MacCabe v. Board of Education of Westlock Roman Catholic Separate School District No. 110 et al., (1998) 226 A.R. 1 (QB)
Judge | Johnstone, J. |
Court | Court of Queen's Bench of Alberta (Canada) |
Case Date | October 05, 1998 |
Citations | (1998), 226 A.R. 1 (QB) |
MacCabe v. R.C. Sep. Sch. Bd. (1998), 226 A.R. 1 (QB)
MLB headnote and full text
Temp. Cite: [1998] A.R. TBEd. OC.048
Margaret Anne MacCabe (plaintiff) v. Westlock Roman Catholic Separate School District No. 110, Peter Skitsko and Darcy Romanuik (defendants)
(Action No. 9303-05787)
Indexed As: MacCabe v. Board of Education of Westlock Roman Catholic Separate School District No. 110 et al.
Alberta Court of Queen's Bench
Judicial District of Edmonton
Johnstone, J.
October 5, 1998.
Summary:
The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class. She sued the principal, school district and gymnastics teacher.
The Alberta Court of Queen's Bench held that the gymnastics teacher was negligent and that there was no contributory negligence on the part of the plaintiff. The court determined numerous issues respecting damages.
Damage Awards - Topic 489
Injury and death - General damage awards - Cost of future care - The plaintiff was rendered an incomplete quadriplegic at age 16 - Confined to a wheelchair, she had no movement in her lower extremities, only slight movement in her upper extremities and very limited movement of her left hand - She was rendered permanently incontinent and required regular catheterizations (four times daily) and bowel routines (every other day) for the rest of her life - Her life expectancy was 76 years - The parties disputed numerous items in the claim for cost of future care including the costs for attendant care, wheelchairs, transportation, childcare, computer equipment and counselling - The Alberta Court of Queen's Bench determined the issues - See paragraphs 503 to 882.
Damage Awards - Topic 580
Torts - Injury to third parties - General and special damages for personal care of injured person - The plaintiff was rendered an incomplete quadriplegic at age 16 - She claimed for 19,637 hours of care provided by her mother after the accident - The Alberta Court of Queen's Bench reduced the claim by 1986 hours (three hours per day x 662 days) where the "over-zealous" mother did not take advantage of a caregiver who was available free of charge for those hours - A further 500 hours were deducted for services that the mother would have performed notwithstanding the accident - The court further discounted the time by 25% because many days would have warranted a flat fee of $171 for 24 hour care - The court applied an hourly rate of $13.50 and approved a total claim of $171,653.87 - See paragraphs 895 to 910.
Damage Awards - Topic 580
Torts - Injury to third parties - General and special damages for personal care of injured person - The plaintiff was rendered an incomplete quadriplegic at age 16 - She claimed for 1,782.5 hours of services provided by her father after the accident - The claim referenced the extra care involved in the maintenance of the plaintiff's vehicle, lifting the plaintiff, transferring her from the wheelchair to the vehicle and vice versa, helping her move into her apartment and running miscellaneous errands - The Alberta Court of Queen's Bench reduced the hours by half because the claim for maintenance of the plaintiff's vehicle represented services that a father would normally provide to a daughter - The court awarded $12,031.88 (891.25 hours x $13.50) for this claim - See paragraphs 911 to 913.
Damage Awards - Topic 580
Torts - Injury to third parties - General and special damages for personal care of injured person - The plaintiff was rendered an incomplete quadriplegic at age 16 - The plaintiff claimed for 11,478.5 hours of services provided by her boyfriend - The services included repositioning the plaintiff in bed, assisting her with catheterization, cleaning up after incontinence, opening doors, picking up dropped articles, securing the deadbolt on the plaintiff's apartment door, carrying a drink for her when socializing and carrying her luggage - The Alberta Court of Queen's Bench held that most of the activities recited by the boyfriend were not compensable because they were normal duties expected of a boyfriend or significant other - The court awarded $27,222.75 for this claim (2,016.5 hours x $13.50) - See paragraphs 914 to 916.
