Concussion and the Law

Personal Litigation

6 December 2016 by Robert F. Browne, Partner, and Alban O'Callaghan, Trainee Solicitor
Concussion and the Law

The issue of concussion and injury to the brain as a result of impact sustained through sport has become increasingly controversial in recent years. The emergence of medical data linking mental health conditions such as chronic traumatic encephalopathy (CTE), Alzheimer’s disease and depression to head trauma suffered during high impact sport has resulted in an increasing volume of litigation in which sport’s governing bodies are being held legally accountable for sport related brain injuries. What is the duty of care of governing bodies to exposing participants to brain injuries?

In October 2006, thirteen-year-old Zackery Lystedt was rendered permanently disabled after sustaining a concussion in an American football game. During the game, Lystedt tackled another player and in doing so struck his head off the ground. He was visibly in discomfort and was removed from the game temporarily but re-joined it soon after. Lystedt later collapsed on the pitch and was airlifted to hospital where he underwent surgery to remove both sides of his skull to relieve the pressure from his swollen brain, brought about by the impact he sustained during the game. It took three years from the day of the accident until Lystedt could stand again. By returning to the football game prematurely, Lystedt’s life had been placed in grave danger.

In May 2009, the Lystedt Law was enacted in Washington DC. This relates only to recreational amateur sporting contests. Aside from educating young players on the issue of concussion, the key features of the legislation are that both the parents/guardians of the players and the coaches are required to sign a head injury information document. Furthermore, should a player who is suspected of being concussed be removed from the game, they must be given written clearance from a health care official with specific training in concussion before returning to play. The school or club will be absolved from legal responsibility during the game provided that it occurred on school property, the school was adequately insured and that it provides a statement of compliance with head injury protocols, including concussion, in sport.

On the 19th July 2011, a group of seventy-five plaintiffs, all of whom were either ex-players or spouses, alleged that the National Football League (NFL) had failed to protect players from long term brain injury as a result of football related concussions. It was further alleged that the league had failed to implement mandatory return-to-play guidelines for players who had been concussed, had failed to adequately regulate post-concussion medical treatment of the players and had misrepresented to the players that there was no link between brain injuries of this nature and mental health conditions in later life. A further two hundred and fifty-two actions were brought against the NFL, each of which followed the same line of allegations. The body of lawsuits was ultimately combined into one multi-district action which was settled in May 2015. and lead to the creation of an Injury Compensation Fund estimated to be worth in excess of $900 million to compensate former football players who show symptoms of severe cognitive impairment.

During the 2015 Six Nations, Welsh winger George North took two blows to the head during a match against England. North was struck by a boot in the first half. Then in the second half he clashed heads with Richard Hibbard and briefly lost consciousness. North was allowed to re-join the play on both occasions. The Welsh Rugby Union was subsequently cleared of wrong doing by World Rugby of its decision to allow him stay on the pitch. It was ruled by the international governing body that neither the Welsh medical staff or an independent doctor witnessed the incident before treating him and they were found to have “acted within the framework of information they had at the time”. However, it was conceded that North should have been removed from the game.

In August 2016, Cillian Willis became the first professional rugby player to issue proceedings against his employer, Sale Sharks, on the grounds of negligence. He alleges that the club failed to adequately treat him after experiencing two head injuries in a rugby match in March 2013, a short time after which he was forced to retire from the game due to concussion. Under World Rugby guidelines, a player who is suspected of being concussed is forbidden from taking any further part in the game on the day. Allowing Willis to return to play following the head injuries clearly represents a breach of these guidelines by his employers if they knew about it. This is in addition to the duty of care that exists between the player and match official. Legal proceedings have also been issued by professional rugby player Jamie Cudmore against his former club Clermont Auvergne on the same grounds of negligence. Cudmore alleges that after sustaining an impact to the head, after which he failed a test used to identify concussion symptoms, he was allowed to return to play. The club argues that he insisted on returning to the field, but is there a duty of care on clubs to protect players from themselves? The answer has to be a resounding “yes”.

