Major Unions facing a head injuries law suit

[Which Tyler]

Some observations:
1. Concussion is a serious brain injury. Everyone knew that. That's why there was a mandatory stand down period even when I was a kid in the 80s and 90s.
2. It follows that it's very difficult for Unions or clubs to say "we didn't know that there was any issue".
3. The decrease in the stand down period whether for professionals or others was pretty clearly unjustifiable, either on the basis that everyone knew here were risks, or that the risks weren't well enough known to decrease the protections that exist.
4. You can't exclude liability for personal injury.
5. "You knew the risks" really doesn't work in combination with "we didn't know there was an issue". The moment any club or Union says "You knew the risks" they are accepting that they did as well.
6. "You knew the risks" can only ever amount to contributory negligence, not a defence.
7. You don't need to anticipate the precise injury which eventuates to be liable, so the fact that no one knew about CTE isn't going to save them from suit.

Point 1 is an over-simplification (honestly, the whole thing is, that's how it can fit in a single post, but this one is grossly over-simplified) - Concussion is a "serious" brain injury, in that its medical name is mild Traumatic Brain Injury. The longer term sequelae (the subject of this suit) of single concussions, let alone multiple concussions and repeated sub-concussive episodes was not known.

Point 3 is misleading - when the stand down period was reduced for professionals, it was justified and was an increase in protection, as SCAT tools and HIAs were introduced. We replaced a one-size-fits-all blunt approach with an evidence based assessment and return to play protocols.

Point 5 is a straw-man, as no-one is saying that the players knew the risks but organisations didn't. There was a time when no-one knew the risks; then there was a time when organisations knew the potential outcomes, but not the risks involved; then a time when the risks were better understood, attempts to mitigate came in and assessment tools were developed; later on, there was a time when concussion education was mandatory, which led to the point where the players know the risks as well as the organisation; but the medical experts are still in the process of significantly increasing knowledge of the risks year by year. At this point in time, no-one "knows the risks", and the players are as well informed as anyone who isn't a medical expert.

Point 7 for liability, that seems right; for negligence, it doesn't. To take an example I'm much more familiar with, if I jump on someone's back when they have bone cancer and weakened bones - I break said bone and spread the cancer cells into the blood stream causing much pain and a much reduced life span - then I'm liable for that (and insured for it). I'm only negligent if I should have known that there was cancer there, "should have" defined by whether a panel of my peers would have been expected to find it, not a renowned oncologist.




Please note, my personal history of comments on concussion have changed over time from viciously castigating rugby's authorities for not doing enough (mostly instinctive and before there was nay evidence for what "should" be done), to actually supporting them in the current guidance, which has been drawn up by neurophysiologists.

How does the law stand on a defence of "we asked the best medical experts in the world, and did what they said"? My understanding would be that it's a rock solid defence against charges of negligence, but still renders responsible for liability. Equally, if it's "just" liability, then that's what insurance is for - but liability without negligence just isn't very dramatic, or particularly headline worthy (and won't make the career of said lawyer).

[Gloskarlos]

Top post WT

I’m aware of changing views and protocols having played for 37 years and coaching age grade for the last 7 years, but the amount I’m still learning about head injuries is ludicrous.

[Which Tyler]

I’m aware of changing views and protocols having played for 37 years and coaching age grade for the last 7 years, but the amount I’m still learning about head injuries is ludicrous.

I learned neurobiology 20 years ago (admittedly, it was my weakest subject); my only connect to rugby is as a fan, and playing the walking variety. The amount I'm still learning about head injuries is ludicrous.

[morepork]

Dementia pugilistica was first officially diagnosed in 1928. This is now known as CTE, and contact sports other than boxing have been recognised as risk factors only since about 2005 or so. There is simply not enough data to definitively assess risk in individuals. CTE is clinically and pathologically heterogeneous. It is quite similar to Alzheimer's in that regard and definitive diagnosis is only possible post mortem. More data coming in might change that. It isn't possible to separate clinical signs of concussion-related cognitive impairment to distinguish CTE from Alzheimer's frontotemporal dementia, vascular dementia, etc. Dementia risk definitely increases with TBI, but CTE as a distinct entity causing this is nowhere near conclusive. Alzheimer's is still king of the dementia spectrum, by quite some distance.

