Henry Goldschmidt, an associate at Morgan Sports Law, examines the legal elements that will need to be established for an athlete to succeed in a sports-related brain injury claim under the English law of negligence – whether against a governing body, club, medical practitioner, fellow player or referee.
Introduction
In a previous article – “Brain Injuries in Sport: The Invisible Killer” – I looked at the growing concerns around concussion and other forms of traumatic brain injury (“TBI”) in sport, particularly in light of recent medical studies. I cautioned that, if athlete welfare is not given more prominence by governing bodies, it may only be a matter of time before significant sports-related concussion litigation extends beyond North America. The issue then becomes the extent to which English law provides financial safeguards to sportsmen and women who have wrongly suffered TBI.
Athletes who have suffered TBI may be able to recover damages for the physical and psychiatric harm caused (and the subsequent impact on their lives). To succeed in a TBI-related negligence claim there are significant – but by no means insurmountable – legal hurdles that will need to be overcome. Although any case will inevitably turn on particular facts, in short, a claimant must be able to prove that (i) they were owed a duty of care; (ii) there was a breach of that duty; and (iii) the damage suffered was caused by that breach (causation).
Duty of care
In order to establish that a duty of care was owed under English law, there must have been a reasonable foreseeability of the harm being incurred and it must be just and reasonable to impose liability, considering existing precedents and their closest analogies.
Governing bodies can owe a duty of care to their participants – a precedent that was set in Watson v. British Boxing Board of Control [2001] QB 1134, and reiterated in Wattleworth v. Goodwood Road Racing Company & Others [2004] PIQR P25. In Watson, the English Court of Appeal held that “it would be quite wrong to… formulat[e] a principle of general policy that sporting regulatory bodies should owe no duty of care in respect of the formulation of their rules and regulations.”
Whilst the Watson case made clear that consenting to participate was not consent to inadequate safety measures, two Australian rugby cases have suggested that the duty of care should not extend to changing the rules of an inherently dangerous game to minimise injury. In both Australian cases, the court stressed that rugby players take part by their own volition. The common law defence of volenti non fit injuria (also known as “voluntary assumption of risk”) could therefore perhaps be applied to any situation where a player is injured by an aggressive collision – provided it was incidental to the rules of game and not, say, a result of a flagrant assault. However, on the basis of Watson, the volenti defence would be unlikely to stretch to a situation where players are complaining about the quality of the treatment and/or protection that they received in respect of concussion injuries.
Interestingly, there is an ongoing legal action, also in Australia, between a rugby league player (James McManus) and his former professional club (Newcastle Knights), where the issues of a “dangerous recreational activity” and “voluntary consent” have also been raised. McManus is suing the Knights for damages for “permitting or requiring him to continue to be exposed to traumatic brain injury when they knew the cumulative effect could create a permanent impairment.” Whilst the player says the club “owed a duty to exercise reasonable care to prevent [him] from suffering permanent brain damage”, in its defence, the Knights have argued that there was “an obvious risk” such that they did “not owe [the player] a duty of care to warn [him] of the risk of harm.” The case, shortly to be heard in the New South Wales Supreme Court, could have implications for other common law jurisdictions, such as England and Wales.
Breach of duty
Once a duty of care is established, the next element to be established to successfully bring a claim against a governing body will be proving breach of that duty (i.e. fault). The key question is whether a governing body acted unreasonably in light of matters that it knew of, or should have known of, at the particular time that an injury was suffered. What was “reasonable” at the time of the brain injury might be very different to what is deemed “reasonable” in present day due to the ongoing evolution of scientific understanding of concussion injuries.
It will thus be important to establish both (i) the general state of knowledge in the fields of sport and neurology at the relevant time, and (ii) the specific knowledge of a particular defendant if it can be established that it, perhaps as a result of its own research or commissioned reports was in fact aware of relevant “cutting edge” developments. In the NFL class action, for instance, it was alleged that the NFL had deliberately concealed facts it knew about the risks of concussions and long-term brain damage.
