Many sporting fans complying with current pandemic restrictions will be acutely aware of the lack of televised sporting events to occupy their evenings. A silver lining of the enforced layoff is the opportunity for many star athletes to focus on rehabilitation. One such athlete is former St Kilda Football Club prospect Paddy McCartin, who is looking to regain fitness in the hope of a return to the game.The young player parted ways with the team 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 accumulative 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 conditions such as Parkinson’s disease, Alzheimer’s and Chronic Traumatic Encephalopathy (CTE).5 CTE, a disease which can only be diagnosed post-mortem, 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 on 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 scarcely 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 simply by virtue of a practitioner failing to attain the highest professional standards of their peers.17 However, wilful ignorance of substantially informed opinions in a relevant field will not provide an excuse for employing out of date practices.18 The Court will examine the state of medical knowledge at the time of any alleged failure and consider whether accepted standards have been met – practitioners are only expected to possess the level of knowledge of a reasonably competent practitioner in his or her field. So, as the knowledge of the risks of repeated head strikes increases, so too do the risks for health practitioners who fail to take warn players of those risks, or who let players with relevant vulnerabilities continue to play.
Although an athlete may establish fault on the part of responsible parties, they will not always be successful in obtaining damages. Parties owing a duty of care to those injured during the course of sporting events may successfully defend an action citing the inherent risks associated with sports. It is established that sport is a distinct area of negligence, and that participants generally accept the risks that are present in participating in the game.19 To further diminish liability, many sporting contracts contain waivers or exclusion clauses for actions commenced as a result of injuries suffered during competition. There are some circumstances where the courts give effect to such a clause, should there be a clear expression of the intention to exclude liability for negligence,20 but more often than not such exclusions will be void where there is a statutory liability to exercise reasonable care.
Agar v Hyde stands as an important ruling on sports law and the tort of negligence in Australia. The High Court heard two matters concerning liability for spinal cord injuries suffered while playing rugby football. While a number of arguments were made, Hyde brought an action against the International Rugby Football Board (IRFB) and its domestic representatives, alleging that the negligent administration of game rules made them liable for his injury. The majority judgment found against this argument, regarding the proposition that an international body could owe a duty of care to players around the world to be ‘so unreal as to be absurd’.21 The High Court found that there was a significant absence of control by the IRFB over the circumstances that resulted in Hyde’s injury to allow for a duty of care to be imposed.22 Kirby J in a later decision pointed out that it was a ‘serious mistake’23 to consider sporting bodies as operating in a ‘law-free zone’, perhaps leaving room for future challenge to the finding in Hyde.
The American experience and its relevance for Australian sport
While it may be difficult to establish negligence from a technical perspective, the commercial reality of legal proceedings – in particular potential class actions – should not be discounted. Concussion settlements with America’s National Football League have now eclipsed $600 million and are projected to continue rising over the coming decade. A group proceeding, bought on behalf of all players who were to suffer from degenerative conditions as a result of traumatic brain injury, levelled heavy criticism at the alleged cover up of the NFL and its committees of the risk associated with participation in the sport.24 The claimants argued that in the face of reliable evidence, the NFL concealed the dangers associated with the game and allowed players to return to the field in disregard of their health. While the settlement was made without acknowledgment of any wrongdoing, the allegations made against the league, franchises and medical officials did not appear to be without merit. Although there are a stark differences between the United States and Australian jurisdictions, the NFL’s failure to ensure that its concussion protocols were adequate provides serious incentive for a proactive approach in Australian sports.
Current concussion protocols in Australian sport
The AFL has developed an internal policy regarding concussion symptoms, which includes mandatory non-play periods and sanctions for clubs flouting these restrictions.25 The encouraged use of concussion assessment tools allows for medical officers to assess players following a collision and to use discretion in clearing them for continued play. These tests are endorsed by the Australian Medical Association, which also promotes a conservative approach to management: ‘if in doubt, sit them out’.26
The AFL continues to invest in education surrounding the issue of concussion although experts acknowledge that not enough is known about the condition. The NRL guidelines do not differ greatly from their AFL counterparts, with an understanding that the welfare of the player should be the primary focus in the management of concussion.27 It is further noted that complications may occur should a player continue to play without fully recovering from a concussion.28 Both the AFL and NRL incorporate rigid guidelines on immediate return to play following head injury, with any suspected concussion resulting in immediate removal from the game.29 Following an incident, appropriate medical clearance is required prior to a return to the sport with conservative and gradual progression being strongly advised.30 However, despite acknowledging the prevalence of concussion within football, references to the impacts of repeated trauma and long-term effects on participants, and appropriate protocols, are noticeably absent from the relevant publications.
