Proctor : October 2018
16 PROCTOR | October 2018 Media reports suggest that the class action proceedings are likely to be filed in the Melbourne Registry of the Federal Court and the procedural mechanisms associated with class action litigation will need to be followed. 18 Lawyers representing the proposed plaintiff group have suggested that the Victorian Football League/AFL “have known for 40 years about the dangers associated with allowing concussed players to continue to play” – a claim that is likely to involve questions around workplace matters involving players and the AFL. 19 Proceedings could fall under the Employment and Industrial Relations National Practice Area, incorporating proceedings “substantially of a character of employment and/or industrial relations”. 20 Issues for consideration Discovery and access to information The litigation process enables access to information that would not otherwise be in the public domain. In the McManus case, the plaintiff subpoenaed medical and other records relating to incidents involving former teammates, along with the game- day diaries of former Newcastle coaches. The Knights resisted this request, filing a motion to dismiss the subpoena, alleging the documents served no “legitimate forensic purpose”. The court disagreed and ordered the release of these documents, ruling that they did serve a legitimate forensic purpose.21 The disclosure of internal information held by the Knights, its coaches and the NRL illustrates the informational function of litigation in raising awareness around SRC, including the internal management and risk classification of the issue. Further, the Federal Court ‘public interest’ policy and the online publication of pleadings on the Federal Court website could apply if the AFL class action qualifies as a ‘high profile case’, providing simultaneous and timely access to information to interested members of the public.22 The nature of the professional sporting relationship – autonomy and responsibility Establishing a duty of care requires careful consideration of the nature of the relationship between players, teams and governing bodies, and whether such relationship creates a legal obligation to consider the safety and interests of players when engaging in the conduct that caused the harm. The relationship in professional team sport is underpinned by contractual arrangements between the player, the club and, in some instances, a tripartite agreement including the sport’s governing body. 23 It is well established that a professional sportsperson can be classified as an employee, giving rise to rights and duties based on the employment relationship. 24 The existence of this relationship includes a duty to provide a safe system of work. In team sport, this would include an obligation to remove a player from a game or training when suspected of sustaining a concussion. 25 The High Court in Agar v Hyde established that a sport’s governing body does not owe a duty to players to amend the rules of the game to make the sport safer in circumstances where it lacked any real or effective control over participants, relying heavily on principles of autonomy and responsibility of voluntary participants.26 However, the court left open the possibility to later re-examine whether professional athletes as employees within an employer- employee relationship warranted a different conclusion. Should matters proceed to trial, this question is likely to arise when determining whether a cause of action exists with reasonable prospects of success.27 The complexities of concussion and causation A threshold issue for consideration in concussion cases is determining the nature and extent of the medical construction of the harm. Concussion is described as a “traumatic brain injury induced by biomechanical forces to the head or anywhere on the body which transmits an impulsive force to the head”. 28 Concussions are common in sports, particularly those sports where bodily contact is an accepted, essential or an inherent aspect of the game. The risk of sustaining a concussive injury in these sports is likely to be an obvious or inherent one. However, a key consideration in any litigation will likely focus on the nature of the harm associated with the ‘downstream’ effects of the mismanagement of the concussive injury. The issue of causation is likely to be heavily contested. Further, the complexities associated with SRC and links to later cognitive and neurological damage ensures that the medical and scientific evidence will be vitally important in establishing the medical construction of the harm, the classification of the risk arising from SRC and issues around causation. The evolving state of medical science The evolution of and technological advances in diagnostic and evaluative tools in recognising SRC have enabled researchers and clinicians to access comprehensive methods for detection, management and prevention of SRC. Research has evolved since early diagnostic tools involved animals to study the effects of SRC and its sequalae. Such technological and diagnostic advances establish the importance of context, particularly around the prevailing scientific knowledge at the time. On this point, it is timely to reflect upon the comments of Lord Justice Denning in Roe v Minister of Health29 where he cautioned: “We must not look at the 1947 accident with 1954 spectacles.” Lord Denning drew attention to the importance of appreciating the prevailing scientific knowledge at the relevant time when evaluating foreseeability of the harm. In addition to the matters discussed above, these considerations are likely to be highly relevant and will be interesting to watch unfold should matters proceed to trial. This article was first published in April 2018 edition of the Law Institute of Victoria’s Law Institute Journal. Annette Greenhow is an assistant professor in the Faculty of Law at Bond University and a legal practitioner. She first published on issues involving sport-related concussion in 2011 and commenced her PhD through Monash University under the supervision of Emeritus Professor Arie Freiberg and Professor Christine Parker. She is an affiliate member of the LIV and a member of the Queensland Law Society.