Staying ahead of concussion liability in sport

May 23, 2022

Litigation related to the impact of concussions suffered in sport is a growing issue in Australia, and one that insurers are watching closely.

Whispers of the potential for class actions here continue to grow in volume, and sporting codes such as Australian rules,  and rugby league have seen claims for their failure to provide a duty of care in protecting players against head injuries.

Medical evidence conclusively linking concussions to the development of brain diseases such as dementia, motor neuron disease and chronic traumatic encephalopthy (CTE) is still developing, but the need for clubs and sporting codes to have stringent procedures and protocols in place around the prevention and management of head injuries is no longer up for debate.

What began as an issue in boxing has evolved into a challenge for most sports, across all levels, from professional to amateur, and for participants of all ages.

Foreign developments

In early 2021, the UK Government launched a select committee to examine the scientific evidence and links between head injury and dementia in sport, which called for “urgent action by the government to address a long-term failure to reduce the risk of brain injuries in sport”.

Also in the UK, class actions are being brought by former players against both rugby league and rugby union governing bodies for failure to adequately protect them from the risks of brain damage caused by concussive and sub-concussive injuries, with a substantial number of them developing early onset dementia in their 40s.

In 2016, the National Football League in the US was sued by 70 former players for failing to take reasonable action to protect them from health risks associated with head injuries. The settlement, which remains in place for 65 years, created a fund to compensate retired players.

Since then, concussion-related lawsuits have been filed in several other US sports including soccer, water polo and hockey.

 

The state of play in Australia

The Australian Medical Association currently maintains that reliable evidence linking sport-related concussion to CTE does not exist, which remains the major obstacle to claims here.

CTE can currently only be diagnosed post-mortem. The Australian Sports Brain Bank recently reported that it found evidence of CTE in 12 out of 21 brains donated by deceased sportspeople.

In the past, some Australian courts have ruled that no liability exists in cases such as a jockey being injured in a fall, as horse racing is deemed a dangerous recreational activity and its participants know about and assume the risk of participating.

In New South Wales, Queensland, Tasmania and Western Australia, participants are barred from recovering damages for negligence when they suffer injuries that could be expected while they are engaging in a dangerous recreational activity, which a NSW case held to include professional sport.

If causation between concussion and brain trauma is scientifically established, claims are more likely to emerge from historical incidents, when clubs and sporting codes did not have the stringent concussion protocols in place that they have today and when players did not have the knowledge that concussions could have long-term health effects.

In this instance, the types of insurance most likely to see claims would include employer’s liability and, in the case of sporting medical staff, medical malpractice and professional indemnity. Such claims may have very long tails and continue to emerge for years.

To date, a few concussion claims in Australia have been settled privately, however there have been publicly-reported payouts under total and permanent disability insurance.

For insurers, as well as sporting organisations, it is definitely a case of watch this space.

 

For more information

To discuss how concussion risks may impact your sporting organisation’s insurance, the Gow-Gates sports team can be contacted via email at info@gowgates.com.au or phone on 02 8267 9999

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