Dr Peter Kim –

Health Law & Chronic Traumatic Encephalopathy


  • DipLaw (Legal Practitioner’s Admission Board) through the Legal Extension Committee of the University of Sydney
  • Graduate Certificate in Legal Practice (College of Law)
  • Admitted as a Lawyer (the Supreme Court of New South Wales’s Solicitor’s Roll)

Health Law

Capacity to consent

Re B (adult: refusal of medical treatment)

Self-determination v sanctity of life.

  • The fundamental principle that underpins consent to medical treatment is to uphold the principle of self-determination (autonomy). Self-determination is defined as the mentally competent patient having an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.
  • In some situations, there is a conflict between the two interests – autonomy and sanctity of life. In that case, the principle of self-determination overrides the sanctity of life. the right of the competent patient to request cessation of treatment must prevail over the natural desire of the medical and nursing profession to try to keep her alive.

Capacity. Lord Donaldson MR said in Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 at 662

  • There is a presumption of capacity: ‘Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted’.

Assessment of capacity (Lord Donaldson MR in Re T [1992] 4 All ER 649 at 661, [1993] Fam 95 at 113, by adopting Re C (adult: refusal of medical treatment) [1994] 1 All ER 819 at 824).

  • ‘A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment at a relevant time. That inability to make a decision will occur when:

(a) The person is unable to comprehend and retain the information, which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;

(b) The patient is unable to use the information and weigh it in the balance as part of the process of arriving at a decision.’

Civil Liablity Act

Civil Liability Act

Starting point is that a person is not negligent unless….

5B      General principles

(1)     A person is not negligent in failing to take precautions against a risk of harm unless:

  • (a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
  • (b)  the risk was not insignificant, and
  • (c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)     In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

  • (a)  the probability that the harm would occur if care were not taken,
  • (b)  the likely seriousness of the harm,
  • (c)  the burden of taking precautions to avoid the risk of harm,
  • (d)  the social utility of the activity that creates the risk of harm.

5C      Other principles

In proceedings relating to liability for negligence:

(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

5O      Standard of care for professionals

(1)      A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

5P      Division does not apply to duty to warn of risk

This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.

5I       No liability for materialisation of inherent risk

(1)      A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2)  An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

5D      General principles

(1)      A determination that negligence caused particular harm comprises the following elements:

  • (a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
  • (b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)      In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)      If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

  • (a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
  • (b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)      For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

Duty of Care

Duty of care

The duty of care covers examination, diagnosis, treatment and the provision of medical information and advice.
  • Rogers v Whittaker (1992) 175 CLR 479

Can be established even if the doctor did not see the patient.

  • Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 hairy nevus case where traction caused paralysis. The neurosurgeon notifed, did not see patient but decided to review the patient after applying the traction. 
  • Wang v Central Sydney Area Health Service [2000] NSWSC 1339. Patient with head injury attended the emergency department and left without seeing doctor. The hospital was held to have DOC even though doctor did not see the patient.
  • Lowns v Woods [1996] Aust Torts Reps 81 -376. Doctor has to respond to emergencies even if they are not their patient.

Can be established by the clinic’s staff

  • Alexander v Heise [2001] NSWCA 422. Need appropriate triage system in place when calling for appointment.

Duty owed to the husband of a wife with failed tubal ligation

  • Cattanach v Melchior (2003) 215 CLR 1
  • McDonald v Sydney South Western Area Health Service [2005] NSWSC 924

Duty owed to the third party (sexual partner)

  • BT v Oei [1999] NSWSC 1082. A medical practitioner owed a duty of care to the sexual partner/s of a patient. Where the patient’s results were positive, the doctor could not inform the partner/s directly; however, there was an obligation to counsel the patient to inform their partner/s of their HIV status, and to instruct the patient regarding the patient’s own statutory responsibility to inform partner/s before engaging in sexual intercourse with them.
  • Harvey v PD [2004] NSWCA 97. All aspects of doctor-patient relationship is bound by confidentiality with execption of certain circumstances. In NSW, where PD v Harvey was litigated, the Public Health Regulations 1991 provide that a health care worker may disclose information about a person infected with HIV to the Director-General of Health if a health care worker has reasonable grounds to believe that a failure to disclose this information could place the health of the public at risk. The Director-General may notify a person who has been in contact with an HIV-infected person of preventative measures to be taken.
  • AAA v BBB [2005] WASC 139. Duty of care does not extend to a husband where the wife and the doctor was having sexual relationship.

Duty owed by the clinic

  • Idameneo (No 123) Pty Ltd v Gross [2012] NSWCA 423. Clinic management of medical records.

Duty owed by the hospital (non delegable duty of care)

  • Sherry v Australasian Conference Association (t/a Sydney Adventist Hospital) [2006] NSWSC 75

Duty to husband

  • AAA v BBB [2005] WASC 139. No duty to the husband for the wife to stay in marriage.

Duty to the third person

  • ABC v St George’s Healthcare NHS Trust [2020] EWHC 455 (QB)
  • Hunter and New England Local Health District v McKenna [2014] HCA 44. Two inconsistent duties in operation then duty is said to not exist. Duty to not detain psychiatric ill person any longer than necessary

Duty owed to the foetus

  • X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26

Duty to advice of genetic counselling

  • Waller v James [2015] NSWCA 232. Parents undergoing IVF were told to have genetic counselling but was not followed up.
Standard of Care

