Part I: Statistics and the Law
Statistics and judicial notice
In Multi-Sports Holdings, the Court considered whether the operator of an indoor cricket facility had been negligent in failing to warn a player of the risk of injury, or failing to provide protective equipment. In concluding that there had been negligence, McHugh J (in a dissenting judgment) referred to statistics on injuries in sport, published by the Australian Bureau of Statistics and other bodies. His Honour considered that such facts fell into the class of “legislative” facts that a court may judicially notice and use, at least for the purpose of defining the scope or validity of a principle or rule of law2.
Callinan J took a narrower view of the doctrine of judicial notice, concluding that resort to the statistics was not only unhelpful, but impermissible3. His Honour appeared to accept that resort to more notorious statistics, such as the Consumer Price Index, may be permissible4.
Life expectancy tables
In Golden Eagle International Trading Pty Ltd v Zhang,5 the High Court agreed that, in determining life expectancy, tables that projected future life expectancy on the basis of current trends, were to be preferred to those based on historical information. The difference between the two was said to be some 5.6 years — a particularly significant increase for a judge approaching the age of statutory senility.
Long odds for special leave
Each of the above appeals resulted from the grant of special leave by the High Court. A quick look at the number of unsuccessful applications shows that a grant of leave is truly special. Once through this threshold, however, an appellant has an even money chance of being vindicated in the High Court, as the following table shows:
Civil special leave applications granted |
50 |
Civil special leave applications refused |
627 |
Odds of successful application |
Twelve to one6 |
Comparable odd |
Tony Abbott succeeding John Howard as Liberal leader7
Hugh Jackman becoming the next James Bond8 |
Civil appeals allowed |
52 |
Civil appeals refused |
46 |
Odds of successful appeal |
Even money9 |
Comparable odds |
Maxine McKew winning the seat of Bennelong10 |
Short odds for mediation
The Supreme Court does not (to my knowledge) publish similar statistics on the number of successful and unsuccessful appeals. However, it does publish statistics on alternative dispute resolution orders, which reveal a strong preference for mediation over case appraisal, and a high success rate for mediation. Some of these figures are tabled below:
Consent orders referring to case appraisal |
0 |
Non-consent orders referring to case appraisal |
211 |
Consent orders referring to mediation |
126 |
Non-consent orders referring to mediation |
8612 |
Mediations certified as settled |
239 |
Mediations certified as not settled |
133 |
Odds of successful mediation |
Two to one on13 |
Comparable odds |
ALP wining the next Federal election14 |
Part II: Statistics and Sport
On 9 September 2007, Jamaican sprinter Asafa Powell broke the world record for the 100 metres. Powell’s time of 9.74 seconds was 0.03 seconds lower than his previous world record. It had been almost a decade since the world mark had been lowered by so substantial a margin. Upon hearing the news, I (like most Australians) wondered whether this kid from Kingston was as good as the boy from Bowral.
Attempts to compare achievements across different sports and different times face a number of difficulties. One method (the “daylight” method) ranks the top eight or ten achievers in each sport, according to a leading statistic for that sport. It then compares the statistical difference between the first and second ranked athlete, and the second and lowest ranked athlete. If the first ranked athlete is truly ahead of the field, then there should be daylight between him and everybody else.
Cricket
The ten highest test cricket batting averages of all-time are tabled below:15
Player |
Span |
Ave |
DG Bradman (Aus) |
1928-1948 |
99.94 |
RG Pollock (SA) |
1963-1970 |
60.97 |
GA Headley (WI) |
1930-1954 |
60.83 |
H Sutcliffe (Eng) |
1924-1935 |
60.73 |
RT Ponting (Aus) |
1995-2007 |
59.29 |
E Paynter (Eng) |
1931-1939 |
59.23 |
KF Barrington (Eng) |
1955-1968 |
58.67 |
ED Weeks (WI) |
1948-1958 |
58.61 |
WR Hammond (Eng) |
1927-1947 |
58.45 |
GS Sobers WI) |
1954-1974 |
57.78 |
The above table shows a cluster of averages approaching 60. It is almost an insuperable barrier for any mere mortal. However, Bradman’s average of 99.94 runs per innings is 38.97 runs better than Pollock’s, whose average is only 3.19 runs better than Sobers’. In statistical terms, the distance between first and second is 12 times the distance between second and tenth. It is clearly a case of Bradman first, daylight second, the rest of the field third.
