Lownds v. Sperker, 2014 NSSC 404

SUPREME COURT OF Nova Scotia Citation: Lownds v. Sperker, 2014 NSSC 404 Date: 20141114 Docket: Hfx No. 300344 Registry: Halifax Between: Harold Lownds Plaintiff v. Anna Sperker and Sacred Heart School of Halifax Defendants Judge: The Honourable Justice A. David MacAdamHeard: June 9, 10, 11, 12, 16, 17, 19, 2014, in Halifax, Nova ScotiaFinal Written Submissions: June 13, 2014Counsel: Kevin MacDonald and Hilary Branning (Summer Student), for the Plaintiff Tara A.

Miller and Joshua Martin, for Defendant (Sperker), for the Defendant William Ryan, Q.C., Nathaniel Marshall and Daniel Mackenzie (Articled Clerk), for Defendant(Sacred Heart) By the Court: The nonsuit [1] On February 28, 2007, Anna Sperker and some of her schoolmates from Sacred Heart School of Halifax (“Sacred Heart”),together with teacher-chaperones from the school, travelled by bus to Martock Ski Hill in Windsor, Nova Scotia for an afternoon andevening of skiing. The plaintiff, Harold Lownds, his wife, her two children and his sister travelled to Martock around 6 p.m. On his firstrun of the evening, Mr.

Lownds was struck from behind by Ms. Sperker, who was skiing downhill, apparently hit a bump on the hill, andfell. Mr. Lownds claims he suffered injuries and financial losses as a result of the collision. [2] Mr. Lownds commenced this proceeding against Ms.

Sperker, seeking damages for negligence; against Sacred Heart innegligence, alleging that the school failed to provide an adequate number of teacher-chaperones to properly supervise the students, failedto adequately instruct the teacher-chaperones, failed to have an adequate policy for ski trips, failed to ensure that the teacher-chaperoneswere aware of relevant Martock information and had conveyed it to the students.

He also claimed that Sacred Heart was vicariouslyliable for the alleged negligence of the teacher-chaperones. [3] At the close of the plaintiff’s case, the defendant Sacred Heart moved for dismissal of the proceeding as against it pursuant toCivil Procedure Rule 51.06(1), which provides that at “the close of the plaintiff’s case and before the defendant elects whether to openthe defendant’s case and present evidence, the defendant may make a motion for dismissal of the proceeding, or a claim in theproceeding, on the ground that there is no evidence on which a properly instructed jury could find for the plaintiff.” [4] The essentials of the claim against Sacred Heart – both the direct claim and the vicarious liability claim – are outlined in theplaintiff’s pretrial submission.

Relying on the standard of care required of school officials as outlined in Myers v. Peel County Board ofEducation, (SCC), [1981] 2 S.C.R. 21, Sacred Heart says the standard applicable is that of a “careful or prudent parent”(see Myers at 31-32). Counsel for the plaintiff submits that “careful and prudent parents” (1) would not ski together but rather wouldcover as many trails as possible by separating themselves; (2) would ensure that the children read the Martock School informationpackage and viewed the Martock DVD prior to every ski trip; and (3) would ensure that at a minimum they followed the 8:1 ratio of

students per chaperone recommended by Martock. [5] The law on dismissal for nonsuit is not in issue. As counsel for Sacred Heart submits, the trial judge’s role on a nonsuit motionis not to decide if they believe the evidence, but only to decide whether there is enough evidence, if uncontradicted, to satisfy areasonable person; the trial judge does not weigh the evidence, but only determines (in counsel’s words), whether, if the court acceptedall of the plaintiff’s evidence, it would be inadequate to establish the requisite elements of their claim: see, e.g., Johansson v.

GeneralMotors of Canada Ltd., 2012 NSCA 120, at para. 29, where the court endorsed the following passage from Prudential Securities CreditCorp., LLC v. Cobrand Foods Ltd., 2007 ONCA 425, [2007] O.J. No. 2297: 35 On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, ifa plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion.