5O cases

  • Dobler v Halverson [2007] NSWCA 335. Onus is on defendant to discharge 5O(1). GP failed to disprove that ordering ECG in a patient with Long Q-T Sydrome was a widespread medical practice.
  • Melchior v Sydney Adventist Hospital Ltd [2008] NSWSC 1282. It was not widespread practice for orthopedic surgeons to prescribe Clexane after achielle’s tendon surgery.
  • Grinham v Tabro Meats Pty Ltd; Victorian WorkCover Authority v Murray [2012] VSC 491. Q fever vaccine case where the Victorian guideline was not acceptable to establish widspiread medical practice given Q fever as a problem all over Australia, it was necessary to address the issue of Australia-wide practice to satisfy the defence.
  • McKenna v New England & Hunter Local Health District [2013] NSWCA 476. To establish the defence under s5O, (1) did it conform to the practice at the time and (2) establish that the practise was widely accepted by peer professional opinion as competent professional practice.
  • Sparks v Hobson [2018] NSWCA 29. The respondent bore the onus of establishing that Dr Sparks’ decision not to direct the termination of the surgery before that time represented a departure from the standard of care and skill required of a specialist anaesthetist.
  • South Western Sydney Local Health District v Gould [2018] NSWCA 69
    Whether to use Gentamycin or not, “therapeutic guidelines” is a practice capable of engaging s5O.
  • Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107. Shoulder dislocation diagnosed but did not arrange orthopedic review. It was implicit that the experts’ view was that proper professional practice required the Hospital to advise the appellant that it was essential that she have orthopaedic review urgently. Although the appellant was told by the Hospital that she should see an orthopaedic surgeon, there was no finding or evidence that the essentiality and urgency of the consultation was conveyed to her. Breach of duty by the Hospital was therefore established.

5I cases

Paul v Cooke [2013] NSWCA 311

Sparks v Hobson [2018] NSWCA 29

Non delegatable duty by hospital

James Selywn Frost v The Board of Management of Royal Perth Hospital and Jane Margaret Whittaker. WASC. 1997. ED resident missed AMI but found not negligent. But hospital was for not seeking cardiologist consult.


Rogers test.

A risk is material if:

  1. in the circumstances of the case, a reasonable person in the patient’s position would be likely to attach significance to it (“the objective limb”); or
  2. the medical practitioner was, or should have been, aware that the particular patient would be likely to attach significance to it (“the subjective limb”).

Chappel v Hart [1998] HCA 55, 195 CLR 232. Pharyngeal Pouch complication with mediastinitis and recurrent laryngeal nerve injury.

Rosenberg v Percival [2001] HCA 18, 205 CLR 434. Saggittal split osteotomy, risk of nerve injury 1 in 6000.

Odisho v Bonazzi [2014] VSCA 11. Failure to warn thrombosis on taking TXA by OG found to be satisfactiory causation.

Loss of Chance

loss of chance claims

Garvalas v Singh [2001] VSCA 23

Rufo v Hoskings (2004) 61 NSWLR 678

Tabet v Gett [2010] HCA 12.Failure to order CT scan to diagnose brain tumour presenting with headache, nausea and vomiting on a six-year-old with a history of medulloblastoma. Even if it was diagnosed a few days earlier, it would not have increased the chance of a better outcome.

O’Gorman v Sydney South West Area Health Service [2008] NSWSC 1127

Stamoulis v Sydney South West Area Health Service [2010] NSWSC 585

Reproductive Tort


Hassan v Minister for Health (No 2) [2008] WASCA 149

KT v PLG [2006] NSWSC 919 – misdiagnosis of gestation period. 

WRONGFUL CONCEPTION – negligent abortion.

G and M v Armellin [2009] ACTCA 6. The parents sued for the costs of the extra child as per Melchior.

WRONGFUL BIRTH – loss of opportunity to lawfully terminate a pregnancy

Veivers v Connolly [1995] 2 QdR 326. Rubella embryopathy.

CES v Superclinics Pty Ltd (1995) 38 NSWLR 47

Waller v James [2015] NSWCA 232 – duty included the need for genetic counselling.

WRONGFUL LIFE – i shouldn’t have been born

Harriton v Stephens [2006] 226 CLR 52

Access to patient record

Under common law, medical records were doctor’s property: Breen v Williams (1996) 186 CLR 71.

This was overturned by statute.

The Office of the Australian Information Commissioner (OAIC) makes it clear that patients are generally entitled to access their personal health information. Chapter four of the OAIC’s Guide to health privacy states: ‘Patients have a right to access information you hold about them, unless an exception applies’.

Statutory Limitation

Brisbane South Regional Health Authority v Taylor [1996] HCA 25. Statutory limitation case where HCA refused to extend the limitation period for a medicolegal claim brought 17 years after a hysterectomy.

Chronic Traumatic Encephalopathy

Dr Peter Kim’s first paper in Chronic Traumatic Encephalopathy was published in the Journal of Military and Veteran Health.

Chronic traumatic encephalopathy Traumatic Encephalopathy Syndrome Military veterans

Chronic Traumatic Encephalopathy Australia - BLOG
2022 April 21. Interesting article from “Boston University CTE Center study of former Notre Dame football players finds college players more likely to have brain disorders”. It summarises the findings that were published in JAMA Network Open. The study shows that the amateur atheletes at the college level did also have increased rate of developing Chronic Traumatic Encephalopathy. The amateur athletes also had higher chance of developing:
  • Amyotrophic lateral sclerosis (ALS)
  • cognitive imparmnets, behavoural changes and demntia
  • However, they had overall lower mortality rates “Specifically, death rates from heart, circulatory, respiratory and digestive system disorders, and from lung cancer and violence, were significantly lower in the former players than in the general population.”

2022, April 9. It is good to see that “Half of Americans Now Think Playing Football ‘Inappropriate’ for Kids: Survey”. A Survey of 4000 US adults showed that only 45% agreed that tackle football is an “appropriate sport for kids to play.” Half disagreed, while the remaining 5% were unsure. I think it would be a good idea to allow the kids to play football but modify the game rules so that they are protected from Traumatic Brain Injury – No touch footy 🙂

2022, April 8. Interesting article. “We need to protect all athletes from CTE, say Greens”. Finally, Chronic Traumatic Encephalopathy is on the political agenda! Watch this space.

