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10 April 2024

Concussion, head trauma and injury in sport - an emerging area of compensation law

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Carroll & O'Dea

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Recent report on head trauma claims. Focus on the barriers to affected individuals seeking compensation.
Australia Litigation, Mediation & Arbitration
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Concussion + sport + compensation is quickly becoming a popular and powerful three-word combination in the current legal and media landscape. An example of this being the announcement by Melbourne Demons AFL player, Angus Brayshaw (age 28), of his premature retirement in February 2024 due to concussion concerns 1.

In September 2023, the Senate Standing Committees on Community Affairs of the Australian Parliament (the Committee) handed down its Report on 'Concussions and repeated head trauma in contact sports' (the Report)2.

Background

As sporting codes around the country, including the AFL/AFLW and NRL/NRLW, and at a community level, continue to grabble with the invidious issue of concussion and the short-, medium- and long-term effects it has on individuals and families, the Report is a timely one.

One of the now known – broadly albeit not uniformly accepted – consequences of ongoing and recurrent head injuries sustained during certain contact sports is the development of various adverse symptomology, primarily culminating in the posthumously diagnosed severe Chronic Traumatic Encephalopathy (CTE). The only way to definitively diagnose CTE is after death during an autopsy of the brain. CTE is a brain disorder which causes the death of nerve cells in the brain, known as degeneration. CTE's most commonly accepted symptoms include memory and thinking problems, confusion, personality changes, substance abuse and/or erratic changes in behaviour include aggression, depression, and suicidal ideation.

In 2023, two separate class actions were instigated in Australia against the AFL and concerned players who sustained concussion-related injuries between 1985 to 2023. The first of these class actions had 60 former players join upon its creation.

Class actions have also been initiated in various international jurisdictions. A series of class actions against the National Football League in the USA commenced in 2011 and resulted in a 2015 settlement in the sum of approximately $1 billion. These complicated legal claims continue to play out 3.

In the UK, a class action is currently underway in the various rugby codes. In this action, players are alleging that 'rugby's governing bodies negligently failed to protect them from concussion and non-concussion injuries that caused various neurological disorders, including early onset dementia, Chronic Traumatic Encephalopathy (CTE), epilepsy, Parkinson's disease and motor neurone disease'4.

The Report

The Australian Senate's Report, which warrants and demands reading, has six main chapters:

  1. Introduction
  2. Data, definitions and diagnostics.
  3. Long-term impacts and ensuring the integrity of research.
  4. Shifting the culture and increasing awareness.
  5. On-field harm minimisation strategies and return to play protocols.
  6. Remediation and support.

Chapter 6 examined various deficiencies raised by inquiry participants, "including the general exclusion of sportspeople from state and territory workers' compensation schemes, the absence of a national injury insurance scheme, inadequate supports provided by sporting organisations, inadequate private insurance, and barriers to legal remedies for concussion and repeated head-trauma claims"5, as well as recommendations.

One of the terms of reference of the Report was "the liability of contact sports associations and clubs for long-term impacts of player concussions and repeated head trauma."

Civil litigation – legal hurdles and realities

This article will focus on the barriers to affected individuals seeking compensation and remedies through the Court system. Other types of remedial payments available include injury payments through collective bargaining agreements, sporting bodies hardship funds, private health insurance, total permanent and disability insurance and income protection insurance available through a superannuation provider or other avenue, Medicare, the National Disability Insurance Scheme, and other government supports.

While legislation varies between each jurisdiction, athletes are generally ineligible to receive workers compensation for injury sustained in the course of playing professional or semi-professional sport, including for the long-term impacts of concussion and repeated head trauma. This is historically due to financial considerations with clubs and governing bodies being unable to afford the associated premiums. Query whether this applies in commercially remunerative sporting codes such as the AFL and NRL.

Paragraph 6.76 of the Report identified that defendants in legal proceedings, primarily sporting bodies, are often able to rely on a number of effective legal defences – available at either common law and/or pursuant to the State Civil Liability Legislation – to avoid or limit paying compensation. These include but are not limited to:

  1. Obvious risk6 — at law there is no duty to warn of 'obvious risk', which is usually defined to be a risk that would have been obvious to a reasonable person in the position of the plaintiff.
  2. Voluntary assumption of risk7 — a defendant may avoid liability by establishing that the plaintiff voluntarily assumed the risk.
  3. Dangerous recreational activity or inherent risk8 — a defendant is not liable for harm suffered by a plaintiff caused by the materialisation of an obvious risk of a dangerous recreational activity.
  4. Exclusion clauses and waivers — defendants can limit their exposure to future claims by incorporating exclusion clauses and waivers into their contracts with their player base 9.
  5. Causation — defendants can also allege that a plaintiff's legally actionable and compensable symptoms are caused by other unrelated factors, such as drug and alcohol consumption.
  6. Time limitations on legal action — generally plaintiffs have a limited timeframe (anywhere from 3 years to approximately 12 years from the date of injury or the date of 'discoverability' of the injury). Courts have a discretion to extend the applicable limitation period 10.
  7. No objective evidence of brain injury — traumatic brain injuries are known as the 'invisible injury' and, in some cases, cannot be detected by medical imaging and can only be diagnosed by way of autopsy after the affected individual's death.

Recommendations going forward

The Report made the following recommendations in the civil litigation/damages context:

  • Recommendation 12: The Committee recommends that professional sporting codes and players associations consider ways for a best practice model to provide ongoing support, financial and otherwise, to current and former players affected by concussions and repeated head trauma.
  • Recommendation 13: The Committee encourages professional sports organisations to ensure their athletes have insurance coverage for head trauma. The committee also encourages state and territory governments to engage with professional sporting organisations to explore how the general exclusion of professional sports people from various state and territory workers' compensation schemes could be removed.
  • At paragraph 6.98, the Report noted that the Committee "considers that a no-fault accident injury insurance scheme may be the solution to providing adequate care and support for people who participate in sport and who suffer concussions, brain trauma, and any resulting long-term neurodegenerative conditions."

Summary

With ongoing 'concussion' class actions and litigation occurring and bound to occur in Australia in the not too distant future, this complex and emotive area is in a state of flux and is of significant and material real life import to affected parties, practitioners, sporting bodies, the government and broader society alike.

At Carroll & O'Dea Lawyers, we are well equipped to appear on behalf of parties in litigation and to advise interested/affected entities, including sporting clubs and government bodies, in respect of its rights and obligations when it comes to the complex issue of concussion law, both from a proactive (i.e. limiting or ensuring an appropriate response to circumstances of concussion) and reactive perspective (once litigation has been commenced or an injured individual is exploring his or her rights in this regard).

Footnotes

1 https://www.abc.net.au/news/2024-02-23/brayshaw-premature-retirement-stark-reminder-whats-at-stake/103498370.

2 https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Headtraumainsport/Report.

3 The Report, Chapter 6.26.

4 The Report, Chapter 6.27.

5 Chapter 6.1.

6 For example: Wrongs Act 1958 (Vic), section 53; Civil Liability Act 2002 (NSW), section 5F – 5I.

7 For example: Wrongs Act 1958 (Vic), section 54; Civil Liability Act 2002 (NSW), section 5J – 5L.

8 For example: Wrongs Act 1958 (Vic), section 55 and 56; Civil Liability Act 2002 (NSW), section 5J – 5L.

9 For example: Civil Liability Act 2002 (NSW), section 5N.

10 See, for example, Zantuck v Richmond Football Club & Ors [2022] VSC 405.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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