A concussion class action against the AFL brought by former Geelong premiership star Max Rooke has at least seven Cats players involved, the Supreme Court heard on Tuesday.
In a hearing before Justice Andrew Keogh, Fiona Forsyth, KC, representing Rooke, the lead plaintiff in the action, revealed details of a “Geelong sub-group” in the case.
However, besides Rooke, the court was not given any names, nor were they confirmed as either former or current players, only that one had played one senior game. Rooke played 135 games for the Cats between 2002 and 2010, winning premierships in 2007 and 2009.
Lead plaintiff: Former Geelong premiership star Max Rooke is the headline name on a concussion class action against the AFL.Credit: Fairfax
Through two hours of submissions into what constituted a “group member” who could prove loss and damage, Forsyth was asked by Keogh about concerns the Cats had raised over the possibility “that a player suffers concussions while playing for another club, and yet they are counted within the Geelong sub-group”.
Forsyth said the key point was whether a player had a direct claim against the Cats.
“They are counted in the Geelong sub-group but what is important or not is whether they have a claim against Geelong, which is a separate issue. It doesn’t say every single sub-group member has a claim against Geelong, simply that they played for Geelong,” Forsyth said.
“And that’s why the next line says there are seven or more group members with claims against Geelong, it doesn’t say there were seven or more members in the Geelong sub-group. That’s a deliberate difference. There is a description of people who played for Geelong, and then they are people who have claims against Geelong …”
Forsyth later added: “There are seven or more group members with claims against Geelong.”
Rooke, a two-time premiership player with the Cats, battles for the ball with Hawthorn skipper Luke Hodge.Credit: John Donegan
While Forsyth argued the definition of an overall group member should be broad, with the alleged victims not yet being required to have had official medical diagnosis of brain damage or symptoms, Phillip Crutchfield, KC, representing the AFL, and lawyer Georgie Coleman, representing the Cats, argued otherwise.
“A footballer has had head knocks in the course of playing football, and has had symptoms prior to the 14th March, is it related to a permanent brain injury or not?” Crutchfield said.
“The pleading [by Forsyth] doesn’t hone in on that permanent brain injury because the sort of symptoms one could have prior to the 14th March, 2023, they could be regular headaches, they could be some kind of cognitive brain [injury] … but absent of going along to the doctor, the group member … is not going to know and have any reasonable basis on whether they can find out or not if they have suffered a permanent brain injury without making an enquiry.”
More than 60 former players, and family members of dead players, have signed on to the overall class action lodged by Margalit Injury Lawyers in 2023. Managing principal Michel Margalit said at the time “the whole class action could cost the AFL close to $1 billion”.
Crutchfield said the case was at the “launching-off pad”, so it made sense for class action members to be medically tested to help them determine whether they could be involved.
Coleman argued any group member would eventually have to be medically tested, for this would be needed to prove any loss and damage when it came to potential settlement negotiations.
“A player might have suffered a symptom that is consistent with a brain injury, but it is also consistent with other injuries they may have, or simply be part of modern-day life – a headache, mood disorder – rather than something that one can definitely link to a permanent brain injury,” Coleman said.
“There could be a player who is still playing who has mild headaches but in a few years time that exacerbates into a clear, permanent brain injury, that can be diagnosed by a doctor.”
To be part of the class action, an alleged victim will need to have suffered an alleged permanent brain injury and/or shown symptoms of that injury between 1985 and March 14, 2023.
Rooke in action for the Cats in the 2009 decider against the Saints.Credit: Vince Caligiuri
After lunch, Michael Rush, KC, also representing Geelong, questioned whether any of the Cats’ players fell into the required criteria, and said the cases would be best dealt with individually.
He said an overall class action was a waste of money for all parties because of “significant costs” and potential individual proceedings post the case, and argued what the Cats knew about concussion in 1985 could not be linked to 2015.
Rush said the Cats may have to call three club doctors to provide evidence, and other clubs may be dragged into the case. Keogh responded by claiming Rush’s argument was largely irrelevant to Rooke’s individual case.
Keogh, in an exchange with Crutchfield, also raised the possibility of limiting the overall class action to the same period as Rooke’s career.
Rooke has alleged he suffered permanent, life-altering injuries due to between 20 and 30 concussions from his playing career, and the AFL’s alleged negligence.
Court papers allege Rooke suffered multiple concussions, including being knocked unconscious on at least two occasions. It is also alleged that he endured an acquired brain injury and psychiatric injury.
At a directions hearing on Monday, Keogh had said he was disappointed that the three parties had not been able to find common ground through mediation.
Forsyth on Tuesday said the case could extend for at least another two years.
The case continues.
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