Negligence and Sport
First published on Keep Calm Talk Law in January 2021
The concept of risk lies at the very heart of the sporting contest, in more violent sports this creates a fine line for managers of athletes between balancing sporting imperative and physical welfare. For many years, the machismo central to sports such as football, rugby and cricket lionised those who battled through injury for the cause. Images of players with bloodied shirts following head injuries are common and management of head injuries has been a controversial issue when it comes to player welfare. The ‘stiff upper lip’ approach of the past where athletes were either told or were allowed to continue playing after significant head issues had the potential to cause significant legal issues for teams and governing bodies. The issue was at the centre of the debate surrounding the duty of care towards athletes which intensified following the tragic death of Philip Hughes, the Australian test cricketer who sustained a head injury during a match in November 2014. There was no finding of negligence against anyone for Hughes death, but it did draw attention to how head injuries are managed. This in part has led to improvements in safety equipment, the introduction of concussion substitutes in cricket, and mandatory rest periods for confirmed concussion injuries.
The most famous example of a successful legal claim against a governing body would be in American Football where the National Football League (NFL) was successfully sued by former players for head trauma and injuries during their NFL Football careers, which caused or may have caused them long-term neurological problems. They accused the NFL of being aware of the evidence and the risks associated with repetitive traumatic brain injuries but failed to warn and protect players against those long-term risks. The claim was eventually settled by the NFL in 2013 and to date has paid out over $822 million to former players. Domestically, the Court of Appeal held in Watson v British Boxing Board of Control that the British Boxing Board of Control (BBBC) breached their duty of care to Michael Watson by failing to ensure that Watson received immediate ringside medical attention after his infamous 1991 fight against Chris Eubank which left Watson with near-fatal brain injuries.
In 2017, Canadian former Rugby union player Jamie Cudmore brought legal action against his former club, Clermont Auvergne, following concussion injuries he alleged were caused by the club’s medical staff allowing him to continue playing in matches where he had already suffered a concussion, and potentially exposing him to ‘second impact syndrome’ — a state where the brain swells rapidly and sometimes catastrophically after it suffers a second concussion before symptoms from an earlier one have subsided. In January 2019, a court-appointed neurologist said that the club was responsible for his concussion-related injuries suffered after the club allowed him to return to the pitch following a head injury suffered in the first half of the 2015 Heineken Cup final. The case has yet to reach a conclusion but maybe influential in legal thinking on the issue.
Brief Explanation of the Law of Negligence
Negligence is a common-law tort which means the law governing the tort of Negligence is not contained in a specific statute but is made by the courts. Although it is one of the most recent torts to be established, it is now easily the most important as the basis of accident compensation in this country. To establish a claim for negligence there are certain things that a claimant needs to prove to be successful.
First, they must demonstrate that they were owed a duty of care by the defendant. The current common-law standard in English and Welsh law comes from Caparo v Dickman in 1990, which states that a duty of care will be owed if harm is reasonably foreseeable, that there is sufficient proximity of relationship (in time or space), and if it is fair just and reasonable to impose a duty. A duty of care will usually be owed whenever harm is caused by one individual to another by a positive act of wrongdoing and that harm is foreseeable physical injury or damage to the person or property. There are certain relationships in which the law automatically implies a duty of care whether through statute or through case law. These include relationships such as teacher and pupil, employer and employee, and coach and player.
Secondly, it needs to be shown that that duty of care was breached by the defendant. This is assessed in a two-stage test, firstly what the defendant ought to have done in the circumstances, and secondly whether they fell short of that standard. The first part looks at what risks a ‘reasonable person in those circumstances would have foreseen’. This is a flexible and objective standard dependent on the situation at hand. Where someone holds them out as holding certain skills or qualifications to perform certain roles, then it is assessed in comparison to the reasonable person doing that job or possessing those skills. This also applies to sport, and in particular the relationship between coach and participant. A pertinent example is Anderson v Lyotier, a case involving a skier who successfully sued his instructor after he was seriously injured in an accident after following dangerous instructions from his instructor.
