• Graduate of the University of Alberta, Bachelor of Commerce degree with Distinction, 1991
• Graduate of the University of Alberta, Bachelor of Laws degree, 1994
• Admitted to the Alberta Bar, 1996
• Practiced primarily in the area of Insurance Defence Litigation with Parlee McLaws, 1996-1998
• Practiced with the Alberta Department of Justice – Civil Litigation, 1998-2007
• Research Paper published in Health Law Review, 1994
• Member, Alberta Civil Trial Lawyers Association (ACTLA)
• Practices exclusively in the area of Personal Injury Law

joliver@cummings.ab.ca

Main Entry: con’Esor’Etium
Pronunciation: k&n-’sor-sh(E-)&m, -’sor-tE-&m \&\ as a and u in abut

Etymology: Latin, fellowship, from consort-, consors
Date: 1829
1 : an agreement, combination, or group (as of companies) formed to undertake an enterprise beyond the resources of any one member
2 : ASSOCIATION, SOCIETY
3 : the legal right of one spouse to the company, affection, and assistance of and to sexual relations with the other

© 1998 by Merriam-Webster, Incorporated

The cause of action known as “loss of consortium” has been codified in Alberta by Section 43 of the Domestic Relations Act, c. D-37 R.S.A. 1980 which reads as follows:

43(1) When a person has, either intentionally or by neglect of some duty existing independently of contract, inflicted physical harm on a married person and thereby deprived the spouse of that married person of the society and comfort of that married person, the person who inflicted the physical harm is liable to an action for damages by the married person in respect of the deprivation.

(2) The right of a married person to bring the action referred to in subsection (1) is in addition to, and independent of, any right of action that the spouse has, or any action that the married person in the name of the spouse has, for injury inflicted on the spouse.

While the cause of action of “Loss of consortium” is often trivialized or overlooked altogether, the best place to begin when assessing these claims in Alberta is the case Woelk v. Halvorson [1980] 2 S.C.R. 430, where McIntyre, J. states as follows:

…In my opinion, it is not open to the Court to treat the new cause of action as trivial and deserving of only token award. It is not open to the Courts to consider that the Legislature of Alberta in passing s.35, (now s.43 of The Domestic Relations Act, RSA 1980) intended to preserve the old jurisprudence, which had gone far to eliminate the right and render damage awards insignificant. I am not prepared to accept such an approach. It is my view that the Legislature having created the right of the wife to damage and having omitted any restrictions on damage awards, the Courts must endeavour to assess the damage realistically, according to the evidence of each case. The Legislature did not intend, in my view, to perpetuate an action leading only to insignificant recovery nor can it be said that it regarded the recovery as anomalous.

It is clear that in Alberta the cause of action of loss of consortium is not a derivative claim as in many other Provinces. The claim belongs to the spouse of the injured party and it is clearly and unequivocally their right to make a claim assuming they can prove damages resulting from an injury to their spouse. As with any tort claim each case must be decided on its own facts and with reference to the effects that the injury has had on the family, and in particular, the spouse.

The difficulty with most of the cases, which will be briefly summarized below, is that the Courts have not found sufficient evidence to support the claims, or alternatively, have not found sufficient evidence to award substantial damages. This may be partly due to the fact that the facts of the cases do not support higher damages. Or, in some cases, it may have to do with the fact that the loss of consortium claim is treated as a “throw in” cause of action by counsel, and hence insufficient evidence is lead.

To date, the indexed value of Alberta loss of consortium claims has yet to exceed the range of $25,000.00. Given the strength of the statements made in the Woelk v. Halvorson case, and with thorough preparation to present evidence on the key elements of the cause of action, I believe there are instances where an Alberta Court may grant substantially higher damages than Alberta has seen to date. In severe and permanent head injury cases, or cases of paraplegia or quadriplegia, where the injured party is no longer functioning mentally or physically to the same capacity as prior to the accident, a Court might award substantial damages. That is, if the correct evidence is lead.

