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Legal liability of the physical educator in Canada McNulty, Patricia Mae 1975

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LEGAL LIABILITY OF THE PHYSICAL EDUCATOR IN CANADA by PATRICIA MAE MCNULTY B.P.E., University of Brit i s h Columbia, 1973 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF PHYSICAL EDUCATION in the School of Physical Education and Recreation We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA • December, 1975 In presenting th i s thesis in pa r t i a l fu l f i lment of the requirements for an advanced degree at the Univers i ty of B r i t i s h Columbia, I agree that the L ibrary shal l make it f ree l y ava i l ab le for reference and study. I fur ther agree that permission for extensive copying of th i s thesis for scho lar ly purposes may be granted by the Head of my Department or by his representat ives. It is understood that copying or pub l i ca t ion of th is thes is fo r f inanc ia l gain sha l l not be allowed without my writ ten permission. Department of HIYSICAL EDUCATION The Univers i ty of B r i t i s h Columbia Vancouver 8, Canada Date DECEMBER 1975 \ i ABSTRACT The purpose of this study was to examine and interpret the legal decisions of the Canadian courts in l i t i g a t i o n concerning tort l i a b i l i t y on the part of the physical education teacher and coach in the gymnasium, on the playing f i e l d , in the community recreation classes and on athletic trips up to and including early 1975. Basically, the answers to the following questions were sought: (1) What i s negligence in law and how does this apply to the Physical Education teacher? (2) If a teacher i s involved in a law suit what legal defenses are open to him or her? (3) What are some of the areas in the school system which a teacher should be particularly aware of in terms of potential legal problems? The study aimed to stimulates (1) an appreciation for protecting the student in the school environment and on athletic trips (2) an understanding of the basic precepts of l i a b i l i t y that might have an adverse or constructive effect on the school program (3) a realization that loss of professional integrity and financial loss can be painful consequences of one's l i a b i l i t y . An attempt was made to c l a r i f y basic legal issues in the area of tort l i a b i l i t y that concerns the physical educator in Canada, and to point out issues that the Physical Education teacher should be aware of In evaluating activities in the light of possible repercussions. Also, where major problems were discovered concerning the P.E. teacher's legal status in Canada, recommendations were made as to solutions to these problems. The research was carried out through an investigation of Canadian court cases relating to the topic of legal l i a b i l i t y and the physical education teacher. From these cases i t was possible to establish some basic legal principles concerning teacher l i a b i l i t y in the classroom, in the gymnasium, on the playing f i e l d and on trips away from the school environment. i i d TABLE OF CONTENTS CHAPTER PAGE I. STATEMENT OF THE PROBLEM 1-3 Need for the study 3-4 Limitations 4-5 Definitions 5-7 Research Method 7_8 II. REVIEW OF LITERATURE g_24 III. TORT LIABILITY Theory of Tort L i a b i l i t y 25-26 Negligence defined 27-35 Elements of Cause of Action..../ 35-44 Under the Circumstances.. 42-44 Examples of Teacher Negligence 44-49 Negligence in Supervision 49-81 IV. LEGAL DEFENSES AGAINST A LIABILITY SUIT 82-84 No Direct Relationship Between Teacher's Actions and Resulting Injury 85-No Duty of Care Involved.... 85-86 The Injured Student's Action Contributes to His Own Negligence 86-90 Student Voluntarily Assumes the Risk 90-95 Injury from a Natural Cause.. 95 Delegation of Authority or Duty........ 95-97 X V CHAPTER PAGE No Breach of Duty 97-98 School Board L i a b i l i t y Protection 98-102 V. LIABILITY PROTECTION 103 Insurance 103-108 Li a b i l i t y Protection in: Manitoba 108-111 Saskatchewan 111-113 Newfoundland 113-114 Nova Scotia 114 Alberta 114 British Columbia 115 Ontario 116 Recommendations Regarding L i a b i l i t y Insurance H6-117 VI. TRANSPORTATION 118-128 VII. MISCELLANEOUS CONSIDERATIONS FOR THE PROTECTION OP THE TEACHER Reporting Accidents 129 First Aid 130 Parental Consent Forms .132 Co-Educational Participation 133-136 VIII. SUMMARY AND CONCLUSIONS 137-138 APPENDICES 149-156 BIBLIOGRAPHY. 139-148 V ACKNOWLEDGEMENT I wish to express sincere appreciation to my Committee Chairman, Mr. R.F. Osborne, Director of the School of Physical Education and Recreation, for his guidance and suggestions in the writing of this thesis. The assistance of Dr. B. Slutsky, Faculty of Law at the University of British Columbia, was invaluable in that without his interest and assistance this thesis may not have been completed. To the members of my Advisory Committee, Dr. R. Hindmarch and Dr. T. Rhodes, I express my thanks for their interest and time in assisting me in this study. Finally, acknowledgement is due to Mr. C.C.I. Merritt, Queen*s Council, for providing resource material relevant to this thesis. CHAPTER I INTRODUCTION TO THE PROBLEM Statement of the Problem The purpose of this study was to examine and interpret the legal deolsions of the courts in l i t i g a t i o n concerning tort l i a b i l i t y on the part of the physical education teacher and coach in the gymnasium, on the playing f i e l d , In the community recreation classes, and on athletic t r i p s , In the Canadian schools up to and including early 1975. Basically, the answers to the following questions were soughti 1. What i s negligence i n law and how does this apply to the physical education teacher? 2. If a teacher i s Involved in a law suit, what legal defenses are open to him or her? 3. What are some of the areas in the school system, that a teacher should be particularly aware of in terms of potential legal problems? 4. In view of the above three problems, what impact does the teacher's legal position have on the profession of physical education? The study aimed to stimulate an appreciation for protecting the student in the school environment and on athletic trips as well as an understanding of the basic precepts of l i a b i l i t y that might have adverse or constructive effect on the school program. 1 2 Consideration was given to teacher-pupil relationships which arise out of the position of special responsibility that the teacher holds in relation to his pupils. The teacher has in many respects an intermediate position between School Board and pupil, inasmuch as a master-servant relationship;; exists between School Board and teacher and the "careful father" (in loco parentis) relationship between teacher and student. Teachers may be called to account for alleged neglect of duties and responsibilities arising therefrom, due to their obligations to act as a "careful parent". On the other hand, the master-servant relationship with the School Board tends to protect the teacher from l i a b i l i t y arising from the former condition. The task of the study of the physical educator and the law is to determine the nature of these two relationships and to assess the legal consequences that ensue when either one or both are dislocated. The major legal concept of concern here i s that of negligence and l i a b i l i t y resulting from i t . In addition to just helping physical education teachers and coaches to avoid l i a b i l i t y , the knowledge of legal l i a b i l i t y w i l l make them more familiar with the care that must be used in their conduct to avoid injury to pupils and to devise and Initiate ways to prevent such accidents or even possibly reduce their frequency. Thus, an attempt was made to evaluate; and determine basic legal principles 3 in the area of tort l i a b i l i t y that concern the physical educator in Canada, and to point out issues that the • > physical education teacher should be aware of in evaluating acti v i t i e s in the light of possible le'gal repercussions. Also, where major problems were discovered concerning the teachers* legal status in Canada, recommendations were made as to solutions to these problems. Need for the Study Compared to other types of professions or businesses, the physical educator in Canada is ignorant of his legal status. The professions of dentistry or banking make the law concerning that profession an essential subject. Similarly, medical jurisprudence is an important part of the study of the medical profession. Unfortunately, physical education teachers are allowed to remain ignorant of the legal aspects of their profession in their educational preparation in the majority of Canadian colleges and universities. If a teacher wishes to engage in personal research in school l i a b i l i t y he is faced with the problem of locating material pertaining to this facet of law. It appeared that in Canada, there has been very l i t t l e research concerning the legal l i a b i l i t y of the physical educator. There was a need to search out exhaustively the very recent and past cases in the Canadian courts pertaining to the physical educator and examine the litigations concerning this i n the various provinces. Also, an investigation was carried I* out to review each province's School Act and i t s position on legal l i a b i l i t y . Correspondence with Teachers Federations across Canada indicated that in most provinces there was l i t t l e or no effort on their part to Inform the physical education teachers as to their legal l i a b i l i t y . Thus, there appeared to be a need for a study in this area which would investigate legal principles and possibly lead to a publication in the form of a handbook which would set out the legal status of the physical educator in Canada. This study should aid Canadian physical educators to c l a r i f y their position with respect to legal l i a b i l i t y in the Canadian schools. The status and future growth of the physical education curriculum are, partially at least, dependent on the decisions of the Courts in cases involving l i a b i l i t y for Torts. It was important, therefore, that the trend and direction of Tort l i a b i l i t y , as i t pertained to physical education, be studied carefully and reported. Limitations The study i s limited by. 1. Inexperience of the writer with legal terminology and lack of extensive knowledge of the f i e l d of law In general. Possible erroneous conclusions which may be drawn from the materials covered and any apparent shortcomings of this study might be attributed to this limitation. 5 To minimize the limitation, the writer sought the aid of several lawyers, faculty members of the Faculty of Law at The University of British Columbia, and law students in reviewing the materials for the study. 2. The avai l a b i l i t y of Canadian cases in which to explain certain points of law. Reference was made to some American and English cases to provide additional information to further c l a r i f y the topics under discussion. 3. The conclusions that were drawn in the study were based on reported cases up to the end of February 1975• Because of possible cases pending and also in the process of being appealed at the time of writing the thesis, important changes in the law could result in rendering, some of the conclusions Inaccurate. This factor illustrates the importance of a constant appraisal of the entire legal situation concerning l i a b i l i t y of the physical educator in the schools. Definitions 1. Common Law Common law i s often considered as unwtltten law in the sense that i t was not established by a legislature (ie) passed in parliament. It is often referred to as judgemade law because i t arises from judgements and decrees of the courts. 6 2. Negligence The omission to do something which a reasonable man would do, or the doing of something which a reasonable and prudent man would not do under the circumstances in question. 3. L i a b i l i t y The state of being bound or obliged i n law or justice to do, pay, or make good something. 4. Respondeat Superior A master i s liable i n certain cases for the wrongful acts of his servant. 5. Tort L i a b i l i t y A tort i s a legal wrong. A tortious act consists of the omission or commission of an act which results in an injury to another, directly or indirectly, i n person or property. A tort may arise out of the followingt (a) commission of an act which i s unlawful and intended to cause harm. (b) omission to perform a specific legal duty. (c) commission or omission of an act causing harm which was unintentional but which Mould have been foreseen and prevented. 6. P l a i n t i f f The individual or individuals who bring a law suit against another for some type of damages suffered. 7 7. Defendant The individual or individuals upon whom damage i s charged. Method of Procedure The major method of research used in this study was a form of Historical and Legal research. Most of the pertinent data concerning the problem was sought through the resources of the Law Library at The University of British Columbia. However, where necessary, Judges and lawyers, particularly knowledgeable in the area and correspondence with the above outside the province of British Columbia were consulted for additional information. The method of research involved locating each individual case among the various volumes of reported cases. The major technique involved in analyzing the data was, in legal terms, "briefing a case". Generally, this i s a condensed form of the actual case and includes the following items: 1. The name of the case and i t s citation. 2. A brief statement of the essential facts of the case. 3. The issues or questions of law that are involved. 4. The decision of the court. 5. The reasons for the decision in view of the evidence, the facts of the case as presented, the issues of law involved, and the rulings of previous courts in similar or parallel cases. 8 Presentation of the data was in the form of the rulings of the courts as they pertained to the text of the thesis. CHAPTER II REVIEW OF THE LITERATURE Studies indicate (Dzenowagis, 1962f Seeley, 19621 Muniz, I962) that more students are injured in physical education classes than in any other school activity. In the 1950*s a number of physical educators pointed out the need for the teacher to become aware of the relationship between the physical education profession and the law. 1 Leibee (1952) stated; " . . . i t i s of fundamental importance...that teachers "be aware of their potential tort l i a b i l i t y as established by the statutes and decided cases in the states where they teach". 2 Shaw (1955) stated* "Every teacher, administrator and member of a board of education works as a parent pro tem under the legal doctrine of 'in loco parentis*. It is a sword of Democles, (working threateningly in school accident l i a b i l i t y ) . In loco parentis should be thoroughly explained to every newcomer to education be he lay board member or professional pedagogue as a sobering and salutary concept of his relationship to his charges. This w i l l help prevent action in school that may be actionable in court". 3 Carlson (1957) stated* " . . . l e t us face the problem of tort l i a b i l i t y r e a l i s t i c a l l y . We cannot claim ignorance of the 1. Leibee, H.C., " L i a b i l i t y for Accidents in Physical Education, Athletics, Recreation", Ann Arbor 1 Ann Arbor Publishers, 1957» p. 76. 2. Shaw, R.M., "In Loco Parentis", School Executive. May 1955-3. Carlson, G.T., "1*11 be Sueing You Coach", Educational  Digest. September, 1957. p. ^6. 9 10 law as an excuse. Our duty Is to know what the law Is, remove every possibility for injury we oan, and then exercise alert supervision". 1 Pahr (1958) stateds "...one thing i s certain! i t is a trend of the times to expand both the area in which tort l i a b i l i t y i s li k e l y to be found and the amount recoverable upon proof of such l i a b i l i t y . No one engaged in physical education can ignore this trend, and thoughtful persons so engaged must see to i t that personnel training and maintenance of f a c i l i t i e s take f u l l account of i t " . 2 Rice (1961) stated? " . . . i t is obvious that, as a group, teachers occupy a position in which there i s considerable legal risk. It is Important, therefore, that teachers and particularly the physical education teacher, understand the legal hazards of the profession to which they belong". Baker (1972) emphasizes that the possibility of a school teacher being involved in a school-related injury is greater now than at any time in educational history. McCurdy (1968), maintains that while teachers question their professional status and other aspects of their profession, they f a i l to concern themselves with their legal status. In discussing the legal status of the Canadian teacher, McCurdy makes the following comments "While both teachers and laymen have been debating the professional and social status of teachers, recent studies respecting the legal status of the school pupil and the school board have focused attention on yet another repository of status, the status which derives from the law of the land. 1. Fahr, S.M., "Legal L i a b i l i t y of Athletic Injuries", Journal of Health. Physical Education. Recreation. . February 1958, p. 76V 2. Rice, S.W., "A Suit For Teacher", Journal of Health. Physical Education. Recreation, vol. 32 (November 1961), p.~W. 11 Most teachers are aware that the law prescribes certain duties for them, that school boards have authority over them, and that their professional organizations are acquiring a measure of influence over their station in the educational world. It is doubtful, however, i f teachers generally realize the extent to which the legislation determines their rights, duties, powers, privileges and responsibilities". (McCurdyi 1968, p. 3) Seeley (1962) identifies the areas of greatest potential to the school pupil - athletic f i e l d s , gymnasiums, school grounds and classrooms. Concerning teacher negligence, McCurdy (1968) holds that the teacher should not be afraid of l i a b i l i t y i f he exercises care in carrying out his responsibilities for the safety of his pupils, because he is protected to some extent because of his master-servant relationship with the School Board. Lamb (1959). in discussing legal defenses open to the teacher states t "Besides the negative, but important, defence that the onus is on the pl a i n t i f f to show negligence, the most secure shelter for teachers is the maxim respondeat superior, l i t e r a l l y let the superior answer, which assumes that a master is responsible for the actions committed by a servant during his course of employment i f they are specifically or implicitly authorized. Thus, when an accident occurs which leads to a negligence suit the school board is automatically involved through respondeat superior although i t would appear that the accident resulted wholly from teacher negligence. Therefore, in cases where teachers are at fault, they receive the protection afforded by the greater financial strength of the board". (Lambj 1959. p. 51*) 12 Kigln (196^) feels that school law as i t relates to teachers, is complex, but i t does not constitute an insurmountable obstacle. Changes in the structure and interpretation of existing law, as well as the success attained by certain p l a i n t i f f s have a l l encouraged more aggrieved students and their parents to i n i t i a t e l i t i g a t i o n in an attempt to realize award for damages. An understanding of those factors which constitute l i a b i l i t y w i l l not only serve to protect the teacher, but w i l l also make him more alert to potential hazards In the classroom, gymnasium and on the playing f i e l d . Kigin goes on to state that under another legal doctrine called "in loco parentis" (in the place of the parent) school people assume some of the rights and duties of a child's parent. Among other things, this means that a teacher is entitled to receive the respect due his position and has the right to control the class for the good of the school. However, in the discharge of these rights, teachers are bound to act as reasonable and prudent parents would act under the same or similar circumstances. Tener (1963) contends that: "A coach has the legal stature of "loco parentis" (place of the parent) to his pupils, and should exercise the care and prudence of a parent in his coaching. There's no such thing as being too cautious. Every coach should learn the legal principles upon which negligence rests. If he can justify his behaviour and construct sound legal defenses, he can evade l i a b i l i t y " . (Tenert 1963, p. 51) 13 Bird (1970) sets out the conditions that must exist in order for negligence to occur. A right must exist upon the part of the p l a i n t i f f , and a corresponding duty must exist on the part of the defendant towards the p l a i n t i f f ' s right. The defendant must f a i l to observe the duty toward the corresponding right of the p l a i n t i f f , and damages must be suffered by the p l a i n t i f f . A p l a i n t i f f w i l l have grounds for a case i f one or a l l of these conditions are violated. He maintains that the important areas of concern should be adequate supervision and preparation, area and apparatus inspection, emergency care, and accident reports. Leibee (1965) states* "The relationship of teacher to pupil requires generally, that the teacher act as a reasonably prudent person would act under the same or similar circumstances, carrying out the duties of the teaching profession. That i s , he is measured by the usual tort standard of conduct which, though stated simply, i s often d i f f i c u l t to apply. If the circumstances existing at a given moment would cause the f i c t i t i o u s reasonably prudent person to take some action or refrain from conducting himself in some manner, and the teacher f a i l s to act or f a l l s to refrain, then he has been negligent.... has breached the legal duty he owes his students and i s liable i f injury results". (Leibee: 1965, P.12) Trubitt (I966) feels that the key to prevention of school tragedies l i e s in the application of common sense, good judgement, and basic humanity. Each day, every teacher is In a position to incur legal l i a b i l i t y , as he works in a situation that contains a l l the ingredients of 14 a damage action* supervisory responsibility, young students, and a l l types of physical activity. These ingredients are present in every school and are inherent in teaching. He elaborates on supervision, by contending that the a b i l i t y to supervise implies effective supervision, not mere presence. Teacher effectiveness may be limited by the number of students in the group, a b i l i t y to observe the entire teaching area (important in areas with blocked v i s i b i l i t y ) , necessity for the teacher to be absent for periods of time, and physical a b i l i t y of the teacher to extend his supervision everywhere. Concerning what is legally adequate supervision, Nolte, (1965), maintains that since the teacher stands in the place of the parent, the teacher in turn must exercise a degree of care and caution which the average parent of normal prudence and foresight would have exercised under the same circumstances. The duty of the court in each case is to view the circumstances and ascertain what the "average parent" would have done. However, the courts do not expect a superhuman awareness of danger. Kigin (1964) states* "Like parents, teachers and administrators assume a degree of responsibility for the health, safety and welfare of children in their charge. Since pupils are minors, they cannot be expected to make mature judgements and are more lik e l y to get into potentially hazardous situations without f u l l knowledge of the consequences. Teachers and administrators inherit from parents the duty of providing adequate direction and supervision to keep youngsters free from injury. Therefore, any deviation from the normally required supervision can result in a charge of negligence". (Kigin* 1964, p. 3) 15 Along the same line, Seeley (1962) states. 1. When parents surrender the custody of their children to school authorities, they are entitled to expect the school people to exercise judgement and common sense to prevent avoidable injuries. 2. Common sense dictates the necessity of supervision, particularly on playgrounds. 3. School Boards should, by regulation, adopt minimum standards which specify the types of acti v i t i e s requiring supervision by members of the school faculty. (Seeley; 1962, p. 190) According to Scott (196*0, basically what governs whether or not a School Board and/or i t s employees can be found legally liable for damages as a result of any accident i s the nature of the circumstances surrounding i t s cause. The question of whether negligence occurred i s , in the f i n a l analysis, only determined by deoislon of a Court of Law. For practical purposes, however, the decision w i l l rest upon whether or not, depending on a l l known circumstances as to the oause of the accident, i t happened because something was done which a reasonable and prudent man, as a trustee or employee of a School Board (or the Board as a body), should not have done, or because something was not done which should have been done. 16 Rosenfleld (I963). emphasizes that the law does not expect that one should have been able to foresee the specific accident that occurred. For a person to he held negligent, i t is enough that reasonable prudence would have forewarned him that something untoward might or could happen under the circumstances. In short, i f one could or should have anticipated trouble, his failure to take preventative action is imprudent - and therefore negligent. Similarly, Muniz (1962), states that i t is conceded by the courts that some accidents can happen no matter how close the supervision. The question to be answered is whether or not the supervision provided was adequate for the particular situation. This does not mean that a teacher must be stationed at each piece of equipment or over each child who is participating in an activity. What is required by law is the exercise of "due or reasonable care". Koehler (1972) stresses the importance of the physical educator possessing knowledge and understanding of l i a b i l i t y laws. "It must be a knowledge that w i l l enable them to perform their task of aiding the distressed or injured without needless jeopardy on their part. Generally, i t is the motivation toward the humanitarian deed in situations of distress which lead to a l i t i g a t i o n , for at the time of the act the legal ramifications are furthest from the actor's mind". He proposes a number of points which the physical educator should be aware of: 1. Supervision - group size, nature of activity, and type of participants. 17 2. Ability-Grouping - Age, size, health and s k i l l a b i l i t y level. 3. Equipment - P i t , quality, safety factors. 4. First Aid - Training, standardized procedure, report forms, follow-up and referrals. 5. Inspection - Equipment and f a c i l i t y defects, report forms, procedure and repair. 6. Safe Environment - Nature of activity, numbers participating, safety engineering (area design, location and hazard free). (Koehlerj 1972, p.30) Jordan (1964) suggests a number of points that a coach should consider in administering a successful program» 1. Provide every athlete with safe equipment, and make speedy exchanges and repair when necessary. 2. Take necessary steps to condition the players prior to the start of scrimmages or games. 3. Be sure that complete physical examinations are given to a l l participants before they are allowed to begin practice. 4. Be aware of proper f i r s t aid techniques, and have the necessary supplies and equipment to handle any emergency. 