It must also be established the defendant’s breach of his duty of care was the cause of the harm suffered to the claimant or their property, known as ‘factual causation’. The legal test for factual causation is known as the ‘but for’ test. This can be seen in Cork v Kirby MacLean Ltd, where it was held that “if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no-fault, the fault is not the cause of the damage”.
Furthermore, if found to be the factual cause of the harm, then any harm suffered must be a reasonably foreseeable consequence of the defendant’s actions. This principle flows from the decision in the Wagon Mound (No.1). This is known as ‘legal causation’.
In addition to the elements set out above, a defendant may defend any claim by claiming that the claimant had full knowledge of and freely consented to the risk of injury, known as ‘volenti non-fit injuria’ ("to a willing person, injury is not done"). This is relevant in sporting cases where participants often agree to participate knowing the risks involved with the expectation of the rules being applied to protect them against injury. Where this applies, this will completely protect a defendant against liability. Other defences include any claims brought outside of the time limits contained within the Limitation Act 1980, s.11(4) holds that claims cannot be brought more than 3 years after the cause of action accrued or 3 years after the date of knowledge of the injury.
The Steve Thompson Case
In December 2020, a class action claim was brought against World Rugby (WR), the English Rugby Football Union (RFU), and Welsh Rugby Union (WRU), by a group of former players alleging a failure to protect them from concussion injuries. The case is in the very early stages of the litigation process, so it may be some time before it is presented before the courts. Each player has been diagnosed with the early signs of dementia and claim that the repeated blows to the head suffered during their careers are to blame. The group’s lawyers also claim that another 80 players have shown symptoms and have serious concerns about future deterioration. Among the claimants is Steve Thompson, a member of the 2003 England World Cup-winning team who claims that because of his injuries he can no longer remember any of the games during the tournament. Part of the claimant’s case is that the governing bodies failed to protect the players from repeated head injuries suffered in matches and in training, as well as inadequate protocols to deal with concussion injuries.
We must now look at whether a claim in negligence could be established by the claimants. Where a governing body assumes a regulatory rather than advisory role, they owe a duty of care to competitors. As discussed in Ben Cisneros’ piece on this website back in 2017, WR would arguably have a duty of care to protect them from long-term health problems by imposing appropriate regulation on the handling of concussion injuries. Under the Caparo criteria, the type of harm involved is reasonably foreseeable as rugby is a sport full of physical collisions. There is a relationship of proximity between the claimant and WR as the defendants were playing under WR rules and regulations. As in Watson, WR’s capacity to implement measures to protect and promote the health and safety of players should put them in an appropriately proximate relationship. Moreover, because it is a stated objective of WR to look after its participants – as demonstrated by its 'Putting Players First' slogan and a website dedicated to player welfare – it seems ‘fair, just and reasonable’ to hold them to this.
This argument could reasonably be made against the RFU and WRFU too, as the governing bodies of the game within England and Wales. Combined with this, case law such as Stokes v Guest Keen and Nettlefold (Bolts and Nuts Ltd), where it was held employers, whose activities involve a particular health risk, have a duty to ensure employees can receive appropriate medical attention. This principle was confirmed in Watson where the BBBC failed to provide adequate medical facilities. England and Welsh international players are centrally contracted, so that duty of care is automatically implied through the employment relationship.
Could the defendants be at fault?
Now that there is a strong possibility of a duty of care being established, have the defendants breached that duty and did that breach cause the injuries the claimants are claiming for? An important part of assessing this is looking at the concussion and safety protocols put in place. The failure of a coach to follow appropriate safety codes may also give rise to liability, as they are expected to exercise reasonable care in imparting their knowledge and running safe practice sessions. Although in the current instance, the coaches are highly likely to be employees of the RFU and WRFU, so those organisations would likely be vicariously liable for the acts or omissions of those coaches they employ.
