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LIABILITY FOR RUGBY RELATED NEURODEGENERATIVE

DISEASE: A QUESTION FOR TORT

EMMACAVE
T O R T PA R T A 2 0 2 5
LECTUREBYAHMADWAQAS

Understanding Part A:
Part One (25 per cent of the overall marks) comprises of questions on a previously
seen research article. The name of the article for both the April–June 2025 and
October 2025
exam sessions is:
Cave, E., C. Purshouse, J. Purshouse 'Liability for rugby related neuro-degenerative
disease: a question of tort' (2024) 2 Journal of Personal Injury Law 93–112. The
citation in Westlaw is: J.P.I. Law 2024, 2, 93–112.

There will be four short questions within the article. They can be specific for
particular case law or theory discussed within the article or they can focus on view of
the author on the given subject.

Introduction
• Article focus on governing bodies for their failure to protect players from
known risks associated with neurodegenerative
• Traumatic brain injury (TBI)
• According to author the claims have high chance of success before courts
due to new scientific advances
• This article first assess the impact of considering the governing bodies as
potential defendants, secondly barriers a claimant would face.
• Although the focus would be particularly on Rugby Union however the same
principles can be used in other contract sports.
The claimants
• The potential claimants are former rugby players who experience medical
complications due to collisions and acceleration-deceleration
• Mild TBI is referred as concussion.
• Reports of concussion and sub concussions have increased since the sports
have evolved into more aggressive.
• Because of these concussions many severe problems may arise, including
MND, Parkinson’s and Traumatic Encephalopathy Syndrome (TES).
• TES is Chronic Traumatic Encephalopathy (CTE).
• There is no effective treatment for these.
• Although the public sentiment would blame the players themselves, however
the law does allow recovery for damages on the defendant who owe them
doc. Cleghorn v Oldham

Selecting an appropriate defendant

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• There can be number of potential defendants including governing bodies,

regulatory bodies, employers, coaches, fellow players etc.
• However, the primary focus of claims has been against coaches, referees and
other players to the injuries linked with game.
• No claim has been made for TBI for long tail events.
• There are two reasons for this limitation; firstly, difficult to identify tortfeasor
and secondly due to the absence of rules to reduce risk of concussion, thus
making it difficult to establish breach.
• Rules are formed at international and national level, that set minimum
standards.
• There have been a growing trend in the class actions against the governing
bodies

Limitations faced by the players:

• Statute of limitations (3 years)
• Its unclear whether the governing bodies owe a doc?
• Players willingly take the risk
• Even if there is a doc, establishing breach would be considered difficult.
• Causal link would be difficult to establish as for the omission as there may be
multipule causes
• Claimants consented to the risk

Statute of limitations
• This is not such a big problem.
• Time starts from the discovery date.
• Secondly, judges have discretionary power to allow condonation of delay in
the interest of justice.
Duty of care

• DOC situations now cover “Causing Harm (making things worse) and failing to
confer benefit (not making things better)
• Rachael Mulheron states, "what is a pure omission to one judge can be a
scenario of a positive act to another".
• Coulson LJ said in Rushbond Plc v JS Design Partnership LLP that all
negligence claims involve both acts and omissions
• In Stovin v Wise, Lord Hoffmann believed that the distinction is used "to
distinguish between regulating the way in which an activity may be conducted
and imposing a duty to act upon a person who is not carrying on any relevant
activity"
•
Positive act or omission

• Case of Sutradhar v Natural Environment Research Council, Nicholas

McBride uses to illustrate the difference between acts and
omissions. (Bangladesh drinking water case against the authority) Court didn’t
find doc due to lack of proximity
• The defendant didn’t make claimant worse off.
• According to author, Rugby governing bodies by failing to amend the
guidance missed the opportunity to save claimants from suffering TBIs.

