Written evidence submitted by Dr David McArdle

Submission to the Parliamentary Committee on Concussion in Sport

Part I: Personal Injury Law and the Significance of Watson v British Boxing Board of Control.

Dr David McArdle, Head of the School of Law, University of Stirling

Introduction

This is the first of two submissions to the Committee. Thy both develop out of two co-authored papers on sports-related concussion that have just been published (McArdle et al 2021, DeMartini et al, 2021) and both will offer a different perspective to most of the research into sport-related concussion, hereafter SRC, which focuses almost exclusively on later-life conditions such as CTE and dementia. The reasons for that focus are perfectly understandable and need no repetition here, but I would like to make two points in that regard. First, as a society we need to not ignore the concussive injuries that have immediate consequences and can occur in any sports context rather than just ones where one would might expect injury to occur. Second, in looking at catastrophic injuries that occur in those situations, arguing that either individuals or governing bodies should be liable in negligence are incredibly difficult to sustain. Without commenting on particular situations that might result in litigation, the purpose of this submission is to show why that is the case. Put simply, even if the duty of care has been breached injury arises from it and causation can be established, there are strong arguments that it is not fair, just or reasonable to impose liability. The justifications for that position are outlined below.

By way of introductory caveat, the starting-point for my submission is that as a society, we want people, especially young people, to play grassroots sport, to keep playing and, ideally, to get involved in other ways as we get older. If that is to happen, we need people to coach and referee so that others can play. Parents, volunteers, participants, governing bodies, the media and the wider community all need to be well-informed about SRC, but that has to be achieved without promoting misplaced fears of litigation or discouraging people from playing or from volunteering by pandering to a media-fuelled perception of ‘compensation culture’ which bears no resemblance to reality. This submission, and the one that will follow, are offered in that spirit.

The Challenge of SRC

At both grassroots and professional levels, some situations that give rise to the risks of immediate head injuries have been mitigated in part by formal rule changes – the tackling laws in rugby, bans or limits on heading in football, or limiting short-pitched bowling in cricket – and we must not under-state the importance of those in helping improve participant safety. The rule changes might be a partial consequence of a fear of successful litigation against either governing bodies or individuals, but in terms of advancing a safety culture they are effective only to the extent that the stakeholders abide by them. Otherwise you have what Judith Butler (1990) would call a failed performative – a command which people either don’t hear or don’t obey. Whether one tries to mitigate concerns around sports injuries by governments changing laws, international federations changing regulations or national associations trying to better-inform grasssroots players, coaches and referees, the effective communication of those provisions is no less important than their content. ‘Effective communication’ needs recipients to be able and willing to act on the message, not just to be aware of it, and my second submission will draw on recent research to explore that in more depth.

Personal Injury and SRC

For now, let us return to personal injury law. In situations where concussive injuries manifest themselves within a very short timefame (which might be minutes, hours or days at most) establishing liability on the part a coach or a referee is very hard to substantiate. Leaving aside the intricacies of vicarious liability following the Supreme Court rulings in Morrisons v Various Claimants [2020] UKSC 12 and Barclays Bank v Various Claimants [2020] UKSC 13 and accepting that a duty of care is owed, the difficulty is in establishing a breach of that duty and causation. Even if those challenges are met the public policy arguments against liability would be very strong and difficult to rebut. Referees or coaches would have to get it horribly and spectacularly wrong and the injury would have to manifest itself very shortly after the supposedly negligent act before the potential for liability realistically emerges. Allowing a player who had been vomiting or temporarily unconscious to return to play might reach that standard, but the longer the gap between the incident and the injury, the harder it is to establish causation. And even if causation can be established, arguments about whether it is fair, just and reasonable to impose liability then come into play.

The starting point for that position is the Court of Appeal decision in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, which concerned the police authority’s duty of care to a police officer who suffered psychiatric injury whist on duty at the Hillsborough disaster. It is relevant because of Lord Hoffmann’s comment (at 502) on how the philosophical underpinning of tort law has changed. He said tort law was no longer concerned with providing “a comprehensive system of…restitution or compensation” but with establishing a framework of “cautious pragmatism” which can be used to help answer questions of whether a duty was owed and, if so, with whether it had been breached. That pragmatism, he said, had been especially notable in new or novel situations that did not easily fit into existing caselaw.

IThose ‘new or novel’ situations will certainly include any litigation where the duty of care in respect of concussion and other traumatic brain injuries was allegedly breached in the course of sports participation and the breach caused the injury. Watson v British Boxing Board of Control [2001] QB 1134 remains the starting-point for issues relating to sports and the duty of care at common law. It has nothing to do with referees allowing a situation in which injury could be sustained to develop, as in Smoldon v Whitworth 1996 EWCA Civ 1225 and from Vowles v Evans [2003] 1 WLR 1607, nor with participants being responsible for injuries sustained by another as explored in Caldwell v Maguire [2001] EWCA Civ 154. However the search for a remedy in personal injury law to the challenge posed by concussive injuries would require both the ‘cautious pragmatism’ of which Lord Hoffman spoke in Frost, while learning also from Lord Phillips’ judgment in Watson. Together, they are relevant to individual liability and that of governing bodies.

