For the second time this season, Saracens Rugby Club (“Saracens”) is defending legal proceedings. First it was for breaches of the Premiership Rugby Salary Cap Regulations in front of an independent disciplinary panel (discussed here); now it is in the High Court.

Former Saracens flanker Matthew Hankin has issued legal proceedings against the club, former Club Doctor Dr Ademola Adejuwon and his former teammate Richard Barrington in respect of a concussion first suffered on a team trip to Budapest and its subsequent handling, that led to his retirement in 2018. This article will set out the reported background to the case before considering each of the potential claims in turn, analysing in detail the issues of vicarious liability, causation and the employer’s duty of care.

It is a fascinating and complex case, offering a fresh opportunity to consider how English law will deal with concussion in rugby, after the Cillian Willis case failed to reach trial.

This article is based on the facts reported by various media outlets on and around 10 May 2020; reports which included a comment from Saracens and which the club has not publicly disputed.

A. Background

It has been alleged that, on 6 September 2015, Mr Hankin was hit on the head with a fire extinguisher by Saracens prop Barrington whilst wearing a metal helmet during a drinking game on a trip to Budapest, organised by Saracens. Mr Hankin suffered a concussion – a traumatic brain injury – as a result of the blow and, three weeks later, was allowed to play in a match for Saracens during which he allegedly suffered a further brain injury. After the fixture on 3 October 2015, Mr Hankin never played rugby competitively again and, in 2018, retired from professional rugby.

Mr Hankin has brought a claim against Mr Barrington, but also alleges that Saracens, former physio Nicholas Court and Dr Adejuwon negligently allowed him to suffer the second, more serious brain injury that ultimately forced him to retire, aged just 25. Liability is, of course, denied.

B. Potential Claims

1. The Incident in Budapest

The incident in Budapest may give rise to three possible claims: against Mr Barrington for battery, against Saracens under vicarious liability and against Saracens for a breach of their duty of care as an employer.

a. Mr Barrington’s Liability – Battery

Mr Hankin will most likely be suing Mr Barrington in the tort of battery – i.e. the intentional and direct application of force to another without their consent. The physical physical contact imposed on the claimant must be in excess of that “generally acceptable in everyday life” (F v West Berkshire HA). The reports suggest that Mr Barrington hit Mr Hankin over the head with a fire extinguisher as part of a drinking game, and while Mr Hankin was wearing a metal helmet.

These bare facts suggest it is likely that the act of striking Mr Hankin was intentional – it was part of the game being played, which also required Mr Hankin to wear the helmet – and the force direct. The fact that Mr Barrington may have been intoxicated is unlikely to mean that his actions were not intentional.

If, instead, Mr Barrington was perhaps swinging a fire extinguisher around without intending to hit anyone but ‘accidentally’ struck Mr Hankin during a drinking game, it may be that a battery claim would fail but, in such a scenario, a claim could instead be brought in the tort of negligence.

In either tort, the question of consent will be important. Lack of consent is a pre-requisite of battery, while the existence of consent acts a defence in the tort of negligence (volenti non fit injuria). If Mr Hankin knew that he was going to be hit over the head with a fire extinguisher as part of the drinking game he was voluntarily taking part in, and did not try to prevent this happening, he will have consented to it and, thus, will be unable to claim successfully against Barrington. Of course, it might be that Mr Hankin was not a voluntary participant or did not know he would be hit so forcefully, such that he would not be taken to have consented.

Furthermore, Mr Hankin might be able to argue that he did not consent to being hit in this way because he was so intoxicated that he was incapable of appreciating the nature of the risk and did not in fact appreciate it. The possibility of such an argument was left open in Morris v Murray but would be dependent on a severe state of intoxication.

It is worth pointing out that, if the claim is brought in negligence, Mr Barrington might be able to plead the partial defence of contributory negligence (Law Reform (Contributory Negligence) Act 1945) in order to reduce any damages award but, if the claim was brought as battery (i.e. if intentionality can be proven) such a defence would be unavailable (Co-Operative Group Ltd v Pritchard).

b. Vicarious Liability

If Mr Hankin can prove that Mr Barrington committed a tort against him, he will likely argue that Saracens is vicariously liable for the tort of its employee. Saracens is likely to be insured against such claims, so it may be a more fruitful avenue down which to claim, particularly if the damages claimed are significant.

The law on vicarious liability comprises a two-stage test. The first stage is that there must be a relationship of employment or akin to employment between the club and the tortfeasor; while the second is that there must be a close connection between the employment of the tortfeasor and the tort (Barclays Bank v Various Claimants [2020]).

