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For Whom the Bell Tolls – Death of the NHL Enforcer

December 4, 2015

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By Dan Hutchinson – Thompson Rivers University 3L JD Student

The death bell of the NHL tough guy has been sounding for years and now that breed of player is all but extinct. Names such as Probert, Domi and Twist are long gone from the game and even more recent names such as McGrattan, Orr and Parros have been unable to find employment in the NHL either having to settle for minor league deals or retire The league simply phased these players out of the game with rule changes that make the game faster, with more emphasis on speed instead of toughness.

According to hockeyfights.com, after 227 games in the NHL this season there have been 53 fights corresponding to 20.3% of games played with a fight. The percentage of games with a fight is down nearly 7% from last season and has dropped significantly each season since 2010 when the number of games with a fight was 40.1%. This number has dropped significantly due to the NHL taking steps to limit fighting including stiffer punishment for players engaging in a fight and instructing linesmen to break up fights before they are able to start.

The drop in fighting has also resulted from a philosophical shift in the league towards speed and skill and away from toughness and grit. Teams want players that can play at least 10 minutes a game and contribute more than their fists. “You’re already seeing a lot of that,” said Carolina GM Ron Francis. “Now you get teams that have scoring on all four lines. The way the game is played and the pace it is played at, teams that have success are the ones that have 12 forwards who can give you minutes.”

While this philosophical change has played a part in the death of the enforcer it is not the only reason the tough guy is no longer part of the game. Significant changes in rules in hopes of protecting players has seen the league take matters into their own hands further pushing the enforcer out of the game.

With concussions being an issue on everyone’s mind, especially with the current lawsuit against the NHL launched by former players dealing with issues relating to head injuries sustained during their playing career, the NHL has started to give out lengthy suspensions and fines for players laying dirty hits on opponents. The most recent long term suspension was given to Raffi Torres for a shot to the head of Jakob Silfverberg. Torres was suspended for 41 games on the play.

The question now is whether these suspensions and fines are enough of a detriment for players to avoid dangerous hits and result in an actual increase in player safety. Or were players safer with their own personal policemen roaming the ice? Many believe that the threat of having to “face the music” as a result of a dirty play to be more of a detriment than a fine or suspension. With the way the NHL is going, the threat of an enforcer coming after a player due to a dirty hit or even a fight as retribution is becoming a non-factor, a path which many feel is wrong.
“I would hate to see the unintended side effects of where hockey would go without fighting, without that threat of retribution. It’s a fast, violent game where we’re wearing weapons on our feet and essentially carrying a club. So while a two- or five- minute penalty is a bad thing, it’s not going to knock somebody off their path of destruction as much as somebody grabbing them and punching them in the face,” claims ex-NHLer Kevin Westgarth.

It’s hard to know whether the NHL would be a safer place without fighting and the threat of a suspension being the only thing to stop players from dirty plays but looking at two high profile instances where headshots have been delivered, no enforcer was in the lineup for the team that sustained the hit. In the 2011 Winter Classic where Sidney Crosby was taken out with a blatant headshot, Pittsburgh hadn’t dressed their enforcer Eric Godard and neither did Anaheim when Torres nearly took off Silfverberg’s head. This would never have happened to Gretzky when McSorley was in the lineup. It’s impossible to say whether or not these hits would have occurred had an enforcer been dressed but it is something worth noting.

Additionally, in the NCAA fighting is banned and is arguably more dangerous as a result. “They drop the puck and you try to kill guys in the corner. I don’t know if it’s because there’s no fighting or because of the build-up, but there’s a lot of crash-and-bang, not much finesse out there,” says ex-NCAA and current NHLer Corey Tropp. So while the NHL is doing its best to phase fighting and the enforcer out of the game in an effort to maintain player safety, they may be doing more harm than good.

It may be best for the NHL to leave fighting alone rather than push it completely out of the game. It certainly seems like the players want fighting to stay a part of the game after a recent NHL Players Association survey revealed that 98% of players support fighting in hockey. The NHL is slowly working to eliminate fighting in an effort to increase player safety and decrease the number of concussions. However, the best option may simply be to let the fights and enforcers stay a part of the game.

 

 

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Can Weapons be Introduced into MMA Style Fighting Leagues?

December 1, 2015

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By Marshall Putnam – Thompson Rivers University 3L JD Student

Back in April 2015, a strange development occurred in the Russian M-1 Mixed Martial Arts (“MMA”) league. The league, in an effort to test audience reception, introduced medieval style fighting into the MMA arena. Rather than your typical MMA fight where two shirtless combatants pummel each other using punches and kicks, the combatants in this arena wore full body armor equipped with blunted swords and shields. The result: a gladiatorial battle between two knights reminiscent of Game of Thrones.

russian-fighting-swords-mma-628

The audience loved it, spurring the M-1 president to state they would pursue developing it into a full league with separate weight categories, provided they find enough fighters. Although this can be dismissed as a mere publicity stunt, it does pose a serious legal question: can weapons be added into MMA fighting leagues?

In some ways, the addition of weapons seems like a natural development in MMA leagues. After all, martial arts has a rich history of incorporating weapons. For example, the Eskrima style of martial arts is the national sport of the Philippines, and is known for emphasizing weapons-based fighting styles with weapons such as sticks, chained-sticks, knives, and daggers. The obvious issue presented by weapons, even blunted weapons, is the substantially increased likelihood of combatants causing serious bodily harm to each other.

The legality of combatants attacking each other with weapons may appear trivial in some regards. The obvious argument is that the fighters have already consented to engage in a fight, and with or without weapons, there is a risk of either fighter causing bodily harm to the other. The law has already contemplated this possibility, and deemed it legal in the circumstances. From this perspective, the legality itself of engaging in an organized fight has not changed. The only tangible difference is the manner in which combatants are permitted to harm each other; before they were limited to the natural extensions of their body (fists and feet), and now they would be permitted an unnatural extension of their body, i.e. a weapon.