2022, April 2. Chronic Traumatic Encephalopathy is not diagnosable during the life of the individual. An article in The Canberra Times titled “Zantuck raises broader concussion claims” is interesting. The article claims that Zantuck was diagnosed with suspected CTE in late 2021. A damages claim by Richmond player Ty Zantuck raises questions about how the Tigers managed head injuries for all of its players, his lawyers believe. We need to concentrate on the failure of Clubs in their duty to take reasonable care of their players rather than CTE which is not diagnosable during the life of the player.
2022, April 1. This is good news. “Oxford rugby players pledge to donate brains”. More brain donations from the collision sports players are needed for us to delineate the epidemiology of Chronic Traumatic Encephalopathy.
2022, March 30. The legal case of McManus is over, but the public trial has begun. “Knocks leave NRL star with dementia”. 
2022, March 29. CTE: The Biggest Problem in Football”. Yes, correct. it is the biggest problem in all collision sports and in the military.
2022, March 25. Surely, there has to be a better way to manage to bully than to “fighter” train the Rugby players. Have they considered the risk of Chronic Traumatic Encephalopathy?
panthers NRL - fighter training - risk chronic traumatic encephalopathy
2022, March 25. Paddy McCartin reveals all. After 1352 days, the 25-year-old made a fairytale return. Despite his long history with concussions and the very real worry of chronic traumatic encephalopathy (CTE) hovering over the game, McCartin doesn’t play with any fears of another head knock, or what another concussion will mean for his life and his career. If Paddy gets diagnosed with CTE, I hope he does not, I don’t think he can hold the club responsible for failure to warn of the risk of TBI/CTE and possibly he would have taken the voluntary assumption of risk.
2022, March 24. The doctor urges sports to review links with controversial concussion groups that were advised by Dr McCrory. The resignation of McCrory, however, who has long been the most vocal denier of the link between sport and CTE, might create some wriggle room for World Rugby to make such a change without admitting liability. Dr McCrory has been attributed to, in 2011, the minimum return-to-play protocol following a concussion in rugby was changed from three weeks, which had been the standard since 1977, to six days.
2022, March 22.‘His whole life got destroyed’: Former Eagle seeks AFL concussion payout. Peter Venables, the father of the Taylors Lakes-raised Daniel who was forced into premature retirement last year after just 21 matches, said the 23-year-old was still dealing with the mental toll of an injury so severe an AFL medical panel unanimously recommended he avoid contact sport.
The article “Concussion and CTE: sport guidelines “manifestly inadequate” proposes that the current concussion guidelines are inadequate as players are getting diagnosed with CTE under these guidelines and it has not protected them. A/Professor Buckland said it was time the Australian concussion guidelines were reviewed, with a wide range of medical professionals involved in the review. And I agree!
Injuries like this in NRL is not good for CTE. Rooster’s Joey Manu’s facial fracture after being punched.
NRL injury CTE

2022, March 21. An odd story. CTE can only be diagnosed post-mortem. But some people appear to be diagnosed with CTE during their life. Close to turning 86 years old, Éder Jofre is hospitalized in São Paulo. The “Golden Rooster” – who suffers from chronic traumatic encephalopathy – was hospitalized on March 4 due to pneumonia. Considered the greatest bantamweight in boxing history, the former boxer, who was inducted into the sport’s Hall of Fame in 2021, turns 86 on March 26.

We are making progress. Florida researchers discover blood tests for traumatic brain injuries. There are several biomarkers under investigation to detect significant TBI. Here is one of them. Still, a long way to go before it is clinically validated. But we are on the right path.

2022, March 20. Fantastic science. Corrigan identified that the Substance P mediated mechanism was the cause of hyperphosphorylation leading to tauopathy. NK1 receptor antagonist (which inhibits the Substance P) was injected into the rat after exposing it to the TBI. NK1 receptor antagonist successfully reduced the hyperphosphorylation of tau protein and was associated with improved neurological outcomes.

2022, March 19. Great idea. Dr Wu from the University of British Columbia developed a mouthguard with a motion sensor which will be worn by professional hockey players during their games and practice sessions. The mouthguard is capable of capturing data such as the speed and direction of the impact and the strength of the blow. The data would allow the researchers to better understand the effects of accumulated head impacts on neurological function so we’re looking at their memory, their moods, their focus, how it affects their balance and also vision. It is one step towards better understanding the effect of TBI on our brain. Here is the story, 

2022, March 18. Looks like the researchers have generally mapped out, at the molecular level, how the normal brain turns into one with CTE. This is one of the two theories on how TBI causes CTE. Great research, “A mechanism for the development of chronic traumatic encephalopathy from persistent traumatic brain injury.” Look below the tab for the mechanism of action.
2022, March 17. “Domestic violence brain injuries likely outnumber head trauma from football players” raising the possibility of the development of CTE in patients with a history of DV. There is a voice raising awareness of the risk of CTE in DV individuals. “It’s not football players most at risk of CTE”. The possible association between DV and CTE is timely given that “NSW sexual and domestic violence assaults rise, while murder hits historic low.
2022, March 16. The UK Government launches open consultation on acquired brain injury (ABI). This is welcoming news. Australian Government need to follow and launch a consultation on the effect of traumatic brain injury and CTE/TES in the context of recreational and professional sports and the military. The consultation should also extend the inquiry into non-sports or military-related TBIs such as road traffic accidents, falls from heights, being assaulted, sporting accidents, or being hit by falling objects or machinery at work.

2022.  “NRL’s radical concussion change: Power taken away from club doctors”. We need a better system of systematically and consistently diagnosing TBI. One of McManus’ claims was that the concussion was assessed by non-medical personnel and players were often allowed to play through the concussion! However, I am concerned about the accuracy of remote medical consultation in the provision of diagnosis of concussion.

2021. Australia’s First Cyclist, Julie suffered 60 concussions during her sporting career. At age 54, her brain has been permanently damaged.

