Kentavius Street Jersey Nathan Lovett Murray & Essendon Football Club Drug Saga - Caleb Corneloup

Nathan Lovett Murray & Essendon Football Club Drug Saga

 

Torts Assignment by Caleb Corneloup

INTRODUCTION

 

This is a brief presenting the law and facts relating to Nathan Lovett Murray’s negligence claim against Essendon Football Club in respect of the mental harm he suffered. In this brief, the relevant facts are identified as well as the legal issues to be considered. This brief will establish that Essendon Football Club is vicariously liable for the acts of their employee Mr. Dank. It also contains a legal analysis regarding the existence of Mr. Dank’s duty of care to Nathan, including his duty to avoid causing mental harm. There is also a general outline and application of the standard of care owed, its breach and the cause of the harm. There is no discussion on the law of contributory negligence.

 

FACTS

 

In December 2015 Essendon Football Club pleaded guilty to “failing to provide a safe workplace” for their players.[1] In the 2012 Football season and pre-season, the Essendon Football Club involved its players, including Nathan Lovett Murray, in a drug supplements program containing substances banned by the World Anti-Doping Agency.[2] The purpose of the program was to improve player performance.[3]

 

In November 2011, Essendon Football Club employed a professional sports scientist named Stephan Dank. Essendon’s high-performance coach, Mr. Robinson, described Mr. Dank as a “biochemist, a pharmacist, a nutritional expert … the best in Australia”.[4] Essendon gave Mr. Dank the task of designing “supplementary protocols and recovery procedures and their implementation”.[5]

 

Between January 2012 and September 2012, Mr. Dank commenced and implemented a supplementary program involving the injection of Thymosin Beta 4 and AOD-9604, both of which are prohibited substance under the WADA Code and the AFL Anti-Doping Code.[6] The drugs were compounded and supplied to Mr. Dank by Mr. Alavi.[7]

 

On the 12th February 2012, the Essendon players attended a meeting and were addressed by Stephan Dank, Mr. Robinson and the Essendon Football Club Coach, Mr. Hird.[8] During the meeting or just afterward, most of the players signed patient information/informed consent forms relating to the intravenous injections of four substances including AOD-9604 and Thymosin Beta 4. The form stated that the treatment was not in conflict with the World Anti-Doping Agency and was provided by Mr. Dank.[9]

 

All the players had undergone anti-doping education and were fully aware that they had an individual responsibility to ensuring that the supplements they were given were not prohibited by the WADA.[10] None of the players called the WADA help line, or recorded the injections on their doping control forms, or sought advice from their own club doctor, in fact, they kept him out of the loop.[11] They claimed that they kept the injections secret because they did not want other teams to find out about the supplements they were using.[12] The Court of Arbitration for Sport suspended Nathan, along with the other players, for a period of two years.[13] Nathan has said that he has been worried about being labeled a drug cheat and feels his reputation in the Aboriginal community has been permanently damaged.[14] He has also said that as a result of the saga, he is suffering from “severe stress, anxiety, and depression”.[15]

 

FACTUAL SUMMARY

 

Mr. Dank is an employee of Essendon Football Club as well as a professional sports scientist, biochemist, pharmacist and nutritional expert providing a professional service to Nathan and the other players. The supplements were prohibited by the WADA and AFL Anti-Doping Code. Nathan signed an informed/consent assuring him that the supplements were not prohibited by the WADA. However, the Court of Arbitration For Sport ruled that he did not take appropriate steps to ensure that the drugs were lawful and kept the injections secret, even from their own club doctor. The informed consent form was supplied by Mr. Dank and stated that the injections were in conformity with the WADA. Nathan now suffers depression as a result of the drug scandal.

 

ISSUES

 

First, is Essendon Football Club vicariously liable for Mr. Dank’s negligence? Second, can Nathan establish that Mr. Dank owed him a duty of care, the scope of which includes a duty to avoid causing him pure psychiatric harm? Third, what is the standard of care owed by Mr. Dank? Fourth, did Mr. Dank breach that standard of care? Fifth, did Mr. Dank’s negligence the cause or contribute to Nathan’s injury?

