RUNNING HEAD: THE LAW ASSIGNMENT

The Law Assignment: Negligence

Jimmy Bejarano, Katie Frankcomb, Ken Laing, Gordon Phillips, and Elizabeth Rowe

EDUC 525 - Ethics and the Law

The University of Calgary

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Introduction

In this report, we examined the facts relating to the car accident that occurred on

Tuesday, June 9, 2001, just outside the town of Okotoks. In this accident, Amanda Ballard was

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

Ballard’s passenger, Prim Irwin, was thrown from the car and suffered catastrophic injuries as a

result. We have looked at the negligence of two parties: the high school teacher, Lindsay

Waterman, and the high school student who was the driver of the vehicle, Amanda Ballard. It

should be noted that the Okotoks School District also assumes vicarious liability for Lindsay

Waterman’s negligence as she is insured as a practicing teacher (Province of Alberta, 2018). We

have also looked at potential defences to negligence, including the voluntary assumption of risk,

illegality and contributory negligence.

Factors in Negligence

Lindsay Waterman

Duty of Care

Lindsay Waterman is a teacher at Trudeau High School in Okotoks and was the

supervising teacher for both Ballard and Irwin. As such, under section 18 of the School Act she

owes students a duty of care (Province of Alberta, 2018)​.​ This dictates that Waterman is

expected to stand in place of the parents as guardian during the school day and assume

responsibility for the students as a caring parent would (Donlevy, Chomos & Walker, 2008). We

argue that although Waterman dismissed the students early, at 3:00 instead of at 3:30, she was

still acting as guardian and therefore responsible for the students’ well being.
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Standard of Care

As mentioned above, Waterman was standing in ​loco parentis f​ or all students, which

applies while at school and on off-school excursions​ ​(Crook & Truscott, 2007, p.74). In this case,

Waterman did not do what a reasonable and prudent parent would have done, which is to check

the details of the excursion. Waterman’s incorrect assumption that the activity was within town

boundaries directly led to allowing students to travel together outside of town limits. The school

policy states, “no secondary student, irrespective of age, may drive a private vehicle transporting

other students to school-sponsored activities during school hours...except to use local facilities

within the town or village boundaries for activities that are an integral part of instruction.”

Waterman believed that she was following school policy but failed her standard of care by not

confirming with administration that this was accurate. As Keeler states “negligence exists where

the activity or conduct on the part of the teacher creates an unreasonable chance of danger”

(2009, p.26).

Foreseeability

It was reasonably foreseeable that an accident could occur because Waterman failed to confirm

that the excursion was within city limits. Due to this failure to verify the location of the golf

course, it’s foreseeable that an accident could occur given the following factors: the driver was

young and inexperienced and was driving at high rates of speed on country roads.

Causality

Waterman permitted students to drive a private motor vehicle transporting other students

to school-sponsored activities outside of town boundaries. But for the decision to not clarify the

location of the excursion, the accident likely would not have occurred. The speed limits in the
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town are much lower than outside of it and rollovers are much more likely at higher speeds and

on country roads as mentioned by Consumer Reports (2014).

Amanda Ballard

Duty of Care

As the licensed and registered driver of the motor vehicle, Ballard owed a duty of care to

Irwin as the passenger. She also owes a duty of care to the other drivers on the road.

Standard of Care

Ballard failed to maintain the seatbelt in her motor vehicle and allowed a passenger to sit

in that seat. Her standard of care must be to the level laid out in the Traffic Safety Act of Alberta:

“Any equipment or safety system installed in a vehicle by the manufacturer of the vehicle must

be maintained in good working order and in accordance with the manufacturer’s specifications.”

(2009, p. 82).

Foreseeability

It was reasonably foreseeable that driving recklessly could result in injuries. Also,

additional injuries are foreseeable by allowing a passenger to ride in a seat without an

operational seatbelt. It is not necessary that the specific catastrophic injuries suffered by Irwin

were foreseeable, merely that severe injuries were.

Causality

Ballard was driving unsafely as evidenced by her charge of Driving Carelessly under

section 115(2)(b) of the Traffic Safety Act of Alberta. But for this action, the accident, and the

resulting injuries would not have occurred.

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Damages

The plaintiff sustained catastrophic injuries in the accident and was left a quadriplegic.

