In an era where the dangers of repetitive head impacts are increasingly understood, to what extent should Queensland sporting organisations be legally responsible for preventing, documenting and managing concussion‑related risks?
The ABC has recently reported1 that former NTFL premiership player Trent Melville has commenced negligence proceedings in the Northern Territory Supreme Court against his club, AFLNT and the AFL following a 2022 head clash, alleging severe concussion-related injury and post‑concussion symptoms.
He alleges multiple prior concussions and sub‑concussive blows, that he had ongoing symptoms including memory issues, and contends the defendants failed to keep adequate concussion records, warn of heightened risk and prevent him from playing while symptomatic. The matter is listed for further directions in March and defences are yet to be filed.
For Queensland practitioners, the pleaded themes are familiar: system-level management of concussion risk, information flow between governing bodies and clubs, and whether ‘reasonable’ precautions were taken in light of what was known (or should have been known) about cumulative brain injury risks.
Queensland’s legal framework
In Queensland, sports concussion claims typically proceed in negligence and are shaped by the Civil Liability Act 2003 (QLD) (CLA)2 and the Personal Injuries Proceedings Act 2002 (QLD) (PIPA)3.
The CLA codifies principles relevant to breach, causation, assumption of risk (including obvious risk and inherent risk), dangerous recreational activities, contributory negligence and the assessment of personal injury damages. PIPA imposes mandatory pre‑court procedures for most personal injury claims not covered by other statutory regimes.
Duty of care in sport: clubs, leagues and governing bodies
Duty analysis in sports cases tends to focus on control, reliance and practical capacity to reduce risk. Clubs commonly control training and match-day processes, appoint coaches and medical/first aid staff, and implement return-to-play procedures. Leagues and governing bodies may control competition conditions, implement rules and protocols and require compliance as a condition of participation.
In concussion litigation, the duty question increasingly turns on whether an organisation assumed responsibility by publishing concussion guidance, mandating protocols, or maintaining centralised injury information systems. The Melville pleadings (as reported in the ABC article) illustrate this approach: alleged duties to keep or transmit concussion history information, to warn of cumulative risk, and to enforce stand‑down where ongoing symptoms exist.
Breach: the modern focus on systems and decision-making
Under the CLA, breach is assessed by reference to whether a reasonable person in the defendant’s position would have taken precautions against a foreseeable risk, considering factors such as probability and seriousness of harm and the burden of precautions. In concussion cases, breach is frequently pleaded as a failure of systems rather than a failure to prevent the collision itself.
Examples of system-level precautions that commonly become contentious include: maintaining a concussion register and symptom log; ensuring suspected concussion triggers immediate removal and medical assessment; prohibiting same‑day return; requiring conservative graduated return-to-play and documented medical clearance; training coaches and trainers to recognise symptoms; and creating escalation pathways where there is a known history of multiple concussions or ongoing symptoms.
Defences and fault allocation: obvious risk, inherent risk, dangerous recreational activity, contributory negligence
Queensland’s CLA includes provisions addressing ‘obvious risk’, a presumption that a person is aware of obvious risks, and rules about inherent risk. It also provides a specific protection for defendants where personal injury results from the materialisation of an obvious risk of a ‘dangerous recreational activity’. Contact sports may, on the facts, engage these provisions.
However, a key practical distinction in concussion litigation is between (a) the obvious risk of contact and collision and (b) alleged negligence in post-incident management (for example, return-to-play while symptomatic, inadequate record‑keeping, or failure to communicate known heightened risk).
Claims framed around controllable administrative or medical processes may fall outside the core of ‘obvious risk of the activity’ arguments. Contributory negligence remains available could be argued where a player downplayed symptoms or failed to comply with medical advice.
Causation: proving the link between breach and brain injury
Causation in concussion claims is typically complex. The evidentiary contest often centres on whether the pleaded breach (for example, allowing return-to-play during symptomatic periods or failing to enforce stand‑downs for repeat concussions) probably caused the plaintiff’s long-term condition, as distinct from other potential contributors such as subsequent injuries, pre-existing vulnerabilities or unrelated psychiatric stressors.
