Sarah Prager, barrister at 1 Chancery Lane, and Scott Rigby, partner and international injuries lawyer at Stewarts Law, warn of the very real dangers to player health posed by the truncated rugby season about to get under way.
The Truncated Season
For some of us, one of the most depressing aspects of the Covid-19 lockdown has been the lack of sport. As so it was that Premiership Rugby’s announcement that the rugby union season would commence on 14th August was met with almost universal relief and acclaim. On closer inspection, however, the truncated season, which is packed with fixtures, has given cause for concern on the part of those practitioners who specialise in the field of brain injury. In a period of ten weeks, nine rounds of league fixtures will be played; players will be expected to play midweek fixtures in order to make up the 159 day loss of time due to lockdown.
The Deputy Chief Executive of Headway, Luke Griggs, has voiced his reservations regarding the sheer number of fixtures players will be expected to undertake. He has two main concerns. First, it is well established that the less time the brain has to recover from the kind of impact regularly seen in rugby matches, the more likely it is that repeated blows to the head will lead to a compounding injurious effect. Secondly, players who do not have sufficient time to recover from fixtures are likely to make mistakes, with potentially dangerous results. In particular, mistimed tackles and collapsed scrums come with a risk of significant injury.
Premiership Rugby is liaising with the Rugby Football Union and Rugby Players’ Association regarding player welfare, and has said that it will not punish clubs for playing academy players in some games, but the fact remains that players will be called upon to play more rugby, more frequently, and with less time to recover between fixtures.
World Rugby really began to take the risk to players of suffering potentially life-altering injuries seriously after having witnessed the American National Football League become engulfed in controversy, and an expensive group action, arising from its failure to warn players of the long-term dangers of head injuries. Studies found that the brains of former NFL players showed evidence of chronic traumatic encephalopathy, a progressive degenerative disease linked to dementia and depression. More than 4,500 players sued the League for misleading them regarding the dangers of head injuries, and in August 2013 the parties reached a US$765 million settlement.
By that time, World Rugby had begun to fund its own research into the effects of playing a contact sport on the long-term health of elite and amateur players. The results were predictable, in the light of the research undertaken in the context of the NFL. Research is still being undertaken worldwide, and in particular in New Zealand and in the UK. A recently published study by Durham University has found that elite rugby union and league players playing between 1990 and 2010, before measures were put in place to improve management of player welfare, suffered more than five times the number of injuries than athletes in non-contact sports. 51% of them had been diagnosed with osteoarthritis, and 81% reported that they had had concussion on at least one occasion. 15% of players reported after-effects as a result of concussion, compared with none of the control group. Concussion is the most common injury in rugby, with 5.1 instances for every 1,000 hours played; and one of the features of it is that symptoms may take days to manifest, meaning that immediate pitch-side assessments may not identify brain trauma which is yet to become symptomatic.
Since those players were playing at elite level, World Rugby has made great efforts to reduce the danger posed by repeated concussive injuries. Players suspected of having sustained a concussive injury are now required to leave the field and undergo a head injury assessment, and if suspected of having concussion, should be removed from play; but not all of them are, the most famous example being George North, the Wales and Northampton winger, who in 2016 appeared to be knocked unconscious, yet got up to pass a pitch-side head injury assessment, and remained in play. At that stage he had a long history of concussive injuries, having suffered four head injuries in the five months between November 2014 and March 2015, and having taken five months off playing due to fears that his speech had been affected. Notwithstanding this, he continued to play, even after the incident in 2016, and continued to suffer concussive injuries, most recently in February 2020, when he was knocked unconscious in an international match against France during the Six Nations tournament. It is difficult to see how it is in a player’s best interests to continue to play in the face of such a long and sustained history of significant head injuries, together with evidence of brain injury.
The authors of the Durham University study acknowledge that since the players they studied were playing, World Rugby has implemented protocols such as those which were supposed to prevent North from returning to play. However, they also point out that the game today is faster, the players bigger and the style of play more physical (the recent World Cup in Japan featured a number of allegations of dangerous play, including several dangerously high tackles). The project leader, Dr Karen Hind, concluded:
“…our findings suggest a need for better injury recovery given the reported frequency of recurrent injuries. A case could be argued for less players on the pitch and providing more opportunity for evasion. Medics also have a role to play in encouraging sensible injury recovery times, which clubs need to support…”
It is difficult to see how the truncated season, with less rather than more recovery time between fixtures, fits into this picture.
The Legal Context
Historically the courts have been unwilling to impose duties on rugby clubs which they regard as making it more difficult for a desirable activity to be undertaken (cf in this regard the decisions of the Court of Appeal in Allport v Wilbraham  EWCA Civ 1668 and Sutton v Syston Rugby Football Club Limited  EWCA Civ 1182), although referees have received less judicial protection (cf for example Smoldon v Whitworth, Nolan  PIQR P133, in which Bingham LCJ described the game as “a tough, highly physical game, probably more so than any other game widely played in this country. It is not a game for the timid or the fragile. Anyone participating in serious competitive games of rugby football must expect to receive his or her fair share of knocks, bruises, strains, abrasions and minor bony injuries.”).
