News Zantuck given green light to pursue damages

[RFCGloryJC]

Thoughtful and cogent analysis.
People need to be precise in language; to not bandy about a term like negligence.
Richmond would argue it is preposterous to allege that they would wilfully and knowingly impose a new condition like CTE on a player.
The playing contract Zantuck signed at the time would be similar to the contract for every other player.
It would be interesting to see the contract.

 

[RFCGloryJC]

Zantuck was relatively fit.
None of the other players had difficulty carrying the 30 kg load.
Find it hard to believe that the load caused all of the spinal issues.
Twice, he was given legal advice not to pursue a claim.
Is he going to sue those lawyers too, for so-called "negligence"?

 

[tigers12]

Back then how can you prove he had concussion it’s his word against theirs now days it’s all documented he is just a money grabbing leach

 

[DickieKnee]

Back then how can you prove he had concussion it’s his word against theirs now days it’s all documented he is just a money grabbing leach

I think video footage will prove he had concussion. The problem he faces IMO was Richmond following proper protocols for concussion back then? The effects of concussion are only just been learner and back then there was no concussion rule and forced break. So if the club were following proper protocols at the time I can't see how Richmond can be at fault. Maybe he can sue the AFL for not have strong enough protocols but that would be hard too as medical evidence of what is known now wasn't available back then.

 

[Phar Ace]

The contract would be meaningless in the case of negligence by the employer, which he would be alleging happened

Correct I think. There are things you cannot contract out of, try as you might.

 

[Phar Ace]

Should be an interesting case ahead. I just read the judgement in relation to the Limitation of Actions Act (It's available on Austli as one of the first judgements if you go to Victorian Supreme Court).

If anyone is interested in a bit of a summary of the case it is as follows:

The claims

To summarise to a greater degree than the media have, Zantuck's statement of claim is in relation to:

• incurring a back injury
• management of his back injury
• brain injury related to concussion

He's amended his statement of claim in March 2022 to include the brain injury.

The statement is against three defendants, the first of which is the RFC and the two others being Dr Hickey and Dr Bradshaw.

Incurring the back injury was allegedly at the 01/02 training camp where Zantuck was directed to carry a 30kg backpack, complained of soreness to Dr Bradshaw and to club officials asking to no longer carry the backpack, however that dispensation was refused. A subsequent MRI following the training camp led to a diagnosis by Dr Bradshaw of a slipped lumbar disc.

In relation to the treatment he returned to training and played the first two matches of the 2002 season before advising that he was experiencing backpain to Dr Bradshaw, whom allegedly treated with injections of local anesthetic into the lumbar spine. For the period between 2002-2004 Zantuck continued to have further cortisone or epidural injections to treat the pain (Dr Hickey takes over at this point continuing the treatment plan from Dr Bradshaw).

In respect of the concussion claim Zantuck alleges that the brain injury was incurred by the RFC's negligence, failing in their duty of care to 'properly monitoring the players for signs of ‘head knocks’, requiring examination of players who were subject to head knocks, and properly treating players with concussion symptoms by requiring the player to stop playing and not resume normal duties unless and until certified by an appropriately qualified medical practitioner as fit to resume normal duties'. It goes on to state that 'RFC had “no or no adequate system” for ensuring these steps were taken. Therefore, RFC breached its duty of care to manage concussions' at paragraph 27.

Zantuck submission in respect of delay

Zantuck basically alleges that he sought to access his medical records through Dr Hickey and went to the AFLPA in 06 or 07 but was advised he would be unsuccessful in any claim (note not legal advice).

In 2011 he required significant surgery and consequently went to see solicitors given the implications for his financial situation. Slater and Gordon advised him in 2012 that at the time they saw no prospect of success in pursuing the claim.

Between 2012 and 2017 he corresponded with Peter Jess who has advocated for him to engage his current solicitors.

In relation to the concussion claim, Zantuck states that traumatic encephalopathy syndrome has only been able to be diagnosed since 2021 so there has been no relevant delay in the claim given the manifestation of the injury and diagnosis.

