The venue was a 1963 non-professional but senior level ice hockey game between two Manitoba, Canada teams, Hartney v. Killarney. 17-year old Agar of the Hartney team, took a body check from Canning as they fought over possession of the puck in the Hartney corner of the rink. Canning took the puck and raced towards the net.

Agar recovered enough from the hit to chase Canning and reached with his stick to try to grapple Canning with the blade of his stick - called "hooking" in ice hockey. Agar managed to hook Canning but in doing so, he somehow got his stick up to at least graze the back of Canning's neck with it.

Canning lost it.

He just stopped, turned around and raised his stick and with both hands and brought the stick down on Agar's head, knocking the 17-year old out cold. The game was stopped and never resumed while medical emergency services were summoned. Agar survived but sued as he had significant permanent injuries.

The case came to trial before Justice Bastin in 1965. Thus, the court in Agar v Canning had to look at the difficult issue of the exposure of an alleged tort-feasor to tort and personal injury liability in the context of a sport that encouraged body contact.

In the event, Agar v Canning has been much-followed in Canadian tort law, especially paragraphs 6 and 7 (below).

With the predictability of a trained parrot, and the wisdom of a trained personal injury defence lawyer, defendants in ice hockey violence cases almost always assert the volenti non fit volenti defence to which Agar v Canning speaks.

The formal legal citation of this legal case is Agar v Canning, 54 WWR 302. What follows is the full, 13-paragraph, September 15, 1965 decision of Francis "Frank" Martin Bastin (1896-1986), then formally known as Mr. Mr. Justice Bastin1 of the Manitoba Court of Queen's Bench.

Mr. Justice Bastin's decision was appealed but the appeal failed when Agar v Canning was confirmed by the unanimous judgment of the Manitoba Court of Appeal in 1966. The legal citation of the appeal decision is "55 W.W.R., 384".

1. This is an action by a member of a hockey team against a member of an opposing team, for damages arising out of injuries sustained during the course of a hockey match. The incident which gave rise to this action occurred on March 4, 1963, at the town of Hartney (Manitoba, southwest of Brandon) during the closing minutes of a game between the Killarney and Hartney hockey teams. The teams were classed as intermediate and no age limit applied. At the time, plaintiff was 17½ years of age and defendant was 23. The game was controlled by two referees, Dumbrell and Kennedy, who had equal authority to penalize for infractions of the rules.

ice hockey player2. Apart from medical testimony, the evidence consisted of the testimony of the parties to the action, the two referees, two players and three spectators. As is inevitable in describing an incident which occupied a very short period of time and which occurred over two years ago, there are discrepancies in the details of the stories of the various witnesses. However, I have had no difficulty in deciding what occurred. I find as a fact that what transpired was as follows: The plaintiff and defendant followed the puck into the south-west corner at the Hartney end of the rink. Defendant body-checked plaintiff took possession of the puck and started to skate with it, or after it, in the direction of the Killarney goal. Plaintiff attempted to delay defendant by hooking him with his stick and in so doing hit defendant a painful blow on the back of the neck. Defendant thereupon stopped, turned, and holding his stick with both hands, brought it down on plaintiff's face, hitting him with the blade between the nose and right eye. I find that he did this in retaliation for the blow he had received. Plaintiff fell to the ice unconscious and the game terminated at that point.

3. Defendant, in his examination-for-discovery, admitted that his hockey stick struck plaintiff's face, but at the trial claimed to have no recollection as to how this occurred. He testified that he received a blow to the back of the neck; that he turned, but does not know why he turned, and that the next thing he knew plaintiff was lying on the ice. He denied that he was provoked by the blow he received and that he intentionally struck plaintiff. I do not accept his explanation in the face of the testimony of a number of witnesses that he raised his stick in both hands and brought it down, striking plaintiff's face. I am convinced that he lost control of himself and retaliated for the blow he received by intentionally hitting at the plaintiff's head with his stick. Two witnesses called by defendant, one, Reynolds, and the referee, Kennedy -- both residents of Hartney -- described defendant's blow as retaliatory. The other referee, Dumbrell, stated that defendant raised his stick and brought it down on plaintiff's face in a chopping motion, which is quite inconsistent with an inadvertent and unintentional blow.

4. The legal principle governing a claim of this nature is discussed in Halsbury as follows:

"An unlawful blow which is struck in anger or which is likely or is intended to do bodily hurt is actionable, but a blow struck in the course of a lawful sport is not actionable. Thus, boxing with gloves in the ordinary way does not involve an assault; but a blow struck in a prize fight is an assault and battery notwithstanding the consent of the person struck."