[Eugene Wrayburn]

Some observations:
1. Concussion is a serious brain injury. Everyone knew that. That's why there was a mandatory stand down period even when I was a kid in the 80s and 90s.
2. It follows that it's very difficult for Unions or clubs to say "we didn't know that there was any issue".
3. The decrease in the stand down period whether for professionals or others was pretty clearly unjustifiable, either on the basis that everyone knew here were risks, or that the risks weren't well enough known to decrease the protections that exist.
4. You can't exclude liability for personal injury.
5. "You knew the risks" really doesn't work in combination with "we didn't know there was an issue". The moment any club or Union says "You knew the risks" they are accepting that they did as well.
6. "You knew the risks" can only ever amount to contributory negligence, not a defence.
7. You don't need to anticipate the precise injury which eventuates to be liable, so the fact that no one knew about CTE isn't going to save them from suit.

Point 1 is an over-simplification (honestly, the whole thing is, that's how it can fit in a single post, but this one is grossly over-simplified) - Concussion is a "serious" brain injury, in that its medical name is mild Traumatic Brain Injury. The longer term sequelae (the subject of this suit) of single concussions, let alone multiple concussions and repeated sub-concussive episodes was not known.

Point 3 is misleading - when the stand down period was reduced for professionals, it was justified and was an increase in protection, as SCAT tools and HIAs were introduced. We replaced a one-size-fits-all blunt approach with an evidence based assessment and return to play protocols.

Point 5 is a straw-man, as no-one is saying that the players knew the risks but organisations didn't. There was a time when no-one knew the risks; then there was a time when organisations knew the potential outcomes, but not the risks involved; then a time when the risks were better understood, attempts to mitigate came in and assessment tools were developed; later on, there was a time when concussion education was mandatory, which led to the point where the players know the risks as well as the organisation; but the medical experts are still in the process of significantly increasing knowledge of the risks year by year. At this point in time, no-one "knows the risks", and the players are as well informed as anyone who isn't a medical expert.

Point 7 for liability, that seems right; for negligence, it doesn't. To take an example I'm much more familiar with, if I jump on someone's back when they have bone cancer and weakened bones - I break said bone and spread the cancer cells into the blood stream causing much pain and a much reduced life span - then I'm liable for that (and insured for it). I'm only negligent if I should have known that there was cancer there, "should have" defined by whether a panel of my peers would have been expected to find it, not a renowned oncologist.




Please note, my personal history of comments on concussion have changed over time from viciously castigating rugby's authorities for not doing enough (mostly instinctive and before there was nay evidence for what "should" be done), to actually supporting them in the current guidance, which has been drawn up by neurophysiologists.

How does the law stand on a defence of "we asked the best medical experts in the world, and did what they said"? My understanding would be that it's a rock solid defence against charges of negligence, but still renders responsible for liability. Equally, if it's "just" liability, then that's what insurance is for - but liability without negligence just isn't very dramatic, or particularly headline worthy (and won't make the career of said lawyer).

I think you misunderstand me. I have no complaints about the current advice which is properly based on actual science although not a precautionary principle. for that reason I'd like to see the tackle height reduced to the armpit but I don't envisage any other changes to the current approach. i think I'm right in saying that that is your view as well.

3. I'm pretty sure that the HIA and return to play protocols lagged the reduction in mandatory stand down, but I stand to be corrected. Iirc someone threatened to sue as a restraint of trade or something like that and the Unions panicked.
5. Plenty of people are saying we all knew the risks when obviously we didn't. I'm pointing out that actually that amounts to an admission of liability from the Unions perspective.
7. I'm not sure I understand what you mean. Liability derives from negligence. Furthermore my recollection (I'm not a tort specialist, though causation is also part of the criminal law which tends to be more restrictive) is that liability is established by risk of injury (and the breach of duty). Thereafter you're in the hole for pretty much anything caused and foreseeable from that. You are negligent if you breach a duty you owe to another and they suffer loss. The loss is only not recoverable if it is so remote from the breach of duty as to be unrecoverable because it isn't possible to foresee.A specific mechanism of injury isn't the point. Therefore in your cancer example you are liable because complications due to the initial injury caused by the breach of the are entirely foreseeable, just as variations in thickness in skill between eggshell and neanderthal are foreseeable.