Details of the negligence being alleged by James McManus against his National Rugby League (NRL) club, the Newcastle Knights, are beginning to emerge. Allistar Twigg, Lawyer with SHG Sports, discusses this ground breaking case as the allegations unfold.
McManus apparently says that, in relation to a number of concussions he suffered, the club was negligent in:

  • allowing him to keep playing,
  • encouraging him to continue playing,
  • not keeping him away from the game for longer periods between concussions, and
  • having unqualified people making on-field decisions over whether or not he should be brought to the sideline after a head knock.

In the court documents, he apparently provides a number of examples which he says go to show that his employer was negligent. These appear to include:

  • being returned to the field after suffering a ‘suspected broken nose’ and playing for a further 68 minutes of that game,
  • allegedly being told to play on in a semi-final after receiving a blow to the head, and
  • allegedly not being kept out of the game for a sufficient period after receiving a head knock in training.

McManus’s case will succeed or fail on its own facts. But many difficulties attend the diagnosis and treatment of concussion, and that can cause great difficulty for all involved, from the NRL to the clubs, to doctors and trainers, to players and their loved ones.

NRL Guidelines

The NRL’s Guidelines ‘The Management of Concussion in Rugby League’ spell out certain responsibilities of those involved in diagnosis and treatment. In the first instance, ‘any player who is suspected of having a concussion must be removed from the game and be assessed by the first aider’ using the Concussion Recognition Tool (CRT).
The Guidelines say ‘ALL players with concussion or a suspected concussion need an URGENT medical assessment by a medical practitioner. This can be done by a doctor present at the venue (if available)’. Sometimes it is obvious that the player has suffered a concussion, sometimes it is not. But the guideline’s wording, notwithstanding its use of ‘URGENT’, seems to give initial assessors (trainers) some wriggle-room where it’s not a clear-cut concussion.

The Difficulty of Assessment

Whilst the language used is suggestive of certainty (‘A player who has suffered a concussion must not be allowed to return to play in the same game’), diagnosing concussion is bedevilled by imprecision and uncertainty. And as Roy Masters has said, certain of the concussion tests can be manipulated by a player and often the least co-operative person in the whole process may be the player. Other than in cases where a concussion or other serious head injury is blindingly obvious (such as loss of consciousness, seizure or convulsion, severe headache, etc), there are really no genuinely ‘objective’ tests which can help provide a diagnosis in a short period of time. To provide the necessary protection for clubs and players, I would suggest that the protocols really need to provide that where there is any genuine suspicion on the part of a properly trained first-instance assessor (usually a trainer) that a player has a concussion, the player must be completely removed from the match and referred for proper medical assessment.
It’s not clear what McManus is referring to by his allegation regarding ‘unqualified’ people making the on-field decisions — NRL games usually have qualified trainers attending the players on-field and doctors are usually available to come on the field and make the call if necessary. If he is saying that trainers should not be involved at all in potential concussion decisions and that the doctor should always do it, given the difficulties attending diagnosis of concussion, a court may well agree with him.
Genuine diagnosis and proper treatment of concussion require all assessors to exercise their skills and best efforts in the objective interests of the player alone. Given the diagnostic difficulties, where an assessor doesn’t do this or where there may be some other apparently ‘important’ reason (e.g., it’s a semi-final), an assessor may potentially err on the wrong side and allow a player to return to the ground.
Where assessors do not exercise all their skill and best efforts in the sole interests of the player’s welfare, that could well constitute negligence on the part of the club who employs the assessor.
As to player management and returning to the game after suffering concussion, the same concerns apply. The same imperfections in the process of diagnosis affect the ongoing treatment and management of the player. Treating doctors remain reliant on subjective observations and self-reporting, which can mask the realities and/or give rise to uncertainty. Managing medical officers also need to err on the side of caution when giving any clearance.
The Guidelines are clear: ‘The assessor should not be swayed by the opinion of the player, coaching staff or anyone else suggesting premature return to play.’
If anyone at a club allows or encourages a player to keep playing, or gives him a green light to return to play before he is truly ready, especially if it is in breach of the concussion guidelines, a claim for negligence against a club may well succeed.

How can SHG Sports help you?

In a situation where your sports club is challenged by a dispute, we can provide effective legal advice. If you have any questions about sports law, please contact Allistar on (02) 6285 8000 or by email to discuss. You can find out more about the services we provide here.

Image Credit: James McManus, 2009