IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150930

Docket: 15-0412

Registry:
Victoria

Between:

Rebecca Thompson,
an infant by her litigation guardian, Sonia Galbraith

Plaintiff

And

The Corporation of
the District of Saanich

Defendant

Before:
The Honourable Mr. Justice Baird

Reasons for Judgment

Introduction

[1]            
This action arises from an unfortunate incident at Gordon Head Middle
School in Victoria, B.C. on July 7, 2009. The plaintiff, Rebecca Thompson, then
aged 11, was enrolled in a painting, drawing and drama day-camp offered by the
defendant, the Corporation of the District of Saanich (the “District”), for
children ranging in age from 8 to 12 years. During a morning recess, while she
was outside playing a game called grounders with a number other children, the
plaintiff fell from a piece of playground equipment and struck her head.

[2]            
Liability is the sole issue for me to determine on this summary trial. In
June 2014 Master MacNaughton ordered that the question of damages should be
tried separately. The parties consented to have the matter dealt with by summary
trial. I have been able to find the facts necessary to decide the issues of
fact and law involved, and I agree with counsel that summary adjudication is
otherwise just, fair and proportionate. The plaintiff has sued in negligence
and under the Occupiers Liability Act, RSBC 1996, c. 337 (“the OLA”).
The District denies liability and seeks dismissal of the action.

[3]            
There were approximately 16 children enrolled in the day-camp. The
structured activities — the
artwork and dramatics — were held indoors, but there were breaks in the
daily schedule during which the children enjoyed free play outdoors. The evidence
establishes that the plaintiff had played grounders the previous day, and had
played it on many previous occasions at her school, always without incident. The
game was improvised. The children themselves decided to play it. It was not
organized by the District’s employees.

[4]            
The program assistant who was supervising the playground at the material
time knew that the plaintiff and her young peers were playing grounders and did
not stop them. Indeed, the evidence suggests that he may well have participated
in the game for a time. He deposed in evidence that he had played and enjoyed the
game himself as a child and considered it to be perfectly harmless. He described
the rules as follows:

Grounders is a version of tag in
which one child is “it” and the other children climb on to the playground
structure. The child who is “it” attempts to “tag” the children on the
playground structure from the ground. The children on the structure move around
to avoid being tagged. If the child who is “it” decides to climb on to the
playground structure they have to close their eyes. The other children on the
playground structure never close their eyes and this gives them a significant
advantage. If the child who is “it” opens their eyes while on the playground
structure the other children yell “broken dishes, broken dishes.” If a child
that was not “it” climbed off the playground structure the child who was “it”
could yell “grounders” and then the other child who was on the ground would
become “it”.

The Duty and Standard of Care

[5]            
There is no doubt that the District owed the plaintiff a duty not to
expose her to an unreasonable risk of foreseeable harm: LaPlante (Guardian
Of) v. LaPlante, [1995] BCJ 1303 (CA), at para. 14. The relevant standard
of care is that of a careful and prudent parent: Myers v. Peel (County)
Board of Education, [1981] SCJ 61.

[6]            
Section 3 of the OLA reads as follows:

Occupiers’ duty of care

3  (1)
An occupier of premises owes a duty to take that care that in all the
circumstances of the case is reasonable to see that a person…will be reasonably
safe in using the premises.

  
(2) The duty of care referred to in subsection (1) applies in relation to the

(a)
condition of the premises, [or]

(b) activities on the
premises

[7]            
The standard of care under the OLA is the same as for
common law negligence, namely to protect others from an objectively
unreasonable risk of harm: Agar v. Weber 2014 BCCA 297 at para. 30.

[8]            
Our tort system is based on the concept of fault. Accidents are a part
of everyday life. The District is vicariously liable for the negligent conduct
of its employees but is not strictly or absolutely liable for any and all
injuries however sustained by children in its temporary care or control. The
District’s answer to the whole of the case is that its employees did not fall
short of the duty of care imposed on them by law.