In relation to the evidence

The court basically found that it does prejudice the defendants to hear the claims but on balance given that ultimately it was the responsibility of the respective doctors to keep treatment records that it would not be such that a fair trial cannot be held. It was put forward that they did not keep records of match day treatments, particularly injections, administered by the medical staff however this is no impediment to the 'course of conduct' that is being alleged and witnesses will be called (i.e. other club officials, players etc.) that may have witnessed it.

In relation to the concussion claim, the central claim is in relation to the RFC's processes, policies and systems. There are five documented occasions of concussion and more so given the allegations relate to procedure the way the club treated other relevant concussions through the period will be relevant.

RFC and Doctor submissions

Dealing first with the back injury, both Dr Bradshaw and Dr Hickey have no recollection of the number of injections alleged by Zantuck in relation to his back and Dr Hickey in particular deposes 'I do not recall giving Ty Zantuck a cortisone injection or a pre-game local anaesthetic injection. I do not believe I gave him any such injection because, other than the reference to the injection on 23 July 2004, I did not record any such administrations in my notes'.

Dr Hickey has no records in relation to concussions occurring during the 04 season (so I am assuming this then relates to management under Dr Bradshaw). I have not been able to access the Schedule which lists the 5 instances.

Overall thoughts

Whatever you thought of Ty as a player (I personally was not a fan and considered him undisciplined) it sounds like a pretty tragic set of circumstances given that he is clearly and demonstrably experiencing day to day pain and struggles to live a life most of us take for granted, which must be difficult given he has two kids.

I personally think he will struggle to make out the course of conduct treatment claim and back injury matters given the lack of evidence indicated and the conflicting evidence of two credible witnesses. I suppose it will turn on the testimony of other witnesses as called.

The CTE one will be interesting. There is clearly high quality vision of the 5 circumstances and we are all aware that procedures were pretty 'patch them up and get them back on' in those days. The treatment of other players is also highly relevant in making out negligence given the claim relates to procedures, practice, policy etc.

The interesting element that was not really touched on, but I suspect will be at trial, is the scope to which RFC is the employer and also the degree to which they are able to set practice/policy/procedure in relation to concussion. The AFL sign the collective bargaining agreement with the AFLPA so realistically the RFC will likely join them at some point given they will also likely argue negligence on behalf of the league given that they dictate what protocols are in place.

Great summary so far. Thanks.

 

[Phar Ace]

I think video footage will prove he had concussion. The problem he faces IMO was Richmond following proper protocols for concussion back then? The effects of concussion are only just been learner and back then there was no concussion rule and forced break. So if the club were following proper protocols at the time I can't see how Richmond can be at fault. Maybe he can sue the AFL for not have strong enough protocols but that would be hard too as medical evidence of what is known now wasn't available back then.

There is also the 'should have known' test. Just because it wasn't known, doesn't exclude it from the 'should have known' test.

"So far as concerns the duty of care in the tort of negligence, the basic principle is that a person owes a duty of care to another if the person can reasonably be expected to have foreseen that if they did not take care, the other would suffer personal injury or death."​

 

[theyellowsash]

Zantuck was relatively fit.
None of the other players had difficulty carrying the 30 kg load.
Find it hard to believe that the load caused all of the spinal issues.
Twice, he was given legal advice not to pursue a claim.
Is he going to sue those lawyers too, for so-called "negligence"?

Gee you sound like you'd be a great boss. "Hey dave, Barry can lift that thing. You have to lift that thing too or lose your job, even if you physically struggle, and if you get injured doing so it's your own fault"

You do realise people have different physical capacities, right?

 

[Sterge]

Should be an interesting case ahead. I just read the judgement in relation to the Limitation of Actions Act (It's available on Austli as one of the first judgements if you go to Victorian Supreme Court).

If anyone is interested in a bit of a summary of the case it is as follows:

The claims

To summarise to a greater degree than the media have, Zantuck's statement of claim is in relation to:

• incurring a back injury
• management of his back injury
• brain injury related to concussion

He's amended his statement of claim in March 2022 to include the brain injury.

The statement is against three defendants, the first of which is the RFC and the two others being Dr Hickey and Dr Bradshaw.

