News Zantuck given green light to pursue damages

[Roksman]

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

Great news.

Time to burn the empire down and start fresh.

#boycottAFL

 

[Not Important]

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

there'll b a mediated settlement which will b all encompassing ie cover other eventualities. the afl won't want litigation.

 

[SunshineBoy]

Great news.

Time to burn the empire down and start fresh.

#boycottAFL

I’m with this

 

[SunshineBoy]

there'll b a mediated settlement which will b all encompassing ie cover other eventualities. the afl won't want litigation.

Might not be their choice especially if he has his back up and it starts the avalanche

 

[RFCGloryJC]

It is a test case.
It would set a precedent.
Every player with a long-term concussion history would sue the AFL if Ty wins.
That's why it must be stopped.
It must be nipped in the bud.
AFL has less protection than any other contact sport and sadly concussion is part and parcel of AFL.

 

[RFCGloryJC]

You can't override a legally binding contract, which had the best medical advice available at the time.
For a fit adult male, lifting a 30 kilogram weight is not responsible for causing a lumbar condition.
No way.
I feel sorry that Ty might be bankrupted.

 

[SunshineBoy]

It is a test case.
It would set a precedent.
Every player with a long-term concussion history would sue the AFL if Ty wins.
That's why it must be stopped.
It must be nipped in the bud.
AFL has less protection than any other contact sport and sadly concussion is part and parcel of AFL.

Why does it need to be stopped? Are you wanting the AFL to get a free ride,? Let’s pay Gilligan big bonuses

 

[Ancient Tiger]

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

That is not true. It only suggests that the plaintiff thinks there is negligence by the RFC and its doctors. The judge has weighed up the evidence and feels that this should play out in a court of law. Nothing more and nothing less. If the court feels that there is negligence, then they will hand down the appropriate verdict.

 

[Tiger_Of_Old]

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?

Oh yeah no doubt.

 

[RFCGloryJC]

Has Ty met with Chris Scott

Chris Scott

Age

47

Ht

182cm

Wt

89kg

Pos.

Fwd

Career

Season

Last 5

D

16.6

4star

K

11.2

4star

HB

5.4

4star

M

5.1

5star

T

1.6

4star

G

0.4

3star

No current season stats available

D

13.2

4star

K

10.2

4star

HB

3.0

3star

M

2.2

3star

T

2.8

5star

G

0.4

3star

?

 

[tora tora tora]

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.

As a 30 year old I've injured my back lifting a 30kg mower and twisting my back. It killed. I took mobic for it. But the back is never the same. I don't mow lawns for a living but if I did I'd have to use trailers etc. Some expense....but if Ty has had a crack at suing and not been successful then the CTE is probably his best avenue of attack.
His clubs allowed him back on a footy field and before concussion healed and current research says this can lead to increased chance of sustaining other injuries Just googled it and found NFL is up for $1 billion for excluding black players from receiving payouts for dementia caused by CTE. Now this is John Barnes, John Platten's situations. Are those guys suing anyone? Or eligible for payouts?
If Zantuck is successful linking the CTE claim then surely RFC would appeal and say the AFL, EDFL, EFC and Zantuck's suburban clubs shared a proportionate liability.
The day sport died.

 

[tora tora tora]

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 sue Richmond if his leg still hurts these days?

Not at pro level but I've had more injuries playing "non contact" basketball than football...I guess Zantuck played the majority of his football at RFC so is naming us in his lawsuit. Say, compared to Shaun Smith got a 1.4million CTE related pay out in 2020 clearly concussion related. Footy didn't stop. So, niot sure who pays if RFC loses the case. (maybe we do our penalty by relocating to Tasmania )

Zantuck's seems to be kiteflying trying to link CTE with chronic back injuries.

I'm surprised Barnes & Platten haven't had pay outs.

 

[DickieKnee]

a 30 year old I've injured my back lifting a 30kg mower and twisting my back. It killed.

Yep I've done my back lifting a lot less than 30kg and as you say the pain is excruciating. Doctors today recommend to keep mobile, it's impossible without pain killers, just standing is an ordeal in itself.

 

[Juke]

It is a test case.
It would set a precedent.
Every player with a long-term concussion history would sue the AFL if Ty wins.
That's why it must be stopped.
It must be nipped in the bud.
AFL has less protection than any other contact sport and sadly concussion is part and parcel of AFL.

You can't override a legally binding contract, which had the best medical advice available at the time.
For a fit adult male, lifting a 30 kilogram weight is not responsible for causing a lumbar condition.
No way.
I feel sorry that Ty might be bankrupted.

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.

Mate, with respect, nearly everything you have posted thus far has been incorrect or based on a poor understanding of the law. The fact that the limitations hurdle has been cleared alone means that Zantuck isn't being a vexatious litigant. Exclusion clauses in employment contracts for personal injury are overridden all the time. I'm not sure what you mean by calling this 'retrospective'.

The matter will turn on the evidence regarding the injections, the cause of the back injury, and the treatment provided post head knocks, but there is clearly a case to be answered here by RFC.

 

[Phar Ace]

Interesting side note, NFL helmets are only used to prevent superficial head injuries and don’t do all that much, if anything, to prevent movement of the brain in the skull which is where a concussion occurs.

There have been studies done that show those type of helmets are worse in a way because you have players leading with their head due to the fact that you’re not as much at risk of a skull fracture or the like. Rates of CTE in Gridiron players back this up too.

Yep, has led to false sense of security and bravado

 

[tora tora tora]

You can't override a legally binding contract, which had the best medical advice available at the time.
For a fit adult male, lifting a 30 kilogram weight is not responsible for causing a lumbar condition.
No way.
I feel sorry that Ty might be bankrupted.

