What impact will the studies into concussion have on the risk of litigation from rugby players?

Published 19 September 2014 By: David Reade QC

Shane Williams scores try

The Scottish Rugby Football Union has recently encouraged former Scotland rugby players1 to come forward to assist in the University of Glasgow’s study into the effects of concussion in the sport.2

The purpose of the study is to ascertain whether there is evidence that rugby related head injuries have long-term health effects.

The Scottish Rugby Union study has received support from the International Rugby Board3 and former Scottish Rugby captains; Gordon Bulloch and Chris Paterson have taken part in the study.4 The Head Injury Research Group of the University is conducting the research.

Dr. Willie Stewart, the Glasgow Consultant neuropathologist, gave evidence at the inquest in Dublin into the death of former Lansdowne prop forward Kenny Nuzum. In June of this year, the Coroner found that Mr. Nuzum’s death had been caused by chronic traumatic encephalopathy (CTE), a degenerative disease caused by repeated head trauma.5

The topic of the effect of concussive head injuries in sport has been a prominent one in the last few years. In August 2013, a tentative $765 million settlement was reached in a class action brought by some 4,500 former NFL players alleging that the league had concealed the dangers of concussion whilst rushing injured players back onto the field.6 The first lawsuit in that litigation commenced in August 2011. There are now legal challenges to the proposed settlement and the first challenge was due to be heard on 10 September 2014.7 There are wider issues in the NFL litigation than the concussion claims themselves; it embraces allegations of professional negligence against the NFL and claims against the helmet manufacture Riddel for allegedly withholding evidence and denying the risk of head injuries to the players.

In England, a campaign for The FA to investigate head injuries in football, particularly related to the heading of the ball, has been supported by the family of Jeff “King of the Hawthorns” Astle. Mr. Astle died in 2012 at the age of 59. Dr. Willie Stewart is reported to have conducted an examination of Mr. Astle’s brain and concluded that he died from CET; it had previously been diagnosed that he had suffered from Alzheimer’s.8

The Astle campaign was taken up by West Bromwich Albion fans at fixtures; and, in August 2014, the FA chairman, Greg Dyke, invited the Astle family to Wembley to discuss head injuries in the game.9

Following that meeting, Greg Dyke committed the FA to funding independent research into the issue.10 The Premier League rules have been amended for the 2014/15 season to provide that the decision of the team doctor is final in determining whether or not a player who has sustained a head injury should continue playing or training.

If the evidence in the Scottish Rugby Union study leads to the conclusion that there are long-term health effects from concussive injuries in rugby it will be necessary to consider further steps to increase the safety of the game.

Individual sports are dealing with concussion issues in differing ways, creating different frameworks within which the issues are being debated. The risk of litigation and the nature of any litigation will vary from sport to sport but it must remain a real possibility that we will see similar litigation in rugby to that which has brought in the NFL. One aspect of the increasing awareness of the risks of concussive head injuries in rugby is that the Common Law doctrine of “volenti non fit injuria” ("to a willing person, injury is not done") might arise as a defence to such claims. 

This is the defence to a personal injury claim that a person has agreed, whether expressly or by implication, to run the risk of harm. In a sporting context, in the Australian case of Rootes v Shelton11 it was held that where a participant in a game or pastime is injured by the act or omission of another participant, the existence and extent of a duty of care is to be determined in the light of all the circumstances, including the risks which may reasonably be inferred to have been accepted by the fact of participation.

In the context of rugby, claims are unlikely to be attributed to particular incidents but rather arising from the steps taken to protect players from the risks, particularly if knowledge of the risk increases. In the context of the professional sports players, the relationship may be one of employment and the duty of care that is owed by their employer. In that context, it was held in Bowater v Rowley Regis Coporation that the “volenti” doctrine had to be applied with extreme caution in an employment context: the risk must be one that the employee undertook voluntarily in the fullest sense, “a real assent to the assumption of the risk without compensation must be shown by the circumstances”.12

The risk of litigation is of course far from the primary consideration in understanding the risks of head injuries in rugby and it is to be hoped that the Scottish study will lead to a greater understanding of the issue.

 

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Author

David Reade Q.C

David Reade QC

David Reade Q.C is a commercial litigator at Littleton Chambers with a wide base of experience of sports based disputes, particularly in the field of managerial and player disputes. He recently successfully appeared for Crystal Palace FC in the Court of Appeal. 

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