An Unfortunate Accident

Liability assessment for Waterman, Principal, Ballard, and Irwin

Sarah Blandford-Townes
Janessa Bretner
Parneet Kahlon
Kathleen McLeod
Fallon Middlemiss

*Dr. Donlevy authorized an extra 500 words for this assignment on July 13, 2018.
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Waterman, the principal (and vicariously the School and District), and Ballard are liable for
Irwin’s injuries. Irwin is contributorily negligent.

Waterman

Duty of care:

Waterman, a teacher, was responsible for supervision during an activity organized by the school,
during school hours, at an off-site location - involving travel outside of Okotoks.

Irwin attended the activity in her capacity as a student, and as a result, Waterman stood In Loco
Parentis. Teachers must take reasonable precautions to safeguard the safety of students in their
care (Myers v. Peel (County) Board of Education (1981)). Additionally, Waterman owes a duty of
care pursuant to statute (School Act, s 18(1)).

In Bain v. Calgary Board of Education (1993) the court held a board authorized off-school
excursion, is an extension of the classroom, and the teacher in that case owed the same - or a
higher duty of care- during the off-campus activity. Waterman owed a duty of care to Irwin to act,
at a minimum, as a “prudent and careful” parent.

Importantly, travel to the event, the event, and travel back, happened prior to end of the formal
school day. Any argument that early dismissal, released Waterman from the duty owed by her is
untenable.

Standard of care:

We take into consideration: (i) the School District Transport Guideline for Students, (ii) the
School’s Transportation Guidelines for Phys Ed 20/30 and (ii) evidence regarding the transport
policies at other Okotoks School District High Schools.

Both (i) and (ii) stipulate that students cannot drive other students to school activities during school
hours, unless the facilities are within the town boundaries. The event in question was outside those
boundaries. Allowing Ballard to transport Irwin was a clear contravention of both policies.

While school policies are not determinative of the standard of care, the distinction made within
these policies between in-town and out-of-town is significant as a proxy for driving conditions
that, the district and school thought, posed a reduced risk, and conditions that are relatively more
hazardous. Country highways which require students to travel at high speed (100 km/hr),
unsupervised present unique risks (Consumer Reports, 2013, para. 17) compared to driving within
Okotoks, where the speed limit does not exceed 40 km/hr. However, we cannot discount that
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driving conditions within the towns limit, can also pose material hazards. In this regard both
policies are explicitly labeled as being “guidelines” and should not be determinative.

This was lost on Waterman. She allowed Irwin and Ballard’s trip, believing the activity was within
town limits. While we have no doubt Waterman believed that to be true, her ignorance is evidence
of her omission to inform herself about the particulars of the activity she was in charge of and any
hazards inherent along the route and at the site, and to attend to her students’ safety accordingly.

If Waterman did not realize the event was out of town at the outset, it should have become clear
during her own journey to the golf course. In Bain v. CBE (1993) the defendant similarly failed
to steps to familiarize himself with the terrain he permitted his students to enter – either before or
after giving his permission – and was found to be in breach of the standard of care.

While the district and school policy guidelines, seem to leave the door open for students to drive
one another to school events in low risk situations, the policies at the 2 other high schools in the
district prohibit all such travel. Taken together, it is clear that where the driving risks are high - as
is the case on a high speed, backcountry highway – a reasonably prudent parent would not have
approved Irwin’s travel plans.

Waterman breached the standard of care when granting Irwin’s request to drive to the event with
Ballard, and when allowing Irwin to leave the venue in Ballards car. Notably, even minimal efforts
to mitigate against the risks she should have been appraised of - in the way of providing a caution
to students or checking for fastened seatbelts – were absent1

Foreseeability:

There is danger in traveling on a back-country highway. Three-quarters of fatal rollovers occur in

rural areas – particularly, undivided highways without barriers, where the speed limit is over 80
km/hr (Consumer Reports, 2013, para. 17). It is foreseeable, that the passenger of a 16-year-old
driver (i.e. a novice driver in unfamiliar terrain), is at a heightened risk of severe injury in these
circumstances.

