I fear more rugby players will die before brain injury lawsuit comes to trial
Imagine the brain injury lawsuit as a plane. When the legal action was first announced in December 2020, hundreds of players boarded the flight in eager anticipation of swift justice and a potential payout against rugby’s authorities whom they hold responsible for the brain injuries they suffered while playing the sport they loved.
But then having boarded in such giddy excitement, the plane has remained resolutely stuck at its gate for the past four years as the case has rattled through multiple case management hearings without a hint of forward progress. Only now has the plane been cleared for take-off, with Senior Master Cook declaring that an actual trial might be “two to three years” away. Such have been the delays up until this point that most people saw this as a breakthrough.
Sitting in the Royal Courts of Justice for the past two days listening to interminable arguments about disclosure, it was easy to lose sight of those people who should be at the centre of this case, like Kenneth Todd, a former rugby league player for Whitehaven, whose death merited the briefest of passing mentions. I wondered, grimly, how many more will die before the opening arguments are made.
Or when Susan Rodway, the KC for Rylands Garth representing the claimants, made a fleeting reference to players being hard to track down because they are “sleeping in cars”. Again I thought how many of those 386 former union and 177 former league players involved in this case were counting on a quick no-win, no-fee payout to alleviate their dire personal circumstances.
What is certain is that a lot of people are already getting very rich off the back of this case – and they are certainly not the players who are suffering. Neil Block KC, representing the Welsh Rugby Union, estimated that Rylands Garth could have already spent up to £6 million in medical tests for the case, so at least one cottage industry is doing a roaring trade.
There is plenty of blame to go round here. At one stage, Cook seemed to compare himself to Moses trying to lead his people to the promised land in a bit less than 40 years. To that end, he ordered that both Rylands Garth and the defendants – comprising World Rugby, the Rugby Football Union, the Welsh Rugby Union and the Rugby Football League – must each nominate 28 players to be their lead test claims before the next case management hearing in late July. This will then be reduced to a pool of 21 before trial.
Both sides then must submit their generic defences six weeks before a further case management hearing – the sixth already – which will be held towards the end of 2025, when Cook says “directions to trial can be made”.
The blame, however, cannot be apportioned equally. Cook was dismissive of the request by Michael Kent, the KC representing the RFU, that the defendants should be allowed to conduct their own set of independent medical tests on their nominated players in the pre-selection process.
But Cook’s real impatience lay with Rylands and its haphazard methods of disclosure. Things did not start off on the best foot when Rylands failed to send him the electronic “bundles” of court papers, which led to 15 minutes of faffing around more reminiscent of a student trying to print their dissertation 10 minutes before the deadline than a serious law trial.
Medical information being handled in a ‘chaotic manner’
More troubling were the allegations by William Audland KC, representing the RFL, whose case is being heard in conjunction with rugby union’s, of the “chaotic manner of disclosure” of medical information. In one example, Audland says 302 document files were uploaded into folders without identification of the individuals. “This is [an] electronic version of throwing documents in the air and saying find them,” Cook said.
Cook stated that the medical reports supplied by experts provided by Rylands Garth had failed to state that playing rugby union or league was the cause of the claimants’ brain injuries. “They are the foundation of any liability in a personal injury claim,” Cook said. “I have asked for the claimants to provide medical evidence in relation to causation, not a jigsaw with a piece missing. These are professional experts providing evidence and incumbent upon those experts to support causation by supplying those words.”
Block also alleged that Rylands had failed to supply medical records relating to Alix Popham, the former Wales flanker, among other players. “We have reason to believe documents exist that we have not seen,” he said. Rodway responded that “we [Rylands] have served every single document that we have”, but made the startling admission that not every player had been tested because some were too large and others were too claustrophobic to fit in the machines. She in turn accused rugby’s authorities of employing delaying tactics. “We keep pushing the boulder to the top of the hill only for the defendants to push it back down again,” she said.
In his ruling, Cook indicated that should rugby’s authorities not be in full possession of all the players’ medical records before the next case management hearing, then that individual is liable to be struck off from the case.
Both sides claim they are the ones attempting to force progress and that it is the other who is guilty of delaying. Whether it is one or both sides lying, someone will be getting rich as the meter keeps on ticking towards an ever distant trial date.