IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20130409

Docket: S115749

Registry:
Vancouver

Between:

Jacqueline Gu, an
infant,
by her Litigation Guardian, Bei Xin Gu

Plaintiff

And

Liam Friesen, an infant,
Leighton Friesen, Colleen Friesen,
South Surrey Independent School Society and
Southridge School Foundation

Defendants

And

South Surrey
Independent School Society and
Southridge School Foundation,
Chau Ping Yu, Elizabeth Tichelman, Tracy Tichelman,
Liam Friesen, an infant, Leighton Friesen and Colleen Friesen

Third
Parties

Before:
The Honourable Mr. Justice Schultes

Reasons for Judgment

1.              
Introduction

[1]            
This trial was about liability for an injury that 11-year-old Jacqueline
Gu suffered during an outdoor recess break at Southridge School in Surrey on
November 21, 2008.

[2]            
Jacqueline was carrying her friend Elizabeth Tichelman piggyback-style when
Elizabeth was pushed from behind by another friend and classmate, Liam Friesen.
As a result of the push Jacqueline lost her balance and she and Elizabeth fell,
leaving Jacqueline with a fractured elbow.

[3]            
Jacqueline’s claims are in negligence — against Liam for actually
causing her injury and against the Southridge defendants (“Southridge”) for
failing to provide adequate supervision of the recess play area. There is also
a claim against Southridge for failing to ensure that the premises were safe
for her, as required by s. 37 of the Occupiers Liability Act, R.S.B.C.
1996, c. 337.

[4]            
Those alleged breaches have in turn triggered third party claims by Liam
and his parents (the “Friesens”) and by Southridge, against each other.

[5]            
The remaining claims[1]
were not pursued by counsel in their final submissions.

2.              
Liam’s Liability

a.              
Evidence

[6]            
There is no real dispute about the circumstances in which Jacqueline was
injured.

[7]            
As I have described, she was carrying her friend Elizabeth piggyback-style,
on the artificial turf field where Grade 6 students were allowed to play at
recess and lunch time.

[8]            
Liam had been playing football with some other students when he noticed
the two girls, with whom he was friends at the time.

[9]            
He testified that he had run “pretty far away” from the football game
before he saw Elizabeth and Jacqueline, because he was trying to catch a pass
for a touchdown. When he stopped they were between five and ten metres away
from him.

[10]        
He ran up behind them at “between a walk and a run” and pushed Elizabeth
“softly”. However he agreed with the suggestion on cross-examination that he
went at a “fast jog” and that it was more his momentum that accounted for the amount
of force that was actually applied than how hard he had tried to push Elizabeth.

[11]        
His intention was to make the girls laugh. He did not expect there to be
any physical consequences and did not mean to hurt Jacqueline.

[12]        
He was also aware of the school rule against pushing on the playground
and knew that he had broken it by this action. He did not consider “all the other
bad things that could happen” or about getting into trouble before he did it.

[13]        
Elizabeth fell to the ground and, according to Liam, started laughing. Jacqueline
also ended up on the ground, but began crying, from what turned out to be the
injury to her elbow.

[14]        
Jacqueline described Liam as a nice boy, who acted younger than his age
at times.

[15]        
Laura Podmore, another Grade 6 student who was nearby when the accident
occurred, described Liam as “nice” and a “class clown” and said that while he
sometimes did things against the rules, like talking when he was supposed to be
quiet, he was no rougher than any of the other boys.

[16]        
Elizabeth’s mother, Tracy Tichelman, called him “rambunctious but a
sweet kid”.

[17]        
Liam’s father Leighton Friesen described his son as being less focussed
than his older brothers and said that he did not always pay attention, in
comparison to them. Mr. Friesen also used the term “rambunctious”, and
said that Liam was sometimes guilty of “minor stuff” such as clowning around in
class. He had to try harder in sports because of being smaller in stature, but
not in the sense of being more aggressive.

[18]        
His mother Colleen Friesen described him as a bit immature and said that
he did not listen as well as her other children. He only got into trouble at
school for not listening. He was not engaged in any aggressive behaviour. He
was also somewhat impulsive.

[19]        
Laurel Middlaer, the head of the junior school at Southridge, also
described Liam as being “a little more impulsive, with a little less
foresight.”

[20]        
The year after this incident, in Grade 7, Liam was diagnosed with
attention-deficit hyperactivity disorder, and he currently takes medication for
it. However this condition was not known to anyone at the time that Jacqueline
was hurt, so it was obviously not something that could have been taken into
account by anyone who was involved in supervising him. There was also no
evidence in the trial that would permit me to assign any role to it in his
behaviour leading up to the injury.

b.             
Discussion

[21]        
Most of the elements of negligence are not in issue here. The existence
of a duty of care owed by Liam to a fellow student using the playground, and
the causative relationship between his push to Elizabeth and Jacqueline’s
subsequent injury, are quite clear on the evidence.

