Concussion in the AFL: Multimillion-dollar class action looms amid claims players were not properly insured

A multimillion-dollar battle looms amid fresh claims dozens of AFL players with severe illnesses linked to head knocks have been dudded out of compensation.

A major concussion court action is being prepared, claiming dozens of AFL players with severe illnesses linked to head knocks have been dudded out of compensation.

Insurance schemes offered from 2009 have made it impossible for players to claim payouts for “serious mental health conditions” arising from concussion based injuries, a case brief obtained by the Herald Sun says.

Under one proposed action, “significant” damages would be sought for players who had missed out, with individual claims ranging from $200,000 to $1m, and dozens of potential litigants. Lawyers could also demand refunds of premiums paid by all players to 2020, totalling $2.3m.

Watch every match of the 2021 AAMI Community Series LIVE on Kayo. New to Kayo? Get your free trial now & start streaming instantly >

Former St Kilda forward Paddy McCartin after one of his multiple head knocks during his time at the Saints. Picture: Scott Barbour/Getty Images

The insurance schemes, set up for the footballers by the AFL, AFL Players’ Association and AMP, are dubbed “zombie policies” in the document.

The unprecedented action is being investigated by a top law firm, with an unnamed recently-retired AFL star being considered as a “test case”.

“From 2009, the cover available under the AFL insurance policies has been essentially illusory, due to a very narrow TPD (total permanent disability) definition which provides that the policy will only pay out in the most catastrophic circumstances,” the case brief says.

“The effect of this is that in most if not all cases, a current or former AFL player would not be covered for serious mental health conditions that arise from concussion based injuries.

“In other words, since being drafted, AFL players have been asked to pay an annual premium in respect of the AFL insurance policies, despite these policies providing no relevant cover for serious concussion and related risks facing AFL players.”

Former Melbourne star Shaun Smith recently pocketed a historic $1.4 million in concussion damages because he was deemed to have a “total and permanent disablement” as a result of repeated head knocks suffered while playing.

But the case brief alleges that anyone lodging claims relating to injuries since 2009 would not be able to access TPD compensation because the policy had been quietly “narrowed”.

RELATED: AFL TO FACE RECKONING AFTER DECADES OF DENIAL

Former Melbourne high-flyer Shaun Smith recently received a historic concussion damagers payout. Picture: Alex Coppel.

The case will argue that players were led to believe by the AFL, the AFLPA and AMP that their insurance policy covered them for concussion related injuries, and certainly were not told it did not.

“It would be alleged that the above conduct constituted misleading or deceptive conduct, unconscionable conduct and breaches of obligations to provide proper and adequate financial advice about the AFL Insurance Policies and their suitability in relation to the risks facing AFL players,” the case brief says.

“It would be argued that the AFL players have suffered the following losses as a result of the conduct: firstly, they suffered losses from paying premiums for AFL Insurance Policies that effectively provided worthless cover in respect of concussion related injuries; additionally, they lost the opportunity to enter into appropriate insurance arrangements that, unlike the AFL Insurance Policies, would have provided the players with appropriate cover for concussion related injuries both during and after their careers.

Former Essendon and Geelong big man John Barnes, pictured with wife Rowena, is an AFL concussion victim. Picture: Michael Klein

“We are aware of former players with concussion related injuries who have been denied or are not entitled to cover under the AFL Insurance Policies.”

An AFL spokesperson said: “The health and safety of our past and present players is of paramount concern to the AFL and while we are unaware of any legal claim we welcome any further information”.

The AFLPA declined to comment.

The document says the case “would be similar to recent claims that have been made against financial institutions in the aftermath of the royal commission into misconduct in the banking, superannuation and financial services industry over the sale of ‘junk’ or zombie’ insurance policies”.

Any action would be likely to be lodged in the Federal Court “given that it will involve players who played for non-Victorian teams and/or now reside outside Victoria”.

A separate concussion action proposed by top South Australian lawyer Greg Griffin, is pursuing the AFL for failing to protect players against head knocks. That case, involving up to 100 retired players including John Platten and John Barnes, is still progressing.

“It is clear that the AFL and the clubs have not implemented return-to-play protocols that protect the neurological health and safety of the players,” Griffin said in 2018.

Changes to the league’s rules for 2021 will see all players suffering from concussions sidelined for a minimum of 12 days.

Originally published as Concussion in the AFL: Multimillion-dollar class action looms amid claims players were not properly insured