A second concussion class action has been commenced.

[Demonic Ascent]

I am sure they do. There may be complaints about adequacy etc but it seems a significant focus of the AFLPA for some time

It also seems intuitively obvious why athletes have not previously been eligible for work cover. I would think the better solution would be for each sport to institute an insurance regime (or fund that effectively operates like one).

The challenge would still be, in cases like this, attributing the cause

Don't know if it is still the case but in the US many wrestlers had insurance payouts (from Lloyd's of London) due to suffering injury and no longer being able to wrestle. I wonder if similar insurance is still available and could be built in to player contracts?

 

[The Educator]

Don't know if it is still the case but in the US many wrestlers had insurance payouts (from Lloyd's of London) due to suffering injury and no longer being able to wrestle. I wonder if similar insurance is still available and could be built in to player contracts?

I would think it would be done at the collective level...i.e. it would presumably be the AFL paying into a fund on behalf of all players.

I am not sure of the basis of Shaun Smiths insurance that he got a pay out through but I suspect AFL players would have (and had) avenues to purchase their own income protection and incapacitation type insurance

 

[Slartibartfast]

But were they aware of the long term damage at the time? If not, exactly how are they responsible? Protocols were brought in once the science caught up.

This is what they will have to demonstrate to the court.
The AFL have been slow to react to this issue ,even last week they were accused of being focussed on the fiscal responsibility aspect more so than the damage to players in the Senate concussion inquiry.

AFL, NRL accused of being 'more concerned with legal liability than player health' at concussion inquiry

Concussion guidelines in both professional and amateur sport are among the topics being examined by a Senate inquiry.

www.abc.net.au

CEO of the newly formed charity Concussion Australia, Brendan Swan, told a hearing in Brisbane that the group had reached out to the AFL and NRL to discuss concussions protocols, but had not heard back.
"They're more concerned with the legal liability as opposed to the player health," he said.
University of Queensland paediatric neurologist Professor Karen Barlow said sporting codes were "definitely taking concussion much more seriously than ever before", but believed Australia was still behind the level of understanding in North America.


I am unsure of when studies showing the effects of concussion become common knowledge in the medical world but I bet there are a few law firms researching this right now.

 

[The Educator]

I'm not a lawyer but I suspect that this class action is banking on putting pain on the AFL to cough up rather than having much confidence that it would be successfully if it went to court. I think they call it a "shake down" in the lawyer shows

 

[My Tilly]

Have to say, having done a bit of video work from time to time, sorting through frame by frame full game replays, you remember certain particularities attributed to past players and Shaun Smith was someone who appeared to be in the hands of trainers a bit more often than others. Not all the opposition wrong doing either.
Shaun had an insane vertical leap. He would literally get so high above the pack that he occasionally slammed his head on turf when landing. Was only a slender built guy.

 

[Slartibartfast]

CTE ( Chronic Traumatic Encephalopathy) was first identified in 1928 but the first evidence was demonstrated only in 2005. It can only be identified in an individual after death via an autopsy.
This links gives a brief history and insight .
I dont believe this means that the AFL only have a responsibility from 2005 onwards.
Like asbestos , it was not known about its harm but the companies where workers and families were harmed were still held liable For damage caused from the get go.
Think it only has to be shown that they have injury and that it was caused as a consequence of playing football For a successful claim .
How they demonstrate a concussion injury in lieu of a CTE diagnosis I don’t know .

What is CTE? | Concussion Legacy Foundation

CTE is a progressive degenerative disease of the brain commonly found in people with a history of repetitive brain trauma. Click to read more.

concussionfoundation.org

 

[Gough]

This is what they will have to demonstrate to the court.
The AFL have been slow to react to this issue ,even last week they were accused of being focussed on the fiscal responsibility aspect more so than the damage to players in the Senate concussion inquiry.

AFL, NRL accused of being 'more concerned with legal liability than player health' at concussion inquiry

Concussion guidelines in both professional and amateur sport are among the topics being examined by a Senate inquiry.

www.abc.net.au

CEO of the newly formed charity Concussion Australia, Brendan Swan, told a hearing in Brisbane that the group had reached out to the AFL and NRL to discuss concussions protocols, but had not heard back.
"They're more concerned with the legal liability as opposed to the player health," he said.
University of Queensland paediatric neurologist Professor Karen Barlow said sporting codes were "definitely taking concussion much more seriously than ever before", but believed Australia was still behind the level of understanding in North America.


I am unsure of when studies showing the effects of concussion become common knowledge in the medical world but I bet there are a few law firms researching this right now.

