January 19, 2024
Newsletter – January 2024
BENDING THE RULES? BC COURT OF
APPEAL AFFIRMS LIABILITY FOR LEGAL,
BUT DANGEROUS PLAYS
By Thomas Boyd, Dolden Vancouver, and
Robert Smith, Dolden Toronto
The British Columbia Court of Appeal has affirmed that players in recreational sports leagues can be held liable for injuries resulting from dangerous and reckless conduct beyond that reasonably expected in a recreational league, even if that conduct is allowed by the rules of play.
In Miller v Cox, a soccer player was found negligent for injuries he caused by slide tackling an unsuspecting player from behind. The trial judge concluded that the maneuver was dangerous and reckless because the appellant had no possibility of reaching the ball with his slide tackle. In support of this, the trial judge cited Dolden’s textbook, Sports and Recreation Liability Law in Canada, quoting:
…the “west coast” approach considers whether the actions of the defendant comport with what a “reasonable competitor” would do in the circumstances. Put another way, a plaintiff need only establish carelessness on the part of the defendant to establish liability.
In Sports and Recreation Liability Law in Canada, Lorne Folick, Michael Libby, K.C. and Paul Dawson of Dolden distinguished the “West Coast” approach from the approach followed by courts in Manitoba, Ontario and New Brunswick. The Eastern approach requires more than mere carelessness to find a player liable for negligence. Crucially, as our firm’s textbook notes, the Eastern approach requires “intentional conduct (or at least recklessness)” to prove a player is liable for negligence.
At the Court of Appeal, the player argued that the slide tackle was legal under the rules of the game and that a legitimate defensive play could not give rise to negligence merely because it was carelessly executed. However, the Court of Appeal refused to distinguish a “permissible defensive play undertaken in a manner that creates an unreasonable risk of harm, and an impermissible play.” The Court held that the fundamental issue is whether the risk of harm is unreasonable, meaning whether a reasonable competitor would make the play knowing the possible risk of injury.
This decision leaves open the question of whether a team or sports organization could be liable for a plaintiff’s injuries in situations where the West Coast approach governs.
Case law has shown that the answer to this question of team or league liability is fact-specific. For example, in Forestieri v Hernandez, a slide tackle injured the plaintiff during a recreational soccer game hosted by a university. The recreational soccer league had explicit rules that prohibited slide tackling. The trial judge found the university and team manager liable in negligence for injuries suffered by the plaintiff because the recreational soccer team’s manager had failed to convey the rules of the league to the team’s players before the match. The team manager and the university owed a duty of care to the plaintiff that required them to disseminate and uphold the rules. Also, acts or omissions committed by team or league employees could lead to the imposition of vicarious liability onto the team or league itself.
Based on Forestieri, the duty of care of teams and sports organizers is concerned with setting, teaching, and enforcing the rules. Play-by-play control of individual players goes beyond their capacity. This means that liability could arise from a failure to censure players over needlessly aggressive play, particularly when a player is well-known for routinely pushing that envelope.
Ultimately, mitigating potential risk means that recreational leagues should take active steps to reinforce fair play, in the rules and out of bounds.
Takeaway
This decision affirms that liability can arise even when players play by the rules – the focus will be on whether the risk was reasonable. Assessing reasonableness will depend on evidence from players and spectators, meaning that early identification and interviewing of eyewitnesses will be essential in evaluating potential claims and responding to suits.
For further information or if you have any questions about the above article, please contact Robert Smith, Dolden Toronto, Email: [email protected].
| Editor |
| Cody Mann |
| Tel: 604 891 0366 |
| Email: [email protected] |
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