First Brain Injury case involving Irish players about to be filed

Quin_Dub

The inevitable looks like it's about to happen - According to the Irish Times , a law firm here is preparing to lodge a legal complaint against the IRFU for players suffering from early onset dementia and other brain related injuries.

There are no names of players involved released yet nor does it say if those involved were International or Pro level players.

According to the law firm, they will likely lodge the claim in September/October.

The issues for the Irish claimants are similar in nature to those of former rugby players in England and Wales, who have been diagnosed with early-onset dementia and other irreversible neurological impairments, which they claim were caused by playing rugby and receiving repeated blows to the head during their careers. All of them have now retired due to concerns over the lasting effects.

“Yes very much so [similar types of issues as the UK players]. CTE [chronic traumatic encephalopathy]. Exactly the same,” said McClafferty.

There is no timeline set out and the pace of the proceedings will be determined very much by the approach taken by the IRFU and their insurers.

“Once the proceedings issue then they just have to take their course,” added McClafferty. “The timeline will be decided very much by the IRFU, the way in which they approach the cases. We can go the long route or go the other route. It is up to the IRFU.”

BoardsMember

The lawyer not exactly sounding like a genius in those quotes...."We can go the long route or go the other route".

sydthebeat

yeah i think this is inevitable.

However i think the IRFU, a bit more so than most of the other RFUs, will have a stronger argument in relation to player safety due to their ownership of the clubs and the protectionist policies followed.

Whilst the effects of the injuries are there for all to see, i wouldnt be expecting an assumption that negligence will be easily proven. The lawyers will have to be able to point to tangible evidence which showed that the RFUs knowingly failed to enact best practise / medical evidence created to protect these players.

https://www.boards.ie/discussion/comment/119392967#Comment_119392967

Is the standard that they knowingly failed to enact best practice, or were reckless with regard to best practice?

sydthebeat

https://www.boards.ie/discussion/comment/119393019#Comment_119393019

thats for the courts to decide, but i dont think its a stretch to consider "being reckless with best practise" as equitable to "failing to enact best practise"

Quin_Dub

https://www.boards.ie/discussion/comment/119392967#Comment_119392967

I definitely think that there is a legal argument to be made in respect of "who knew what and when"

We now know the significant risks etc , but were those risks known and widely accepted 20 years ago or even 10 years ago and perhaps more importantly were the various preventative actions known and widely accepted?

If the various Unions and in the case of the UK & France , the Club owners can show that at each particular juncture they were following what was believed to be "best practice" at that time then legally speaking it may be hard to prove negligence.

None of that makes the situation these players find themselves in any less awful however and Rugby should do all that they can to help them.

sydthebeat

https://www.boards.ie/discussion/comment/119393049#Comment_119393049

yeah thats the crux of the matter.

were the dangers of concussion known and subsequently hidden from players or players misled to the effects?

were players rushed back to playing after concussive incidents against medical advice?

theres certainly evidence to situations where players were allowed to play on after concussive incidents

Quin_Dub

https://www.boards.ie/discussion/comment/119393159#Comment_119393159

There are definitely questions to be answered.

I think everyone saw the famous incident involving Florian Fritz while playing for Toulouse and it's unlikely that that was an isolated one off incident but proving that the governing body deliberately minimised medical information or withheld appropriate action may be very difficult to prove in a court room.

There are loads of factors that will impact liability. Even if the IRFU wern't negligent (followed best practice / advice) the injuries were still obtained by (presumably) employees through the normal course and scope of their work.

This could be pure opportunism on the part of the Solicitors but the IRFU could have done nothing wrong and still end up paying compensation as the damage is directly linked to the occupation.

I suspect the action will also focus on when evidence of links entered the public domain and to what extent and when the IRFU subsequently took action.

My knowledge of this area of law is totally out of date, but there are no shortages of avenues available to the injured parties.

Quin_Dub

https://www.boards.ie/discussion/comment/119393933#Comment_119393933

I'd agree that these players may well be due compensation in the same way that any employee could claim from their employers insurance policy for a workplace accident or injury arising from work , but that doesn't necessarily mean that negligence was at play.

