Eadm 15 310 072 Big Negli Mal


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Eadm 15 310 072 Big Negli Mal

  1. 1. <ul><li>Wellington held out some beads and other trinkets, but the islanders had sent their fiercest lawyers — some of whom were chanting, “Sue him! Sue him!” </li></ul>Negligence and Educational Malpractice
  2. 2. The Exercise Of Responsibility: for Broken Bones and Broken Minds <ul><li>The Questions of NEGLIGENCE </li></ul><ul><ul><li>The Legal Concept of “Negligence” </li></ul></ul><ul><ul><li>Duty of Care </li></ul></ul><ul><ul><li>Standard of Care </li></ul></ul><ul><ul><li>Significant Factors in Determining Breach of Standard of Care </li></ul></ul><ul><li>Students’ Responsibility For Their Own Safety </li></ul><ul><ul><li>Voluntary Assumption of Risk </li></ul></ul><ul><ul><li>Contributory Negligence </li></ul></ul><ul><li>Vicarious Liability : The Question of “Who Pays?” </li></ul><ul><li>Educational Malpractice </li></ul><ul><ul><li>Technical Legal Issues </li></ul></ul><ul><ul><li>Public Policy Issues </li></ul></ul><ul><li>You be the Judge </li></ul>
  3. 3. The Two Faces Of In Loco Parentis <ul><li>Authority to Discipline </li></ul><ul><li>Responsibility & Liability for Safety </li></ul>Authority The Kind, Firm and Judicious Parent Responsibility The Careful Parent
  4. 4. Injuries Suffered By Students, By Cause (%) <ul><li>CAUSE of Total Serious </li></ul><ul><li>Supervised Athletics (30) (53.7) </li></ul><ul><li>Falls (Excluding Athletics) (25) (23.2) </li></ul><ul><li>Playing/fighting (17) (12.6) </li></ul><ul><li>Classroom and </li></ul><ul><li>Workshop Activity (8) (1.2) </li></ul><ul><li>Flying, Thrown or </li></ul><ul><li>Falling Object (5) (1.1) </li></ul><ul><li>Bumps into walls, doors, etc. (4) (1.5) </li></ul><ul><li>Playground equipment (2) (2.0) </li></ul><ul><li>Other (bicycles, bee stings, etc.) (8) (3.7) </li></ul><ul><li>TOTALS (100) (100) </li></ul>
  5. 5. Negligence <ul><li>Elements of Responsibility </li></ul><ul><li>Duty of Care </li></ul><ul><li>Standard of Care </li></ul><ul><li>Causal Proximity </li></ul><ul><li>Injury or Damage </li></ul><ul><li>Absence of Negligent Conduct by the Injured Party </li></ul>A person whose negligent conduct causes damage or injury to another person will be legally responsible for paying an award of damages to compensate that person for property damage and/or personal injuries. We're dealing with an OBJECTIVE standard of conduct (the behavior of a “reasonable woman / man”), therefore, an innocent intention on the part of the negligent person will not save him/her from liability.
  6. 6. The Legal Duty of Care Common Law - Bain v. Calgary Board (1993) <ul><li>“ . . . the student-teacher relationship is one which creates a duty of care. The basis for this is that the teacher is vested with an element of control over the student, which carries with it a corresponding duty to take care for the safety of and to properly supervise the student. Aside from this, a general duty of care arises when there is a close enough relationship between the parties that reasonable people would expect that one would take care not expose the other to an unreasonable risk of harm.” </li></ul><ul><li>Bain v. Calgary Board (1993), 14 Alta. L.R. (3d) 319 at 321. </li></ul>
  7. 7. The Standard of Care Required of Teachers: The “Careful Parent” Test <ul><li>The “Careful Parent” Test from Williams v. Eady (1894) </li></ul><ul><ul><li>“ the schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could be no better definition of the duty of a schoolmaster. Then he was bound to take notice of the ordinary nature of young boys, their tendency to do mischievous acts, their propensity to meddle with anything that came in their way.” </li></ul></ul><ul><li>Problems With The Careful Parent Test </li></ul><ul><ul><li>1. It represents a legal fiction - i.e. that there is a parent out there who acts always in a certain way; who knows what that way is? Realistically, the careful parent is the judge (or jury). The test is merely “a legal semantic touchstone” for the court to rationalize its decision. </li></ul></ul><ul><ul><li>2. Is the Parent-Teacher Analogy a good one? </li></ul></ul><ul><ul><ul><li>Children at school regularly participate in activities with which parents have little experience or expertise - this suggests that the test is too lax </li></ul></ul></ul><ul><ul><ul><li>Large classes do not compare with small families - suggests the test is too strict ; a refinement has been added by courts - &quot;careful parent of a large family&quot; </li></ul></ul></ul>
