Concussion, Chronic Traumatic Encephalopathy and Sport in a Legal Setting

Abstract

This article highlights aspects of the medical condition Chronic Traumatic Encephalopathy (CTE) relevant to legal claims in negligence threatened by players of collision and contact sports in Australia against their sporting organisations. CTE is characterised by cognitive dysfunction, irritability, aggression, depression, short-term memory loss, heightened suicidality and ultimately death, which may, in advanced forms, be preceded by dementia and parkinsonism. It is neither the purpose nor intention of this article to consider each element of a negligence claim, but rather to provide a means to understand the foundational and factual basis for such a claim within a legal context. For the litigant the medical literature is foundational to establishing a legal connection between the playing of contact sport and cognitive dysfunction. As the High Court of Australia quoted with approval of a claim of negligent "failure to inform": "the non-disclosed risk must manifest itself into actual injury in order for a plaintiff to establish proximate causation".

Keywords: Chronic Traumatic Encephalopathy; concussion; liability of sports organisations; negligence.