Posted: October 07, 2015
By: Steve Rastin

It is important to be fully aware of the risks before engaging in any type of physical activity. It is also prudent to ensure your understanding of the meaning and legal ramifications of any waivers and legal documents you sign, whether in the context of potentially dangerous sports or activities, or other contractual agreements.  A waiver is a voluntary contractual agreement in which the participant surrenders a right.  Waivers essentially release the other party from liability, real or potential.

If you sign a liability waiver, you likely have a claim for damages if it can be demonstrated that the facility or owner created an unsafe condition that caused your injuries and was beyond the reasonable and normal characteristic of the activity. Persons who are subsequently injured after signing a waiver may also sue for damages claiming they did not truly understand what they had signed.  Such claims are sometimes successful, but sometimes the adage “ignorance of the law is not a defence” is a painful lesson for those individuals.  When we sign a waiver that absolves an organization of any legal liability, we cannot hold the other part responsible for injuries that were within the context of what is reasonable for the activity.

These two elements, the risk of engaging in a potentially hazardous physical activity and the signing of a liability waiver, are the key focus of Mr. Robbie Levita’s personal injury suit against Mr. Alan Crew and True North Hockey Canada (Levita v Alan Crew et al., 2015). While playing in a recreational hockey league operated by True North, Mr. Levita sustained a fractured right tibia and fibula when he was slammed from behind by Mr. Crew, during a game. The injury required Mr. Levita to have both closed and open reduction surgery, as well as internal fixation surgery with the insertion of two plates and 18 screws.  Mr. Levita was unable to work for three months following the incident, and continues to suffer ongoing pain.  He underwent various rehabilitative treatments including physiotherapy and chiropractic, but the decreased range of motion in his ankle prevents him from achieving the same level of mobility and activity that he enjoyed prior to the accident.

It is notable that the True North Hockey league in which Mr. Levita and Mr. Crew played is a ‘no contact’ adult recreational league; however, ‘contact’ commonly occurred and was an anticipated part of the game.  Further, both men played for teams in the ‘A’ division, which was characterized by frequently aggressive play.

Mr. Levita believed that Mr. Crew’s action was a deliberate and reckless one and not a reasonable part of the game. He also held True North liable, as he believed they should have recognized Mr. Crew as dangerous and a threat, and taken the necessary steps to protect other players from him. As a result, Mr. Levita proceeded to sue Mr. Crew, as well as True North Hockey Canada for non-pecuniary damages (for pain and suffering).

The key issues that faced Justice Firestone are: did Mr. Crew intentionally injure Mr. Levita or was his action a result of ‘normal’ play; was True North negligent in their behavior and did their waiver and volenti constitute a defence for them; and what is the appropriate assessment of damages for the case.

With regards to the first issue, Justice Firestone referenced Sexton v. Sutherland, which provided guidance on three factors to consider in determining whether or not there was an intention to injure another person.  First, it was asked whether there was a previous incident between the plaintiff and defendant that would give the defendant cause to injure the plaintiff.  Second, did the defendant’s actions at the time lead one to reasonably conclude that they resolved to cause serious injury to Mr. Levita? Intentionally reckless conduct can constitute negligence, even in a rough sport like hockey.  Finally, what magnitude of force would be necessary to cause injury?

After reviewing all the evidence, Justice Firestone found that there was no previous incident between the two men that would suggest Mr. Crew sought to intentionally injure Mr. Levita. Further, based on the physicality of the sport and the fact that Mr. Levita had possession of the puck at the time of the hit, the various testimony and facts of the case led to the conclusion that there was insufficient evidence to conclude that Mr. Crew intended to injure Mr. Levita when he skated into him. Finally, the force with which Mr. Crew slammed into Mr. Levita was not uncommon for the sport and the latter could have suffered the same injury from a light shove or losing his balance on the ice.  Although Mr. Crew was given a penalty during the game for his carelessness in checking Mr. Levita while he was close to the boards, Justice Firestone concluded that Mr. Crew’s action was not intended to cause serious injury.

