SPORTS LAW
The potential liability of sporting clubs and their health professionals for concussion injury DAVID GUTHRIE (PARTNER), SOPHIE PENNINGTON (PARTNER) & ANGUS ROONEY (LAW GRADUATE), HWL EBSWORTH
A
s winter sport returns in earnest after the restrictions of the pandemic last year, there is a continued focus on concussion injury in sport and particularly in the context of its possible relationship with chronic traumatic encephalopathy (CTE). One athlete who has faced the consequences of repeated head knocks is former St Kilda Football Club player Paddy McCartin, who recently joined the Swans. The young player parted ways with St Kilda following a string of concussions but has nonetheless followed a rehabilitation program and has stated ‘the doctors have told me I don’t have any greater risk than any other player on an AFL list when I go out and play footy [in terms of] getting concussion’.1 While his enthusiasm is admirable, his comment might pique the interest of those concerned with the potential liabilities around letting players with such histories return to regular play.2
THE MEDICINE - WHAT ARE THE RISKS OF REPEATED CONCUSSIONS? The adverse consequences of primary head injuries in sport have long been established. A recent increase in research into the repercussions of repetitive head impacts and multiple concussions in athletes3 has created further concern. Contact sports remain ever popular but there is apprehension as to the public health implications of poor concussion understanding and management. Although there remains much to be learned about the risks associated with cumulative damage to the brain, the research is clear that neurological damage will accrue with consistent trauma.4 Regardless of the severity of the concussions, a link has been established between repeat injury and an increased risk of neurodegenerative
6 THE BULLETIN June 2021
conditions such as Parkinson’s disease, Alzheimer’s and CTE.5 CTE, a disease which can only be diagnosed postmortem, is also only known to be caused by repetitive blows to the head sustained over a period of time.6 The disease may manifest through a myriad of conditions including a decline of memory and cognition, depression, suicidal behaviour, poor impulse control and aggression.7 The most at risk group of contracting the disease are, unsurprisingly, athletes who may be exposed to hundreds if not thousands of strikes to the head throughout their career. Although CTE is traditionally associated with ‘punch-drunk’ boxers, it has recently been linked to members of the American National Football League (NFL), and the first confirmed case of CTE in an Australian Rules footballer has now come to light.8 At 64, Graham ‘Polly’ Farmer was diagnosed with Alzheimer’s, with elements of depression or mood swings, explosivity, loss of attention and concentration, short-term memory loss and headaches. Following his death 20 years later, examination of Farmer’s brain confirmed that he had suffered from CTE. Now, after the recent diagnoses of two former NRL players,9 a condition that was previously viewed as a removed issue has become undeniably present within the Australian sporting profession.
THE LAW - THE DUTY OF CARE OF SPORTING CLUBS AND THEIR HEALTH PROFESSIONALS The cost of injury within sport is often gauged by lost championships or trade value without any thought to potential legal ramifications. While athletes rarely bring claims for damages resulting from
their sporting pursuits, the High Court has acknowledged that the law of negligence continues to apply, irrespective of the dangerous nature of many sports.10 Establishing a duty of care is the foundation of any action in negligence. A positive duty of care could manifest itself in several ways from an athlete’s misfortune. A ‘sports supervisor’ such as a trainer, manager or medical advisor11 may be held liable for their conduct or treatment. An organisation or representative body exercising significant control over a game12 may be held liable for poor oversight or introduction of negligent policies. Clubs may also be held vicariously liable for the acts or omissions of an employee or player should a wrongful or reckless act be encouraged, or otherwise within the scope of their employment.13 Health professionals working for sporting clubs may also be potentially liable. For example, the law imposes a duty on medical practitioners to exercise reasonable care and skill in the provision of professional advice and treatment. This duty is comprehensive and covers all ways in which doctors may be called upon to apply their expertise and judgement in the management of their patients.14 The duty encompasses liability stemming directly from acts or omissions of a practitioner, including any failure to warn.15 It is not hard to posit that the scope of the duty encompasses a requirement to take reasonable care to advise a patient, who has suffered an injury, of risks and behaviours which may a contribute in a catastrophic manner to a worsening of that injury. Practitioners are required at law to undertake tasks to the standard of the ordinary skilled practitioner exercising or professing to have that special skill.16 Negligence therefore cannot be established
