Q. What equipment was there first on the Tuesday so that we get an understanding?
A. There was just the small tumbling mats set up in a square with a small mini-tramp at one end, and we went there and we were jumping off the mini-tramp and doing cartwheels and tumbling and we got bored of that so we started doing somersaults.
Q. By somersaults you mean?
A. In the air without touching the ground, trying to land, and just anything and we were kids in Grade 11, we got bored pretty easy so whatever came to our mind we’d try it.
Q. Did anything happen then?
A. No. He told us – we did it for awhile and then Mr. Romanuik told us that when he seen us doing the somersaults that we should get the crash mat out, and we ignored him for a little while and kept doing it a couple more times and finally we went and pulled the big crash mat out of the storage room and threw it down and just kept going, got a little crazier.
Q. How could you get crazier? What did you do?
A. More of the guys – some of them were timid and weren’t doing the somersaults on the first – first floor exercise mats, so once we brought out the crash mat it was pretty much everybody started doing somersaults.
¶ 93 Clayton was also performing activities at the mini-trampoline station at the critical time. Breault and Andy, two of the students at the high bar station heard Romanuik direct the boys at the mini-trampoline station to bring out the second crash mat. Romanuik did not dispute this fact at trial. He indicated he could not recall. He did, however, admit this fact at the Examination for Discovery. At p. 44 of the Discovery transcript he was asked the following (Read-in from the Examination for Discovery of Romanuik taken on August 16, 1993, 213, ll. 12-23):
Q. All right. That’s the piece of equipment. Then over to the mini-trampoline the boys that were over there initially put down the tumbling mats. That was their initial move and they later added the only other crash pad?
A. Yes.
Q. Yes. Okay. So, initially we have those boys on the mini-tramp with the tumbling mats out in front of them. And that’s all they had there by way of equipment?
A. Yes
…
¶ 94 At the box horse station the five female students practised the activities which they had performed or had seen performed during Monday’s class. Lisa testified that the girls were instructed to practice what Romanuik had taught them the day before. The springboard abutted one side of the triangle-shaped box horse. On the opposite side of the box horse, add-a-mats were arranged and on top of these mats the students had placed the school’s second rectangular high jump crash pad. It in turn abutted the box horse base creating a wide triangular space between the box horse and top edge of the high jump crash pad. The box horse configuration was set up in the southwest corner of the gymnasium diagonal to the high bar station which was located at the northeast corner of the gym. There was approximately 50 feet between these two stations.
¶ 95 Initially the Plaintiff’s group performed activities utilizing the springboard in conjunction with the box horse. Lisa testified that the girls got bored (3617). Shortly after they began their exercises at the box horse station, Denise climbed on the top of the box horse and performed a partial back flip onto the crash mat, namely a partial back salto or partial somersault, that is, a 180 degree manouevre in the air. Her attempt failed due to an under-rotation of her body in the air. As a result she landed on her chest and abdomen.
¶ 96 Once again there is a disparity in the evidence at trial: Rhonda testified that Romanuik had told her that he saw Denise standing on the box horse with her back to the crash mat. Romanuik testified that he did not see Denise perform the manoeuvre – only her landing (p. 3953, ll. 12-21):
Q Did you see Miss Fagnan stand on top of the box horse and do a back flip?
A No, I did not.
Q Do you remember seeing Denise doing something at the box horse station that stuck out in your mind?
A The only thing that stuck out in my mind was her facing — facing the box horse, her feet landing on the crash mat, her hands up like so and her hair kind of flying off to the side is the only thing that I noticed.
¶ 97 The Plaintiff testified that after the accident Romanuik had told her that he should have stopped Denise (p. 1338, ll. 3-27). In cross examination the Plaintiff said the following (at p. 1413, ll. 8-27):
Q. I believe you indicated to the Court that you had a discussion with Mr. Romanuik perhaps sometime in the emergency room or somewhere at the hospital and Mr. Romanuik had indicated that he was very sorry, that he felt very bad and that he wished that he could have done something to stop Denise and yourself.
A. He said that he had wished that he had gone over to stop Denise when he saw her doing it.
Q. He did not tell you that he actually saw Denise on the box horse, did he?
A. He said: When I saw Denise attempting it I should have gone over and stopped it.
Q. He didn’t tell you that; he simply said to you that he was sorry and he wished he’d gone over and done something about it before?
A. No, he did not. He said what I said he said to me.
Q. I put it to you, Miss MacCabe, that that’s simply your interpretation of what Mr. Romanuik said.
A. That is what I recall he said to me.
¶ 98 Andy testified as follows (page 737, ll. 1-15):
Q. Okay, sir, at any subsequent time to that, did you have any discussions with Mr. Romanuik directly as to what he saw or didn’t see?
