Concussion — One too many hurdles?

Background

There has been much recent coverage in the media about a number of former rugby players of both codes stating their intention to sue their sport’s governing bodies in respect of contended neurological conditions arising from their playing the game.

Most notable is probably the case of the former England hooker, Steve Thompson, who played in the 2003 World Cup winning team (England still being the only Northern Hemisphere team to have won the Rugby Union World Cup), who contends that sadly he cannot remember that epic match.

There is also reference to the threatened action encompassing the world governing bodies. Most recently, it has been reported that the former All Black forward, Carl Hayman, is to join this threatened litigation. As yet, however, it is not believed that any proceedings have been served on the governing bodies.

Whilst a layperson reading the media reports and hearing the dreadful situation faced by these players would think that the case was a foregone conclusion in terms of success for the claimants, that is far from the case. The claimants will face many hurdles in pursuing these actions, whether they are against the governing bodies of the sport or even the clubs for whom they actually played most of their career.

Liability for an injury suffered during the course of sport can arise in a number of ways and there is extensive case law both in this regard and relating to the duties imposed upon those involved in running sport.

The landmark decision in Watson v BBBC [2001] established that a governing body could be held responsible for the drafting of rules and regulations governing the conduct of third parties (the promoters of the fight in that case) towards the claimant.

That decision was followed in Wattleworth v Goodwood Road Racing [2004] where, although the action of the widow of a driver who was killed at the Goodwood circuit failed, the court held that the governing body in the UK, then the MSA, did owe a duty of care to the deceased in respect of its recommendations to Goodwood as to appropriate safety measures. Again, although the governing body was held to owe that duty of care, the court did not find that the duty had been breached.

This article is not going to dwell on the inevitable arguments that will arise on this front should proceedings be issued, but on the final and possibly most difficult hurdle for the claimant in pursuing such an action, namely causation.

The NFL settlement

As stated, it appears to be taken as read by the media coverage that players who have sustained concussions during their careers have developed early onset dementia and other neurological ailments as a consequence. Has that causal link however been established?

The press reports often refer to the settlement in the USA of the action brought by retired players against the NFL, a settlement reputed to be in excess of $750M. That was a mediated settlement, not a judgment.

It would appear that the settlement was challenged by some plaintiffs but approved by Anita B. Brody, J (April 2015), and her judgment approving the motion is worth consideration. She noted the risks faced by the plaintiffs, not least that their claims would be dismissed if an NFL motion on jurisdiction was successful in relation to the action requiring the court to interpret the provisions of the retired players’ collective bargaining agreements. She noted that a number of other courts had accepted the NFL pre-emption arguments in this regard.

Further, and of interest here, the plaintiffs faced serious hurdles establishing causation. Brody noted that whilst there had been ‘widespread media coverage and speculation regarding the late life or post-retirement risks of cognitive impairment in athletes who engaged in sports involving repetitive head trauma…there has been very little in the way of peer-reviewed scientific literature involving data that suggests any such risk.’ She further went on to comment later in her judgment that even if class members could conclusively establish general causation, the problem of specific causation would remain.

There the case was that the effective repeated concussive blows the players experienced whilst playing in the NFL led to permanent neurological impairment, yet the overwhelming majority of those players in all likelihood experienced similar hits in high school or college football before reaching the NFL. As she noted, isolating the effect of hits in the NFL from hits earlier in a career would be a formidable task. Such an issue would surely also be faced here?

And in the UK?

We have also seen the DCMS committee report on concussion in sport in the past year. That committee heard evidence from many former athletes and also expert medical testimony from the likes of Professor Willie Stewart.

The opening paragraph of the committee’s report says, ‘Current science cannot prove a causal link between dementia and sporting activity.’ although the report does contend it was undeniable that a significant minority of people will face long-term neurological issues as a result of their participation in sport.

More recently, there has been the intriguing decision of Mrs Justice Hill in the case of Matheiu v Hinds and Aviva plc [2022]. This was a claim brought by a young man who had been hit on a pedestrian crossing by a moped ridden by the first defendant. It was a significant claim, the claimant apparently seeking in excess of 33M.

One claim was that he should be awarded provisional damages in relation to the chance of developing dementia due to his brain injury. The judge heard expert evidence on the issue of any link between such a traumatic brain injury (TBI) and dementia. She was also confronted with voluminous medical literature. Her conclusion on this one head of claim was that she ‘did not consider that the claimant could show, to the balance of probabilities standard, the existence of more than a fanciful chance that the TBI will lead to him developing dementia’.

This was a case involving a single, significant TBI as opposed to the contentions put forward on behalf of the former rugby players, but it illustrates the complexities of the argument and the difficulties the claimants will face.

Dementia is a dreadful disease and one that will touch most people in their lives either directly or indirectly. The potential claimants in these cases deserve sympathy and whatever support can be given, but whether they succeed in their action is a completely different issue.

Professor Stewart believes there is a link but, as he volunteered in his evidence to the DCMS committee, ‘there must be something else because people can have exposure to head injury, people can play the sport in the same way but do not seem to develop problems, so there must be other things contributing’.

Some media press reports have criticised the governing bodies of rugby for burying their heads in the sand. That is debatable given the series of initiatives announced by World Rugby, but one suspects that if proceedings are pursued, the claimants, even if successful in terms of breach of duty, will face a significant final hurdle in establishing general causation before moving onto individual arguments of specific causation.