It has been reported that Cillian Willis’ negligence claim against Sale Sharks’ doctors is to be heard in closed court in Manchester from today. Willis, the former Sale scrum-half, was forced to retire in 2013 after a series of concussions and alleges clinical negligence against Sale’s team doctors for their treatment of him in an LV Cup match against Saracens on March 10^th, 2013.

The player claims that he sustained two head injuries during the game and that, in breach of World Rugby and Premiership guidelines, he was allowed to continue playing on both occasions, despite being concussed. He was eventually replaced in the 47^th minute and never played rugby again, owing to the brain injury he suffered.

The case is the first of its kind and will have significant implications on the standard of care expected of team doctors in relation to concussion. The rugby and legal professions await the judgment with bated breath.

I have written before about the legal tests which will be relevant to a concussion negligence case (see here) but this article will seek to analyse the particular elements of the Willis case which are likely to be decisive, and will comment on the fact that the claim is proceeding only against the doctors, as opposed to the club itself.

Vicarious Liability?

A fascinating preliminary point about this case is that it is not proceeding against Sale Sharks, but against the team doctors themselves. This is most surprising. Doctors in professional sport are often employees of the clubs and, as such, clubs can be vicariously liable for the doctors’ negligence (see, for example, Hamed v Mills and Tottenham Hotspur FC [2015]). The doctrine of vicarious liability in English law states that an employer will be liable for the wrongdoing of its employee provided that there is a sufficiently close connection between the wrongdoing and the employee’s employment. Recent years have seen much development in this area of law

The test for vicarious liability can be broken down into two limbs: (1) there must be a relationship between the wrongdoer and the person alleged to be liable which is capable of giving rise to vicarious liability, and (2) there must be a close connection between the wrongdoing and the wrongdoer’s employment. In Willis’ case, there would be no debate about limb (2), as a negligent act by a doctor on a rugby field would certainly be within ‘the course of their employment’, but the argument for vicariously liability must have fallen down at limb (1) – the doctors must not have been ‘employees’ of Sale.

However, the Supreme Court in Cox v Ministry of Justice [2016] expanded the traditional understanding of the first limb. Though there was not an employer-employee relationship in this case, the court held that the relationship between a prisoner and the Ministry of Justice was sufficiently akin to an employment relationship to establish vicarious liability. The court held that:

“a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit…and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question”

Traditionally, independent contractors were treated as falling outside of the scope of vicarious liability but, in light of Cox, this is no longer necessarily the case. Indeed, in the recent Court of Appeal decision in Barclays Bank v Various Claimants [2018], Barclays was held vicariously liable for the torts of a doctor who carried out examinations on behalf of the bank as a self-employed independent contractor. Applying the criteria in Cox, the court held that the activity was being carried out for the benefit of the bank, as a part of its business, and that the risk of the torts arose from the arrangements made by the bank. In light of the above, it is very difficult to understand why Sale Sharks would not be liable for the negligence of its team doctors, even if they were not formally ‘employees’ of the club but independent contractors.

When vicarious liability is established, the employee and employer will be jointly liable, and may thus both be expected to pay damages (either may claim a contribution from the other under the Civil Liability (Contribution) Act 1978 and Part 20 Civil Procedure Rules). As Willis’ claim is proceeding only against the doctors, any award for damages will be limited by their ability to pay out – which will depend on the precise scope of their own insurance cover (see here and here). Had the claim proceeded against the club, there is no doubt that the club’s insurance policy would cover the claim.

It is also worth noting that employers owe their employees a duty of care under their employment contract (Wilson & Clyde Coal Co Ltd v English [1937]) and, as such, Willis could also have explored the possibility of suing Sale Sharks directly for breach contract. This would require Willis to prove that the club itself had been negligent. He might be able to do so if, for example, the club was systematically failing to deal with his concussions, pressured him to play on, or interfered with any medical treatment he ought to have received. However, there is no allegation that there was any negligence of this kind.

Willis v Sale Sharks’ Doctors

As explained in the earlier article, for an action in the tort of negligence to succeed, a claimant must demonstrate that the defendant owed them a ‘duty of care’, acted or failed to act in breach of that duty and that this breach caused the claimant’s loss.

Duty of Care

Given that this is ultimately being treated as a case of ‘clinical negligence’, there will be no dispute over the duty of care owed by the team doctors to Willis. It is ultimately a doctor-patient relationship, and, in such a case, the law makes clear that a duty of care will be owed.

Fault

Much of the focus in this case will be on the issue of fault: did the doctors breach their duty of care in treating Willis? This will be a difficult issue, given the complex factual details which will need to be ascertained and carefully assessed, to determine what actually happened, and what, perhaps, should have happened.

In clinical negligence cases, the relevant legal formula is known as the Bolam test, following the case of Bolam v Friern Hospital Management Committee [1957]. Put simply, it states that a doctor will not be at fault where they acted in a way which reaches the standard of a responsible body of medical opinion. The test has been much criticised, but it remains good law. Thus, in this case, the doctors will be able to avoid liability if they can show that they acted in a way consistent with what a responsible body of medical opinion would advise in handling on-field suspected concussions. Arguably, in this case, the standard is set by the World Rugby (and Premiership) guidelines of the time, given that this is informed by research and medical opinion.

Much will depend on whether Willis is able to prove, on the balance of probabilities, that he was concussed after the first head injury. If the doctors failed to diagnose the concussion, they may well be at fault, as World Rugby Regulation 10 stated at the time that players diagnosed with concussion during a game must “be removed from the field of play and not return”.

