McKay et al. v. Board of Govan School Unit No. 29 et al.

IAN McKAY, an infant, suing by his next friend and father, IVAN McKAY, and

APPELLANTS; *F ., the said IVAN McKAY (Plaintiffs) ..

Apr.29 AND

THE

BOARD

OF

THE

GOVAN

SCHOOL UNIT NO. 29 of

SAS- R

KATCHEWAN and DONALD MOLE-

J.:-This is an appeal from a judgment of the Court of Appeal of Saskatchewan', Hall J.A. dissenting, setting aside a judgment rendered in favour of the present appellant after a trial with a jury before Mr. Justice MacPherson and ordering a new trial on the issues as to both liability and damages.

This action was brought by Ivan McKay as next friend of his infant son, Ian McKay and personally against the respondent school board and one of its teachers, Donald Molesky, for damages arising out of injuries sustained by Ian McKay when he fell between parallel bars while practising for a gymnastic display which was to be staged by the William Derby High School, where he was a pupil, at a variety night performance arranged by that school. As a result of the fall the boy developed paraplegia and after long hospitalization and treatment, he was, at the time of the trial (two years after the accident) paralyzed from the neck down except for some shoulder and bicep muscles. The action against Molesky was dismissed by consent having regard to the provisions of s. 225a (added 1961, 29) of The School Act of Saskatchewan (now R.S.S. 1965, c. 184, s. 242) which provides that where the principal of a school approves or sponsors activities such as those here in question "the teacher responsible for the conduct of the pupils shall not be liable for damage . . . for personal injury suffered by pupils during such activities".

Ian McKay was athletically inclined and was one of a group of 12 to 18 students who had volunteered to put on the gymnastic display under the supervision of Molesky who had had some experience in gymnastics while at teachers' college but who was not a qualified instructor in gymnastic work on the parallel bars. In the early days of practice for this display, the activities of the boys were limited to "tumbling" on mats on the floor, but a few days before the accident some parallel bars were brought from the public school to the scientific laboratory in the high school which was being used as the scene of the gymnastic practice. The evidence does not disclose that McKay had ever done any work on parallel bars before this time, but McKAY after a few days practice he assayed, under Molesky's charge and direction, the difficult feat which he describes as swinging his legs back and forth quite a few times with a view to gathering sufficient momentum to do a flip at the end of the bars and he says that his legs "were getting a Ritchie J. little bit higher each time and when they were about level with my head, I guess about a foot above the bars, then I fell . . . in between the bars face down with my head turned a little to the left".

There is some difference between the witnesses as to the exact manoeuvre that the boy was trying to perform and Molesky described a simpler movement, but in any event, this untrained youth was in my opinion undoubtedly engaged in an exercise which was dangerous for him and which required close supervision. McKay says that Molesky had described the exercise but had not demonstrated it. Molesky and one of the other boys apparently were acting as what Molesky describes as "spotters" whose function was to help the performer on the parallel bars in his dismount, but it is clear that neither of them was at any time in a position to assist McKay in what he was doing or to prevent -a fall in the area where it took place.

The following admissions were formally made by the respondent School Board:

ScHooL Answer: Yes.

No.29 2. If answer number 1 is "Yes" then please state fully the acts or omissions which constituted the failure in duty of care.

Ritchie J. Answer:

(i) Lack of competent instruction on parallel bars.

(ii) Insufficient care and attention to spotting.

(iii) Insufficient demonstration on parallel bars.

(iv) Progressive steps on parallel bars rushed.

(v) Instructor not sufficiently qualified.

(vi) Insufficient safety precautions.

Answer: No.

The jury assessed damages for the infant plaintiff at $183,900.

It appears to me to be desirable before considering the reasons for judgment of the Court of Appeal, for me to state that in my opinion the evidence is capable of supporting the answers which the jury gave to the first three questions which were submitted to them, but they did not necessarily have to reach the conclusion which they did and if, as the majority of the Court of Appeal has found, there was misdirection prejudicial to the respondent in the charge of the learned trial judge respecting the standard of care required of the school authorities, then there should, of course, be a new trial on the question of liability.