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Ahmadwaqas91@berkeley.edu

• Its alleged that the governing bodies failed to take the steps
• needed to improve safety, such as reducing contact in training, reducing
games per season and monitoring players effectively
• High Court of Australia in Agar v Hyde, No doc as no positive act only
omission to amend the rules.
• Position can get changed in English courts as omissions create doc.
•
Assumption of responsibility

• Assumptions of responsibility have been held to exist when the defendant and
claimant had no pre-tort relationship or interaction with one another and even
where the defendant has explicitly declared that they are not assuming
responsibility to the claimant.
• Sandy Steel outlines four potential versions: a. Reliance, Promise, Taking
on a task and Role or relationship duty
• Steel maintains that the law has not taken a clear position on Reliance;
• Donal Nolan’s survey of the law concludes that assumption of responsibility
involves A taking on a job or task for B.
• Lord Sales; "central unifying feature" of the "core category of case”
• “that the parties had a relationship in which it was open to the defendant to
have bargained in respect of the risk involved in taking on a task for the
claimant, in a context in which the defendant invited the claimant to rely on the
due performance of the task".

Case law on Assumption of responsibility;

• Poole BC v GN, Lord Reed stated, "The assumption of responsibility is an
undertaking that reasonable care will be taken, either express or more
commonly implied, usually from the reasonable foreseeability of reliance on
the exercise of such care.”
• In a Supreme Court case of HXA v Surrey CC, Lord Burrows and Lord
Stephens believed that it might sometimes be "inappropriate” to insist on
specific reliance "in any real sense" such as situations where the claimant is a
vulnerable child.
• The view of the courts is thus showing that each case will be dealt separately
and that there is no universal formula for assumption of responsibility.
• In the given situation the definition provided by Steel “promise” definition is
least appropriate.
• However, aspects such as reliance, taking on the task and role can be
associated.

Cases in which DOC established

• Watson v British Boxing Board of Control (doc for governing bodies for
boxing)
• Boxing Board had already made several stipulations around medical care
and might therefore be reasonably expected to govern care at the ringside.
• "where A places himself in a relationship to B in which B’s physical safety
becomes dependent upon the acts or omissions of A, A’s conduct can suffice
to impose on A, a duty to exercise reasonable care for B’s safety".

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Ahmadwaqas91@berkeley.edu

• Hayden Opie points to several ways in which Watson could be

distinguished. There was no indeterminate liability risk in Watson, as was
present in Agar case.
• However, Rugby related injury is very wide scale and risk a potentially
indeterminate liability.
• The counter argument is that, since this would apply to players who after
having concussion returned to play, the class would get restricted. This may
present difficulty in the issue of causation.
• Accordingly, Watson might be distinguished on the basis that rugby and
boxing are fundamentally different.
•
Comparisons with other sports

• Rugby can be compared with horse racing

• In any event, it is difficult to identify a principled rationale for treating rugby
and boxing differently in this way. Like rugby, boxing is a sport with a long
tradition of grass-roots participation, open to all ages and abilities.
• Although in boxing the injuries are direct and intentional however even in
rugby the injuries are at least oblique
• the governing bodies of rugby might well have assumed responsibility "for the
control of an activity" the essence of which is "that personal injuries should be
sustained by those participating"
Concluding remarks for DOC

• the strongest case for establishing an analogy with Watson will focus on the
failure to act appropriately when a concussion occurs rather than failures to
prevent concussion/s.
• We note that Lord Phillips MR did not rule out the establishment of a duty of
care on analogous facts:
• "In any event it would be quite wrong to … [formulate] 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."
•
Breach

• No direct authority on this point.

• Donal Nolan argues that sporting cases must be distinguished from
traditional approach kept in OLA and Public authorities
• lower standard of care is not appropriate merely because there are inherent
risks in sport because, as we explore below, negligent conduct cannot be
consented to.
• General rules for breach needs to be applied.
• The first complexity arise, as the risk of injury must have been reasonably
foreseeable at the time of the alleged negligence and the courts will be wary
of hindsight.

When injury was discovered:

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Ahmadwaqas91@berkeley.edu

• The risks associated with TBI in contact sports have been known for some
time, though knowledge as to the precise causes and effects continues to
evolve
• A report in 1997 from the American Academy of Neurology reported that
repeated concussion could lead to cumulative neurological damage.
• the first concussion protocols were not introduced until 2003 and, even then,
were vague and relied on subjective assessments.
• As per Tomlinson [2003] UKHL 47; [2004] 1 A.C. 46 at [34] per Lord
Hoffmann.” Once a risk is reasonably foreseeable, a balancing exercise is
undertaken where the reasonable person weighs up the probability of injury,
its severity, the cost of taking precautions and the social value of the activity.
•
Social Value argument

• In case of reoccurrence the injury would be severe.

