and regulations not repugnant to this constitution: and (b) That no such amendment, variation, repeal or adoption shall have any effect until it has been approved by two thirds of those present and voting at a properly convened meeting to its General Committee and is approved by the League in writing. (1) The Boundaries of each Constituent Body and the area under its control shall be those as prescribed by the League (2) For the purpose of evidence the boundaries of each Constituent Body and the area under its control shall be the boundaries referred to." 55 Clause 46(1) provides inter alia: "No player who has attained the age of sixteen years shall play in any grade competitions conducted by a Constituent Body without prior registration with the League in that year …" 56 Clause 46(3) provides that applications for registration are to be on the prescribed form signed personally by the applicant: "… and in the case of a professional player under the age of 18 years by his parent or guardian forwarded to the Group or Division Secretary and thence to the League accompanied by the prescribed fee and such necessary Clearance Certificate". 57 Clause 48(2) provides: "No Constituent League or Club shall permit any team to participate in any match competition or fixture with or against any organisation not subject to the control of the Constituent Body of the League." 58 The Constitution contains a form of constitution to be adopted by Groups. 59 It includes these objects: "(a) to encourage, foster, promote, extend, develop, govern and control rugby league Football within the area under control of the Group as determined by and under the Constitution of the League. … (g) To affiliate and co-operate with the League and with any other organisation whose objects are altogether or in part similar to those of the Group." 60 Clause 20 gives the corporation (whether a "Group" or a club), acting through one of its committees, this power: "(i) Make, vary or repeal by-laws not inconsistent with this constitution prescribing any matters necessary or convenient to be prescribed for giving effect to this constitution and/or any of its objects PROVIDED THAT no such by-law shall be effective until seven days after a copy thereof has been forwarded by post to the General Manager/Treasurer of the League and approved." (My emphases) 61 The last part of CRL's constitution consists of a set of rules called "Rules and Regulations of Country Rugby League of New South Wales Inc General Competitions and Challenge Trophy Rules." 62 Rule 7 says: "No person shall participate in an age limit competition unless he has submitted satisfactory proof of age to the Secretary of the Club and League controlling such fixture." 63 For the purpose of rugby league games the State of New South Wales, together with the ACT, is by CRL's constitution, divided into group areas. All rugby league clubs played in a competition run by one or other of the groups. Laurieton was in May 1994 a member of Group Three. Group Three covered an area in the Port Macquarie area. Each group and each club as well as being an incorporated association, was a "constituent member" of CRL. What did CRL know about the plaintiff? 64 It is part of the plaintiff's case as pleaded [para 10 Third Amended Statement of Claim] that when he was injured CRL knew: (a) he was 16; (b) he weighed approximately 57 kgs and/or was of slight build; (c) he had a long, thin, neck; and (d) he was participating in an open/unrestricted age game. It was by reason of that knowledge that the plaintiff contended CRL owed a non-delegable duty of care. 65 As to the alternative allegation that CRL owed a general duty of care, [para 11 Third Amended Statement of Claim] the plaintiff pleaded: "CRL owed a general duty of care to players, including the plaintiff, and/or the parents of a player that was playing in an open/unrestricted age game competition who, while playing in a front row position: (a) were under the age of 18 and/or (b) had a physique and/or weight inappropriate for the position; and/or (c) had a long thin neck." 66 In argument the plaintiff's counsel did not contend CRL had actual knowledge of anything other than the plaintiff's age and that he was playing in an open age competition. There is evidence it knew his age. Players in the plaintiff's club were required to sign a registration form each year. There was a standard registration form used by players throughout country New South Wales. When the hearing of this matter began, senior counsel for CRL submitted that there would be a significant factual issue about whether any registration form signed by the plaintiff had ever found its way to CRL's office. It followed from that, I understood him to say, that CRL simply did not know of the plaintiff's existence, and that it was impossible to say it owed him any duty. 67 The plaintiff, in the absence of the original, tendered over CRL's objection, copies of several versions of a document called "Country Rugby League of N.S.W. Inc Official Registration Form", apparently signed by Mr Whatson, Laurieton's then secretary, and by the plaintiff. 68 One version has the date "28/3/94" next to Mr Whatson's signature. The other has that and another (illegible) signature, with the date "12/4/94", and the words "Group Secretary". The form has space for up to ten players to sign. There are columns for, inter alia, registration number, surname, Christian name, date of birth, address, signature and occupation. At the top are the words: "I the undersigned, make application to be registered as a player with the ______Rugby League Football Club and agree to abide by the NSWRL Constitution, the Country Rugby Football League Inc. Constitution, the group or division and all rules and by-laws of the above club and of the said bodies in their entirety and to observe all directions and /or additional rules, if any, which from time to time be made by the said club or bodies … It is agreed between myself and the club that this document constitutes a contract between us …" 69 As part of the plaintiff's preparation for trial there were some interrogatories delivered to, and answered by, CRL. They and the answers were in evidence. In one, CRL was asked: "As at 7 May 1994, was Shane Anthony Green a registered player in the North Coast Division or Group 3 Division as referred to in the Country Rugby League of New South Wales Constitution?" Its answer was "Yes" . 70 The plaintiff called Mr David Barnhill. As I have noted, he is a former rugby league player and administrator. For most of his life he had a close association with the game of rugby league in country New South Wales. For many years, including 1994, he was employed by CRL, and worked from CRL's office in Sydney. From 1990 until 2002 he was CRL's general manager. Mr Barnhill told me he recalled learning of the plaintiff's accident. CRL had a policy of insurance to cover injuries to players. It had been necessary, he said, at that time, for a player to be registered as a player with the CRL before a claim could be made under CRL's group insurance policy. His duties at the time included notifying the insurer of a claim. He recalled on the Monday after the accident, seeing a document concerning the plaintiff. In describing it, he gave me a fair description[1] of one of CRL's player registration forms. He said that unless the document had the two signatures the player would not have been "one of mine"[2]. I took him to conclude the plaintiff was one of his. (No original registration form was produced during the trial. I am satisfied there once was one, but that since 1994 it has been lost). 71 When he was addressing me at the conclusion of the trial, I asked Mr Williams if CRL maintained that no registration form signed by the plaintiff had ever reached his client. I took him to say that he made no concession about the issue, but would no longer argue to the contrary. 72 I find that when he was injured, the plaintiff was registered as a player with CRL. I do so by reason of the following: (a) Mr Barnhill, who was CRL's employee, recalled the plaintiff's accident; (b) Mr Barnhill recalled seeing the plaintiff's name on a document shortly after 7 May 1994. I am satisfied from his description of it that the document was a player registration form kept at that time by CRL; (c) One version of the document tendered has two signatures, leading Mr Barnhill to conclude the plaintiff, whose name is on it, was "one of mine" ; (d) It was Mr Barnhill's duty to contact CRL's insurer when a claim was to be made; (e) A player had to be registered with CRL before its insurer would meet a claim; (f) In fact a claim was made to CRL's insurer; and (g) CRL's answer to the interrogatory. 73 I am satisfied a registration form signed by the plaintiff and given by him to his club was sent by his club to CRL at a time between 28 March 1994 and 7 May 1994. 74 CRL objected at trial to the two photocopies of the plaintiff's registration form going into evidence. But in view of Mr Barnhill's evidence and CRL's answer to the interrogatory, I allowed the documents into evidence against CRL. 75 As appears from the copies of the registration form signed by the plaintiff, his date of birth is set out. I conclude, given CRL received the original before 7 May 1994, that as at 7 May 1994 CRL had been informed one of its registered players, namely the plaintiff, was 16. 76 The plaintiff's counsel submitted CRL also knew his bodily characteristics. They based that contention on the laws of agency, and the presumption that the knowledge of an agent is imputed to his or her principal. However, there are limits to the doctrine: Wyllie v Pollen (1863) 3 De GJ & S 596 at 601; 46 ER 769 at 770. The degree to which knowledge is imputed varies according to the scope of the agency: In the Matter of the Phillip-Stephan Photo Litho and Typographic Process Pty Ltd (1890) 12 LR NSW (Eq) 4 at 9 per Owen CJ in Eq. I am of the view that although Laurieton had an agency to receive and pass the registration form to CRL, the agency's scope did not extend beyond that to imputed knowledge of any of the plaintiff's bodily characteristics Laurieton's coach or players or officials may have observed. Mr Deakin concedes that if I reject his agency argument (as I do) it must follow CRL had no knowledge of the plaintiff's bodily characteristics. 77 As I have noted, Mr Deakin also submitted CRL knew the plaintiff was playing in an open age competition. Mr Deakin put to me this information came from what was contained in the Laurieton games programme, and the fact that the whole of "Group Three" was an open age competition. However the programme, on its face, is merely a Laurieton club publication. The evidence does not show CRL received it before 7 May 1994. It is true the club name (Laurieton) appears on the top of the registration form. But there is no reference on the form to Group Three. 78 There was evidence about what happened to player registration forms in CRL's office. That suggests CRL had the capacity to work out which under 18 players were playing in the open age teams. Mr Barnhill said this:[3] "When a form is received, they'd quite often be put in a folder for their group and then when it come to reconciliation of payment from that group, we would go through them and quite often we would find younger players registered in the open age division. Their fee was a different fee. We would be trying to help clubs and groups by making sure they paid the right fee. Q. So there would be an assessment of them to identify underage players playing in open age competitions, correct? A. If they were registered as senior age players." 79 There is no evidence anyone from CRL ever looked at the plaintiff's registration form before he was injured, put it in a Group Three folder, or identified him as an under age player. Mr Barnhill said they were just kept in a file and generally only looked at if a claim was made or when registration payments were being reconciled. Mr Barnhill, however, said it was common for under age players to play senior football. I find that on 7 May 1994 CRL knew that some players who were under 18 were playing in open age competitions, and that information in its possession would have enabled it to discover, had one of its employees looked at the information, that the plaintiff was such a player. The duty of care issue 80 Mr Deakin submitted in opening the case that at the time the plaintiff was injured, CRL owed him a non-delegable duty of care, alternatively, a general duty of care. He relied on, and referred me to, a number of cases, including Watson v Haines (1987) Aust Torts Reports 80-094, where claims had been made arising from sporting injuries. 