[22]        
The issue is whether Liam’s conduct fell below the standard of care that
is applicable to children, which has been held to be that of a child of similar
age, intelligence and experience: McEllistrum v. Etches, [1956] S.C.R. 787.
This standard introduces a degree of subjectivity into the analysis, to allow
for the variation in ability and background among children of a given age. It
is often referred to in cases in which child plaintiffs are alleged to have
been contributorily negligent in their own injuries, but the principles are
equally applicable to a child defendant.

[23]        
I am satisfied that Liam did not put his mind to the risk before he
jogged up behind Elizabeth and pushed her. The question is whether, objectively
viewed, he should have.

[24]        
He was 11 years old at the time of this incident. There was no evidence
that he was of less than normal intelligence for his age. As to his experience,
making the assumption most favourable to his position, which is that comparing
him to children of the same “experience” is broad enough to include his maturity
and impulsivity, I think that a child with those similar attributes would still
have foreseen that, if he were running at a fast jog, even the gentle pushing
from behind of another child who was being carried piggyback risked both the
top and bottom person falling over and being injured in some way in the fall.
It is a matter of the physical reaction of human bodies to the application of
force — a kind of knowledge that is acquired by all children on the playground
at a very young age.

[25]        
The fact that the injury to Jacqueline turned out to be more serious than
a child in Liam’s circumstances might have anticipated does not undermine
liability. Madam Justice Bennett summarized the applicable law in Hussack v.
Chilliwack School District No. 33, 2011 BCCA 258, at para. 71:

[71]      It is not necessary for
the plaintiff to show that the precise injury or the full extent of the injury was
reasonably foreseeable. What he must show is that the type or kind of injury
was reasonably foreseeable: Hughes v. Lord Advocate, [1963] UKHL 1; Jolley
v. Sutton London Borough Council, [2000] UKHL 31; Ontario (Minister of
Highways) v. Côté, [1976] 1 S.C.R. 595.

[26]        
This mishap is unlike the rather freakish accidents in which the liability
of older children and adolescents for negligence was denied, based on a lack of
foreseeability, in McHale v. Watson (1966), 115 C.L.R. 199 (Aus. H.C.)
(a thrown piece of welding rod ricocheting off a post) and Mullin v.
Richards, [1998] 1 All E.R. 920 (C.A.) (a piece of a plastic ruler breaking
off during play sword-fighting). In both cases, childish horseplay led to serious
eye injuries, but the defendants’ original ill-advised actions set in motion
further physical effects that the judges concluded could not have been
anticipated.

[27]        
This case, I have said, required only the rudimentary foresight that a
person who is pushed from behind might fall over and in doing so get injured,
something that was well within the capacities of a child in Liam’s situation.

[28]        
As a result I find him liable for the accident

[29]        
I agree with the concession that there is no basis on which to find
liability against his parents. As is well known, the liability of parents for
the torts of their children must stem from a failure to supervise and control
the child, according to the general standard of parents in the community; it is
not inherent in the nature of the relationship itself: Taylor v. King
(1993), 82 B.C.L.R. (2d) 108 (C.A.) at paras. 32-33.

[30]        
Here the evidence was of appropriate efforts by Mr. and Mrs. Friesen
to discipline Liam when required for any misbehaviour at home. There was no previous
conduct by him at home or school that would have enabled them to foresee and
act to prevent his negligent pushing of Jacqueline. In fact, his only notable
misbehaviour at school was acting as the class clown, and did not involve any
aggression. The conduct in issue in this case seems to have been a one-off
incident that was not caused or contributed to by any act or omission on their
part. Accordingly the claim against them is dismissed.

3.              
Southridge’s Liability

a.              
Evidence

i.               
School policies and practices

[31]        
Southridge is a university preparatory school. The evidence was that it
has high expectations of its students’ behaviour and that it experiences few
discipline issues. It also has fairly extensive policies in place to prevent
dangerous behaviour and promote a safe and respectful school environment.

[32]        
The students sign an explicit promise at the beginning of each school
year to, among other things, keep the school safe, respect others, and help
create a positive school climate. Their “prep book”, which they use every day,
discourages both bullying and “dangerous [and] reckless behaviour”. It also
sets out a detailed system of progressive discipline, one that assumes that in
most cases a warning will be sufficient. The “family manual” that is provided
to parents deals extensively with bullying, which it defines to include pushing
and shoving.