  8. 8. Myers et al v. Peel County Board et al (1981) <ul><li>As to the absence of supervision, again I am not prepared to accept the proposition advanced by the respondent that the presence of a teacher supervising at the time of the accident would not have prevented the accident, not that it is incumbent upon the appellant to prove that the presence of the teacher would have prevented the accident. On a balance of all the probabilities it was the opinion of the trial judge, which in my view of the evidence was justified, that the absence of supervision contributed to the cause of the accident. In my opinion, it cannot be said that the presence of a teacher among six to eight students in the exercise room would not have had a restraining effect upon the students which could have influenced the course of events and prevented the accident. The respondent should have anticipated reckless behaviour from at least some of the young boys sent off by themselves to work on gymnastic equipment. The evidence revealed that it was a recurring problem to keep students from attempting gymnastic exercises without spotters and the proclivity of young boys of high school age to act recklessly in disregard, if not in actual defiance, of authority is . . . well known . It cannot be an answer here for the school authorities to say as they did. </li></ul>
  9. 9. The Standard of Care Required The “Competent Instructor” Test <ul><li>Because of the limitations of the “Careful Parent” Test, the courts developed an alternative, the “competent instructor in the field” test; i.e. a professional rather than parental test used especially in technical areas, science labs, some physical education, perhaps testing of special ed. students, etc. </li></ul><ul><li>The “Ordinarily Competent Instructor” Test from Thornton v. District No. 57, [1975] </li></ul><ul><ul><li>“ The practice of a profession, art or calling which from its nature, demands some special skill, ability or experience, carries with it a duty to exercise, to a reasonable extent, the amount of skill, ability and experience which it demands.” </li></ul></ul><ul><li>Both tests are referred to by the courts; however, they tend to prefer the Careful Parent Test. In the end it probably isn’t all that important which test is used—because of their imprecision—what is important though, are the circumstantial factors that courts tend to examine when determining if a standard of care has been met. </li></ul>
  10. 10. Liability <ul><li>What legal concept is illustrated by this comment? </li></ul><ul><li>Foreseeability </li></ul>
  11. 11. Foreseeability/Prior Occurrences <ul><li>“ You must be new here! … That’s Miss Crutchfield, and she’s there to make sure nobody runs with scissors.”” </li></ul>
  12. 12. <ul><li>Would a “Careful Parent” or a “Competent Instructor” have foreseen that an accident would occur given: </li></ul><ul><li>the characteristics of the student/victim? </li></ul><ul><li>the nature of the activity? </li></ul><ul><li>prior occurrences? </li></ul><ul><li>approved general practice? </li></ul><ul><li>practicability of precautions? </li></ul>Foreseeability
  13. 13. Foreseeability <ul><li>Would a reasonable person with appropriate expertise have anticipated that an injury might occur under these circumstances? </li></ul>
  14. 14. Significant Factors Considered In Determining Whether The Standard of Care Has Been Met <ul><li>1. who is the victim? What were her/his attributes at the time? [Age, intelligence, size, strength, experience, etc.] </li></ul><ul><li>2. the nature of the activity; was it inherently dangerous or did it contain only an element of danger? </li></ul><ul><li>3. was the activity suitable to the age and condition (mental and physical) of the student? </li></ul><ul><li>4. was the student progressively trained and coached to perform the activity properly and avoid the danger? </li></ul><ul><li>5. was the student fully aware of the risks involved? </li></ul><ul><li>6. what is/was the approved general practice if any? * [Standard safety precautions, e.g. safety goggles, types and thickness of mats, etc.] </li></ul><ul><li>7. was the performance, having regard to its inherently dangerous nature, properly supervised? </li></ul><ul><li>8. was the equipment adequate and suitably arranged? </li></ul><ul><li>9. were there prior occurrences to act as warnings? </li></ul><ul><li>Following approved general practice is not a guarantee of being exonerated—it is the court's role to determine whether the teacher was negligent - this cannot be determined in advance; general practice may not have been appropriate—-the circumstances may have been abnormal. </li></ul>
  15. 15. Causal Proximity “ Well . . . The Parkers are dead. You had to encourage them to take thirds, didn’t you?”
