News broke on Thursday afternoon about Don Henderson’s lawsuit against Dennis Wideman. Since then, CTV’s Chris Epp – who broke the story and is a good follow for whatever happens next in this suit – has been kind enough to share some documents with us so we actually have a grasp of the suit’s substance.
Here’s everything we know right now.
What’s the claim?
In the Statement of Claim, filed with the Court of Queen’s Bench of Alberta on April 18, Henderson claims two basic things:
- “At the time of the incident, Wideman intentionally and deliberately struck Don Henderson.”
- “Further, or in the alternative, at the time of the incident, Wideman owed Henderson a duty of care and was negligent in the exercise of that duty…”
The emphasis in the details of Wideman’s duty of care towards Henderson is a few repetitions that Wideman “knew or ought to have known” that his actions would injure Henderson. Essentially, Wideman’s responsible for his actions (and the damages they caused) because there’s a rule against abusing officials, that Henderson was unaware and defenseless, and that the specific circumstances of the incident essentially made injury in the event of such contact easy to foresee.
How do the Flames fit in?
There’s really only one mention of the Flames in the entire Statement of Claim: “The Calgary Flames are vicariously liable for the actions and omissions of their employee Wideman, as described in this Statement of Claim, and for the damages awarded in this action.”
The vicarious liability connection is pretty straightforward. The Flames employed Wideman for the authorized activity of slamming into other competitors on the ice. Since the “unauthorized act” that injured Henderson was very closely connected with the authorized acts of his employment, it would be extremely difficult for the Flames to argue in court that the activities weren’t connected (and that they shouldn’t be liable).
There’s been quite a bit of recent Supreme Court of Canada decisions clarifying the judicial tests for applying vicarious liability, but that’s the gist of it. He was working for them and his illegal actions were related to the activities of his employment, so they’re held liable.
What about Wideman’s concussion?
That’s where things get really tricky. In their well-documented appeal of Wideman’s 20-game suspension, the NHLPA argued that Wideman was concussed and so he wasn’t responsible for his actions. There are a couple issues here:
- The concussion wasn’t particularly well-documented at the time and a lot of the medical testing was done remotely and after the fact, which the NHL argued in rejecting the appeal.
- A concussion could be used to argue diminished capacity to commit a crime or follow rules – extenuating circumstances are often cited in criminal trials – but they don’t necessarily absolve Wideman of his civil responsibility for Henderson’s well-being during a game. Since this is a civil trial for damages, the standard that has to be met is significantly different.
Arguing “I’m allowed to hit him if I’m woozy” doesn’t really work in the context of 100 years of NHL games, many of which involved players without helmets crashing into each other while managing to avoid on-ice officials. We’ve never had an incident like this in the history of the game, which essentially frames the Henderson side’s argument rather plainly – when these types of things do happen, they need to be treated with seriousness.
What about the NHL concussion lawsuit?
While this suit is progressing, don’t forget that the NHL is currently in the midst of a class action lawsuit from former players regarding head injuries and their long term health impacts. In the context of this kind of ongoing litigation, it seems extremely unwise to allow a case like this to hit open court. If this case hits open court, there would almost definitely be a ton of ugliness in the testimony. Lawyers associated with an NHL club (the Flames) would be arguing about whether a player is or isn’t responsible for when they’re concussed, and there would be an even larger microscope put on the NHL’s concussion protocols. The league’s already suffered some embarrassment as a result of e-mails related to the concussion suit becoming unsealed. They definitely don’t want to deal with any more of that.
Between the potential ammunition given to the lawyers on the other side of the concussion lawsuit and the prospect of having the clip of Wideman decking Henderson running in a loop on Sportsnet for several more months, I would expect the Wideman/Flames side to be motivated to settle this case.
Isn’t $10.25 million a lot to ask for?
The suit’s value ($10.25 million) is based on a few vague calculations:
- $200,000 in general damages
- $50,000 in “special damages, housekeeping, yard work expenses and hospital expenses”
- $10,000,000 in “loss of income, loss of future income, loss of earning capacity and loss of opportunity”
The claim also cites things like “cost of future care” and “loss of capacity to perform yard work” and other things that would be valued during the future action.
NHL linesmen make, on the high end, about $235,000 per year. Given Henderson’s age and his placement on the NHL pay-scale, $10 million is a big ask. But it’s also likely part of a legal strategy where you start with a big ask when you file the suit and things eventually get walked back to some manner of mid-point when a settlement happens.
What happens next?
The Wideman/Flames side has 30 days after the claim was filed – May 18 – to file a Statement of Defense, at which point it seems likely that things will progress towards either a court date or a settlement rather quickly. My feeling is it’ll be the latter, as one side seems to have some incentives to keep things out of open court.