 

RULES

 

  1. DUTY OF CARE,

 

  1. EMPLOYERS

An employer has a duty to take reasonable care to ensure the safety of their employees.[16] An employer is vicariously liable for the tortious negligence of an employee if the negligent act took place in the course of the employee’s employment.[17]

 

  1. MEDICAL PROFESSIONALS

The first consideration which ought to be assessed in any negligence claim is whether the defendant owes the plaintiff a duty of care.[18] Duties of care are either established duties or novel duties. The duty of care owed by professionals to their clients is an established duty of care.[19] The term “medical professional” has not been defined in common law but has been applied broadly so as to include not only doctors, dentists, and surgeons, but also anesthetists, pathologists, radiologists, and nurses.[20]

 

In Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84 Windeyer J stated that a professional is “bound to exercise due care, skill and diligence” expected of a reasonable person undertaking that profession.[21] According to Rogers v Whitaker (1992) 175 CLR 479 the scope of a medical expert’s professional responsibility extends to every aspect of the task they perform as a medical expert. It includes “the examination, diagnosis and treatment of the patient, and the provision of information in an appropriate case”.[22]

 

In cases of pure psychiatric harm, the duty of care owed is a novel duty of care.[23] In cases where the plaintiff seeks to establish a novel duty of care, the court will first have to consider whether the harm was foreseeable?[24] Second, the court will have to make an evaluative judgment based upon consideration of the salient factors relevant to the particular case.[25]

 

  1. Is The Harm Foreseeable?

Once it is established that the injury is compensable, the plaintiff will have to establish that the injury was foreseeable.[26] Foreseeability is determined objectively with reference to the harm suffered by persons whom a reasonable person ought to have had in contemplation as a result of their negligence.[27]  In the past, to establish foreseeability in cases of pure psychiatric injury, it has been necessary to consider whether a hypothetical person of normal fortitude would suffer harm[28], whether there was direct perception[29] and whether there was sudden shock[30]. Presently, however, there is no requirement that there be direct perception[31] or sudden shock.[32]

 

  1. Evaluation Of The Salient Factors

Once it has been established that the injury is compensable and foreseeable the court will then have to consider the salient factors which are relevant to the case being considered.[33] In past cases, the salient factors which have been considered by the court in matters of pure psychiatric injury include reasonable foreseeability,[34] the control of the defendant, the vulnerability of the plaintiff,[35] and indeterminacy.[36] However, there are a number of other salient factors which may be relevant including, “any assumption of responsibility by the defendant”, “the existence of an established duty of care”, “the nature and consequences of any action that can be taken to avoid the harm to the plaintiff” and “the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law”.[37]  Salient factors are not conditions which need to be met, rather, they are factors which the court evaluates when determining whether a duty of care is owed by the defendant to the plaintiff and the scope of that duty.[38]

 

  1. STANDARD OF CARE AND BREACH

 

In Hookey v Peterno (2009) 22 VR 362 at 108, the court stated that the standard of care expected from a professional is the standard “of the ordinary skilled person exercising or professing to have that special skill”. In McLean v Tedman (1984) 155 CLR 306 at 315 the majority of the court ruled that the standard of a reasonable person who owes a duty of care to others requires that they take account of the possibility that those to whom they owe a duty may themselves be negligent.[39] In that case, the court said that the defendant was negligent because they did not put in place a safe system of work.[40]

 

The breach of that standard is determined by the ‘Shirt calculi.[41] According to Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48 the tribunal of fact must first determine whether the risk of harm to the “plaintiff or to a class of persons including the plaintiff” was foreseeable according to the standard of a reasonable man in the plaintiff’s position.[42] If this is established then the next step is to determine what a reasonable man would have done in response to the foreseeable risk.[43] In deciding what a reasonable man would do, the tribunal of fact must reach its opinion by balancing the “magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty, and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.[44]

 

  1. CAUSATION

In order for the plaintiff to be successful in Negligence, they need to establish that the defendant’s act or omission was a necessary cause of the harm suffered.[45] The onus is on the plaintiff to establish causation.[46] The ‘but for’ test is a helpful starting point to determine whether particular acts or omissions did not cause the injury.[47] If an injury would have occurred even had an act or omission not occurred then it cannot be said that the act or omission was the cause of the injury.[48]

 