Legally speaking, the challenge may come down to proving that it was the "workplace" that caused the issue and not just horrible misfortune because for every former player struck down by this awful condition , there are many many more that are unaffected having participated in the same games and the same training sessions over the years.

As I said at earlier , these guys should be afforded every assistance that can be provided , but I'm not sure that a legal case seeking to prove negligence is the correct approach.

RichieRich_89

Bearing in mind that these are probably mostly cases from 10-20 years ago (perhaps a bit more recent), I can't help but wonder what the situation will be like in another 10 or 20 years. Most concussions happen in the tackle or ruck, and there are far more tackles and rucks in the game now than there were 15 years ago. I saw one stat that the average number of tackles a side had to make at the 1987 RWC was 48.

Whats the answer? Reverting to the breakdown laws of 50 years ago so 'going through the phases' doesn't happen as much because it's harder to hold on to the ball in the post-tackle situation?

Quin_Dub

https://www.boards.ie/discussion/comment/119394259#Comment_119394259

I'm not sure that it's true that the tackle/ruck area is where the long term damage is necessarily being done - Yes they are the source of the visible incidents which is sort of obvious , but if you read Steve Thompsons story he talks about the constant pressure in the scrum being the big source of problems for him, Hayman says the same thing.

Specifically at training where they'd be putting in 20/30/40+ scrums one after another.

Having played prop at decent level back in the day I can absolutely attest to the impact those "old school" scrum sessions would have had.

I can remember doing pre-season sessions against a neighbouring club and doing 50+ scrums over the course of maybe 90 minutes and being utterly ruined for the next few days as a result.

Thankfully no one does that sort of thing anymore.

https://www.boards.ie/discussion/comment/119393033#Comment_119393033

I'm trying to remember my classes on this area and iirc, there's a test of whether it was reasonably foreseeable that these practices would lead to health impairment. I think the NFL cases gave a fair warning to rugby tbh, I reckon the IRFU are goosed on this.

https://www.boards.ie/discussion/comment/119395963#Comment_119395963

If I recall correctly reasonable forseeability is more in relation to proving actual negligence. The IRFU don't need to be guilty of negligence for them to be required to pay compensation.

If they were found negligent that would lead to (potentially significantly) higher damages however.

Lots of people finish sport with life long injuries as a result of partaking. This case is obviously about massively consequential injuries but sport leads to wear and tear that is never expected to be compensated for.

I honestly think the employment aspect and employer liability is going to be one of the more significant factors for the above reasons. If you pay someone to enter rucks and make tackles you inherit some of the liability for the damage caused by that forseen or otherwise.

I remember reading a case years ago about injury compensation where the person was selected for a team but not paid or contracted but the existence of gate receipts had an impact of their status as an employee. Can't remember the specifics but these are the sort of arguments that are going to be made and will potentially expand the class action in due course!

IMO there'll be zero traction on this until a decision is issued by UK courts...... this is just a 'holding pattern' exercise to see where the ball bounces.

https://www.boards.ie/discussion/comment/119394077#Comment_119394077

They have to lodge a case in any event, as there is time limits in personal injury actions. I'd rather see this resolved by a non-contentious route but not sure what such a scenario would look like, we're looking at (a possibly large group of) men who might live another 40 or 50 years who may end up needing 24/7 care, the costs of that are staggering to contemplate.

https://www.boards.ie/discussion/comment/119396028#Comment_119396028

I don't want to sound like i'm disagreeing here, but no one signs up to the risk of significant brain damage when they play sports. This is a long way from any normal injuries you may be expected to risk.

https://www.boards.ie/discussion/comment/119396111#Comment_119396111

Sure - I didn't intend to come across in anyway glib, and as I said there are massive consequences at play here. I was merely pointing out that there are plenty of people getting knee and hip replacements before 40 tied directly to their sports careers. There is only so far liability will travel when we're talking about amateur involvement in sport.

https://www.boards.ie/discussion/comment/119396182#Comment_119396182

I agree fwiw - though I think this is going to get messier in years to come. I was at a funeral recently of a guy who had to retire young from a sport, you know how the talk goes, "if he'd stayed fit he was definitely going to an international/intercounty player etc" - he did his knee in in his early 20's and he never fully recovered (athletically that is, otherwise he had a long and happy life).