Damages - Topic 1284
Losses by third parties - Recoverable losses - Transportation and lodging - The plaintiff was rendered an incomplete quadriplegic at age 16 - Her father entered into an agreement with the Alberta Government Department of Social Services and Community Health, Handicapped Children's Division (HCS), whereby he borrowed $5,087.76 from HCS - The loan was to provide the plaintiff's parents with funds for, inter alia, transportation, meals and parking expenses to attend with the plaintiff during her hospitalization - The Alberta Court of Queen's Bench held that the funds used for the above-mentioned purposes were not recoverable by the plaintiff because the loss was not the plaintiff's loss, but her father's loss - See paragraphs 887 to 889.
Damages - Topic 1288
Losses by third parties - Recoverable losses - General and special damages for personal care of injured person - [See all Damage Awards - Topic 580 ].
Damages - Topic 1526
General damages - Elements of general damages - Loss of wages - The female plaintiff was rendered an incomplete quadriplegic at age 16 as a result of the defendant's negligence - The Alberta Court of Queen's Bench noted that equality was now a fundamental constitutional value and refused to award damages for loss of income using data based on the actual earnings of females - Further, the court would not sanction future forecasting if it perpetuated the historic wage disparity between men and women - Accordingly, if there was a disparity between the male and female statistics in the employment category, the court would use the male statistics, subject to the relevant contingencies - If the contingencies were gender specific, then the contingencies applicable to males would be used, except in the case of life expectancy - See paragraphs 452 to 470.
Damages - Topic 1526
General damages - Elements of general damages - Loss of wages - The plaintiff was rendered an incomplete quadriplegic at age 16 - She had significant limitations, including the need for catheterization four times daily - The plaintiff had received a Bachelor of Recreational Administration with high grades - The Alberta Court of Queen's Bench held that, but for the accident, the plaintiff would have completed a university degree in physiotherapy, secured employment in a hospital setting and retired at age 65 - The court held that the plaintiff would complete a post-graduate diploma and assessed her employability potential at 50% - The court held that the plaintiff would: work in the area of recreation administration or health promotion; be capable of 60% full-time work; and retire at age 52 - See paragraphs 386 to 502.
Damages - Topic 1548
General damages - General damages for personal injury - Management of fund fee (investment counselling) - The plaintiff was rendered an incomplete quadriplegic at age 16 as a result of the defendant's negligence - The Alberta Court of Queen's Bench refused the plaintiff's claim for a management fee - The funds awarded to the plaintiff could be invested in direct securities through a professional fund manager who should earn a return sufficient to offset the investment fees - See paragraphs 917 to 923.
Education - Topic 6463
Teachers - Duties - Duty of care - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - She sued the principal, school district and gymnastics teacher - The Alberta Court of Queen's Bench held that the test for the existence of a legal duty of care was fully met - The teacher-student relationship which gave rise to the teacher's right to control the activities of the students also gave rise to a corresponding positive duty of care and supervision on the teacher's part - The court held that the applicable standard of care in the plaintiff's gymnastics class was that of a prudent and careful parent having the supra-parental expertise that is demanded of a gymnastics instructor - See paragraphs 119 to 129.
Education - Topic 6463
Teachers - Duties - Duty of care - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - She sued the principal, school district and gymnastics teacher - The Alberta Court of Queen's Bench stated that "[a] teacher's role is to place restrictions or limits on students to ensure that they are not exposed to an unreasonable risk in the performance of activities of an inherently dangerous nature or activities that they have not been properly trained to do" - See paragraph 154.
Education - Topic 6472
Teachers - Duties - Coaching sports or games - [See both Education - Topic 6463 and Torts - Topic 61 ].
Evidence - Topic 2061
Special modes of proof - Extra judicial admissions - Oral admissions - [See Evidence - Topic 4726 and Evidence - Topic 4752 ].