5. Never allow an athlete to participate unless he has been given sound training in the fundamentals of the game. 6. Adapt a l l his activities to the a b i l i t i e s of the 18 participants. Have a physician present at a l l contests. Never return an injured player to the lineup without the physician's approval. Never leave an activity group unsupervised. Remember that a moral as well as legal responsibility exists. A lawsuit successfully defended would provide rather hollow satisfaction i f an athlete was l e f t permanently injured. (Jordani 1964, p. 77) Grieve (1967) holds that i t is the teacher's responsibility to ensure that equipment and f a c i l i t i e s are proper for the activity and provide the participants with the optimum of safety. The teacher should consider a l l of the possible f a c i l i t i e s which might be u t i l i z e d for athletic events including f i e l d s , tracks, gymnasiums, courts, and even locker rooms. He suggests that? "With the numerous legal actions which have involved equipment and f a c i l i t i e s , a l l those concerned with athletics in the school situation must give consideration to these factors. If there is the least possibility that existing equipment or f a c i l i t i e s could result in legal action, i t is an obligation of a l l personnel to rectify such situations". (Grieve t 1967, p. 78) Transportation is an area which potentially holds the possibility of serious problems should care not be taken in the transport of pupils. One of the most serious problems is Involved in,the use of teacher-owned automobiles. 7. 8. 9. 10. 19 Traufler (1965) recommends that in transporting school students, a common carrier should be used rather than private oars since drivers of common carriers are professionals and are trained to concentrate on operating the vehicle. When parents or other students drive cars, they often become involved in conversation and forget to concentrate on their driving. The common carriers are more protected in the amount of insurance coverage they are required to carry. Garber (1964) contends that any administrator or teacher who gives a student an automobile ride - even when i t ' s an emergency t r i p to the doctor - ought to make sure his automobile Insurance coverage is adequate. If there is an accident and the youngster in his car is injured, the teacher could be held personally l i a b l e . Nolte (1964) contends that Boards must exercise extraordinary care in a l l matters relating to pupil transportation. He suggests the following as being pertinent 1 1. The pupil transportation should be completely under the guidance and control of a comprehensive set of written board policies. Where the budget permits, the program should be under the administration of a specially trained bus dispatcher. 2. Only the highest quality of equipment should be used. Safety rather than economy should be the deciding factor. 3. Only the highest quality bus drivers should be employed. Drivers should be given physical ft 20 examinations at frequent intervals, including eye tests, and close checks should he made of any change in the physical condition of each driver. 4. Periodic, exhaustive examinations of moving equipment should be included in the board's plan. Accidents arising from mechanical failure may occasionally exonerate the board. 5. Bus routes should be laid out with top priority to the safety of pupils transported. 6. Ample insurance coverage of the l i a b i l i t y type should be carried at a l l times. Consultations between the insurance representatives, school lawyer, and top administrators plus a representative from the board should arrive at what constitutes ample coverage under present conditions. (Noltej 1964, p. 32) Even though i t is up to the school board to procure an insurance policy to protect i t s e l f and i t s employees, the teacher should be familiar with some basic principles of insurance. The teacher must be aware of the areas of l i a b i l i t y in which the school board policy does not offer protection. The reporting of accidents to the Insurance company is an important issue that must not be overlooked. Levensohn (1965) suggests that no matter how t r i v i a l an accident may appear, i t should be immediately reported to the insurance company. A large l i a b i l i t y claim may 21 result from a small accident although i t may have been unsuspected at the time. A l l the facts of the accident should be reported honestly, including any evidence which may be interpreted as negligence. The report should include the names and addresses of a l l witnesses and a description of a l l actions (including f i r s t aid) which were taken as a result of the accident. Shroyer (1964) recognizes the perplexing problem of what might be considered adequate f i r s t aid treatment. He outlines a number of general principles to follow: "If immediate f i r s t aid seems indicated, the coach is obligated to do the best he can. If he has had some f i r s t aid training, he would be expected to act as a reasonably prudent trained person, leaving the injury in a better condition than he found i t . If the coach has not had f i r s t aid training, he'd be expected to act as a reasonably prudent layman. It would seem that a board of education which hired a coach without f i r s t - a i d training would be placing i t s e l f in a precarious position because of the high frequency of injuries that occur in athletics". (Shroyers 1964, p. 18) Gold and Gold (1963) define some of the responsibilities and corresponding l i a b i l i t i e s of the physical educator who renders f i r s t aid to an injured pupils "It may be set down as a general principle that when an emergency arises in which a pupil is seriously injured, and a school nurse, doctor, or other medically trained person is unavailable at the moment of the accident, there is a duty upon the physical education teacher to administer f i r s t aid to such pupil. Failure to do so could very well make the P.E. instructor liable for negligence in an ensuing lawsuit. One of the reasons this legal duty is imposed upon physical educators is because our courts have consistently held that teachers stand 'in loco parentis* to a pupil, which means that they have a parent's duties and responsibilities". (Gold and Golds 1963, p. 42) 22 Giles (I962) emphasizes that a coach is charged with the responsibility of prudence and care in his work. Consideration must be given to the risk involved in the particular game being played. When a student is injured, the teacher should not gamble on the youth's resiliency, but place the student immediately in the hands of a competent physician and notify the parents. The review of literature indicates that the law is an extremely important part of the teaching profession. The physical education teacher and coach must make themselves familiar with the legal p i t f a l l s of their profession in the areas in which they teach, in order to avoid lawsuits. 23 REFERENCES 1. Dzenowagis, J.G., "College Sports - Accidents, Injuries", Safety Education, vol. 4 l (March 1962), pp. 3-5. 2. Seeley, D., "School Accidents and Teacher L i a b i l i t y " , Journal of School Health, vol. 32, (May 1962), pp. 190-191. 3. Muniz, A.J., "The Teacher, Pupil Injury and Legal L i a b i l i t y " , Journal of Health. Physical Education. Recreation, vol. 33, (September 1962), p. 28. 4 . Leibee, H.C., Tort L i a b i l i t y for Injuries to Pupils. Campus Publishers, Ann Arbor, 1965. 5. Carlson, G.T., " I ' l l Be Sueing You Coach", Educational  Digest. (September 1957), p. 46. 6. Fahr, S.M., "Legal L i a b i l i t y of Athletic Injuries", Journal of Health. Physical Education. Recreation. February 1958, p. 76^ 7. Rice, S.W., "A Suit For Teacher", Journal of Health. Physical Education. Recreation, vol. 32, (November 1961), pp. 24-25. 8. Baker, B.B., "Physical Education And The Law: A Course For The Professional Preparation of Physical Educators", Physical Educator, vol. 29, (May 1972), pp. 63-65. 9. McCurdy, S.G., The Legal Status of the Canadian Teacher. MacMillan Co., Toronto, 1968. 10. Lamb, R.L., Legal L i a b i l i t y of School Boards and Teachers  for School Accidents. Research Division Canadian Teacher's Federation, 1959, P. 54. 11. Kigin, D.J., "Would You Be Liable If ", Safety Education, vol. 43 (February 1964), p. 3. 12. Tener, M., "Coach's Legal L i a b i l i t i e s " , Scholastic  Coach, vol. 33 (November 1963), PP. 50-51. 13. Bird, P.J., "Tort L i a b i l i t y " , Journal Health. Physical  Education. Recreation, vol. 41 (January 1970), p. 39. 14. Trubltt, H.J., "Legal Responsibilities of School Teachers in Emergency Situations", Journal of School Health. vol. 36 (January 1966), p. 22. 24 15. Nolte, M.C., "What Is Legally Adequate Playground Supervision?" American School Board Journal, vol. 150 (February 1965). PP. 42-43. 16. Scott, J.C.M., "School Boards and Common Law L i a b i l i t y " , The B.C. School Trustees. F a l l 1964, pp. 8-9. 17. Rosenfleld, H.N., "Guilty! The Law Looks At School Accident Cases", Safety Education, vol. 42 (April 1963). PP. 12-16. 18. Koehler, R.W., "Prudence, brother, prudence", Physical  Educator, vol. 29 (March 1972), pp. 29-31. 19. Jordan, W.L., " L i a b i l i t y and School Athletics", Athletic  Journal, vol. 43 (September 1964), p. 76. 20. Grieve, A., "Legal Considerations on Equipment and F a c i l i t i e s " , Athletic Journal, vol. 47 (February 1967), p. 28. 21. Traufler, M.E., "Discovering The World Safelyj Facts You Should Know Before Planning A Field Trip", Safety  Education, vol. 44 (February 1965), pp. 2-5. 22. Garber, L.O., "Teacher's Autos and Student Passengers", Education Digest. vol. 29, p. 34. 23. Nolte, M.C., "Extraordinary Care Lessens Vulnerability", American School Board Journal, vol. 148 (June 1964), pp. 40-42. 24. Levensohn, A., "A Schoolman's Guide to Insurance Management", School Management. February 1965» p. 93. 25. Shroyer, G.F., "Coach's Legal L i a b i l i t y for Athletic Injuries", Scholastic Coach, vol. 34 (December 1964), p. 18. 26. Gold, S.Y., Gold, G.E., "First Aid and Legal L i a b i l i t y " , Journal of Health, Physical Education. Recreation, vol. 34 (January 1963), PP. 42-4-3. 27. Giles, J.W., " L i a b i l i t y of Coaches and Athletic Instructors", Athletic Journal, vol. 42 (February 1962), p. 18. \ CHAPTER III TORT LIABILITY 1 Woods et a l (1973) » define the scope of the teachers l i a b i l i t y ! "The term "tort" as i t pertains to tort law and education is a very d i f f i c u l t term to define. It is questionable whether or not any textbook has ever successfully introduced a l l of the definitions of this term. Physical education teachers, Intramural directors, and athletic coaches have been involved in court cases related to tort l i a b i l i t y for years. Teachers may be liable "in tort" for several different reasons, but teachers and coaches are usually liable for damages when negligence is established. If the teacher is Judged negligent, i t usually implies that the teacher has failed to act as a 'reasonably prudent and careful' parent would act under the circumstances to avoid exposing others to unreasonable danger or risk of injury or harm. Negligence may also consist of the omission to act as well as in acting positively". This chapter is not concerned with the whole of Tort law. Even i f i t were feasible, a complete consideration of this subject would be outside the scope of this study. However, i t is necessary to give a general definition of torts as the law of negligence forms an important part of the law of torts. Broadly speaking, a tort is a , wrongful act for which a c i v i l suit may be brought for the recovery of damages. A tort may be either a negligent act or a failure to act. It can also be an 1. Woods, J.B., Mauries, T.J., Dick, B.V., Student  Teaching, Academic Press, 1973. New York, p. 26. 25 26 intentional act which causes injury to another person. A wrong i s called a tort only i f the harm which has resulted, or i s about to result from i t , is capable of being compensated in an action at law for damages, although other remedies may be also available. In general, a tort consists of some harm done to the p l a i n t i f f by the defendant without just cause or excuse. The law of torts acts as a shield to prevent individuals from hurting one another, whether i n respect of their property, their person, their reputation, or anything else which is theirs. The fundamental principle i s to hurt noone by,word or deed. An action of tort, therefore, is usually a claim for pecuniary compensation in respect of damage suffered as the result of the invasion of a legally protected interest. For a p l a i n t i f f to recover for tort he must show that he was not in the wrong, nor had given consent; also, that the defendant was legally responsible. Further, the p l a i n t i f f must show a legal duty of the defendant to the p l a i n t i f f ; and the p l a i n t i f f must show damage conforming to the standard of the law as the proximate result, except where proof of violation infers damage. There are numerous causes of torts, but by far the most common, as far as the teacher is concerned, arises out of negligence. However, this does not preclude the possibility of tort arising from causes other than negligence. 27 ; Negligence What is negligence? When is a person negligent? In order to find an answer to these questions, let us take a look at a few points of law referring to this. Generally speaking, negligence refers to conduct of the actor which Involves unreasonable risk for another or failure to act in a manner which Is necessary for the assistance or protection of another! i.e., the failure to act as a reasonably prudent person would act under the specific circumstances involved. In other words, negligence Is conduct which f a l l s below the standard established by law for the protection of others against 1 unreasonably great risk of harm. 2 Lord Atkin, in M'Allster v. Stevenson, statedi " L i a b i l i t y for negligence, whether you style i t such or treat i t as in other systems as a species of 'culpa* , i s no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure, cannot in a practical world be treated so as to give a right to every person injured by them to demand r e l i e f . In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes In law, you must not injure your neighbouri and the lawyer's question Who i s my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be li k e l y to Injure your neighbour. Who, then, in law is my neighbour? The answer seems to be -1. Prosser, W.L., Handbook of the Law of Torts. West Publishing Co., St. Paul, 196¥, p. PT8. 2 / M « N A l l s t e r v. Stevenson. (1932) A.C. 562. * A c i v i l law term meaning fault, neglect or negligence. 28 persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". \ In most instances, negligence is caused by heedlessness or carelessness, which makes the negligent party unaware of the results which may follow from his \ act. But i t may also exist where he has considered the possible consequences carefully, and has exercised his 1 own best Judgement. In other words, a teacher can be negligent because he did not act reasonably or prudently, and he can be negligent for either action or inaction in which imminent hazards were not foreseen and should have been. The case of Moddejonge et a l v. Huron County Board 2 of Education et a l , illustrates the principle of foreseeability. In this case, the defendant teacher was employed by the School Board as co-ordinator of the outdoor educational programme of one of the Board's high schools. At the time in question, he was one of the supervisors of a " f i e l d t r i p " organized by the school and sponsored by the Board. The School Board was found liable for the negligence of i t s employee, the teacher, in permitting a 15 year-old school g i r l to drown while participating on a f i e l d t r i p sponsored by the School Board. In an attempt to rescue the f i r s t g i r l , another 15 year-old 1. Ibid. p. 149. 2. Moddeionge et a l v. Huron County Board of Education et a l , (1972) 2 O.R. 444. 29 g i r l drowned. The teacher was liable In negligence for the deaths of the two g i r l s because It was within the scope of his duty to guard against the foreseeable risks the g i r l s were exposed to. The swimming area created a real risk to the g i r l s . The teacher was unable to-lTwim, no life-saving equipment was available, and h!e took no action when a breeze came up creating waves that caused one of the g i r l s who could not swim, to be carried out into deep water. The teacher also had moved away from the students when they were close to the danger area. The defendant School Board was also liable because the teacher was acting within the scope of his employment. The second g i r l who drowned, had swum out and rescued a fellow student. She then went out to rescue the other g i r l , but the f i n a l outcome was that both g i r l s drowned. It was held by an Ontario court that the teacher was also liable for the death of the second g i r l . Judge Pennell statedt "When a person by his negligence exposes another to danger i t i s a foreseeable consequence , that a third person w i l l attempt to rescue the one in danger, and the attempted rescue is part of the chain of causation started by the negligent act. The act of (the g i r l who attempted rescue) was not unreasonable in the circumstances, as was evident from the fact that she successfully rescued one child". 1 "There Is no general duty to assist anyone in p e r i l . It i s a great reproach to our legal institutions that rescuers for many years were denied recovery by a train of reasoning based on the concept of voluntary assumption of risk. Eventually justice comes to live with men rather than with books. It f e l l to Justice Cardozo to allow the claim of humanity. I borrow, with respeotful gratitude, a passage from his 1. Ibid, p.^38 30 Judgement In Wagner v. International Railway Co., 232 N.Y. 1765 Danger Invites rescue. The cry of distress is the summons to r e l i e f . The law does not ignore these reactions of the mind in tracing conduct to i t s consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that Imperils l i f e i s a wrong to the imperilled victim; i t is a wrong also to the rescuer. The risk of rescue, i f only i t be not wanton, is horn of the occasion. The emergency begets the man. The wrong doer may not have foreseen the coming of a deliverer. He is accountable If he had." 1 This principle established above has been followed ever since. The standard for negligence is an external one imposed by society. It is not necessarily based upon any moral fault of the Individual; and a failure to conform to i t is negligence, even though i t may be due to stupidity, forgetfulness, an excitable temperament, or even sheer ignorance. 2 Judge Dysart, in Carlson v. Choohlnov.. states1 "Negligence is a question of fact not of.law. Negligence i s the failure, in certain circumstances, to exercise that degree of foresight which a court, in i t s aftersight, thinks ought to have been exercised. The proper standard of foresight and care are those attributed by the court to a reasonably careful, s k i l l f u l person. The ideal of that person exists only In the minds of men, and exists in different forms in the minds of different men. The standard is therefore 1. Ibid. p. 438. 2. Carlson v. Chochlnov. (1947) 1 W.W.R. 755. (19^7) 2 D.L.R. 641. Affirmed subject to a variety of costs, (1948) 2 W.W.R. 273, 56 Man. R. 179. (19^8) 4 D.L.R. 556 (C.A.). 31 far from fixed or stable. But i t is the best all-around guide that the law can devise, and the degree of correctness with which i t i s applied in deciding cases depends on the ab i l i t y , astuteness and wisdom of the court that makes use of that guide". However, carelessness is not the real basis of negligence. The real basis is behaviour which should be recognized as involving unreasonable danger to others. When the mythical "reasonably prudent" person could have foreseen harm from either action or inaction in a particular circumstance, the consequent accident or injury is negligence because i t resulted from a disregard of what could have been foreseen or anticipated. ,. Negligence involves the concept of risk. It is negligence when one acts unreasonably in f a i l i n g to guard against a risk which he should have appreciated. The concept of risk involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may follow. A risk i s a danger which i s apparent, or should be apparent, to one in the position of the actor. The culpability of the actor's conduct must be judged in the light of the possibilities apparent to him at the time, and not by looking backward "with the wisdom 1 born of the event". 1. Prosser, W.L., Handbook on the Law of Torts, p. 149. 32 Before allowing a student to participate in any activity* the teacher should assess the degree of risk 1 involved. In Murray v. Board of Education of Be l l e v i l l e , a grade eight pupil was injured while erecting a pyramid i n a physical education class and f e l l and broke his wrist. He claimed damages on the ground of negligence, alleging that he was obliged to take part in the exercises which were i n t r i n s i c a l l y dangerous, and which were directed by a servant of the defendant Board who had not the necessary knowledge or s k i l l for such duties: that the Board had been negligent in employing such an instructor, in prescribing such exercises, and in f a i l i n g to take adequate precautions against accident. The case was dismissed because of the following reasons t 1. Adequate instruction was given. 2. The instructor took a l l care necessary in conduct and supervision. 3. The exercise was prescribed in the curriculum and was not unreasonably hazardous. 4. Children not physically f i t for them were not compelled to participate. 5. It was not unreasonable. 6. It was suited to the age, mental a b i l i t i e s and physical condition of the p l a i n t i f f . 1. Murray et a l v. Board of Education of the City of Bell e v i l l e (Ontario), (1943) O.W.N. 44, 1 D.L.I. 494. 33 7. The p l a i n t i f f was mentally alert and physically f i t to take part. He did so of his own free w i l l . Concerning the case, Justice Chevrier stated* "It was true that the principal of the school had said that pyramid forming and breaking was inherently dangerous, but this must be understood in the light of everyday experience and common sense, and the Court, s i t t i n g as a jury, could take notice that there was an element of danger in a l l sports, even the less dangerous ones, but that at the same time that element of danger could be reduced to a minimum when the participants observed the rules of the game, and played with reasonable prudence and care after having, in proper cases, been progressively trained and coached. His lordship found as a fact that the infant p l a i n t i f f had been reasonably trained and coached i n the performance of this exercise". In determining negligence, the standard is one of conduct, rather than of consequences. It i s not sufficient that after the event one could see that there was a great risk Involved i f this risk was not apparent when,the conduct occurred. The law does not expect that one should have foreseen the speciflo accident that occurred. In other words, the c r i t i c a l legal question is whether i n the ordinary exercise of prudence and foresight, one should have anticipated danger under the circumstances. If the answer i s "yes" to this criterion, then negligence w i l l have occurred, since one oould have anticipated -trouble but failed to take preventative action. To determine the nature of the risk, the court must put i t s e l f In the actor's place. However, the standard 34 Imposed is determined by what society demands of the individual, and thus i s an external one. The individual cannot base this standard upon his own notions of what Is proper. He may be absolved from moral blame due to an honest blunder, or a mistaken belief that no danger w i l l result, but the harm to others i s s t i l l as great, and the actor's individual standards must give way to those of the society. The conduct, to be negligent, in the light of recognizable risk, must be unreasonable. Of course, nearly a l l human acts, carry some recognizable but remote possibility of harm to another. However, those risks against which the actor i s required to take precautions are those which society in general, considers sufficiently great to demand them. The standard of conduct which i s the fundamental basis of the law of negligence i s determined by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest which the actor i s seeking to protect. As a result, i t i s d i f f i c u l t to reduce negligence to any definite rules: i t i s "relative to the need and the occasion". Consequently, conduct which would be proper under some circumstances becomes negligence under others. Whether a person i s or i s not negligent depends upon the specific facts of the case in question. 35 Not every accident can or w i l l result i n a law suit. Elements of Cause of Action For a cause of action to exist founded upon negligence, from which l i a b i l i t y w i l l follow, more than conduct i s examined. The elements necessary for a successful action 1 for negligence have been summarized by Prosser as followst 1. There must exist a legal duty for a person to maintain a standard of conduct for the protection of others against hazardous risks. The duty must be directly to the p l a i n t i f f involved. The prevailing view is that there can be no duty towards someone for whom no duty can be reasonably foreseen. ... :... 2 As Judge Haultain stated i n Smith v. C.P.B. t, "Negligence consists in omitting to do something which ought to be done. If there i s no duty to take care, there i s no negligence in the legal sense of that word". These duties are imposed upon a person by both statute and common law. For example, statute law requires that School Boards keep buildings and equipment in good repair and common law requires that Boards and teachers as occupiers of property take certain precautions for the safety of the persons who use that property. 2. The defendant must f a l l to conform to the standard of conduct required and a failure to exercise due care. 36 These two elements make up what the courts have usually called negligence; hut the term negligence Is quite frequently applied to the second element alone. Thus i t could be said that the defendant was negligent, but was not liable because he was under no duty to the p l a i n t i f f . 3. There must be a direct relationship between the actions of the defendant and the harm suffered by the p l a i n t i f f . In legal terminology this i s known as "legal cause" or "proximate cause". 4 . Actual loss or damage resulting to the interests of another. Prom the analysis of these factors, i t can be seen that negligence in the law i s not necessarily based on mere carelessness, but on conduct or behaviour which should be recognized by the person acting as involving unreasonable risk or danger to others. A negligent action may involve ignorance, forgetfulness or stupidity, but i t may also be found where the person acting has taken careful consideration of the consequences of his intended act and has acted in conformity with his best judgement, i f that Judgement i s not in accord with the judgement a reasonably prudent person in the same position would have exercised. But what i s Involved in the concept of duty? Perhaps i t can be best described as an obligation which the courts w i l l recognize and enforce, arising out of the relationship between the parties involved in the lawsuit in question. 