Nowadays treatment is so much better that he'd probably have gotten his knee rebuilt, played his sport to a high level, and then had it replaced in his early 40's etc. The (slight?) downside of this treatment is that players can now endure much worse injuries (or injuries with worse long term consequence). This changes what people can be reasonably expected to consent to on the pitch, imo.

sydthebeat

https://www.boards.ie/discussion/comment/119395963#Comment_119395963

lets not forget that the NFL were never found guilty of anything... they decided to settle before a judgement was made.

id imagine something similar may occur here with RFUs and WR looking to come out on the better side by providing financial compensation to these players and dressing it as some kind of 'injured players fund', without any admission of guilt.

https://www.boards.ie/discussion/comment/119396522#Comment_119396522

You don't settle a multi-billion case you think you are going to win... but joking (?) aside, who is richer, the NFL or World Rugby? I don't know how deep a fund you'd need for the health care needed here. These are relatively young men looking at decades of care.

tooka

I have said for years the clock is ticking on how the game of rugby is played

all it takes is one settled litigation in any jurisdiction and the insurance companies will demand massive changes to how the sport is played and amateur rugby could be completely shut down as insurance companies will decide not to underwrite.

It’s a ticking time bomb

thebaz

https://www.boards.ie/discussion/comment/119396742#Comment_119396742

Well that would be shame , I am all for making the game safer and questioned the 11 month profesional season - but as an almost ex Sportsman, who played rugby , football and a bit of boxing - have had many injuries including concussion and a permanently damaged athritic knee and damaged shoulder - but I think the benefits of sport far outweigh a non active life - life is for living and hopefully this makes the game safer and not an end to the sport.

tooka

https://www.boards.ie/discussion/comment/119397149#Comment_119397149

I agree 100% but insurance companies are gradually ruining everything from play centres for kids and now professional rugby

law firms and judges are a big part of the problem but insurance companies are even a bigger part of the problem. They are a law onto themselves.

Quin_Dub

https://www.boards.ie/discussion/comment/119396742#Comment_119396742

Insurance companies are why we have the 1M scrum rule at underage and Junior rugby , it's also why the team-sheets all now have to specify which players are "front row capable" - Not a fan of the 1M rule ,but I have absolutely no issue with the latter as it makes total sense.

That came about after a player in Wales was injured in a scrum having gone in to play Prop in a junior game when they had never played there before.

tooka

https://www.boards.ie/discussion/comment/119397866#Comment_119397866

I deal a good bit with underwriters and you either dance to their tune or they will deny cover or quote you a premium you cannot afford.

the amount of conditions they will push on you so they can Deny payouts in crazy

Heading towards the second anniversary of my mother's passing due to MND. This story in the link below brings back those sad memories.

https://www.bbc.com/sport/rugby-union/62435376

ohnonotgmail

https://www.boards.ie/discussion/comment/119393049#Comment_119393049

The NFL started studying this in early 2000s. studies around this have shown links between concussion and long term brain injury since 2003/4

Quin_Dub

https://www.boards.ie/discussion/comment/119445809#Comment_119445809

Oh I totally understand that people were aware of the risks in the NFL, but when was the 1st investigation into Rugby and were the various groups following the prevailing best practice at the time based on what was known.

If the guidance from the medical profession was X and they were doing X then negligence is hard to prove legally.

ohnonotgmail

https://www.boards.ie/discussion/comment/119445834#Comment_119445834

Well if it was known that concussions in NFL caused long term brain injury then it is not unreasonable for world rugby to realise that concussions in rugby will do the same and act accordingly.

Quin_Dub

https://www.boards.ie/discussion/comment/119445841#Comment_119445841

Indeed - And what was deemed "Acting Accordingly" 20 years ago and were they doing that or not?

That's the question from a legal perspective , not what they were doing then based on what we know now.

Nermal

https://www.boards.ie/discussion/comment/119396742#Comment_119396742

I'm not convinced. Boxing and MMA thrive.

awec

https://www.boards.ie/discussion/comment/119448229#Comment_119448229

Not the same. Head contact is intended in boxing and MMA, it's unintended in rugby. In both sports you are actively trying to knock someone out. Boxers and MMA fighters know exactly what they are signing up to.

