Concussion lawsuits on the rise
In Australia around 3,000 people are hospitalised with a sports-related concussion each year. Between 2011–12 and 2018–19 there was an 89 per cent increase in concussions in local football compared with a 29 per cent increase in injuries overall.
According to the Australian Institute of Sport, there is an increased importance of diagnosing and managing concussions promptly, safely and appropriately as short and long-term effects are better understood.
Concussion lawsuits are on the rise. Last year, nine rugby union players diagnosed with long-term brain injuries joined a concussion lawsuit against World Rugby, the Rugby Football Union and the Welsh Rugby Union.
This article sets out how your sports organisation will be assessed for liability in the event of a concussion, and your duty of care responsibilities that will help keep players safe.
Concussion is a traumatic brain injury caused by a bump, blow or jolt to the head. Most concussion injuries resolve on their own within two weeks, however there can be associated complications that should not be overlooked. Concussion is common in contact sports and where falls can occur.
Signs and symptoms of concussion in sport can be non-specific and subtle. Any knock to the head should be treated as a suspected concussion.
The Sport Concussion Assessment Tool helps organisations to assess concussion with 22 possible symptoms.
Concussion and post-concussion effects
Both concussion and post-concussion effects vary. They may include headaches, balance problems, light and noise sensitivities. Post-concussion effects can also include anxiety and depression.
Persistent post-concussion symptoms affect around ten per cent of people who have experienced a concussion.
A growing body of evidence shows that concussion can accelerate aging of the biological brain by as much as three decades and has been linked to neurodegenerative diseases, including chronic traumatic encephalopathy (CTE).
How your club’s concussion liability is assessed
If your club finds itself in court, your policies and implementation of these policies will be assessed for negligence. If negligence is found, it will need to be proven that that negligence caused the injuries.
It needs to be proven that the risk of injury was foreseeable at that time. Following the 4th International Conference on Concussion in Sport held in Zurich in 2012, there is enough evidence to show the impacts of concussion. This means your club must recognise the risk associated with concussion and ensure you take every precaution to mitigate it.
How sports organisations can manage their duty of care for concussion
Sports organisations are obligated under legislation, including the Work, Health and Safety Act 2011, to ensure no participant is put at risk from sports activities so far as reasonably practicable.
Here are some of the ways your club can ensure its duty of care in concussion management:
Policies and procedures
Develop, review, and update policies and procedures to manage concussion risks and hazards. Your concussion management policy should include removing players with suspected concussion from play for medical assessment. Adults should not return to play that same day. Children and youth with concussion should be excluded for 14 days. Concussed players should only return with medical clearance.
Clear communication of these policies is important alongside documented concussion awareness education. By educating all stakeholders in your club, including players and parents, on concussion and the associated issues, it provides the opportunity for players and parents to provide informed consent to participating in a contact sport where concussion is a risk.
Be proactive in the implementation of your concussion policy. Sports bodies are ensuring concussion policies are followed at a local level. In 2017 the NRL issued three fines to local clubs totaling more than $350,000 AUD for breaches of the NRL’s concussion management policies.
If you are unsure of whether a player has sustained a concussion, follow the principle ‘If in doubt, sit it out.’
Rule changes and personal protective equipment (PPE)
Keep up to date with rule changes from sports bodies and ensure you implement and consult with your club community on these changes. Rugby Union lowered the legal tackle height worldwide in 2019. Reports show this led to a 28 per cent drop in concussions.
Consider the supply of appropriate PPE or ensure your policies show players must play with PPE such as mouthguards or headgear. While there is no current evidence that such equipment protects against concussion, it’s important to implement every safeguard opportunity.
Develop first aid and emergency plans for head injuries
Ensure you have the appropriate first aid and emergency plans documented. On-site ensure there’s relevant first aid equipment in sufficient amounts, alongside first–aiders trained in concussion recognition and management.
If a concussion or suspected concussion occurs, document the event in detail and safely store it for possible future reference.
Some sports organisations stop at public liability, but at PTW we prefer to err on the side of caution. When it comes to insuring your sports organisation we encourage you to consider have a trusted legal adviser review your suite of policies to make sure it matches the requirements of all stakeholders now and in the future.
Any decision that affects your business has legal implications. Contact us today to help secure your business for whatever tomorrow brings.