[33]        
There was also evidence that these written policies were enforced in
practice. Jacqueline agreed with the suggestions that dangerous behaviour,
including pushing, is against the rules and that the school was, for the most
part, strict in ensuring adherence and addressing incidents in which children
could be harmed. Mr. and Mrs. Friesen also understood the school to
prohibit pushing, as did Liam. This corresponded to their rules at home.

[34]        
Sue McNeil, who as “division head” assisted Ms. Middlaer, described
holding regular assemblies with students in Grades 5 to 7, to entrench school
values and the expectations of students’ behaviour. She also spoke to specific
classes whenever problems such as rough play became an issue.

[35]        
Parents participate extensively in the life of the school, including by
volunteering to perform various such necessary tasks as recess and lunch
supervision.

ii.             
Piggybacking

[36]        
According to Jacqueline, piggybacking of the kind that she and Elizabeth
had been engaged in when she was injured had been going on in the weeks before
the accident. Couples would just walk around the field in that position, or would
push another piggybacking couple gently, sometimes in the back. Liam may have
been part of another couple on a previous occasion when there was this kind of contact.
Jacqueline was not sure if piggybacking was permitted, but no one told her it
was wrong.

[37]        
Liam also recalled engaging in piggybacking previously. His description
of the physical contact was that the top person would push the top person of
the other couple, “just for fun – softly.” He did not recall anyone telling the
students to stop.

[38]        
Fellow student Laura Podmore, on the other hand, said that some teachers
would tell them to get off each other.

[39]        
There was also some difference of opinion within the staff about whether
piggybacking was permitted or not. Ms. McNeil believed it was, and she
drew a distinction between it and chicken fighting, an activity that had started
shortly before Jacqueline’s injury in which students riding on the shoulders or
backs of another student try to knock each other off their perches. She had
spoken to the Grade 6 class before the incident to emphasize that chicken
fighting and “rough play” were not allowed.

[40]        
Kelly Bennett, who was supervising recess on the day of the incident,
did not believe that piggybacking was prohibited per se, but she would
intervene if there was a weight or power imbalance between students or the
activity was not consensual.

[41]        
Tracy Tichelman, who had done supervision as a parent for five years,
was initially nervous about piggybacking but “then got used to it”.
Specifically she would have been comfortable with the piggybacking configuration
of Jacqueline carrying Elizabeth. She did not recall a staff member ever
halting the activity. She also described this particular Grade 6 class as
having a preference for “flamboyant” play and that they seemed to enjoy
physical contact with each other.

[42]        
In contrast, Ms. Middlaer, who has conducted supervision personally
despite her duties as head of the junior school, held the view that
piggybacking is against the rules, even though it is not explicitly prohibited.
She was not concerned that Ms. McNeil and Ms. Bennett held a different
view — there is a level of professional discretion involved in supervision,
and fighting and physical aggression are definitely not allowed under any
interpretation.

iii.           
Recess supervision

[43]        
In order to understand Southridge’s recess supervision regime it is first
necessary to describe the general configuration of the Grade 6 and 7 play area
that was being supervised. At the time of this incident there were about 88
students in those grades. With some students remaining indoors for other
activities there would likely be about 70 students to be supervised outside
during any given break, according to Ms. McNeil.

[44]        
The playground available to them consists of two soccer fields side by
side and at the same level — one with grass and the other with artificial
turf.

[45]        
The edge of these fields that is nearest to the school has a chain link
fence along it. It has wide links that still allow a person to see the fields
through them from the school. Ms. McNeil and Ms. Bennett both
testified that the turf field is three steps up from the entrance gate in the
fence, but this is not visible in the photos.

[46]        
The fields are then separated from the main school area by a driveway. On
the school side of this driveway is a grassy area with a paved walkway running
through it, which is known as the “Commons”. Only Grade 7 students are
permitted to use that area during breaks.

[47]        
 The Commons begins at the same level as the fields but then slopes down
at a fairly shallow angle as it approaches another driveway directly adjacent
to the school building. As a result, a person standing right next to the school
is perhaps three or four feet below the field level.

[48]        
The actual school building begins with pillars that support a covered
walkway between the edge of the driveway and the actual entrance doors. Ms. McNeil
said that students are only permitted to use the covered area when it is
raining, although if it is raining very hard an indoor recess will be called. Otherwise
she would demand that students come out into the Commons area. Ms. Bennett,
on the other hand, assumed that supervising students in the “breezeway” under
the “overhang” was part of her responsibility and did not suggest in her
evidence that they were only permitted to congregate there under certain
conditions.

