“Don’t worry son, its only your head” : Thoughts on the current rugby head injury litigation

18 January 2021

John Ratledge considers the current rugby head litigation that the RFU is facing from various members of the former England RFU squad.

Remember when Jonny Wilkinson dropped that goal in Sydney on 22^nd November 2003 with only 26 seconds left on the clock to win rugby’s World Cup Final? Of course you do – it was an iconic moment of sporting history. Steve Thompson however, England’s hooker in that game, does not. He has developed early onset dementia since retiring and has no recollection of that game whatsoever.

In December 2020 he and a number of other high profile professional and international rugby players sent a letter of claim to the governing bodies of World, Welsh and English Rugby claiming to have developed traumatic brain injury as a result of their negligence over a number of years. This made the headlines, not just because it came out of the blue to many, but also because some of the Claimants were young and did not play in the scrum.

The news has drawn much response. Many are saying that rugby is a contact sport and those who progress to the highest level have always known the risks that are simply part and parcel of the game. Others point to the assessment and head injury protocols now in place and ask what more could be done. Some are calling this a sleeping giant that they always knew would wake up and roar sooner or later.

Of course injury and illness are a part of life and sport. People develop the conditions being suffered by those players without ever having set foot on a sports field (e.g. early onset dementia). Those players, however, made it their jobs to expose themselves to the risks associated with contact sport and their sport’s governing bodies set the rules by which they played. The governing bodies have assumed a responsibility to create and implement player injury prevention and treatment strategies based on the latest medical research and evidence and yet it seems current and former players are developing illness that they trace back to their sport.

The presentation of delayed onset illness, allegedly as a result of work, is familiar territory to many practising in the field of personal injury. The author has for 2 decades dealt with various types of industrial disease – deafness, asbestosis, other respiratory problems, repetitive strain, dermatitis to name but a few. Do these types of claims inform the approach to the recent rugby diseases? In short, yes.

As with any claim for damages for personal injuries the Claimant must prove that the person they are suing owed them a duty to take care for their safety. Then they must prove they breached that duty by doing something they should not have done, or vice versa, by not doing something they should have done. If they prove duty and breach then they must prove any loss (physical or financial) has come about as a result of that breach (as opposed to other reasons like old age or bad luck).

In situations where injury is immediate things appear relatively straightforward. If you are employed to lift or carry things around in a warehouse and your employer gives you no training in how to do that safely so that you strain your back, there’s an obvious claim. Similarly if you are employed to feed lengths of wood into a sawmill and the employer doesn’t guard the machine so that your hand is dragged in and sawn off, there’s a claim.

But what if you think at the time that what you’re doing is perfectly normal and safe? What if what if you work for years in a noisy factory in which you have to shout at your workmates to make yourself heard but when you go home you can hear perfectly well – for years and years both during and after that employment? And it’s not until you turn 60 that your spouse gets fed up with you having the TV on so loud and you realise you’re going deaf?

Well if we revisit the basics of a claim, the first thing is to establish your employer owed you a duty to take care for your safety. They cannot be expected to guard against dangers that are unknown at the time. Historically across different industries many risks of illness were initially completely unheard of. Then, as more recently with the rugby cases, the industry starts to wake up to a suspicion of a link between the work and the subsequent illness before eventually there develops a significant body of research and understanding that there is in fact a firm link. If nobody knows that what your employees do puts them at risk then you don’t owe them a duty to take care and there’s no claim if your operations cause them injury. By the time everybody knows of the link you definitely owe them a duty and probably have done for some time. I suspect there will be a big argument in the rugby claims as to when exactly the world of rugby knew (or ought to have known) that there was an established link between repeated trauma in rugby and dementia and CTE (chronic traumatic encephalopathy) for example.

Most industries now have established dates, usually related to the publishing of research and reports, when specific risks became known in that industry. This is the time when a duty arises. With exposure to asbestos, for example, this was in the mid-60s with a study published in 1965. This in turn led to the Annual Report of HM Chief Inspector of Factories in 1966 which noted that: ‘While [epidemiological] studies are proceeding, the only safe course is to eliminate the escape of asbestos dust into the air.’ This author does not know when these Claimants say the date of knowledge was in the rugby world but it will be interesting to hear the argument.

Then there is proving breach. Assuming a point in time when the powers that be know significant brain injury is a possible long term consequence of the game, what exactly can they be expected to do about it? There is normally a hierarchy of steps that Courts expect to be taken. First eradicate the risk of injury by removing the activity or task that gives rise to the risk (OK we’ll ignore that one!). Second assess the risk of injury and thirdly take reasonable steps to minimise the chance of injury occurring or the extent of symptoms. From what I can ascertain the breaches of duty allegations do not relate to rules of engagement in the game, rather how possible concussions are identified and dealt with both short and long term with assessment and monitoring.