It's always been about PR. HIV was a convenient excuse to introduce the blood rule despite the chance of blood borne infection via a wound like that being next to non existent. It did stop players running round with blood all over their faces though which wasn't going down all that well the parent's of potential players.

 

[Power Raid]

Yes, I was well aware of "criminal negligence" being in place and that directors (and anyone really) can go to jail under WHS law for an egregious failure of safety duty particularly where it leads to death.

I am also aware, unlike you, that there is zero chance of this occurring here

really? zero chance of that? I thought this is exactly what is happening and thus the thread regarding legal action about serious injury


The Crimes (Workplace Deaths and Serious Injuries) Bill is one of the more controversial pieces of legislation to be introduced into the Victorian Parliament during the Bracks’ Government’s first term. The Bill incorporates a package of amendments to the Crimes Act 1958; Dangerous Goods Act 1985; Equipment (Public Safety) Act 1994; Occupational Health and Safety Act 1985 1 ; Magistrates’ Court Act 1989 and Accident Compensation Act 1985. If this Bill is passed, it will place an added requirement on businesses to ensure the safety and health of their employees at work with greater accountability for senior officers including directors. The Bill assesses the conduct of a corporation by reference to what a ‘reasonable corporation in such circumstances’ would have done. Consequently the offences are constructed so as to ensure that the liability of a corporation is direct rather than vicarious, a more appropriate basis for determining liability for serious criminal offences.

The most substantive amendments proposed by the Bill apply to the Crimes Act. The Bill introduces four new offences under the Crimes Act, namely, ‘corporate manslaughter’ and ‘negligently causing serious injury’ and seeks to impose criminal liability on bodies corporate and senior officers. The offences carry significant penalties for the bodies corporate and potential imprisonment for senior officers. The Bill also amends the workplace safety legislation by increasing the maximum penalties for workplace safety offences and disallowing corporations from claiming privilege against self-incrimination.

The new law is expected to come into operation in Victoria in or about mid 2002. Workplace deaths occurring after that date and involving criminal negligence by employees, agents or senior officers, will result in manslaughter prosecutions.

 

[_Mike_]

wait until directors start serving jail time

interesting journey ahead

I dont recall anyone dying from an onfield incident due to negligence, so noone will be going to jail until an AFL employee is charged and found guilty of industrial manslaughter

 

[Power Raid]

I dont recall anyone dying from an onfield incident due to negligence, so noone will be going to jail until an AFL employee is charged and found guilty of industrial manslaughter

what about serious injury?

 

[_Mike_]

The most substantive amendments proposed by the Bill apply to the Crimes Act. The Bill introduces four new offences under the Crimes Act, namely, ‘corporate manslaughter’ and ‘negligently causing serious injury’ and seeks to impose criminal liability on bodies corporate and senior officers.

The offences carry significant penalties for the bodies corporate and potential imprisonment for senior officers. The Bill also amends the workplace safety legislation by increasing the maximum penalties for workplace safety offences and disallowing corporations from claiming privilege against self-incrimination.

You appear to be drawing a long bow on the matter of criminal action against an employee of the AFL in this case. The AFL is a corporation and individuals are protected from civil/criminal prosecution, on the basis the AFL is a separate legal entity, with the capacity of a human. The PL would need to demonstrate that that particular person acted outside the scope of their employment and skills. Read up on the "corporate veil"

A club doctor is more likely the target on the basis that the doctor, with their knowledge & skill, should have a reasonable expectation of potential further harm to a player taking back to the field after suffering a blow to the head. However, unless that club doctor was going against the medical advice of peers and medical test evidence, then the player goes back on knowing that a repeated knock to the head could provide further harm.
Then the argument is, if the player takes a test and demonstrates a cognitive ability to continue playing safely they also bear a contributory negligence in further damage suffered.

Each case will need to be assessed on its own merit, a determination of whether or not a duty of care was breached and as a result of that breach the player further suffered injury. This is not a simple black and white matter

 

[_Mike_]

what about serious injury?

read my follow up post, while not purposely trying to nitpick @ your comments, establishing negligence and a breach of a duty of care when dealing with activities that carry an inherent risk are rarely straight forward

 

[Channels]

Plenty of issues here and emotive language used by the lawyers.

"Ms Margalit said none of the injured players her firm had spoken to had received any form of compensation for the injuries they sustained while playing Aussie Rules." - I guess the first question I'd ask which players have asked for compensation or support and been denied?


Contributing factors alcohol and/or drug use by the player while recovering from concussion.

As mentioned earlier in the thread, I think pre-2005 won't be too much an issue but injuries after that will be an issue.

