How WorkSafe Victoria will be involved in Carlton’s review
In the days following Carlton’s Elijah Hollands’ mental health issue during last Thursday’s match against Collingwood, three words have featured heavily in the discourse surrounding the incident: duty of care.
What was the club’s duty of care to Hollands? Why do some think the club quit before Hollands took the field and continued playing afterwards? And critically, what will be the legal consequences for Carlton if they fail to comply with this duty of care?
These three words also appear in rival codes. These situations were common last year after rugby league player Eli Katoa was hospitalized after three separate headers before and during Tonga’s game, and were repeated this week when the Dragons parted ways with manager Shane Flanagan.
“As a club, as an employer, we have a duty of care, not just to the club, to its fans, to its supporters, but to our employees,” Dragons chairman Andrew Lancaster said at a press conference announcing Flanagan’s departure.
So what is the duty of care and what happens when clubs fail to fulfill these obligations?
What does ‘duty of care’ mean?
The words “duty of care” refer to a legal concept and form the starting point of negligence cases; This is a legal fallacy that says people should be responsible when they cause foreseeable harm to others. In sport, these obligations arise similar to any employer-employee relationship.
“Every employer has a duty of care to its employees to, among other things, provide a safe workplace,” said sports lawyer Paul Horvath. “Especially in a sports environment where athletes engage in physical contact sports and the risk of injury is much higher, this duty of care becomes much higher.
“Let’s take a really simple example, where a player breaks his leg in a collision on the field and says, ‘My leg really hurts.’ And you say, ‘Get up, go out onto the field and keep going.’ Then that’s clearly negligence because you had a duty to be aware of the risk of harm and you took a particular action in disregard of the risk of harm to the person to whom you owe that duty of care.”
Sporting organizations are becoming increasingly aware of their duties of care, as evident in concussion protocols and the NRL’s rule changes this week to limit contact training. We’re seeing the same thing happen in the AFL class action lawsuit, where former players accuse the league of failing to protect them from brain injuries.
When athletes bring claims against sporting bodies, they must prove that a duty of care exists and then prove that the club or league breached that duty by failing to meet a reasonable person’s standard of care.
But not everything is that simple and many cases fail for numerous reasons. A High Court case in 2000 found that rugby players in Australia could not sue the international rugby body for negligence; This was partly because the court believed it would not be fair to find them liable for all risks or injuries incurred by anyone playing the sport.
Can Carlton be held liable for breach of duty of care towards Elijah Hollands?
Although the concept of duty of care arises from claims of negligence and Carlton had duty of care obligations to the Hollands, there is no indication that he would have brought a claim against them even if he believed they had breached it. Even so, the success of this claim will depend on other tests.
Any claim by Hollands will depend largely on whether the club was harmed by allowing him to play and whether that harm was foreseeable to the club. University of Sydney sports law professor Dr. According to David Thorpe, this predictability often poses a major problem in negligence cases against clubs.
“The best way to look at it is that if clubs or organizations should have known of a risk and warned, if the player did not know about that risk there is likely to be litigation,” Dr Thorpe said.
“The player continues [and] it then becomes apparent on the playing field that, similar to the concussed player, they too must be removed. This is your obligation. You have taken on the responsibility of looking after the health and welfare of players while on the field. But you still need to know or know. So that’s the critical thing. At what point was it known? What would be the logical thing to do?”
Athletes must also show that the breach of duty of care resulted in physical or psychological harm that caused them to suffer financial losses, such as medical fees or loss of income.
“You can’t sue someone unless you’re harmed,” Thorpe said. “So what kind of damage did it cause? [Hollands] Being on the field?”
What will WorkSafe Victoria assess?
Separately, WorkSafe Victoria this week announced they would be investigating the incident, but this is based on a separate area of employment law that asks whether Carlton provided Hollands with a safe environment to work.
Horvath said this would most likely result in a fine to the club and cited the Essendon supplement scandal as an example; In this scandal, in 2016 the club was fined $200,000 for failing to provide a safe workplace.
“So they are investigating whether the employer has provided a safe workplace, in which case they have done everything reasonably within their authority, responsibility and ability to prevent the risk to occupational health and safety,” he said.
Carlton also face fines from the AFL.