In assessing liability, it must be proven on the balance of probabilities that the player’s injury was caused by or contributed to the blows he took to the head as well as the defendant’s failure to apply player safety regulations on concussion related injuries. The decision in Vowles v Evans & The Welsh Rugby Union Limited [2003] provides precedent in this area. In this case, the plaintiff was paralysed as a result of an injury sustained when a scrum collapsed. In assessing the liability of the defendants, the court held that the relationship between the referee and the player was sufficiently proximate to establish a duty of care. Furthermore, it was reasonably foreseeable that should the referee fail to discharge this duty during the course of the match, then injury to the player may result. In this case, it was deemed to be fair, just and reasonable to impose a duty of care upon the referee for the safety of the players. The referee was ultimately found to have failed in the discharge of this duty of care. The Welsh Rugby Union was found liable on the principles of vicarious liability as employer.

The issue of death resulting from head trauma sustained while playing rugby has already occurred in Ireland. In March 2013 fifty-seven-year-old Kenny Nuzum, a former Lansdowne prop, died as a result of CTE. Nuzum, had reportedly sustained numerous impacts to his head during a lifetime of scrummaging and had been concussed on several occasions. This was the first time the death of an ex rugby player was attributed to CTE.

In January 2011, fourteen-year-old Ben Robinson from Carrickfergus died as a result of receiving several blows to the head during a rugby match. It was reported that he had received treatment on three separate occasions during the match, after which he was allowed re-join the play. The cause of death was deemed by the coroner to be Second Impact Syndrome. In October 2016, Ben’s parents issued civil proceedings in Belfast High Court against the Irish Rugby Football Union (IRFU), Ulster Rugby, World Rugby, Carrickfergus Grammar School, the coach of the school team and the match referee on the grounds of negligence leading to concussive type injuries and the safety and management of the game and failures in the duty of care owed to Ben.

Concussion has already forced a multitude of rugby players such as David McSharry, Kevin McLaughlin and Declan Fitzpatrick to pre-maturely retire from the game. The commencement of legal action from other players such as Cillian Willis and Jamie Cudmore has raised concerns that rugby is facing the same situation as the NFL. Court proceedings of this nature will turn on the duty of care owed to the player and how the sport’s governing body and club discharged it.

Under current IRFU concussion protocols, any player who is displaying signs of concussion is required to be removed from the field of play immediately and undergo a return to play procedure. This procedure requires that a player cease playing for up to twenty-one days in order to allow the brain to recover. They will not be allowed play again until being medically cleared to do so. This is largely in line with the Lystedt Law. Failure by a club or school to adhere to these concussion protocols will probably give rise to a breach of the duty of care. However, the amount of concussions that a player must sustain before retirement becoming mandatory is still an ongoing issue.

In September 2016, a new concussion management system was introduced into the Aviva Premiership. The myplayxplay system is effectively a concussion surveillance system that allows medical staff to monitor a player’s injuries from the side-line via iPad. The system involves a Pitchside Video Reviewer, a member of the medical team, who reviews the injury in question and is responsible for determining whether it needs to be referred to the team doctor for head injury assessment. Furthermore, the King-Devick test is still being considered as a means of recognising concussion in players. The test employs eye testing technology to detect signs of concussion.

What remains unresolved however throughout the course of this ongoing issue in sport is the issue of liability. Who is liable for the injury sustained by the player and the costs associated with it? Will it be the referee? The match doctor? The coach or club? The governing body?

Copyright © Alban O’Callaghan and Robert Browne, McKeever Solicitors, 6th December 2016.

This article is a general review of the law on the subject and is not intended to be a complete statement of the law. Specific legal advice must be sought on a case by case basis. For further information, please contact Alban O’Callaghan or Robert Browne.

Key Contacts

Robert F. Browne
Partner

IFSC, Dublin
He advises extensively on all aspects of Banking and Commercial Litigation, Injunctions, Financial Services and Insurance, Corporate and Private Client Litigation.

T: +353 (0) 1 859 0100

F: +353 (0) 1 670 2988

E: rbrowne@mckr.ie

Alban O'Callaghan
Trainee Solicitor

IFSC, Dublin
Alban holds a Masters in Law from University College Dublin and is due to complete his solicitor training in 2017. His background is in the commercial banking sector.

T: +353 (0) 1 670 2990

F: +353 (0) 1 670 2988

E: aocallaghan@mckr.ie