Case Summary: Miller v. Cox, 2023 BCSC 349

The Supreme Court of British Columbia recently provided its decision in Miller v. Cox, 2023 BCSC 349. This is a particularly interesting decision for British Columbia residents who compete in recreational sports.

The defendant, Mr. Cox was held liable for a tackle in a 2018 soccer game in the North Vancouver Millar’s League. The parties agreed to the damages before trial, and the Court was only asked to decide if the defendant soccer player was liable for the accident.

The Court fairly decided that the defendant was fully liable for $103,764.11 for the negligent and dangerous slide tackle.

Both Mr. Miller and Mr. Cox were experienced soccer players, having played at both youth and adult levels. During the game in question, they had been playing on opposing teams. Mr. Miller was guiding the ball towards the opposing goal when Mr. Cox slide-tackled him from behind, causing our client to fall forward and injure his shoulder.

The Court was tasked with determining the standard of care, namely how the Defendant should have been reasonably expected to behave during gameplay towards the Plaintiff. What is safe play as opposed to negligent or dangerous play? The Court had to determine what constitutes a fair tackle.

The Evidence at Trial

Mr. Cox argued that slide-tackles were allowed during the game and that Mr. Miller assumed the risk of injury when he agreed to play in the game.

Mr. Miller provided the following evidence at trial:

• He was fastly approaching the 18-yard box, dribbling the ball on his right foot, getting ready to shoot on the goal
• He did not see Mr. Cox coming towards him and was unable to brace for impact
• Mr. Cox approached him from behind on his left side
• He felt both of Mr. Cox’s legs contact him on his upper calf behind his knee

He also provided the following evidence at trial:

[26] Under cross-examination, Mr. Miller described the tackle as Mr. Cox taking out both his legs. Mr. Miller said Mr. Cox came in from behind, and hit Mr. Miller’s legs with both of his legs, not just his feet. The hit was high on Mr. Miller’s legs. Mr. Miller described it as a “scissoring motion,” and said that the tackle by Mr. Cox was not a recreational soccer tackle. Under cross-examination, Mr. Miller disagreed that a tackle of this kind was a risk he accepted when playing in this recreational league.

[27] Mr. Miller said Mr. Cox was nowhere close to the ball, which was on Mr. Miller’s right foot as he was in the midst of shooting for the goal. The impact was severe, and Mr. Miller was thrown forward face first into the ground. He did not have time to put his hands out in front of himself to break his fall.

[28] Mr. Miller said Mr. Cox was out of control and aggressive in his tackle. Mr. Miller says that for a recreational league, Mr. Cox’s action in tackling him was unfair and dangerous. He felt Mr. Cox was trying to hurt him. Mr. Miller testified that a tackle involves an attempt to take the ball with your feet. However, Mr. Cox had no ability to touch the ball with his feet as Mr. Miller’s body was between Mr. Cox and the ball. Mr. Miller agreed under cross-examination that he had experienced slide tackles before, but stated the tackle executed by Mr. Cox was not a slide tackle which could be expected as part of the game in this recreational league. [29] Mr. Cox received a yellow card from the referee for the tackle. Mr. Miller testified that Mr. Cox improperly hit him from behind, and was trying to take out Mr. Miller as a player rather than trying to touch the ball. For these reasons, Mr. Miller felt Mr. Cox should have received a red card for the tackle.

The Court also heard from several other witnesses at trial, including the referee during the game.

The Court’s Findings

The Court provided the following findings:

[76] With the exception of Mr. Cox, I find all of the witnesses to be straightforward and credible. Some of the witnesses were closer to the tackle and had a better view of the incident. Nevertheless, the consistency of their evidence allows me to find, based on a balance of probabilities, the central facts in this case.

[77] Although Mr. M. Robinson thought Mr. Cox approached Mr. Miller from the right, he did not have a good view of the tackle, did not actually see how the players collided, and agreed that the evidence of the other witnesses closer to the incident should be preferred. Therefore, while I find Mr. M. Robinson to be a credible witness with respect to matters he had direct knowledge of, I reject his evidence regarding the mechanics of the tackle as being unreliable.

[78] With respect to the tackle itself, I entirely reject the evidence of Mr. Cox. His testimony is diametrically opposed to the six witnesses who had a clear view of the tackle. I find his testimony to be self-serving and wholly unbelievable. Mr. Cox testified that he executed the tackle from Mr. Miller’s right side, that he extended his right leg forward to hit the ball, that he did make contact with the ball, and that Mr. Miller simply tripped over Mr. Cox in the ordinary course of play. To paraphrase the trial court in Unruh v. Webber, 98 D.L.R. (4th) 294, 1992 CanLII 1121 at para. 15 (B.C.S.C.), if Mr. Cox’s account were true, his tackle may well have been acceptable soccer. But given the account of the incident by the other witnesses, the account given by Mr. Cox is simply not to be believed.

[79] While the referee did not issue a red card for Mr. Cox’s conduct, I am satisfied that is not determinative of liability. It is merely one factor to consider. Given how equivocal Mr. Vohalis was in his decision to issue the yellow card, and not the red card, I do not place much weight on the fact that no red card was issued.

[80] I find Mr. Miller has established, on a balance of probabilities, that the mechanics of the tackle occurred as follows.

[80] I find Mr. Miller has established, on a balance of probabilities, that the mechanics of the tackle occurred as follows:

• Mr. Miller was running fast towards the goal, and was just approaching the 18-yard box with control of the ball, on his right foot. He was just getting ready to kick the ball towards the goal moments before being tackled.
• Mr. Cox ran up behind Mr. Miller on Mr. Miller’s left side. He was approaching on an angle from behind, and was in Mr. Miller’s blind spot.
• Mr. Miller did not see Mr. Cox.
• Mr. Cox lifted both his legs off the ground in an attempt to execute a slide tackle. His left leg went in front of Mr. Miller’s legs, and his right leg came up behind Mr. Miller’s legs. He struck Mr. Miller slightly below Mr. Miller’s knees.
• The effect of Mr. Cox’s tackle was that both of Mr. Miller’s legs were taken out from under him and, with the speed he was traveling, Mr. Miller fell face first into the ground, very hard, and was unable to put his hands out to stop him. He severely injured his right acromioclavicular joint in the fall.
• There was no possibility of Mr. Cox reaching the ball, as the ball was ahead of Mr. Miller’s right foot, and Mr. Miller’s body was between Mr. Cox and the ball.

What Does This Mean?

This decision means that soccer players participating in recreational soccer matches should be mindful of their tackles if there is no possibility of them reaching the ball. They may be held negligent and liable for injuries they cause other players to sustain.

Although tackles are part of the game and all soccer players assume the risk of getting injured by slide-tackles, they must have a chance of reaching the ball with a slide-tackle in order for them to be considered fair play. In this case, the Court heard enough evidence to rule that Mr. Cox had no hope of getting the ball when he engaged in the slide-tackle, especially since he approached from Mr. Miller’s left side while the ball was on his right.

The Court made it clear that, to reach a finding of negligence, a referee does not need to issue a red card nor must the defendant intend to injure a plaintiff. What really matters is whether the defendant had a hope of getting the ball in the tackle and whether they played outside the parameters of expected conduct.

Congratulations to senior counsel Seth Wheeldon from Preszler Injury Lawyers for his success at trial on this case.