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A knock to the head

A knock to the head

By Annette Greenhow

Health Litigation 

Sport-related concussion issues are likely to be deliberated in Australian courts in the next 12 months. Snapshot: Concussion litigation has started in Australia in the sport of rugby league with interlocutory proceedings ordering the release of internal medical records and coaching diaries. Class action litigation against the AFL in the Federal Court is expected to commence in 2018. It will potentially be classified as a high profile public interest case with proceedings published online. The state of scientific understanding around concussion has evolved over many years and the prevailing scientific knowledge at the relevant time will be a key consideration. For decades, concerns about sport-related concussion (SRC) in Australia, particularly in combat, contact and collision sports, have been circulating in medical and scientific communities.1 SRC is not a new phenomenon that suddenly emerged following the highly publicised events in the United States.2 The quest to understand the scientific and medical construct of the harm of SRC has led to the convening of many medical concussion symposia and conferences and has driven the research towards seeking to understand the nature and extent of the harm caused by SRC.3 While the medical and scientific research agendas have slowly traversed the road to discovery and increased understanding around SRC, several parties, including litigation lawyers and insurers, have been paying close attention to matters unfolding in the United States. Class action litigation alleging negligence and fraudulent concealment against the National Football League (NFL) culminated in a record-breaking $1 billion compensation package establishing a medical monitoring fund, a monetary compensation fund and an education fund available to more than 20,000 former NFL players.4 Commentators had earlier questioned whether similar allegations or outcomes could arise in Australian sport or whether there were unique features within the Australian legal and sports systems that offered sufficient insulation to ward off such interventions.5 Several codes in Australia maintained the stance that the NFL case was distinguishable based on a couple of factors – that they had their players’ health and welfare as a paramount concern, and that it was not simply a case of “concussion cousins” by way of comparison with their NFL brethren.6 SRC issues are likely to be deliberated in Australian courts in the next 12 months. Legal proceedings are pending in the Supreme Court of New South Wales and class action litigation is threatened against the AFL.7 The full-blown litigation process will bring into sharp focus the legal and regulatory responsibilities of key non-state actors involved in the regulation of SRC. The litigation landscape Rugby league Several cases have been filed in Australian courts involving the sport of rugby league by professional players.8 The first case was filed by James McManus (McManus) in the Supreme Court of New South Wales claiming damages for negligence against his former employer club, the Newcastle Knights (Knights).9 McManus alleges that concussive injuries were sustained during his professional career and alleges the Knights are to blame for permitting or requiring him to continue to be exposed to traumatic brain injury. He further alleges that the Knights knew the cumulative effect of concussive injuries could cause permanent impairment. The pleadings outline the history of concussive injuries from 2012 to 2015. McManus alleges that during this time he suffered multiple head knocks and concussions, causing him to suffer cognitive and memory impairment, mood swings, headaches, anxiety, depression, lethargy and sleep disturbance. He contends that the Knights were negligent by allowing him to keep playing, encouraging him to continue playing, not keeping him away from the game for longer periods between concussions and having unqualified people making on-field decisions. McManus will need to satisfy the following common law elements of the tort of negligence: that a duty of care was owed by the Knights to McManus and that the scope of the particular duty extends to the kind of activity which led to McManus’ injury that the Knights breached that duty, in that the conduct of the Knights was inconsistent with what a “reasonable person” would do by way of response to the foreseeable risk that McManus’ injuries were caused by the Knights' carelessness. Further, McManus will need to overcome the legislative barriers contained in the Civil Liability Act 2002 (NSW), particularly around the obviousness of the risk and whether professional rugby league qualifies as a “dangerous recreational activity” (DRA).10 In four Australian states the DRA provisions disentitle a plaintiff from succeeding in an action where damages arise following the materialisation of an