Be that as it may, the story did remind me that this is an issue we have not yet touched on in this blawg - just what is the duty of the school/school board to keep our children (be they typical or challenged in some manner) safe during the school day?
Duties Imposed by Legislation
The first place to look when assessing legal liability is to see whether there is any relevant legislation on the issue. In this case, the relevant legislation is, of course, the Education Act.
The Education Act imposes certain statutory duties in regards to the safety of students on teachers, principals, board superintendents and school boards.
For example, sec. 26(1) of the Education Act provides that teachers have a duty to both "take all reasonable steps necessary to create and maintain an orderly and safe learning environment" (k) and "attend to the health, safety and comfort of students" (n).
Similarly, one of the duties of a principal is to "ensure that reasonable steps are taken to create and maintain a safe, orderly, positive and effective learning environment" [sec. 38(2)(e)].
Board Superintendents are obliged to "maintain a safe, orderly and supportive learning environment in all schools" [sec. 39] and school boards are obliged to "promote its schools as safe, quality, learning environments and as community resources" [s. 64(1)(f)].
Duty at Common Law
In addition to the statutory duties noted above in the Education Act, the law considers teachers and other educators to have a unique and special relationship with students for the very fact that students are required to attend school. For this reason, parents are entitled to expect that educators will take reasonable precautions to protect their children from reasonably foreseeable harm.
And because an employer is strictly liable for any torts of its employees committed during the course of their employment, a school board will be legally responsible for any negligence of its employees (be they principals, teachers, educational assistants or other employees) resulting in damages (harm) to a student.
At common law, teachers and other educators are said to stand "in loco parentis" - meaning that they "stand in the place of parents". Thus, the duty imposed on educators is that of a "reasonably careful or prudent parent in the circumstances".
This is a higher standard of care from normal negligence cases involving adult defendants where the standard of care is that of a “reasonable person in the circumstances" - the educator must not just act as a reasonable person; they must act like a "reasonably careful or prudent parent:". This is an objective standard of care against which a teacher’s conduct will be measured.
The concept of foreseeability is central to the standard of care as the duty on educators is to protect students from reasonably foreseeable risks -a "foreseeable risk" is considered to be "a danger that a reasonable person should anticipate as the result from his/her actions". To foresee is to plan ahead, to anticipate potential risks and to take the necessary steps to address them and, significantly, the test of foreseeability of injury or harm is what is possible rather than what is probable.
And although some activities have an element of inherent danger, allowing students to participate in such activities will not necessarily constitute negligence. However, the teacher responsible for such an activity must exercise a high duty of care.
An example of this can be found in Myers v. Peel County Board of Education where the Supreme Court of Canada was asked to rule on a situation where a 15-year-old (typical) student was seriously injured when he attempted to dismount the rings in a gymnastic class. Attempting to perform a dangerous move without a spotter, he fell and broke his neck, leaving him a paraplegic.
The court held that foreseeability of an accident or injury depends on an accurate appreciation and assessment of these risk factors. And on the facts of this case, the court concluded that the standard of care to be exercised in providing for the supervision and protection of students – that of a careful and prudent parent – was not met as a prudent parent would not be content to provide the protective matting used when other, more protective mats, were available. A prudent parent would also not permit his or her son to leave the gymnasium to practice potentially dangerous manoeuvres in a room without adult supervision.
The court noted that in the context of schoolyard supervision, in determining the appropriate standard of care in each particular case, factors that a court may consider include:
- the number of students being supervised at any given time;
- the nature of exercise or activity in progress;
- the age of the students;
- the degree of skill and training that students may have received in connection with the activity;
- the nature and condition of equipment in use at time; and
- the competence and capacity of the students involved.
A finding of contributory negligence, in this context, would mean that the student and the teacher have a shared responsibility for the injury. In such a situation, the court will assess a percentage of the damages to each of the parties based on how negligent each was.
Particularly for our purposes, when we are discussing students with various challenges, it is important to realize that contributory negligence is both age and ability dependant.
And that although it is usually age that a court considers (we expect a different standard of care and different ability level when it comes to a 3 year old's actions then we do a 12-yer-old's) when assessing contributory negligence, in the case of a challenged child, the court will be obviously have to look beyond their chronological age to their mental age (in the case of a mentally challenged child) and also how the child's physical disabilities (if any) play into their ability to protect themselves.
