CTE And Causation: The Key Medico-Legal Issues In Rugby Union’s Concussion Litigation

As has been widely reported[1], a group of former professional rugby union players (Claimants) have brought a claim against World Rugby, the Rugby Football Union, and the Welsh Rugby Union (Defendants), for causing them to incur chronic traumatic encephalopathy (CTE) and/or early onset dementia (EOD) (the Rugby claim).

The Rugby claim centres on allegations that the Defendants failed to adequately protect the Claimants from the risks of concussion and the risk of repeated concussion causing CTE/EOD. To that extent, the principal cause of action will be in negligence, although there may also be allegations of breach of contract. The Claimants allege that the Defendants owed them each, as individual professional players, a duty to take reasonable care for their safety by establishing and implementing rules and regulations in respect of assessment, diagnosis, and treatment of actual or suspected concussive and sub-concussive injuries during matches and training sessions.

There are a number of significant hurdles which the Rugby claim will have to overcome if it is to succeed. The Claimants will need to establish they were owed a duty of care and that duty was breached. They will need to prove that said breach was causative of their injuries, and that the Defendants had knowledge of the link between concussions and CTE/EOD. There will likely be limitation disputes, and also disputes in respect defences such as volenti non-fit injuria (voluntary assumption of risk). This article focuses on two of those hurdles: knowledge, and causation.

• First, it discusses the difficulties the Rugby claim will have in proving the Defendants ought to have had knowledge of the link between CTE/EOD and concussions and taken reasonable steps to allay the risks.

• Second, it discusses causation and the important distinction which needs drawing between severe and mild traumatic brain injuries for the purposes of establishing a link with CTE/EOD.