2021. Coroner examining Danny Frawley’s death urges AFL players to donate brains to science, ABC Online News, accessed 12 September 2021.

2021. Graham ‘Polly’ Farmer is the first Australian Rules player diagnosed with Chronic Traumatic Encephalopathy, ABC Online News, accessed 12 September 2021.

2021.Pengilly Adam et al. ‘You can expect the actual concussions to be 10 times this data’: Medicos call for rugby codes to do more. Sydney Morning Herald. 01 November 2021. <Click here for the link>

2021. Editorial. James McManus’s concussion compensation case against NRL club Newcastle settled in favour of the Knights. ABC Online News. 18 September 2021. <Click here for the link>

2019. A Proszenko and A Pengilly, “Steve Folkes Makes History as First League Player Diagnosed with CTE”, Sydney Morning Herald, 14 July 2019. <Click here to read the article>

2018.Han, Esther. Australia’s first sports brain bank was launched to find head injury and disease links. SMH. 26 March 2018. <Click here to read the article>.

2002. Willis, Olivia. “Neurodegeneration linked to repetitive head injury found in brains of former Australian sports players”. ABC news online. 2002 Feb 28. Accessed 28 February 2022.  <Click here for the link>

How does Traumatic Brain Injury turn a normal brain into one with Chronic Traumatic Encephalopathy

There are two theories of mechanisms of action to explain how a normal brain develops into a brain with CTE. I think there is a link that connects the two mechanisms that are yet to be proven. Neuroinflammation may link the two theories or, perhaps, there are two separate triggering mechanisms.

Both mechanisms share several common features. Trauma is required to trigger the hyperphosphorylation of tau protein, the injury occurs at the interface between the grey and white matter, there is neuroinflammation, there is hyperphosphorylation of tau protein and there is an accumulation of p-tau protein (akin to tau-storage disease).

The first mechanism, proposed by Dermock et al, is through HLA/tau pathway. They propose that:

  • Repetitive TBI shears the brain at the interface of grey and white matter.
  • Increase microbleeds (verified by hematin deposits).
  • Increased permeability of BBB and microglial activation.
  • Microglia and macrophage induce the market increase HLA Class 1 proteins by the neural cells and redistribution of the tau proteins to the glial and neuronal surface.
  • The high level of HLA binds tau protein electrostatically (In those individuals with highly expressed HLA Class I C).
  • The ionic region of HLA class I C (amino acid positions 50-90) binds to the oppositely charged ionic region of tau (amino acid positions 93 to 133).
  • An alignment of tau protein takes place which facilitates cross-linking of tau to form the intracellular and extracellular microfibrils of tau (primary physiological characteristic of tauopathy).
  • Endocytosis of the membrane HLA/tau complex.
  • Microfibrils accumulate and produce tau-storage-like disease.

Demock M, Kornguth S. A mechanism for the development of chronic traumatic encephalopathy from persistent traumatic brain injury. Journal of Experimental Neuroscience. 2019 May;13:1179069519849935.

The second is, proposed by Vink et al, through the Substance P pathway. They propose that:

  • TBI
  • is amplified at the base of the sulci
  • stimulate brain mechanoreceptors
  • initiates the release of the neuropeptide substance P and triggers a positive feedback loop mediated by stimulating neuronal C fibres and by initiating a neuroinflammation cascade
  • that activates a number of kinases resulting in hyperphosphorylation of tau protein

subtance P mediated pathway developing CTE

Vink’s theory is attractive, as in the rat study, with the administration of an NK1 receptor antagonist, tau phosphorylation was attenuated and it was associated with improvement in neurological deficits. NK1 antagonists may thus represent a pharmacological approach to attenuate the potential development of CTE following concussive and blast TBI.

Vink R, Corrigan F. Chronic traumatic encephalopathy: genes load the gun and repeated concussion pulls the trigger. Neural Regeneration Research. 2022 Sep;17(9):1963.

Corrigan F, Cernak I, McAteer K, Hellewell SC, Rosenfeld JV, Turner RJ, Vink R. NK1 antagonists attenuate tau phosphorylation after the blast and repeated concussive injury. Sci Rep. 2021;11:8861.

Important legal cases

McManus v Knights Rugby League

McManus v Knights Rugby League Pty Ltd [2017] NSWSC 1101; McManus v Knights Rugby League Pty Ltd [2019] NSWSC 1179 ; McManus v Knights Rugby League Pty Ltd [2020] NSWSC 85

First Australian Court case that mentioned Chronic Traumatic Encephalopathy. 

McManus was a high profile case where a former Knight’s Rugby Club (the Club) player suffered a number of ongoing disabilities including cognitive impairment, impairment of memory, mood swings, headaches, anxiety, depression, lethargy and sleep disturbance later in his Rugby career. McManus claims that he played 166 games for the Club and he developed mental health issues and CTE after seven concussions[1]. As a result, he missed out on more than $700,000 in wages that would have come later in his career, as well as out of pocket expenses for other medical costs and he sued the Club for $1million in compensation[2].

The story of McManus became public in 2017[3] when he filed a statement of claim to the Supreme Court of NSW to subpoena the documents held by the Club relating to the management of the concussive head injuries he has sustained while he was playing for the Club to determine the issues arising from s 5B[4] and s 5D[5] of CLA. McManus claims that the Club:

  • “owed him a duty to exercise reasonable care to prevent him from suffering a permanent brain injury as a result of head injuries sustained by him in the course of his employment when playing games of rugby league and while training.” [6]
  • “breached its duty to him by continually exposing him to the risk of concussive injury, failing to monitor or assess him properly, relying upon unqualified medical personnel to do so and failing permanently to retire him from the game. He also contends that he should have been warned of the risks of playing when concussed or doing so when recovering from a concussion but that he was not.” [7]

In 2019, McManus filed an amended statement of claim to the Supreme Court of NSW seeking further particulars from the Club. McManus claimed that [8]:

““82. The protocols for the management of concussion were reasonable precautions that Defendant could have taken to manage the risk of Plaintiff suffering permanent disability in the nature of post-concussion syndrome and/or chronic traumatic encephalopathy and/or frontal lobe damage.