It is of course trite law that sportsmen such as rugby players voluntarily assume the risks inherent in their game. In Maylin v Dacorum Sports Trust  EWHC 378 (QB), for instance, a Claimant who broke her back falling from a bouldering wall failed because the court held that she had assumed the risk inherent in bouldering. However, in the more analogous case of Watson v British Boxing Board of Control  QB 1134 the Claimant succeeded in his claim. The case rewards some examination in this context.
On 21st September 1991 Michael Watson fought Chris Eubank for the World Boxing Organisation Super-Middleweight title. The referee stopped the fight in the final round because Watson appeared to be unable to defend himself. It turned out that he had sustained a brain haemorrhage, and on returning to his corner he collapsed unconscious onto his stool. Such was the ensuing chaos that it was seven minutes before a doctor examined him. He was taken to hospital, where he received treatment to reduce the swelling on his brain, and subsequently underwent surgery. He was left with life changing injuries, including left sided paralysis. He brought a claim alleging that the Board ought to have ensured that he could have received immediate and effective ringside medical treatment, including the resuscitation treatment that could have prevented his long term injuries. The Board denied that it owed him a duty of care; denied any breach of duty; and denied that any such breach was causative of his loss.
In considering whether the Board owed a duty of care to boxers, Phillips MR held that:
“…It seems to me that the authorities support a principle that where A places himself in a relationship to B in which B’s physical safety becomes dependent upon the acts or omissions of A, A’s conduct can suffice to impose on A, a duty to exercise reasonable care for B’s safety. In such circumstances A’s conduct can accurately be described as the assumption of responsibility for B, whether ‘responsibility’ is given its lay or legal meaning…”
Clearly, as it seems to the authors, Premiership Rugby, in timetabling fixtures, must owe a duty to timetable them in such as way as to take account of players’ physical safety, including the risk to them of repeated concussive injury, as well as the increased risk posed by excessive fatigue. Further, the players’ clubs owe them a similar duty in relation to their safety.
The decision in Watson was notable because the Claimant sought to impose a duty on the Defendant in relation to failure to impose rules and regulations preventative of injury; the injury did not occur as a result of anything done by the Defendant, but, so the Claimant asserted, the Defendant had had an indirect influence on the occurrence of the injury. As to this issue, Phillips MR found that:
“…where A advises B as to action to be taken which will directly and foreseeably affect the safety or well-being of C, a situation of sufficient proximity exists to found a duty of care on the part of A towards C. Whether in fact such a duty arises will depend upon the facts of the individual case and, in particular, upon whether such a duty of care would cut across any statutory scheme pursuant to which the advice was given…”
Again, in the view of the authors, the timetabling of fixtures and any advice given as to resting players will fall within this analysis.
Phillips MR considered that it was fair, just and reasonable to impose a duty of care on the Board, holding that:
“…the injuries which are sustained by professional boxers are the foreseeable, indeed inevitable, consequence of an activity which the Board sponsors, encourages and controls. The conduct of the activity of professional boxing carries with it, for the small body of men that take part in it, the need for the provision of medical assistance to treat the injuries that they sustain and minimise their adverse consequences. It seems to me that, but for the intervention of the Board, the promoter would probably owe a common law duty to the boxer to make reasonable provision for the immediate treatment of his injuries. An analogy can be drawn with the duty of an employer, whose activities involve a particular health risk, to make provision for its employees to receive appropriate medical attention…”
Effectively, the Board encouraged boxers to participate in a dangerous activity; they owed a duty to them to minimise the adverse consequences of doing so.
The juxtaposition of the two announcements – the truncated season, and the Durham University research – should give all sports fans pause. The rugby players whose prowess we enjoy watching are at increased risk of serious and life-changing injuries every time they sustain a concussive head trauma. Reducing the time between fixtures puts them at even greater risk due to fatigue and lack of recovery time. Whether or not it could ever be proven that the longer term effects of repeated head trauma are due to fixture congestion and/or to lack of adequate protections is perhaps a moot point; but the risk of other injuries is also heightened as a result of the shortened timetable. It is to be hoped that it does not eventuate.
About the Authors
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021.
Scott Rigby is a Partner in Stewarts’ International Injury Team. He specialises in acting for clients who have suffered catastrophic injuries abroad. He is recognised in Chambers & Partners and Legal 500 as a leading individual in this area of the law. He holds Association of Personal Injury Lawyer (APIL) specialist accreditations for claims involving brain injuries, spinal cord injuries and accidents abroad.