The legal issue arises in the fact that the criminality behind inflicting an assault is increased when a weapon is added. Proof of this claim is found Canada’s Criminal Code, as there is a provision for basic assault (section 266) and another provision altogether for assault with a weapon causing bodily harm (section 267). The difference between the two provisions is that assault with a weapon bears a substantially higher period of incarceration of up to ten years. As it stands in Canada, inflicting an assault using a weapon outside the organized sport arena is treated markedly more severe.

If the MMA arena of sport functions as a shield protecting the combatants from criminal liability when assaulting each other without the use of a weapon, can this shield be extended to protect against criminal liability arising from assault with a weapon? There is evidence supporting the conclusion that it just might.

Consider fencing for instance. Fencing is a recognized sport where the combatants use swords against each other. A fencing sword is modified with the addition of a circular tip to prevent it from inflicting serious bodily harm, and is considerably light-weight. The combatants also wear protective gear, notably around their face, as an added precaution against receiving serious bodily harm. This suggests that combatants may use weapons against each other in an organized fight provided adequate precaution has been taken.

It follows that the legality of introducing weapons into MMA leagues likely hinges on the ability for the coordinators to prevent the likelihood of combatants inflicting and suffering serious bodily harm. In the Russian M-1 league the combatants used heavy-weight blunted swords. In an effort to nullify the increased likelihood of inflicting serious bodily-harm, the fighters wore full armor plating. There is a balancing act of ensuring the increased probability of inflicting serious bodily harm is countered by incorporating equally serious preventative measures.

Ultimately, the legality of introducing weapons into MMA leagues would likely come down to the ability of organizers to convince the courts that the safety precautions taken adequately address the increased ability for combatants to inflict serious bodily harm. Time will tell if MMA leagues opt to introduce weapon-based martial arts, likely following a profit versus risk-assessment. In the end, the fights themselves would surely be as entertaining as any legal battle that may ensue.

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The Last Great Unknown: Mitigating Legal Liability and Maximizing Player Safety with Regard to Concussions

November 22, 2015

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By Ryan Hamilton – Thompson Rivers University 2L JD Student

Sports concussions have received a lot of attention over the past decade and are the last great unknown in sports medicine. Legal liability has acted as a sort of catalyst with respect to the amount of research and exposure that concussion related injuries have received. The solution to the problem of sports-related brain injuries is multi-headed and includes prevention, education, recognition, rule changes, and rehabilitation.

The truth is, there is really no way to eliminate head injuries from contact sports where players are getting bigger, stronger, and faster, at least without dramatically changing how these games are played. However, there are two strategies that should be employed and advanced upon to ensure that the games we love can continue to emulate a high level of ethical and legal standards.

These strategies can be referred to as recognition and education. Both of these can be highlighted in World Rugby’s Concussion Guidance Protocols. Their “Recognize and Remove” campaign highlights the necessity of recognizing the symptoms of concussion and removing players from the field to be properly screened.

Education as to what exactly constitutes “symptoms” in such a physical game is imperative to ensuring adequate safety standards. These educational programs should be mandatory for players of all ages and skill levels. As the understanding of concussions improves, the standard of education to athletes must improve as well. In doing so, organizations can protect themselves and reduce their liability by ensuring that participating athletes are aware and accepting of all the inherent risks associated with their sport.

The second important strategy is concussion recognition. A prominent example of the increased focus of recognition can be found in World Rugby’s Law 3.11: Temporary Replacement-Head Injury Assessment (HIA). The law came into effect on August 1st, 2015. Law 3.11 dictates that players in elite level matches who are suspected of having received a concussion are to be immediately removed from the field of play and assessed. The recognition of symptoms is not limited to the player, and also allows for medical staff to request a player be removed.

World Rugby Law 3.9 also allows the referee to order a player who he or she views as being injured to leave the field for assessment. Following the assessment, the doctors and medical staff make a determination as to whether the player can return to the field of play or is removed permanently. This is quite significant rule change, as normally any player who is substituted off, or leaves the field due to injury cannot return (with the minor exception of a “blood injury”).

The new rule allows for accredited medical professionals to make these assessments immediately following a suspected head injury. It also takes the decision largely out of the player’s hands, which is paramount to ensuring safety and reducing long-term injury. Concussions are a very unique injury. You don’t wear a cast, you aren’t in a sling, and there are no scars. As an athlete it can be tremendously difficult to pull yourself out of games based on symptoms that you haven’t been formally trained to recognize.

While educational programs can mitigate a lack of recognition, even the most informed player could have trouble diagnosing the symptoms of concussion after receiving an impact to the head. Keep in mind that an athlete doesn’t have to lose consciousness to receive a concussion, often times they don’t. Add to that the old school attitudes and mantra of a game built on toughness and you’re putting an unfair choice on an elite level player, especially on those international athletes who have worked their whole lives to represent their country, and would do just about anything to remain on the field regardless of consequence. While these attitudes are changing with the help of World Rugby’s campaigns, the choice to remove oneself from the field should never be left solely with the athlete.

An example of Law 3.11 working was during the recent Rugby World Cup match between Scotland and South Africa where the Scotland medical staff recognized that hooker Ross Ford was displaying concussion like symptoms. Staff promptly contacted the referee and had Ford removed for an HIA assessment. Ford failed the subsequent head injury assessment and was not allowed to return to the field.

According the British Journal of Sport Medicine, prior to the HIA protocols, 56% of players with a confirmed concussion remained on the field following their injury. That number has dropped to 12% since the HIA. This decrease is a huge success, and highlights World Rugby’s commitment to increased concussion awareness and emphasis on player safety; both of which are paramount to not only maintaining a high ethical standard, but also in protection from tortious liability as well.