obvious risk of that DRA.11 The question of whether a professional athlete was engaged in a DRA was recently considered by the NSW Court of Appeal in Goode v Angland.12 The Court upheld an earlier judgment that a professional athlete was engaged in a DRA, providing an example of a “liability-defeating rule” and disqualifying the claimant from seeking damages in negligence resulting from the materialisation of an obvious risk. AFL For several years, calls have been made seeking expressions of interest from former athletes interested in exploring legal options arising from the harm associated with SRC. A website was established in 2016 and efforts have been made to galvanise support from several retired Australian Football League (AFL) players.13 Media reports suggest that class action litigation against the AFL is likely to start later this year. Proponents of the class action litigation against the AFL have been critical of the compensation regime available to retired players, arguing that there needs to be a broader-based workers’ compensation system to adequately compensate and protect former players.14 There currently exists a legislative gap in Australia, with professional athletes generally excluded from workers’ compensation regimes and consequently entirely dependent upon privately negotiated terms under collectively bargained agreements.15 Media reports suggest that the class action proceedings are likely to be filed in the Melbourne Registry of the Federal Court and the procedural mechanisms associated with class action litigation will need to be followed.16 Lawyers representing the proposed plaintiff group have suggested that the “VFL/AFL have known for 40 years about the dangers associated with allowing concussed players to continue to play” – a claim that is likely to involve questions around workplace matters involving players and the AFL.17 Proceedings could fall under the Employment and Industrial Relations National Practice Area, incorporating proceedings “substantially of a character of employment and/or industrial relations”.18 Issues for consideration Discovery and access to information The litigation process enables access to information that would not otherwise be in the public domain. In the McManus case, the plaintiff subpoenaed medical and other records relating to incidents involving former teammates, along with the game-day diaries of former Newcastle coaches. The Knights resisted this request, filing a motion to dismiss the subpoena, alleging the documents served no “legitimate forensic purpose”. The Court disagreed and ordered the release of these documents, ruling that they did serve a legitimate forensic purpose.19 The disclosure of internal information held by the Knights, its coaches and the NRL illustrates the informational function of litigation in raising awareness around SRC, including the internal management and risk classification of the issue. Further, the Federal Court “public interest” policy and the online publication of pleadings on the Federal Court website could apply if the AFL class action qualifies as a “high profile case”, providing simultaneous and timely access to information to interested members of the public.20 The nature of the professional sporting relationship – autonomy and responsibility Establishing a duty of care requires careful consideration of the nature of the relationship between players, teams and governing bodies and whether such relationship creates a legal obligation to consider the safety and interests of players when engaging in the conduct that caused the harm. The relationship in professional team sport is underpinned by contractual arrangements between the player, the club and, in some instances, a tripartite agreement including the sport’s governing body.21 It is well established that a professional sportsperson can be classified as an employee, giving rise to rights and duties based on the employment relationship.22 The existence of this relationship includes a duty to provide a safe system of work. In team sport, this would include an obligation to remove a player from a game or training when suspected of sustaining a concussion.23 The High Court in Agar v Hyde established that a sport’s governing body does not owe a duty to players to amend the rules of the game to make the sport safer in circumstances where it lacked any real or effective control over participants, relying heavily on principles of autonomy and responsibility of voluntary participants.24 However, the Court left open the possibility to later re-examine whether professional athletes as employees within an employer-employee relationship warranted a different conclusion. Should matters proceed to trial, this question is likely to arise when determining whether a cause of action exists with reasonable prospects of success.25 The complexities of concussion and causation A threshold issue for consideration in concussion cases is determining the nature and extent of the