[49]        
There was quite a bit of evidence about the trees that are located on
the Commons and in front of the fence beside the fields, and their potential
effect on the view of activity on the fields by a supervisor standing on the Commons.

[50]        
It appears from the photos that there is a large evergreen tree on each
of the corners of the Commons that are nearest to the fields. There are also
three evergreens on the part of the Commons that slopes towards the school
building. In addition, there are bushes and shorter trees on the corners of the
Commons nearest the school buildings.

[51]        
Next to the fence beside the fields, directly centred with the school
building, are four fairly tall deciduous trees, which appear to be spaced ten
to fifteen feet apart.

[52]        
Ms. McNeil’s position was that none of the trees would block the
view of a supervisor from the Commons area across to the fields, unless that
person stood directly behind one of them. She was not sure if the trees along
the fence by the fields were even there in 2008 — if they were they would not
have impeded sightlines.

[53]        
Ms. Bennett similarly denied that any of the trees would impede a
supervisor’s vision. With respect to the large evergreen tree at the front
corner nearest to the field, which is potentially in the line of sight of a
person in the middle of the Commons looking towards the turf field, she said
she would still be able to see the field below the tree’s foliage.

[54]        
Mrs. Friesen testified that the tree in the front corner of the
Commons nearest to the field might potentially block a person’s view of the
field from the Commons and that the four trees on the slope of the Commons
might potentially do so as well.

[55]        
In 2008 one teacher or parent was assigned to supervise the areas that I
have described. According to Ms. McNeil, who sets the supervision
schedule, this level of supervision was decided on in consultation with Ms. Middlaer
and the head of the senior school. The purpose of the consultation was to
ensure that the entire school was covered during breaks. Considerations were
the age of the students, the size of the area, the activities involved, and the
need for clear sightlines. This number was reviewed at the beginning and end of
each year.

[56]        
The number of supervisors has not been increased since this injury. Ms. Middlaer
still felt it was appropriate, taking into account the number of students and
the school’s “human resources”, by which I infer she meant its budget for staffing.

[57]        
Both parents and teachers conduct supervision. There is no formal
training but the head of the school meets with the parents who are doing it.

[58]        
Ms. McNeil agreed that some parents are better than others at
supervising but said that the teachers all adhere to a very high professional
standard. Supervisors are not told where to stand and are expected to use
professional judgment about how to supervise most effectively. Some walk around
and some stay in one place. Talking to students is permitted, as long as the
supervisor continues observing the entire area. Ms. McNeil prefers to stay
in one area (the gate between fields, which she says has a slight elevation) and
scan the sightlines. If she felt her view was impeded she would move.

[59]        
The usual activities that the students engage in during breaks are
things like soccer, “non-touch” football, “turf rover”, kicking a ball, and
girls talking, gossiping or taking their shoes off on the turf.

[60]        
Ms. McNeil said that as far as the need for supervisors to curb student
behaviour, it would be necessary “maybe” to speak to two students in a week —
usually for the offence of bringing food onto the artificial turf field. There
is sometimes an altercation involving pushing or wrestling.

[61]        
Jacqueline, Liam, Ms. McNeil, Ms. Bennett and Ms. Middlaer
all agreed with the suggestion that the close proximity of a supervisor can
deter students from misbehaviour. Liam agreed that there is usually a
supervisor in the turf field area. None of the student witnesses recalled seeing
a supervisor before the injury occurred. Liam agreed with the suggestion that
he was not actually looking for a supervisor before the injury occurred.

iv.            
Supervision on the day of the injury

[62]        
Ms. Bennett has no recollection of having supervised the Grade 6
and 7 students on the day of the injury; much less of any incident involving Jacqueline,
but I accept, based on the school’s supervision schedule and the typed entry in
her personal daybook, that she was the supervisor. The lack of a specific
memory of that day meant that her evidence had to be given in general terms,
based on her usual practices.

[63]        
In contrast to Ms. McNeil’s approach, Ms. Bennett prefers to
circulate around the various play areas. She has no set path, but focuses on
where the children were congregating. Typically she walks the fence (along the
fields), crosses into the Commons, where she can see the gap between the junior
and senior school buildings and the Grade 7s in the breezeway under the
overhang. She never goes into the breezeway, but walks along it on the sidewalk
beside the Commons.

[64]        
One of the critical components of Southridge’s liability as advanced by the
plaintiff and the Friesens is that after Jacqueline was injured she was there
to be seen by any competent and diligent supervisor. The fact that Ms. Bennett
did not notice her and Jacqueline went to the office supported only by her
friends should, in this view, lead to the inference that the supervision
preceding the incident was also inadequate.

