The latest article for the Legal Pitch, co-written by LLB Law student Rebecca Rudd and founder, Adam Smith, analyses the claim in negligence proposed by a group of ex-professional rugby internationals, led by Steve Thompson, against three rugby governing bodies. This article will explore the construction of a duty of care owed by the governing bodies to professional rugby players and the potential breach of that requisite standard of care. After an overview of causation and a consideration of the potential outcome, the role of the principle of autonomy and its function within a possible defence will be examined. The article concludes with a discussion of the potential case outcome.
Introduction
Former Northampton Saints and England hooker Steve Thompson is leading a group of ex-professional rugby players’ action in negligence against three rugby governing bodies; World Rugby, Wales Rugby Union and Rugby Football Union. This claim is following Thompson’s announcement in December 2020 that he had been diagnosed with early onset dementia at age 42. Symptoms include memory loss and mood changes and can develop and worsen to include; slurred speech, parkinsonism and difficulty eating or swallowing.
Steve Thompson was a member of the 2003 Rugby World Cup winning squad but has no recollection of any games played throughout the tournament and claims he cannot even remember being in Australia. Thompson is currently the figurehead of a group of nine ex-professionals who allege these governing bodies could and should have been more proactive in preventing their neurological injuries. These ex-professionals are pursuing the implementation of immediate, low-cost adjustments to prevent future generations of players from suffering from the same neurological conditions. Thompson’s case revolves around neurological diseases and is suing the governing bodies for the injuries caused as a result of repeated impacts and micro-concussions throughout the course of his rugby career. The three governing bodies confirmed in December 2020 that they had received a letter of claim from the player’s solicitors and are currently reviewing the contents. As this is a civil case, the remedy that will be awarded if successful is damages (a monetary sum). The amount of damages will be determined with the aim of restoring Thompson back to the position he would have been in had the damage not occurred. Whilst this literal restoration is not possible, the final amount will be determined using the Ogden tables.
Contextually, this claim is being introduced at an important and influential period of time as in recent years, more emphasis has been attributed to the adverse correlation between rugby and neurological diseases; such as the BBC documentary ‘Rob Burrow: My Life with MND’. This programme featured the ex-Leeds Rhino’s player and the bestowal of the BBC Sport Personality Helen Rollanson Award to, ex-Scotland international, Doddie Wier, for raising awareness of motor neurone disease through his charitable foundation ‘My Name’5 Doddie Foundation’. This increase in awareness could be viewed by the courts as a policy consideration.
The Three Requirements for Negligence
As with any claim in negligence, to be successful, Thompson must demonstrate the three requirements of negligence have been satisfied. These are; establishing a duty of care, a breach of that duty and a causal link between the breach and the damage in question.
Establishing a Duty of Care
In consideration of the first requirement, it would be sensible to assume the courts would hold that sporting governing bodies owe players, playing at the most elite level, a duty of care. Whilst there has been relatively little litigious exploration of the relationship between sporting governing bodies and participants, guidance could be taken from Watson v British Boxing Board of Control. This case came about after the horrific injuries suffered by boxer Michael Watson after his bout with Chris Eubank. Watson was comatose for 40 days, underwent six brain operations and spent six years as a wheelchair user. It would be a useful case to contemplate in consideration of Thompson’s case. In Watson, it was held that the boxing governing body did owe elite boxers a duty of care, firstly, in light of the regulatory rather than advisory role that the British Boxing Board took. Additionally, due to the inherently dangerous nature of boxing, the governing body were under a duty to minimise the risks that came hand-in-hand with the execution of boxing and it’s rules. Therefore, Thompson may argue due to the regulatory and embroiled function of the governing bodies alongside the inherently dangerous nature of rugby that he was owed a duty of care. The dangerous nature of rugby stems from the fact it is a high impact collision sport in terms of scums and potentially unsparing tackles with the capability for repeated head injuries and micro-concussions. This inherent danger is exacerbated by the lack of protective head equipment worn by players. The governing bodies have acted passively in terms of implementing preventative measures to head injuries. The only standard in place is the prohibition on high tackles. A tackle will be determined to be high and hence illegal if a player makes contact with the head or neck of the opponent intentionally, recklessly or carelessly. Sanctions for committing a high tackle include a yellow or red card.
Furthermore, it is interesting to consider how this duty of care, between a sporting governing body and its participants arose within the general, wider context of negligence claims. Watson potentially broke away from the landmark case of Caparo v Dickman, where Lord Bridge took inspiration from the Australian High Court and held it would be preferable to develop novel categories of negligence incrementally and through analogy of previous case law rather than a substantial extension of a duty of care. Therefore, the decision in Watson could be used as an analogous case to justify establishing a duty of care between Thompson and the rugby governing bodies.