The issue of knowledge might also be relevant when determining the damages that a claimant is to be awarded in a successful claim. As awareness of the risk of TBI continues to grow, it may mean that players are increasingly expected to take responsibility for their own well-being. Indeed, section 1 of the Law Reform (Contributory Negligence) Act 1945 states:
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.”
While the governing body, or club, still owes the athlete a duty of care, if the athlete is deemed to have been at fault in some way – perhaps by insisting on playing despite displaying clear signs of concussion and despite being aware of the risks – there may be a reduction in the damages recoverable.
As for potential claims against a player’s club, a team doctor – like any medical professional – will be deemed negligent if he/she has failed to provide a standard of care reasonably expected of someone in the medical profession. If, therefore, a player has suffered injury by virtue of the medical team not properly implementing the existing protocols in place (regardless of whether these were sufficient), this might well be an easier action to bring in terms of establishing a breach of duty. Additionally, as the players’ employers, professional clubs assume responsibility for their welfare.
As for potential claims against fellow sportsmen and women, these are extremely rare. Nevertheless, the English courts have established that players in competitive sports owe a duty – to each other – to take all reasonable care, taking into account the particular circumstances in which the competing players are placed. If one player injures another, either because he failed to exercise the degree of care that was appropriate in the circumstances, or because he acted in a manner to which the other could not have been expected to consent, he could be liable in negligence. The clear implication from the seminal case of Condon v. Basi [1985] 1 WLR 866 is that, in the case of contact sports, it will be difficult to establish liability unless the actions of the defendant are outside the rules of the game. The act must be more than a momentary error of judgment – which the courts have held to be expected on the field of play.
In certain circumstances, those refereeing or otherwise controlling dangerous sports may themselves be liable for any failure to display reasonable competence (if it results in injury to a player) – which includes failure to implement rules designed to protect against injury. The factual context will inform the content of the duty to take reasonable care; for instance, the age of the participants being refereed is to be taken into account when assessing reasonableness. The courts have held that there are clear policy reasons as to why the duty of care extends even to amateur referees – namely that “rarely if ever does the law absolve from any obligation of care a person whose acts or omissions are manifestly capable of causing physical harm…”
Hypothetically, therefore, if a rugby player was (wrongly) permitted to return to play having “passed” a Head Injury Assessment (“HIA”) and the referee did not re-refer the player for medical assessment despite the player showing clear signs of concussion, the referee could potentially be liable for further injury sustained to that player. That said, referees would likely only be held liable in the clearest cases of incompetence and should take comfort from the fact that, if they know the laws of the game and simply seek to apply them in a reasonable manner, in theory they should have little to worry about.
Quantum of damage
Before the “chain of causation” falls to be considered, it is important to consider what the “damage” will be in these cases. Where, for instance, a player has been forced to retire because of repeated concussions or second impact syndrome, they may seek “general damages” to compensate for their physical injury – which may include short-term effects like prolonged headaches, and long-term effects such as early onset dementia – as well as any psychiatric harm sustained (such as depression or anxiety). “Special damages” may also be recoverable; that is the consequential losses flowing from the injury, such as loss of earnings (wages, sponsorship, etc) due to early retirement or expenses incurred for medical treatment. Claims may also be brought in the event of the player’s death being caused by a TBI (or CTE), under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.
Causation
When it comes to causation, the claimant must traditionally satisfy two limbs:
(a) Factual causation – but for the defendant’s breach of duty, on the balance of probabilities, the claimant would not have suffered the relevant damage; and
(b) Legal causation – the relevant damage suffered was not too remote a consequence of the defendant’s breach of duty
Factual causation is likely to be a complex issue in concussion cases. To succeed, any claimant sportsperson will have to establish that their symptoms (on which the claim is based) were caused by the relevant sporting activity, and thus that those symptoms, or the severity of those symptoms, would not have otherwise arisen. From an epidemiological perspective, not all those who develop dementia-type illnesses have experienced a sports-related brain injury, in the same way that not everyone who develops lung cancer has smoked. That said, a major study (published in April 2018) warned that suffering a severe concussion in your twenties increases the risk of developing dementia in the next 30 years by more than two thirds. Nevertheless, defendants will likely seek to argue that their breach of duty made no difference to the claimant’s eventual outcome – an argument that the British Boxing Board of Control ran unsuccessfully in the Watson case.