medical construction of the harm. Concussion is described as a “traumatic brain injury induced by biomechanical forces to the head or anywhere on the body which transmits an impulsive force to the head”.26 Concussions are common in sports, particularly those sports where bodily contact is an accepted, essential or an inherent aspect of the game. The issue of causation is likely to be heavily contested. Further, the complexities associated with SRC and links to later cognitive and neurological damage ensures that the medical and scientific evidence will be vitally important in establishing the medical construction of the harm, the classification of the risk arising from SRC and issues around causation. The evolving state of medical science The evolution of and technological advances in diagnostic and evaluative tools in recognising SRC have enabled researchers and clinicians to access comprehensive methods for detection, management and prevention of SRC. Research has evolved since early diagnostic tools involved animals to study the effects of SRC and its sequalae. Such technological and diagnostic advances establish the importance of context, particularly around the prevailing scientific knowledge at the time. On this point, it is timely to reflect upon the comments of Lord Justice Denning in Roe v Minister of Health27 where he cautioned: “We must not look at the 1947 accident with 1954 spectacles”. Lord Denning drew attention to the importance of appreciating the prevailing scientific knowledge at the relevant time when evaluating foreseeability of the harm. In addition to the matters discussed above, these considerations are likely to be highly relevant and will be interesting to watch unfold should matters proceed to trial. Annette Greenhow is an assistant professor in the Faculty of Law at Bond University and a legal practitioner. She first published on issues involving sport-related concussion in 2011 and commenced her PhD through Monash University under the supervision of Emeritus Professor Arie Freiberg and Professor Christine Parker. She is an affiliate member of the LIV and a member of the Queensland Law Society. 1. National Health and Medical Research Council, Head and Neck Injuries in Football: Guidelines for Prevention and Management (1995). 2. In Re National Football League Players’ Concussion Injury Litigation, 961 F Supp 2d 708 (ED Pa, 2014); In Re National Football League Players’ Concussion Injury Litigation, 307 FRD 351, 368 (ED Pa, 2015). 3. P McCrory, W Meeuwisse, J Dvorak et al, “Consensus Statement on Concussion in Sport”, 5th International Conference on Concussion in Sport, Berlin, October 2016, (2017) (51) British Journal of Sports Medicine 838-84. 4. Note 2 above, 307 FRD 351, 368 (ED Pa, 2015). 5. Lee Lin Chin, SBS World News Australia, 18 October 2009. A Greenhow, “Concussion Policies of the National Football League: Revising the ‘Sport Administrator’s Charter’ and the Role of the Australian Football League and National Rugby League in Concussion Management” (2011) Art 13 Sports Law eJournal. 6. Greg Prichard, “League and American Football Not Concussion Cousins, says Medic” The Age (online), 17 May 2012, 7. Stuart Honeysett, “Former Hawthorn premiership winner and Brownlow medallist John Platten joins AFL concussion lawsuit”, Nine Wide World of Sports, 28 November 2017 8. See Adrian Proszenko, “Former Parramatta Eels forward Brett Horsnell in landmark Legal case against Club” Sydney Morning Herald, 3 May 2017, 9. James McManus v Knights Rugby League Pty Ltd [2017] NSWSC 1101. See Mazoe Ford and Louise Hall, “Knights should have retired winger McManus following head knocks, court hears” ABC (online), 21 June 2017, 10. Civil Liability Act 2002 (NSW), ss 5L and 5K. 11. Civil Liability Act 2003 (Qld) s19; Civil Liability Act 2002 (Tas) s20 and Civil Liability Act 2002 (WA) s5H. 12. Goode v Angland (2017) NSWCA 311 (7 December 2017), Leeming JA at [180]-[211]. 13. 14. Justin Talent, “It’s a Denial of their Human Rights”, 23 November 2017,'s-a-denial-of-their-human-rights/. 15. Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) Sch 1, cl 17. 16. Michael Legg, “National Football League Players’ Concussion Injury Class Action Settlement” (2015) (10 (1) Australian and New Zealand Sports Law Journal, 47, 64-65. 17. Note 7 above. 18. E&IR Practice Note 2.1 (l) or (m). 19. Note 9 above, at [18] and [21]. 20. Federal Court Rules 2011, r2.32. 21. Standard AFL Playing Contract between the player, the club and the AFL. 22. Buckley v Tutty (1971) 125 CLR 353. 23. Hayden Opie and Graham Smith “The Withering of Individualism: Professional Team Sports and Employment Law” (1992) 15 (2) UNSW Law Journal 313,330. 24. Agar v Hyde (2000) 201 CLR 552, at [82] [88] [90]. 25. Hayden Opie, “The Sport Administrator’s Charter: Agar v Hyde” (2001)(9) Torts Law Journal 131. 26. AIS/AMA Position Statement November 2017, 2. 27. [1954] EWCA Civ 7 (08 April 1954).

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