81 I am not persuaded that the relationship of CRL to the plaintiff was one of the limited number of categories of relationships in which a non-delegable duty arises. That duty is a form of strict liability: Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 638. 82 It arises: "because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised." ( Kondis v State Transport Authority (1984) 154 CLR 672 at 687 per Mason J.) 83 The plaintiff's relationship with CRL could not, I consider, satisfy those criteria. 84 In the end I took Mr Deakin to concede no non-delegable duty arose here. 85 I am persuaded that if a duty arose, it was a general duty of care. Although Watson had facts similar to those here, that case, as Mr Deakin conceded, concerned the obligation of a school authority to a student, a relationship traditionally held to fall into the small number of relationships giving rise to a non-delegable duty. 86 In RTA v Dederer [2007] HCA 42; (2007) 238 ALR 761 at [18]; 767, Gummow J said: "[T]he proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. … [W]hatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. … [T]he assessment of breach depends on the correct identification of the relevant risk of injury. [It] must be assessed prospectively and not retrospectively. [S]uch an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt . [4] " 87 At [69] his Honour said: "What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention." 88 In general, a duty of care is owed only if a defendant ought reasonably to foresee that his or her conduct may be likely to cause loss or damage to the plaintff or a class of persons to which the conduct belongs: Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021. But as Kirby J said in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at [122]: "It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty." 89 In Nowak v Waverley Municipal Council (1984) Aust Torts Reports 80-200 an injured rugby league footballer sued his club and the Eastern Suburbs District Junior Rugby Football League (which apparently organised the games) when he was injured in a game, having tripped on a protruding water sprinkler. At 67, 808-67,809 Mahoney JA said: "The duty of care which the League and the Club owed to the plaintiff did not derive, or derive simply, from the fact that they had the permission of the Council to use the field and to have those that they nominated play football on it. Their duty derived from the fact that, in the particular context, they had taken it upon themselves (to put the matter generally) to organise and present the football games to be conducted on the field. Whether they were, by the rules of the League organisation obliged so to do, it is in my opinion, the proper inference to be drawn that they had taken it upon themselves to do so and that the plaintiff and his team mates had seen them so to do. Where, in such a context as the present, a person takes it upon himself to do such things, he may be liable in negligence in respect of the dangers which arise from what he does." 90 In Anderson v Mount Isa Basketball Association Incorporated (1997) Aust Torts Reports 81-451 a referee sued the organiser of a basketball competition. At 64,588 Davies JA and Demack J said: "Plainly the relationship between the appellant and the respondent was such as to give rise to a duty of care in the respondent to take reasonable care to avoid a foreseeable risk of injury to the appellant. The respondent was in charge of the administration of basketball in Mt Isa. Clubs and individual players paid it a registration fee. The respondent's responsibilities included the organizing of a number of competitions in various grades and the provision of referees for games. It paid referees including the appellant a small remuneration for their services. At the relevant time the appellant was a new and inexperienced referee." 91 In Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39, an injured rugby league footballer in his action against his club alleged it was negligent by failing to prescribe rules to prevent matches being played when a team was unable to field a full side. The case was before the Court of Appeal on an interlocutory issue. "Duty of care" does not seem to have been argued. However, at [49]-[50] Mason P said: "A key matter that will have to be addressed at the trial is the reasonableness of the conduct of defendants as bodies administering the conditions in which amateur rugby league football is conducted. Negligence will have to be determined as at 1998, based on the evidence, having regard to what was known and what ought to have been known at that time and the standards and practices at that time of administrators similarly placed. Furthermore, there is a significant distinction between participation in a sport or observation of it, on the one hand, and its administration, on the other. Determining compliance with the standard of reasonable care of a sports administrator will need to be informed by the evidence, not the perceptions of persons standing on the sporting sidelines as it were." 92 Here there is evidence, which I accept, and from which I find: (a) CRL was ultimately responsible, within rugby league circles, for administering the sport in country New South Wales, although it did not organise games, or rosters, choose coaches or select teams; (b) the plaintiff's club and Group Three were constituents of CRL. Under their constitutions, whilst they had common objects, when it came, for example, to their amending their by laws, CRL had the power to disallow the amendments; (c) CRL arranged insurance for all country players and insisted players be registered with their clubs, and, to ensure cover, that the registration forms be sent to it; (d) the plaintiff was a country rugby league player who played in a competition organised by CRL' s constituent; (e) CRL took it upon itself through NSWRL to arrange for country coaches to undergo accreditation courses organised by NSWRL, and took steps to ensure they had the coaching. The coaching courses gave attention inter alia to the special vulnerability in the front row of players with small stature and with long, thin, necks; and the need for and importance of neck strengthening exercises; (f) CRL knew that a number of players aged under 18 played in and against open age teams; (g) CRL knew that front row players of slight physique, and whose necks were long and thin, were more vulnerable to serious spinal injury than players who did not have those characteristics; (h) CRL knew some of the coaches who coached open age clubs had not undertaken coaching courses. 93 I am satisfied from those matters there was, here, a duty to take reasonable care owed by CRL to the plaintiff. It is true CRL knew little about him, and there were two other corporate entities involved in the conduct of the game on 7 May 1994 with whom the plaintiff had a much closer relationship, namely Group Three and Laurieton. But a defendant does not necessarily need to know of someone's existence to owe that person a duty of care. Indeed, the person to whom the duty is owed may not even exist at the time a wrong is done, yet later be found to be owed a duty: Hawkins v Clayton (1988) 164 CLR 539 at 577-578 (per Deane J); X v Pal (1991) 23 NSWLR 26 at 41 (Clarke JA). 94 Although I am satisfied CRL owed the plaintiff a duty to take reasonable care, it is necessary to examine the ways the plaintiff says it was in breach of that duty in the context in which his injuries were received. What is required to discharge the duty in any case where negligence is alleged depends on all the circumstances of that case: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [20] (per McHugh, J). In Brighton le Sands Amateur Fishermen's Association Ltd v Vasilios Kormovokis [2007] NSWCA 331, Tobias JA (with whose reasons Giles JA and Handley AJA agreed) said at [23]: "The enquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a forseeable risk of injury, could have made to that risk. One of the possible answers to that enquiry must be 'nothing'." Here I take the risk to be that the plaintiff would suffer severe spinal injury. The individual particulars of negligence 95 Against that background of principle, I shall turn to deal with the individual particulars of negligence, and whether I consider any are made out. It is important when considering these allegations to distinguish between what Group Three or the plaintiff's coach, or team could or should have done, in the execution of their respective duties of care to the plaintiff, from what CRL could or should have done. Apart from specifying the particulars still relied on, the plaintiff's counsel mainly only put specific arguments to me about the ten particulars in [48] above. However, although they were not referred to specifically I shall deal with all other particulars not withdrawn. 96 The first, second and third allegations of negligence in the Statement of Claim are: Particulars of Negligence of the Second Defendant a. Adopting and retaining or failing to vary laws relating to scrummaging which created an unreasonable risk of spinal injury; in particular s.12 of the Law of the Game. b. Failing to amend or vary the Law of the Game to reduce the risk of spinal injury, as could reasonably have been done:- 1) BY PROVIDING (i) that opposing front rows were properly positioned against each other prior to engagement of the scrum; (ii) that the opposing front rows were in a crouched position with head and shoulders no lower than their hips; (iii) that the crouch referred to was the extension of normal stance by bending the knees sufficiently to step into the engagement without a charge; (iv) that the crouched position be adopted by the front row not more than one arm's length from the opponent's shoulders; (v) that the scrum should be formed by the stationary engagement of opposing first rows, followed by the second row; (vi) that opposing forward packs should not engage without a process designed to prepare them for the force of engagement and bring them as close together as possible, such as the "crouch-touch-pause-engage" rule adopted in the game of rugby union by the International Rugby Union Football Board in 1988. (vii) that there be no force exerted during the course of the scrum. c. Failing to provide, or sufficiently provide, for local variations in the laws of the game for safety reasons, particularly amongst younger players. 97 As I construe them, particulars a, b and c, deal essentially with rule making, and amount to an allegation that CRL should have used its rule making power to change the way scrums were conducted, with less physical contact. There is obvious correspondence between these three allegations, and allegation (f) in [48] above, where it is said depowering should have been "arranged" with appropriate recommendations being given to referees, as had already occurred in junior competition and as occurred later in all open age competitions. 98 In his opening, Mr Deakin submitted that it was CRL which "called, conducted and organised" the competition in which the plaintiff's team was playing when he was injured. CRL's primary position however was that at the time of these events it had a somewhat passive role, and was a mere information conduit; that there was nothing meaningful it could have done to change the laws of rugby league in the way the plaintiff alleges it should have. 99 However, as CRL's constitution shows, CRL had the power to play a significant role in promoting and controlling rugby league in New South Wales country areas. Further, its objects included the power to determine the "terms and conditions upon which persons may play for Constituent Bodies." It also had the object of regulating and controlling the activities of players, coaches, and referees. Its constituent bodies (of whom the plaintiff's club, Laurieton, was one) were bound by its constitution. Its constitution insisted players of 16 or more register, using a prescribed form, and, if the player was under 18, that the parent or guardian also sign. 100 By its pleading ([2] Amended Defence to Third Amended Statement of Claim) CRL admitted that at all material times it was responsible for the administration of the sport of rugby league in country New South Wales including the country rugby league of NSW Inc Group Three Competition. Of course, as CRL submitted, there can be difficulties in defining what is meant by "administration". 101 According to Mr Barnhill, CRL in 1994 had a management committee of 12 or 13, with representatives from various divisions. The committee met approximately two monthly and made recommendations to a general committee of CRL. Its recommendations were invariably accepted. 