[1] [2]  All three men suffered from depression.[3] [4]

Boogaard’s brain was donated to Boston University Medical School and he was posthumously diagnosed with chronic traumatic encephalopathy (C.T.E.), a progressive degenerative brain disease.  Only one year earlier, in July of 2010, Bob Probert, who had retired from the NHL in 2002, died suddenly.  He was one of the NHL’s most celebrated enforcers.  Probert, who had suffered himself from substance abuse, had his brain donated to the same institute as Boogaard’s.  Probert has also been diagnosed posthumously with CTE.[5]  More than 20 former National Football League players have been diagnosed with the same disease.  The brain degeneration is associated with memory loss, confusion, impaired judgment, impulse control problems, aggression, and, eventually, progressive dementia.[6]  It is also commonly associated with depression, substance abuse and suicide.[7]

This discussion seeks to explore what legal liability may exist, under Canadian law, with respect to the damage suffered by NHL players due to on-ice brain injuries, in particular, those suffered by players predominately employed to engage in “hockey fights”.

Rule 46 of the NHL’s official rules governs fighting.  Common practice is for two players to drop their gloves and the play to be whistled dead.  Occasionally, if the players are wearing visors they will remove their helmets.  The two fighters then throw bare-knuckle punches aimed at the opponent’s face and head until a referee or linesman ends the fight by separating the players.  Nothing in Rule 46 prohibits any of the events just described.  The rules nominally penalize players for fighting with offsetting penalties that allows each team to continue playing at full strength.  “Enforcers” are players whose primary job description is to engage in these fights.

The researchers at Boston University say that C.T.E. is a nascent field of study, but that there is little debate that the disease is caused by repeated blows to the head.[8] 

Is the NHL Legally Responsible?

The focus of this article will be to determine whether or not the National Hockey League is legally responsible for the deleterious effects that its rules have on enforcers.  An examination of tort law reveals a strong case that the NHL is negligent towards certain players in the way it operates the league.

To be sure, there is no legal “obligation” of any person or organization not to be negligent; there is only an obligation to pay damages if a court of law finds there was a tortious wrong.

Our focus is not retroactive assessment of any particular tortious claim for damages available to Derek Boogaard, Rick Rypien, Wade Belak, or any other NHL player.  Rather, we will assess whether or not the NHL’s current policies are negligent towards NHL players according to Canadian law.  We will focus on the strength of a potential claim by these three players and NHL enforcers generally, but our goal is policy-driven.  If we determine the NHL was and is liable, there is obviously a need for the league to change its policies going forward.

This article will not discuss who might actually be liable for negligence on the part of the league, whether it is the commissioner, the owners of the teams, or whomever else.  This is an interesting legal issue, but one that is beyond the scope of this discussion.  For our purposes it is sufficient to understand that the potential for legal liability on the part of any of these persons may effect a change to the rules.

The Test for Tortious Liability

The basic test for tortious negligence has been established at common law in Canada.  A person or organization is tortuously liable if a plaintiff can establish on a balance of probabilities that a standard of care was breached, that a duty of care was owed to the plaintiff and breached, and that these breaches in fact caused the harm suffered by the plaintiff.

If this test is satisfied, there is a prima facie claim for negligence.  There are defences available.  Those relevant to our discussion include voluntary assumption of risk by the plaintiff and contributory negligence.  The defences will be discussed in the next section of this article.

A) Standard of Care

For a court to find a defendant has breached his standard of care is to find that he was “legally careless”.  This essential element of a negligence claim effectively requires that the culprit’s behaviour was sufficiently harmful as to warrant legal redress.

Assuming the league owes a duty to not treat its players negligently (which is not granted, and is the subject of the duty of care evaluation), is its practice of running the league under the current rules sufficiently negligent to establish legal liability?

The test for finding whether or not the standard of care has been breached was established in the case of Bolton v. Stone and considers three factors: the severity of the harm suffered by the plaintiff, a retroactive determination of the probability that the harm would be suffered, and the burden of prevention.[9]  These factors will be addressed in turn.

i .   Severity of the Harm

The first factor tips very heavily in favour of liability.  It is a long-established doctrine in the law of negligence that physical harm is by far the most severe form of harm that can be suffered.  Death is the most extreme example of this type of harm.  Regardless of how proximate or remote we determine the eventual deaths of Boogaard, Rypien and Belak to be to the actions of the NHL, the blows to the head suffered are unarguably directly connected to the actions of the league, and physical harm is, in the world of negligent torts, considered very severe.

ii.   Probability of Harm

The second factor in our case is not as clear-cut.  The high probability of minor injury (bruises, broken noses, concussions) resulting from the NHL’s permissive fighting policy is clear; the probability of the more serious harms such as C.T.E. are less clear.

The science of concussions and the ability to understand their relationship to long-term mental and emotional health is rapidly growing, but as of yet relatively undeveloped.  The NHL may argue that for centuries of sport it was not consider probable that hockey fights would lead to depression and suicide.  A plaintiff may argue that the current state of scientific knowledge, nascent as it may be, is such that damage must be considered very probable.  Indeed the three recent deaths provide persuasive evidence to this effect.

