The Small Claims Court of Nova Scotia recently ruled in Crowe v. Adams, 2010 NSSM 3, that the defendant Jeffrey Adams was negligent in causing a collision with a fellow surfer and was ordered to pay $750 CDN for the cost of a replacement surfboard.
Donald Crowe claimed that Adams failed to comply with the well recognized and accepted surfing practice of not paddling into the breaking part of a wave while he was riding it. By paddling into the breaking point, it was alleged that Adams caused the collision thereby significantly damaging Crowe’s new surfboard. Adams claimed that Crowe voluntarily assumed the risk of damage to his surfboard by participating in an inherently dangerous sport.
The court was presented with evidence that surfing has rules of etiquette which speak to such circumstances. The claimant provided several exhibits sourced from the internet to show how the defendant had transgressed the fundamental rules of surfing. No expert testimony was heard.
The adjudicator, David T.R. Parker, agreed with the defendant’s argument that rules of etiquette are not binding in law but correctly pointed out that such rules can be an indicator of the required standard of care. In finding Adams negligent, the court found that he had breached the necessary standard of care as presented by the claimant’s internet-based sources. There was no mention of how the defendant owed the claimant a duty. The court properly rejected Adam’s argument that volenti overrides negligence.
This ruling is at odds with the prevailing jurisprudential approach in Eastern Canada to establishing liability which requires that the defendant must know that he was breaking the rules and that there must also be a deliberate intention to cause injury or a reckless disregard for the consequences of their actions. Ordinary negligence is an insufficient basis for an injured athlete to recover damages.
In such a wild sport as surfing, it is a big wave to ride to show that surfers owe one another a duty and quite another to demonstrate precisely what is the required standard of care owed before finding a defendant guilty of negligence – it is respectfully submitted that the adjudicator did not correctly apply the law in this case.