A study into the liability in the tort of negligence of the governing bodies of Australian contact sport for failing to warn their athletes of the risk of the brain disorder chronic traumatic encephalopathy (CTE) prior to CTE being declared an ‘obvious risk’ of contact sport

Abstract

This thesis considers the question of the liability in negligence of the governing bodies of major contact sport in Australia in failing to take reasonable steps to inform themselves of the risk of the debilitating brain disorder chronic traumatic encephalopathy (CTE), to warn their premier-level athletes of that risk. The thesis concentrates on the years and decades prior to 2010, a year when it is roughly estimated that CTE will have become an ‘obvious risk’ of contact sport at premier level for purposes of state civil liability legislation and common law. As argued, from 2010 forward those who play contact sport will be deemed in law to have volunteered to accept the risk of CTE. Athletes who played premier-level contact sport in the decades prior to 2010, ex-players now in their 40s, 50s, 60s and 70s, are those who almost exclusively, at the time of writing this thesis, claim to be suffering the symptoms of CTE.

CTE is caused by repetitive concussive and sub-concussive head trauma experienced over a period of years playing contact sport. As trauma to the head accumulates, a point is reached where a protein, tau, is released from neurones of the brain to form phosphorated tau, that clumps around small blood vessels and cells disrupting normal cognitive function. Over time, the condition spreads throughout the brain causing a sufferer to experience increasingly severe symptoms such as poor concentration, headaches, short-term memory loss, suicidality, aggression, explosivity, dementia and parkinsonism. There is no known cure, and sufferers ultimately die of, or with, the disease.

The fundamental question explored by the thesis is: At a time when a premier-level athlete was exposed to the risk of CTE, did his or her sport governing body (SGB) know, or should it have known, of the link between RHT in playing contact sport and CTE and taken reasonable steps to ameliorate the risk of harm by warning its premier players of that risk?