by Mike Mitchell, Senior Associate
British academics Professor Allyson Pollock and Graham Kirkwood have come out and requested that tackling and other forms of “harmful contact” be banned from school rugby. World renowned neuropathologist Dr Bennet Omalu also recently called for parents to stop their children from playing contact sports until they are at least 18, or risk them suffering permanent brain damage.
When Dr Omalu came on New Zealand TV and started talking about the damage head knocks can have on children’s brains, my wife immediately paid attention. Master A is 6 months old and is our first born. “He’s not playing rugby”, said my wife. “What if he wants to play rugby”, I replied? “He’s still not”, she shot back.
Now, I played rugby in the front row on and off until my mid-30s. Unfortunately, I stopped growing at age 17, so I bore the brunt of a fair amount of “harmful contact” from that point onwards. I found that collapsed scrums are not pleasant and can be very dangerous. Front-on tackling 115kg props from Gisborne is also unpleasant and potentially dangerous. But taking tightheads is awesome, and when you slip a lucky hit in on the big guy then remind him of it for the next hour…..that is fun.
In terms of health and safety legislation contact sports are in a unique position. Contact sports require physical contact, and sometimes that hurts people. Not many sports people go out to deliberately injure opponents, but in contact sports you certainly are aiming to make your opponent physically uncomfortable. The difficult line that contact sports tread is when the actions of players or management cross into recklessness or a deliberate attempt to hurt someone.
Under the Health and Safety at Work Act professional organisations such as the NZ Rugby could face legal liability if they failed to take appropriate steps to ensure so far is reasonably practicable, the safety of players. The players are their employees. Professional sport is a business, and like any other business when you have employees there is a responsibility to ensure the health and safety of those workers.
In 2013 the National Football League in the United States was sued by ex-players claiming the league had compromised the brain health of players by concealing the long-term dangers of head trauma, and encouraging players to continue playing despite obvious signs of concussion. The NFL eventually reached an out-of-court settlement with players for US$765 million. In New Zealand, our ACC legislation means we are unlikely to have a similar lawsuit. But in theory, if it was shown that a professional rugby organisation had not taken the appropriate steps to prevent the risk of harm to its players, then that organisation could face prosecution under the Health and Safety at Work Act.
The Health and Safety at Work Act does not apply to purely voluntary organisations involved in junior and amateur club rugby. But some schools and larger clubs do employ sports’ directors. Also, school teachers often coach sports and this is considered part of their employment. In situations where the school or club employ someone they then fall under the Health and Safety at Work Act. It is conceivable that if a player suffered a serious injury, such as head trauma or a spinal injury for example, and it was found that an employee did not take reasonable care the employee could be prosecuted. The school or club could also be prosecuted if they had not done all that is reasonably practicable in the circumstances.
What is reasonably practicable on the rugby field is going to differ substantially from most other workplaces. But allowing someone to play who is clearly concussed, or putting an unqualified player into a frontrow are situations that have caused serious head and spinal injuries in the past. It’s possible a professional rugby organisation or a school/club with employees that allowed this to happen could be caught by the Health and Safety at Work Act.
Will Master A be playing rugby? I put another option to my wife. A football contract with Real Madrid pays better than rugby, and I quite like the thought of retiring to Spain as his manager. But, Toulon Rugby Club in the south of France also sounds nice. I’m building a scrum machine in my backyard, the best kids Christmas present ever.