Q. Okay. I would like to take you back to when you were doing these exercises, running up and hitting the springboard. Had Mr. Romanuik given you any discussion or progressions as to what would be necessary prior to doing that exercise? Did he give you any input at all or not?
A. The only input we had in terms of using the box horse was – there were no – nothing given to us in terms of progressions of how to use the springboard or the box horse. That wasn’t given to us. It was – we just basically were told as starters where to stand, and that was the extent of it, I guess.
¶ 176 That the full height box horse was inappropriate in the vaulting context given the inexperience of the students was evidenced by the testimony of several of the experts, including Mr. Ward. Mr. Ward was called by the Plaintiff and qualified as a Secondary High School Physical Education teacher with specialized training in gymnastics. He had taught physical education for 27 years. Mr. Ward testified that he would not use a full-height box horse even at the end of a two-week unit. Dr. Russell testified that he would teach a jump from a full-height box horse onto a crash mat only with competitive gymnasts.
¶ 177 Mr. Cable, the Plaintiff’s expert who was qualified as teacher of secondary education with specialized training in the field of physical education, presented as a young teacher with similar training and experience to that of Romanuik. He had taught one year of high school physical education as well as an unspecified period of time as a junior high physical education teacher (1744). He testified as follows (p. 1765, l. 16 to p. 1766, l. 14):
Q. Sir, in your opinion was it appropriate to set up a spring board, a box horse and a crash mat as illustrated in those photographs for high school gymnastics, and I might say regardless of how recent the student involvement had been in gymnastics?
A. Absolutely not.
Q. And why not, sir?
A. Well, even individually these are I consider to be
dangerous pieces of equipment. The spring board, the
amount of height and flight that a student can get
off a spring board like that is far too great than
they need to be – than they would need to do the
appropriate skills.
A full height box horse should never have been used.
I guess the level, the gymnastics abilities of the
students wasn’t high enough that it required a full
height box horse to ever be used, and with the
addition of the crash mat it tends to —
A. Okay, sorry. The addition of the crash mat, it tends to add a feeling of safety and security to the students and it will tend to encourage them to try more dangerous aerial skills; and I guess regardless of how they land, they don’t have to worry too much about how they land with a mat of that type.
¶ 178 A section or sections of the box horse could have easily been removed to minimize the danger. Nicole testified that Romanuik did not direct any lowering of the box horse (237).
¶ 179 The evidence of Claude, Mr. Ward, Mr. Cable and Dr. Gervais, clearly indicates that the springboard was capable of catapulting students to great heights, especially when it was proceeded by a long fast run up. Andy testified that once he almost landed beyond the mat. Danny described that event as follows (p. 1112, ll. 3-18):
Q. Now explain the swan dive.
A. I would run and hit the springboard and get as much height and distance as I could over the horse and just land on my front somewhere on the crash mat.
Q. Where would that be on the crash mat generally?
A. Generally near the end of the mat.
Q. Okay. Did you have occasion to see any other person do that?
A. Yes, I did.
Q. And I am thinking, was there any incident that happened or not?
A. Yes, I saw Andy Brand do that where he went a little too far and his head almost hit the floor – he went past the crash mat.
Q. Okay. Was he hurt at that instance?
A. No, he wasn’t.
¶ 180 When asked how the springboard reacted when hit, Lance testified (p. 1441, l. 27 to p. 1442, l. 25) as follows:
Q. Okay. Now go back. Tell me, how did that springboard react when hit?
A. It was pretty much you could go as hard and as high as you wanted to; it was all dependent on how hard you were running, how hard you hit the springboard. It could shoot you over there like a rocket if you wanted it to.
Q. Shoot you over the box horse?
A. Yeah.
Q. And when Mr. Brand was doing these – let’s say these, what do you call it, the dive things, what did you call those when you just hit the springboard and went right over the box horse?
A. Swan dive.
Q. Swan dive. How far did Mr. Brand go?
A. The first couple times he landed just in the middle of the crash mat and then after that that got to be a game between the boys too, see, cause the mat would start sliding. Then we’d see the guys that were – once Mr. Brand was done, we’d all get on there and see how far we could slide the mat backwards from the box horse.
Q. And can you tell me, who pushed the mats back?
A. The last person to do the exercise.
Q. Okay. And was the mat always pushed back?
A. It got missed every once in a while.
¶ 181 Given the lack of instruction provided to the students in relation to vaulting, especially the absence of any instruction as to the potential spring off the springboard, no springing device should have been utilized. This is supported by the evidence given by Mr. Ward, Dr. Gervais, and Mr. Cable. Mr. Cable’s testimony was as follows (p. 1770, l. 18 to p. 1771, l. 5):
Q Sir, I think you mentioned that in your university training at no time was a spring board ever introduced to your level of maturity and training. Is that correct?