Regulation 10 is now more stringent, and states that any player with concussion or suspected concussion “must be immediately and permanently removed” but, in 2013, the concussion protocols were far less developed. The Pitch Side Concussion Assessment, now Head Injury Assessment, was in its very early stages and, indeed, was only being trialled in the Premiership during the 2012-13 season – not the LV Cup. Though there was a strong body of medical opinion growing about the need to remove players with any suspicion of concussion, it was by no means the universally expected practice – though many would argue it should have been.

Therefore, Willis will likely have to prove that he was actually concussed in order for the doctors to be found at fault. Given the time that has elapsed, the invisibility of certain concussion symptoms and the fact that they may not always immediately develop, this will be particularly difficult to prove.

Causation and Loss

If Willis is able to overcome that hurdle, he may also encounter difficulties at the ‘causation’ and ‘loss’ stages. He will be arguing that but for the doctors’ negligence in allowing him to play on, he would not have suffered such a significant, career-ending injury. He will be claiming damages not only for the personal injury suffered but also for the consequential loss of earnings – he was only 28 when he retired. There are several issues which might arise in this regard.

Firstly, the loss is clearly foreseeable and not too remote – brain injuries are so serious that it must be foreseeable that failing to properly diagnose them could result in the end of a professional rugby career.

Nonetheless, the doctors might argue that the career-ending injury was caused not by their negligence but by the tackle in which it occurred – an inherent risk of rugby, unrelated to any medical intervention. However, the point is surely that the brain injury suffered would not have been so serious, and career-ending, had he been removed after the first incident and prevented from suffering the second. Indeed, there is medical evidence suggesting that if a player is not removed after suffering a concussion a second head injury is likely to be far more serious. This, though, will be something that Willis will have to prove.

Related to this is the point that Willis had a history of concussions. The doctors might seek to argue that he would have likely had to retire anyway – that suffering any head injury in a game, on top of all those he had previously suffered would have been enough to end his career and thus they were not a ‘but for’ cause of his loss. Indeed, they might even argue that his particular susceptibility to concussion should make the harm too remote to be recoverable. However, the latter – the so-called ‘eggshell skull’ argument – is explicitly rejected as a defence in English law (Smith v Leech Brain [1962] 2 QB 405) and, the former would be difficult to establish on the balance of probabilities (Hotson v East Berkshire HA [1987], Gregg v Scott [2005]) – if the player was given due care it is surely more likely than not that he would not have been forced to retire when he did. Furthermore, the doctors should have been aware of Willis’ vulnerability to concussion and thus, arguably, should have taken greater care (Paris v Stepney Borough Council [1951]). That said, his history of concussion might be factored in when assessing damages, as it is certainly arguable that he wouldn’t have had an especially long career if he was susceptible to concussion.

Similarly, when it comes to assessing damages for loss of earnings, it will be important to consider what Willis has done since retiring from professional rugby. If his brain injury meant that he was unable to work at all, he would be able to claim full damages for the period in which he would have been employed as a professional rugby player. But, if he hasn’t been entirely disabled, his actual earnings will be taken into account and will limit any award for consequential loss. If he hasn’t worked despite being able to, this ‘loss’ from lack of earnings cannot be said to have been caused by any negligence of the doctors and thus would be unrecoverable – Willis is subject to a duty to mitigate (Bacciottini v Gotelee & Goldsmith [2016]).

Defences

The final possibly decisive factor will be how the court treats the defence of ‘volenti non fit injuria’ – i.e. the defence that Willis, by virtue of being a professional rugby player, consented to the risk of suffering concussion and that, when he suffered the injury, he could have decided not to play on but instead accepted the risk that he might be concussed and continued to play. However, the application of such a defence would be problematic.

Firstly, a player’s consent must be limited to suffering an injury in the ordinary course of the game – it would be absurd to suggest that they consent to negligent treatment by team doctors. Therefore, Willis cannot claim against any player for causing the initial injury (Condon v Basi [1985]) but should not be stopped from suing a doctor for not removing him from the field of play.

Secondly, it would be inappropriate to suggest that Willis should have removed himself after suffering the initial injury. In professional sport, there is undoubtedly a pressure to play whenever possible and, more importantly, a player’s knowledge of concussion, its symptoms and its dangers was not then what it is now. In any event, it must be the doctors’ responsibility to identify concussions and to take decisive action – they are the ones who have the medical knowledge and training, not the players. Moreover, there is a strong argument that when suffering from a brain injury such as concussion, the law should not expect a player to be able to think sufficiently clearly to make an accurate assessment of their own health. Willis was not in a position to consent to the risk of playing on. A finding of contributory negligence under the Law Reform (Contributory Negligence) Act 1945 would be equally inappropriate.

Conclusion

Though a judgment in this case is not expected for some time, it will be worth the wait. It will be fascinating to see how the court approaches the question of fault, and what standard of care is demanded. Of course, this assessment will be specific to the time at which the claim arose (2013) and thus may not necessarily set a precedent for claims arising today. If the doctors are found liable, however, we may see a flurry of similar claims for incidents which occurred some time ago. In this regard, the Limitation Act 1980 will be key – for personal injury claims, there is a three-year limitation period in which one must bring a claim (s.11(4)).

It will also be interesting to see whether the doctors do make a contribution claim against Sale Sharks on vicarious liability principles, or whether this point has been ruled out decisively. In light of the recent case law, such a ruling would seem anomalous.