Concussion in contact sports and particularly rugby union has become an increasingly constant feature of medical debate over the last 15 years. However, the issue recently came into sharp focus again when a former professional rugby player issued negligence proceedings in Manchester arising from concussive injury. It is reported that the player is alleging that the club and two doctors on its medical staff failed to appropriately treat two head injuries he sustained while on the field of play. The player retired due to concussion a short time later. While this is the first such reported case in professional rugby union, litigation arising from concussive injury is not a new phenomenon in other professional contact sports such as American Football or Ice Hockey.
It is anticipated that professional clubs, governing bodies and amateur clubs involved in rugby union (and indeed other contact sports) will monitor the progress of this recent case closely given the stakes involved and the potential 'flood-gate' consequences of similar suits being brought. It may well be that a private settlement will be reached without any admission of liability. However any finding of liability by the court could have far reaching implications for both the professional and amateur game.
Basic legal principles for negligence in sports injuries
There is essentially no distinction in the law of professional or medical negligence in Ireland between the treatment of injury sustained on the field of play or sustained in any other aspect of life. Applying basic legal principles, in order for liability to be attributed in negligence to a defendant (which may be the governing body, club, doctor or indeed all three) it must be established that the defendant owes a duty of care to the player, that the duty of care was breached by falling below reasonable and accepted standards of care and that it was reasonably foreseeable that harm would be caused to that player arising from the breach of duty.
Concussion protocols in rugby union
World Rugby and the national governing bodies (including the Irish Rugby Football Union) have specific protocols in place to identify and address concussion in both the professional and amateur forms of the game. The protocols are constantly adapting as technology and education on the area increases.
The legal application of these protocols is untested in court with regard to claims in negligence arising from concussive injury in professional rugby union. However, it is anticipated that adherence to the accepted protocols in place at the relevant time would form part of a medical practitioner or employer's defence in discharge of its duty of care to the player or, at the very least, be argued as mitigating circumstances in such defence.
This is an abridged version of an article published in the Sunday Business Post Article on 11 September 2016.