A. After the accident?
Q. Yes, sometime after.
A. Yes. Actually a couple days after the accident, I was talking to Mr. Romanuik; and he was pretty upset. And he told me he wished he told Denise not no [sic] jump backwards off the horse, so then Margaret wouldn’t have gotten hurt.
Q. And did he give any reason why he didn’t go over at that stage?
A. No.
Q. He just wished he had done that when he saw it?
A. Yeah.
¶ 99 Claude testified that Romanuik had seen Denise on the box horse (p. 1563, l. 16 to p. 1564, l. 19):
Q. Okay. Then, sir, afterwards did you have conversations with Mr. Romanuik as to what he saw or he didn’t see?
A. Afterwards, yes, I did have a conversation with Mr. Romanuik, that he had just basically – we were just talking about what happened, and he had basically said to me that he – like, I mean, we had a lengthy conversation. He was visibly upset, and he just told me that he regretted what had happened and he had regretted not stopping Denise, having seen her up there on the box horse, not regretting her – not regretting stopping her from what she had done. And at the time there were a lot of things – a lot of things going on in his life with his mom and dad. And so he basically was just upset and had told me that he had regretted not stopping Denise having done her flip, having seen her do the flip, and obviously he regretted that he hadn’t stopped Margaret.
Q. Okay. Did he indicate to you whether he had seen Margaret’s exercise at all or not?
A. He had – no. He had told me he had not seen Margaret’s flip.
Q. Okay.
A. Basically all he told me was that he had regretted seeing Denise up on the box horse and had regretted not stopping her from doing her flip, obviously which was before Margaret’s.
Q. Okay. Did you have other conversations with him along those lines in that same period of time?
A. No. That was probably the one conversation that we had.
¶ 100 In the questionnaire which Claude filled out on June 28, 1991, when asked what Romanuik said to him relative to the accident and how it happened, Claude wrote the following at p. 7:
He did say that he felt he should have done something when he saw Denise up there. I am sure he was aware that Denise was on the horse. Denise was standing on the horse and Mr. Romanuik wasn’t aware of what she was going to do off the horse.
¶ 101 At trial Claude referred to the above statement as follows (p. 1567, ll. 1-18):
Q. Okay. And was that basically the conversation you related to us?
A. That was part of it. I mean, it was a lengthy conversation and obviously he showed some regret, but it was – you know, I was just trying to think of what I could put down. And, I mean, it was important so – , but yeah, that’s basically – that’s not all that was in the conversation.
Q. What else was there from the conversation?
A. Well from this statement he had shown some regret of not obviously – of not stopping Denise.
Q. M-hm.
A. I mean, when he saw her up standing on the horse. From the overall conversation I had with him I gathered that he had seen Denise on the horse and regretted not having stopped her.
Q. Okay. That’s what you meant then.
A. M-hm.
¶ 102 Romanuik testified that he did not know which particular manoeuvre Denise had attempted nor did he see the Plaintiff on top of the box horse (p. 3953, l. 22 to p. 3954, l. 7): …
Q. And where were you when that happened?
A. I was at the high bar.
Q. Do you know what kind of manoeuver Miss Fagnan did to end up in that position?
A. No, no, I do not.
Q. Did you see Margaret MacCabe stand on top of the box horse?
A. No, I did not.
Q. Did you see her jump or land?
A. No, I did not.
Q. Did you tell anyone that you had seen her jump or land or seen her on top of the box horse?
A. No.
¶ 103 The next student at the box horse following Denise was the Plaintiff. The Plaintiff climbed onto the box horse and attempted the same partial back salto exercise as Denise. In her attempt, the Plaintiff under-rotated and landed on her head. She sustained a spinal cord fracture at the C6/C7 level, causing paralysis of her bodily functions at all levels below the 6th cervical vertebra. Again testimony varies.
¶ 104 The Plaintiff says (p. 1332, ll. 2-20):
A. I proceeded to get up on the box horse and attempt to complete what Denise had just completed which was the back flip that she had just done and landing on my stomach.
Q. Okay. Now, let’s go back. We’re up on the box horse now. Do you remember back what were you thinking of as you were doing whatever you were going to do? Just go through that whole experience. I know it’s not a pleasant one but please go through it.
A. Well, I first was thinking, okay, this is how Denise looked when she did it. And I’m thinking to myself, my back is to the crash mat, very similar stance and activity as the break fall, just push a little harder, arch my back, and go a little further on to my stomach.
Q. Okay. Did you hesitate at all or did you voice any concerns to anybody or say anything?
A. No. No, I didn’t. I wanted to make sure my footing was good and I turned to see if the crash mat was pushed up against the box horse and I carried on.
