March 21, 2023 by Alyssa DiSabatino
A recent Supreme Court of British Columbia case points to the difference between the standard of care for sports negligence claims in B.C. compared to the rest of Canada.
In Miller v. Cox, the court found that a recreational soccer player was liable for more than $100,000 stemming from a “dangerous and reckless” slide tackle that injured an opponent. The slide tackle went beyond the risks of the plaintiff’s implied consent when participating in the game, the B.C. Supreme Court ruled.
In her analysis of the standard of care, Justice Wendy Baker found that “while injuries can and do occur when people play sports, players cannot be said to have consented to the risk of all injuries they may suffer merely by virtue of their participation in the sport.”
Justice Baker pointed to Sports and Recreation Liability Law in Canada, authored by Lorne Folick, Michael Libby and Paul Dawson, which finds a difference in how each province determines legal fault in sports negligence claims.
“…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. However, courts in Manitoba, Ontario, and New Brunswick have taken a different approach…“
For example, in Levita v. Crew, the Ontario Superior Court of Justice found a hockey player was not liable for a body check from behind, which caused the plaintiff to break several bones in his leg. The court found the defendant had acted “clearly overly aggressive” but did not act maliciously or “out of the ordinary or beyond the bounds of fair or expected play.”
“The practical result of this difference in views between provinces means, quite simply, that an injured hockey player in British Columbia faces a much less substantial burden of proof of an actionable injury than does a similar player in other provinces,” the authors wrote in Sports and Recreation Liability Law in Canada, cited by Baker.
In the B.C. case, Jordan David Miller suffered a Grade 3 dislocation of a joint between the shoulder and the clavicle when slide-tackled by Karl Cox during a recreational soccer game on a North Vancouver team. The game consisted of players of different skill levels.
During the game, Miller was approaching the opposing goal with possession of the ball when Cox slide tackled Miller, causing him to fall forward and injure his shoulder, the court confirmed.
The referee penalized Cox with a yellow card and gave Miller’s team a penalty shot as a result of the tackle.
Cox argues that slide tackles are permitted per FIFA rules (which were in play during the match), and that Miller assumed the risk of injury from a slide tackle when he agreed to play in the match.
According to the court documents, Cox argued that he did not intend to injure Miller and did not perform the slide tackle recklessly or in an unsafe manner. He argued that the contact that occurred between him and Miller during the slide tackle was the kind of contact that Miller could have reasonably anticipated per the rules.
But Miller testified that he did not see Cox coming towards him before the tackle, and he was unable to brace for impact.
He described the tackle as taking out both of his legs, and he said he did not have time to put his hands out in front of himself to break his fall. Plus, he said Cox’s tackle was nowhere close to the ball. He said Cox should have received a red card.
But while the referee did not issue a red card, “that is not determinative of liability,” Justice Baker found.
Justice Baker used six witness testimonies to entirely reject Cox’s evidence, stating his testimony of how the play went down was “diametrically opposed” to the witness’s evidence.
The justice ultimately found Cox’s conduct to be unreasonable.
“I find that Mr. Cox’s actions were dangerous and reckless, and were outside the conduct a player would reasonably expect in this recreational league, made up of players of all different skill levels. While slide tackles were permitted, there is no question that the execution of this slide tackle was outside the accepted rules of play.
“All the witnesses before me acknowledged that slide tackles are permitted and injuries are a part of the game. However, I find that the players in this league did not consent to dangerous and reckless conduct, such as that undertaken by Mr. Cox, which carries with it the risk of severe injury.”
Total damages were awarded to Miller for $103,764.11, plus costs and disbursements.
Feature image by iStock.com/Shutter2U