Incurring the back injury was allegedly at the 01/02 training camp where Zantuck was directed to carry a 30kg backpack, complained of soreness to Dr Bradshaw and to club officials asking to no longer carry the backpack, however that dispensation was refused. A subsequent MRI following the training camp led to a diagnosis by Dr Bradshaw of a slipped lumbar disc.

In relation to the treatment he returned to training and played the first two matches of the 2002 season before advising that he was experiencing backpain to Dr Bradshaw, whom allegedly treated with injections of local anesthetic into the lumbar spine. For the period between 2002-2004 Zantuck continued to have further cortisone or epidural injections to treat the pain (Dr Hickey takes over at this point continuing the treatment plan from Dr Bradshaw).

In respect of the concussion claim Zantuck alleges that the brain injury was incurred by the RFC's negligence, failing in their duty of care to 'properly monitoring the players for signs of ‘head knocks’, requiring examination of players who were subject to head knocks, and properly treating players with concussion symptoms by requiring the player to stop playing and not resume normal duties unless and until certified by an appropriately qualified medical practitioner as fit to resume normal duties'. It goes on to state that 'RFC had “no or no adequate system” for ensuring these steps were taken. Therefore, RFC breached its duty of care to manage concussions' at paragraph 27.

Zantuck submission in respect of delay

Zantuck basically alleges that he sought to access his medical records through Dr Hickey and went to the AFLPA in 06 or 07 but was advised he would be unsuccessful in any claim (note not legal advice).

In 2011 he required significant surgery and consequently went to see solicitors given the implications for his financial situation. Slater and Gordon advised him in 2012 that at the time they saw no prospect of success in pursuing the claim.

Between 2012 and 2017 he corresponded with Peter Jess who has advocated for him to engage his current solicitors.

In relation to the concussion claim, Zantuck states that traumatic encephalopathy syndrome has only been able to be diagnosed since 2021 so there has been no relevant delay in the claim given the manifestation of the injury and diagnosis.

In relation to the evidence

The court basically found that it does prejudice the defendants to hear the claims but on balance given that ultimately it was the responsibility of the respective doctors to keep treatment records that it would not be such that a fair trial cannot be held. It was put forward that they did not keep records of match day treatments, particularly injections, administered by the medical staff however this is no impediment to the 'course of conduct' that is being alleged and witnesses will be called (i.e. other club officials, players etc.) that may have witnessed it.

In relation to the concussion claim, the central claim is in relation to the RFC's processes, policies and systems. There are five documented occasions of concussion and more so given the allegations relate to procedure the way the club treated other relevant concussions through the period will be relevant.

RFC and Doctor submissions

Dealing first with the back injury, both Dr Bradshaw and Dr Hickey have no recollection of the number of injections alleged by Zantuck in relation to his back and Dr Hickey in particular deposes 'I do not recall giving Ty Zantuck a cortisone injection or a pre-game local anaesthetic injection. I do not believe I gave him any such injection because, other than the reference to the injection on 23 July 2004, I did not record any such administrations in my notes'.

Dr Hickey has no records in relation to concussions occurring during the 04 season (so I am assuming this then relates to management under Dr Bradshaw). I have not been able to access the Schedule which lists the 5 instances.

Overall thoughts

Whatever you thought of Ty as a player (I personally was not a fan and considered him undisciplined) it sounds like a pretty tragic set of circumstances given that he is clearly and demonstrably experiencing day to day pain and struggles to live a life most of us take for granted, which must be difficult given he has two kids.

I personally think he will struggle to make out the course of conduct treatment claim and back injury matters given the lack of evidence indicated and the conflicting evidence of two credible witnesses. I suppose it will turn on the testimony of other witnesses as called.

The CTE one will be interesting. There is clearly high quality vision of the 5 circumstances and we are all aware that procedures were pretty 'patch them up and get them back on' in those days. The treatment of other players is also highly relevant in making out negligence given the claim relates to procedures, practice, policy etc.

The interesting element that was not really touched on, but I suspect will be at trial, is the scope to which RFC is the employer and also the degree to which they are able to set practice/policy/procedure in relation to concussion. The AFL sign the collective bargaining agreement with the AFLPA so realistically the RFC will likely join them at some point given they will also likely argue negligence on behalf of the league given that they dictate what protocols are in place.