¶ 105 And at page 1402 (l. 22 to page 1403, l. 19) the Plaintiff stated:
Q. Ms. MacCabe, what happened to you then when you tried to do the back flip?
A. I jumped up, arched my back, jumped out and around and didn’t go far enough and came down. I don’t know where I came down.
Q. Okay. Would you agree with me then that you didn’t give yourself enough push to do that manoeuver in the air properly?
A. In retrospect, yes.
Q. Okay. And the words that have been used from time — or the word that’s been used from time to time is under-rotated?
A. Yes.
Q. Okay. Not using enough jump to elevate yourself into the air in order to land —
A. That’s right.
Q. – appropriately?
A. That’s right.
Q. Would you agree with me, Ms. MacCabe, that the reason that you didn’t give yourself enough push into the air was that you didn’t have the knowledge of how much push you needed to give in order to complete the manoeuver?
A. At the time I thought I had the knowledge, but looking back now, no.
¶ 106 Denise gave the following version of the events (p. 3743, l. 12 to p. 3744, l. 15):
A. Then I got off the mat, and Margaret was going to try it, so she got up on the box horse.
Q. How did you feel about that?
A. I didn’t have a problem with it except that she stated that, you know, she was a bit scared and unsure of herself; and then I thought, well, I had said to her that if you’re not sure, then don’t do it, because she was hesitating.
Q. How long did Margaret hesitate?
A. A couple minutes, two minutes.
Q. Are you sure it was that long?
A. Maybe not. It didn’t seem very long because it was just like, you know, we were just having a conversation that if you’re not scared, well, don’t do it; but I now, you know, I had time to — I looked across at the boys on the beam and trampoline station and seen, but mainly we were just conversing.
Q. You were conversing?
A. Just conversed with Margaret, you know, if you’re not sure, don’t do it, and she did hesitate for a few moments.
Q. Did anyone else say anything to Margaret besides you?
A. Well, Lisa agreed with me that if she was scared not to attempt it.
Q. Did Lisa tell Denise [sic] that?
A. Yeah.
Q. Did Margaret respond?
A. No.
Q. Were there any spotters there at that point?
A. Yeah, Lisa and Karen were the two spotters. I was also standing on the side of the mat beside Lisa.
¶ 107 Further on Denise said (p. 3745, l. 3 to p. 3746, l. 15):
Q. Okay. What happened?
A. Okay, well, like I said, you know, we were talking with Margaret and she was hesitating, and then I just remember that she had jumped up and arched her back and didn’t flip her legs over so in the air she remained arched and came down on her head and neck onto the mat and then had kind of slipped between the space that was between the mat and the box horse. And then she was still in an awkward position so we just gently moved her off onto the floor mats on either side.
Q. Were the spotters able to help Margaret?
A. No, they didn’t, couldn’t react.
Q. Pardon me?
A. Couldn’t react. Personally I felt that, anyways, because I wasn’t sure that she was going to do it due to her hesitancy.
Q. Did anyone else see Margaret standing on the top of the box horse before she attempted to do the back flip?
A. Andy Brand and Spencer Rufiange and Daniel Breault, I recall.
Q. And did you see Margaret in the air?
A. Yes.
Q. Did anyone else see Margaret in the air?
A. Danny Shank did, I believe, because he came right away and helped.
Q. And how, specifically, did Margaret land?
A. She landed with, like a slightly arched back on her head and neck.
Q. And where did her legs end up?
A. Pretty much kind of over to the side.
Q. Okay, and so what happened after Margaret landed?
A. Then we — because she was in such an awkward position, we just moved her off to the side gently and laid her straight and, well, she called out right away, she knew that something was wrong. She said that she couldn’t feel her arms, she couldn’t feel her legs, was she paralysed, was she paralysed, and she just kept repeating that.
¶ 108 Rhonda related the accident as follows (p. 584, l. 15 to p. 585, l. 6):
A. … So at that point, I proceeded to walk towards the beginning of the line because my turn had been finished so I was preparing to come again and that’s when Margaret stood atop [sic] the box horse.
Q. Now could you describe what Margaret did? Did you watch her at that point.
A. I saw Margaret standing on the box horse.
Q. Yes.
A. I saw her get up and stand with her back facing the mat, the same as Denise, with the intent of doing the same exercise. And at that point, I turned away to continue walking towards the beginning of the line-up. So that was the last point I saw her was when she was standing with her back towards the mat.
Q. Okay.
A. The next time I saw her, she was on the floor in her injured state.
¶ 109 Lisa testified that the episode unfolded as follows (p. 3682, l. 6 to p. 3683, l. 13):
A. Margaret said that she’s going to try it, yeah.
Q. Okay. And Margaret, as you said, got up, got herself arranged, was there approximately 10, 12 seconds in that range, and then she just went for it?