• The cost of amending the rules of games are also considered. It will take
away “enjoyment of the playing and watching the game”
• One important factor to be considered is the social value of the activity. Both
under common law and (Compensation act 2003), which requires courts to
consider whether such action would prevent or discourage activities
• Furthermore, Social Action, Responsibility and Heroism Act 2015, was D
acting for the benefit of society.
• Taken together with the common law, they indicate that the courts will be
mindful of the need to balance risk mitigation and the social value of the
game.
•
Other factors to breach
• Common practice argument, How other sports governing bodies have
responded will also be a consideration for the court.
• There is a high threshold in finding negligence in sports. ( Tylicki v Gibbons),
horse racing sports. “some risk of injury is an inevitable part of the game.”
• The Concussion in Sports Group (CISG) is an international
group conducting research and issues statements.
• Acknowledgement on CTE has been evolving from 2002 statement to the
acknowledgment statement given in 2017
• The court might consider that governing bodies justifiably reflect this cautious
position. On the other hand, it might take into consideration ethical and
methodological criticisms of the consensus statements.
• However, the authenticity of these statements are questionable thus it cannot
be certainty how breach of duty is established or not.
•
Insufficient warnings

• Risks could not be considered obvious to claimants, even if they should have
been known by the governing bodies and hence the governing bodies should
have issued rules to keep players reasonably safe.
• In Woods v Multi-Sport Holdings Pty Ltd, in this case Australian high court
dismissed the claim for eye related injuries in indoor cricket, as the injury was
obvious. However, it wasn’t obvious in case of Rugby,

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• In US, such a claim was settled on the failure to inform in 2016. In England
and Wales, a claim for negligent non-disclosure of risk arises if the defendant
failed to exercise reasonable care.
• Thus, breach can be established on two grounds:
• A. governing bodies have failed to take reasonable care to ensure players
are monitored effectively and have suitable recovery time before returning to
play.
• b. Failure to inform them regarding risks associated.

Causation

• Even if C, overcome the issues of doc and breach, there will be a

considerable issue of causation.
• Professional and international players are more prone to the risk of
developing MND.
• Rugby claimants must show a causal link between the alleged negligence of
the governing bodies and the injury, demonstrating both factual and legal
causation.
• There would be lesser issue of legal causation however there may be an
issue with factual causation.
• If it is found that the injury would likely as not have occurred regardless of the
governing body changing the rules, then there will be no causation Barnett v
Chelsea.
• It would be easier for patients of MND and Parkinson’s to prove the factual
cause rather than TBI associated risk.
•
Issues related to factual causation:

• multiple discrete competing causes; the claimant must show which of the
alternatives caused the injury.
• Second involves a modification of the but-for test where cumulative effects to
which the defendant materially contributed make a more than negligible
impact to the injury
• Third, when the claimant cannot prove material contribution to injury but can
show that the defendant has materially increased the risk of injury.

Double the risk

• Where its not clear which act caused the injury, then law allows
epidemiological (statistical) evidence to establish a link, without requiring a
detailed scientific account of the link Sienkiewicz v Greif (UK) Ltd
• This approach will not apply if multiple causes operate cumulatively.
• However, statistical evidence might be compiled to show that one of these
causes was more than twice as likely as all the others put together to have
caused the disease.
• If omission is more likely than not, then factual causation would be
established.
• The doubling of the risk approach is used with caution: "A doubled tiny risk will
still be very small."
• There are modern changes in finding the causes; firstly, diagnosis of CTE was
only possible post mortem due to limited investment in longitudinal research.

