MEEK v NEW ZEALAND RUGBY UNION INCORPORATED [2022] NZHC 2591

MEEK v NEW ZEALAND RUGBY UNION INCORPORATED [2022] NZHC 2591 [7 October 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-211[2022] NZHC 2591BETWEEN STUART JAMES MEEKPlaintiffAND NEW ZEALAND RUGBY UNIONINCORPORATEDDefendantHearing: 21 September 2022Appearances: S J Meek in personJ Shackleton and K S Ginders for the DefendantJudgment: 7 October 2022JUDGMENT OF COOKE J(Striking out plaintiff's claim)[1] By application dated 4 July 2022 the defendant, New Zealand Rugby Union(NZRU), applies to strike out the plaintiff's claim on the basis it discloses noreasonably arguable cause of action. The application is supported by an affidavit ofGerard Peter van Tilborg, a former director of NZRU and Chair of the New ZealandRugby Foundation Incorporated (the Foundation) and Dr Kenneth Quarrie, the ChiefScientist for the NZRU. The application is opposed by the plaintiff who appears inperson in these proceedings. He has filed a document responding to Mr van Tilborg'saffidavit.The allegations[2] In outlining Mr Meek's allegations I consider not only what he has said in hisstatement of claim dated 24 March 2022, but also in his response to Mr van Tilborg,and all matters he has advanced in his various written and oral submissions.[3] By way of summary Mr Meek alleges that when he was playing rugby as aschoolboy game in the 1980s that the scrum collapsed on top of him causing him tobe knocked out. He says he has very little memory of the rest of the day although heremembers two people carrying him from the field. The next day he woke up in bedbut could not walk. His mother arranged for the doctor to come around to see him,and that the doctor gave him an injection and some pain medication advising that thefeeling in his legs should come back.[4] He says that the feeling in his legs did come back and he could walk again buthe was in a lot of pain. He says that no report was made to ACC. He also says thathis medical records have been lost in the Christchurch earthquakes. Mr Meek says hehas suffered from his injuries ever since that time. He says that:It is very hard to have lived in pain all my life and never been able to workbecause of it even though I have tried. I get no treatment or support fromanyone and [this] has [affected] my mental health to the point where I havetried suicide more than once.[5] Mr Meek says that in around 2005 he was accepted by the Foundation as aVery Injured Player (a "VIP"). The Foundation is a charitable organisation thatprovides assistance to injured players. Mr Meek says that the Foundation wasestablished by the NZRU. He says he initially received assistance from the Foundationand he was treated like other VIPs. But he says for the last four years the Foundationhas refused to help him, and that no one has sat down to talk through his issues withhim, and he has been declined assistance and support. For example he says he has notbeen invited to attend test matches along with other VIPs.[6] Mr Meek alleges that the NZRU failed in its duty of care in the 1980s to ensurethat he received the right level of care and treatment, that he has missed out on ACClump sum payments because of the lack of support, that NZRU's conduct amounts toill treatment and neglect, that he has suffered a great deal and forced to live on a benefitwith little hope, and that the NZRU has a duty of care now to look after him as aninjured player.[7] Mr Meek seeks $5 million in damages, and a weekly wage of $800 in orderthat he can live with dignity.Strike out[8] Under r 15.1(1)(a) of the High Court Rules 2016 a proceeding may be struckout if it discloses no reasonably arguable cause of action. The approach applied to anapplication to strike out a statement of claim involves the following:1(a) The pleaded allegations, whether or not admitted, are assumed to betrue, although this does not extend to pleaded allegations that areentirely speculative and without foundation.(b) The cause of action must be clearly untenable. It is inappropriate tostrike out a claim summarily unless the Court can be certain that itcannot succeed.(c) The jurisdiction is to be exercised sparingly, and only in clear cases.This reflects the Court's reluctance to terminate a claim without a trial.(d) The jurisdiction is not excluded by the need to decide difficult questionsof law, requiring extensive argument. The Court should be particularlyslow to strike out a claim in any developing area of the law.