Concussion injuries in sport – who is liable?

Posted: 15/09/2015


Sports bodies in the UK are being told that they should not ignore the costly legal cases running in the United States brought by former American football players. In the US more than 4,500 former American football players sued the NFL, accusing it of hiding research that had shown the harmful effects of concussions, while glorifying and promoting violent play. The NFL, without any admission of liability or causation, paid out $765 million to settle claims, medical exams and research. 

The connection between brain damage and concussion has been made for decades and examples include the boxers Mohammed Ali and Michael Watson, and Jeff Astle, former England forward who died of a brain tumour from heading heavy footballs. In the US and Canada, ice hockey players have experienced devastating symptoms of brain damage after a playing career that included frequent fights and concussions. 

Safety measures such as better helmets in cycling, helmets for batsmen in cricket and head guards in amateur boxing have been introduced but how can the risks be reduced to an acceptably safe level? If the level of contact in these sports is diminished, so might the level of interest in them. Who would want to watch a World Cup of touch rugby, football where players are not allowed to head the ball, or a boxing match without punches to an opponent’s head? There have already been resignations over new concussion protocols in rugby that potentially slow the game down making it less interesting to watch and a recent spat between Jose Mourinho and his pitch-side medical staff that highlighted the tensions between the need for medical intervention and the desire to win. 

There are difficult legal questions involved for both participants and sports organisers. For adult participants in contact sports, the legal maxim 'volenti' can apply where they are voluntarily exposing themselves to the risks by choosing to play. It is, of course, difficult for school children to appreciate and understand the risks and they may not have the choice not to take part. This puts a higher burden on organised sport for children, so schools need to assess the risks and supervise activities more closely. At the professional level where players are also employees, the Management of Health and Safety at Work Regulations apply and clubs will need to show they have assessed the risks and reduced them to the lowest level reasonably practicable.

The Penningtons Manches personal injury team includes several specialists in brain, head and sports-related injuries who are familiar with working with brain injury case managers, obtaining funding and making provision for the recruitment of care teams, dealing with location, purchasing and adaptation of suitable accommodation, investigating wheelchair and transport needs, setting up support and therapy packages, and helping people to maximise their independence. We are recommended by the brain injury charity Headway as well as being accredited by the Association of Personal Injury Lawyers (APIL).


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