37 The duty, i f owed, must be owed to this p l a i n t i f f , i t must he personal; In a sense directly to the injured party. In 1 the opinion of Lord Esher: "The question of l i a b i l i t y for negligence cannot arise at a l l u n t i l i t has been established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence.... A man is entitled to be as negligent as he pleases to the whole world i f he owes no duty to them". To determine whether there was a breach of duty, the defendant's actual conduct is measured against the legal standard of the reasonable person to determine whether the defendant, by his conduct exposed the p l a i n t i f f to an unreasonable ri s k of harm. The teacher, automatically in law, owes a duty of care to his pupils. This i s due to the fact that children are bound by law to go to school and in being so bound, they look to the teacher for their protection In place of the parents. Thus, the teacher i s charged with being a prudent or careful parent of a very large family. The definition of a reasonably prudent person i s not that of an average man, but rather an ideal, imaginary man. However, there i s no convenient person to whom one opuld point to as the "reasonable man". In actuality, as described tongue-in-cheek, by A.P. Herbert, he is considerably 2 more than the reasonably prudent manj "The Reasonable Man Is an Ideal, a standard, the 1. Le Llevre v. Gould. Q.B. 491, at 497 (1893). 2. Herbert, A.P., Misleading Cases in the Common Law, Methuen and Co., London, 1928, p. 9. 38 embodiment of a l l those qualities which we demand of the good citizen The Reasonable Man is always thinking of othersi prudence is his guide and "Safety F i r s t " Is his rule of life....He i s one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or bound} who neither star-gazes nor is lost in meditation when approaching trap-doors on the margin of a dockt and w i l l inform himself of the history and habits of a dog before administering a caress... .who never from one year's end to another makes an excessive demand upon his wife, his neighbours, his servants, his ox, or his asst who never swears, gambles, or loses his temper;...who uses nothing except in moderation, and even while he flogs his child is meditating only on the golden mean. Devoid in short of any human weakness, with not one single saving vioe....as careful for his own safety as he i s for that of others, this excellent character....is fed and kept alive by...the common jury. He has gained in power with every case in which he has figured". The abstract and hypothetical character of. this mythical person has been highly emphasized by the courts. He i s a prudent and careful man, who i s always up to standard and should not be identified with any ordinary individual who might occa sionally do unreasonable things. The reasonably prudent person's characteristics are exactly the same as the actor - same sex, eyesight, hearing etc.. For example, a blind man's conduct is only expected to meet the standard of reasonable conduct of a>blind person. Similarly, i f he is deaf or has only one leg, his conduct is judged with these d i s a b i l i t i e s in mind. In the case of children and old aged persons a special standard of mental capacity i s applied based upon what is reasonable to expect from an Individual of similar age, intelligence 39 and experience. It Is imperative for the physical eduoatlon teacher or coach to assess the competency of the student to partake In a specific activity. The student must have adequate knowledge of the rules and mechanios of the sport before he should be allowed to participate. A teacher or coach may be liable for injuries whenever he permits a pupil to venture Into an activity beyond his physical capabilities. Thus, from this i t follows that i f one Is not qualified to act within a specific area, one should not attempt to do so. If the teacher cannot meet the standard of care required for teaching gymnastics, then he should not teach gymnastics; he should not coach a sport i f he cannot meet the standard of care for coaching; he should not accept a playground supervisory position i f he cannot meet that standard of care. Due to one's professional experience or education, a somewhat higher standard of conduct may be required. Such a person not only must exercise reasonable care in what he does, but he is also assumed to have special knowledge and a b i l i t y . For example, the physical educator is held to possess special knowledge and s k i l l in administering his class. When setting up a physical education program, the teacher should give consideration to the general character of the proposed activity. At this stage the "careful parent" 4o rule might be formulated in the following terms« "Would a careful parent, aware of the reasonably foreseeable hazards, willingly permit his child's participation?" The physical education teacher should not forget, however, that the "careful parent" i s an a r t i f i c i a l concept in law. A judge or jury w i l l sometimes tend to favour a decision which w i l l benefit the injured student, because of sympathy. Thus, i t would be safe to presume that the standard for the "careful parent" in law i s somewhat higher than the standard of the average parent with which one might be acquainted. There i s probably no great element of risk, i f the general character of the activity is not too different from those in which children habitually participate. The teacher must take into account factors such as age, capabilities, etc., i f the acti v i t i e s are unusual, and by analogy to more usual a c t i v i t i e s , decide whether the activity f a l l s within the range which the careful parent would sanction. Standing in the place of a parent and acting like a careful father i s indeed a very heavy responsibility. 1 Halsbury's collection of English common law statest 4 "The practice of a profession, art or calling which from i t s nature demands some special s k i l l , a b i l i t y or experience, carries with i t a duty to exercise to a reasonable extent, the amount of s k i l l , a b i l i t y , and experience which i t demands." Halsbury*s Laws of England. 3rd Ed., Butterworth & Co., London, 1954, p. 512. Judge Woods, in the appeal case of McKay et a l v. Board 1 of Govan School Trustees (Saskatchewan) , stated that the above general statement was subject to some qualification and limitations. He emphasized that there i s in the law, a standard governing those who are carrying out duties requiring special s k i l l , a b i l i t y and experience. However, "a physical training instructor should bring to his task and responsibility s k i l l , a b i l i t y and experience reasonable under the circumstanoes BUT not necessarily equivalent to that possessed by experts". ; How then, does one decide whether he has met the standards of the mythical "reasonably prudent person"? The standard which the law has evolved Is easier to state than to apply. One i s considered negligent i f one could anticipate the occurrence of an accident, and, then failed to act in terms of such anticipation. The important point i s not that one should have anticipated the specific injury or accident that did occur, so long as some , accident might have been foreseen under the circumstances. Thus, i t i s negligent not to take action to avoid such foreseeable dangers, where under the circumstances i t would be reasonable to anticipate such d i f f i c u l t i e s . Normally the problem is that the individual failed to exercise sufficient foresight to expect danger, rather than ignored a danger of which he was aware of,. The issue 1. McKay et a l v. Board of Govan School Trustees (Saskatchewan), (1967) 62 D.L.R. 503-42 is not: Did he foresee i t ? But, should he have foreseen i t ? Negligence, being defined as the failure to act as a reasonably prudent person would under the circumstances, involves another essential concept! "under the circumstances". Under one set of circumstances It may be reasonably prudent for a person to act In one way, but under a different set of circumstances his actions might be considered negligent. For example, i f a student has a hidden or latent illness, and the teacher has no means of suspecting i t , then failure to act in accordance with i t i s not negligence. In a free-play game, ordinary prudence might not require s t r i c t refereeing, but in a competitive game i t may be negligent not to. A case related to the above, concerning refereeing, • -1 was that of Gard v. Board of School Trustees of Duncan , in which a young boy was injured in a grasshockey game while the teacher was absent at a staff meeting. The boys had practically no instruction in the game. The pl a i n t i f f was injured by another boy, whose breach of the rules of the game caused his stick to i n f l i c t Injury. It was found that had the teacher been present, she could have stopped the play before the damage was done. As a result, the t r i a l judge held the teacher negligent. , On appeal, i t was held that the mere absence of the 1. Gard v. Board of School Trustees of Duncan (British Columbia), (1946) 1 D.L.R. 352| (1945) 3 W.W.R. 485, appealed and reversed (1946) 2 D.L.R. 44l . 43 supervisor was not necessarily negligence unless i t could be shown that supervision would have prevented the injury. In this case, the action was dismissed because the injuries sustained were due to the normal hazards of the game. It was held by Judge Robertson that: "Absence of a supervisor is not necessarily negligent behaviour and stated that, *In my opinion to hold otherwise would be to lay down a standard of conduct which must be pronounced much too exacting*". It must also be remembered that under the circumstances, there must be a duty toward a person that Is disregarded. For example, If a teacher were to see a stranger attempting to jump, or in the act of jumping off a bridge, there would be no obligation for the teacher to prevent the Jump, nor would the teacher be negligent for not intervening. However, the situation is different i f a school pupil were to attempt such a Jump during sohool hours, and the teacher failed to prevent i t . In this case, the teacher owes a duty to the pupil. The teacher is in loco.parentis in relation to the pupil. This means that the teacher stands in the position of a parent, as unofficial guardian. This common law principle was laid down by Lord Esher in Williams v. Eady (1893) 10 TLR 4 l p. 42 where he said: "As to the law on the subject there can be no doubt» and i t was correctly laid down by the learned judge, that the schoolmaster was bound to take such care of his boys, as a careful father would take care of his boys, and there could not be a better definition of the duty of a schoolmaster". 44 The teacher's duties and rights may be even greater than those of the parent, as a result of this relationship. 1 Lelbee states: "One is not under a legal duty to go to the aid of another unless there i s some definite relationship between the parties that is regarded as imposing a duty to act, or unless he i s at some way at fault i n causing the other's injury". Relationships that require the rendering of assistance are those such as father or mother to child, husband or wife to spouse, doctor to patient etc.. It i s obvious that there is a relationship between student and teacher. If a person begins or attempts to render aid he oan be held lia b l e for his negligence. If he prevents or interferes, directly or indirectly, with someone rendering aid, he can also be held negligent. Examples of Acts Which May be Considered Negligence on the 2 Part of the Teacheri 1. Does not exercise reasonable degree of care. 2. Performs an act improperly. 3. Does not provide supervision that i s adequate in quality and quantity. 4. Does not make sufficient preparation to prevent harm to pupils prior to their entering into certain 1. Leibee, H.C., Tort L i a b i l i t y for Injuries to Pupils. Ann Arbor. Campus Publishers, 1965, p. 25. 2. Ibid, p., 17. ^5 a c t i v i t i e s which require this preparation. 5. Permits pupils to use defective equipment. (Manitoba has a Statute protecting the teacher in this areas the teacher and/or School Board must know of the defect before they can be held liable.) 6. Pails to Inspect and repair or have repaired, equipment. 7. Conducts an activity in an unsafe and/pr dangerous area. 8. Permits pupils to engage in highly competitive and/or rough activities without adequate knowledge of the health status of each pupil. 9. Permits pupils who are not competent to use dangerous instrumentalities or to participate in act i v i t i e s requiring a high level of s k i l l . 10. Permits pupils to participate in an activity -generally authorized - but one in which they have not been properly instructed, 11. Knowingly assigns an Individual to perform in an area in which the assignee's incompetence i s known by the assignor^ 12. Neglects a duty to look out for pupils who by reason of incapacity or abnormality (known) might cause harm to others. 13. Neglects a duty to look out for pupils who may be in a danger area and/or f a i l s to give adequate warning in such danger. 46 14. Pails to perform proper act in case of injury, or, diagnoses and/or treats an injury. Leibee has also elaborated on what might be considered 1 a reasonably prudent and careful physical educator* 1. If he has his students engage in highly competitive and/or rough a c t i v i t i e s , he should find out the health status of his students or players. 2. After a student has had a serious illness or injury, participation should be prohibited u n t i l medical approval has been obtained. 3. Regular checking of a l l class and personal equipment should become a habit. 4 . No defective equipment should be used, at any time. 5. Activities should be conducted in a safe area. 6. The teacher should foresee possible Injury in certain activities and take steps to prevent i t . 7. He should analyze his teaching and coaching methods for the safety of the students and players. 8. Only qualified personnel should conduct or supervise an activity. 9. The activity should be kept within the a b i l i t y of the students. 10. In the case of an injury, the proper steps should be performed. (1) renders f i r s t aid. (2) summons medical attention. (However, a 1. Ibid. p. 76. 47 responsible student should be sent If the teacher Is unable to leave the scene entirely In order to summon a/doctor. In this case, the student should be given very specific instructions as to what to do.) (3) Removes the injured to medical attention. (Depending on the circumstances one or a l l of the above may be required to render sufficient aid.) 11. The teacher should not diagnose or treat an injury that needs medical attention. (At no time should he try to act in the capacity of a doctor). 12. Before a student i s to engage in an activity he should be adequately instructed. 13. In act i v i t i e s that require protective equipment, no student should participate without i t . 14. A record should be kept of a l l accidents that occur and what steps the teacher took in handling the situation. The Importance of supervision and control cannot be 1 stressed too much. Dunbar , has drawn up ten points which should be kept in mind to assist teachers and administrators in planning a t r i p away from school: 1. Plan a l l phases of the activity thoroughly. 2. Request approval of the t r i p from proper authorities In writing, and keep written approval on f i l e . 1. Dunbar, P.L., Out to Learn. Saskatchewan Department of Education Manual. 1973. P. 28. 48 3. Notify a parent In a written statement, of the destination, planned a c t i v i t i e s , time (departure and return), mode of transportation, necessary expenditures, and reasonable foreseeable risks involved. 4 . Secure parental permission s l i p s . 5. Make a personal previslt to inspect the f a c i l i t i e s , i f possible. 6. Determine what adult-student ratio would best provide adequate supervision and safety. 7. Provide each student with a set of rules for safety and conduct, and discuss them thoroughly. 8. If the students are young (elementary school or kindergarten), assign a partner to each. 9. Check students at each boarding and departure, and periodically during the activity. 10. Enlist the co-operation of one or several parents whom the teacher in charge can notify in event of any delay enroute. Parents should be notified of this service and encouraged to phone i f enquiries are deemed necessary. The content of the physical education program and i t s demands on the student's physical a b i l i t i e s have been the issue i n a number of court cases. The courts have allowed a finding of negligence i n their classification of certain 49 physical education requirements as being dangerous to pupils. The oonsequences of such court decisions have great impact on the physical education teacher. Teachers and coaches who do not provide adequate instruction to their pupils and permit them to engage In acti v i t i e s that are beyond their a b i l i t y to perform safely may be 1 committing an act of negligence. As Hemmleln states: "It i s readily understood that no physical education teacher or coach would intentionally injure a pupil. But the physical education teacher who does not instruct a pupil as to the proper method of using a dangerous apparatus in the gymnasium has omitted a specific legal duty, and i f harm ensues, i s liable for tort through negligence". Coaches and teachers often mismatch students of unequal stature, maturity, knowledge and strength, in their desire to stimulate competition. These combined characteristics are sometimes d i f f i c u l t to appraise. However, conspicuous disparities should be readily determined by the competent coach or teacher. If Injury i s produced by an improper degree of disparity, negligence w i l l be chargeable on the basis of poor discretion. Theoretically, because of the assumed training of the coach or teacher, he i s expected to reasonably anticipate the dangers of mismatching. Negligence in Supervision Since the teacher assumes the responsibility of a reasonable and prudent parent, aconcern that comes to 1. Remmlein, K., Sohool Law. I l l i n o i s : Interstate Printers, 1962. 50 mind i s - what i s considered adequate supervision? Judicially stated, " i t involves at least some keeping of order, some stopping of fights, some general protection 1 of the child against damages that are to be apprehended". Generally, sufficient supervision has been accepted by the 2 courts as consisting of the followingi 1. Discipline was good. 2. Pupils were carrying on In an orderly fashion. 3. Rules had been formulated for the guidance of pupils. 4. The teacher was competent. 5. The teacher was present. 6. Practices had been adopted generally. 7. Practices had been followed successfully in the past. However, the courts recognize that accidents w i l l happen even during properly conducted physical education a c t i v i t i e s . ,  In order to get a better understanding of what i s considered negligence by the courts concerning the omission or commission of acts by teachers, unsuccessful actions on the part of the p l a i n t i f f s w i l l be dealt with f i r s t . Unsuccessful Actions In Hall et a l v. Thompson et a l . a young boy was injured 1. E l l i s and E l l i s v. Board of Trustees of Moose Jaw Public  School D i s t r i c t . (Saskatchewan). (1946) 2 D.L.R. 697 (C.A.)i 2 W.W.R. 19 affirming 1 W.W.R. 199. 2. Lamb, R.L., Legal L i a b i l i t y of School Boards and Teaohers  for School Accidents, p. 30. 51 1 in a wrestling contest. The boys were not compelled to wrestle and the teacher merely agreed to supervise. It was held that the action of the boys was supervised, that the wrestling was not compulsory, and that i t was not sufficiently dangerous to warrant previous instruction in the sport. Concerning the danger involved in the activity. Judge Treleaven statedt "No evidence of any kind was submitted to support the claim that wrestling i s inherently dangerous and no authorities were submitted to me, nor can I find any, to support the proposition; It may, of course, be true that in a l l games or contests of s k i l l involving the testing and development of physical strength accidents w i l l happen, but i t does not follow in my opinion that they should therefore be classed as inherently dangerous". 2 The case of Levlne v. Toronto Board of Education , involved a young boy who was injured in an athletic meet, but did not report the Injury or seek help. An action for damages was brought against the Board five years later, on the grounds that the Board was not authorized to hold athletic meets. However, the Public Authorities Act protected the Board in that the Act stipulated that action must be brought within six months after the Injury. The authority of the Board to conduct athletic meets was emphasized by the court in stating* "It i s the duty of the Board of Education to ; 1. Hall et a l v. Thompson et a l (Ontario), (1952) 4 D.L.R. 139 .(C.A.).i O.W.N. 4?b. 2. Levlne v. Toronto Board of Education (Ontario), (1933) O.W.N. 152; O.W.N. 238 (C.A.). 52 maintain schools for the education of children. Education includes exercise of the body as well as of the mind...If a Board i s of the opinion that in the interests of the children games should be arranged, It would be the duty of the Board to arrange such games". The issue of lack of supervision was defeated in 1 Scoffleld et a l v. Public School Board of North York . In this case, a young schoolgirl was injured while tobogganing on a h i l l owned by the defendant School Board and used by the children as a playground. The h i l l sloped towards a river and the child was Injured when the toboggan struck the ice. The principal had required the children using the h i l l as a slide to have their,parents* consent. There was supervision at a l l times during recesses, but apparently not at the time of the accident, at 8»45 a.m. when by the Regulations a l l teachers were required to be in their classrooms. It was established that supervision would not have prevented the accident. Also, there had not been an accident on the slide in twelve years. f Another case that involved the school hours In which supervision must be given was that of Koch v. Stone Farm 2 School District (Saskatchewan). A pupil janitor was Injured when he jumped o f f a woodshed. The accident occurred 1. Scoffleld et a l v. Public School Board of North York (Ontario), (1942) O.W.N. 457 (C.A.). ; 2. Koch v. Stone Farm School District (Saskatchewan), (1940) 2 D.L.R. 602; 1 W.W.R. 4*1, 53 In the morning before school had started. The court ruled that the injury was due to the p l a i n t i f f ' s own w i l l f u l mldconduct. Also, statutes did not impose a duty on the teachers to supervise the play of the older pupils before they report themselves to the teacher In the morning. 1 In Bolvin v. Glenavon School District (Saskatchewan) , on appeal, a decision that had previously been given against the School Board for damages was quashed. Shortly after arriving at school before 1 p.m. a g i r l was injured in a school basement playroom. The b e l l rang while she was swinging on a horizontal ladder and she broke her arm in a four foot f a l l .to the floor whioh was not covered with mats. The Board stressed, in defense, that in twelve years there had been two injuries on the ladder and no claims. The evidence did not clearly establish that the absence of mats rendered the ladder dangerous, or that the p l a i n t i f f would not have been injured i f mats had been provided. To ensure that students are properly supervised, numerous regulations are put forth by Departments of Education. The regulations sometimes can prevent proper supervision. A case in point i s that set out by the Manitoba School Act. Regulation 70 states that the principal is responsible during school hours for the 1. Bolvin v. Glenavon School D i s t r i c t . (1937) 2 W.W.R. 170 (Saskatchewan C.A.). 54 supervision of the accommodations and playgrounds. According to regulation 72, every teacher must be in his place in the school at least 10 minutes before the opening of the forenoon and 10 minutes before the opening of the afternoon, unless unusual circumstances prevent this. However, regulation 44 states that school hours shall be from nine o'clock in the forenoon u n t i l four o'clock in the afternoon. Thus, i f this Is applied to regulation 72, then i t might be interpreted that no supervision Is necessary before nine o'clock In the morning or after four o'clock in the afternoon. This poses a real dilemma for a teacher concerning what i s required for adequate supervision. The above indicates that there i s a need for reassessment of the School Act to r i d i t of such ambiguities. Regardless of which province a physical educator teaches in, he or she should take the time to read the School Act in the province in order to be aware of such problems. In summary, lack of supervision i t s e l f i s not sufficient to support a charge against teachers and Boards. The crucial point i s that i t must be shown that lack of supervision was the cause of the injury before an action w i l l be successful. Thus, a causal relationship must be shown to exist between the action of the defendant and the injury sustained by the p l a i n t i f f before l i a b i l i t y for 55 negligence w i l l attach. Cases in which the Teacher Was Found Negligent To indicate the circumstances In which the Courts have held a physical education teacher negligent, a review of such cases i s In order. The situations involved in each case should further c l a r i f y practices that the Courts consider negligent. 1 Concerning supervision, Charlesworth on Negligence at p. 452 states t "A schoolmaster Is under a duty to exercise supervision over his pupils when they are on the school premises, either in the school room or the playground. The amount of supervision required depends on the age of the pupils and what they are doing at the material time. During the hours of instruction, a greater degree of supervision i s required than during hours of recreation. When normal healthy children of school age are in the playground, i t is not necessary that they should be under continuous supervision, even i f some of the children are only six years old". 2 Judge Hilbery, in Rawsthorne v. Ottley (1937) states. "In my view i t i s not the law, and never has been the law, that a schoolmaster should keep boys under supervision during every moment of their lives". 3 Judge Trucker in Rloketts v. Erlth Borough Council , (1943) states 1 "I find i t impossible to hold that i t was incumbent 1. Cited in; Adams v. Board of School Commissioners for Halifax (1951), 2 D.L.R. 8 l 6 . ~ ~ 2* Bawsthome v. Ottley (1937). 3 A l l E.R. 902 at p. 905. 3. giofcQtts^v. Erlth Borough Council (1943), 2 A l l E.R. 56 to have a teacher even tender as were the years of these children and bearing in mind the locality of this school, continuously present In the yard throughout the whole of this breakj and nothing short of that would suffice. Unless that i s their duty, nothing less i s any good because small children, or any child, can get up to mischief i f the parent's or teacher's back i s turned for a short period of time. I think the evidence in this case shows that the system which.prevailed at this school, and that the degree of supervision that was exercised, was in fact reasonably sufficient and adequate, having regard to a l l the circumstances of the case". 1 Justice Goddard, in Camkln v. Bishop, (19^1) statest "If this means anything, i t must mean that i t is the duty of a headmaster to see that boys are always under supervision, not only while at work but also at play, or when they are free because at any time they may get into mischief. I should like to hear the views of the boys themselves on this proposition". These statements would, however, have more impact i f they were read in the light of the circumstances of the actual cases, but from the few sentences stated, one is able to grasp the underlying meaning. It is not necessary to have constant supervision for every minute that the child is at school. If such was the case, i t would seriously c u r t a i l a child's freedom to explore and experience on his own. The responsibility for supervision must not be permitted to become too s t r i c t or severe, since i t would lead to an unreasonable curtailment of physical education a c t i v i t i e s . A general or reasonable degree of supervision 1. Camkln v. Bishop. (19^1) 2 A l l E.R. 715. 