In anticipating the court's holding WRU, World Rugby and Rugby Football Union owe professional players a duty of care, it may be useful to explore the position in Australia as inspiration. The evolution of case law stemming from the early 2000s (including Agar v Hyde and Hayden v New South Wales Rugby Union Ltd) indicates the position in Australian is that it will be more likely that a duty of care to ensure that the risk of foreseeable injury is minimised will be owed to professionals rather than amateurs. This seems to revolve around the fact that participants have a free choice to play and should be well aware of the rules and risks and if a duty of care was imposed upon International Rugby Board (now renamed World Rugby) to intervene, it would deter amatuer participation. However, if this same approach was reflected in the English legal system, there seems to be no reason why a duty of care could not be imposed as Thompson was playing at the most elite level available and wasn’t merely playing for enjoyment.
World Rugby is one of the three governing bodies involved in this case.
Generally the Australian approach focuses on the actual ‘playing’ of rugby; compared to the approach in Watson which focused on the governing body’s delivery of the necessary sporting and safety infrastructure. The 2005 Australian case of McCracken v Melbourne Storm Rugby League FC shows a shift to a ‘Watson-like’ approach by holding that sporting governing bodies are in a “superior position to investigate and access such matters relating to the need to take reasonable safety measures.”
Whether the Watson approach or the traditional Australian approach is taken in relation to Steve Thompson, it is sensible to assume that a duty of care will be imposed on the three concerned governing bodies. If taking the Watson approach, the rugby governing bodies would owe Thompson and the other ex-professionals a duty of care considering the regulatory rather than advisory role all these governing bodies have played since rugby became a professional sport in 1995. Furthermore, imposing this duty of care could easily be seen as an incremental step from Watson, considering the dangerous nature of rugby and the fact the governing bodies are best situated to regulate the rules and safety measures to prevent these life changing conditions. If opting for the traditional Australian approach, the governing bodies would owe Thompson a duty of care because he was playing at the highest, elite level in such a high intensity, successive fashion.
Breach of the Duty of Care
In order for Thompson to be successful, he will need to establish that, on the balance of probabilities, the governing bodies breached their requisite duty of care to provide adequate safety precautions to prevent known and foreseeable serious injuries. In determining whether there has been a breach it must first be established what the required standard of care is and then whether the governing bodies have met this standard.
Under the common law, it is currently unclear what the requisite standard of care for the rugby governing bodies is in relation to concussion and head injuries. Under the Social Action, Responsibility and Heroism Act 2015 (Sections 1-4), in negligence claims, the court must take into account the following considerations when deciding on the appropriate standard of care: whether the defendant was acting for the benefit of society, predominantly responsibly and heroically by intervening in an emergency. The most appropriate of these considerations for the courts to contemplate is whether the governing bodies were acting predominantly responsibly. During this contemplation, the courts may scrutinise World Rugby’s 2011 decision to amend their concussion protocol. This saw the substitution of the mandatory three week rest period for players with concussion (which could only be reduced following an assessment from a neurological specialist) with a graduated return to play which could be as little as six days. This undermines comments made by Dr William Stewart that World Rugby is ultimately responsible for ensuring the safety of it’s participants.
Additionally, the social attitudes and expectations are normally reflected in the expected standard of care. There are a breadth of considerations that the court will take into account when establishing the requisite standard of care including the skill level of the governing body, the magnitude of harm to be considered and the practicality of prevention. When these considerations are put into the context of Thompson’s claim and establishing the standard of care of the governing bodies, harm is likely to be serious, there is a reasonable chance of risk materialing (seeing as head injuries often occur in rugby) and it would be cheap to take precautions. These cheap precautions could be simply imposing rules that prevent players with head injuries or signs of concussion returning to play under any circumstances or imposing a safe time limit for players with confirmed cases of concussions to return to training and matches. The decision in Watson amplifies this approach and means advice on safety issues and medical treatment should have the up to date knowledge of current best practices i.e. the best methods for minimising concussion and subsequently serious brain damages as a consequence of concussion.
Therefore, in determining the standard of the duty of care owed to Steve Thompson, the court may consider the increasing awareness and subsequent public outcry relating to the development of these life altering neurological conditions and the fact it seems if new measures are not adopted soon, the problem will continue and potentially worsen. It is likely the existence of cheap and seemingly effortless precautions, that have not yet been implemented, will also be considered in establishing the requisite duty of care owed to Thompson.
Causation
If it is established that the governing bodies have breached their duty of care, the burden will be on Thompson to prove there is a causal link between the breach and the life changing injuries he has sustained. The logic behind this is that it would be unfair to hold the defendant liable for an injury that is too remote and too far removed from their breach.
Normally, this requirement is fulfilled by establishing factual causation through the application of the ‘but for’ test. But for the breach committed by the governing bodies, Thompson would not be suffering from early on-set dementia and probable CTE. The discussion of this issue would potentially require medical evidence, which is outside the scope of this discussion.