(e) Where a defect can be cured by amending the pleading the Court willlikely permit amendment rather than striking the claim out.Assessment[9] Having carefully considered the written and oral submissions on behalf of theNZRU and Mr Meek, I am satisfied that this is a case where Mr Meek's claim oughtto be struck out.[10] The origin of Mr Meek's claims is an alleged serious injury that he sufferedwhen playing schoolboy rugby in the 1980s. A difficulty in making an assessmentabout these allegations is the lack of information, including medical information,1 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [31]–[33]; Attorney-Generalv Prince [1998] 1 NZLR 262 at 267; Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 at 232and 328 (HC).about the nature of the injury he suffered at the time, although Mr Meek says that therelevant records have been lost. Mr van Tilborg makes the point that no informationhas been provided by Mr Meek to support his account of the injury. I neverthelessproceed on the basis that Mr Meek would be able to establish at a trial that he wasseriously injured in some way at the time, and that this has adversely affected his life,with the adverse effects continuing to this day.[11] There are two insurmountable obstacles to Mr Meek's claim for damages basedon this injury, however.ACC bar[12] The first is that any claim in civil proceedings against the NZRU is statutebarred. Section 317 of the Accident Compensation Act 2001 provides:317 Proceedings for personal injury(1) No person may bring proceedings independently of this Act, whetherunder any rule of law or any enactment, in any court in New Zealand,for damages arising directly or indirectly out of—(a) personal injury covered by this Act; or(b) personal injury covered by the former Acts.(7) Nothing in this section is affected by—(a) the failure or refusal of any person to lodge a claim forpersonal injury of the kinds described in subsection (1); or(b) any purported denial or surrender by any person of any rightsrelating to personal injury of the kinds described in subsection(1); or(c) the fact that a person who has suffered personal injury of thekinds described in subsection (1) is not entitled to anyentitlement under this Act.[13] There were equivalent provisions applicable in the legislation in existence atthe time of the alleged injury — including s 27 of the Accident Compensation Act1982. A claimant who at one point had cover for a personal injury loses the right tosue for damages if a claim was not made at the appropriate time.2 Mr Meek does notsuggest that the injuries that he suffered were not covered by ACC. Indeed the essenceof his allegation is that the NZRU had a duty to ensure that a claim for ACC waslodged, and that it breached its duty by not doing so. As Mr Shackleton submitted thefact that no ACC claim was lodged does not prevent provisions such as s 317 havingeffect in their terms. Section 317(7)(a) confirms that a failure to lodge a claim doesnot affect the operation of the section.3 For these reasons I accept that Mr Meek'sclaim for compensatory damages arising from his injury is statute barred.[14] These sections do not protect a claim for exemplary damages. Such claims arepreserved by s 319 of the present Act.4 But I do not accept that Mr Meek has areasonably arguable claim for exemplary damages. There are no pleaded allegationsthat could give rise to such a claim, and I do not accept that such a claim could existthat is capable of being identified in an amended pleading.5Limitation[15] The second point is that even if a claim could survive the AccidentCompensation Act provisions it is statute barred by the Limitation Act 2010. By s 62of that Act longstop limitation periods were inserted into the Limitation Act 1950. Inparticular s 23B of the Limitation Act 1950 provides:23B Longstop period of limitation(1) No action to which this section applies may be brought after the lastto end of the following periods:(a) 5 years ending on the close of 31 December 2015:(b) 15 years after the date of the act or omission on which theaction is based.[16] Mr Meek's claims are in tort, although he does advance a claim in contract thatI will consider below. Section 23B requires the claim to be commenced by2 W and W v Attorney-General [2010] NZCA 139 at [161].3 See Austin v Roche Products (New Zealand) Ltd [2021] NZSC 30, [2021] 1 NZLR 294 at [19].4 See also Donselaar v Donselaar [1982] 1 NZLR 97 (CA).5 See Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 at [84]–[90].31 December 2015, or 15 years after the omission which is alleged to have occurredin relation to the NZRU's failures in the 1980s. At one point Mr Meek said that itoccurred shortly after the 1987 World Cup. This claim was commenced this year, andis accordingly well outside the longstop limitation period.