Potential liability – when will clubs and health professionals be found to be negligent
Consideration of the above factors perhaps does not provide a conclusive assessment of circumstances that may lead to clubs and health professionals being found to be negligent for their management of concussed players. It is evident that situations may arise in which the actions or omissions of those responsible for player management will give rise to an arguable claim for damages. The law does not support an exemption from a duty of care over individuals engaged in sporting pursuits. Moreover, professional sporting organisations continue to widen the control they exercise over players, in turn creating a dependence of sportspersons on the organisations for their own medical wellbeing. It does not seem outside the realm of possibility that players would place a strong reliance on the information given by club medical practitioners, understanding that their health would be the primary concern. On one view, the guidelines enforced by the AFL and NRL seem to be at odds with the growing body of research on repetitive head impacts and multiple concussions in athletes. Whether the parameters defined by these guidelines fall below the accepted standard of care for athletes is yet to be seen. As medical literature becomes more voluminous and certain, it is possible that organisations, clubs and their medical professionals may suffer from the divide between guidelines and best practice. Although it is improbable that we will see successful action against those who had cleared the likes of ‘Polly’ Farmer to play in the past, current clubs and their doctors may not be granted the same privilege. Those involved in player management should seek to take a proactive approach, rather than becoming victim of their own complacency, as happened with the NFL.
The road ahead – risks for Paddy, clubs and doctors
While the decision in Agar may have allowed governing bodies to breathe a sigh of relief, administrators of the game should continue to be wary. For parties with a direct hand in the administration game, a duty of care will likely be found to exist.31 Medical professionals applying the guidelines regarding concussion may see claims brought in respect of clearances to play given in circumstances where players ought to have been ruled out. The AFL is no small business, with the current broadcast rights deal alone standing in excess of $2.5 billion and average salaries for the league of more than $350,000,32 though the COVID crisis has affected these figures. As the media reports the potential for a class action reminiscent of the NFL, the possible liability for such a claim is worthy of consideration. For Paddy McCartin, the desire to return to the field clearly needs to be balanced against the risks we now know to be present, not to mention the potential liability of any party should a further injury arise.
This article was written by David Guthrie, Partner, Sophie Pennington, Partner and Angus Rooney, Graduate.
1.’Paddy McCartin eyeing an AFL return’, The Age (online at 13 April 2020).https://www.theage.com.au/sport/afl/paddy-mccartin-eyeing-an-afl-return-20200413-p54jb9.html.
2. HWL Ebsworth is not advising McCartin, any AFL club or the AFL itself and has no information on his medical or contractual status. This article is not to be taken as legal advice.
3. Carol Mason et al, Sports-Related Concussions in Youth: Improving the Science, Changing the Culture (National Academic Press, 2014).
4. The University of Queensland Brain Institute, ‘How long does a concussion last: long-term effects’ (online at 16 August 2018) https://qbi.uq.edu.au/concussion/how-long-does-concussion-last-long-term-effects.
6. Concussion Legacy Foundation, ‘CTE Resources’ (online at 11 July 2017).https://concussionfoundation.org/CTE-resources/what-is-CTE.
7. Above n 3.
8. ‘Graham ‘Polly’ Farmer is the first Australian Rules player diagnosed with Chronic Traumatic Encephalopathy’, ABC News (online at 27 February 2020) https://www.abc.net.au/news/2020-02-27/australian-rules-great-graham-polly-farmer-diagnosed-with-cte/12005508.
9. Glen Lauder, ‘Rugby League players found to have deadly brain disease linked to concussions’ ABC News (online 27 June 2019) https://www.abc.net.au/news/2019-06-27/rugby-league-players-found-to-have-deadly-brain-disease/11254032.
10. Woods v Multi-Sport Holdings Pty Ltd  HCA 9.
11. Natasha Schot, ‘Negligent liability in sport’ (2005) 2 Sports Law eJournal 1.
12. Agar v Hyde (2000) 201 CLR 552.
13. Budgen v Rodgers (1993) Aust Torts Reports 81-246.
14. F v R (1983) 33 SASR 189.
15. Rogers v Whitaker (1992) 175 CLR 479
16. Bolam v Friern Hospital Management Committee  2 All ER 118.
19. Rootes v Shelton (1967) 116 CLR 383.
20. Fallas v Mourlas (2006) 65 NSWLR 418.
21. Agar v Hyde (2000) 201 CLR 552 at 683 per Gaudron, McHugh, Gummow and Hayne JJ; 700 per Callinan J.
23. Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 at .
24. Jason Luckasevic, ‘The NFL Concussion Lawsuit from the Eyes of the Pittsburgh Lawyer who Originated the Case’ (online at 3 April 2017) https://www.jurist.org/commentary/2017/04/the-nfl-concussion-lawsuit-from-the-eyes-of-the-pittsburgh-lawyer-who-originated-the-case/.
25. Sam McClure, ‘AFL concussion crackdown: Protocol changes to sideline more players’ (online at 18 February 2020) https://www.theage.com.au/sport/afl/afl-concussion-crackdown-protocol-changes-to-sideline-more-players-20200218-p5420x.html.
26. Dr Lisa Elkington, Dr Silvia Manzanero and Dr David Hughes, ‘Concussion in Sport Australia: Position Statement’, February 2020.
27. Australian Rugby League Commission, ‘Guidelines for the Management of Concussion in Rugby League’, 26 February 2019.
29. Ibid; AFL Concussion working group scientific committee, ‘The Management of Concussion in Australian Football’, June 2017.
31. Hayden Opie, ‘The sport administrator’s charter: Agar v Hyde’, (2001) 9 Torts Law Journal 147.
32. Wendy Carlisle, ‘The AFL’s concussion problem’ (online at September 2017) https://www.themonthly.com.au/issue/2018/september/1535724000/wendy-carlisle/afl-s-concussion-problem#mtr.