Football Player Sues Canadian University for Brain Injury

September 22, 2013

Negligence, Tort

By Amy Ulveland – Thompson Rivers University 3L JD Student

According to the Merriam-Webster dictionary, a coach is defined as: a person who teaches and trains the members of a sports team and makes decisions about how the team plays during games [emphasis added]. In many ways, the role of a coach is analogous to that of a parent: just as a coach must respond to an individual’s needs while seizing opportunities to develop character, so too must a parent. While both may use fear to motivate individuals to act in a certain way, this must be tempered with a steady diet of support and encouragement. In other words, they both serve as role models (for better or worse), and exert an observable degree of control. In this role, coaches and parents may be viewed as infallible, all-knowing creatures, but they are not. They are human, and in exercising judgment, mistakes will be made. Indeed, there is no one-size-fits-all manual.

In R v Jobidon, the Supreme Court of Canada was tasked with considering whether an individual could directly or impliedly consent to force causing bodily harm. In taking a contextual approach, the Court paid some attention to sporting activities: “… the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile.”

The line remains blurry; one can appreciate the difficulty of placing guilt within a sporting context. Players assume a heightened level of risk as part of ‘playing the game.’ With the above in mind, I turn to the recent lawsuit launched by former amateur football player, Kevin Kwasny, against his former coach, and Bishop’s University (see article here).

Kevin was 21-years-old at the time – in his prime – when life as he knew it changed forever. After being hit on the football field and suffering bleeding on the brain, Kevin’s severe brain injury left him and his family with hefty medical bills, and a lifetime of assisted-care. Kevin’s lawsuit essentially argues that his coach and Bishop’s University were negligent in forcing him to go back out to play after showing signs of a concussion from an initial hit on the field.

There are two questions at issue: 1) whether Kevin’s coach was negligent in instructing him to go back out on the field after learning Kevin was feeling dizzy from a hit; and, 2) if so, whether Bishop’s University is vicariously liable for Kevin’s brain injury and damage caused as a result of its member coach’s negligence?

The case will turn on whether or not Kevin’s coach knew or ought to have known that his current state would worsen thereby causing him permanent brain damage, as a result of sending him back out to play. Therein lies the rub: coaches are neither doctors, nor medical specialists. The duty of care is there. The question becomes: what standard of care did Kevin’s coach and university owe him? The court will measure his conduct against that of the ‘reasonable coach’ in similar circumstances. Recognizing coaching styles are as varied as parenting styles, there are certain cues that a ‘reasonable person,’ let alone a ‘reasonable coach,’ ought to recognize and prudently act on.

Showing signs of dizziness after being hit is a telltale sign that an individual is not ready to go back out on the field (where he or she is likely to get hit again).

The court will find some guidance in the CIS Code of Ethics which reads, in part, as follows:

“90.60.2.2 – Responsible leadership is a priority in ensuring the full development of individuals as a whole. Inherent within the implementation of this principle is the notion of competence whereby personnel will maximize benefits and reduce risks to participants by being well prepared and current within the field of sport.”

Issues of causation and proximity will be at the centre of debate, but in my opinion, the court is likely to find that Kevin’s coach was contributorily negligent in pushing him back out on the field after learning of his condition. As the court may be reluctant to place guilt solely on his coach, for public policy reasons cited above, there is a good likelihood it will find Bishop’s University vicariously liable to deter such type of bravado on the field. No individual is expected to be superman – on field or off.

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