 

 

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Guilty by Association – The University of Ottawa’s Decision to Publicly Discipline the GG’s

November 16, 2015

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By Richard Wong – Thompson Rivers University 2L JD Student

In early 2015, former members of the 2013/2014 University of Ottawa men’s varsity hockey team (the “GG’s”) filed a class-action lawsuit against the University of Ottawa and its president (collectively the “Defendants”). The GG’s were suspended during a nationally televised news conference after allegations of sexual assault against two players were made during a team road trip. The two players who are not a part of the lawsuit were charged under the Criminal Code. The GG’s claimed that their individual reputations, prospective hockey careers, and professional lives were tarnished after public announcement of the collective punishment.

In July of 2015, the Ontario Superior Court considered a motion by the Defendants seeking dismissal of the Plaintiffs’ claim that the Statement of Claim disclosed no reasonable cause of action (Creppin v University of Ottawa, 2015 ONSC 4449).

To summarize, Justice Phillips declined to strike out any part of the claim on the basis that it was not plain and obvious the actions taken by the Defendants (i.e., publicly disciplining students known to be uninvolved in the alleged sexual assaults) were entirely within the University’s broad discretion to manage its academic affairs. In addition, he concluded that it was not plain and obvious that the Plaintiffs’ claim in negligence against the University could not be made out, thus declining to strike that portion of the claim.

However, Justice Phillips struck out the portion of the claim relating to a breach of a fiduciary duty because it was plain and obvious this claim would not succeed by applying the test from Alberta v Elder Advocates of Alberta Society. Specifically, he found that there was no undertaking that the University would forsake the multiple interests of other bodies it governs (e.g. other students and faculty) in favour of the GG’s. In addition, the claim of misfeasance in public office was struck out because he found there was no basis that the president, in executing his duties, acted in bad faith or dishonestly – although potentially negligently.

Negligent Disciplinary Actions?

Considering the negligence claim that has not been struck out, it seems that the GG’s may be successful in establishing that the University is vicariously liable for the president’s choice in publicly disciplining the GG’s who were not involved in the alleged sexual assault.

The first issue in establishing a duty of care in this case rests on the characterization of the relationship between the parties. The Defendants take the position that a university does not owe a duty of care towards athletes in regards to the operation of varsity sports programs. However, Justice Phillips recognized that this case is not merely concerned with the right to play hockey, but rather a contractual relationship between the University and students (who happen to be members of the varsity sport team).

Such a duty has been previously recognized by the Supreme Court of Canada (Young v Bella, [2006] 1 SCR 108), and will likely be difficult to refute considering that the basis of the claim is the harm caused to these students as a result of the direct relationship they have with the University. I find it difficult to comprehend how reputational harm to students, such as that caused by a university’s public announcements related to a serious criminal offence, is not reasonably foreseeable. Public disciplining of this sort would foreseeably result in a haunting impact – both within the academic and professional spheres of the students affected.

The next issue in this case revolves around the standard of care required by the Defendants in administering their choice of disciplinary procedures. The choice of disciplinary procedures would have a significant impact on the lives of students associated with allegations of sexual assault. Specifically, public announcements of this association would stigmatize these students within the student body, in the community, and in their professional reputations – in sport or otherwise. This would likely require a thorough investigation of the incident (which was arguably conducted) in addition to establishing a connection with those who were not accused of the alleged crimes.

Although the Defendants owe a duty to other students and the University as a whole, the decision to consolidate the two accused with those uninvolved, and to discipline the uninvolved GG’s publicly at a national and international level, is likely a breach of the required standard of care. In my opinion, the decision to publicly discipline the GG’s was unnecessary to achieve justice owed to the victims. Even though the president acknowledged that some of the GG’s were unfairly affected, the result of this discipline has catastrophic consequences for those (un-)involved. There could have been a clearer articulation of those uninvolved students, and more emphasis of the root of the problem – the two individuals who were accused of sexual assault.

This assessment of the case is by no means a justification for the behaviour of the two accused. Rape culture in varsity sports is a serious issue that must be acknowledged. However, this case is dealing with the consequences of punishing individuals who have not been involved with such repulsive activities. Does guilt by association include being a member of the same sport team? What control do others, who are not present at the scene, have over those who decide to make anti-social decisions? If a settlement is not reached and the Plaintiffs are successful, universities in the future will need to be cautious in answering these questions prior to executing disciplinary actions.

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Tailgate Parties and the Assumption of a Duty Through Surveillance

November 7, 2015

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By Callan MacKinlay – Thompson Rivers University 2L JD Student
Tailgate Parties are becoming more and more common at sporting events, especially with regards to American football in the United States. Some of the teams regard this behaviour as free advertising and do not prohibit the parties from continuing all night long on their property. While this issue is not nearly as common in Canada, it does occur often in certain jurisdictions. The Calgary Stampeders (a professional football in Canada) are a team that has a tailgate party at almost every game. In the past, the team has had issues with the parties and has since stepped up efforts to ensure that the parties are carried out in a safe manner in accordance with the law. The question that needs to be asked here is: do these efforts constitute the assumption of a duty with regards to tort law?

Negligence law is the most obvious area where a duty may arise. According to reports, the Calgary Stampeders have a surveillance system that they use to monitor the state of the tailgate parties. Specifically, they watch for overtly drunk individuals or rowdy behaviour that might escalate into violence or a danger to the other party-goers. If they notice this sort of behaviour, they either notify security or they inform the police. The Stampeders have also set up regulations that essentially create a reasonableness standard for the fans, stating that tailgating is allowed, so long as the “fans use discretion and common sense.”

With these regulations and the surveillance in mind, have the Stampeders created a duty where there was none before? That is, knowing that there is a danger that the fans might become rowdy or overly drunk, doesn’t regulating and surveilling the behaviour create a duty under negligence law? I would say that it does.

In Mercer v SE & C Railway Company, the defendants had created a duty by locking a gate to block pedestrians from crossing the rail when a train was passing. When they failed to lock it in one instance and someone was injured, they were held to have created a duty because the community relied on their previous behaviour.