Sprinting
When one looks at other sports, the position is quite different. The differences between the achievements of top athletes are miniscule, and statistics cluster together. For example, the fastest 100 metre runners of all-time are tabled below:16
Time |
Athlete |
Nationality |
Date |
9.95 |
Jim Hines |
United States |
October 14, 1968 |
9.93 |
Calvin Smith |
United States |
July 3, 1983 |
9.86 |
Carl Lewis |
United States |
August 25, 1991 |
9.85 |
Leroy Burrell |
United States |
July 6, 1994 |
9.84 |
Donovan Bailey |
Canada |
July 27, 1996 |
9.79 |
Maurice Green |
United States |
June 16, 1999 |
9.77 |
Justin Gatlin |
United States |
May 12, 2006 |
9.74 |
Asafa Powell |
Jamaica |
September 9, 2007 |
7.61 |
Don Bradman |
|
|
Powell’s world record is 0.03 seconds faster than Gatlin’s time, whose time was 0.18 seconds faster than that of Hines. This means that (ignoring the final entry) the distance between first and second is only one-sixth the distance between second and last.17 Were Powell as far ahead of the field as Bradman, the gap between first and second would be 2.16 seconds (twelve times 0.18 seconds). In other words, if Powell were as good as Bradman, he would have run the 100 metres in a time of 7.61 seconds.
High-jump
Although breaking the eight-second barrier is quite an achievement for a person of diminutive stature, it is perhaps not as impressive as the Don’s high-jumping record of almost 4 metres, as is evident below:18
Record |
Athlete |
Nationality |
Date |
2.32m |
Dwight Stones |
United States |
04 August, 1976 |
2.34m |
Vladimir Jashtshenko |
Soviet Union |
16 June, 1978 |
2.35m |
Jacek Wszola |
Poland |
25 May, 1980 |
2.35m |
Dietmar Mögenburg |
West Germany |
26 May, 1980 |
2.36m |
Gerd Wessig |
East Germany |
01 August, 1980 |
2.39m |
Zhu Jianhua |
China |
10 June, 1984 |
2.40m |
Rudolf Povarnitsyn |
Soviet Union |
11 August, 1985 |
2.41m |
Igor Paklin |
Soviet Union |
04 September, 1985 |
2.42m |
Patrik Sjöberg |
Sweden |
30 June, 1987 |
2.45m |
Javier Sotomayor |
Cuba |
27 July, 1993 |
3.62m19 |
Don Bradman |
Australia |
|
Basketball
Another popular candidate for the greatest sportsman of all time is Michael Jordan. Jordan averaged 31.5 points a game during his illustrious career. However, had he been as good as Bradman, his career average would have been 93.7 points:20
Player |
Avg |
Gms |
Points |
Yrs |
Dominique Wilkins |
24.8 |
1074 |
26,668 |
15 |
Oscar Robertson |
25.7 |
1040 |
26,710 |
14 |
Karl Malone |
26.0 |
1192 |
31,041 |
15 |
George Gervin |
26.2 |
791 |
20,708 |
10 |
Bob Pettit |
26.4 |
792 |
20,880 |
11 |
Jerry West |
27.0 |
932 |
25,192 |
14 |
Elgin Baylor |
27.4 |
846 |
23,149 |
14 |
Shaquille O’Neal |
27.5 |
534 |
14,687 |
8 |
Wilt Chamberlain |
30.1 |
1045 |
31,419 |
14 |
Michael Jordan |
31.5 |
930 |
29,277 |
13 |
Donald Bradman 21 |
93.7 |
|
|
|
Marathon running
Finally, as impressive as the above stats appear, they pale into insignificance compared to Bradman’s marathon achievement in running 42.195 km in 36 minutes:22
Time |
Runner |
Nationality |
Date |
2:12:11 |
Abebe Bikila |
Ethiopia |
October 21, 1964 |
2:12:00 |
Morio Shigematsu |
Japan |
June 12, 1965 |
2:08:33 |
Derek Clayton |
Australia |
May 3, 1969 |
2:08:18 |
Robert de Castella |
Australia |
December 6, 1981 |
