Supreme Court New South Wales Medium Neutral Citation: McManus v Knights Rugby League Pty Ltd [2017] NSWSC 1101 Hearing dates: 17 August 2017 Date of orders: 21 August 2017 Decision date: 21 August 2017 Jurisdiction: Common Law Before: Harrison J Decision: First defendant's notice of motion filed 24 July 2017 is dismissed with costs. Catchwords: SUBPOENA – "legitimate forensic purpose" – rugby league – allegation of head injury (concussion) sustained in course of employment as a professional rugby league player - whether documents relating to treatment of other players with concussive head injuries relevant to plaintiff's claim against his employer Legislation Cited: Civil Liability Act 2002 Category: Procedural and other rulings Parties: James Alan McManus (Plaintiff) Knights Rugby League Pty Ltd (First Defendant) Newcastle Knights Pty Ltd (Second Defendant) Representation: Counsel: D R Benson (Plaintiff) D Villa (First Defendant) Solicitors: Slater + Gordon Lawyers (Plaintiff) Kemp Strang (First Defendant) File Number(s): 2016/367956 Publication restriction: Nil Judgment 1. HIS HONOUR: By its notice of motion filed on 24 July 2017, Knights Rugby League Pty Ltd seeks an order pursuant to UCPR 33.4 that certain paragraphs of a Schedule to a subpoena to produce issued by Mr McManus be set aside. Since the filing of the application, the parties have agreed that paragraphs 19 and 35 should be set aside. Paragraphs 24, 33 and 34 remain in dispute. Those paragraphs are as follows: "24. All records of head injuries and/or concussive injuries sustained by Richard Fa'aoso and Robbie Rochow including records of the management of any head injuries and concussive injuries. 33. The game day diary, reports (written and/or electronic) of Rick Stone, the game day trainers, the manager of football operations, the chief medical officer and/or other medical officers relating to or touching upon the concussive head injury sustained by Richard Fa'aoso at Brookvale Oval in March 2011. 34. The game day diary, reports (written and/or electronic) of Wayne Bennett, the game day trainers, the manager of football operations, the chief medical officer and/or other medical officers relating to or touching upon the concussive head injury sustained by Robbie Rochow on 21 July 2013 in round 19 game at Penrith Park." 1. Mr McManus opposes these orders. Background 1. The proceedings were commenced by statement of claim filed on 8 December 2016. Mr McManus was at one time a rugby league player employed by Knights Rugby League Pty Ltd to play in the National Rugby League competition. He alleges that by reason of the relationship of employer and employee that existed between Knights Rugby League Pty Ltd and him, the company owed him a duty to exercise reasonable care to prevent him from suffering permanent brain injury as a result of head injuries sustained by him in the course of his employment when playing games of rugby league and while training. 2. Mr McManus commenced his employment with Knights Rugby League Pty Ltd in June 2014. Prior to that he was employed by Newcastle Knights Pty Ltd. That company is currently in liquidation. Mr McManus has neither sought nor has he been given leave to proceed against that company. 3. Mr McManus alleges that during the 2012 rugby league season, but before he commenced his employment with the Knights Rugby League Pty Ltd, he sustained a head injury involving a fracture of his right maxilla. Mr McManus alleges further that in 2013 during a semi-final match against the Canterbury Bulldogs he sustained a significant concussion injury and was directed or permitted to continue playing until the conclusion of the game. He later had vomiting and disorientation which he maintains are physical signs of traumatic brain injury. 4. Following the commencement of his employment with Knights Rugby League Pty Ltd, Mr McManus suffered a significant head injury in February 2015 during the early minutes of a pre-season game. He was taken off and did not play in the following round. In the first game of the 2015 season competition, Mr McManus sustained two heavy concussive injuries but returned to the field of play. 5. On 25 March 2015, at training, Mr McManus sustained a severe head clash with another player causing concussion. He did not play in the next round as a result. However, in the next three games of the competition, Mr McManus sustained further head injuries causing damage to his brain. He thereafter exhibited clinical signs of traumatic brain injury including vomiting and headaches. 6. Mr McManus was referred for specialist neurological assessment. He was found to be suffering from confusion, disorientation, memory impairment and balance disturbance. Despite these findings, Mr McManus was required or permitted to continue playing in a match on 25 July 2015. In that match Mr McManus sustained another blow to his head causing severe concussion requiring admission to hospital. 7. Mr McManus alleges in these circumstances that Knights Rugby League Pty Ltd knew or ought to have known that requiring a player who has sustained a concussive injury or successive head injuries to continue playing would expose him or her to the cumulative effects of further concussive injuries and foreseeable permanent brain damage. 8. Mr McManus alleges that Knights Rugby League Pty Ltd breached its duty to him by continually exposing him to the risk of concussive injury, failing to monitor or assess him properly, relying upon unqualified medical personnel to do so and failing permanently to retire him from the game. He also contends that he should have been warned of the risks of playing when concussed or doing so when recovering from concussion but that he was not. Consideration 1. Knights Rugby League Pty Ltd contends that because Mr McManus makes no allegation either in the statement of claim or by way of particulars that identifies any act of negligence in respect of any player other than Mr McManus, and having regard to what is described as "the multiplicity of specific incidents" in which a Mr Fa'aoso or Mr Rochow may have been involved, including their response to each incident, the medical assessments of each player and his reaction to it, there can be no legitimate forensic purpose in the material that is sought. 