The students arrival at the golf course in the morning without incident is inconsequential. In the
case of Hoar v. Nanaimo School District No. 68 (1984), a student made use of a woodworking
machine 15 times without incident, despite the teacher’s negligent failure to instruct the student in
its use, prior to becoming injured; the fact that the student did not incur injuries previously did not
render the ultimate injury unforeseeable.

1
The school level policy, specifically mandates that the school’s transportation policy be reviewed on students’ first
day, and “reinforced throughout the year”. The policy includes reminders that students must drive safely, and wear
seatbelts when driving too and from physical education classes.
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Causality:

But for Waterman giving Irwin permission to travel in Ballard’s car, Irwin would not have
sustained her current injuries.

Damages:

Irwin is quadriplegic as a result.

Liability:

On a balance of probabilities, Waterman was negligent in allowing Irwin to travel in Ballard’s

car. The School and District are vicariously liable (s. 60(1) of the School Act).

Ballard:

Duty of Care:

In offering to drive Irwin, Ballard assumed a duty to do so safely.

Standard of Care:

The fact that Ballard was charged with Driving Carelessly under section 115(2)(b) of the Traffic
Safety Act of Alberta is strong support for a finding that Ballard did not meet the requisite standard
of care in operating her vehicle. However, on an independent analysis of the facts it is hard to
imagine what precautions Ballard could have taken to avert the accident2.

Nonetheless, the evidence given by Ballard’s parents is clear: Ballard was aware of the defective
seatbelt, that a repair was scheduled, and had been advised to keep any passengers from sitting on
the passenger seat. Given the knowledge she had, the standard of care dictates that Ballard should
have disclosed the defect and prevented anyone from sitting in the front passenger seat. However,
Ballard failed to tell Irwin the seatbelt was inoperative, and inform Irwin that she could sit in the
backseat of the car - or not at all. This failure constitutes a breach.

While the Traffic Safety Act does not require a driver to ensure that passengers who are 16 years
or older fasten their seatbelts (see section 82(3)), the Motor Vehicle Safety Act, and accompanying

2
On the facts, she was driving cautiously (i.e. below speed limit) and could not have foreseen that on coming over the hill a
truck would be parked in her path; she did a necessary emergency maneuver, and — based not the expert evidence (Consumer
Report, 2013) --- that maneuver was sufficient to precipitate the roll over due to the particular dimensions of her car.
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Vehicle Equipment Regulations (s. 83(1)) do require that every passenger be provided with a safe
seatbelt. However, the absence of a statutory duty does not preclude a common law duty. In the
past, Ballard prompted Irwin to wear her seatbelt, and Irwin complied. It can be said that Ballard
assumed a duty, that carried forward.

Foreseeability:

There are risks inherent in riding in an automobile on a highway. The risk of severe injury, even
death, becomes pronounced in the absence of proper restraints to prevent passengers from being
ejected from the vehicle in the event of an accident. This is common knowledge. Likewise, the
severest injuries in rollover accidents occur when people are ejected from the vehicle (Consumer
Reports, 2013). The type and severity of injuries suffered by Irwin were foreseeable in light of the
knowledge Ballard had about her vehicle.

Casualty:

But for Ballards failure to prompt Irwin to move to a seat with a functioning seatbelt, and to
fasten that seatbelt, Irwin would not have been ejected from the car.

Damages:

Irwin was grievously injured.

Liability:

Liability attaches to Ballard for failing to prevent Irwin from using the front passenger seat on
account of the faulty seatbelt.

Principal

Duty of Care:

At common law and by virtue of School Act Section [20(f)], a principal owes a duty to students
in respect of school-sponsored activities.

