Posts tagged hussack

Court of Appeal upholds Hussack decision against Chilliwack school board

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The BC Court of Appeal released its decision last week in the Hussack case (previously discussed here), largely dismissing the claims in appeal made by School District #33Here is the coverage in the Vancouver Sun and here (BC Injury Law) and here (Injury Lawyers Blog) are commentaries on the outcome. 

Hussack deals with a high school student, Devon, who was whacked in the face with a stick while playing a game of field hockey at school.  The boy subsequently developed considerable challenges that leave Devon unable to complete many tasks on his own.  The thrust of the appeal by SD #33 involved questioning whether the teacher’s failure to gradually prepare Devon for the sport exposed him to harm or, in other words, whether the absence of the preparation made the type of harm Devon eventually suffered reasonably foreseeable, such that had the teacher been exercising the appropriate care over him Devon never would have been encouraged to play.  Here is what the Court of Appeal had to say to that:

Here, not only was it reasonably foreseeable that a student might be struck on the head or face with a field hockey stick, Mr. MacPhee did foresee that risk, as evidenced by his “no high sticking” rule.  It was also reasonably foreseeable that a student would sustain an injury to his or her head if this occurred.  The trial judge, having found the somatoform disorder was consequential to the post-concussion syndrome, properly concluded based on the evidence and authorities that the respondent had established the appellant’s negligence was the proximate cause of Devon’s injury.

The only place in the appeal that SD #33 got some relief was in the amount of damages awarded to Devon, which was reduced slightly.  Otherwise, much of the decision affirms the views of the trial judge.

This case follows a string of recent decisions discussing teachers’ torts – that is, how a lapse by a teacher, particularly in gym class, can lead to a serious injury to a student and a major liability for a school board.  The idea is that while no nobody is perfect, and hindsight is always 20/20, teachers should be expected to take reasonable steps to avoid certain bad things from happening to their students.  And if those things happen, the school board should have to pay for it.

When a teacher’s conduct crosses the line between incompetent and negligent

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It has now been over two months since the pep rally at Winnipeg’s Churchill High School, when teachers Chrystie Fitchner and Adeil Ahmed’s lapdance (link to National Post) effectively terminated their careers in education.  Their story made national headlines and reminded parents across the country that teachers, like people in any other profession, can jump over the line between acceptable and unacceptable conduct.

Teachers, like parents, are confronted every day with the opportunity to make mistakes that leave long-term effects on the children in their care.  But nobody is perfect and anybody can have an off day.  Fortunately, the courts have established a relatively clear standard for determining when a teacher’s incompetence or error will actually result in legal consequences.

In 1998, Devon Hussack was a 13 year old Chilliwack middle school student who had never played field hockey before.  One day, his physical education teacher encouraged him to join a game, hoping that his participation would curb his chronic absenteeism.  Hussack was accidentally whacked in the face with a stick - hard.  He began suffering from headaches, dizziness, etc., and now he rarely leaves his home.  The injuries caused by the hit have left him unable to complete many tasks on his own.

Hussack sued the school district, claiming the teacher had failed to prepare him gradually for the sport; by encouraging (or even permitting) him to participate he exposed him to the unreasonable likelihood of injury.  The school board responded the teacher did his job well, and regardless Hussack’s injuries were the result of pre-exising conditions.

Did the teacher somehow fail to protect Hussack from a dangerous sport, or did he in fact do everything he should have in light of his obligations?  How can we determine whether he used the appropriate caution?  In Hussack v. School District No. 33 (Chilliwack), the British Columbia Supreme Court referred to a standard of a “careful or prudent teacher” that involves the following test:

Four major criteria are considered as part of the test, namely (a) whether the activity was suitable to the age and mental and physical condition of the student; (b) whether the student was progressively trained and coached to do the activity properly and to avoid the danger; (c) whether the equipment was adequate and suitably arranged; and (d) whether the performance, having regard to its inherently dangerous nature, was properly supervised.  

Similarly, in Myers v. Peel (County) Board of Education, the Supreme Court of Canada emphasized that a teacher’s conduct must be evaluated on a case-by-case basis:

[The standard's] application will vary from case to case and will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and training which the student may have received in connection with such activity, the nature and condition of the equipment in use at the time, the competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent-standard to the conduct of the school authority in the circumstances.

Regarding Hussack, the court found that the teacher’s failure to provide him with gradual training prior to participating in the game led to the likelihood that Hussack would get hurt.  Even though he had considerable hockey experience, in this case that experience – left unrestrained by his teacher – led Hussack to apply different expectations to the game and precipitated the injury.

Parents may be interested in considering a legal recourse if their children get hurt at school during what they see as a lapse in judgment by a teacher.  But before considering whether a teacher’s conduct should result in legal consequences, parents should review the principles underlying the standard of a “careful or prudent teacher”.

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