[65]        
Jacqueline agreed that she was only on the ground for “a few minutes”,
not for five minutes. Her evidence of how long the girls had spent chatting and
piggybacking, Liam’s concession that the injury could have been three minutes before
the bell to end recess and fellow student Laura Podmore’s recollection of the
bell ringing a minute or two after she attended to Jacqueline, all suggest that
the injury occurred towards the end of the recess period. Jacqueline also
agreed with the suggestion that it was about five minutes from the time she was
pushed to the time she ended up at the office. She did not see a supervisor
along the way, but agreed that once she was hurt and intended to go to the
office, there was not much point looking for one.

[66]        
Ms. Bennett offered various scenarios that would explain her
failure to observe the incident or its aftermath, such as being on the Commons
facing in the opposite direction or being engaged speaking to another student.
When the bell goes for recess she makes sure that all of the students have
heard it and are moving towards the school.

b.             
Discussion

[67]        
It is clear that the standard of care applicable to Southridge is that
of a careful and prudent parent, which varies according to a variety of factors,
including the number and age of the students involved and the activity that
they are engaged in: Myers v. Peel County Board of Education, [1981] 2
S.C.R. 21 at pp. 31-32.

[68]        
Jacqueline’s position against Southridge, and the Friesens’ position
against it in their third party claim, were largely complementary and
overlapping.

[69]        
Based on the application of general negligence principles, there are
three bases on which Southridge could be found liable here. It could be found
to have been negligent in allowing piggybacking to go on at all in the
playground. Its overall supervision regime could be found to have been inadequate
to prevent acts like Liam’s. Or, specifically, Ms. Bennett’s supervision
on the date of the injury could be found to have fallen below the necessary
standard.

[70]        
In final submissions, Jacqueline’s counsel did not pursue a finding of
liability based on Southridge’s failure to prohibit piggybacking, but it was argued
on behalf of the Friesens.

[71]        
There was certainly a conflict between the views of Ms. Middlaer
and those of her staff members about whether this activity should be
prohibited. The students also testified that some supervisors would prohibit it
but not others.

[72]        
Despite this ambiguous situation, I think the standard of a reasonable
and prudent parent with respect to it was well expressed by Ms. Bennett,
who (I am paraphrasing) believes that it is not inherently dangerous or harmful,
but depends on the manner in which it is being carried out.

[73]        
Ms. McNeil, who seems to have been in charge of day-to-day rule
enforcement, drew a similar distinction between piggybacking and the prohibited
act of chicken fighting, in which children are carried on others’ shoulders and
attempt to knock each other off, and which seems to pose a more obvious risk of
injury.

[74]        
Although there was clearly some inconsistency in enforcement, which
likely resulted from the exercise of discretion by individual supervisors, I am
still satisfied that, overall, Southridge’s supervision reasonably focused on risk
of the harmful behaviour that could accompany the activity of piggybacking in
specific situations. Absent any of those additional harmful behaviours, such as
the size or power imbalances to which Ms. Bennett referred as examples, I
have no difficulty in characterizing it as an innocuous activity. As a result,
I find that Southridge was not supervising its students in a manner that fell
below the standard of care by failing to prohibit piggybacking.

[75]        
With respect to the adequacy of the overall supervision regime, the argument
is that when one considers the large area, the number of children to be
observed and the likelihood of various physical activities that require
deterrence or correction going on, a single supervisor was not sufficient.

[76]        
The Friesens’ counsel in particular emphasized the significant distance
(as much as 400 feet) between the injury site and the far corner of the Commons
and the impediments to a clear view of the field from the Commons posed by the
trees in between as strong indications that more than one supervisor should have
been assigned.

[77]        
Jacqueline’s counsel pointed out that the exclusion of Grade 6 students
from the Commons meant that up to 44 of them would all have been on the fields
and requiring supervision there. Given their tendencies towards flamboyant
physical play, the need for supervision of this class was heightened. In
addition, counsel referred to Catherwood (Guardian ad litem) v. Heinrichs,
[1996] B.C.J. No. 1373 (S.C.) at para. 34, in which Mr. Justice
Arkell adopted a passage from the dissenting reasons in Guard v. Duncan
Board of School Trustees (1946), 1 W.W.R. 305 (B.C.C.A.), at p. 309 to
the effect that 11 and 12-year-old students [the age of the Grade 6 and 7
students here] unlike 17 or 18-year-olds, would not yet have attained “a
certain discretion and an ability for prudent independent action”.

