Litigation and liability in concussion research and collaboration

Abstract

This paper explores, first, the common law principles of personal injury litigation explored through court decisions relating to sports injuries in (primarily) England and Wales and, second, the statutory schemes relating to concussion liability in the US. It explores the difficulties of using those civil law strategies as a means of establishing liability for injuries arising from sports-related concussion (SRC) and explains why they are of such limited utility. While proposed class actions over historically-acquired injuries or individual litigation over recent catastrophic injury may have some merit, and while future amendments to the US laws might remove some of their inherent flaws the difficulties in establishing liability for personal injury will always be exacerbated by the specific characteristics of SRC and the legal, factual and evidential issues that arise. For those reasons, the paper considers the potential benefits of other means of concussion prevention and mitigation, including no-fault compensation and mandatory insurance, the more widespread use of effective, nuanced concussion protocols and inter-disciplinary research which engages with doctrinal legal research.