English case law has developed, with various twists and turns, in the problematic field of factual causation. Whilst the “but for” test is generally the starting point, the courts have, on occasion, been willing to apply more relaxed/pragmatic alternatives, which may assist prospective claimants. The case of Bailey v. The Ministry of Defence [2009] 1 WLR 1052 considered a scenario in which it was beyond the scope of current medical science to conclude for certain what would have occurred but for the relevant breach of duty. The Court of Appeal ruled that the material increase in risk that resulted from the defendant’s breach of duty amounted to a sufficient causal connection for liability in negligence to be established:
“If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed.”
In the Privy Council case of Williams v. Bermuda Hospitals [2016] 2 WLR. 774, it was suggested, obiter, that the analysis of the Court of Appeal in Bailey was wrong:
“The Board does not share the view of the Court of Appeal that the case involved a departure from the “but for” test. The judge concluded that the totality of the claimant's weakened condition caused the harm. If so, “but for” causation was established.”
Lord Toulson’s analysis has itself been doubted academically. Although this area of the law might seem a little unsettled, the general feeling is that the judgment in Williams in fact confirms the application of the “material contribution” test – regardless of the, perhaps merely semantic, issue whether such application amounts to a departure from the “but for” test.
Difficulties in diagnosing brain injury and competing medical theories as to what causes CTE, dementia, etc could well prove to be obstacles that claimants will have to overcome – but not necessarily insurmountable ones. In terms of satisfying the “damage” requirement, some scientists consider that there are now diagnostic tests – such as imaging biomarkers in tauopathies and transcranial magnetic stimulation – that are able to screen for concussive brain damage whilst the person is alive. Meanwhile, in February 2018, the U.S. Food & Drug Administration authorised the marketing of the first blood test – the Banyan Brain Trauma Indicator – to detect concussion by measuring brain-specific proteins that appear in the blood within 12 hours of a TBI occurring. A saliva test has also been trialled in English rugby’s top two professional divisions and there are studies which suggest it could be useful in identifying the severity of a concussion, particularly in children.
Notwithstanding these developments, it is fair to say that scientific and medical knowledge in this complex area is still developing. That being so, there remains plenty of room for argument, on both sides of any sports-related TBI claim.
Limitation
Under English law, any claim for personal injury must be brought within three years of the date when the cause of action accrued or (if later) within three years of the date of knowledge of the injury. This will likely be a defence that defendant(s) in concussion-related claims will raise, as with defendants in industrial disease cases. Given that the effects of concussion injuries can be hidden for years, there will inevitably be a focus on “date of knowledge”. As such, documents such as historic medical records and any efforts made by clubs/governing bodies to alert players to potential risks may well be relevant when determining the relevant date of knowledge.
Arguably it would be difficult for a claimant to spot signs of dementia/CTE. This is not dissimilar, for instance, to factory workers finding it tricky to attribute noise-induced hearing loss (“NIHL”) to a loud workplace as opposed to other factors (e.g. advancing age). In NIHL or asbestos (mesothelioma) cases, there will often be a preliminary trial on the issue of limitation alone, which may well be the way that the courts would choose to deal with concussion-induced personal injury claims in which a limitation defence has been raised.
Discussion
The concussion-related litigation in North America will surely ensure that governing bodies and clubs around the world (and their insurers) are nervously looking over their shoulders.
A claimant bringing a sports-related TBI claim under the English law of negligence will invariably have hurdles to clear if their claim is to succeed. The passage of time and the varying levels of scientific knowledge might make success in historic claims more difficult, whilst more recent claims may be more susceptible to findings of volenti or contributory negligence as the players themselves become more aware of the dangers. Regarding causation, it is difficult to predict if a court would be willing to apply the doctrine of “material contribution” to a sports-related TBI case, though the trend in the English courts seems to favour the claimants.