[78]        
Further, relying on the decision of Hentze (Guardian ad litem of) v.
Campbell River School District No. 72 (1994), 49 B.C.A.C. 241 at para. 12,
in which liability was upheld on the basis that the trial judge had “applied no
more than the standard which the [defendant school] set for itself and its
staff”, Jacqueline’s counsel submitted that, having set a very high standard
for ensuring student safety in every aspect of school life, Southridge was
obliged to live up to that standard in the level of supervision it offers.

[79]        
Both counsel also submit that, given the evidence of a high rate of
participation in school activities by parents, such as the volunteer supervision
by Tracy Tichelman, Ms. Middlaer’s reliance on “human resources” as one of
the considerations in allocating only one supervisor was not reasonable.

[80]        
Following the approach set out in Myers, I must consider whether
this supervision regime met the standard of care in light of the number and age
of the students, the area in which they were being supervised and the usual
activities that went on there, as well as any other specific factors that may
be relevant in this case.

[81]        
Neither the number of students nor the overall size of the area to be
kept under observation here was in itself so inordinately large that the
deployment of a single supervisor, whether roving or centrally positioned,
appears unreasonable on its face.

[82]        
The area certainly presents some obstacles to supervision by one person,
because it really consisted of two separate zones — the playing fields and the
Commons — that did not flow directly into each other, but are interrupted by
fences, driveways and landscaping features. Whether the supervisor used the
central position or the constant circulation approach, there would be periods
in which some of the area and students are not in her or his view.

[83]        
I accept the evidence of Ms. McNeil and Ms. Bennett that the
trees in the Commons area were not meaningful impediments to their view of the
playing fields from the Commons, but the physical separation of this area from
the fields and the resulting additional distance from them is still in itself
somewhat of detriment to an ongoing view of the fields while the supervisor is
in the Commons. This would have been especially true for Ms. Bennett, who seems
to have allowed Grade 7s to congregate in the overhang or breezeway area right
next to the school even when it was not raining, and would have had to direct
her attention to it at least intermittently, putting her back to the fields.

[84]        
However, as Mr. Justice Finch (as he then was) pointed out at para. 14
of Hentze, constant supervision is not required.

[85]        
I think that the decisive factors on this question are the ages of the
children, the playground areas in which they were being supervised and the
types of activities that they engaged in there.

[86]        
In contrast to riskier activities such as gymnastics or crossing
travelled roads, in which a certain constant minimum level of vigilance is
needed to avoid the threat of serious injury, these children were, according to
Ms. McNeil, playing games, walking around or talking — on grass and artificial
turf fields or on a landscaped gathering area and walkway close to the school
building. These are relatively low-key kinds of activities, with the games
ostensibly restricted to no or minimal physical contact. Ms. McNeil’s
description of the typical interventions required of a supervisor, which I
accept, are instructive, in that the most frequent admonition required is
against bringing food on the turf.

[87]        
I recognize that children have a propensity to act in ways other than how
they have been instructed and that the existence of rules restricting rough
play do not mean that there would not be any of it going on, but the general
framework of activities, and Southridge’s reasonable expectations of them based
on its past experience, would be of largely safe and fairly uneventful
interactions.

[88]        
Nor were these pre-schoolers or primary grade students, who can be
expected to injure themselves or each other more frequently through
inadvertence or lack of self-control than the late-intermediate grades being
supervised here. I accept that 11 and 12-year-olds are still not as mature as
senior-grade students and still require a meaningful level of supervision, but
along that continuum of vulnerability they do not require an extremely
intensive level.

[89]        
Taking these factors into account, I think this was the kind of set-up
that could be managed safely by a single supervisor, circulating around or
scanning the various areas for any signs of difficulties.

[90]        
It is an interesting question whether Southridge set a standard of supervision
for itself that exceeds what the application of the usual common-law standard
would have required of it. When read in context however, Finch J.A.’s comments
in Hentze referred to findings by the trial judge about policies of the
defendant school that had committed it to a specific regime of supervision. The
point in upholding liability was that the defendant had fallen short of what it
had explicitly committed itself to do, not that its commitments represented a
higher standard than the common law. In any case, the policies quoted in Hentze
imposed essentially the same duties on staff members to supervise (and
intervene when necessary) that Southridge had in place in this case. Therefore
even if Southridge did set a higher standard for itself, which I do not necessarily
accept, it has still met that standard under the analysis that I have described.

[91]        
Consequently, I am unable to find any breach of the standard of care by
Southridge on the basis of its choice of supervision regimes.

[92]        
In view of this finding it is not necessary to consider whether
volunteer parents should have been deployed to supplement the single
supervisor. In any case, Southridge did not argue that its decision to use one person
meets the standard of care because of its human resources limitations,
only that it was one of the considerations that Ms. Middlaer had in mind
when deciding not to add another supervisor after the accident.