Bill Beaumont, the former England skipper and World Rugby Chairman, is no stranger to concussion: there is a story of him standing around at half time in a game eating an orange while so concussed that he was totally oblivious to a streaker running straight for him! He wrote an open letter to the rugby world in response to the claims in December:

As a former player, I have actively participated in long-term cognitive health research. I’m personally committed to growing the science available so that we can to continue to shape our understanding of how best to safeguard the wellbeing of our players. I believe that we are at the forefront of evidence-based concussion education, prevention and management in sport.

“It’s clear, however, that the area of concussion and long-term cognitive health is extremely complex. We have continuously acted on research and scientific information as it has become available. The science continues to evolve, and we will evolve with it.

“In the elite game, the Head Injury Assessment (HIA) concussion identification and management tool, combined with comprehensive tournament medical standards and a medically supervised return-to-play protocol have transformed the identification, removal and supervision of players with concussion. It’s great to see other sports following this model.

This alludes to the likely position of the governing bodies and can be summarised with the rather hackneyed Covid phrase of ‘we have always followed the science’.

It is all very well, however, saying that the world of rugby is now at the forefront of contact sports in the identification, assessment and treatment of head injuries. What will matter in these claims is how the governing bodies dealt with these issues back in previous decades. The Claimants will argue these protocols came too late in the day and that rugby was too slow – negligently so – to put these health monitoring systems and protocols in place. The alleged ‘negligent exposure’ – to use an industrial disease phrase – will be back in the 80s, 90s and 00s. Time will tell what the medical research knew about the issue and what world rugby was doing about it back then.

Finally, what of linking any sub-standard assessments, monitoring and return-to-play protocols with the actual onset of these horrible diseases? The population at large – sporting or not – is susceptible to early onset dementia so what do these Claimants have to do to succeed in their claims that the governing bodies’ breaches of duty caused their injuries and losses? Claimants dying of lung cancer following exposure to asbestos, for example, face a similar dilemma. Multiple employers with differing degrees of exposure. Some exposure is negligent and some not. Similarly those suffering from deafness – which will likely come to us all at some point through the natural ageing process. How do you know who actually caused the illness?

The Claimants must prove that negligent exposure made a material contribution to the risk of developing their disease. They need not prove it was the only cause. They will not need to prove that a particular incident of concussion caused or contributed to their ultimate dementia: e.g. one suffered in a game when they say they should not have been allowed to play with proper monitoring and return to contact protocols.

Stepping back from the legal analysis in conclusion, it is evident these Claimants have started the process of making claims for damages for personal injuries and consequential losses. Some will incur nursing or care costs; some will be unable to work; some will die prematurely. The purpose of the claims is said to be to ensure player safety is increased and to this end they have put forward a 15 point plan. Many are sceptical of that, arguing if that were the case then why bring claims for damages rather than simply starting a conversation with the governing bodies and presenting the evidence in the spirit of improving that safety?

Others are saying that these very players signed up to all the risks involved in the sport and relished them in fact, making it their purpose to hit harder and never yield in a show of commitment and invincibility that became their trademark and one of their core values as players. This is a bit easier to respond to: some have said that they have played rugby their whole lives and only now realise it could lead to serious brain injury: they knew about the cauliflower ears and wonky noses but not dementia. Further, one of the tenets of current head injury management and assessment is that it is not a decision for the player (as they always just want to get back out there despite the headache) rather for those managing them.

Either way there is much to be learned in this litigation, played out no doubt in the media, and lawyers and sports fans look on with interest. We would all agree, myself included as a father of rugby-playing boys, that good head injury management is crucially important. For my part, based on my experience of the training and information provided by the RFU to coaches, I feel the current processes in place to deal with these issues at grass roots level are of a high standard.

Rugby is not alone either it seems. Gary Linekar has called for a ban on heading a football in training in the light of recent publicised cases of brain injury in former players such as the Charlton brothers. Cricket has recently witnessed death from head trauma of an international batsman. The England and Wales Cricket Board has for some time made the wearing of helmets compulsory for children playing the game. Fast bowlers are monitored for workload in training and matches to prolong the lives of their creaking backs. The world of boxing is a few steps ahead of all of these sports in dealing with these issues, perhaps for obvious reasons.

Quite how the joy and spectacle of these sports and others will fare as litigation proliferates remains to be seen, but here’s hoping there is fair redress for the worthy Claimants which is brought about without restricting the essence of these wonderful games that mean so much to so many.

If you would like to instruct John Ratledge in your personal injury or clinical negligence claim, please contact his clerks for further information by emailing ipswich@ealaw.co.uk or telephone 01473 214481.

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