57 i s generally recognized by the Courts as sufficient. The adequacy of supervision then, depends on the circumstances of each case, governed by the general standards of reasonableness. 1 In Brost v. T l l l e y School District (Alberta) , the original decision was reversed in the appeal and the Board and principal were found negligent. At recess, a six year old g i r l f e l l from a swing in the school grounds. No evidence was given of the provision of supervision. The teacher handbook was concerned with discipline supervision rather than safety supervision. In the case of Toronto Board of Education and Hunt v. 2 Hlggs (Ontario) , a boy was injured by another;during school recess. The injury was aggravated by the teacher ordering the boy Into line and Into class. The court found l i a b i l i t y in the failure to have sufficient teachers on duty. During the school recess period the Infant p l a i n t i f f was injured when another pupil l i f t e d him off his feet and carried him over to a rink where he was dropped on the ice. None of the four teachers who were supervising the recess saw the incident. One of the teachers was called over to the injured pupil, but the boy refused help. Another teacher ordered him into line and into class 1. Brost v. T l l l e y School District (Alberta), (1955) 15 W.W.R. 241, (C.A.). 2. Toronto Board of Education and Hunt v. Hlggs. (i960) S.C.R. 58 although he was limping and complaining. A nurse saw him and he was then sent home. The i n i t i a l Injury was found to have been a hip hone displacement which was aggravated when the boy tried to walk. The action alleged negligence in« (1) failure to provide adequate supervision; (2) permitting rough play which the teacher knew or ought to have known would cause injury; and (3) failure to intervene when they saw or ought to have seen that the rough play was li k e l y to,cause serious injury. In the t r i a l , l i a b i l i t y for the i n i t i a l injury was treated separately from l i a b i l i t y for the aggravation. The jury found that the i n i t i a l injury was the result of the failure of the defendants to supervise the activities of the pupils because there was not a sufficient number of teachers on duty, in view of the winter conditions, the number and ages of the children and the fact that ice being on such a large area would limit the access of the teachers to the scene of the accident. On the second issue of the case, the jury found the injury had been aggravated by the negligence of the teacher. The case was appealed and the appeal,was allowed in part by dismissing the clltim for the i n i t i a l injury. Concerning the i n i t i a l injury, none of the failure found was concerned with inadequate supervision of the rough boy or failure to see him carry the injured boy over to the ice. The school principal alone, had the authority 59 to control the supervision of the pupils. The jury raised the question whether the system of supervision was adequate for the break period. The principal had employed the system in question for several years, and, in the absence of proof to the contrary, he had no reason to believe that considering the number and ages of the children and that the circumstances were not particularly unusual on that day, the system was not a reasonably safe one. The Judge statedi "Even on the view that the jury's answers Included a finding of 'inadequate supervision', i t i s not the duty of the school authorities to keep pupils under supervision every moment they are in attendance at school". On the issue of aggravation of injury, the jury found negligence on the part of two teachers in regard to the requirements of "assiduous attention" as stated in the Public School Act of Ontario, section 180 (g). This section of the act imposes a duty of every teacher "to give a ssiduous attention to the health and comfort of the pupils". The jury concluded that the School Board must bear the responsibility for the teacher's actions. In a I968 Supreme Court of Canada case, McKay et a l  v. Board of Govan School Unit , the Judgement of the t r i a l court was allowed and the award of damages of #183,900 was restored. The principal and staff of the high school decided 1. McKay et a l v. Board of Govan School Unit No; 29 et a l (Saskatchewan), (1968), 64 W.W.R. 513. ' 60 that the school should put on a variety night which was to Include a gymnastics display. The physical education teacher was delegated or undertook to be the organizer of the display. On one of the practice days prior to the performance, the pl a i n t i f f was working on the parallel bars. He suddenly slipped from the bars and suffered a vertebra dislocation, becoming a paraplegic. The jury found the School Unit negligent on the following countst 1. Lack of a competent teacher. 2. Insufficient spotters, 3. Insufficient demonstration. 4. Insufficient safety precautions. 5. Progression was too rushed. 6. Lack of a qualified coach. Originally the action was brought against both the School Board and the teacher but the action against the teacher was dismissed not • teoauae.. lie; was protected by the maxim "respondeat superior" but because he was protected by a statutory provision. Section 242 of the Saskatchewan School Act statest " 242. (1) Where the board, the principal or the teacher approves or sponsors acti v i t i e s during the school hours or at other times, the teacher responsible for the conduct of the pupils shall not be liable for damage caused by pupils to property or for personal injury suffered by pupils during such a c t i v i t i e s " . 61 In a number of oases in Saskatchewan, this section of the School Act has provided the basis for having teachers withdrawn as a defendant In action initiated by a parent or someone else on-the p l a i n t i f f * s behalf. In the McKay case, It was contended that the physical education teacher could not be the source of vicarious # l i a b i l i t y to his employer i f he was relieved of l i a b i l i t y . The section of the School Act refers to the Board, the principal and the teacher, but exempts only the teacher. The Saskatchewan teacher i s given a wide degree of immunity from personal financial responsibility for school accidents. Section 242 of The School Act does not relieve a teacher from being found negligent or responsible for an accident. It does, however, prevent a court from levying damages against him. If a pupil Is injured as the result of a teacher's negligence, the immunity of the teacher does not necessarily mean that a pupil has no remedy at law. The School Board, as employer of the teacher, may be held liable for the damages. A recent case that tested this section of the Saskatchewan School Act was that of Wlebe v. The Board of  Education of the Saskatoon School District #13 of * An employer is liable to compensate persons for harm caused by his employee In the course of his employment. 62 Saskatchewan and Mar.jorle Cattell (Teacher) of the City of 1 Saskatoon (1973) » (Appendix C). In this case," as In the McKay case, the action against the teacher was dismissed as per Section 242 of The School Act, and the Board of Education became the sole defendant. No appeal was launched on this dismissal. The provision of Section 242 (1) of The School Act i s considered law in the province of Saskatchewan i n such matters. The lawyers for the School Board stated. "We feel that i t i s very Important news to the teacher that they cannot be sued any more or in any event that there is a judicial pronouncement that as long as they act in the course of their employment an application for negligence and similar torts w i l l be dismissed by the.Courts unless 2 i t i s taken to a higher Court and reversed". The teachers in the previous Saskatchewan cases were protected by a statutory shield. However, do teachers In other provinoes have any suoh shields for protection? In Manitoba, three sections of the Public Schools Act 3 relate to this question. 1. Wlebe v. The Board of Education of the Saskatoon School  District #13 of Saskatchewan and Mar.1orle Cattell (Teacher) of the City of Saskatoon (1973). Cited in a letter from M.M. Lofstrom, Executive Assistant, Saskatchewan Teacher's Federation, November 8, 1974. 2. Ibid. 3. The Public Schools Act (Manitoba) 1954, c. 215, s. 75 cited in Pindera, W.J., " L i a b i l i t y Protection for Teachers in Manitoba". Unpublished Paper, November, I969. 63 1. "Neither the School District of Winnipeg No. 1 nor i t s trustees, servants, or agents, nor any of them shall be deemed to be guilty of negligence solely by reason of the fact that a pupil who is required to wear eye-glasses i s permitted to take part in physical training, physical culture, gymnastic exercises, or d r i l l , or to participate in any play or game carried on in connection with school a c t i v i t i e s " . No negligence can be held under this section i f Injury results solely because the pupil wears eye glasses. The teacher is not shielded from a l l l i a b i l i t y , but the above section does offer protection to a teacher should an accident result from the wearing of eye-glasses. This is significant for the physical education teacher, since the wearing of eye-glasses in certain ac t i v i t i e s could increase the possibility of accident from f a l l s , bumping into other students such as In contact sports, being hit by equipment or being hit by fellow students. 2. 277. (1) "Where injury or death is caused to a pupil enrolled in or attending a public school, (a) during, or as a result of, a course of instruction carried on within the schools or (b) during or as a result of physical training, physical culture, gymnastic exercises, or 64 d r i l l , carried on in connection with the school a c t i v i t i e s ! or (c) before or after school hours, or during recess upon the school grounds or in the school house of the school d i s t r i c t ! no cause of action shall accrue to the pupil or to any other person for any loss or damage suffered by reason of the bodily injury or death, against the school d i s t r i c t or any servant or agent thereof or any trustee or the d i s t r i c t unless i t is shown that the injury or  death was caused by the negligence of the school  d i s t r i c t or any of i t s servants or agents or any  one or more of the trustees". Defective apparatus must be known to the school d i s t r i c t before l i a b i l i t y attaches in any ease* 27?. (2) "Where the bodily injury or death of a pupil referred to in subsection (1) i s caused by defective and dangerous apparatus supplied by the school d i s t r i c t for the use of the pupil, the d i s t r i c t and i t s servants and agents and the trustees shall be deemed not to have been guilty of negligence or misconduct unless i t i s shown that the d i s t r i c t or one or more of i t s servants or agents thereof or the trustees had  actual knowledge of the defect i n . or the 65 dangerous nature of, the apparatus and failed to remedy or replace the apparatus within a reasonable time after acquiring the knowledge". Subsection 277 (1) indioates that before an action arising out of negligence can be successful, there must be proof that the negligent action was the cause of the Injury. Subsection 277 (2) prohibits actions arising out of injuries resulting from defective or dangerous apparatus. This section has not yet been tested in,the courts as there has to date been no actions for damages arising out of an Injury caused by defective or dangerous equipment. A very limited measure of protection is offered by the statutes. The master-servant relationship does not offer t o t a l protection for the teacher for his negligent acts. It is true that the master is responsible for the acts of his servant performed within the scope of his employment, but the courts have found both teacher and Board guilty of negligence and cost of damages were 1 apportioned. Salmond on the Law of Torts statesi "It would seem clear on principle that in a l l cases of true vicarious l i a b i l i t y the person held vicariously liable for the tort of another should have a right of indemnity as against that other. Thus, a master who has paid for the negligence of his servant should 1. Lamb, R.L., p. 57* 66 1 be able to sue the servant for indemnity". 2 The case of Blsson v. Corporation of Powell River , does not concern the school environment per se, but i t does have implications for the physical education teacher. A number of schools have added swimming pools to their f a c i l i t i e s , and as a result swimming programs have been incorporated into the physical education classes. Also, community recreation programs often include hiking or camping. Undoubtedly, swimming could be involved here. In the case in question, the p l a i n t i f f suffered severe neck injuries when he dove from a five-metre diving platform owned and maintained by the defendant corporation. There were no danger signs to warn the swimmers of the depth of the water under the r a f t . The p l a i n t i f f , a 22 year-old lifeguard and swimming instructor had experience In swimming and diving In salt water on previous occasions, but had never visited the defendant's recreational area before. As a result of neck injuries sustained in diving from the raft, the p l a i n t i f f was paralyzed from his neck down. The award, In the sum of $286,000 was particularly significant in that up to 1967 this was the largest award for damages for personal injuries ever given in a Canadian 1. Heuston, R.P.V., Salmond on the Law of Torts (11th Ed.), Londont Sweet and Maxwell Ltd., 1953. 2. Blsson v. Corporation of Powell River. (1967), 62 W.W.R. 707. 67 or English court. On appeal, the award was reduced to $230,698 plus special damages. It was held that the appeal must not be dismissed on the issue of l i a b i l i t y , but that the general damages must be reduced by $90,000. This case points out how serious the courts view an injury of this type due to negligence. If a physical education teacher administers a swimming program, he should exert extreme care for the safety of the students involved. In the school setting, supervision should not pose too much of a problem i f safety rules are established for the students to follow. The area that could lead to legal problems is in community recreation settings. Here, the teacher must be particularly cautious of the activ i t i e s he allows the students to participate i n . Above a l l , i f the teacher is not capable of administering l i f e saving techniques, then swimming should not be allowed on f i e l d trips or outings. Where swimming i s allowed, the teacher personally should check out the swimming area for submerged logs, rocks or debris as well as the depth of the water. Many schools are building swimming pools and swimming programs are becoming more and more popular. In this setting in particular, the physical education teacher should be qualified to teach swimming and be able to carry out lifesavlng techniques. If not, this should be l e f t out of the program. The more satisfactory solution would be to Invite a competent Individual to come to the school to 68 teach the course. When the students are using the pool f a c i l i t i e s , the teacher must provide the proper supervision, especially in regard to horseplay or running on the pool deck. An a r t i c l e of interest related to negligence in swimming, "The $150,000 Question", is included in the Appendix O. It indicates the type of questions which might he asked in a court case concerning a swimming accident. The 1975 case of Thornton v. Board of School Trustees 1 of School District No. 57 (Prince George) , broke a l l records as the highest personal award ever made in the British Commonwealth. An award of $1.5 million was made to a student whose neck was broken in gymnastics. As a result, the boy was rendered a quadrapleglc. The physical education teacher offered three choices of activity to the students - floor hockey, gymnastics or weight l i f t i n g . While these a c t i v i t i e s were taking place, the teacher was oocupled with f i l l i n g out the students' marks for report cards. The p l a i n t i f f and other boys were doing somersaults off a springboard onto foam chunks but were having problems doing the manoeuvre so as to land on their feet. In order to get enough l i f t from the springboard to complete the 1. Thornton v. Board of School Trustees of School District  No. 57 (Prince George), Supreme Court of British Columbia. January 23, 1975. 69 somersault, the boys got permission from the teacher to place a vaulting box at the low end of the springboard. The boys arranged a "configuration" consisting of a vaulting box, springboard, and foam rubber high jump pits. They proceeded to jump from the vaulting box to the springboard, and then somersault into the foam pit. In the process of the activity, one student jumped off the springboard and injured his wrist. Shortly afterwards, a second student, Thornton, sprang from the springboard, shot over the foam and hit his head, rendering himself a quadraplegic. In finding for the p l a i n t i f f , Justice Andrews stated« "The whole of the evidence leads me to find that these boys, possessing such limited expertise in gymnastics, had undoubtedly not progressed to the point where they could be trusted to somersault from this unpredictable, dangerous configuration. I do not suggest that each piece of equipment was "per se">dangerousi I am concerned with the "configuration". I think that Edamura should have taken care to instruct these boys on the use of the configuration. They had never used i t before. He should have given them some advice, some instruction, a word of caution, at least imposed some limits on what they could or could not do i n the circumstances. His attention to them was, in my opinion, casual". The preceding has serious implications for the physical education teacher. Supervision of a l l ac t i v i t i e s must be adequate at a l l times. However, another consideration here is that of allowing students to set up their own equipment, which i s a fundamentalpart of 1. Reasons For Judgement of the Honourable Mr. Justice Andrews, In the Supreme Court of British Columbia, January 23, 1975, p. 15. 70 Movement Education. Movement Education has grown in popularity over the last few years. Often students are encouraged to set up their own equipment, explore and be creative with various acti v i t i e s that can be improvised on different types of configurations. ,In view of the preceding case, teachers should try to be aware of potentially dangerous configurations in their movement education classes. Concerning the case, David Todd, Prince George 1 School District Superintendent stated* "I think this Is going to make quite an impact on the teaching of P.E. in the province. P.E. programs and any possible hazards in the program w i l l have teachers taking a very cautious approach". A significant factor i n the case was that the School Board's insurance policy covered only $1 million which was in line with policies held in other school d i s t r i c t s . The case i s apparently going to appeal, and i f the judgement is not decreased, then $500,000 must be obtained somewhere. The School Board Secretary-Treasurer Mac Carpenter 2 suggested that: "The half million dollars would either come out of the school d i s t r i c t s ' $25 million annual operating budget or possibly from the provincial government. There is a provision in the Public Schools Act for a special appeal to the Minister of Education in extreme cases". 1. The Province Newspaper. Vancouver, B.C., January 25, 1975* p. 1. 2. Ibid. p. 1. 71 LEGAL CONSIDERATIONS ON EQUIPMENT AND FACILITIES A number of legal actions involving physical education or athletics have been the direct result of inadequate or faulty equipment and f a c i l i t i e s . Thus, i t i s the direct responsibility of the teacher conoerned, to be certain that the equipment and f a c i l i t i e s are proper for the activity and provide the participants with the optimum of safety. Many manufacturers of sports equipment and f a c i l i t i e s emphasize the safety of their produots, since they realize that coaches and teachers w i l l be concerned (or should be) about safety features. These suppliers often spend considerable money and effort on research in order to provide the maximum in protection. As a result, there should be no excuse for a lack of safe equipment or f a c i l i t i e s . The teacher should purchase with safety in mind rather than economy. Numerous accidents can occur due to the nature of the f a c i l i t i e s . Because of the equipment and f a c i l i t i e s required, certain areas are more prone to accidents. In dealing with this problem, consideration must be made of the f a c i l i t i e s which might be util i z e d for athletic events including the f i e l d , track, gymnasium, tennis oourt and even the locker room. Other sources of injury are defective slides, swings and other playground apparatus. Their maintenance or construction may be faulty or they may have been placed in an unsafe location in the school yard. A 72 further serious possibility i s the collapse of defective bleachers or grandstands. This i s especially true when admissions have been charged, since this factor may increase the l i a b i l i t y of the school d i s t r i c t . Failure to provide mats in plaoes where their need is clearly apparent, Is another frequent cause of injury. These should be placed around the base of gymnastic equipment on the floor area used for tumbling, and in areas where i t appears that a student needs to be protected from a hard surface or obstacle. A number of cases have resulted from failure to use mats or inadequate use of them. Concerning this, a physical eduoation teacher should keep in mind the test of reasonableness in providing protection in this regard. There is no need to go to excesses in the use of mats as a safety precaution, but reasonable protection is usually sufficient. For example, in Jones v. London County Council 1 (England) , one Judge stated: "It had been stressed on behalf of the respondants that the game had been played on a wooden floor and that there was no matting: i f there had been a matting i t would have been said that there ought to have been a mattress, and i f there had been a mattress i t would have been said that there ought to have been a feather bed* and i f there had been a feather bed i t would have been said that the boys ought to have been wrapped i n cotton wool or rubber". Innumerable cases emphasize the use of equipment that 1. Jones v. London County Council (England), (1931).172 Law Times Journal, 485. (Cited in Lamb, R.L., "Legal L i a b i l i t y of School Boards and Teachers for School Accidents". 73 i s in known improper condition, and the avoidance of using inherently dangerous equipment altogether. In Clerk & 1 Llndsell on Torts , i t is stated« "It is the duty of those in charge of a school to keep i t in proper repair; and a pupil injured by the defective condition of...may therefore recover damages for his injuries". Perhaps, a physical education teacher may question, by what c r i t e r i a could one define a •safe environment•? 2 The case of Brost v. T l l l e y School District (Alberta) , could provide some guidelines. The case established that a safe school environment was one in which the local School Board kept the school premises and equipment in good repair, and where equipment was used that might be dangerous, even when in good repair, suitable instruction on proper use of i t should be sufficient to overcome the danger. A great variety of causes, due to improper care of f a c i l i t i e s and faulty equipment, could ignite trouble in school athletics or physical education classes. For example, a basketball coach may be charged with negligence i f he permits activity on an extremely slippery gym floor or does not provide sufficient padding around the basket supports, or allows a smoothly finished balance beam to be Clerk & Llndsell on Torts (12th Edition), Sweet and Maxwell Ltd., London, 1961, p. 719. 2. Brost v. T l l l e y School District (Alberta), (1955), 15 W.W.R. 241 (C.A.). 74 used without the protection of mats. Even allowing students to play baseball using a bat without a knobbed end so that injury resulted when the bat slipped and hit another student, has been found negligent. 1 Rosenfleld (1963) , cites a case Involving a slippery gymnasium floor. A physical education class of g i r l s were playing baseball in the school gym. The base marker (an ordinary burlap sack placed on the slippery floor) slipped from under the feet of one of the g i r l s as she rushed to f i r s t base. She sustained serious Injuries when she f e l l . Negligence was determined by the court because considering the circumstances, reasonable care would have required that the base be securely fastened. The football coach may overlook the quality of his teams equipment or may f a i l to insist on the use of the mouthpiece - which is now mandatory under most High School and College Football Associations i n Canada. An inadequately sized playground or f i e l d that produces overcrowded conditions i s another vulnerable area. This problem can also occur in football, baseball, track and f i e l d or basketball. Injuries have occurred through missiles (shot, discus, hammer, javelin) striking participants or spectators. Serious collisions on basketball courts, 1. Rosenfleld, H.N., "Guilty!", Safety Education, vol. 41, April 1963, p. 14. 75 between two players, or with obstacles on the sidelines have resulted in injuries. An American case in point is that of Bauer v. Board of 1 Education of the City of New York. "Where eight contiguous or over-lapping basketball courts in a school gymnasium were used by forty-eight players, the court held that the situation created a condition of dangeri hence a l i a b i l i t y charge was upheld when a pupil was injured". Frequently, physical education teachers are faced with greater student numbers than f a c i l i t i e s can accommodate adequately. In order to keep students active, teachers try to include a l l students in the activity at the same time. In some cases students are allowed to do what they wish on equipment without any direction or supervision while the teacher devotes time to a small group of students. ( However, this could lead to Injury, as in the case previously cited, and could result in a legal suit. Thus, the teacher is faced with a d i f f i c u l t problem. He must either organize the class in groups and exercise more regimentation than he or the students may wish, or alternatively, some of the students would just have to s i t out and wait for a turn. Ultimately, the teacher must use some imagination in providing his own solution to the problem, given the circumstances he i s required to work under. The principle of 'the reasonable man* should always be a guideline to follow in this respect. 1. Bauer v. Board of Education of the City of New York. 1955. 