Interestingly, Canadian courts have addressed the issue of evolving medical knowledge as it relates to the “probability” factor in the test for standard of care.  In the case of ter Neuzen v. Korn, a 1980’s case about emerging scientific understanding of the HIV virus, the court engages in an assessment of what the defendant ought to have known.[10]  It goes so far as to cite specific articles in medical journals and debate whether or not the defendant was expected to have read these articles thus properly understanding the probability of harm resulting from his carelessness.  In defence of the NHL, it is a sports organization and not a medical association.  As such, it does not have the same level of responsibility to keep up with the most recent medical advancements as a doctor or a medical association.  They are however, very much in the business of running a hazardous work environment.  They would very likely be expected to be aware of the recent findings regarding C.T.E.

Putting aside the specific duty to be apprised of medical advancements, Canadian courts have emphasized the general duty of defendants to keep up with industry standards.  Latimer v. AEC and Trimarco v. Klein both inform the notion that courts will look at industry customs in assessing what a defendant “ought to have known” about probabilities of harm.[11] [12]  For our purposes, this means keeping up with similar organizations, most notably the National Football League.  The NFL has taken strong steps to better understand the long-term effects of blows to the head (for instance, it has donated money to the above-mentioned institution that diagnosed Boogaard and Probert’s C.T.E.),[13] and has already began tailoring its on-field rules as a result.  Courts will look at industry standards in assessing what the NHL should have known to be the probable effects of its rules.

iii.   Burden of Prevention

The third factor, burden of prevention, is certainly a contentious one.  Courts have already ruled that monetary loss is a legitimate factor in assessing how cumbersome prevention of the harm would be to the defendant.  This issue is in many ways at the centre of the debate on the use of enforcers: fights are a considerable source of fan attention for the NHL and fan attention is the primary driver of revenue.  The court would have the unenviable task of balancing the right of the NHL, as a business, to maximize revenues versus the ease with which they could prevent this harm.  The NHL could change its rules in enumerable ways to decrease – to varying degrees – the number of fights that take place.  The most likely determination would be that some measures could be taken to reduce fighting, without placing an undue burden on the league.  This may mean reducing fights without eliminating them from the game.  Perhaps the most likely and sensible compromise would be to eliminate the role of the enforcer without banning fights.  This will be discussed further in the policy recommendations segment of this article.

Taking into account all three factors – standard of care, burden of care, and cause-in-fact, the case law points towards a finding that the NHL indeed breaches its standard of care in its operation of the league with the current rules.

B) Duty of Care

Establishing that the league is breaching its standard of care does not alone mean it is tortiously liable to its players.  Breaching the standard of care means the league has acted with unreasonable carelessness that has created a “zone of risk”.  Any person and any harm that fall within that “zone of risk” fall within the ambit of the defendnt’s duty of care.  Any successful plaintiff must fall within the ambit of a defendant’s duty of care.  For example, despite the negligence shown by the league’s rules, a cricket player in India could not likely bring a tort against the NHL.  Having never come into contact with this cricket player, the league owes him no duty of care.  Now, while the league clearly owes a duty of care to its players (we owe duties of care to almost everyone around us), it is a matter of contention what duty it owes.

i.   The Legal Test for Duty of Care

The basic legal test for duty of care, established in Donoghue v. Stevenson is “reasonable foreseeability”.[14]  This defines both to whom a duty is owed, and what is owed to them: if you can reasonably foresee your carelessness (your breach of the standard of care) causing harm to somebody, you owe a duty to that person not to cause that harm.

Is it reasonably foreseeable that based on the current on-ice rules of the NHL that certain players will engage in dozens of fights every season?  It certainly seems to be reasonably foreseeable, if based only on past experience: it has happened season-after-season for decades.

Is it reasonably foreseeable that engaging in this many hockey fights will cause harm to those players?  It is clear that some harm is reasonably foreseeable.  The question of which harms resulting from hockey fights are reasonably foreseeable and which are beyond the scope of foreseeability is a question of remoteness.

ii.   Remoteness

In order for there to be “reasonable foreseeability” that the league’s carelessness will result in any given harm, that harm must be sufficiently proximate to the careless act.

Our most difficult assessment is to determine which harms suffered by enforcers such as Boogaard, Rypien and Belak were and are sufficiently proximate and which are too remote to fall within the NHL’s duty of care.

Certain harms are easily proven to be “reasonably foreseeable”.  It is clear that physical harm is reasonably foreseeable: if the league allows players to continue playing and fighting under the current structure, players will continue to suffer punches to the face.  The league’s practice of allowing fights are as proximate as possible to the harm of being punched in the face.  Therefore, a black-eye or split-lip falls well within the ambit of reasonable foreseeability.  Concussions are nearly as proximate because the link between blows to the head and concussions is well-established.  The harm of degenerative brain disease, the harm of long-term depression, the harm of addiction to painkillers, and the harm of suicide: these harms are progressively more remote from the actions of the defendant.  Simply put, they are more remote because they less “foreseeable”.

