Brain Injury Action Could Transform Claims Landscape for Sports Insurers

08 Feb 2021

The outcome of a  UK  landmark rugby legal case taken by former players against the sport’s governing bodies could have a transformative effect on sports injury claims, presenting significant legal challenges in the future for sports insurers across Ireland, according to insurance risk and commercial law firm BLM.

Recent reports have revealed the declining health of former international rugby players such as that of World Cup winner and British & Irish Lion Steve Thompson who, diagnosed with early onset dementia, no longer remembers his achievements and is now a spectator in any report of his own sporting excellence. He and seven other former international players, also reported to have been diagnosed with dementia, are to present a letter of claim to the sport’s governing bodies ‘for failing to ade¬quately protect their players on this particular issue’. 

Locally it has been reported that the IRFU and former Irish Rugby players will be part of a second wave of litigation on the matter. Since 2010, 10 provincial players in Irish rugby have had careers cut short due to impact-related brain injuries with this figure expected to significantly increase in the future.   

If litigation by these former rugby players results in sports-related neurodegenerative injury being ruled as an industrial disease, it will have significant implications for sports insurance in Ireland and may become a ‘claims battleground’ according to BLM.

Partner and joint head of BLM Dublin, Sinead Connolly comments, “From an insurance and legal point of view, the principle of volenti non fit injuria (to a willing person, injury is not done) is often quoted in sports litigation but often wrongly and so, unsuccessfully. It does not amount to consent to injury through negligence and it seems the intended claim is to be addressed to the governing sporting bodies.

“In elite contact sports, we have seen momentum building in the claims arena in relation to head injuries. Modern science has brought into focus the impacts repetitive head injuries can have on longer term brain diseases and we are seeing that not only in rugby but in GAA and Soccer too. If sports related neurodegenerative injury is classed as an industrial disease then it will become the most significant battleground in any claims that may come, regardless of which sport is involved.”

Partner and joint head of BLM Dublin, Olivia Treston concludes, “The problem is that it is difficult to see how claims for neurological injury from sports participation fit neatly into traditional disease models. Leaving aside all those who have participated, at all levels but have not suffered neu¬rological injury, the question remains at what point the line is crossed to show the sport offered a material contribution to the risk of this particular injury? Is that line different in pro¬fessional tiers of the sport from nonprofessional, when different standards might be expected for employees compared to enthusiastic amateurs?  There are still many questions to be answered and issues to be resolved, but this concern has undoubtedly cast a shadow over player protection in contact sports.”

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Sinead Connolly

Sinead Connolly

Partner and joint head of office,
Dublin


Olivia Treston

Olivia Treston

Partner and joint head of office,
Dublin


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