Sports insurers urged to consider video review

A legal firm urges sports insurers to require their sports association clients to install cameras to record the action, following the B.C. Court of Appeal’s January 2024 decision in Cox v. Miller.

In Cox v Miller, the court found Karl Cox, a soccer player playing in a recreational league, was liable for an injury he caused by a reckless slide tackle.

Jake Cabott and Les Honywill of Borden Ladner Gervais LLP noted in a blog for CanLii Connects that the Appeal Court considered evidence to determine how the slide tackle was delivered, and whether the slide tackle was an action that would be in step with what a “reasonable competitor” would do in the circumstances.

The court “found all witnesses in Miller, except for the defendant, to be straightforward and credible,” the authors wrote in their blog. “It is notable that the trial was held more than four years after the incident.

“Rather than depend on the recollections of witnesses several years after the fact, sports organizations should consider installing cameras to record games. Insurers of sports organizations should also consider requiring or incentivizing their clients to use video to ensure that incidents are properly recorded to assist when matters end up before the court.”

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The lawyers also suggested all parties in a sports-related lawsuit, including insurers, consider retaining the services of expert witnesses to establish whether a player’s actions were something a reasonable competitor would do.

“Reasonable athletes may disagree as to whether a heightened level of physical contact can be expected to deny a scoring chance,” the authors state. “A trip to deny a breakaway in hockey, a hard foul on a driving layup in basketball, or a tackle inside the penalty area in soccer are all examples of penalties that may result in injury but are nonetheless commonplace and expected in their respective sports.

“It is unclear whether an expert speaking to the reasonableness of the slide tackle in Miller could have helped the defendant’s case. However, defendants in future sports negligence cases should consider whether an expert would be of use for explaining how the defendant’s actions were those of a ‘reasonable competitor.’”

The authors say the decision in B.C. separates the province from other Canadian jurisdictions, in that liability in B.C. is not necessarily connected to whether or not the player’s action was within the rules of the game.

In Cox v. Miller, the Court of Appeal found that whether or not Cox’s hard slide tackle received a penalty on the play didn’t matter. (Cox received a yellow card on the slide tackle, and hence, the Appeal Court found the play was illegal.)

“While the Miller decision makes clear that in British Columbia a player can be found liable for reckless conduct causing an injury to an opponent even if that conduct falls within the rules of the game, in Manitoba and Ontario courts may place greater weight on whether the defendant’s conduct was permitted by the rules,” the authors observe.

 

Feature image courtesy of iStock.com/Lorado