To assess which harms are too remote and which are not, we need to understand that it is a normative assessment.  There are two necessary elements to find any one of these harms to be sufficiently proximate to the NHL’s actions.  The first is evidentiary; a scientific factual assessment as to whether or not the hockey fights caused the harm in question.  This ‘factual proximity’ is what we call cause-in-fact and we will explore this element shortly.

The other element, remoteness, is a normative assessment.  For instance: Assuming the blows to the head, as a matter of scientific fact, caused brain damage which in turn caused depression which in turn drove Wade Belak to take his own life, we then must ask whether or not  is this something for which we want to hold the NHL responsible?  This is the nature of the normative proximity assessment known as remoteness.

The court in a case commonly known as Wagon Mound re-iterates the primacy of the “reasonable foreseeability” test in determining the ambit of one’s duty of care.[15]  It does so in direct contradiction of earlier jurisprudence trending towards the inclusion of all harms factually caused by careless action.

That is the state of the law.  It is difficult to predict what harms a court would wish, on the basis of a normative assessment, to consider the fault of the NHL.  Suffice it to say this: Absent a valid defence by the NHL, a strong factual link between punches absorbed and harms extending as remotely as Boogaard’s overdose and Rypien and Belak’s suicides  likely would lead a court to declare that these tragedies are the sorts of harm for which our society would want organizations like the NHL to take responsibility.

iii.   Novus Actus Interveniens

The doctrine of novus actus interveniens, or “intervening act” defines a circumstance which the courts will recognize as reducing the foreseeability of a harm.  If some unforeseeable act takes place between the time of the defendant’s action and the time of the plaintiff’s harm, this may inform the court that the harm was not reasonably foreseeable.

To take an extreme example from the context of hockey fights: if an enforcer engages in a fight with another player, a rivalry ensues, and one player winds up attacking the other in the parking lot severely injuring him, that criminal act of assault would be an intervening act.  It is very likely a court would find that the NHL could not have foreseen the injuries resulting from the attack; they would not be liable for those injuries.

More common true-to-life examples are less clear-cut.  Imagine Derek Boogaard fought rival enforcer George Parros and now we wanted to assess whether or not the league could have reasonably foreseen any of Boogaard’s injuries (either the most proximate – a concussion, or the most remote – his death).  The NHL may argue that none of his injuries were reasonably foreseeable because George Parros’s decision to punch Boogaard in the head was a novus actus interveneus.

The court in Haynes v. Harwood differentiates between intentional third-party actors and natural intervening occurrences.[16]  Indeed, Parros’s actions were intentional.  However, in keeping with the decision in Haynes, the court recognizes that some individual intentional action is better understood as a natural consequence of the defendant’s actions than an intervening circumstance.  This understanding certainly applies and would refute a league argument that Parros’s decision to fight was an intervening act: the rules of the league made the situation ripe for someone to fight Boogaard.  If it were not Parros, it would have been somebody else.  It was a natural extension of the league’s actions and although the particular player who would fight Boogaard may not have been obvious, the fact of Boogaard being punched was certainly foreseeable.

iv) The “Thin Skull” Principle

It is worth raising the issue of a particular plaintiff’s increased propensity to suffer harm.  In our case, evidence exists that Rick Rypien may have had mental and emotional health issues that existed prior to his involvement in hockey fights.  These preconditions may have made Rypien more vulnerable to depression than the average NHL player.  If this is the case, could the NHL reasonably foresee that its carelessness, which normally subjects its players to a minor level of harm (concussions), would actually affect Rypien in this much more harmful way because of his personal prior susceptibility?

The “thin skull principle”, elucidated in Smith v. Leech Brain & Co. Ltd. states that a defendant, if legally careless, must take all persons to whom it owes a duty of care as they are.[17]  Take the paradigm from the doctrine’s name for example: if a certain NHL enforcer literally has a thin skull, it is not legally correct to say that a concussion was foreseeable but a collapsed skull was unforeseeable.  In his case, the NHL would be as liable for the collapsed skull as it would for the more easily foreseeable concussion.

So, if the original harm of a concussion is deemed to be a reasonably foreseeable result of the NHL’s negligence, the league would be potentially liable for further injuries that resulted due to Rypien’s fragility, for instance.  Emotional fragility or “eggshell personality” was found to be an applicable corollary to the physical susceptibility set out in the thin skull principle.[18]

It should be noted here that courts, when applying the thin skull and eggshell personality principles take into account the prior fragility of the plaintiff in assessing damages.  In other words, they consider the chances that a man with a thin skull would have suffered serious injury sooner-or-later because of his condition, and the court will reduce the damages owed by the defendant.  We are not interested in putting a dollar value on the NHL’s legal liability – our goal is to determine whether or not the league is legally blameworthy and whether or not change is in order.  Therefore, our equivalent to “reducing damages” is reducing blame.  And this squares naturally with our case: yes, we conclude the NHL should take care to such a degree that a player such as Rypien will not suffer tragic consequences from doing his daily job.  And yet we also accept that he may have been a troubled man for several years and accept that he may have suffered from similar mental health issues and ultimately met the same fate even without the fight-induced concussions.

