Running Head: LEARNING TASK #1: Option 1: Student Drivers 1

EDUC 525 L01

Learning Task 1

Option 1: Student Drivers

Melanie Belisle, Natalie Borchert, Teresa Cowan and Scott Lyons

University of Calgary

Increase in word count approved by James Donlevy

Running Head: LEARNING TASK #1: Option 1: Student Drivers 2

Review of Facts:

At 3:05 p.m. on Tuesday, June 9, 2017, Sylvia Ballard, a 16 year old student at Peter

Lougheed School, was driving her 2017 Mitsubishi Outlander with fellow student, Prim Jasmin,

in the passenger seat. They were travelling from an off-site physical education class held at the

Countryside Resort Golf Course, located outside of the town of Okatoks, in direction of their

school. Lindsay Waterman, the girls’ physical education teacher, had arranged the field trip.

As Ballard was driving, her vehicle crested a hill on Highway 30 and encountered a

stationary truck stopped at an uncontrolled intersection. Ballard avoided the truck by swerving

into the oncoming lane but, when changing back into her original lane, she lost control of her

vehicle, which rolled several times. Jasmin was not wearing her seatbelt and was ejected from

the vehicle, sustaining serious physical injuries.

Because the scenario involves multiple parties, the following negligence test will be used

to establish which parties are liable.

The Negligence Test

When applying the criteria of the Negligence Test (Thomson Reuters, 2013) to establish

whether a party is liable, all five elements of the test must be satisfied. If any of the elements are

not met, the defendant cannot be deemed liable of negligence.

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The five elements are as follows:

Duty of Care. Due to an established relationship between the defendant and the plaintiff,

the defendant is obliged to act as a reasonable person would under that particular set of

circumstances. (Thomson Reuters, 2013)

Breach of Duty. The defendant’s actions do not meet the standard of a what a

“reasonable person would do” (Thomson Reuters, 2013). Where the first element of Duty is

representative of an “on/off” switch, this second element can be visualized a gauge where a

certain standard must be met.

Cause in Fact. The plaintiff must prove that the defendant’s actions caused the plaintiff’s

injuries. In other words, but for the defendant’s actions, the plaintiff’s injuries would not have

occurred (Thomson Reuters, 2013). Even when “the defendant’s actions were a necessary but not

sufficient cause of the loss, [if the] ‘but for’ test has been satisfied, the court’s enquiry on the

issue of causation is complete” (Moore & Matrundola, 2007).

Proximate Cause. A reasonable person could have foreseen the damages as a realistic

consequence to their actions (Thomson Reuters, 2013).

Damages. The plaintiff must prove they sustained legally recognizable harm, “usually in

the form of physical injury to a person or property” (Thomson Reuters, 2013).

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Based on the information provided in Donlevy’s Assignment #1 Option #1 (2017), each

party involved in the incident will be subjected to the above test.

Assessment of liability

Sylvia Ballard - 16 year old driver

Duty. As the driver, Sylvia Ballard owed a duty of care to her passenger, Jasmin, to drive

responsibly. Per L'Heureux‑Dubé, Gonthier and Cory JJ:

A driver of a motor vehicle owes a duty of care to his passengers to take

reasonable steps to prevent foreseeable injuries, and that duty of care extends to

ensuring that passengers under 16 years of age wear their seat belts (Galaske v.

O’Donnell, 1994).

However, because Jasmin was 17 years old at the time of the accident, Ballard was not

obligated to ensure Jasmin wore her seatbelt.

Breach of Duty. “Ballard had been charged with, and pleaded guilty to, Driving Carelessly

under section 115(2)(b) of the Traffic Safety Act of Alberta” (Donlevy, 2017). This is sufficient

evidence that, through the manner of her driving, Ballard breached her duty of care to her

passenger, Jasmin.
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Cause in Fact. It is noted that “when Ballard ‘attempted to avoid [a] stationary truck and then

swerve back into her original lane, […] her vehicle rolled over several times throwing [Jasmin]

from the vehicle through its sunroof” (Donlevy, 2017). “Jasmin is a quadriplegic as a result of

this accident” (Donlevy, 2017). Thus, but for Ballard’s careless driving, Jasmin would not have

suffered any damages.