76 In the provinces of Canada, School Boards have the duty by statute of making the school grounds, buildings and equipment reasonably safe and free of danger. The physical education teacher, as an agent of the Board, should look for sources of danger and report these directly to the principal (in writing) or should pass the information on to the School Board (in writing). Many,potential dangers can be cared for immediately by the teacher. However, i t is important for a teacher to inform the proper authority about a situation which needs to,be corrected! this constitutes the required exercise of "due care" on his part. Certain standards of care &£e required of different equipment. Once some fault is found in any equipment, i t s use should be prohibited u n t i l the fault Is remedied. A l l equipment to be used for a physical education class should be inspected by the teacher on the day that It is to be used. Weekly inspection of a l l equipment and f a c i l i t i e s should become a standard procedure. Inspection should cover f a c i l i t y surfaces and structures, apparatus and equipment. Visual Inspection w i l l often be a l l that Is required to verify that a piece of equipment is in good working order. However, a much closer inspection Is required for apparatus that requires some assembly (gymnastic boxes, trampoline, weight l i f t i n g apparatus, etc.). Particular notice should be made of bolts, f i t t i n g s , 77 or wires that take particular stress. Rungs on climbing apparatus should be checked for cracks, or,ropes checked for weaknesses or wear. If the procedure or equipment requires special safety instruction, these.rules should be posted and explained. Above a l l , the students should be taught to respect the apparatus and check for i t s safety also, when they are using apparatus or helping the teacher to assemble i t . They should be encouraged to report to the teacher anything that appears to be a potential danger. In general, i f an accident could have been prevented by careful Inspection of the f a c i l i t i e s or equipment, i t w i l l be considered negligence by the courts. The courts w i l l usually decide that negligence exists where an injury occurs as a result of defects in athletic f a c i l i t i e s or equipment and the teacher was aware or notified about the dangerous situation. A number of Canadian cases have arisen concerning equipment or f a c i l i t i e s . In Sohultz v. Grosswold School 1 Trustees (Alberta) , the School Board was found liable due to faulty construction and disrepair of a teeter-totter. 2 In Pook et a l v. Ernesttown School Trustees (Ontario) , a young boy f e l l on the school ground which had been 1. Schultz v. Grosswold School Trustees (Alberta), (1930), 1 W.W.R. 5791 3 D.L.R. 600. "~ 2. Pook et a l y. Ernesttown School Trustees ( O n t a r i o ) . (1944), 4 D.L.R. 268: O.R. 465: O.W.N. 543. 78 litt e r e d with stones and brickbats for some time. The student was "lawfully and properly playing in the school grounds" and as a result, the School Board was found liable for not maintaining the grounds safely. School children are not merely permitted or invited to come to school, but are required to do so, and, as members of the public, i f they are injured by neglect of a statutory duty with regard to a place where they are expected to play, they are entitled to make those upon whom the statute has imposed the duty, responsible for injuries sustained by them through breach of such duty. This principle was the issue in Lamarohe et a l v. Board of Trustees of the Roman Catholic Separate Schools 1 for the village of L*Orlgnal (Ontario) , where an eleven year old boy was injured while swinging on a swing installed on sloping ground. The boy was partially paralyzed and mentally impaired when he was injured due to other children upsetting the swing. The Judge for the case, noted that the swing had been upset on previous occasions and that the Board was required by statute to provide adequate accommodation for children. Concerning adequate accommodation, he statedi "In my opinion (that) includes the school for purposes of teaching and the school yard or playground for the purposes of exercise and recreation". 1. Lamarohe et a l v. Board of Trustees o f t h e Roman Catholic  Separate Schools for the Village of L'Orlgnal (Ontario). (1956), O.W.N. 686. 79 Although contributory negligence was found on the part of the injured boy, i t was, however, less than the negligence of the School Board. A f a c i l i t y with which very few physical education teachers concern themselves is the locker areas. These should be checked on a regular basis for potential dangers. A significant example, i s a case which occurred in 1 California. A loosened locker attachment gave way and seriously injured a student. The court summarized that the condition must have existed for some time in order for the accident to occur and i t was the responsibility of those in charge of such f a c i l i t i e s to guarantee their safety. The school was found li a b l e . Another aspect of l i a b i l i t y that the physical educator should be aware of i s that of "attractive nuisance". This term has been established by the courts as indicating that i t is the responsibility of those in supervisory capacities to eliminate as much as possible, situations that may attract youngsters and lead to injury. Youngsters are not held responsible for their thoughtless actions and i t is not assumed that they w i l l realize dangers which might exist in certain situations. As a result, a l l equipment should be put away at the end of each class. Nothing 1. Grieve, A., "Legal Considerations on Equipment and F a c i l i t i e s " , The Athletic Journal. vol. 47, February 1967. p. 40. 80 should be l e f t out that children could play with In the absence of a teacher's supervision. One area concerning this should be c l a r i f i e d , however. Some items of playground equipment on the school grounds are indeed a potential attractive nuisance. To date, there have been only a few Canadian court cases involving the above. A Canadian case that concerned attractive nuisance, though not specifically concerned with the school, involved two young trespassers who were drowned when swimming in an excavation f i l l e d with water on a town parkland which was not yet open to the public. The town was not liable in damages for the deaths of the two trespassers because 1 a water-filled excavation was not a trap. Thus, one of the c r i t e r i a for attractive nuisance to be established is that a trap must exist which caused the injury. In New Brunswick, four p l a i n t i f f s suffered vertebra fractures on a toboggan slide in a public park which was 2 in a very dangerous condition. The owner and occupier of the land, a horticultural association, was liable for these Injuries as i t was bound not to create a trap or allow a concealed danger to exist. In the United States there has been a number of noteworthy cases that may serve to illust r a t e the type of circumstances in which attractive nuisance may be found. 1. Canadian Insurance Law Reports. No. 219, March 24, I969, p. 5. 2, Canadian Insurance Law Reports. No. 24-3, March 5, 1971, P. 5. 81 In New York, the courts have not completely accepted the doctrine of attractive nuisance. In the case of Strelckler v. New York (1962) 1, the court decided that a school d i s t r i c t was not expected to supervise playground f a c i l i t i e s when school was not in session. Another case in New York, 2 Longo v. New York City Board of Education , resulted in a finding of negligence against the school d i s t r i c t because a teacher failed to look a gymnasium door during an unsupervised period. A young child was injured when he wandered into the gymnasium. The court f e l t that a situation of attractive nuisance was created because the youngster was able to gain admittance to the gymnasium, even though he was not supposed to be in the area. These examples serve to illustr a t e the nature of attractive nuisance. A physical education,teacher should appreciate the fact that there are numerous possibilities for attractive nuisance to occur If care i s not taken to prevent them. 1. Strelckler v. New York. 15 App. Dlv. 2d 927, 225 N.Y. Supp. 2d 602 (1962). 2. Longo v. New York City Board of Education. 225, N.Y. 719. (cited i n . Grieve, A., "Legal Considerations on Equipment and F a c i l i t i e s " , Athletic Journal. February CHAPTER IV LEGAL DEFENSES AGAINST A LIABILITY SUIT The physical education teacher, as a servant of the School Board, enjoys the protection of the legal aid secured by the Board, unless the Board can successfully deny the existence of the master-servant relationship for the actions involved. 1 The School Act (British Columbia) statesj "The Board of School Trustees may, by an affirmative vote of not less than two-thirds of a l l i t s members, pay any sum required for the protection, defense, or indemnification of a trustee, an officer or an employee of the school d i s t r i c t where an action or prosecution is brought against him in connection with the performance of his school d i s t r i c t duties, or where an inquiry under the Public Inquiries Act or other proceeding involves the administration or the conduct of any part of the business of the school d i s t r i c t , and costs necessarily incurred and damages recovered, but the Board of School Trustees shall not pay any fine imposed on a trustee, an officer or employee as a result of his conviction for a criminal offense. The teacher w i l l be required to pay f u l l damages i f he Is proven by the courts as solely guilty of negligence outside the scope of his duties as a teacher. If the teacher and the Board are found jointly guilty, the teacher w i l l most lik e l y have to share the cost of the damages awarded, although he w i l l not have to pay the costs personally. 1. The School Act (British Columbia), 1973. ch. 319, sec. To¥(JT 82 83 Even i f the teacher is found not guilty, financial loss w i l l l i k e l y come from some legal costs and days lost from school. Also, the School Board is not required to compensate for the days lost, except in the province of 1 Ontario. Teachers and other school o f f i c i a l s are involved in more pupil-injury lawsuits today than ever "before in history. Due to the increasing number and variety of activities in which pupils engage, i t is li k e l y that there w i l l be a rise in legal actions due to injuries sustained In such activity. Indications are that because the public is becoming more and more damage-consclous, the number of such cases w i l l increase in the future. As a result, the physical educator must have a clear understanding of the obligations to his students under the law and the legal defenses which may avert l i a b i l i t y . 2 Lamb , summarizes the legal position of teachers with regard to school accidents and responsibilities owed to pupils t 1. Boards and teachers in Canada have no general Immunity in common law from tort actions. 2. School Boards are responsible for the tortious acts of their servants If the latter act within 1. The Schools Administration Act (Ontario), 1954, S.O., 1954, c. 86, s. 17(6). 2, Lamb, R.L., "Legal L i a b i l i t y of School Boards and Teachers for School Accidents", Canadian Teacher's Federation, March 1959. 84 the scope of their authority. If the teacher acts in ways approved by the School Board, he would generally be considered to be acting within his authority. The School Board is not liable where the teacher acts outside the scope of his employment. 3. Teachers are liable for their own negligence in school accidents, but they have some protection through the general practice of p l a i n t i f f s suing the board, as master and servant relationship, as well as the teacher". The teacher and the]School Board can be found jointly guilty of negligence. In such cases, the cost of the damages awarded would be shared in part by the teacher. In teaching, i t is rare to find claims by an employer to recover from an employee, damages which the employer has been required to pay as a result of being held vicariously liable, even though this common law principle applies in other field s . The employee has, generally speaking, a good defense against such a claim i f his negligent action occurred only within the scope of his duties. Also, no negligence should attach i f he presented himself as being qualified and competent to perform. However, the employer might be able to recover from the employee, i f the employee went beyond the scope of his duties. 85 No Direct Relationship Between Teacher's Actions and  Resultant In .jury It must he shown by the p l a i n t i f f that the resultant injury was due directly to the teacher's negligence before the alleged negligent person can be held li a b l e . The negligence, In law, must f i r s t be a proximate cause or substantial factor, in bringing about the injury. Unless the physical education teacher's negligence is shown to be the proximate cause of the Injury, there can be no action for suit. Pearson v. North Vancouver Board of 1 School Trustees (British Columbia) , i s a case in point. A young g i r l was riding a bicycle along a street and struck a seven-year-old boy who had just l e f t the school grounds. The School Board was not held responsible for the negligence of the g i r l as the accident took place just outside the school's boundary. It was found that the seven-year-old should have been looking out for his own safety. No Duty of Care Involved No duty of care i s involved for accidents which occur outside school property and after school hours. This was upheld in the case of Patterson v. North Vancouver Board 1. Pearson v. North Vancouver Board of School Trustees (British Columbia), (19^1) 2 W.W.R. 8?4{ 5» B.C.tt. 157. 86 of School Trustees and also v. Canadian Robert Dollar Company (British Columbia) , In which an eight-year-old pupil had l e f t home for school and was struck by an old decayed tree just opposite the school property. The tree was growing on property owned by the Robert Dollar Company, one of the defendants in the suit. The Condition of the tree had been mentioned by the school trustees to the municipal board, and as a result the Board was not held l i a b l e . The court dismissed the case against the Robert Dollar Company because the tree was growing naturally on the land. Judge Haodonald statedt "I have been unable to find any case, and we have been referred to none which would impose upon the school board the duty of protecting the p l a i n t i f f from injury on the highway after he had l e f t the school premises". The Injured Student *s Actions Contributes to His Own  Negligence If an individual f a l l s to act as a reasonably prudent individual would under the circumstances, for his own protection, then his own actions may have contributed to his injury and as a result may cancel a proportion of any actionable negligence on the part of another. The legal term for this is •Contributory Negligence -i The defense of Contributory Negligence consists of two elements. (a) failure of the injured person to take reasonable 1. Patterson v. North Vancouver Board of School Trustees  and also v. Canadian Robert Dollar Company (British Columbia), (1929) 2 W.W.R. 181| 3 D.L.R. 33 (C.A.). 87 care of himself for his own interest, (b) the fact that his lack of care contributed to his own injury. Contributory negligence on the part of a p l a i n t i f f w i l l not dismiss a suit, but may result in the p l a i n t i f f and defendant sharing the damages. "When contributory negligence is set up as a defense, i t s existence does not depend on any duty owed by the Injured party suedj a l l that Is necessary to establish such a defense is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and Is set up as a shield against the obligation to satisfy the whole of pl a i n t i f f ' s claim the principle involved i s that, where a man is part author of his own injury, he cannot c a l l on the other party to compensate him in f u l l " . 1 The standard of conduct to which the pupil must conform depends upon the age of the pupil, the nature of the act connected with the injury, and other attendant circumstances. In other words, the injured pupil's conduct may have been below the standard of care to which he should conform for his own protection which was, therefore, a contributing factor in causing the injury. The degree of care to which the great mass of pupils of the same age, intelligence, and experience would ordinarily exercise under similar circumstances is considered the standard of care which a pupil i s required to exeroise for his own safety. If a child is unable to understand the nature and consequences of his acts, the law considers him equally unable to be 1. Johnson v. Kwon Poo Wong (British Columbia), (1957), 22 W.W.R. 565. 88 guilty of negligence. This was the basis of an Ontario case i n 1972, 1 Helsler et a l v. Moke et a l , In which the test in determining contributory negligence in the case of children was to find out whether the child, having regard to his age, intelligence, experience, general knowledge, and alertness, was capable of being found negligent. The next question was whether the child was negligent at a l l and, i f so, to what degree. Judge Addy statedt " A l l the qualities and defects of the particular child and a l l the opportunities or lack of them which he might have had to become award of any particular p e r i l must be considered. When It has been determined that the child i s capable of negligence i t Is a question for the Jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience".2 Whether or not contributory negligence can be determined, i s dependent to a large degree upon the age of the pupil. Although negligent actions are c i v i l wrongs, the Criminal Code of Canada, to some extent, offers some guidelines as to how a court might view the negligent acts of children. 1. Between the ages of 1 and 7 years, there is no capacity for negligence. The Criminal Code of Canada states that no child younger than seven years of age may be convicted of an offense. It is presumed that a child younger than seven i s 1. Helsler et a l v. Moke et a l . 2 O.R., 1972, p. 446. 2. Ibid. p. 446. 89 incapable of forming the required intent to commit any crime (in Britain the age is ten). 2. Between 7 and 14 years of age, there i s usually no capacity for negligence. However, evidence can sometimes overcome this. The Criminal Code of Canada states that a seven-to-fourteen year old w i l l be convicted of an offense only i f he is considered capable of having known the nature and consequences of his conduct and of having understood that i t was wrong. 3. Between 14 and 21 years of age, a child i s presumed to be capable of being negligent. However, depending on the circumstances, this can be refuted. A child who i s 14 years or older does not have the advantage of presumed incapacity to commit a wrongful act, and may be treated the same as an adult offender. The law presumes, then, that he understood the nature and consequences of his act and was capable of forming the intention to commit a wrongful act. Age, however, is not the single criterion used to determine i f contributory negligence has occurred. 1 As Judge Ford stated in Placatka v. Thompson (Alberta) , "The question whether a child is of sufficient age and intelligence to realize and appreciate the risk he runs so as to be capable of being guilty of contributory negligence i s a question of fact". 1. Placatka v. Thompson (Alberta), (1941) 1 W.W.R. 528» 2 D.L.R. 320 (C.A.). 90 Other factors such as intelligence, experience, mental capacity, judgement, or discretion, are considered along with the age of the child. Student Voluntarily Assumes the Risk Involved Because of the nature of the activity, many sports tend to involve an element of danger? especially those involving "body contact, such as football or wrestling. Injuries resulting from contact in the normal course of the activity are usually part of the risk athletes take by playing the game. The legal term to describe this concept i s •Assumption of Risk'. A court action for damage could result from injuries due to an unusual accident such as excessively rough or deliberate play between two competitors. When another player is involved, the argument of consent is generally put forward as a defense against charges, the theory being that players voluntarily assume and consent to the risk of injury. This is the same as saying that some school acti v i t i e s are much more dangerous than others, and that the teachers should not assume a l l the risk in act i v i t i e s of more than ordinary danger. However, a d i f f i c u l t question for the courts to determine i s the dividing point between what may be considered normal game skirmishes and what becomes assault. 91 1 The case of Agar v. Canning (Manitoba) , c l a r i f i e s to some extent, the limits of Immunity under 'assumption of risk*. In this case, one ice-hockey player body-checked his opponent, took the puck, and skated off with i t . The opponent attempted to hook the other with his stick and in so doing, hit a painful blow on the back of the neck. The player with the puck turned and grasping the stick with two hands, forcefully hit the opponent with the blade of the stick between the nose and right eye. The Judge f e l t the player who struck the other across the face acted on provocation and assessed damages accordingly. Concerning 'assumption of risk' he statedi "A blow struck in the course of a lawful sport is not normally actionable since those who take part in sports are presumed in law to assume willingly the risk of harm. Injuries suffered by players of a game, such as hockey, involving violent bodily contacts, w i l l not give rise to an action based on negligence even though such injuries may have resulted from an infraction of the rules of the game. But a retaliatory blow, struck in anger, even though provoked, may go beyond the immunity conferred by this principle and amount to actionable negligence". While i t Is true that the courts have found there is some assumption of risk on the part of the athlet®, this assumption is true only i f the athlete has been carefully trained, properly equi]«ped. Intelligently coached, provided with adequate f a c i l i t i e s , and competently treated in case 1. Agar v. Canning (Manitoba), (1965). 54 W.W.R. 302. Affirmed 55 W.W.R. 384 (C.A.). 92 of injury. If any of these items are omitted, negligence may he found. If the physical education teacher can show that the accident which a student sustained was a part of the normal risk inherent in the activity, then, that to which an individual consents may not he considered negligence. To il l u s t r a t e this point, the case of Hall et a l v. Thompson 1 et a l (Ontario) , should he examined. In this case, a nine-year-old boy was injured in a wrestling contest conducted on a grassy spot on the school grounds. The wrestling was not compulsory, but was supervised by the teacher. The court found the teacher not liable because he was acting within the scope of his employment in giving physical training to the pupils and the activity was not dangerous enough to warrant previous instruction in wrestling. Thus, in engaging in the activity, the students assumed the risk. The case of Butterworth et a l v. Collegiate Institute 2 Board of Ottawa (Ontario) , is significant i n that assumption of risk by the pupil was an issue in the case. , Two senior boys in grade twelve were placed in charge of the gymnastic exercises. The physical education instructors were preoccupied with other duties. Two activ i t i e s were taking place on the day of the accident in 1. Hall et a l v. Thompson et a l (Ontario), (1952), 4 D.L.R. 1391 O.W.N. 478. 2. Butterworth et a l v. Collegiate Institute Board of Ottawa. (1940) O.W.N. 332. 93 question. Some of the students played basketball, while a few went to the vaulting horse, one of whom was the Infant p l a i n t i f f . He injured his elbow, causing permanent fixation of the Joint. In reviewing the evidence of the infant p l a i n t i f f , the Judge stated that i t was conclusively established that the cause of the accident was not known. "When negligence Is alleged as the cause of the injury, i t must be proved that, had the negligence not occurred, the injury would not have been , sustained. (Corby v. Poster (1913), 29 O.L.R. 8 3 ) . Concerning the assumption of risk by the pupil, the Judge stated* "The evidence clearly shows that the infant p l a i n t i f f was conscious of the fact that on previous occasions boys had been posted at the vaulting horse to help the user over, yet on the occasion of the accident, knowing he had been clumsy, knowing the horse, and knowing that there were no boys posted, he attempted the exercise. This goes far beyond the mere knowledge of the danger. There was a clear perception of the existence of danger, and also a clear comprehension of the ris k Involved: Glbbs v. Barking Corporation, (1936) 1 A l l E.R. 115, distinguished*?;. 2 The Judge went on to say: "The use of gymnastic apparatus, such as a vaulting horse, involves the risk of injury. Boys of 14 years of age are capable of and indeed should be held to exercise reasonable intelligence and care for their own safety. With great respect, paternalism in respect of boys of teenage i n collegiate institutes should not be extended to a degree which would virtu a l l y deprive them of that exercise of intelligence demanded of young people of that age in other walks of l i f e " . 3 1. Ibid. p. 332. 2. Ibid. p. 332. 3. Ibid. p. 332. 94 The action was dismissed with costs. An aspect involved in assumption of risk, concerns the situation where a student i s advised by his teacher or coach not to perform an aotivity or play a game, but the student insists that he i s going to perform i t regardless of the warning. Here, Is the teacher negligent in allowing the student to carry out his wishes? A case that serves to ill u s t r a t e how the American courts may view this issue, and lik e l y a Canadian court would take a similar stand, i s found In a New Jersey case in which a fourteen year old was injured when he made a leapfrog" jump over a 1 gymnastics horse and f e l l and broke his arm. The Instructor and a student volunteer had supervised the jumps and evidence indicated that there had been sufficient number of mats to ensure adequate safety. However, the instructor had warned the student that this stunt was dangerous but the warnings were disregarded. The court found no negligence on the part of the teacher because in spite of the warnings, the student had made the jump anyway, thus assuming the risk of injury himself. A significant Canadian case also illustrates this principle. In the case of Sohade v. Winnipeg School 2 District (Manitoba) , a fourteen year old was playing 1. Giles, J.W., " L i a b i l i t y of Coaches and Athletic Instructors", Athletic Journal. February, 1962, p. 18. 2. Schade v. Winnipeg School District (Manitoba), (1959), 28 W.W.R. 557. 95 •scrub* baseball and tripped over a stake in an area that a l l students had been warned to keep clear of. It was held that the accident was caused by the boy's own negligence under circumstances which placed a responsibility on him to have regard to his safety. He had failed to take the necessary care, bearing in mind his age, intelligence and knowledge of the circumstances. Injury From A Natural Cause A loss that results immediately from a natural cause without the intervention of man and could not have been prevented by the exercise of prudence, diligence and care, 1 in law is termed 'Vis Major*. Thus, direct assignable cause Is absent when an injury results from an uncontrollable act of the elements. No amount of foresight would have prevented the occurrence, and as a result, the defendant would be Innocent of causality. For example, such mishaps as being struck by a bolt of lightning on a playing f i e l d or perhaps a drowning on a cross-country race due to a flash flood would be examples of this legal concept. Delegation of Authority or Duty School Boards and teachers are generally held responsible for the negligent acts of independent contractors or hired employees to whom they have delegated their duties, i f the actions performed f a l l within the scope 1. Black's Law Dictionary, p. 17^3. 