The High Cost of Negligent Sport – Rec Soccer Player Ordered To Pay over $100K in Damages

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, ordering a Defendant to pay over $100,000 in damages following a negligent slide tackle in a recreational soccer game.

In the case (Miller v. Cox) the plaintiff suffered a grade 3 dislocation of the right acromioclavicular joint as a result of the tackle.  Several witnesses testified and the court found all of them credible except the Defendant who the court found gave “self-serving and wholly unbelievable” testimony.

The Court found the Defendant approached the Plaintiff from a blind spot, had both his feet leave the ground and violently slide tackled the Plaintiff while having no chance of actually contacting the ball.  The court found doing so was negligent.  In finding liability the Court provided the following summary of the legal principles in play and following findings of fact:

[13]         The plaintiff submits that there is a divide in Canada with respect to how different provinces assess the degree of carelessness and the state of mind of the defendant when determining legal fault in sports negligence claims. As summarized in Lorne Folick, Michael Libby, & Paul Dawson, Sports and Recreation Liability Law in Canada (Toronto: Thomson Reuters, 2017), at 285-286:

… 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.

            This approach stems from the oft-cited hockey case of Agar v. Canning. There, the Manitoba Queen’s Bench (affirmed by the Court of Appeal) found that although a person who engages in a sport like hockey must be assumed to accept some risk of accidental harm:

[I]t would be inconsistent with this implied consent to impose a duty on a player to take care for the safety of other players corresponding to the duty which, in an normal situation, gives rise to a claim for negligence. Similarly, the leave and license will include an unintentional injury resulting from one of the frequent infractions of the rules of the game.

…

            More recently, in the Ontario case of Levita v. Crew, the court concluded that the defendant player, although “clearly overly aggressive”, had not acted maliciously or “out of the ordinary or beyond the bounds of fair or expected play” when he had checked from behind. The defendant had shown a lack of care, considering that the plaintiff was close to the boards, but in the court’s view, “a lack of carefulness falls short of the creation of an unreasonable risk of harm.”

            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. It will be sufficient in the former case to simply show a failure to adhere to the relevant standard of care, while in the latter, intentional conduct (or at least recklessness) is required.

[14]         I accept this statement from the text as an accurate description of the difference between the development of the law in British Columbia as against other provinces…

[80]         I find Mr. Miller has established, on a balance of probabilities, that the mechanics of the tackle occurred as follows:

a)    Mr. Miller was running fast towards the goal, and was just approaching the 18-yard box with control of the ball, on his right foot. He was just getting ready to kick the ball towards the goal moments before being tackled.

b)    Mr. Cox ran up behind Mr. Miller on Mr. Miller’s left side. He was approaching on an angle from behind, and was in Mr. Miller’s blind spot.

c)     Mr. Miller did not see Mr. Cox.

d)    Mr. Cox lifted both his legs off the ground in an attempt to execute a slide tackle. His left leg went in front of Mr. Miller’s legs, and his right leg came up behind Mr. Miller’s legs. He struck Mr. Miller slightly below Mr. Miller’s knees.

e)    The effect of Mr. Cox’s tackle was that both of Mr. Miller’s legs were taken out from under him and, with the speed he was travelling, Mr. Miller fell face first into the ground, very hard, and was unable to put his hands out to stop him. He severely injured his right acromioclavicular joint in the fall.

f)      There was no possibility of Mr. Cox reaching the ball, as the ball was ahead of Mr. Miller’s right foot, and Mr. Miller’s body was between Mr. Cox and the ball.

[81]         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.

[82]         I find Mr. Cox was negligent when he attempted to execute the slide tackle in the manner that he did. He knew that slide tackles that take out both the legs of another player could result in injury to the other player. He agreed it was not acceptable to take out a player when there was no chance of getting the ball. He knew it was possible that he was in Mr. Miller’s blind spot, and it was more dangerous if the player with the ball cannot see the defender coming in for a tackle. I find Mr. Cox was well aware of the risk of injury to Mr. Miller in undertaking the tackle as he did. He nevertheless decided to proceed with what Mr. Silny described as a “last-ditch tackle”, striking Mr. Miller from behind, and taking out both of Mr. Miller’s legs, with both of his own legs, when there was no possibility of him reaching the ball. His actions resulted in serious injury to Mr. Miller, for which he is liable.

[83]         Total damages are awarded to Mr. Miller in the agreed amount of $103,764.11, plus costs and disbursements.