The final report of the Whyte Review into allegations of mistreatment within British Gymnastics (“BG”), was published on 16th June 2022. In her 309 page report, Anne Whyte QC reached a number of serious and significant conclusions about cultural, policy-based and safeguarding inadequacies at BG and its clubs. The Review found that these failings resulted in the emotional, physical and (to a much lesser degree) sexual abuse of some gymnasts by their coaches. As a result of its findings, the Review included a number of recommendations which one hopes and anticipates will be brought into effect by BG in the near future.

This blog will focus on the findings in the Review that could lead to individual civil claims for the causation and/or exacerbation of physical and/or psychological injuries. It will consider what those claims might look like, draw analogies with other areas of law and offer some practical considerations for legal representatives.

 

Headline conclusions of the Review

The following quotations capture the broad findings of the Review:

  • “gymnast wellbeing and welfare has not been at the centre of BG’s culture for much of the period of review”.
  • “management of safeguarding concerns and complaints by BG and its club has not been consistently appropriate or rigorous, although it improved in a number of ways after 2016”, including noting that many felt unable to raise complaints at all, a reticence that “has been particularly pronounced in gymnastics”.
  • On safeguarding, education, complaints handling and policy implementation, “to its current reputation and financial cost, BG has failed to focus adequately on these areas”.
  • Whilst it had a “plethora” of policies relating to safeguarding, “I have concluded and BG now acknowledges that there is evidence of failings in its implementation of safeguarding policies [and] it also accepts that the functioning of safeguarding mechanisms has in some instances fallen short during the period of review”.
  • There was a coach-led culture “which left gymnasts, especially in [Women’s Artistic Gymnastics], feeling undervalued as individuals and as though they would not be listened to”, “some of these techniques were viewed as normal because they were so prevalent and because too often, other coaches or club personnel stood by and said nothing”, “BG now acknowledges that unacceptable coaching practices were normalised and allowed to develop in some quarters in the pursuit of success”.
  • There was an associated culture of fear “of speaking their minds and of questioning the methods of some coaches … often the gymnast’s fear was borne of the power imbalance in the relationship between talented gymnast and successful coach”.

The reported mistreatment

The drafting of the Review involved a “call to evidence” process by which it invited reports of individual instances of “mistreatment”. The Review summarises this evidence in great detail and breaks it down into the different categories of mistreatment or abuse that it found took place.

Of the 400 submissions received as part of the Review’s call for evidence:

  • Over 50% reported emotional abuse, primarily in training (e.g. shouting, swearing, name calling, gaslighting, excessively controlling behaviour, being isolated if deemed to underperform).
  • Over 40% reported physically abusive behaviour (e.g. physical punishment for inter alia lateness or weigh gain via extra training, physical chastisement by coaches, “requiring gymnasts to train on known injuries thereby causing avoidable pain and sometimes exacerbating injury”, enforcing excessive training loads and hours “leading to physical pain and exhaustion beyond acceptable boundaries”, over-stretching, withholding access to food).
  • Over 25% reported excessive weight management, described in the report as “the tyranny of the scales” (e.g. excessive weighing, cultural pressure, supposedly justified on “health and safety” grounds, control over what they ate, searching their possessions for food, “as a result, some gymnasts suffered from … eating disorders and associated mental health issues”). The report noted that this was within BG’s actual knowledge during the period of the review.
  • More than 90 reported being deprived of water, food or toilets during training.
  • 30 reported sexual abuse (e.g. grooming, assaults and sexualised communications): though “none of these behaviours appeared to be systemic in the sport in the way that the issues of physical and emotional abuse [were]”.
  • The “vast majority” of the reports of physical and/or emotional abuse came from female gymnasts.

Physical injuries

As the above data indicates, the Review found that physical injuries were both being caused by the way in which gymnasts were trained and punished by their coaches, and also being exacerbated. The report cites an unnamed expert to acknowledge that “it is possible to continue training, responsibly, with an injury because gymnastics is a multibody-part sport”, but notes “decisions about this, however, need to be taken with care and in consultation”. The clear implication here is that there must be a fact-specific and multi-disciplinary consideration of whether it is appropriate for a particular gymnast to train in a particular way with a particular injury, and that this is has not been done consistently at BG to date.

The Review found that physical injuries were caused in various ways including:

  • Excessive training loads inappropriate for the gymnast’s age/ weight.
  • Over-stretching (e.g. forcing a child gymnast’s legs into a split). “BG was aware, well before 2008, of the risks that flexibility management could pose to gymnasts and was also aware of associated parental concerns about it”. It had policies that addressed it but they were not clear and had “no adequate instruction or parameters … about the coach’s own physical involvement in flexibility training”. Whilst post-2012 BG recognised that “full body weight should not be placed in a gymnast and that stretching should not cause excessive pain” that was buried in a policy that was “not easily located” and there was no evidence it was brought to coaches’ attention.
  • Excessive training hours. This was particularly a problem in elite arenas: “there appeared to be a tacit assumption that what little guidance about training time as did exist did not apply to the elite gymnasts”.

The Review also commented on the practice of training on injuries (whether caused by the sport or unrelated prior events):

  • Parents “trusted the coaches to know best about the management of their child’s injuries and wellbeing”.
  • “it appears as if the guidance in the BG health, safety and welfare and safeguarding policies was not adequately understood or followed … it does not appear as though BG took proactive steps to monitor and enforce this aspect of policy”.
  • “overall, my sense is that the short term success of the gymnast was prioritised over their long term well-being, in many cases in situations where gymnasts were too long or too powerless to make an informed contribution to decisions about training”.

