Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.
***
Marc Leonard and Andrew Dunn played recreational hockey in a non- contact league. Marc, a defenseman who was neither fast nor aggressive, and who weighed 285 pounds, played for the Rangers. Andrew, a forward who was not only fast but a top scorer on his team, and who weighed 155 pounds, played for the Wild Hogs.
It was the third period and both Marc and Andrew were chasing after the puck along the boards near the Ranger’s goal. The two players were skating in roughly the same direction when they collided. Neither man intended to body check the other. Neither man injured the other. The contact was incidental to the play, and nothing out of the ordinary in that both players were jockeying for the puck when their bodies made contact. Because it was a non-contact game, it was the practice of the referee to immediately whistle down play to stop possible escalation of the situation.
During the stoppage of play and without any warning or provocation, Andrew suddenly punched Marc right in the mouth with his gloved hand. There was a sudden gush of blood from Marc’s mouth and Marc spat out two of his teeth. Not surprisingly, Marc sued Andrew for assaulting him.
At trial Andrew argued that all the players in the hockey league, including Marc, had signed a waiver before the game. The waiver released anyone in the league, including the arena owners and the other players in the game, from any and all liability for any injuries or death suffered during a game.
In other words, Andrew argued that everyone, including of course Marc, had acknowledged before the game that they could be injured or even killed during play, and that they were prepared to accept that risk. It was after all, hockey, eh!
So, what do you think? In light of the waiver, did the judge agree with the defendant Andrew that possible injury is a part of the game? Or did he side with Marc and award damages?
The judge decided that when Marc signed the waiver he was assuming the risk that goes along with playing hockey in a non-contact game, and injury during the game was one of the risks. But, the judge said:
“However fraught with potential for injury, hockey is nevertheless a sport, a contest of skill and strategy to be carried out in a competitive but sportsman like manner. It is not a bar room brawl. When a player signs the game sheet agreeing to the terms of the waiver, he is assuming the risks inherent in playing the game; he is not volunteering to be the recipient of a battery” (an unprovoked punch in the mouth).
The judge awarded Marc:
- $7,547.46 in special damages;
- $10,000 in general damages;
- $3,000 in aggravated damages.
Andrew appealed. He lost. The costs of the appeal to Andrew were $7,500.00.
In the end, one punch cost Andrew over $28,000, and the memory of a hockey game he is unlikely to forget.
Lesson to be learned?
In hockey, as in life, assaulting anyone can be a costly decision…it is always better to ‘skate’ away.
If you are charged with assault, or if you are the victim of an assault, the Ross Firm has lawyers who have dealt with both situations successfully.