A. No.
Q. What did she do?
A. She hesitated. She wasn’t unsure of herself. She —
Q. You say she wasn’t unsure of herself.
A. She was unsure of herself, sorry. She was unsure of herself. She wasn’t — you could tell she wasn’t confident. She wasn’t too sure if she should do it or not, and Denise told her if she was unsure of herself, not to do it.
Q. If she was unsure of herself?
A. Right. Yeah.
Q. And then Margaret assessed that, I gather, and –
A. Yeah, and [sic]. She still wasn’t — she still wasn’t very — very sure of herself, and then she did it. Like she did the flip.
Q. A half flip?
A. Yeah, a half flip.
Q. So, basically, you — as near as you can gather, then, she had assessed what — what Denise had said and then went for it, basically?
A. Yeah. Yeah, like — like, even — even, myself, like I remember — like myself saying, Margaret, if — you know, if you are not comfortable doing it, don’t do it. Like, we all — like we were all kind of saying that. Like, you know, it’s up to you kind of thing, you know. If you feel comfortable doing it, go ahead and do it. If you don’t, don’t
Q. That’s great. If you feel comfortable doing it, go ahead and do it?
A. Mm-hm.
Q. And she did it?
A. Right
¶ 110 Karen testified on the other hand that the Plaintiff did not hesitate prior to her activity on the box horse, but rather “just kind of checked things out” and “went for it” (p. 1300, ll. 10-11).
¶ 111 Claude’s version of the events was as follows (p. 1553, l. 24 to p. 1544, l. 7):
Q. Okay. Can you tell us what you saw then just with Margaret?
A. Well, when Margaret was — I would notice that she would do some of the — she would run up and then try the flip over the horse, and others she would run up and jump up on the horse and then do a forward flip. I think that’s all I remember seeing her do. But obviously because her and I were involved I sort of paid a little bit more attention and just kind of noted what she was doing more than, I guess, the other girls.
¶ 112 Rhonda’s testimony was as follows (p. 556, ll. 11-19):
A. [S]he [the Plaintiff] described it very much as I had – I had seen it as well in that she stood atop the box horse and attempted to imitate the move that Denise had done just prior to her, which was a half flip backwards to land on her stomach on the mat. So she pushed off from the horse attempting to do the half flip and instead of going far enough backwards towards the mat went straight up and straight down landing on the floor.
¶ 113 Rhonda testified that Romanuik told her he had seen the Plaintiff prepare for the flip (p. 629, l. 16 to p. 631, l. 25):
Q. And on that page [referring to the June 28, 1991 Questionnaire] you say that Mr. Romanuik talked to you in his office and said that he saw Denise do it, and then at the bottom of the page you say: He saw her facing the same direction as Denise had, obviously preparing to do a back flip?
A. Yes.
Q. Are you telling this Court that Mr. Romanuik said to you that he saw Margaret MacCabe on the horse, facing the same direction as Denise, obviously preparing to do a back flip?
A. Yes.
…
A. …The — the specific conversation which I relayed on the back of page 3, which outlines that he saw Denise do the exercise and saw Margaret standing is a very clear conversation in my mind, which he also repeated a number of times to me.
Q. … He saw her facing the same direction as Denise had, obviously preparing to do a back flip.
A. Yes.
Q. And your evidence is that on the page before when you said: He asked me what I saw, how Marg jumped, why she did it, you’re telling the Court that was written on the same date. Right?
A. Yes.
…
A. … I had actually worked at St. Mary’s School for May and June of that year as a — as an administrative assistant, so Mr. Romanuik and I had a number of conversations during that time while I was there.
Q. Well, was that when it took place in May or June when you were working at the school?
A. Yes. It would have been a couple of months prior to my writing the statement.
IV. LIABILITY
A. Interpretation of the Law of Negligence
1. Relevant Legislation
¶ 114 The relevant legislation is found in the School Act, supra:
S. 25(1) The Minister may by order do the following:
(a) prescribe courses of study, including the amount of instruction time, and authorize the education programs and instructional materials for use in schools;
¶ 115 In 1988 the Minister of Education for the Province of Alberta prescribed the Curriculum Guide. This Curriculum Guide was the one in use in April of 1991. The relevant portions of the Curriculum Guide regarding the duty of care owed to the Plaintiff in her physical education class are found on the following pages:
- Introduction pp. 1 – 22 inclusive
- Gymnastics pp. 125 – 149 inclusive (scope of sequence Levels I to IV, inclusive)
- Appendix A pp. 199 – 200 (Bibliography of Gymnastics Teaching Handbooks and Manuals)
¶ 116 According to the Curriculum Guide the physical education program is considered a vital part of the schooling process and features a student-centred learning environment comprised of numerous activities of varying degrees of difficulty and standards of achievement (at page 1). There are seven components of the program, one of which is gymnastics. However, not all seven components are required for the course; only three of seven components are required for the Physical Education 20 class, and two for the Physical Education 30 class.
