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RISK MANAGEMENT FOCUS

GETTING SCHOOLED

IN THE HARD KNOCKS OF

CONCUSSION LIABILITY

James McIntyre, Special Counsel &
Byron David, Graduate Lawyer - HWL Ebsworth

ames McManus, the former Newcastle
JKnights and NSW State of Origin
rugby league player, recently announced
that he would be seeking damages from
his former club claiming damages for
personal injuries allegedly arising from
the club’s management of concussions
sustained during the course of his career
with the club.
Although McManus’ claim is only
directed towards his former club, it
highlights a number of issues relating to
the potential liability of governing bodies,
professional sports clubs and treating
doctors arising from concussion incidents
during contact sport. It also raises
significant questions with regard to:
• The appropriate standards for the occurred. Even allowing for rule changes v Country Rugby Football League of
management of head injuries and to deter tackles carrying a higher risk of New South Wales Inc (2009) NSWSC
whether there has been any breach of head injury, in fast-moving high-impact 26) have been unsuccessful. Crucially,
duty by any defendant; and sports such as rugby league or rugby the unsuccessful claims in those cases
• Potential defences under common law union where injuries can be sustained related to events on the field which the
and civil liability legislation. in a split second, it will be difficult for governing bodies had relatively limited
Unlike other sporting injuries where the a player to demonstrate that any action ability to control. This can be contrasted
damage is almost immediately apparent, by a governing body or club could have with the central allegation in McManus’
the long-term effects of concussion, prevented the initial head injury. foreshadowed claim, namely that the
namely cognitive effects, may not off field management of his head injury
manifest themselves for some years, POTENTIAL TARGETS FOR was deficient. Consequently, governing
potentially raising questions with regard CLAIMS bodies have potential exposure in
to limitation periods and determining Governing bodies respect of concussion claims due to their
the relevant standard of care in assessing Although James McManus has ability to set guidelines regarding the
whether there has been a breach of duty only foreshadowed a claim against his management of such injuries.
by defendants. club, sports governing bodies are also
As a general observation, concussion potential targets for damages claims Clubs
claims will likely allege negligence in the in respect of concussion. Previous As seen in James McManus’
treatment and management of the player claims against governing bodies in foreshadowed claim, in professional sport,
after the initial head injury rather than Rugby Union (Agar v Hyde (2000) a player’s club will likely bear the greatest
the on-field incident in which the injury HCA 41) and Rugby League (Green exposure to such claims because of the

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