Evidence - Topic 4726
Witnesses - Examination - Impeaching credibility - Duty to give witness opportunity to explain - The plaintiff was injured in gymnastics class - She sued the principal, school district and gymnastics teacher - The defendants argued that admissions made by the teacher to the plaintiff and several other students were inadmissible because the plaintiff failed to cross-examine him respecting the admissions at trial - The defendants submitted that the rule in Browne v. Dunn obliged the plaintiff to cross-examine the defendant on the alleged admissions if she intended to rely on them - The Alberta Court of Queen's Bench reviewed the case law respecting Browne v. Dunn - The court found that the common law principle in Browne v. Dunn had been met and admitted the statements - The teacher had ample opportunity to explain each and every statement or to deny having made such statements - See paragraphs 4 to 33.
Evidence - Topic 4752
Witnesses - Examination - Prior inconsistent statements - Admissibility - Foundation required - The plaintiff was injured in gymnastics class - She sued the principal, school district and gymnastics teacher - The defendants argued that admissions made by the teacher to the plaintiff and several other students were inadmissible because the plaintiff failed to cross-examine him respecting those admissions at trial - The Alberta Court of Queen's Bench rejected the defendants' argument that an admission was analogous to a former inconsistent statement and therefore compliance with s. 24 of the Alberta Evidence Act was required - Alternatively, the statements were admissible notwithstanding non-compliance with s. 24 where the underlying principle of fairness protected by s. 24 and the common law principle of Browne v. Dunn was met - See paragraphs 31 to 32.
Torts - Topic 49.30
Negligence - Standard of care - Particular persons and relationships - Educational institutions and instructors - [See both Education - Topic 6463 ].
Torts - Topic 61
Negligence - Causation - Causal connection - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - The Alberta Court of Queen's Bench held that the gymnastics teacher was negligent - He failed to assess each student's ability before allowing them to undertake certain manoeuvres without his direct supervision, failed to provide proper instruction or progressive training, failed to warn of the inherent dangers of the activities, permitted improper equipment configuration, and failed to correctly supervise the activities - The court held that causation was established because, inter alia, the plaintiff would not have been permitted to perform the manoeuvre which resulted in the accident if the teacher had properly discharged his duty and met the requisite standard of care - See paragraphs 114 to 269.
Torts - Topic 6601
Defences - Contributory negligence - General - What constitutes contributory negligence - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - The defendants alleged that the plaintiff was contributorily negligent, that in performing a dangerous manoeuvre for the first time, without assistance, she exercised a lack of judgment and failed to take the proper steps to ensure her own safety - The Alberta Court of Queen's Bench held that the gymnastics teacher was negligent because, inter alia, he failed to provide proper instruction and correctly supervise the activities - The court held that the plaintiff was not contributorily negligent - See paragraphs 273 to 278.
Torts - Topic 6728
Defences - Consent - Assumption of risk - Implied consent - Sports and games - The plaintiff was rendered an incomplete quadriplegic at age 16 after a failed gymnastic manoeuvre in gymnastics class - The Alberta Court of Queen's Bench held that the gymnastics teacher was negligent because he, inter alia, failed to warn of the inherent dangers of the activities - The court held that given that the instruction was conducted in a classroom environment, it was not satisfied that the plaintiff assumed either the physical or legal risk - The volenti defence was not applicable - See paragraphs 270 to 272.
Torts - Topic 6731
Defences - Consent - Assumption of risk - Implied consent - Dangerous activities - [See Torts - Topic 6728 ].
Cases Noticed:
Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 5].
R. v. MacKinnon (M.) (1992), 12 B.C.A.C. 302; 23 W.A.C. 302; 72 C.C.C.(3d) 113 (C.A.), refd to. [para. 10].
Stewart v. Canadian Broadcasting Corp. et al. (1997), 32 O.T.C. 321; 150 D.L.R.(4th) 24 (Gen. Div.), refd to. [para. 10].
Peters v. Perras et al. (1909), 13 Alta. L.R. 80 (S.C.C.), refd to. [para. 11].
R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 106 D.L.R.(3d) 212; 50 C.C.C.(2d) 193; 17 C.R.(3d) 34 (Fr.), refd to. [para. 12].