Second, in assessing whether aplaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign "the most favourable meaning"to evidence capable of giving rise to competing inferences. This court discussed this latter principle in Hall et al. v. Pemberton (1974), (ON CA), 5 O.R. (2d) 438 at 438-9, quoting Parfitt v.

Lawless (1872), 41 L.J.P. and M. 68 at 71-72: I conceive, therefore, that in judging whether there is in any case evidence for a jury the Judge must weigh the evidence given, mustassign what he conceives to be the most favourable meaning which can reasonably be attributed to any ambiguous statements, anddetermine on the whole what tendency the evidence has to establish the issue. ...

From every fact that is proved, legitimate and reasonable inferences may of course be drawn, and all that is fairly deducible from theevidence is as much proved, for the purpose of a prima facie case, as if it had been proved directly.

I conceive, therefore, that indiscussing whether there is in any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidenceto be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would bewarranted in drawing from it, there is sufficient to support the issue. 36 In other words, on a non-suit motion the trial judge should not determine whether the competing inferences available to thedefendant on the evidence rebut the plaintiff's prima facie case.

The trial judge should make that determination at the end of the trial, noton the non-suit motion… [6] In Johansson, accordingly, the Court of Appeal held that “[i]nstead of dwelling on res ipsa loquitur, strict liability and theabsence of expert evidence, the judge should have just determined whether GMC's negligence could be reasonably inferred from theevidence that was adduced” (para. 125). [7] At issue, therefore, is whether there is evidence on all elements of the claim of negligence on the part of Sacred Heart,whether direct or vicarious.

To make out a claim in negligence requires the plaintiff to establish the existence of a duty of care, breach ofthe duty, and causation of the injury or loss. During submissions, counsel for the plaintiff was advised there was sufficient evidence oneach element except causation to establish negligence on the part of Sacred Heart and the teacher-chaperones.

The only doubt waswhether there was sufficient evidence, or any evidence, on which a jury could find that the alleged negligence caused, or contributed to,any of the injuries sustained by the plaintiff. [8] With respect to causation, Sacred Heart argues that even if there is sufficient evidence to support the inference that SacredHeart breached the standard of care, there was no evidence proving that without the breach, the collision would not have occurred.Without evidence that the accident would not have occurred but for the alleged breach, it is submitted, the claim in negligence cannot bemade out: see Clements v.

Clements, 2012 SCC 32 , [2012] 2 S.C.R. 181, at paras. 6-12. [9] In Clements the plaintiff was a passenger on a motorcycle, driven by her husband, which was overloaded. Unbeknownst to thedriver, a nail had punctured the rear tire. While driving in a 100 km/H zone, he accelerated to at least 120 km/H in order to pass a car.The nail fell out, the rear tire deflated and the bike began to wobble and then crashed, causing severe injuries to his wife.

The trial judgeheld that the driver’s negligence in driving an overloaded bike too fast contributed to the accident, but that the wife was unable to prove“but for” causation, due to the limitations of scientific reconstruction evidence. At the Supreme Court of Canada, McLachlin C.J.C., forthe majority, held that, as a general rule, a plaintiff cannot succeed unless they are able to show they would have not suffered the loss“but for” the negligent act or acts of the defendant.

However, in certain circumstances a plaintiff may be able to recover on the basis ofmaterial contribution to the risk of injury without necessarily showing factual “but for” causation. The Chief Justice said, at para. 46:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss“but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiffhas established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (

a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (

b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. [ 10 ] In submitting that there was sufficient evidence of causation, counsel for the plaintiff relied on the decision of McIntyre J., for the court, in Meyers, supra .

The circumstances are outlined in the headnote: This appeal concerned an accident suffered by a fifteen year old boy in attempting to dismount from the rings in a gymnastic class at a high school. The accident occurred in an exercise room, an area opening on to the gymnasium but at a somewhat higher level, where supervision from the main floor was impossible. The teacher for the period was responsible for a combined class that day and had given appellant and a friend, among others, permission to practice their gymnastic manoeuvres in the exercise room.

