Concussion in sport: The legal test cases that could reshape liability risk

Concussion – described as a type of brain injury by NHS Inform – caused while playing sport is not a new issue.

For more than a century, links between head injuries and long-term brain damage have been examined by a myriad of professionals and experts – but the legal landscape around responsibility and compensation remains uncertain in terms of sports related injury or negligence claims.

That may be about to change, however.

Three group litigation test cases – one involving football, the others rugby union and rugby league – are now making their way through the UK courts. The outcomes of these cases could define what duty of care national governing bodies owe to athletes and, by extension, how insurers respond to associated claims going forward.

Imogen Mitchell-Webb, associate partner at Horwich Farrelly and head of its sports team, told Insurance Times: “There isn’t precedent for this type of thing. There isn’t any concussion case law that we can look at. [These test cases] will be really important at settling whether or not you can sue for historical risk management of concussion risks.”

The test case claimants, comprising of former professional and amateur athletes, are arguing that sporting governing bodies failed to implement adequate concussion risk management at the time they were playing.

Although all three test cases are currently at early stage proceedings, they could pave the way for important legal clarification for the insurance sector.

And, with hundreds of claimants across multiple sports under review, the implications for insurers are vast.

“Players involved in this litigation have played over many decades and insurance obviously is renewed every year and it sometimes moves around to different insurers,” Mitchell-Webb said. “So a lot of the market is involved in this just because it historically goes back so far.

“[Manchester United and England footballer] Nobby Stiles’ family are involved in the football claim, for example, and he was one of the 1966 World Cup winners. So that shows you how far back this issue goes.”

And with the possibility that liability for concussion injuries could rest with different levels of the sporting hierarchy – from national bodies like the Rugby Football Union (RFU) or the Football Association (FA), to global organisations such as World Rugby – insurers could be exposed across many years and layers of cover.

“If [these organisations] were all found to be liable, it would be split between all of their insurers,” Mitchell-Webb noted.

She added, therefore, that “lots of insurers” could find themselves with clients that are liable for historic claims as a result of these test cases.

The price of injury

Quantifying the potential losses that could arise from such claims is difficult, however.

Claims linked to concussion injuries could range from relatively minor complaints to severe, life altering conditions. Mitchell-Webb explained that claims could run from £10,000 to £20,000, all the way up to millions of pounds “if somebody is disabled and if their working career was cut short”.

All in all, Mitchell-Webb said the insurance industry could be looking at claims worth “hundreds of millions” – and that this potential financial risk is already shaping the market, with appetite for insuring contact sports shrinking.

“The appetite from the insurance industry to cover these types of sports and these types of risks now is limited,” Mitchell-Webb explained. “Brokers that we speak to have fed back that it is getting harder to place these risks.

“Typically, [these injury] risks tend to be split up into smaller layers nowadays and [brokers] have to engage the whole market to get these risks covered. Back in the day, when maybe less was known, there was more appetite.”

Risk management, protocols and prevention

Mitchell-Webb noted that there are a number of best practice protocols already in place to mitigate sports linked concussion injuries – including the ‘if in doubt, sit them out’ approach adopted in grassroots sport, which sees coaches removing players from games if there is a suspected concussion – but resource constraints and inconsistency in delivering this method at lower, amateur levels remains a problem.

“The challenge is enforcing that [approach] from top level right through to grassroots,” she said. “[Coaches] are responsible for the kiddies playing on a Sunday, right through to England playing New Zealand in the Six Nations.”

Education is another crucial part of the puzzle.

“If you don’t know what concussion is, you can’t diagnose it,” Mitchell-Webb said, highlighting the burden on volunteers and grassroots referees to know what to look out for in the event of a concussion.

Harry Black, chief executive at Meliora Medical Group – which runs Return2Play, a UK provider of independent, medically led concussion care in school and youth sport – echoed Mitchell-Webb’s view about the need for improved education and risk management.

He told Insurance Times: “There has been significant progress in recent years, especially at the elite level. However, it’s my belief that governing bodies must do more to ensure that robust concussion protocols, education and medical access extend to grassroots and school sport, where most sport participation happens.

“There is still too much inconsistency in how concussions are recognised and managed outside of professional settings.”

He also emphasised the critical role of those on the front lines of youth sport.

“Many grassroots coaches and volunteers are still unaware of current best practices,” he said.

“There is an urgent need for standardised training – backed by governing bodies – to help those at the coalface of youth sport [to] identify, remove and refer players with suspected concussions.”

What happens next?

The UK’s High Court is currently considering whether to allow the test case litigation to proceed as group cases, but Mitchell-Webb predicts it will be “a couple of years” before the insurance industry learns anything substantive in terms of hearings.

Despite this, the impact on insurers is already being felt – and that uncertainty is only likely to grow.

“An answer is always better than a grey area,” she said. “And we’ve got a grey area at the moment.”

If the legal system finds in favour of claimants, it could drive significant changes to how insurers underwrite sports risks. Either way, insurers will be watching closely as the legal and medical understanding of concussion continues to evolve.