The legacy of Watson

In 1991 boxer Michael Watson collapsed at the end of a 15-round bout against Chris Eubank in North London. He had been knocked down in the 11th round but quickly recovered and was allowed to continue. He received medical attention at the ringside at the end of the fight but he was not resuscitated until thirty minutes after the fight’s end, after he was transferred to a hospital. Thereafter, he was moved to another hospital where he underwent brain surgery but by then he had suffered permanent brain damage. Watson claimed that the British Boxing Board of Control had been under a duty of care to ensure that all reasonable steps were taken to provide immediate and effective medical attention and treatment in the event of his sustaining an injury, and he argued that the Board had breached that duty by not providing resuscitation treatment at ringside. At first instance, the High Court found for Watson ((1999) Times LR, October 12). The Board appealed, contending alternatively that i) it held no duty of care to Watson; ii) if it did hold a duty, the duty had not been breached; and iii) if it did hold a duty, and if the duty had been breached, its breach did not cause Watson’s injuries.

In the Court of Appeal Lord Philips MR emphasised that the law of negligence should be developed “incrementally and by analogy with established categories, rather than by a massive expansion of a prima facie duty of care” (at 1142) and the unique features of this case meant there was no previous judgments with which a realistic analogy could be drawn. Rather, it demanded close consideration of the case’s own distinctive features, and then the application of established legal principles to them.

Having undertaken this exercise, the Court of Appeal upheld the High Court’s ruling while acknowledging that doing so “broke new ground in the law of negligence.” There were two ‘distinctive features’ of the case which underpinned its willingness to break that ground. First, while “many sports involve a risk of physical injury to the participants, boxing is the only sport where this is the object of the exercise… it could not have survived as a legal sport without strict regulation, one aim of which is to limit the injuries inflicted in the ring. That regulation has been provided by the Board” (1143). Note that the case was decided long before the growth of mixed martial arts, the legality of which is questionable (in England and Wales at least) because it does not have a regulator whose sole concern is participant safety. That will become an issue when somebody sustains a serious brain injury in the octagon. Second and relatedly, “the physical safety of boxers has always been a prime concern of the Board,” (1144). This was evident from the fact that BBBC rules had been designed to either i) ensure a boxer is not permitted to fight unless he is fit; ii) to restrict the physical injuries that might be inflicted and iii) to ensure the provision of appropriate medical attention in the event of injury. The third of these factors was particularly relevant, because the Board’s rules required the event promoter to ensure two approved doctors were at ringside, that each boxer was medically examined immediately after a bout, that there was a stretcher near the ring, and that there was a dedicated medical treatment room close to the boxers’ changing rooms.

All those provisions had been in accordance with the rules; the problem was that the rules did not go far enough to mitigate the risks of second impact syndrome. At 1164 Lord Phillips noted:

Where a blow to the head results in immediate impairment or loss of consciousness, this is normally the result of temporary deformation of the brain caused by acceleration or deceleration of movement of the head.  Effects are usually short-lived and do not produce lasting damage. Mr Watson suffered such an injury when he was knocked down in the eleventh round. Any loss of consciousness was short lived—he regained his feet and walked to his corner.

A primary injury such as that described can have secondary consequences which are much more serious. The movement of the brain within the skull may rupture veins, or more rarely an artery, inside the head leading to bleeding which builds up into a blood clot or haematoma. The rise in pressure inside the skull caused by the haematoma results in distortion of the brain. This can, of itself, result in the restriction of the supply of oxygen to the brain. It can also result in disturbance of the processes of breathing so that insufficient air is taken into the lungs to ensure adequate oxidation of the blood. This can lead to an accumulation of carbon dioxide in the blood, which in its turn can cause swelling of the brain and a rise in intracranial pressure. This sequence can result in cumulative damage to the brain, leading sooner or later to death.

Mr Watson suffered some, at least, of these secondary effects, which were the cause of his permanent brain damage.

This is almost a textbook definition of SIS, mirroring those offered by Cantu (2008), Bey and ostick (2009) and a host of others.