Proximate Cause. It is reasonable that Ballard would have foreseen her careless driving

resulting in harm to herself and Jasmin.

Damages. And, finally, Jasmin’s injuries as a paraplegic are legally recognizable.

Consequently, as all five elements of negligence are satisfied, Sylvia Ballard is liable for

Jasmin’s Injuries.

Sylvia Ballard’s Parents

Vicarious Liability. As a minor, Sylvia Ballard’s parents must also be examined in this case.

“Prima facie, a parent is not liable for a tort committed by his child” (Duhaime, 2014).
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However, in civil litigation, the parents of a child (or minor living with the

parents) can be held vicariously liable for any damages or losses caused by their

children. It can usually be applied in cases where a duty of care is breached […].

The plaintiff has to prove that a parent should have or could reasonably have

known about the actions of their child and did nothing to alter it. (Zeidman,

2017).

As there is no mention of previous instances of careless driving involving Ballard in the

case study, it is not reasonable to anticipate that Ballard’s parents “could have [reasonably]

known” that Ballard would have driven carelessly the day of the incident. The parents cannot be

held vicariously liable for the damages Jasmin had sustained.

Duty of Care. Because the vehicle involved in the accident was registered under Ballard’s name,

the parents were not responsible to ensure that it had working seatbelts. Moreover, there is no

clear relationship between Ballard’s parents and Jasmin. Consequently, the first element of

negligence is not satisfied.

Ballard’s parents cannot be held liable.

Mitsubishi
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As the manufacturer of the vehicle with a defective seat belt, Mitsubishi must also be

considered. “The front seat passenger seatbelt was inoperative at the time of the accident”

(Donlevy, 2017).

Cause in Fact. Jasmin said “that on the day of the accident the seatbelt appeared to be

functioning” (Donlevy, 2017). However, “the accident reconstruction expert [could] not find

evidence that the seatbelt was used” (Donlevy, 2017). Thus, Jasmine was not wearing her

seatbelt despite the fact she thought it was operational. The fact that the seatbelt was inoperative

had no effect on her decision. Therefore, the element of Cause in Fact is not satisfied.

Mitsubishi cannot be held liable.

Lindsay Waterman - Teacher

Lindsay Waterman was the girls’ physical education instructor.

Duty of Care. Under common law, “teachers must act as would a prudent parent in protecting

students from harm which is reasonably foreseeable” (Donlevy et al., 2008). Waterman thus

owed a duty of care to all her students.

Breach of Duty. “Peter Lougheed High School Directive # 1” reads:

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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. […] Physical

education instructor [sic] will provide transportation for any students who are not

able to get to the facility. (Donlevy, 2017).

As the activity was not within town boundaries, Waterman breached her duty of care by

allowing Jasmin to ride in Ballard’s car. Waterman should have, instead, driven Jasmin back to

the school herself or organized another mode of transportation.

Cause in Fact. “The classic cause in fact test is the ‘but for’ test” (Moore & Matrundola, 2007),

which follows the following sentence structure. Applied to the present case, “But for”

Waterman’s decision to allow Jasmin to ride in the Ballard’s car, Jasmin would not have

sustained devastating injuries.

Proximate Cause. It is reasonable that Waterman would have foreseen a car accident as a

potential risk of operating a vehicle.

Damages. Once again, Jasmin’s injuries as a paraplegic are legally recognizable.

Ultimately, as all five elements of negligence are satisfied, Lindsay Waterman is liable

for Jasmin’s Injuries.

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Peter Lougheed High School and the School Board

Duty of care.

EDG v. Hammer (2003) states “A school board enjoys a position of overriding power and

influence over its students. It is a power dependent relationship, one characterized by unilateral

discretion.” Thus, the school board owed an unequivocal duty of care to its students.

Breach of Duty.

Although the board’s policy does not allow student drivers to transport other students to

school-sponsored activities, it does allow students to drive alone. Allowing students to drive to

school sponsored activities instead of organizing professional transportation “creates a particular

risk to the safety of students which otherwise would not exist” (Donlevy et al., 2016, p. 200).