As Mr Barrington is an employee of Saracens, the first part of the test will be straightforwardly satisfied. The question would be over the second limb. In the recent Supreme Court decision in Morrisons Supermarkets v Various Claimants [2020], Lady Hale re-affirmed the test set out by Lord Nicholls in Dubai Aluminium v Salaam and endorsed by the Supreme Court in Mohamud v Morrisons Supermarkets:

the wrongful conduct must be so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment

She then explained that this involves asking two questions. First, what “field of activities” was entrusted by the employer to the employee and, second, whether there was a sufficient connection between these and the wrongful conduct.

In the case of Bellman v Northampton Recruitment Limited, an employer was found to be vicariously liable for an assault committed by an employee on a night out. The incident occurred after the company Christmas party, when a group of colleagues decided to carry on drinking at another venue. An argument broke out and one employee attacked another. The Court of Appeal found the employer to be vicariously liable for the attack.

Asplin LJ accepted that while the drinking session was “not a seamless extension of the Christmas party”, as the venue had changed and there was a brief temporal gap, it still had to be seen against the background of the evening’s events – a party organised and paid for by the employer. However, it was a “significant factor” that the attacker was the managing director of the company and that the fight broke out because his authority as a manager was challenged directly. The court contrasted an example of a social round of golf between the colleagues during which conversation turned to work and an assault is committed, suggesting that there would be no close connection to their employment because they were all equal and attend as casual friends/social golfers. Irwin LJ emphasised that the combination of circumstances in Bellman would “arise very rarely”.

In Morrisons Supermarkets [2020], Lady Hale endorsed the distinction drawn by Lord Nicholls in Dubai Aluminium between cases:

where the employee was engaged, however misguidedly, in furthering his employer’s business, and cases where the employee is engaged solely in pursuing his own interests: on a ‘frolic of his own’…

It is certainly arguable that there was a close connection between Mr Barrington’s employment by Saracens and his alleged wrongdoing. The players were on a trip to Budapest organised by – and possibly also paid for – by Saracens for the purposes of team bonding. Saracens players have spoken publicly about their famous team trips and about the way they are encouraged to enjoy each other’s company. The club has previously organised similar trips to Barcelona, Miami, Cape Town, Bermuda, Chicago and Verbier.

It could therefore be argued that, at the time of hitting Mr Hankin, Mr Barrington was furthering his employer’s business and was acting within the “field of activities” authorised by his employer. The very purpose of the trip was for the players to have fun and to bond, with the aim of making them a better team and, thus, performing better on the rugby pitch – further the business activities of Saracens. It was entirely foreseeable that rugby players on such a trip would engage in drinking games and, though this particular game may have been misguided, it nonetheless was part of the socialising encouraged by the club. It does not appear that this was a case of an employee pursuing a “personal vendetta of his own” or “an act entirely of personal vengeance” (Attorney General v Hartwell and Warren v Henlys [1948] 2 All ER 935).

Saracens, by contrast, would argue that the players were, at this time, very much engaged in a frolic of their own, and that it had nothing to do with their duties as Saracens employees. Such an argument would, to me, be less convincing. On the basis of the limited public reporting, I would suggest that Mr Hankin would have a good case to argue for vicarious liability – if Mr Barrington committed a tort at all.

c. Employer’s Liability

Aside from the question of vicarious liability, Saracens owe a duty of care to Mr Hankin, as an employer. Following Wilsons and Clyde Coal v English, an employer owes a common law duty of care to its employees to provide “competent staff…and effective supervision”.

As regards the provision of competent staff, the case of Hudson v Ridge Manufacturing [1957] 2 QB 348 suggested that this duty could extend to taking steps to prevent an employee causing injury to another where the employer should have known of the employee’s playful or vicious propensities. Might Mr Hankin be able to argue that Saracens should have known that Mr Barrington was prone to such playful propensities and taken steps to protect his safety? Indeed, there might be scope for arguing that, given the nature of the trip to Budapest and the well-documented behaviours of rugby players on team ‘socials’, the club should have taken steps to mitigate the risk of injuries occurring.

Saracens might argue that such a duty could not extend to this social context but, given that it was for all intents and purposes a Saracens event, this might be difficult to sustain. However, in Coddington v International Harvester Company 6 KIR 146, it was held that an employer did not owe a duty of care in respect of horseplay because the employee in question had never behaved dangerously before. If Mr Barrington’s actions were atypical, this might allow Saracens to argue that no duty was owed.

