When sport, insurance and the law collide

In February this year, Melbourne AFL Premiership player Angus Brayshaw announced his retirement after scan results revealed microscopic changes in his brain following a concussion he had sustained in the previous football season.

The 28-year-old had missed much of the 2016 and 2017 seasons with concussion-related issues and had been undergoing rehabilitation during the off-season. 

“Concussion is a massive issue facing our game,” said Brayshaw, when announcing his retirement. “I hope this, a terrible result for me, can bring some positive outcomes for the future of player safety.”

Brayshaw’s medical retirement is just one example of the significant risk of head injury in the sporting arena. Concussion in sports is in the media spotlight and is an emerging area of compensation law.

It’s also gaining more attention across the insurance industry and is the focus of a mock legal trial at the upcoming Reinsurance Rendezvous conference in the Hunter Valley. 

Concussion on trial

The mock trial will focus on a hypothetical former professional athlete, who is bringing a claim against his hypothetical former sporting organisation.

Barristers Callan O’Neill, of 12 Wentworth Selborne Chambers, and Teni Berberian of 13 Wentworth Chambers, will act as the barristers for the hypothetical parties, and the session will hear from renowned concussion experts, including neurologists Dr Rowena Mobbs and concussion expert Dr Adrian Cohen. 

John Edmond, Chairman of Gilchrist Connell, will serve as trial judge. He says the session will demonstrate how legal and medical issues that arise in concussion-related claims are dealt with before the court. 

“We're lucky to have great barristers who will act as counsel for the plaintiff and counsel for the defendant in the mock trial, and we've got some great experts who will provide good examples of how expert evidence is dealt with,” says Edmond.

“In my role as a judge, although there will not be a verdict, I will keep the trial flowing and ask some tricky questions.”

Head injuries like concussions are a critical issue in professional, amateur and recreational sports. A degenerative neurological disease called chronic traumatic encephalopathy (CTE) is of particular concern and is associated with a history of repeated traumatic brain injuries, including concussions and blows.

An issue preventing more insurance claims for CTE is that there is currently no way of diagnosing CTE without a post-mortem. 

Dr Mobbs believes there is a “massive underreporting of CTE symptoms due to fear, lack of awareness or embarrassment felt by the injured person and their family”. 

“The consequences of brain injuries are quite shocking, as once this young-onset dementia sets in, specialist medical care may be required for 20 years or more,” she says.

“The burden of care has largely been borne by the family in silence, at no expense to the community, but this is unsustainable. The funded cost must cover high-level care for several years once CTE progresses to the severe stages.

“I believe that there is a large number of patients in Australia who are suffering the effects of repeated traumatic brain injury,” she says. “It is concerning, given the amount of
contact-collision sport we play in this country, as to how many people may have CTE.

If you take the US data, it will seem that, at the highest levels of American football, there is a significant percentage that could be affected with CTE, and the latest estimates are at least 10 per cent.” 

A challenge for insurance

Sporting leagues such as the AFL are currently facing years of litigation over allegations of historical negligence in its management of concussions.

Class actions have also been initiated in various international jurisdictions such as the US, where, in 2015, the National Football League agreed to a final settlement of up to US$1 billion in response to a class action filed on behalf of more than 4,500 former players.
 
In addition to his role at 12 Wentworth Selborne Chambers, Callan O’Neill is the Injury Hardship Commissioner for the National Rugby League and is also briefed by the Rugby League Players Association. He says insurance relating to head injury remains a challenging issue in sport.

“The Injury Hardship Fund is a discretionary benevolent fund for NRL and NRLW players who are seriously injured in the last year or two of their contracts. 

They can apply to the Injury Hardship Fund and make an application to be paid up to 75 per cent of the last two years of their expected salary,” he explains. 

“Insurance for big sporting leagues like the NRL would be prohibitively expensive, so it’s not attainable in Australia,” he adds. “One of the reasons is that the CTE risk remains unknown.”

O’Neill likens CTE risk to early cases of mesothelioma, a rare cancer shown to be caused by asbestos exposure.

“For all those old asbestos claims, it was hard to determine when the harm was caused, and for some, it was 40 years after exposure,” he says.

“That's similar to what we may see with CTE, where an athlete who retires at age 35 following a series of head knocks may not see CTE-adjacent symptoms until they reach their fifties or sixties. 

“This makes the aetiology of the disease difficult to determine, and so which insurer was at risk at the time?”

O’Neill says another challenge for insurance is identifying the liable party. 

“Professional players across most sports have a tripartite contract between the player, the club as the employer, and the competition itself, which is the regulator,” he explains. “The players associations will try to negotiate the form of that contract, but they're not a party to the contract. 

“Is the employer most likely liable, because it’s the one who sends the players out to battle or is it the independent doctor who says you’re right to go back out, despite the concussions or the symptoms? Or is it the broader competition that sets the rules?

“There are also questions such as, how do you determine how the damage was done?” adds O’Neill. “And, if a player goes back on the field too quickly to play for a club and gets knocked out again, did that injury cause long-term damage, or was it an earlier injury? It’s very complicated.”

Duty of care

While the cause of CTE is currently difficult to determine during the life of an athlete, Edmond says there is a recognition that repeated concussions can cause long-term health problems. 

“It's not about a denial of the existence, it's really about whether an employer, or in this case the club, has discharged their duty of care,” he says.

Edmond believes successful claims in Australia and the UK will follow emerging trends in the US. 

“However, I don’t think the potential pool of claimants is as big as the wave of asbestos claims seen,” he says. 

As the focus on concussion-related injuries in sport increases, medical research into CTE will continue to develop and the insurers industry will be watching closely.

“The elite sports are also watching each other to see how they respond to the risks and adhering to safety issues as best they can,” says Edmond. “Plus, a lot of the games are televised and there are recordings of injuries. 

“But you've got to remember that for every injury at an elite sport level, there are hundreds of park games where head injuries can occur, but people don't necessarily see them.

"It becomes a greater evidentiary problem for a potential plaintiff who might have played a C-grade sport throughout their life until they were 40, and then start to experience the onset of serious symptoms.” 

Find out more about the Reinsurance Rendezvous Conference