In this case, “the school board created a policy for its own administrative benefit to save

funds when no public transportation was available” (Donlevy et al., 2016, p. 200). This resulted

in the breach of the board’s fiduciary duty to Jamin.

The three other elements required for negligence (Cause in Fact, Proximate Cause, and

Damages) in this case are identical to those cited for Waterman.

Vicarious Liability. Because the activity mandated by the school, and the school’s employee

(Waterman) was acting on behalf of the school, Waterman’s negligence results in vicarious

liability on the School Board’s behalf (Donlevy, 2017).

Prim Jasmin - 17 year old student

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Contributory Negligence. When a “plaintiff fail[s], to a degree, to take proper steps for his own

safety”, the plaintiff should be held responsible due to contributory negligence (Bain, 1993).

Lord Denning (1975), citing importance of wearing seatbelts, has said: “Everyone is free

to wear [a seatbelt] or not, as he pleases. [...] If he does [not], it is his own fault; and he has only

himself to thank for the consequences” (Galaske, 1994).

The courts in this country have consistently deducted from 5 to 25 percent from

claims for damages for personal injury on the grounds that the victims were

contributorily negligent for not wearing their seat belts. This has been done

whenever it has been demonstrated that the injuries would have been reduced if

the belts had in fact been worn. (Galaske v. O’Donnell, 1994).

In this case, there is the voluntary assumption of risk. “The defence of volenti is available

[...] if it can be established that the plaintiff, with knowledge of the risk, freely accepted it”

(Bain, 1993).

Therefore, Jasmin is also liable for her own injuries.

Conclusion

Through the examination of all potentially liable parties in this case, four parties are

found responsible: Ballard, Waterman, the School Board and Jasmin.

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When by fault of 2 or more persons damage or loss is caused to one or more of

them, the liability to make good the damage or loss is in proportion to the degree

in which each person was at fault. (CANLII, 2002).

Thus, it would be reasonable that Ballard, Waterman and the School Board share the

liability for the damages that would have occurred had Jasmin been wearing her seatbelt. Jasmin

is then responsible for the additional damages incurred by not wearing her seatbelt.

References

Bain v. Calgary Board of Education. (1993). CanLII 7301, Alberta Court of Queen’s Bench.
Retrieved from
http://www.canlii.org/en/ab/abqb/doc/1993/1993canlii7301/1993canlii7301.html
Blaney & McMurtry Barristers and Solicitors, LLP. Retrieved from:

http://www.blaney.com/sites/default/files/article_law-of-causation.pdf

CANLII. (2002). Contributory negligence act. Chapter C-27. Retrieved from:

https://www.canlii.org/en/ab/laws/stat/rsa-2000-c-c-27/latest/rsa-2000-c-c-27.html
Donlevy, J.K. (2017). “Assignment #1 Option #1”. Ethics in Law and Education.
Donlevy, J. K., Gereluk, D., Brandon, J. et al. (2017). Student drivers and fiduciary duty of
schools. Interchange. 48: 195. https://doi.org/10.1007/s10780-016-9297-3
Donlevy, J. K., Chomos, J. & Walker, K. D. (2008). A guide to Alberta school law. Section 1.4.
Duhaime, L. (2014). Children liability for torts and personal injury.
http://www.duhaime.org/LegalResources/TortPersonalInjury/LawArticle-663/Childrens-
Liability-for-Torts-and-Personal-Injury.aspx
E.D.G. v. Hammer, (2003) 2 SCR 459, 2003 SCC 52 (CanLII), retrieved from:
http://canlii.ca/t/50dh
Galaske v. O'Donnell, (1994) 1 S.C.R. 670. Supreme Court of Canada (1994). Retrieved from:
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1122/index.do
Moore, R. & Matrundola, B. (2007). The Supreme Court of Canada and the law of causation.
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Retrieved from:
https://www.blaney.com/files/SupremeCourtofCanadaandLawofCausationRevisitedAgai
n_KNash_SMoore_RWinsor.pdf
Thomson Reuters. (2013). Elements of a Negligence Case. Retrieved from:
http://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html
Zeidman, A. (2017). Parental responsibility. Retrieved from:
https://www.zeidmanlaw.com/blogpost/parental-responsibility