Taxpayers taking the hit for sports concussions
Massive lawsuits from rugby and league players suffering the long-term effects of concussion are unlikely in New Zealand but, instead, taxpayers are footing a hefty bill.
The way our legal system is set up means legal recourse is difficult for individual players, although not impossible.
However, the taxpayer is footing the cost of thousands of head knocks each year through ACC.
Last year 1773 rugby players and 389 league players claimed help from ACC for concussion-related injuries to the tune of more than $700,000.
In 2012 the bill was even bigger - more than $850,000 was claimed by more than 2000 players from the two codes. The two sports were by far the biggest claimants, with cycling and horse riding lagging well behind.
But personal lawsuits are unlikely, leading sports lawyer Maria Clarke says.
This comes after prominent rugby league players last week spoke of their long-term issues as a result of concussion during their playing days.
Former Kiwis international Tawerau Nikau said there were plenty of times he could not remember the end of a game and he has memory loss "now and again" as a result.
Awen Guttenbeil, who played 170 games for the Warriors, and 10 tests for the Kiwis, said there would be times he would be running around "seeing stars" and he, too, has memory loss.
New Zealand Rugby Players' Association chief executive Rob Nichol said a number of players had left the game because of recurrent concussions, and some had suffered ongoing consequences.
He was not aware of any who would be seeking legal redress.
New Zealand Rugby Union chief executive Steve Tew said the organisation was "watching very carefully what's going on in other sports around the world".
He did, however, acknowledge that "we do live within a very different legislative framework with ACC, and our own insurance policies".
Lawyer Clarke said the way ACC was set up stopped anyone from suing for negligence. This was different from most other countries, including Australia and the US.
Australian players had been able to sue for injury for a number of years, and the NRL's current crackdowns on concussions have raised fears of costly retrospective claims by former players.
NFL players in the US suffering because of concussion were able to win a legal case to get their pension paid early to help with medical bills. A more than $750 million compensation settlement to former players who had been concussed has recently been agreed.
Clarke said a player in New Zealand would only be able to sue their employee if they could show gross negligence, which was a high bar to set, and particularly difficult for ex-players. "It would be pretty hard to prove."
Clarke said a slightly more likely path of recourse would be through the soon-to-be-expanded Health and Safety in Employment Act. The new act, expected to come into force in 2015, will mean that directors of sporting organisations, rather than just the organisations themselves, will be liable to be charged for failing to properly protect an employee.
Sporting organisations, namely cycling, have been charged in the past, but not rugby or league bodies.
"There is potential for claims within that act."
Clarke said the focus on concussion and possible legal action by players had seen sporting organisations tighten their regulations.
"The ability to sue had been so narrow, the attention to health risk had been less. With the potential for legal action, organisations have become far more aware."
ACC PAYOUTS FOR CONCUSSIONS 2011
Rugby - 1503 claims ($602,261)
League - 290 claims ($79,206)
ACC PAYOUTS FOR CONCUSSIONS 2012
Rugby - 1619 claims ($632,826)
League - 419 claims ($219,311)
ACC PAYOUTS FOR CONCUSSIONS 2013
Rugby - 1773 claims ($570,912)
League - 389 claims ($143,135)
Sunday Star Times