The following are important elements that should be proven to the Court to establish this cause of action, and the damages flowing from it:

1. The injured party suffered injury as a result of a third parties¡¦ negligence.

2. The injuries are the cause of a loss of comfort and society within the marital relationship. This may seem trite, but if you do not tie the effect the tortious act has had on the relationship to the accident in question, the court will not award damages.

3. There is a substantial reduction or extinction of marital relations. Though there is more to the claim than a reduction in sexual relations, it is a very important factor taken into consideration by the courts.

4. The nature of the relationship between the spouses has been dramatically changed as a result of the injuries suffered. The nature and extent of the change in the relationship should be fully explored in evidence. The pre-accident relationship status should be compared to the post-accident status. If a husband after an accident is more akin to the third son the family never wanted, the damages should be substantial.

5. Though it is not necessary that the loss of comfort and society within the relationship be total, it is important that the injury, resultant damage and the effect on the relationship is clearly documented. It is clear from the cases that partial loss of consortium is compensable.

The practical difficulties with loss of consortium claims are two-fold. Firstly, it is not always desirable to have the injured Plaintiff¡¦s spouse examined for discovery because it opens another avenue for the Defence to collect evidence under oath about the injured party. Secondly, the injured party and the spouse are usually too embarrassed or too shy to proceed with these claims to the extent needed to prove the claim properly. If one decides not to pursue a loss of consortium claim for tactical reasons, however, one must query whether it puts the lawyer in a conflict of interest situation.

The following are some recent Alberta cases with brief summaries:

1. Benstead v. Murphy (1992) 7 Alta. L. R. (3d) 38, Varied (1994) 23 Alta. L. R. (3d) 251 (C.A.). – The husband’s loss of consortium case was dismissed on the basis of him having signed a general release for his own injury damages prior to the issuance of Statement of Claim. The wife’s loss of consortium was combined with loss of housekeeping capacity in the Court’s assessment of the general damages.

2. Quinton v. DeBoice (1997) 7 Alta. L. R. (3d) 38 – $10,000.00 was awarded to the spouse for loss of consortium but her loss of income claim was rejected as being too remote.

3. Phillips v. Rost (1996) 185 A.R. 241 – This case provides a good discussion by Moreau, J., on the current law in Alberta. $10,000.00 was awarded to the wife for partial loss of her spouse’s society and comfort.

4. Joyce v. Canadian Pacific Hotels (1994) 161 A.R. 53 – The loss of consortium claim was dismissed in this case because there was no evidence that the inability of the couple to have marital relations had any impact on the couple’s relationship and the comfort that the injured husband provided to his wife.

5. Bell v. Tilden Car Rental Inc. (1996) Alta. L. R. (3d) 152 – The Alberta Court of Appeal upheld the dismissal of a loss of consortium claim by the Trial Judge because the couple had a bad marriage prior to the accident.

6. LaPointe et al v. Keefe Estate (1986) 72 A. R. 1 – $15,000.00 was awarded to the spouse in this case.

7. Brouwer v. Grewal (1995) 168 A. R. 342 – In this case $5,000.00 was given to each the husband and the wife for loss of consortium when both individuals were involved in the motor vehicle accident.

8. Jessal v. Maxwell (1995) 167 A. R. 258 – $750.00 was awarded to the spouse for loss of consortium.

9. O’Hara et al v. Belanger (1989) 69 Alta. L. R. (2d) 158 – In this case the loss of consortium award was included in the overall general damage claim as the Plaintiff claiming Loss of consortium was also a passenger in the vehicle. This case dealt with a fatality situation where the Plaintiff’s spouse was killed. The Court makes a statement that the Domestic Relations Act does not purport to create a cause of action for spouses in a fatality except when there is a period of time between the date of the accident and the death.

10. Lakusta v. Fischer [1997] A.J. No. 84 – $5,000.00 was awarded to the spouse.

11. . Labonte v. Sowers (1994) 158 A.R. 350 – The spouse was awarded $4,822.88 for loss of consortium.

