Concussion in contact sport is a high profile issue. There is now a much better understanding of the potentially severe long term physical and financial harm that head injuries can cause. Recent developments from the United States demonstrate the potential to be held liable for a player’s injuries. A class action raised on behalf of former NFL players alleged that the league had hidden the dangers of head trauma from them. In December, the US Supreme Court denied the NFL’s request to review the settlement reached on behalf of the retired players, expected by some to cost the NFL as much as $1 billion.

Other contact sports have taken notice of the issues faced by the NFL. Governing bodies have implemented rule changes and issued guidance aimed at improving their sport’s response to head injuries. As well as creating a safer playing environment, these changes may also reduce their exposure to similar claims.

Despite this, the response to head injuries in professional sport remains inconsistent. Brain charity Headway recently praised the response when Hull City footballer Ryan Mason fractured his skull during January’s Premier League match against Chelsea. Implementation of Premier League guidance about head injuries in professional football was widely credited for the improved response. In contrast, rugby came under fire throughout December following the decision to allow Northampton’s George North to return to the field of play after he sustained a head injury during an Aviva Premiership match on 3 December. The decision and the subsequent review by the RFU was criticised by many, including World Rugby. With the Six Nations Championship entering the ultimate week and with Head Injury Assessments a relatively common feature of the tournament we look at the potential liability for this type of injury.

When a player suffers financial loss because of a head injury, the normal legal test for negligence is applied to decide whether a party is liable. This means asking whether they owed the player a duty of care; whether that duty was breached because their actions fell below the accepted standard; and whether it was reasonably foreseeable that the harm would be caused by that breach.

Applying this test in practice is difficult. A number of different parties could potentially be liable for the damage caused by the head injury.

Other players are at risk because participants in a sporting contest owe all other participants a duty not to cause them harm. However this duty is tested against the rules of the game in question and the ‘playing culture’ of the sport. In some sports serious injury can be sustained even when the rules are followed. It may be difficult to prove liability unless there was conduct amounting to a “reckless disregard” for the player’s safety. Practically, only at the elite end of well-funded sports will another player be able to pay a large damages claim. Although with amateur golfers routinely now carrying insurance, this may change.

In a 2003 case, the Court held that the referee of an amateur rugby match owed a duty to players to exercise reasonable care when enforcing rules that minimise the risk of injury. The referee allowed an inexperienced player to participate in the front row of the scrum. This breached the rules of the game and was held to be the cause of the accident. In that case the Welsh Rugby Union had appointed the referee for the match and it was accepted that they were therefore vicariously liable for the player’s injury.

Governing bodies are responsible for the laws and regulation of a sport. They can have many other functions; however their potential liability stems from their control over the rules of the sport. In doing so, governing bodies often assume responsibility for determining appropriate procedures and controls to minimise the adverse consequences of injury.

To take an example, in 1991 boxer Michael Watson fought Chris Eubank for the WBO Super-Middleweight title. The referee stopped the fight in the final round when Watson appeared to be unable to defend himself. He had sustained a brain haemorrhage and it was seven minutes before he was examined by a doctor and nearly half an hour before he reached hospital. By this time he had sustained serious brain damage leaving him paralysed down the left side and with other physical and mental disability.

Watson sued the British Boxing Board of Control (the “BBBC”) as the sole controlling body regulating professional boxing in the UK. It took nearly a decade, but Watson was ultimately successful in his claim. The Court held that the BBBC had assumed responsibility for their members’ safety and breached this duty by failing to inform itself about the risks inherent in a blow to the head and provide the appropriate level of medical support during and after the fight.

Many governing bodies can rightly be accused of being slow to address the risks of concussion, which highlights a contradiction in our UK sporting structure. With the exception of one or two extremely well off sports, most governing bodies are led by boards comprised mainly of volunteers. Even sports which receive significant government funding may lack the skills and resources to take and enforce pro-active decisions across all aspects of their sport, from grassroots to elite competition.

We all, competitors and spectators alike, enjoy consuming high quality sporting experiences. It is easy to ignore the fragility of the responsible organisations, and easy to criticise “them” for failing to respond professionally when in reality they are often not professionals. In televised, elite sporting events we only see the tip of the sporting iceberg, governing bodies must address not only those events but all aspects of their sport. Concussion and safety is as much a risk in schools and amateur club rugby as it is in the Six Nations, perhaps more so because of the reduced medical support and monitoring.

A governing body evolves the rules of their sport to address safety concerns as they arise. Often they manage insurance on behalf of the sport as a whole and will work with insurers to change the rules in response to the claims that arise. They are always looking backwards. In every decision they have to balance the management of risk and safety against the cost of participation in their sport and the cost of running the sport. Rugby players would be safer with helmets, body armour and permanent senior medical presence at every game, but how many could then afford all the kit and how many amateur clubs would be able to fund the costs. At the end of the day, most of the key officials have day jobs.

We may criticise governing bodies for failing to react quickly to safety issues such as concussion. We may see increasing litigation and key officials being held personally liable for sporting incidents. However, Cardiff High School’s Under 11 players play the same sport as George North, Rory McIlroy plays the same sport as a 12 year old teeing off Castlereagh municipal golf course in Belfast. And that is as it should be.

High value litigation and media challenges following high profile sporting incidents are inevitable parts of the sporting ecosystem, but we should be careful to recognise the danger of discouraging participation in sport and the obvious consequences that would follow.