Who should be responsible for brain injuries in sport?

The 2016 State of Origin rugby league competition is over for another year and the focus has shifted to off-field events, with claims arising for compensation for brain injury. In recent times, football codes in Australia have had to respond to issues surrounding concussion and brain injuries with the question yet to be decided: who should be legally accountable and liable to pay compensation?

Sport in Australia does not operate in a law-free zone. The preliminary claim for compensation initiated in Queensland by former amateur rugby league player, Liam Cullen, has raised a number of legal issues in sport.

According to media reports, Cullen was an amateur rugby league player for the St George local football club when he suffered a traumatic brain injury. The injury arose from an on-field incident in a game against Roma Cities in the Roma and District Rugby League amateur competition in 2014.

Cullen intends to sue five parties including the Roma Referees’ Association and Queensland Rugby League, as the sport’s governing body, for negligence. He is seeking millions of dollars in compensation arising out of an illegal head-high tackle and contact made by the opposing player contrary to the rules of the game.

According to these reports, Cullen is left with a permanent loss of brain function and lost earnings, with the incident significantly impacting himself and his family.

This claim brings into question the allocation of risk and responsibility in circumstances where participants voluntarily participate in dangerous contact sports.

Voluntary participant or victim?

A decision that has to be made here, is that in playing rugby league, is there a significant risk of physical harm or could the risk be avoided by the exercise of reasonable skill and care?

If the game (or a component of the game) can be classified as a dangerous recreational activity under Queensland’s Civil Liability Act, then the defendant would not be liable for the materialisation of an obvious risk. An injured player would be regarded as having assumed responsibility for obvious risks arising from participation.

“Dangerous” under the Civil Liability Act refers to a recreational activity that involves a significant risk of physical harm. Rugby league is a full-contact sport and would fall under this classification. Similar provisions can be found in New South Wales, South Australia, Tasmania and Western Australia.

This exemption is designed to force those who participate in dangerous recreational activities to accept personal responsibility for injury caused by known hazards of the activity. A Tasmanian case decided “recreational activity” does not apply to sport played as an occupation or profession. This puts professional athletes into a different category from amateur athletes regarding their legal rights.

Who’s in charge and in control?

According to the High Court, the organisation and hierarchy within a sport are important considerations in determining liability.

In a previous case, two rugby union players who had been seriously injured on the field sued various parties, including the governing body and organisers at the local, state, national and international levels, the opponent club and the match referee. The High Court said the Australian governing bodies in that case did not owe a duty of care to the players on the basis that they were not in a position to amend the rules of the sport.

Who ultimately has control over the match in which the player was injured is a significant point. Who makes the rules and owes a duty to provide a safe sporting system? Rule-making responsibilities, including the capacity to amend the rules and enforce implementation of the rules, need to be established to determine liability.

There are various levels within the sporting hierarchy of rugby league in Australia, with the Australian Rugby League Commission being the single controlling body and administrator of the game. The Commission delegates certain functions to the Queensland Rugby League to organise the game across the state.

As the delegate of this responsibility, Queensland Rugby League publishes documents and policies specific to the operation and management of the game in Queensland and adopts the Australian Rugby League Commission’s laws, including the “Laws of the Game” rule book.

Central to the new claim is whether Queensland Rugby League exercised control over the match when Cullen was injured.

Other cases in contact sports

A number of former Australian Football League (AFL) players have claimed compensation for career-ending injuries arising from concussions, with settlements having been handled internally by the AFL.

There are no reported cases in Australia setting a precedent as to what is expected from a sports governing body in the case of concussion and brain injuries in sport.

In the United States, the concussion cases against the National Football League were settled out of court and without a determination being made as to responsibility.

A number of Australian cases have demonstrated the challenges in mounting claims against governing bodies for other types of sporting injuries.

In one case, a rugby player who suffered significant spinal injuries in a scrum sued the state-based organiser of the sport, the New South Wales Rugby Union. The court in that case decided the New South Wales Rugby Union did not owe a duty of care to make changes to eliminate injuries and no evidence was established proving it had control over the relevant match.

In another case, a junior rugby league player tried to sue New South Wales Rugby League after he suffered spinal injuries, rendering him a quadriplegic.

The claim alleged the League had created an unreasonable risk of injury and failed to amend the rules to protect players from injuries. The player was unsuccessful on the basis that the League did not, in a real sense, exert control over the match.

The Cullen case will be one to watch and, if it proceeds through the various stages of the civil litigation process, documents disclosed through the discovery stage should provide an interesting read as to what was known by the sport’s governing body in responding to the risks associated with brain injuries in rugby league.

Annette Greenhow does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.