Warning to properly manage concussion

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A leading expert in health law and public liability has warned sports organisations face serious legal consequences if they fail to properly manage concussion.

Over the past couple of years the management of concussion has emerged as one of the key challenges facing contact sports after research linking concussion to severe long-term health issues.

This has led to a flurry of lawsuits in the United States with athletes seeking damages for traumatic brain injuries in sports. As well as the high- profile class action case involving more than 4500 former NFL players (and their families) against the National Football League, there has also been litigation against other professional and amateur leagues, sporting equipment manufacturers and high schools.

While the legal environment here is much different to the US, Marie Evans, a partner at high-profile law firm DLA Phillips Fox, said there is still the potential for serious legal consequences if sports organisations do not manage concussion well and fail in their duty of care. She said sports bodies, clubs and schools cannot simply hide behind the 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," said Evans.

"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."

Evans believes the potential for this type of claim is increasing for concussion injuries in particular because of the increased awareness of the long-term health risks if symptoms are ignored and the international attention these types of injuries has attracted.

Exemplary damages are not awarded for the purpose of compensating the injured person, but rather as a punitive measure if a person or organisation is found to have been negligent. There is no ceiling on the costs that can be awarded as exemplary damages, but in previous cases they have not been big dollar amounts.

However, Evans said the bigger the organisation, the greater the potential for costly litigation.

Evans points to some of the work being done in rugby at national and regional level and the blue card system being trialled in Northland as a good example of what organisations must do to ensure they are taking the well-being of their athletes seriously.

"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," she said.

"If your organisation is not exercising this sort of care, it may be at risk."

Last year there were 1773 rugby-related ACC claims lodged with the primary diagnosis being that of concussion or brain injury, representing a 17 per cent increase from 2011.