Egg-shell skulls or institutional negligence? The liability of World Rugby for incidents of concussion suffered by professional players in England and Ireland

Abstract

The number of incidents of concussion in professional rugby union is increasing steadily. In the English Rugby Premiership, concussion was the most frequent injury suffered by professional players in each of the last 3 seasons. Further, there is developing evidence of a link between suffering repeated concussions and chronic traumatic encephalopathy, a degenerative brain disease. World Rugby’s principal response to the growing problem of concussion in rugby has been through the introduction of the Pitch Side Concussion Assessment and the Return to Play protocols. Few amendments have been made to the playing rules of the sport with the express intention of reducing the frequency with which concussions occur. The article explores whether World Rugby could be found to owe professional rugby players a duty of care under the laws of negligence in England and Ireland. The article then goes on to examine if World Rugby could be found to have acted negligently in its response to the issue of concussion, through the adoption of its concussion management rules and its failure to amend the playing rules of the sport in an attempt to prevent concussions from occurring. Following this, the article analyses the difficulty which a potential plaintiff would face in establishing causation in a negligence action against World Rugby. The article concludes with suggested changes which World Rugby could implement to lessen the possibility of a finding that it has acted negligently in relation to players’ safety.