12. Gilchrist v. Oatway (1995) 168 A.R. 56, affirmed (1997) 209 A.R. 225 – $5,000.00 was awarded to the spouse for loss of consortium.

13. Smith v. Armstrong (1991) 123 A.R. 285 – The spouse was awarded $3,000.00 for loss of consortium.

14. Lawrence v. Smith (1991) 124 A.R. 288 – An 18-month loss of consortium claim resulted in a $5,000.00 award to the spouse.

15. Campbell v. Calgary Power (1987) 70 A.R. 161 – The spouse was awarded $15,000.00 for loss of consortium.

16. Lim v. Hyndman Transport (1992) 119 A.R. 19 – $5,000.00 was awarded to the spouse in this case.

17. Haydu v. Calgary (City) and Sano (1992) 116 A.R. 161 – The court dismissed the claim for loss of consortium because the injured Plaintiff was responsible for the accident. Justice Lomas went on to say that if he is wrong even though part of their loss of sexual relationship was because the spouse did not want to hurt his wife, he also had a heart condition which contributed to the loss and the Judge failed to make an award.

Conclusion

In summation, in Alberta loss of consortium is a separate cause of action, belonging to the spouse of the injured party. As such, although one of its very elements is the injury to another, it is not properly considered a derivative claim, nor is it in the strict sense a separate head of damage. To date, Alberta courts have been very conservative in awarding damages. However, given the Supreme Court¡¦s direction that this cause of action not be trivialized, it is the writer¡¦s opinion that in the right case substantial damages might be achieved with proper attention to the evidence which forms the foundation for the claim.

Journal Staff Writer

Edmonton – School administrators should receive a new set of safety guidelines in January to help them avoid sports injuries like the one that resulted last week in a $4-million award to a young woman paralysed in a gymnastics accident.

Alberta Education, Alberta Health and Alberta Community Development, in partnership with a consortium of physical education and injury control organizations, are nearing completion on a document called Alberta Physical Education Safety Guidelines.

The document is meant to provide a consistent safety standard for physical education activities that can be applied by local school boards, said Margaret Schwartz, special projects co-ordinator for Schools Come Alive, one of the contributing organizations.

“We currently have safety guidelines in use across the province,” Schwartz said Thursday.

Those guidelines are too general, however, she said. They didn’t deal with the specific risks of 77 activities as diverse as archery and water polo.

“The new guidelines will incorporate much of what’s in the old ones but they’ll be specific to each activity.”

An Edmonton judge recently condemned a Westlock school for not ensuring the safety of gymnastic student Margaret MacCabe.

Seven years ago, MacCabe suffered a devastating spinal injury while attempting a back flip during a gymnastics class.

Schwartz said its authors didn’t start from scratch on the new guidelines, which will hopefully assist teachers in preventing injuries.

“Basically, we’re taking an Ontario document and revamping it and combining it with our own documents,” Schwartz said.

“Alberta Education’s legal committee will now take those guidelines and make sure they reflect everything necessary.”

The guidelines won’t constitute the last word on student safety, however. They’ll be added to by local school divisions.

“They will probably be the minimum acceptable standard in each school,” said Schwartz. “School boards will have to be more stringent.”

But even if school divisions were to achieve perfection in their own guidelines, that still won’t guarantee accident-free athletic activities, Schwartz said.

“Accidents will still occur in our schools, just as they do on our streets. You can put a speed limit on the roads but when people break those speed limits, what can you do?”

Following the MacCabe settlement, some people feared the size of the award would spell the end of gymnastics in school. Schwartz doesn’t think it will, or should.

“It would be sad for the children who like to twist and turn and hang and rotate and have all those wonderful experiences that gymnastics provide.

“That would be like throwing out the baby with the bathwater.”

- Edmonton Journal

Legal Affairs Writer

Edmonton – When Margaret MacCabe raced out to warm up for a high-school gymnastics class seven years ago, she didn’t know it would be the last run of her life.

Minutes later, she tried a back flip off a box horse and came straight back down on her head, slipping off the edge of the crash mat and on to the floor.