As part of its commitment, the Board had kept its medical safeguards under review “in the light of developing medical knowledge, or (it had) at least purported to do so” (1145). This included establishing a medical panel, and it had explicitly acknowledged that “the medical protection of British professional boxers (was its) main raison d’etre… The Board set out by its rules, directions and guidance to make comprehensive provision for the services to be provided to safeguard the health of the boxer. All involved in a boxing contest were obliged to accept and comply with (its) requirements” (1146). The Court of Appeal said that if the Board’s members had looked beyond their particular and undoubted areas of expertise, it would have been evident that “serious brain damage such as that suffered by Mr Watson, though happily an uncommon consequence of a boxing injury, represented the most serious risk posed by the sport and one that required to be addressed” (1168). Mitigating that required protocols mandating the presence of resuscitation equipment at the venue; the failure to do so and to provide that equipment was the breach of the duty of care owed to Watson. “Had the board's rules required (a) protocol to be put in place, the doctors present could have been expected to have resorted to resuscitation” (1170).

It is important not to lose sight of those two distinctive features that Lord Phillips articulated, and to remember how important the factual circumstances of the case were. Envisaging comparable situations in other sports is difficult because few carry that ‘inherent’ element of injury rather than it being an accepted part of the game.

If coaches, referees or other individuals were the defendants rather than an undertaking like the British Boxing Board of Control, it would not mean that liability would follow even if the duty of care existed, had been breached and injury had arisen. This is because of i) the “cautious pragmatism” of which Lord Hoffmann spoke in Frost and ii) Lord Bridge’s statement in the earlier case of Caparo Industries v Dickman [1990] 2 AC 605, HL. Here, Lord Bridge noted that “the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other (617). At the grassroots level, most coaches and referees are volunteers and there are strong reasons why holding volunteers liable would not be ‘fair, just and reasonable’. If people stop volunteering because they fear being sued, fewer kids get to play sports. But judicial deliberations are unlikely to get to that stage; as noted above it is hard to discern a breach of the duty of care given that, save in glaringly obvious situations like vomiting or unconsciousness, concussive injuries are hard to spot even in the privacy of a doctor’s room. If the harm becomes discernible only after a subsequent incident like a collision with a goalkeeper or even a parent hitting the brakes too hard on the drive home – both textbook cases of second impact – it is incredibly hard to establish causation. Even if causation is established, Caparo has to be considered.

Successful sports negligence actions are never going to be ‘floodgates’ cases. In Watson, the circumstances there were unique and “there was no category in which a duty of care has been established from which one can advance to this case by a small incremental step.” Accordingly, the Watson Court decided that these unique circumstances were such as to give rise to a duty in the absence of an incremental development. That was because Watson belonged to a class of people that was in the Board’s contemplation and it had complete control over an activity that was liable to give rise to injury. Further, its assumption of responsibility for medical matters had relieved the promoter of that responsibility, and if Watson had no remedy against the Board he probably had no remedy at all. “All these matters lead (us) to conclude that the judge was right to find that the Board was under a duty of care to Mr Watson,” said Lord Phillips (1163).

But he also emphasised that “it does not follow (this) decision is the thin end of the wedge. The facts of this case are not common to other sports. In any event it would be quite wrong to determine the results of the individual facts of this case by formulating a principle of general policy that sporting regulatory bodies should owe no duty of care in respect of the formulation of their rules and regulations” (1163). Watson was successful because all the peculiar circumstances of this unique case weighed in his favour, but had the High court decided the other way on the facts, one doubts that the Court of Appeal would have overturned it.

Conclusion

To summarise, unless somebody passes out on the pitch or starts vomiting, concussions can be incredibly hard to spot and it is hard to argue that failure to do so breaches a duty of care. Thereafter, the chain of causation between the failure to spot the concussion and the catastrophic injury manifesting is likely to be broken by a second impact. Finally, there are strong public arguments against liability being ‘fair, just and reasonable.’ These are not situations where i) the risk of harm is inherent in the activity and ii) a regulator has either been entrusted with or taken on the role of mitigating that risk. But personal injury litigation is invariably a lottery; the focus has to be on risk mitigation and supporting coaches, referees, players and parents in understanding the appropriate responses, and I will consider that in my second submission.

Bibliography

Bey, T and Ostick, B (2009). ‘Second Impact Syndrome’ Western Journal of Emergency Medicine X(I): 6-10.

Butler, J (1990) Gender Trouble: Feminism and the Subversion of Identity Routledge.

Cantu , R (1998). ‘Second Impact Syndrome’ Clinical Journal of Sports Medicine 17(1): 37-43.

DeMartini, A, Kim, S, Connaughton, D and McArdle D (2021) ‘Legal Consciousness and the Regulation of Sports-Related Concussion’ International Journal of Sports Science and Coaching forthcoming, https://doi.org/10.1177/1747954120981197.

McArdle, D, DeMartini, A, Kim, S and Connaughton, D (2021) ‘”It Isn’t My Area.” Coaches’ Awareness of Concussion Protocols in Scottish Youth Football’ 30(1) Scottish Affairs 53-73