[93]        
The more challenging question is whether in the specific supervision
provided by Ms. Bennett on the day of the accident fell below the required
standard of care.

[94]        
The evidence is clear that she did not see either the accident or its
aftermath. No students could specifically recall a supervisor being present in
the turf field during that recess break. These facts support liability if the further
inferences are drawn that:

·      
Ms. Bennett did not see these events and was not seen by the
students because she was not supervising in accordance with the standard of
care; and

·      
Had she been supervising in accordance with that standard, she
would have been close enough to the students on the turf field for her presence
to have deterred Liam from pushing Elizabeth from behind.

[95]        
Ms. Bennett preferred to circulate while supervising, rather than
take a central position like Ms. McNeil. I have no difficulty in finding
that the injury occurred in the last five minutes of the recess period and that
Jacqueline was on the ground for between three and five minutes after being
injured, before heading to the office. It is curious, in view of this timing,
that Ms. Bennett would not at some point have noticed Jacqueline on the
ground, with at least a few other students around her, if she was circulating
relatively evenly around the play areas. It tends to suggest that she devoted
herself more to the Commons area during that part of the recess, perhaps to the
exclusion of the turf field.

[96]        
Strong reliance in this regard was placed on the similarity to the facts
in Hentze, in which liability was upheld based on the trial judge’s
finding that an altercation in which the plaintiff was injured had been going
on for several minutes while the supervising teacher was in another area of the
school.

[97]        
There is a problem with the applicability of those facts to this case. What
made the gap in supervision negligent in Hentze was that it occurred
while the events that ended up causing the plaintiff’s injuries were happening.
Presumably, they could have been prevented by timely intervention had the
supervisor been doing her job properly. In this case Liam’s run towards and
push of Elizabeth would have taken a matter of seconds and could have been
missed even by the most diligent observation unless that observation had been
continuous, something that the law does not require.

[98]        
The somewhat troubling amount of time that Jacqueline remained
unattended afterwards, while Ms. Bennett was somewhere else, is certainly
a potential indication of an earlier period of disregard of the turf field, and
therefore of a failure to supervise properly during the time leading up to the
accident, but it is not evidence of such a breach in itself. At the end of
the day I think it is equivocal. The possibility that Ms. Bennett spent
too long in another part of the field around the time of the actual injury may
or may not mean that she failed to circulate properly earlier in the recess —
there is simply no principled basis on which to prefer one inference over the
other.

[99]        
Even if I were prepared to find that the post-injury failure proves a
preceding breach of the duty of care, which as I have said I am not persuaded
of, that leads to a more fundamental difficulty in attributing liability to Ms. Bennett
and thereby to Southridge, which has to do with causation.

[100]     It would
have been obvious in Hentze that, but for the supervisor’s failure to
keep the area where the plaintiff was injured in view in a timely way, the
altercation that led to the accident would have been prevented and the injury
would not have occurred. That is, if that supervisor had been doing her job,
the plaintiff would certainly not have been injured.

[101]     That is
anything but obvious here. I have found that it was reasonable for Southridge
to use a system in which one supervisor covered the entire play area. Both
circulating around and standing in a central point involve acceptable periods
in which part of the area is not under observation. The brief duration of Liam’s
run and push could easily have fallen within one of those periods. In other
words, his negligent act and the resulting injury were just as likely to have
occurred if the supervision system in place had been properly carried out as if
it had not.

[102]     I have
kept in mind the passage at p. 35 of Myers, which emphasizes that
it is not incumbent on a plaintiff to prove that the presence of a supervisor
would have prevented the accident. I have not put that onus on Jacqueline.
Rather my point is that Ms. Bennett could have done everything required of
her, as indeed she may have, and still not prevented it.

[103]     On this
question I have also considered the argument of Jacqueline’s counsel that an
attentive and at least intermittently present supervisor would not have
permitted the football game to go on in close proximity to the girls’
piggybacking, and that this in itself is a contributing factor to the accident.

[104]     Ms. Bennett
said that she would have prevented piggybacking taking place in close proximity
to football. Counsel submits that these activities were going on close together
and this further demonstrates that Ms. Bennett was not around before the
injury.

[105]     However
the evidence does not persuade me that there was anything inherently risky in
the distance between the two activities. Liam testified that he had run ”pretty
far away” from the football game before he saw Elizabeth and Jacqueline,
because he was trying to catch a pass for a touchdown. When he stopped, they
were between five and ten metres away from him. This evidence, which I accept,
contradicts any theory of a close degree of proximity that a supervisor should
have responded to.

