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A Legal Headache: Negligence, Concussion and Rugby Union

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About The Author

Ben Cisneros (Regular Writer)

Ben is a third-year law student at Selwyn College, Cambridge, currently spending this year studying law at the Universidad Autónoma de Madrid as part of the Erasmus scheme. He has a keen interest in Sports law, and is a future trainee of boutique firm, Morgan Sports Law. Outside of academia, Ben is a keen singer and actor with a unflinching love of Wasps and England rugby.

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The concussion crisis has changed the face of sports as we know it and it has brought to surface the incredible importance of our brain health.

Ben Utecht

Concussion is epidemic in Rugby Union and it is only recently that the extent of its devastating impact has become properly understood. In fact, many within the game are yet to realise the true severity of the injury: while the immediate effects of a concussion can usually be resolved within a week, the impact of multiple concussions is of huge concern.

For example, ‘second-impact syndrome’ – which occurs where an individual suffers two blows to the head in quick succession – can ultimately prove fatal. Furthermore, on a long-term scale, repeated head traumas are believed to cause Chronic Traumatic Encephalopathy (CTE), a form of brain degeneration only diagnosable after death.

A wave of such diagnoses on NFL players in the USA during the late 1990s led to lawsuits against the NFL valued at $1 billion. And now, questions have been raised about the legal position of rugby players who have experienced similar issues. Ex-player Cillian Willis began legal action against his former club Sale Sharks, alleging their negligence in treating his concussion problems ultimately forced him into retirement. Similarly, Canadian international Jamie Cudmore alleges negligence against his former club, Clermont Auvergne.

An interesting legal battle looks on the horizon and, while neither case has reached the courts, this article will consider whether such claims in negligence would succeed in the English courts against not only their clubs but also World Rugby itself.

Did the Defendants owe a Duty of Care?

World Rugby

The claimants could argue that World Rugby is under a duty of care to protect them from long-term health problems by imposing appropriate regulations on the handling of concussion. Examining whether this is the case involves the application of the Caparo v Dickman [1990] factors: reasonable foreseeability of the harm, a relationship of proximity between the claimant and defendant, and it being fair, just and reasonable to impose liability.

The analogous case of Watson v British Boxing Board of Control [2001] provides valuable guidance here. It concerned a boxer’s negligence claim against the sport's governing body which, it was argued, had negligently failed to ensure that the boxer received immediate ringside medical attention. In this case, the Court of Appeal held that, because injuries sustained by professional boxers were an almost inevitable consequence of boxing, the harm suffered was reasonably foreseeable. It was also held to be reasonably foreseeable that boxers would rely on the defendant’s expertise in providing for their safety.

Moreover, sufficient proximity was established; the defendant had assumed responsibility for determining the nature of the medical facilities provided to restrict the foreseeable injuries, and because the defendant body’s members were a determinate class of persons. Lastly, the court said that there were no policy reasons why a duty of care should not be imposed.

Although the court also stated in Watson that 'it would be quite wrong to… formulat[e] a principle of general policy that sporting regulatory bodies should owe no duty of care in respect of the formulation of their rules and regulations', the reasoning seems applicable to other sports in the right circumstances.

Indeed, given World Rugby controls all the rules and protocols of the game, it is reasonably foreseeable that players would rely on its expertise in making regulations to provide for their safety. The nature of rugby means the harm suffered is also reasonably foreseeable.

Equally, it is argued that there would be sufficient proximity because World Rugby can be taken to have assumed responsibility for determining regulations concerning head injuries after they introduced protocols outlining the pitch-side Head Injury Assessment and advice on how to assess concussions.

And while concerns may be raised over the breadth of the potential class of persons (the regulations apply to all ‘Elite level’ matches worldwide), English law’s jurisdiction naturally limits the scope of who could bring a claim. As in Watson, World Rugby’s capacity to determine what measures are taken to protect and promote the health and safety of players should put them in a sufficiently proximate relationship. Moreover, because it is a clear objective of World Rugby to look after players – illustrated by its 'Putting Players First' slogan and a website dedicated to player welfare – it seems ‘fair, just and reasonable’ to hold them to this.

However, other concerns might discourage a court from imposing a duty. Certainly, it could be argued that more should be done to encourage clubs, and the players themselves, to take responsibility in preventing concussions. Players forced into retirement by concussion, such as Shontayne Hape, have even spoken about a culture within the sport whereby players are encouraged not to be open about their symptoms.

There might also be concerns about over-defensiveness within the sport, whereby World Rugby tries to protect itself by imposing stricter regulations that harm the spirit of the sport. Indeed, introduced already have been controversial new tackle laws aimed at discouraging contact with the head.

The Clubs

Clubs such as Sale Sharks or Clermont Auvergne are the players’ employers and assume responsibility for their welfare either directly, or vicariously through their club’s doctors. In the Watson case, the court drew an analogy with the case of Stokes v Guest Keen and Nettlefold (Bolts and Nuts Ltd) [1968] 1 WLR 1776, in which it was held employers, whose activities involve a particular health risk, have a duty to ensure employees can receive appropriate medical attention.