With regard to the negligence claim, Justice Firestone noted that the standard for negligence is flexible depending on the individuals involved and the nature of the activities in which they were engaged. For example, the risks involved in simply walking to work are very different than those involved in engaging in a full contact sport like hockey.  Specifically, a hockey player accepts the risks of injury that may be experienced in normal play or even in contravention of the rules as long as there was no intention to do serious injury.  With this in mind, the judge ruled that there was a certain level of risk of which Mr. Levita was well aware and should have expected, but he demonstrated acceptance of the risk by continuing to play in the hockey league for several years. Justice Firestone did not believe that Mr. Crew went beyond that level of expected risk; thereby he was not negligible in his actions against Mr. Levita.

Justice Firestone further stated that since Mr. Crew was not found negligent in causing Mr. Levita’s injury, it follows that True North is also not liable. Justice Firestone added that even if he had found Mr. Crew liable, he would nevertheless have ruled that True North was not liable for the following reasons. There was insufficient evidence, based on Mr. Crew’s historical style of play, to raise a concern that he was a threat to other players, as Mr. Levita claimed; consequently, True North was not negligent in failing to suspend Mr. Crew from the league. As well, evidence showed that True North had many rules and a penalty system in place that went above and beyond what was recommended for recreational hockey leagues.

Even if True North had been found guilty of negligence for not providing a sufficiently safe environment for its patrons, Justice Firestone concluded that the waiver the company asked everyone to sign before competing in their league, would have completely exonerated them.  The liability waiver clearly stated the risks for which liability must be assumed by a player; for example, it specifically referenced physical contact with other players which may result in serious injuries including permanent paralysis.  Justice Firestone concluded that there was nothing ambiguous about the waiver in terms of the possible physical risks of playing in the league. He consequently rejected Mr. Levita’s claim that the waiver was not adequately explained to him and noted that if that were the case, he should have asked for further clarification before signing it.

The lawyers representing True North put forth the volenti defence or the defence of implied consent. The defence applies when a plaintiff has willingly assumed both physical and legal risk of engaging in a particular activity, which essentially True North’s lawyers believed Mr. Levita did by signing the waiver. While the defence was not employed, as Justice Firestone found neither True North or Mr. Crew negligent in Mr. Levita’s injury, the judge felt it necessary to acknowledge that the defence would have successfully vindicated True North. Not only had Mr. Levita willingly signed a waiver clearly stating that True North would not be liable for any physical injuries, but he also continued to play in the league for more than a decade, despite getting other minor injuries and experiencing first hand the aggressive nature of the games.

Despite his findings on liability, Justice Firestone ruled in Mr. Levita’s favor in regards to the issue of general non-pecuniary damages. He noted that Mr. Levita did in fact suffer a very serious orthopedic injury, one that would continue to have a significant impact on his life. For this reason, he awarded Mr. Levita $90,000 in non-pecuniary damages (for pain and suffering) and a subrogated claim on behalf of his insurer for benefits he paid to Great West Life Assurance Company under his group policy, in the amount of $4,422.73.

As well as understanding the full risks of any physical activity in which we choose to participate, we must be cognizant of all the implications of a waiver or any contract we sign, in terms of what it could mean for us in terms of future risks and negative consequences.  If you are confused by the purpose or content of any legal document you are asked to sign, it is prudent to contact an attorney. An experienced lawyer can clarify your risks and obligations under the contract, and can assist you in making a decision that is in your best interests.

If you have been injured in a recreational accident or any other type of incident, the personal injury lawyers at Rastin & Associates are available to review your case and advise you on the merits of your claim.  We specialize in personal injury cases and accident disability insurance claims.  Rastin & Associates has a reputation for compassionate and respectful service, while applying our expertise and experience to attain the best possible compensation for you and your loved ones.



 
Disclaimer: This blog is intended to provide information on current issues that may affect people in their everyday lives. We have made every effort to ensure that we relay accurate and easily readable content, however, information found here should never be taken as legal advice. Always speak directly to a lawyer for information specific to your situation.

Call us at Rastin & Associates if you have questions concerning your case or any general queries.

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