B. Interpretation of the Common Law
¶ 117 The School Board has acknowledged that the Defendant Romanuik was, at all material times, acting within the scope of his authority as one of the School Board’s teachers and, therefore, if Romanuik is liable, the School Board is also liable. Further, although the Principal, Peter Skitsko, was joined as a party defendant for purposes of establishing vicarious liability, the Plaintiff, during the course of the trial, acknowledged they would not be proceeding against him personally.
¶ 118 In Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186 at p.1192, Madam Justice Wilson established the process for determining whether a defendant has been negligent. My colleague Justice Virtue in Bain v. Calgary Board of Education (1994), 14 Alta.L.R. (3d) 319 at p.338 (Q.B.) aptly summarizes this process as follows:
1. Did the Defendant Teacher owe a duty of care to the Plaintiff?
2. If a duty existed, what standard of care was required and was the standard met?
3. Did the failure to meet the standard of care cause the harm suffered?
4. Did the Plaintiff voluntarily accept the risk?
5. Was the Plaintiff contributorily negligent?
1. Was a Duty of Care Owed?
¶ 119 Liability for a tort arises out of the relationship between the alleged tort-feasor and the injured claimant in the context of whether a duty of care is owed. There are several authorities in which the relationship of a teacher and student is recognized as creating a duty of care. An example given by Justice Virtue in Bain, supra, is that found in the decision of the Supreme Court of Canada in Myers v. Peel (County) Board of Education, [1981] 2 S.C.R. 21 where a 15-year-old male student was injured while performing a dismount from the rings in his Grade 11 gymnastics class. In that case there was no supervision at the time of the accident as the plaintiff and the other male students in the class had gone into a separate room to practise their gymnastics manoeuvres. The Supreme Court of Canada confirmed that the teacher owed a duty of care to the plaintiff and that the risk of harm should have been anticipated. McIntyre J. stated at p. 35:
The respondent should have anticipated reckless behaviour from at least some of the young boys sent off by themselves to work on gymnastic equipment. The evidence revealed that it was a reoccurring problem to keep students from attempting gymnastics exercises without spotters and the proclivity of young boys of high school age to act recklessly in disregard, if not in actual defiance, of authority is, as was pointed out by Blair J.A. in dissent in the Court of Appeal, well known.
¶ 120 Similarly in the trial decision of Thornton, Tanner, et al. v. Board of School Trustees School District No. 57 (Prince George), Edamura and Harrower, [1975] 3 W.W.R. 622 (later unsuccessfully appealed to the British Columbia Court of Appeal on the issue of contributory negligence and then to the Supreme Court of Canada on quantum only) Mr. Justice Andrews provided:
Edamura’s duty as a physical education instructor was to recognize the “configuration” in this circumstance as an inherently dangerous one. He was in breach of that duty when he permitted these youngsters to use it to perform manoeuvres when he knew, or ought to have known, that there was considerable danger for novices somersaulting on the configuration.
¶ 121 The teacher-student relationship, which gave rise to the right of Romanuik to control the activities of the students, also gave rise to a corresponding positive duty of care and supervision on his part. Accordingly, I am satisfied that the test for the existence of a legal duty of care has been fully met.
2. What is the Appropriate Standard of Care?
¶ 122 It is clear from a review of the case law that the standard to be applied depends largely upon the specific defendant and the circumstances involved. What is that standard? Gymnastic exercises, by their very nature, are high risk. The Curriculum Guide categorizes exercises within the physical education setting as “inherently dangerous”:
Because there is an inherent risk of injury in most physical education settings, physical educators must be careful not to breach the standard of care owed to their students. It is only if a student is injured while exposed to an unreasonable risk that physical educators can be considered negligent. (At p.19)
¶ 123 The Supreme Court of Canada in Thornton, supra, has established four criteria constituting the appropriate standard of care. These four basic components are duplicated on page 19 of the Curriculum Guide and are as follows:
i) Is the activity suitable to the age, mental and physical condition of the participants?
ii) Have the participants been progressively taught and coached to perform the activity properly and to avoid the dangers inherent in the activity?
iii) Is the equipment adequate and suitably arranged?
iv) Is the activity being supervised properly for the inherent danger that is involved?
¶ 124 The Courts have recognized that the application of the criteria to accidents in physical education classes will be dependent upon the facts of each particular case.