Standard of Care:
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A principal is responsible for ensuring policies and practices that minimize the risk of injury to
students. Trudeau High breaks from the two other schools in the District, by permitting students
to drive one another to school activities, albeit in prescribed situations. In adopting the minority
position, and a more permissive (i.e. riskier) policy, the principal must show that he took pains to
ensure the policy was understood and implemented responsibly by his staff. The principal did not
monitor or provide sufficient direction to Waterman. Had he, he would have realized Waterman
had not assessed the activity for risks, and more fundamentally, that the activity was outside the
town limits. Further, in allowing Waterman to grant permission after a cursory visual inspection
of the car, he neglected best practice: The Alberta Teachers Association urges that the written
consent of the driver, passengers, and their parents are obtained prior to granting permission
(Teachers’ Rights, Responsibilities and Legal Liabilities, p. 28). Had the principal required these
steps, and monitored for compliance, Ballard’s parents could have provided necessary safety
information (i.e. the seatbelt was faulty), beyond what Waterman could discern from a visual
inspection. These steps are prudent without being onerous, and so are reasonable. The principal
fell below the standard of care.

Foreseeability:

An outright ban on the practice within other schools, and the principals own policy which seeks to
limit the practice, indicate it is objectively foreseeable that having novice drivers transport students
may result in injuries. It is also foreseeable that unsupervised students may take risks such as
foregoing seatbelts. Given the Principal’s choice of policy, the absence of implementation
protocols, and a lack of oversight by the principal, Irwin’s injuries were entirely foreseeable.

Causality:

But for the principal’s policy and practices, Irwin would have not driven with Ballard and her
injuries would have been averted. Alternatively, but for the principals failure to ensure
Waterman took reasonable steps to ensure compliance with the policy, Irwin’s injuries would
have been averted.

Damages: Substantial physical injuries resulted.

Liability: The principal was negligent, and the Board is vicariously liable.

Contributory negligence: Ms Irwin

Duty of care:
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Irwin owed a duty of care to herself.

Standard of care:

Irwin should have fastened her seatbelt - this is common practice, widely understood, and enforced
as a matter of law. On the basis of the reconstruction evidence, we conclude, on balance of
probabilities, Irwin was not wearing a seatbelt - and so fell below the standard of care.

Irwin’s action in opening the sunroof deserves consideration. Coupled with her failure to use a
seatbelt, Irwin exposed herself to a greater risk of ejection in the event of accident - and is in breach
of the standard of care.

While Irwin overheard - early this year - that a seatbelt in Ballards car was broken, given the
passage of time, it was reasonable for Irwin to assume all seatbelts were operational on the day of
the accident. Moreover, we accept - from Waterman’s testimony - that the defect in the seatbelt
was not visually discernible As such, it is unreasonable to say Irwin, should have - without further
information - avoided the front passenger seat.

Foreseeability:

It is foreseeable that a failure to wear a seatbelt combined with an open sunroof increases the risk
of severe injury.

Causality and liability:

It cannot be said that “but for” Irwin’s failure to fasten her seatbelt, the injuries would be
averted. It was not known to Irwin, but the seatbelt was inoperative and offered Irwin no
protection. On a balance of probabilities her injuries would have occurred whether she wore the
seatbelt or not.

On balance, but for Irwin’s action in opening the sunroof while untethered, she would not have
been ejected from the car, and so contributed to her injuries.

Damages:

Irwin suffered exacerbated injuries as a result of being ejected

Liability:

Irwin is contributorily negligent

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Defence:

A consent form signed by Irwin’s parents purporting to release the school/teachers from liability,
cannot sustain a volenti non fit injuria defence. The school and Irwin’s parents contract out of a
child's basic common law right to sue for injury.

References

Alberta Teachers’ Association. (2013). Teachers’ rights, responsibilities and legal liabilities.”
Retrieved from
https://www.teachers.ab.ca/SiteCollectionDocuments/ATA/Publications/Teachers-as-
Professionals/MON-2%20Teachers%20Rights.pdf

ConsumerReports. (February, 2013),Rollover 101: How rollovershappenand how to avoid one.”

Retrieved from http://www.consumerreports.org/cro/2012/02/rollover-101/index.htm

Myers v. Peel (County) Board of Education [1981] 2 S.C.R. 21 Retrieved from

http://www.canlii.org/en/ca/scc/doc/1981/1981canlii27/1981canlii27.html

School Act (2000) (Alta) s. 18.1 (Can.)

School Act (2000) (Alta) s. 20(f) (Can.)

The Traffic Safety Act (1987) (Alta) s. 82(2)(3)(4) (Can.)