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It was recently reported that the former Sale Sharks rugby player, Cillian Willis, is suing his former employer for ‘clinical negligence’ having had to retire from the sport at the age of 28 due to the effects of concussion sustained while playing against Saracens in an LV Cup on March 10th 2013.
Following the match Willis never played rugby again.
It is understood that Willis received treatment for a head injury in the first half when he claims to have been concussed but when the Sale medical team deemed him fit to play on. Following a second blow to the head in the second half, Willis was treated once more on the field but, again, allowed the play on. He was replaced a short while later.
Willis did not leave the field of play for treatment following either injury and will claim that World Rugby concussion guidelines were not adhered to. It is unclear whether he received treatment for the initial head injury at half-time.
It is thought that this will be the first time that a professional rugby player has sued his employer due to the effects of concussion.
Have there been any similar cases involving other sports?
Whilst there are numerous examples of successful claims having been pursued arising out of injuries sustained during sports matches or events there is little precedent in respect of claims being pursued directly against the injured party’s employer.
However, the following decisions perhaps give some useful guidance in terms of the legal thresholds that Mr Willis will need to satisfy in order to succeed with his claim.
In the case of Hamed v Mills (1) Tottenham Hotspur Football Club (2)  it was held that the football club had breached its duty of care to a young footballer who suffered a cardiac arrest after the club’s doctor mistakenly recorded that he was fit to train and play notwithstanding a cardiologist’s opinion that his ECG test suggested possible underlying cardiac disease. The cardiologist was held 30% to blame for failing to follow up on his recommendation for a clinical review which would have enabled the risk to have been communicated to the player and his family.
As a result the Claimant and his family never had an opportunity to consider whether he should give up football rather than accept the small risk that he might suffer a cardiac arrest. The Defendants argued that the Claimant would have accepted the risk and played on but they abandoned that argument after they heard the Claimant’s parents give evidence.
Accordingly, both breach of duty and causation were established.
Perhaps more similar on its facts is the case of Fox v Ministry of Defence , a case involving an amateur boxing context between 2 serving army officers. Mr Fox took part in an inter-unit boxing competition whilst serving in Bosnia. He won his first bout but in his second bout he sustained a head injury. As a result he was subsequently deemed to be medically unfit to continue in his role and was discharged from the army.
He alleged that the MOD had failed to ensure that the medical officer at the fight was someone with specialist knowledge of boxing contests and had failed to give him a comprehensive examination. Prior to the fight Mr Fox’s temperature was noted by the medical officer to be 37.4 degrees and he argued that such a temperature was a sign of possible dehydration with the effect that he would not have been as alert as he should have been in the ring or alternatively, that his temperature was a sign of an infection.
The Judge held that the medical officer had been entitled to conclude that Mr Fox’s body temperature was in the band of normality and, in the absence of signs of infection or dehydration, he was fit to box. In addition, there was no evidence that Mr Fox’s elevated body temperature was connected to his injuries. The evidence was that he had the ability to box for the first two rounds of the bout, winning both rounds, and there was no evidence, either before or after the fight, of an infection or dehydration.
The claim was therefore dismissed.
Concussion in rugby
In England the number of reported concussions rose by 59% during the 2013/2014 season. However, it is of course possible that this rise can be attributed to more head injuries being reported subsequent to the introduction by the International Rugby Board of various Head Injury Protocols.
In 2015 the former Welsh international, Jonathan Thomas, was forced to retire from rugby, a year or so after being diagnosed with epilepsy.
Thomas’ neurologist is of the view that his epilepsy was caused through playing rugby, either by a single blow to the head or by repeated blows – either or which could have caused brain damage.
Thomas recalls 3 ‘bad’ concussions during his 14 year rugby career but also had an unquantifiable number of ‘lesser’ blows where he was left feeling dazed and groggy but where he kept on playing.
He accepts that the mindset of players towards head injuries needs to change and that whilst rugby has in place protocols around concussion and return-to-play “a player can always fool a medic into thinking they are ok…If you are in a cup final, then of course you just want to keep on playing at all costs.”
Can technology help?
World Rugby have recently announced that during the 2016 Rio Olympics the CSx head injury assessment software and app was employed to standardise and simplify the recording and management of head injuries, assisting team and independent medics in the fast-paced ‘Sevens’ environment.
The software was also successfully employed as part of the comprehensive Rugby World Cup 2015 player welfare standards programme and has been rolled out to international teams and tournaments accredited by World Rugby for use in test match environments.
With concussion a priority area for the sport the software allows users to administer head injury assessment in a standardised fashion online, comparing the data to the player’s individual baseline data. For example, during the Olympics the software ensured that independent and team doctors all had up to date information about every player optimising concussion diagnosis and management during the tournament.
Clearly, anything that can help improve safety standards and protect player welfare is to be welcomed.
Will the Cillian Willis case open the ‘floodgates’?
It is understood that the Cillian Willis case will not be heard by the Court until the early part of 2018.
My view, is that regardless of the strength of the claim from a breach of duty perspective (for example, whether he should have been withdrawn from the game following the initial head injury thereby avoiding any further ‘blows’ to the head), Mr Willis will face an uphill battle in terms of establishing causation, that is, that his outcome would have been materially different absent the alleged breach of duty.
For example, as Jonathan Thomas’ treating Neurologist explained to him it is ‘impossible’ to say whether his epilepsy was caused by a single blow to the head or was the result of the cumulative effect of numerous blows to the head sustained throughout the course of his rugby career.
Any neurological expert advising in Mr Willis’ case is likely to be faced with a similar difficulty when trying to pinpoint the most likely cause of any long-term neurological damage which he may have sustained.
The outcome is awaited with interest.