NSW NRL potential liability for concussion

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Daniel Turbo

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16 July 2021
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So I'm a massive NRL fan (go the Knights!), and for that reason and also the fact that I am a law student who last year did negligence law as part of my torts course, I'm taking quite an interest in the current debate around concussion. Part of that debate concerns the potential liability of the NRL if a player suffers from the long term effects of concussion as a result of playing the sport.

A number of players have gone down that avenue already, and some cases are still ongoing, so without commenting specifically on any case, my question is on the legal question that arises around it. The cases that have been run, have been run on negligence law.

Section 5L of the Civil Liability Act 2002 (NSW) would seem on my understanding to exclude liability at least for injuries suffered on the field based on the definitions contained in section 5K of:

"dangerous recreation activity: means a recreational activity that involves a significant risk of physical harm" and;

"obvious risk: is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable." and;

"recreational activity" includes-- (a) any sport (whether or not the sport is an organised activity), and
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure."

Section 5L says:

"(1) A person ("the defendant") is not liable in negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk."

A number of horse racing cases (Goode v Angland [2017]*, Singh bhnf Ambu Kanwar v Lynch [2020]*) have held that professional sport falls under that dangerous recreational activity definition, the asterisk being that both those cases were decided by the NSWCA and did not proceed to the High Court. Rugby League as a contact, physical sport would almost certainly fit the definition of a dangerous recreational activity. So my question is two-fold:

1. If liability is indeed excluded for the initial concussion injury on the field, would mismanagement of the injury by the medical staff after the fact attract liability? and;
2. What is the legal position in other states (Qld and Victoria specifically)?
 

Rod

Lawyer
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27 May 2014
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Look at the Wrongs Act 1958 in Victoria.