Last month my recreational hockey career was (temporarily) interrupted by a season-ending injury suffered during a game. While it would never occur to me to blame anyone for the injury, it is interesting to consider when a participant in a sporting event might actually have the right to sue someone who causes him or her an injury.
The issue was addressed by the Ontario Court of Appeal in the recent case of Kempf v. Nguyen.
This was a case arising out of an incident that took place in 2008 during a charity bicycle ride to benefit the Heart & Stroke Foundation. In that ride, which was is an annual event, over 12,000 cyclists took to the Don Valley Parkway in Toronto. The ride was open to cyclists of all abilities. Participants could choose a 25, 50 or 75 kilometre route. The road was closed to cars for the event.
Like most charity rides, this was not a competitive event. There were no prizes. Having said that, many cyclists at these events tend to ride as fast as they can. The entire roadway was open to the cyclists but experienced cyclists at these events often ride in packs to take advantage of the ability to draft. Inside the packs, riders roughly organize into lines with one cyclist following immediately behind another. The front wheel of a cyclist is often within a foot or less of the back wheel of the cyclist ahead.
The parties in this action, Mr. Kempf and Mr. Nguyen, were both experienced cyclists and members of cycling clubs, riding several times a week. Both were familiar with the generally understood rules pertaining to cycling safely in a group.
To participate in the ride, Kempf and Nguyen signed a waiver that made it clear that each cyclist was releasing the Heart & Stroke Foundation of Canada and its sponsors from any liability arising out of the cyclist’s participation in the event.
Shortly after the ride started, Nguyen was at the back of the first group of cyclists intending to ride 75 kilometres. A second group was slightly behind. Kempf was at the front of the second group.
Wanting to join the first group, Kempf approached Nguyen’s left side. At a point at which Kempf’s front wheel overlapped Nguyen’s back wheel, Nguyen swerved to the left, clipping Kempf’s front wheel with his back wheel. Kempf fell to the ground. A number of other cyclists rode over him. Some of them fell as well. Kempf was seriously injured.
It appears that Kempf tried but was unable to avoid the contact with Nguyen. Both cyclists were travelling between 20 and 25 kilometres per hour and the contact happened in a split second.
Nguyen did not stop after the impact of the two bicycles. Kempf was later able to identify Nguyen as the rider who collided with him by looking through pictures of the ride posted online.
Kempf sued Nguyen for damages for negligence. Nguyen’s evidence at trial was that immediately before the impact, the rider two places ahead of him suddenly slowed down. This caused the rider directly ahead of him to take the evasive measure of decelerating and swerving to the right. Nguyen was not forewarned of this and had no time to consider his options. To avoid impact with the riders ahead, he swerved to his left. He had no time to shout out a warning. He was not aware that there was someone moving up behind him on his left. In cross-examination, he admitted that his sudden movement to the left was not one that he would ordinarily make in a group ride.
Immediately after swerving to the left, he heard a crash behind him. He did not look back as he was concentrating on the rider in front of him. He carried on with the ride apparently unaware of his involvement in what had just happened.
The trial went on for five days. The trial judge found that Nguyen’s actions had caused Kempf’s injuries.
Nguyen appealed to the Court of Appeal on a number of grounds, including the fact that at the outset of the trial, the trial judge had dismissed the jury and proceeded with the trial on a “judge alone” basis for certain technical reasons.
At the appeal, in a two-to-one decision, the majority set aside the judgment on the basis that the jury notice should not have been struck, and ordered a new trial. However, the interesting point in my view has to do with the court’s views as to Kempf’s right to recover on any basis.
Kempf had signed a waiver at the outset. However, the waiver was very clearly intended to benefit the ride organizer. No document was signed in which Kempf waived his rights against other cyclists acting negligently.
However, Nguyen argued at trial that Kempf should not have been able to recover anything on the basis of a doctrine of law identified by the Latin phrase volenti non fit injuria – literally, “to one who is willing, no harm is done”. Kempf had agreed to participate in this event knowing full well that people sometimes fall off bicycles and hurt themselves. As a result, when that happened to Kempf, he had no one to blame but himself.
This type of argument is not new. People have tried to sue each other over injuries suffered, for example, during fights on the ice at hockey games. There is always an argument about whether or not a participant voluntarily assumes the risk of an injury arising out of that type of violent event, given that hockey typically involves physical contact.
The Court of Appeal made it clear that in sports such as hockey or basketball, for example, players have to assume some risk of injury from bodily contact even if it is intentional or in breach of the rules. This type of thing is part of the ordinary risk of the game. Nevertheless, such conduct in these contact sports will be unacceptable where it is malicious, out of the ordinary or beyond the bounds of fair play.
Having said that, sports participants are not exempted from the application of ordinary negligence law. If a defendant conducts himself in a negligent manner, he will have to answer for the damages that he causes. When Kempf decided to participate in the ride, he assumed the usual risks associated with it including the actions of reasonable cyclists who could be expected to follow the known rules governing group rides. However, in the view of the court, by its nature “cycling is not a contact sport or one that involves physical encounters with opponents such as football or rugby”. Since Nguyen’s actions went beyond what Kempf agreed to reasonably expect given the nature of the activity, he was liable for damages.
In my view, it would seem that the extent to which a participant accepts the risk of injury will actually depend on two things. The first is the nature of the activity. Clearly, the more violent the activity, the less likely an injured party will be able to sue. Secondly, it seems fair to say that any negligence on the part of a participant causing injury to another will be actionable. However, the question of whether or not a participant’s conduct was negligent will be related to the nature of the sport. In other words, the more inherently violent the sport, the less likely that violent conduct on the part of a participant causing injury will be considered to be negligent.