[17] I do not need to go on to address the NZRU's other points about the claimsmade against it arising from the injury. But I note that there is no recognised duty ofcare on a sports organising body to ensure that a person lodges an ACC claim whenan accident arises in the course of engaging in the sport administered by that body. Itis highly unlikely that such a duty of care would be held to exist, not only because ofthe existence of the ACC bar, but also given the indirect and indeterminate nature ofthe relationship. In the present case, for example, the NZRU would not even haveknown of this injury at the time. Mr Meek confirmed that the relevant coach of histeam was one of his teachers from his school. The more obvious persons who mighthave taken steps to see that such a claim was lodged would have been Mr Meek'sdoctor, and even his mother. Dr Quarrie says in his affidavit that the responsibilitiesfor notifying injuries to ACC rest with the player and their medical adviser. It isdifficult to see how a duty of care could exist on the NZRU.[18] Mr Meek's response to these points is to say that his allegations were not basedon his injury in the 1980s. Rather he contended that his allegations focused on morerecent conduct by the NZRU, and in particular its conduct in not recognising hisseriously adverse situation arising from the injury, and in failing to give him thesupport, and give him the respect that he is due. In his written submissions Mr Meeksays that his claim " is not about the [injury] I suffered while playing schoolboyrugby and I want to make that very clear, it is about the way I have been treated byrugby".[19] Whilst I understand Mr Meek's argument, and respond to it in greater detailbelow, the fact that he is barred from pursuing any claim for damages for compensationarising out of his injury for the above reasons likely prevents any claim for damagescompensating him for a failure to recognise the harm caused by that injury at latertimes. He is not able to sue for any compensation arising out of his injuries, and thiswould cover any compensation from the alleged failure to recognise the injuries. ButI nevertheless proceed to consider the allegations of more recent actions or inactionsby NZRU.Claim in contract[20] In advancing the argument that his claim was based on the more recent failureof the NZRU to recognise his position Mr Meek contends that he has a claim incontract. In particular Mr Meek contends that by accepting him in 2005 as a VIP "this formed a contract and when dealing with [vulnerable people] with physicaldisabilities or mental or both they deserve to be treated with dignity and respect". Inote Mr van Tilborg's evidence that the Foundation has been providing support toMr Meek and that opportunities are available to Mr Meek to apply for this supportfrom the Foundation. But again I proceed on the assumption that Mr Meek canestablish at trial that he has been provided with no meaningful support in recent times.[21] For two reasons I accept Mr Shackleton's argument that the allegations haveno reasonable prospect of a successful claim for damages.[22] The first point is that the Foundation is an independently established charitablebody. It is an incorporated society that is a separate legal entity from the NZRU. Iaccept the evidence of Mr van Tilborg in this respect. The NZRU provides somefunding, but the Foundation manages itself and operates independently. There wasone representative of the NZRU on the Foundation board, but the NZRU does not haveany other involvement with the Foundation's decision-making. There is nothing inMr Meek's statement of claim or other material that suggests Mr van Tilborg'sevidence is inaccurate. The short point is that the NZRU cannot be legally liable forthe Foundation's acts or omissions.[23] Secondly, the fact that the Foundation accepted Mr Meek as a VIP does notcreate a contract between Mr Meek and the Foundation. There is no offer andacceptance, consideration, or intention to create binding legal relations. These arenecessary elements for a claim in contract. They are not pleaded, and there is nothingin the material relied on by Mr Meek that suggests that such allegations could be madein an amended pleading. More generally, a charitable organisation has no legalobligation to give any particular claimant for charitable benefits any particular benefit.It might be possible for a beneficiary of a charity to obtain a contractual entitlement,or even an entitlement arising from an estoppel when the elements for such claims areestablished. But no such allegations are advanced, or otherwise identified here.