The Supreme Court of Canada (SCC) case of Crocker v. Sundance has made waves in Canadian law ever since it was decided in 1988. By discussing key personal injury law concepts, such as contributory negligence and voluntary assumption of risk, lawyers and litigants always go back to this decision for reference.
In this article, we’ll discuss how this case came to be and what lessons legal professionals should take note of. This article can be used not just by lawyers and their clients, but also by the students of law who want to learn about this case.
What happened in Crocker v. Sundance?
Completely cited as Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 SCR 1186, this is a historical and significant tort case in Canada. To summarize, the case involved a skier (Crocker) who filed a case against a ski resort (Sundance), which organized a “tubing” competition. Crocker joined while he was intoxicated; while he won the competition’s first heat, he suffered a neck injury during the second heat, resulting in him being a quadriplegic.
Crocker sued Sundance for damages under a tort case. While Crocker was successful at the trial level, the decision was overturned during its appeal. Ultimately, the SCC reversed the appellate court’s decision and held that Sundance is liable for Crocker’s injuries. However, the Court apportioned 25 percent of the damages to Crocker for his own negligence.
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What is the decision of the court in Crocker v. Sundance?
Before going into the SCC decision, let’s first break down the relevant facts of Crocker v. Sundance and the lower courts’ decisions. This will bring into context how the SCC decided on Sundance’s defense that Crocker voluntarily assumed the risk for his own injuries, and about his own contributory negligence.
Detailed facts of the Crocker case
To promote their ski resort, Sundance held a tubing competition where two people will be sliding down in a “mogulled” part of a steep hill using oversized inner tubes.
On the other hand, Crocker and his friend were drinking at the resort’s bar after a day of skiing where a video of the previous year’s competition was being played. Enticed, they decided to enter the competition. They signed an entry and waiver form, including paying the entry fee.
The drinking during the day of the accident
Two days later, the competition started with Crocker and his friend who already “drank large quantities of their own alcoholic beverages.” While drinking, they were wearing bibs that can clearly show them as tubing competitors.
During the competition’s first heat, Crocker and his friend were declared the winners. However, in between the first and second heats, “Crocker drank two large swallows of brandy.”
The dissuading of Sundance
Between the first and second heats, Sundance’s owner, Beals, already noticed Crocker’s drunken condition. Beals asked Crocker if he could still compete in another heat, with Crocker responding positively. The Court noted that Beals “did nothing more to dissuade” Crocker.
Before sliding down the hill for the second heat, Crocker already fell. This prompted the manager of Sundance, Durno, to suggest to Crocker that it’s not a good idea for him to continue. Still, Crocker insisted on competing. Just like Beals, Durno “took no further steps to restrain” Crocker.
The injurious accident
Came the second heat, Crocker's and his friend's tub hit a mogul on the way down the steep hill. As they flipped out of their inner tube, Crocker injured his neck because of the accident. This made him a quadriplegic, causing him to sue Sundance.
Decision of the trial court
At the Trial Division of the previously Supreme Court of Ontario, it was held that Sundance:
- was under a duty to warn Crocker of the risk of serious injury
- did not discharge this duty to warn Crocker
- is under an affirmative duty to prevent Crocker from putting himself at risk
As to Sundance’s defense that Crocker waived his right to sue by signing the waiver, the trial court held that it did not form a waiver because of the following reasons:
- the waiver did not exclude liability for negligence
- the injury occurred outside what is contemplated by the waiver
- Crocker did not read the form and did not appreciate it as a waiver
The trial court also said that Crocker did not voluntarily assume the risk of the dangerous tube race. It held that Crocker “did not assume the legal risk,” although “he may have assumed the physical risk.”
But, in mitigating the damages to be received by Crocker, the trial court said that he contributed “to his injuries by his own want of care in deliberately getting drunk and participating in the races.”
Decision of the Ontario Court of Appeal
On appeal, the Ontario Court of Appeal (ONCA) overturned the trial court’s decision. Aside from holding Crocker liable, the appellate court said that he:
- had not established that Sundance breached its duty to warn him of the risks involved in the tubing competition
- introduced an inevitable risk of harm on himself when he deliberately got drunk before and during the race
On the part of Sundance, the ONCA held that:
- it took all the reasonable steps to make Crocker aware of the risks associated with the competition
- it did not bear any affirmative duty on Crocker that extended beyond the duty to warn him of the risks involved
As to the issue on the quantum of damages, the appellate court said that it’s unnecessary to decide on it. However, it said that a new trial would be necessary because of the new evidence on Crocker’s life expectancy.