In the face of increasingly robust scientific evidence about the long-term effects of concussion (rather than mere conjecture), governing bodies, clubs and anyone else responsible for the health and safety of players must adopt an evidence-based approach to protect not only the wellbeing of their athletes, but also themselves from the risk of litigation.
The medico-legal framework in this complex area is set for a potentially defining – and unpredictable – few years.
Henry Goldschmidt, an associate at Morgan Sports Law, examines the growing concerns around concussion – and brain injuries generally – in sport. He also looks at the ramifications of recently published medical studies, which suggest that brain injuries may not be confined to traditional “collision” sports.
It was hoped that the proposed relaxation to the IOC’s controversial Rule 40 would mark a significant advancement in athletes' rights, granting Olympians a fairer opportunity to market themselves at a key stage in their careers. However, the new guidelines have proved a disappointment. Mike Morgan and Donna Bartley examine the origins of Rule 40, the new guidelines and why this is such a serious issue for athletes.
Described by elements of the media as “evil”, Justin Gatlin faced almost unprecedented levels of antipathy in the build-up to his duel with Usain Bolt at the 2015 IAAF World Championships. Mike Morgan examines the roots of that antipathy and whether Gatlin was treated fairly.
Footnote
1. Tom Seamer, a barrister at Morgan Sports Law, contributed to this article.
2. Robinson v. Chief Constable of West Yorkshire Police [2018] 2 WLR 595. Lord Reed, giving the leading judgment, rejected the tripartite test analysis of Caparo Industries Plc v Dickman [1990] 2 AC 605 (i.e. reasonable foreseeability, proximity and it being fair, just and reasonable to impose a duty of care), instead favouring an “incremental” approach by reference to existing precedents, as well as what would be “just and reasonable” in all the circumstances. Reasonable foreseeability remains a core aspect of any test formulation.
3. The case was first heard in the High Court, where Kennedy J awarded Watson (who suffered brain damage during a boxing fight) around £1 million in damages. Kennedy J held that there was a "sufficient nexus" between Watson and the British Boxing Board of Control (“BBBoC”) to create a duty of care, and that Watson's consent to the fight (which would normally be considered a defence of volenti non fit injuria) was not a consent to the inadequate safety measures. Sufficient proximity was established (the defendant had assumed responsibility for determining the nature of the ringside medical facilities provided to restrict the foreseeable injuries) and there were no policy reasons why a duty of care should not be imposed. That decision was then upheld by the Court of Appeal, with Phillips LJ, as he was then, noting that it "broke new ground". Phillips LJ held that the BBBoC had taken control of medically supervising the sport, and that the duty of care was not just to avoid injuries, but "to ensure that injuries already sustained are properly treated."
4. Wattleworth v. (1) Goodwood Road Racing Company (2) Royal Automobile Club Motor Sports Association Ltd and (3) Fédération Internationale de l’Automobile [2004] PIQR P25. In this case, a duty of care was found to be owed by a sporting governing body (which had inspected a racetrack), albeit a breach of that duty was found not to have been established.
5. Watson v. British Boxing Board of Control [2001] QB 1134 at para 91.
6. (1) In Agar v. Hyde [2000] 201 CLR 552, two amateur players alleged that the International Rugby Football Board (being the governing body) and members of that board had a duty of care to change the rules of the game to minimise injury to players. The High Court refused to recognise this duty of care, noting that rugby was an inherently dangerous sport. (2) In Haylen v. New South Wales Rugby Union Ltd [2002] NSWSC 114, a player was rendered quadriplegic and sued the NSWRU. The injured player argued that, as the NSWRU controlled the game of rugby in NSW, there was a duty to ensure players were not subjected to an unnecessary risk of injury. Ultimately, the Court determined that the NSWRU did not have a legal obligation to ensure the player's safety as he took part in the game of his own free will and was aware of rugby’s “dangerous” nature.
7. Volenti non fit injuria ("to a willing person, injury is not done") is an English common law maxim which operates where it can be shown that a claimant had consented to a particular risk of harm. In short, if someone willingly places themselves in a position where harm might result, knowing that such harm might result, they are precluded from a recovery for an injury ensuing therefrom. Consent may be express but it is usually implied from the particular circumstances.
