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RISK MANAGEMENT FOCUS

managing your risk

Australian jurisdictions provides for injuries), the standard of care will need Inherent risk
an extension of time from the time a to reflect that the treating doctor would Section 16(1) of the Civil Liability
material fact of a decisive character (eg not have access to imaging technology Act 2003 (Qld) provides that a person is EARN CIP POINTS WITH
VRA WEBINARS
the severity of the symptoms, the causal (such as MRI scanners) and be not liable in negligence for harm suffered
relationship between the symptoms dependent upon the subjective reporting as a result of the materialisation of an
and an earlier event) came within the of a player who might downplay their inherent risk. Section 16(2) defines
claimant’s means of knowledge. symptoms in order to return to the field. ‘inherent risk’ as ‘a risk of something
In short, the fact that over 3 years occurring that can not be avoided by the
has passed between a player sustaining a POTENTIAL DEFENCES exercise of reasonable care and skill’.
concussion and commencing a claim for Subject to relevant contractual This defence is unlikely to assist
damages for neurological sequelae will provisions (in the case of injured defendants. The critical issue with regard
not prevent a player from pursuing that professional sportspersons), the civil to concussion liability claims will likely
claim. liability legislation in various Australian relate to the management of the injury.
jurisdictions will be relevant to the In contrast to catastrophic injuries which
HOW IS THE STANDARD OF assessment of liability in relation to can occur in a split second, potential
CARE ASSESSED? claims arising from approximately 2002 defendants in concussion claims have
Recent media coverage of a possible onwards. the relative luxury of time in which to
objective concussion test which obtain appropriate medical advice in the KNOWLEDGE
measures the player’s pupils’ response to Obvious risk treatment and management of the injury.
light as opposed to somewhat subjective Section 14(1) of the Civil Liability
tests such as memory tests and asking Act 2003 (Qld) provides that in a James McIntyre has extensive IS POWER
a player how they feel illustrates how proceeding for damages for negligence, experience advising commercial
rapidly diagnostic tools can emerge. a person who suffered harm is presumed insurers, self insurers and the Australian
Consequently, medical knowledge and to have been aware of an obvious risk Government in relation to liability
procedures at the time a claim comes unless they can prove on the balance of claims. James has defended a wide range Throughout 2017 VRA
is running a series of
to trial may be more sophisticated than probabilities that they were not aware of of liability claims arising from sports
at the time the player’s head injury was that risk. including horse and greyhound racing,
sustained. Whilst not certain to succeed, mountain biking, motor sport and soccer Webinars to arm Risk
Managers, Brokers
In brief, the standard of care will be credible arguments could be made that as well as school physical education
assessed by reference to whether the despite their low probability, the risk lessons. James has also spoken on and Underwriters with
treatment would have been accepted of debilitating neurological sequelae sporting liability issues at an international
as proper practice at the time by a from concussion would be obvious to a sports law conference. In addition to his current information
responsible body of medical opinion. professional rugby league player, such as liability experience, James has worked as regarding risk areas
This approach is reflected in James McManus. The prospects of such an in-house lawyer at Lloyd’s of London.
impacting the sport and
Australian civil liability legislation. a defence succeeding in the context of
For example, Section 22 of the Civil amateur sport are lower as the injured Level 19, 480 Queen Street Brisbane recreational sector. For
Liability Act 2003 (Qld) provides that player would likely have received less QLD 4000
more information, email
a professional (eg a doctor) does not information associated with the hazards Phone +61 7 3169 4840
info@vrarisk.com
breach their professional duty if they of their sport than their professional jtmcintyre@hwle.com.au
acted in a manner that was ‘widely counterparts. www.hwlebsworth.com.au
accepted by peer professional opinion
by a significant number of respected
practitioners in the field as competent
professional practice.’
Consequently, whether there has
been a breach of duty will depend upon
expert medical evidence, most likely
from sports physicians and neurologists,
ideally with experience of medical
practice at the time the treatment was
provided. Depending upon whether
the claim is confined to treatment
provided on the sideline (as opposed
to management over a more protracted
period in the case of multiple head

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