96 of their legal duties, except where decisions requiring highly technical or professional s k i l l s are required (provided also that the latter are competent). For example, 1 in the case of Davis v. London County Council (England) , the court found that, where a medical officer was hired under the statutes to perform operations on children, "the education authority are not liable for the negligence ( i f any) of the persons performing the operation, provided that they engage competent professional persons to perform i t " . In the case wherea School Board i s under a duty to transport a student to school, i t is liable for the negligence of the driver of the bus. An important decision 2 made by the Saskatchewan Court of Appeal states: "A School Board owes a duty to i t s pupils to see to i t that they are properly supervised while on the school grounds during school hours and cannot delegate that responsibility to a contractor, whether Independent or not". The physical education teacher should not delegate authority to any of his students, unless he is confident that the student who assumes the responsibility is very knowledgeable and skil l e d , or possesses special a b i l i t i e s to carry out the duties. Teaoher aides and student teachers often supplement the staff of certified teachers throughout the year. Basically, there are two questions of concern here: 1. Davis v. London County Council (England), (1914) 30 T.L.R. 275. 2. E l l i s and E l l i s v. Board of Trustees of Moose Jaw Public  School District and Blondln Roofing Products Ltd. (Saskatchewan), (1946), 2 D.L.R. 697. 97 (1) Should a teacher leave uncertified personnel in oharge of supervising the class? (2) What are some of the legal limits on the use of uncertified personnel? As to the f i r s t question, generally, i t would not be negligence per se under normal circumstances for the teacher to leave students under the supervision of uncertified personnel. It would seem permissible to leave the student-teacher in control of a class since this serves the educational purpose of training a future teacher. However, there are some limitations which must be pointed out. In those activities in which there is a high risk of injury, the regular teacher must exercise supervision. Supervision cannot be delegated to non-teachers. Another important point i s where the teacher delegates authority, the person selected must be qualified to handle the job. For example, i t is not adequate to ask the janitor to supervise the class, while you leave for a , few minutes. It must be kept in mind that he is not hired for his a b i l i t y to supervise children. If the teacher is aware of the unruliness of the class or perhaps the student aide or student teacher*s Inability to exercise control, i t would be negligent to leave him in care of the students. No Breach of Duty There w i l l be no Breach of Duty, i f the physical 98 education teacher can prove that the duty owed has been 1 f u l f i l l e d . As Judge Laidlaw states: "A person is not entitled in law to judgement for damages claimed by him on the ground of alleged negligence of another person, merely because i t appears that there was a careless act or omission on the part of that other person. Actionable negligence Is a breach of a duty owed by one party to another in the particular circumstances, which causes, or contributes to the cause of, the loss or damage claimed". L i a b i l i t y Protection Through The School Board Children are required by law to attend school. They (and their parents) have no individual control over the buildings in which they must attend, the f a c i l i t i e s available to them, the safety of the school premises, or the quality of supervision over them. Thus, the teacher and In some cases, the School Board, are responsible to act as a "prudent father" or in the capacity of "respondeat superior". This maxim means that a master Is liable in certain cases for the wrongful acts of his servant, or in other 2 words, "let the master answer". This doctrine assumes that a master i s responsible for the actions committed by a servant during the course of employment i f they are specifically or Implicitly authorized, because the servant 1. Canadian Bread Co. v. Grlgg. (Ontario), (1946), O.W.N. 337» 2 D.L.R. 374 (C.A.). 2. Black's Law Dictionary, p. 1475. 99 is subject to the control and directions of his employer in respect of the manner in which work i s to be done. When an accident occurs, even though the teacher may appear to be completely negligent, through the principle of respondeat superior, the School Board becomes automatically involved. As a result, the teacher is able to rely somewhat on the financial strength of the School Board. "A school board Is liable in law for injuries to a pupil due to a teacher's negligence i f in a matter which may reasonably be regarded as f a l l i n g within the scope of his employment". 1 However, the teacher w i l l not be protected by the School Board i f he acts in excess of authority. In the case of Beauparlant v. Appleby Separate School Board of Trustees (Ontario) , although there was negligence on the part of the teachers, the board of trustees were not liable for the injuries suffered by one of the pupils during the t r i p . The principal, without any express or Implied authority from the board of trustees, granted a holiday to the students which involved a t r i p to a neighbouring town. The parents were not informed as to whether the t r i p was part of the regular schooling of any or a l l pupils, although the parents were free in consenting or refusing consent to the t r i p . The court held, that in organizing 1. The Canadian Abridgement (2nd Edition), vol. 35, The Carswell Co. Ltd., Toronto, 1973» p. ^3. 2. Beauparlant v. Appleby Separate School Board of Trustees. (Ontairio), (1955) O.W.N. 286, 4 D.L.R. 558. 100 this t r i p and in allowing the children their freedom from their regular studies, the teachers were exceeding their authority and were not acting within the scope of their authority, express or implied. Immunity Canadian School Boards are no longer considered by the courts as a part of the Crown, or p o l i t i c a l subdivision thereof and they no longer have immunity from their tortious acts. By contrast, in some of the states in the United States, the school d i s t r i c t is considered an agency of the state and cannot be held liable for any negligent acts of i t s employees committed while carrying out their school duties. However, a teacher whose negligence caused injury, does not enjoy this immunity from being sued In a l i a b i l i t y suit. Many states have realized that this places teachers in an extremely vulnerable position. As a result, some states have enacted 'save harmless' statutes which either authorize or require school d i s t r i c t s to defend suit brought against their teachers as a result of alleged negligence. Payment of any judgements and costs are also included in this defense. Authority has been given to school d i s t r i c t s by some states to provide insurance to cover the teacher should a negligence suit occur. The Canadian physical educator is fortunate in that he i s protected somewhat by the School Board in his d i s t r i c t . 101 Common law offers an additional protection to Boards and teachers. After a reasonable length of time has elapsed since the accident was committed, a legal suit cannot be brought against them. In British Columbia, this limitation is provided for directly in the School Act. An action must be brought against the School Board or teacher within six months after the act was committed, 1 and upon four months previous notice thereof in writing. The Public Officer's Protection Act specifies the time 2 limit in other provinces. The School Act of Saskatchewan states a six month time period In which an action must be 3 brought against the school d i s t r i c t . However, application made to a judge of the Court of Queen's Bench made not later than one year and after seven days notice to the school d i s t r i c t can bring action for suit. A clause in The Public Officer's Protection Act of Saskatchewan allows even more leeway in that actions may be commenced "within such further time as the court or judge may allow". Public Schools Act. Royal Statutes of British Columbia, c. 297, s. 129. 2» The Public Authorities Protection Act, (Alberta), c. 138, s. 2T2T* ~ The Public Officers' Protection Act. (Saskatchewan), c. 17, s. 2(1). The Public Officers' Act. (Manitoba), c. 213, s. 21(1). The Public Authorities Protection Act. (Ontario), c. 303. s. 11. 3. The School Act. Royal Statutes Saskatchewan, c. 169,8.263. 4. The Public Officer's Protection Act. (Saskatchewan), c.17, s. 2 (lb). 102 In Nova Scotia, there appears to be no protection given to public officers beyond the two years stipulated in 1 The Statute of Limitations. This chapter indicates that in the event of a law suit, a teacher has a number of possible defenses to take. However, in general, as a servant of the School Board, the teacher Is entitled to the protection of the legal aid obtained by the Board. If the Board can prove that the teacher acted outside the scope of his duty as a teacher, then i t can successfully deny the existence of the master-servant relationship for the actions in question. It i s well to note that in a law suit, neither party really wins. The teacher may win the court case, but in the course of the t r i a l may lose his Job and professional reputation. On the other side, the injured student may be awarded a large sum of money, but this w i l l never compensate for the loss of a leg, eye, or complete loss of function of the limbs. 1. The Statute of Limitations. Royal Statutes of Nova Scotia, c. 153, s. 2 (lb). CHAPTER V LIABILITY PROTECTION Insurance Perhaps insurance might be defined succinctly as a method of hedging one's bet against foreseeable but uncertain occurrences involving financial loss.^ More conventionally defined, insurance is a contract in which one person, the insurer, undertakes, for a consideration called the "premium", to indemnify the other person, the 2 insured, upon the happening of a specified event. The knowledge that adequate insurance is carried, permits a degree of f l e x i b i l i t y and confidence in planning and executing the physical education classes as well as outdoor environmental education activities. By the very nature of activities, accidents are bound to happen, but insurance coverage cannot be viewed as a satisfactory substitute for care and foresight. The pain, embarrassment or grief of an accident can never be wiped away by insurance. Its purpose, however, in some circumstances, is to shift the financial losses arising out of an accident from the shoulders of the School Board or teacher to an insurance 1. Saunderson, B., Insurance Law, p. 1. 2. Ibid. p. 1. 103 104 company which is prepared to take the risk. L i a b i l i t y insurance, however, has i t s limitations. The concept of legal fault on the part of the School Board or teacher, is the basis for l i a b i l i t y insurance. But, whether someone has been negligent or not, for a student who has lost an eye in an accident, is not necessarily the most Important thing to him. What is most Important is whether he w i l l be given a monetary award to help offset the effects of the handicap. Just think of the case of a previously healthy young man in a court room -now a complete permanent cripple requiring twenty-four hour care, being kept alive by a system of tubes and machines. He is asking a nebulous group of taxpayers and an insurance company for compensation. The only finding that a jury could possibly give, on the basis of compassion, is guilty of negligence. The obvious solution to the dilemma the jury faces is provision of adequate insurance on the part of the defendant in the f i r s t place. In common with most other reasonable and prudent men, School Boards purchase l i a b i l i t y insurance in order to pay possible future costs of damages for which they may be held legally l i a b l e . What is l i a b i l i t y insurance and how does It protect the School Board and ultimately the physical education teacher? 1 Scott (1964) states J " L i a b i l i t y Insurance, in common with a l l other classes 1. Scott, J.C., "School Boards and Common Law L i a b i l i t y " , The B.C. School Trustees. F a l l , 1964, p. 8. 105 of insurance i s provided under an insurance policy contract. This sets out the terms and conditions under which, in return for an agreed premium consideration the insuring company agrees to defend the school board against suits for damages which may be brought against i t and to pay the assessed costs of any such damages. These terms and conditions also include an agreement by the insuring company to pay the cost of investigation of the circumstances of any accident where these indicate the possible existence of negligence on the part of the school d i s t r i c t or i t s employees, which in turn might result in a successful defense being impossible to sustain". There are two basic terms entitled "Insuring Agreements" which form the basis of l i a b i l i t y insurance policy contracts. These ares A. L i a b i l i t y for Bodily Injurys The insurance company pays on behalf of the insured a l l costs which the insured becomes obligated to pay due to l i a b i l i t y imposed by law for damages due to bodily injury. B» L i a b i l i t y for Property Damage s To pay on behalf of the Insured a l l sums which the Insured shall become obligated to pay by reason of the l i a b i l i t y Imposed by law because of damage to or destruction of property, caused by accident occurring during the policy period. In order to obtain insurance, one must demonstrate an insurable interest. A necessary relationship between the person seeking insurance and the subject matter of the insurance, is an insurable Interest > such that the insured 106 would be prejudiced by an event which would give rise to a claim under the policy or would benefit i f such an event did not occur. Under a l i a b i l i t y insurance policy there must exist a potential l i a b i l i t y which may devolve on the insured; this l i a b i l i t y must be the subject matter of the insurance; and the insured must bear some relation to this subject matter which is recognized by law in consequence of which he stands to benefit by the absence of l i a b i l i t y or 1 be prejudiced by the creation of l i a b i l i t y . There are three main areas that the School Board and teachers should be concerned about in ensuring the physical safety of the students, and ultimately to keep the frequency of l i a b i l i t y Insurance claims to a minimum: 1. It is the duty of the School Board to maintain the school buildings and premises in a safe condition. Factors which might contribute to an accident such as condition of the floors, lighting of the stairs, safety of doors, provision of hand r a i l s and condition of the school furniture, should be maintained to prevent the possibility of accident. Even though i t is the duty of the School Board to maintain school equipment, the physical education teacher should make a point of checking f a c i l i t i e s and reporting any problems (in writing) to the School Board or to the school principal who would pass the information on to the Board. !• Public L i a b i l i t y Employer's L i a b i l i t y and Workman's Compensation Insurance. Toronto: Insurance Institute of Canada, 1959» P' 6. 107 2. The physical education teacher should ensure that his students are supervised and controlled properly. This is extremely important whenever any athletic or extra-curricular act i v i t i e s are being carried on with the approval of the School Board and under the supervision of staff members acting in their capacity as such. Of course, accidents are bound to happen due to the nature of the activities involved in physical education, but i f the provision could be shown to be adequate, no l i a b i l i t y w i l l attach. 3. The teacher and School Board's attitude towards acceptance of responsibility for medical or other expenses Incurred by third parties (the injured student's parents, or any member of the public) is important regarding accidents. The responsibilities of School Boards and their staff under the present law, and the financing of these responsibilities, do not include the payment of medical and other expenses resulting from an accident in school activities or on school property. However, i f the victim can prove that negligence on the part of the School Board or teacher was the cause of his injury, then l i a b i l i t y may exist. If a teacher is not negligent, he is not li a b l e , no matter how serious the injury nor how bad the consequences for the injured student. A physical education teacher may fe e l a moral obligation to a student because of extreme 108 suffering, hardship, or loss of bodily functions. But moral obligation is separate from a legal obligation, and i t cannot be litigated In the courts, nor can i t be Insured against or a figure placed upon It in terms of dollars and cents. Thus, the attitude of the School Board and teachers with regards to accidents should be one s t r i c t l y in accordance with their legal position. The parents of the students should be made aware of the position of the Board and teacher with regard to legal l i a b i l i t y , An effective way to inform them would be to send home to the parents of each student, a letter in this regard (Appendix A). 1 Levensohn (1965) states thati "Parents can be claimants as well as taxpayers, and a delicate situation occurs whenever i t i s necessary to reject a l i a b i l i t y claim, especially for an accident to a child. The situation can best be averted by offering pupil-accident insurance. If the medical expense is taken care of, parents tend to be less interested i n making a l i a b i l i t y claim or suing the d i s t r i c t . But making that coverage mandatory and requiring parents to pay the premiums can lead to another sort of d i f f i c u l t y in community relations". L i a b i l i t y Protection In Manitoba Members of the Manitoba Teachers* Society have enjoyed l i a b i l i t y protection as additional named insured agents of the School Boards since September, 1964. The policy provides coverage up to $250,000 per member for most conceivable areas of exposure including contractual l i a b i l i t y , property damage, and bodily Injury. The teachers 1. Levensohn, A., "A Schoolman*s Guide To Insurance Management", School Management. February, I965, p. 93. 109 are protected for any school or school-sponsored activity except where l i a b i l i t y arises from the operation of a self-owned automobile. 1. Bodily Injury,: As far as a physical education teacher is concerned, this i s the most Important area of coverage because personal Injuries are a frequent hazard. As a result of the following, the physical education teacher could be involved in a l i a b i l i t y s u i t : (a) acts In an Imprudent and negligent manner; (b) his supervision of a school-sponsored activity either inside or outside the classroom, was imprudent and negligenti and (c) he was aware of defective equipment and did not advise school authorities in writing. 2. Contractual L i a b i l i t y : In some circumstances a written "hold harmless" agreement may be made by a teacher with another party. The teacher assumes responsibility within the terms of such an agreement. For example, when equipment of a dangerous nature such as oxygen bottles are delivered to the school, the teacher may sign an agreement releasing the supplier from l i a b i l i t y . The teacher could be held liable i n this case i f an accident happens as a result of a defect in the equipment. The Manitoba Teacher's 110 Society policy covers the teacher in these circumstances and pays not only the damages which may be awarded but also the costs of investigations and legal services, provided the teacher has f i l e d with the Insurer a copy of the "hold harmless" agreement prior to signing the same. 3. Property Damages This clause in the insurance relates to damage Involving other's property which is neither in the care of or control of the teacher. This could affect the physical education teacher more than any other teacher in that there is considerably more opportunity for property damage to occur as a result of the activ i t i e s engaged in. For example, i f the physical education teacher was supervising a school baseball game, the baseball could easily be hit outside the school grounds and break the window of a parked car. An inexperienced javelin, hammer or discus thrower could also cause the same type of damage. Since the damage occurred to property not owned or in the care of the teacher, the insurance policy would cover a l l l i a b i l i t y claims and costs. It is interesting to note the cost involved in obtaining this type of insurance. For an individual teacher taking out a policy of this type, the premium would be about $1.00 per year, I l l 1 but the coverage would not be as extensive. However, the Manitoba Teachers' Society pays the policy premium out of the general revenue and the insurance protection averages less than 20$ per member. In summary, the insuring agreements of the policy protecting the teacher, provides for the payment of a l l sums (up to $250,000) resulting from l i a b i l i t y imposed by law upon the Insured for claims arising out of bodily injury, illness or death of any person or persons, and damage or destruction of property of others caused directly by an accident. Providing the teacher acts within the scope of his duties these sums are covered by the Insurance policy. Saskatchewan In Saskatchewan, the teacher appears to have adequate 2 protection as a result of Section 242 of The School Act. with respect to injuries to students, during school activ i t i e s not involving transportation. An unusual aspect of l i a b i l i t y coverage which needs some mention is injury to a teacher. To cover claims by i t s employees for damages suffered as a result of the negligence of the School Board, most Boards carry employers' l i a b i l i t y insurance to cover claims by Its employees for damages. 1. As cited by the Manitoba Teachers' Society, November 11, 1972. 2 < The School Act. Royal Statutes of Saskatchewan. 112 Where f a c i l i t i e s provided hy the school were defective the Board's l i a b i l i t y Insurance would cover i t . If a teacher is injured by another teacher's negligence, the normal rule that an employer is liable for the torts of his employee does not necessarily apply. Under the doctrine of common employment, i f the person causing and the person suffering an injury are fellow employees engaged in a common employment for the same employer, the employer, provided he has taken reasonable care in the selection of his employees, 1 i s not liable for the consequences of the injury. To protect himself in the event of a claim by another teacher, a teacher could purchase a personal l i a b i l i t y policy. Since this is such an unusual occurrence, comparatively few insurance policies of this type are purchased. However, in outdoor educational a c t i v i t i e s , where a number of teachers are Involved, the risk may be more substantial. Manitoba, compared to Saskatchewan, has made a special provision in their insurance coverage which contains a clause providing for cross l i a b i l i t y which means a teacher is covered under the terms of the policy for any action brought against him by another teacher in the same manner as i f separate policies were held by both teachers. In Saskatchewan, i f a third party, other than a pupil, is injured during school activities by a negligent teacher, the School Board's comprehensive general l i a b i l i t y policy 1. Dunbar, F.L., Out to Learn, Saskatchewan Department of Education Manual, 1973* p. 30. 113 normally would give the teacher protection against financial responsibility except that Involving a teacher-owned vehicle. Many School Boards provide and pay for school accident insurance for their pupils in the event of death or injury in the form of accident and d i s a b i l i t y insurance. The question of negligence is immaterial and these are paid on a "no fault" basis; i e . , i t does not matter who i s to blame for the Injury. The benefits paid are usually not very high, but i f the loss is suffered, the benefit is paid. In summary, nearly a l l School Boards in Saskatchewan now carry about $1 ,000,000 general comprehensive l i a b i l i t y coverage, $500,000 >$1,000,000 l i a b i l i t y coverage on school bus operations and various coverages with respect to pupil injuries. However, i t should be noted that the Research Branch of the Saskatchewan School Trustees Association has recently commissioned a comprehensive study of a l l School Board Insurance. As a result of this study, major changes may result in the method of protecting School Boards and pupils against the financial results of a legal case. Newfoundland The Newfoundland Schools Act requires School Boards to obtain insurance indemnifying the Boards against l i a b i l i t y in respect of any claim for damages or personal Injury. 1 The teachers are not presently Included under this insurance. 1. Stated in a letter from B i l l 0'Driscoll, Executive Secretary, Newfoundland Teachers' Association, November 7* 1974. 114 The School Board Federation is presently considering the possibility of a l i a b i l i t y policy to cover a l l Individual School Boards, but to date (1975). no action has been taken in this regard. The level of insurance carried by the School Board varies somewhat depending on the number of pupils and employees of the Board. As a general rule, however, the l i a b i l i t y insurance protects the Board up to an amount of one million dollars in any one Incident with an umbrella clause providing protection up to five million. At this time, the Newfoundland Teachers* Association is examining the possibility of taking out a l i a b i l i t y policy on i t s teachers. They have received cost quotations, but as of early 1975* they had not yet decided to purchase this type of insurance. This is indeed an unfortunate position for the teachers to be in. There have to date been no legal cases in the province concerning teacher negligence which resulted in injury to children. Unfortunately, in order to stimulate teachers to protect themselves against a legal suit, perhaps they w i l l be prodded into action when some teacher is actually sued. Hopefully, the School Boards w i l l remedy this before such a situation results, and provide coverage for the teachers. Nova Scotia & Alberta In the province of Nova Scotia, the Nova Scotia Teachers* Union has a l i a b i l i t y policy for i t s teachers. In Alberta, School Boards hold l i a b i l i t y policies for teachers. 115 British Columbia In the province of British Columbia, authority for School Boards to enter Into contracts for insurance is found in Section 178 of the Public Schools Act. There Is no separate insurance for individual teachers, as the teacher performs his or her duties for the School Board and can look to the School Board's policy for coverage. The B.C. Teachers* Federation also provides legal advice and legal aid to Its members in specific cases arising 1 from a teaching situation: "A member is entitled to legal advice on any problem that arises from his/her job as a teacher, and Is automatically entitled to free legal service in any case in which he/she is the defendant, provided that the President and General Secretary consider the case arose from a teaching situation. If they rule that a case i s not related to a teaching situation, the member may appeal their decision to the Executive Committee. If a member initiates a case, without reference to the B.C.T.F., he/she w i l l not be supported in ' the courts at B.C.T.F. expense, unless the Executive Committee has authorized support. The B.C.T.F. w i l l not pay the costs of a legal action in appeal against a court decision, unless the appeal is entered or opposed with the approval of the Executive Committee". As a result of the Thornton v. Edamura and Prince George  School District (1975) judgement of #1.5 million, the School Boards in British Columbia have raised their insurance policies to range between $1 million and $3 million. In 1. Members' Guide to the B.C.T.F., 1974-75, B.C. Teachers' Federation, p. 51. 