  16. 16. Voluntary Assumption of Risk <ul><li>The real reason dinosaurs became extinct. </li></ul>
  17. 17. Students’ Responsibility For Their Own Safety [The “Not So Good” News] <ul><li>Voluntary Assumption of Risk </li></ul><ul><li>( Volenti [ Non Fit Injuria ]) </li></ul><ul><ul><li>Where the plaintiff, by express agreement or by implication, assumes the risk of an activity. The defendant must show that risk was assumed. Volenti is very unlikely to succeed, particularly where children are involved. How does one prove a child understood all of the possible risks? Are school activities ever “truly” voluntary? </li></ul></ul>
  18. 18. Permission Forms/Waivers Worth the paper they’re printed on! <ul><li>“ Permission Forms” or “Waivers” are of very limited worth in law: </li></ul><ul><ul><li>Children cannot contract out of their right to sue; </li></ul></ul><ul><ul><li>Parents cannot contract away their child's independent right to sue; </li></ul></ul><ul><ul><li>Courts always interpret waivers very narrowly and strictly. </li></ul></ul><ul><li>Ethically suspect possible virtues: </li></ul><ul><ul><li>Can take away parents' right to recover any damages they themselves suffered </li></ul></ul><ul><ul><li>Parental concurrence might support the reasonableness of an activity </li></ul></ul><ul><ul><li>Might operate as a bluff to some parents </li></ul></ul>
  19. 19. Contributory Negligence <ul><li>An instant later, both Professor Waxman, and his time machine are obliterated, leaving the cold-blooded/warm-blooded dinosaur debate still unresolved. </li></ul>
  20. 20. Students’ Responsibility For Their Own Safety [The “Not So Bad” News: Part 1] <ul><li>Contributory Negligence </li></ul><ul><ul><li>“ Negligence on the part of the plaintiff that led to the accident.” Reduces the claim for damages in proportion to the fault of the plaintiff. Courts are not as reluctant to hold students partially responsible for their own injuries and they do so through the operation of the doctrine of contributory negligence. </li></ul></ul><ul><ul><li>If the Court finds that the injured pupil failed to exercise the sort of care one expects from a reasonable child of like age, intelligence and experience (and whatever other factual criteria might be relevant), it then would make a finding of contributory negligence and apportion the degree of fault, and responsibility for compensation, between the teacher and pupil. </li></ul></ul>
  21. 21. If Negligence Is Proven, Who Pays? <ul><li>Vicarious Liability </li></ul><ul><li>This doctrine provides that an employer (board) will be legally responsible for the civil wrongdoings (negligence) of its employees (teachers, etc.) which occur during the ordinary course of their employment. </li></ul>A CRUCIAL POINT - To be safe, ensure the activity you are planning has board approval, according to established procedures, or the board's insurer might deny liability and you're left on your own (Beauparlant case).
  22. 22. A Simplified Risk Management Model Academic Value of the Activity The Magnitude of the Risk Practicability of Precautions
  23. 23. Education Act, §232(1) <ul><li>(1) Where a board of education, a conseil scolaire, a principal or a teacher approves or sponsors activities during school hours or at other times on school premises or elsewhere, no teacher, principal or other person responsible for the conduct of the pupils shall be liable for damage caused by pupils to property or for personal injury suffered by pupils during such activities . </li></ul><ul><li>(2) No teacher engaged, under the supervision of the principal, in innovative or experimental projects related to teaching methodology or curriculum content that are approved by the board of education or the conseil scolaire, as the case may be, shall be liable for damages for alleged malpractice as a teacher or for any other claim based on the results of such innovation or experimentation. </li></ul>
  24. 24. Manville v. Ottawa Board (1990) <ul><li>NO! </li></ul><ul><li>The court found that the injury was caused by the negligent act of another student and that no amount of supervision or surveillance could have prevented this incident from happening. To impose this duty would be to make the school authorities an absolute insurer of another's actionable conduct. </li></ul><ul><li>A grade 5 student was injured when he was struck by a snowball while leaving school at the end of the day. He was on school property at the time. The school assigned no one to patrol or supervise the school grounds following dismissal, because those students who were not bussed home were required to leave the school building and grounds immediately after the dismissal bell. The plaintiffs brought an action claiming that the defendant school board was negligent in failing to provide adequate supervision and that this failure was the proximate cause of the injury. </li></ul>
  25. 25. Dunbar v. School District 1971, [1987] <ul><li>NO! </li></ul><ul><li>The court determined that since the teacher had taken all reasonable care to ensure that the table saw was as safe as it could reasonably be, and since the student was under adequate supervision at the time of the accident, the teacher was not liable for the student’s injury. </li></ul>An 18 year-old student severely injured his right hand while using a table-saw during a woodworking class. He stated that, at the time of the accident, he was following the instructions given to him by his teacher; however, he could not recall precisely how the accident had occurred. The teacher had modified the table-saw by removing the blade guard provided by the manufacturer and replacing it with a Plexiglas blade guard which permitted the user to see the position of the blade when the guard was engaged during cutting. Was the teacher found to be negligent?
