Sports Liability - When Are You Just out of Luck? - Diamond and Diamond Lawyers
  • Wednesday, 15 June 2016

Sports Liability - When Are You Just out of Luck?

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Sport can be an exhilarating test of skill and athletic ability.   Millions of Canadians play and compete in amateur sports every year and increased risk may be part of the attraction.  Although the likelihood of being injured in sport has decreased over time, there are times when injuries in sport may cross the line from those inherent to the sport itself, to the unanticipated.   

Legal actions resulting from sporting injuries generally fall into three categories:

  1. Occupiers’ Liability – against the property owner for unsafe conditions.
  2. Negligence of participants causing harm to others as a result of reckless or careless behaviour.
  3. Intentional harm inflicted by participants on others – physical fights between participants.

It can be difficult to prove negligence in a case involving a sports injury.  The law of negligence asks five questions in every case:

  1. Did the person who caused the harm, owe you a duty to be careful?
  2. Did the person who harmed you discharge their duty to the expected standard of care? 
  3. Did that person’s failure to discharge his duty to the expected standard of care, cause you harm?
  4. Was the harm you suffered foreseeable by the person who harmed you, such that they should have known their failure could result in such harm?
  5. Did their failure result in injury to you?

Participants in sporting activities such as hockey, are assumed to have accepted a certain degree of risk that is inherent to playing the game, in exchange for mutual acceptance from other players.  This is not to be confused with the concept of “voluntary assumption of risk” in sport.  Most hockey players are well aware of the violent contact associated with playing.  In fact, most Canadians know a hockey player or three whose teeth were knocked out, or who suffered a concussion during play.  If the harm suffered is in keeping with the inherent risks associated with playing the game, it will be difficult to prove that someone causing that type of harm, was negligent, even where the rules of play have been breached.   

Proving that a participant in a sporting activity “voluntarily assumed the risk” of harm, is a defence that can be used to defeat a claim of negligence.  By voluntarily assuming the risk of a sport, the participant is effectively consenting to accept the risk.  To prove this, the defendant has to show that the injured person agreed to give up their legal right to sue and willingly accepted the risk, fully understanding that they might suffer injuries by participating.   This is difficult to prove without written evidence.  For this reason, many participants of sports such as skiing, scuba diving, or even snow-tubing, are asked to sign “waivers of liability.”  In these cases, the court will be put to the task of carefully examining the wording of the waiver and the circumstances that surrounded entering the agreement in the first place, by asking:

  1. Is the waiver of liability valid?  Did the person seeking to uphold the waiver, know that the person who signed it, really didn’t understand it?
  2. Is the waiver of liability worded properly to catch the harm suffered by the injured party?
  3. Is there some other good reason not to enforce the waiver, for example, would enforcing the waiver of liability be contrary to public interest?

Skiers know that resorts often post large waivers of liability, and print the waivers of liability on the backs of lift-tickets.  Not reading a waiver or not having it explained to you won’t necessarily win you any sympathy with the court. 

Sometimes tempers flare and violence erupts on the ice or field of play.  Intentional conduct causing harm to others in this circumstance, may go beyond the inherent risks assumed by players.   Certainly, players in the heat of the game should not be held to the polite standards of society, but there is a point at which deliberate conduct goes well beyond what is acceptable.  Assault and battery is never appropriate.  Assault in civil cases refers to actions that create the imminent fear of being harmed such as verbal threats, and battery refers to direct contact with someone.  These cases are driven by their facts.  I once had a case involving a man who was severely injured and left disabled during a gentlemen’s league hockey game, after a member of the opposing team struck him repeatedly, after becoming uncontrollably enraged about an accidental hit during play.  My client was left permanently disabled with multiple fractures in his leg.  In that case, the court agreed that the defendant’s intentional conduct was out of keeping with the inherent risks associated with the game.  The court also found the owner of the hockey arena to be liable for failing to enforce its own rules of play and prohibit participation by the player who was well known for his violent tendencies during previous games.

If you’ve been injured while involved in a sporting activity, we would be pleased to meet with you and discuss your case, with no financial obligations.

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