Learning Task 1: Tort of Negligence (The Slide)

Marina Greiss, Neve Spotswood, Elizabeth Tran, Sara Younan

University of Calgary, Werklund School of Education

EDUC 525: Law and Ethics in Education

Instructor: Rhiannon Jones

October 13th, 2021

Introduction

The incident pertains to Dakota being pushed by Ellen during “Grounders”, which is a

game where children play Tag with closed eyes on the playground. The incident occurred

during recess under Ms.Morgan’s supervision at Western Canada Elementary School. Both

students were in Grade 3 and had previous incidents of physical and emotional bullying

initiated by Ellen, all of which Ellen was appropriately disciplined according to the School

Policies. The Tort of Negligence was used in order to determine the independent liability of

Ms. Morgan and the Cowtown Board of Education (CBE). At any point within the test, if

there lacks probable evidence to support the liability of the defendant in question, there is no

need to move on and it will be concluded that the defendant is not individually liable for the

tort in question.

Arguments For and Against holding Ms. Morgan Liable

Being a teacher at Western Canada Elementary School and the appointed recess

supervisor for grades 1-3 the day Dakota got injured, the duty/standard of care exercised by

Ms. Morgan, as stated within In Loco Parentis (Jones, 2021b) was “for the supervision and

protection of students for whom [she is] responsible is that of the careful and prudent parent,”

(Myers v. Peel County Board of Education, p. 22). Thus, we will examine the arguments for

and against holding Ms. Morgan liable for negligence. Based on the case facts, there are two

particulars that will be the focus of Ms. Morgan’s liability assessment.

According to the CBE supervision policies, “during recess, lunch hour, and before and

after class, one teacher must directly supervise the playground area at all times,” therefore

Ms. Morgan was “the only teacher appointed to supervise recess that day” for grades 1-3.

With Ellen and Dakota being in separate grade classes, we can assume that there could be

more than one class for each grade with approximately 20 students each, meaning there could

roughly be 80 to 120 students on the playground that day supervised by one teacher. This
leads to several arguments for and against holding Ms. Morgan liable for negligence. First,

under the Occupiers’ Liability Act , “the common duty of care applies in relation to...activities

on the premises,” (Jones, 2021a); although Grounders is a popular game at school, being the

only supervisor that day, Ms. Morgan should have been extra cautious and set rules for

grounders regarding access to playground structures such as slides. However, “The test is not

‘whether anything could have been done to prevent the injury’ using perfect hindsight, but

rather ‘whether the steps taken by the occupier were reasonable in all the circumstances’:

Duddle v. Vernon (City), 2004 BCCA 390 at para. 16.” (in Deo v. Vancouver School District

No. 39, para. 95), which she did when she followed school and school district’s policies by

being “highly visible” , “watching the Grounders game attentively from about 20 feet away”

as well as providing Dakota with “appropriate emergency medical care in full compliance”.

Second, while the case suggests that students know the playground by heart, the description

of Dakota’s position on the slide with “her eyes shut, on the the metal portion of the slide,

hanging on the cross bar behind her with [just] one hand” calls for Ms. Morgan’s lack of

foreseeing reasonable risk. As mentioned in the case Deo v. Vancouver School District No.

39, to paraphrase the language of McLachlin C.J.C. in Mustapha v. Culligan of Canada Ltd.

(para. 13):

“The degree of probability that would satisfy the reasonable foreseeability

requirement” is not a matter of mere possibility nor a matter of statistical
probability, but rather a “real risk” of a sort that would arise in the mind of a
reasonable person, and which would not be brushed aside as “far-fetched.”

However, one can also argue that but for Ms. Morgan not being aware of Ellen’s

previous incidence of bullying towards Dakota, Ms. Morgan could have placed closer

attention towards Ellen's proximity with Dakota, but she wasn’t aware of previous incidents.

It wasn’t primarily Dakota’s position that made her fall off the edge of the slide, striking her

head on the ground, but rather Ellen who saw an “opportunity” and “ran up behind Dakota

and shoved her in the back, hard”, causing Dakota to “let go of the cross bar.” Similarly, as in
the Patrick v. St. Clair Catholic District School Board case, “...the documented and

undocumented incidents involving breaches of school rules and the discipline code [...]

should have resulted in both of them being identified as students who required more than the

usual level of supervision in the schoolyard,” (para. 4). It is clear that Ellen breached the

school’s handbook policy when she engaged in “bullying”, “violence” and “dangerous and

reckless behaviour,” so Ms. Morgan’s “failure to take note of potentially risky actions that

might have occurred in as little as one minute” (Deo v. Vancouver School District No. 39,

para. 147), due to Ellen’s dangerous behavior, is not a breach of the standard of care. Due to

Ellen’s dangerous behavior and Ms. Morgan’s lack of knowledge regarding previous

bullying, Ms. Morgan did not breach the standard of care.