[24] For these reasons any claim by Mr Meek against the NZRU in contract cannotbe sustained. The claim has no reasonable prospects of success. Neither could anysuch claim be advanced in an amended pleading.Tort[25] I also accept Mr Shackleton's arguments that there can be no claim in tort inrelation to the NZRU's alleged failure to recognise Mr Meek's position and treat himwith greater dignity or provide him with support. No such duty of care is recognisedat law, and neither could it reasonably be argued that such a duty could be held to exist.That is particularly so given the existence of the Accident Compensation regime, andthe other points made at [17] above.[26] There are then two final potential claims referred to in Mr Meek's statement ofclaim, and his submissions to the Court.Discrimination[27] The first is that NZRU has engaged in discriminatory conduct towards him.The essence of this allegation is that Mr Meek has been treated differently from otherVIPs. This is not accepted by either NZRU or the Foundation, but I proceed on thebasis that Mr Meek could establish at trial that he is not being treated the same way asother VIPs.[28] There are two central problems with these allegations. The first is that it is theFoundation and not the NZRU that has dealt with the VIPs. There is no conduct bythe NZRU itself that can be alleged to involve differential treatment. Secondly anyallegation of discriminatory conduct would need to raise a prohibited ground ofdiscrimination as identified by s 19 of the New Zealand Bill of Rights Act 1990 ands 21 of the Human Rights Act 1993. No such prohibited ground of discrimination ispleaded or otherwise identified, and none arises from Mr Meek's submissions. TheHuman Rights Act also then sets out a specific regime for advancing claims in relationto a prohibited ground of discrimination. There is no basis to allow a separate claimin tort in the High Court.[29] For these reasons there is no reasonable arguable claim against NZRU arisingfrom the alleged discrimination.Defamation[30] Mr Meek's final claim is in defamation. The essence of this claim appears tobe that the NZRU's failure to accept Mr Meek's claims effectively involved itcontending that he is a liar.[31] I accept Mr Shackleton's submission that the requirements for a claim indefamation could not arise in the circumstances here. To establish such a claim itwould need to be shown that NZRU made a defamatory and untrue statement aboutMr Meek that was published by the NZRU. No such statements are identified, and itis not alleged that such statements have been published. Mr Meek says that by failingto accept what he has contended the NZRU have effectively said what he is contendingis untrue, and therefore that he is a liar. Even if I were to accept that this logicallyfollows (which I do not) they do not establish the requirements for the tort ofdefamation. The NZRU have not published any statement saying that Mr Meek is aliar.[32] For these reasons Mr Meek's remaining two alleged causes of action are notreasonable arguable.Conclusion[33] For the above reasons I grant the defendant's application to strike out theplaintiff's statement of claim on the basis that it discloses no reasonably arguable causeof action.[34] In doing so it is appropriate to make clear, as I hope I did at the hearing, thatthis conclusion should not be taken to involve any criticism of Mr Meek, or to indicateany lack of sympathy or respect for him. It is plain that he has struggles with his life,and I acknowledge the difficulties that he faces.[35] In the end, however, what he seeks to advance in this case is a claim that theNZRU should accept some moral responsibility for his situation, and that it shouldtreat him with more respect. But this is a court of law and it is the Court's function toidentify legal claims and dispassionately rule on them. In the present case there is noarguable legal responsibility on the NZRU for Mr Meek's situation. There is no legalbasis for Mr Meek to be awarded damages. One of the main reasons for this is theexistence of the ACC regime, but there are other reasons why Mr Meek's legal claimscannot succeed. For that reason the statement of claim is struck out.[36] I note that the formal application sought an order for costs. I hope any claimfor costs may not be required. But memoranda may be filed within 20 working daysif there is any issue as to costs.Cooke JSolicitors:Simpson Grierson, Wellington for the Defendant