Basic HTML Version
‘Relaxing Dangerously’ (Touchline
– Issue 11), noted that in Laoulach
v El Khoury (2010) NSWSC 1009,
the NSW Supreme Court found
that the risk of serious spinal injury
from striking the bottom of a bay
should have been obvious to the
injured plaintiff, particularly after the
defendants had relocated their boat
due to concerns about the water
being too shallow for diving and the
plaintiff had been aware of these
concerns.
On 16 December 2011, the NSW
Court of Appeal dismissed the
plaintiff’s
appeal.
Importantly,
the Court held that the plaintiff
was not engaged in a ‘dangerous
recreational activity’ within the
meaning of the NSW Civil Liability
Act 2002 when he dived into the
bay. The Court held that for a
‘significant degree of risk of physical
harm’ to exist and allow the activity
to be characterised as ‘dangerous’,
there must be a finding not only that
the risk was more than trivial or very
slight but also that there was a real
chance of the risk materialising.
The Court of Appeal was not
satisfied that there was a real
chance of physical injury occurring
and concluded that the plaintiff
was not engaged in a ‘dangerous
recreational activity’. However,
the Court of Appeal upheld the trial
judge’s findings that the defendants
had not breached their common
law duty of care to the plaintiff.
Consequently, the plaintiff’s appeal
against the Supreme Court’s
decision failed.
RELAXING
DANGEROUSLY
REVISITED
touchline
21
Insight
NHL INSURERS HEADACHE
OVER CONCUSSIONS
In a move that has set the National
Hockey League quaking, there
are rumours that insurers will stop
covering players who retire because of
concussions.
Hockey could be just the first sport
where insurance companies start
to be more careful about how they
handle pay-outs for head injuries. With
advances in brain-monitoring science,
health professionals are sidelining
more and more players on account of
concussions. More injuries are being
diagnosed and longer rest periods
demanded.
The result is that this season up to 10
percent of all players from the NHL
have been sidelined with a concussion-
related complaint.
Of even more concern to the insurers
is the condition of NHL poster boy
Sidney Crosby. The high profile
player has started only a fraction of
the Pittsburgh Penguins’ games this
season on account of his concussions.
The club remains protected from the
financial cost of his lay off, because as
part of his contract, if he missed over
30 consecutive games, the insurer
foots the bill. In Crosby’s case, this will
mean they will pay out around 8 million
dollars.
Howard Bloom from Sports Business
News said that “in the case of Sidney
Crosby about 90 percent of his contract
is covered against his concussions if
he can’t play games.”
“What [the insurance companies] are
suggesting is that after a player suffers
one concussion they’re not going to
cover that player.”
Should he be forced to retire, Crosby
will receive a pay off of around 20
million dollars from his insurance
provider. It is believed that he paid 1
million dollars for the policy, which is
calculated to protect him from a loss in
salary and the millions he makes from
his commercial sponsorship deals.
The changes could be devastating
for smaller clubs as they struggle to
pay out a player’s contract without
the assistance of the insurance
companies.
“It’s implications are really very, very
terrifying for the National Hockey
League and the sport of hockey,”
Bloom concluded.
One of the mooted changes is for
players who have suffered one
concussion
become
virtually
uninsurable for subsequent brain
injuries. Should the injury be career
ending, the clubs will have to stump up
what the insurers would have paid.
These changes are already reflected
in certain insurance companies’ vetting
processes, such as Toronto-based
Sutton Special Risk.
“We used to have one question asking
players their history with cardiac issues
and other problems like concussions,”
said Greg Sutton, the company’s
president.
“Now, concussions have their own
section. We’re asking about frequency,
how bad they were and how many
games they missed. We know you’re
not recovered from brain injuries
because the symptoms go away. This
is not an organ like the liver that can
regenerate itself.
“You’re going to see a lot more
contracts with concussion exclusions.
It’s a big risk. Teams are going to have
more exposure related to concussions
that they’re going to have to eat.”
Just how this issue will develop in
hockey is anyone’s guess, but the
implications for high impact sports
such as boxing, certain football codes
and basketball are obvious.
By Timothy Mottram