However the ‘but for’ test is not sufficiently useful to distinguish between causes of harm and factors which simply led to the events which caused the harm. The test also does not address the situation where there are two causes, both of which are necessary, which resulted in harm suffered.[49] In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Mason CJ stated that in addition to the ‘but for’ test the court needed to determine whether the “negligent act or omission of the defendant was so connected with the plaintiff’s loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it.” This approach allows the court to use common sense to determine whether a particular act or omission caused or contributed towards the harm.[50]

 

  1. DAMAGE

In order for a plaintiff to be successful, they must establish that the harm suffered is compensable and connected to the infringement of a legally recognised right?[51] In Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 395 Lord Windeyer ruled that harm suffered in the form of a recognised psychiatric illness was recoverable in negligence and said that the law was marching with medicine, although still limping behind. This principle was followed in Tame v New South Wales (2002) 211 CLR 317 at 329 there Gleeson CJ stated that pure psychiatric harm is only compensable if it results in a recognised psychiatric illness.[52]

 

 

APPLICATION

 

 

Mr. Dank is an employee of Essendon Football Club and the creation of the supplements program, as well as its implementation, was done in his capacity as an employee of the club. Therefore Essendon Football Club is vicariously liable the negligent actions of Mr. Dank.

 

Mr. Dank is a pharmacist, a biochemist, and a sports scientist. He created and implementing a supplements program designed to improve the recovery of professional athletes. He was prescribing and administering intravenous drugs, an activity which would seem to fall under the broad umbrella of a health professional. Therefore Mr. Dank owned his patients, including Nathan, a duty of care not to administer any prohibited substances and he ought to have advised his patients not to take any substances which were banned by the WADA.

 

A professional sports scientist ought to have reasonably foreseen that the administration of prohibited substance could ruin Nathan’s career. Nathan worked hard to reach the level of skill required to play in the AFL and committed a considerable period of his life to this achievement. The seemingly instant loss of purpose and subsequent depression which Nathan experienced is not difficult for a reasonable man to foresee. It is likely that a court will determine that it was reasonably foreseeable that in these circumstances, a man of normal fortitude could suffer harm in the form of a psychiatric injury, namely depression.

 

The difficulty Nathan faces is the fact that he was not completely vulnerable or reliant on the defendant. He could have consulted the club doctor, called the WADA helpline and noted the injections down on his anti-doping form. He must have been aware of these options because he went through anti-doping education. Nathan’s failure to exercise his own care is a significant obstacle in establishing a novel duty of care and it is possible that his claim may not succeed. It should be noted however that Nathan was careful enough to attend a meeting in relation to the supplements and was relying upon the information given to him by Mr. Dank, a sports scientist, biochemist, and pharmacist, as well as his senior coach and high-performance coach.

.

 

However, vulnerability and reliance are not the only salient factor which the court should consider. First, Mr. Dank was a medical professional and owed an existing duty of care to Nathan. Second, by providing Nathan with an informed consent form stating that the injections were not in breach of the WADA, Mr. Dank assumed responsibility for ensuring the correctness of this claim. Third, Mr. Dank had no conflicting duty of care. Fourth, there was no serious reason why Mr. Dank could not have created and implement another supplement program. Fifth, Mr. Dank had a considerable degree of control over the situation which, if exercised properly, would have avoided the harm suffered by Nathan. Sixth, to deny a duty of care would allow the defendant to escape liability in a circumstance where the principles of contributory negligence and apportionment may not. It may be that, in order to preserve coherence and conformity in the common law, the issues of Nathan’s lack of care should be considered when discussing contributory negligence and apportionment.

 

 

In relation to the standard of care owed by Mr. Dank and its breach thereof, the harm suffered was a foreseeable consequence of a reasonable man’s negligence. Even if the court were to find that the harm suffered may not be considered high, and the risk of harm relatively low, this is outweighed by the fact that that there would have been no real inconvenience or expense in ascertaining and ensuring the lawfulness of the supplements program and thus avoiding the harm suffered. There is a prima facia case that Mr. Dank did not “exercise [the] due care, skill and diligence” which ought to be expected of a reasonable person in the medical profession.