The only thing that strikes me here is that it seems like he is trying to say they didn't use 2022 knowledge of head knocks to treat him in 2002, when we knew much less about concussions. If he is successful in that regards it really does open the flood gates for all former players to sue their clubs.

 

[RFCGloryJC]

I used to do court reporting.
I covered the Wilson defamation trial.
Ty's employment contract was legally binding at the time.
I don't see how legally he can override the contract retrospectively.

 

[TigFan1966]

Reported on the radio this morning that "dozens" of players will be suing for damages if the Ty Zantuck case goes ahead.

 

[Simche]

Zantuck was relatively fit.
None of the other players had difficulty carrying the 30 kg load.
Find it hard to believe that the load caused all of the spinal issues.
Twice, he was given legal advice not to pursue a claim.
Is he going to sue those lawyers too, for so-called "negligence"?

Zantuck complained to the club officials in respect of the backpack and asked to take it off, however they refused. Irrespective of other players there could have been several reasons why he incurred injury including an undiagnosed underlying condition, the backpack may not have been adjusted properly etc. etc.

You'll note it isn't just the instance of injury that forms part of the claim but the ongoing management of it that is alleged to have led to the degenerative nature of the injury.

He only received legal advice from Slater and Gordon in 2012 advising that they did not see significant prospects of success in relation to his claim. The original advice was provided by the AFLPA in a non-legal sense telling him he wouldn't be eligible.

Back then how can you prove he had concussion it’s his word against theirs now days it’s all documented he is just a money grabbing leach

The presiding judge was very clear that there is precedent for expert medical evidence and witnesses to be able to diagnose concussion on the basis of video evidence. It won't just be his word against the RFC, it will be the competing expert medical testimony.

Also, have some compassion. It is very clear that Zantuck is suffering and experiences a pretty horrible quality of life on the basis of his historical injuries.

The only thing that strikes me here is that it seems like he is trying to say they didn't use 2022 knowledge of head knocks to treat him in 2002, when we knew much less about concussions. If he is successful in that regards it really does open the flood gates for all former players to sue their clubs.

From my reading of the case he is alleging that the processes, policies and procedures used by the club at that time breached the duty of care to him as a player in that there was no requirement that a player be examined for a head knock, the proper treatment of concussion symptoms and the direction by medical staff to cease playing. They are not submitting that the current concussion protocols should have been applied. This is why I suspect the AFL will be joined as a defendant at trial.

 

[Sterge]

From my reading of the case he is alleging that the processes, policies and procedures used by the club at that time breached the duty of care to him as a player in that there was no requirement that a player be examined for a head knock, the proper treatment of concussion symptoms and the direction by medical staff to cease playing. They are not submitting that the current concussion protocols should have been applied. This is why I suspect the AFL will be joined as a defendant at trial.

That's the bit I find confusing, surely the protocol at the time was based on what they knew about concussion and CTE, you can say well we now know this so the duty of care 20 years ago should have been different.

 

[Phar Ace]

That's the bit I find confusing, surely the protocol at the time was based on what they knew about concussion and CTE, you can say well we now know this so the duty of care 20 years ago should have been different.

This was 2001, not 1970. This is an elite Football Club investing many millions into staff and playing personnel. What they knew is part of it, but also what they should have known and should have done as an elite Football Club environment will be on trial as well. What should have been required, and was it reasonable that they should have know it in those specific circumstances.

Here is an autopsy of a CTE sufferer's brain (near the end of clip).

 

[Groupie_]

Zantuck was relatively fit.
None of the other players had difficulty carrying the 30 kg load.
Find it hard to believe that the load caused all of the spinal issues.
Twice, he was given legal advice not to pursue a claim.
Is he going to sue those lawyers too, for so-called "negligence"?

sounds like he shopped around till he found a denuto type that was willing to have a crack

 

[Jono_Hain97]

This has been going on for a while and now he has been given the green light to pursue damages. Could this be the dark cloud that has been hanging over the club and affecting our performance on field?

