Posts tagged torts
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 #33. Here 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.
Physical education (PE) teachers beware: there may be a judge in your future.
In March 2007, Paige Hamilton was a seventeen year-old girl attending grade 11 at North Delta Secondary School. During a PE class, Paige was accidentally hit in the face with a floor hockey stick by a classmate, which left her with a broken nose. She also complained of bruising around her eyes and difficulty breathing, and she felt self-conscious about an unattractive lump on her nose that she alleged was caused by the incident.
Some time later, Paige did what any 17 year-old student might do: she sued the school. She claimed the teacher was negligent for failing to require the use of protective gear and offering inadequate supervision. For her troubles, Paige argued she want entitled to general damages of between $25,000 to $28,000, plus reimbursement of $4,000 for cosmetic surgery not covered by MSP.
In Hamilton v. School District #37 (Delta), the Supreme Court gently embarrassed Paige in two ways:
- by dismissing her claim and holding that it did not come close to meeting the standard necessary to show negligence by a teacher; and
- by finding, in very polite terms, that she was not entirely credible as a witness and, in a case that was largely fact-specific, that made a sizeable dent in her likelihood of success.
The end result of her experience with the court system was, presumably, difficult for her because of the lawyer’s bill saddled on her (or her parents), the stressful memories of testifying and acting as a failed plaintiff against a former school, and the public record now imprinted in legal databases discussing her injuries and anxieties.
As discussed previously on this blog, there are four main criteria to determine whether a teacher has satisfied his or her obligation to act with due care and caution toward an injured student:
- whether the activity was suitable for the mental and physical condition of the student;
- whether the student was progressively trained and coached to do the activity properly and safely
- whether the equipment was adequate and suitably arranged; and
- whether there was proper supervision.
These criteria were established (though not as a fixed code) in Myers v. Peel County Board of Education, a Supreme Court of Canada decision in 1981 dealing with a student who was paralyzed when he tried to complete a difficult gymnastic manoeuvre without supervision in a school exercise room that did not have appropriate floor mats.
There are two well-know cases in British Columbia that show a school board’s threshold for liability in these sorts of claims. In Hussack v. School District No. 33 (Chilliwack), where a grade 7 student was hit in the head with a field hockey stick during a PE class, the Supreme Court concluded that the teacher had failed to prepare the student to play the sport safely before letting him join the game. In Peterson (Guardian ad Litem) v. School District No. 36, Surrey, where a grade 11 student was hit in the head with a bat during a PE class, the Court of Appeal decided that the teacher had failed to advise the class about the foreseeable dangers involved with the sport.
In Paige’s case, two elements – inexperience and improper supervision – were not established.
Sports injuries are an inevitable part of teenagehood and, as odd as it sounds, this means the courtroom has entered gym class. PE teachers must follow certain procedures when allowing sports with any risk of injury or welcome lawsuits that could blot their resumes and inflict financial damage on their school boards. Students and parents must ensure that before starting a lawsuit they fully understand the legal and non-legal implications of hiring a lawyer to heal a sports injury.