A That’s correct.
Q Would it be appropriate to bring out a spring board then for a first or say the first 80 minutes or in the second 30 minutes of a class of high school gymnastics to bring a spring board out?
A Not if it was to be used as a springing device. Perhaps if you, you know, covered it with mats and used it to practice forward rolls and that type of thing down the spring board and that type of thing, then it would be appropriate, but not as a springing device.
¶ 182 There is a substantial dispute as to the use of the crash mats with this particular exercise. Dr. Russell, whose evidence I accept and who presented as a very able and capable instructor of international renown, made it clear that Romanuik did not have any training with respect to the use of crash mats other than for purposes of performing a break fall (94).
¶ 183 The evidence of all expert gymnastic instructors called by both the Plaintiff and the Defendants indicated that it was more difficult to land on your feet and in control on a crash mat than would be with a normal tumbling mat. Given the evidence of the expert witnesses that the goal in landing a vault was to land on your feet in control and the evidence that all of the activities in the Curriculum Guide for which Romanuik was familiar required landings in control on your feet, the use of the crash mat was entirely inappropriate. All expert teaching witnesses were of the view that a crash mat should not be placed in front of a springing device or a box horse where forward rotations were involved.
¶ 184 Again there was a divergence of opinion as to whether the crash mat unto itself was an enticement to students at this age and level of experience to perform activities that were inherently dangerous and which would not normally have been performed but for the presence of the crash mat. Several student testimonies were to this effect (p. 1569, ll. 2-9; p. 1569, ll. 21-27; p. 1555, l. 25 to p. 1556, l. 6; p. 1603, ll. 11-16; p. 1632, l. 25 to p. 1633, l. 2).
¶ 185 Claude testified that he was more confident on the box horse because of the presence of the crash mat at p. 1571, l. 19 to p. 1572, l. 1:
… Again, I guess as I did more of the activities, like on the box horse and did the flip, I was more confident. But on some of the other activities that didn’t have a crash mat, for instance, I guess the reason that I said I was afraid of falling on my head was because you didn’t have the reassurance of having a crash mat, you know, to fall on. It gave quite a bit when you landed on it. It sort of gave you some reassurance.
¶ 186 Denise’s testimony was similar (p. 3811, ll. 12-26):
Q. I take it when you did yours, you indicated that hey, I’d never do this thing without the crash mat and I think that’s probably a wise move is that correct?
A. Yes.
Q. But the crash mat, of course, you know, made you feel safe?
A. Yes.
Q. And I’m sure on Monday the crash mat made you feel safe on the other side of the box horse with the springboard?
A. Yes, safer.
Q. Yah, well, would you do it if there were just the thin mats there?
A. No, I’d be worried of sprains and whatnot.
¶ 187 The Plaintiff testified in the following manner (p. 1335, ll. 9-24):
Q. Okay. So then did you ever try anything like you did here. Stand backwards and jump up in the air and land on the ground by turning over?
A. No.
Q. What did you think of – how far was this crash mat below the box horse that you were on?
A. A couple of feet.
Q. And what did you think of that crash mat, how did you feel about that?
A. I could never see myself doing an aerial exercise without the crash mat being there. It was a soft spot to land.
Q. Did you feel safe completely in that mat or not?
A. Yes, I did. I felt safe.
Q. Is that both on the Monday and the Tuesday?
A. Yes.
¶ 188 Andy testified that it was the crash mat that made him feel safe (p. 743, l. 23 to p. 744, l. 5):
Q. Okay. Now, sir, when you were doing your exercises that you’ve indicated and saw others do them, from your own point of view, did you feel safe when you were doing these?
A. Yes, I did.
Q. And why was that? Can you tell us what sort of indicators you had that made you feel safe?
A. That big crash mat. It looks really soft, and it’s really fun to jump on so yeah, I was really safe and I felt really safe.
¶ 189 Lance put it in the following terms (p. 1548, l. 7 to p. 1549, l. 1):
Q. Did you have any fear about any problems of how you might land with those small mats there that concerned you?
A. Well, I think anyone would just doing it at first. But again, as I did it more I gained more confidence, and as I gained more confidence I was able to do it better.
