MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al., 2001 ABCA 257

• Judge: McFadyen, Picard and Wittmann, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 10, 2001
• Citations: 2001 ABCA 257;(2001), 293 A.R. 41 (CA)

MacCabe v. R.C. Sep. Sch. Bd. (2001), 293 A.R. 41 (CA);

    257 W.A.C. 41

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. OC.092

Margaret Anne MacCabe (respondent/plaintiff) and Westlock Roman Catholic Separate School District No. 110, Peter Skitsko and Darcy Romanuik (appellants/defendants)

(9803-0617AC; 2001 ABCA 257)

Indexed As: MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al.

Alberta Court of Appeal

McFadyen, Picard and Wittmann, JJ.A.

October 10, 2001.

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, in a decision reported at 226 A.R. 1, held that the gymnastics teacher was negligent and that there was no contributory negligence by the plaintiff. The court determined numerous issues respecting damages. The defendants appealed and applied for a stay of execution pending the appeal.

The Alberta Court of Queen's Bench, in a decision reported at 243 A.R. 280, granted a partial stay subject to terms and conditions. The court determined issues of costs and disbursements.

The Alberta Court of Appeal allowed the appeal in part. The court held that the plaintiff was 25% contributorily negligent and also reduced the award for loss of future earnings.

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 defendants' negligence - The trial judge 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 - The defendants appealed - The Alberta Court of Appeal held that it was inappropriate to apply male contingencies to the plaintiff when there was no evidentiary basis that she would have worked a typical male pattern - The plaintiff stated that she wanted to have children and would have preferred to stay at home with them for some period - This meant she would not have worked a pattern typical for males in her field - See paragraphs 80 to 127.

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 trial judge held that the teacher owed the plaintiff a duty of care and 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 - She found that the standard of care was not met - The Alberta Court of Appeal refused to interfere with these conclusions - See paragraphs 26 to 51.

Education - Topic 6472

Teachers - Duties - Coaching sports or games - [See Education - Topic 6463 and Torts - Topic 61 ].

Torts - Topic 49.30

Negligence - Standard of care - Particular persons and relationships - Educational institutions and instructors - [See Education - Topic 6463 ].

Torts - Topic 54

Negligence - Causation - "But for" test - [See Torts - Topic 61 ].

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 trial judge 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 trial judge 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 met the requisite standard of care - The Alberta Court of Appeal affirmed the trial judge's decision on causation, holding that causation was established under both the "materially contributed to" and "but for" tests - See paragraphs 52 to 59.

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 trial judge held that the gymnastics teacher was negligent because, inter alia, he failed to provide proper instruction and correctly supervise the activities - She found no contributory negligence - The defendants appealed - The Alberta Court of Appeal held that the plaintiff was 25% contributorily negligent - She had some knowledge of the danger involved in the previously untried manoeuvre and knew or ought to have known that she might be incapable of performing it and that harm was reasonably foreseeable - She also knew that she had not been told to attempt the move, but rather to practice what had been demonstrated the day before - See paragraphs 60 to 79.

Cases Noticed:

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. 9].

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), 73 D.L.R.(3d) 35 (B.C.C.A.), refd to. [paras. 10, 60].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 259, refd to. [para. 21].

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, reving in part (1993), 16 B.C.A.C. 46; 28 W.A.C. 46; 73 B.C.L.R.(2d) 116 (C.A.), refd to. [paras. 21, 111].

Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; 86 N.R. 241; 29 O.A.C. 1, refd to. [para. 23].

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. 57].

Jones v. Livox Quarries Ltd., [1952] 2 Q.B. 608, refd to. [para. 65].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269; 153 D.L.R.(4th) 385, refd to. [para. 65].

Dumais v. Hamilton (1998), 219 A.R. 63; 179 W.A.C. 63 (C.A.), refd to. [para. 65].

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. 76].

Olson v. General Accident Assurance (2001), 281 A.R. 327; 248 W.A.C. 327 (C.A.), refd to. [para. 84].

Madge v. Meyer et al. (2001), 281 A.R. 143; 248 W.A.C. 143 (C.A.), refd to. [para. 85].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 95].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577; 87 C.L.L.C. 14,002, refd to. [para. 106].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 106].

Livingstone v. Rawyards Coal Ltd. (1880), 5 App.Cas. 25 (H.L.), refd to. [para. 108].

Tucker v. Asleson (1991), 86 D.L.R.(4th) 73 (S.C.); affd. (1993), 24 B.C.A.C. 253; 40 W.A.C. 253; 78 B.C.L.R.(2d) 173; 102 D.L.R.(4th) 518 (C.A.), refd to. [para. 115].

Terracciano v. Etheridge et al., [1997] B.C.T.C. Uned. 656 (S.C.), refd to. [para. 118].

Audet v. Bates, [1998] B.C.T.C. Uned. 352 (S.C.), refd to. [para. 119].

Gray v. Macklin et al., [2000] O.T.C. 866 (S.C.), refd to. [para. 120].

Authors and Works Noticed:

Gibson, Elaine, The Gendered Wage Dilemma in Tort Theory (1993), pp. 197, 198 [para. 104].

Klar, Lewis, Tort Law (2nd Ed. 1996), pp. 321 to 323 [para. 52]; 324 [paras. 52, 55]; 325 to 329 [para. 52].

Counsel:

E.A. Olszewski, C.W. Lantz and D.R. Syme, Q.C., for the appellants;

B.J. Larbalestier and M.S. Watson, for the respondent.

This appeal was heard on May 1, 2 and 3, 2001, by McFadyen, Picard and Wittmann, JJ.A., of the Alberta Court of Appeal. Wittmann, J.A., delivered the following decision for the Court of Appeal on October 10, 2001.