¶ 125 In Myers, supra, at pages 31 and 32 Mr. Justice McIntyre, speaking for a unanimous Court, noted that the definition of a schoolmaster’s duty established in Williams v. Edie (1893), 10 T.L.R. 41 as the “careful parent test”:
… has, no doubt, become somewhat qualified in modern times because of the greater variety of activities conducted in schools, with probably larger groups of students using more complicated and more dangerous equipment than formerly: See McKay et al. v. The Board of Govan School Unit No. 29 of Saskatchewan et al. [1968] S.C.R. 589, but with the qualification expressed in the McKay case and noted by Carruthers, J.A. in Thornton, supra, it remains the appropriate standard for such cases. It is not, however, a standard which can be applied in the same manner and to the same extent in every case.
¶ 126 Although Mr. Justice McIntyre at p. 32 in Myers, supra, maintained that the careful parent test remains the appropriate standard for school liability cases, he noted that:
Its application will vary from case to case and will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and training which the students may have received in connection with such activity, the nature and condition of the equipment in use at the time, the competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent-parent standard to the conduct of the school authority in the circumstances.
¶ 127 Relying on Thornton, supra, a case which was expressly approved by the Supreme Court of Canada in Myers, supra, the Supreme Court of Canada has afforded trial judges the latitude to judicially modify the reasonable and careful parent test if the case warrants such modification. The modification is necessary to accommodate a physical education class that is larger than family size and to account for this supra-parental expertise demanded of a gymnastics instructor. The modification is needed because of the inherently and readily foreseeable element of risk or danger in gymnastics given the more complicated and more dangerous equipment utilized, the inherently dangerous manoeuvres performed, and in some instances the inherently dangerous configurations themselves.
¶ 128 The standard of care is therefore higher than the “careful parent of a large family test” as it requires a teacher’s actions to be examined in light of this specialized knowledge, training and experience. In prior cases involving gymnastics in a school setting, this expanded test has been applied because a physical education teacher instructing a gymnastics class has specialized training, experience and knowledge, or should have, that is not available to a careful parent. Therefore, the teacher and school authorities must act as a prudent and careful person having the supraparental expertise demanded of a gymnastics instructor. I find that the case at bar is one where such judicial modification is necessary and the expanded test must be applied.
¶ 129 Accordingly, I find that the relevant and applicable standard of care in the Plaintiff’s gymnastics class is that of a prudent and careful parent having the supra-parental expertise that is demanded of a gymnastics instructor.
3. Was the Standard of Care Met?
¶ 130 In determining whether the level of supervision was appropriate given that standard of care, I must take into account the following factors:
1. Whether instructions or cautions with respect to the activity were given;
2. Whether supervision of the area in which the activity was taking place was possible;
3. Whether the teacher was occupied with other activities unrelated to the activity requiring the supervision;
4. Whether the teacher was present to supervise; and
5. Whether safety procedures were reviewed and insisted upon.
(Myers, supra; Abbas v. Lalonde,(11 Feb 1991) Ottawa 13353/89; [1991] O.J. No. 501 (Q.L.), [1991] affirmed (14 Apr 1994), Toronto 194/91, [1994] O.J. No. 3741 (Q.L.) (Ont.C.A.); Bain v. Board of Education Calgary et al, supra.)
¶ 131 Unfortunately, Romanuik had limited knowledge of the gymnastics background and the ability of several of the students in his class. Further, Romanuik had no training in relation to the specific equipment configurations used in the Monday and Tuesday classes which would have enabled him to properly teach many of the activities that he had instructed, demonstrated or permitted students in his class to demonstrate. Dr. Russell, in his university course, did not teach Romanuik exercises using these configurations, nor did the Curriculum Guide afford him any guidance in this regard.
¶ 132 Romanuik was responsible to supervise his students adequately so they did not:
a. Try exercises beyond their ability;
b. Try exercises for which they had not been trained; and
c. Work on equipment that was configured in an unsafe manner.
C. Application of the Evidence to the Four Thornton Criteria
1. Appropriate Activity
¶ 133 The first criterion approved by the Supreme Court of Canada requires that the activities taught by a teacher must be suitable to the age and condition, both physical and mental, of the students.
¶ 134 As earlier noted, the majority of the students in Romanuik’s class, including the Plaintiff, had very little background in gymnastics. Romanuik had no training other than that which he received from Dr. Russell at the University of Saskatchewan. The only resource materials utilized by Romanuik were his Resource Binder from Dr. Russell’s class and the Curriculum Guide.
¶ 135 Romanuik was at all times bound by the Curriculum Guide. He was not permitted to teach activities unless they were sanctioned by the Curriculum Guide. If he wished to teach activities beyond those set out in the Curriculum Guide he was required to first obtain Board approval. He never sought nor obtained permission to expand the scope of his gymnastics unit. In fact, he testified that the Curriculum Guide was just that – a guide (at p. 3936, l. 27 to p. 3937, l. 4).