C) Cause-in-Fact

Cause-in-fact, or “scientific causation”, is the final necessary element for a prima facie case of negligence to be made out.  Let us illustrate what this element entails and how it differs from remoteness, because both are necessary if we are to find the NHL legally liable.  We have established that because of the “thin skull principle” of remoteness, the NHL may be liable for Rick Rypien’s suicide despite the fact that without prior elevated susceptibility to mental health problems, his suicide would not be a reasonably foreseeable result of the NHL’s fighting policy.  However, the league is only liable if it is actually proven that their fighting policy led to head injuries, that the head injuries led to depression and that depression led to suicide.  Without this evidence, the NHL is of course not liable for Rypien’s death.

There are two types of cases which employ two different sets of case law regarding “cause-in-fact”: cases of factual certainty and cases of factual uncertainty.

i) Factual Certainty

The simpler cases are those in which the facts are clear.  For example: If we knew the exact effects of concussions on C.T.E., the exact effects of C.T.E. on emotional health, the exact contribution of NHL-sanctioned fights to the physical state of Wade Belak’s brain, and the exact effect of the NHL’s fighting policy on Belak’s propensity to get in hockey fights, then we would have a case of factual certainty.

In this case, the legal test would be simple.  It is what is known as the “but-for” test, as set out in Barnett:[19]  “But for” (that is to say, “if not for”) the operation of the NHL under its current rules, would Wade Belak have committed suicide?  If we had all the facts mentioned above, this would not be a difficult question to answer.

Some facts are available to us.  We can make the at least one factual assessment using the “but-for” test: but for Belak’s employment as an NHL fighter, he would not have suffered forceful blows to the head on a weekly basis.  That is a reasonable factual finding.

But then there are facts we do not know.

ii) Factual Uncertainty

If scientific evidence exists somewhere that is capable of proving or disproving a link between the punches Belak has absorbed and his death, it is certainly not known to us at this time.  The science of concussions is quickly evolving.  We may soon be at a point where there can be factual evidence brought forth to definitively prove or disprove the effects of hockey fights on a plaintiff’s suffering of grievous harm.  Until that point, we will proceed on the basis that the facts linking the NHL’s actions to Belak’s death and any similar death or injury that may arise are all cases of factual uncertainty.

Fortunately, case law exists that deals with factual uncertainty in negligence claims.  The case of McGhee v. National Coal Board [20] and subsequent interpretation of that case in Ferrell v. Snell[21] suggest that evidence of clear and irrefutable scientific causation is often not necessary to find cause-in-fact.

According to the case law, if it is clear that a defendant’s actions likely caused or even substantially increased the risk of the harm in question, courts will draw an inference of causation.  In other words, the tactical burden will shift from the plaintiff to the defendant to disprove that his negligence was the cause of the harm – simply because it seems so likely that it was the cause.

In our case, the inferences seem likely at both the “brain science stage” and the “hockey stage”.  That is, inferring the link between concussions and the deleterious effects of C.T.E., and inferring that the NHL’s rules lead to hockey fights.  In keeping with precedence, the court would likely not be willing to accept a league argument that, but for his employment as an enforcer, a man like Boogaard may have anyhow gotten into 184 fist-fights over the past decade.[22]  This counter-factual is too precious; the league would not have discharged its tactical burden and the inference of causation would be drawn.  Similarly, given the recent evidence including autopsies on boxers and football players (not to mention Boogaard himself), the court is unlikely to accept that the brain damage suffered by these athletes is a coincidence.

Further to all this, the courts have been even more prone to draw these types of inferences if it is deemed impossible for the plaintiff to disprove alternative explanations.  It would be impossible for Boogaard’s lawyer to adduce evidence showing that Boogaard would never have overdosed had he become a lawyer instead of a hockey enforcer.  In fact, recent jurisprudence now states that the “but-for” test will even be relaxed when the counter-factual is scientifically impossible to disprove.  Since the plaintiff cannot be expected to adduce as evidence images of Boogaard’s brain had he been a lawyer or had the NHL changed its fighting policy, courts will not even require a firm conclusion that “but for” the NHL’s fighting policy, Boogaard would not have died.

Lastly it should be noted that the standard of proof is “balance of probabilities”.[23]  This means that a plaintiff would have to prove that his harm more likely than not was caused by the NHL’s fighting policy.

The NHL’s Defences

To this point, it seems likely that any one of Boogaard, Rypien, Belak, or any similar enforcer going forward would have a prima facie negligence case against the NHL.  Now, we must look at the legal defences available to the league that would relieve it of legal liability.

A) Voluntary Assumption of Risk

Voluntary Assumption of Risk, or volenti non fit injuria, is the claim that the plaintiff – in this case the NHL enforcer – knew the risk involved and consented to this risk.  Therefore the defendant, despite his carelessness, is not legally responsible.

This would appear to be the NHL’s best defence, the best argument that the NHL is under no obligation to change its policies.  As the argument goes, NHL players are adults who are being paid great amounts of money to take on a known risk; the players are not being forced in any way to come work for NHL teams; they are free to pursue other less dangerous modes of employment.  Furthermore, within their employment they are protected by a strong labour union (the NHLPA) and therefore are not disempowered from standing up for their rights to workplace safety the way that some workers are.