In the modern instance of tailgating, what if someone manages to slip under the radar of the surveilling authority at McMahon stadium and leaves the tailgate party inebriated and crashes their car into someone, injuring them? What would stop that person from including the Stampeders in a negligence lawsuit? It is likely that the Stampeders would rely on their regulations as set out in their tailgating page on their website as evidence that they assume no liability, but their actions speak much more loudly than their words. What is the difference between someone relying on their surveillance as proof of the safety of the conduct and someone relying on the gate being unlocked meaning that no train was coming? It would make for an interesting case.

In short, while tailgate parties might be a way to increase word of mouth and fan fervour for your team, it creates additional legal problems that have to be mitigated either by strict surveillance and regulation or by outright prohibition. What each team does in the future will lead to different risks inherent with taking on any new duty.

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Taken out at the Ball Game: Spectator Safety and the Assumption of Risk Doctrine

October 13, 2015

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By Ian Walker – Thompson Rivers University 3L JD Student

A long-time Oakland Athletics fan is suiting Major League Baseball in a proposed class-action lawsuit. The suit claims the league does too little to protect fans from fast-moving balls and splintered bats, particularly along the first- and third-base lines.

The lead plaintiff and season ticket holder, Gail Payne, feels vulnerable because her seats are not protected by netting and a fan beside her was injured by a foul ball. The lawsuit cited a 2014 study by Bloomberg News that says that 1,750 spectators are injured annually at MLB games.

The suit claims a number of factors have increased the risk to spectators, including pitchers who throw harder, bats that splinter more easily, the league-wide initiative to increase the speed of the game, and modern distractions like video monitors, in-arena Wi-Fi, and interactive apps on smartphones.

The suit also claims that MLB’s failure to extend protective netting is “particularly egregious” since it installed netting in front of dugouts and required first- and third-base coaches to wear helmets, while spectators just as close to the action are left with no protection.

The case brings to light an important doctrine of sports-related negligence cases: the assumption of risk doctrine. According to legal historian J. Gordon Hylton, the doctrine’s application to baseball can be traced to the 1913 Missouri Court of Appeals decision in Crane v. Kansas City Baseball & Exhibition Co. The case decided that because Crane had chosen to sit in an unprotected seat, he had assumed the risk of his injury from a foul ball. The court held, however, that the operator of the ballpark was not completely free from a duty of care to its patrons. The court applied the business visitor rule, holding that the defendants “were not insurers of the safety of spectators; but, being engaged in the business of providing a public entertainment for profit, they were bound to exercise reasonable care, i.e., care commensurate to the circumstances of the situation, to protect their patrons against injury.” This care did not extend to providing entirely protected seating, but only required providing some protected seating for those who desired it.

Hylton explains that the decision in Crane, despite its origins in a fairly obscure court, has been followed in almost all subsequent foul ball injury cases and its principles continue to govern today. The decision seeks to obtain a balance between fan safety and fan entertainment. Because owners do not have a duty to protect all seating with protective netting or to warn spectators of the risks of foul balls, fans choosing to sit in unprotected areas in order to get closer to the action are held to have taken on the risk of any injury related to sitting in such seats. To most fans, the entertainment value has typically outweighed the (relatively small) risk of injury. This recent class action suit, however, seeks to modernize the issues and shift the entertainment-safety balance by expanding the park operator’s duty of care.

Many such cases have come forth and have been dismissed on the basis of the assumption of risk doctrine, and perhaps it is likely this latest one will suffer the same fate. However, the case raises the issue of whether an obscure decision from 1913 should continue to govern spectator injury cases in our modern world. The class action suit’s mention of modern realities – stronger players, faster gameplay, technological distractions – highlights legitimate and important differences between the fan experience now and what it would have been during Crane’s time. With such differences in mind, it may be an appropriate time to reconsider the doctrine of assumption of risk and its application to the modern spectator experience.

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The FIFA World Cup – #SayNoToRacism, #SayYesToConcussion?

June 20, 2014

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Last night’s FIFA World Cup football raised two important duty of care issues, concerning whether, and if so when, athletes have the right to continue playing? The first issue, concerning Uruguayan (and Liverpool FC) striker, Luis Suarez was whether he would be fit to play following minor surgery to the meniscus in his knee in late May. While meniscal injuries can have comparatively quick recovery periods, it is important to differentiate between full match fitness and the graduated stages of functional rehabilitation immediately preceding that. Why is this important? Put simply, if a player returns to play too quickly, or for too long, this will increase the risk of subsequent injury. It is interesting to compare the example of Suarez with that of the French winger, Franck Ribery who refused to allow the French medical team to administer cortisone injections immediately prior to the World Cup (http://bit.ly/1oMsFYx ). Indeed, FIFA themselves argued in 2012 that the ‘”abuse’ of painkillers could put the careers and long-term health of footballers in jeopardy” (http://fifa.to/1jBQpqi – although some of the headline conclusions from this study have been criticised: http://bit.ly/1idT5jb) so whose decision is it to allow athletes like Suarez to play? Ultimately, there are four decision-makers:

  • The athlete themselves – they must have an informed consent as to the risks of participation, or sub-optimal rehabilitation on their long-term health. It has however been argued that this consent could not truly be regarded as wholly voluntary, given the employment pressures that they may (or may not) be under
  • The medical team – in all matters concerning the health of the player, ultimately the responsibility of determining the fitness of an athlete to play must be down to the medical staff. While this may be straightforward in the case of family doctors, the sports medical practitioner may be faced with conflicting duties to ensure the welfare of the player, and obligations towards the team (see http://bit.ly/1nnSqZZ and the Bloodgate incident for discussion of the difficulties in enforcing professional ethics in elite sport environments)
  • The Manager – As the designated responsible person in charge of controlling their players, the final decision as to whether an athlete should be allowed to play will be down to the manager.
  • The rule-making body, FIFA will also retain an element of responsibility through their “agent” (referee’s) control of the match – at present, it seems that there are no explicit FIFA rules governing the rehabilitation of players and the use of pain-killers, beyond a reference to the respective WADA policy. This policy [effectively on the medical best practice of supporting Therapeutic Use Exemptions (TUEs) for Musculoskeletal injuries – http://bit.ly/1lFDcB7] allows medical staff a comparatively wide discretion to prescribe glucocorticosteroids and narcotic analgesics depending on individual clinical need.

