The early on-set dementia in rugby claims: a legal primer
Posted: Sun, 20 Dec 2020 14:55
Many sports fans will have been shocked to hear about the early onset dementia diagnosed in some of the biggest characters to have played rugby in the professional era.
The legal claim that is being launched as a result, has potentially significant ramifications for the future of rugby.
As a barrister specialising in disease claims who spent a short spell as a professional player at Saracens, I have a particular interest in this litigation.
I thought I would try and shed some light on the aspects that will be relevant to the legal liability of the Welsh and English Rugby Football Union and World Rugby (I will refer to them collectively as "the Unions").
This will be a civil claim in negligence. To succeed, the players must show that the Unions failed take reasonable care to protect them from the foreseeable harm arising from playing the game, and that such a failure caused them the injuries they are now suffering. Sounds straight forward hey?
Well, determining what amounted to reasonable care over the course of these careers, and whether any breach of the Unions' duty "caused" the injuries will be highly contested and quite complicated matters to resolve.
So what does, or more importantly for this case "what did", the Unions' duty of care look like? This will be judged against the information that the unions had or ought to have had at every stage of these players' careers. There are said to be tens of players involved in the legal action so we can assume that the period from the late 1990s to today will be explored, even though the two highest profile players, Alix Popham and Steve Thompson, played from 1998 to 2011.
The key questions in determining whether the Unions breached their duty of care will be:
- what did the unions know, or ought they have known, about the risk of CTE in rugby players at what time?
- what reasonable steps should they have taken in response to that information?
- were those steps in fact taken?
Answering these questions will not be straightforward when the disease that the players are diagnosed with, Chronic Traumatic Encephalopathy (CTE), is still very much a matter of evolving scientific opinion.
On the most restrictive approach to the question of breach of duty, reliance would be placed on the latest Consensus Statement on Concussion in Sport from 2016. That authoritative document says that the link between team contact sports and CTE is not established. This approach may continue, there have been no previous cases identified in rugby union and the Unions, therefore, had no reason to introduce measures to protect players from early onset dementia and other CTE related symptoms in circumstances where no link was established.
Continuing this restrictive approach, it would be said that as soon as the Unions did know of the risk from concussions, the head injury protocols were introduced into the game in line with medical opinion, and that in so acting the unions discharged their duty of care as regards head injuries.
However, the analysis in any court case is likely to be much more nuanced than that.
The leading case in which a sports federation has been successfully sued in relation to head injuries was Michael Watson's case against the British Boxing Board of Control arising from his brain damage sustained in the aftermath of his fight with Chris Eubank in 1991.
In Watson, the BBBC had mandated the attendance of two doctors at the fight along with an ambulance to take any injured fighter to hospital. It was found that if the BBBC had sought and followed the appropriate medical opinion there would have been an immediate medical inspection upon cessation of the fight and resuscitation equipment present. The presence of both would have, in the Court's view, prevented Mr Watson's brain damage. The failure to take those steps placed the BBBC in breach of their duty, and accordingly Mr Watson could recover damages.
As found in that case, there was a duty on the BBBC to be prospective in its thinking, seek competent advice, and weigh the statistical evidence of such injuries occurring in considering what were the appropriate steps to take. It made no difference that no other boxing board in the world offered the type of care that the court found to have been reasonably required.
Watson set a high bar for the BBBC because of the dangers inherent in boxing: of course, there are similar such dangers in rugby, even if the infliction of brain injury is not the purpose in rugby as it is in boxing.
Another difference is that Michael Watson's injury was not a novel condition, his subdural haemorrhage was a well-known risk associated with boxing with established practice for its treatment generally. So, when thinking about the measures that the Unions should have taken in relation to the risks from CTE the form of analysis will be different.
Importantly, in my view, in other cases courts have found a duty to undertake epidemiological studies. For example, the British Coal Board was found to be in breach of its duty towards its employees when it had some indication of a problem arising from vibration: the court found that follow up epidemiological studies should have been undertaken to establish the nature of the problem. The Court found that such studies, if undertaken, would have shown the problem by a certain date from which action ought to have been taken to address the risk to employees.
This is why so much in this case will probably turn on the evolution of the story of CTE being identified in NFL players who were prematurely getting dementia and dying. Loosely, that chronology was as follows: there were some concessions from the NFL in the 1990s of the problem, the first post-mortem to identify CTE in the brain of Mike Webster of the Pittsburgh Steelers took place in 2002, a leaked NFL study in 2009 showed ex-players aged 30 – 49 were 19 times more likely to have dementia than non-players, in 2010 the NFL recognised the dangers of multiple head injuries by reducing contact training, and in 2013 it settled the claim against it in the sum of $765m. This was all in the public domain, what did the Unions do about it?
Yes, the standard rugby club chat about this will inevitably have someone chip in that the games are "so different" given the amount of helmet-to-helmet contact in NFL. True, that is a difference. But even the most casual fan has seen the size and strength of players go up in rugby union, and new aspects of the game come-in: the two man tackle, the "jackal" fully exposing a player's head to opponent ruckers, the upright "choke tackle" placing heads in proximity, an increase in the number of phases and therefore rucks and tackles, and so on.
It will be incumbent on the Unions to show that they properly studied, explored, and balanced the risks posed and acted according to what they knew or ought to have known of the dangers. This will probably mean an expectation that as soon as it knew or should have known of the dangers of cumulative concussive and sub-concussive head contacts in NFL, or from some other source, that they took all reasonable steps to fully understand the dangers to rugby union players and took all reasonable steps in response: most likely through epidemiological studies into the long-term impacts on the brain from playing professional rugby union.
Certain early signs point to a lack of action. For example, the fact that England players can play in 35 games per year and have no limit on contact training: compared to an NFL regular season of 16 games with only 15 contact training sessions.
However, the matter of what measures ought to have been taken at what time will come down to a detailed analysis of the evidence about what the Unions knew or ought to have known at all material times and expert evidence on what should have been done in response to this information.
If a breach of duty is found, the next stage will be to determine what difference, if any, such measures would have made to the chances of the players getting CTE: again, a matter for neurological evidence. Such expert evidence should allow an assessment of whether the players' injuries were caused or materially contributed to by the additional contacts allowed by any breach of duty on the part of the unions. Likely of importance here, will be discussion as to the "additive" nature of CTE: it appears to be a product of cumulative head contacts over time.
So, in a very speculative worked example of what a finding might look like: there may be a finding that at around the time the NFL reduced their contact training days to fifteen (around 2010) the Unions should have significantly reduced the contact hours for professional players by reducing games and contact training.
Any Court would then have to consider whether it can be proven on the basis of emerging and conflicting opinion on CTE, and an incomplete but still emerging epidemiology on CTE in rugby and other contact sports, whether, the additional hours' of head contact resulting from that breach of duty, made a material contribution to the player's CTE.
And remember, in a civil court this finding will only have to be on the balance of probabilities.
So, this will be an exhaustive, multi-phase process, and it is far too early to say how this would conclude in court. This is a significant consideration for all those concerned who could of course opt to settle the claims in order to buy off the risk of not recovering damages in the case of the players, or to avoid a potentially very damaging public trial on the part of the Unions.
Stuart Brady is a barrister at Farrar's Building specialising in industrial disease and personal injury.