Concussion Litigation in Rugby – Part II: Breach of Duty
1. Introduction
This article is the (long overdue) second part of a series of articles on the concussion litigation in rugby union, which was instigated in December 2020 by a group of former professional players against the Rugby Football Union (“RFU”), the Welsh Rugby Union (“WRU”) and World Rugby, the sport’s International Federation.
Part I introduced the topic and considered the existence and nature of the duties of care owed by the sport’s governing bodies. It concluded that World Rugby, the RFU and WRU (as well as professional clubs and perhaps also league organisers) are likely to owe duties of care to players.
This article will consider whether those duties may have been breached, analysing the respective roles of the various duty-bound parties and the state of knowledge regarding head trauma and long-term neurological problems over time.
2. Breach of duty in English law
In English law, a defendant will be in breach of their duty of care if their conduct falls below the standard required by the law – i.e. if they have been negligent. This standard is typically expressed as being that of a reasonable person in the particular circumstances of the case.[1] Put simply, in order to comply with their duties of care, World Rugby, the RFU and WRU (and any other potential defendant) are required to act reasonably.
However, how does one establish what is, or is not reasonable? There are three key principles.
First, reasonableness is an objective standard – i.e. the standard of care is not tailored to the defendant, rather it relates to the nature of the activity the defendant is performing.[2] Thus, the RFU and WRU will be held to the standard of a reasonable national sports governing body, while World Rugby will be held to the standard of a reasonable international sports federation.
Second, a court will perform what is effectively a cost-benefit analysis. This involves weighing the foreseeability/likelihood and severity of harm that will occur if a particular precaution is not taken against the expense of that precaution and any social benefit that would be lost if it were taken.[3] For example, in the rugby context, whilst banning tackling altogether would drastically reduce the likelihood of serious injuries, it would entirely change the nature of the sport, resulting in its probable financial collapse and the loss of the game’s great social value. It would simply not be reasonable.
Third, a court will have regard to “common practice” when defining the standard of care and determining whether the defendant has been negligent. Though failing to conform to a common practice is not necessarily conclusive proof of negligence, conforming with common practice will weigh in favour of a finding that reasonable care has been taken. However, it is open to a court to find that a defendant conforming to a common practice has nonetheless been negligent, if that common practice itself gives rise to unreasonable risks.[4]
In the context of professional liability, conduct is assessed against the somewhat infamous ‘Bolam test’, following Bolam v Friern Hospital, in which it was held that:[5]
[A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skill in that particular art…Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice merely because there is a body of opinion which takes a contrary view.
The test has been criticised for allowing defendants to escape liability too easily, by simply pointing to a body of expert opinion which supports their actions (even if such opinion is not that of the majority). If there are two competing expert views, the question is merely whether the defendant acted reasonably in following the approach that they did. However, the expert opinion must have a logical basis if it is to exculpate a defendant.[6] This issue will be at the crux of the rugby concussion litigation.
3. Scientific understanding of repeated head trauma
As noted above, one of the key criteria for determining whether there has been a breach of duty in the context of the rugby concussion litigation will be the extent to which long-term neurological harm suffered by the claimant players (i.e. early onset dementia with probable CTE) was foreseeable. This requires an assessment of the state of knowledge at the relevant time(s). For the majority of the (known) claimants, the relevant period will be from the time the game turned professional in 1995 to the early/mid-2010s.
This author has previously written on this aspect of the case in detail here. In short, scientists have been aware of the dangers of repeated head trauma in sport (to a greater or lesser extent) for the best part of a century. That awareness and understanding has evolved considerably over time – from the early reporting of “dementia pugilistica” (i.e. dementia of the boxer) as early as 1928 to the diagnosis of Chronic Traumatic Encephalopathy (“CTE”) in retired NFL, football and rugby players over the past twenty years.
The early research focused predominantly on boxing, with CTE being diagnosed posthumously in boxers from the 1950s to the early 1970s. However, in 1975, Gronwall and Wrightson wrote in The Lancet of the “cumulative effect of concussion” in athletes more generally,[7] while a 1982 article stated that concussions cause “widespread microscopic changes” to the brain.[8] It noted that “these abnormalities may evolve into gross atrophy after repeated injury.”