Because concussion can impair memory and cognition, contemporaneous records are often decisive: match footage, incident and injury reports, trainer/medic notes, symptom checklists, clearance and return-to-play documentation, and communications between player, coach and medical staff. For organisations, well-designed documentation systems both improve safety and materially strengthen the forensic position if a claim arises years later.
Chronic Traumatic Encephalopathy (CTE) is a progressive, degenerative brain disease associated with repetitive head impacts. Proving causation in CTE related concussion claims remains exceptionally difficult.
CTE can only be definitively diagnosed after death, meaning living plaintiffs cannot produce objective proof of the disease, which significantly complicates litigation. Even when symptoms such as memory loss, mood disturbance or impaired judgment appear, they overlap with a wide range of psychiatric and neurological conditions, making it challenging to establish that repeated concussive or sub‑concussive impacts, rather than alternative causes, produced the later life impairment.
The scientific community also lacks consensus about the precise causal pathway between specific head knocks and the later development of CTE4, and symptoms typically emerge many years after an athlete’s playing career has ended, creating a long‑latency problem that weakens the ability to link any alleged breach of duty to the eventual pathology.
Are professional sportspeople ‘workers’ under the WCRA? Can they bring statutory and common law claims?
Under the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (WCRA), a person is a ‘worker’ if they work under a contract and are an employee for PAYG withholding purposes (s 11), subject to inclusions and exclusions in Schedule 2.
Schedule 2 Part 2 provides that a person performing work under a contract of service as a professional sportsperson is not a worker while they are: (a) participating as a contestant; (b) training/preparing; (c) performing promotional activities offered because of sporting standing; or (d) travelling in connection with those activities.
Accordingly, for injuries sustained in the course of playing/training/promotional activities/travel, professional sportspersons in Queensland are generally excluded from statutory workers’ compensation coverage under the WCRA. If a sportsperson performs other duties outside the excluded categories (for example, separate employment not captured by Schedule 2 Part 2 s 2), different analysis may apply.
Because the WCRA exclusion may remove ‘worker’ status for the relevant sporting activities, a professional sportsperson who is excluded will not usually have the WCRA statutory claim pathway nor the WCRA-regulated common law pathway for those injuries. In practice, professional athletes may instead rely on code/club insurance arrangements and, depending on facts and parties, consider negligence claims outside the WCRA framework through PIPA.
Conclusion
Queensland sporting organisations are likely to face growing legal responsibility for concussion management because the contemporary negligence landscape focuses not on preventing collisions themselves, but on the adequacy of systems designed to identify, record and respond to head injuries.
Under the CLA and PIPA, clubs, leagues and governing bodies may owe a duty of care that extends to implementing robust concussion protocols, maintaining accurate injury records, enforcing stand‑downs, and ensuring clear communication of known cumulative risks.
While obvious‑risk provisions and dangerous recreational activity defences remain relevant, they rarely excuse failures in post‑incident management or administrative systems.
The difficulty of proving medical causation, especially in long‑latency cases like suspected CTE, means documentation and decision‑making systems are both a safety tool and critical forensic protection.
Ultimately, as medical understanding advances and litigation increases, Queensland sporting organisations that adopt proactive, well‑structured concussion systems will be best placed to meet their legal duties and minimise exposure to negligence claims.
Footnotes
1 Nightcliff Tigers premiership player sues AFL over ‘catastrophic’ concussion – ABC News
2 Civil Liability Act 2003 – Queensland Legislation – Queensland Government
3 Personal Injuries Proceedings Act 2002 – Queensland Legislation – Queensland Government
4 Frontiers | Applying the Bradford Hill Criteria for Causation to Repetitive Head Impacts and Chronic Traumatic Encephalopathy
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