  1. It was foreseeable that if Defendant did not follow its protocols that permanent injury in the nature of post-concussion syndrome and/or chronic traumatic encephalopathy and/or frontal lobe damage could be caused to Plaintiff.
  2. The risk of developing permanent disability in the nature of post-concussion syndrome and/or chronic traumatic encephalopathy and/or frontal lobe damage was not insignificant.
  3. A reasonable employer in the position of Defendant would have followed the protocols by which it was bound to protect Plaintiff from developing disabilities in the nature of post-concussion syndrome and/or chronic traumatic encephalopathy and/or frontal lobe damage.
  4. The failure of Defendant to follow its own protocols, as it was contractually bound to do, was both a breach of contract and a breach of the duty of care owed to Plaintiff.”

The case was settled in 2021 in favour of the Club[9].

[1] https://www.foxsports.com.au/nrl/nrl-premiership/teams/knights/exknights-star-james-mcmanus-1m-concussion-lawsuit-dismissed/news-story/5faddad2fe6fe32e8f6c8cf964428e3d

[2] https://www.abc.net.au/news/2021-09-18/former-knight-mcmanus-misses-nrl-concussion-compensation/100473992

[3] McManus v Knights Rugby League Pty Ltd [2017] NSWSC 1101

[4] Civil Liability Act (NSW) 2002, s 5B

[5] Civil Liability Act (NSW) 2002, s 5D

[6] 21 at 3.

[7] 21 at 10.

[8] McManus v Knights Rugby League Pty Ltd [2019] NSWSC 1179 at 5

[9] https://www.abc.net.au/news/2021-09-18/former-knight-mcmanus-misses-nrl-concussion-compensation/100473992




Kennedy and Carson v Speer

Kennedy v McCarthy was a nationwide class-action lawsuit initiated by two veterans against McCarthy, the Acting Secretary of the U.S. Army, commenced on behalf of approximately 50,000 war veterans who were discharged dishonourably due to bad tempers amounting to misconduct. These veterans argued that their bad tempers were a consequence of TBI induced mental health injury, such as post-traumatic stress disorder (PTSD), and that their behaviours may have been caused by a psychiatric condition or brain damage resulting from injuries they acquired during their course of employment as a soldier. The veterans requested their misconduct be re-determined and to set aside the determination to discharge them dishonourably. McCarthy denied these allegations.

In November 2021, the United States District Court for the District of Connecticut ordered McCarthy to automatically reconsider its decisions, in certain circumstances, involving cases where there were demonstrable PTSD and/or TBI. Thousands of unfavourable decisions were reviewed <Click here for the link>. The status of more than 51,400 dishonourably discharged veterans was reversed <Click here for link>. Kennedy and Carson v Speer, Case 3:16-cv-02010-WWE. Filed 17/04/2017. <Click here for the Court submission>. 

NFL Concussion case


Tort Law - Scope of Liability

Common Law Cases

  • March v E & MH Stramare Pty Ltd [1991] HCA 12. Established the “common sense” approach to determine the scope of liability of causation.
  • Chappel v Hart (1998) 156 ALR 517. Followed March v Stramere.
  • Bustos v Hair Transplant Pty Ltd and anor [1997] NSWCA 55
  • Berger v Mutton 1994 DCNSW
  • Barnett v Chelsea and Kensington Hospital [1969]
  • Black v lipovac [1998] FCA 699
  • Leask Timber & Hardware Pty Ltd v Thorne [1961] HCA 73
  • Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191

Civil Liability Act 2002 cases: s 5D(1)(b), s5D(4) and s5E.

  • Wallace v Kam [2013] HCA 19. Explained the operation of s5D(1), s5D(4) and s5E.
  • Paul v Cooke [2012] NSWSC 840
  • Stephens v Giovenco [2011] NSWCA 53
  • Zakka v Elias [2013] NSWCA 119



To succeed in an action of negligence a plaintiff must establish causation. The common law test of causation was established in the decision of the High Court in March v Stramare[1] (March) and Chappel v Hart[2](Chappel). The legal causation is determined by examining two questions: a question of historical fact, as to whom the particular harm occurred (factual causation); and a normative question, as to whether legal responsibility, for that particular harm occurring in the way it did, should be attributed to a particular person (scope of liability). The ‘common-sense approach’ was the test endorsed by the High Court to determine the scope of liability[3] and it is a normative process by which the Court is to determine whether the outcome of factual causation is fair and rational, by examining it through the prism of ‘value judgments’ and ‘policy considerations’.[4]

In Australia, since 2002, the primary source of law that deals with the tort of negligence are the Civil Liability Act 2002[5]. The relevant sections, in the CLA, to establish legal causation are found in s 5D[6] and s 5E[7] of the CLA. The common law test for causation consisting of a two-question test was, in 2002, codified into the CLA in s 5D(1): subsections (a) dealing with the factual causation and (b) dealing with the scope of liability. An affirmative answer to both questions is required to establish legal causation[8].

s 5D(1)(b) of the CLA deals with the scope of liability. It provides “that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).” s 5D(1)(b) is to be read in conjunction with s 5D(4). s 5D(4) provides “For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.” In essence, the s5D(1)(b) codified the common law test of the “common-sense approach”. If factual causation is not established there is no need to determine the scope of liability. Once factual causation has been established, then a subsequent determination of the scope of liability is necessary by considering s 5D(1)(b) and s 5D(4][9]. It rests on the plaintiff to establish the causation and the defendant to displace it, on the balance of probability: s 5E[10].