Rugby players don't sign up to get knocked out / take head contact.

tooka

https://www.boards.ie/discussion/comment/119448229#Comment_119448229

Totally different

boxer and mma fighters are self employed contractors , no big deep pockets unions or employers to sue

top boxers might do one fight a year , too rugby players are all go all year

https://www.therugbypaper.co.uk/latest-news/360046/now-wru-lists-brain-warnings-to-players/

I thought this piece was interesting; find it a somewhat strange move from the Welsh Rugby Union.

I would have expected the argument to be from certain rugby unions that players had implicitly or tacitly accepted this risk by the nature of taking part in the game. By now explicitly requesting that all 51,229 registered players in Wales acknowledge the risk, does that not potentially expose the union for injuries which occurred prior to this notification?

tooka

https://www.boards.ie/discussion/comment/119450471#Comment_119450471

2 things on this

1. can you imagine the underwriters reading this article, the premium and special conditions will be outrageous, millions
2. all medical staff member working in professional rugby will be looking for new jobs, they won’t want their name associated with this

ionadnapokot

Very sad to see these men suffering.

Unfortunately im sure there will be allot more suffering and more cases as a result.

https://www.rte.ie/sport/rugby/2022/0929/1326135-ex-irish-rugby-players-to-sue-irfu-in-concussion-case/

Dubinusa

It's inevitable really! That's what is so concerning about rugby as a whole? A lot of players suffered head trauma.

CIARAN_BOYLE

https://www.rte.ie/sport/rugby/2022/0929/1326264-jackman-rugby-remains-a-safe-sport/

It's sad to see Jackman talking about safety in rugby.

I have some of his first season as a pundit seared into my brain where he would talk about how it was a players duty to falsify baseline concussion assessments. That way the doctors could ask basic questions like 2+2 and he could get it wrong by answering 5 during a hia and still get back onto the field.

When he mentions the word safety I always want to throw up a little.

https://www.boards.ie/discussion/comment/119683181#Comment_119683181

Yeah; he's still talking the same tired old narrative that it's all just about "teaching them the right technique", essentially claiming players are themselves responsible if they tackle incorrectly, and ignoring the widely accepted medical fact that you can incur a concussion from virtually any type of collision on the field of play, not just direct hits to your head.

jackboy

https://www.boards.ie/discussion/comment/119682608#Comment_119682608

It’s mad. We watch our high profile players get obvious brain injuries on the field. They stagger off the field only to play again a couple of weeks later. We all know the players who are going to have severe side effects in a few years time but the rugby community won’t talk about it, just let the players sustain further damage.

Legal cases like this will finally result in the rules of rugby significantly changing.

ionadnapokot

I was watching the Dolphins game last wk and saw the QB Tua Tagovailoa get pushed to the ground and hit his head. Got up and wobbled and fell to the ground. They sent him back out to finish the game....and Tua said afterwards it was a back injury that made him fall!!!

Last night he got another head knock this time from a tackle where he was swung to the ground and hit his head. Sickening to see the effect it had on him.

NFL had paid out $1 Billion thus far for concussion.

https://www.nytimes.com/2022/08/12/sports/football/nfl-concussion-settlement-race.html

Watching last week it reminded me of what happened to Jeremy Loughman v Māori. The In-game HIA assessments should be scrapped. You go off for HIA and you stay off.

Still firmly believe Sexton should not have played in the second test (even though he played magnificently) considering his history.

edit: Should have sent Sexton home after fist test.

Dubinusa

I wonder if James Ryan is a lesser player due to his concussions? He's svery good and plays at a great level but, is he ever going to be the dominant player he once was?

He is a lad that I cringe at when I see him make tackle. I doubt that he's going to have a long career! Eventually, his health must come 1st?

Rugby is shooting itself in the foot with the disparity of the officiating at the breakdown. I'm not sure if there's a high % of concussions due to the clusterfucks that we see at the breakdown.

I've no answer to making rugby safer other than to get officials on the same page with regards to the breakdown. Maybe longer bans for high hits and reckless play would help?

CatFromHue

Off The Ball had a specialist on concussion on last week which was an interesting listen.