Q. Okay. What were you afraid of? How were you afraid of hurting yourself?
A. Well, just being in that class we had done – I mean, basically tried everything, and we had – I guess just when you are – when you – when we had the trampoline, for instance, and we did the flips, I guess it just didn’t feel as comfortable landing on your feet just on the small mats. If the crash mat was used you just felt more comfortable and more confident. Confidence, I guess. It gave you more confidence. But for myself it wasn’t more or less a fear. It was more or less just a lack of confidence. But as I did more of the activities I gained my confidence, especially when the crash mat was out. I felt more confident and able to do it.
¶ 190 Lisa, however, did not find that the crash mat afforded her security (3647). Nonetheless, she did testify that she would not have done the scissor kick off the box horse without a crash mat (3662).
¶ 191 I am also mindful of the Plaintiff’s testimony which was as follows at trial (p. 1409, ll. 3-6):
Q. So you knew then that if you did the exercise improperly that there would not be spotters that would be able to assist you?
A. No, I knew the crash mat was there.
¶ 192 Mr. Ward provided (p. 2113, ll. 8-19):
A. … What the crash mat once again gives we have said it enough. I will say it one more time-is it gives these students a false sense of security.
¶ 193 Mr. Ward was of a similar opinion at p. 8 of his expert report:
The use of the crash mat in this class also contributed to the problems by giving the students a false sense of security. Landing skills seemed unimportant because students believed they could throw themselves into the air and safely “crash” onto the mat …
To place a crash mat in front of a box horse or a springboard or the two of them in combination is to impliedly issue an open invitation to do saltos. At that point a teacher would have to exercise extreme control over each and every student.
¶ 194 Dr. Gervais’ testimony was as follows (p. 845, ll. 11-27):
A. First off what you do with a situation where you have a spring board which is very very responsive to spring, some would suggest very unpredictable because of that, you have a situation where as soon as they’re going to come up to this thing they see a mat that has been designated as being a very soft landing area. They realize it’s a very soft thing. It’s very common for these – for a student to run up there and the first activity they do or attempt to do is a somersault or a – usually the somersault, though, is done in this fashion, head first. And so what happens is that the individual will take off the board and this is the – this is the action that occurs. The first action is this throwing of the upper body and the head in that fashion. If they don’t get the height, you have a crash mat over here and this is the skill that’s performed.
¶ 195 Dr. Gervais states the following in his expert report at p. 10:
The use of a crash mat was acceptable for break falls, but not under such hurried conditions which had the pupils doing the skill from the 4′ high horse after so few practices and no prior mat progressions. The crash mat invited activities that should not have been permitted, i.e. saltos front and/or back. Even had the students been properly coached on spotting, the crash mat provided poor footing for the spotter which should have been standing up by the horse and on the crash mat.
¶ 196 Dr. Russell’s report states at p. 14:
I find that the configuration of the springboard, full box horse and crash mat was inappropriate for the level of ability of the students in Romanuik’s class and their teacher. (emphasis added)
¶ 197 Although there is some dispute as to the exact nature of the activities done at the box horse station, I find that the activities that were taught, demonstrated or permitted by Romanuik were as follows:
1) A run up to the springboard; the distance of the run having been estimated by the witnesses to be between 20 and 50 feet and the speed of the run varying depending on the person performing the activity;
2) A jump onto the springboard;
3) Springing from the springboard;
4) Clearance of a solid object four feet high;
5) A manoeuvre in the air;
6) A landing.
¶ 198 I find that a configuration as set out by Romanuik which lends itself to these types of activities is inappropriate for a high school physical education gymnastics class, in particular the first or second class. I find that Romanuik had no training in relation to this particular configuration as it had never been taught in Dr. Russell’s class. His resource materials: the Curriculum Guide and his Resource Binder do not discuss or make reference to the use of this configuration. It is clear that the configuration does not lend itself to any vaulting exercises set forth in the Curriculum Guide, especially with respect to the use of crash mats.
¶ 199 I accept the testimony of Nicole (237), Lisa (3644), Willie (270), Danny (1116, ll. 16-20), Clayton (1565), and Lance (1448) that Romanuik did not give warnings about any of the equipment nor did he mention anything about the potential dangers of this particular configuration of the springboard, box horse and crash mat. The Plaintiff testified as follows in this regard (p. 1324, l. 27 to p. 1325, l. 23):
Q. Now, I’d like to take you into well, firstly, did Mr. Romanuik on that day have any safety discussion with you specifically. Or if you can, tell us the extent of it?
A. We talked about using spotters on either side of the crash mat and at the box horse station. In relation to that, we were taught where to stand and to keep students off the mat if they were to fall off. And then the breakfall as another safety mechanism to protect us from more injury if we were falling the wrong way.
