Concussion, head trauma and injury in sport – an emerging area of compensation law – Personal Injury

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.