Chilliwack School District Loses Grass Hockey Incident Appeal

 

Hey, teacher leave them kids alone.

B.C’s teachers will be scratching their heads after the release of the  B.C. Court of Appeal decision this week  in  Hussack v. Chilliwack School District No. 33 The court’s decision, for the most part, confirmed the 2009 decision of the B.C. Supreme Court in which a  Chilliwack student received an award of  $1,365,000 .  The facts of the case are both tragic and  somewhat unusual. In 1998 Devon Hussack was a 13 year old grade 7 student at Vedder Middle School. Devon is the son of what can best be described as an obsessive father.  The court indicates that Mr. Hussack was the source of complaints from teachers and parents throughout Devon’s education. Mr. Hussack would go for lunch daily with Devon, attend at school functions and take pictures of Devon, and would attend at school and disrupt the class. Devon’s teachers over the years characterized his relationship with his father as “unhealthy”.  Devon also suffered from very poor attendance record- he missed 56 of the first 65 days of grade 9.

While in grade 7, Devon had a 38% absenteeism rate. In April of 1998 Devon’s principal and P.E. teacher, Mr. McPhee met with Devon in an effort to convince him to attend P.E. class.  Mr. McPhee, knowing that Devon had played ice hockey, roller hockey and floor hockey, told Devon that the class was now playing field hockey. Although Devon had missed the initial classes on field hockey, Mr. McPhee felt that his experience with the other forms of hockey would easily allow Devon to pick up the game. The basic safety rules prohibiting the raising of the stick above your knees and to not check from behind, were repeatedly explained to the students. Unfortunately, during scrimmage, as Devon approached an opposing female player from behind, the student raised her stick to shoot and Devon, trailing closely, was hit just above the bridge of the nose with the stick. Mr. McPhee immediately came to Devon’s assistance and treated his wounds with ice. Mr. Hussack arrived at the school and elected to take Devon to the hospital. Devon was diagnosed with a mild concussion, lacerations, and extensive bruising with swelling over the bridge of the nose, forehead and both eyes.

Devon did not recover as expected, in fact he developed what is known as a somatoform disorder, a psychological condition where the patient’s physical symptoms seem to have no biological basis. Devon’s disorder was severely disabling for him. In the years after the incident Devon  continued to receive medical care, this care, however, was complicated by his father’s interference. Devon did not recover from his condition, and its effects left him virtually unemployable.  To make matters worse Devon’s mother passed away. At the time of the B.C. Supreme Court trial “… Devon spent most of his time in his room either watching television or on his computer.  His father makes his meals for him.  He has no set schedule for sleeping or waking.  He has difficulty getting around.  His father looks after most of his needs.  As Devon told the trial judge, ‘my life is a living hell'”.

Madam Justice Boyd had to deal with numerous issues at the trial. The finding that Mr. McPhee breached the standard of care for a teacher, was upheld by the Court of Appeal, and it is this finding that will have teachers scratching their heads. Negligence equates to carelessness.  A finding of negligence is not automatically given when an incident occurs. In its analysis of any situation the court must determine whether the person causing the injury breached the standard of care or, in other words, it must decide whether the person acted unreasonably in the circumstances.  At trial the court reviewed the law regarding the standard of care to which teachers are held.

Four major criteria are considered as part of the test, namely (a) whether the activity was suitable to the age and mental and physical condition of the student; (b) whether the student was progressively trained and coached to do the activity properly and to avoid the danger; (c) whether the equipment was adequate and suitably arranged; and (d) whether the performance, having regard to its inherently dangerous nature, was properly supervised.

Despite Mr. McPhee’s rules regarding stick raising and checking from behind, the court found that he had breached (b) by allowing Devon to play even though he had missed the previous field hockey lessons.  As often happens both sides called expert witnesses at trial to support their case, and, as inevitably happens their testimony conflicted. An expert field hockey witness for Devon testified that the warning for the students not to check from behind was insufficient and that learning to not check from behind must be “progressively” taught to the students.  An expert field hockey witness for the school board disagreed and stated that not checking from behind was not something that one could “teach” but was rather a rule to be obeyed. Madam Justice Boyd agreed with Devon’s expert and because Devon had missed the initial lessons and had not been “progressively taught” found that Mr. McPhee  had breached the standard of care and was negligent.

Quite frankly, I don’t agree with that decision.  The law does not demand perfection, what it does demand is that we act reasonably. I think it is unlikely that  had Devon’s attended the initial classes this incident would have been prevented.  Surely it must be expected that in any sport involving sticks there will be incidental contact between the players and the sticks.  Middle school field hockey inevitably involves bumps and bruises from stick incidents.  To say that “progressive teaching” will eliminate this, is in my opinion, unrealistic. If that were the case why then did the other student raise her stick above knee height?  I assume that she attended the initial classes, was progressively taught and that she heard the repeated warnings not to raise her stick above her knees. Yet she did.  If we also look at professional or Olympic class field hockey, I’m certain we will find similar “high sticking” incidents.  As much as I sympathize with Devon, and I do, I feel that the court in this decision put much too high an onus on Mr. McPhee and his fellow teachers.   We cannot protect our children or ourselves from all injuries. It is inevitable that if children play sports, there will be injuries and often those injuries will be blameless ones.