Pecuniary damages should be awarded as she will require extensive and expensive ongoing

medical care. Future earning potential will also likely be affected as her condition will limit

employment opportunities. Damages for pain and suffering is limited to $300,000 in Canada

(Powerpoint #6, September 27 2018, Slide 31) and, given the extent of her injuries, Irwin could

be awarded the full amount. No punitive damages would apply as the defendant's actions were

not malicious. (Powerpoint #6, September 27 2018, Slide 33)

Defences of Negligence

Voluntary Assumption of Risk

The defence of, ‘volenti non fit injuria’ (Powerpoint #6, September 27 2018, Slide 18)

could not be argued as while the parents of both Ballard and Irwin did sign a consent form prior

to the accident which said that they could, “attend off-site activities associated with curriculum

activities and that the school and its teachers would not be held liable for accidents where their

children were injured”, they can not sign away the rights of their children and therefore, it would

not take away the right of the students to sue.

Illegality

The illegality defence, ‘ex turpi causa non oritur actio” (from a dishonorable cause an

action does not arise) (PP Sept 27, Slide 17), could be raised here because Irwin was not wearing

a seatbelt at the time of the accident. According to section 82(2)(b) of the Alberta Traffic Safety

Act (2009), if the passenger seat has a seat belt assembly it must be worn. Therefore, the injured
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party was involved in an illegal action at the time of the accident. Although it is a weak argument

because the illegal action was relatively minor, this could be used to limit the liability of the

defendant.

Partial Defence: Contributory Negligence

Irwin did not have a seatbelt on at the time of the rollover according to the accident

reconstruction expert. But for this action, Irwin likely would not have been thrown from the car

and would not have suffered the catastrophic injuries. Irwin admitted that she was privy to a

conversation earlier in the year where the seatbelt was mentioned as malfunctioning and both

parties consented to accept the risk in riding in the passenger seat of the car despite this

knowledge. She could have elected to sit in any of the back seats where the seatbelts were

functioning. Ballard also admitted that on the day of the accident, the seatbelt was extended and

locked such that, “the chest and stomach belt was loose,” further adding to the argument that

both parties assume contributory negligence. In past reviewed Canadian cases, “a reduction of

25% of the claim is appropriate where all of the person’s injuries could have been avoided by

wearing a seat belt” (Harrison, 2017). Because Irwin would have likely still sustained some

injuries from the accident, her not wearing a seatbelt would still contribute up to 20% of the

negligence.

Conclusion

In conclusion, we find that both Ballard and Waterman satisfy all five elements of

negligence and therefore both can be held equally responsible. Waterman failed to act ​in loco

parentis​ by not confirming the location of the excursion, thereby not taking the proper care that a
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reasonable and prudent parent would. Because of this failure, an inexperienced driver was

allowed to travel at high speeds on a country road. Ballard’s failure to maintain working safety

restraints in her vehicle, as well as her reckless driving, led to catastrophic injuries to her

vehicle’s passenger. By not wearing a seatbelt, Irwin contributed to her own injuries by failing to

take reasonable precautions to protect herself as a passenger in a motor vehicle. Therefore, we

would assign responsibility for damages at Waterman - 40%, Ballard - 40%, and Irwin - 20% in

this case.
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References

Consumer Reports. (2014, April). Car rollover 101: Retrieved from

https://www.consumerreports.org/cro/2012/02/rollover-101/index.htm

Crook K. & Truscott D. (2007). Ethics and law for teachers. Toronto, ON: Nelson Education

Limited

Donlevy J., Chomos J. & Walker K. (2008). Guide to Alberta school law: Retrieved from

https://www.rcmvlaw.com/news/in-loco-parentis-step-parents-unwed-parents-non-biologi

cal-parents-and-child-support/

Donlevy, J. EDUC 525, September 27, 2018, PPT #6, Slides # 17, 18, 31, 33.

Harrison, C. (2017, March 17). Contributory negligence: Failing to wear a seat belt:Retrieved

from ​http://www.tslawyers.ca/contributory-negligence-no-seat-belt/

Province of Alberta. (2009). Traffic safety act: Retrieved from

http://www.qp.alberta.ca/documents/Regs/2009_122.pdf

Province of Alberta. (2018, September 1). Alberta school act: Retrieved from

http://www.qp.alberta.ca/documents/acts/s03.pdf