In his charge to the jury the learned trial judge repeatedly told them that the duty of care which Molesky owed to young McKay was that which a careful father of a large family owes to his children. This view, which has often been adopted, was first expressed many years ago by Lord Esher in Williams v. Eady , where he said at p. 42: As to the law on the subject there can be no doubt; and it was correctly laid down by the learned Judge, that the schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could not be a better definition of the duty of a schoolmaster. (1893), 10 T.L.R. 41.

While I am not satisfied that this definition is of universal application, particularly in cases where a schoolval.

master is required to instruct or supervise the activities of a great number of pupils at one time, I am nevertheless of t the opinion that a small group, such as that which Molesky had in his charge in the improvised gymnasium, is one to J. which Lord Esher's words do apply.

Mr. Justice Woods, however, in the course of the reasons for judgment which he delivered on behalf of the majority of the Court of Appeal, expressed the view that while the test of the "careful father" is readily applicable to students taking part in team games such as hockey or baseball, it did not apply to the facts of this case and he continued by saying:

The learned judge later said:

I take the view that a reasonably careful parent would have been unlikely to permit his boy, almost totally inexperienced in gymnastics, to execute the manoeuvre which young McKay performed without exercising a great deal more care for his safety or ensuring that someone else did so on his behalf.

The position in the present case is that Molesky had accepted responsibility for the care and control of young McKay while he was engaged in the gymnastic practice and whatever analogy is involved in describing the standard by which Molesky's duty is to be tested, it is clear to me that his supervisory duties required him to guard against forseeable risks to which this inexperienced boy was exposed in the performance of exercises on the parallel bars. There was, in my opinion, a real risk that the boy might fall and there was a concomitant duty to guard against that risk eventuating. The particulars specified in the jury's answer to question No. 2 constitute a finding that there was a breach of that duty.

With the greatest respect, it seems to me also that when Mr. Justice Woods held, in effect, that the learned trial judge was wrong in directing the jury that the respondent owed the boy the duty of "a careful parent" rather than the duty which would have been owed by a "physical training instructor", he was saying that the judge had invited the jury to determine the liability of the respondent school board according to a lower standard of care than that by which it should have been judged. If this were indeed the case, it is difficult to understand how the respondent has any cause for complaint. This appears to me to be the ground upon which the majority of the Court of Appeal set aside the jury's verdict as to liability, and with all respect, I do not think that it can be supported and I would accordingly restore the verdict of the jury in this regard.

Mr. Justice Woods also concluded that the learned trial judge had so misdirected the jury on the question of damages as to make a new trial necessary on this issue. This conclusion must, of course, be considered in light of the provisions of R. 39 of the Saskatchewan Court of Appeal Rules which read, in part, as follows:

When considering the jury's assessment of damages in isolation from the question of liability, it seems to me that this Rule must mean that even if there was misdirection on the part of the trial judge, the Court of Appeal could not grant a new trial unless it were satisfied that the damage award was so high or so low as to constitute a substantial wrong or miscarriage of justice.

There can, I think, be no doubt that the injuries sustained by Ian McKay were of such a massive and crippling character as to justify a very substantial award of damages. There does not appear to be any hope of his recovery and the only evidence of any possible improvement is highly speculative. The task of the jury was to endeavour to express the effect of his almost total physical disability in COUR SUPRtME DU CANADA terms of financial recompense. Involving as it did so many imponderables, this was not an easy problem for the jury who had to make the assessment or for the judge who had to direct them as to the principles by which they should be guided.

No.

In an attempt to provide some yardstick by which to Ritchie J. judge the loss, evidence was adduced from a member of the staff of the head office of an insurance company who testified by reference to certain statistical tables that the average life expectancy of a youth of McKay's age would be 53 years, and a doctor who was familiar with his case stated that although some insurance companies were now insuring paraplegics, he did not feel that a normal life expectancy, even of a paraplegic, could be expected in Ian's case.