The scope of liability is a normative inquiry, used to determine whether the defendant should be liable for their negligent conduct.[11] In determining the scope of liability pursuant to s 5D(4), the court must consider the ‘amongst other relevant things. The concept of the duty and the policy underpinning that duty are relevant in establishing the scope of liability.[12] In the context of failure to warn, the defendant’s duty (to warn) arises from the policy which is designed to uphold the plaintiff’s autonomy by alerting them of the material risk(s), so that the plaintiff can decide whether or not to submit to the treatment in question.[13] In the context of failure to diagnose, the defendant’s duty to diagnose arises from the policy which is designed to enable the plaintiff to seek appropriate treatment, so as to “protect the patient from harm from illness or injury that can be avoided or alleviated by treatment.”[14] Appropriate characterisation of the relevant duty and the corresponding policy is essential to determine whether or not, and why, responsibility for the harm that was caused to the plaintiff should be imposed upon the defendant.[15]

Justice McHugh, in Wallace v Kam, outlined the following procedural aspects to consider when applying s 5D of the CLA. In a case, falling within an established class, the policy to be considered by a Court is to follow the application of precedence.[16] In a novel case, the court must consider the scope of the liability question in light of s 5D(4) by characterising the appropriate policy of the relevant part of the law.[17]

The threshold of the standard of proof applied to establish the causal connection between negligent conduct and the injury is on the balance of probability. The plaintiff has the onus to demonstrate that the plaintiff would have acted on the warning, if it was disclosed to them, and would have desisted from pursuing the type of activity, or course of conduct, which resulted in the harm. The onus is then shifted to the defendant to displace the causation.[18]


In certain circumstances, the defendant’s conduct was found negligent and the factual causation established; however, the court displaced the legal causation by establishing that:

  • The plaintiff would have persisted with the same course of action even if they were warned of the material risk29: see Wallace v Kam, Bustos v Hair Transplant Pty Ltd and anor and Berger v Mutton.
  • The plaintiff would have persisted with the same course of action even though the material risk was not warned as the plaintiff was compelled to take a course of action as the alternate options would have produced a risk of injury that is equal or greater29: see Chappel v Hart (minority decision) and Paul v Cooke.
  • The plaintiff suffered the injury at another place and at another time but the delay in receiving the treatment did not increase the risk of that injury29: see Paul v Cooke.
  • The eventuation of the material risk is so statistically improbable as not to be fairly attributable to the defendant’s conduct34: see Chappel v Hart (minority decision).
  • The eventuation of the material risk was inevitable and would probably have occurred even though the defendant’s conduct was negligent34: see Barnett v Chelsea and Kensington Hospital Management Committee.
  • The injury presented as a life-threatening emergency that demanded an instant response, without the opportunity to obtain informed consent.34
  • The injury was the immediate result of unreasonable action on the part of the plaintiff34: see Stephens v Giovenco, Zakka v Elias and Black v lipovac.
  • The negligent conduct was logically irrelevant to the actual damage that occurred34: see Leask Timber & Hardware Pty Ltd v Thorne and Paul v Cooke.
  • The injury was a coincidence or merely incidental34: see Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltdand March v Stramare.

[1] March v E & MH Stramare Pty Ltd [1991] HCA 12.

[2] Chappel v Hart (1998) 156 ALR 517.

[3] March v E & MH Stramare Pty Ltd [1991] HCA 12, 19.

[4] Ibid, 14. (Toohey J)

[5] Civil Liability Act 2002 (NSW). The Civil Liability Act 2002 (NSW) applies to all proceedings relating to the liability for negligence, commenced after 6 December 2002.

[6] Civil Liability Act 2002 (NSW) s 5D.

[7] Civil Liability Act 2002 (NSW) s 5E

[8] Wallace v Kam [2013] HCA 19, 21.

[9] Wallace v Kam [2013] HCA 19, 18.

[10] Wallace v Kam [2013] HCA 19, 13.

[11] ibid, 11.

[12] Chappel v Hart (1998) 156 ALR 517, 34. (McHugh J)

[13] Rogers v Whitaker [1992] HCA 58, 486-490.

[14] Paul v Cooke [2013] NSWCA 311, 66. (Brereton J)

[15] Zanner v Zanner [2010] NSWCA 343, 79. (Tobias JA)

[16] Wallace v Kam [2013] HCA 19, 22.

[17] Chappel v Hart (1998) 156 ALR 517, 93. (Kirby J)

[18] Chappel v Hart (1998) 156 ALR 517, 34. (Gaurdron J)

