Concussion in Sport – Developments

In July of this year, former Richmond player Ty Zantuck won the right in the Victorian Supreme Court to sue Richmond Football Club for compensation over debilitating back and brain injuries, successfully arguing an exception to the statute of limitations relating to injuries and concussion.

The application by Zantuck to the Court was not to determine the substantive medical issues, but rather to extend the limitation period to bring the claim. He was granted an extension to bring the lawsuit, despite the typical time limit (often six years) for personal injury claims.

The ex-AFL player sued Richmond and two doctors, alleging they did not treat his injuries properly throughout his playing career between 2000 and 2004 and allowing him to train and play despite repeated head knocks. Notably, the concussion aspect of Zantuck’s case is only against the Tigers, and not specifically the doctors.

Zantuck’s agent said: “This is a landmark decision for a number of reasons. First and foremost, it recognises Ty is an employee of Richmond…… Up until now, the defence was that you, as a player, knew it was a dangerous sport, so you knew what you were getting into. The two exceptions were that if you were an employee and if there was negligence. It’s now been found Ty was an employee, so he can be the first player to take action this way.”

The Judge found the alleged conduct of the Tigers was “egregious” and left Zantuck’s “life crippled”, granting an extension for him to bring the lawsuit. She found the delay in Zantuck lodging the claim “understandable and reasonable”.

She noted in her decision that Zantuck’s case was primarily that Richmond had no adequate policies or systems regarding concussion management in place, relevantly commenting that: “There is no evidence from any of the defendants that positively asserts or even suggests that RFC had a concussion management protocol in place at the time. There are just a couple of weekly notes.

These comments are important in that they foresee expected scrutiny of the existence and implementation of protocols and policies of sporting organisations when the substantive application is eventually heard.

Concussion management protocols are essential in modern sport to demonstrate that a sport is doing all that is reasonable in the circumstances to protect the health and well-being of a concussed athlete. Once aware of a risk, the sporting organisation must put in place a protocol to warn the athlete and minimise said risk. Most importantly, once a concussion protocol is introduced, there is a legal expectation that it is and remains adhered to.

In the 2022 State of Origin decider, we saw three players leave the game with head knocks in the first three and a half minutes, with all remaining sidelined pursuant to rigid concussion protocols.

In the UK, several high-profile ex-players are currently part of a legal case against World Rugby, the Rugby Football Union, and the Welsh Rugby Union over an alleged failure to protect them from concussion risks. Only recently, World Rugby announced that in some cases, elite players will now face an increased minimum period of 12 days on the sidelines under toughened concussion protocols.

The Australian Senate has very recently passed a motion to establish a Senate inquiry into concussions and repeated head trauma in contact sports for all levels, genders, and age groups, with the inquiry due to report by 21 June 2023.

In light of these recent developments, concussions in sport will certainly be a hot topic in sports law over the next 12 months.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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