Every first-year law student is taught the thin-skull principle, wherein the tortfeasor finds the victim as they find them, even if they have a pre-existing condition. I’ve been thinking about this over the past few weeks as I’ve been laid up at home recovering from a concussion and making the slow return to “normal” day-to-day life. Alas, I am unable to pursue damages for the injury (unless my kitten is hiding money in an off-shore account), but the eye-watering $765 million settlement by the NFL to concussion-addled former players has been a particularly prominent recent example of those who have.
Although this is my first (and hopefully last) concussion, as some professional sports have made it very abundantly obvious, once you get one you’re prone to future injuries, the healing process is frustrating and protracted, and the long-term damage is potentially severe and frightening. The interesting thing about the NFL settlement is the argument from the players that the league knew about the potential for long-term damage whilst keeping it hidden from them to ensure that they continued to play.
While this is undoubtedly true, one cannot help but wonder how it was possible, after the first injury (and certainly subsequent ones), that players did not notice that something was wrong. I suspect it ties into another age-old legal concept – willful blindness – in addition to the fact that, particularly for many players of a bygone era, the money simply was not there to the same extent that it is in the modern game. In order to support themselves, they needed to subject themselves to conditions that, for many of them, led to eventual brain damage and associated illnesses such as dementia, chronic traumatic encephalopathy (which stems from repeated concussions and can only be definitively diagnosed post-mortem), and alzheimer’s. If you have two hours (and given the time of year, you probably don’t!), the PBS documentary League of Denial is an outstanding (if necessarily grim) summary of the problems with sports injuries in the NHL.
Unfortunately, while the legal implications are rife, the material that has been published on sports and brain injuries are not (essay idea, anybody?). There are a number of texts on concussions at York Libraries generally, with The Concussion Crisis: Anatomy of a Silent Epidemic cropping up as a particularly notable recent release. Our holdings on sports injuries are, perhaps not surprisingly, largely limited to works on waivers and liability. If you were to do this sort of research, your focus would have to be limited primarily to electronic resources. For instance (hint!), an article-only advanced search for concussion AND liability AND “sports injury” in HeinOnline yields 25 articles. A search using the same terms in CanLII yields 14 cases. It is also worth taking a look at both Halsbury’s Laws of Canada‘s volume on Athletics (available electronically on Quicklaw) and the Canadian Encyclopedic Digest’s volume on Sports (available electronically on Westlaw).
While it is true that the NFL is an American institution, one does have to wonder what will happen should players from the NHL ever decided to follow suit? Certainly there have been no shortage of careers curtailed or ended by these sorts of injuries, from high profile players such as Eric Lindros on down. While it is an area of the law that is relatively underdeveloped, with the sorts of windfalls that have come from the NFL settlement, it is likely that this is a beginning, rather than an end. As litigation surrounding smoking has proven, sometimes time really does tell.