EDUC 525- Law & Ethics in Education

Assignment # 1 - Option #1 - Student Drivers

*Dr. D - we spoke with you on October 16, 2017 at 11:50am regarding the “reasonable child” test
(Heisler et al. v. Moke et al), and as per your instructions we are including this note on the title page.
Additionally, you granted us permission via email to increase the word count by 500 words.

Group members:
Sarah Clarke - 00333038
Kelly Evans - 30017510
Nicol Nguyen- 10102997
Cally Nurkowski-30015387
 Based on our analysis of the incident that occured on June 9, 2017, we find the following
parties liable: Lindsay Waterman, the school Principal, the School Board, Sylvia Ballard, and Prim
Jasmin.

Lindsay Waterman:
Lindsay Waterman was the supervising teacher for the Field Trip on the day of the incident.
Waterman owed duty of care to her students, as she occupies a position of trust and authority. She
must adhere to the standard of care outlined by s. 18 of the ​School Act​, and the Common Law
principle​ in loco parentis,​ which describes the legal obligation of a person or institution to act as a
prudent parent. Waterman breached the ​in loco parentis ​standard of care she owed to her students
through failing to ensure that they had safe transportation to and from the Countryside Resort Golf
Course. Given that the driving policy enforced by both the school and district prohibits students from
driving each other outside of the city limits, it is fair to assume that both entities saw a foreseeable risk
in students driving one another outside the city on the highway at higher speeds. Therefore, it is safe
to assume that a prudent parent in Waterman’s position would conclude that serious injuries are
reasonably foreseeable when inexperienced drivers operate a vehicle at highway speeds. Waterman
should have made certain that the Golf Course was within the Okotoks city limits; it is not acceptable
that Waterman only ​believed​ it was within the city limits.
But for Waterman’s breach of the standard of care she owed to Jasmin, by allowing her to
travel in Ballard’s private vehicle outside city limits- as prohibited by both the School District and
School Policy- when participating in a school activity outside of the city limits, Jasmin would not
have suffered the injuries she sustained, which are a reasonably foreseeable outcome of her breach.

Principal:
The school principal established duty of care through the position of trust and authority over
her students. The principal’s standard of care is met by: acting ​in loco parentis​ as per Common Law;
reviewing and approving field trips as per s. 20 of the​ School Act​; and enforcing the School’s and
District’s Driving Policy. The principal breached her standard of care through failing to enforce the
criteria outlined in the Driving Policy and ensuring that her staff (ie. Waterman) is compliant with
such Policy.
The principal ought to have been aware of the School District’s Transportation Policy, which
clearly states that any outside activity must be “within the town or village boundaries”. The principal
also ought to have been aware that the other two high schools in the school district prohibited students
from driving other students to any activity. This suggests that a reasonable principal in the same
circumstances would believe that a breach of the ​in loco parentis​ duty of care gives rise to a
reasonably foreseeable outcome that accidents were more likely to occur outside of city limits. When
reviewing the field trip for approval, the principal ought to have been aware that the students she was
responsible for were travelling outside of city limits, and that they were doing so in private vehicles
with passengers.
But for the principal’s breach in standard of care in approving the field trip, despite the facts
that contrary to school policy it was outside of city limits and that students were travelling with
passengers, Jasmin would have not been injured.

School Board:
The School Board is held vicariously liable due to the negligence of its employees
(Waterman and the principal) as per s. 144 of the ​School Act. ​Additionally, s. 60 of the ​School Act
states that “a board must establish policies respecting the provision of educational services and
programs”. (p. 56). It could be argued that the School Board failed to ensure that a uniform policy
with regard to transportation of students in private vehicles was in place, as the policy of Peter
Lougheed School did not align with those of the other two schools in the district.

Sylvia Ballard:
Sylvia Ballard’s duty of care was established as she was responsible for Jasmin’s safety while
in her vehicle. Ballard owed Jasmin a standard of care of following the rules of the road found within
the ​Traffic Safety Act​, including driving safely on the highway. It is sufficient to conclude Ballard did
not meet the standard of care based on her guilty plea to careless driving under s. 115(2)(b) of the
Traffic Safety Act of Alberta​.
Ballard was aware her vehicle’s passenger seatbelt was broken, and therefore it is reasonable
to assume she would have known that in the event of an accident, injuries to a passenger were very
possible. Further, Ballard ought to have known that a reasonably foreseeable outcome of swerving on
the highway at such speeds is that her passenger could be injured.
Although Ballard is a minor, it has been established through ​McErlean v Sarel​ that if a minor
is performing an ‘adult act,’ such as driving, he or she will be treated as an adult before the eyes of the
court. Therefore, but for Ballard’s breach in standard of care to ensure that her vehicle was operated in
accordance with the ​Traffic Safety Act​ and with due care and control, Jasmin would not have suffered
the injuries caused by the accident.