 

[Power Raid]

You appear to be drawing a long bow on the matter of criminal action against an employee of the AFL in this case. The AFL is a corporation and individuals are protected from civil/criminal prosecution, on the basis the AFL is a separate legal entity, with the capacity of a human. The PL would need to demonstrate that that particular person acted outside the scope of their employment and skills. Read up on the "corporate veil"

A club doctor is more likely the target on the basis that the doctor, with their knowledge & skill, should have a reasonable expectation of potential further harm to a player taking back to the field after suffering a blow to the head. However, unless that club doctor was going against the medical advice of peers and medical test evidence, then the player goes back on knowing that a repeated knock to the head could provide further harm.
Then the argument is, if the player takes a test and demonstrates a cognitive ability to continue playing safely they also bear a contributory negligence in further damage suffered.

Each case will need to be assessed on its own merit, a determination of whether or not a duty of care was breached and as a result of that breach the player further suffered injury. This is not a simple black and white matter

what we are taught by the lawyers and insurance is a very different angle and it is about identifying risks, putting mitigation process in place and ensuring the mitigation processes are adhered to by having a monitoring system. The corporate veil doesn't come into the discussion.

what's also interesting is neither the company or the employee can get insurance on this matter as it relates to criminal prosecution rather than civil

 

[_Mike_]

The corporate veil doesn't come into the discussion.

Actually it does, when you're arguing that an employee of the AFL (which is a legal identity) should go to jail there must be evidence to support & show that they acted outside the scope of their employment.

 

[_Mike_]

what's also interesting is neither the company or the employee can get insurance on this matter as it relates to criminal prosecution rather than civil

Insurers wont insure for activities that carry a clear risk of injury/damage - nothing to do with criminal prosecution.

 

[Seedsfan]

**** me, what a bunch of ****ing sooks

 

[Kappa]

* me, what a bunch of ******* sooks

You should speak to Paul Seedsmen about how much concussion issues can ruin your life.

Permanently injuring your brain is not a great place to be for a young man.

 

[Kappa]

I think anyone who can prove they suffered a brain injury from playing AFL deserves some sort of compensation... Ideally it would be organised through the AFLPA and not the courts.

 

[The 747]

I'm not a lawyer but I suspect that this class action is banking on putting pain on the AFL to cough up rather than having much confidence that it would be successfully if it went to court. I think they call it a "shake down" in the lawyer shows

Well, they would be banking that the AFL don't want it to get to court, due to the potential for bad PR.

If the AFL has done all they could based on what they knew at the time then the AFL would be sitting pretty - but I doubt discovery would show that.

 

[Seedsfan]

You should speak to Paul Seedsmen about how much concussion issues can ruin your life.

Permanently injuring your brain is not a great place to be for a young man.

Yeah and all those who have taken so much from the game financially have their hand out wanting more it’s embarrassing.

They chose to take the risk for the money.

Also you look at all the players who would have suffered playing local footy, will they be entitled to claim?

 

[Kappa]

Yeah and all those who have taken so much from the game financially have their hand out wanting more it’s embarrassing.

They chose to take the risk for the money.

Also you look at all the players who would have suffered playing local footy, will they be entitled to claim?

I have no idea about local footy, but with AFL players there is video evidence of them playing AFL and getting hit in the head so it'd be a shitload easier to argue the issues came from footy. A guy who played local footy 20 years ago will have a tough time even proving he played.

Also this idea that all retired AFL players have made huge amounts of money from the game is ridiculous, the vast majority of players don't really make that much and get dumped out of their careers pretty quickly.

 

[Seedsfan]

I have no idea about local footy, but with AFL players there is video evidence of them playing AFL and getting hit in the head so it'd be a shitload easier to argue the issues came from footy. A guy who played local footy 20 years ago will have a tough time even proving he played.

Also this idea that all retired AFL players have made huge amounts of money from the game is ridiculous, the vast majority of players don't really make that much and get dumped out of their careers pretty quickly.

Mate there is a paper trail. You have to get a medical clearance to come back and pay. So you either accept the doctor’s diagnosis or you don’t.

 

[Kappa]

Mate there is a paper trail. You have to get a medical clearance to come back and pay. So you either accept the doctor’s diagnosis or you don’t.

I think players left with permanent injuries after playing pro sport deserve some sort of compensation, we can agree to disagree.

 

[Slartibartfast]

This does have huge implications for the game.
Helmets and contact avoidance rules could come into play and change the whole fabric of the game to ensure safety .

These changes will not be popular in the public’s eyes but will be made easier for the AFL to make the alterations if their hand is legally forced by costly lawsuits.