Concussion and the Law

Concussion and the Law

Have you heard the word ‘concussion’ a lot lately? It’s currently a hot topic, as former rugby players are bringing a legal case against rugby organisations including World Rugby, the Rugby Football Union (RFU) and the Welsh Rugby Union (WRU). The law on this issue can be complicated, but this blog post from Wasps player and sports lawyer Charlie Willett will give you a quick guide to what is going on.
Charlie Willett
What is a concussion? A concussion is a brain injury which is caused by a blow to the head or body which results in forces being transferred to the brain. If you have a concussion you might feel confused, dizzy and nauseous, as well as lots of other symptoms. Concussions can be dangerous if they’re not treated properly. Most rugby clubs are now very careful about concussion, and if you take a bump to the head and don’t feel very well, you will probably be told to take a few weeks off playing. This is important to protect your brain. You can find out more about concussion here.
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What is the background to the legal action? Former players are arguing that playing rugby has left them with permanent brain damage as a result of repeated blows to the head. They say that rugby organisations should have protected them better from these consequences and that they have been left to struggle with early onset dementia. One of the players is Steve Thompson – he played in the 2003 Rugby World Cup, but he now cannot remember any of the seven games that he took part in. He has said that it is very ‘frightening’. Lots of the other players have similar stories.
England's Steve Thompson during the 2011 Rugby World Cup match between England and Romania at Otago Stadium in Dunedin, New Zealand. Steve has since been diagnosed with early onset dementia. (Photo by Warren Little/Getty Images)
The lawyers are saying that this is the result of negligence by the rugby organisations. What is negligence? Negligence has three main parts which must be proved on something called the balance of probabilities. This just means that it must be ‘more likely than not’. The three main parts of negligence are:
  1. Duty of Care
  2. Breach of Duty
  3. Causal Link.
Let’s go through these three steps in the context of the concussion legal action.
  1. Duty of Care
This is the easiest step in this case – the former players just need to show that the rugby organisations had a responsibility to make sure they were kept safe whilst playing rugby. World Rugby says player welfare is its ‘number one priority’, and the RFU and WRU were the employers of some of the players involved. This means that the duty of care test is satisfied.
  1. Breach of Duty
This one is a bit trickier – the former players would need to prove that the rugby organisations:
  1. knew, or reasonably should have known about the risks of concussions; and
  2. should have introduced stricter concussion rules sooner than they did.
Even though we now know lots about how dangerous concussions can be, the former players might not be able to prove that the rugby organisations knew this ten, twenty or thirty years ago.
  1. Causal Link
This is a fancy way of saying that the breach of duty – failure to protect former players from concussions – is directly linked to damage or loss. In this case, when we talk about damage or loss we mean the fact that the former players now suffer from early onset dementia. Although there is scientific evidence showing a link between head impact and dementia risk, there are still relatively few studies in this field and lots of unknowns. This means the former players might find it difficult to prove that there is a causal link. Have a think about these steps – do you think the lawyers will be able to prove all of them?
What happens next? Former players and their lawyers are preparing for a court case based on the three steps of negligence. However, there isn’t a court date set for this yet. In other sports such as the NFL, these cases have been settled, which means that the sports organisation makes a payment to the players to compensate them without having to go through a legal case. Whatever happens, there is likely to be a big focus on how rugby organisations can look after players and reduce the risk of concussions in the future. It is important for all players to know what a concussion is and take proper steps to manage symptoms if they arise. Remember, you should always be honest about your symptoms and chat to a medical professional if you are worried!

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