Legally, the volenti defence is full-defence (if it is made out, there is no legal liability whatsoever) but a difficult one to make out.  The case of Dube v. Labar expresses the very limited scope of the defence and establishes that a plaintiff’s knowledge of physical risk is not enough to exculpate the defendant.[24]  Indeed there must be a “legal exchange” connoting the transfer of assumption of risk from the careless defendant to the plaintiff.  The NHL could make a compelling argument that the signing of both the collective bargaining agreement and the standard player contracts of employment by the players’ association and players, respectively, represent this legal transfer.  On this basis, there certainly seems to be a good case for the defence of voluntary assumption of risk.

There are, however, arguments to be made to the contrary.

i) Lack of Knowledge

One argument is that despite an implied (or perhaps even expressed) assumption of risk, this consent is invalid because the players do not understanding the risk to which they are consenting.

The Supreme Court of Canada said the following about the volenti defence in Dube: “Thus, volenti will arise only where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant’s part.”[25]

It is one thing to accept that NHL enforcers voluntarily engage in hockey fights as part of the job.  It is an entirely different thing to claim that they waive their legal right to compensation for any harm that may befall them as a direct result of their employment.  Certain harms fall within the ambit of what the player must recognize as a likely result of signing his contract: hockey is a physical sport and there is a risk of injury; hockey fights are allowed for in the rules of the game and you may be expected to engage in hockey fights from time to time; your value to the team is performance-based and if you may be expected to fight very often if you are not capable of contributing to the team in other ways.  All the risks associated with these facts are implicitly assumed by the player.

But this does not necessarily extend to the long-term risks.  An NHL enforcer voluntarily assumes the risk of a punch in the face.  It is not so clear that he voluntarily assumes the risk of severe brain damage and chronic depression.  There is so much the medical community does not yet understand about the science of concussions.  And no man is capable of assuming risk that is not capable of comprehending.  Therefore, insofar as the long-term health risks of concussions remain largely unknown, NHL players cannot legally relieve the NHL of liability for the unforeseen severe long-term harms.

This may appear to be a catch-22: either we cannot substantiate long-term health effects of concussions and thus the NHL is not liable for them, or we can (or one day will be able to) substantiate the effects and so long as NHL players voluntarily sign contracts of employment once these effects are substantiated, they voluntary assume all known risks.  But this is not the case.

Long-term health effects may in fact result from concussions suffered on the ice (cause-in-fact), and the risk may be reasonably foreseeable – an objective standard of foreseeability of harm (normative proximity).  But volenti requires subjective understanding on the part of the players that is something more than “reasonable foreseeability”.  It requires subjective knowledge of the risks and then waiver arising from this knowledge.[26]

There is a different criterion for a) the objective standard of foreseeability which engages the long-term injury as within the ambit of the NHL’s duty of care, and b) the subjective standard of knowledge required for a plaintiff to legally assume all potential risks.  There is a valid argument to be made that the risk of brain disease, depression, and addiction to pain-killers all fall within the realm of reasonably foreseeable harms, but outside the subjective knowledge of NHL players at the time they sign their contracts.  It is difficult to comprehend the magnitude of the legal right players supposedly agree to waive, and indeed that difficulty is a consideration in assessing subjective knowledge and valid waiver.

There is one final point to be made in support of the contention that there is indeed a separation between a) what defendants must reasonably foresee for a harm to be sufficiently proximate and b) what plaintiffs must foresee for a voluntary assumption of risk to be valid.  There is no legal principle suggesting that a plaintiff assumes risk for unforeseeable harms resulting from unknown susceptibilities.  That is to say, there is no “thin skull principle” for volenti.  If he was not aware of the extent of his own mental health issues (which is very possible), Rick Rypien cannot be said to have known there was a risk that hockey fights would lead to depression and suicide.  At law the NHL is responsible for this harm despite its lack of knowledge about Rypien’s mental health condition.  But Rypien’s own lack of knowledge means he cannot possibly assume the subjectively unforeseen risk.

ii) Effect of the Enforcer Role on Minors

A second argument against the volenti defence is that the NHL’s fighting policy affects minors who are in even less of a position to consent to the assumption of risk.

The existence of the enforcer role in the NHL, a direct effect of the league’s fighting policy, creates a breeding ground for future-NHL enforcers (and NHL-enforcers “wannabes”) in hockey rinks across Canada and elsewhere.  A recent New York Times series chronicling the life and death of Boogaard describes the turning point in many enforcers’ lives when they realize their goal of becoming an NHL enforcer: at that moment, they are practicing and showcasing their abilities as such.  A player must showcase his proficiency as an enforcer the same way a skilled player must showcase his aptitude in order to get notice and rise through the ranks.  This means engaging in fights at every stage on a player’s hopeful path to the NHL.  Often this moment of realization and the start of the path come before they are the legal age of majority.[27]

The legal argument is as follows: the NHL’s rules allow for the role of the enforcer; the existence of this role causes minors to engage in dangerous behaviour; as minors, they are not in the position to assume the risk of their behaviour.  They do, however, fall within the ambit of the NHL’s duty of care because the NHL knows very well that many young Canadians are training to be NHL enforcers.