The Role of Autonomy
Autonomy (Latin for self-rule) means we have an ethical and social obligation to respect the free-will of others and the decisions they make when living their lives. The role of the law in these situations is to find a balance between it’s required regulatory role and respecting autonomy. Many may argue that the governing bodies should not be found liable because the link between rugby and neurological conditions has long been known. One of the first well known cases was Scottish international David Shedden, who played in the 1970s and was diagnosed with dementia in his late 40s. It was widely believed his dementia could be attributed to 13 incidents of concussion he suffered throughout his professional career. Scottish fly half, Finn Russel, withdrew from the Six Nations international against France in 2019 and demonstrated that players are also responsible for looking after their own long term health. This decision by Russell could be seen as a watershed moment as the tide is shifting from players being laughed at/ridiculed for not continuing with play if they suffered a head injury to players being expected to withdraw themselves.
The role of autonomy has already been briefly mentioned in Agar v Hyde where the Australian High Court emphasised that it is participants’ free will that enables them to play. When Thompson brings his claim, it is likely the governing bodies will argue the complete defence of ‘volenti non fit injuria’ (literally meaning to a willing person injury is not done). The complexity of this defence can be seen in Smolden v Whitworth and Nolan, a case concerning a player successfully suing an official. Whilst the defendant referee argued that the claimant was well aware of the rules and dangers associated with the game and by exercising his autonomy and choosing to play, he had implied consent to the risk of injury caused by non-application of the rules. Lord Bingham did not agree with this and proclaimed that Smolden could not have possibly consented to a breach of duty on the part of the officials. Therefore, if it is held that the governing bodies breached their duty, it could be anticipated that this defence will not be available. Implied consent cannot be deciphered from Thompson’s conduct of playing where there has been a breach of duty. However, this is a complex defence and will ultimately depend on the court as to whether it’s application is successful.
An auxiliary point to note is if the outcome of this case goes in the favour of the governing bodies, players in the future may switch their attention to their opponents. Although Thompson has surpassed the six-year primary limitation period to bring a claim in negligence, injured professional players could bring a claim against opponents who have made a particularly illegal and dangerous tackle. This comes from Condon v Basi which imposes a general standard of care owed by a player to take all reasonable care, taking into account the circumstances under which they are playing. Therefore, the more elite level you are playing, the ‘higher’ the necessary degree of care.
Potential Case Outcome
A finding of liability against the governing bodies could have potential implications not only on the professional game but filtering down into amateur and grassroots rugby. At an elite level, the imposition of adequate time periods that a player must rest after showing signs of concussion or even merely sustaining a head injury may well be implemented; alongside the imposition of some form of protective head equipment. At lower levels, the governing bodies may implement additional rules such as scrums and hard contact banned in school and junior games as well as more rigorous standards of training and qualifications for coaches who are educating and teaching younger players how to tackle safely. It is unlikely that the legal implications of this case will have an effect on the litigious action of amateurs as this would have the potential of ‘opening the floodgates’ to claims and overwhelming the courts. Further, rugby is a physical sport, and all participants are aware of the ‘brutality’ of the game; it would thus be extremely difficult to prevent complete contact in younger years and then expect progress to full-contact in teen-years. Physicality will always be prevalent in rugby, and despite the horrific injuries occurring, one cannot imagine a 360 degree turn in favour of less contact.
It may also be important to note that if liability is proven against the appropriate governing bodies, that the ‘15 commandments’ outlined by Thompson and other ex-players may be implemented. Proposed rules include research and testing into the roles of ‘front row forwards’ and the demand placed on their positional involvement in rugby; World Rugby to accept their sport can lead to neurodegenerative diseases; and every three concussions a player receives, for there to be full scans and medical checks on the player. It seems that Thompson’s case revolves around making the game safer rather than claiming huge financial values; however, economic compensation is possible.
The group of ex-professionals have experienced loss of amenities, and thus may form a claim based on consequential economic losses. As a side note, it would be difficult for Thompson to claim pure economic loss, as aforementioned, this could leave the floodgates open and place excessive burden on the defendant, allowing for more potential to sue. However, Thompson is claiming consequential economic losses for personal injury, as a result of negligence from the three rugby governing bodies. If successful, Thompson could claim compensation (which would be of an extremely high value) for losses in health care bills, inability to work and generic loss of amenity.
Conclusion
Ultimately, it seems this issue will be increasingly important and the scope for litigation may broaden across other sports. This is because the English Premier League (football) has taken its first precautionary steps of trialing the additional concussion substitutes. An appropriate balance must be found with players fulfilling their duty to minimise head injuries with safe and legal tackles and the player’s responsibility to protect their long term health alongside the regulatory function and the governing bodies to implement rules and procedures to protect players. Without serious intervention soon, it seems likely this problem will only escalate, particularly considering the average size of rugby players is increasing. Rugby players in 2014 were approximately 15kg heavier than players in the 1980s and with the increasing recognition and acknowledgement of this issue, pressure on the governing bodies is mounting. In light of this discussion, alongside his successful career, Thompson may well be successful with this additional conversion.
This article was co-written by 3rd year LLB Law student Rebecca Rudd (University of Liverpool), and founder of The Legal Pitch, Adam Smith.