Q. Anything else? Is that the extent of it?
A. In safety discussions, yes.
Q. Okay. Did Mr. Romanuik ever at any time ever say to anyone you can do these exercises but not these exercises?
A. No.
Q. Okay. Did Mr. Romanuik ever discuss the equipment with you and how it was to be used and any dangers in that equipment?
A. No.
Q. Did Mr. Romanuik ever discuss with you any configurations of equipment as they were set up and what to watch out for and not to watch out for?
A. No.
¶ 200 The evidence also satisfies me that Romanuik did not provide the class with any written instructive material or diagrams.
¶ 201 Both the Principal, Peter Skitsko, and the Vice-Principal, Mr. Oko, testified that they had never seen such a configuration (p. 1352-1354). I am, however, mindful of the Plaintiff’s testimony that in junior high she did do some gymnastic exercises from the configuration of a springboard, box horse and crash mat (p. 1312, l. 19 to p. 1313, l. 14). Further, as at p.247 of the Resource Book (Exhibit 1, Tab 5) under the section “Specific Methodologies: Springboard and Mini-Trampoline” indicates “these apparatus [springboard and mini-trampoline] can be used on their own or in conjunction with vaulting (as mentioned earlier, it is probably better not to use them with vaulting until the student has reached his/her limits vaulting with less springy devices),” Romanuik was well aware of the inherent dangers in a configuration of this type as he notes in his own handwriting at p. 221 of the Resource Book: “Do not spring over box horses because kids very easily could hit themselves in the head, etc.”
¶ 202 If a teacher of a high school physical education gymnastics class determines as part of his class plan to utilize an inherently dangerous configuration such as this, he must ensure that he is at all times present while the station is in use. He should also provide cautions and warnings to his class in relation to the equipment configuration, and should caution against and forbid students from performing activities on the equipment other than the most simplistic until they are mastered. If any questionable activity is performed by a student on the apparatus, he should stop the activity immediately. I find that both the configuration itself, particularly the box horse and crash mat configurations, and the activities he permitted thereon encouraged the students to perform inherently dangerous manoeuvres such as the partial back salto.
¶ 203 Romanuik, during the course of Tuesday’s class was never at the box horse station. Rather, he remained with the male students at the high bar. Also there was no evidence adduced that he discussed with his students the potential dangers inherent in the use of this particular equipment configuration nor is there any evidence that he provided them with warnings or cautions about the limitations of the crash mat and its ability to protect them.
¶ 204 The traumatic injury sustained by the Plaintiff could have been avoided had Romanuik not used a configuration of this type with which neither he nor his students had adequate training. Alternatively, Romanuik did not provide the students with the appropriate warnings and restrictions on the activities to be performed at that station. Furthermore, he was not present at the station to supervise their activities.
¶ 205 Finally, if Romanuik was desirous of having his students exposed to vaulting skills and manoeuvres from the box horse there was a safer equipment configuration available such as a beat board, reduced height box horse and tumbling mat or simply a reduced height box horse and tumbling mat.
(ii) Mini-trampoline/Crash Mat
¶ 206 At the time of the Plaintiff’s injury the second station utilized by members of her class was the mini-trampoline, tumbling mats and, ultimately, as I have found, a crash mat. As with the box horse station, this particular configuration lent itself to inherently dangerous activities of an unreasonable nature that were well beyond the experience and training of both Romanuik and his students. The configuration lent itself to activities involving elements of springing, flight and landing which could be made extremely dangerous if the element of rotation in the course of flight was introduced.
¶ 207 Because of the presence of this particular configuration and the potential dangers, Romanuik as a teacher was forced to use some of the time in which his attention was not fully focussed on the high bar station to ensure that nothing untoward was happening at the mini-trampoline. As a result, his attention to the activities at the box horse station were even further diminished.
¶ 208 The following evidence was given regarding the use of the crash mat at this station:
1) Andy Brand specifically recalls Romanuik telling the boys at the mini-trampoline station “if you guys are going to do that stuff bring out the crash mat.” And a crash mat was subsequently brought out.
2) Breault specifically recalls Romanuik having the boys at the mini-trampoline station bring out a large crash mat because of their activities which Romanuik must have perceived as “risky”.
3) Spencer recalls a crash mat being out.
4) Claude noticed at some point during the class that a crash mat had been brought out.
5) Lance specifically recalls Romanuik telling them if they were going to do somersaults that they should get the crash mat out and they did so. They then continued.
6) Clayton’s evidence was that initially they were using the mini-trampoline with some small mats but that it caused Romanuik some concern so a crash mat was brought out.
7) Rhonda remembers some of the students bringing out the crash mat for the trampoline station because they were “flying so high and seemed to be needing that.”
