Toronto Injury Lawyer Blog
Some of the most interesting cases we see are sports injury cases. But, these are also some of the most difficult cases which Goldfinger Injury Lawyers sees as well.
Every little factual detail in these cases matters. Splitting hairs is what these cases are all about.
Often, in these sport cases, the nature of the injuries takes a back seat to liability (who is at fault and how the accident happened). The circumstances leading up to the accident, and the accident itself are very important. It’s not uncommon for the parties to agree on damages; but to disagree on almost every point dealing with liability.
Some practical considerations for a Plaintiff in pursuing a sports injury case:
1. Who are you suing and can that party satisfy a judgment?
This is very important. Let’s say that a Plaintiff has a 4 week trial. After a long 4 week trial, the Plaintiff “wins” his/her case against the Defendant. The Defendant is another participant in the sport (hockey, basketball, baseball, soccer etc.). The Defendant is uninsured and has no real assets to his/her name. The Defendant works largely odd jobs for cash, rents an apartment, and has limited savings. How will a Plaintiff ever hope to collect on that Judgment?
This is why you often see the sports league, or the host of the sporting event named as a Defendant in these types of personal injury cases. The sports league and the host will likely carry some form of liability insurance which pays out on these types of cases. Which leads me to my next point
2. Did the sports league or host make the Plaintiff sign a waiver as a pre-requisite to his/her participation in the sporting event?
Most leagues, or sporting hosts, if they’re smart, require participants to sign a waiver of liability prior to participating in the sporting event(s) itself. Failing to do so is simply poor planning. When a party is in the business of putting on, or hosting sporting events or tournaments, these types of waivers are common and very important to protect a Defendant from any potential claims. What does the waiver say? The wording of the waiver is very important. Cases have been won, and lost, based on the exact wording contained in these waivers; along with the context of how it was signed? Was is signed electronically or on paper? Was it signed by a minor without any thought given to who was signing it, or was it signed by a parent? The context of how the waiver was signed, who signed the waiver, and what’s contained in the waiver can make, or break a case. Waivers have been deemed invalid when they are signed on a tablet and the wording is not readable by a participant. Waivers have been deemed invalid when it’s signed by a pre-teen (and not their parent or guardian). On the other hand, waivers have held up and defended Plaintiff claims in a load of other circumstances.
3. The Concept of the Voluntary Assumption of Risk
The idea of the voluntary assumption of risk is always considered in sporting injury cases. When a person voluntarily participates in a sport, or activity, they are voluntarily assuming a risk of injury. The greater the speed and physicality of the sport, the greater the risk. Sports like hockey and football are viewed as physical and potentially violent games. If you look at the rules of the sport of hockey, there is specifically a rule against fighting on the ice. Some leagues will eject a player immediately for fighting. In other more competitive leagues, the fighting player(s) will not be ejected. Rather, they’re allowed to return to the ice and play after their penalty has been served. This means not only that fighting is allowed, but it’s also part of the game itself. This sort of level of aggressiveness is part of the game in hockey. But, it’s not part of the game in something like gymnastics or swimming or curling. That’s not to suggest that things can get heated or intense in these sports.
4. Contributory Negligence
It’s rare, though not unheard of, that a Plaintiff is not in part responsible for the injuries. The Court will examine the conduct of the Plaintiff before the ensuing injury which gave rise to the lawsuit, and whether or not this conduct contributed in any way to the injuries themselves. Was the Plaintiff completely unresponsible and the injury was completely unprovoked? Or, did the Plaintiff’s conduct and behaviour somehow contribute to the incident taking place? If so, to what extent was the Plaintiff contributorily liable? Was it 10%? Was it 50%? These questions will be up to a Judge to decide. It’s best that a Plaintiff bring for a case with clean hands, but we know that this isn’t always the case.
5. Was the injury caused by another player, or by defective equipment or a hazard at the facility?
If the injury was caused by defective equipment, or a hazard at the facility, then the claim can be framed under the Occupier’s Liability Act, in addition to the Negligence Act in Ontario. When there is a defective piece of equipment, or a hazard which caused the injury, it would be wise for a Plaintiff to retain an expert in that field to explain the defect and hazard so that the Court isn’t guessing. If the claim arises from an intentional assault, then the claim cannot be framed in negligence, nor should it be framed as an occupier’s liability claim. Was the injury caused by an accident which is part of the game; or was it completely outside of the scope of the game (sorry, but not sorry). Would the Plaintiff reasonably foreseen and assumed that risk ; or was the risk so far out of bounds that it was not foreseeable to a Plaintiff or to a reasonable person in the Plaintiff’s shoes? These are difficult questions to answer and will be up to a Judge to rule on. This is why the facts in these cases are so important. The damages to a Plaintiff will only flow if a Defendant is found responsible for the Plaintiff’s injuries.
