Factual Issues and Legal Principles in Negligence Claims

1. Factual Issues and Legal Principles in Negligence Claims Bruce Hutchison, Genest Murray LLP Teresa Drijber, OSBIE CAPSLE 2019

2. AGENDA

3. Legal principles

4. Standard of Care • “careful or prudent parent” - Myers v. Peel County Board of Education [1981] 2 SCR 21

5. Joint & Several Liability • A successful plaintiff can recover the full amount of a judgment from any one defendant provided it is found 1% or more responsible.

6. Foreseeability • In establishing liability, the plaintiff has to show the consequence of a negligent action was foreseeable. • Tort law requires a person to compensate or to answer in damages ($) for the foreseeable results of his or her negligence.

7. Credibility • Credibility or believability of parties and witnesses is a factor when assessing the strength of a case and whether it should proceed to trial or settle. • Credibility affects how a judge or jury evaluates evidence.

8. Occupiers’ Liability • Under legislation and common law, an occupier owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe.

9. STUDENT SPEEDING THROUGH PARKING LOT Facts • In school parking lot, lost control of motorcycle due to speed • Struck a cement bollard • Suffered catastrophic injuries

10. ISSUES • Board was aware of the danger posed by chains between bollards; had removed only chains • The student was speeding through a parking lot/driveway

11. REASONS FOR JUDGMENT • Should have removed the bollards when the chains were removed • Board was found 25% at fault • Student 75% at fault due to careless operation of his motorcycle

12. LESSON LEARNED • Foreseeability - board ought to have foreseen bollards posed a danger; aggravated seriousness of injuries

13. Poor Maintenance of Door Facts • Standard metal, windowless, hollow heavy door • Shallow plug to fill bottom of door • Over time the plug had fallen out-leaving a jagged sharp edge • The door struck the back of the student’s ankle causing a severe laceration This Photo by Unknown Author is licensed under CC BY-NC This Photo by Unknown Author is licensed under CC BY-NC-ND

14. ISSUES • Lack of routine inspections of door: no evidence of keeping track of changes to door and addressing them before it became a hazard • Staffing : number of custodians reduced over the years • Age of school: building was 175 years old

15. REASONS FOR SETTLEMENT • Failure to inspect the door • A costly repair was not involved • Failure to take reasonable steps to protect students This Photo by Unknown Author is licensed under CC BY-NC

16. Lesson learned • Importance of routine inspections of school premises to detect hazards

17. Bullying • Several provinces have implemented significant changes to education legislation developing policies to address bullying in schools. • Amendments include a broad definition of bullying which takes into account school climate and all kinds of interactions including electronic ones. This Photo by Unknown Author is licensed under CC BY-NC-ND

18. Student picked on by other students Facts • Two students bullied plaintiff by ridiculing him, uttering racial slurs • Bullying included physical assault and theft of personal belongings • Despite issues, plaintiff gravitated towards the bullies • Led to panic attack and withdrawal from school

19. ISSUES • Plaintiff wanted to be friends with aggressors • Mother expressed concerns about aggressors before the panic attack • The aggressors were known to have issues with behaviour • Evidence from board employees that there were issues between plaintiff and aggressors

20. REASONS FOR JUDGMENT • Evidence about what the board knew and understood of interactions between plaintiff and aggressors was inconsistent • Credibility was an issue undermining some board evidence • Court was satisfied that plaintiff was bullied and board had some knowledge but failed to take reasonable steps to investigate or prevent

21. Lessons learned • Student relationships and interactions should be examined for elements of bullying and teasing when concerns are raised. • A “boys will be boys” attitude will not meet the standard of care.

22. Vicarious Liability Where a teacher has committed sexual assault, board vicarious liability becomes an issue. It is a live and contentious issue in school board liability today. A strong connection between employer expectations and employee conduct is required. The risk created by those expectations in furtherance of the employer’s aims must be connected to the employee’s wrongful acts to impose vicarious liability on the employer.

23. Peer tutor & teacher Facts • Teacher previously taught student in grade 10 • In grade 12, student acted as teacher’s peer tutor for his class • Student spent spare time in the teacher’s classroom which coincided with his study period • Door was usually open, and other students and teachers sometimes came into the classroom

24. ISSUES • Alone time permitted during spares had to be examined • Whether the peer tutor relationship involved a close connection between teacher and student • Whether risk of harm was substantially increased by board’s encouragement of teachers to act as mentors and role models

25. REASONS FOR JUDGMENT • Not unusual for students to spend time in classrooms during spares to catch up on work or to get assistance • Relationship between teacher and peer tutor not inherently close to connect it with physical intimacy • Student not in a position of vulnerability because she was under the supervision of other teachers, administration and parents

26. Points to Consider • Connection between specific teacher powers and responsibilities, i.e. to provide grades, to maintain classroom discipline and to address misconduct • Extent to which environment and teacher’s role impacts on student’s vulnerability

27. Sports & Excursions • Boards typically use waivers and consents when students are involved in extracurricular sports or excursions. • For extra-curricular sports, boards require permission forms and informed consents. • These documents seek to reduce the risk of liability.

