*The views and opinions expressed in this article are those of the writer only and should not be taken as constituting legal or other such advice.

The rise of class actions for concussion related head injuries sustained while playing sport is on the rise. This may be attributed in part to the release of several movies and documentaries exposing the extent of head injuries and brain trauma (think the movie, Concussion that was based a 2009 article featured in GQ Magazine aptly titled, “Game Brain”).

Or, the rise may be attributed to the 2013 litigation launched by former NFL players in the United States, whereby the NFL settled lawsuits from thousands of former players of the game for head injuries in which players went on to develop concussion-related health problems (including dementia, depression, migraines and memory loss). That settlement amount is rumoured to have cost the NFL more than US$1 billion, though notably settlement was reached without admission on the part of the NFL that it hid information from players about the long-term dangers of concussion related head injuries.

Fast forward to present day which now sees a group of eight ex-rugby internationals from Britain (including a handful of ex-rugby New Zealand players) looking to launch a class action against World Rugby, alleging it was negligent in looking after player welfare.  Watching closely from the wings is the code of Rugby League who are similarly considering launching their own class action over the NRL’s treatment of concussions.

It should be noted however, that the position in New Zealand in respect of class actions relating to claims of this nature is different.  Under the Accident Compensation Claims Act 2001 (“ACC”), the Act precludes persons from suing for damages over personal injury, which in some ways is unfortunate as it limits the extent to which a person may be compensated to the fullest extent. 

The class actions brought by both the rugby and rugby league fraternities is based on the tort of negligence. The claim alleges that reasonable care was not taken by the responsible governing bodies to protect players from reasonably preventable brain injuries sustained as a result of concussion. The action will look at whether rules and strategies imposed were sufficient to protect players against concussion incidents and whether those same rules and strategies were also implemented to allow players the time needed to recover from concussion incidents (particularly repeated concussions). This might sound like a fairly straightforward analysis, however there are elements and thresholds to be met and consequently satisfied in order to successfully convince a court the claim has merit.

If successful, the outcome of both class actions will have a profound effect on their respective codes and could potentially open the floodgates for other codes to follow suit which could ultimately cost respective governing bodies millions of dollars in compensation payouts.

In the case of the rugby internationals, legal counsel state that all of the claimants have been diagnosed with early signs dementia.  Disturbingly, a further 80 former players ranging in age between 25 and 55 are also purportedly showing early signs of dementia. While the class action is gathering momentum, it is an arduous and protracted process as claims such as these require extensive player testing, scientific research and medical evidence to link the causative effect of brain injuries directly to the negligence claimed. By way of example, former players in the AFL have been preparing a class action for the better part of five years and have only recently been in a position to finally lodge proceedings.

Fundamentally, the class action will also need to successfully fend, or counter any defence raised. The most obvious of defences in the circumstances is that of volenti non fit injuria, which translated from Latin means, “to a willing person, injury is not done” (or otherwise known as the voluntary assumption of risk). While this defence on the face of it looks simple enough to prove, there are thresholds and elements that need to meet for it to withstand scrutiny of the court.  In short, the elements to make out the defence must show the injured person:

• was fully aware of the risk;

• fully appreciated its nature and extent; and

• freely and willingly accepted the risk.

So, while negligence is a failure to take reasonable care arising from a duty of care owed - in this case to exercise a duty of care to inform and protect players from the danger and harmful long-term effects of concussion related head injuries. Voluntary assumption of risk is a defence to a claim in negligence that a participant ought to know there might be harm or danger when playing the particular sport and that the athlete therefore assumed that risk with knowledge, though to what degree of knowledge as it relates to long-term health issues remains to be proven in court.

For governing bodies worldwide and the public in general, this class action will be followed with keen interest. Regardless of the outcome, this litigation will serve as a wake-up call for those bodies to look more closely at their sporting codes. To take the appropriate steps to better protect their professional players and athletes, most of whom already have exceptionally finite careers because of the high physical nature of their chosen sport where the average age of retirement is in the early thirties. Moreover, this action will also send a deep message that it is no longer acceptable to treat head injuries as just a conventional hazard or by-product of a sporting code.

If you have a sporting issue you would like to discuss please get in touch with Michelle Igasan from Harris Tate on 07 571 3660.