December 10, 2020

The law behind rugby’s concussion lawsuit – the end of rugby as we know it?

Rugby players in scrum

In light of new revelations that eight of rugby union’s former top-flight players have been diagnosed with early onset dementia, a legal challenge is now being considered against World Rugby, the RFU, and the Welsh Rugby Union, claiming that they have failed in their duty to protect players from repeated blows to the head.

If successful, this claim against many of rugby’s governing bodies could open the floodgates to sweeping changes in the way rugby and other contact sports are played. What are the legal implications of bringing a claim like this though, and what sort of changes could we see in the future of the game if it succeeds?

Things are changing, but is it enough?

The last time we reported on this issue in 2019, we were able to say that in the 2017-18 season the incidence of match concussions in English rugby had actually fallen compared to the previous year for the first time since 2009-10; education around signs and symptoms also appeared to be steadily improving.

While things appeared to be improving for current players, this latest news from former England hooker Steve Thompson and seven other retired players signals that more drastic change may be needed.

Furthermore, if it can be shown that rugby’s governing bodies knew about the long-term risks associated with repeated head trauma, and a direct causal link can be drawn between near-constant head impact and serious injury down the line, it will be very difficult for the sport to say it is acting reasonably in making no fundamental changes.

I’m sure that the lawyers involved, or just interested, in this case will be revisiting the group action brought in the US against the NFL. No doubt evidence in that case about the damage that can be caused by repeated concussion / sub-concussion injuries and how long it has been known will play a role in the current litigation.

How the law might apply here

As in all personal injury claims, in order to obtain any form of compensation the players are going to have to demonstrate several key elements:

1) That rugby’s governing bodies owe players a duty of care regarding their safety when playing - this is pretty much a given, in light of the decision in cases such as Watson v BBBC (2001);

2) That this duty of care has been breached - did these bodies know about the risks associated with repeated concussion? If so, did they act reasonably in terms of the precautions that were taken to prevent or reduce frequent impact and consequent injuries? If not, should they have done more research in this regard?

3) That there is a causal link between recurrent concussion and CTE (chronic traumatic encephalopathy - a degenerative brain condition) and the early dementia symptoms now being seen in retired players - even if this can be proved, can it be demonstrated that with earlier intervention by the sport’s governing bodies these long-term effects could have been avoided?

4) That the claimants are bringing this claim within three years of the date on which the cause of action (the injury) accrued or of the date on which the injured person became aware of it - under the Limitation Act 1980, any claim that falls outside of this timescale is statute-barred and cannot be brought.

While this sounds straightforward in theory, in some cases it can prove difficult to establish whether or not a claim is within limitation, as it is sometimes complicated to establish the date someone becomes aware of an injury: is it only on formal diagnosis? Or when they first experience symptoms?

Could this change the nature of rugby as we know it?

One defence that could be raised by the sport’s governing bodies is the idea that a game like rugby is inherently risky, and it is a fact that players sign up to whenever they step on the pitch. This argument though, taken to its logical conclusion, poses the question of whether the contact element of the game would need to be removed altogether. But then, is it still really rugby?

The key, no doubt, is to ensure concussion is identified when it occurs and appropriate steps taken to prevent a concussed player returning to the pitch. However, it is much more difficult to know how to address repeated sub-concussion injuries, which it is suggested can cause long term damage.

However, with players coming forward saying that they knew nothing of the possible long-term effects of repeated concussion, particularly when they began playing as children, and pitch-side diagnosis still far from an exact science and unlikely to be so in the near future, arguments that players knew the risks are liable to fall flat.

The more likely outcome of this legal process, even if unsuccessful, is a large question mark over the game as it is currently played. If the governing bodies did not know about the long-term effects of frequent concussion before, can rugby continue as it has done knowing what we know now?

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