To what extent are governing bodies of contact sports and clubs liable to former players for brain injury? The United States has seen several cases on this issue, including class actions involving USD 1 billion settlements. Will this type of litigation make its way to Australia?

 More than a decade ago, pathologist Dr Bennett Omalu performed an autopsy on American National Football League (NFL) player, Mike Webster. The autopsy led to the discovery of Chronic Traumatic Encephalopathy (CTE).

CTE is a progressive degenerative disease of the brain found in people with a history of repetitive brain trauma.  The repeated brain trauma triggers progressive degeneration of the brain tissue. Common symptoms include memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, suicidality, Parkinsonism, and eventually progressive dementia.  These symptoms often begin years, or even decades after the last brain trauma. Presently, CTE can only be detected post-mortem.

The disease and its causes have recently gained global interest.  Of the 91 former NFL players that donated their brains for post mortem laboratory testing, 87 tested positive to CTE.  

In the US, the NFL has been involved in litigation with up to 5000 players in what is known as the NFL Concussion Injury Litigation. Allegations include that the NFL knew by the early 1990s of the effects of multiple brain trauma, it failed to warn players of those effects and breached its duty of care.  It is also alleged that the NFL fraudulently concealed the risks of multiple brain trauma and had mythologised and glorified the players and injury causing “hits” through film and media.

On 22 April 2015, the US District Court for the Eastern District of Pennsylvania approved a settlement that will see nearly USD 1 billion paid to former players who retired prior to July 2014 and now suffer from various brain injuries. This finding is currently being appealed by a number of players who say the award does not adequately compensate the effects of CTE.

Unsurprisingly, the NFL is not the only sporting body defending Concussion Injury Litigation. Proceedings have been commenced on similar grounds by former players against the National Hockey League and National Collegiate Athletic Association.    

Although the scale of litigation is far smaller, Australian courts have had to consider concussion related claims brought against a sporting body.

For example, in Agar v Hyde (2000) 201 CLR 552 two amateur players alleged the International Rugby Football Board and members of the board (being the governing body) had a duty of care to change the rules of the game in order to minimise injury to players.  The High Court refused to recognise this duty of care, noting that rugby was an inherently dangerous sport.

Similarly, in Haylen v New South Wales Rugby Union Ltd [2002] NSWSC 114 a player was rendered quadriplegic and sued the NSWRU. The injured player argued that as the NSWRU controlled the game of rugby in NSW, there was a duty to ensure players were not subjected to an unnecessary risk of injury. Ultimately, the Court determined the NSWRU did not have a legal obligation to ensure the player's safety as he took part in the game of his own free will and was aware of rugby’s ‘dangerous’ nature.

In contrast, where a player is injured during the course of a game as a result of an opponent's disregard of the rules and players' safety, the Courts have found the offending player liable for damages and the offending player's club vicariously liable. For example, in McCracken v Melbourne Storm Rugby League Football Club Limited & Ors [2007] NSWCA 353 the NSW Court of Appeal upheld a finding by the NSW Supreme Court that two players were negligent (and the Melbourne Storm Club were vicariously liable) in tackling a player in a manner against the rules of the sport.

While the above cases reflect a well-established area of law, Australian Courts have yet to rule on comparable allegations as seen in the NFL Concussion Injury Litigation.

However, in an effort to minimise risks to its players, the National Rugby League, Australian Rugby Union and Australian Football League have introduced rules and procedures in order to better protect players from the risk of brain injury.  By way of example, the Australian Football League has introduced rules forbidding players with concussion to take any further part in the game.  This reduces disincentive to diagnose a player as concussed, removing them from the game and disadvantaging the team.  Similarly, the NRL has outlawed the shoulder charge and adopted a sideline concussion recognition test in order to diagnose concussion. 

However, the questions remain: are Australian sporting bodies and boards doing enough to avoid latent brain litigation as is currently on foot in the US, and will a wave of claims similar to the NFL Concussion Injury Litigation arise in Australia from players of full contact/impact sports?  

As regards the latter, and given the prevalence of Australian impact sports, there is a possibility of Australian copycat claims or class actions being commenced. This is particularly so as Agar v Hyde left open the possibility of a finding of liability on the part of a governing sporting board in the context of injury to professional sports people.

In the current climate Australian liability insurers should therefore be aware of potential latent brain injury claims arising.