¶ 209 There is no evidence to refute this as Romanuik at trial acknowledged that the male students may have brought out the crash mat but he could not remember them doing so. He does, however, clearly recall speaking to a student at the mini-trampoline station as a result of them having performed a front salto off the mini-trampoline onto the tumbling mat.
¶ 210 I accept the testimony of the students Lance, Andy, Breault, Claude, Clayton, Rhonda and Spencer that the crash mat was brought out and used sometime during the course of the activities at the mini-trampoline station.
¶ 211 Similar to the box horse station, Romanuik did not see or use this particular configuration in Dr. Russell’s class. Further, there is nothing in either Romanuik’s Resource Binder or the Curriculum Guide setting out potential uses for this particular configuration. Once again, it is clear that this configuration does not lend itself to any exercise permitted by the Curriculum Guide.
¶ 212 Romanuik acknowledges not having received any training with respect to this configuration in Dr. Russell’s class. He did not dispute the testimony of the majority of the students who indicated that they were unfamiliar with this configuration. Mr. Skitsko once again acknowledged that he had never seen this type of configuration used in his school.
¶ 213 I find that the set-up of the mini-trampoline coupled with the crash mat and the adventuresome spirit of many of the students lent itself to activities involving the potential for significant height, flight and rotations in the air. Romanuik did not discourage such activities; rather he allowed them by his passive acquiescence.
¶ 214 If a teacher introduces an inherently dangerous configuration such as this he should have the responsibility to remain at that station to ensure that the students’ activities are properly supervised. A teacher has the responsibility to provide cautions and warnings to the students about the dangers inherent in that particular configuration. He must also forbid all activities at this station except for the most simplistic and immediately stop any questionable activities.
¶ 215 At no time during Tuesday’s class was Romanuik at the mini-trampoline station. Again there is no evidence that he discussed the potential dangers or risks inherent in the equipment configuration with the students. He did not provide any warnings or cautions about the limits of the crash mat and its ability to protect them although he may have been aware of the pocketing problem of the crash mat as disclosed by Mr. Cable, Mr. Ward and Dr. Gervais in their respective testimonies.
¶ 216 There were safer options available to Romanuik in relation to the mini-trampoline station. He could have used a beat board instead; restricted the permissible activities and used only tumbling mats.
(iii) High Bar/Tumbling Mat Station
¶ 217 The height of the high bar was set at Romanuik’s direction well in excess of the chest level permitted by the Curriculum Guide. In fact, the height of the bar was between 7 feet and 8 feet. However, Romanuik was unaware of its exact height. The Plaintiff, who is 5 feet, 2 inches, indicated that she had to jump up to reach the bar. Because of the set-up of the high bar station and the fact that it was a new station for the Tuesday class, it required that Romanuik devote his complete attention to that station. The testimony of all his students would indicate that they were unfamiliar with this configuration. In addition, both Mr. Skitsko and Mr. Oko gave evidence that they had never before seen the high bar set-up in this manner in their school.
¶ 218 Other options were available to Romanuik. He could have had the high bar set at chest height as mandated by the Curriculum Guide, or only permitted static hangs and low amplitude swings. This would have allowed him the freedom to supervise not only this station.
4. Supervision
¶ 219 The fourth criterion approved by the Supreme Court of Canada requires that the performance of any inherently dangerous activities by the students be properly supervised.
¶ 220 The responsibility of a teacher for the safety of his or her students in his or her class is more onerous in a physical education setting, especially if the course taught is gymnastics, which by its nature is inherently dangerous.
¶ 221 Supervision requires more than a mere presence in the gymnasium. The teacher must ensure that students do not perform activities for which they have not been adequately trained. This duty is not met when the teacher sends students off to their own station which by its very nature encourages inherently dangerous activities and does not restrict activities.
¶ 222 The Plaintiff was entitled to look to Romanuik for a level of discipline and personal supervision based upon the demands of the circumstances, and upon her experience with Romanuik as her teacher both in Grade 10 and Grade 11 Physical Education.
¶ 223 What was clearly remembered by all the students who testified, was Romanuik’s instructions that they work on their individual routines, and that they would be graded on their routines based upon the level of creativity shown. Also, that they should work within their own ability. In his testimony at cross-examination, Clayton referred to the situation as follows (p. 386, l. 17 to p. 387, l. 18):
Q. Can you look at page 66 of your statement, Mr. Strilchuk.
A. Yes.
Q. Did your teacher tell you what you could or could
not do in using the box horse?
Your answer is,
He told us to do only what we were capable of.