'I wouldn't ban heading in football' - Concussion is a treatable condition - Science of concussions - YouTube

He's studying it so as to treat it if possible.

For the players involved in the court cases they have to show that the IRFU knew about the dangers of concussion and did nothing. I don't think they'll be able to prove this.

A fund raising game or charity might have to be set up to help these guys.

ohnonotgmail

https://www.boards.ie/discussion/comment/119686175#Comment_119686175

Have the dangers of repeated concussions not been well known for a long time? The NFL started looking at it in the 90s.

CatFromHue

"For many years, the risk of suffering a head injury on the football field was viewed as an acceptable hazard of the job. Players who had been concussed would be light-heartedly described as having been "dinged up", but little thought was given to the long-term repercussions of their injuries. Many of those players would return to the field before the end of that game, sometimes just a few plays later.

The NFL first made a first gesture towards take these injuries more seriously by establishing the Mild Traumatic Brain Injury (MTBI) committee in 1994, but critics have since labelled this is as an empty, or even harmful gesture. The lawyer David Frederick, speaking on behalf of former players, described the MTBI as a "sham" during a hearing in April. He argued that the committee ultimately served as a distraction that stopped players from seeking out impartial medical advice."

"On what grounds did the former players sue?

The case against the NFL alleged that it had willfully misled its players over the long-term impact of head injuries. The former players' argument was founded in part on the actions of the MTBI, whose representatives had continued to reject the evidence linking brain trauma to CTE.

As late as January 2010, the committee's co-chair, the neurologist Dr Ira Casson, argued that: "There is not enough valid, reliable or objective scientific evidence at present to determine whether or not repeat head impacts in professional football result in long-term brain damage."

The lawsuit in the NFL was about the NFL knowing these injuries were serious but they ignored them.

Dubinusa

https://www.boards.ie/discussion/comment/119688524#Comment_119688524

Maybe I am looking at this from a different pov but, if you do get concussions, you know it. It's got to be on the players too!

You would know that you are incapable of playing! Why not stand down? Obviously, the franchise is at fault as are the medical team but, there must be liability on the player. Is the player not insisting that he be rested? The players have to put their health first. If they are not feeling right, they should speak up.

The lawsuits are overdue. The affected players deserve compensation and future players need protection. But, I think that some responsibility lies with the players.

naughtyboy

Watching this for a while and the game as we know it is goosed

Insurance companies will decide the future,

I defintely see the number of professional and amateur clubs reducing down in numbers considerably , as soon as the payouts begin and the number of claims increase as a result than that changes everything

ionadnapokot

After the latest Sexton head injury I hope, for his own sake, he's not rushed back, or rushes himself back. The images of him at the RDS awards (post surgery) tugged at the heart strings. He must be protected from himself.

Since Sextons 12 week break in 2014 (when he had 4 'potential' concussions) I've counted 12 Head impacts of which 7 of them I classed as 'potential' concussions (Failed HIA 1).

Just to note I would actually class most of these head impacts as a concussion.

“It is most unfortunate and I feel bad for the club,”....“but I’m still not feeling 100%, and with injuries like this it’s not worth taking any risks.” - Sexton Dec 2014

In his first game back after Concussion stand-down:

v France 14th Feb 2015 Head Impact No.1 - Split by Basteraud in head to head collision. Went off field 44'-55'. Came back on to fin game.

+15days v England 01st March 2015 - Sexton 54' Hamstring

v Wasps Jan 23rd 2016 Head Impact No.2 - Head clash 9' HIA* Potential Concussion No.1

Leinster head coach Leo Cullen said Sexton had failed his HIA, while the province’s official Twitter account also tweeted that the out-half had failed the HIA.

*However, Cullen said this afternoon that Sexton had passed the HIA, but added that the province’s doctor wasn’t 100% satisfied to send Sexton back into the game.

+15 days v Wales 7th Feb 2016 Head Impact No.3 - Sexton 75'. No HIA*

*"I'm okay now, I just got a bang on top of the head and it just compressed my neck a little bit. But I'm fit to go and really looking forward to it.

