Max Rooke concussion lawsuit: OHS claim dismissed, Ex-Cat given opportunity to replead
A Supreme Court judge has sent Max Rooke back to the drawing board in a ruling on one aspect of the landmark, billion-dollar class-action lawsuit lodged against the AFL.
A Supreme Court judge has sent Geelong premiership player Max Rooke back to the drawing board over his claim the AFL and the Cats breached Occupational Health and Safety regulations.
The former Cat is leading a landmark $1bn class-action lawsuit in the Supreme Court against the league and his former club on behalf of almost 100 players.
Rooke, who claims he suffered more than 30 head knocks and concussions during his 135 game career with Geelong, alleges negligence on the part of the league and the club in managing the risk of harm to players from concussion injuries.
Alongside the negligence claim, Rooke had alternatively alleged that both defendants breached their duties owed to players under Occupational Health and Safety regulations.
In a ruling published on Tuesday, Justice Andrew Keogh struck out this statutory duty claim – but gave Rooke the opportunity to rework his argument and file a new pleading for himself and the other players involved.
Geelong and the AFL had asked Justice Keogh to throw the OHS claim out completely, arguing there was no real chance it would succeed, but he opted not to take such a hard stance.
Justice Keogh wrote “it may be possible to plead a statutory duty claim that has a real prospect of success” and found it was appropriate that Rooke have another opportunity to “articulate” the claim.
“It is a matter for Rooke to consider the merits of attempting to replead a statutory duty claim,” Justice Keogh wrote.
However, His Honour agreed with Rooke’s lawyers in that it was “difficult to conceive” of circumstances where the primary negligence claim failed, but the statutory claim succeeded.
“If this is correct, the statutory duty claim may be wholly irrelevant in practical terms to the outcome of this proceeding,” Justice Keogh said.
Following the ruling, Rooke’s lawyer, Michel Margalit, said the class-action negligence claim “continues as planned”.
“We welcome the Judge’s important comments recognising the foreseeable risks associated with repetitive head knocks while playing football,” Ms Margalit said.
Rooke has claimed that on seven occasions he was exposed to head injuries at times when he had not fully recovered from concussion symptoms from prior head knocks and concussions suffered during matches and training, and much of 15-page ruling was spent discussing arguments around the risk of head-knocks.
“The risk of a head knock may be intrinsic to a hazardous manual handling task such as shepherding or tackling a player. It is possible that the eventuation of that risk more than once within a particular period may result in the player suffering a permanent injury,” Justice Keogh wrote.
His Honour said a “fundamental problem” in the way Rooke articulated the claim related to the “reasonable precautions” he alleged should have been taken by Geelong and the league.
He found that while “it is probably the case that some tasks engaged in by players during matches and training will meet the definition of hazardous manual handling (under OHS regulations)” the current claim was “not sufficient to put the defendants on notice”.
Since it kicked off in March 2023, the lawsuit has become a long-running saga, with Justice Keogh describing progress as “slow” in September this year.
That month, the league failed in a bid to break up, or “declass” the billion-dollar lawsuit.
Last month, it was revealed Geelong had dragged a dozen club doctors, including chief medical officer David Long, into the concussion lawsuit via a third party notice.
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Originally published as Max Rooke concussion lawsuit: OHS claim dismissed, Ex-Cat given opportunity to replead