A. Right.
Q. Okay.
A. We defined what we were capable of, and we did what we were comfortable with or felt what we could do.
Q. And you knew, Mr. Strilchuk, that when working on your routines, you were supposed to do what you were capable of, right?
A. Right.
Q. All right.
A. That’s a very vague definition.
Q. All right. Based on what you’ve been taught in the class?
A. Based on what you thought you could do yourself.
Q. Okay. Based on what you’d been taught in the class?
A. That was a starting point. Andy Brand’s demonstrations were the starting point. That was how I felt.
¶ 224 A teacher who advises his or her students that they must work within their own ability without providing significant direction or defined limits does not enable the students to form any basis on which to effectively judge what that ability might be. At trial the Plaintiff testified as follows (p. 1403, ll. 20-25):
Q. All right. And I take it at no point in time had you asked Mr. Romanuik what particular procedure you should use in order to complete the back flip manoeuver?
A. No, I thought I had all the prerequisite skills and knowledge I needed to complete the back flip.
¶ 225 Earlier on in the trial in cross-examination the Plaintiff testified as follows (p. 1396, ll. 5-10):
Q. Did you ask Mr. Romanuik if it would be okay for you to try a back flip off the box horse?
A. I took it that it was okay from the demonstrations that had been shown beforehand.
Q. My question is did you ask Mr. Romanuik.
A. No, I did not.
¶ 226 I am also mindful of the testimony given by the Plaintiff in re-examination (p. 1422, ll. 10-25):
Q. My friend asked you something about did you feel you had enough knowledge to do this, the same as what Denise had done and you said: “I thought I had enough knowledge”.
A. That’s right.
Q. Did you have any knowledge from the day before that assisted you in this regard?
A. Knowledge from the demonstrations we had seen and the practicing that we had done.
Q. And was there anything in that that involved pushing down and often going backwards?
A. The break fall.
Q. And you had both seen that?
A. Yes.
Q. And you had done it?
A. That’s right.
¶ 227 The attitude of the class was competitive, aggressive and adventuresome – they would try virtually anything to secure a good mark and better their classmates. In this regard, Lance’s testimony was as follows (p. 1448, ll. 4-18):
Q. Did your teacher at any time tell you you could do certain exercises or you couldn’t? Did he set any limits on exercises?
A. Not necessarily, no.
Q. What do you mean by that?
A. He didn’t really say – put any restrictions on what we couldn’t do. It was just go out and do your best.
Q. All right.
A. Try to impress him.
Q. Why would you try to impress him?
A. Cause it was all based on – our mark was based on how well we did, how well he thought we did the exercises and what he thought was hard would get a better mark.
¶ 228 I am, however, mindful of Karen’s testimony to the effect that even though she was under the impression that she had to be creative in Romanuik’s class, she chose not to try a backflip off the box horse nor a forward roll over the box horse (1826, l. 25 to p. 1287, l. 10). Karen testified that Romanuik’s words of encouragement were not enough to make her do a forward roll over the box horse.
¶ 229 I am equally mindful of the testimony of the Plaintiff given in cross-examination (p. 1407, l. 15 to p. 1408, l. 7):
Q. And I take it that you didn’t feel that you were under any pressure by the other students to perform the exercise, did you?
A. No.
Q. You could have just walked away from the box horse if you wanted to?
A. I could have except for the fact that I was working on a routine where I would be compared to other students in the final analysis.
Q. My question was that you didn’t feel under any sort of pressure from the other students to do the back flip, did you?
A. Not peer pressure, no.
Q. And surely Mr. Romanuik hadn’t indicated to you at any time during the class either on April 22 or April 23 that he expected you to be able to perform the back flip, did he?
A. No, he expected us to work on our routines.
Q. Right.
A. And be creative without explicit instruction.
¶ 230 In order to reign in such zeal, his instructions had to be explicit – I find they were not.
¶ 231 These students were shown or observed inherently dangerous activities far beyond their level of competence and clearly outside the activities established in the Curriculum Guide. They were encouraged, under the guise of being “creative,” to replicate such activities.
¶ 232 There is contradictory evidence as to what part of Denise’s partial back salto Romanuik observed. Breault and Claude who were at the high bar station saw some or all of Denise’s partial back salto (1677). They testified that it was clear to them that Romanuik was also watching the exercise (1678). The evidence of Claude, Rhonda and the Plaintiff with respect to conversations they had with Romanuik after the accident, also indicate that he saw some, if not all, of Denise’s exercise. Breault was clear that Romanuik saw the entire exercise. His observation was made from a point standing next to Romanuik (1678).