¶ 136 The defence argue that the Curriculum Guide is deficient in parts, for example, it does not permit such activities as landings. It is difficult for me to comprehend that such activities were not implicit. If vaulting activities are prescribed by the Curriculum Guide, common sense would dictate that landings must also be included, for if one goes up, one must, pursuant to the law of gravity, certainly come down.
(i) High Bar Station
¶ 137 The activities that were taught, demonstrated, and performed, were of such a nature that Romanuik’s presence at the high bar station was required at all times.
(ii) Mini-trampoline Station
¶ 138 There is some conflict among the witnesses as to the activities that were performed at the mini-trampoline station on Monday and Tuesday. Lisa had a poor recollection of the activities that were done at this station. Denise had no recollection of what was done on Tuesday but on Monday recalls jumping off the mini-trampoline onto the tumbling mats and possibly doing a forward roll. Romanuik’s evidence is consistent with Denise’s recollection of Monday. On Tuesday Romanuik specifically recalls seeing one student, possibly Lance or Clayton do a forward salto, namely, a 360 degree rotation in the air off the mini-trampoline. At the Examinations for Discovery in August of 1993, Romanuik acknowledged that he had possibly seen two students, one of whom was Andy, do a front somersault over the mini-trampoline. At p.22 l. 22 of the discovery transcript, Romanuik was asked the following (Read-in from the Examination for Discovery of Romanuik taken on August 16, 1993, ll. 22-25) (211, ll. 7-12 of the Transcript):
Q. Mr. Cummings. Two students did that particular exercise and Andy Brand was one of them. Did what you recall a front somersault over the mini-tramp.
A. Yes.
¶ 139 Romanuik was then asked at p.23, l. 26:
Q. The second student was Daniel Shank Jr.
A. I can’t remember that.
Q. But you remember Andy Brand doing that off the mini-tramp. You just remember Andy Brand?
A. Yes.
¶ 140 Given the context in which the question was answered, I find that with the use of the word somersault, the parties meant a 360 rotation in the air, namely, a salto. Unfortunately, when the students were asked to complete a questionnaire by the Plaintiff’s counsel on June 28, 1991, the term “flip” was used. At the Examination for Discovery the term somersault was used by the Plaintiff’s counsel and at trial with the assistance of the gymnastics experts we are now aware that the correct terminology for a 360 degree rotation in the air is a somersault or salto. So there is no confusion, I will henceforth describe the 360 degree rotation in the air as a salto.
¶ 141 It is to be noted that the Examination for Discovery was conducted only two years post-accident as opposed to the trial which was almost seven years post-accident.
¶ 142 Evidence was given by several student witnesses who not only viewed activities at the mini-trampoline station but had in fact actually performed manoeuvres themselves at that station which I find were saltos as follows:
1. Andy’s evidence confirms that he performed a front salto;
2. Breault confirms that he completed a partial back salto. He has a very vivid recollection of this as he actually landed on his knees as opposed to his feet and was both pained and embarrassed by this unfortunate landing;
3. Danny gave evidence that he performed a forward salto at the station on Monday;
4. Both Lance and Clayton gave clear evidence that they had performed saltos at the station during Tuesday’s class prior to the Plaintiff’s injury.
¶ 143 In addition, at the time of the Plaintiff’s injury there is evidence, which I accept, that there was a crash mat at the mini-trampoline station which had been brought out after Romanuik saw one of the boys performing a front salto off the mini-trampoline onto a tumbling mat.
¶ 144 The evidence satisfies me that Romanuik did not have a problem with the students performing saltos off a mini-trampoline provided they used a crash mat as opposed to just a tumbling mat.
(iii) Springboard/Full Height Box Horse/Crash Mat Station
¶ 145 The defence witnesses recall the activities that were taught or allowed to be performed at the box horse station prior to Denise’s partial back salto as:
1. A simple jump on and off the horse;
2. A vault whereby both legs are swung to one side as the students went over the horse;
3. A straddle jump or scissor kick vault;
4. A spread eagle or swan dive vault;
5. A forward roll over the box horse;
6. A dive roll over the box horse;
7. A hand spring over the box horse.
¶ 146 In reviewing the evidence of the witnesses called by the Plaintiff with respect to activities instructed, demonstrated or permitted at the box horse station on Monday and Tuesday, they were very similar to the defence witnesses with the exception of front saltos off the spring board over the box horse onto the crash mat and back and front saltos off the box horse onto the crash mat.