5. The learned author of Pollock on Torts deals with the subject on page 112 as follows:

"Harm suffered by consent is, within limits to be mentioned, not a cause of civil action. The same is true where it is met with under conditions manifesting acceptance, on the part of the person suffering it, of the risk of that kind of harm. The maxim by which the rule is commonly brought to mind is volenti non fit injuria. 'Leave and licence' is the current English phrase for the defence raised in this class of cases. On the one hand, however, volenti non fit injuria is not universally true. On the other hand, neither the Latin nor the English formula provides in terms for the state of things in which there is not specific will or assent to suffer something which, if inflicted against the party's will, would be a wrong, but only conduct showing, that for one reason or another, he is content to abide the chance of it. Some learned persons would make this a distinct ground of excuse under the name of 'assumption of risk.'"

6. Neither counsel has been able to find a reported case in which a claim was made by one player against another for injuries suffered during a hockey game. Since it is common knowledge that such injuries are not infrequent, this supports the conclusion that in the past those engaged in this sport have accepted the risk of injury as a condition of participating. Hockey necessarily involves violent bodily contact and blows from the puck and hockey sticks. A person who engages in this sport must be assumed to accept the risk of accidental harm and to waive any claim he would have apart from the game for trespass to his person in return for enjoying a corresponding immunity with respect to other players. It would be inconsistent with this implied consent to impose a duty on a player to take care for the safety of other players corresponding to the duty which, in a normal situation, gives rise to a claim for negligence. Similarly, the leave and licence will include an unintentional injury resulting from one of the frequent infractions of the rules of the game.

7. The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse.

8. But a little reflection will establish that some limit must be placed on a player's immunity from liability. Each case must be decided on its own facts so it is difficult, if not impossible, to decide how the line is to be drawn in every circumstance. But injuries inflicted in circumstances which show a definite resolve to cause serious injury to another, even when there is provocation and in the heat of the game, should not fall within the scope of the implied consent. I have come to the conclusion that the act of the defendant in striking plaintiff in the face with a hockey stick, in retaliation for the blow he received, goes beyond the limit marking exemption from liability.

9. Although provocation is not a defence, the law is clear that in assessing damages evidence of provocation should be considered in mitigation.

10. The following is from the judgment of (Justice) Morden in Miska v. Sivec:

"There is no doubt that where there is evidence of provocation the jury should be instructed to consider it in assessing damages for assault. In this connection, Mr. Goodman submitted that the bad feeling and other incidents between the parties, going back over a period of eight or nine months, should be considered evidence of provocation.

"The conduct of the plaintiff to be capable of being considered provocation must have been such as to cause the defendant to lose his power of self-control and must have occurred at the time of or shortly before the assault. In Fraser v. Berkeley (1836), three days after the plaintiff published a libel on the defendant and his family, the defendant beat the plaintiff with a heavy whip and his fists and in the action for damages for assault evidence of this libel was given. Lord (judge) Abinger in charging the jury said at p. 624: 'The law I think would be an unwise law, if it did not make allowance for human infirmities; and if a person commit violence at a time when he is smarting under immediate provocation, that is a matter of mitigation.' The same principle was stated in Short v. Lewis (1833), Percy v. Glasco (1872), Evans v. Bradburn (1915) and Griggs v. Southside Hotel (1947).

11. The plaintiff testified that he attempted to hold defendant back by hooking him with his stick, using one hand to do so, and that he had no intention of striking defendant, and that the blow on the back of the neck which defendant received was inflicted by accident. I was favourably impressed with plaintiff and believe his evidence. But even though unintentional, it was this blow which provoked defendant to retaliate and I am bound to consider this in mitigation of damages. By R. 105 (Manitoba MBQB court rules, #105) damages are in issue in all cases.

12. Even though provocation was not pleaded, and defendant denied acting on provocation, I have made a finding that defendant acted on provocation so I should take this into account in my assessment of damages.

13. Special damages amount to $115, consisting of doctor's accounts of $30 and hospital accounts of $85. The medical evidence is that the plaintiff has lost all useful vision of his right eye and has injuries to his nose which will affect his breathing and may require to be corrected by an operation. I allow damages of $250 for pain and suffering and for the injuries to the nose and $5,500 for the loss of the sight of the right eye. I am reducing these damages by one-third, on the ground that there was great provocation, and, therefore, plaintiff will have judgment for $3,910, together with costs, to be taxed, and fiat for discovery.

the end Roger

  • Evans v. Bradburn, 9 WWR 281 (1915)
  • Fraser v. Berkeley, 173 ER 272 (1836)
  • Griggs v. Southside Hotel, [1947] OR 674
  • Halsbury, Stanley, The Laws of England, 3rd ed., volume 38, page 762
  • Miska v. Sivec, [1959] OR 144 at page 149
  • NOTE 1: The judge, Frank Bastin was a war hero. According to the Manitoba Historical Society, he: "... served in the infantry during the First World War. He was seriously wounded, reported missing and presumed dead, in 1918. After recuperating in England, he returned to Winnipeg where he entered the Manitoba Law School, graduating in 1921."
  • Percy v. Glasco, (1872) 22 UCCP 521 (ONCA)
  • Pollock on Torts, 15th ed., page 112
  • Short v. Lewis, (1833) 3 UCQB 385 (ONCA)