It is arguable, therefore, that from 1975 onwards, sports governing bodies knew, or should have known, of the risks of long-term damage from repeated concussions and/or head trauma. Certainly, from 1997, this seems to be an inevitable conclusion. In its summary statement on the management of concussion in sports, the Quality Standards Subcommittee of the American Academy of Neurology wrote that:[9]
Close observation and assessment of the injured athlete could be critical to the prevention of catastrophic brain injury and cumulative neuro-psychological deficits. Repeated concussions can cause cumulative brain injury in an individual injured over months or years…Frequently, the loss of objectivity on the part of the athletes, coaches, sports media, and spectators is an unfortunate and potentially harmful bias.
As regards rugby union, it was reported in 1985 that concussion was the most frequently occurring injury at Rugby School between 1980 and 1983. Although this data concerned youth rugby (and proceeded on an unduly narrow definition of concussion), it nonetheless gave an indication of the prevalence of concussion in the game.
Indeed, in 1982, current World Rugby chairman, Bill Beaumont retired from the sport on medical advice, because of successive concussions. At the time, the laws of the game imposed a three-week mandatory stand-down period for concussed players, in accordance with approach taken by the British Boxing Board of Control. It thus seems undeniable that rugby knew of the potential for long-term harm arising from repeated head trauma by the 1980s, if not sooner.
In 2001, a study reported that the incidence of concussion in rugby was higher than had previously been reported and labelled the problem a “hidden epidemic”.[10] Since 2002, the RFU has collected data as part of its Professional Rugby Injury Surveillance Project and concussion has been the most commonly reported match injury for nine consecutive seasons to 2019/20 (with questions raised about levels of concussion reporting pre-2011).[11]
Central to the question on the state of knowledge is the Concussion in Sport Group (“CISG”) – a cohort of experts organised by international sports federations (including, since 2008, World Rugby) who meet approximately every four years to establish a consensus on the scientific understanding of concussion in sport. In 2002, the First Consensus Statement of the CISG made no specific mention of the long-term impact of concussion, other than that further research was needed.
By 2009, several years after the discovery of CTE in the brains of deceased NFL players, the CISG’s Third Consensus Statement acknowledged the suggested association between sports concussions and late-life cognitive impairment, but no consensus was reached on the significance of the NFL cases. Still, it was agreed that clinicians “need to be mindful of the potential for long-term problems in the management of all athletes”.
Nonetheless, in the same year, the NFL acknowledged that “it’s quite obvious from the medical research that’s been done that concussions can lead to long-term problems”, while another research paper concluded that:[12]
by instituting and following proper guidelines for return to play after a concussion or mild traumatic brain injury, it is possible that the frequency of sports-related CTE could be dramatically reduced or perhaps, entirely prevented.
By 2013, the CISG accepted the existence of CTE but found that a “cause and effect relationship” had not yet been demonstrated between CTE and concussions or exposure to contact sports. That conclusion was reiterated by the same group in 2017, albeit that it was then acknowledged that the “potential for developing [CTE] must be a consideration”.
Studies throughout the 2000s linked repeated head trauma (particularly in the NFL)[13] and long-term neurological conditions and this continued in the 2010s, when the findings were also extended to former rugby union players.[14] In July 2021, a study by the Drake Foundation concluded that 23% of current elite rugby players whose brains were examined showed abnormalities compared to non-athletes and athletes in non-collision sports.
Though it remains the case that CTE can only conclusively be diagnosed posthumously, improved understanding now enables probable diagnoses to be made during life. Evidence of an association with contact sport continues to mount. However, ahead of the CISG’s meeting later this year, the ‘official’ position remains that there is no causal link.
4. Rugby’s approach to concussion and head trauma
Having set out the evolution of the science, it is important to consider how rugby’s handling of concussion and head trauma has evolved. What follows is by no means an exhaustive account of the many developments, but an overview of the key changes over time at World Rugby level, and by the RFU and WRU.
