By Emma Hall and Andy Jackson, of Leigh Day
Long-term medical consequences of repeated concussions have been poorly understood for many years and nowhere is this more relevant than in the world of sport.
There has been an increase in people taking up sport in recent years as in normal times, children do PE several times a week and companies actively encourage their employees to join team sports such as five-a-side football, rugby and netball.
This of course should be actively encouraged, but so should safety in sport, especially when it comes to preventing serious head injuries such as concussion.
In the US recently a class action litigation was brought against the National Football League (NFL) by a number of former professional players who were left with permanent neurological and cognitive problems having suffered head injuries throughout their careers.
The eventual settlement had spiralled beyond what was initially anticipated and this immediately led to the governing bodies of other sports introducing their own – some would say long-overdue – concussion protocols.
However, is the current law sufficient to protect players against these newly understood risks? A person with a suspected concussion is not, by definition, ideally placed to decide whether or not it is safe for them to continue playing.
This means that referees and pitchside doctors have a crucial role in deciding whether it is safe for a player to continue and it goes without saying that if the wrong decision is made, the results could be catastrophic for the player in question.
The concussion protocols currently in place state that if a player is concussed or is suspected of being concussed, a medical examination must take place immediately to assess for confusion, dizziness, nausea or loss of co-ordination. For example, in rugby, a cognitive assessment is carried out and measured against baseline scores taken from the player prior to the season starting.
The recent example of rugby player Cillian Willis highlights why these tests are so important. It has been reported that Willis has brought an action against the club doctors of his former club Sale Sharks, which was heard in closed session in Manchester last year. Interestingly, the action was brought against the club doctors and not against the club itself.
Mr Willis sustained a series of head injuries in a game against Saracens in 2013. He was knocked out accidentally by a team-mate in the first half, before being injured again whilst lying prone. He was allowed to play on, and in the second half was knocked unconscious again. Incredibly, he was again allowed to play on, before being substituted after 47 minutes.
Unfortunately, after suffering a significant concussion from the series of head injuries he had sustained during play, he was unable to return to playing rugby again. He retired from professional rugby at the ge of 28.
What about amateur players?
Amateur players and young players are unlikely to have access to professional pitchside medical assistance. Who then is responsible for deciding whether an amateur player with a suspected concussion can play on, be that in cricket, football or rugby?
In Vowles v Evans, the Claimant was injured in a contested rugby scrum, suffering a dislocation of the neck which catastrophically resulted in tetraplegia. He unfortunately did not have the necessary experience to play in the front row in a contested scrum, where players push against each other in formation to gain control of the ball. What should have been awarded by the referee was an uncontested scrum where players “rest” against each other and do not compete for the ball.
The Claimant alleged that the referee owed and subsequently breached a duty of care by allowing a contested scrum to go ahead, despite the player in question not having experience of playing in the front row.
The Court of Appeal found that referees, even at an amateur level, owed a duty of care to the players and although the threshold for liability in negligence was high, in this case it was met and the referee had breached his duty of care.
But what is a reasonable standard of care owed by coach or referee when it comes to head injuries?
Concussion protocols currently are based around ‘red flags’ or symptoms that may indicate a concussion. But the test is a medical one and is one that at a professional level will be carried out by doctors. It is unclear whether the duty of care owed by coaches, referees and clubs generally extends to carrying out an accurate assessment of concussion symptoms in the absence of a trained medical professional.
But what would be the equivalent test for coaches or referees?
This remains unclear and is a question that sooner or later the courts will need to address. The Rugby Football Union (RFU) offers free concussion training and has promoted a public awareness campaign to recognise the signs of a concussion. Those qualifying to become coaches in rugby now must complete compulsory training on concussions and head injuries.
However even at the professional level, the application of concussion protocols can be inconsistent, leaving players vulnerable.
It seems highly likely that the starting point for the courts will be the guidance from the sport’s governing bodies — which in turn will shine a legal spotlight on the adequacy of those guidelines and the systems of training in place for coaches and referees.
With so many variables depending on the level the sport is played at and the level of qualification of the coach or referee concerned, the courts may have a difficult time establishing who, ultimately, is responsible for ensuring players’ safety.
Printed with permission of Leigh Day. For more on Emma Hall and Andy Jackson, visit www.leighday.co.uk