There is a legitimate argument for factual causation: but for the role of enforcers in the NHL, minor hockey players would not begin to fight at such a young age.  The argument for normative proximity, however, that the NHL is responsible for youths with whom it has no employment relationship or even any real contact, is much more difficult.  It is unlikely a court would find that the NHL owes a duty to minor hockey players.  That being said, in accordance with the Wagon Mound test for remoteness, it is possible: if the effects of the league’s rules on NHL enforcers is within reasonable foreseeability, so too are the effects on minor players whose behaviour is certainly well-known to the NHL (or more correctly, as it is an objective test, should be well-known to the NHL).

The more practical legal implications of the minor hockey league problem is that the minor hockey associations are guilty of the exact same practices as the NHL, except there is a greater chance that a court would deem minors unable to fully understand and assume the long-term risks of hockey fights.  The minor hockey leagues would thus be tortiously liable for any and all long-term injuries resulting from their players’ fight-induced injuries.

B) Contributory Negligence

Contributory negligence is the other potential defence available to the NHL.  Unlike volenti non fit injuria, it is not a complete defence.  This means that a successful claim of contributory negligence does not absolve the defendant of liability; it only affects the damages awarded.  As a result, contributory negligence is easier to make out than volenti.[28]

Section 3 of the Negligence Act in Ontario explains the doctrine: “In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.”[29]

For the purposes of our discussion, the proportional appropriation of damages best translates to a proportional distribution of blame for the dangers enforcers face in today’s NHL.  When we arrive at the policy segment of this article, we will see the effect of this distribution of blame: namely, it is not incumbent only on the NHL to effect change.  Even if the league is liable for the effects of fighting, it alone is not implicated.

In applying the law of contributory negligence to our case (that is, assessing just how much blame we put on players according to the legal principle of contributory negligence), it is worthy of note that the plaintiff’s level of knowledge is something the courts do consider.  The case of Lambert v. Lastoplex holds that if a plaintiff does not have sufficient information about the harm he faces, there is no finding of contributory negligence.[30]  As a policy matter, this lends legal weight to the benefits of player education.  If the NHL takes steps to educate players (especially at a young age) about the specific extent of the damage posed by frequent hockey fights, the NHL will be less legally liable and less blameworthy.

Policy Recommendations: What can be done to Reduce Liability and Improve the Situation?

Our Task

Now that we have established that there is a rather strong case that the NHL is legally responsible for injuries such as those suffered recently by Derek Boogaard, Rick Rypein, and/or Wade Belak, we turn our focus to what the league might do differently to avoid such culpability.  Of course, steps taken by the league towards protecting itself from negligence claims has the simultaneous effect of reducing the instances of avoidable injury and death.

We have established it is likely that even the most serious injuries to enforcers fall within the ambit of the NHL’s duty of care.  Little can be done to change that.  What the NHL can strive to do, however, is meet the standard of care owed to its players.

Now, as a strictly legal matter, the surest way for the NHL to avoid liability would be to shut down operations completely.  But, as we discussed earlier, the law certainly does not require such a drastic measure in order for the NHL to meet its standard of care.  If we remember the legal test for standard of care, its factors are: severity of the harm, probability of the harm, and burden of prevention.  Requiring the league to shut down would be overly burdensome in light of the probability and severity of injuries in the NHL.  If the sport were as barbaric as lion-fighting in the Coliseum, shutting down operations would not be overly burdensome because of the severity and probability of injuries inherent to that sport.

Our task, then, is to find a practice that is not overly burdensome to the NHL’s legitimate business interests, but reduces the probability and severity of fight-related injuries to the extent that the standard of care is not breached.  One may argue that we should strive for a standard of safety beyond the legal minimum.  But for our purposes, with an eye to what we can practically expect the NHL to do, we seek to find what the balance prescribed by law – that which renders the NHL not legally liable.

Targeting Enforcers, not Fighting

At the centre of the debate on hockey fights is the reality that fans enjoy watching them, and that fan interest is the source of revenue for the NHL.  Although it becomes an exercise in speculation, we need to determine what rules regarding fights may relieve the NHL of liability (i.e., if a suit were brought against them under these new rules, a court would find the standard of care was met).  Based upon the case law on standard of care in Canada, it seems unlikely that fighting would need to be banned for the NHL to meet this standard.

A) Enforcers: the Source of Most Serious, Most Probable Harm

The most damning evidence of the most severe injuries centres on hockey enforcers.  It is true that NHL players who engage in the occasional fight may suffer from concussions and post-concussion syndrome and other such injuries.  Head-shots during the course of regular action fall to this same category.  But this does not need to be the primary focus of NHL policy makers for two reasons: one-off concussions do not appear to be as severe forms of injury and more assuredly, occasional fights (and head-shots) do not hold the same probability of the most serious harms such as death.