Young McKay had apparently had some ambitions to become an architect and it was suggested that a figure of $500 per month would be a moderate one to represent his potential future earnings if he had not been injured; his father also gave evidence that without the constant care which he is now getting at his home, it would cost at least $150 to retain someone to look after him.

In the course of his reasons for judgment, Mr. Justice Woods singled out the following quotation from the learned trial judge's charge as constituting "misdirection on a vital factor":

The damages which you calculate and which you award, gentlemen, as both Counsel have said, cannot be perfect. You heard evidence to the effect that to provide $500 a month for fifty-three years, requires $133,000. That is based upon 40o. But, of course, we have no way of knowing, you have no way of knowing, how long this chap will live, or how long he would have lived if he had not had the injury.

Mr. Justice Woods, in commenting on this statement said: The charge, when referring to this 53 years, if it does not in fact do so, comes close to stating that such is the expectation of life of this infant plaintiff, properly to be considered by the jury in its calculation of damages. Considering all that was said on this factor, I cannot but come to the conclusion, that the charge was much too favourable to the infant plaintiff. It failed to adequately place before the jury, the probable life expectancy of the infant plaintiff as the basis of its calculation for this portion of damages suffered. I am of the opinion that this constitutes misdirection on a vital factor.

With the greatest respect, it appears to me that the learned judges who formed the majority of the Court of Appeal overlooked the fact that almost immediately after the excerpt quoted above from the trial judge's charge, McKAY he went on to say:

I did not consider that Mr. Clark (the insurance man) said that fiftythree years was the life expectancy of an annuitant. It was the life expectancy on the average, established by various insurance companies as far No.29 ago as 1938, 1939. It was before the war in any event. You cannot, gentlemen, in calculating this thing, just add up what he might have earned, Ritchie J. what he needs to maintain himself-add it all up and say that is what he is entitled to. This is perfect damages. The law says that you cannot make perfect damages. You cannot determine all the-you cannot add up all the income he might have made as an architect because you do not know whether he would have become an architect, whether he would have got through University, whether he would have gone back to his father's farm; ... Notwithstanding this language, Mr. Justice Woods also found that the jury had been instructed "that earnings and cost of future care are to be cumulative, in the calculation of damages" and he based this on a passage earlier in the judge's charge where he had said of "the financial loss experienced by this plaintiff"-"I refer not only to prospective earnings for the balance of his life but to the financial loss resulting from constant care for the rest of his life . . ." With the'greatest respect, I think that if there was any misdirection in this statement it was fully corrected and that there was no misdirection in this regard. Mr. Justice Woods also criticized the charge of the learned trial judge on the ground that he had not warned the jury against letting sympathy affect their calculation of damages and in failing to state that the award "should not be punitive, exemplary, nor extravagant and oppressive". In so doing, Mr. Justice Woods discounted the fact that at the beginning of his charge the learned trial judge had said:

[19681 I cannot find that there was any misdirection in this regard.

v- Mr. Justice Woods further criticized the learned trial judge for failing to instruct the jury that some discount should be made for the present payment of that portion of the damages designed to cover McKay's future requirements. It may be that some direct reference should have been made to this element, but I do not think that it can be said that the absence of such a direction constituted substantial wrong or miscarriage of justice.

In conclusion, Mr. Justice Woods said:

With the greatest respect, it appears to me that in this passage Mr. Justice Woods entered upon the dangerous field of attempting to delve into the minds of the jury and to interpret their verdict in terms of his own mental processes.

In relation to the last-quoted excerpt from the judgment of the Court of Appeal, it should be pointed out that in my view full instruction was given to the jury in relation to "the contingencies of life". The learned trial judge read to the jury a paragraph from the judgment of Sellers L.J. in Warren and Another v. King and Others , in which he said, in part:

With the greatest respect, I am unable to agree with the Court of Appeal that there was any such misdirection in the charge of the learned trial judge as to warrant the granting of a new trial.