Defence & Indemnity - February 2016: III. Quantum/Damage Issues: Every day and reasonably safe playground activities will not expose a Defendant school district to occupier’s liability.

by Field Law

Thompson (Litigation guardian of) v. Saanich (District), 2015 BCSC 1750, per Baird J. 


The Plaintiff was an 11 year old girl enrolled at a day camp offered by the Defendant, the Corporation of the District of Saanich (the “District”) at the Gordon Head Middle School in Victoria, B.C. During morning recess, the Plaintiff was in the playground playing a game called Grounders (a variation of tag played on playground equipment) with a number of children. While playing the game, the Plaintiff fell from a piece of playground equipment and struck her head.

The game was improvised and the children decided to play it; it was not organized by the District’s employees. Thompson and the other children had played Grounders the previous day and on other previous occasions without incident. At the time of the incident, the program assistant supervising the playground knew the children were playing Grounders and did not intervene to stop them. Indeed, the assistant’s evidence was that he had played the game as a child and considered it harmless. 

Thompson sued the District in negligence under the Occupiers Liability Act, RSBC 1996, c 337 (the “OLA”)

II. HELD: Action dismissed, District was entitled to costs if demanded; no fault on the District for this unfortunate accident. 

1. The Plaintiff failed to establish that the District exposed the Plaintiff to an unreasonable risk of foreseeable harm.

(a) The District owed the Plaintiff a duty of care not to expose her to an unreasonable risk of foreseeable harm. The standard of care under the OLA is the same as common law, which is to be measured on an objective standard. 

(b) The game, Grounders, fell within an everyday and reasonably safe range of playground activities for someone with the Plaintiff’s age and experience. 

(c) The Court took judicial notice of the fact that, in the overwhelming majority of cases, no mischief comes from such innocent pleasures as games involving pursuit and evasion commonly played by children. 

(d) The risk of harm inherent in such games is sufficiently remote that to permit children to play them is not unreasonable.

2. The Plaintiff failed to establish that the District failed to adequately supervise the playground activities in which she was engaged 

(e) 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. 

(i) The duty only required that the District (and its employees) protect the plaintiff from unreasonable risk of harm. 

(f) A supervisor was close at hand, minding the children through recess and was doing so diligently and conscientiously. 

(i) There was no evidence that any of the children behaved recklessly or aggressively or there was anything hazardous about their manner of interaction. 

(ii) The Plaintiff simply moved backwards and lost her footing. 

(g) While the District is vicariously liable for the negligent conduct of its employees, it is not strictly liable for any and all injuries sustained by children in its temporary care or control. 

(i) The Court stated that “…the consequences of the plaintiff’s misadventure cannot transform the District into a no-fault insurer…” (at para 22). 

(h) Perfection is not the standard of care to be discharged by the District’s employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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