Any physical injury can sound in damages, provided that it can first be established that a breach of duty caused that injury to occur. In this author’s opinion, gymnasts may have personal injury claims in circumstances where they have sustained physical injuries as a result of their (amateur or elite) training. These might be (1) injuries caused by training whether or not they were unreasonably required to train on those injuries; or (2) injuries caused by an unrelated event but which they were unreasonably required to train on.

In category (1) there are two main separate events for which breach of duty is being alleged: the primary event causing injury, and the secondary event causing exacerbation of injury. There is no reason why a claim could not succeed on the basis of the primary event without the secondary, or vice versa, if breach of duty could only be established in relation to one.

In category (2) the primary event itself may have been negligently or non-negligently caused, so might result in another unrelated defendant. Provided that the injury is divisible the resultant damages can and should be attributed between the two events in the usual way: BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188. If the injury is not divisible, then the defendants will find themselves jointly and severally liable for the resultant loss and damage.

Psychological injuries

Psychological injuries are lightly referred to in the Review as a consequence of emotional abuse and in particular weight-related issues. It is not difficult however to see how any of the forms of abuse described could cause a gymnast, including a child gymnast, to suffer a psychological injury such as depression or anxiety, or a diagnosable eating disorder. If that were the case, the gymnast would be able to consider a claim for damages for that personal injury and associated losses (such as the costs of counselling, loss of earnings if it required them to take time off work, etc), provided they had expert evidence in support in the usual way. A psychological injury might be the only injury sustained or might be suffered alongside a physical injury.

It’s worth noting that whilst the Review does note sexual abuse was suffered by gymnasts, it is not as critical of BG in relation to these allegations as it is in relation to the others. The general explanation proffered is that there was greater recognition of the need to safeguard against sexual abuse, than the more systematic physical and emotional abuse that was more routinely suffered by gymnasts.

Further thoughts from a personal injury perspective

The culture of deference and against speaking out is common to institutions that are relatively isolated from mainstream society and a number of common implications arise. Firstly, the culture might explain why a gymnast, child or adult, professional or amateur, does not speak out at the time of suffering misconduct and why they don’t speak out at all for a number of years.

Secondly, non-disclosure may have the effect of prolonging a gymnast’s psychological injury if it precludes them from seeking treatment or coming to terms with the events, with knock-on implications on their adult relationships, both professional and personal.

Thirdly, it is also a factor that can and should be raised in a gymnast’s favour if they find themselves bringing a claim after the expiry of primary limitation so seeking the exercise of the court’s discretion under s33 of the Limitation Act 1980 to allow the claim to proceed. One of the various factors that the court will take into account under s33 is the reason(s) for the delay in bringing legal proceedings. This is always an extremely fact-sensitive assessment but it is notable that similar reasons have been accepted by the courts in historic abuse claims. In exercising s33 discretion in the Claimant’s favour in FZO v Adams [2018] EWHC 3584 (QB), the court found that “the delay in bringing these proceedings was because the claimant did not recognise that what happened to him at the hands of the first defendant was abuse until his breakdown in 2011 … the way that he had been conditioned to think by the first defendant continued to operate in his mind [after the abuse itself ended]” [at 186].

The fact that coaches are placed in a position of particular trust and authority by child athletes and their parents, renders an abuse of that trust all the more significant. It is also something that can result in compensable injury to feelings/ aggravated damages in accordance with the latest edition of the Judicial College Guidelines and a long line of case law. The current JC Guidelines contain, for the first time in their history, a dedicated sub-bracket for claims for psychiatric injury caused by physical or sexual abuse. Within that sub-bracket the Guidelines indicate that whether or not there is an abuse of trust, and to what degree, is relevant both to the base award of PSLA and also to whether there should be an additional amount awarded for “injury to feelings”: JC Guidelines, 16th edition, Chapter 4(C).

Given the importance of medical evidence to the success of a claim for physical injury arising from sports, it would be best to find an expert to comment on breach who has a knowledge of gymnastics and the standard of care owed within the sport, including the reasonable range of opinion on that issue. The expert(s) dealing with causation, condition and prognosis will not necessarily need such a specialist background, though there would be a benefit to such specialist experience in certain cases:  for example, if the claimant is a professional requiring time away from training and competing to recover from her injuries, expertise as to how much time will be needed without that training or with phased training would be directly relevant to a claim for loss of earnings.

Whether or not the breaches of duty amount to a course of conduct or a one-off incident will not affect the basic entitlement to redress. However, it seems almost inevitable that most in this arena will be a course of conduct rather than a one-off event given the intensity and regularity of training within the sport. A course of conduct will be more likely to result in greater harm, particularly where a gymnast has trained over a number of years which may have included the transition from childhood to adolescence, and it should be easier to prove a causal link between the conduct and the resultant harm in a course of conduct case.

The final consideration is what role this Review might have post-publication. This author hopes that the first role will be to raise awareness: athletes and/or their parents may now be able to recognise that treatment that was hitherto accepted is in fact not normal or acceptable in the sport. The second is to give gymnastics confidence to report internally and/or seek redress externally if they find themselves mistreated in the ways highlighted in the Review. The third is that it can be relied upon by claimants in legal proceedings as evidence generally of the culture that has existed at British Gymnastics to explain, for example, why nothing was said at the time.  And the fourth is that it should, through its findings and recommendations, provide gymnasts with a safer environment in which to train and compete going forwards.

Megan Griffiths is a barrister at 12 King’s Bench Walk and a member of chambers’ sports and abuse teams.

The Whyte Review can be accessed here.