Concussion is defined as a traumatic brain injury that alters the way the brain functions. It is identified as one of the most complex and difficult injuries in sports medicine to diagnose, owing to the likelihood of a delayed onset of a cognitive deficit.

In August 2013 a $765m financial settlement was reached between the NFL and a substantial group of former players. The basis for this settlement came from the increased concern about the existence of neuro-cognitive disorders among former American Football players which had been caused by repeated concussions sustained whilst playing in the NFL exacerbated by the misinformation given to players about this throughout the duration of their careers.

This payout, in addition to the high profile concussions of elite rugby players such as George North, Mike Brown and Jonathan Sexton in the 2015 RBS Six Nations Tournament has firmly placed concussion injuries into the public spotlight.

A legitimate concern for governing bodies going forward is whether the concussion debate might move to the courts and subsequently result in a shift towards identifying the liability of related parties. It is important that governing bodies raise awareness within their sports as to how liability would be assessed in order to bring about an improvement in how concussions are managed thereby improving player welfare.

In 2012 the IRB introduced the Pitchside Suspected Concussion Assessment (PSCA) in an effort to address the issue of liability. However the guidelines have been widely criticised by healthcare professionals and sportsmen alike, citing the immense difficulty in attempting to diagnose concussion within a constricted timeframe and in a highly pressurised situation.

In light of the potential move towards increased litigation in this area, we anticipate that the three key areas of liability in concussion injuries in sport will be:

  • Employers Liability
  • Clinical Negligence (after consultation with a club doctor)
  • Contributory Negligence (the player’s responsibility, conclusive evidence of which will reduce damages)

Governing bodies must bear in mind what they have done and indeed what they intend to do going forward, to limit their exposure and liability in any future litigation.