102 Mr Barnhill said that each group controlled the football in its own area, and CRL controlled the groups. Mr Barnhill was often consulted about CRL's constitution, to assist clubs and groups with his interpretation of it. Further, although a group was permitted to change its constitution, CRL could disallow the changes and had in fact disallowed quite a few. 103 In cross-examination Mr Barnhill gave this evidence: "Q. Do you agree with this statement, before May 1994 the Country Rugby League had no direct involvement with the day-to-day management and administration of club competitions? A. No. Q. What part of that do you disagree with? A. Well, the day-to-day running of the competition was responsibility of the group, the clubs involved in the group, that was their responsibility but they came under our constitution administration if there was protest or something went wrong in a game or anything like that and the rules of the game were, rules for that competition were supplied by us." 104 At times, according to Mr Barnhill, CRL imposed local rules on certain clubs. He gave as an example, a club for which CRL imposed a set of rules providing for the club's responsibility for its players. That followed incidents of violence on and off the field, associated with excessive alcohol consumption. 105 Mr Barnhill was asked about the purpose of the registration form. He said it: "… was something we needed, the little strip on the top, the whole works, was to keep it as legal as we could over a number of 40,000, 50,000 players. They signed that and then, at the time we were told that was a protection for the league." 106 He said CRL had a system of keeping track of the number of players playing in each of the under age and over age competitions. This enabled CRL, he said, to show it was a very powerful organisation, and say that it had the largest number of registered players in the world. 107 He was asked about the implications for CRL if its decisions or policies were not in accord with those of the ARL. He agreed that funding CRL received from ARL, and services provided by NSWRL's development officers to CRL, might be affected. 108 I am persuaded that, far from being a mere conduit, as counsel for CRL contended was CRL's position, CRL played an active role in the rugby league organisation in country New South Wales. When CRL, late in the course of the proceedings, sought to amend its defence, by raising this "conduit" defence: (see [2] a., b., c. Amended Defence to Third Amended Statement of Claim), the plaintiff objected. I gave leave. I did so as I considered the plaintiff must have known always it had to prove CRL had the ability to do what the plaintiff alleged it should have done to avoid harm to the plaintiff. That necessarily raised the causation issue and required the plaintiff to consider CRL's functions compared with those of the groups and the teams, and what capacity it had to change rugby league rules, or their interpretation, and see the changes were carried out. 109 I conclude also that had it chosen to, CRL could have varied the laws of the game in the ways set out in [14] a., b. and c. It was within its legal power to direct through its constituent bodies, the groups, and the teams, including, in particular, Group Three and Laurieton, that they adopt local variations in the laws of the game for safety reasons, particularly to protect younger players. 110 It is, however, another matter whether CRL should have used those powers. And putting aside rule changes, it is another matter, too, whether CRL should have "arranged" for depowering of scrums to occur. Should the laws have been changed? 111 Agar v Hyde (2000) 201 CLR 552 involved a claim by two injured adult rugby union players who suffered spinal injuries in scrums in games in New South Wales. They sued some individual members of a board made up of representatives of various national member rugby football unions. They claimed the unions had the power to make and change the rules of the game. They alleged they were each owed a duty by each board member to take reasonable care in monitoring the operation of the rules to ensure they did not provide for circumstances where risks of serious injury were taken unnecessarily. It was found they owed no duty of care. It was argued the rules should not have been such as to expose the plaintiffs to "unnecessary risk of serious injury". What Gleeson CJ said (at [17]) is, I consider, relevant to the plaintiff's allegation of negligence (a), referring as it does to "unreasonable risk". Gleeson CJ said: "The content of the suggested duty is 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?" 112 The difficulty of applying rules was referred to by Gaudron, McHugh, Gummow and Hayne JJ, as follows: "80 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 judgment of the particular officials who controlled the match. Often enough (and always if the bystander on the touch line is to be believed) those judgments turn on individual and qualitative assessments made by the officials which have to be made instantly, no matter what the speed of play. Should every infraction of the rules be penalised? When should advantage be allowed? Should the game be allowed to flow with as little interruption as possible? 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. … 88 Mr Worsley makes no allegation of any breach of the laws of the game. If there was no breach of the laws, Mr Worsley would have no claim against his opponents. …" (It is to be noted that the plaintiff here does not allege there was any breach of the laws of rugby league. It follows that he has and seeks to make no claim against his opponents, the Pirates. In that context, it is significant to note what their Honours say at [89].) "89 … [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. 90 The decision to participate is made freely. That freedom, or autonomy, is not to be diminished. But with autonomy comes responsibility. To hold that the appellants owed a duty of care to Mr Worsley would diminish the autonomy of all who choose, for whatever reason, to engage voluntarily in this, or any other, physically dangerous pastime." 113 At [127] Callinan J said: "127 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. … 127 … 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." 114 It is important to recall that at the time of these events the plaintiff, unlike the rugby union players in Agar was not an adult. But what their Honours say is relevant to the difficulty in imposing norms in what the evidence here shows to be a potentially dangerous sporting activity. 115 In the context of whether CRL had power to make and enforce rules it is to be observed there was debate at trial about a possible rule that a player of certain physique not play in a certain position. It is apparent from the evidence of Mr Barnhill that CRL through its officers such as he, had known for years prior to 1994 that there was a risk of significant spinal injuries to front row players. He was asked about making and enforcing a rule such as that someone of small stature and with a long, thin, neck not be selected for the front row. He considered that if a rule were introduced to require a player with a long thin neck to be excluded from the front row it could not be enforced, because of differences of opinion about whether a player's neck was long and thin. 116 Mr Barnhill was quite familiar with the Watson case, since it apparently achieved a degree of notoriety in rugby league circles. It involved a claim for negligence by a boy who was 15 at the time he was injured, and playing hooker in a schoolboy team. He suffered quadriplegia when the two halves of the scrum engaged. He had a long thin neck. 117 The Education Department had been warned that boys with his physique should not be selected to play hooker and in any event should be given neck strengthening exercises. That information was not passed on to the teachers who coached and selected him. 118 His claim against the department's nominee was successful. That was because, it was held, the State of New South Wales had a non-delegable duty, alternatively a general duty, to ensure reasonable care was taken, so that pupils with his physique were not exposed to the risk of spinal injury. 119 Mr Corcoran, a former ARL director of coaching, told me that after the Watson case became known in rugby league circles, player safety was given greater attention. Mr Corcoran worked a great deal with Dr Yeo on issues of spinal safety, and was the co-author of a publication initially sponsored by the Rothmans Foundation, called "National Coaching Scheme, Coaching Rugby League: Level 1 Coaching Certificate Course" ("the Coaching Manual"). The publication went through several editions. Its most recent before 1994, was in 1991. That edition was in evidence. Lesson 8, commencing at page 88 of the publication, is about scrummaging: At that page, a player is seen to ask the coach – "Coach – where can I play in the scrum?". At pages 89-90 the following appears: · " HOW DOES A FORWARD AVOID INJURIES IN SCRUMS? · Selection of players of suitable build for each position. · Players to be given special exercises to strengthen their necks and shoulder muscles. · These exercises to include Static Neck Muscle … and Dynamic Neck Muscle … Exercises, together with players' Neck Wrestling … · Coaching in proper scrum techniques. · Avoid any collapsing of scrums by using correct feet placements and proper binding. · Proper on-field supervision of scrums. · THE FORWARDS' MENTAL APPROACH IS AS IMPORTANT AS THEIR PHYSICAL APPROACH TO SCRUMMAGING · Forwards need to mentally push themselves to be first to the scrum mark and ready to pack down. · Each forward should have a positive mental approach towards winning the ball in every scrum. · They should concentrate fully at all times on their respective duties, in the scrum, as they carry out practise sessions. · All should frequently mentally rehearse their scrummaging technique – so as to be able to do their best even when fatigued. · WHAT ARE THE PHYSICAL REQUIREMENTS FOR FORWARDS SELECTED IN EACH SCRUM POSITION OF THE FRONT ROW · It is important that these three forwards' builds should include short, strong necks and strong shoulders. · There is no place in the front row for forwards with long necks and narrow shoulders even if they are strong (Fig. 4). · These three players are the first in line to take and withstand the tremendous pressure exerted in the pushing and screwing of each scrum. · The Loose Head front rower … if possible, should be taller than his hooker. · Strong build with a short neck and wide shoulders is ideal." 120 The Coaching Manual, Mr Corcoran said, was issued to and used by coaches who attended the coaching certificate course for level 1 certification run by NSWRL. It was also made available to CRL's coaches who attended the course. 121 Mr Corcoran gave evidence about another manual available in rugby league circles in New South Wales in 1994. It was called "National Rugby League Coaching Scheme Skills Manual" ("Skills Manual"). Its introduction (written by Mr Corcoran) said inter alia: "[T]his book is aimed at assisting the juniors' coach, the school coach, the concerned parent and even the young player himself." 122 At page 72 of the Skills Manual, under the heading: "Points for all Forwards to remember", point 6 says: "On the referee's order to pack down the front row may gain an advantage by quickly bending lower than the opposition front row. If they have packed lower than the opposing front row, the hooker and his prop forwards immediately push up, lifting their opponents high. But while the loose-head forward and the hooker lift as high as they can, the tight-head prop forward does not try to lift too high because this would reduce his hooker's reach for the ball. This method of packing down upsets the opposition front row for these reasons - · When the opposition second-rowers and the lock forward give their weight this tends to lift the front row higher. · The high lift obscures the opposition hooker's and loose-head prop forward's view of the ball coming into the scrum. · The hooker is off-balance and his reach for the ball is impaired and (assuming he has the loose head) his own tight-head forward's shoulder pushing under him lifts him higher still." 123 Mr Corcoran agreed that in 1994 the rugby league laws provided for scrums to be contested, and that the Skills Manual encouraged players to use their weight to the maximum, applying as much pressure to the scrum as they could. The object, he conceded, was to maximise the upset to the opposition scrum. 