2. It is also submitted that the records in question direct attention to a time when the Newcastle Knights football club was conducted by Newcastle Knights Pty Ltd and before Knights Rugby League Pty Ltd had any involvement with the team. Accordingly, such records can have no legitimate forensic purpose with respect to the liability of Mr McManus' most recent employer. 3. Knights Rugby League Pty Ltd relied upon the affidavit of its solicitor Anthony O'Reilly sworn 24 July 2017. That affidavit was read without objection. Mr O'Reilly drew attention to what might be described as the practical difficulties of complying with paragraphs 24, 33 and 34 of the subpoena. Paragraph 34 of his affidavit, referable to paragraph 24 of the subpoena, gives an example of this issue: "34. As the medical officers that [sic] provide services to the First Defendant, and who previously provided services to the Second Defendant, are external contractors, in order to produce the records that relate to the management of any head injuries or concussion of both named players it is necessary to seek to restore email archives in the possession of the First Defendant and search through those records for communications between the medical officers and employees of the First and Second Defendant. At the date of swearing this affidavit, the First Defendant has been able to restore the email archive of one person that [sic] is likely to have had any such communication with the external medical officers. The email archive of another such person, who held the role of head physiotherapist during the period 2011 to 2014 and was likely to have any such communication during this period, has not been located at the date of swearing this affidavit." 1. Mr McManus' response is to say that the records and documents sought will assist in the determination of the issues of both foreseeability and whether or not "the defendants" exercised reasonable care for him, having regard to the relationship of employer and employee. Mr McManus also suggested that issues arising under s 5D of the Civil Liability Act 2002 would be informed by the material in question. 2. Mr McManus' original characterisation of the need for the subpoenaed material was that it was evidence potentially capable of demonstrating a tendency on the part of one or other of the defendants. That approach has since been discarded. It is therefore unnecessary to consider Mr O'Reilly's evidence, given in some detail, which directed attention to the collateral difficulties that his client might have encountered if the material in the disputed paragraphs had to be provided. 3. It is tolerably clear that Mr McManus proposes, if possible, to establish that his position is not unique and that other players have been treated by one or other of the defendants in the way that he contends he was treated and which, on his case, amounted to a breach of duty causing damage. In that respect it is also clear that s 5B of the Civil Liability Act will be central. That section is well known and is in these terms: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 1. It is uncontroversial that Mr McManus cannot establish his case against either defendant merely by demonstrating that there has, or may have, been a breach of duty owed to some other person. However, it will be apparent that the matters falling within s 5B(1)(a) and (b) may well be informed by the material that he seeks to have produced. I appreciate that the relationship between Knights Rugby League Pty Ltd and Newcastle Knights Pty Ltd, and the circumstances that saw the latter company "succeed" the former company, will be significant in these proceedings. That is likely to be so even if Newcastle Knights Pty Ltd is not destined to become a viable defendant in the proceedings. However, to the extent that the two companies had, or may have had, overlapping staff and personnel, there is a reasonable prospect that the respective positions of Mr Fa'aoso and Mr Rochow could be relevant to Mr McManus' case against Knights Rugby League Pty Ltd. 2. I do not accept that there is no legitimate forensic purpose to which the disputed subpoenaed material may be directed. The demonstration of the possible absence or maintenance of a safe system of work for employed rugby league players is one such potential forensic purpose. The foreseeability of risks associated with a failure to conform to a proper and safe system of work may be another. 3. It may be in the final analysis that specific failings with respect to other players, if they are failings, by Knights Rugby League Pty Ltd or its predecessor, will be less significant than evidence from epidemiologists and sports medicine experts concerning what was known in the general sporting community or the rugby league community in particular about the failure properly to treat concussive injuries in the relevant period. In that respect I am informed by Mr McManus that significant literature on this topic was available at the time. That fact does not, however, derogate from the potential significance of specific cases showing how the defendants treated similarly injured players in the past. 4. I consider that the material that is covered by paragraphs 24, 33 and 34 of the Schedule to the subpoena issued by Mr McManus does have a legitimate forensic purpose. In my opinion the notice of motion filed on 24 July 2017 should be dismissed with costs. ********** 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. Decision last updated: 21 August 2017