Steve Thompson, one of the players suing the rugby authorities, won the 2003 World Cup with England but has no memory of it. Photo: Action Images/Andy Budd
Concussion and litigation involving former rugby players has become a huge problem for rugby. The growing toxicity of the debate over legal liability has reached a divisive point that is causing great harm.
Some journalists finally decided that there was responsibility. Some have begun to argue that those who disagree are essentially commercial shills for the rugby authorities. On the other hand, there are now allegations that players are rushing into the thick of legal proceedings fueled by lawyers without winnings or fees.
Before raising the following points and questions, I feel obliged to lay out my credentials in this area so that you can form your own judgment as to the weight of what I say. I am a former international rugby player. I was a personal injury lawyer who handled cases involving thousands of claimants in both the Court of Appeal and the House of Lords. I also have a Master of Science degree, which requires an understanding of research reporting and statistical analysis.
I don't know if there is any liability. I accept that it will be impossible to reach a definitive conclusion on this issue until the medical evidence has been tested in cross-examination. I'm not saying the plaintiffs don't have a case. I say that it is difficult for them to establish this case. If there is liability, plaintiffs deserve damages. Even if this is not the case, rugby should try to help those who are seriously affected and sympathize with their suffering.
Anyone can have an opinion on this issue, but if they are honest, they should form it by addressing facts, and not just ignore inconvenient questions.
The first thing to note is that the NFL's concussion lawsuit is not directly related to this case. Tackling techniques and rules about the legality of head contact were completely different at that time. Secondly, it is incorrect to say that the knowledge attributed to the NFL would, under UK law, simultaneously apply to rugby.
The main issue to keep in mind is the difference between correlation and causation, and this applies to both the law and the science of concussions. It is impossible to cover all medical and legal aspects in this short article. So let's focus on two areas, but keep in mind that there are common threads throughout the topic.
Chronic traumatic encephalopathy (CTE) was first diagnosed by Dr. Bennett Omalu in 2005 after the autopsy of Pittsburgh's Mike Webster Steelers.” According to Boston University, the world's leading CTE research faculty, there is no reliable way to diagnose CTE before death. Claiming “probable CTE” in court will be problematic.
If a player's career ended before 2005, there would be an additional difficulty in proving that Rugby had the necessary knowledge to require him to act under CTE when none was found. It is not enough to say that CTE is the same as previously diagnosed boxer dementia (binge drinking). The dates of knowledge of these states vary, and it can be rightfully argued that boxing, in which one can win by knocking out an opponent, is in a separate category.
Although several media platforms claim that concussion-related CTE causes the brain to attack itself, this is not true, and the truth is slightly but significantly different. They found that in cases of CTE there is a high correlation of abnormal patterns of tubulin-associated proteins (“tau”). They were unable to pinpoint what causes these proteins to malfunction.
Early-onset dementia is also one of the diagnoses said to apply to some claimants, but concussion is only one of 12 possible diagnoses identified. causes. To say that there is a link between dementia praecox and players' concussions is not sufficient for legal liability.
To establish concussion as a cause requires evidence that does not apply to any of the others, or a compelling reason to conclude, that concussion is the main cause.
Another concern is the large body of research showing that retired athletes, including those in non-contact sports, have a variety of psychological and physiological problems that mirror those said to be caused by concussions. To establish liability, plaintiffs must prove that such problems are caused by a concussion and can be clearly distinguished. In any scientific analysis, they will have to pass a test of statistical significance in which the probability that their results are not the result of coincidence is less than 0.05.
The delayed cases will likely continue for another two years, not not least because the plaintiffs failed to properly comply with the procedural provisions and were awarded costs. During this time, some commentators are likely to make further unconfirmed claims, while others will continue to claim that the game is getting soft. None of this helps.
The law does not require rugby to be safe. This requires taking all reasonable steps to reduce the foreseeable risk and informing people of that risk. That's why new safety laws need to be tested and opponents of these moves need to accept this legal duty without complaint. The law does not say that medical procedures performed at a particular time are considered negligent if they are subsequently changed. This requires only that they be accepted in accordance with the significant opinion of similar experts, even if other experts at the time did not agree with it.
I assume that people will continue to promote their views, but polarization, The misunderstanding and misinformation permeating this issue must stop. Let the cases be reviewed so that we know where the responsibility lies and what we have to deal with. In the meantime, would it be too much to ask people to resolve the above issues, refrain from insulting each other, and wait for the matter to be resolved?
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