In the late 1977, in response to the Gronwall and Wrightson paper referenced above, the International Rugby Board (now World Rugby) introduced a three-week mandatory stand-down period (from matches and training) for any player diagnosed with concussion. By the early 2000s, this had been softened to allow players to return as soon as they were “symptom-free and declared fit to play after appropriate assessment by a properly qualified and recognised neurological specialist”,[15] in line with the CISG’s First Consensus Statement.[16]
However, research papers published in 2001 and 2004 noted that such an approach carried the risk of “discouraging athletes from seeking treatment and suppressing the reporting of symptoms associated with concussion”.[17] This is supported by anecdotal evidence from players who consistently explain that concussions were not reported or taken seriously. It is further backed up by more recent data, which shows a huge spike in the number of concussions, once proper monitoring and reporting procedures were introduced.[18]
It is clear that rugby union as a whole did not truly take concussion seriously until 2011/12, around the time that the class action began against the NFL. In the 2007 Rugby World Cup, England’s Lewis Moody was knocked out twice during a match against Tonga. He was attended to by medics twice but was allowed to continue. This was not an isolated incident: Justin Harrison, Matt Dawson, Michael Lipman, and Shontayne Hape, to name but a few public examples, all played on despite being concussed. There will be countless others. Steve Thompson claims that he was known for being knocked out in training – “Oh, he’s having a little sleep, he’ll get up in a minute” his teammates are quoted as saying. The whole culture around concussion in rugby was that it was nothing to worry about.
Even during the Rugby World Cup 2011, it was reported that 53 percent of players who were assessed for concussion on the field and were cleared to play were later found to have sustained a concussion.
In 2011, things began to change, with the introduction of the first Graduated Return to Play Protocol, before the Pitch Side Concussion Assessment (“PSCA”) was introduced globally for the first time, in 2012. This allowed temporary substitutions to be made, enabling medics to assess players for potential concussions and thus remove them from play. At first, the PSCA had to be completed within five minutes, prompting Dr Barry O’Driscoll’s resignation from his post as an advisor to World Rugby and resulting in controversy during the 2013 Lions Tour.
In 2013/14, the PSCA evolved into the Head Injury Assessment (“HIA”). The HIA included more rigorous pitch-side testing and the temporary substitution period was increased to 10 minutes and was formally adopted into law in 2015.
Early concussion awareness campaigns had been started by World Rugby and the RFU in 2007 but these were expanded significantly in 2013,[19] whilst in 2014, the WRU launched its “zero tolerance” approach to concussion at all levels of the game. Later that year, the RFU introduced mandatory concussion education for all professional players, coaches and referees.
From 2015, independent match-day doctors were present at elite international fixtures, whilst they were introduced in elite club rugby following a World Rugby directive in 2019, along with a range of additional measures aimed at enhancing concussion identification and care. These included extending the HIA period to 12 minutes.
Many of these measures were designed to better identify concussions and to ensure that players avoided the dangers of suffering multiple concussions in quick succession. However, from 2017, World Rugby also introduced measures aimed at reducing the incidence of concussion, beginning with its “zero-tolerance” approach to tackles involving contact with the head, encouraging referees to sanction such conduct more readily and increasing the length of disciplinary suspensions. The high-tackle crackdown evolved into the decision-making framework for high tackles in 2019, which then became the Head Contact Process in 2021, all aimed at changing players’ behaviour and discouraging contact with the head, in response to World Rugby-backed research into risk factors within the game.
This year has also seen the announcement by World Rugby of further measures, including new law trials aimed at reducing the number of collisions, further research, improving education and mandating independent neurological assessments.
The RFU has also announced this year its Head Impact Prevention & Management Plan for the professional game, including further research to assess head impact exposure and an intention to agree limits on contact training.
Whilst much has changed in the last 40 years, plenty has not. Against the background of these developments, it must be remembered that the number of collisions in men’s elite rugby has increased dramatically, [20] whilst players have only got more powerful.
5. Have rugby’s governing bodies breached their duties?
In Part I, this author suggested that the duties of care owed by rugby’s governing bodies to players in respect of their brain health might have four broad elements:
(i) A duty to research brain injuries;
(ii) A duty to inform/warn players of the risks to their brain health from playing rugby;
(iii) A duty to enforce existing regulations aimed at protecting players’ brains; and
(iv) A duty to ensure that the game is (reasonably) safe.
Part I also acknowledged that, though these obligations would generally be common to most rugby governing bodies, the standard of care would inevitably be different as between different entities. In particular, it was suggested that what could reasonably be expected of World Rugby would likely exceed that which is expected of Unions such as the RFU or WRU. Each element shall be considered in turn.
