Hockey Injury Case Dismissed: Brain Injured Player Left to Fend for Himself

“Negligence: …the failure to use such care as a reasonably prudent and careful person would use under similar circumstances…”
(Black’s Law Dictionary)

Insurance companies, newspapers and “Tort reformers” love to bombard the public with reports of lawsuits that appear “crazy”.  Almost everyone has heard something about the “McDonalds coffee case” or like cases where people apparently recover vast sums of money for somewhat trivial injuries which have resulted from seemingly entirely preventable or foolish accidents. The public shakes its collective head and wonders about a justice system which has lost its common sense.

Or has it?

Truth be told, more often than not the public receives either an incomplete or highly biased report of such cases.  This leads to a general assumption that compensation is due, regardless of the cause or severity of the injury.  It fails to acknowledge the issue of negligence, and whether the accused party is indeed “at fault” in the legal sense of the word.

Throughout our judicial system there are cases every day where recovery is denied, even though to the average person the case appears to be a “slam dunk”, because of the issue of negligence.  These cases don’t make for great headlines, however, and are rarely reported.  Just because somebody is injured doesn’t mean that they will have a successful law suit.

Consider the recent Supreme Court of B.C. decision in More v. Bauer Nike Hockey Inc. Darren More is 23 years old.  At 17 Darren was a good hockey player, good enough to crack the line up of the Juan de Fuca Orcas, a AAA Midget team.  Darren was playing a game for the Orcas on Remembrance Day 2004, tragically it was a game that Darren’s family would never be able to forget.

As is often the case, the exact details of the incident are in question and much of the eye witness testimony is contradictory.  Suffice it to say, on a rush into the other team’s zone, Darren fell on the ice and in a sitting position skidded backwards toward the end boards. His back absorbed most of the impact, however, his head, protected by his CSA (Canadian Standards Association) Bauer helmet also struck the boards. At first Darren appeared fine. He got off the ice and made his way to his bench.  The collision was one that happens countless times a day on hockey rinks throughout the nation. Unfortunately, what is not in dispute is the outcome the impact had on Darren.

It quickly became apparent as Darren sat on the bench that this had not been a normal collision.  His condition deteriorated rapidly before his trainers’ eyes.  Before he could be assisted to the dressing room, Darren was vomiting and his pupils were fixed and dilated.  His trainer immediately recognized that Darren had suffered a serious head injury.

An ambulance crew responded quickly, but on examination Darren’s Glasgow Coma Scale (GCS) score was 3. The GCS is used as a tool to initially determine the level of a patient’s conciseness.  On the GCS, 15 is the highest score achievable; less than 8 indicates severe brain damage; 3 is the lowest score possible.

In medical terms, Darren suffered a subdural hematoma. Veins near the outer surface of his brain had ruptured and blood had filled the area between his brain and the dura, the protective membrane that surrounds it.  The swelling of his brain associated with the injury caused irreversible and catastrophic damage to Darren’s brain.

As the father of three children, all active in sports (soccer, football and rugby), I cannot begin to imagine the anguish that Darren’s parents must have felt as they confronted every parent’s worse nightmare.  Darren’s future once so promising was now bleak, a future of constant and costly care.

A law suit was commenced. A number of parties were named but eventually only the manufacturer of the helmet and CSA remained as defendants.  The trial took place over 33 days. Darren’s legal team argued that Bauer did not make an adequate helmet and that the CSA’s standards were not sufficient.

In the end, the trial judge did not accept their arguments.  Evidence presented during the trial indicated that the type of injury that Darren incurred was virtually unheard of in Canadian hockey.  The CSA warning sticker on Darren’s helmet cautioned that serious injury could occur despite the use of the helmet.  In coming to his conclusion that the defendants were not negligent the trial judge stated:

Equally important, before his accident Darren was aware that people suffer head injuries while playing hockey despite wearing the CSA approved helmets. Darren himself suffered two concussions prior to the accident and at least one other teammate had suffered a concussion while wearing a CSA approved helmet. Darren was clearly aware of the risks associated with playing hockey, even while wearing a helmet, and like hundreds of thousands of other Canadians, chose to play anyway.

It is hard to imagine a more sympathetic plaintiff than Darren, a young man with a promising future catastrophically and tragically injured as his life was just starting. In dismissing Darren’s claim the judge

would be mindful that the costs of conducting a 33 day trial with 7 expert witnesses and numerous lay witnesses called to testify, would be staggering and that, as Darren was not successful in his claim, he and his family would be responsible not only for their own costs but the costs of the defendants Bauer and CSA as well.  All considered, I’m certain that the trial judge in dismissing Darren’s claim pondered Judge Rolfe’s famous quote from Winterbottom v. Wright:

This is one of those unfortunate cases…in which, it is, no doubt, a hardship upon the plaintiff to be without a remedy but by that consideration we ought not to be influenced.  Hard cases, it has frequently been observed, are apt to introduce bad law.

Darren’s case was dismissed.

Darren’s case is a reminder that injury alone does not guarantee substantial, or indeed any amount of compensation. All plaintiffs, no matter how severely injured, must prove that the person they say caused their injury was negligent in their conduct – if negligence can’t be proven, no compensation is payable.

Many litigants are unable to prove negligence at trial, and many would be litigants abandon their claims long before their matter gets near a courtroom. So the next time you read a “crazy claim” story in the paper or see one on the nightly news, please think of Darren’s story and the thousands like him who despite their injuries receive no compensation.