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December 10th 2020

Personal Injury

Have Rugby Union and other high-impact sports negligently failed to protect players from brain injuries?

Have Rugby Union and other high-impact sports negligently failed to protect players from brain injuries?

The governing bodies of some of the UK’s leading professional sports must be concerned at news that a potentially landmark legal action is to be launched on behalf of brain injured former players.

The governing bodies of some of the UK’s leading professional sports must be concerned at news that a potentially landmark legal action is to be launched on behalf of brain injured former players.

Eight former Rugby Union players, all under the age of 45 and each diagnosed with the early signs of dementia, are seeking damages from the game’ authorities.

The group, including 2003 England World Cup winner Steve Thompson, 42, allege through their lawyers that playing the sport has caused them to suffer permanent brain damage.

They say those running the sport knew enough of the dangers related to suffering repeated blows to the head, and that they were negligent in failing to protect their health.

When that letter of claim lands on the desks of World Rugby, the Rugby Football Union and the Welsh Rugby Union next week, it could be the first of many.

And that means other sports including rugby league, football, ice hockey and boxing, all of which see competitors exposed to repeated heavy blows, could see questions raised over their protection of players.

Many could face similar accusations of failing to protect those who have competed, especially over the past two decades, given the risks associated with repeated blows to the head and repeated episodes of concussion have been known and accepted in this time.

Has a long accepted danger been ignored too long – and is that negligence?

It has been interesting to see the comments so far of Rugby Union’s governing bodies, which have stressed that the sport ‘implements injury prevention and injury treatment strategies based on the latest research and evidence.’

Research into injuries and understanding of risk at the time a particular sport was played will no doubt be a key issue to be considered, as will the protocols in place to protect players and prevent them competing after suffering head injuries.

Let’s not forget, concerns over the impact of head injuries and concussion in sport have been repeatedly raised over the past two decades.

A coroner even ruled way back in 2002 that former England footballer Jeff Astle had died, aged just 59 of ‘industrial disease’, having suffered from a degenerative brain disease brought on by the repeated heading of a football.

In 2014, a neurosurgeon then carried out an examination of the former West Bromwich Albion forward’s brain and said he had been killed by chronic traumatic encephalopathy (CTE), which develops when the brain is subjected to numerous small blows or rapid movements, and is associated with symptoms such as memory loss, depression and progressive dementia.

There was also of course precedent set in the United States back in 2013, where the National Football League (NFL), American Football’s governing body, agreed to a $765 million compensation settlement on behalf of more than 4,500 ex-players who developed serious medical conditions in retirement linked to repeated head trauma.

What actions did sports in the UK take to ensure better player protection at the time these hugely significant events?

In the past few years we have seen changes introduced across our sports, including concussion protocols in the rugby codes. The links between heading a football and degenerative brain disease have also forced rule changes at youth level, with children aged 11 and under are no longer allowed to head the ball in training in England, Scotland and Northern Ireland.

Our sports are now getting safer. But has it all come too late?

Claimants will need to prove ill health was caused by playing sport

The issue of concussion and repeated head injuries in professional sport is an area we have followed with interest over the past few years at Hudgell Solicitors.

As specialists in supporting people who suffer serious brain injuries, we ourselves raised the issue two years ago of concussion in sport and staged a seminar at which leading medical and legal experts debated the duty of care on sports clubs and organisations to protect competitors from illnesses linked to concussion injuries.

Any successful damages claims will surely have to demonstrate that a sport’s governing body had enough evidence of risk, over a period of time a player competed, for which they failed to take appropriate measures to protect them against.

Issues such as other factors which could cause degenerative brain injuries in individuals, such as weight, family history and alcohol use would almost certainly have to be considered by any judge looking at such a claim. Just because somebody played a high-impact sport for many years doesn’t mean it was the certain cause of a brain injury.

It will be interesting to see what burden of proof will fall upon individual players to demonstrate how often they suffered concussion and head injuries, and perhaps were asked to play on injured.

Interestingly, establishing a career-long central database chronicling injury history is one of 15 proposed changes the players involved in this new legal action have reportedly asked for, alongside calling upon the sport’s governing bodies accept that playing professional rugby can lead to CTE.

Other measures they are calling for include regulating training to limiting contact to a certain number of sessions a year, changing the number of substitutes allowed per game, changes to pre-season and sideline testing of players and ‘concussions spotters’ who are given the authority to remove players showing visible symptoms.

Finally, they have called for greater education on the issue of concussion, and for better aftercare of players, with Steve Thompson saying he hopes the issue makes the sport safer for young people starting out on their careers to do so safely.

Many may say that when people choose to play high-impact sports such as rugby, they effectively consent to the risk of suffering injury.

However, what exactly were professional athletes told about the medical understanding of the risk to their health both at the time of playing, and in later life, and were those risks always mitigated as they should have been?

Sport should be as safe as possible for all those who compete. That responsibility has always been on the governing bodies.

By Josie Robinson and Kent Pattinson

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