 

[RFCGloryJC]

The thrust of it so to speak seems to be retrospective.
It takes two to tango.
You sign up as a player knowing that various health and injury risks are involved.
To argue that Richmond had a particularly weak concussion policy, compared to other clubs, seems spurious.
I hate to say but vexatious litigation.

 

[Simche]

This has been going on for a while and now he has been given the green light to pursue damages. Could this be the dark cloud that has been hanging over the club and affecting our performance on field?

They're footballers. I very much doubt any of them spend their time worrying about Supreme Court disputes and none of them would likely have any cross over or loyalty to Zantuck.

sounds like he shopped around till he found a denuto type that was willing to have a crack

Read my summary post back a page. Peter Jess found him a lawyer after the AFLPA and Slater and Gordon told him he had minimal prospect of success. Jess has been wanting a test case in his crusade against CTE and I think he has it here.

That's the bit I find confusing, surely the protocol at the time was based on what they knew about concussion and CTE, you can say well we now know this so the duty of care 20 years ago should have been different.

I don't pretend to know what the protocols were back in the pre-04 days but I would hazard a guess that part of the Zantuck submissions at trial would be that they were not to the standard required by modern medical care of that time. I think we can all probably recall circumstances where players have gone back out on the ground when they probably shouldn't have.

Even in 19 Jack Graham for example played a half of a prelim with his shoulder hanging out. I'd wager that probably doesn't reflect medical best practice, though I do not pretend to be an expert, but assuming in 7 years Jack sues the club for negligence in allowing him back on? That would no doubt create an interesting case for a judge to determine. Clubs and medical practitioners have always played pretty fast and loose within footy on game day.

 

[Noidnadroj]

I feel for Zantuck and any other players suffering physically or mentally post career.

But when I watch a game of elite football, it becomes crystal clear to me within seconds that it’s not good for your body.

It’s a bit like a boxer who says after a career in boxing “I can’t believe getting punched in the head a million times over 20-years could one day cause me brain damage…. I’m going to take legal action over this”.

I see this as similar …. playing a brutal sport where your body is getting pulverised by 100kg + goliaths from all angles running at high speed and sinking knees into your back and smacking you in the head when spoiling and diving into your ribs etc…. and then saying after 20-years of that “Geez my body is sore and I can’t move properly …. I can’t understand why the club’s doctor didn’t protect me from developing physical injuries” …..

Of course there is a duty of care …. but c’mon, have you ever sat boundary side at an AFL game? Tell me you’ve done that and not walked away thinking “Holy sh*t, I can’t believe there aren’t at least a couple of deaths every week”. It’s absolutely crazy the level of physical punishment and risk taken by these players every game.



Sent from my iPhone using BigFooty.com

 

[DickieKnee]

I feel for Zantuck and any other players suffering physically or mentally post career.

But when I watch a game of elite football, it becomes crystal clear to me within seconds that it’s not good for your body.

It’s a bit like a boxer who says after a career in boxing “I can’t believe getting punched in the head a million times over 20-years could one day cause me brain damage…. I’m going to take legal action over this”.

I see this as similar …. playing a brutal sport where your body is getting pulverised by 100kg + goliaths from all angles running at high speed and sinking knees into your back and smacking you in the head when spoiling and diving into your ribs etc…. and then saying after 20-years of that “Geez my body is sore and I can’t move properly …. I can’t understand why the club’s doctor didn’t protect me from developing physical injuries” …..

Of course there is a duty of care …. but c’mon, have you ever sat boundary side at an AFL game? Tell me you’ve done that and not walked away thinking “Holy sh*t, I can’t believe there aren’t at least a couple of deaths every week”. It’s absolutely crazy the level of physical punishment and risk taken by these players every game.



Sent from my iPhone using BigFooty.com

Yep, plenty of ex players suffer from chronic ongoing pain.

Hawthorn AFL great Dermott Brereton prepares for 26th major operation

The five-time Hawthorn Hawks premiership champion underwent back surgery on Monday in the hope of getting relief from the constant agony he lives with each day.

www.dailymail.co.uk

 

[Serenity_Now]

That's the bit I find confusing, surely the protocol at the time was based on what they knew about concussion and CTE, you can say well we now know this so the duty of care 20 years ago should have been different.