The Position of the
Parties

[9]            
The plaintiff argues that grounders is an inherently unsafe activity
which the District’s employees ought not to have permitted to be played, or,
alternatively, that it was unsafe for the District’s employees to have
permitted it to be played on the particular playground equipment at Gordon Head
Middle School from which the plaintiff fell.

[10]        
The District denies liability on the basis that grounders is a suitable
activity for children of the plaintiff’s age and experience, and permitting the
game to be played did not expose the plaintiff to an unreasonable risk of harm.
There was no evidence, furthermore, that the playground equipment was unsafe,
and there was insufficient evidence that permitting grounders to be played on
it was unreasonably risky.

Brief Evidence and
Argument

[11]        
The plaintiff submitted evidence from the vice-principal of the
plaintiff’s school, who deposed that grounders had been banned on his school
property because “it has the potential for physical injury to occur”. He did
not explain what he meant by this, but the plaintiff’s mother set out in a separate
affidavit that the ban had been imposed because a boy had broken his arm
playing the game. She supported the ban because she thought it “really dumb
having someone climbing on a jungle gym with their eyes closed, and having
other children running away from the person while climbing on the equipment.”
The plaintiff’s mother claimed that she was not aware that the District had
failed to impose a similar ban and complained that she had not been notified
that her child would be permitted to play grounders at the day-camp. If she had
been warned of this possibility, she said, she would have forbidden the
plaintiff from playing the game.

[12]        
The District, by contrast, presented evidence that grounders is an
innocent and minimally risky form of childhood playground activity. In this
connection I received not only the testimony of the program assistant whose
description of the game appears above, but depositions from other District
employees with experience in youth education and recreation. According to them,
grounders has been played for years on Saanich playgrounds, including at Gordon
Head Middle School, and with the exception of the incident involving the
plaintiff, no accidents or mishaps have occurred while playing it. The District
presented uncontroverted evidence that in over 11,000 program days of summer
youth activity between 2007 and 2012 there were no documented injuries other
than in the plaintiff’s case and arising from a handful of accidents at a
skateboard park. The District submitted that its record of safety is “near
perfect” and referred to this as powerful proof that their methods and
practices caring for children are safe and sound.

[13]        
Counsel for the District characterised the grounders ban at the
plaintiff’s school as a “knee jerk reaction” to an isolated and reasonably
minor incident, and argued that this sort of disproportionate reaction to
grossly atypical eventualities would lead to a situation in which “the
activities of the young would be unduly circumscribed and only inactivity and
inanition could be planned”: Wright v. Cheshire County Council, [1952]
All ER 789 at p. 796.

[14]        
I was told that the District takes a more robust approach to children’s
play. Its programs encourage physical outdoor activity. Risk-taking is
encouraged within reasonable limits on the basis that children who never hazard
a chance are unlikely to develop properly either physically or emotionally. The
District has adopted the sort of thinking expressed in a document, handed up to
me without objection as “social fact” evidence, entitled “The 2015
ParticipACTION Report Card on Physical For Children and Youth” (http://www.participaction.com/report-card-2015/).
I suspect that most Canadians are aware, in a general way, of ParticipAction’s
mission for a more vigorous national lifestyle. Their “report card” concludes,
amongst other things, that long-term physical health and development should be
valued as much as safety, and that rules and regulations designed to prevent
injuries and reduce tort liability have become excessive and counter-productive
to youth health and fitness. One of their rallying cries is: “Adults should get
out of the way and let children play.”

[15]        
During the progress of this litigation the plaintiff has amended her
pleadings a number of times. I gather that, at an earlier stage, the plaintiff claimed
the playground structure on which she fell was unsafe and did not comply with
“building codes.” This is no longer her position. Counsel conceded on the
present hearing that the playground equipment in question was in reasonably
safe condition and no hazard was caused by the manner of its construction or
maintenance. He argued, however, that it was a “complicated” structure,
consisting of a number of platforms of different heights, and that care had to
be taken in using the equipment. This would seem to me to be undeniable. His
argument, in its final iteration, was not that there was anything wrong with
the equipment itself, but that the activity permitted on the equipment — namely grounders — was not
safe.

