Hard Impact: US NFL Concussion Injury Litigation – Implications For Australian Claims

To what extent are governing bodies of contact sports and clubs liable to former players for brain injury? The United States has seen several cases on this issue, including class actions involving USD 1 billion settlements. Will this type of litigation make its way to Australia?

More than a decade ago, pathologist Dr Bennett Omalu performed an autopsy on American National Football League (NFL) player, Mike Webster. The autopsy led to the discovery of Chronic Traumatic Encephalopathy (CTE).

CTE is a progressive degenerative disease of the brain found in people with a history of repetitive brain trauma. The repeated brain trauma triggers progressive degeneration of the brain tissue. Common symptoms include memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, suicidality, Parkinsonism, and eventually progressive dementia. These symptoms often begin years, or even decades after the last brain trauma. Presently, CTE can only be detected post-mortem.

The disease and its causes have recently gained global interest. Of the 91 former NFL players that donated their brains for post mortem laboratory testing, 87 tested positive to CTE.

In the US, the NFL has been involved in litigation with up to 5000 players in what is known as the NFL Concussion Injury Litigation. Allegations include that the NFL knew by the early 1990s of the effects of multiple brain trauma, it failed to warn players of those effects and breached its duty of care. It is also alleged that the NFL fraudulently concealed the risks of multiple brain trauma and had mythologised and glorified the players and injury causing "hits" through film and media.

On 22 April 2015, the US District Court for the Eastern District of Pennsylvania approved a settlement that will see nearly USD 1 billion paid to former players who retired prior to July 2014 and now suffer from various brain injuries. This finding is currently being appealed by a number of players who say the award does not adequately compensate the effects of CTE.

Unsurprisingly, the NFL is not the only sporting body defending Concussion Injury Litigation. Proceedings have been commenced on similar grounds by former players against the National Hockey League and National Collegiate Athletic Association.

Although the scale of litigation is far smaller, Australian courts have had to consider concussion related claims brought against a sporting body.

For example, in Agar v Hyde (2000) 201 CLR 552...