8. Sports Law, Beloff, Kerr & Others (Second Edition), para 5.69: “A court is unlikely to imply consent to risks which go beyond those inherent in the sport. It is only in rare cases that a defendant will be found to have acted in breach of his duty of care but is absolved of liability because of the consent of the claimant.”
9. See: (1) http://www.abc.net.au/news/2017-06-21/james-mcmanus-suing-newcastle-knights-nrl-over-concussions/8638682: Former professional rugby league player James McManus claims the Newcastle Knights failed to conduct proper medical assessments following his concussive injuries, relied on medically unqualified personnel, such as trainers, to form opinions on brain injuries, failed to retire him on various occasions after head injuries, failed to warn him of the possibility of permanent brain damage from concussive injuries and failed to tell him to get his own medical assessment. He said his ongoing disabilities included "cognitive impairment, impairment of memory, mood swings, headaches, anxiety, depression, lethargy and sleep disturbance", and claimed that because the Knights failed to manage his concussive injuries he has been deprived of the opportunity to play rugby league both in Australia and overseas. He further alleged that he missed out on sponsorship and advertising deals, and lost earning capacity in other types of employment. In its defence, the Knights said the game of rugby league was a "dangerous recreational activity" and denied the club was at fault for McManus' injuries. It said the risk of harm to McManus was "an obvious risk" and he was presumed to have been aware of that. (2) https://www.theguardian.com/sport/2017/aug/21/former-newcastle-knights-player-james-mcmanus-has-win-in-concussion-court-battle: In August 2017, the NSW Supreme Court agreed to a request from McManus’s legal team for access to a wide variety of documents (medical records, game day diaries, etc.) involving other former Knights players who had suffered concussion and head injuries. Justice Ian Harrison rejected the Knights’ claim that there was no legitimate reason to give McManus access to the documents.
10. See: (1) http://www.abc.net.au/news/2017-06-21/james-mcmanus-suing-newcastle-knights-nrl-over-concussions/8638682. (2) http://www.smh.com.au/rugby-league/league-news/former-newcastle-knights-winger-james-mcmanus-suffered-brain-injury-after-10-concussions-20170621-gwvu3c.html
11. Baker v. Quantum Clothing Group Ltd & Ors [2011] 1 WLR 1003: In the context of industrial disease, a certain number of the defendants actually knew more than that which could have been reasonably expected at the time, so they were held to that higher standard.
12. For whom the club, assuming that it is the doctor’s employer, will be vicariously liable.
13. Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582; Wilsher v. Essex AHA [1988] 1 AC 1074
14. For example, in August 2016, it was announced that rugby player Cillian Willis would be suing his former club Sale Sharks (and the two club doctors) for wrongly handling and incorrectly treating two head injuries he had previously sustained. Willis was concussed by a high tackle during a match in March 2013 but was allowed to continue playing. He suffered a second blow early in the second half but again was allowed to continue before he was eventually replaced after 47 minutes. The former Ireland Under-21 international never played again.
15. Condon v. Basi [1985] 1 WLR 866: a landmark case where the Court of Appeal held that a footballer was liable for breaking his opponent’s leg in a tackle.
16. Sports Law, Beloff, Kerr & Others (Second Edition), para 5.40 citing Riddler v. Thaler [1990] unreported; 1998 1(1) Sports Law Bulletin 3 (scrum-half ordered to pay damages following a high tackle on the claimant).
17. See: (1) Sport: Law & Practice, Lewis & Taylor (Third Edition), para H7.45 (2) https://theconversation.com/no-other-recourse-but-to-sue-the-implications-of-alex-mckinnons-lawsuit-against-the-nrl-70590: In December 2016, former rugby league player Alex McKinnon announced his intention to sue the NRL and Melbourne Storm’s Jordan McLean for compensation. McKinnon had been left in a wheelchair following a dangerous on-field tackle in an NRL match in 2014. This is not the only time the Australian NRL has been in the spotlight. Back in February 2005, the New South Wales Supreme Court awarded compensation to Jarrod McCracken after ruling that the actions of two players in performing a spear tackle “were intentional and intended to injure” (https://www.dailytelegraph.com.au/news/nsw/tackle-made-league-star-millions/news-story/2ffdd800a9ec462df8b11dab5c90f313).