124 As Mr Corcoran acknowledged, the Skills Manual was still being put forward for use by players, when it was known in rugby league circles that front row forwards were still receiving spinal injuries in scrums. Mr Corcoran said that prior to 1994 the way scrums were conducted was changed for the 6 to 15 year old teams. For them, scrums were "depowered", so there was not the engagement of front rows. 125 Mr Deakin contended that there was an irony revealed by comparing the Skills Manual (for players) with the coaching manual (for coaches). Although coaches were made aware of the importance to player safety of physically appropriate players being selected for the front row, there was no such reference to that issue in the Skills Manual, he submitted, the Skills Manual emphasising the need to engage physically with the opposite front row, and the advantages to a team, of using hard physical exertion. 126 An issue arose in the trial about Mr Corcoran's evidence. Mr Deakin sought to obtain certain evidence from him, which I declined to permit him to do, as I formed the view the evidence was expert evidence, and no report had been served. 127 After lengthy argument, I permitted Mr Corcoran to give expert evidence, although, as it transpired, most of his evidence was of a factual nature. I gave leave because: (a) he held a peculiarly important role in rugby league; (b) there were, I was satisfied, before trial, some practical problems experienced by the plaintiff's solicitor, in obtaining his signature to a written opinion; (c) an outline of his expected evidence had been given to CRL's solicitors about a month before the trial; (d) he did have a relevant expertise in knowing what "knowledge" there was in the rugby league community about spinal injuries occurring to front row forwards; (e) I could see an injustice might occur to the plaintiff if I did not admit the evidence; and (f) I could not see any injustice to CRL by allowing it. 128 Mr Corcoran told me that after 1994, in around the mid-90s, all rugby league scrums were progressively depowered. Following that, he heard of no spinal injuries occurring in scrums in rugby league in New South Wales. I took him to say that depowering had occurred with the advent of the so-called "Super League", the consequential need for the game to entertain television viewers, and the fact that traditional scrums slowed down the game and made it less entertaining for the viewer. Dr Yeo's evidence was that according to information to which he had access, there was a major reduction in the number of scrum injuries after 1996.[5] 129 Mr Barnhill, who spoke not for NSWRL but for CRL, said scrum depowering had occurred in junior levels before 1994 but not in open age competitions. To his knowledge there were 16 year olds playing in open age competitions in 1994. He said that to his knowledge, in open age games, "the scrum is still a contest. I have not seen a rule where it has been changed that says you cannot push in a scrum today. But I will say the feeding of the scrum has changed. It is not a contest there." Conclusion on these allegations 130 None of the three very experienced witnesses, Messrs Barnhill, Corcoran and Hewson, (who was called by CRL) said what he thought about the proposed rules in 14 a., b. and c. or how they might work. I conclude they represent the way rules could have been formulated to bring about depowering. However, I conclude no breach is established by CRL's not taking the steps in [14] a., b. and c. 131 First, I am not persuaded the rules needed to be changed to bring about depowering, since depowering occurred gradually between the late 1980's and 1996, without rule changes. Secondly, the three witnesses I have referred to above were not asked to say whether the rule in b. was the appropriate way to bring about the change. Thirdly, I consider CRL would have had some difficulties, including, potentially, financial ones, in its relationship with NSWRL if it had introduced such a rule change unilaterally. The evidence suggests that when depowering occurred it did so uniformly across the State, occurring at the same time as NSWLR introduced it. Given the evidence about how the two worked together, it is I think understandable that CRL did not act alone on the issue. Finally there are the considerations set out in the High Court judgments in Agar concerning the difficulties in formulating rules in the context of an admittedly potentially dangerous activity. Depowering by administrative arrangement 132 As I have noted, putting aside rule changes the plaintiff submits, alternatively, that CRL could have arranged for depowering to occur by administrative means. In sub para (f) of the ten particulars in [48], it was put that CRL should have "Arranged for the scrums to be depowered and could have given appropriate recommendations to referees to ensure that that took place, as had already occurred in junior competition and as later occurred in the open age competition." 133 I took Mr Barnhill to say that CRL could by 1994 have taken steps to have scrums depowered for open age teams, as had by then occurred with the younger teams. I am satisfied that, had CRL taken this step, and the recommendation to the referees been acted on and instituted, it would probably have prevented the plaintiff's injuries. In an article by Dr Yeo and others, called "Cervical spinal cord injury in rugby union and rugby league: are incidence rates declining in NSW?" (2006, Australian and New Zealand Journal of Public Health, Vol 30, No.3, p 268) at p 27[6], the authors say: "No scrum injuries occurred in rugby league after 1996 (when the scrums in this game were 'depowered' and no longer contested)." 134 I have observed that Mr Corcoran's evidence was that following depowering[7] he knew of no spinal injuries. He described the progression of depowering as follows:5 "…[T]he National Safe Play Code came in in the earlier 90s and that depowered the scrums for the sixes right through to 16. With that, there became, I suppose, an acceptance that scrums could also be depowered in the senior grades. By how much, how quickly, and at what time, I couldn't put a date on it. Q. Can you put a range of dates consistent with your earlier answer that it was some time after 1994? A. I'd say it could be a little bit before, a little bit after, but around that date yes, the middle 90s when I think, particularly when we had the super league issue. Then after that super league brought in an entertainment dimension within the game and scrums were progressively depowered more and more. Q. And super league came in in what year? A. Ninety-five, 96. Q. Doing the best that you can now Mr Corcoran, were you aware of any spinal cord injuries in scrums occurring after Shane Green's in the game of rugby league in New South Wales? A. No." 135 He went on to give this evidence[8]: "Q. When you talk about depowering the scrum, do you mean that there was no pushing by either side of the scrum? A. Depower, when a scrum is depowered, in all our education programmes the techniques of scrummaging, the bonding, the feet placement, the direction of push, all of those things are taken care of. But in a depowered scrum, when the two scrums come together there's minimal push. You can't say that there would no push because, by virtue of the fact that they coming together there will always be some push, but it is minimal. Q. To your knowledge, what was it that started this trend of scrums being depowered rather than there being pushing in the scrums? A. They are a combination of things. First of all, and I go back to rugby, where there were at the time considerable collapsing scrums, not that there are injuries, I am not saying that, but that led to three and four reconstituting of the scrum, with the result that there was quite an amount of time within time frame of the game where there was just no football. Now, I have got to say that there we, to a certain extent, followed the same situation where there would be an interpretation to the construction of the scrum and the ball then would have to be placed in again, so we are also are faced with the situation where there were considerable minutes, reasonably often within the game, where there is just no football. And when you looked at the number of scrums and the possible number of times that they were reconstituted, then you would be forgiven if you thought there was far too much wasted time. Now, that was the first time first thing. When the game became very popular on television, then obviously those down times were something of which I suppose the media were very critical of, with the result that it was, I suppose, progressive that league said, when we examine the statistics of the scrum, it is very rare, as in rugby also, to win the scrum against the feed. With the result that whoever has the - is the non-offending side, who has the feed for the scrum, basically they win the scrum. So, I suppose, if you want to be a little bit flippant, you could say that it was said, let's get the thing in and out and get on with the game. So, gradually the interpretation and some laws were changed about the half back having to stand with his hand on the end of the ball and feeding it in the middle and all these sorts of things were changed over time to allow the scrum to be formed in a relatively easy fashion, i.e. depowered so that the ball came out quickly and we got on with the game. Q. So there was no rule change to mandate the depowering of the scrums? A. Not so much a rule change in word, but in interpretation. Q. Interpretation by the referee? A. By the league, as they instructed the referees within their education. Q. And the league was instructing the referees, to your knowledge, from a marketing perspective, that is, make the game more attractive to the viewers? A. I don't know that at any stage they instructed them to do anything, if you like, outlandish with regard to interpretation. Just improving the quickness with which the scrum was formed and concluded and the ball was back in play." 136 In his re-examination there was this evidence: "Q. What relevance, if any, in your understanding, that prompted the depowering of scrums in open age competitions did safety aspects have? A. I think I said that the aspects of media pressure, if you want to say that, and other things caused a review of the situations across the board over years. But in the end, irrespective of what was discussed and what decisions were made, the safety angle would have been high on that agenda in that, when all else is considered, if it was safe or unsafe would determine whether it went ahead." 137 Mr Deakin submitted that what had occurred by 1996 could have been done earlier, and that the evidence would satisfy me it should have been. Mr Deakin submitted Agar was distinguishable. The plaintiffs there were adults. The class of people to whom the duty was alleged to be owed in Agar was indeterminate, whereas here the registration process permitted calculation of numbers of players in each group. The relevant class was under 18 year olds in open age games. Mr Deakin said the class was "relatively small". That submission, I consider, accords with the evidence. 138 Although it is of no consolation to the plaintiff, the fact is that scrums were depowered by 1996. I infer the process of change needed time. A number of parties other than CRL (such as NSWRL) were, I infer, involved in the process. I see good practical reasons why CRL would not have acted alone on the issue. I have referred to them in [131]]. So, although it was put to me that CRL was in breach of its duty to the plaintiff by not bringing about depowering two years earlier than it did in fact occur, I do not accept the submission. I am not persuaded reasonable care required it. 139 I shall now return to [14] Third Amended Statement of Claim, and recommence with: d. Failing to take appropriate action to guard against the foreseeable risk of injury to players, including the plaintiff, who were playing in the front row of an open/unrestricted age game who: (i) were under the age of 18 and/or; (ii) had a physique and/or weight inappropriate for the position; and/or (iii) had a long thin neck. 140 I took the plaintiff's counsel to argue that the action under this particular which it is argued CRL should have taken constituted the set of steps (a) to (i) set out in [48] above. I took all three of Messrs Corcoran, Barnhill and Hewson to raise doubts about the suitability of someone with the plaintiff's physical attributes to play in the position of hooker. For example Mr Hewson said "Obviously I wouldn't put him there" when asked of the suitability to play hooker of a slightly built player weighing 50kg, with a long neck in an open age competition. 141 I have dealt already with (f). I shall now deal with the other steps, one by one. (a) CRL should have put into place a medical examination prior to the game's commencing to establish the physique of the player as was set out in the Coach's Recorder referred to above, and as was set out and had taken place in the Group 19 Division in September 1993. 