Insights

Will Rugby need to tackle Medical Negligence claims?

  • September 23rd, 2016
  • Jason O'Sullivan

The rugby season has commenced in earnest with the Guinness PRO12 currently up and running from a club perspective and the imminent international test matches taking place in November. There will be the usual debates and opinions aired, from fans to pundits, ranging from team selections to team successes. Yet again however, another divisive subject is likely to be reintroduced into such rhetoric; the prevalence of Concussion within this exhilarating sport.

Earlier this year during the Six Nations Championship, the topic of Concussion was making national headlines. There was the very public spat between broadcaster George Hook and Ireland rugby ace Jonathan Sexton on the subject, coupled with the pending release of Will Smith’s movie, aptly named “Concussion”. This film told the story of forensic pathologist Dr. Bennet Omalu (played by Smith) who uncovered the link between brain damage in National Football League (NFL) football players who suffered repeated concussions in the course of normal play. Dr. Omalu encountered much opposition at the time from the NFL but carried on raising public awareness on the clear dangers of football-related head trauma.

Although the topic had waned somewhat in recent months from a media perspective, a current legal case being taken in the UK is likely to reignite the debate.

Former professional rugby player, Cillian Willis, has reportedly issued medical negligence proceedings against his former Club Sale Sharks last month. It is claimed that the former scrum-half, who had previously played for Leinster, Connacht and Ulster, is alleging that his former Club Sale and two of its medical staff failed to appropriately treat two head injuries he sustained while playing against Saracens in the LV Cup on 10th March, 2013.

Willis was 28 years old at the time and retired shortly after, due to Concussion. It’s claimed that despite suffering head injuries during both halves, he was deemed medically fit to play on following examination by the Club’s medical team.

It could be close to two years before any court hearing takes place for this case, if at all. A major concern for the rugby world at both a professional and amateur level, is if the matter does proceed to full hearing and liability is found, can they expect the floodgates of emerging claims to open?

Even if proceedings don’t ensue, the proverbial genie is now well and truly out of its bottle,  so does it mean that it is simply a matter of time before other former or current rugby players follow suit with such litigious claims?

Similar cases

The benchmark for these types of player claims was recently set by the NFL, where it is estimated that over 4,500 former NFL players, some suffering from dementia, depression or Alzheimer’s linked with head trauma as caused during their playing days, sued the NFL. In 2013, after a long and hardened battle, the NFL settled out of court the class suit for close to $900 million.

In an Irish context, former student of St Michael’s College, Lucas Neville, was awarded €2.75 million in damages following settlement of his claim in March 2014. He had sustained injuries to his head on two separate occasions within a short period of time in November 2009, the first occurred during rugby training, while the second occurred on the field of play during a match.

What is Concussion?

Concussion, often referred to as the ‘invisible injury’ is typically caused by trauma to the brain. The word comes from the Latin concutere, which means “to shake violently.”

The seriousness of Concussion injury should never be underestimated, as the impact or jolting of the head causes the brain to move rapidly inside the skull. This can cause bruising, blood vessel and nerve damage and in certain instances Concussion can result in permanent damage to the delicate brain tissue.

For instance, chronic traumatic encephalopathy (CTE) is the progressive degenerative disease caused by a severe blow or repeated blows to the head and has been diagnosed in athletes from various sports such as boxing, ice hockey, American football, wrestling and rugby.

What does the law say?

Within the basic principles of negligence is the concept of “duty of care”. If we examine the duty of care in the context of this article, where the Plaintiff is a former player and the defendant could include either separately or jointly, the governing body, the Club or members of the Club’s medical staff.

In order for the plaintiff to be successful in establishing negligence against the defendant or multiple defendants, the Plaintiff (aka the player in this instance) will need to show that the defendant owes a duty of care towards the player; and that the defendant breached this duty which has caused harm to the player, such as injury, damage or loss and that such harm was reasonably foreseeable from such a breach of their duty.

Distinctions must also be made between professional and amateur players. Professional players could be rightly considered employees of a Club, and therefore that Club, as their employer, may also be subject to employer liability in negligence cases. For instance, the employer may be held liable for any alleged failures in not ensuring its employees were adequately protected in their place of work or by not providing a safe place of work, which could be deemed as the field of play or training facilities.

For amateur players and their Clubs, it is far more complex and difficult to determine the requisite employer-employee relationship. Nonetheless, this does not diminish the fact that a duty of care may still exist between the Club and its amateur players.

Conclusion

World Rugby, along with its major sporting governing bodies, has recognised that a major issue exists on the subject of Concussion within the game. Governing bodies across the globe including our own have adopted varying measures and protocols to try and mitigate against re-occurrence of such Concussion instances during matches.

For example, the IRFU’s ‘Graduated Return to Play Protocol’ (GRTP) includes prohibiting players who have become concussed or suspected to, from returning to the field of play until they have been medically cleared to do so.

The primary concern for such Clubs and governing bodies however, is that given the physical nature of the game, Concussion cannot be prevented but may be curtailed, where possible.
With the rapid expansion and uptake of the sport across all age groups in recent times, another worrying fact emerging is the potential or actual damage caused to younger players whose brains are still developing. This can be due to lack of adherence to safety protocols by the schools or coaching staff, who may not be equipped to understand the health dangers and side effects of the condition.

It’s difficult to predict how this debate and concern surrounding the important topic of Concussion will play out for World Rugby as a whole and its players, both professional and amateur.

With the strong likelihood that an increasing number of former rugby players will test the legal waters on the issue of negligence in the near future, the unfolding of such cases will be watched closely by supporters and critics alike, providing an insight into the deliberations to come and the fate of this extremely popular sport across the world.

J.O.S Solicitors provides tailored legal services for business and individuals. An area of service we provide is advice and guidance on Medical Negligence. If you would like J.O.S Solicitors to assist with any queries relating to Medical Negligence or any of our service areas, then please Contact us

Jason O’ Sullivan, is a Solicitor and Public Affairs Consultant at  J.O.S Solicitors

Disclaimer

This publication is for guidance purposes only and does not constitute legal or professional public affairs advice. No liability is accepted by J.O.S Solicitors for any action taken or not taken in reliance on the information set out in this publication. Any and all information is subject to change and professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication.

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