So why is this a problem? Eight retired American Football players are currently suing the National Football League (NFL) claiming that the “unethical (substitution) of pain medications for proper health care led to addiction and long-term medical complications.” (http://nydn.us/1gOtbSC) The case is currently ongoing and unsurprisingly is being contested by the NFL, however given FIFA’s own admittance of the problem in their 2012 report, another governing body may be vulnerable to a similar class-action case….

Is it a knock-out round or the group stages?

The second related issue concerns the liability for concussive (or sub-concussive) injuries. Plenty has been written on both the risks of traumatic brain injury in sports and the recent 4th International Conference on Concussion in Sport (held in Zurich, November 2012). Indeed, FIFA was an active participant in this process and contributed to the final consensus statement (http://bjsm.bmj.com/content/47/5/250.full.pdf+html). The FIFA website also clearly lists the Pocket Concussion Recognition tool: http://fifa.to/1m1ypKD which helps to diagnose concussions in athletes.

Why therefore did this process go so badly wrong in last night’s match between Uruguay and England. In the 60th minute, Alvaro Pereira looks to be temporarily unconscious and appears groggy when he is escorted off the pitch a few moments later by the Uruguayan medical staff (http://yhoo.it/1w0zdmg) (see also an excellent analysis of the collision at: http://read.bi/1pOaqBt).  The problem is that when the Uruguayan medical staff clearly signal for a substitution, Pereira is adamant that he should return to the pitch and he subsequently plays out the game. This decision to return to play is clearly wrong. It could be defended if Pereira was assessed and did not exhibit any symptoms, but both lying motionless and an athlete’s subsequent unsteadiness on their feet are visible signs of concussion and the protocol states (in bold) that:

“any athlete with a suspected concussion should be IMMEDIATELY REMOVED FROM PLAY, and should not be returned to activity until they are assessed medically”

Does a cursory pitchside argument with medical staff constitute sufficient assessment? I would argue no. FIFA is supposed to have neutral doctors at every venue to intervene and/or overrule the team doctor, but it appears that no substitution or challenge was made in this case. After the match, ABC News & AP reports that Pereira was checked by team doctors. He is also quoted as saying:

“I said sorry a thousand times to the doctor because I was dizzy. It was that moment your adrenaline flowing in your body, maybe without thinking … what I really wanted to do was to help get the result….What really matters is that everything is OK. Nothing happened. It was just a scare” (http://abcn.ws/1nRUdIm)

Pereira is right to say that nothing happened this time, but sports officials have a duty to protect the athlete from themselves, and if the team cannot, this duty should fall on the referee. The situation echoes the similar ‘Hugo Lloris’ incident in November 2013 (http://bit.ly/1w0ueSx). At the time, Professor Jiri Dvorak (FIFA’s Chief Medical Officer) was quoted as saying:

“The player should have been substituted. The fact the other player needed ice on his knee means it’s obvious the blow was extensive, When he has been knocked unconscious, the player himself may not see the reality. I do not know the details but I know that the Premier League doctors are extremely good and I can imagine that the doctor may have recommended he be replaced. We have a slogan: if there is any doubt, keep the player out.”

Brazil 2014 may have disappearing sprays and goal-line technology, but ultimately these gadgets are sideshows to the main event. Until officials and teams can enforce FIFA’s own medical rules, football seems very vulnerable to a negligence action, given the widely identified and foreseeable risks to health. Sport may have an immunity for ‘playing rules’ but this immunity does not extend to unjustifiable risks, see for example: the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage. Indeed, the Pereira incident only gives greater impetus to the cross-party call for a UK Parliamentary Inquiry into concussion in sport (http://bit.ly/1qjXUaI). Published earlier this week, the document calls for five clear steps to be taken:

  1. A full parliamentary enquiry into concussion in sport
  2. A coherent set of concussion protocols covering all sports
  3. Independent peer-reviewed research into concussion and British sport
  4. Better co-ordination between sports, schools, colleges and doctors
  5. A clear message that concussion can kill.

These sorts of enquiries are much needed, but these recommendations are only a starting point. The media and the public have already shown themselves able to recognise concussive events and there was widespread disapproval on twitter of the decision to allow Pereira to continue  (although admittedly it is interesting to see ow much of this disapproval came from international commentators, medical professionals or from followers of other codes of ‘football’). Without some form of enforcement mechanism though – whether through tighter regulations from FIFA, self-enforcement by the teams themselves, or a fear of lawsuits brought by players – this type of incident will continue unchecked at all levels of the game. Until something fundamental changes, sadly we will be making similar comments in another six months….

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Why Lloris’ head injury was so severe that even the FA and Tottenham lost consciousness…

November 6, 2013

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brain

Although Tottenham’s website thankfully confirms that Hugo Lloris has been given the all-clear following a precautionary CT scan, if the outcome had been more tragic, Tottenham, the FA and the Premier League could all have been sued in negligence law, and most likely would have lost.

This article will review what liability exists, why, and what steps need to urgently be taken in order to manage this risk.

 

WHAT HAPPENED

Tottenham Hotspur played Everton in a Barclays Premier League match on the weekend. Near the end of the game (77th minute according to BBC live text website), the French international goalkeeper, Hugo Lloris suffered a head injury and brief unconsciousness following a collision with Romelu Lukaku’s knee in a challenge.