5.1 Duty to research
First, rugby’s governing bodies may be held to be under a duty to reasonably research the issue of brain injuries in rugby and its associated risks. Given that it was known by the late 1970s that concussion and/or repeated head trauma was associated with long-term neurological damage, and that concussion and repeated head trauma were a feature of rugby union, it would have been reasonable for rugby’s governing bodies to research the matter further in the subsequent years.[21]
Data on head injuries has been gathered for many years, but further research might have focused on identifying the true incidence of concussion and head trauma, ways to reduce the risks of such injuries/impacts by understanding how such injuries are caused and how they can best be handled, as well as investigating the short to long-term effects of such injuries on the brain. This would have enabled the governing bodies to better understand the issue and to then take steps to protect the players.
That they do not appear to have done so properly until the 2010s is troubling and, in this author’s view, is likely amount to a breach of their duty of care. Applying the factors outlined above, the likelihood of (severe) long-term neurological harm would need to be balanced against the cost of conducting such research. Before the advent of professionalism, when the game was relatively un-commercialised, it may be that the cost of research would have been prohibitive for the IRB (now World Rugby) and the Unions. However, as money flowed into the game from the mid-1990s, such an argument becomes more difficult to maintain. On balance, it is this author’s view that the lack of thorough investigation of this issue was unreasonable.
It is also likely that more would be expected of World Rugby than the Unions in this regard (given its position ultimate regulator of the sport and its laws), though, in this author’s view, the Unions would struggle to avoid responsibility entirely.
5.2 Duty to warn
The content of a duty to warn, or to inform players, of the appreciable risks associated with concussion and repeated head trauma is somewhat open to argument. The law will not impose a duty to warn of dangers which would be obvious to a reasonable person[22] – for example, it is unlikely that a duty to warn that you could get knocked out playing rugby would be imposed – but, beyond that, much would depend on the extent of knowledge of the governing bodies.
In 1995, it would not likely have been reasonable to expect them to warn players that playing rugby was associated with CTE, because there had not yet been any confirmed cases of CTE outside of boxing. However, the state of science (certainly by 1997, if not before) was such that governing bodies knew (or ought reasonably to have known) that repeated concussions could have long-term, “cumulative neuro-psychological deficits”.[23] It would thus, in this author’s view, have been unreasonable for the governing bodies not to warn of such a risk. Players could not, themselves, be reasonably expected to be up to date on the medical literature.
This relates to the point noted above about the culture around concussion in rugby – the governing bodies, in this author’s view, acted unreasonably and in breach of duty by allowing that to develop, given the state of knowledge about brain injuries from (at least) 1997. Education modules were introduced, at least by the RFU and World Rugby, around 2007 but it was not until c.2013 when these were properly brought to the fore. This was far too late.
As the state of knowledge around brain injuries developed (knowledge which arguably should have been driven by governing bodies’ own research, as above), so should have the warnings. Providing full information to rugby’s participants is fundamental to the governing bodies’ duties of care towards the players’ health and safety, entitling them to make informed choices about their participation.
However, the defendants would likely argue that they need not have gone any further than CISG’s consensus statements at the relevant time, that being the expert guidance. Only in 2009 did the CISG first recognise the “need to be mindful of the potential for long-term problems in the management of all athletes” following concussions, and only in 2013 was any mention made of CTE.
The claimants would seek to show that such a position was illogical (per Bolitho) given the wider state of knowledge about head trauma and its effects at the time and try to cast doubt upon the reliability of the CISG’s statements, given the manner in which the CISG is put together (by sports federations) and operates. Indeed, it has been recognised (including by the UK Parliament’s Digital, Culture, Media and Sport Committee (the “DCMS Committee”) in its latest report on concussion in sport) that the CISG represents an “ultra-conservative perspective”.[24] However, the application of the Bolam test will be a hurdle for players to overcome.
5.3 Duty to enforce existing regulations
Having created a set of regulations to protect players’ brain health,[25] World Rugby and the Unions would undoubtedly be under a duty to (reasonably) ensure compliance with such regulations. That these appear not to have been enforced, to a large degree, until 2013 smacks of negligence.
There are many reported cases of players not being removed from play despite having been concussed, and of a total lack of compliance with the relevant rules on return to play and in training. This failure to enforce compliance created a culture whereby brain injuries were allowed to be laughed at and, crucially, re-occur time and again.