CTE is not just a concussions thing, it is from repetitive brain trauma, many of those incidents would have no concussive symptoms. This is where I can’t see him possible winning re. the brain injury part as this is a lifetime thing which begins right from when he was playing juniors to continuing to play football post his Richmond delisting.

 

[Phar Ace]

CTE is not just a concussions thing, it is from repetitive brain trauma, many of those incidents would have no concussive symptoms. This is where I can’t see him possible winning re. the brain injury part as this is a lifetime thing which begins right from when he was playing juniors to continuing to play football post his Richmond delisting.

As they say in the classics, "I think that is for the court to decide!"

 

[Simche]

I feel for Zantuck and any other players suffering physically or mentally post career.

But when I watch a game of elite football, it becomes crystal clear to me within seconds that it’s not good for your body.

It’s a bit like a boxer who says after a career in boxing “I can’t believe getting punched in the head a million times over 20-years could one day cause me brain damage…. I’m going to take legal action over this”.

I see this as similar …. playing a brutal sport where your body is getting pulverised by 100kg + goliaths from all angles running at high speed and sinking knees into your back and smacking you in the head when spoiling and diving into your ribs etc…. and then saying after 20-years of that “Geez my body is sore and I can’t move properly …. I can’t understand why the club’s doctor didn’t protect me from developing physical injuries” …..

Of course there is a duty of care …. but c’mon, have you ever sat boundary side at an AFL game? Tell me you’ve done that and not walked away thinking “Holy sh*t, I can’t believe there aren’t at least a couple of deaths every week”. It’s absolutely crazy the level of physical punishment and risk taken by these players every game.



Sent from my iPhone using BigFooty.com

Yeah I get you and I often wonder on the degree of contributory negligence. You think about some of the stuff that is just crazy brave, like going back with the pack and getting smashed. It is not something most of us are built to be able to do from a psychological or physical perspective.

That being said, I do think there is a duty to make the game as safe as possible for players and that includes other players starting to exercise more care in relation to their fellow professionals. One of the reasons I think I was so outraged by the Tom Stewart incident is because it is the sort of thing that can cause CTE (and a range of other horrific injuries) and he was in a position to absolutely avoid that contact. Conversely this last weekend Charlie Dixon lifted Angus Brayshaw in a tackle and could have absolutely smashed him into the ground, but instead lowered him gently back to the ground. Those are the sorts of changes the game is going to have to make if it isn't going to be completely deserted at junior level.

 

[RobsJourney]

Not sure if it has been said already, but isn't it a little bit rich to sue for damages like this when he CHOSE TO PLAY A DANGEROUS CONTACT SPORT ?

Like, whatever the rules for clubs were at the time I have no doubt we followed them, so if it's anything it'll be on the AFL if their policies and processes weren't in-line. I'm sure they were, back then the data on concussion wasn't nearly what it is today.

But concussion is only now being properly given attention to based on the coming out of all the research, it's not like people previously knew how bad it was but just avoided taking care...

But, again, Zantuck and everyone else chose to continue playing AFL, a dangerous sport where injury is an accepted risk. No one had a gun to his head. He was paid (well) for playing too.

I just don't get it. Is it the club's fault he just happened to get knocked in the head but 43 other guys didn't? Couldn't we say he didn't take enough care to protect himself?

It's just so darn gray and ridiculous. It would suck hard to have lifelong lasting effects but, if it were me, I wouldn't be trying to blame someone else, I chose to play the sport so I would accept my part in it.

Should Nathan Brown

22

Nathan Brown

Age

35

Ht

196cm

Wt

99kg

Pos.

Def

Career

Season

Last 5

D

8.8

2star

K

3.9

2star

HB

4.9

4star

M

2.7

3star

T

1.8

4star

No current season stats available

D

6.4

2star

K

3.2

2star

HB

3.2

3star

M

1.8

2star

T

2.8

5star

sue Richmond if his leg still hurts these days?

 

[DickieKnee]

To sue the club and specifically 2 doctors it would suggest there is some degree of negligence by RFC and the doctors.