¶ 233 Romanuik’s evidence is that he may well have spoken to Claude, Rhonda and the Plaintiff about Denise’s manoeuvre. However, he did not see Denise standing on top of the box horse nor did he see her perform a partial back salto. He only recalls her landing and was unsure of what kind of manoeuvre she had just performed.
¶ 234 In addition, I refer to Romanuik’s Examination for Discovery at p.123 where he was asked the following question (Read-in from the Examination for Discovery of Romanuik taken August 6, 1993, p. 2, ll. 1-4 (Transcript 201, ll. 6-12):
Q Did you tell any of the students that you saw Denise Fagnan doing anything and you were going to go over and stop that activity but then you turned your attention to the high bar and didn’t do it.
A Yes.
¶ 235 At trial, Romanuik denied having seen Denise standing on the box horse or performing the landing. The Transcript reveals that Romanuik only saw her feet landing on the crash mat and her hair flying off to the side (p. 3953).
¶ 236 I find that Romanuik did see a portion of Denise’s partial back salto and not just the landing. I make this finding relying on the evidence of the students at the high bar station who had the opportunity to see what Romanuik was able to observe. However, even if he observed only her landing, that alone should have caused him concern. He should have immediately stopped all activities and gone over and investigated. This becomes even more critical given his instruction on proper landings.
¶ 237 From the testimony of all of the high school physical education experts, if a teacher observes an exercise which causes him concern he must immediately stop the class, find out from the student what activity she did and if it was an inappropriate activity, reprimand the student and provide a warning to all of the other students not to perform that activity. Clearly that was not done in this case.
¶ 238 I find that Romanuik breached his duty to supervise. He positioned himself principally at the high bar and because of his equipment configurations, he could not adequately supervise his physical education class. He was aware or ought to have been aware that he had students in his class who had a penchant for “fooling around”. They also had a history of not following instructions, performing inherently dangerous activities, and in doing so, encouraging, be it intentionally or unintentionally, other students in the class to replicate such activities.
¶ 239 In addition, Romanuik was aware of the fact that the Plaintiff, Denise, Rhonda and Lisa were all good athletes and were very competitive, one with the other. As a result, he ought to have known that these students would push each other to higher levels of increased difficulty, especially since their marks were predicated on the level of creativity demonstrated. There is no question in my mind that to a student in Romanuik’s class, “creativity” meant a higher level of difficulty.
¶ 240 Also, I find that his direction to be “creative” in the development of their routines was of paramount importance and superceded the very limited cautions and warnings he gave them. This direction was clearly ingrained in their minds; creativity above all else, even safety.
¶ 241 All teaching experts testified at trial that the use of multiple stations in high school physical education gymnastic classes is appropriate and in fact desirable in order to maintain the students’ level of interest. However, their evidence also confirms that if multiple stations are used, all of these stations must be low risk or if there is one high risk station then the teacher must focus one hundred percent of his or her attention on that one station.
¶ 242 I find that the box horse station configuration and the mini-trampoline station were equally as dangerous as the high bar station. As a result they both required direct supervision which was not given, nor could it be, by Romanuik alone.
¶ 243 In reaching my conclusion, I must only be concerned with whether or not, in these particular circumstances, Romanuik’s judgment and actions satisfy the standard of care which the circumstances required when one relates the probability and the gravity of injury to the burden that would have been imposed on the teacher in taking certain actions or failing to take a particular action. I find that Romanuik’s conduct does not meet the required standard of care. The relationship between Romanuik and the Plaintiff was one that required Romanuik to take positive steps to avoid potential injury to the Plaintiff. Romanuik was required to take all reasonable measures to see that the Plaintiff did not, while she was under his care and control, engage in a pursuit which had an unreasonable risk of injury, or, failing that, his duty was to supervise and control the activities so as to reduce the risk to a reasonable level. Romanuik did neither.
D. Causation
1. The Law of Causation
¶ 244 Causation is established where the plaintiff proves on a balance of probabilities that the defendant has caused or contributed to the injury: Athey v. Leonati (1996), 140 D.L.R. (4th) 235 (S.C.C.); Snell v. Farrell (1990), 72 D.L.R. (4th) 289 (S.C.C.); McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.); Wickberg v. Patterson (1997), 145 D.L.R. (4th) 263 (Alta. C.A.).
¶ 245 Generally, the test for causation is the “but for” or sine qua non test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren (1971), 22 D.L.R. (3d) 277 (S.C.C.), Athey, supra. In certain circumstances where the “but for” test is unworkable, as in scientifically or medically complex cases, the courts have recognized that causation may be established where the defendant’s negligence “materially contributed” to the occurrence of the injury and that this need not be proved to a rigid degree of scientific precision: Snell, supra; Myers, supra; McGhee, supra.
