Sports, especially contact sports, have always carried a degree of risk which those participating accept and sometimes even welcome. After all, the Grand Prix would not be exciting for spectators or participants if there was not a degree of risk that a crash might occur at some point during its 78 laps.
These risks are, however, usually quantifiable and tangible. A broken leg, a dislocated shoulder, a graze or bruise all have immediate and obvious effects which can be recognised and in most cases treated. In recent years, however, an invisible and insidious effect of contact sports has gained increasing recognition – the long term effect that repeated head trauma has on the physiology of the brain.
When contemplating a claim for a sports related injury there are a number of potential parties who may owe an injured person a duty to take reasonable care. All players of a sport, for example, owe one another a duty to act with the reasonable skill and competence of an individual at the relevant level of the sport. As such it is possible to sue a fellow player for injuries caused by a bad tackle or a foul shot which was more serious than a simple error in judgment.
It is difficult to see, however, how the duty owed by individual players will assist in considering liability for an accumulation of brain trauma suffered over time. A number of cases have, however, paved the way for participants in sports to sue the governing boards which regulate the rules and safety standards in the relevant sport.
In Perrett v Collins & Another  2 LL. Rep 255, Mr Collins, in compliance with his duties under the Civil Aviation Act 1982, had his kit plane inspected and deemed fit for flight by an inspector of the Popular Flying Association of which Mr Collins was a member. Shortly afterwards the aeroplane crashed causing injury to his passenger, Mr Perrett. The Association denied that it owed a duty of care to Mr Perrett. The Court of Appeal disagreed and confirmed that if the inspector and the Association erroneously granted a certificate of fitness to fly they ought reasonably to have had in mind the effect that such an act or omission could have on individuals travelling within the vehicle.
In Watson v British Board of Control Ltd & Another (2002) QB 1134, the duty of care owed by governing bodies was extended further. In this case, boxer Michael Watson suffered an acute traumatic brain injury when Chris Eubank landed a punch at some point in the final rounds. He collapsed shortly after the fight was stopped but no medical treatment was rendered for over 7 minutes by which time he had suffered serious irreparable brain damage. He was left paralysed down his left side and mentally disabled. The case turned on whether the British Board of Control Ltd and the World Boxing Organisation Inc., as the sport’s governing bodies, had a duty of care to boxers in the circumstances of this fight or at all.
In a unanimous judgment Lord Phillips, sitting in the Court of Appeal, confirmed:
‘In my view there is a quite sufficient nexus between the Board and the professional boxer who fights in a contest to which its rules [apply] to be capable of giving rise to a duty’
It is clear, therefore, that participants in sporting events are entitled to rely on the rules introduced and enforced by the sports’ governing body.
In determining liability, comparison can be drawn with asbestos and other long tail disease litigation when considering prevailing industry knowledge.
In Stokes v Guest Keen and Nettlefold 1 WLR 1776, the Claimant developed cancer due to repeated exposure and direct skin contact to carcinogenic machine oil. Justice Sedgewick considered the threshold for liability in developing areas:
‘From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is as recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.’
In Jeromson v Shell Tankers UK Limited  EWCA Civ 100  ICR 1223, a case where the spouse of a marine engineer developed mesothelioma from secondary exposure from her husband, Lady Justice Hale demonstrated the practical application of the Stokes test:
‘The point which impressed the judge was the certain knowledge that asbestos dust was dangerous and the absence of any knowledge, and indeed any means of knowledge, about what constituted a safe level of exposure. Mr Mackay’s argument relies heavily on the explosion of knowledge which took place during the 1960s. Only then did it become apparent that mesothelioma could result from very limited exposure. In particular, it was only then that knowledge began to develop of the risks to those outside the workplace, such as the wife washing her shipyard worker husband’s overalls (as in Gunn) or people living near to asbestos works’
As such, the scientific understanding of traumatic brain injury and the general understanding of its link to a specific sport will prove an essential factor in determining the outcome of litigation.
It follows, therefore, that the key question to be determined in actions against a governing body is whether in establishing the safety rules in place they acted unreasonably in light of what they knew or ought to have known at the time the injury was suffered.
It is fair to say that the deleterious effects of traumatic brain injury on boxers has been well documented. Historically, boxers were described as being ‘punch drunk’ as far back as the late 1920s. A phrase that scientists now attribute to the existence of a condition termed Chronic Traumatic Encephalopathy (CTE). Similarly, acute brain injury, in the form of intracranial bleeding, was well understood due to its immediate presentation and mortality rates.
