On January 27th, 2016, the Calgary Flames played the Nashville Predators in the last game before the all star break. During the game, Dennis Wideman was hit by the Predators’ Mikka Salomaki. Shortly after being hit, as Wideman returned to the bench, he cross-checked Don Henderson, an NHL linesman, from behind. Henderson was knocked against the boards and to the ice. Unfortunately, over a year later, Henderson has not returned to working as an NHL linesman[1].
Wideman was initially suspended for a 20 game period. He claimed to have been disoriented from the previous hit he suffered at the hands of Salomaki and he asserted that the contact with Henderson was unintentional[2]. After numerous appeals, an independent arbitration and a lawsuit to vacate the arbitrator’s decision, Wideman returned to the ice just before the 2016 season came to an end.
On April 20th, 2017, Henderson filed a statement of claim against Dennis Wideman and the Calgary Flames. In the claim, Henderson alleges that he was “completely defenceless” when Wideman «violently struck» him from behind[3]. Henderson alleges that he suffered a host of injuries in relation to the incident, including an injury to his neck, which required surgery, a concussion, a back injury, headaches, numbness and tingling in the right arm and hand, among other problems[4].
Henderson alleges the incident was an «attack» in which he was «violently» hit from behind[5]. One question in particular is worth further exploration. With regard to the physical contact that took place between Henderson and Wideman, is battery a cause of action that is available to Henderson? What sports related defence may Wideman employ in response?
Yes, battery is a cause of action that is available to Henderson. Battery is the intentional infliction of harmful or offensive bodily contact[6]. One must intend to make physical contact, but not necessarily to cause harm. The contact must be physical and may be made with the plaintiff’s body, or with items which are closely connected to the body. The contact need not cause a physical injury as conduct offensive to the reasonable plaintiff may be sufficient. The courts tend to take into account societal standards of acceptable conduct.
Henderson could allege that Wideman intentionally inflicted harmful bodily contact when he struck him from behind, causing Henderson to sustain physical and psychological injuries.
In his defence, Wideman might argue that Henderson consented to his actions. Essentially, consent is a willingness that the act occurs. In the past, Canadian courts have found that a person who enters a sporting activity is taken to consent to the ordinary risks and contacts involved[7]. However, this does not apply to contact that is outside the bounds of fair play or malicious and out of the ordinary[8].
Wideman’s defence could counter an allegation of battery by arguing the hit was within the ordinary risks associated with playing hockey in the NHL. However, Henderson’s personal injury lawyer will likely respond by arguing the hit from behind, on a referee, was outside the bounds of fair play, malicious in nature, and very much out of the ordinary.
It should be quite intriguing to see how things will unfold going forward. However, one thing is certain, the incident has led to a discussion in the NHL, wider society, and the legal community, how these types of incidents should be dealt with moving forward.
If you or a loved one have been seriously injured in a sports related incident, and you are unsure what you can claim for, the legal team at Wagners can help you. You can reach us at 902-425-7330 or 1-800-465-8794.
[1]Allan Maki, NHL linesman Don Henderson seeks damages for hit by Dennis Wideman, The Globe and Mail, (21 April 2017), online: http://www.theglobeandmail.com/sports/hockey/nhl-linesman-don-henderson-seeks-damages-for-hit-by-dennis-wideman/article34770567/.
[7]Agar v Canning (1965), 54 WWR 302 (Man QB); affirmed (1966), 55 WWR 384 (Man CA); Martin v Daigle (1969), 6 DLR (3d) 634 (NB CA). [8]Colby v Schmidt (1986), [1986] 6 WWR 65 (BC SC).