Given the risk of concussion is inherent in Rugby Union, it follows that clubs must be under such duty, which would be satisfied by following World Rugby’s new protocols and performing thorough checks before allowing players to return to play. Alternatively, the cases could be considered in a doctor-patient context – team doctors must surely owe a duty of care to the players they are assessing before allowing them to play on.

Therefore, the first two stages of the Caparo test appear satisfied. Furthermore, there are sound policy arguments in favour of imposing a duty of care, such as encouraging clubs to be more thorough in their medical assessments and ensuring that players and medics are educated adequately. This, in itself, would encourage the change in attitude needed within the sport.

Were the Defendants at Fault?

World Rugby

World Rugby can be considered at fault if their regulations relating to the handling of concussion are deemed unreasonable.

At the 2011 World Rugby Medical Commission Conference, concussion was identified as the top medical risk in rugby. Since then, World Rugby has developed constantly-evolving written guidelines, videos and online education modules aimed at raising awareness and improving player welfare. Though many argue that the rules could be tightened further, it is unlikely World Rugby could be held at fault for any harm suffered since these new regulations have been implemented.

Nonetheless, in 1997 – two years after the game turned professional – the American Academy of Neurology published a report that warned: “repeated concussions can cause cumulative brain injury in an individual over months or years”. It follows that evidence of the destructive impact of concussion had been available 15 years before World Rugby reacted; indeed, it is arguable that, even then, their 2003 regulations were vague, all-too-easily manipulated and contained no procedure for assessing the injury.

The Clubs

With regard to the clubs, fault will depend heavily upon the facts of each case. Team doctors, like all other medical professionals, are negligent if they fail to deliver the standard of care reasonably expected of someone in the medical profession, as held in Wilsher v Essex AHA [1988]. In addition, these doctors now have clear guidelines to follow, and to stray from them must be deemed unreasonable in itself, leaving any application of the test from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 unnecessary.

However, for cases involving injuries that occurred before these guidelines were introduced, the position is less clear-cut: while room remains for arguing that medical professionals were negligent, this would probably require the application of the Bolam test.

Is the Causation Requirement met?

Sufficient Loss?

Before considering causation, it is important to point out what the ‘loss’ actually is in these cases. Claims are usually brought by players who have been forced to retire because of repeated concussions. In such cases, players could claim for physical injury –  which would include claims for short-term effects like prolonged headaches, as well as for long-term effects such as early onset dementia (CTE) – and consequential losses, such as loss of earnings due to early retirement.

Furthermore, if causation is satisfied, players might be able to recover for psychiatric harm, which was held to be considered in the same way as a physical injury in Page v Smith [1995].

Causation

‘But for’/factual causation can be established for both possible defendants. If World Rugby had introduced more rigorous and responsible protocols earlier, it is suggested on the balance of probabilities that the number of repeated concussions suffered would have been reduced.  Meanwhile, it is less controversial to state that “but for” the negligence of the clubs’ doctors, the player would not have suffered so many concussions in a short space of time, which led to the more serious brain injury.

While it could be argued that the injury is, in fact, caused by the tackle where contact with the head is made. it must be stressed that the issue here is the repeated concussions – they caused the harm in question and were allowed to occur because of the defendants’ negligence of the relevant defendant.

In terms of legal causation, the harm suffered almost certainly meets the foreseeability requirement contained in Wagon Mound (No. 1) [1961] UKPC 2.

Are there any Applicable Defences?

In a case against World Rugby, the defence of ‘volenti non fit injuria’ may well have some traction. It could be argued that, by playing in matches under the prior regulations, players impliedly consented to the risk of suffering harm as a result of concussions. However, the nature of this consent is questionable: rugby players have, or certainly had, a lower level of knowledge about the dangers of concussion compared with World Rugby.

In the club context, the ‘volenti’ defence is perhaps less likely to succeed because of the doctor-patient scenario involved. Indeed, although the player might want to play on, it would still be negligent of a medical professional to let them do so – their superior knowledge must prevail. Allowing the defence to apply here would frankly contradict the duty of care: indeed, it was asserted in Smith v Charles Baker & Sons (1891) AC 325 that employees never accept the risk of their employer’s negligence.

However, individuals who insisted on playing would likely be subject to a finding of contributory negligence under the Law Reform (Contributory Negligence) Act 1945, because there is a level of awareness is such that a player could not be entirely cleared of blame. In fact, there are important policy issues at play here. By allowing contributory negligence to apply here, the courts would be encouraging players to take greater responsibility for their own welfare, which must be viewed as a positive in a sport such as Rugby Union.

The potential impact of the Limitation Act 1980 must also be considered. Section 11(4) holds that claims cannot be brought more than 3 years after the cause of action accrued or 3 years after the date of knowledge of the injury. Therefore, historic claims against World Rugby would be severely restricted although, as CTE is only discoverable post-mortem, there would still be room for claims in this regard.

Conclusion

Having considered the respective cases against two potential defendants, it can be concluded that a claim is more likely to succeed against a club. Indeed, in cases like Cudmore’s, where a club is obviously at fault (having blatantly flouted procedure and proper medical practice), it is likely that a claimant would elect to solely pursue this avenue and not a case against World Rugby, which could lead to a longer and more expensive legal battle.

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Tagged: Employment Law, Medical Law & Ethics, Personal Injury, Sport Law, Tort Law

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