Prim Jasmin:
Jasmin owed a duty of care to take care of herself. Given Jasmin is a minor, the standard of
care is established by applying the “reasonable child” test as per ​Heisler et al. v. Moke et al​. In the
case facts, friends and parents testified she regularly used her seatbelt, so it is reasonable to conclude
she understood the importance of a seatbelt. Therefore, Jasmin breached her standard of care to take
all safety precautions when riding in a vehicle.
Evidence suggests Jasmin had been privy to a conversation at the high school earlier in the
year where Ballard stated that there was a problem with the passenger side seatbelt. It is also
reasonable to assume she would have been aware of the expectation that students are expected to wear
seatbelts when driving to and from activities as per the School’s and District’s Driving Policy, as it
was discussed on the first class and reinforced throughout the year. Despite this awareness, Jasmin
rode in the passenger seat of Ballard’s vehicle without wearing a seatbelt. Jasmin ought to have
known that if an accident occurred, it was possible she would be injured.
But for Jasmin’s failure to take all safety precautions when riding in a vehicle, she would not
have suffered the injuries caused by the accident.

Defences of Negligence:

1. Voluntary assumption of risk - (​Volenti non fit injuria​): Does not apply when things are well
outside the claimants control, and in this case, the car accident was out of Jasmin’s control as a
passenger. This defence is valid when a death or serious injury occurs due to a very dangerous
activity (such as bull riding), rather than a typically harmless activity (such a car ride).

2. Illegality: The ​Alberta Traffic Safety Act ​and the ​Motor Vehicle Safety Act​ state that one “shall not
remove a seat belt assembly, or render it partly or wholly inoperative.” (AORP, 2017). If it is
discovered that Ballard or another party did something to the seatbelt to render it inoperative, Jasmin
may be able to rely on this defence due to the illegal act of a third party.
3. Inevitable accident: If it is discovered that the stationary truck was unreasonably stopped in the
middle of the road and that a reasonable motor vehicle operator in the same situation as Ballard would
also have been unable to avoid the accident, Ballard may be able to rely on this defence.

4. Statutory Bar: As the damages immediately followed the incident, the limitations act does not
apply. Further, because Jasmin was 16 at the time of the accident, this defence is not valid as it is
“suspended during the period of the time that the claimant is a minor.” (EDUC 525, Oct 3, 2017, Ppt
#6, Slide 31).

5. Contributory Negligence: Jasmin contributed to the injuries she suffered because she willingly got a
ride with Ballard and sat in the passenger's seat. She was aware the seat belt was inoperative, and
failed to wear a seatbelt for the duration of the ride.

Damages:
Assessment of Jasmin’s legal entitlement to both non-pecuniary and pecuniary damages will
require expert evidence to be obtained from various physicians. Non-pecuniary damages include the
loss of life expectancy, loss of future income and earning potential, costs of new amenities to make
life more endurable, and for pain and suffering. Life expectancy for paraplegics is assessed at 53
years, though because of her paralysis from the neck down, she would receive a higher amount and
less years than in ​McKay et al. v Board of Govan et al​. According to ​Bain v. Calgary Board of
Education​, $100,000 in 1978 dollars is the upper limit awarded for damages under this head. We
believe Jasmin’s injuries represent 100% of the most severe case and accordingly assess
non-pecuniary damages at $350,806 in 2017 dollars.
It is reasonable to assume that Jasmin’s conditions will not improve, so future costs of care
including continued rehabilitation should be considered. She will likely require a caregiver/nurse to
assist her with day-to-day living for the remainder of her life. The award due to her from the loss of
earning is dependent on whether she worked prior to the accident, and thereby lost earnings, as well as
the career path she intended to pursue and the likelihood that she would have entered this position.
In sum, we do not have sufficient information at this time to properly assess damages, as we
require expert evidence respecting both pecuniary and non-pecuniary damages Jasmin is entitled to.

References
Alberta Occupant Restraint Program​. ​(2017). ​The law: Alberta’s traffic safety act and the federal
motor vehicle safety act​. Retreived from ​http://albertaseatbelts.ca/resources-legislation/the-law/

Bain v. Calgary Board of Education, CanLII 7301 (1993). Retrieved from

<​http://canlii.ca/t/2brbx​>

Donlevy, D. (2017). EDUC 525: Ethics and law [PowerPoint slides]. Retrieved from
https://d2l.ucalgary.ca/d2l/le/content/193828/viewContent/2680979/View
Heisler et al. v. Moke et al., CanLII 625 (1971). Retrieved from ​<​http://canlii.ca/t/g16rg​>

McErlean v. Sarel et al., CanLII 4313 (1987). Retrieved from ​<​http://canlii.ca/t/g16t1​>

McKay et al. v. Board of Govan Unit No. 29 et al., SCR 589, CanLII 76 (1968). Retrieved from
<http://canlii.ca/t/1xcxh>

The Traffic Safety Act​.R.S.A 2000, s 115. Retrieved from:

http://www.qp.alberta.ca/documents/Acts/t06.pdf

The School Act. ​R.S.A. ​2000,s 18-20. Retrieved

from:​http://www.qp.alberta.ca/documents/Acts/s03.pdf