If a duty was owed, Mr Hankin would then have to prove it was breached. He might argue that Saracens failed to adequately warn players not to engage in ‘horseplay’ or failed to effectively assess the risks of the trip to Budapest. Indeed, there may be a separate duty to provide “effective supervision”, which would require reasonable steps to supervise the conduct of employees. Of course, Saracens would argue that it would not be reasonable to extend this supervision to a trip of this kind, or that the conduct of players on a ‘night out’ was beyond the scope of any duty that they owed. Nonetheless, given that such activities formed an integral part of the trip’s purpose, this might prove difficult.

Though it is by no means clear-cut, there is at least scope arguing that Saracens would be liable for what allegedly happened to Mr Hankin in Budapest, as his employer. In the event of a finding of vicarious liability, Saracens would be able to seek an indemnity, or a contribution from the wrongdoing employee under Part 20 of the Civil Procedure Rules and the Civil Liability (Contribution) Act 1978.

d. Causation

If Mr Hankin can prove the liability of Mr Barrington and/or Saracens, he will then need to show that they caused his loss in order to successfully claim compensatory damages.

A preliminary issue of fact will be whether the career-ending brain injury suffered by Mr Hankin is ‘divisible’ or ‘indivisible’. In other words, can the injury be divided into the ‘bit caused by Mr Barrington’ and the ‘bit caused by the clinical negligence’. It is suggested that it would be an indivisible injury because any clinical negligence will only have aggravated the original brain injury – it is not a separate injury, rather an aggravation of the pre-existing condition. The cumulative effect of the two injuries resulted in Mr Hankin’s career-ending condition and it would not be practicable to divide this in two.

If the injury is deemed indivisible, the starting point will be that Mr Barrington (and thus potentially Saracens) will be taken to have caused the whole injury, as his conduct was a “but for” cause of Mr Hankin’s condition (Dingle v Associated Newspapers [1962] 2 All ER 737).

However, if the injury is considered divisible, Mr Barrington might be able to argue that the alleged clinical negligence broke the chain of causation (i.e. it was a novus actus interveniens) such that he would only be liable for the extent of the injury that would have been suffered had the clinical negligence not occurred (Baker v Willougby). Nonetheless, it does seem that a brain injury is more likely to be considered indivisible and, thus, Mr Barrington (and Saracens) would, prima facie, be liable for the full extent of the injury.

2. The Alleged Medical Mistreatment

The second part of Mr Hankin’s claim relates to the alleged mismanagement of his concussion upon his return from Budapest.

a. Clinical Negligence

The media has reported that the court documents filed by Mr Hankin state:

The Claimant further alleges that the Appellant [Saracens] is vicariously liable for the actions of its physiotherapist, Nicholas Court, in failing to properly assess the Claimant upon his return from Budapest between the 7 September to the 15 September 2015. The Claimant further alleges that, Dr Adewojun, the treating doctor was negligent in allowing the Claimant to return to play on 3 October 2015 when he alleges further injury occurred.

This amounts to an allegation of negligence against both Mr Court, a former Saracens physiotherapist, and Dr Adejuwon, the former Club Doctor. In relation to this quotation, it is worth noting the surprising use of the word “Appellant”, and the misspelling of Dr Adejuwon’s surname.

It is uncontroversial that, as medical professionals, both Mr Court and Dr Adejuwon will have owed Mr Hankin a duty of care. The standard of care required by law will be the standard of the reasonably skilled professional physiotherapist or doctor. In relation to Mr Hankin’s injury, it may be that Dr Adejuwon would be held to a higher standard than the physiotherapist, as he holds himself out as having particular experience in the field of injuries arising from “collision and combat sports” and “concussion management”. A physiotherapist might not be expected to have such specialist knowledge.

In the field of clinical negligence, the test for breach of duty is the Bolam test. Following the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, a doctor will not be negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular art.

Whether the duty of care was breached will be hugely fact-dependant. Much will turn on the symptoms Mr Hankin was displaying between 6 September and 3 October. It will also be relevant to consider the applicable rugby protocols on concussion, as well as the scientific/ medical understanding of concussion injuries. Whether the return to play protocols established by World Rugby and the RFU at the time were followed will be important, as well as the degree of care taken by the medical professionals in assessing Mr Hankin. It might even be argued that the protocols did not go far enough and that skilled medical professionals should have gone further.

Interestingly, in a Q&A with the Insitute of Sport Exercise and Health prior to the 2015 Rugby World Cup, Dr Adejuwon himself stated that “the message is if in doubt sit them out” in relation to concussion. Mr Hankin will be trying to argue that there was sufficient doubt about his injury for him to have been sat out.

Of course, proof of fault may be difficult owing to the invisibility of many concussion symptoms. The burden will be on Mr Hankin to show, on the balance of probabilities, that the management of his concussion fell below the requisite standard of care such that he should not have been allowed to return to play when he did. Whether he will be able to do so remains to be seen.

