Thursday, September 26th, 2013

By Christine Matthews


Sports and exercise related injuries account for over a third of injuries suffered by Canadians and two-thirds of injuries among children aged 12 to 19.[1]  Athletes must accept certain causes of injuries as risks inherent to their sport.  However, absent a valid waiver stating the contrary, athletes will have a cause of action against another player, organizer or manufacturer who is negligent.


A duty of care either exists or it does not.  The presence of an inherent risk in an activity does not fundamentally change the nature of a relationship between two parties so as to justify a decision in law that the relationship is one that ought not to give rise to a duty.

The presence of inherent risk in a sport or activity modifies the standard of care to which a defendant will be held.  What constitutes reasonable care depends on the perils which a person engaged in a particular sport might reasonably expect to encounter.

The customs, practices and rules of a particular sport, activity or league will guide the court in determining the standard of care to apply in different levels and types of sports and activities.

Where an injury is caused by the conduct of another participant, the case law can be rationalized by considering two points: (1) whether or not the defendant’s conduct was ordinary, common or purposeful to the activity or sport and (2) whether the conduct violated the rules or accepted customs of the sport or activity.  Consider the following examples from the case law:

(a)   Sliding towards home plate to score a run and injuring the catcher in a co-ed softball game was not negligent since the league rules allowed sliding, and therefore there was no recovery for the plaintiff catcher.

(b)   Violating the 5 yard non-encroachment rule and spearing a punt receiver in a varsity university football game was negligent.

(c)   A snowmobile driver was not negligent for racing too fast or being too eager to win because that is the very essence of racing.

(d)   A plaintiff sulkey driver who completed his horse’s training run and violated the general custom of looking over his shoulder before entering the jogging lane was unable to recover from the defendant sulkey driver who crashed into him from behind.  The Court held that the plaintiff created a danger contrary to the practice and custom of horsemen on training runs.

(e)   An attempted and missed stick check in a non-contact men’s hockey league of above-average skilled players was not negligent even though against the rules, because it was a legitimate defensive tactic to prevent a goal and stick checking was very common in the league.

(f)    Skiing customs require uphill skiers to watch out for and avoid skiers below, the breach of which will be found to be negligent.

(g)   A water skier likely accepts the inherent risk of colliding with a submerged and unobservable object, but not the risk of colliding with another stationary boat.  The latter is the result of a negligent boat driver.

See Kempf v. Nguyen 2013 ONSC 1977 (CanLII), a recent Ontario decision handled by Patrick Monaghan and Heather Taylor of Monaghan Reain Lui Taylor LLP, currently under appeal, that considered the standard of care owed by group cyclists participating in a group ride.  The trial judge found that the sudden and non-signaled movement of the experienced defendant cyclist right into the path of our client, the plaintiff cyclist, while riding in a group, was not an inherent risk of group cycling.



[1] Jean-Michel Billette & Teresa Janz, “Injuries in Canada: Insights from the Canadian Community Health Survey” (June 28, 2011), online: Statistics Canada ,>.

This blog entry has been placed on our website to inform readers in a general way of the authors’ view of the law at the time of its presentation. It is not intended as legal advice and no reliance may be placed on its contents. Some principles of law or procedure may have changed and may no longer be applicable since its publication. The authors and Monaghan Reain Lui Taylor LLP disclaim any liability arising from reliance on any part of this blog entry.

Category: Update.