The Jeff Astle case raised the fear of personal injury claims brought by people playing sport. But such claims are unlikely, say Rob Barrett and Nick Goddard
Jeff Astle played for West Bromwich Albion and England until 1977 and he was particularly renowned for his prowess at heading the ball. Of course, in those days the ball was much heavier than it is today and Astle is reputed to have said that it was similar to heading a "bag of bricks". In 1977 his health started to decline rapidly and he died last year at the relatively young age of 59.
At the inquest into his death, consultant neuro-pathologist at the Queen's Medical Centre in Nottingham, Dr Robson, said that Astle had suffered from a brain condition that was likely to have been exacerbated by heading footballs. He said Astle died from a deposition of blood protein in the brain, a condition that may have been genetic. He found "considerable evidence of trauma to the brain similar to that of a boxer. The main candidate for the trauma was heading a heavy ball. It is the repeated trauma that appears to be the problem".
In his decision as to the cause of death, the coroner said that the "type of dementia was entirely consistent with heading a ball. The occupational exposure has made at least a significant contribution to the disease which caused death".
This is the first time that a court has held that heading a football has materially contributed to the death of a retired footballer. In 1998, former Celtic player Billy McPhail argued at a benefits tribunal that his pre-senile dementia was the result of injuries caused by heading a ball. Despite being backed by famous names such as Tom Finney and Tommy Docherty, he lost his case. The fear within the insurance industry is that the Astle decision may have set a hare running that will result in a flood of claims from former footballers.
Our view is that this is unlikely and that even if the claims do come, they will be difficult claims to bring successfully. The pool of potential claimants may not be vast if the heading of a ball is capable of causing injury only in tandem with a genetic condition. The level of repetition required to induce a reaction capable of causing (or accelerating) the onset of dementia may itself be consistent only with a lengthy professional career. Furthermore, the type of ball used in football matches has changed significantly over the past 30 years. A solicitor taking on a case similar to the Astle case would have to look at the information available at the time that the player was playing. In Astle's case, a heavy leather ball was probably the only type available at the time and, if no one knew that it could cause damage, that could affect the validity of the claim.
There have been no long-term trials into the effects of heading a football. In 2001, the FA set aside £116,000 to fund a ten-year study into the effects on the brain of heading a ball. Thirty players were selected to be subjected to regular MRI scans to examine the effects of heading on the structure of the brain.
The findings are awaited, but in the meantime there are professionals who are already calling for the introduction of protective headgear.
The precise form of any protective headgear is itself the subject of debate and there are those who contend that the provision of headgear may itself increase risk under certain circumstances.
Peter Hamlyn, the consultant neurosurgeon who performed life-saving surgery on boxer Michael Watson, said: "The patterns of injury are different in different sports. Headgear may make the injury worse because it provides a bigger target and increases rotational damage, but it may also diffuse the impact."
Equally, it could be argued that protective headgear simply encourages the participants to head balls in a manner that they would not attempt without protection. Witness the physical interaction in a sport with a high level of protective equipment - American football.
Overall, our view is that insurers ought to be receptive to the advancing state of scientific knowledge in respect of these types of injuries, and should keep up to speed in respect of the changing legal landscape.
But at this stage, we doubt that there will be the flood of successful claims that has been trailed in the media.
There will inevitably be test cases, and insurers will require advice in respect of the effect of the same, just as they will require analysis of the applicable science.
Rob Barrett and Nick Goddard aresolicitors in the catastrophic injury unit at Horwich Farrelly Solicitors