Drop group action and examine selected cases
I WAS very struck the other day by our conversation with Luther Burrell on The Rugby Paper podcast when the former England centre revealed that in his marathon career he had not required one surgery, had not incurred one major injury to limbs or torso and had suffered ‘just’ one concussion which he spoke about eloquently and how he resisted any temptation to return until he felt normal again.
Luther also candidly admitted that the concussion came after he, the tackler, went after Brad Barritt, a big rival at club level and for national honours, in a huge match for Northampton against Sarries and got the tackle all wrong. His fault entirely, a split-second misjudgement in a dynamic and fast-moving game involving big collisions. If anybody was to blame it was him.
Now Luther was no shrinking violet. He was a big strong unit required to truck it up in midfield every week and land big hits on his opponents. He went at it hammer and tongs at elite level in union and league for 16 years or more and he conceded that his lack of big injuries and surgeries and ‘just’ the one self-inflicted concussion was probably a combination of luck and genetics. His lack of injuries could be considered a little random, just as somebody’s much worse experience with injuries could perhaps also be considered random.
Now this, objectively, is a little problematic for those bringing the group legal action on concussive injuries which, we read, is about to enter a new phase in the coming weeks. If Burrell’s lack of injuries could be considered a little random, are we to view another player’s plethora of injuries and concussion partly down to luck and genetics?
There are things we just can’t control and for whom nobody can be deemed culpable. In a column two years ago now I outlined how two individuals playing in exactly the same positions for the same number of seasons, similar game time and workload, might have totally different experience with concussion injuries – accumulated or specific – in retirement.
So how in that instance does the legal system apportion blame and liability when one – in fact the majority – of the individuals present no neurological issues from pretty much the same rugby experience.
The thing is we live in a blame culture – I blame (there you go) mainly the Americans and their insatiable appetite for litigation and the riches it can harvest – but the truth is blame is very often fiendishly difficult to prove and apportion and therefore imposing retribution and compensation can be very tricky. As I suspect we are about to find out.
It’s so complex. Some claimants also played rugby league, a few boxed in their youth and or use boxing and sparring in the gym as part of their fitness routine. Others enjoy martial arts. Many played in two, three or even four different countries where different unions and clubs may have different protocols and practices. At what point, if any, can you definitively prove negligence, direct cause and effect.
How do you separate all that accumulated physical contact and those micro concussions to the extent that you specifically blame somebody or some federation or union. I agree with Jeff Probyn who wrote on the subject recently in his column. You can’t, especially when you factor in the responsibility of the player himself. Nobody forces you to play rugby, you play the sport entirely of your own volition. You can stop at any time if you have any reservations.
Some of those in the group action have complete medical records although alas many don’t and the latter needing to locate that data has been one of the main reasons for delay. Others unquestionably went against written or spoken advice from medical advisers and either continued their careers or to come out of retirement. We understand that desire to play, the need to put bread on the table, but can somebody else be blamed for that?
Like the vast majority of you reading this I profess no specialist legal knowledge although heaven knows as a sports journalist we seem to spend half our careers reporting and commentating on judicial decisions, tribunals and lawyer chaired disciplinary committees. For what it’s worth, although aware of their considerable intellect, I’ve always been struck by the almost complete lack of common sense and indeed often fairness in their profession. They live and excel in a world that is often divorced from the practical realities and crippled by procedure.
So here’s the layman’s view. There is a common sense way forward. Drop the group action. It is manifestly too wide ranging, no individual case is remotely the same. A few cases look potentially quite strong, others much less so. Making some kind of ruling based on two or three hundred very different cases is surely madness and is undermining the cause. It’s way too scattergun.
No. What I would do is identify the three or four strongest cases you have. The cases best able to stand legal scrutiny. The cases where there is a full medical record for the entire duration of the individual’s sporting and importantly non-sporting career so that all medical factors can be taken into account.
Cases where there is documentary evidence of what some might consider excessive workload either in training or in terms of actual game time; cases in which perhaps there was a specific major trauma to the brain, a single massive concussion which the complainant believes was badly mishandled; perhaps cases in which there appears to be consensus among a number of examining neurologists because that is more of an issue. Neurologists rarely agree with each other as to a diagnosis.
Cases in which there are no untidy extra factors like crossing to and from rugby league and dabbling in other sports. Cases in which there are other concussive incidents such as RTA or non-sports related falls and tumbles, fights and incidents. Cases in which there is documentary evidence of pressure applied on the individual to play before he felt ready and able after a brain injury or brain “insult” as the medics prefer to call it.
It all sounds a tad clinical and impersonal but that is the stage we have now reached. Fight those few cases – concentrate on them – and if you win one or more you then have a blueprint, or a gold standard as to what is required for successful litigation and who is deemed culpable. A degree of precedent and case law within rugby will have been created. And then work backwards. What is contestable and frankly what isn’t.
Such scrutiny of those few individual cases should also shed a huge amount of light on what has actually been going on. To these eyes the modern game seems much more aware of concussion issues and I have become increasingly aware recently how well the RFU for example dealt with some historical cases but there is always room for education and improvement.
