Running head: Negligence Question

Learning Task 1: Negligence Question

Educ 525: Ethics and Law in Education

October 18, 2018

Alex Falk

Beverly Dodd

David Clarke

Sean Myers

Stephanie Spahmann
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Upon examination of the facts, and pursuant to Section 1 of the Contributory Negligence

Act (Chapter C-27), we find Prim Irwin, Amanda Ballard, and Lindsay Waterman to each be at

fault for the injuries suffered by Irwin, on a balance of probabilities, as joint tortfeasors of the

involuntary tort of contributory negligence causing injury to Irwin (Province of Alberta, 2000a).

Amanda Ballard

Duty of Care​:

Ballard, as the registered owner and operator of the 1999 GMC Envoy involved in the

accident, had a duty of care to abide by all Alberta traffic laws and regulations. She has been

charged with Driving Carelessly under section 115(2)(b) of the ​Traffic Safety Act ​of Alberta, and

on the face of it constitutes negligence in the operation of a motor vehicle (Government of

Alberta, 2000b). As a driver of a motor vehicle, she had a duty of care to her passenger and the

general public. Ballard’s failure to abide by all applicable Alberta traffic laws and regulations

constituted a breach of her duty of care to Irwin.

Standard of Care:

As the registered owner and operator of the 1999 GMC Envoy involved in the accident,

Ballard owes a standard of care to inform all passengers of any immediate threats to their

personal safety and to take responsibility to mitigate, remove or fix any of these threats. A

reasonable and prudent person entrusted to operate a motorized vehicle would not allow any

passenger to occupy a space of the vehicle where the seatbelt was known to be defective as was

the case with the seat Irwin occupied. Furthermore, a reasonable and prudent driver would

inform any and all passengers of the deficiency. The witness’ testimony gives no evidence that

Ballard explicitly informed Irwin before their departure of Marabelle Resort Golf Course that the
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front passenger seatbelt was defective. Ballard also had a standard of care to drive appropriately

and safely as would any reasonable adult. This standard of care was not met by her swerving

around another stationary vehicle on a secondary highway.

Foreseeability:

Severe injury to a passenger resulting from a broken seatbelt is reasonably foreseeable.

While automobile accidents are unpredictable, there are still standards and norms in place to

prevent such accidents. Seatbelt use is legally mandated in the ​Traffic Safety Act​, and it is

reasonably foreseeable that if a passenger was not wearing their seatbelt or if that seatbelt was

not functioning properly at the time of an accident, the passenger would face a greater degree of

injury than if the seatbelt had been in its proper position and working condition (Province of

Alberta, 2000b).

Causation:

But for Ballard’s decision to swerve around the stationary truck at the highway junction,

the 1999 GMC Envoy would not have rolled and caused injury to Irwin. But for Ballard’s

decision to allow Irwin to sit in the front passenger seat, Irwin would have been provided a

working seatbelt for her use and less likely to sustain serious injury in the case of an accident.

Apportionment of Liability:

For Ballard’s acts of contributory negligence which caused Irwin to suffer harm, we find

her culpable for 45% of all damages that Irwin sustained.

Lindsay Waterman

Duty of Care:

According to section 18 of the ​School Act​, since the accident occurred during school
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hours and while the plaintiff was returning from a school field trip that Waterman supervised,

Waterman had a Duty of Care, in ​loco parentis​, toward the plaintiff (EDUC 525, Power Point #6,

September 25, 2018, Slide 38). This means that Waterman had a duty to ensure the safety and

wellbeing of her students, including the Plaintiff, in place of a reasonable parent (EDUC 525,

Power Point #6, September 25, 2018, Slide 38).

Standard of Care:

According to Common Law cases such as Bain v. Calgary Board of Education (1993),

there is a particular standard of care that teachers are obligated to uphold in order to meet their

duty of care (EDUC 525, Power Point #6, September 25, 2018, Slide 36; Donlevy, et al., n.d.,

Section 1.4.2.2). Teachers must “act as would a prudent parent in protecting students from harm

which is reasonably foreseeable” (Donlevy, et al., n.d., Section 1.4.2.2). According to this

standard, Waterman should have ensured, as a reasonable parent would, that all vehicles being

used to transport students where in safe operating condition before allowing any students to ride

in such vehicles. Waterman did not do this. In allowing the plaintiff to ride with another student

to and from the school field trip (which took place outside of the city limits), Waterman was also

in breach of her school district’s and school’s policies on student transportation, which both

state:

No secondary school student, irrespective of age, may drive a private vehicle transporting

other students to school-sponsored activities during school hours or as school

representatives, except to use local facilities within the town or village boundaries for

activities that are an integral part of instruction. (Student Drivers, n.d. p. 2)

Causation:
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Waterman is also liable when it comes to the causation of the accident. Indeed, but for

her decision to allow the plaintiff to ride with another student to and from the school field trip,

the accident would not have occurred.