Concussion injuries are a known risk, in 1997 – two years after the game turned professional – an American Academy of Neurology report warned: “repeated concussions can cause cumulative brain injury in an individual over months or years”. It was not until 2003 that World Rugby reacted and introduced the first concussion protocols; it is arguable that, even then, their 2003 regulations were vague, all-too-easily manipulated and contained no procedure for assessing the injury. Regulation 10 of the 2003 Regulations stated a player who has suffered a concussion ‘‘shall not participate in any rugby match or training session for a minimum period of three weeks’’. This period may be reduced after ‘‘the player is symptom-free and declared fit to play after appropriate assessment by a properly qualified and recognised neurological specialist’’, often this involved a team doctor making the assessment which allowed team coaches to apply sporting pressure to get players back on the field.
A British Journal of Sports Medicine Injury Surveillance Project study of the 2003 Rugby World Cup found that only 2% of 189 reported injuries were concussions, but believed that the regulations in place encouraged the misreporting of concussion injuries to allow for players to remain available for selection. This appears consistent with the claims made by the claimants regarding the culture of rugby union where it is alleged that players were often encouraged to play through injuries, as highlighted in the Cudmore case. If cases were misreported, then it appears possible that there were players playing in the tournament who had suffered a concussion injury at risk of second impact syndrome. This would have put some players at risk of suffering the sorts of brain injuries complained of in the letter of claim.
In terms of factual causation, without knowing the full facts, there may be a case for WR to answer through the potentially lax application of the concussion protocols, or the RFU and WRFU through failing to take more stringent measures to protect players from head injuries in training, especially those regularly involved in scrummaging where head collisions are relatively common. If WR had introduced more demanding and responsible protocols earlier, it suggests that the number of repeated concussions suffered may have been significantly reduced. Meanwhile, it is relatively uncontroversial to state that “but for” the alleged negligence of the teams’ medical staff, the players would not have suffered so many concussions in a short space of time, which led to more serious brain injury. In terms of legal causation, the harm suffered almost certainly meets the foreseeability requirement contained in Wagon Mound (No. 1) due to the intensely physical nature of rugby union.
The ‘volenti non-fit injuria’ defence may well have some power in the case against WR. It may be argued that, by playing under the prior regulations, players impliedly consented to the risk of injury. However, the nature of this consent is doubtful: rugby players are likely to know less about the risks of concussion compared with WR.
In the RFU and WRFU context, the ‘volenti’ defence is perhaps less likely to succeed because of the doctor-player scenario involved. Although the player might say he can continue, it would still be negligent of a medical professional to let them – their superior knowledge must outweigh the players desire to continue. Allowing volenti to apply here would contradict the duty of care: indeed, it was asserted in Smith v Charles Baker & Sons that employees never accept the risk of their employer’s negligence. Additionally, players who insisted on playing may have contributed to their injuries could see their damages reduced under the Law Reform (Contributory Negligence) Act 1945, because a player could not be entirely cleared of blame for their injuries. In fact, there are important policy issues involved. By applying contributory negligence, the courts would be encouraging players to take greater personal responsibility for their own welfare, which must be viewed positively in a sport like rugby union.
Conclusion
Although the World Rugby’s concussion protocols have evolved over time and improved, it is the protocols in place at the time of the injuries suffered by the claimants that are at issue, and the enforcement of these protocols in a machismo culture that is at the heart of the case. In the heat of a sporting battle, the temptation to throw a player back into the game when they look ‘ok’ is great especially when the player involved could be highly influential on the outcome of the game and the spoils that victory could bring. While we are yet to hear the full facts of the case should it progress to trial, there is sufficient historical knowledge of the culture of the game to suggest that there may be a hint of credibility to the claims to suggest that the rugby authorities and clubs may have failed players at times.
Whether this amounts to legal liability is yet to be known but cases such as Cudmore’s against Clermont Auvergne, despite being heard in a French court, may give the claimants some hope of success against the English Rugby Football Union and the Welsh Rugby Union due to the proximity of the doctor-player relationship, and the greater level of direct control that those bodies have over the players on a day-to-day basis in terms of training and supervision. The case against World Rugby may be harder to make as they would need to demonstrate that the protocols introduced were defective, and they were not enforced properly. The 2003 World Cup demonstrates that there may be some evidence to show this as they encouraged misreporting of concussion injuries, which in turn may incriminate the national bodies further. Should this case proceed to trial, it promises to be a fascinating case that will further refine the duty of care that a governing body has over its participants.