Chronic Traumatic Encephalopathy (CTE) and the Characterisation of "Obvious Risk of Harm": Dangerous Recreational Activity, Assumption of Risk, and Other Defences.

Abstract

As athletes who are said to be suffering with the symptoms of Chronic Traumatic Encephalopathy (CTE) move towards prosecuting their Sport Governing Body (SGB) in negligence, a critical aspect of a plaintiff's claim is how a court of law will characterise "risk of harm" in the form of CTE. A general, broad characterisation of CTE as a type of concussion or head trauma would operate to bring defences associated with "obvious risk" into operation and perhaps threaten the athlete's case irredeemably. This article argues, however, that a narrow characterisation of CTE - as a neurodegenerative disease or tauopathy - or specifically as CTE, is appropriate in law and fact. It must be accepted as a matter of logic that the "risk of harm" in the form of CTE is today an "obvious risk" to premier-level contact sport athletes, such that an athlete's claims in negligence against an SGB will, all things being equal, be defeated.