‘The highest confidence that repetitive head collisions causes chronic traumatic encephalopathy’? Analysing the scientific knowledge in the Rugby Union concussion litigation of England and Wales

Abstract

295 rugby players have begun legal proceedings against World Rugby, the Rugby Football Union and the Welsh Rugby Union. The claimants report they are suffering from chronic traumatic encephalopathy. Among the allegations against the defendants is that the player safety regulations (i.e. the Pitch Side Concussion Assessment and Return to Play protocols) in place at the time of injury were done without proper medical foresight and increased the risks of concussion to players. World Rugby’s safety regulations are informed by the work of the Concussion in Sport Group which maintains that the link between collisions and concussion is unclear. However, recent studies report an unprecedented confidence that sports-related concussion causes brain disease. In 2022, the Concussion in Sport Groups lead author resigned due to 10 counts of plagiarism. This saga risks damaging public respect for both the safety regulations and the science underpinning it. This article examines the state of the scientific literature and considers the challenges in proving (1) the governing bodies breached their duty of care and; (2) the causal link between collisions and brain injury. This article argues that 2022 marked the year that defendants can no longer deny the dangers of sports-related concussion, however, defining the moment when the risks ought to be known remains onerous. On causation, this article examines the principles of material contribution, doubling of the risk, and the material increase in risk. The article concludes with policy considerations inviting an extension of the material increase in risk principle to sports settings.