After a brief delay for treatment, Lloris was not substituted and played out the remaining 15mins of the match.

 

SO WHAT NEGLIGENCE LIABILITY EXISTED?

While the challenge between Lukaku and Lloris was not negligent, the actions by the team and authorities afterwards could create a liability along similar lines to the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage.

What is interesting is that despite the time-gap and the obvious differences between the two sports, there is a striking similarity between the two incidents:

  Watson Lloris
No player liability for the initial blow Eubank punch Lukaku challenge
No referee liability Referee stopped fight correctly Referee stopped game correctly
Rules of the game were followed BBBC rules on medical treatment followed At face value, FA [p.596] & Premier League [O.9] rules on medical treatment of head injuries followed as qualified medical personnel consulted
Medical professionals from outside the industry recommended more stringent rules Neurosurgeons attacked the BBBC rules pre-watson incident Stringent rules on concussion management recommended following NFL concussion suit, and other incidents particularly in Ice Hockey and Rugby

 

If we adopt the same Watson-esque reasoning for Lloris, a number of parties could therefore potentially be liable in negligence for breaching their duty of care towards the goalkeeper:

 

The Medical Professionals from the Club, and/or the Manager

Tottenham have based their media defence on the fact that they followed the FA rule on Head Injuries [6]:

All Clubs shall ensure that any player in a league match having left the field with a head injury shall not be allowed to resume playing or training without the clearance of a qualified medical practitioner.”

Because a qualified medical practitioner from the club assessed Lloris pitch-side, Tottenham argued that they were fully compliant with the relevant rules; and at first glance, this view seems correct. The situation however changes with a closer, more detailed examination of the FA rules on medical treatment. The next page of the FA rules states that:

Any player remaining immobile and unresponsive to verbal commands following a head injury will be regarded as being unconscious and treated in accordance with established principles for extrication and management of the unconscious player. There will be no return to play during that day……”

and further on that:       

“A player may suffer a transient alteration of conscious level following a head injury. It should be noted that under these circumstances, “transient” may coincide with the period of time between the injury and the arrival of the medical attendant at the player’s side. On-pitch assessment will include Maddocks questions as well as demonstration of conjugate gaze, “normal” visual acuity and full visual fields to confrontation. The player will only be allowed to resume play if asymptomatic and with normal co-ordination…..If a deficit is observed the player must be immediately removed from the field of play and regarded as suffering from a concussive head injury. There will be no return to play that day.”

The 4th Consensus statement on concussion in sport (supported and endorsed by FIFA) similarly says,

If any one or more of these [five] components are present [which includes loss of consciousness], a concussion should be suspected and the appropriate management strategy instituted.”

Given that it was widely reported in the media that Andre Villas-Boas (AVB) [the Tottenham Manager] admitted that:

“He [Lloris] doesn’t remember it so he lost consciousness. It was a big knock but he looked composed and ready to continue.”

This would seem to suggest that with either interpretation, by continuing to play Lloris, Tottenham was in violation of the FA rules. Either Lloris was briefly fully unconscious, in which case there should be no return to play, or he had an observable deficit (dizziness, memory loss etc) in which case he should not have returned to play.

The only justification for allowing Lloris continuing to play would be that the injury was transient. This is however a difficult medical decision that should be made solely by medical professionals, ideally in a quiet, non-pressurised environment. In a post-match interview with Sky however, Villas-Boas suggests (at 2m30 in) that:

“The medical department was giving me signs that the player couldn’t carry on, because he couldn’t remember where he was….but he was quite focused and determined to continue, so when you see this kind of assertiveness it means he is able to carry on, and that is why it was my call to delay the substitution.”

Based on the mechanism of injury and his unconsciousness on the pitch, the evidence strongly suggests that Lloris sustained some type of concussion. Indeed his post-match rehabilitation would support this conclusion as it looks to be proceeding along the lines of a concussive injury (CT scan, medical assessment, rest). Given this, the Tottenham decision to allow Lloris to keep playing would seem contrary to the FA rules on Head Injuries and raises serious question marks over the influence of the medical staff in this decision-making process. Were they overruled by AVB? Or did the medical staff make this decision free from any managerial interference?

If the recommended solution was simple [removal of the player], would have comparatively little effect on the game [a substitute keeper was available and ready] and the risks of failing to do this were significant [death, or serious injury from second impact syndrome / Chronic Traumatic Encephalopathy (CTE)], then arguably if an injury had result, it would have been negligent not to have taken these steps.

  

The FA / Premier League Rules.

Even if we take the alternative superficial view of this incident (that Tottenham acted within and implemented the relevant FA / Premier League rules on Head Injuries), this is not sufficient to excuse their duty of care to the player. It could however be used as persuasive evidence that the Club had acted reasonably by taking appropriate advice and relying on the FA scientific experts to lay down appropriate medical rules (outside the competence of the club). Liability would then pass to the governing body / league for negligent rule-making.

Indeed, just as the Court of Appeal held in Watson that:

“The Judge held that it was the duty of the Board, and of those advising it on medical matters, to be prospective in their thinking and to seek competent advice as to how a recognised danger could best be combated. He held that he was left in no doubt that the Board was in breach of its duty in that it did not institute some such system or protocol as that which Mr Hamlyn was later to propose. He held that anyone with the appropriate expertise would have advised the adoption of such a system.” [121]

So this finding is equally instructive to this incident. It would be surprising if anybody in professional sport was not aware of the risks associated with concussion following protracted litigation in North America from both the NFL American Football players association, and NHL ice-hockey players, not to mention recent rugby incidents – most notably George Smith’s infamous return to the field following a heavy collision.