2:08:05 |
Steve Jones |
Great Britain |
October 21, 1984 |
2:07:12 |
Carlos Lopes |
Portugal |
April 20, 1985 |
2:06:50 |
Belayneh Dinsamo |
Ethiopia |
April 17, 1988 |
2:06:05 |
Ronaldo da Costa |
Brazil |
September 20, 1998 |
2:05:38 |
Khalid Khannouchi |
United States |
April 14, 2002 |
2:04:55 |
Paul Tergat |
Kenya |
September 28, 2003 |
36:5023 |
Donald Bradman |
Australia |
|
Two competing hypotheses, to be derived from the above use of statistics, are that:
(a) Bradman was a cut above every other sportsman that has ever lived;
(b) statistics are to be treated with extreme caution, since 63.7% of them are made up on the spot.
Finally, in order to understand the relevance of Bradman to the law, it is worthwhile recalling that, as stated in Cricket and the Law:
“… it is time to take law and popular culture seriously, and there is nothing more serious than cricket.”.24
Peter Franco
Footnotes
- (2002) 208 CLR 460 at [169].
- Ibid at 477-478. It would appear that his Honour considered that the facts were admissible at common law; although his Honour did subsequently refer to s. 72 of the Evidence Act 1906 (WA): at 481.
- At 513-514.
- At 514. See also Aqua Max Pty Ltd v M T Associates Pty Ltd (unreported, VSC, Gillard J, 16 June 1998).
- (2007) 234 ALR 131 at [4], [70]. See also the Court of Appeal decision: [2006] NSWCA 25 at [49] — [55].
- Tables 12 and 20 to High Court annual report for 2005-2006.
- According to www.sportsbet.com.au as at 24 September 2007.
- According to www.paddypower.com as at 24 September 2007.
- Table 28 to High Court annual report for 2005-2006.
- According to www.sportsbet.com.au as at 24 September 2007.
- Table 30 to Supreme Court annual report for 2005-2006.
- Table 32 to Supreme Court annual report for 2005-2006.
- Table 33 to Supreme Court annual report for 2005-2006.
- According to www.sportsbet.com.au as at 24 September 2007.
- Minimum qualification (20 matches). Source: http://stats.cricinfo.com/ci/content/records/282910.html.
- http://en.wikipedia.org/wiki/World_Record_progression_100_m_men.
- Only eight men have held the world record since the introduction of electronic timing (ignoring those who were subsequently disqualified). Hence, the table only lists the top eight.
- http://en.wikipedia.org/wiki/World_record_progression_high_jump_men.
- Sotomayor jumped three cm higher than Sjoberg, who jumped 10 cm higher than Stones. Had Bradman been a jumper, he would have been 1.2 metres ahead of the rest of the pack, a height of 3.62 metres.
- http://basketball.com/nba/records/NBAcarLdrsScore.shtml.
- Jordan averaged 1.4 points more than Chamberlain, who averaged 5.3 points more than Wilkins. Had Bradman played basketball, his average would have been 63.6 points higher than Chamberlain, or 93.7.
- http://en.wikipedia.org/wiki/Marathon_world_best_progression.
- Tergat ran 43 seconds faster than Khannouchi, who ran 409 seconds faster than Bikila. Had the Don taken to distance running, he would have run 4,908 seconds (81 minutes and 48 seconds) faster than the rest of field, an impressive time of 36 minutes and 50 seconds.
- Cricket and the Law: The Man in White is Always Right (Studies in Law, Society and Popular Culture, 1), David Fraser, 2005, Routledge, at p. 16; citing Steve Redhead.