Concussion class actions, yet another headache for the NRL?
Author: Angus Jamieson
The 2019 National Rugby League (NRL) season has provided us with plenty of entertainment, both on and off the field. Before round one kicked off, attention was drawn away from each club’s preparation and into the court room with the introduction of the controversial “no fault rule”. It looks like coverage of the coming off-season will again be focused on legal issues, after several Sydney-based plaintiff law firms announced that they will be carrying out independent investigations into what they allege were reasonably preventable traumatic brain injuries among numerous current and former professional rugby league players.
How prevalent is concussion in rugby league?
“Traumatic Brain Injury” (TBI) is the expression used to describe injuries to the brain that are caused by trauma. Concussion falls into the milder spectrum of TBI (mTBI) and involves a disturbance of brain function but no structural damage. Over the past 4-5 years the incidence of concussion related injuries in the NRL’s first grade competition has been 5-7 concussions per team, per season. While the immediate effects of concussion are not overly concerning, research has shown mTBI to impair cognition and cause mental health disorders years after the injury occurred.
What is being investigated?
It is expected that these investigations will involve a consideration of the duty of care owed by the NRL’s past and present governing bodies in relation to injuries suffered by its playing group. In conducting these investigations, the plaintiff law firms will seek to identify players who have claims which arise out of, the same, similar or related circumstances.
You may recall the breakthrough settlement in the US, which resolved thousands of actions brought by former American Football (NFL) players, who accused the NFL of masking the risks of repeated concussions.
The uncapped settlement, agreed in January 2017, provides a means of recovery for retired players who have developed motor neurone disease, dementia or other neurological problems believed to be caused by concussions suffered during their professional careers, with awards as high as US$5 million being granted in the most serious cases. It is expected that the value of the settlement will reach US$1.4 billion, as compensation will be available for up to 65 years from the date the settlement was agreed.
How will the claim be brought?
If these investigations are successful, it can be expected that the claims will be brought collectively, under a ‘representative proceeding’, commonly referred to as a ‘class action’.
A class action may be brought where seven or more persons,
- have claims against the same body;
- in respect of and arising out of, the same, similar or related circumstances;
- giving rise to a common issue of law or fact.
Such proceedings may be commenced by one or more of those persons representing the class.
In light of recent judicial discussion on the issue, it is possible that competing class actions may be commenced and the Courts may be required to consider the appropriate management of the competing actions.
Who will the claim be brought against?
Over the past few decades, professional rugby league in Australia has been administrated by a number of different bodies. At present (and since 2012), the Australian Rugby League Commission (ARLC) is the single controlling body and administrator of rugby league in Australia.
These changes in administration are largely a product of the ‘Super League War’ of the late 1990’s and will make identifying the appropriate defendant particularly difficult, while also raising issues with respect to the statute of limitations (see below). Importantly, a class action may only be brought by players who have claims against the same body, meaning members of the class must have each played under the same administrator, and over a similar time period. In light of this, it is important to note that most of the rugby league’s previous administrating bodies have been wound up, or no longer hold recoverable assets.
What is the nature of the claim?
Professional athletes are not able to claim compensation for injuries suffered in the ordinary course of their profession, as other ‘workers’ are. By application of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), registered participants of sporting organisations are not entitled to remuneration for injuries suffered in competing in, or preparing to compete in their chosen sport.
In the absence of any recourse under Workers Compensation legislation, the affected players would likely bring a claim for ‘common law damages’ arising out of fault-based liability and in accordance with the Civil Liability Act 2002 (NSW). Essentially, the players would argue that the league’s governing body was negligent in failing to take precautions against TBI as,
- the risk was foreseeable (that is, it is a risk of which the ARLC or the relevant governing body knew or ought to have known), and
- the risk was not insignificant, and
- in the circumstances, a reasonable person in the person's position (i.e. the ARLC or the relevant governing body) would have taken those precautions.
Although it is certainly arguable that the risk of TBI in playing rugby league at a professional level is foreseeable, if the rugby league’s governing body can prove that there was an ‘obvious risk’ of TBI, it owes no duty to the player to warn them of such risk.
Will the claim be statute barred?
A player’s ability to bring their claim will be dependent on the year the cause of action accrued (i.e. the year the TBI was caused by contact in a tackle, a head clash or otherwise). With reference to legislation, the relevant dates are as follows:
Date cause of action accrued
Applicable limitation period
Pre September 1990
6 years (period expired)
September 1990 – 2002
Maximum of 8 years, with the possibility that the court may grant a discretionary extension for latent injury
Players have 3 years from the date the injury was discovered to bring their claim (up to a maximum of 12 years from the date the cause of action accrued), with a possible indefinite extension of the 12 year period being granted on application to the court (so long as the claim is brought 3 years from the date injury is discovered).
What would the Courts need to consider?
Notwithstanding the difficulties in bringing this claim addressed above, if such a matter was to proceed to the courts, we would expect that there would be a consideration of the voluntary assumption of risk, that is, whether the TBI arose from behavior that was an inherently part of the activity and to which the injured party had tacitly accepted the risk. Claims brought for a breach of duty on the part of the game’s governing body may struggle to overcome this hurdle, or at the very least, face the onus of proving on the balance of probabilities that the class members were not aware of the risk.
Are there any alternatives to litigation?
NRL contracts typically include provisions to account for career ending injuries, and ensure that the NRL takes out hospital and medical benefits insurance. In addition to the above, and in consultation with the Rugby League Players Association, the NRL has reportedly moved towards a self-insurance model with clubs having to make a contribution of US$150,000 per annum (with an additional US$600,000 contribution from the NRL) with a view to amassing a multimillion-dollar pool to assist players forced into premature retirement due to injury.
Although these measures provide a safety net for player’s while they remain employed by their club, they do not provide a means of recovery for delayed onset brain injuries which can be discovered years, or even decades after retirement. As the onset of these injuries looks to increase in the coming years, this might just be the beginning of the battle.