The difficult question in this respect is to determine the standards of care to be applied to World Rugby and the Unions respectively. The Unions are typically responsible for directly enforcing World Rugby’s regulations within their jurisdiction,[26] but World Rugby nonetheless have an important supervisory role. However, regardless of the standard to be applied, it is this author’s view that the total neglect shown to this issue until relatively recently was unreasonable, at all levels. The likelihood (and severity) of harm were the regulations not properly upheld, cannot be outweighed by the cost of taking steps to properly uphold them.
5.4 Duty to ensure the game is safe
Arguably, the most important element of a governing body’s duty of care to its participants would be the obligation to ensure that the game itself is reasonably safe and to take reasonable steps to minimise the risks it poses to participants.
This duty may overlap with other duties (e.g. the duty to research and to enforce existing regulations), as it would focus on the identification and reasonable minimisation of risk. In recent times, World Rugby has identified upright tackles as increasing the risk of brain injury and, thus, introduced the decision-making framework for high tackles to try to reduce the frequency of such incidents.
The first question the claimants will be posing is why more was not done sooner. Why did it take until 2013 for pitch-side concussion assessments and temporary substitutions to be introduced? Why did it take until 2015 for independent doctors to be present at international fixtures and until 2019 for this to be extended to elite clubs? Why has it taken until the last four years for there to be a clamp-down on players making contact with the head during games? Why only recently have law trials been instigated with the aim of reducing the number of impacts during a game?
There will also be questions asked about the sufficiency of the steps that have been taken. Was it reasonable to allow players to return to play within a week of suffering a brain injury? Why were limits not imposed on contact in training, where most collisions occur? Is the HIA fit for purpose? Why has the legal height of a tackle not been reduced further? Have law changes to date had unintended consequences for player safety?
The claimants will have a long list of all the failures they believe World Rugby and the Unions to have made in ensuring the safety of the game, and each will need to be assessed carefully for its (un)reasonableness. As always, the question is one of foresight, not hindsight. Thus, the state of knowledge at the relevant times will be crucial for assessing the likelihood and severity of harm for each precaution not taken, balanced against its cost (including loss of social benefit).
Again, the weight placed on the CISG’s consensus statements as a body of expert opinion will be important. Whilst it would have been reasonable for World Rugby to impose a more graduated return to play protocol in 2003, was it unreasonable for them not to do so, given guidance of the CISG? Given the long-standing awareness of the effects of repeated head trauma, it is this author’s view that more should have been done.
Insofar as “common practice” is relevant, it is suggested that the practices of other sports governing bodies are unlikely to assist the defendants greatly, given that the accusation can readily be made that such practices themselves gave rise to unreasonable risks, in light of the knowledge at the time.
The reasonable expectations of World Rugby will again be different to those of the RFU and WRU. As the body with authority for the Laws of the Game and its global regulation, World Rugby inevitably has more (often exclusive) power to effect change. Whilst the RFU and WRU might be at fault for failure to adopt measures to regulate their own clubs, for example, the broader questions about the safety of the game as a whole will fall predominantly on the international federation.
6. Conclusion
The failures of World Rugby and the Unions with respect to concussion over the past 25 (plus) years make for a compelling case that they have breached their duties of care to players.[27] Prima facie, it would appear that they have been negligent in various ways – the lack of research, the lack of information provided to players about the game’s dangers, the failure to enforce their own regulations and to minimise the risks of brain injuries – but, given the prevailing opinion of the CISG, the players’ case will not be without challenges. However, the CISG is open to criticism, and it may be that such a body of opinion would have its limits from the defendants’ perspective.
The recent DCMS Committee report advocated a more precautionary approach to concussion in sport, moving forward.[28] It found that, whilst there may be no causal link between sports concussions and neurodegenerative disease, there is enough evidence to warrant greater precaution. Whilst this is not the same as a finding that the approach of governing bodies to date has been unreasonable as a matter of law, it certainly adds credibility to the players’ arguments that more should have been done to protect them.
Importantly, though, whilst the players may be able to establish fault on the part of rugby’s governing bodies, these breaches of duty will only result in liability if it can be proved that they caused (as a matter of law) the players’ damage. The issue of causation will be addressed in (the shorter) Part III.