Arguments For and Against holding the Cowtown Board of Education liable

In discussing the liability against the CBE in relation to the incident, we will briefly

speak towards the vicarious liability of the CBE as Ms. Morgan’s employer. We believe that

Ms. Morgan’s torts were sufficiently connected to Ms. Morgan’s employment with the CBE

(Jones, 2021a), but since we favour the result that Ms. Morgan would not be found liable for

the incident, the CBE’s vicarious liability would not apply here.

Dakota was a student with the CBE at the time of the incident which occurred on the

school’s property, during school hours, under school supervision, thus the CBE holds a duty

of care in terms of Occupier’s Liability Act and In Loco Parentis (Jones, 2021a). The incident

under review is where “the common duty of care applies in relation to activities on the

premises” – the students being permitted to play Grounders (Jones, 2021a).

Arguments that support a breach of the Occupier’s Liability Act state that Grounders

is an inherently dangerous game with reasonable foreseeable risk. An incident had occurred

nearby, two months prior, and the CBE banned grounders after Dakota’s incident, both facts

demonstrating the inherent risk of the game. Since the CBE did not have a policy prohibiting
Grounders, this is a breach of duty of care under the Occupier’s Liability Act. As was the case

in Deo v. Vancouver School District No. 39, the lack of policy could be argued for based on

Grounders being commonly played and having no previous incidents within the CBE.

However, we would argue that the foreseeable risk of students playing Grounders with their

eyes closed on elevated playground equipment is significant. The lack of policy around

Grounders is the strongest argument supporting the CBE’s breach of duty of care under the

Occupier’s Liability Act.

In regards to In Loco Parentis, this case deals with the issues surrounding foreseeable

risk of Grounders, the relationship between Dakota and Ellen, and whether the school board

and Ms. Morgan provided reliable supervision. Even though there was no Grounders policy,

due to the nature of the game, the foreseeable risk of harm was high enough that Ms. Morgan

was responsible for warning the students or stopping the game, as a prudent parent would. As

in Myers v. Peel County Board of Education, the lack of warning or deterrence from Ms.

Morgan is considered a contributing factor to the incident. Additionally, arguments can be

held that the policies in place were not adequate based on the number of supervisors and the

lack of details in regards to dangerous activities. Due to the sudden nature of the event, as in

Patrick v. St. Clair Catholic District School Board, an argument could state that regardless of

policy, the supervisors would not have been able to prevent the incident from occurring.

At the time of the incident, Ellen and Dakota were in grade three, with a history of

previous physical and verbal bullying initiated by Ellen, and Ellen was disciplined for those

actions. In Deo v. Vancouver School District No. 39, younger students are said to require

closer and more careful supervision as they do not recognize risks and consequences. Due to

previous incidents of physical bullying, it is reasonable to expect that special supervision

would be required to prevent escalation. As with Patrick v. St. Clair Catholic District School

Board, precautions include communication of the necessary monitoring of Ellen and Dakota
to their teachers and supervisors. It could be argued that “It is not the duty of school

authorities to keep pupils under supervision during every moment while they are in

attendance at school” (Board of Education for City of Toronto and Hunt v. Higgs et al. in

Patrick v. St. Clair Catholic District School Board, para. 223), but as Ms. Morgan was able to

watch the game attentively, she may have intervened had she known the circumstances

surrounding Dakota and Ellen. Based on this, there was a breach in the duty of care based on

In Loco Parentis.