¶ 147 At the Examination for Discovery, Romanuik gave the following evidence at p.38, l. 14:
Q. Okay. Then over to the box horse. Which students did you see do flips over the box horse? Somersault type flip over the box horse.
A. All of them.
Q. Okay. Did you see them all do that that day?
A. Yes.
Q. Did they all do a flip over?
A. Yes, yes but you use the term “flip”.
Q. Somersault?
A. Correct.
Q. Okay. A somersault over the box horse?
A. Correct
Q. And at that time did you have the crash pad in place?
A. Yes
¶ 148 At trial Romanuik testified the following with regard to a salto (p. 4082, l. 19 to p. 4086, l. 26):
Q. At any rate, sir, in 1993, in August, you did see Andy Brand stand on the box horse and do — what are we calling it now — a 360 degree turn in the air and land on his feet, you, at least, thought that then?
A. Yes, then.
Q. But now you maintain again that you were confused?
A. Yes.
Q. So what did you now think you saw?
A. I think I saw — well, I know I saw Andy Brand doing forward rotations over the box horse, sir.
Q. No. We are talking, sir, standing on the box horse. That’s what that question was all about. Can you tell me anything else you can think of that might have confused you when you answered that he stood on the box horse and did a 360-degree turn in the air and landed on his feet. What can confuse you about that, sir?
A. I don’t recall him doing that.
Q. Okay, what other exercise could he have done in that position to do that kind of a turn and land on his feet; can you think of anything?
A. Yes. He could have stood on the box horse and did a forward rotation off the box horse.
Q. What sort of a forward rotation to land on his feet?
A. To land on his feet?
Q. Yes. That’s what you stated in here. He did a forward rotation and landed on his feet. That’s a 360-degree turn in the air.
A. What he could have did — also he could have did just a roll-off and then, you know, progress from the hands, to the shoulders, to the gluts, and to the feet.
(…)
Q. At any rate, sir, you were asked those questions and told those answers, and they were the truth at that time?
A. If I said that, yes.
Q. Now sir, a number of other students said that they did the same type of 360-degree turn that we’re discussing, Andy Shank [sic], 10 to 12 times; Dan Breault; Rhonda; a number of other students. Did you see any of them do exactly as we’ve described here?
A. No.
Q. Do you remember or —
A. No.
Q. Do we have to rely upon the students for that information?
A. You can rely on them.
Q. And, sir, on the Tuesday, you saw, at least, Clayton or Lance doing the same 360-degree turn on the regular mats off the mini-tramp, I believe; is that correct?
A. I saw one of them, yes.
Q. You saw that same somersault then? Sorry, I better not use that word. The same 360-degree turn then?
A. Not the same 360-degree turn. I don’t remember seeing it on the box horse, but I did see a 360-degree turn off the springboard.
Q. How about on the Tuesday, sir?
A. Not the springboard, pardon me. Off the trampoline. Sorry.
Q. Didn’t you, sir, at some point tell them if they’re going to do whatever, go out and get a crash mat, or do you remember?
A. I don’t recall that. I recall saying to stop the activity. I don’t recall telling them to go get a crash mat.
Q. Clayton and Lance have given evidence that you basically – Clayton for certain — that you suggested they get the crash mat if they’re going to do these things, and they go out and they got the crash mat and brought it right past your location?
A. I’m trying to remember that. I cannot remember that.
Q. So do we have to rely upon the student’s evidence in that regard?
A. Yes. They may have brought it out. I just can’t remember.
Q. Certain of the students, shortly after the accident, drew diagrams showing the crash mat at that location as well. Does this help you? Do you remember that crash mat now coming out?
MS. OLSZEWSKI: And many students didn’t.
Q. MR CUMMINGS: Yes, many didn’t. But those that were at the mini-tramp station, many of them did. I am trying to jog your memory. Do you remember that?
A. No, I don’t.
Q. But you do remember seeing the 360-degrees turn as we’ve described?
A. Right
Q. Andy Brand was with you, and he suggested that he was standing right beside you, and you said, if you’re going to do that kind of thing, go out and get the crash mat. Does that help you at all?
A. I can’t remember.
Q. So again we have to rely upon the students?
A. Yes.
¶ 149 In light of the substantial confusion that arose because of the improper use of terminology, I cannot say with any degree of certainty how many front and back, full or partial saltos were performed. However, I find that some did occur at the mini-trampoline station whether or not a front or back salto was demonstrated or permitted.
¶ 150 However, it is clear from the testimony of Denise that she did not ask Romanuik’s permission to do the partial back salto because it never crossed her mind that she was going to be injured or that she needed his permission to do so. In fact, several students testified that they thought all the manoeuvres they were performing or had seen demonstrated were part of the course. For example, Clayton’s testimony is as follows (p. 402, ll. 16-22):