A final issue relates to the defence of volenti non fit injuria; the idea that Mr Hankin may have consented to suffering the harm he did by agreeing to play on 3 October 2015. While the player may have expressed a desire to play and thus consented to the risk of suffering an injury during the match, this does not mean that he consented to receiving negligent medical treatment, and this will not override the duty of care owed to him by the medical professionals. A similar argument succeeded in the case of Smolden v Whitworth & Nolan, and I have previously discussed it in detail here, in relation to the Cillian Willis case. Ultimately, if the medical care was negligent, Mr Hankin’s acceptance of the risk of suffering a further and more serious head injury cannot have been fully informed (Wooldridge v Sumner).

That said, if, perhaps, Mr Hankin was not entirely frank with the club/medics at the time, there might be scope for arguments about volenti and/or contributory negligence. Indeed, a survey by the International Rugby Players in 2018 found that 28 per cent of respondent players had hidden the symptoms of head trauma from medical staff and coaches in order to get back playing.

b. Vicarious Liability

Given that Mr Court has not been named as a defendant in the proceedings issued by Mr Hankin, it may be that Saracens has already accepted liability for any acts/omissions committed by him. Club physiotherapists are ordinarily employees of the club and the treatment of the club’s players is quite clearly within the field of activities physiotherapists are employed to perform. Both limbs of the vicarious liability test – set out above – would quite clearly be satisfied, if Mr Court is found to have been negligent.

A more difficult question may arise in relation to the club’s vicarious liability for Dr Adejuwon. If he was an employee of Saracens, the matter would be straightforward, and the club would be liable for his torts; but it is common for club doctors to be independent contractors. In other words, they enter into a contract with a club to provide services but are in business on their own account and may provide services to clients other than the club.  If Dr Adejuwon is an “independent contractor”, Saracens would not be vicariously liable, following the recent Supreme Court decision in Barclays Bank v Various Claimants [2020]. This decision overturned a Court of Appeal decision which had found Barclays liable for the acts of a doctor (an independent contractor) and re-affirmed the orthodox approach to independent contractors in D & F Estates Ltd v Church Commissioners.

This decision has not been universally welcomed, and there is certainly an argument to be made that independent contractors should be capable of being in a “relationship akin to employment”, following the approach of the Supreme Court in Various Claimants v Catholic Child Welfare Society and adopted in Barclays. Nonetheless, for the time being, the current legal position is that a club would not be vicariously liable for the acts/omissions of a doctor who is an independent contractor. Thus, Mr Hankin has brought his claim against Dr Adejuwon directly.

There are also insurance considerations, as a club’s insurance policy will probably not cover clinical negligence claims in respect of independent contractors rather than employees and, hence, Mr Hankin would be more readily able to recover against Dr Adejuwon and his own insurance policy.

c. Employers’ Liability

An employer’s duty to take reasonable care for his employee’s physical safety can be described as being non-delegable. This means that even though an employer may not be vicariously liable for the acts of an independent contractor, they may nonetheless be liable for damage negligently caused by independent contractors by virtue of the personal duty they owe to their employees (McDermid v Nash Dredging and Reclamation Company). This principle was endorsed by the Supreme Court in Woodland v Essex CC.

Thus, even if Saracens is not vicariously liable for the clinical negligence of Mr Court or Dr Adejuwon, it may well be liable for the breach of its own non-delegable duty of care. Of course, this will depend upon clinical negligence being proven which, as discussed above, is far from certain.

d. Causation

As with the Budapest incident, Mr Hankin will need to prove that the alleged clinical negligence caused his injury. Given that Mr Court was likely acting in conjunction with Dr Adejuwon, they are likely to be considered joint tortfeasors (if both are found to be negligent) and, thus, the approach to causation will be the same for them both – they won’t be able to use the other to avoid liability on a strictly “but for” basis (Grant v Sun Shipping [1948] AC 549). Indeed, the same analysis will apply if Saracens is found to have breached its duty as an employer.

It would appear that, but for the clinical negligence, Mr Hankin would not have suffered the injury in the match on 3 October 2015 and would, therefore, not have had to retire from professional rugby. Causation is, prima facie, established. It would not be open to the defendants to argue that the player’s own actions, or the actions of the player who inflicted the injury, during the match broke the chain of causation, as there is nothing to suggest that the injury occurred other than in the ordinary course of a rugby match – so was perfectly foreseeable.

However, the defendants might argue that Mr Hankin could have suffered a from a career-ending brain condition anyway, simply by virtue of the fact that the injury caused by Mr Barrington made him more vulnerable to such an injury in the course of his career as a professional rugby player.