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Ahmadwaqas91@berkeley.edu

• However, a 2021 consensus statement sets out criteria for ante mortem
diagnosis of TES, which is associated with CTE.
• Secondly, repeated concussions and enhanced risk of long-term cognitive
deficits.
•
Material contribution to damage
• C can also argue, cumulative causes that built up over time with repeated
exposure to TBIs
• Claimants might argue that failures to amend the rules materially contributed
to the damage.
• Even if the cause of injury is partially "innocent" (such as non-tortious TBIs or
environmental factors), the "guilty" omission to amend the rules arguably
materially contributed to the indivisible degenerative disease
• Bonnington Castings v Wardlaw, Stephen Bailey therefore argues that,
properly understood, Bonnington can be explained on the but-for test
• Although the law on this area is ambiguous, Bailey v Ministry of Defence,
• it was thought the indivisible nature of degenerative disease would bar use of
the material contribution exception
• Holmes v Poeton Holdings Ltd the Court of Appeal held that the material
contribution test applies to indivisible as well as divisible injuries, however
divided it between generic causation and individual causation.
• Wilsher v Essex AHA,
• rugby claimants will seek to build on the potential claim for indivisible injury
and argue that the evidence base is more substantial than was the case in
Holmes.
•
Potential arguments for Rugby Players
• They would argue that
• (1) the clinical diagnosis of CTE is based on repetitive sequential TBIs, ruling
out environmental factors as the probable cause;
• (2) the evidence on second impact syndrome and/or risk of TBIs is sufficient
to make out a more than negligible contribution of the governing body
omissions to the injury; and
• (3) medical science cannot establish whether the injury would not have
occurred but-for the negligent omission
•
Material contribution to risk
• Even if C establishes factual cause, there is an additional issue. Defendants
might argue that there was not a single agent, but rather the injury resulted
from consecutive or alternative events.
• exception to the but-for test set out in Fairchild v Glenhaven Funeral
Services Ltd.
• This would be helpful for those claimants who has one episode of concussion,
and they were able to document it. Like in Fairchild Claimant couldn't
establish any individual employer yet, each one of them held to materially
contribute to the injury.
• The rule of Fairchild can be extended to other situations as pointed out in
McGhee v British Coal Board.
• However, some courts restrict its application as evident In Ministry of
Defence v AB

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• “As the evidence mounts there is an increasing prospect of rugby claimants

demonstrating that the historical failure to amend the rules either doubled their
risk of neurodegenerative disease or that neurodegenerative disease could be
attributed to cumulative causes to which the governing bodies’ omissions
materially contributed.

Defences

• The defence of volenti non fit injuria will apply where the claimant voluntarily
assumes, rather than merely knows of, the risk.
• This once-popular defence is difficult to satisfy where the consent must be to
the negligence. Nettleship v Weston [1971]
• Notable, in history this defence has been successful in claims for sport injuries
Simms v Leigh Rugby Football Club Ltd
• Now the times have changed, In Watson, it was held that a boxer did not
consent to injury resulting from poor safety arrangements put in place by the
governing body.
• Similarly, the notion of contributory negligence would also not be helpful to
reduce award for the damages
•
Conclusion
• The argument posits that rugby governing bodies may be liable for
neurodegenerative conditions in players due to historical failures to
adequately warn of risks and amend rules to reduce dangers.
• Establishing liability in negligence is complex, requiring claimants to
demonstrate that risks of repeated traumatic brain injuries (TBIs) were publicly
known, players were inadequately informed, and governing bodies failed to
implement reasonable safety measures.
• Players who suffered repetitive TBIs between the early 2000s and mid-2010s
may have stronger claims, as safety measures were not yet fully
implemented, while post-2010s claimants face additional hurdles due to
improved protocols.
• Elite players, with extensive exposure and recorded evidence of injuries, and
youth players, who may argue for special protections due to vulnerability, are
potentially advantaged groups.
• Claimants must show that governing bodies failed to take reasonable care to
prevent injuries, akin to the Watson case, though proving causation in long-tail
injury claims remains challenging.
• Advances in diagnosing chronic traumatic encephalopathy (CTE) ante
mortem could strengthen claims by providing robust evidence linking
repetitive head injuries to neurodegenerative conditions, potentially enhancing
the prospects of establishing liability.

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Ahmad
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