Could or should the FA have done more? Arguably yes. As regulators of the game, there needs to be a clearer stance taken as to how the rules should be applied, and whether in the first instance, they are actually strict enough. While there have recently been some clubs that display admirable restraint, for example Norwich’s substitution and treatment of Robert Snodgrass following a heavy collision with a defender, there have equally been occasions this season where concussed players have continued to play – indeed ironically, Lukaku himself was briefly knocked out during the Everton-West Ham game on September 21st. If the FA and Premier League are aware that players are not being substituted, then their continued tolerance of this practice must surely constitute tacit acceptance?

As Watson shows though, even full adherence to the FA rules may not act as a defence to a negligence claim if other sports or medical professionals implemented more stringent standards.

  • For example, any ice-hockey player suspected of concussion in the NHL is removed from the bench to a quiet place so that a full Sports Concussion Assessment Tool (SCAT2) test can be administered. 
  • Similarly, the NFL test for American footballers based on the SCAT test typically takes 8-12minutes to complete.
  • Perhaps most tellingly though, Dr Barry O’Driscoll (formerly the IRB medical advisor) recently stated that “it’s ferocious out there…there is no test that you can do in five minutes that will show that a player is not concussed….to have this acceptable in rugby, what kind of message are we sending out?”

What is considered reasonable should therefore be judged in the context of safe practice recommended by the medical experts in the field, for example, adopting the 4th Consensus statement on concussion in sport, supported and endorsed by FIFA (amongst other signatories), or reviewing literature and protocols from North America where awareness of concussive injuries seems to be much better understood. It is not sufficient for The FA to argue that their rules on head injuries are the strictest that they have ever been, or that with FIFA F-MARC accreditation the medical facilities at St. George’s Park are world class, instead what is needed is a world-class implementation of safe, effective rule-making and sadly this weekend’s incident exposes the deficiencies in the current system.

 

Recommendations

This article would suggest four actions need to be taken urgently:

  1. The FA or League to impose disciplinary sanctions for clubs acting against the safety of a player – If no sanction exists for ignoring or misapplying the FA rules on Head injuries (or any other medical condition affecting the safety of participants), then medical staff and managers are not incentivised, beyond their own professional values, to make ‘correct’ or ‘safe’ decisions. What is instead needed is for the FA to implement fines or other disciplinary measures for a failure to follow agreed medical protocols. The FA (and clubs) have a duty of care to protect the safety of the players, and much as hard-helmets and ear-protection are mandatory and punishable by health & safety violations in the construction industry, so the FA need to implement a system of enforcement for the (mis)application of their rules.
  2. The FA or League to implement ‘medical suspensions’ akin to yellow and red cards. Just as players might receive suspensions following red cards, so automatic minimum medical suspensions could be triggered followed head injuries. If players, coaches and officials were not just educated about the risks of concussion and return-to-play protocols, but had to abide by minimum suspensions (for example, 5 days), then this would help to reinforce the potential seriousness of the injury. Clubs would of course be free to extend this recuperation as needed, but a minimum mandatory rest-period could also help change public perception that athletes were not being brave by continuing to play and wimps for being substituted, but rather that this decision was taken out of their hands by the governing body. A system of governing body / league ‘medical suspensions’ would also assist with epidemiology as it would make it easier to track repeated concussive injuries or identify particular high-risk athletes.
  3. The FA to review concussion best practice in other sports. Following the clear principle laid down by the Court of Appeal in Watson, the FA as the industry regulator has a duty of care to provide best medical practice, and continuously review these protocols in light of other sports or medical guidelines, with a view to making alterations to the current rules if necessary. [At the time of writing, this recommendation seems to already be in progress]
  4. Consider whether independent medical teams should have ultimate decision-making authority over clubs.  Finally, to avoid any appearance of undue influence, conflict of interest or pressure being exerted on club medical staff (as was observable with Dr Wendy Chapman, the club doctor at the centre of the ‘Blood-gate’ scandal in rugby), it may be advisable for the FA to leave the decision over whether a player sustained a concussive injury, or other medical condition affecting the safety of a player, to an independent doctor available on the side-line. Of the four recommendations, this last point is however more controversial and would add an additional expense to games, particularly since the other three recommendations could equally be applied throughout the Football League structure comparatively easily.

Whether footballers are viewed as human beings, or as multi-million pound club assets, they deserve the protection and safety of the very best medical protocols, whether they want this protection (or in this incident, not). The injury to Lloris represents a warning to the FA that it is not just the professional football clubs that would face negligence liability, but rather the regulator would also be liable for a failure to act in the face of foreseeable injuries. Concussions may be comparatively invisible, but that doesn’t mean the regulator should be as well….

 

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In Loco Scholam: Analysing Woodford v. Essex County Council (and others) [2013] UKSC 66

October 25, 2013

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Link to the full Supreme Court Judgment

Glancing quickly at the 13yrs since the initial swimming accident, you may be forgiven for thinking that Woodford v. Essex CC contains more history, politics, drama and civics than physical education. Indeed, it is perhaps somewhat surprising that despite Wednesday’s Supreme Court ruling, 4 other trials and 2 Health & Safety Executive reports, the case is still only in its initial stages! However delve a little deeper and this somewhat tangled web belies the case’s considerable importance for determining and apportioning negligence liability through primary or non-delegable duties.

The infographic below may help clarify the current litigation (Click here to download as a PDF version): Woodlands

What happened?

At its core, the case concerns ten-year old Annie Woodland, who suffered a serious hypoxic brain injury while taking part in a school swimming lesson on 5th July 2000.  As part of their National Curriculum obligations, Whitmore Junior School had contracted with Beryl Stopford (trading as Direct Swimming Services) to provide swimming lessons for their pupils at the local pool in Essex. Mrs Stopford in turn assigned two employees to deliver the lesson and be present as a lifeguard. The class was streamed into two groups, with the claimant (Annie) swimming with the more experienced group from the deep end into the shallows. Tragically, during the lesson, the claimant got into trouble and was found “hanging vertically in the pool” and in need of resuscitation.