[106]     Regardless
of the precise distance between these activities, Liam’s negligence was a
function of his seeing the girls and deciding to try to amuse them by a poorly-chosen
push; it did not arise from the fact that he had been playing football.

[107]     Moreover,
while the evidence established that the immediate presence of a supervisor acts
as a deterrent to rough play, I have already emphasized that, even under the
proper implementation of Southridge’s single-supervisor system, there would
have been periods in which the supervisor was not on the turf field or not
watching, in which Liam could easily have acted out in this manner. Put another
way, it is not a component of a reasonable regime of supervision or the proper
discharge of Ms. Bennett’s responsibilities that all students are
constantly deterred from bad behavior by the immediate presence of a supervisor
at all times. That would be more than the law requires.

[108]     In any
event, Liam conceded that there was “always” a supervisor around, although he
was not looking around for one in this situation, and the impulsive nature of
his act means that the absence of a supervisor at that particular moment was
not something he deliberated on before doing it.

[109]     As a
result I am unable to find any liability on Southridge’s part based on a
failure by Ms. Bennett to supervise properly.

[110]     Although
the claims against Southridge included a breach of the duty imposed by s. 3(1)
of the Occupiers Liability Act, in final submissions Jacqueline’s
counsel took the position that general negligence provisions would be more
useful in determining liability. However the Friesens’ counsel relied on the
applicability of the Act as part of his submissions, so it is necessary
to consider it in my analysis.

[111]    
I was recently required to summarize the basic principles in Bendzak
v. Bohnet, 2013 BCSC 435 at paras. 39, 41 – 44:

[39]      Section 3(1) of the Occupiers Liability Act
requires an occupier of premises to take that care that is reasonable in all
the circumstances of the case to see that a person on the premises will be
reasonably safe in using the premises. This duty applies to, among other
considerations, the condition of the premises and the activities on it.

…

[41]      The standard of care set out in s. 3(1) is
comprehensive, and it is not necessary to refer to standards set out in general
negligence cases, as that is “likely to be more confusing than helpful in the
analysis”: Weiss v. Young Men’s Christian Association of Greater Vancouver
(1979), 11 B.C.L.R. 112 (C.A.) at 118; Foley v. Imperial Oil Limited,
2011 BCCA 262, at para. 62.

[42]      The standard of care is one of reasonableness and
not perfection. The occupier is definitely not an insurer against any possible
risk of harm: Carlson v. Canada Safeway (1983), 47 B.C.L.R. 252 (C.A.); Sulmona
v. Serraglio, [1986] B.C.J. No. 413 (C.A.).

[43]      The duty is not to ensure that those using the
premises will be absolutely safe but to use reasonable care to prevent injury
or harm from danger that is or ought to be known: Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.), aff’d, 49 B.C.L.R. (2d) 99 (C.A.).

[44]      The test is not
“whether anything could have been done to prevent the injury using 20/20
hindsight, but rather whether the steps taken by the occupier were reasonable
in all the circumstances”: Duddle v. Vernon (City), 2004 BCCA 390 at para. 16.

[112]     Everything
I have said about the reasonableness of the system that Southridge had in place
and the lack of any causative relationship between Liam’s actions and the
possible absence of Ms. Bennett apply with equal force to this potential basis
of liability. The supervision regime in place demonstrated a reasonable degree
of care for the children’s safety, in light of their ages and activities and
the areas in which they were being supervised. Even if there was an omission in
the proper level of supervision on that day, which as I have said has not been
satisfactorily proven, I am not satisfied that it played any role in Liam’s
negligent act.

[113]     It follows
that I do not find any liability on Southridge’s part based on the application
of the Occupiers Liability Act.

[114]     Finally, I
am unable to find any degree of contributory negligence on Jacqueline’s part. I
have accepted, when dealing with the adequacy of Southridge’s supervision, that
piggybacking without significant physical contact with others was innocuous.
There was nothing inherently risky about her engaging in it with Elizabeth
before Liam made his foolish decision. The fact that she was thereby more
vulnerable to being injured when Elizabeth was pushed over does not render Jacqueline
at fault to any degree. The activity that placed in her in that position of
vulnerability did not in itself pose any meaningful risks.

4.              
Conclusion

[115]     Liam is
liable in negligence for Jacqueline’s injuries. Her claims against his parents
and Southridge are dismissed, as are the third party claims.

[116]     If there
is any reason why costs should not follow the event for each party, in keeping
with these various outcomes, counsel may make written submissions or appear in
person. Otherwise costs will be awarded in that manner.

The
Honourable Mr. Mr. Justice T.A. Schultes