18. This can be contrasted to road traffic cases, where an error of judgement is not tolerated and will likely lead to a finding of negligence.
19. For example, Smolden v. Whitworth [1997] ELR 249, CA, a much-publicised case where a referee was held liable for injuries sustained when a scrum collapsed. Likewise, in Vowles v. Evans [2003] 1 WLR 1607, an amateur referee was held liable for catastrophic injuries also sustained during a collapsed scrum. In that case, the Court of Appeal found that the referee had effectively “abdicated his responsibility” for determining how scrums should be set and whether they should be uncontested.
20. Clearly there is less scope to argue that the player accepted certain risks if he/she is young and generally learning the nature/rules of the game.
21. Vowles v. Evans [2003] 1 WLR 1607, per Lord Phillips MR, as he then was, at para 25: “Rugby football is an inherently dangerous sport. Some of the rules are specifically designed to minimise the inherent dangers. Players are dependent for their safety on the due enforcement of the rules. The role of the referee is to enforce the rules. Where a referee undertakes to perform that role, it seems to us manifestly fair, just and reasonable that the players should be entitled to rely upon the referee to exercise reasonable care in so doing. Rarely if ever does the law absolve from any obligation of care a person whose acts or omissions are manifestly capable of causing physical harm to others in a structured relationship into which they have entered.”
22. Sport: Law & Practice, Lewis & Taylor (Third Edition), para H7.102 citing Carabba v. Anacortes School District No 103 435 P 2d 936 [1967] and Kline v. OID Association Inc 609 NE 2d 564 [1992].
23. http://www.brainandspinalcord.org/second-impact-syndrome/: “Second impact syndrome” occurs when a player suffers from a second concussion when the original concussion has not fully healed.
24. The damage suffered could be both physical and psychiatric injury resulting from the concussion and consequential losses (e.g. loss of earnings due to early retirement). Depending on the age/earning potential of the sportsperson, the damages to be awarded in respect of the latter could dwarf the former.
25. The lead author of the study was Jesse Fann, a professor of Psychiatry and Behavioural Sciences at the University of Washington School of Medicine. The findings, from a review of nearly 2.8 million patient cases in Denmark, indicated that the overall risk of dementia in individuals with a history of TBI was 24 percent higher than those without a history of TBI, after accounting for other risk factors for the disease. A single TBI characterised as “severe” increased the risk by 35 percent; a single “mild” TBI or concussion increased the risk by 17 percent.
26. Charlesworth & Percy on Negligence (13th Edition), para 6-04
27. Bailey v. Ministry of Defence [2009] EWCA Civ 883, per Waller LJ at para 46
28. Williams v. Bermuda Hospitals [2016] 2 W.L.R. 774, per Lord Toulson JSC at para 47
29. Stapleton and Steel, ‘Causes and Contributions’, LQR 2016, 132(Jul), 363-369
30. Section 11 of the Limitation Act 1980. Note that the court has discretion, in respect of a claim for personal injury or death, to extend the limitation period under section 33 of the Limitation Act 1980. Additionally, if there has been deliberate concealment of a fact relevant to the claimant’s right of action (e.g. akin to the allegations made against the NFL), time does not begin to run until the point at which the concealment has or should have been discovered.
31. http://www.insurancejournal.com/news/international/2016/08/01/421734.htm: S&P Global Ratings report that sports-related brain injuries are one of the top emerging insurance claims in the US and the UK. While they do not believe that they will reach the magnitude of asbestos-related claims, the raised awareness of concussion and the massive increase in the incidence of reported cases are causing concern to insurers. S&P suggested that US insurers have learned from their experience of asbestos-related claims and have started to draft “concussion-exclusion clauses”. They also note that, in the UK, the insurance industry is well-placed to become involved in setting monitoring and prevention standards owing to the companies’ roles as sports sponsors.
32. Stapleton and Steel, ‘Causes and Contributions’, LQR 2016, 132 (Jul), 363-369