116 view of this, i t is anticipated that many of the other Canadian provinces w i l l increase their insurance coverage to this range as well, i f they are not already adequately covered. Ontario The Ontario Teachers' Federation does not become involved in aiding teachers in the event of a legal suit. 1 It is the responsibility of each a f f i l i a t e body. There are five main a f f i l i a t e bodies: (1) Ontario Secondary School Teacher*s Federation (2) Federation of Women Teacher's Associations of Ontario (3) Ontario Public School Men teachers' Federation (4) L'Association Des Enselgnants Franco-Ontarlens and (5) Ontario English Catholic Teachers' Association. The Ontario Public School Men Teachers* Federation was instrumental in having the School Boards of the province 2 compelled to provide insurance. Recommendations Regarding L i a b i l i t y Insurance 1. When a somewhat hazardous activity is planned, and pupils are not covered under a general accident benefit policy, i t might be advisable to take out a special short term group accident policy effective for the 1. Stated in a letter from W.A. Jones, Secretary-Treasurer, Ontario Teachers* Federation, November 8, 1974. 2. Stated in a letter from R.L. Lamb, Secretary-Treasurer, Ontario Public School Men Teachers* Federation, November 12, 197^. 117 duration of the activity only. 2. When a teacher is planning to invite a guest teacher, student teacher, or a specialist in a certain area, to come to the school to instruct the students, he should phone the local School Board and inquire about the Board's l i a b i l i t y in this regard. Although no legal decisions are on record with regard to injuries arising out of the guest instructor's negligence, i t is lik e l y that the School Board would be held to have the same 1 l i a b i l i t y as for the negligence of an employee. 3. Although teachers are usually provided coverage by making them additional Insured under the school's l i a b i l i t y policy, i f they are not working on behalf of the school at the relevant time (e.g., giving coaching or attending a summer course for their private benefit), the school's policy would not apply and this may be an area where l i a b i l i t y coverage should be obtained. 1. Dunbar, F.L., Out to Learn. Saskatchewan Department of Education Manual, p. 31. CHAPTER VI TRANSPORTATION Transportation of students constitutes another area of potential danger that is of concern to the physical education teacher. When transport is provided by the local School Board buses, the teacher's l i a b i l i t y is lessened in the sense that i n the event of an accident, i f the bus driver is found negligent, then any law suit would likely be directed to the driver and the School Board. However, i f the teacher's conduct contributed to the damage, then he too, could be named In the case. In any event, the teacher would be required to act as a witness to the events ( i f he was present), and thus would suffer some loss from days away from school. With regard to transportation, the teacher should try to use the school d i s t r i c t ' s buses as the safest measure against any ensuing l i a b i l i t y . 1 Nolte (1964) , l i s t s a number of policies which should be followed in the transport of pupils: 1. The pupil transportation program should be completely under the guidance and control of a comprehensive set of written Board policies. Where the budget permits, the program should be under the administration of a specially trained bus dispatcher. 2. Only the highest quality of equipment should be used. Safety rather than economy should be the deciding factor. 1. Nolte, M.C., "Extraordinary Care Lessens Vulnerability", American School Board Journal, vol. 148 (June 1964), p. 42. 118 119 3. Only the highest quality bus drivers should be employed. Drivers should be required to take physical examinations at frequent i n t e r v a l s , including eye t e s t s , and close checks should be made of any change i n the physical condition of each d r i v e r . • 4v Periodic exhaustive examinations of moving equipment should be included i n the Board's plan. While accidents a r i s i n g from mechanical f a i l u r e may occasionally exonerate the Board from l i a b i l i t y , periodic checks w i l l often uncover potential f a i l u r e s before they have a chance to happen. 5. Bus routes should be l a i d out with top p r i o r i t y given to the safety of pupils transported. 6. Ample insurance coverage of the l i a b i l i t y type should be c a r r i e d at a l l times. Consultations between the insurance representatives, school attorneys, and top administrators plus a representative from the board should ar r i v e at what constitutes ample coverage under present conditions. ?. A complete program of pupil safety education should be provided, and each c h i l d should be required to become "safety conscious". Perhaps the most s i g n i f i c a n t l i a b i l i t y issue i s where the l o c a l School Board buses are not available f o r transporting 120 students, or perhaps the number of students involved is small. In this case, some P.E. teachers resort to transporting the students in their own cars. The potential for serious legal problems is considerably increased. In general, there is no duty imposed on teachers to transport students in their own cars unless this is a condition in the teacher's contract with the School Board. The School Board's duty is to provide vehicles for the conveyance of students in school related a c t i v i t i e s . The School Board i s also particularly concerned with the school d i s t r i c t budget and often seeks to reduce costs. In small school d i s t r i c t s , many excursions cannot be undertaken because of the limited finances of the Board for transportation. As a result, alternative transportation is often sought. One of the solutions is for the teacher to use his own automobile for transporting students. In this case, i t is important that the teacher be familiar with his l i a b i l i t y . As an example of l i a b i l i t y in this area, let us investigate ":• this concern in the province of British Columbia. Teachers have been consistently discouraged by the B.C. Teachers" Federation from using their own automobiles. However, teachers s t i l l continue to do so. If an accident occurs and the teacher is involved with criminal charges or c i v i l claims arising from his driving, then what is his position? 1 Grady (1975) » states: "Because the transportation of pupils, is not a 1. Grady, D., "Drive kids at your own risk", B.C. Teachers' Federation Newsletter, February 1975, p. 8. 121 duty of the teacher, i t is unlikely that legal aid w i l l be provided by the B.C.T.F. for any criminal proceedings. As to c i v i l claims, the teacher w i l l have to look to his/her own auto insurance policy. Regulations passed pursuant to the Automobile:' Insurance Act, appear to make the teacher's position more predictable". Sufficient protection against a l i a b i l i t y suit can only be provided by adequate insurance coverage. The teacher's position at present is f a i r l y well defined through the establishment of Autoplan and the Regulations passed pursuant to the Automobile Insurance Act of British Columbia. It i s l i k e l y that most teachers have insured their autos for pleasure driving only or possibly for driving to and from work. Autoplan regulations define the proper use or purpose of a vehicle without jeopardizing the insurance policy. An exemption which particularly affects teachers is provided in Regulation 6 .29 (i) which states: "The occasional and infrequent use by the insured of his motor vehicle for the transportation of children to or from school or school ac t i v i t i e s conducted within the educational program". Thus, the standard insurance policy held by the teacher protects him in transporting students i f certain conditions are met. The regulations are as follows: 1. The teacher must not transport students more than four times per month and less than 1,000 miles per year. This i s defined as •occasional use' in the Regulations. It must be noted, however, that the teacher w i l l contravene his policy i f he exceeds 122 this stipulation. For example, the teacher cannot miss a few months and then in any given month make up for the lost trips by exceeding four trips. This violation would make the insurance policy invalid. However, a criticism of this Insurance Corporation of B.C. stipulation i s that there are no limits or guidelines set as to how many miles can be travelled per t r i p with complete coverage in effect. Does the coverage on four trips of five miles apply equally to four trips of two hundred miles? Unfortunately, there have been no guidelines set in this regard. In order to get around the above regulation, the teacher should purchase additional coverage and rate his automobile for business rather than pleasure. This w i l l allow the teacher to transport pupils more than four times per month. When a vehicle i s to be used for more than 1,000 miles per year, i t should be rated for business use. Although this i s not found i n any specific regulation, i t is advised by the Insurance Corporation of B.C.. Should the teacher expect to transport students more., than 1,000 miles per year, then the vehicle should definitely be listed for business use. The 1,000 mile maximum per year appears to be a rather limited amount of allowable mileage when considering some school d i s t r i c t s . Where students in isolated areas must be transported considerable distances for competition, the yearly allowable maximum may be reached in only two trips or so. Thus, additional insurance coverage must be obtained for the protection of the teacher, and ultimately to allow 123 a more extensive school athletic program. 2. The School Board must be aware of and give approval to the school activities so ihey_are>considered as part of the educational program. Another concern is whether a teacher should accept money from his passengers for transportation, and whether volunteer drivers should be paid. 1 Grady (1975) » suggests: "Payment by the employer to the driver for the occasional use by the passengers w i l l not contravene the declaration that the vehicle is operated for pleasure purposes only". However, i f payment is made on a regular basis, then this practice may indeed contravene the category of a pleasure vehicle. An occasional payment, apparently is a l l right. Where the teacher is using his own automobile to transport students, then consent of the School Board should be obtained. They are in a position to accept or reject this as a means to transport students. If they accept, then should a suit be f i l e d later, regarding transportation, the Board could be automatically Involved. Also, where the teacher uses his own vehicle, the parents of the students should a l l be informed. The basic Autoplan policy provides for third party legal l i a b i l i t y of only #50,000. If a teacher does resort to transporting students, then he should automatically increase his insurance coverage to $1 million. The additional premium cost really amounts to very l i t t l e in the face of a possible legal suit in the millions of dollars. 1. Ibid. p . 8 . 124 Consider the possibility of four or five students rendered quadraplegic because of the teacher's negligence. Considering 1 a recent 1975 case, where the quadraplegic student was' awarded $ 1 . 5 million for his d i s a b i l i t i e s , the previous example could possibly result in a judgement in the figure of $5 million. Unless the teacher's auto insurance is sufficient, such a judgement could be totally devastating. The School Board in the Prince George School District where the. previously mentioned award was made, has now taken steps to cover the teacher in the use of his own auto for pupil transport. They pay the additional premiums for raising the basic insurance coverage from $50»000 to $ 1 , 0 0 0 , 0 0 0 . What are the teacher's l i a b i l i t i e s when another student drives his own or his parent's car? The teacher must keep in mind that he i s s t i l l 'in loco parentis' and as a result must be quite careful of which students he would delegate to assume such a responsibility. The teacher should be familiar with the student and feel confident that he is capable and mature enough to carry out his duties responsibly. If the teacher does not have this knowledge, he should make inquiries of other teachers in this regard. It is well to remember that the student w i l l l i k e l y have considerably less number of years of driving experience compared to the teacher. The safest route to the destination should be selected, even i f this means travelling a few extra miles. Any 1. Thornton v. Edamura and Prince George School D i s t r i c t . February, 1 9 7 5 . 125 student the teacher is aware of as being rowdy or irresponsible should be required to ride with the teacher. Most definitely, the parents of the students should be informed that another student i s driving. If the parents are not informed this could lead to serious consequences in the event of a legal suit. In Manitoba, the Manitoba Teachers': Society policy protects teachers for any school or school-sponsored activity except where l i a b i l i t y arises from the operation of a self-owned automobile. In this case, the automobile insurance carried by the operator; w i l l provide the protection. However, i f a teacher receives renumeration from students or other teachers, he is advised to have his automobile insurance policy adjusted to cover against l i a b i l i t y which may arise from an accident. In general, the insuring agreements of the Manitoba Teachers'V Society policy most generally applicable to teachers, provide for the payment of a l l sums (up to $250,000) resulting from l i a b i l i t y imposed by law upon the insured for claims arising out of bodily injury, illness or death of any person or persons, and damage or destruction of property of others caused solely and directly by an accident. If the teacher i s not acting within the scope of his duties, the policy w i l l not be applicable. An endorsement to the policy provides for payment up to $250,000 resulting from l i a b i l i t y imposed by law upon the insured for claims arising from the use of any non-owned 126 automobile provided that the teacher i s acting within the scope of his duties. In Saskatchewan, "there appears to be no reason to believe that the immunity granted to teachers under Section 2^ 2 of The School Act would not extend to injuries occurring out of accidents where the teacher was the driver of the 1 vehicle". General l i a b i l i t y insurance is carried by every School Board in the province. Provided the teacher is acting within the scope of his duty, then the School Board is jointly liable with the teacher for torts, including that of negligence. If the teacher was found legally liable in the operation of a vehicle, the Board's general l i a b i l i t y insurance would offer protection. Therefore, an injured passenger's claim would lik e l y be made against the teacher and School Board jointly, i f a teacher's driving was found negligent. Normally, the claim would be settled by the School Board's Insurance company. There is one situation in which the general l i a b i l i t y insurance of the School Board may not offer teacher protection. Under The School Act, there is a special limitation period within which actions against a School Board must be initiated - that being within six months from the time of the accident, with a possible extension to one year. However, The Vehicles Act limits' the period for automobile claims to one year, but i t may be extended longer under The Fatal Accidents Act. This discrepancy in the two 1. Dunbar, F.L., "Out to Learn", Saskatchewan Department of Education Manual. 12? acts indicates that in situations where there has been a delay in the p l a i n t i f f i n i t i a t i n g a suit, the p l a i n t i f f may not be able to claim against the School Board as employer of the teacher. Thus, the teacher may become the sole defendant in a law suit. In Saskatchewan, what protection i s offered to individuals (spouse or student) who may be driver of the teacher's car and not protected by section 242 of The School Act? Non-owned auto insurance can be purchased to cover not only teachers, but students and parents as well as anyone else, regardless of whose vehicle is being used. This coverage i s only applicable for authorized school 1 a c t i v i t i e s . . Dunbar states that : "Because this is such a new type of insurance coverage, i t i s not known how many school boards carry i t and again there is the problem that some activity may, in the future, be ruled not to be an authorized school activity. Many school boards as employers, carry standard non-owned automobile coverage which, in effect, puts a floor, frequently $500,000, on the protection against third party l i a b i l i t y , which an employee has while driving someone else's vehicle on business. Again there is the d i f f i c u l t y that the accident may occur on what is held not to be a school activity or when someone other than the teacher is operating the vehicle and i t has no effect i f the teacher's own car i s involved". Dunbar suggests that the teacher should carry a "package policy" on his vehicle. The third party l i a b i l i t y coverage for death or injury is only $30,000 under the compulsory "license plate" insurance. However, the limitation here, is that this type of insurance does not 1. Ibid. p. 29. i 128 give any "passenger hazard" coverage such that in the event of l i a b i l i t y for injuries to a passenger, the teacher would have no protection. Thus, a teacher would be foolish to rely only on compulsory coverage. Without additional coverage the teacher could face a tremendous risk of financial loss. It does not matter in which province a teacher teaches, additional insurance coverage should be purchased. The basic auto coverage i s not enough. Teachers are advised to familiarize themselves with the insurance coverages available from their own insurance company as well as any additional coverage which may be provided by the local School Board. CHAPTER VII MISCELLANEOUS CONSIDERATIONS FOR THE PROTECTION OF THE TEACHER AND THE SCHOOL SYSTEM Reporting Accidents When a student Is injured, the coach or physical education teacher must attend to the injury in a reasonably prudent manner. Only f i r s t aid should be rendered, and i f the Injury warrants i t , a physician should be called. The teacher must use his judgement in determining the seriousness of the Injury. He i s obligated to do the best he can i f Immediate f i r s t aid is warranted. He may be charged with negligence either because of lack of action or because of unwise action. Most physical education teachers have been required, at some time in their training, to take a f i r s t aid course. As a result of this training, i t is expected that he would possess the knowledge to act as a reasonably prudent trained person, able to provide r e l i e f to the injured student. However, i f the teacher acts In an imprudent manner and worsens the condition of the injured, then his actions could be held to be negligent. Having taken action, one must answer for i t . 129 130 The problem that arises is the question of how far one should go in providing f i r s t aid. There i s , unfortunately, no set rule. The teacher must have f u l l confidence in his knowledge regarding the injury and be able to trust his own Judgement. Perhaps, the only solid guideline to follow would be to adhere to the St. John's Ambulance First Aid Manual, and bear in mind that the teacher can be negligent for acting as well as not acting. By following the manual closely, the teacher should generally not be concerned about negligent procedures. The physical educator should administer f i r s t aid which is basically preserving l i f e and limb, alleviating pain, and making the victim comfortable. If he performs the functions of diagnosis, prescription or treatment he is acting in the scope of a physician. It should also be noted that i f the teachers calls in a doctor 'unnecessarily* and the student is not covered by insurance, the teacher could end up paying the charges. 1 Klafs and Arnheim (1969) , elaborate on procedures to follow when an accident occurs and no physician is present: 1. Make an immediate preliminary examination to ascertain the seriousness, type, and extent of the injury. 2. If the injury is recognized as being beyond the scope of your a b i l i t y , send for the physician Immediately. 1. Klafs, C.E., Arnheim, D.D., Modern Principles of Athletic  Training. St. Louis, C.V. Mosby Co., 1969, p. 22. 131 3. Give f i r s t aid i f i t is indicated. 4. Should the condition of the player be such that he requires removal from the area, determine whether he is in a condition that would warrant medical sanction before attempting to move him. If the player is unconscious or is unable to move under his own power with assistance, use a stretcher. When an accident, either minor or major occurs, i t is wise for the physical education teacher to keep a record of i t . If, at a later date, questions are asked regarding emergency procedures followed, a report which was f i l l e d out on the spot provides the specific information required. Such information as the following is important: 1. name, sex, age and grade of the victim. 2. place of accident, time and date. 3. activity in which the victim was engaged. 4. description of how the accident happened and the part of the body injured. 5. emergency procedures followed and the condition of the injured athlete. 6. names and signatures of at least two witnesses. 7. a letter should be sent home clarifying the circumstances of the accident. This prevents misinformation to the parent by the injured student or perhaps others. (Appendix A, B) 132 Parental Consent Forms The physical education teacher obviously cannot be as familiar with the individual limitations of a child as i s it s parents. The teacher, however, should put himself in the place of a parent, or in other words, in the place of what he would consider as a prudent parent. A parent should be advised in writing of the general nature of an activity that might be viewed as out of the ordinary. The reasonably foreseeable risks should be emphasized. The parent should be asked to show consent for the child's participation, by signing a parental consent form. However, such a consent does not amount to a waiver of claim to relieve anyone of legal l i a b i l i t y . The teacher has assumed a legal duty to protect the health, safety, and welfare of the student standing "in loco parentis" and the consent of the parent cannot alter or abrogate this duty. In addition to Its possible contribution to good public relations, the only value the permission s l i p serves is that the parents are made aware of the activity and are willing or not to allow the child to participate. The parental consent form also serves the purpose of providing the parents the opportunity of making the teacher aware of any individual limitations of the child, which the teacher might not otherwise have been notified about. 133 CO-EDUCATIONAL PARTICIPATION The growth of athletics for women in the last ten years has been phenomenal. Along with this, coaches, parents, and women's liberation groups have protested that the schools were not providing the opportunities for intercollegiate and interscholastic competition for women. Many high school athletic associations in the United States have been sued for discriminatory regulations against women's participation in sports. In Canada, there has been a number of related court cases. The United States Education Amendments Act of 1972 includes an adjunct labeled T i t l e IX which forbids sex 1 discrimination in a l l institutions using federal funds. In Canada, in 1975» a 'sex* resolution was proposed by the B.C. Teacher's Federation which stated "that in accordance with the B.C. Human Rights Code, a l l courses, programs, acti v i t i e s and clubs sponsored by schools shall 2 be open to a l l students regardless of sex". It should be noted, though, that this resolution i s s t i l l only at the proposal stage. There are a number of legal issues of concern here, regarding the above policies. Problems arise, however, 1. Slaughter, M., "Should Women Athletes Be Allowed to Play on Men's Teams?" The Physical Educator, vol. 32 (March 1 9 7 5 ) , PP. 9-10 . 2. "School Coaches Oppose B.C.T.F. 'Sex' Resolution", The Vancouver Sun Newspaper, May 1 0 , 1 9 7 5 . 134 i f for economy, school administrators decide to open a l l teams to "both sexes to meet the legality requirements. In this case, only the exceptional athlete would have the opportunity to compete and this would, inhibit rather than ':< promote the development of sport programs for women. Ultimately, i t could entirely eliminate the female school teams i f the basis of team selection continued to be on s k i l l level. Another fear is that the better female athletes w i l l be drawn to sex-integrated teams and thus impair the development of quality sports programs for g i r l s . The American physical education teacher i s indeed faced with a dilemma. The Canadian teacher in the future, could be also, i f a similar stand as their neighbours is adopted in the schools. One of the problems is to determine which activities would be suitable for the curriculum in view of the co-ed requirements. One of the major concerns i s the issue of contact versus non-contact sports. It may, in fact, be unconstitutional to deny a male or female the right to seek team membership on the basis that the majority of one's sex do not typically engage in that type of activity. Is the potential for injury in contact sports a sex-related factor? In 1972 , 1 the Minnesota Law Review rejected this on the basis that the only valid objection to female participation with males is that intimate body contact between opposite sexes at the adolescent age might offend some participants and/or 1. Minnesota Law Review, vol. 57» P« 3 5 0 . 135 spectators. Since there have been no court cases in Canada or the United States concerning injuries sustained on a co-ed team, as a result of mismatched a b i l i t i e s or strength, i t would be d i f f i c u l t to predict the direction school teams w i l l take. Likely the trend towards co-ed participation i s here to stay, but i t w i l l l i k e l y be modified and some sort of restrictions placed upon i t . In November 1974, the f i r s t Delegate Assembly of the Association for Intercollegiate Athletics for Women in the United States expressed concern as to the implications that T i t l e IX would have on the development of women's sports. 1 The Assembly made the following resolutions: WHEREAS A single team for which men and women compete to become members strongly discriminates against women due to sex-determined physiological disadvantages in strength and speed. WHEREAS A mixed (co-ed) team for which participants compete against members of their own sex for membership on the team, and for which an equal number of males and females compete on opposing teams, i s not discriminatory to either sex. BE IT RESOLVED There SHALL BE separate teams for men and women. No male student may participate on a women's intercollegiate team. No female student may participate on a men's intercollegiate team. In addition to separate teams for men and women, intercollegiate mixed (co-ed) teams composed of an equal number of males and females competing on opposing teams are DESIRABLE^ in these sports in which such teams are appropriate. It appears that the issue is far from being resolved. 