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What impact will the studies into concussion have on the risk of litigation from rugby players?

This article was first written for and published by LawInSport. Click here to view the original.

The Scottish Rugby Football Union has recently encouraged former Scotland rugby players to come forward to assist in the University of Glasgow’s study into the effects of concussion in the sport.

The purpose of the study is to
ascertain whether there is evidence that rugby related head injuries
have long-term health effects.

The Scottish Rugby Union study has received support from the International Rugby Board and former Scottish Rugby captains; Gordon Bulloch and Chris Paterson have taken part in the study. The Head Injury Research Group of the University is conducting the research.

Dr. Willie Stewart, the Glasgow
Consultant neuropathologist, gave evidence at the inquest in Dublin into
the death of former Lansdowne prop forward Kenny Nuzum. In June of this
year, the Coroner found that Mr. Nuzum’s death had been caused by
chronic traumatic encephalopathy (CTE), a degenerative disease caused by
repeated head trauma.

The topic of the effect of concussive
head injuries in sport has been a prominent one in the last few years.
In August 2013, a tentative $765 million settlement was reached in a class action brought by some 4,500 former NFL players
alleging that the league had concealed the dangers of concussion whilst
rushing injured players back onto the field. The first
lawsuit in that litigation commenced in August 2011. There are now legal
challenges to the proposed settlement and the first challenge was due
to be heard on 10 September 2014. There are wider issues in
the NFL litigation than the concussion claims themselves; it embraces
allegations of professional negligence against the NFL and claims
against the helmet manufacture Riddel for allegedly withholding evidence
and denying the risk of head injuries to the players.

In England, a campaign for The FA to
investigate head injuries in football, particularly related to the
heading of the ball, has been supported by the family of Jeff “King of the Hawthorns
Astle. Mr. Astle died in 2012 at the age of 59. Dr. Willie Stewart is
reported to have conducted an examination of Mr. Astle’s brain and
concluded that he died from CET; it had previously been diagnosed that
he had suffered from Alzheimer’s.

The Astle campaign was taken up by West Bromwich Albion fans at fixtures; and, in August 2014, the FA chairman, Greg Dyke, invited
the Astle family to Wembley to discuss head injuries in the game.

Following that meeting, Greg Dyke committed the FA to funding independent research into the issue. The Premier League rules have been amended for the 2014/15 season to
provide that the decision of the team doctor is final in determining
whether or not a player who has sustained a head injury should continue
playing or training.

If the evidence in the Scottish Rugby
Union study leads to the conclusion that there are long-term health
effects from concussive injuries in rugby it will be necessary to
consider further steps to increase the safety of the game.

Individual sports are dealing with
concussion issues in differing ways, creating different frameworks
within which the issues are being debated. The risk of litigation and
the nature of any litigation will vary from sport to sport but it must
remain a real possibility that we will see similar litigation in rugby
to that which has brought in the NFL. One aspect of the increasing
awareness of the risks of concussive head injuries in rugby is that the
Common Law doctrine of “volenti non fit injuria” (“to a willing person, injury is not done“) might arise as a defence to such claims.

This is the defence to a personal injury
claim that a person has agreed, whether expressly or by implication, to
run the risk of harm. In a sporting context, in the Australian case of Rootes v Shelton it
was held that where a participant in a game or pastime is injured by
the act or omission of another participant, the existence and extent of a
duty of care is to be determined in the light of all the circumstances,
including the risks which may reasonably be inferred to have been
accepted by the fact of participation.

In the context of rugby, claims are
unlikely to be attributed to particular incidents but rather arising
from the steps taken to protect players from the risks, particularly if
knowledge of the risk increases. In the context of the professional
sports players, the relationship may be one of employment and the duty
of care that is owed by their employer. In that context, it was held in Bowater v Rowley Regis Coporation that the “volenti
doctrine had to be applied with extreme caution in an employment
context: the risk must be one that the employee undertook voluntarily in
the fullest sense, “a real assent to the assumption of the risk without compensation must be shown by the circumstances”.

The risk of litigation is of course far
from the primary consideration in understanding the risks of head
injuries in rugby and it is to be hoped that the Scottish study will
lead to a greater understanding of the issue.

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