Individuals who participate in sports understand that there is an inherent danger in many of these activities that is a normal part of the game. This is particularly true for contact sports, such as hockey, rugby, football and soccer. However, when someone becomes injured by actions that are not deemed part of ‘normal play’ or within the expected risks of the game, then an injured person may be entitled to compensation from the party responsible for their injuries.
Two recent Canadian trials addressed serious injuries that occurred during recreational hockey games. These cases clarify the difference between injuries arising from inherent risk and those that are associated with reckless or malicious behaviour.
In Levita v Alan Crew et al., 2015, a man filed a tort action after sustaining a fractured tibia and fibula in his right leg, while playing in an adult recreational hockey league game. The then 36 year old man required multiple surgeries including the insertion of two plates and 18 screws, to address the damage to his leg, as well as chiropractic and physiotherapy treatments. The plaintiff, Mr. Levita, testified that his injury prevents him from participating in recreational, employment and household activities. Mr. Levita brought a suit against the player who caused his injury as well as the league, True North Hockey Canada, for non-pecuniary/general damages as well as special damages for his financial losses.
The plaintiff’s injury occurred when an opposing player checked him into the boards from behind, which Mr. Levita alleges was done intentionally or recklessly. He names True North Hockey League as liable because he claims that the check from behind was in contravention of the rules of the league and also, he alleges that True North should have known that the ‘at fault’ player was dangerous.
The trial judge accepted that Mr. Levita’s orthopaedic injury is serious and has a significant impact on his life and mobility. The judge assessed $90,000 in general damages for pain and suffering and about $4,440 in special damages in a subrogated claim on behalf of Great West Life Assurance Company.
However, the judge dismissed the liability action against the defendants in this case, for several reasons. 1) Mr. Levita signed a clear liability waiver and as he himself is a lawyer and understood the risks of the game, he is deemed to have full understanding of the implications of the waiver. 2) The plaintiff played in the league for over 10 years and was therefore aware of the risks and style of play. 3) True North had rules and penalty procedures in place that exceeded those recommended for Canadian recreational leagues. There was also no evidence that these rules were not enforced or that referees were unqualified or that they failed to address aggressive or inappropriate play. 4) There was no evidence that the hockey playing history for the ‘at fault’ player was sufficiently concerning to expel him from the league; in fact, the defendant player had fewer penalties to date, than the plaintiff. 5) Although True North was a no-contact league, contact did happen and was an expected part of the game. 6) Finally, there was no personal history between the plaintiff and defendant player; although the latter was careless in checking the plaintiff, the judge accepted that he was not malicious, nor was he creating an unreasonable risk of harm.
In Zaccardo v. Chartis Insurance Company of Canada, 2016, injuries that occurred during an AA Midget minor league hockey game led a Quebec Superior Court judge to an entirely different decision with respect to liability. This case arose when a (then) 16 year old boy, Andrew Zaccardo, sustained catastrophic injuries after an opposing player jumped up and body checked the boy into the boards from behind, using the force of his entire body. The incident left Mr. Zaccardo with fractured vertebrae and a broken rib, and the injuries to his spinal cord resulted in paraplegia.
The young man now has reduced use of his hands and is confined to a wheel chair. He required several surgeries and spent approximately two years in hospitals and rehabilitation. Mr. Zaccardo is no longer able to walk or participate in many activities, including any sports, which is a devastating outcome for the previously very talented hockey player. His family was also substantially impacted by his injuries, and not unlike the parents of many catastrophically injured victims, his mother gave up her career to care for him on an almost full-time basis.
The trial judge for this case rejected the defendant’s argument that the boy accepted all the potential risks of the game, including body checks from behind. The judge asserted that players are entitled to expect other players to take reasonable steps to circumvent actions that may cause serious harm to others. In contravention of this expectation, witness and video testimony showed that the ‘at fault’ player had enough time to change his direction or at least reduce the impact of his hit. Also, the defendant player had a previous suspension for checking from behind. It is notable that the league entirely prohibited cross-checks from behind, and this rule was clearly communicated to all players, parents and referees. In fact, the back of players’ jerseys display stop signs to remind others that checking from behind is unacceptable.
The court determined that Hockey Canada and Hockey Quebec were not negligent in this case, as they had taken every reasonable action to prevent the type of incidents that led to Zaccardo’s injury. On the other hand, the defendant player was found ‘at fault’ and liable for the plaintiff’s losses. The judge awarded the injured young man about $8 Million in damages, which is the largest sports-related settlement to-date in Canada. The total award included damages for loss of income, attendant care and rehabilitation, and general damages for pain and suffering.
In Zaccardo, the court sent a message that reckless violence is not acceptable, and all sports participants and organisations have an obligation to prevent harm to other players. The judge in this case warned that sports participants are, “entitled to the expectation that other players will take reasonable steps to avoid gestures that are likely to cause prejudice, even within the framework of a dangerous sport.” In another 2016 trial to determine negligence for an injury sustained in a hockey game, Henderson v. Canadian, 2016, the judge summarized that Ontario case law clearly shows that “ordinary carelessness or negligence is not a basis for recovery in cases involving injuries caused by one player to another during a sporting event. Only where there is a deliberate intent to cause injury or reckless disregard for the consequences of one’s actions will a finding of negligence result”.
Essentially, a player can be held liable for injuries that result from physical contact if there was a deliberate intention to injure or if the player’s action were outside the normal scope of play. Certainly, each case is unique and is assessed on its own merits and in consideration of all the circumstances that led up to the injury. If you or a loved one were injured in a sport or recreational activity, call Kotak Law to get an expert and honest assessment of the strength of your case.
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