Hurt in the pocket

Those who negligently cause sporting injuries could find themselves paying out to more than just their opponent

The Journal, December 2006, page 45

Counting the cost of injuries

Regulations made by the Scottish Ministers are causing concern as to the effect they could have on sport. The Personal Injuries (NHS Charges) (Amounts) (Scotland) Regulations 2006, made under Part 3 of the Health and Social Care (Community Health and Standards) Act 2003, are intended to empower the NHS to recover costs of treatment from the party who causes an injury requiring treatment.

The regulations are primarily intended to apply in cases of industrial injury. In such cases, recovery would be sought against the party responsible for the injury in law, e.g. ordinarily the company responsible for the industrial area in which the injury was sustained. There is however no exception to the potential application of the regulations so far as sport is concerned and there are fears that they could potentially be used to recover costs from a sportsperson causing injury to another.

Heather Cook of the British Medical Association has commented: “We are concerned about the implications of ascertaining blame for injuries and requiring the party at fault to pay for the cost of treatment. One extension might see amateur footballers’ injuries blamed on named opponents and the NHS seeking to recover costs.” Ms Cook’s illustration is of course only an example and the principle could potentially apply to all sportspeople.

The Scottish Executive regard the legislation as intended to open the possibility of the NHS recovering costs where one party has successfully sought compensation from another for injury sustained. It is important to note that Part 3 extends to cases where compensation has been paid voluntarily and without admission of liability. Furthermore, recovery may apply where the compensation is paid by an insurance company or directly by the party concerned. Although personal injury actions between sportspeople are comparatively rare, the NHS’s costs of treatment for injuries can be significant and may outweigh the potential damages available to the injured party, albeit to a limit at present of £37,100 under the regulations. The regulations are to come into effect on 27 January 2007.

Sportspeople and sports clubs, professional and amateur alike, ought to ensure that appropriate insurance policies are in place to protect against this risk, both in terms of paying damages to an injured opponent and in respect of medical costs (NHS and private). Insurance premiums may potentially increase as a result. Amateur clubs ought to ensure that their participants qualify to enjoy the benefit of group policies held, for example by being registered with the club, or individual liability may ensue. 

Anti-doping update

The WADA Prohibited List is the cornerstone of the fight against doping in sport, listing all prohibited substances and techniques. Since the inception of WADA it has been updated annually, taking effect on 1 January each year. The 2007 list has been published. With most sports’ anti-doping regulations automatically adopting the new list each year, the differences need to be noted.

In relation to stimulants, the list now makes it expressly clear that all stimulants are to be considered “prohibited” and the list of specified stimulants is non-exhaustive and for example only (save only for very limited specified exceptions). However, a stimulant not expressly mentioned may in certain instances be considered as allowable if it is a substance that is particularly susceptible to unintentional anti-doping violation because of its general availability in medicinal products or it is less likely to be successfully abused as a doping agent. This “out” is likely to give doping tribunals a few headaches, as it does present the possibility of a defence to athletes where before one was not available (the example of Alain Baxter and his American Vicks inhaler being in point).

Separately, scientists in Germany have for the first time discovered how to detect a banned performance-enhancing drug and technique. The protein synacthen is used to stimulate the body to increase production of corticosteroid hormones. This allows sportspeople to train harder; and unlike direct injection of the hormones, artificial stimulation has proved impossible to detect, until now. The use of corticosteroids is banned because, aside from giving users an unfair advantage, they raise the risk of many different health problems, including cancer, heart attacks, impotence and mood swings.

The breakthrough, using mass spectrometry, detects the synacthen by specifically searching for minute traces of the protein, found in the blood only at very low concentrations (around 10 million times less than other proteins in blood plasma), in a technique called immunological purification. To assist the fight against doping, the detection process will need to be approved by WADA, which is thought likely.

    Bruce A Caldow, Associate, Harper Macleod LLPL