NZ Rugby could be prosecuted: expert
Sporting entities such as New Zealand Rugby could be charged by WorkSafe and face claims of ‘‘exemplary damages’’ in coming years if the medical evidence linking concussion and dementia develops and rugby doesn’t act, a legal expert has told Stuff.
Dr Simon Connell, an expert in contract law and in compensation in the Faculty of Law at the University of Otago, said while the ACC ‘nofault’ system worked as ‘‘a shield’’ for NZ Rugby and organisation in terms of financial claims, WorkSafe had recently shown its appetite to bring criminal charges against organisations ‘‘in some cases’’.
‘‘If the scientific and medical evidence continues to accumulate to draw links between head injuries, contact sport and dementia and no changes are made, that increases the risk of a prosecution,’’ Connell said.
‘‘WorkSafe, in their response to the Whakaari/White Island disaster, is bringing charges against GNS Science and the National Emergency Management Agency, so it suggests that at least in some cases WorkSafe is prepared to look beyond the direct worker, employer, worker, workplace manager relationship if they think there is somebody out there who ought to have being doing more to ensure health and safety but hasn’t been.’’
Such amove would be an enormous step, Dr Connell acknowledged, but even the fact that it is considered a possibility shows rugby’s troubled relationshipwith concussion, head knocks and the long-term implications.
As news emerged thisweek of pending legal action by former test players Steve Thompson, Michael Lipman and Alix Popham, among others, against World Rugby, the Rugby Football Union and the Welsh Rugby Union, there was sadness but not surprise.
Dr Connell said the UK cases faced several significant barriers to success.
‘‘When you are talking about a suggestion that somebody has had things happen to them some time ago and a series of things have consequences years or decades later, there can be difficulties when you are talking about a legal claim of meeting the required standard of proof,’’ he said.
‘‘In the context of a negligence claim, one of the issues might also be that if you’re looking at a fault based assessment, one of the questions might be, ‘was the employer acting reasonably based on the information they had at the time?’
‘‘There’s also the question of multiple causation. Maybe somebody, as well as having head injuries as a rugby player, has other physiological characteristics that make them more pre-disposed to develop dementia.
‘‘As I understand it, the current medical understanding is that concussion and head injuries increase the risk of dementia, but there might be other contributing factors.’’
Nonetheless, the cases have put the entire game’s handling of the issue under the spotlight – and where the culpability might lie.
Dr Connell said that from a New Zealand perspective, the importance of the UK cases would be in the evidence they presented in making the connection between dementia and head knocks. If that is proved to be probable, it could be a gamechanger for those suffering with similar diseases here.
In the first instance, it would open the door to successful ACC claims, but Dr Connell also said that individuals could also pursue sporting entities in separate actions.
‘‘It is possible for someone to try and bring a private prosecution under workplace health and safety law, and if there is a Health and Safety at Work Act prosecution then sometimes the person can get reparations over and above under what they would get under the accident compensation scheme.’’
NZ Rugby has not stood still when it comes to concussion, rolling out several initiatives to increase awareness and improve player welfare. ‘‘I don’t want to get into the details around liability,’’ NZ Rugby CEO Mark Robinson said on Thursday. ‘‘We’re focused largely on a preventative strategy at the moment, and have been for a long, long time.
‘‘We ran a Super Rugby indiction last week, for instance, to make sure we pay full attention in terms of player welfare in forums like that.
‘‘We conduct testing at the beginning of every season for our players, in terms of benchmarking in the eventuality they do suffer a knock.’’
But Dr Connell said those initiatives in themselves did not give NZ Rugby blanket protection from any future prosecution.
‘‘As long as they are keeping up with the medical understanding,’’ Dr Connell said of NZ Rugby’s approach. ‘‘And also as long as they are not being too conservative the measures they consider.
‘‘In 5-10 years’ time it might be that the prevailing view is that after a certain number of head injuries people shouldn’t play professionally at all any more.
‘‘It might be calling time on players who had a number of head injuries might become an accepted thing, but we just have to see how the medical evidence develops.
‘‘A reluctance to act early in those sorts of things might cause problems for entities like NZ Rugby.’’
The frightening reality for rugby in New Zealand is that worrying head injuries have simply become part of the game.
The three most recent All Blacks captains – Sam Cane, Kieran Read and Richie McCaw – have all spent time on the sidelines recovering from multiple head knocks, while the likes of Ben Smith and Ryan Crotty have also had their issues with concussion.
Earlier this year, Auckland No 10 Simon Hickey was knocked senseless by Otago midfielder Sio Tomkinson – not his first high contact – and Tomkinson was only banned for six games, a relatively light sentence given the severity of the offence.
Dr Connell said the 2011 rule that allows players to return seven days after suffering a concussion could also be problematic, raising the possibility that rugby will have to change course to simply survive.
‘‘It’s a real challenge for the sporting authorities, because players want to play and fans want to see players playing,’’ he said.
‘‘They may need to take some unpopular steps for the long-term health of the players, and ultimately of the sport.’’