Foreseeability:

It is reasonable to foresee injury to students during a field trip, due to the inherent danger

in student driving. While the plaintiff’s parents had signed a consent form prior to the accident,

stating that their child could attend the field trip and “that the school and its teachers would not

be held liable for accidents where their children were injured”, Waterman’s breach of school and

district policies, as well as her negligence to uphold an appropriate standard of care towards

Irwin, make it so that the parents consent does not apply in this case.

Apportionment of Liability:

Pursuant to Section 144.1 of ​The​ ​School Act​, we therefore find the Board of Trustees of

the Foothills School Division vicariously liable for 45% of damages caused to the plaintiff

(EDUC 525, Power Point #6, September 25, 2018, Slide 26).

Prim Irwin

Irwin’s Contributory Negligence: ​Section 1(1) of the ​Alberta Contributory Negligence Act

states that, “whereby the fault of 2 or more persons damage or loss is caused to one or more of

them, the liability to make good the gain or loss is in proportion to the degree in which each

person was at fault” (Province of Alberta, 2000a). Thus, the extent by which Ballard and

Waterman are liable for the damages suffered by Irwin will be reduced by the degree to which

she is at fault for her own injuries.

Foreseeability:
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It is reasonable to foresee that severe injury such as those suffered by the plaintiff, could

result from a car accident where a passenger does not use a seatbelt as it increases the likelihood

of being thrown from the vehicle.

Causation:

But for not using other available functioning seatbelts in the car at the time, injuries to

Irwin could likely have been avoided or reduced. The decision to ride unsafely was voluntary by

Irwin, and increased the severity of injury. Similarly, in Bain v. Calgary Board of Education,

1993 the court found that the plaintiff (Bain), being aware of inherent risks involved, made some

voluntary choices that contributed to his injuries (EDUC 525, Power Point #6, September 25,

2018, Slide 36).

Apportionment of Fault:

Considering voluntary avoidance of seat belt usage from Snushall v Fulsang, [2005] O.J.

No. 4069 courts typically assign 5% - 25% of the damages to the plaintiff. Considering witness

statements, crash expert investigation findings, and signed school permission forms, on a balance

of probabilities we conclude that Irwin voluntarily and knowingly rode in a seat in the vehicle

without using its malfunctioning seat belt. By doing this she accepted some risk, but did not

waive her right to sue as a result of other’s negligence, and as such we do not apply ​maxim

volenti non fit injuria​ fully and assign 10% liability for damages.

Damages

The damages suffered by Irwin are both pecuniary and non-pecuniary, including: medical

expenses, loss of opportunity, pain and suffering, loss of income, and cost of assisted living

(EDUC 525, Power Point #6, September 25, 2018, Slide 26).
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Result

In result, Ballard and Waterman, as joint tortfeasors are jointly and severally liable to

Irwin to the extent of 90% of the damages awarded to her, as between them are each entitled to

contribution and indemnity from the other to the extent of one-half of the damages awarded

against them. The risk of an impecunious tortfeasor falls upon the joint tortfeasor and not the

plaintiff.
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References

Donlevy, J. K. (2018, September 25). ​Education 525:​ ​Ethics and Law​ [PowerPoint slides].

Retrieved from University of Calgary D2L site: https:d2l.ucalgary.ca

Donlevy, J.K., Chomos, J., & Walker, K. (n.d.). ​A Guide to Alberta School Law ​[Kindle version].

Province of Alberta. (2000a). ​Contributory Negligence Act​. Retrieved from:

http://www.qp.alberta.ca/documents/Acts/C27.pdf

Province of Alberta. (2000b). ​Traffic Safety Act. ​Retrieved from:

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

Snushall v. Fulsang, 2005 CanLII 34561, Ontario Court of Appeal (2005). Retrieved from

https://www.canlii.org/en/on/onca/doc/2005/2005canlii34561/2005canlii34561.html?resu

ltIndex=1

Student Drivers. (n.d). Retrieved from University of Calgary D2L site: https:d2l.ucalgary.ca