  26. 26. James v. River East, [1975] <ul><li>Yes! </li></ul><ul><li>The court found that the activity (heating an acid solution over a flame) was inherently dangerous and that an accident was foreseeable. The teacher had permitted the students to engage in the activity without adequate instruction, was unavailable when the student sought clarification, and had not required students to wear goggles, even though these were available. </li></ul>An 18 year-old, above average grade twelve student was seriously injured when an explosion occurred during a chemistry experiment. At the time of the accident, she was conducting the experiment in accordance with the verbal and written instructions provided by her teacher. Evidence at trial indicated that that experiment in question had been conducted for a number of years without incident and that the instructions given in this case were the same as those given in previous years. Goggles were available but were not used by any of the students in the class. Was the teacher negligent?
  27. 27. EATON v. LASUTA et al. (1977) <ul><li>NO! </li></ul><ul><li>The court applied the standard of the careful parent. The court determined that a piggy-back race was a suitable activity for the plaintiff and that the teacher was not negligent in allowing the plaintiff to engage in an activity in which any reasonable parent would permit his or her daughter to participate. </li></ul>A 12 year-old, unco-ordinated and not athletically inclined female student fell and broke her leg while acting as the “horse” in “piggy-back” race at school. Her counsel claimed that the activity was inherently dangerous and unsuited to her physical makeup and that the teacher was negligent in allowing her to participate in the race. Was the teacher negligent?
  28. 28. Absolute Liability? No, Accidents do happen. <ul><li>“ Well, lad, you caught me fair and square. … But truthfully, as far as leprechauns go, I’ve never been considered all that lucky.” </li></ul>
  29. 29. <ul><li>The rubber room syndrome must be avoided for the sake of the richness of our educational programs </li></ul><ul><li>REMEMBER: </li></ul><ul><li>“ No game was ever worth a rap for a rational man to play, into which no accident, no mishap, could possibly find a way.” (per Robertson, J.A. in finding a teacher not to have been negligent in Gard v. Board of School Trustees of Duncan (1946), 2 D.L.R. 352.) </li></ul>“ Rubber Room” Syndrome
  30. 30. Educational Malpractice
  31. 31. Responsibility for Broken Minds: Educational Malpractice <ul><li>We hear sometimes of an action for damages against the unqualified medical practitioner, who has deformed a limb in pretending to heal it. But what of the hundreds of thousands of minds that have been deformed forever by the incapable pettifoggers who have pretended to form them! </li></ul><ul><li>Charles Dickens </li></ul><ul><li>Nicholas Nickleby </li></ul>
  32. 32. Why Educational Malpractice Suits Have Failed <ul><li>Legal/Technical Reasons: </li></ul><ul><ul><li>No legally recognized duty of care existed to date and courts were not willing to establish one; </li></ul></ul><ul><ul><li>Impossible to determine an appropriate standard of care —there is no consensus on the proper way to teach; </li></ul></ul><ul><ul><li>No way to show causation —there are too many other potential variables in the complex equation of how and why children learn. </li></ul></ul><ul><li>Policy Concerns (the courts are unwilling to create a new “cause of action:” </li></ul><ul><ul><li>Economic costs of litigating potential cases would be enormous—open to abuse— floodgates argument; </li></ul></ul><ul><ul><li>Fear of legal actions would stifle creativity and innovation —everyone would teach to a low, safe norm; </li></ul></ul><ul><ul><li>Courts would be asked to approve and disapprove certain pedagogical techniques —this is not their role. Disputes concerning pedagogy are better left to internal board complaint procedures [the problem is that boards and their tribunals cannot award damages]. </li></ul></ul>