The sport industry’s treatment of concussion is like the tobacco industry’s defence of smoking, and the legal system is “stacked against players” seeking redress for their injuries, an Australian Senate inquiry has heard.
Jamie Shine, manager of head trauma litigation at Shine Lawyers, on Wednesday told the inquiry into concussions and repeated head trauma in contact sport that people suffering even mild traumatic brain injuries had their symptoms downplayed or misdiagnosed by medical professionals.
Shine, who has represented hundreds of people with traumatic brain injuries, told the Senate committee that her clients were frequently disbelieved by insurance companies, even in well established areas such as car insurance or WorkCover, making it very difficult to get redress.
“I see this as analogous to the tobacco industry,” Shine said. “We see insurers denying the existence of mild traumatic brain injury. They’re delaying claims. They say these people aren’t injured … [that] there’s nothing wrong with them, it’s preexisting.
“We’re seeing that in established insurance schemes [so] of course we’re going to see that when it comes to the causal link between football or contact sports and life and death injuries like [chronic traumatic encephalopathy].”
The Senate inquiry was established amid increasing public concern, including reporting by Guardian Australia, about sporting organisations’ management of player head injuries and the growing body of scientific evidence showing links between repeated exposure to head injury in contact sports and the neurodegenerative disease chronic traumatic encephalopathy (CTE).
CTE often manifests in life as behavioural changes, memory loss and other cognitive impairment. It is unable to be definitively diagnosed except postmortem by autopsy, but has been found in the brains of multiple Australian sportspeople, from amateurs to professionals.
Shine argued in her written submission to the inquiry that the evidence threshold demanded by sporting bodies before they would act to prevent CTE was an inappropriate standard to require for a public health and safety issue, but “it is the way codes have been allowed to get away with arguably negligent inaction”.
“Despite the seriousness of the injury, the legal landscape in Australia has been stacked against players, meaning not only can they not afford access to treatment or to support their families; there is also little by way of consequence for sporting bodies,” Shine wrote.
Shine’s analogy comparing the cultural and legal landscape around head trauma and contact sport to smoking was echoed by University of Queensland researcher and historian Stephen Townsend, whose evidence focused on the history of concussion in Australian sport.
“I think that’s an apt comparison, because Australia in many ways is addicted to contact sport. We love it even though it kills us,” Townsend told the committee.
“I think the smoking comparison is also apt because it prompts us to consider the availability of health information to athletes and parents.”
He noted that Australia had seen “periods of major public concern about sports concussion” in the 1930s and early 1980s but that in each of these instances, the concerns of doctors, athletes, and researchers were “suppressed by sporting leagues and their supporters” because sport was “too culturally and economically important to change”.
“This must not happen in 2023,” Townsend said.
The committee also heard from two former elite athletes who continue to suffer from post-concussive symptoms, years after their playing careers ended due to multiple brain injuries.
Lydia Pingel, 30, a former Australian rules footballer in the elite Queensland leagues, told the committee she had suffered seven concussions over a three-year period and was medically retired. Her ongoing symptoms include light and noise sensitivity, migraines, dizziness, blurred vision, brain fog, mood swings, irritability, impulsive behaviours, memory loss, impaired judgment and sometimes speech difficulties.
Pingel told the committee her on-field concussions were never taken as seriously as other kinds of injuries, and there was “no education, plain and simple” about brain injury. “It’s not that they didn’t believe in concussion, but it’s not validated. It’s not seen as an injury,” she said.
Pingel described the treatment she now undergoes for her condition as similar to that of an early onset dementia patient.
Kirby Sefo, 36, played rugby sevens and rugby union for more than a decade before her post-concussion symptoms became so severe that she was told she should never play contact sport again.
Sefo estimated she had more than 40 head injuries, ranging in levels of severity. She now experiences debilitating episodes of dizziness and hypersensitivity to light followed by loss of vision and balance, fever and severe vomiting, and immediately subsequent deep sleep.
“I was unable to work due to these symptoms,” said Sefo. “I lost my job in one instance and had to resign from another because I was unable to manage what was happening when it was happening.”
Sefo, who also has four children, said she wants future conversations around head trauma to be centred on women’s experiences: “We’re built differently. We are less researched. We are at times un-prioritised and marginalised. We are the lower income earners. We’re also the partners or the mothers who carry an emotional and mental load far greater than any other member in our households.”
The inquiry continues.