Tort Law - Factual Causation
  • Beran RG, Bhaskar, S “Concussion within the Military” J Military and Vet Health. 2018: 26 (3); 20 – 27.
  • Wallace v Kam [2013] HCA 19
  • Civil Liability Act 2002 (NSW) s 5D, s5E.
  • Ipps Report.
  • Barnett v Chelsea & Kensington Hospital Management Committee [1968] 2 WLR 422.
  • Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48, 45.
  • Bonnington Casting v Wardlaw
  • Fairchild
  • Hart v Chappel
  • Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v The State of South Australia & Ors [2006] WASC 270
  • Suter CM, Affleck AJ, Lee M, Pearce AJ, Iles LE, Buckland ME. Chronic traumatic encephalopathy in Australia: the first three years of the Australian Sports Brain Bank. Med J Aust 2022.
  • Mez J, Daneshvar DH, Kiernan PT, Abdolmohammadi B, Alvarez VE, Huber BR, Alosco ML, Solomon TM, Nowinski CJ, McHale L, Cormier KA. Clinicopathological evaluation of chronic traumatic encephalopathy in players of American football. Jama. 2017 Jul 25;318(4):360-70.
  • Bieniek KF, Ross OA, Cormier KA, Walton RL, Soto-Ortolaza A, Johnston AE, DeSaro P, Boylan KB, Graff-Radford NR, Wszolek ZK, Rademakers R. Chronic traumatic encephalopathy pathology in a neurodegenerative disorders brain bank. Acta neuropathologica. 2015 Dec;130(6):877-89.
  • McKee AC, Daneshvar DH. The neuropathology of traumatic brain injury. Handb Clin Neurol. 2015; 127: 45–66.
  • Omalu BI, DeKosky ST et al. Chronic traumatic Encephalopathy in a National Football League player. Neurosurgery. 2005; 57:128–34.
  • McKee AC, Robinson ME. Military-related traumatic brain injury and neurodegeneration. Alzheimers Dement. 2014; 10(3):242-53.
References & Case summaries
Postupna N, Rose SE, Gibbons LE, Coleman NM, Hellstern LL, Ritchie K, Wilson AM, Cudaback E, Li X, Melief EJ, Beller AE, Miller JA, Nolan AL, Marshall DA, Walker R, Montine TJ, Larson EB, Crane PK, Ellenbogen RG, Lein ES, et al. The delayed neuropathological consequences of traumatic brain injury in a community-based sample. Front Neurol. 2021;12:624696.
532 consecutive brain autopsies from participants in the Adult Changes in Thought (ACT) study were examined for CTE. 107 had and 425 did not have a history of remote TBI with loss of consciousness (w/LOC). Out of 532 cases, only 3 (0.6%–none with TBI w/LOC history) showed evidence of the neuropathologic signature of chronic traumatic encephalopathy (CTE). This study implies that the prevalence of CTE in the community is low and supports the argument that CTE occurs in susceptible individuals.
Pearce AJ, Sy J, Lee M, Harding A, Mobbs R, Batchelor J, Suter CM, Buckland ME. Chronic traumatic encephalopathy in a former Australian rules football player diagnosed with Alzheimer’s disease. Acta neuropathologica communications. 2020 Dec;8(1):1-4.
The case report of the first Australian Rules Football player diagnosed with CTE. A male in his 9th decade who had played more than 350 first-grade matches of ARF over 19 years. He was diagnosed with Alzheimer’s disease at the age of 64 and also had mild Parkinson’s disease. A male’s brain was donated to the Sports Brain Bank and CTE was diagnosed post-mortem.
Mez J, Alosco ML, Daneshvar DH, Saltiel N, Baucom Z, Abdolmohammadi B, Uretsky M, Nicks R, Martin BM, Palmisano JN, Nowinski CJ. Validity of the 2014 traumatic encephalopathy syndrome criteria for CTE pathology. Alzheimer’s & Dementia. 2021 Oct;17(10):1709-24. The current study’s goal was to assess the inter-rater reliability and diagnostic validity of TES criteria (Montenigro) using CTE pathology as the gold standard.
  • Among RHI-exposed brain donors, the 2014 research diagnostic criteria for TES demonstrated good inter-rater reliability and high sensitivity, but low specificity for CTE pathology, providing moderate to strong evidence to rule out, but limited evidence to rule in, CTE pathology.
  • When individual TES criteria components were assessed, cognitive symptoms, but not mood/behaviour or motor symptoms, were significantly associated with CTE pathology.
Bieniek KF, Cairns NJ, Crary JF, Dickson DW, Folkerth RD, Keene CD, Litvan I, Perl DP, Stein TD, Vonsattel JP, Stewart W. The second NINDS/NIBIB consensus meeting to define neuropathological criteria for the diagnosis of chronic traumatic encephalopathy. Journal of Neuropathology & Experimental Neurology. 2021 Mar;80(3):210-9.
The first neuropathology criteria published by this group was the landmark study that established the criteria for the diagnosis of CTE. This is the updated neuropathological criteria for Chronic Traumatic Encephalopathy. There were a few procedural variations but 
the study noted that the new CTE could be accurately diagnosed using McKay’s original description of CTE pathognomonic lesion and upheld it as the pathognomonic criteria for diagnosis of CTE. However, They did not agree with McKay’s criteria for staging CTE.
2022.Vink R, Corrigan F. Chronic traumatic encephalopathy: genes load the gun and repeated concussion pulls the trigger. Neural Regeneration Research. 2022 Sep 1;17(9):1963-4.
As the title implies, “genes load the gun and repeated concussion pulls the trigger’, the authors are arguing that some individuals are genetically prone to getting CTE and those genetically susceptible individuals develop CTE when exposed to traumatic brain injuries. The genes coding for the release of Substance P release is the key mechanism involved in developing CTE in individuals.
Published article with the assistance of a grant from the National Health and Medical Research Council of Australia.
genes load the gun and repeated concussion pulls the trigger
2022. Omalu B, Hammers J. In Reply: Recommendation to Create New Neuropathologic Guidelines for the Postmortem Diagnosis of Chronic Traumatic Encephalopathy. Neurosurgery. 2022 Jan 1;90(1):e21-3.
Omalu is one of the authorities in CTE. He is claiming that McKay’s CTE criteria are flawed because her diagnostic criteria are too narrow and if applied strictly many CTE cases would be missed. He is offering an alternate CTE classification that includes the clinical features and provides a probability of having CTE as not, low, medium or highly likely.
Omalu also proposed that CTE classification should be replaced with TES as TES includes a ” full spectrum of degenerative brain diseases that follow all types of brain trauma, which should be more appropriately referred to as the “traumatic encephalopathy syndromes” (TESs) including but not limited to sub concussions, concussions, post-concussion syndrome, post-traumatic encephalopathy, post-traumatic epilepsy, mild cognitive impairment, mild behavioural impairment, mood disorders and other neuropsychiatric syndromes, CTE, neurovascular diseases, and dementia.”.
2022. Lövestam S, Koh FA, van Knippenberg B, Kotecha A, Murzin AG, Goedert M, Scheres SH. Assembly of recombinant tau into filaments identical to those of Alzheimer’s disease and chronic traumatic encephalopathy. eLife. 2022 Mar 4;11:e76494.
This study report in vitro assembly conditions with recombinant tau that replicates the structures of filaments from both Alzheimer’s disease (AD) and chronic traumatic encephalopathy (CTE). If the tau-proteinopathy can be replicated in-vitro, we have a model that can be tested and find more about the disease. If the findings of this study can be replicated in other labs, it will be a groundbreaking outcome for the study into the development and progression of CTE.
2022. Goodwin, Paul. Former Doncaster Rovers, Leeds United and Aston Villa defender diagnosed with degenerative brain disease. Doncaster Free Press. 9th March 2022. <Click here to read the CTE story>.
Brendon is a 61-year-old former soccer player for Doncaster Rovers, Leeds United and Aston Villa. He suffered a stroke in 2013 which left him unable to speak and a neurologist has told his family he is living with CTE – a neurodegenerative disease linked to repeated blows to the head. CTE is a post-mortem diagnosis and I am not sure how his neurologist could diagnose Brendon’s CTE as he is alive.