Generally, the rule is that you take your victim as you find him – the inaptly named ‘eggshell skull’ principle (Smith v Leech Brain [1962] 2 QB 405). However, in Hotson v East Berkshire AHA, it was held that, where there was a chance that the claimant would develop the injurious condition anyway, the defendant would not be liable if he could prove that this would have transpired, on the balance of probabilities. In other words, to avoid liability, the medics would have to show that there was a more than 50% chance that Mr Hankin would have suffered a career-ending brain injury even if they had not been negligent. There is scientific evidence to suggest that those who have suffered a concussion are more likely to suffer a more serious brain injury if they receive another blow to the head before they have fully recovered from the first, and such understanding is likely to be crucial in establishing causation here. Mr Hankin will argue that, had the clinical negligence not occurred, any concussion that he suffered in the natural course of playing rugby would not have been so severe.

Finally, if the court finds the injury to be indivisible, it is likely that all tortfeasors (Mr Barrington, Dr Adejuwon and Saracens) will be held jointly and severally liable. This means that Mr Hankin could recover all his damages in full, from any of them. There would then be arguments about apportionment and contribution as between them, under the Civil Liability (Contribution) Act 1978.

C. Damages

If Mr Hankin can establish liability, he will seek to recover compensatory damages for his personal injury. His claim will, presumably, include compensation for loss of earnings, pain and suffering, loss of amenity and perhaps also medical expenses.

Mr Hankin has spoken previously about the anxiety and feelings of isolation he suffered as a result of his concussion problems, which will be factored into his claim for pain and suffering. It may even be that his claim is framed as being in respect of psychiatric harm as well as physical harm. Likewise, the fact that he is no longer able to play rugby as a result of the injury will contribute to his loss of amenity claim, which is objectively assessed to reflect the impact that the injury has had on the claimant’s enjoyment of life.

Mr Hankin was a promising young player at the time of his injury and, two years earlier, had been part of the successful England U20 team that won the Junior World Championship. His U20 teammates included Jack Nowell, Anthony Watson, Henry Slade, Ollie Devoto, Callum Braley, Alec Hepburn, Luke Cowan-Dickie, Jack Clifford and Ross Moriarty, who have all gone on to play international rugby at the highest level. Various other members of the team have become regular players in the English Premiership. Mr Hankin’s damages claim will therefore seek to reflect the fact that his promising career was cut short and that he may have gone on to earn significant sums as a leading professional player at club and international level, through both wages and sponsorship, until he was in his mid- to late-thirties.

Nonetheless, such losses are somewhat speculative, given not only the risks inherent in playing professional rugby, particularly as a back-row player (such that his career may have been cut short by a non-tortious injury), but also the subjective nature of international selection and the fact that some players never fulfil their potential. This element of the claim would therefore be based on the ‘loss of a chance’, and any award of damages would be reduced by the percentage chance that the benefits in question would not have materialised (Allied Maples v Simmons & Simmons; Perry v Raleys Solicitors). The quantification issues will therefore be complex.

Further, the court will take account of the fact that Mr Hankin has, since retiring from professional rugby, been employed as Assistant Director of Rugby at Haileybury school. Damages in tort seek to put the claimant in the position they would have been in had the tort not occurred and, thus, any actual earnings received by Mr Hankin since 2015 would have to be deducted from any award for loss of earnings.

D. Conclusion

Matthew Hankin’s case is a fascinating one. It raises a plethora of legal questions and may provide a much-awaited opportunity for judicial consideration of the standard of care owed by rugby clubs and their medical professionals in respect of concussion.

Fascinating as it may be, Mr Hankin’s claim will be far from straightforward. In relation to the events in Budapest, there will be difficult questions of volenti and vicarious liability, as well as the scope of the employer’s duty of care. As regards the alleged clinical negligence, establishing fault will be challenging, while the issues of causation will be complex.

Overall, if Mr Hankin can prove that Mr Barrington and the medical professionals were at fault, his claim will stand a reasonable chance of succeeding – against the individuals, if not also Saracens. Quantifying his damages will also be difficult, though his playing prospects and young retirement age could lead to a significant award, nonetheless.

Of course, as with the Cillian Willis case, Hankin’s claim might never reach trial. Given the immense financial pressures that Covid-19 has brought and will bring, it may be that those involved will be keen to settle the matter swiftly without racking up significant legal fees. Indeed, the press reports may form part of strategy to induce a settlement. From a legal perspective, it would be fascinating to see this case go to trial. From a rugby perspective, however, a prolonged legal battle is the last thing that the English game needs.