Decision of the Supreme Court
At the SCC level, the issue in Crocker v. Sundance is whether Sundance “had a positive duty at law to take certain steps” in preventing Crocker, who is a “visibly intoxicated person,” from competing in their dangerous tubing competition.
Sundance contends that they have no such duty; but even if they did, that they adequately discharged this duty. On the contrary, Crocker argued that Sundance did have such a duty and failed to discharge it.
Penned by Justice Wilson, the SCC decision ruled against Sundance, restored the trial court decision, but found Crocker to be partly liable for his own injuries. The Court held the following about each party:
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If Sundance had the duty of care: As the promoter of the dangerous tubing race, and seeing Crocker clearly intoxicated, Sundance owed Crocker a duty of care “to take all reasonable steps to prevent him from participating in the sport.”
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If Sundance discharged this duty: Sundance did not discharge this duty of care that it owed Crocker. As a ski resort, it may be acceptable for Sundance to allow sober, able‑bodied persons to join its dangerous recreational activities. However, Sundance shouldn’t have opened their “dangerous competitions to persons who are obviously incapacitated,” such as drunk persons.
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About the foreseeability of Crocker’s injury: The injury of Crocker was clearly foreseeable. As such, the cause of Crocker’s injury is Sundance’s failure to take reasonable steps to prevent him from competing in the dangerous competition because he was clearly intoxicated.
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If Crocker voluntarily assumed liability: Crocker did not voluntarily assume the legal risk involved in joining Sundance’s dangerous competition. Whether by word or conduct, Crocker’s act of joining the competition is not an assumption of the physical risks involved, because his mind was clouded by alcohol at the time. Hence, the defense of voluntary assumption of risk is inapplicable for Sundance.
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Effect of Crocker’s signed waiver: As a rule, a waiver is a full defence to a personal injury claim. However, in relation to his alleged voluntary assumption of risks, the waiver signed by Crocker did not relieve Sundance from its liability. This is because the waiver was not drawn to Crocker’s attention, nor had it been read by him.
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On Crocker’s own negligence: The trial court’s judgment that Crocker contributed to his injuries by his own negligence, by deliberately getting drunk and by joining the dangerous competition, was also reinstated. Since it was not challenged before the SCC, it held that it would not interfere with such judgment.
In the end, the appeal to the SCC was allowed with costs. The judgment of the ONCA was set aside, and the trial court’s decision was restored on the issue of liability. However, a new trial was ordered as to the issue of damages, because of the new evidence received by the ONCA on Crocker’s life expectancy.
What are the important takeaways from the case of Crocker v. Sundance?
The significance of Crocker v. Sundance cannot be overstated enough, since it’s still one of the prevailing cases for personal injury cases in Canada. For law students, this case is a great introduction for Canadian tort law. As to lawyers, Crocker is still relevant when acting for or against a drunk, injured person who is suing a corporation (e.g. a business) for damages.
Voluntary assumption of risk
In Crocker v. Sundance, the Court reiterated that the volenti defense only applies “where the plaintiff has assumed both the physical and the legal risk involved in the activity.” Here, it can be inferred that such a defense does not apply when the mind of the injured has been “clouded by alcohol at the time.”
Watch this video that explains what the voluntary assumption of risk is as a defense in torts or personal injury cases:
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Contributory negligence
Despite finding Sundance largely at fault, the Court still "penalized" Crocker by ascribing 25 percent of the fault on him. This decision highlights how contributory negligence works, especially when the plaintiff is drunk, despite the finding that the same plaintiff did not voluntarily assume any risk.
Social host liability
On the level of natural persons as defendants in similar cases, the principle of social host liability is equally related. As a rule, social hosts may be held liable for the injuries that their intoxicated guests caused to third parties. The principle applies even if the wasted guests have left the social host’s property after some time.
This principle and Crocker v. Sundance just emphasizes that businesses that serve spirits and liquors must check on the rights and legal obligations to their guests. This guides managers and other people running the business on how to best handle certain situations, especially when it comes to their alcohol-induced guests.
Crocker v. Sundance: a landmark tort case
Crocker v. Sundance continues to be a landmark case in Canadian tort law. It highlights the balance between personal responsibility and the duty of care owed by businesses.
While Sundance was held accountable for not preventing a drunk participant from competing, it also affirmed that individuals are responsible for their actions — especially if these actions contribute to their own injuries.
For lawyers, this case is a key reference for understanding negligence, contributory negligence, waivers, and the defense of voluntary assumption of risk.
More common law in the field of personal injury, aside from Crocker v. Sundance, can be read in our article on the Largest Personal Injury Settlement Amounts in Canadian Histor