The judge who declined the ACC appeal of former All Black Geoff Old, has left the door open for future claims, saying in his judgment that it was "not the end of the matter".
Old played 17 matches for the All Blacks between 1980 and 1983 and now believes he is living with chronic traumatic encephalopathy (CTE) as a result of "untreated head knocks and no recovery".
His claim for cover for injuries received while playing rugby between 1972 and 1985 was turned down by the ACC in December 2017, but he appealed the decision, which was heard by Judge Chris McGuire in October.
Old's case has been described as "complex", with medical opinions on his condition diverging and with definitive diagnosis of CTE in the living still not possible, Judge McGuire ruled: "I must conclude on the evidence available at this point that the threshold of proving that Mr Old has chronic traumatic encephalopathy has, on the balance of probabilities, not been proven."
However, the judge also pointed to where cases of these types are headed, saying: "The fact that I have not been able to conclude that chronic traumatic encephalopathy is proven in this case is not the end of the matter."
The judge concluded by saying "it may well be that a medical assessment of brain injury of some kind, be it post-concussion syndrome or CTE or some other condition causally connected to concussive blows to the head can be established. While the focus of this appeal has been on CTE, I note that post-concussion syndrome and other possible diagnoses are included in the appellant's claim … These merit fuller investigation by ACC".
Irene Gottlieb-Old, Geoff's wife, said the process had been gruelling and she was unhappy at some of the medical evidence presented on behalf of the ACC. She noted that brain injuries were held to a higher evidential threshold than others.
Although it might not help her husband's case, she also took heart in the judge noting that there could be no prejudice because of the late claim – the Olds claim was made in 2016, 21 years after his playing career ended.
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"He noted the symptoms might appear much later and used the example of asbestos," she said.
The Herald yesterday reported that a lawsuit was being prepared in the United Kingdom that could involve up to 70 ex-rugby players affected by cognitive dysfunction in their post-playing days.
"From what I understand, it's a pretty ever-growing list of [players]. I think it's going to be something quite substantial that's going to come from it," said Carl Hayman, the 45-test All Black prop, who was contacted by lawyers but declined to take the tests.
It is expected the lawsuit will seek damages for players and argue that rugby authorities have known about and underplayed the potentially seriousness of repetitive head injuries.