142 The practicability of this particular was not put to witnesses or specifically pleaded, but no objection was taken to its being raised in submissions. It is to be recalled that before a player was permitted to play he had to sign a registration form. If he was under 18 he had to produce a statutory declaration from a parent giving his or her consent for him to play. There was evidence that in 1993 a "Medical Advice Card" was the subject of an experiment involving the Australian Sports Medicine Federation and some rugby league players. It was apparently a card given to each of a group of players to fill in and return. The players would reveal medical matters relevant to their ability to play rugby league and these matters would be considered and taken account of. In at least one instance, concerning a young player with a history of a skull fracture, his filling in of this card led to his being advised he not play at all. The information was apparently made available to coaches. As Mr Deakin put to me, a system such as this, involving cards, could have been in use before the plaintiff's injuries. Mr Deakin submitted a good document to use as a model for the player's doctor to fill in when conducting the examination, would have been the player profile check list in a publication called "A Coach's Recorder" [A4, Tab 47, p.35]. Mr Deakin acknowledged the medical examination would present some practical problems. 143 Although it would have been possible for CRL to insist (or make it a condition of play) that a player be examined by a medical practitioner to establish his physique, so he could be allocated his appropriate position in the team, I do not consider its omission to do so in 1994 amounted to a breach of duty. There is no evidence CRL or the NSWRL (or any other organisation involved with the game) ever imposed this condition. I infer it would have involved some expense. Mr Deakin said, "I would have thought it should be at the player's cost or the club's". I am not persuaded the club had the resources to pay. Further, Exhibit "H" shows CRL's income for the relevant year was committed for its usual operations. I conclude it did not have the funds for this expense. Mr Deakin conceded that it would have been unreasonable for CRL to have to pay. 144 However, he submitted the requirement would in any event only apply to "at risk" players. Assuming the player had to pay, and did, and a medical examination did occur, the evidence shows there can be differing views about whether a player has such a long thin neck that he should not be in the front row. Although there was no evidence about it, I can also conceive of arguments about whether the player has done enough neck strengthening exercises to permit him to play in the front row. As the Coaching Manual shows, there are obvious cases where players should not play, and obvious cases where they may. Then there is the in-between category. I took Dr Yeo to say the plaintiff was in the in-between category, provided he did neck strengthening exercises. 145 Mr Deakin also submitted that there would be no need, on the day of a game, to "bring out a tape measure". The coach, and the club, he said, with the benefit of the information from the medical examination, would each play a part in deciding whether a player should play in the front row. They would err on the side of caution, and if in doubt tell the player to play somewhere else. 146 Whilst no doubt this measure would have been desirable, I am not persuaded CRL was in breach of any duty to the plaintiff by not arranging for medical examinations. There would have been a necessity for someone to decide which players were at risk. There was the expense of the examinations to be considered. Whilst perhaps this was a measure the club could have arranged, it was not one for CRL. (b) CRL should have ensured that all coaches were provided with the Coaches Manual whether accredited or not, thus ensuring that all coaches were aware of the risk of injury to persons such as the plaintiff playing as hooker or in the front row, as was set out in the Level 1 Coaching Accreditation Manual. 147 There is an assumption in this allegation that the risk was not known by unaccredited coaches. That assumption was not necessarily correct. 148 The plaintiff says that although it knew of the special vulnerability of people with his stature playing hooker, CRL's only response to the risk was to circulate "limited material" to coaches who attended accreditation courses. The evidence shows that it was the coach, ultimately, who decided who should play and where. I assume, in the case of the plaintiff, it was Mr Slater who selected him to play hooker on 7 May 1994. Since Mr Slater did not give evidence, it is a matter for speculation as to whether he knew of the risk. It is CRL's case that it did all it reasonably could to bring to the attention of coaches the risk of selecting the wrong people to play in front row positions and it did what it could to have coaches attend coaching courses. Some history about coaching in country NSW 149 In 1977 the ARL established a national coaching scheme for rugby league. In 1979 the Australian Coaching Council was established. It was funded by the Australian Sports Commission. It was responsible for developing a national accreditation scheme for all sports. During the 1980s it became recognised in rugby league circles that there was a need for all coaches to be educated. The ARL's scheme later became part of the Australian Coaching Council's scheme. 150 From at least 1989, shortly after the decision in Watson, the ARL had a policy of ensuring that all team coaches, no matter what level they coached, completed a level 1 coaching accreditation course. Mr Corcoran said that "… into the 90s, the number of course providers … who could run the courses was limited at the beginning and gradually got greater, with the result that, if there was any non-accreditation it was probably more because of the unavailability of courses or because of the distance or the remoteness in an area even where there might have been a course provider … it wasn't until the number of people that could provide the courses became … sufficient to service all areas that (NSWRL) … then started to say, we will countenance making it not a recommendation or voluntary, but we would countenance it being obligatory. That wasn't until 2000." [9] 151 For some years prior to 1994, NSWRL ran coaching courses at Narrabeen in Sydney, and at a number of country centres. The lowest level of certification was level 1. Someone with certification at that level or above was "accredited". The course material given to participants included the Coaches Manual. It is to be recalled that that publication is quite particular about the desirability of positioning players according to their physical attributes. 152 By 1994, although there had been accreditation courses for some years, not all coaches had done the courses, so not all were accredited. Indeed, as appears from Exhibit "G", some coaches in Group Three teams were in 1993 known by CRL not to be accredited. 153 Mr Corcoran said that although there were in 1994 unaccredited coaches coaching in the country area, he considered that most open age team coaches, the vast majority of whom were amateurs, had had experience in playing the game. (Indeed, there was some, though not a great deal of evidence, that Mr Slater was an experienced player.) Although there was no difficulty finding coaches for the first grade teams, there was difficulty Mr Corcoran said in finding coaches for the lower grades. His objective, in 1994, in his position with NSWRL, was to ensure that all New South Wales coaches had at least grade one accreditation. The coach accreditation course required attendance for 16 hours, usually over a weekend. Coaches had to pay a fee to attend. Unless they attended, they did not receive the Coaches Manual. So far as he knew, neither the ARL, the NSWRL, nor the CRL, could impose any sanctions to ensure coaches were accredited. The coaching courses were run by "development officers". They were not well paid. As he observed, the best people preferred to coach rather than teach coaches. 154 Mr Corcoran said that each year the development officers would speak to the clubs and ask for potential enrolment numbers. Then a timetable would be set. The courses were usually held early in the year, prior to commencement of the season. However I took him to say it was just not possible to ensure that all coaches were accredited, and that in 1994 a significant number of coaches were still not accredited. Mr Corcoran believed safe scrummaging technique was an important feature of all coaching courses. 155 Mr Barnhill said that in 1994 CRL had limited financial resources. Indeed, he said, it ran on a shoestring. All of its registration income was spent on insurance premiums. Its financial constraints meant that it did not run its own course of coach accreditation. It relied on NSWRL for that. Coaches who coached teams in the groups would attend courses run by NSWRL to become accredited. CRL relied on NSWRL's development officers to organise coaching courses for its coaches in the country. He said CRL did not have the resources to check to see which of the several thousand coaches in country New South Wales had accreditation. However he knew in 1994 that there was a percentage of unaccredited coaches in the country. Where coaches were discovered to be unaccredited, he said, CRL sought and accepted an undertaking that they would attend the next available course. The communication of this undertaking was usually through the group – not directly from the coach. The game, he said, especially in the country, was built on the efforts of thousands of volunteers. He would never have contemplated directing a club to withdraw its team if a coach was not accredited. In the early 1990s CRL had about 50,000 players (junior and senior). There were, he said, about 10,000 coaches, referees and touch judges, and about 35,000 organisers, committee members, managers, judiciary members, and collectors. They were all volunteers. Volunteers, he said, were the lifeblood of rugby league. 156 At the time the plaintiff was injured, Laurieton had a first grade team, as well as the reserve grade team for which the plaintiff played. It was not in issue but that the club's first grade coach was accredited and that the plaintiff's team's coach was not. 157 CRL called Mr Stephen Hewson, a former player and coach, and the holder of level 3 accreditation. He was the development officer for NSWRL for the North Coast area of New South Wales. That area included Port Macquarie. He held the position for a number of years, commencing in 1990. Part of his duties included keeping CRL informed of the work he did in his area, especially concerning the conducting of coaching courses. His annual report[10] shows for example, that he conducted five level 1 coaching courses in 1993. They were at Kempsey, Macksville, Port Macquarie, Forster, and Wingham. A total of 62 attended. In his report he concluded: "Some minor trouble in getting sufficient numbers to attend the courses was experienced and to eliminate this new guidelines will be in place for the 1994 season." 158 The National Coaching Director's Report for 1993-1994[11] prepared and distributed by ARL, showed that ARL, and through it the "Coaching and Development Policy Committee" on which CRL had a member, had a concern for all coaches of junior league teams to have at least level 1 coaching accreditation from 1992. 159 Documents in evidence included reports to NSWRL during 1993 about the numbers and percentages of unaccredited coaches in groups in country areas[12]. 160 It is apparent from Ex "G" that Mr Barnhill at some time in 1993 learned that Group Three had three coaches who had "incorrect qualification". By this I infer they lacked level 1 accreditation. By letter of 21 May 1993 to Group Three's secretary, Mr Barnhill asked that he "ensure that these gentlemen register in the next available course." 161 As part of the course conducted by Mr Hewson he taught coaches to prescribe neck exercises in every training session. He discussed in his course the necessary physical attributes for players, especially in the front row. As he put it: "The line that we usually used, the long skinny neck was not suitable, and you even though I don't think, and I may be wrong, that there is a measurement to say what's a long skinny neck or a short fat neck or a strong neck or whatever, it was a subjective judgment, to use the pictures that were in the book and if you had a doubt about the length of the neck, err on the side of safety." 