It was mentioned earlier that in addition to Bob Probert and Derek Boogard, 20 former National Football League players have been diagnosed, post-mortem, with C.T.E.  These men include: Lou Creekmur[31], John Grimsley[32], Tom McHale[33], Chris Henry[34], and Dave Duerson[35].  The sort of abuse that football players take is more similar to hockey enforcers than to hockey players generally.  It is the frequency of blows to the head that unite NFL players with hockey enforcers (but not with other NHL players).  It hardly seems a coincidence that four of the five NHL players to be diagnosed with C.T.E. were enforcers.  It should be noted that deceased former NHLer Rick Martin was diagnosed with C.T.E. despite not being an enforcer – he suffered one serious concussion in 1977.  But it should also be noted that he was not wearing a helmet at the time.  The probability of serious injury in a league where helmets are not mandated is very high; this is (theoretically) why the NHL now has a policy mandating the use of helmets.  The high probability of serious injury associated with engaging in hundreds of hockey fights over the course of a career (as opposed to only a handful for the average hockey player) should similarly lead to rule changes.

B) The Alleged Value of Fighting in Hockey

There are several arguments for why fighting is necessary in hockey.  First is the argument that it is an inalienable part of the game; that without fighting, hockey would not be hockey.  Second is the argument that without the hockey fight in the game, there would be more injuries as players would play outside both the prescribed and unwritten rules of the game.  As this latter argument goes, fights firstly allow tensions to vent thus preventing players from resorting to other forms of violence.  Secondly, they serve as a deterrent from violent or reckless behaviour, as an offending opponent may be confronted with a legal fight if he does not play within the rules of safe play.

Neither of these arguments in favour of fights, even if accepted unequivocally, necessitates enforcers.  So-called “constructive” fights that take place when tensions run high or when a player engages in unacceptable behaviour both take the form of spontaneity.  The majority of fights in the NHL today take place between two enforcers, in a staged pre-determined side-show.  This achieves neither of the above-mentioned purposes of fights.  Furthermore, the “essentiality of the fight as part of hockey”, insofar as it exists for many fans, seems to arise from the opportunity for a spontaneous fight owing to the toughness and intensity of the game.  This notion is very far removed from the staged fight between two unskilled players who have not had enough ice-time to even build animosity for one-another, a fight which is, for some, apparently enjoyable to watch but which holds the same connection to the actual game as inter-period entertainment.

Proposed Rule Changes

There are certain rules today that make the role of enforcer possible.  For one, fighting majors are penalized with five-minute penalties, but they always result in matching penalties for each team.  It takes two to fight and the penalties necessarily cancel each other out.  In fact, each team is allowed to play at full strength with six men on the ice following the fight.  The only sanction is that the fighters must sit for five minutes.  This only encourages the use of enforcers because they are unskilled players who can fight one-another and not hurt the team by sitting for five consecutive minutes.  There is a benefit but no harm to having an enforcer fight.

If, however, any player on the ice (or even the bench) could be sent off after any teammate fights, this would reduce the role of the enforcer.  The player to be penalized could be chosen by the opposing coach (much like a coach chooses which of his own players serves a bench minor).  Neither team would want to lose its best player for five minutes.  Therefore, fewer teams would employ enforcers to engage in regular fights.

Another rule permissive of enforcers is the size of teams’ active rosters.  Currently teams may have 20 men (typically twelve forwards, six defencemen, two goaltenders) dressed for each game.  If that number were reduced to say 17, teams would likely eliminate the fourth line of forwards.  The vast majority of enforcers play on that line (definable as the line with the least ice-time).  With only three forward lines (two scoring, one defensive “checking” line, typically), many teams would not have room for an enforcer on the roster and the role would eventually die out.  (Note that the NHLPA would likely never accept this rule change as it greatly reduces the number of players employed; nonetheless, this factor should be balanced with the well-being of the players).

Another option is to maintain the relatively lax rules on fighting, but target who may fight – that is to say, directly attack the enforcer role by penalizing players who fight too often.  In football and soccer, personal infractions in and of themselves lead to minor consequences, but if the same player re-offends within a prescribed period of time, there is an automatic severe punishment (ejection).  The NHL could institute a rule that any player who receives more than four major fighting penalties in a year is suspended for the rest of the season.  This would not hinder the spontaneous fight, but would essentially remove enforcers from the game.  To view this rule in its simplest terms, it is dangerous for one player to take more than a certain number of punches to the head in one season, so when he reaches that number, he will be forced to sit the rest of the season.

Education and Support Systems

It was mentioned earlier, but bears repeating: the NHL could avoid liability and prevent tragic severe injury through proper player- and public- education as to the risks of fighting.  As a legal matter, this would strengthen the league’s ability to argue for voluntary assumption of risk.  Indeed the only very strong plaintiff argument that there was no “voluntary assumption of risk” stems from lack of education.  If players know the dangers, it is up to them to decide whether or not to take the risks associated with being an NHL enforcer.  Thus they would assume the legal risk themselves or, as practical matter, be more likely to avoid the risk altogether.

