There is some wisdom in the old saying that good judgment comes from experience, and experience, more often than not, comes as a result of bad judgment. That applies to adults, but it also describes how we all, as kids growing up, learned what was dangerous and how best to avoid injury.
Not that any amount of adult advice could protect us from ourselves and our tendency, as children, to push the limits of safe activity or to find a way to turn a safe activity into a ticket to the emergency ward.
People in charge of schools and school systems understand this only too well. They also know that with 500,000 kids being supervised by 44,000 teachers, stuff is bound to happen.
The courts, however, are not too sympathetic, as in this most recent case where B.C.’s highest court has dismissed an appeal from Surrey school district in a case in which a 12-year-old boy fell off a school roof and suffered significant injuries.
The boy had climbed onto the school roof by way of a cherry tree. In response to the vice-principal’s order to get down the boy fell, injured himself badly and underwent several surgeries to repair his injuries.
The court decided that the school district was 75 per cent responsible, with damages to be assessed. A former principal gave evidence that there were numerous instances in which he believed people had been on the roof.
In other words, the school and, by implication, the district was aware of what under civil law is called “an attractive nuisance.”
An attractive nuisance is an object, structure or condition that is both dangerous and irresistibly inviting to children. Under attractive-nuisance law, a landowner (or a school district) can be held responsible if a child is injured by an “artificial condition” on the landowner’s property and the landowner knows (or should know) that children are likely to trespass on the property and are too young or inexperienced to understand the risk presented by the “attractive nuisance.”
When a child suffers an injury that can be shown to be the result of some action or lack of action on the part of the school district or the employee of a school district, it is likely that an accusation of negligence will result.
The Surrey incident and subsequent Appeal Court judgment will act as a wakeup call and will, or should, cause those responsible to remind physical-education teachers, industrial-education teachers, maintenance people, principals and anybody else involved to take nothing for granted when it comes to student safety.
The classic and oft-quoted case was in a PE class some years ago when, with the teacher not paying full attention, a small trampoline was dragged in front of the gym stage so the kids could jump off the stage, bounce off the trampoline and land on the floor.
One boy was seriously injured and the eventual Supreme Court of Canada judgment against the school district was about $1.5 million.
The standard of care is described Section 76 (3) of the School Act, which instructs that student discipline be that of a “kind, firm and judicious parent.”
There are a list of classic cases, for example, where a child in a PE class was hit on the head or in the face by a hockey stick. Negligence was determined based on the (believe it or not) lack of adequate instruction by the teacher that doing that would cause injury.
One court found a teacher failed to satisfy the required duty of care when he left a bottle of phosphorus in a classroom where the students found it and set it on fire.
I know of at least two school districts that were advised by legal counsel to post signs on flat-roof buildings advising that climbing on them and falling off could cause injury.
Teachers are expected to understand that a child who is asked to move a TV on a trolley from one classroom to another might find a way to tip it over.
Fortunately for teachers, who are exposed to the results of student accidents much of the time, Section 94 of the School Act provides some protection against actions for damages unless the employee has been guilty of dishonesty, gross negligence or malicious or wilful misconduct.
In an increasingly litigious age, teaching in, much less running, a school system has become a risky business.
Geoff Johnson is a retired superintendent of schools.