162 He said he had that discussion with club members by reference to the diagram at p 30 of the Coaches Manual. 163 The Laurieton first grade coach, Mr Krough, attended a level 1 course in 1991. Mr Hewson said there was always a problem obtaining accredited coaches in the Port Macquarie area of New South Wales. 164 There was no evidence about whether Mr Slater had read the manual or had a copy of it. I am satisfied that if he had the manual, he would, had he read it, have been aware, if not already, of the risk of serious spinal injury to people such as the plaintiff, playing hooker. But I am not persuaded that reasonable care on the part of CRL required a copy of the Coaches Manual to be given by it to every non-accredited coach in the New South Wales country area. There was no evidence about how costly it would have been to copy and mail or deliver the Coaches Manual to all unaccredited coaches, or whether CRL had their names and addresses. I infer the cost was potentially substantial. CRL had, I am satisfied, limited resources. I am satisfied it did what it reasonably could with those resources, relying on NSWRL and ARL to provide development officers to run courses and provide material at the cost of course registrants. CRL's aim, from the early 1990s at the latest, was to have all coaches accredited. As Mr Corcoran said, it was not until 2000 when NSWRL felt it could countenance making it obligatory for all coaches to be accredited. In my view, CRL did what it reasonably could to achieve this aim, at least up to 1994. Mr Hewson said and I accept that the number of unaccredited coaches in the Group Three area at that time was not a large number. 165 Further, I am not persuaded that providing a copy of the manual to all unaccredited coaches would have had the causative effect urged for it. Apart from the fact that Mr Slater was not accredited, I do not know what he knew about the risk to the plaintiff. It may be inferred that he was ignorant of the risk, and that arming him with the Coaches Manual would have led to his not selecting the plaintiff to play hooker. But given Dr Yeo's evidence that with neck exercises the plaintiff would have been appropriate to play, he would not necessarily have excluded him from the position of hooker. That is because I take Dr Yeo's evidence to be that his neck size did not automatically exclude him. It is to be recalled too that the first grade team's accredited coach assisted with the fitness training of the reserve team[13], both coaches working together[14]. 166 The plaintiff's counsel was critical of the Coaches Manual itself, for not explaining why lightly built players should not be in the front row, and for not mentioning the risk of spinal injury. But I think to coaches, the reference to physical attributes in relation to position would have been obvious and would have incorporated that notion. There is no substance in this submission. 167 In his oral submissions Mr Deakin put to me that CRL chose deliberately not to tell players of the potential dangers of playing rugby league, lest they be scared off the game[15]. He submitted "They wanted to palm it off onto the coaches and leave it to the coaches to sort it out, but they made no attempt to spread the word to the wider rugby league community. That is why … they should be held in breach of the duty of care they owe …" 168 However, there was no evidentiary foundation for the submission that CRL chose not to tell players of the risks, and this was not put to CRL witnesses. Ultimately I understood Mr Deakin to withdraw this submission. 169 The allegation of negligence is not made out. (c) CRL should have published and disseminated information to groups, clubs and registered players providing for warnings of the risk of injury to front row players of certain physiques . 170 There was no evidence about the cost of publishing and disseminating the measure. CRL had about 50,000 players. I infer it could have asked the groups to give information to the clubs for the players. That would have been relatively inexpensive, I find. 171 When he gave his evidence Mr Barnhill made what could be regarded as a concession that CRL had not done enough to spread information about risks. Mr Deakin relied on Mr Barnhill's "concession"[16]. The evidence was: "I possibly, I believe that our communication, possibly because of finance, may not have been as it should have been. Probably we could have informed people a little bit better. I believe we relied a lot on our development officers and manager of committee and general committee members to take back concerns to clubs and a lot of the times we rely on people to do things and they don't do it." 172 He was asked: "Q. Do you have a view … as at 1994 whether the CRL could have disseminated information to clubs prohibiting players of slight physique from playing in the front row of scrums? … A. To my knowledge and from what I recall, we didn't ever document that information. It probably could have been done. But it was out there." 173 Mr Deakin described Mr Brownhill's concession that communication could have been better as an acknowledgment CRL had "slipped up". I disagree. I took him to be making an honest appraisal of CRL's communication, rather than acknowledging a wrong. As he said, the information was "out there". And he, I infer, was in an excellent position to know. 174 Mr Deakin was highly critical of CRL for leaving it up to the coaching system and development officers and management committee system to spread information about inappropriate placement of players in the front row. Given the evidence of the coaching system in force in 1994, and the limits to the CRL's financial resources, though that system of communication had its shortcomings, I consider it a reasonable response to the risk of injury to players of the plaintiff's age and physical characteristics. The allegation of negligence is not made out. (d) CRL should have arranged for a warning to be placed on the Registration Forms with an acknowledgment that the player and/or their parents or guardians had seen such warnings . (h) Included on the back of the registration form additional information to be supplied by the players including : · Age; · Weight; · Height; and · Position or positions in which you are likely to play . Such information could then have been easily checked to avoid exposing lightly built players to the risk of injury arising from playing in the front row . (I shall deal with these together, as they cover similar issues.) 175 Whilst there was no evidence of the cost of either measure, I infer they would have entailed some drafting, and an instruction to the printer. I am persuaded these measures would have been inexpensive and relatively easy to institute. 176 Dealing first with the warning and acknowledgement of danger, although I consider this a practicable and relatively inexpensive course of action, I do not consider CRL's failure to do it amounts to a breach of duty. Putting aside limits to the resources (which I accept would probably not have been tested by this measure), it is to be recalled that this incident occurred in 1994. 177 As Gummow J said in RTA, breach must be assessed prospectively. In 1994 it was well known in the rugby league community that serious spinal injuries could occur to a hooker of small and slight physique with a long thin neck. CRL through Mr Barnhill (at least) was, I am satisfied, doing what it could to see that coaches of its constituent clubs were accredited. 178 The accredited coaches were taught of the need to match physique with positions. CRL (I consider, not unreasonably) accepted undertakings from unaccredited coaches, to attend the "next" available course. Not to do more, especially change its registration form in the manner suggested, whilst desirable, and relatively easy and cheap to institute, does not, I think, looking at the matter back in 1994, lead to a finding of a breach of duty. Assuming it were a breach, as appears at [192]-[206] it does not follow the warning would have been causative of a different outcome. (I shall turn later to consider the statutory declaration the plaintiff's mother signed and the evidence about what her attitude would have been and the plaintiff's if adequately warned). 179 As to (h), I am not persuaded of its utility. Age, weight, and height would be readily apparent to a coach, I infer. The addition of positions the player wants to play would not, I think, add anything relevant: this would, I expect, be the subject of discussion in the normal course between coach and player, with the player's preferences made known orally. Thus I am not persuaded that CRL was in breach of its duty to the plaintiff by not amending the registration form in either of the ways suggested in (d) and (h). (e) CRL should have amended the Skills Manual to include specific warnings in relation to the risk of injury to front row players of certain physique 180 There was no evidence about the convenience or cost of this measure. I infer, however, that it would have been relatively easy and inexpensive. The relevant part of the Coaching Manual could, I infer, have been adapted for insertion in the Skills Manual. The reason the information was not already in the Skills Manual is not obvious, but probably because the Skills Manual was largely for players, and it was the coaches who did the selecting. 181 However, there is no evidence the plaintiff or his mother ever had a copy of the Skills Manual, let alone read it. None of the plaintiff's team mates gave evidence of having had it or read it or even seen it. It was put to Mr Hewson that to his knowledge the Skills Manual was accessed by the players as well as the coaches. This evidence was given[17]. "A. I wouldn't say that, no. Possibly a coach might have. Q. Well, do you think it's likely? A. Depends on the player. Q. All right? A. If a player was keen to develop, yes, he would look at it but if – our normal children, they do not give a damn about what's written in a book. They want to play the game." 182 I am not persuaded CRL's failure to amend the manual had any causative effect, even assuming the failure did amount to a breach of duty, a proposition which is not made out. Reasonable care did not require it. (f) CRL should have directed that physical mismatching of players did not take place when players who were under age and of certain physical attributes were playing, or excluded such persons from playing in certain positions in the game . 183 In general terms a physical mismatch is said to occur when the physique and size of the players in one front row is significantly different from the physique and size of the opposite front row. 184 I am satisfied CRL knew in 1994 that where there was a significant physical mismatch of front row players, there was an increased risk of severe spinal injury to front row players, including hookers. 185 When he addressed me on this particular Mr Deakin said: "It doesn't need somebody standing by the sideline of every game to see who runs onto the paddock. There simply needs to be, as part of a system, some general compliance with that requirement." 186 He put it as a system of monitoring compliance: "They would have a duty to monitor compliance and Mr Hewson and others who were going up and down the coast could have a look at it and see if it was complied with or not." He put to me that the requirement could have been spelt out to the group representatives at their regular meetings. 