28. TACKLE FOOTBALL • Facts: • 16 year old broke his neck while making a tackle • Parents signed permission form • Doctor’s certificate saying he was fit to play This Photo by Unknown Author is licensed under CC BY-SA This Photo by Unknown Author is licensed under CC BY-NC-ND

29. Issues • Plaintiff’s argued physiology of student’s neck made him susceptible to injury • This was not identified by doctor • Board had no knowledge of this susceptibility • Plaintiffs claimed board failed to warn of all dangers involved in playing football including the unusual risk of injury

30. Reasons for Judgment • Action dismissed at trial; upheld on appeal • No evidence that Board, as careful or prudent parent, had reason to be aware of plaintiff’s injury susceptibility • Plaintiff accepted the “normal risks of a football game” - injury was due to those normal risks

31. Points to consider • Court found the consent form alone did not absolve the board of potential liability • A consent form does not mean a guardian accepts negligent conduct as a normal risk

32. Excursions • When boards run excursions, there are a number of considerations, including the appropriate number of supervisors, transportation requirements, safety instructions, rules for accommodations and contingency plans.

33. Boating Excursion Facts • 13 students, 2 teachers, 2 chaperones • Transportation: by car, then by boat • Overnight camping • High winds and waves • Small craft warning

34. Facts(continued) • The boat ran into difficulties and attempted to return to the island • No distress call • The boat sank • 2 students drowned

35. ISSUES • No safety/alternate plan made in the event of poor weather • Life jackets not worn or made available • No safety drill or instructions provided • Boat operator had no insurance

36. REASONS FOR SETTLEMENT • Ministry of Transportation agreed they were 75% at fault • Poor inspection of the boat • Life jacket storage • Life boats • Bilge pumps

37. REASONS FOR SETTLEMENT • Settlement split • Board 25% • Contingency plan for bad weather • Ministry of Transportation 75% • Poor inspection

38. Lessons learned • A requirement that all modes of transportation include insured vehicles; • Preparation of students in terms of safety instruction and briefings related to the mode of transportation and or emergency situations requiring use of emergency gear, including life jackets where applicable; • Reassurance that any safety equipment such as life jackets are suited to accommodate the number of students as well as the weight of the students; • Devised contingency plans for each leg of the excursion that ought to be shared with parents, students and transportation provider; • A detailed Safety Management Plan that is accessible in case of an emergency; and • A clear and precise practice of how to inform parents of any emergency situation.

39. Supervision Case Study Facts • At morning recess, grade 7 students playing “keep-away” with a football • No tackling; on grassy area of school • Students divided into 3 groups for different areas of the yard: (a) K to Grade 3; (b) Grade 4-6 and (c) Grade 7-8 • The playground was divided into two parts with “an imaginary line” down the middle; • 2 teachers on duty; 1 responsible for each section; approximately 300 students total (ratio 1:150) • Teachers carry binder to note serious incidents; the policy in force stressed the need for teachers to circulate around the school to be visible to deter any misbehaviour • The principal assigned yard duties on a rotating basis; the principal increased supervision from 1 teacher to 2 when he first started at the school. In addition to the two assigned teachers, two other teachers testified that they frequently went out on the playground during recess

40. Facts (continued) • During keep-away game, a fight ensued and a student got on top of the plaintiff and punched him in the face a number of times • Sight lines of entire playground are clear and unobstructed including where the incident happened – with the exception of one area where students were only allowed to play with permission • No teachers witnessed the incident; the teacher assigned to supervise the area noted kids were playing keep-away with a football before the incident; did not deem it out of the ordinary • Students were friends previously; had an incident earlier in the year where student accidentally injured plaintiff’s hand during a football game; still played in the same group • School did not identify either student as high risk of harm

41. ISSUES • What degree of supervision was required for this type of activity? • Were teachers aware of the game being played? • Did the involved students require a higher, unique level of supervision?

42. Considerations • Game of keep-away was played with no tackling - not inherently dangerous • Teacher knew students were playing the game as they supervised • Neither student had a history that deemed them high risk or violent; the school had a system in place to identify high risk • Considered a sudden event in the midst of an acceptable, safe activity • Level of supervision given number of students, their ages and configuration of yard were all reasonable

43. Risk Management

44. Conclusion • Foreseeability • Limitation Periods • Documentation