¶ 246 In addition to proving cause in fact, the plaintiff has the burden of proving proximate or legal cause, which requires that the damage not be too remote a consequence of the negligent act. The test for proximate cause was aptly described by Picard, J.A. in Wickberg, supra, as the “reasonable foreseeability of probable or possible risks … often shaped by policy considerations” (at p. 266). The issue of proximate cause does not arise in this case, nor was it argued.
2. Breaches of the Standard of Care to be Tested for Cause in Fact
¶ 247 I have found, in the previous section relating to whether the Defendants breached the requisite standard of care, that Romanuik’s several actions and omissions failed that standard. The following are, in my view, the most important: Romanuik failed to ascertain or assess the gymnastic background and ability of each of his students before he allowed them to undertake certain manoeuvres without his direct supervision. Romanuik permitted students by his inaction and by creating an environment in which they were to be “creative” and marked on that creativity, to attempt activities for which they had not been properly trained nor received appropriate instructions on progressions. It was Romanuik’s responsibility to ensure the students did not attempt exercises unsupervised beyond their level of training and ability. Romanuik’s instructions and supervision were inadequate on several levels, including failure to warn the students of the inherent dangers of the activities. He also failed to teach them the need to progress through a sequence of levels of difficulty before attempting the more difficult manoeuvres. Romanuik instructed the set-up of equipment configurations with constituent elements that exposed the students to an unreasonable risk. In addition, the set-up of three stations prevented Romanuik from directly and adequately supervising all of the students. Romanuik failed to be clear or precise about safety precautions, both as regards the equipment as well as the various types of manoeuvres which were demonstrated to the students.
3. The Defendants’ Position on Cause in Fact
¶ 248 Counsel for the defendant made the following submissions (40 – 42):
The position of the defendant is this — Darcy Romanuik is not liable for the plaintiff’s injuries. The plaintiff of her own volition did a vault that she was not supposed to do. She hadn’t been taught the manoeuvre. She knew that spotters would not be there to help her, but she did it anyways.
…
The plaintiff has two different liability theories, it seems, and one is a bit of a shotgun approach. Everything that happened in the class was wrong – the spotting was wrong; the equipment was wrong; the stations were wrong; the progressions were wrong; even the warmups were wrong. So the defendants must be negligent.
But in order to ground liability, there has to be a causal connection between those things and what happened to the plaintiff; the damage suffered by the plaintiff. The plaintiff wasn’t injured because of the mats or the spotting or the progressions or how high the bar was. These are proverbial red herrings.
The defendants’ position is that, firstly, the allegations are incorrect – the allegations about equipment and spotting and warmup routines.
And, secondly, in any event, there’s no causal connection whatsoever between any of those things and what happened to the plaintiff. She was injured because she did a vault beyond her ability and in circumstances that were unusual and outside the control of Mr. Romanuik.
¶ 249 It is the Defendants’ position that the actions and omissions of Romanuik, which the Plaintiff claims were instrumental to her accident, were causally irrelevant to the accident because the Plaintiff exercised her own free will in attempting a manoeuvre beyond her ability and exercised that will beyond Romanuik’s ability to control her.
4. The Hypothetical Question
¶ 250 The question now before me is whether or not, despite Romanuik’s breaches of the standard of care, the Plaintiff would have performed the manoeuvre anyway; in other words were the breaches by Romanuik causally operative in respect of the accident.
¶ 251 When proving factual causality, particularly in cases where one of the elements of the negligence alleged is the defendant’s failure or omission to discharge a duty (for example to warn), it is necessary to embark on a hypothetical inquiry as to the course of conduct the plaintiff would have taken had the defendant properly discharged that duty. In the case at bar, the question is whether or not the Plaintiff would have attempted the manoeuvre had Romanuik properly discharged his duty and met the requisite standard of care.
¶ 252 The correct methodology for answering the hypothetical inquiry was recently set out by the Supreme Court of Canada in Smith v. Arndt et al. (1997), 148 D.L.R. (4th) 48. This was a medical negligence action where the plaintiff said that had she been given proper informed consent, it would have caused her to make a different treatment choice which would have resulted in her avoiding the injury. In Arndt the plaintiff contracted chicken pox while pregnant and said that if she had been properly warned about the risk of congenital difficulties to the fetus she would have terminated the pregnancy which ultimately produced a disabled child. McLachlin, J. addressed the issue of the hypothetical question as follows (at p. 64):