187 Assuming CRL came under a duty to give this direction and assuming further there would not have been a need to have someone present "to see who runs onto the paddock", it is hard to see how from CRL's perspective this could work in practice. I am not persuaded it would, in 1994, have been reasonably practicable. Nor do I consider it would have altered the outcome. Someone such as the plaintiff's coach would still have needed to exercise judgment. Despite Mr Deakin's assurance, the mismatch may not necessarily have been known until the other team arrived, shortly before the game. Then, assuming the coach decided the other front row looked too big, it may not have been possible to find a replacement front row, or even a replacement hooker, at such short notice. Of course, there could have been steps taken ahead of a game, to put small players in positions other than the front row on a permanent basis. So judgments would not have been needed in every match. But the opposing team, presumably having had the same direction, might then have been in trouble, with similar problems of finding last minute replacements. I am satisfied that giving a direction of the type envisaged would have been a wise course. But I am not persuaded CRL was in breach by not giving it. It acted reasonably in leaving this matter to clubs and the coaches. (i) CRL should have regulated or controlled CRL games by stipulating that players of inappropriate physique were not to play in the front row. 188 One may readily see why, given the known hazards to front row players of the plaintiff's physical attributes, a club, or a coach, may owe a duty to players to ensure proper care is taken in allocating team positions. But it does not follow that an organisation such as CRL which in day to day management of the game does not have that direct contact with players, has the same obligation. CRL could have given the postulated stipulation to groups and clubs. The cost and inconvenience would I find have been relatively slight. But did reasonable care require it? I am not persuaded it did. As I have noted, there was a distance between CRL and the plaintiff. CRL did not choose players or where they played. It could not have done so. There were too many players. That was a club function. By the system CRL had in 1994 for accrediting coaches, CRL reasonably left it to the coaches to pass information of this type down the line and to use it when choosing players and deciding where to play them. (j) CRL should have introduced a medical record card to record physical characteristics of players as had occurred in 1993 in at least one area of the CRL competition. 189 I am satisfied this measure would not have imposed a cost on players. They would have been given a form to fill in. Players may well have agreed to fill in such a form as a condition of being allowed to play. I assume it is put that the clubs would keep the records, which would be made available to the coach. 190 This proposed measure is similar to (h). I consider it would have been relatively inexpensive and not inconvenient for it to have been introduced. Depending on the degree of particularity to which physical characteristics are recorded, useful information could be made available. But much of it would be obvious to the coach. Had there been such a system when the plaintiff was selected I am not persuaded any more information would have been available to the coach than he had. His physical characteristics would have been obvious. I consider reasonable care did not, in 1994, require it. 191 As I have now dealt with the ten particulars in [48] I shall return to the Third Amended Statement of Claim to deal with those allegations of negligence not already dealt with or abandoned. 14.g Failing to warn the plaintiff and/or his parents, that playing in an open/unrestricted age competition when he (i) was under the age of 18 and/or (ii) had a physique and/or weight inappropriate for the position; and/or (iii) had a long thin neck exposed him to a substantial risk of spinal injury . 14.l. Failing to warn the plaintiff and/or the plaintiff's parents, the plaintiff being under the age of 18 that the second defendant was aware that players who have long thin necks were not suitable for the front and second row of the scrum in the second defendant's competition. 192 There is an underlying assumption in these allegations that CRL had an obligation to give the warnings. 193 Was there a duty? The common law does recognise cases where someone who owes an obligation to take reasonable care has an obligation to warn. Obvious examples are professional relationships such as doctor/patient. For example, doctors were held to have had obligations to warn patients of risks, or effectiveness of medical procedures: F v R (1983) 33 SASR 189; Gold v Haringey Health Authority [1988] QB 481; Rogers v Whitaker (1992) 175 CLR 479. In Law of Torts (Balkin and Davis, Third Edition, Butterworths) the learned authors say the basis of liability in those cases, though not fully explored by the courts, appears to stem from the fact that the doctor as the repository of specialised information or knowledge, is, effectively, the only source on which the individual can draw, and on whom the individual must rely. I do not consider the relationship between a football league such as CRL and a player or a player's parent is such a relationship. It could not be said CRL was the only source of information about the dangers to front row players of certain physiques. 194 Counsel for the plaintiff did not direct my attention to any authority on the issue. The argument simply proceeded on the assumption that this was a case where the common law imposes such an obligation. It has to be recalled that this case involves an organisation which in 1994 had tens of thousands of registered players and many thousands of coaches. The submission involves the notion that CRL would arrange explanations to the parents of the many thousands of child players. Even assuming CRL had an obligation to give the warnings, there would be practical difficulties about the giving of them. Who should have given them? Should there have been an interview? Who should have conducted it? The coach? As Mr Deakin did not address me specifically on the practical execution of this allegation it may be that he considered the written warnings of the kind I have dealt with above were more practicable. That can readily be accepted. 195 Assuming the law did impose an obligation to warn, and there were no practical impediments, would it have made a difference? 196 The plaintiff said that prior to his injuries no one had told him that someone playing in the front row of an open age competition with a physique like his was at risk of sustaining serious spinal injury. If they had, he said, "I would have probably tried to find another position to play in"[18]. 197 Then, asked what would have happened if parental permission had been refused he said: "If mum and dad said no, that was it." He conceded both of his brothers had played rugby league, his elder brother in first grade. He agreed that he would still have played if told there was a risk of serious injury. However he said "serious injury I would have thought broken bones, not hanging in a wheelchair." I took him to say that if warned he might be rendered a tetraplegic he would not have played. He conceded his answer was "tinged with a fair bit of hindsight"[19], and that no position on the field is free from risk of injury. 198 As I have noted, the plaintiff's mother signed a statutory declaration in which she said she gave her consent for the plaintiff to play. The document said: "I, CHRISTINE MARY GREEN of 55 the Parade, NORTH HAVEN in the State of New South Wales do solemnly and sincerely declare as follows: I give my permission for my son, Shane Anthony Green, to play football for Laurieton United Football Club in the 1994 season. And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the "Oaths Act of 1900-1953". Subscribed and declared at Laurieton ) this 18th day of MARCH ) [Chris Green] one thousand nine hundred and ninety four ) before me [witness's signature] )" 199 She said that before she signed that document she was not told anything about the risk of spinal injury to front row players. Nor had she been told anything of risks to slightly built players, especially ones with long necks. She was asked[20]: "Q. And if you had been told any of the matters about which I have just asked you, prior to the commencement of the 1994 season, what would you have done in relation to your permission for Shane to play? A. I wouldn't have given it. 200 She said the plaintiff in 1994 was tall and thin and had a long thin neck. 201 As the person who gave the plaintiff permission to play, she said she would have expected to be told of any particular danger to a player of her son's physique playing in the front row of an open age competition. 202 In cross-examination she denied having been aware rugby league players had suffered catastrophic injuries. She conceded that when giving her consent she knew the plaintiff would be playing against bigger and stronger players. She said her understanding was that her consent had been necessary because of her son's age. When she had previously given consents for school excursions, risks were not explained, she conceded, but said: "You would expect the school if the kids were going to be exposed to any dangers that they would tell you." [21] 203 It was put to Mrs Buttsworth that if she had not given her permission the plaintiff would just have gone to his father and got him to give consent. She said: "He would have probably gone and asked his father." Q. "And his father would have let him play, wouldn't he? A. I don't know." The plaintiff's father was not called. It is possible that had she refused and he had appealed to his father, the plaintiff would have obtained his permission. But in the end I do not consider it necessary for me to make a finding about that. 204 Mr Williams submitted I would treat Mrs Buttsworth's evidence with caution, because of its necessarily hindsight nature. In that context I should say that I found both the plaintiff and his mother impressive, straightforward, witnesses. On factual issues I accept their evidence without hesitation. It is of course another matter whether I accept their evidence on the necessarily hypothetical issue as to what they would have done if adequately warned. This type of evidence has the difficulties discussed by Samuels JA in Ellis v Wallsend Hospital at (1989) 17 NSWLR 553 at 581-582; Rosenberg v Percival (2001) 205 CLR 434 at [104] (per Kirby J) and [214], [221] (per Callinan J); Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 at [137] (per Basten JA). No evidence could have been given by the plaintiff on this issue had the Civil Liability Act applied: s 5D(3)(b). 205 Whilst I am confident the plaintiff's evidence, and his mother's, was honestly given, I do not accept that their position would have been different had they been warned. I am satisfied that in 1994 they each knew injuries, some serious, though not necessarily such as occurred to the plaintiff, could be suffered in rugby league. They were a committed rugby league family. The plaintiff's father and both brothers had played, his elder brother in first grade. I have no doubt the evidence of each of them is, not unreasonably, affected by hindsight. 206 One may reasonably pause to consider why CRL insisted on a parent or guardian's giving a consent for a player under eighteen to play rugby league. Mr Barnhill said it was "the legal advice we received"[22]. But the fact that CRL saw it as necessary to have such a consent does not I think elevate the relationship between the plaintiff and the CRL to one where CRL had an obligation to tell him or his mother of its awareness that players with long, thin necks were not suitable for the front or second row. Further it is to be recalled that Dr Yeo thought that provided he did the neck exercises the plaintiff would not have been ruled out for the front row. I conclude that these allegations are not made out. There was no obligation on CRL to warn. And I am not persuaded that if a warning had been given the plaintiff would have played in a different position. h. Failing to prohibit clubs who fielded teams in the Second Defendant's open/unrestricted age competitions from registering players and allowing them to play when they:- (i) were under the age of 18 and/or (ii) had a physique and/or weight inappropriate for the position; and/or (ii) had a long thin neck. 207 The practicability of taking steps to stop players with the characteristics in (ii) to (iii) from playing, or at least from playing in the front row, have been canvassed. The only issue not canvassed was the actual prohibition on registration of players with those characteristics for open age competitions. No arguments were put to show why reasonable care required CRL to take that or any steps in h. Nor do I consider that they were so required. CRL did what it reasonably could in leaving these matters to coaches and clubs. The allegation is not made out. n. Failing to warn the plaintiff and/or his parents or guardian who had registered to play in the open/unrestricted age reserve grade teams in the second defendant's competition of the risk of spinal injury and methods to guard against it. 208 My reasons in paras [192]-[206] apply equally to this particular. q. Failure to ensure that only appropriately physically suitable players are selected for scrummaging. 209 I took the ten steps set out in [48] as representing the way the plaintiff says CRL would have ensured only appropriately physically suitable players were selected for scrummaging. Thus my reasons given for rejecting them should stand as my reasons for rejecting q. r. Failure to ensure that all players playing in scrums performed and are trained in neck and upper body strengthening exercises . 