Article by Ben Cisneros. Ben is a Trainee Solicitor at Morgan Sports Law, though this article reflects only the author’s personal views. Please email ben.cisneros@morgansl.com for any legal or media enquiries.
References
[1] See Glasgow Corp v Muir [1943] AC 448 at 457
[2] See Wilsher v Essex [1987] QB 730 at 750-751
[3] Clerk and Lindsell on Torts (23rd Edn) at 7-172
[4] Clerk and Lindsell on Torts (23rd Edn) at 7-194
[5] [1957] 1 WLR 582 at 587
[6] Bolitho v City and Hackney Health Authority [1998] AC 232
[7] Gronwall D, Wrightson P. Cumulative effect of concussion. Lancet 1975;2:995-997
[8] Hugenholtz H, Richard MT. Return to athletic competition following concussion. Can Med Assoc J 1982;127:827-829
[9] Quality Standards Subcommittee of the American Academy of Neurology, The management of concussion in sports (summary statement); Neurology 1997;48:581-585
[10] Marshall SW, Spencer RJ. Concussion in Rugby: The Hidden Epidemic. J Athl Train. 2001;36(3):334-338.
[11] See the England Professional Rugby Injury Surveillance Project, Season Report 2019-20.
[12] McKee AC, et al: Chronic traumatic encephalopathy in athletes: progressive tauopathy after repetitive head injury. J Neuropathol Exp Neurol 2009, 68:709–735.
[13] See, for example, Omalu BI, DeKosky ST, Minster RL, et al. Chronic traumatic encephalopathy in a National Football League player. Neurosurgery 2005;57:128–34; Omalu BI et al. Chronic traumatic encephalopathy in a national football league player: part II. Neurosurgery. 2006 Nov; 59(5):1086-92; McCrory P, Turner M, Murray J. A punch drunk jockey? Br J Sports Med 2004;38:e3; and Omalu BI et al.: Chronic traumatic encephalopathy in a professional American wrestler. J Forensic Nurs 2010, 6:130–136
[14] See, for example, Daneshvar et al, The Epidemiology of Sport-Related Concussion, Clin Sports Med. 2011 Jan; 30(1): 1–17; McKee AC. The Neuropathology of Chronic Traumatic Encephalopathy: The Status of the Literature. Semin Neurol. 2020 Aug;40(4):359-369; McKee AC, Stein TD, Kiernan PT, Alvarez VE. The neuropathology of chronic traumatic encephalopathy. Brain Pathol. 2015;25(3):350-364; McKee AC, Stern RA, Nowinski CJ, et al. The spectrum of disease in chronic traumatic encephalopathy [published correction appears in Brain. 2013 Oct;136(Pt 10):e255]. Brain. 2013;136(Pt 1):43-64.
[15] IRB Regulation 10. See here.
[16] At the time, World Rugby/IRB was not a member of the CISG.
[17] Marshall SW, Spencer RJ. Concussion in Rugby: The Hidden Epidemic. J Athl Train. 2001;36(3):334-338 and Best JP, McIntosh AS, Savage TN. Rugby World Cup 2003 injury surveillance project. Br J Sports Med 2005;39:812-817.
[18] See the England Professional Rugby Injury Surveillance Project, Season Report 2019-20.
[20] At the 1987 Rugby World Cup, a team made an average of 48 tackles per game. In 2019, the average was 129 (see here).
[21] The author acknowledges that the true extent of the governing bodies’ research into this issue may not publicly be known, and that further, un-published research may have been carried out. This may itself give rise to other questions about the duty to inform players of such findings.
[22] E.g. McTear v Imperial Tobacco Ltd [2005] CSOH 69
[23] Quality Standards Subcommittee of the American Academy of Neurology, The management of concussion in sports (summary statement); Neurology 1997;48:581-585
[24] Concussion in sport, DCMS Committee Third Report of Session 2021-22, para 67
[25] For example, IRB/World Rugby Regulation 10
[26] See World Rugby Regulation 2
[27] To the extent that they may later become involved in the litigation, many of the same arguments could be made with respect to clubs and professional leagues (albeit that the standards clubs would be held to would be lower than that of the governing bodies, given their respective positions and resources).
[28] Concussion in sport, para 40