Calmont Leasing Ltd. v. Kredl et al. (1995), 165 A.R. 343; 89 W.A.C. 343; 30 Alta. L.R.(3d) 16 (C.A.), refd to. [para. 12].
United Cigar Stores Ltd. v. Buller, [1931] 2 D.L.R. 144 (Ont. C.A.), refd to. [para. 16].
R. v. Verney (M.) (1993), 67 O.A.C. 279 (C.A.), refd to. [para. 16].
R. v. M.L.W. (1995), 82 O.A.C. 397 (C.A.), refd to. [para. 16].
Martin v. McCoy, [1993] A.J. No. 405 (C.A.), refd to. [para. 17].
Janiten v. Bibaud (1997), 209 A.R. 70; 160 W.A.C. 70 (C.A.), refd to. [para. 18].
R. v. Jackson and Woods (1974), 20 C.C.C.(2d) 113 (Ont. H.C.), refd to. [para. 24].
R. v. Grant (1989), 58 Man.R.(2d) 281; 49 C.C.C.(3d) 410 (C.A.), refd to. [para. 24].
R. v. Pargelen (G.) (1996), 95 O.A.C. 200; 112 C.C.C.(3d) 263 (C.A.), folld. [para. 25].
Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; 86 N.R. 241; 29 O.A.C. 1, refd to. [para. 118].
Bain v. Board of Education of Calgary et al. (1993), 146 A.R. 321; 14 Alta. L.R.(3d) 319 (Q.B.), refd to. [para. 118].
Myers and Myers v. Board of Education of Peel (County) and Jowett, [1981] 2 S.C.R. 21; 37 N.R. 227, refd to. [para. 119].
Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1975] 3 W.W.R. 622 (B.C.S.C.), varied [1976] 5 W.W.R. 240; 73 D.L.R.(3d) 35 (B.C.C.A.), varied [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607, appld. [para. 120].
Williams v. Edy (1893), 10 T.L.R. 41 (C.A.), refd to. [para. 125].
Abbas v. Lalonde, [1991] O.J. No. 501, affd. [1994] O.J. No. 3741 (C.A.), refd to. [para. 130].
Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 244].
Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 244].
McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.), refd to. [para. 244].
Wickberg v. Patterson (1997), 196 A.R. 43; 141 W.A.C. 43; 145 D.L.R.(4th) 263 (C.A.), refd to. [para. 244].
Horsley v. MacLaren (1971), 22 D.L.R.(3d) 545 (S.C.C.), refd to. [para. 245].
Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185; 148 D.L.R.(4th) 48, appld. [para. 252].
Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161; [1993] 3 W.W.R. 113; 101 D.L.R.(4th) 129, refd to. [para. 271].
Stein v. Hudson's Bay Co. (1976), 70 D.L.R.(3d) 723 (B.C.S.C.), refd to. [para. 274].
Mann v. Calgary (City) et al. (1995), 167 A.R. 133; 27 Alta. L.R.(3d) 405 (Q.B.), refd to. [para. 274].
Jacobs v. McLaughlin and Calgary (City) (1986), 71 A.R. 104; 46 Alta. L.R.(2d) 1 (Q.B.), refd to. [para. 280].
Tucker v. Asleson (1993), 24 B.C.A.C. 253; 40 W.A.C. 253; 78 B.C.L.R.(2d) 173 (C.A.), refd to. [para. 454].
Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193; [1994] 2 W.W.R. 609; 18 C.C.L.T.(2d) 209; 110 D.L.R.(4th) 289; 87 B.C.L.R.(2d) 1, refd to. [para. 456].
Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R.(3d) 328 (S.C.), refd to. [para. 457].
Cherry v. Borsman (1992), 16 B.C.A.C. 93; 28 W.A.C. 93; 94 D.L.R.(4th) 487 (C.A.), refd to. [para. 465].
Mozersky v. Cushman et al. (1997), 48 O.T.C. 161 (Gen. Div.), refd to. [para. 466].
D.A.A. v. D.K.B., [1995] O.J. No. 3901 (Gen. Div.), refd to. [para. 467].
Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161; 59 D.L.R.(4th) 321, refd to. [para. 470].
Morris v. Rose Estate (1996), 75 B.C.A.C. 263; 123 W.A.C. 263; 23 B.C.L.R.(3d) 256 (C.A.), refd to. [para. 475].
Taguchi Estate et al. v. Stuparyk (1994), 148 A.R. 359; 16 Alta. L.R.(3d) 72 (Q.B.), refd to. [para. 501].
Milina v. Bartsh (1985), 49 B.C.L.R.(2d) 33 (S.C.), affd. (1987), 49 B.C.L.R.(2d) 99 (C.A.), refd to. [para. 522].
Wenden v. Trikha et al. (1991), 116 A.R. 81 (Q.B.), affd. (1993), 135 A.R. 382; 33 W.A.C. 382 (C.A.), refd to. [para. 894].
Brown et al. v. University of Alberta Hospital et al. (1997), 197 A.R. 237; 145 D.L.R.(4th) 63 (Q.B.), refd to. [para. 894].
Kroeker v. Jansen et al. (1995), 58 B.C.A.C. 1; 96 W.A.C. 1; 4 B.C.L.R.(3d) 178 (C.A.), appld. [para. 898].
Daly v. General Steam Navigation Co., [1980] 3 All E.R. 696 (C.A.), refd to. [para. 898].
Hall v. Miller (1989), 41 B.C.L.R.(2d) 46 (C.A.), refd to. [para. 898].
Fobel v. Dean and MacDonald, [1991] 6 W.W.R. 408; 93 Sask.R. 103; 4 W.A.C. 103; 83 D.L.R.(4th) 385; 9 C.C.L.T.(2d) 87 (C.A.), refd to. [para. 898].
Macdonald et al. v. Neufeld et al. (1993), 32 B.C.A.C. 161; 53 W.A.C. 161; 85 B.C.L.R.(2d) 129 (C.A.), refd to. [para. 899].
Cartaginese v. Castoro, [1995] O.J. No. 142 (Gen. Div.), refd to. [para. 899].
Ligate et al. v. Abick et al. (1996), 89 O.A.C. 355; 28 O.R.(3d) 1 (C.A.), refd to. [para. 899].
Bains v. Green, [1997] B.C.J. No. 943 (S.C.), refd to. [para. 899].
Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [para. 901].
Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1976] 5 W.W.R. 240; 73 D.L.R.(3d) 35 (B.C.C.A.), refd to. [para. 901].
Feng v. Graham, [1988] 5 W.W.R. 137 (B.C.C.A.), refd to. [para. 901].
Crane v. Worwood, [1992] 3 W.W.R. 638; 65 B.C.L.R.(2d) 16 (S.C.), refd to. [para. 901].
Falls v. Falls, [1995] B.C.J. No. 968 (S.C.), refd to. [para. 906].
Mandzuk v. Vieira and Insurance Corp. of British Columbia, [1988] 2 S.C.R. 650; 89 N.R. 394; [1989] 5 W.W.R. 131; 53 D.L.R.(4th) 606; 47 C.C.L.T. 63; 36 B.C.L.R.(2d) 371, refd to. [para. 918].
Statutes Noticed:
Alberta Evidence Act, R.S.A. 1980, c. A-21, sect. 24 [para. 22].
Evidence Act (Alta.) - see Alberta Evidence Act.
Authors and Works Noticed:
Krause and Ansen, Employability After Spinal Cord Injury: Relation to Selected Participant Characteristics, Archives of Physical Medicine Rehabilitation (February 1992), vol. 73 [para. 373].
Linden, Allen M., Canadian Tort Law (6th Ed. 1997), p. 453 [para. 273].
Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), p. 876 [para. 6].
Counsel:
Ronald G. Cummings, Q.C., Beverly J. Larbalestier, Timothy M. Sax and Warren R. Stengel (Cummings, Andrews & Mackay), for the plaintiff;
Eleanor A. Olszewski and Sandra L. Corbett (Brownlee Fryett), for the defendants.
This action was heard by Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 5, 1998.
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