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Child Injured at Surrey School – Wins Lawsuit

Is a student responsible for his own injuries if he is doing something ‘against the rules’ at school?

In the recent case of a child injured at a Surrey School, the Court says: the school could have easily predicted the rule-breaking behaviour, therefore the school district must pay compensation.

Child Injured at Surrey School wins lawsuit when Court finds the Surrey School District 75% liable for child’s fall off school roof.

In Paquette v. Surrey School District No. 36, the Plaintiff, Owen Paquette, was a grade 7 student at Peace Arch Elementary at the time of the accident.  Although the boys were aware they were not allowed on the roof, the Plaintiff and a friend climbed a cherry tree in the playground to reach the roof after school. Once on the roof, the students were spotted by the vice-principal who yelled at them to get down. The Plaintiff, fearing getting in trouble, fall 20 feet onto a concrete stairwell and suffered significant injuries while trying to exit the roof. The trial concerned the liability of the School for this accident.  Although the School claimed that they had no way of predicting that the cherry tree would be used by the children for this purpose, the court found that the School was well aware that children could get up to the roof, and that they had ultimately failed to regularly monitor whether the cherry tree was an access point. Although the Plaintiff accepted some responsibility for climbing the roof owing to the fact he knew it was forbidden, the Court found he was only 25% liable for his misfortune commenting that tree-climbing is a normal part of childhood, and adding that, “Owen was a 12 year old boy. Children act impulsively, with little forethought about the consequences of their actions and with limited insight. Put more simply, reasonable people foresee that children can and often do stupid things that are dangerous even when they know they shouldn’t.”

If you or your child have been injured and you are not sure if it’s partly somebody else’s fault, please call the experienced personal injury lawyers at MacLean Law.  We will be happy to answer your questions for FREE during your intial consultation.

We have four conveniently located ICBC and personal injury claims offices in Vancouver, Surrey, Kelowna and Fort St John.  You can reach us in Vancouver at 604-602-9000, or from anywhere in North America by calling toll free 1-877-602-9900.  You may also contact us online by completing our simple online form.

Madame Justice Sharma apportioned 75% liability to the school.  The key excerpts from her decision are provided here:

 [33]        First, the defendant says there was no way for it to anticipate that Owen would use the cherry tree to access the roof because there was no evidence that the cherry tree had actually been used for that purpose in the past. Rather, there was only evidence that it was rumoured that the tree had been used in that way. Second, in its written submission, the defendant says that “it satisfied its standard of care by regular monitoring the conditions at Peace Arch Elementary” and taking reasonable steps to remove ALL access points of which they were aware keep students and others reasonably safe. As such, the defendant says it could not have reasonably foreseen Owen’s injuries and is therefore not liable.

[34]        I am not persuaded by the defendant’s submissions on this point. I note first that the defendant’s written submissions overstate the evidence somewhat in suggesting monitoring was regular and that all access points of which it was aware were removed.

[35]        First, most of the time the defendant knew people had been on the school roof, the defendant did not know how they got there. The lack of evidence about people having previously used the cherry tree to access the roof is, therefore, unsurprising. On one occasion the defendant did know that someone climbed a tree close to the school to access the roof. As Mr. Hurd rightfully conceded, a tree close to the school will tempt kids to climb it and get onto the roof. I conclude it was foreseeable that trees close to the school might be used to access the roof. It is simple common sense that if a child can get onto a roof, it is reasonably foreseeable that the child might fall off that roof and get badly injured.

[36]        Second, there was no evidence of “regular monitoring” of potential access points to the school roof. If there was at any time either a schedule of routine inspection or an assessment of trees proximate to the school that could potentially provide access to the roof, I would have expected that to be put into evidence as it would have clearly been material to this case.

[37]        Instead, the evidence demonstrates that if the defendant took any action in response to knowing youth had been on the roof, it was only reactive and ad hoc. This was despite the fact that there were numerous possible access points to the roof, as depicted in Mr. Delavalle’s photographs.

[38]        Mr. Hurd’s evidence establishes that this school had a problem with youth getting onto its roof. The numerous incidents he recalls confirm that this problem was known to the principal, teachers, maintenance workers, students and their families and others. Despite this, there is no evidence that the defendant required anyone to turn their mind to whether any trees were growing too close to the school roof and providing the access that allowed for this problem to persist.

[39]        In making these findings, I am mindful that the defendant is not expected to be perfect and that it would be impossible to completely prevent anyone getting on the school roof other than in an authorized fashion. However, taking into account all the circumstances of this case, it was unreasonable that the defendant allowed the cherry tree to grow so close to the school’s roof.

[40]        The defendant also argues it should not be held liable because most, if not all, other instances of people being on the roof occurred on the weekend and probably involved teenagers. The problem with that submission is the issue in this case is not about when the roof was accessed. Rather, the issue is whether the defendant’s actions in relation to possible roof access points were reasonable. The school is a permanent structure and its grounds are open to the public. When the roof was accessed is immaterial to the determination of whether the defendant acted reasonably in allowing the cherry tree to grow so close to the roof.

……..

[43]        I am not suggesting that the inherent nature of childhood means an occupier is liable for anything that a child might do. As always, each case must be assessed in context, reviewing all the circumstances.

[44]        Given the circumstances at this particular school, a reasonable person would foresee that the cherry tree (or any other tree in similar proximity to the school roof) might be used by kids to climb onto the roof. As such, the defendant is liable for not taking reasonable actions to prevent children accessing the school roof via the cherry tree.



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