Social value of program upheld after teacher hurt by special needs student

Kendal v. St. Paul’s Roman Catholic Separate School Division No. 20, 2004 CarswellSask 395 (Sask. C.A.)

Joanne Kendal was a special needs teacher at Bishop Pocock Elementary School in Saskatchewan. The school is designated a regional school to permit it to hire more staff to provide specialized education to teachers with learning disabilities.

One of her students was autistic and had a lengthy history of violence and aggression, all of which was detailed and known to the school and the administration. Kendal was struck on the head by the student when she and a teacher’s aid were trying to restrain him. As a result Kendal suffered injuries to her face.

She sued the school alleging it was negligent in carrying out the duty of care it owed her and it had failed to provide her with a safe teaching environment. The trial judge hearing the original case held the school did owe such a duty of care, and the fundamental question was whether the risk of having that student in the school was an unreasonable one. He found the onus was on Kendal to prove an unreasonable risk had been created and she had failed to do so. Kendal appealed.

In dismissing the appeal the Saskatchewan Court of Appeal agreed with the trial judge that the school has a statutory obligation under The Education Act to provide all children, including those with disabilities, with a program of instruction consistent with their educational needs and abilities.

In the appeal Kendal had argued the school had not fully considered the factors a reasonable person would consider in deciding and assessing risk: the probability of injury; the gravity of loss; the object of the activity; and the cost of avoidance.

While the trial judge did not frame his ruling in exactly that way, he properly assessed all the necessary elements to determine whether the risk was unreasonable, the court ruled. There was no doubt an injury might occur as a result of the student’s actions, so the next issue is whether the gravity of that risk was such as to outweigh the social value of the program. The trial judge had done so and had determined the gravity of the risk did not outweigh the social value. He had considered the risk small and the school had taken steps to ameliorate them further.

The trial judge did not err in finding the conduct of the school did not create an unreasonable risk, and that the school had not been negligent, ruled the Court of Appeal. Kendal’s appeal was dismissed.

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