AFL veteran Shaun Smith recently received a $1.4 million payout from his insurance company for “concussion” injury suffered during his AFL career. Does this decision open the floodgates for other athletes, or is it just an isolated one-off payment?
What payment did Smith receive?
When Smith was just 26 years of age and was about to start working as a plumber, he took out an insurance policy which included total and permanent disability (aka TPD) cover. TPD cover works this way: if you can prove that you are unable to continue to work because of injury or illness, you get a lump sum payout. Of course, each insurance company has different terms and conditions
25 years after he purchased his insurance policy, Smith was able to convince his insurance company that he suffered permanent brain injuries due to his AFL career. He also proved that he can no longer work. This is what made him entitled to the payout.
What injuries did Smith suffer – Concussion vs CTE
The media has widely referred to this as a “concussion payout”. In fact, what Smith likely has is CTE (chronic traumatic encephalopathy).
Concussion is an acute brain injury caused by a blow to the head. Symptoms show immediately or shortly after the blow. Full recovery takes time, but people can return to normal.
CTE, on the other hand, is a progressive brain disease which typically shows symptoms later. It is caused by repeated brain trauma from blows that shake the brain, including concussion. The symptoms include mood changes, memory loss, behavioural change or substance abuse.
So, the payment was not for concussion. It was for CTE, which was probably the result of the countless blows to the head over a 12-year professional career.
Floodgates vs one-off case
Doctors can’t say conclusively that an athlete has CTE until after death.
In other words, one of the major hurdles for any potential plaintiff claiming damages for CTE is that the medical diagnosis is not certain until after death.
Another problem is causation: while it is suspected that head knocks in contact sports cause CTE, the scientific proof is not conclusive.
Finally, there is also the issue that most players simply don’t have the type of insurance policy that Smith was lucky enough to purchase all those years ago. (For example, the AFL does not have an insurance scheme to cover players for this.) The consequence is that players can’t claim money from an insurer, so they would have to go after someone else, for example the sporting association (AFL/NRL etc) or their own clubs. But would these entities be legally liable for these injuries?
At this stage, Smith’s payout is more likely to be an exception and it is unlikely to open the floodgates. However, as science learns more about CTE, younger players might have better prospects of claiming compensation for brain injuries sustained during their professional careers.
