Cases for brain injury are 'inevitable' says solicitor

A concussion-related negligence action against the IRFU is inevitable, a senior partner in a respected Dublin law firm has stated.

Larry Fenelon of Leman solicitors, who are active in sports arbitration, told The Irish Times that an individual who sustains a brain injury arising from playing rugby in Ireland has a case.

“Yes they do have a potential suit against clubs, against schools, against the IRFU,” said Fenelon. “If it was known within the rugby community that, for instance, a player with a history of concussion was played or where guidelines or best practice wasn’t adhered to, well, then they are going to face a potential suit. It’s inevitable, in fact, that it’s going to happen.

“The knowledge around concussion within the general public started gaining traction probably around five years ago but it might well be the case that on discovery that the IRFU or indeed the IRB [re-branded World Rugby] were fully aware of the dangers of concussion and best practice guidelines weren’t issued in sufficient time or that the authorities within the sport weren’t doing anything about it.

Question of knowledge

“It’s really a question of knowledge. When does the knowledge crystallise within the governing sport and the global governing body about the dangers of concussion and did they not do something about it during that period.”

Legal action, Fenelon believes, will occur when current or recently retired professional players are out of the game for a sustained period of time.

“Well, in the professional game those under contract are not going to do it really as they would be biting the hand that feeds them,” he said. “Perhaps when players hit their early 40s and their memory isn’t the best or there is something badly wrong, the neurosurgeon then looks at his medical record and sees rugby and a history of concussion.

“Then it’s a matter of looking back to, say, 2003 and what was the best practice around concussion then and what were the authorities doing about it? If they were doing nothing, yet they knew about it, well, then you have to say a plucky lawyer will take that case up. Definitely.

“The data retention of the governing bodies becomes very important . . . This information is never going to be given up voluntarily. I suspect they will put up a big fight against an application for discovery of documents. That’s where I think the real confrontation is going to begin legally.”

Testimony

The outcome of such a case may come down to the testimony of neurosurgeons, said Fenelon. “The neurosurgery community essentially are going to be the cornerstone of any claim in this regard. You may have to go abroad as the community is so small and may be reluctant to turn on the sport of its choice.”

The National Football League of America is in negotiation to agree a $1 billion (€880 million) deal to settle a class action suit by more than 4,500 former players who claimed the NFL hid the dangers of concussion-related trauma.

“Personal injury lawyers, in particular, are going to look at the class action suits in America and what is required to bring it over the line,” Fenelon continued. “To be fair, global sports are only getting to grips with this.

“The medical community have been voicing their concern around this for some time now. There are certainly players that I know who have had brain injuries arising from playing too soon after concussion.”

Former St Michael’s College student Lucas Neville received €2.75 million in damages from his former school and St Vincent’s hospital after sustaining head injuries.

Fenelon believes another schoolboy case is also inevitable.

“At schools rugby now you have a doctor and physio so their professional ability is going to get sued or their insurer is going to get sued. The referee and his assistants are going to get sued. The board of management of the school is going to get sued. The coach is covered by the board of management. Probably the Leinster Branch are going to get sued and the IRFU are going to get sued.

“They are all in the firing line.”

The IRFU and World Rugby both confirmed last night that no legal action with regards to brain injury has ever been taken against them.