One of the top news stories recently points up a number of issues, not least the differences between doing what is legal, what the law requires to be done and what is the “right” and perhaps moral thing to do in difficult situations.

It has been revealed that a number of top class rugby players have been diagnosed with early onset dementia;  chronic traumatic encephalopathy, potentially due to the very physical nature of the game, scrums and the like.  Those diagnosed are now considering personal injury claims for compensation against the Rugby Football Union on various grounds ranging from lack of explanation of the risks to management of the game and its rules.

Head injuries and trauma such as this is not confined to rugby.  World class footballers such as Jack and Bobby Charlton were also diagnosed with dementia type illnesses, possibly related to years of heading footballs, especially in the days when the balls were made of heavy leather, often saturated. My own particular sport, riding, also has its fair share of concussion injuries, brain damage and spinal injuries.

The long- term aspects are really now only becoming clearer as the sportsmen and women get older, with the health problems coming out and the potential links beginning to be made.  Dementia in all its forms is a devastating illness and it probably fair to say one which we all dread.  No-one could fail to feel sympathy for those so diagnosed, particularly as they are people who have spent their lives looking after their health so as to take part in the sports they love and which are very often their lives.  Or it seems they may have thought they were.

One of the big dilemmas is that there is virtually no sport that can be made entirely risk free and the participants wouldn’t want that anyway. Part of the attraction is the thrill of taking the risk and over- coming it.  Sports can be made safer and this is an ongoing learning curve, but as Bill Sweeney, the RFU’s chief executive says, making rugby entirely risk-free is “a journey with no conclusion”. Well, – there is, but that conclusion would be to not have the game, or any sport at all.  There is little doubt that physical activity of any kind is good for us, body AND soul, illustrated to good effect this past year when so much emphasis has been put on exercise to stay well during the pandemic.  So that’s not really an option.

But sympathy is not enough when you bring a claim for compensation in law.  You may think it SHOULD be, but legal principles have to be followed for successful claims.

You have to look at breach of duty and causation; whether the players are in time to bring a claim, which would largely depend on the time they realised they had been injured and possibly why; the state of knowledge of the risks of the game at the time they were injured and many other things.  Basically, it would be for the players to prove that RFU knew of the risk of brain injury yet failed to explain this risk to the players and to change the game to avoid such injuries.

But it would be a possible defence to say that the risks must have been obvious to the players anyway and that they took those risks voluntarily. Not only that, but they often insisted on continuing to play, possibly against medical advice. I know that in horse sports, the rider may well be being stretchered off the course, but their first question will be “When will I be back riding again?”  Are they foolhardy, or just passionate?  Or does their livelihood depend on it, in which case there’s not a lot of choice?

There is a third way – the “half- way house”.  This can come in many forms, but basically it means that some form of settlement might be capable of being reached with the RFU. This can and does happen in many personal injury and medical negligence claims.  There may be no admission of fault on the part of the RFU, but what happens is that they can agree to look after the injured players during their lifetime, possibly meeting the cost of their healthcare needs, or helping the families out financially. There are no hard and fast rules on settlements; they can be individually tailored to meet individual needs.

At the same time, the RFU can be looking at the structure of the game in the light of developing knowledge of how and why injuries are caused and more to the point, how they can be prevented.

But there is a balance to be struck. Whilst hurtling around a muddy field on a cold winter morning while a human brick wall attempts to stop me would not be my idea of heaven, for many lads and increasingly lasses, it is just that. We don’t want to stop the game and we must expect some injuries, given its nature, but some of the more devastating may well be preventable.

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Ringrose Law has solicitors with a personal passion for various sports. If you have been injured in a sporting context contact us for advice.

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