NEGLIGENCE Crawford Adjusters Canada Incorporated

Transcription

1 Ontario School Boards Insurance Exchange Influences on Liability November 2010 JOHN M. SHAROUN, FIIC, CFE, FCIAA TERESA DRIJBER, FCIP BOYD CRITOPH, LLP NEGLIGENCE The omission to do something which a reasonable and prudent person would do, or The doing of something that a reasonable and prudent person would not do. 1

2 CONTRIBUTORY NEGLIGENCE AND NEGLIGENCE BY MULTIPLE DEFENDANTS Contributory Negligence" refers to negligence committed by the plaintiff that serves to reduce his or her entitlement to damages. More than one defendant can be found negligent with respect to any given incident and the plaintiff's damages will be apportioned in accordance with the degrees of negligence of each. FORESEEABILITY In establishing legal liability, the plaintiff will have to show the consequences of your actions were foreseeable. Tort law requires a person to compensate or to answer in damages ($) for the foreseeable results of his or her negligence. 2

3 LIMITATION PERIODS BEGIN WHEN THE PERSON ATTAINS THE AGE OF 18 Effective January 1, 2004, the limitation period is 2 years from the date of the occurrence. ELEMENTS OF AN ACTION In establishing the right to recover compensation, a plaintiff must prove: The defendant owed a plaintiff a duty of care; The defendant breached that duty; The plaintiff suffered damage or loss as a result of the injury as a result of the breach of duty. 3

4 STANDARD OF CARE OWED TO A STUDENT Generally the standard of care a defendant must meet is that of a careful and prudent parent, however, where there are already relevant standards in place set by government, industry or other private bodies, such other standards will be considered by the court in determining the standard to be applied in the subject case Influences on Determination of Liability Occupier s Liability Act Education Act Ontario Building Code Fire Safety Code CSA Canadian Standards Association OPHEA Guidelines Day Nurseries Act 4

5 The Case of the Striking Door Facts ❿ High school student (17 year-old female), exiting the building, struck on the back of the left ankle, nearly severing her Achilles tendon The Case of the Striking Door 5

6 Physical Locale Standard double door metal, windowless, hollow and heavy Hinged and opened outwards to a cement landing six inches below Equipped with panic pars and automatic closures When installed, a shallow wooden plug filled the void at the foot of each door Plug on west door had fallen out or been removed so on date of loss the leading edge of the door was sharp and jagged Other Considerations No warning or other signs typical Exit sign Door intended for emergency exit only School quite aware students and staff for years used doors as a convenient exit to the parking lot Neither principal nor maintenance staff aware of condition and no evidence of specific inspection of door edge Evidence principal was a responsible and experienced educator who took his duties seriously 6

7 Outcome Finding against the Board 100% no contributing negligence against student or student who opened the door Damages GDs $37, 500 SDs $ FLA $15, 250 Plus cost PJ1 Considerations Occupiers Liability Act RSO 1990 Education Act RSO 1990 Education Act RSO 1990 duties of principals The Building Code Act SO

8 Findings of the Court Leading edge of door was sharp and unsafe and was the cause of plaintiff s injury and could have been avoided by reasonable inspection and repair OLA imposes duty to make premises reasonably safe. Education Act 265 imposes duty to give attention to the health and comfort of the students et al. Section 298 imposes duty of weekly inspections on principal re maintenance repairs to the premises Building Code IS (2)(b) Building deemed to be unsafe if condition exists that could be hazardous to persons in normal use The Case of the Wayward Racket (1999) 8

9 The Case of the Wayward Racket (1999) Facts ❿ High school student (14 year old female) playing doubles badminton was struck in the eye by her partner causing serious eye injury and permanent damage More Information Client was involved in her doubles badminton game during regularly scheduled gym class segment She attempted to return the birdie, missed, and was hit squarely in the eye by her doubles partner s racket Doubles partner s version is slightly different but not materially Partner eventually dismissed from the action 9

10 Allegations Against the Board and Staff Board failed to have a safety policy in place by making protective eyewear available Board failed to properly train its teachers in safe badminton procedures Teacher failed to provide adequate safety instruction Teacher failed to provide adequate supervision Other witness evidence? Outcome Trial by Jury Damages assessed at GDs $80,000 Future loss of income $250,000 FLA $10,000 Jury found no negligence on the part of the teachers or the Board? What might the outcome be today? 10

11 Considerations OPHEA guidelines for both elementary and secondary school curriculum and inter-school now requires (among other things): Protective eye gear meeting minimum ASTM FE03 standards singles or doubles Onsite and in the area supervision required Teach and practice skills to allow for adequate spacing so each athlete is able to make an uninterrupted swing OFSAA guidelines similar Badminton Canada guidelines similar Lessons Learned With today s eyes 1999 outcome would more than likely be adverse Requirements, regulations and guidelines evolve over time Be aware Be safe Protect yourself from liability 11