Concussion gets a lot of airtime during the football season — and deservedly so. This is a critical issue, not only for the sporting fraternity but for the claims landscape as well. It is also a vexed and nuanced area, with concussion claims so far largely settled behind closed doors and an unsuccessful move to bring a class action in Australia.

The media is replete with tragic stories of former players who have allegedly suffered a brain injury due to head knocks and concussion incurred while engaged in contact sports such as Australian Rules football (AFL), rugby and soccer. 

Of particular concern is chronic traumatic encephalopathy (CTE), a degenerative neurological disease that may be associated with a history of repeated traumatic brain injuries, including concussions and blows to the head. 

Proving medical causation

From an insurance perspective, one of the issues preventing more claims from going ahead right now is medical causation. 

Currently, there is no way of diagnosing CTE without a post-mortem. Technology is being developed that would allow the condition to be diagnosed while the patient is still alive, but we’re not there yet.
Additionally, as the Australian Institute of Sport states, ‘there is no reliable evidence clearly linking sport-related concussion with CTE’.

William Robinson, a partner and insurance law specialist at Wotton + Kearney, believes the next five years will be key. ‘But for the present time, it is simply a case of insurers being prepared but not alarmed.’  

Robinson notes there have been several total and permanent disability claims submitted for career-ending injuries. ‘However, from a common-law perspective, the one or two early claims we have seen are from ex-professional athletes who have retired and sustained concussions during their historical playing days, and [they] maintain these were mismanaged by their respective clubs,’ he says. 

‘Insurers have not yet seen an influx of concussion claims — which, again, we suspect is due to the considerable difficulties faced by potential concussion plaintiffs in overcoming causation, state of knowledge and statutory defence thresholds to successfully bring a claim in Australia. We may see some speculative claims brought in the future, but for now it is again a case of “watch this space”.’

Which policies would respond?

Aside from causation, there are many other challenges to be negotiated when it comes to the insurance minefield around concussion in sport.

The legacy factor is a major added complication. ‘Insurers will see claims, but probably very old claims rather than newer ones,’ says Richard Johnson, a principal at McCabe Curwood. ‘Everyone is aware of this issue now. So, whether a player at any level that develops long-term brain trauma is going to be able to succeed in a claim alleging concussion-related injuries in sport is going to depend on the specific circumstances of their case.’ 

Another issue is clubs’ ownership structure, especially when the club has changed hands and the former entity that players represented no longer exists. If the club no longer exists, how can it be sued? 

This is a particular issue for Australia’s National Rugby League (NRL), where clubs are often privately owned, rather than for the AFL, where all clubs are longstanding entities and public companies limited by guarantee. 

Exploring the labyrinth  

Despite all these nuances, risks around concussion in sport are now much better understood, prompting insurers to change their approach.   

Johnson says there will be insurance books that have been closed off years ago because no-one thought this would be an issue.

‘This may cause conjecture about limitation periods given how long it could take for alleged injuries to manifest. The extent to which sports and their brokers have maintained records will also be critical, because it is possible that a number of underwriters could have provided cover to a specific sport over an extended playing career.’

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