2022. Paper presented at the American Academy of Neurology’s 74th Annual Meeting  <Click here to read the article>

ADDITIONAL YEARS OF ICE HOCKEY PLAY MAY BE LINKED TO A GREATER CHANCE OF CTE. The study involved 74 people who played ice hockey at various highest levels: seven played at the youth level, 25 played at the high school level, 22 played at the junior or college level, 19 played professionally and one played at an unknown level. In addition, 34 people, or 46%, played another contact sport like football. All donated their brains to research after their death. Of the 74 donors, 40, or 54%, were diagnosed with CTE at autopsy. Researchers found that each additional year of play corresponded to a 23% increased chance of having CTE.

2022. Suter CM, Affleck AJ, Lee M, Pearce AJ, Iles LE, Buckland ME. Chronic traumatic encephalopathy in Australia: the first three years of the Australian Sports Brain Bank. Med J Aust 2022. <Click here to read the article>

This is the first article by the Australian Sports Bank Brain reporting their preliminary findings of Chronic Traumatic Encephalopathy based on the first 21 completed donated brains (to 26 March 2021).
All 21 brains had a history of repetitive head injury but 12 had CTE. Individuals diagnosed with CTE had the following characteristics:
  • that they died at a younger age (48 years compared to 75)
  • that 6 out of 12 CTE individuals died from suicide.
  • that CTE was identified in the brains of older former professionals with long playing careers, but also in younger, non‐professional sportsmen and in recent professionals who had played under modern concussion guidelines.
2021. Katz DI, Bernick C, Dodick DW, Mez J, Mariani ML, Adler CH, Alosco ML, Balcer LJ, Banks SJ, Barr WB, Brody DL. National Institute of Neurological Disorders and Stroke consensus diagnostic criteria for traumatic encephalopathy syndrome. Neurology. 2021 May 4;96(18):848-63. <click here to read the article>
The first diagnostic criteria for traumatic encephalopathy syndrome (TES), is the clinical disorder associated with neuropathologically diagnosed chronic traumatic encephalopathy (CTE).

2021. Herring S et al. Selected issues in sport-related concussion (SRC mild traumatic brain injury) for the team physician: a consensus statement. Br J Sports Med 2021: 0:1-11.

This statement was developed by the Team Physician Consensus Conference (TPCC), an annual project-based alliance of six major professional associations. The goal of this TPCC statement is to assist the team physician in providing optimal medical care for the athlete with a concussion.

2017. Mez J, Daneshvar DH, Kiernan PT, Abdolmohammadi B, Alvarez VE, Huber BR, Alosco ML, Solomon TM, Nowinski CJ, McHale L, Cormier KA. Clinicopathological evaluation of chronic traumatic encephalopathy in players of American football. Jama. 2017 Jul 25;318(4):360-70.

Boston University Brain Bank (Concussion Legacy Foundation ). In a convenience sample of 202 deceased players of American football from a brain donation program, CTE was neuropathologically diagnosed in 177 players across all levels of play (87%), including 110 of 111 former National Football League players (99%).

2016. McKee AC et al. The first NINDS/NIBIB consensus meeting to define neuropathological criteria for the diagnosis of chronic traumatic encephalopathy. Acta Neuropathol. 2016; 131(1): 75-86.

This is the landmark study published by McKee et al that defined the pathognomonic features of CTE necessary to diagnose CTE.

2014. McKee AC, Robinson ME. Military‐related traumatic brain injury and neurodegeneration. Alzheimer’s & Dementia. 2014 Jun;10:S242-53.

In another study by the Boston VA TBI Brain Bank, CTE 16 out of 23 brains donated by veterans suffering from TBIs were also found to have CTE.

2015. Bieniek KF, Ross OA, Cormier KA, Walton RL, Soto-Ortolaza A, Johnston AE, DeSaro P, Boylan KB, Graff-Radford NR, Wszolek ZK, Rademakers R. Chronic traumatic encephalopathy pathology in a neurodegenerative disorders brain bank. Acta neuropathologica. 2015 Dec;130(6):877-89.

A Mayo Clinic brain bank study[1] of 1721 brains without any neuropathological diagnosis showed that 66 individuals had a history of contact sports and 21 out of 66 brains were diagnosed with CTE. The high prevalence of CTE in sports brain banks is criticised for their selection bias.

Watch this space

2022 03 18. A better understanding of TBI in Hockey players using the mouthguard capable of capturing data such as the speed and direction of the impact and the strength of the blow. A 5 year trial by the University of British Columbia began in 2022.

2016. In 2016, the U.S. Military established a neurotrauma consortium (CENC) and initiated a multi-centre observational study. It is a longitudinal, prospective study to establish and comprehensively evaluate a cohort of at least 1,000 US service members, who served in recent military conflicts, to better understand the possible chronic and late-life effects of TBI. The participants will be interviewed every five years to monitor the development of TES clinical features. The significance of this study is to identify the link between TBI and TES/CTE. The data collected from this study will give insightful epidemiological information to establish causation and prevent and manage TES/CTE.