210 It was Dr Yeo's evidence that strengthening the neck muscles would provide protection to the neck and spinal cord of a player in the scrum. He said [report 27 October 2004]: "In 1994 I and others involved in contact sport had emphasised to the community including the Rugby League authorities, the importance of adequate preparation for contact sport and appropriate choice of players for certain positions on the field. It was my impression that the New South Wales Country Rugby League, headed by Mr Peter Corcoran, Senior Administrator in Coaching were seeking to improve player safety at that time and have continued to emphasise important aspects of player preparation, application of the rules and appropriate treatment for injury both in the city and country areas." 211 He also said: [report 18 September 2007]. "It has been my understanding that Rugby League Administrators have since the early 1990's, continued to promote educational programs which emphasise the importance of adequate preparation and appropriate choice of player for particular positions, having in mind the recognised susceptibility of certain players to neck injury." 212 In his report of 27 October 2004 he said: "On reviewing the patient's history and anatomical appearance, I have formed the opinion that Mr Green has always had a relatively long, thin neck but would have been reasonably chosen for the position of hooker had he appropriate preparation and the building up of the paraspinal cervical neck muscles. It was in fact appropriate, in my opinion, for the patient to play if he had had appropriate training and playing in a position for which he felt comfortable and well prepared." 213 There was evidence that the plaintiff's team did exercises when they trained. However, neither Mr Hoye nor Mr Griffin recalled any neck strengthening exercises. After 1994, Mr Hoye had attended a coach accreditation course. In that course he learnt about these exercises. He told me he recalled nothing like them being done by the plaintiff's team in 1994. The plaintiff could not recall any such exercises. Mr Carr recalled there were exercises for the neck but described them merely as "warm up" ones. I accept the plaintiff's submission that the exercises Dr Yeo had in mind were more than any exercises the plaintiff's team did. Dr Yeo described them[23] as: "Exercises that would be carried out, at the very least, three times a week in the home situation and preferably every day by the, you know, by the committed footballer." 214 I find that prior to 7 May 1994 the plaintiff was not advised to undertake such a regime. 215 But whilst I consider it would have been desirable for him to be so advised, and for the plaintiff to have undertaken the exercises, I do not consider CRL was in breach of its duty in not ensuring all players in scrums performed them or were trained how to do them. The plaintiff was young and active and a very experienced and skilled player. The regime in the brief way Dr Yeo described it suggests it would have required a degree of commitment. The plaintiff did not say he would have done exercises requiring such a degree of commitment. 216 The issue concerning neck exercises was raised in the coaching accreditation programme. For the reasons given I have found CRL was not in breach by not doing more to ensure coaches were appropriately taught and qualified. For the same reasons, I am not persuaded CRL was in breach for not ensuring all players in scrums performed appropriate exercises. In my view CRL acted reasonably in leaving matters such as this to the clubs and their coaches. s. Failing to prohibit the plaintiff from being placed in the front row of the scrum when he was physically not suitable for such position due to his physique and long thin neck. 217 For the reasons I have given in [97]–[109], I consider CRL had the power to insist clubs not allocate positions to players with particular physical characteristics. 218 Whilst CRL knew the plaintiff's age, it can only have learned his bodily characteristics through relying on his coach to make an appropriate assessment. The coach was selected by Laurieton. He was a volunteer. The plaintiff was an experienced and skilled player who had played all his life. He was one of 50,000 New South Wales country players. I consider CRL was not unreasonable in leaving to the coach decisions about where to place the plaintiff, especially given my view that CRL acted reasonably in the way it went about arranging for coaches to be accredited. I do not consider CRL was in breach of duty in failing to bring about the prohibition. w. Permitting the plaintiff to remain and play in the front row of the scrum when he had a long thin neck and/or inappropriate physique and weight for the position, contrary to articles prepared by Peter Corcoran and provided to the second defendant and/or third defendant. 219 This, I think, restates s. in a slightly different, but immaterial, way. I take the reference to the articles to be those drawing attention to the need for care in selecting the front row, and to unsuitability for front row positions of people with certain of the plaintiff's physical characteristics. For the reasons as to s. I do not consider this particular is made out. x. Failure to have regard to warnings provided by P Corcoran and/or Dr J Yeo as to the risk of injury to the plaintiff due to his long thin neck and/or inappropriate physique and weight for the position, and therefore failing to ensure that the plaintiff was not allowed to participate in the front row of the scrum. 220 This is, I consider very similar to w. For the reasons under s. and w. this particular is not made out. y. Failure to ensure that all junior players had clearance to play from the Second Defendant and/or the Second Defendant's authorised officers in accordance with the Second Defendant's memorandum dated 22 March 1990 from John O'Toole. 221 Although this particular was not abandoned at trial, counsel for the plaintiff did not address it. I am not persuaded the factual basis for it is established. Nor am I persuaded, if it were, CRL's not obtaining the relevant clearance had any causative effect or amounted to a breach of duty. z. Failure to prohibit players, including the plaintiff, from playing in the open/unrestricted age competition in the front row when they: i. were under the age of 18 and/or ii. had a physique and/or weight inappropriate for the position iii. had a long thin neck. 222 I take this particular to be substantially covered by s. For the reasons I gave as to s. I consider this particular is not made out. Unaccredited coaches 223 In paragraphs 15, 16, 17 and 18 of the Third Amended Statement of Claim the plaintiff alleges that prior to 1994 CRL knew there were unaccredited coaches, including Mr Slater, involved with teams in CRL's competition. 224 Further, he alleges that CRL knew or ought to have known, that permitting that to occur involved an increased risk of serious injury to players. In permitting it, or not prohibiting it, CRL is said to have exposed the plaintiff to an "unnecessary and/or increased risk of injury". Further, it was alleged that by allowing clubs to appoint such coaches to coach its open age teams, not ensuring all coaches had accreditation, and not telling development officers that all coaches must have level 1 accreditation, CRL was negligent. 225 As I have noted, CRL concedes it knew in 1994 a number of coaches who coached for its constituent clubs were not accredited. But for the reasons I have given I am persuaded that at least up to 1994 CRL did all that could reasonably have been expected of a large, largely voluntary, organisation, to see that the coaches were properly accredited. It did not have the resources to run the courses. It relied on NSWRL to run them. There were clearly difficulties in finding people to be coaches. The courses could not be made available all through the year. They were available before the season started. There was consultation with the clubs about when to hold the courses. The coaches had to pay to attend. They also had to give up a weekend of their time. A large number was accredited. CRL received undertakings from those who were not, that they would do the next course. When Mr Corcoran was asked about unaccredited coaches coaching in country New South Wales he said: "The need for coach education and the recommendation to obtain a level one coaching certificate came in in the 80s. But at that stage until probably into the 90s, the number of course providers of development people and so on who could run the courses was limited at the beginning and gradually got greater, with the result that, if there was any non accreditation it was probably more because of the unavailability of courses or because of the distance or the remoteness in an area even where there might have been a course provider. So that the recommendation was there and the league took every effort to make sure that it was available within reason, but obviously, it wasn't until the number of people that could provide the courses became relatively sufficient to service all areas that the league then started to say, we will countenance making it not a recommendation or voluntary, but we would countenance it being obligatory. That wasn't until 2000." (A truncated form of this quotation is at [150]). 226 I am not persuaded that CRL could or should have done more as at 1994 to see that coaches of teams in the country were adequately trained. 227 I am not persuaded this particular of negligence is made out. Loss of Chance 228 In [22] of the Third Amended Statement of Claim the plaintiff pleads: "Due to the negligence of the Second and/or Third and/or Fourth and/or Fifth Defendant, the plaintiff has lost the opportunity of suffering less injury and/or no injury and in the alternative the plaintiff therefore claims a loss of opportunity in respect of the severity of the injuries he has suffered." 229 In submissions, Mr Deakin identified CRL's not ensuring the plaintiff was advised to do neck exercises, as at the root of this claim. 230 It is to be recalled that the plaintiff registered to play for the 1994 season on, at the earliest, 28 March 1994. I assume for the purpose of this claim that the lost opportunity arose from CRL's not ensuring, through the Laurieton coach, that the plaintiff commenced these exercises in late March or early April 1996. The match was on 7 May 1994. So the plaintiff, at most, would have done the exercises for just under six weeks. There was no evidence about how long the exercises would have needed to be done before providing protection. Dr Yeo's reference to "three times a week – in the home situation – and preferably every day" is rather suggestive of a long-term regime. 231 In Rufo v Hoskings [2002] NSWSC 1041 Studdert J in the context of a medical negligence claim said: "[246] In order to recover damages for the loss of a chance of a better outcome, the plaintiff is required to prove on the balance of probabilities that there did exist a chance that the plaintiff would have had a better outcome had the negligence in treatment not occurred … [247] … If so, then "unless the chance is so low as to be regarded as speculative - say less than one percent" (Malec at 643), the plaintiff is entitled to recover an appropriate award of damages referable to the quantification of the loss of the chance." 232 The Court of Appeal ((2004) 61 NSWLR 678) disagreed with Studdert J's view on the liability issue, but impliedly approved of his formulation of the test. 233 Because there was such a short time between when the plaintiff signed on, and the accident, and given the absence of any evidence as to what if any difference six weeks of exercises would have made, I am not persuaded that any loss of chance, assuming negligence were made out, (which it is not) would be other than speculative. Conclusion 234 In its Amended Defence CRL pleads voluntary assumption of risk. By reason of the views I have reached, it is unnecessary for me to deal with that defence. 235 The plaintiff has not succeeded in establishing any of his allegations of negligence. I propose to enter a verdict for CRL. Orders 1. Verdict and judgment for CRL. 2. Plaintiff to pay CRL's costs. ********** ENDNOTES 1. T179.54 2. T182.6 3. T543-544 4. (1979-80) 146 CLR 40 5. T564 6. Ex "K" 7. T104 8. T116-117 9. T105.18-34 10. Ex "J" 11. Ex "3" 12. See for example Ex "2". 13. Mr Hoye T287.44 14. T297 15. T664 16. T208-9 17. T601 18. T369 19. T476 20. T424.41 21. T436 22. T483 23. T560.10 11/02/2008 - Footnotes deleted; Endnotes added - Paragraph(s) 70, 78, 86, 128, 133, 134, 135, 150, 157, 158, 159, 165, 167, 171, 181, 196, 197, 199, 202, 206, 213. 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.