May 8, 2020

Kevin Hyde

Kevin Hyde

Every year an increasing number of Canadians participate in amateur recreational sports. In doing so, these participants, both children and adults, are assuming the inevitable risk of injury that comes with most sports. The question then arises: what are the legal rights of participants in sports when they are injured, either intentionally or inadvertently, due to the actions or conduct of others?

Negligence in Recreational Sport

Negligence is said to have occurred when a person’s behavior or actions fall below a requisite standard of care. The standard of care is usually determined by what an average “reasonable” person would do, or not do, in the circumstances. However, it is recognized that in physical sports there is an implied consent to the ordinary contact and collisions incidental to play, including some contact that is in violation of the rules of the game. The Courts have the difficult task of attempting to define the limits of implied consent by distinguishing the ordinary and expected physical contact from actions that are deliberately and/or unreasonably damaging.

Sport Injuries With and Without Intent

For an action to be intentional, the defendant must have either (a) intended the consequences of his conduct, or (b) the consequences of the conduct must be substantially certain to result. The case of Agar v. Canning (1965), 54 W.W.R. 302 (Man. Q.B.); affd. (1966), 55 W.W.R. 384 (Man. C.A.), held that a player has a right of recovery against another player who deliberately sets out to injure them:

But a little reflection will establish that some limit must be placed on a player’s immunity from liability. … [I]njuries inflicted in circumstances which show a definite resolve to cause serious injury to another, even when there is provocation and in the heat of the game, should not fall within the scope of implied consent.

But what about cases in which the conduct was not done with actual intent, but would still fall below the standard of care of a reasonable person?

The B.C. Court of Appeal addresses this issue in the leading case of Unruh (Guardian ad litem of) v. Webber (1994), 1994 CanLII 3272 (BC CA), 88 B.C.L.R. (2d) 353 (C.A.), at para. 31. In Unruh, B.C. Court of Appeal set out a test for liability for injury during hockey play based on the standard of care principles:

The standard of care test is – what would a reasonable competitor, in his place, do or not do. The words “in his place” imply the need to consider the speed, the amount of body contact and the stresses in the sport, as well as the risks the players might reasonably be expected to take during the game, acting within the spirit of the game and according to the standards of fair play. A breach of the rules may be one element in that issue but not necessarily definitive of the issue.

On this analysis, a person injured during a hockey game does not need to prove either an intent to injure or reckless disregard. The injured player must simply show that the injury was caused by conduct that fell outside of what a reasonable competitor would expect in the circumstances.

Most recently, the Ontario Superior Court of Justice followed the analysis in Unruh in Casterton v. MacIsaac, 2019 ONSC 190. The Court agreed that while a player implicitly consents to some risk of injury inherent to a fast-paced and sometimes physically violent sport,

(a) player’s implicit consent is not unlimited. A player does not accept the risk of injury from conduct that is malicious, out of ordinary, or beyond the bounds of fair play.

In Casterton, the Court went through the analysis in Unruh of first, whether the particular incident was deliberate, and if not, was the conduct either out of the ordinary or outside the bounds of fair play. If it was determined that it was, the defence that the Plaintiff implicitly consented to the risk of his injury would have to be rejected. In deciding whether the conduct was out of the ordinary or beyond the bounds of fair play, the Court in Casterton considered the type of league in which the game was played, the level of play in the league, the applicable rules, and the nature of the game. Ultimately, the Court determined that the Defendant failed to meet the standard of care applicable to a hockey player in a non-contact league by delivering a blindsided hit, whether intentional or not, and damages were awarded to the Plaintiff.

Questions? Need Help?

If you have been injured in an amateur, recreational or professional sport due to someone else’s negligence, we invite you to contact us, the lawyers and staff at Murphy Battista are here to help.

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