It also bears repeating that the younger the targets of this educational campaign the better.  If young hockey players whose only option to rise in the ranks is by fighting better understand the risks, they are less likely to follow a path that leads to a very difficult offer to turn down (if they are lucky enough to succeed): a great deal of money and a spot on an NHL roster.

As it was mentioned earlier, whatever blame falls to the NHL, they are not alone.  Education is the prime forum in which responsibility must be shared.  Players, parents and fans should be considered responsible for informing themselves about the realities of head injuries.  All these parties, if they fail to appreciate the seriousness of the issue, create pressures that exacerbate the problem and hinder progress.

As a last point, the NHL would be wise to continue to improve and fund its substance-abuse and mental health support programs.  Owing to the long-term effects of head injuries, these programs ought to focus on retired as well as current NHL players.  From a legal standpoint, players who can avoid or escape substance addiction and/or depression are less likely to suffer harms for which the NHL might be liable.  .  From a non-legal standpoint, it is quite clear we have a humanistic responsibility to address the issues of the long-term health of hockey enforcers.  Players who have suffered from brain injuries are susceptible to physical, mental, and emotional health issues that can be life-threatening.  If any more young men die from these sorts of injuries, the NHL may be legally liable.  But every fan, player, parent, and sponsor who did nothing but stand by and watch will share in the moral blame.

—

Jordan Gold, Barrister and Solicitor

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[1] John Branch, “Derek Boogaard – A Brain ‘Going Bad’,” The New York Times, December 5, 2011, http://www.nytimes.com/2011/12/06/sports/hockey/derek-boogaard-a-brain-going-bad.html

[2] Michael Landsberg, “His Depression and his Friend, Wade Belak,” The Sports Network, September 13, 2011, http://www.guardian.co.uk/commentisfree/2010/sep/27/un-general-assembly-behind-headlines.http://tsn.ca/nhl/story/?id=375694

[3] Branch,”A Brain ‘Going Bad’,” supra note 1

[4] Landsberg, supra note 2

[5] Branch,”A Brain ‘Going Bad’,” supra note 1

[6] Boston University Center for Traumatic Encephalopathy, “What is CTE?,” http://www.bu.edu/cste/about/what-is-cte

[7] Johns Hopkins Medicine: Health Alerts, “Athletes’ Dementia: Understanding Chronic Traumatic Encephalopathy,” http://www.johnshopkinshealthalerts.com/alerts/memory/athlete-dementia_3871-1.html

[8] Branch,”A Brain ‘Going Bad’,” supra note 1

[9] Bolton v. Stone, [1951] AC 850 (HL)

[10] ter Neuzen v. Korn (1995), 127 DLR (4^th) 577 (SCC)

[11] Latimer v. AEC, [1953] AC 643 (HL)

[12] Trimarco v. Klein, 436 NE 2d 502 (NY CA 1982)

[13] Branch, supra note 1

[14] Donoghue v. Stevenson, [1932] AC 562 (HL)

[15] Overseas Tankship v. Morts Dock & Engineering (The Wagon Mound, No. 1), [1961] AC 388 (PC)

[16] Haynes v. Harwood, [1935] 1 KB 146 (CA)

[17] Smith v. Leech Brain & Co. Ltd., [1962] 2 QB 405 (QBD)

[18] Cotic v. Gray (1981), 124 DLR (3d) 641 (Ont. CA)

[19] barnett

[20] McGhee v. National Coal Board, [1972] 3 All ER 1008 (HL)

[21] Ferrell v. Snell, [1990] 2 SCR 311

[22] Hockeyfights.com, “Derek Boogaard,”

[23] Blackstock v. Foster, [1958] SR (NSW) 341 (SC)

[24] Dube v. Labar, [1986] 1 SCR 649 [Dube]

[25] Dube, supra note 24 at para. 6

[26] Dube, supra note 24

[27] John Branch, “Derek Boogaard: A Boy Learns to Brawl,” The New York Times, December 3, 2011, http://www.nytimes.com/2011/12/04/sports/hockey/derek-boogaard-a-boy-learns-to-brawl.html

[28] Dube, supra note 24

[29] Negligence Act R.S.O. 1990, CHAPTER N.1

[30] Lambert v. Lastoplex (1971), 25  DLR (3d) 121 (SCC)

[31] Center for the Study of Traumatic Encephalopathy, “Case Study: Lou Creekmur,” http://www.bu.edu/cste/case-studies/lou-creekmur

[32] Center for the Study of Traumatic Encephalopathy, “Case Study: John Grimsley,” http://www.bu.edu/cste/case-studies/john-grimsley

[33] Center for the Study of Traumatic Encephalopathy, “Case Study: Thomas McHale,” http://www.bu.edu/cste/case-studies/thomas-mchale

[34] Alan Schwartz, “Former Bengal Henry Found to Have Had Brain Damage,”. The New York Times. June 28, 2010, http://www.nytimes.com/2010/06/29/sports/football/29henry.html

[35] Julie Deardorff, “Study: Duerson had brain damage at time of suicide,” Los Angeles Times, May 2, 2011, http://www.latimes.com/health/cbsports-study-duerson-had-brain-damage-at-time-of-suicide-20110502,0,1748318.story