It can be hard to successfully sue for a sports injury since, under the law, you voluntarily assume the risk of injury when engaging in sports. Sports have a certain level of risk and therefore injuries are common. The Canadian judicial system has decided that in most cases if you engage in a sport and are injured you can’t sue the other players or the league. You voluntarily chose to participate in the sport knowing there was a certain level of risk to it and therefore cannot hold someone responsible for injuries that occurred during regular fair play. The legal term is “voluntary assumption of risk“.
What sports injuries do not fall under the voluntary assumption of risk?
In a case in Ontario, Casterton v. MacIsaac (2020), the judge ruled that players do not voluntarily assume the risk for injuries from conduct that is malicious, out of the ordinary, or not fair play. The judge further clarified that to determine what is considered out of the ordinary or not fair play one must consider the sport, the league, the level of play, the applicable rules, and the nature (competitive or pleasure) of the game.
In the case of Casterton v. MacIsaac, a man was on the receiving end of a blind-sided hit to the head while playing hockey in a no-contact recreational men’s league in Ottawa. The man suffered a concussion and a traumatic brain injury that affected his memory and ability to focus. He commenced a lawsuit against the player that hit him and the judge ruled that a blindsided hit especially to the head was out of the ordinary and not fair play. The man has not agreed to the risk of a blindsided hit to the head. The judge awarded the injured man $702,551 in damages. To read more on the case click here (ZLINK: Man injured in recreational hockey league wins over $700,000 in lawsuit)
The legal history of voluntary assumption of risk.
The rules for “assumption of risk” have changed over the years. In the case of Agar v. Canning, in 1965 the judge ruled that a player does not “assume the risk” for their injuries if the other player deliberately meant to seriously injure them.
Then in Sexton v Sutherland in 1991 the judge decided that deliberate intent to injure isn’t the only time someone can sue for an injury. He ruled that if someone applies a great force with reckless disregard for the damage it could cause they can be held liable for injuries.
In Unruh v Webber (1994) the judge set out a standard of care test. He decided that a person injured must show that the injury was caused by conduct that fell outside of what a reasonable competitor would expect in the circumstances. The injured person does not need to prove intent to injure or reckless disregard.
In the case of Levita v. Crew in 2015 the judge supported the decision in Unruh v. Weeber. He stated that players assume a risk that they may suffer injury or even serious injury during normal play. However, they do not assume the risk of injury from conduct that is malicious, out of the ordinary, or beyond the bounds of fair play. The judge in the more recent case, Casterton v. MacIsaac (2020), stood by this ruling.
If you have been injured while playing a sport, contact our personal injury lawyers at Equilibrium law. We offer a free initial consultation. Our highly trained and experienced lawyers can build your case and prove that the injuries you suffered were not a voluntarily assumed risk. Contact us today to start your claim.