The ruling reaffirmed the notion that no hockey player agrees to submitting to egregious violence – such as being slammed into the boards from behind – merely by playing the game.TIM SHAFFER/Reuters
The question – what exactly does one agree to by stepping onto a hockey rink? – isn't a new one, but the answer to it is changing.
A Quebec judge this week gave an indication of the change by ordering a record $8-million in damages be paid to a 21-year-old Montreal man who was paralyzed after a hit from behind in 2010, and in his ruling reaffirmed the notion that no hockey player agrees to submitting to egregious violence – such as being slammed into the boards from behind – merely by playing the game.
And if the hockey world has a tendency to sometimes blame the victim – witness the often torturous reasoning and analysis from the NHL's department of player safety on players' responsibility to protect themselves from hits – the court was having none of it.
"A participant in a sporting activity is entitled to the expectation that other players will take reasonable steps to avoid gestures that are likely to cause prejudice, even within the framework of a dangerous sport," Justice Daniel Payette wrote in a judgment dated Feb. 1.
Thus, former Royal de Montréal player Ludovic Gauvreau-Beaupré – who would later play in the QMJHL and currently lines up in a semi-pro circuit known primarily for its brawlers – had "not only the time, but the duty to stop or change direction" when Patriotes de Laval opponent Andrew Zaccardo hit the brakes near the boards just a few seconds into an Oct. 3, 2010, game.
Instead, he hammered the smaller Zaccardo into the sideboards, jumping into the contact.
At the time, both players were well-regarded Midget AA prospects. Zaccardo had led his team in scoring the previous season.
Since the accident, Zaccardo has been confined to a wheelchair and has limited use of his hands. The disability hasn't stopped him from graduating high school and junior college and he is currently taking university courses (Zaccardo and his family turned down an interview request through a representative).
Gauvreau-Beaupré, who is listed on the roster of the Ligue nord-américaine de hockey's Laval Prédateurs, couldn't be reached for comment.
There will be the usual murmurs over what the $8-million award, which will be paid out by Chartis Insurance Co. of Canada (whose lawyer declined comment on whether an appeal is in the offing), could mean for arena operators and minor hockey leagues, but an informal survey of hockey officials and legal experts suggested no clear answer.
Individual rink owners and municipalities faced rising insurance and other operating costs before the judgment, and the leagues and players who belong to Hockey Canada's group insurance scheme won't see a premium revision for several more years.
The Zaccardo case is believed to be only the third of its kind in the past 25 years, the other two having been litigated in British Columbia in the 1990s (both resulted in damage awards of about $4-million).
As is the custom, Payette said his ruling applies only to the set of facts before him, which were rendered clearer by a video of the incident shot by another player's father.
"I don't think this decision is likely to lead to an avalanche of lawsuits for checking from behind, each case turns on its own facts … the purpose was to obtain adequate financial compensation for an injury that has led a severe disability," said Montreal lawyer Stuart Kugler, who acted on Zaccardo's behalf.
Indeed, this legal action originally wasn't about the hockey establishment.
While Hockey Canada and Hockey Québec were initially named as co-defendants in the suit, their names were removed midway through the process once the disclosure process revealed reams of materials aimed at educating young players about the dangers of hits from behind.
"They had done their job. It's up to the players to do theirs," Kugler said.
Though Hockey Canada declined to comment, a Hockey Québec statement said the ruling shows "no participant is shielded from the law, regardless of their acts or behaviour."
Sports-law expert Jon Heshka, a professor at Thompson Rivers University in Kamloops, likened the evolving hockey mindset to trampolines, which used to be common in schools but largely disappeared after a spate of injuries and lawsuits.
"It was because of the way they were used – in hockey, if there's an incident, typically the game has adapted," he said, noting that awareness regarding head injuries and checking from behind is exponentially greater than a generation ago.
In the original trials about implied consent in hockey – after the Wayne Maki/Ted Green stick-swinging incident in 1969 – the courts ruled, essentially, that violent stuff happens.
But that incident also marked the first time a judge used a line employed five decades later by Payette: "A hockey rink is not a law-free zone."
Editor's note: An earlier online version of this article referred to Wayne Maki as Chico. This reference was incorrect and has been removed.