Amateur sport should be a positive and safe experience. It should not cause physical harm beyond unavoidable danger. The Whyte review published earlier this year (see here for a synopsis) showed that British Gymnastics left these principles far behind. These claims are not limited to the UK. In Canada, former Kelowna Rockets captain Mr. James McEwan has filed a lawsuit against the Canadian Hockey League for allegedly encouraging violence and fighting between underage players. He claims that he suffered concussions as a result of that fight, causing depression, anxiety, mood swings, memory loss, confusion, outbursts of anger and suicidal thoughts.
In the recent judgment of McEwan vs Canadian Hockey League 2022 BCSC 1104the defendant requested among other thingsto challenge the admissibility of an expert opinion on amateur sports management submitted by the plaintiff. The principles of admissibility of expert reports under Canadian law are similar to those under CPR 35.1. Accordingly, this article looks at the facts, judgment and finally useful comment points for English practitioners.
The plaintiff alleged that the defendant maintained an environment that ‘allowed, condoned and encouraged… in-game struggles and violence among the underage players they must protect”. It was alleged that the defendant created a culture that sanctioned attacks and had the power to end that culture. Accordingly, it was alleged that the long-term brain injuries they sustained as a result of the fighting on the ice were caused by the defendant’s negligence.
The Claimant wanted to refer to the report of Dr. Arthur Banning, a professor at Clemston University who specializes in amateur sports management. The report identified several professional standards and best practices for reducing facial injuries, including requiring players to wear face masks and imposing penalties related to racket abuse. Specifically, he said the defendant failed to change his stance on affiliated league fights, allowing for a greater potential for athlete injuries. The defendant presented several aspects of Dr. Banning in question. The three main challenges for the report were as follows:
- He wasn’t a properly qualified expert.
- The report attempted to comment on the duty of care that was beyond his expertise.
- The report was unreliable because it was not based on a recognized discipline.
The Supreme Court of British Columbia dismissed the defendants’ objections to the admissibility of the report. The Honorable Madam Justice Sharma delivered a verdict.
Lack of adequate qualification
The defendant claimed that Dr. Banning is not a properly qualified expert as his expertise relates to leisure management. In addition, they claimed that he lacked qualifications and specific publications on injury prevention best practices and professional standards.
The Supreme Court disagreed with the accused. dr Banning holds a PhD with a concentration in Youth Sports, a Masters of Science with a concentration in Sports Medicine and a Bachelor of Science in Physical Education. He had taught sport management for over 15 years and conducted and disseminated research relevant to sport management in youth development. Although the lack of specific publications may affect the weight of his opinion, it did not disqualify him as an expert.
Duty of Care Opinion
The defendant argued that the report was unnecessary because he was trying to comment on the duty of care that was the court’s role. This was briefly addressed by the Supreme Court. dr Banning merely provided literature and an opinion on the relevant standard of care that was beyond the reach of an ordinary person.
The report was not based on any recognized discipline
The defendant submitted that Dr. Banning’s report was based on a discipline that had no meaningful quality assurance standards. This was also rejected by the Supreme Court. The report by dr. Banning merely described the existing literature addressing a possible relationship between different sports management systems and injury prevention. Past practices (rules, policies, and education) can be helpful to a judge in determining the appropriate standard of care and did not constitute “new science”.
There are two interesting points English personal injury adjusters can take from this Canadian judgement. First, practitioners must be careful to distinguish between challenging the admissibility of expert opinions and challenging the weight given to such an opinion. The Supreme Court found that the two questions should not be left out. The mere fact that an expert has not published a journal article on the specific topic does not diminish his standing as an expert in his field.
Second, it is a compelling authority on the value of sports management as expert evidence in such attacking claims. The study of sports management involves a consideration of policies and practices for minimizing injuries in amateur sports leagues. The Supreme Court found that the consideration of these issues as expert opinion is related to the nature and extent of the duty and standard of care of organizations operating such leagues. Accordingly, this authority is of great importance to an English practitioner involved in allegations of assault, bullying and harassment in sport.