The friend acted as appellant’s spotter, a person positioned to catch a person or at least to break his fall in the event of an accident. When appellant dismounted, the spotter considered him finished working on the rings and turned to leave. Appellant, however, remounted, attempted a difficult manoeuvre for the first time, and fell breaking his neck; his claim that he told the spotter of his intention to do so was rejected by the trial judge. At trial, the manoeuvre was found to be suitable for a student of appellant’s age and condition if given suitable coaching and supervision.

The supervision incumbent was found to be lacking and the mats in place under the rings at the time of the accident inadequate. Liability was apportioned, the defendant being eighty per cent liable, and the appellant twenty per cent liable. The Court of Appeal allowed an appeal finding that there was no evidence that other mats would have avoided the injury and that it could not be assumed that teacher’s presence would have avoided the accident. [ 11 ] Justice McIntyre noted that the trial judge (and subsequently the Court of Appeal) limited the issues “to a very narrow compass.

The whole finding of liability against the respondent is supported on only two bases, the failure to provide adequate mapping, and the failure to supervise…” (29). He added, “[t]he attribution of liability to the respondent depends upon a finding of fact by the trial judge that the matting in use was inadequate, and a finding that the presence of a supervising teacher in the exercise room could, on a balance of probability, have prevented the accident” (29).

There was evidence upon which the trial judge could reasonably conclude that the mats were inadequate in the circumstances (29-31). [ 12 ] In respect to the failure to supervise, Justice McIntyre found that no supervision was provided in respect to the events leading up to the accident. He stated, at pp. 31-32: The standard of care to be exercised by school authorities in providing for the supervision and protection of students for whom they are responsible is that of the careful or prudent parent, described in Williams v. Eady.

It has, no doubt, become somewhat qualified in modern times because of the greater variety of activities conducted in schools, with probably larger groups of students using more complicated and more dangerous equipment than formerly: see McKay et. al. v. The Board of Govan School Unit No. 29 of Saskatchewan et. al. , but with the qualification expressed in the McKay case and noted by Carothers J.A. in Thornton , supra , it remains the appropriate standard for such cases. It is not, however, a standard which can be applied in the same manner and to the same extent in every case.

Its application will vary from case to case and will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress , the age and the degree of skill and training which the students may have received in connection with such activity, the nature and condition of the equipment in use at the time, the competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent-standard to the conduct of the school authority in the circumstances.[emphasis added] [ 13 ] In respect to the issue of supervision by a prudent parent, at p. 33, he held that in view of the nature of the activity expected in the gymnastics class, he could not conclude that “a prudent parent would have been content to have his son permitted to depart from the gymnasium into a room where there would be no adult supervision to practise gymnastic manoeuvres on the rings which could involve the straddle dismount with its potential dangers” (33). [ 14 ] Justice McIntyre went on to discuss causation.

The evidence – including expert evidence – indicated that additional protection would have been provided by the use of different mats. He continued, at p. 35: …It is not, in my view, incumbent upon the plaintiff in a case such as this to prove positively that the presence of the crash mat would have prevented the injury. The plaintiff is bound to prove, according to a balance of probabilities, that the failure of the school authorities

to provide more adequate matting and insist upon its use contributed to the accident. On all the evidence before him the trial judge reached the conclusions that such proof had been made and, in my opinion, he was justified in that finding. [ 15 ] In respect to the question of the absence of supervision in the room where the accident occurred, McIntyre J. said, at pp. 35-36: …On a balance of all the probabilities it was the opinion of the trial judge, which in my view of the evidence was justified, that the absence of supervision contributed to the cause of the accident.

In my opinion, it cannot be said that the presence of a teacher among six to eight students in the exercise room would not have had a restraining effect upon the students which could have influenced the course of events and prevented the accident. The respondent should have anticipated reckless behaviour from at least some of the young boys sent off by themselves to work on gymnastic equipment.

