One wrong move
Drew Casterton was injured in March 2012 when he was hit from behind by Gordon MacIsaac during a beer league hockey game in Ottawa, Ontario. Casterton suffered a minor traumatic brain injury due to the collision that continues to cause him headaches and fatigue. His earning capacity and quality of life have been negatively impacted as a result. Casterton sued MacIsaac for damages claiming that the hit was intentional, which MacIsaac denies.
Checking from behind
The NHL strictly prohibits checking from behind in its Official Rules:
“43.1 Checking from Behind – A check from behind is a check delivered on a player who is not aware of the impending hit, therefore unable to protect or defend himself, and contact is made on the back part of the body.”
Hockey Canada also enforces strict rules and penalties for checking from behind.
Court holds MacIsaac liable
On January 10, 2020, Ontario Superior Court Justice Sally Gomery ruled in favour of Casterton and found MacIsaac liable for Casterton’s injuries.
Gomery analyzed past case law on negligent conduct in sports. She determined that the Courts have ruled that a hockey player gives implied consent that he may be subject to injury arising from bodily contact when he is on the ice (Agar v. Canning (1965) 54 WWR 302). In other words, players understand that they may become injured as a result of playing hockey. However, she later emphasized that the Courts have also found that this implied consent is not synonymous with “anything goes” (Levita v Crew et al., 2015 ONSC 5316).
The Court clarified that a person injured during a sports game does not need to prove the intent to injure, but rather that the injury was caused due to negligent conduct. Justice Gomery found through testimonies from other players who witnessed the incident that the hit to Casterton was outside the bounds of fair play in hockey. Casterton was awarded $702,551.00 in compensation payable by MacIsaac. This amount represents general damages along with the past and future income Casterton has and will continue to lose due to the injury he sustained.
This same incident was tried criminally in 2013. At trial, MacIsaac was found criminally responsible for aggravated assault on Casterton. This decision is currently on appeal.
A word of caution for hockey players
Casterton v MacIsaac, 2020 CanLII 1088 (ON SC) highlights a change in how the Courts view hockey injuries. Players should be aware that their actions can have consequences that extend beyond the arena. If a hockey player acts outside the rules of fair play and causes injury, then the player may be held criminally and/or civilly responsible for their actions.
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