 

In applying the ‘but for’ test, it cannot be said that Nathan would have suffered the harm even had Mr. Dank not been negligent. Furthermore, application of common sense would suggest that the cause of the harm suffered by Nathan was, in fact, the negligence of Mr. Dank. While it could be argued that Nathan’s lack of care also was a cause, common sense would suggest that this does not exclude Mr. Dank’s liability and therefore Nathan should be able to recover the portion of damages which Mr. Dank is responsible for.

 

 

The harm suffered by Nathan is a recognised psychiatric illness, namely depression.

 

 

CONCLUSION

 

In conclusion, we have seen that the facts and relevant legal principles appear to support Nathan’s claim in negligence for the mental harm he has suffered as a result of Mr. Dank’s negligence. Although Nathan’s own lack of care may cause difficulties for his case, there is room for an argument that Mr. Dank owes Nathan a duty of care to avoid causing Nathan harm and the scope of that care may extend mental harm. If this is accepted by the court the general principles of negligence would suggest that Mr. Dank breached the standard of care he owed to Nathan and his negligence was the cause of the harm Nathan suffered.

 

 

 

[1] ABC, ‘Essendon pleads guilty to failing to provide players safe workplace during supplements regime’, (online article), 22 December 2015, http://www.abc.net.au

[2] CAS 2015/A/4059 World Anti-Doping Agency v Thomas Bellchambers et al., Australian Football League, Australian Sports Anti-Doping Authority, at 5

[3] Ibid, at 29

[4] Ibid

[5] Ibid

[6] Ibid

[7] Ibid

[8] Ibid, at 6

[9] Ibid, at 6

[10] Ibid, at 37

[11] Ibid, at 28

[12] Ibid, at 25

[13] Andrew McGarry, ‘Essendon supplements saga: CAS judgement shows players fatal errors contributed to their own downfall’ (online article), Updated 13 Jan 2016, http://www.abc.net.au

[14] Michael Warner, ‘Former Essendon player’s concern: Jabs harmed my daughter’, (online article), 09 June 2017, http://www.heraldsun.com.au

[15] Ibid

[16] Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307

[17] Broom v Morgan [1953] 1 QB 597 at 608,

[18] Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at 53

[19] Groom v Crocker [1939] 1 KB 194 at 222

[20] Amanda Stickley, Australian Torts Law, 179

[21] Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84

[22] Rogers v Whitaker (1992) 175 CLR 479 at 483

[23] Sullivan v Moody (2001) 207 CLR 562 at  580, New South Wales v Fahy (2007) 232 CLR 486 at 558, Amanda Stickley, Australian Torts Law, 165, 207

[24] Sullivan v Moody (2001) 207 CLR 562 at 576

[25] Sullivan v Moody (2001) 207 CLR 562 at 579, 580

[26] Sullivan v Moody (2001) 207 CLR 562 at  579, 580

[27] Donoghue v Stevenson [1932] AC 562 at 580, Chapman v Hearse (1961) 106 CLR 112 at 120, 121

[28] Tame v New South Wales (2002) 211 CLR 317 at 383

[29] McLoughlin v O’Brian [1983] 1 QB 599 at 617

[30] Reeve v Brisbane City Council [1995] 2 Qd R 661 at 675-677

[31] Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at 393

[32] Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 389, Tame v New South Wales (2002) 211 CLR 317 at 379-380

[33] Sullivan v Moody (2001) 207 CLR 562 at 579-580

[34] Tame v New South Wales (2002) 211 CLR 317 at 318

[35] Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at 398

[36] Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at 382

[37] Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at 676, 677

[38] Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at 676, 677

[39] McLean v Tedman (1984) 155 CLR 306 at 311

[40] McLean v Tedman (1984) 155 CLR 306 at 311, 312

[41] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, 48

[42] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, 48

[43] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, 48

[44] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, 48

[45] Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 at 434

[46] Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 at 438, Chappel v Hart (1998) CLR 232 at 270

[47] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515,516

[48] March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506 at 530, Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420 at 441

[49] March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506 at 516, 523

[50] March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506 at 531

[51] Sullivan v Moody (2001) 207 CLR 562 at 583, Harriton v Stephans (2006) 226 CLR 52 at 55

[52] Tame v New South Wales (2002) 211 CLR 317 at 329