Playing hard and copping the knocks is worn as a badge of pride on the footy field, but what happens if you take one hit to the head too many? TGB partner Tim White examines the legal issues and potential for compensation.

The link between concussions sustained through sport and ongoing neurological disorders has grown in recent years. Some of the conditions include memory loss, headaches, epilepsy, personality changes and anger management problems.

In the United States, the National Football League recently reached a settlement deal which could see it pay out as much as $1 billion to former players who suffer from neurocognitive disorders related to their playing careers. So far 1200 claims have been submitted by former players and another 2200 screenings are scheduled to check for “chronic traumatic encephalopathy, or CTE – the term for brain damage that occurs after repeated blunt impact, like head tackles in football.

But is your sporting club responsible for your ongoing health problems once you hang up the boots, or if your career is cut short by injury?

A collection of former AFL footballers, including Hawthorn and South Australian legend John Platten and Essendon premiership player John Barnes, are seeking to test this question in the Federal Court, and are proposing a concussion damages action against the AFL and its clubs. You can read about both players’ stories in The Daily Telegraph here and in the Herald Sun here.

Platten claims he was taken to hospital with concussion 10 times in his career and played the following week. He estimates he was concussed about 36 times in his career and says he struggles with his short-term memory.

Barnes claims he suffered multiple concussions throughout his 202-game career. His doctor, St Vincent’s Hospital head of neurology Professor Mark Cook, says repeated head knocks can cause brain injury and increase the risk of seizures.

But it is not just elite sportspeople who get injured on the field. If you have been injured playing sport, you might be able to claim compensation for your injuries.  A claim arising from a sports injury will generally be a negligence claim, however there are other possible avenues for semi-professional or elite athletes which may include a breach of contract claim.  Generally elite athletes and sports professionals are excluded from workers compensation schemes, so it is important to be aware of what potential avenues you may have to get compensation for an injury.  This is not an exhaustive list of the types of claims for compensation and it will depend on your individual circumstances which a lawyer can advise on when making a decision.

There are three key requirements to establish negligence and the liability of the insurer, competitor or organiser of the sport for an injured person to then receive compensation.

The three requirements are:

1. Does the other party owe you a duty of care?
2. Did the other party breach their duty of care to you?
3. Has the other party’s breach resulted in your injuries or damage?

Duty of Care

There are established categories that the Courts recognise in which one person owes a duty to another, they include doctor and patient, road user to another road user and manufacturer and consumer.

There have been a number of sports law cases which have found that a sporting club owes a duty of care to its employees or to players on opposing teams. But the Court will still generally ask the question as to whether the harm suffered by the injured person, was reasonably foreseeable i.e. if the wrongdoer knows or should have known their acts or omissions were likely to cause harm, the Courts will generally hold that there is a duty of care owed.

In 2000 there was a significant case handed down in the UK.  The British Board of Boxing Control was the authority who oversaw all boxing bouts in the UK.  They prescribed the regulations under which the bouts were allowed to take place.  A boxer received a number of big punches to the head and ultimately, because of inadequate medical treatment and assessment, suffered significant brain damage.  The Court found the BBBC owed a duty of care to all boxers to provide regulations around medical treatment which were adequate for boxers’ safety and also to ensure they were complied with by organisers and promoters.

In June 2017 in Australia, the Coronial Inquest into the 2015 death of a NSW boxer, Davey Brown, found his death was preventable and made a number of recommendations to make the sport safer, including amending the rules, providing better training for referees and ringside doctors and for the provision of medical supplies at every contest which would reduce the risk of brain injury, such as oxygenation instruments.  Davey Brown left behind a young family – it is yet to be seen if a civil case will be brought based on the coroner’s findings.

Breach

The test for this element of negligence is whether the wrongdoer (i.e. club or opposing player) has failed to live up to the standard of care expected by a reasonable person who owes a duty of care.  An example of this is when a doctor fails to give the appropriate, recognised medical treatment which a patient could expect from a reasonably competent doctor.  Although this issue has been considered by Courts for many years, the decision is ultimately factually based, especially when determining the standard of care for people who owe the duty.  Another example may be when sporting competitors play well outside the rules and are therefore not adhering to the standard of care expected of competent, skilled athletes.

The important development seen in recent sports cases is ensuring the defendant had knowledge or should have had knowledge of the standard of care they were failing to meet.  IN the NFL case , former players alleged the league knew of the dangers of repeated head traumas, and did nothing to ensure the players’ safety.  This is the critical aspect of a negligence claim – it is not enough for someone to owe a duty of care and for an accident to happen causing injury. That will not be enough to establish a club or opponent has failed to meet the standard of care expected of them.

Causation 

The final hurdle in establishing a negligence claim is proving the defendant’s breach of their duty of care caused your injuries.  In some cases, that will be easier than others, for example with significant injuries. However there may be an argument if your injury is an aggravation or acceleration of an underlying condition and the Court will then be required to determine what the cause of your condition is.

Once Negligence has been established, you will generally be entitled to compensation for lost income (past and future), reimbursement for medical expenses (past and future) as well as pain and suffering.

Proving negligence isn’t easy, so if you believe you have a claim it is important you seek legal advice and understand your rights and potential entitlements.

Get in Touch!

To discuss anything in this article, or if you believe you may be eligible for compensation and would like help with your compensation claim,  please contact TGB partner Tim White.

Tim and his team advise people right across Australia on their entitlement to compensation, and making claims.

If you need help securing your entitlements, get in touch with Tim on 1800 730 842 or via twhite@tgb.com.au.