Based on the information provided, we believe that the injury would not have

occurred but for Ellen pushing Dakota. This could be due to a lack of policy towards student

behaviours and activities, and a lack of adequate supervision due to a lack of communication

towards the supervisors. But for the lack of adequate supervision by Ms. Morgan, she would

have anticipated harm and intervened before Dakota’s injury. We do not believe that the

balance of probabilities favours that the supervision policies in place, regardless of their

adequacy, caused Dakota’s injuries. But for the lack of a policy prohibiting Grounders,

Dakota would not have played Grounders, and therefore would not have put herself into a

position where she could not anticipate Ellen’s push. But for the lack of adequate

communication in regards to the relationship between Ellen and Dakota, the supervisors

would have assessed the probable risks of them playing Grounders together. We believe that

the balance of probabilities favours that Grounders and the lack of communication did, to

some extent, cause Dakota’s injuries. Based on the “But for” test, there is probable evidence

that the breach of the standards of care by the CBE caused Dakota’s injury.

As established in Mustapha v. Culligan of Canada Ltd., there was a reasonable risk of

foreseeable harm. The plaintiff and the defendant held a relationship that was reasonably

close to indicate that the CBE owed a duty to care for the plaintiff. This was concluded based

on the inherent risk of the activity as well as the lack of communication of prior bullying
incidents in regards to supervision. Remoteness could be argued due to the lack of previous

Grounders incidents and the argument that the push was not foreseeable. We believe that the

stronger arguments would establish that damage was proximate.

Based on the results of the Tort of Negligence, we believe that the CBE would be held

liable for independent negligence due to the lack of policies in place specific to Grounders, as

well as the lack of communication regarding the pre-existing bullying/violent relationship

between Dakota and Ellen.

Arguments For and Against Dakota’s contributory negligence

The Contributory Negligence Act is the “liability to make good the damage or loss is

in proportion to the degree in which each person was at fault” (MacCabe v. Westlock Roman

Catholic Separate School District No. 110, para. 71), therefore, in order to assess Dakota’s

contributory negligence, it is important to re-examine the case and ask: would the damage

have occurred if Ellen had not been involved? The school’s student handbook clearly states

that students shall “play safe” and not engage in “dangerous and reckless behaviour”. As

previously mentioned, Dakota climbed a structure 8 feet above the ground with her eyes

closed using only one hand to hold the metal bar with the other searching for people hiding,

which is dangerous and reckless behavior. However, as opposed to MacCabe v. Westlock

Roman Catholic Separate School District No. 110 where the defendant was found liable

because she was aware of the “risk and harm...hesitated for two minutes…[and was told] not

to attempt the move if she was scared” (MacCabe v. Westlock Roman Catholic Separate

School District No. 110, para. 71), Dakota “knew the playground like the back of her hand,

and she was confident she could navigate it, even with her eyes shut.” Dakota also seems to

follow rules; she ignored Ellen as her parents told her, even though “[Ellen] was trying to get

a reaction out of Dakota.” A person is guilty of contributory negligence if they ought to have

reasonably foreseen that, if they did not act as a reasonable, prudent person, they might not
hurt themselves. We have taken into account that the standards of a prudent person are based

on the mental abilities of Dakota, a Grade 3 student. While the school is considered liable, we

recommend that Dakota is 10% contributorily negligent, thus monetary compensation would

be reduced accordingly.

Conclusion

Based on the evidence provided and the outcomes of the individual Tort of

Negligence, we have concluded that Ms. Morgan would not be held liable. However, we

believe that the CBE would be held 90% liable due to Dakota’s contributory negligence,

which we believe would only account for 10% of negligence due to her age and the specifics

of the incident.
 References

Deo v. Vancouver School District No. 39, 2018 BCSC 133 (CanLII),

<http://canlii.ca/t/hq2x2>.

Jones, R. (2021, September 18a). Educators' Negligence and Liability – Part A [Yuja

Presentation]. University of Calgary.

https://ucalgary.yuja.com/V/Video?v=382592&node=1460032&a=804913495&autop

lay=1.

Jones, R. (2021, September 18b). Educators' Negligence and Liability – Part B [Yuja

Presentation]. University of Calgary.

https://ucalgary.yuja.com/V/Video?v=386243&node=1555229&a=249272068&autop

lay=1.

MacCabe v. Westlock Roman Catholic Separate School District No. 110, 2001 ABCA 257

(CanLII), <http://canlii.ca/t/5rcq>.

Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 SCR 114,

<https://canlii.ca/t/1wz6f>.

Myers v. Peel County Board of Education, 1981 CanLII 27 (SCC), [1981] 2 SCR 21,

<https://canlii.ca/t/1mjlh>.

Patrick v. St. Clair Catholic District School Board, 2013 ONSC 4025 (CanLII),

<https://canlii.ca/t/g2vjr>.