I'd be guessing the legal fee is pro bono otherwise very difficult for Ty I mean given the inevitable appeals to an adverse

Mate, with respect, nearly everything you have posted thus far has been incorrect or based on a poor understanding of the law. The fact that the limitations hurdle has been cleared alone means that this Zantuck isn't being vexatious litigant. Exclusion clauses in employment contracts for personal injury are overridden all the time. I'm not sure what you mean by calling this 'retrospective'.

The matter will turn on the evidence regarding the injections, the cause of the back injury, and the treatment provided post head knocks, but there is clearly a case to be answered here by RFC.

The day I saw a court decide in favour of the guy who dived into the ocean between the flags at Bondi broke his neck and sued the Waverly Council I thought anything is possible. He was quadraplegic. The decision was successfully appealed and successfully counter appealed. So I'm not sure what happens to the actual money. Does Ty get it until an appeal?

Ty might have to go through the same appeal process or we have to rattle the cans again. Are RFC insured for this?

 

[SunshineBoy]

Not at pro level but I've had more injuries playing "non contact" basketball than football...I guess Zantuck played the majority of his football at RFC so is naming us in his lawsuit. Say, compared to Shaun Smith got a 1.4million CTE related pay out in 2020 clearly concussion related. Footy didn't stop. So, niot sure who pays if RFC loses the case. (maybe we do our penalty by relocating to Tasmania )

Zantuck's seems to be kiteflying trying to link CTE with chronic back injuries.

I'm surprised Barnes & Platten haven't had pay outs.

Zantuck played the majority of his football at Heidelberg, Kangaroo flat and strathmore for 5+ years after the tigers, but he would get diddly squat from those clubs

 

[SunshineBoy]

I'd be guessing the legal fee is pro bono otherwise very difficult for Ty I mean given the inevitable appeals to an adverse

The day I saw a court decide in favour of the guy who dived into the ocean between the flags at Bondi broke his neck and sued the Waverly Council I thought anything is possible. He was quadraplegic. The decision was successfully appealed and successfully counter appealed. So I'm not sure what happens to the actual money. Does Ty get it until an appeal?

Ty might have to go through the same appeal process or we have to rattle the cans again. Are RFC insured for this?

I reckon the AFL will be drawn in as ultimately they own the RFC

 

[Juke]

I'd be guessing the legal fee is pro bono otherwise very difficult for Ty I mean given the inevitable appeals to an adverse

The day I saw a court decide in favour of the guy who dived into the ocean between the flags at Bondi broke his neck and sued the Waverly Council I thought anything is possible. He was quadraplegic. The decision was successfully appealed and successfully counter appealed. So I'm not sure what happens to the actual money. Does Ty get it until an appeal?

Ty might have to go through the same appeal process or we have to rattle the cans again. Are RFC insured for this?

Unlikely it would be pro bono. If Zantuck were skint, he would have entered into a conditional costs agreement with his lawyers.

Highly likely that the matter will settle, IMO, particularly if the AFL become joined in the proceedings.

 

[Phar Ace]

I'd be guessing the legal fee is pro bono otherwise very difficult for Ty I mean given the inevitable appeals to an adverse

The day I saw a court decide in favour of the guy who dived into the ocean between the flags at Bondi broke his neck and sued the Waverly Council I thought anything is possible. He was quadraplegic. The decision was successfully appealed and successfully counter appealed. So I'm not sure what happens to the actual money. Does Ty get it until an appeal?

Ty might have to go through the same appeal process or we have to rattle the cans again. Are RFC insured for this?

Is anyone insured for anything until you read all the fine print, assess all the mitigation clauses, understand what 'reasonable' means and clear up whether you have been assessed as co-insured by way of omission. It's pretty simple really!

 

[Phar Ace]

Unlikely it would be pro bono. If Zantuck were skint, he would have entered into a conditional costs agreement with his lawyers.

Highly likely that the matter will settle, IMO, particularly if the AFL become joined in the proceedings.

That has been my expection from the beginning - no precedent is a better result - some payout is mission successful!

 

[deanc]

Mate, with respect, nearly everything you have posted thus far has been incorrect or based on a poor understanding of the law. The fact that the limitations hurdle has been cleared alone means that Zantuck isn't being a vexatious litigant. Exclusion clauses in employment contracts for personal injury are overridden all the time. I'm not sure what you mean by calling this 'retrospective'.

The matter will turn on the evidence regarding the injections, the cause of the back injury, and the treatment provided post head knocks, but there is clearly a case to be answered here by RFC.

While I concur evidence is key for a judgment determination, there is unlikely to be any reliance on historical medical practices including 'injections', given that 8 years later we still don't know what the Essendon players received!
Moreover, legal counsel for the claimant will need to demonstrate/prove that medical advice, best practices and treatments 'known at the time' were ignored, again good luck with that...

One interesting related aspect is that Zantuk continued to play high level competitive footy for 5+ years after his former AFL club were allegedly negligent in their duty of care - or/or could it be argued this was because he was not made aware of his 'health issues' by his former club..?

I also suggest some need to be wary of the media's reporting on this, as they are generally 'headlines first' and specifically with this story have no knowledge or expertise in such matters. E.G. Four years ago Hannah Mouncey was 'reportedly' imminently proceeding with a legal claim against the AFL for discrimination - how's that going..?

A final observation - unlike some have suggested, I'd be surprised if any form of mediation takes place, mainly as mediation is usually the precursor for settlement and of course any settlement agreed to by the defendant implies guilt/liability. The AFL I suspect would prefer a court proceeding as in the unlikely event they lose, they can appeal and in the more likely event the case is dismissed, rightly or wrongly this will deter others from pursuing similar action...