Despite ACC, Organisations Still Have ‘Duty of Care’ for Player Concussions, says Law Firm

Concussion injuries in amateur and professional sporting arenas are currently highly topical. Concussion potentially appears to have been implicit in the recent death of a young player in Northland.

Sports clubs, organisations and schools must take their 'duty of care' to players seriously. Despite most injuries of this type being covered under the ACC scheme, there is potential for claims to fall outside the ACC umbrella in situations where exemplary damages could be claimed in the case of gross breaches of care.

That is the warning given by national law firm DLA Phillips Fox’s health law team.

“There is a potential for serious legal consequences if sports organisations do not manage concussion well and fail to exercise duties of care properly,” says Partner Marie Evans of DLA Phillips Fox. “While we in New Zealand are unlikely to see the same type of litigation as in the USA because of our ACC scheme, there is still potential for claimants to seek exemplary damages in cases where there has been a gross breach of the duty of care by anyone running the sporting event or team.”

Exemplary damages are referred to on the ACC website. http://www.acc.co.nz/about-acc/glossary-of-acc-terms/PRD_CTRB103826 They are not damages awarded to compensate the injured person, but are awarded to deter the person or organisation causing the injury from repeating the same behaviour.

“We consider that the potential for this type of claim is increasing for concussion injuries in particular, partly because the local and international environment surrounding these types of injuries is changing so quickly,’ says Ms Evans. Last year there were 1,773 rugby-related ACC claims lodged with the primary diagnosis being that of concussion or brain injury. This represents a 17% increase from 1,503 such claims in 2011.

In reference to the changing environment, Ms Evans points to national and international initiatives which are focused around concussion management in sports.

“The NZRU and ACC have jointly developed a Rugby Smart programme, which has had a clear focus on concussion management,” she says. “For example, all rugby coaches of grades over Under 13 level must attend a RugbySmart Injury prevention presentation at the beginning of every season and coaches of players aged 12 years and under are required to attend a coaching course".

“In Northland the NZRU is trialling a ‘blue card’ system which allows a referee to produce a blue card if the player displays concussion symptoms requiring the player to leave the field. The union then tracks the player, and that player must have clearance from a doctor, paid for by the union, before he or she can return to the field.

“These initiatives are starting to point the way to the fact that sports organisations, schools, teams and administrators must do everything they can to ensure concussed players are diagnosed, and do not return to the field without the appropriate stand-down period and a thorough medical assessment. If your organisation is not exercising this sort of care, it may be at risk.”

Ms Evans says that in the USA legislation has been introduced into Congress to force school districts to adopt concussion management plans. These plans educate students, parents and school personnel about concussion recognition, response and prevention. “The Protecting Student Athletes from Concussions Act, if passed, would include the establishment of a concussion safety and management plan, it would mandate education for athletes, parents, and school personnel about the nature of concussion and best practices to ensure uniform safety standards, treatment and management. It would also require that a student who sustains a concussion be removed from play and prohibited from returning to athletic or academic activities until he or she receives written release from a health care professional" she says.

In the USA, sports players have brought law suits for damages in traumatic brain injuries sustained in sports. This litigation has been against professional leagues, amateur leagues, sporting equipment manufacturers and high schools. “This includes more than 4,500 former NFL players (and their families) who are suing the National Football League. They reached a provisional settlement with the NFL for US$765 million,” she says. “What’s interesting for NZ is that the allegations included breaches of the NFL’s duty of care for failing to protect the players on the field, educate them and their trainers, physicians and coaches about concussion injuries. They also claimed a failure to design rules to eliminate the risk of concussion during games and practices, and failure to create strict guidelines on returning to play following concussion injuries.”

“Because of ACC, New Zealand’s legal environment is different from that in the USA. However, our sporting bodies and schools would be wise to treat the overseas litigation as a reminder to ensure they are doing all they can in terms of administrative, medical and educative practices. They still have a duty of care to players,” she says.

Ms Evans is an expert in health law, public liability and dispute resolution.

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