136 Many physical educators and coaches w i l l be involved in court cases concerning discriminatory practices and right to participate on certain teams. This could result in a complete change in emphasis regarding school curriculum. Sex-integrated teams are not objects of the future, but are real, here and now. It is an issue that the physical educator and coach w i l l be required to deal with. It w i l l require careful consideration in order to prevent problems going to the courts for solution. SUMMARY AND CONCLUSIONS In summary, whether or not a defendant has been negligent is a question for a judge or jury to decide - a Jury of laymen, not teachers or professional educators. The decisions of laymen w i l l determine the question of negligence in a given case, and this may v i t a l l y affect the i i curriculum and i t s administration. Therefore, i f a teacher is aware of his common law position, he w i l l always be thinking about ways and means of carrying out his teaching duties. Good discipline, good organization and previous instruction appear to be a solid basis for a program which w i l l decrease the chances of l i a b i l i t y . These three components can be enhanced by the teacher's knowledge of his potential tort l i a b i l i t y as established by the statutes and common law in the area in which he teaches. This study of the cases involving the physical education teacher would seem to justify the following principles as being applicable to the Canadian scene, in regard to the tort of negligence: 1. By statute and common law, the teacher stands "in loco parentis" to his students. As a result, the teacher is charged with the duty to exercise the same degree of care that a "careful parent" would for his own children. 2. If a teacher is acting within the scope of his duty at the time of the alleged negligence, then, in 137 138 most cases he can look to the School Board's insurance policy for protection. 3. It is the duty of the local School Board to take care of equipment and f a c i l i t i e s . 4. The teacher cannot delegate his responsibility i for supervision. He may allow another person, equally qualified and knowledgeable, to assume the duty, but that person does not assume the responsibility. 6. To protect against serious legal consequences, a physical education teacher should be sure that he is protected at least up to |1 million for general l i a b i l i t y and the same amount of coverage i f he uses his own automobile for transporting students. This study has investigated the physical education teacher's position with regard to legal l i a b i l i t y . The knowledge derived from the topics covered is valuable in the sense that the teacher may be made more aware of the areas of potential danger and attempt to conduct his or her classes with these Issues in mind. The ultimate result of this knowledge should be safer and more satisfying programmes for the students and greater confidence on the part of the teacher that he or she may be able to take measures to avoid a law suit during his or her teaching career. BIBLIOGRAPHY BAKER, B.B., "Physical Education and the Law - A Course for the Professional Preparation of Physical Educators", The Physical Educator, 2 9 : 6 3 - 6 5 , May, 1 9 ? 2 . BARGEN, P.P., The Legal Status of the Canadian Public School  Pupil, The MacMillan Co., TorontoT 196*1. BELL, D.G., "Torts and Teachers"..Minnesota Journal of  Education. 4 5 : 1 4 - 1 6 , January, 1 9 6 5 . BIRD, P.J., "Tort L i a b i l i t y " , Journal of Health, Physical Education, Recreation, vo1. 41,"January, 1 9 7 0 . BOLMEIER, E.G., "Trends in Pupil Transportation Litigation", American School Board Journal, 1 4 0 : 3 8 - 4 0 , i 9 6 0 . BRUCE, W.C., "Schoolsand Tort L i a b i l i t y " , American School  Board Journal, 1 4 5 : 3 2 , August, 1 9 6 2 . ~" BULA, M.R., "Personal L i a b i l i t y of the Coach and Physical Education Teacher", Athletic Journal, 4 5 : 4 6 - 4 7 , June, 1 9 6 5 . BURRUP, P.E., The Teacher and the Public School System, New York: Harper and Row, I 9 6 7 , "Tort L i a b i l i t y " , p. 243-247. CARLSON, G.T., " I ' l l be Suing You Coach", Educational  Digest, September, 1 9 5 7 . CHAMBERLAIN, L.M., KINDRED, L.W., The Teacher and the School Organization, New Jersey: Prehtice-Hall Inc., 196"6T~""Tort L i a b i l i t y " , p. 245-249. COVEY, B.S. (Sr.), "Who is at Fault When a Bus Driver has an Accident?", Association of School Business  Officials U.S. and Canada Proceedings, 48:249-250. T9ET. DRURY, R.L., BAY, K.C., Principles of School Law, New York: Appleton-Century-Crofts, 1 9 6 5 , "Tort L i a b i l i t y " , p. 9 5 - 1 0 2 . DUNCAN, V.C., "Teacher, beware, your l i a b i l i t y i s showing!" Catholic Schools Journal. 6 7 : 8 5 - 8 7 , March, I 9 6 7 . DUNBAR, F.L., Out to Learn, Saskatchewan Department of Education Manual. DZENOWAGIS, J.G., "College Sports - Accidents, Injuries", Safety Education, vol. 4 l (March 1 9 6 2 ), pp. 3-5. 1 3 9 140 EDWARDS, N., The Courts and the Public Schools, Chicago: University of Chicago Press, 1 9 5 5 . p. 393-^36 . FAHR, S.M., "Legal L i a b i l i t y of Athletic Injuries", Journal Of Health, Physical Education. Recreation, February, 195"H GARBER, L.O., "Does Pupil Insurance Hold in Private Car _ Accidents?", Nations Schools, 7 7 : 7 2 , January, 1966 . GARBER, L.O., "Schoolman Can Be Sued When Students Ride _ In His Car", Nations Schools, 7 2 : 5 ^ , October, 1 9 6 3 . GARBER, L.O., "Field Trips and Excursions", Nations Schools, 56:82-85, September, 1955 . GARBER, L.O., REUTTER, E.E., "Tort L i a b i l i t y of School Districts, Officers, and Employees", Yearbook of School Law, Danville, I l l i n o i s : Interstate Printers and Publishers, 1 9 6 7 , p. 63-87 . GAUERKE, W.E., School Law. The Library of Education, Center for Applied Research in Education, New York, 1 9 6 5 , p. 82-111. GILES, J.W., " L i a b i l i t y of Coaches and Athletic Instructors", Athletic Journal, 42:18-19, February, 1 9 6 2 . GLENN, J., " L i a b i l i t y of the Teacher", New York State  Educator, 5 3 : 1 6 - 1 7 , October, 1965 . GOLD, S.Y., GOLD, G.F., "First Aid and Legal L i a b i l i t y " , Journal of Health, Physical Education and Recreation. 34:42-43. GRIEVE, A., "Legal Considerations on Equipment and F a c i l i t i e s " , Athletic Journal, February, 1 9 6 7 . GRIEVE, A., "Legal Aspects of Spectator Injuries", Athletic Journal, 4 7 : 7 4 , April, 1967 . GULEY, M., " L i a b i l i t y for School Accidents. The Legal Aspects of Injuries in P.E. and Athletics". Unpublished (Ed.D.), Syracuse University, 1 9 5 2 . HAMILTON, R.R., MORT, R.R., $he Law and Public Education. New York: Foundation Press, 1 9 5 9 , " L i a b i l i t y of School Districts, Officers, and Employees", p. 279-356 . HOLMES, O.W., The Common Law, Boston: L i t t l e , Brown and Company, 188l. JORDAN, W.L., " L i a b i l i t y and School Athletics", Athletl Journal , 4 5 $ 7 6 , September, 1964 . c 141 KIGIN, D.J., "Would you be liable i f . . . . " , Safety  Education, 4 3 j 2 - 7 , February, 1 9 6 4 . KIGIN, D.J., "Ten Cases of the Negligent Teacher", Safety Education, 4 4 : 1 2 - 1 6 , December, 1 9 6 4 . KOEHLER, R.W., "Prudence Brother, Prudence", The Physical  Educator. 2 9 : 2 9 - 3 0 , March, 1 9 7 2 . LAMB, R.L., "Legal L i a b i l i t y of School Boards and Teachers for School Accidents", Research Study No. 3 , Research Division Canadian Teachers' Federation, March, 1959 . LEIBEE, H.C., Tort L i a b i l i t y for Injuries to Pupils, Ann Arbor: Campus Publishers7l9^5• LEVENSOHN, A., "A Schoolman's Guide To Insurance Management", School Management, February, 1 9 6 5 , p. 93» McCURDY, S.G., The Legal Status of the Canadian Teacher, MacMillan Co., Toronto, 1 9 6 8 7 MILLER, K., "The | 1 5 0 , 0 0 0 Question", Journal of Physical  Education, 1972 . MUNIZ,. A.J., "Teacher, Pupil Injury and Legal L i a b i l i t y " , Journal of Health, Physical Education and Recreation, 33:28, September, 1962. NIXON, H.1 "Implications for Physical Education Resulting from the Strasbourg Case", The Scoreboard, Saskatchewan Physical Education Association, vol. 1 , no. 1, 1 9 6 5 , p. 18-19. NOLTE, M.C., "What Is Legally Adequate Playground Supervision?" American School Board Journal, vol. 150 , February I 9 6 5 , pp. 42 -43. NOLTE, M.C., "Extraordinary Care Lessens Vulnerability", American School Board Journal, vol. 148 (June 1 9 6 4 ) , pp. 40-42. PHLEGAR, F.L., "School Law and the Teacher", Virginia  Journal of Education, 6 0 : 2 0 - 2 2 , May, 1967. PINDERA, W.J., " L i a b i l i t y Protection for Teachers in Manitoba", Unpublished Paper, November, I 9 6 9 . REMMLEIN, K., School Law, (2nd Edition), Interstate Printers and Publishers, Danville, I l l i n o i s , 1 9 6 2 . RICE, S.W., "Suit for the Teacher", Journal of Health Physical Education and Recreation. 32:24^25, November, I 9 6 I . 142 ROACH, S.F., "Injuries to pupilss i s the school board liable?" School Management. 7 : 3 6 , June, 1 9 6 3 . ROACH, S.F., "School Board l i a b i l i t y for negligence of it s Teachers", School Management, 8:36, September, 1964. ROACH, S.F., "School Safety patrols concerned with the transportation of pupils", School Management, 8:18, December, 1964. ROSENFIELD, H.N., "Guilty! the law looks at school accident cases", Safety Education, 42:12-16, April, I 9 6 3 . SCHAERER, R.W., "L i a b i l i t y , l i a b i l i t y insurance and the school business manager", American School Board  Journal, 149:5-7, July, I9W. SCOTT, J.C., "School boards and common law l i a b i l i t y " , The B.C. School Trustees, F a l l , 1 9 6 4 , p. 8 - 9 . SCOTT, J.C., "School boards and common law l i a b i l i t y " , The B.C. School Trustees, Winter, 1964, p. 22-23. i SCRIVEN, E. , "Youre Not to Blame, But. " Safety. Education, 40:2-5, March, 1961. SEELEY, D., "School Accidents and Teacher L i a b i l i t y " , Journal of School Health, vol. 32 (May I 9 6 2 ), pp. 190-191. SEITZ, R.C., "When Are You Responsible for Pupils?" Catholic School Journal, 59*64-66, November, 1959. SHAPIRO, F:.SJ., "Your l i a b i l i t y for school accidents", National Education Association Journal, 54:46-47, March, 195TT~ SHAW, R.M., "Subject: your legal obligations", Ohio Schools, 44:21-22, September, 1966. SHAW, R.M. , "In Loco Parentis'", School Executive, May, 1955. SHROYER, G., "How's your l i a b i l i t y insurance?", School  Management, 7:91-92, September, 1963. SHROYER, G., "Coach's legal l i a b i l i t y for athletic injuries", Scholastic Coach. 34:18, December, 1964. SMITH, W.W., "Trend toward tort l i a b i l i t y " , Catholic School Journal. 61:62, November, 1961. TENER, M., "Coach's Legal L i a b i l i t i e s " , Scholastic Coach, 33:50-51. November, 1963. ~~ : : 143 TBAUFLER, M.E., "Discovering the world safely; facts you should know before taking a f i e l d t r i p " , Safety Education, 4 4 : 2 - 5 , February, 1 9 6 5 . TRUBITT, H.J., "Legal responsibilities of school teachers in emergency situations", Journal of School Health. 36:22-28, January, 1 9 6 6 . WARE, M.L., "Is the Teacher Liable?" National Education Association Journal. 4 ? : 6 o 3 - 6 o 4 , December, 1 9 5 8 . WOODS, J.B., MAURIES, T.J., DICK, B.V., Student Teaching. Academic Press, New York, 1 9 7 3 « ~ YOU AND THE LAW, Reader's Digest Association (Canada Ltd.), Montreal, 1 9 7 3 . PERIODICALS TIMES EDUCATIONAL SUPPLEMENT, "Law Unto Themselves", 2383s99, January 2 0 , I 9 6 I . NATIONAL EDUCATION ASSOCIATION RESEARCH DIVISION, "School laws and teacher negligence; summary of Who i s liable for pupil injuries?", 4o:75-76, October, 1 9 6 2 . TIMES EDUCATIONAL SUPPLEMENT, "Negligence and the law; a case for insurance", 2 6 2 0 : 2 3 6 , August 6 , I 9 6 5 . (London) NATIONAL EDUCATION RESEARCH BULLETIN, "School Laws and Teacher Negligence", vol. 4o, No. 3 , October, 1 9 6 2 . NEWSPAPERS THE PROVINCE NEWSPAPER, Vancouver, B.C., January 2 5 , 1 9 7 5 . LEGAL REFERENCES BLACK'S LAW DICTIONARY, West Publishing Co., St. Paul, Minnesota, 1 9 5 1 . CLERK & LINDSELL ON TORTS, 1 2 t h Edition, Sweet and Maxwell Limited, London, 1 9 6 l . THE CANADIAN ABRIDGEMENT, (2nd Edition), The Carswell Company Limited, Toronto, 1 9 7 ^ . THE CANADIAN ABRIDGEMENT, (2nd Edition), Vol. 3 5 , The Carswell Company, Toronto, 1 9 7 3 . CANADIAN INSURANCE LAW REPORTS, No. 2 1 9 , March 24, 1 9 6 9 . 144 CANADIAN INSURANCE LAW REPORTS, No. 243, March 5. 1 9 7 1 . HALSBURY'§ LAWS OP ENGLAND, 3rd Edition, Butterworth & Company, London, 19 54. HERBERT, A.P., Misleading Cases in the Common Law, Methuen and Co., London, 1928. ~ HEUSTON, R.P.V., Salmond on the Law of Torts, (11th Edition), London: Sweet and Maxwell Ltd., 1953. PROSSER, W.L., Handbook of the Law of Torts, West Publishing Company, St. Paul, 1964. ~" STATUTES PUBLIC SCHOOLS ACT. Royal Statutes of British Columbia. THE SCHOOL ACT. Royal Statutes of Saskatchewan. THE PUBLIC SCHOOLS ACT. Royal Statutes of Manitoba. THE PUBLIC AUTHORITIES PROTECTION ACT. Royal Statutes of Alberta. THE PUBLIC OFFICER'S PROTECTION ACT. Royal Statutes of Saskatchewan. THE PUBLIC OFFICER'S ACT. Royal Statutes of Manitoba. THE PUBLIC AUTHORITIES PROTECTION ACT. Royal Statutes of Ontario. THE STATUTE OF LIMITATIONS. Royal Statutes of Nova Scotia. 145 LAW REPORTS ABBREVIATION LAW REPORT A.C. Canadian Reports, Appeal Cases A l l E.R. A l l England Reports B • C • R • British Columbia Reports , 0 • G • C • Canadian Criminal Cases D.L.R. Dominion Law Reports M.P.R. Maritime Provinces Reports N.B.R. New Brunswick Reports N.S.R. Nova Scotia Reports O.L.R. Ontario Law Reports O.R. Ontario Reports O.W.N. Ontario Weekly Notes O.W.R. Ontario Weekly Reports Q.B. Queen*s Bench Q.B.D. Queen's Bench Division S. C. R. Supreme Court Reports W.W.R. Western Weekly Reports 146 TABLE OF CASES Adams v. Board of School Commissioners for Halifax, (1951) 2 D.L.R. 816. Agar v. Canning (Manitoba), (1965) 54 W.W.R. 302. Affirmed 55 W.W.R. 384 (C.A.). Bauer v. Board of Education of the City of New York, 1955. Beauparlant v. Appleby Separate School Board of Trustees (Ontario), (1955) O.W.N. 286, 4 D.L.R. 558. Bisson v. Corporation of Powell River, (1967) 62 W.W.R. 707. Boivin v. Glenavon School District, (1937) 2 W.W.R. 170 Saskatchewan C.A..'"" Brost v. Ti l l e y School Dis t r i c t (Alberta), (1955) 15 W.W.R. 241 (C.A.). Butterworth et a l v. Collegiate Institute Board of Ottawa, (1940) 0TW7N.~332. :  Camkin v. Bishop, (1941) 2 A l l E.R. 715. Canadian Bread Co. v. Grigg (Ontario), (1946) O.W.N. 337; 2 D.L.R. 374 (C.A.). Carlson v. Chochinov, (1947) 1 W.W.R. 755, (1947) 2 D.L.R. 641. Davis v. London County Council (England), (1914) 30 T.L.R. 275. E l l i s and E l l i s v. Board of Trustees of Moose Jaw Public School  District (Saskatchewan), (1946) 2 D.L.R. 697 (C.A.); 2 W.W.R. 19 affirming 1 W.W.R. 199. Gard v. Board of School Trustees of Duncan (British Columbia), T1946) 1 D.L.R. 352; (1945) 3 W.W.R. 485, appealed and reversed (1946) 2 D.L.R. 441. Hall et al. v. Thompson et al (Ontario), (1952) 4 D.L.R. 139 TC.A.); O.W.N. 478. Heisler et al v. Moke et a l , 2 O.R. (1972) 446. Johnson v. Kwon Poo Wong (British Columbia), (1957) 22: W.W.R. 565. Koch v. Stone Farm School District (Saskatchewan), (1940) 2 D.L.R. 602; 1 W.W.R. 441^ • 147 Lamarche et al v. Board of Trustees of the Roman Catholic Separate Schools for the Village of L'Orignal (Ontario), (1956) O.W.N. 686. LeLievre v. Gould (1893), Q.B. 491. Levine v. Toronto Board of Education (Ontario), (1933) O.W.N. 152; O.W.N. 238 (C.A.). M'Alister v. Stevenson, (1932) A.C. 562. McKay et al v. Board of Govan School Trustees (Saskatchewan), (T9"67T 62 D.L.R.~5"03. 1 — Minnesota Law Review, vol. 57, 1972, p. 350. Modde.jonge et a l v. Huron County Board of Education et al . U972)"2 OTRT 4 4 4 ~ ~ — — — ~ Murray et al v. Board of Education of the City of Belleville (Ontario!, (1943) O.W.N. 4 4 , 1~D.L7R.~?94.— ' -Pearson v. North Vancouver Board of School Trustees (British Columbia) , (1941) 2 W.W.R. 874;. 58 B.C.R. 157." Patterson v. North Vancouver Board of School Trustees and also v. Canadian Robert DolTar'Company (British Columbia!". T1929) 2 W.W.R. 181; 3 D.L.R. 33 (C.A.). Placatka v. Thompson (Alberta), (1941) 1 W.W.R. 528; 2 D.L.R. ~32"0" "CCA.). ~~ " Pook et al v. Ernesttown School Trustees (Ontario), (1944), 4 D.L.R. 268; O.R. 465;'O.W.N. 543. Rawsthome v. Ottley (1937), 3 A l l E.R. 902. Ricketts v. Erith Borough Council (1943), 2 A l l E.R. 629. Schade v. Winnipeg School District (Manitoba), (1959) 28 W.W.R. "~B"57. ." . . " •..-•??•:• Schultz v. Grosswold School Trustees (Alberta), (1930) 1 W.W.R. 579; 3 D.L.R. 60Wi ~" ~ ' Scoffield et a l v. Public School Board of North York (Ontario), (1942) O.W.N. 457 (C.A.). Streikler v. New York, 15 App. Div. 2d 927, 225 N.Y. Supp. 2d 602 (19625T Thornton v. Board of School Trustees of School District No. 57 (Prince George), Supreme Court of British Columbia, January 23, 1975. 148 Toronto Board of Education and Hunt v. Higgs, (1960) S.C.R. — 174. Wiebe v. Board of Education of the Saskatoon_ School District  #T3 of Saskatchewan and Mariorle Cattell (Teacher) of the City ofSaskatoon (1973). Cited in a letter from M.M. Lofstrom, Executive Assistant, Saskatchewan Teachers' Federation, November 8, 1974. 149 APPENDIX A The contents of the following letter were drafted by 1 J.M. Scott (1964) . The author of this thesis has made slight modifications i n the original wording. At the beginning of each school year, each parent should he sent one of these forms. LIABILITY OP SCHOOL BOARDS FOR INJURY TO STUDENTS Dear Parents* In order to avoid any future misunderstanding, your School Board and Physical Education teacher wish to take this opportunity to advise you of the degree of duty owed by the School Board and teacher to pupils and/or their parents, in regard to the protection of pupils from accidental injury when going to, attending, or returning from, any school or school sponsored function. , While the School Board investigates a l l accidents occurring on school premises involving injury to pupils and obtains a f u l l report of the circumstances, the majority of accidents result from actions of the students themselves. Children, whether attending school or not, tend to be accident prone and frequently get hurt, either In the course of overly boisterous play, or merely as a result of their own or other pupils' thoughtlessness or carelessness. The School Board and the Physical Education teacher i s often no more able to prevent the occurrence of accidents 1. Scott, J.M., "School Boards and Common Law L i a b i l i t y " , B.C. School Trustees. F a l l , 1964, p. 23. 150 of this type than you are as parents. Therefore, the School Board and Physical Education teacher cannot and does not accept, nor can i t be legally forced to accept responsibility for payment of any medical expenses which may arise from accidents of this type. However, i f the School Board or one of i t s teachers are negligent and this results in an injury to one of the pupils, then the situation with respect to responsibility for actual out of pocket medical expenses may be changed. Under these circumstances, the matter would be governed s t r i c t l y by law. Yours truly, (Physical Education teacher) (School District Secretary-Treasurer) APPENDIX B 1 Scott (1964) proposed the following letter be sent to the parents of a student injured in an accident causing bodily harm. Slight modifications have been made by the author of this thesis. A copy of this should be retained by the teacher in the.event that parents pursue a legal suit. Deaf , I regret that your s on/daughter ' was hurt in an accident which occurred at the • School at _ _ _ _ _ _ a.m./p.m. on the day of , 1 9 _ . Prom my understanding, the accident was caused by Children, whether attending school or not, tend to be accident prone and frequently get hurt, either in the course of boisterous play or merely as a result of their own or other pupils* thoughtlessness or carelessness. You w i l l appreciate, therefore, that the Sjahool Board or the Physical Education teacher cannot accept responsibility for medical expenses resulting from any Injuries sustained in such accidents, unless, of course l i a b i l i t y i s found on the part of the Sohool Board or teacher. , Should any expenses be involved, we trust, you w i l l be 1. Ibid. p. 23. 152 able to recover these under whatever form of personal prepaid medical expense coverage you may carry. Yours truly, (Physical Education teacher) Witnesses to the Accident (Signatures) es on Teacher A teacher acting in the course of his employment is not suable on allegations of negligence if a student in his charge is injured, according to a -judgment handed down July 19 by Mr. Justice E. N. Hughes of the Court of Queen's Bench. The judgment was made in the case of Saskatoon teacher Marjorie Cattell who, with the Saskatoon public board of educa-tion, was being sued for negli-gence as a result'of an incident in which a student was injured during a gym class. _ In dismissing the action against Mrs. Cattell, Judge Hughes ruled that section 242 of the School Act was a good and complete defence-for her. That section reads: "Where the^ board, the principal or the' teacher approves or sponsors acti-vities during the school hours or at other times the teacher shall not be liable for damage caused by pupils to property or for per-sonal injury suffered by pupils during such activities." Commenting on the judgment, Harry Dahlem, counsel for the STF, said it is the first time a court has ruled a teacher is not suable if the allegations are that he is guilty of negligence. The ruling, he said, means if there is liability it should fall on the school board and not on the teacher. Also, Mr. Dahlem said, the ruling sets a president which may be used in any future cases in which a teacher is alleged to be negligent while acting in the course of his employment as a teacher. While the ruling cannot prevent action being brought against a teacher, the precident can be used in obtaining a dismissal of such an action, he said. The action against the Saskatoon public school board is continuing. > o M X o a 154 APPENDIX D THE CANADIAN RED CROSS SOCIETY WATER SAFETY SERVICE B.C.-YUKON DIVISION (This a r t i c le by Karl Mi l ler was published by the Journal of Physical Education) THE $150,000 QUESTION Want to face up to a real j o l t - - and look at the responsibi l i t ies of a professional nature, in a coldly r e a l i s t i c manner? If you do, then just get yourself, as I have, mixed up in a $150,000 law suit for damages for alleged negligence in the operation of a swimming pool. This was incident to a drowning we had in our pool more than four years ago. The parents of the deceased young man, aged 19, were suing the pool management for that amount. Our insurance company was fighting the case and our lifeguard and I were the principal witnesses. Both of us were on the witness stand for the better part of two days, before a solemn judge and an equally sol em jury. The opposing attorney tore into us in a traditional way and gave us more than casual concern about not only the outcome, but the whole problem of operating a swimming pool correctly. The fact that the jury brought back the verdict of 11 to 1 in favour of our insurance company fa i l s to lessen the impact of this experience upon me — and a l l others involved. I wish that a l l professional pool operators could have a similar experience. I wish this because the situation is a l i t t l e l ike guarding a pool. Ever done i t? The hours drag. Final ly the hours turn into days, then weeks, and months and often years, without anything happening. The senses become d u l l , the attentiveness cloudy, the reactions blurred — but the danger i s s t i l l always there. Then, suddenly i t happens and the person on duty is supposed to have the same degree of alertness, sens i t iv i ty , reaction and eff ic iency that he had during the f i r s t hour on the job, days or months ago. I t ' s l ike being a fireman. You s i t around for days and weeks at a time and nothing happens. But when the bell r ings, you had better be ready with a l l the eff iciency and alertness needed for maximum performance. An experience such as I have just been through wi l l for a long time alert the guard, staf f and pool operators and those responsible for the administration of pools to the constant necessity of vigilance in relation to staf f att itudes, habits, and methods. Perhaps a review of some of the questions asked me by the prosecuting attorney wi l l help to indicate what you might be asked and what would be expected of you i f such an experience ever took place in your c i t y , with you as the guy on the witness stand. It could happen to you, you know. If i t does, you had better have the right answers. Here are a few that were shot at me: 155 - 2 -- What was the condition of the l ights at the time of the accident? - What was the degree of turbidity of the water? - Where were the guards? - Who got the body out of the pool? - How old was the guard? - What were his qual i f ications? - How many hours had he been working without re l ie f? - What were his duties other than the protection of human l i f e ? - What was the guard doing at the time of the accident? - Can you adequately guard a pool of this size and give swimming , help to an individual? (The guard in this case was helping to correct the stroke of a weak swimmer along the shallow end of the pool.) - How often does the guard c i r c l e the pool? - What causes the pool to be cloudy? - Where is the guard stationed? - How many l ights are in the pool area? . - What wattage are they? - Could you see the bottom of the pool clearly? - What are your qual if ications as a supervisor to the guards? - Have you ever guarded a pool? - Do you know the state laws regarding the working conditions of a person under twenty-one years old? - How long does i t take for a person to drown? - Does he always make an outcry or thrash around in the water? - What did the guard do upon seeing the body? - Did he give a r t i f i c i a l respiration? - What type did he use? - How long did he apply i t? - Did he cal l for help? When? - What did the witnesses say and do? Well, I could go on, but this gives you a rough idea. This experience pointed out to me that one cannot possibly be too careful or di l igent about such a dangerous thing as a swimming pool. One minute of laxity on the part of a careless or poorly oriented guard may undo the good work of years in teaching swimming and l i fesaving. Seldom does the good deed in the aquatic program ever make the front page of the newspaper, but just wait until you have the f i r s t drowning ~ you are right there in bold black print. I know from experience that i t i s n ' t funny. Of course I am assuming that you have 100 percent adequate coverage in your pool. I would not work for a pool that was so narrow-minded as to not ins i s t upon total coverage. However, I wi l l wager that half the pools in this country are without adequate coverage. This is a shocking thing. If we have no legal responsibi l ity because of a technicality in terminology at least we can surely have a moral obligation which cannot be ignored. 15 6 - 3 -Most associations that do not have total coverage plead lack of funds. That is a lot of hogwash. No organization should carry on a physical education program unless they can do i t within the bounds of at least average safety. Less than total coverage in your pool is a long, long way below average safety. Yes, the $150,000 question is whether you have the right to be le f t responsible for administering a swimming pool, with i ts ever present danger to human l i f e . This is not joke — nothing that you can turn over to an aid or a casual volunteer. Many pools have been just plain lucky. But some day their luck may run out. The guy who is responsible wi l l be sworn in and wi l l step heavily to the witness stand. There he wi l l be, a l l alone with his conscience. For legal reasons, as I have said in the outset, he had just better have the right answers. But whatever the jury decides, he s t i l l has to go on l iv ing with himself. Perhaps no one but he wi l l ever know just what the real thing was that went wrong and caused a human being to drown. But he ' l l know. And God help him i f i t is his fault . Peace of mind is worth a lot more than $150,000. BE WATER W I S E : : bw/72 

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