‘Duty of care’ and what it means to Elijah Hollands and professional sport

In the days that have followed Carlton’s Elijah Hollands’ mental health episode during last Thursday’s match against Collingwood, three words have featured heavily in the discourse about the incident: duty of care.

What was the club’s duty of care to Hollands? Why do some believe the club abdicated that duty before Hollands went on the field and then continued to play? And critically, what are the legal implications for Carlton if they failed in delivering this duty of care?

Those three words are also floated in rival codes. They were common after rugby league player Eli Katoa was hospitalised following three separate head knocks before and during a game for Tonga last year, and were repeated this week when the Dragons parted ways with coach Shane Flanagan.

“As a club, as an employer, there is a duty of care, not just to the club, to its supporters, its fans, but a duty of care to our employees,” Dragons chair Andrew Lancaster said during a press conference announcing Flanagan’s departure.

But what is a duty of care, and what happens when clubs don’t fulfil these obligations?

What does ‘duty of care’ mean?

The words “duty of care” refer to a legal concept and are the starting point for negligence lawsuits – a civil wrong that says people should be responsible when they cause foreseeable harm to others. In sport, these obligations arise in a similar way to any employer-employee relationship.

“Every employer owes their employee duties of care to provide a safe place of work, among other things,” sports lawyer Paul Horvath said. “Particularly in a sporting environment where athletes are engaged in physical body contact sports, where the risk of injury is much greater, then that duty of care is much more elevated.

“Take a really rudimentary example, a player has a collision on the field and breaks their leg and they say, ‘I’ve got a really sore leg.’ And you say, ‘get up, go back out on the field and keep going.’ Then that’s clearly negligence because you had a responsibility to be aware of the risk of harm, and you proceeded to take a certain action disregarding that risk of harm to that person to whom you owe that duty of care.”

Sports organisations have become increasingly aware of their duty of care obligations, as evident in concussion protocols and the NRL’s rule changes this week to limit contact training. We are also seeing it play out in the AFL class action lawsuit in which former players have accused the league of failing to protect them from brain injuries.

When athletes bring lawsuits against sporting bodies, they must prove a duty of care exists and then show the club or league breached that duty by failing to meet the standard of care of a reasonable person.

But it’s not all simple, and many cases fail for myriad reasons. A High Court case in 2000 found that rugby players in Australia couldn’t sue the international rugby body for negligence, in part because the court didn’t believe it would be fair to find them liable for all risks or injuries incurred by anyone who plays the sport.

Could Carlton be held liable for breaching its duty of care towards Elijah Hollands?

While the concept of duty of care comes from negligence claims, and while Carlton has duty of care obligations to Hollands, there has been no indication that he would bring a claim against them even if he believed they’d breached it. Even if he did, that claim’s success would depend on several other tests, too.

Any claim by Hollands would largely depend on whether he suffered harm because the club let him play and whether that harm was foreseeable to the club. That foreseeability is frequently a big issue in negligence lawsuits against clubs, according to professor in sports law at the University of Sydney, Dr David Thorpe.

“The best way to look at it is if the club or the organisations … if they ought to have known of a risk and warned of it, where the player could not know of that risk, then they’re likely to be sued,” Dr Thorpe said.

“The player goes on [and] then it becomes evident on the field of play, and similar to the player who was, say, concussed or something, they should be taken off. That’s your obligation. You’ve taken a responsibility to care for the players’ health and well-being while on the field. But again, you have to know or ought to have known. So that’s the critical thing. At what point was it known? What would have been the reasonable thing to do?”

Athletes also have to show the duty of care breach caused harm – whether physical or psychological – and that this harm caused them to suffer financial loss, such as medical fees or loss of income.

“You can’t sue someone unless you’ve been harmed,” Thorpe said. “And so what harm was caused by [Hollands] being on the field?”

What will WorkSafe Victoria assess?

Separately, WorkSafe Victoria has announced this week that they will be looking into the incident, but that is based on a separate area of occupational law which asks whether Carlton provided a safe environment for Hollands to work in.

Horvath said this was likely to lead to fines for the club and gave the Essendon supplements scandal as an example, where in 2016, the club was fined $200,000 for failing to maintain a safe workplace.

“So they’re investigating whether the employer failed to provide a safe place of work, in that case whether they did everything reasonably within their grasp, responsibility, ability, to prevent an occupational health and safety risk arising,” he said.

Carlton is also facing fines from the AFL.