The evidence revealed that it was a recurring problem to keep students from attempting gymnastic exercises without spotters and the proclivity of young boys of high school age to act recklessly in disregard, if not in actual defiance, of authority is, as was pointed out by Blair J.A. in dissent in the Court of Appeal, well known. It cannot be an answer here for the school authorities to say as they did that even the presence of a supervising teacher would not have prevented the accident. The manoeuvre attempted by the appellant is admittedly one of some danger. He had not been told not to try it.

In fact, he had been virtually invited to do so, since higher marks could be obtained by the performance of Level 2 exercises. He was permitted to go to the exercise room without any supervision and, as far as the evidence reveals, with no inquiry as to what was contemplated on his arrival there. What happened, as we know, was that he foolishly tried for the first time a dangerous manoeuvre and did himself serious injury. According to the evidence of Jowett, the teacher, there were about three or four couples in the exercise room. This evidence was accepted by the trial judge.

In my opinion, it would be more than mere speculation to conclude, as did the trial judge, that the presence of a teacher in the exercise room could have influenced the situation.… [ 16 ] In this case, counsel for the plaintiff suggests, having regard to the evidence of the one chaperone who testified, that the presence of chaperones might have had a restraining influence on the students. Gabrielle Louisa Gesner, the chaperone in question, agreed with counsel that the presence of a teacher might have had such a restraining influence.

However, the activity here is not the activity that was involved in Meyers , supra . In that case, the trial judge found that there should have been supervision in the room in which the activity was being carried on. The trial judge found, and McIntyre J. agreed, that the respondent should have anticipated reckless behavior and that it was a reoccurring problem to keep students from attempting gymnastic exercises without spotters and the proclivity of young boys to act recklessly. [ 17 ] To the extent there was any evidence, particularly from Ms.

Gesner and the two ski patrollers who testified, none of them indicated that they observed or were informed by anyone else of any reckless skiing activity during the time period preceding the run during which the collision occurred. As such there was no indication that the students, including Ms. Sperker, had been skiing recklessly or in such a manner to cause concern either to Ms.

Gesner or the ski patrollers, or to raise the concerns noted by McIntyre J. in Meyers , supra . [ 18 ] In addition, there has been no evidence as to what the role of the chaperone should be in the context of a school skiing trip, including one involving a ratio of chaperones to students of 1:8. There is no suggestion in the evidence that it was necessary for each student to have a chaperone ski with them during each of their runs, or that before commencing a run they should ensure a chaperone was present.

To the extent there was any evidence on the role of chaperones, it primarily involved their informing the students to be responsible and not to bring discredit to the school. No expert was called, nor was any factual evidence adduced, as to how the presence of more chaperones would have prevented this accident having regard to the circumstances under which it occurred. Downhill skiing is an individual sport where the skier launches themselves down the hill.

Absent a chaperone skiing alongside the student, there was no evidence or suggestion as to how the chaperone could control the manner of skiing during the run. Once the run was completed a chaperone might chastise a student for skiing out of control, but this would have only have been feasible after the completion of the run. There has been no evidence adduced of improper skiing by Ms. Sperker prior to the run when the collision occurred.

I am satisfied that the type of circumstances respecting supervision in Meyers are not present in this case. [ 19 ] Clearly the plaintiff has not met the onus of providing evidence on which a jury could find the element of causation applying the “but for” test as outlined by the Chief Justice in Clements .

The exception noted by the Chief Justice is also of no assistance to the plaintiff since there is no evidence on which a jury could find that any breach by Sacred Heart, whether directly or vicariously, materially contributed to the injury and loss occasioned to the plaintiff. [ 20 ] Consequently the motion for a nonsuit on the basis of the lack of any reasonable evidence in respect to causation is granted.

The original motion only related to the direct liability of Sacred Heart; after that motion was granted by oral decision, however, Sacred Heart made a further motion in relation to the claim against the school on the basis of vicarious liability for the conduct of the chaperones. Neither counsel made any further submission. This motion is also granted, on the same basis, that being that there has been no evidence presented on which a jury could find that any breach by Sacred Heart or by the chaperones contributed to the injuries sustained by Mr. Lownds.

[ 21 ] As such, the nonsuit motions by Sacred Heart are granted. MacAdam, J.