But from a legal liability perspective, in order for a person to be found legally liable for injury to another, there must be three elements present - not just a duty of care and a breach of that duty, but also damages/injury resulting from the breach of duty.
Thus, although a teacher (or other educator) may have been negligent, there will be no legal recourse against them unless it is established that
a) the plaintiff has incurred damages (which, in law, can include both physical injury and economic loss);
b) the factual cause of the damages was the failure on the part of the teacher to provide the standard of care that a reasonable person would expect under the circumstances; and
c) the damages were reasonably foreseeable.
So having had this basic primer on the law of a school's duty to protect students, let's take what we now know and apply it to Brenton Organ's situation.
Brenton suffers from a disease that substantially reduces his mobility and sense of balance. Because of that disease he requires hands-on physical assistance to go up and down stairs.How would a reasonably careful or prudent parent act in these circumstances?
Court documents say Organ fell this past January at Birchwood Intermediate School while being moved from one floor to another with the assistance of a single female caregiver who was also moving another physically challenged child.
Would such a parent consider it sufficient to have one female caregiver attempt move two physically challenged children down a set of stairs? Although we don't know the extent of the other child's physical disability, we do know that Brenton required "hands-on physical assistance" to go down stairs.
She alleges, among other things, that the school failed, refused or neglected to comply with an undertaking given by school officials that Organ would be assisted on the stairs by one strong male caregiver or two female caregivers.It could certainly be argued that the fact that the school had previously agreed that Brenton would be assisted by one strong male caregiver on the stairs showed that they recognized the risk involved in the situation. To recognize a potential risk, come up with a solution to alleviate that risk (in this case, having Brenton assisted by a strong male caregiver) and then not follow through with that solution might be considered ... negligent?
She said the school provided caregivers who lacked the training, skills or physical strength to attend to two adolescent disabled children.Although we have no information as to what training or skills the female caregiver here had, certainly a reasonably careful or prudent parent would expect/demand that caregivers had the training, skills and physical strength to attend to two disabled adolescent when negotiating stairs, would they not?
It is also alleged that Organ was not permitted to use the school's elevator.And here, perhaps, is the crowning glory in this case - this wasn't a situation where physically challenged students were forced to negotiate stairs because there was no other alternative available.
Not only did the school have an elevator but apparently it had, in fact, two elevators to help children with disabilities. And yet they failed to provide Brenton’s “caregiver” with the key for the elevator, forcing him and the other student to negotiate the stairs.
And although I hate to pre-judge a situation with only limited facts, it certainly does seem like the school (and by extension the school board) has cooked its own goose in this situation. Based on the facts available, they certainly look
And yet you will recall that no legal liability will attach to negligence without proof of damages.
Gillespie claims that prior to that fall Organ required limited on-going medical attention and that doctors had indicated to her that the prognosis for his future development was such that he would at some point be trainable for employment in a limited but continuous capacity.Unfortunately, Brenton's mother may well have at least somewhat of an uphill battle with regard to damages. This because one would expect the defendant in a case like this to strenuously argue that Brenton is in no worse position now that he was before the fall. That his current level of disability is either the same as it was before the fall or that his condition would most likely have deteriorated at some point to his present condition even without the fall.
She says the injuries he suffered on or about Jan. 12 have rendered him permanently incapacitated in relation to training for employment, have left him in need of full-time personal care and attention for all of his personal needs and diminished his senses of smell and taste to the point that his appetite and willingness to eat have been impacted.
The incident has left him traumatized and fearful of being in school, she claims.
The response to this will have to be medical evidence of specialists willing and able to step forward and testify with some certainty as to Brendon's life prospects both before and after the injury.
And a big part of any such claim for head trauma would usually be a component for loss of future income. To which, can't you just hear the defendants arguing, yet again, that Brenton is no worse off now than he was before - that he wouldn't have been employable pre-injury anyway? A cripple before the fall, a cripple now ... really what's the difference?
But I digress (resulting in me seeing various shades of red swim in front of my eyes)- it will be interesting to see the results (if any - the majority of lawsuits settle without ever reaching a courtroom) from this lawsuit.
And don't think for one minute that such a tragedy couldn't occur in Nova Scotia - with constant cut backs from provinces to school boards to schools fast becoming the norm ... some might argue that all students are at risk and that incidents such as Brenton's are just a sign of things to come.