The case arises because the exact nature of who found her and the quality of the supervision leading up to this point has yet to be determined by the courts and as such is fiercely disputed by the parties. In the meantime, both parties are arguing about what duties are owed rather than establishing the facts.

  1. Round1 (Claimant 0 – Defendant 1): Originally in 2007, the solicitors for the 1st Defendant – The Swimming Teachers Association (the trade body that provided insurance for both Mrs Stopford and Ms Maxwell) admitted full liability for the incident. However in 2009, when new solicitors (Fishburns) took over the case, Fishburns immediately retracted this admission, leading to litigation on whether an admission of liability pursuant to CPR r.14.1A(5) could be retracted? (the Court of Appeal subsequently held it could, particularly in the interests of justice, and the CA judgment contains a good summary and analysis of the factors that would need to be considered).
  2. Round2 (1-1): Perhaps emboldened by this conclusion, Essex County Council tried to argue that responsibility lay solely with the STA for the alleged negligence, as there was no direct vicarious or employment relationship between the school and the ‘independent contractors’ (Mrs Stopford, Ms Maxwell and Mrs Burlinson). By contrast, the claimant argued that the school had a ‘non-delegable’ duty of care towards its pupils.

 

Non-Delegable duties 

Both the High Court (Langstaff, J) and the majority of the Court of Appeal (Tomlinson & Kitchin LJJ, Laws LJ dissenting) stated that the education authority did not owe a ‘non-delegable’ duty, indeed the Court of Appeal suggested that they were:

“precluded from recognising the non-delegable duty of care for which the Appellant has argued on this appeal….[given] the imposition of such a duty would have significant implications not just for all education authorities but also for all those who operate schools and hospitals…” [33]

The recent decision of the Supreme Court overrules this and Lord Sumption (giving the leading opinion) summarises non-delegable duties at [23] as applying where:

  1. The claimant is especially vulnerable and/or dependent on the protection of the defendant against the risk of injury

  2. There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, which places the claimant in the actual custody, charge or care of the defendant, from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

  3. The claimant has no control over how the defendant chooses to perform these obligations, i.e. whether personally or through employees or through third parties

  4. The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

  5. The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

 

Implications

While Lord Sumption may have queried that:

“It must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation.” [2]

echoing Lord Justice Tomlinson’s earlier perceptive comments in the Court of Appeal that:

“If it is, the authority’s admission that the class attended for a swimming lesson at the pool under the control and supervision of the Second Defendant’s servants or agents may not tell the whole story. There would be scope for enquiry as to the extent to which the class in such circumstances remained in the care of the teacher from the school. The notion that the authority by its employees had no control over the manner in which the swimming lesson was conducted or supervised may be wholly unreal. The circumstances may be such that it is quite unnecessary to be searching for a non-delegable duty in order to impose liability upon the authority.” [36, CA]

The judgement does have important policy implications for schools and other providers. Interestingly, it appears that in practical terms, the law has finally caught up with what teachers and education professionals have been preaching for years, namely that schools should be ultimately responsible for the safety of pupils.

Indeed, guidance from AfPE (Safe Practice & Physical Education, (2012) [3.4.26]) in relation to the earlier CA decision stated that the (2012) judgment,

“does not alter a school’s continuous duty of care to students where activities take place on site, whether delivered by a teacher or support staff, such as a visiting coach, because the workforce regulations demand that the coach is managed by the teacher so the teacher maintains responsibility even though someone else teaches the class.”

What is now clear from the Supreme Court judgment is that schools utilising specialist coaches or support staff to deliver aspects of the National curriculum may retain a liability that goes beyond performing initial recruitment and suitability checks for the role, and is akin to a ‘non-delegable’ duty to protect the safety of the pupils regardless of whether any contractual or employment relationship existed with the provider. Importantly, this duty extends to activities performed off-site, by non-teachers, unsupervised by any school staff, as long as the purpose of the activity can explicitly be linked to traditional school or national curriculum obligations.

Lady Hale argued at [42] that this was not as big a policy change as it might look:

“large organisations may well outsource their responsibilities to much poorer and un- or under-insured contractors. Nor can it be an objection that there may be more than one tortfeasor to hold liable.”

In making this statement, Lady Hale is explicitly countermanding Lord Justice Tomlinson’s suggestion from the CA judgment that:

“The days are long gone when we ignored the incidence of indemnity insurance. One would expect the costs charged to the Fourth Defendant [Essex CC] for the service provided by the Second Defendant [Beryl Stopford] to reflect the cost of the Second Defendant arranging adequate insurance. The only purpose of the present appeal is to ensure that liability is brought home to a defendant with sufficient resources to meet the possible award.” [34, CA]

Lady Hale’s approach seems much more legally justifiable and more accurately reflects the purpose rather than the delivery mechanism of the activity. Lady Hale also suggests that this reasoning is more likely to be accepted by “the man on the underground” [29] (it would seem that riding on omnibuses is so 20th century!)

That said, Lord Sumption was careful to limit the extent of this liability, suggesting at [25(3)] that schools:

“Are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions…..They will not be liable for the defaults of independent contractors providing extra-curricular activities outside of school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours…”

Of all the areas of the judgement, this latter section gives the most potential for future litigation, as potential claimants will no doubt argue that an educational field-trip during the school day could be equated to a core function. Whether it will or not, is ultimately a question of fact, (and possibly irrelevant given the presumed concurrent vicarious liability of school staff accompanying the pupils). In theory at least though, this principle is an expansion of liability that education and healthcare providers would be well advised to note.

In conclusion, the Courts may have rightly disregarded the oft-cited loco parentis as unhelpful, given the very different responsibilities of parents and schools, however I would suggest the legacy of the Supreme Court judgment is to create a new maxim: in loco scholam (in place of the school), let’s see if that catches on……

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Football Player Sues Canadian University for Brain Injury

September 22, 2013

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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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