The connection between a mild traumatic brain injury (or concussion) which manifests in transient symptoms such as dizziness, headaches and nausea and the development of a progressive disease with dementia like symptoms was, however, slow to develop. The term ‘Chronic Traumatic Encephalopathy’ was coined as far back as 1949 by the famous neurologist MacDonald Critchley but subsequent studies were narrowly focused to an individual sport or focused on specific factual matrixes. Studies between 1960 and 2006 have, however, slowly led to a greater understanding of the condition and the risk factors not just in boxing but a wide range of individual sporting activities including martial arts, wrestling, rugby, horse racing, basketball, ice hockey and football. Many aspects, including specific risk factors and causes, remain unclear and scientific progress is hampered by the similarities to other cognitive degenerative diseases such as Alzheimers and the fact that a definitive diagnosis is not possible without a post mortem.
Despite the gaps in scientific knowledge the issue of sports related traumatic brain injury and its long term effects has increasingly become the subject of litigation.
In April 2015, a settlement was reached in a group action presented by over 20,000 NFL players who suffered progressive, long term brain injuries whilst playing American football. The UK remained relatively insulated from such litigation until in 2020 Sir Bobby Charlton became the fifth member of the 1966 World Cup squad to be diagnosed with dementia and eight former rugby players commenced litigation against the governing bodies for English, Welsh and World Rugby. Simultaneously the UK government launched a parliamentary enquiry in to sports related traumatic brain injury.
A study conducted around the same time showed that professional footballers were 3.5 times more likely to die of neurodegenerative diseases (Glasgow Brain Injury Research Group). Shockingly, in a study published in 2017 by the Journal of the American Medical Association, of 217 brains autopsied of deceased American footballers a massive 117 showed evidence of CTE.
It was not, however, until February 2021 that Premier League football clubs could remove a player suspected of suffering concussion without penalty. In the same month rules were introduced which ban primary school children from heading the ball in training. World Rugby introduced its Pitch-Side Concussion Assessment in 2012 but it has been widely criticised as being unfit for purpose and it was not until January 2017 that new stricter tackling rules were introduced. The number of reported head injuries has also increased in all relevant sports including increases at junior level.
According to the UK Asbestos Working Group, asbestos has resulted in 1000s of death and will costs the insurance industry billions of pounds by 2050. Considering these experiences with asbestos related diseases it is not difficult to see why insurers are concerned that the recent rugby litigation might open the flood gates to other such litigation. Similarly, the prevalence of head injuries at the junior and amateur level of sport could signal a future claim explosion.
Assessing the point at which a governing body knew or ought to have known that further steps were required to avoid or at least reduce the risk of CTE may, however, be difficult to establish.
Causation in such cases is also likely to prove problematic. The standard ‘but for’ test is likely to apply in such cases. Successful Claimants will, therefore, need to show that their symptoms have been caused or contributed to by relevant sporting activities and the failure to establish appropriate safeguards.
Clearly, not all individuals who develop dementia symptoms do so because they played sports or suffered a concussion whilst taking part. Dementia, in its various forms, is prevalent within the general population. According to the Alzheimer’s Society, 7.1% of over 65 year olds in the UK suffer from dementia.
Similarly, evidence exists that CTE is present in the general population albeit in smaller numbers. This strongly suggests that other causes may exist outside contact sport. This accords with studies in 2013 and 2014 which found CTE in military personnel and victims of violence (McKee and Robinson, 2014, McKee et al., 2013).
The difficulties in diagnosis are also likely to impact a litigant’s ability to prove causation. There is currently no test to determine whether an individual has CTE. A definitive diagnosis is not currently possible without a post mortem. It is hoped that a test for CTE may be developed using cerebral spinal fluid or blood protein markers which have been shown to fluctuate after instances of traumatic brain injury but these are not currently available in the UK.
The Rugby Union test case will, in all likelihood, act as a barometer for both future litigation and the response expected from governing bodies across the whole spectrum of sporting activities. Whether the case is ultimately successful or not the link between sports related traumatic brain injury and CTE is now clearer. The dialogue surrounding the risks, at all levels, has undoubtedly increased the expectation that governing bodies should take greater steps to preserve brain health and reduce the risk of repeat traumatic injury.
The Rugby Union test case is at a very early stage and judging by ordinary litigation timetables unlikely to reach trial, assuming it progresses that far, for some considerable time. As such it will be necessary to maintain a watching brief to see how this area of negligence develops.
This article on Sports Related Traumatic Brain Injury was written by Antonia Ford for further information on her practice, please contact our clerking team via our switchboard on 020 7427 7088 or email: firstname.lastname@example.org