+6 days v France 13th Feb 2016 - Late hit by Maestri 14' - Sexton 69'

"Johnny Sexton, with his neck and shoulder, it's more of a whiplash injury,"

So how many concussions have you had? - IT Feb 27th 2016

“There were other occasions when I had one or two minor symptoms. It’s a grey area, but I’d say I’ve had two proper ones. Two,” - Sexton

https://www.irishtimes.com/sport/full-steam-ahead-johnny-sexton-speaks-his-mind-1.2550374

+14 days v England 27th Feb 2016 - Sexton 76'

v Scotland 19th March 2016 Minor Head Impact from Dunbar suplex on Sexton 67' - Sexton YC 76'

v Montpelier 13th Jan 2017 Head Impact No.4 - Steyn RC 27' Clothesline to the head* - Sexton 69' HIA*

*Passed HIA 1 in four to six minutes & Leinster said it was to the neck

https://www.the42.ie/johnny-sexton-leinster-castres-3189498-Jan2017/

+ 8 days v Castres 22nd Jan 2017 - Sexton 22' Calf injury

v Wales 10th March 2017 Head Impact No.5 - Davies knee to head - HIA*

*Passed HIA 1 and returned to play.

+ 8 days v England 18th March 2017 - Played 80'

v Exeter 16th December 2017 Head Impact No.6 - Kvesic shoulder to head - Sexton 3' HIA* Potential Concussion No.2

*Failed HIA 1

+16 days v Connacht 01st Jan 2018 - Played 80'

v Scotland Feb 9th 2019 Head impact No.7 - Sexton 24'** HIA* Potential Concussion No.3

*Failed HIA 1

**Bang to head 17' and Played on. Taken off 24'

+15 days v Italy 24th Feb 2019 - Sexton 78'

v Connacht 2nd Jan 2021 Head impact No.8 - Sexton 24' HIA* Potential Concussion No.4

*Failed HIA

+36 days v Wales 7th Feb 2021 Head impact No.9 - Knee to head - Sexton 75' HIA* Potential Concussion No.5

*Failed HIA 1 and presumably 2 & 3

+20 days v Italy 27th Feb 2021 - Sexton 80'

v Exeter 10th April 2021 Head impact No.10 Sexton 27'** HIA* Potential Concussion No.6

*Failed HIA 1

**Shoulder to head on 23' and Played on. Taken off 27'.

v Wales 5th Feb 2022 - Josh Adams YC for shoulder charge into Sexton 48' - Sexton 64'

v NZ 2nd July 2022 Head impact No.11 - Sexton 31' HIA* - I think he was concussed and should have been sent home.

*Failed HIA 1 & passed HIA 2 & 3

+ 7 days v NZ 9th July 2022 - Sexton 74' - Played one of the games of his life.

v Connacht 1st Jan 2023 Head impact No.12 - Head on head - Sexton 63' HIA* Potential Concussion No.7

*Failed HIA & has an operation on injury Jan 3rd (?Broken Cheekbone?)

+ 33 days v Wales 4th Feb 2023

sprucemoose

https://www.boards.ie/discussion/comment/120084069#Comment_120084069

as important as he is to ireland, i think he should have retired a while ago, i shudder to think of the repercussions that are coming down the line. might not agree with george hook on alot of things but i think his speaking out on the issue a few years ago was completely correct

ionadnapokot

https://www.boards.ie/discussion/comment/120084231#Comment_120084231

I also thought he should have retired. After the WC would have been the time. Amazingly he played prob the greatest rugby of his career from Nov 21 - Nov 22.

Cant remember what Hook actually said. Generally the commentary about concussion is inflammatory. One of the reasons is because the concussion information flow coming from the national team and provinces is usually grey and sometimes contradictory.

The NZ tour (Sexton and Loughman) and Nov internationals (White) just underlined that the concussion protocols are not fit for purpose.

With all the cameras, tmo, medics and independent doctors they make significant errors. I dont want to be hyperbolic but these are errors that impact lives.

https://www.nzrugby.co.nz/news-and-events/latest-news/nz-rugby-statement-on-ireland-prop-jeremy-loughmans-head-injury-assessment/

https://www.bbc.com/sport/rugby-union/63792321

If there is a head impact and a suspected concussion the player should go off and undergo the HIA. But they must stay off and not return to play for at least 16 days.