[16]        
For ease of understanding, I have appended to this judgment a photograph
of the playground equipment on which the plaintiff was injured. The platform
from which she fell is marked “A” and the one on which she landed is marked
“B”. The evidence establishes that the plaintiff lost her footing on this
playground equipment while attempting to avoid being tagged by the child on the
ground who was “it”. I stress that the rules of the game did not require the
plaintiff to keep her eyes closed while on the playground equipment and in fact
her eyes were open when she fell.

Discussion

[17]        
The District conceded that the game of grounders is not without some
risk and that accidents can occur in the midst of even reasonably innocuous physical
activity. The question is not whether the District’s employees, in permitting
the game to be played, exposed the plaintiff to the possibility of any risk,
however small, but whether they exposed her to unreasonable risk. I have
concluded that they did not.

[18]        
To the contrary, I am satisfied that grounders falls within an everyday and
reasonably safe range of playground activity for someone of the plaintiff’s age
and experience. I note that the plaintiff was not an infant or toddler but a
reasonably mature adolescent who was in the upper range of the age group
accepted into the day-camp in question. She was not a small child, in other words,
who was led to calamity by a larger one, or a person of immature years who
ought not to have been playing on equipment designed for older kids. The
plaintiff had experience playing grounders and knew how to do so safely,
including on the playground equipment in question. It seems clear on the
evidence, furthermore, that she was playing the game voluntarily, happily, and in
a spirit of fun that was shared by her playmates.

[19]        
The evidence submitted on this hearing establishes, and my own
experiences both as a child and a parent confirm, that grounders and games like
it involving pursuit and evasion are commonly played by children, who enjoy them
— as did the plaintiff,
whose evidence on this point was clear —
because they are exciting and fun. I am prepared to take notice of the
fact that, in the overwhelming majority of cases, no mischief comes to anyone
from such innocent pleasures.

[20]        
Specifically, I find that there is nothing inherently dangerous about
grounders such that special training or instruction is required to play it or
to superintend children of the plaintiff’s age and experience who choose to do
so. I must reject the argument advanced by the plaintiff that it was the sort
of activity that required parental consent or approval in advance. There is no
doubt that games like grounders involve a small degree of risk, as do all
children’s outdoor activities involving running, jumping, climbing, tagging,
chasing, dodging, feinting, and so on. But judging the matter by the objective
measure of the reasonably careful and prudent parent, I conclude that the risk of
harm inherent in such games is sufficiently remote that to permit children to
play them is not unreasonable.

[21]        
The evidence satisfies me, furthermore, that the plaintiff and her peers
were adequately supervised during their play time. I repeat that the District’s
duty to the plaintiff did not include the removal of every possible danger that
might arise while she was in the care of its employees, but was only to protect
her from unreasonable risk of harm. A supervisor was close at hand minding the
children throughout the recess. There was nothing to suggest that he was doing
so other than diligently and conscientiously. He was standing on the playground
equipment near to the plaintiff at a vantage that gave him a good view of the
game and the state of play. There was no evidence that any of the children were
behaving recklessly or aggressively or that there was anything unpleasant,
malevolent or hazardous about their manner of interaction. The plaintiff was not
pushed or touched. She said quite simply that she was moving backwards away
from the child who was “it” and lost her footing.

[22]        
I sympathise strongly with the plaintiff and her family. What little I
was told about the consequences of this accident suggested that the plaintiff’s
injuries were not trivial. But I am afraid that the consequences of the
plaintiff’s misadventure cannot transform the District into a no-fault insurer,
and perfection is not the standard of care to be discharged by its employees
when minding school-aged children.

Decision

[23]        
I have come to the conclusion that what occurred in this case was a most
unfortunate accident for which no fault can be attributed to the District. The
plaintiff has failed to establish that the District’s employees exposed her to
an unreasonable risk of foreseeable harm, or failed to adequately supervise the
innocent playground activities in which she was engaged with other blameless
children on the occasion in question.

[24]        
It follows that the action must be dismissed. The District is entitled
to its costs if demanded.

 “Baird J.”