February 12, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Casterton v. MacIsaac, 2020 ONSC 190 (CanLII)
DATE: January 10, 2020
HEARD BEFORE: Justice Sally Gomery
LIABILITY: Standard of care; implicit consent; implicit consent is not unlimited; breach of conduct
This recent decision found that a hockey player who blind-sided another player intentionally was legally responsible to pay for pain and suffering, and for past and future loss of income due to the impact the injuries have had on the Plaintiff’s life.
On March 15, 2012, during the last minute of a recreational hockey game, Drew Casterton collided with Gordon MacIsaac, a player on the other team. Casterton was knocked off his feet, hit his head on the ice, and lost consciousness briefly. He suffered a concussion, two broken teeth, and cuts on his face and inside his mouth. MacIsaac was not injured.
Casterton says that he was blindsided by MacIsaac, and that the injuries he suffered in the collision have had a dramatic, long-term impact on his personal life, his career, and his relationships. He claims general damages for pain and suffering, past and future income loss, and punitive damages.
Justice Gomery did an extensive legal review and determined that there were essentially three questions in the case:
- Is MacIsaac liable for injuries suffered by Casterton during the March 2012 game?
- Was Casterton contributorily negligent?
- What are Casterton’s damages as a result of the injury?
As a result of the findings Mr. Casterson was awarded $702,551 in damages to June 20, 2019.
Not surprisingly, this is not the first lawsuit in Canada for injuries sustained during a hockey game. The evolution of the caselaw on this issue shows that courts have moved from requiring evidence of intent to harm to applying the general rules of negligence, adapting them to the context of a sport where some risk of injury is inevitable.
Three important considerations were taken into account in the case.
The standard of care test is – what would a reasonable competitor, in his place, do or not do. The words “in his place” imply the need to consider the speed, the amount of body contact and the stresses in the sport, as well as the risks the players might reasonably be expected to take during the game, acting within the spirit of the game and according to the standards of fair play. A breach of the rules may be one element in that issue but not necessarily definitive of the issue.
This was broadened by Justice Gomery to include scenarios where it is clear that although there was no specific intent to harm, it can be proved that the at-fault player showed ‘reckless lack of regard” to whether his/her actions caused serious injuries to the other player. As a result of broadening the decision actions at-fault player actions in contact sport that are malicious or beyond the bounds of fair play can be included.
“In agreeing to play hockey, a player implicitly consents to a risk of injury inherent to a fast-paced and sometimes physically violent sport. This includes the risk that a player may suffer injury, even serious injury, from bodily contact with another player during normal gameplay. But a player’s implicit consent is not unlimited. A player does not accept the risk of injury from conduct that is malicious, out of the ordinary or beyond the bounds of fair play. In deciding whether this contact meets that test, relevant considerations include the type of league in which the game was played, the level of play in the league, the applicable rules, and the nature of the game.”
The evidence presented, including the testimony of twelve players, found that Mr. MacIsaac was either deliberately trying to harm the Plaintiff, or that he was being reckless about the possibility that his actions would injure Mr. Casterton. In either case Mr. MacIsaac completely failed to meet the standard of care that is now applicable to hockey players in Canada. There is no question that a blind-sided hit to the face and head is against the rules and outside the bounds of established fair play. Mr. MacIsaac was negligent in his actions.
Justice Gomery was left to evaluate the testimony of the twelve players, and the to find the facts of the case. While the witness testimony was varied and there were inconsistencies in evidence, Justice Gomery was apple to obtain the evidence required to apply the law.
The reality of concussion as a serious injury was once again underscored. The impacts of the injury on Mr. Casterton’s life are clear. The changes to every aspect of his life are conservable and real.
Mr Casterson was by all witness and medical accounts ‘a different person’ than he was before the concussion. His functional and cognitive impairments and limitations have impaired his social skills, his emotions, and have limited his ability to work. It is unlikely his condition will ever improve.