“She called out right away,” a fellow student recalls. “She knew that something was wrong. She said that she couldn’t feel her arms, she couldn’t feel her legs, was she paralyzed, was she paralyzed — and she just kept repeating that.”

The injury to her spinal cord left the athletic 16-year-old a quadriplegic, with some use of her arms.

This week, an Edmonton court awarded her an estimated $4 million in damages against her teacher Darcy Romanuik and the Westlock school district, now part of Evergreen Catholic Separate Regional Division No. 2.

The award looks big, MacCabe says, but it has to last a lifetime.

“I’m quite healthy now, but I can’t forecast the future. It will be a little less stressful to know I can lead a comfortable life and be able to afford the care I need, not just the bare bones.”

Now 23, MacCabe lives in her own apartment near the university, where she’s working on a master’s degree in health promotion.

She needs attendants every day for 6 1/2 hours to help her get ready for school and for bed, with cooking and cleaning and with her bathroom routine.

MacCabe’s often tired and in pain, but you’d never know it. She works out at the gym and wheelchair races, though she says she’s “more of a wheeler than a racer.”

She’s active on committees and was recently appointed to the Premier’s Council on the Status of Persons with Disabilities.

MacCabe has a boyfriend and plans to have children one day. And now, she can afford to build a wheelchair-accessible house.

She says she didn’t feel much animosity toward Romanuik, until the trial. “His assertion that this whole process has been traumatic for him seemed very interesting to me,” she says carefully. “He goes home every day to the same life as he had before the accident, but I live mine very differently.

“Before, I knew exactly what I was going to do with my life, but after, it was hard not knowing what the future would hold.”

- Edmonton Journal

Paying the price for a lapse in safety

Kerry Powell and Paula Simons

Journal Staff Writers

Westlock – A judge has awarded an estimated $4 million in damages against a Westlock teacher and his school district for a gymnastics accident that paralyzed a 16-year-old girl.

Justice Cecilia Johnstone’s ruling may mean major changes to the way gymnastics and other subjects are taught in Canadian schools.

And in a ground-breaking move, Johnstone defied legal precedent and based her award for Margaret MacCabe’s lost income on the assumption that women should earn as much as men.

MacCabe, 23, broke her neck when she flipped backwards off a box horse and landed on her head during a Grade 11 gym class at St. Mary’s Catholic school in Westlock.

The judge said teacher Darcy Romanuik failed in his duty to supervise the class and allowed students to perform dangerous moves that were too advanced for their limited abilities. He set up equipment improperly, she said, and didn’t warn students about its potential dangers.

“A teacher’s role is to place restrictions or limits on students to ensure that they are not exposed to an unreasonable risk in the performance of activities of an inherently dangerous nature or activities that they have not been properly trained to do. … Whatever restrictions Romanuik may have placed on the students, they were insufficient.”

Lawyers for the school district argued that MacCabe exercised her own free will in attempting a move beyond her ability and beyond Romanuik’s control.

But Johnstone ruled MacCabe only attempted the back flip because of the competitive, aggressive atmosphere Romanuik created in the class.

MacCabe’s lawyer, Ron Cummings, said the case should send a clear message that gymnastics equipment such as springboards, box horses, trampolines, and high bars have no place in schools.

“This has to be got across to every phys ed. teacher in Canada. They have to stop using any of this equipment — yesterday. … They can’t take these chances with our children and they’ve been doing it.”

Cummings said only specialty gymnastics clubs provide enough skilled supervision to make the use of such equipment safe.

Mel J. Malowany is the super intendent of the Evergreen Catholic Separate Regional school division, which inherited the MacCabe case when the Evergreen division merged with Westlock six months ago.

Malowany said the decision would prompt school boards across the province to rethink their gymnastics programs.

“It’s just frightening. Can you imagine what it does to a science teacher with a class of 25 students working with Bunsen burners or chemicals? Unfortunately, it’s going to impact every activity. I think a lot of teachers may be quite edgy, wondering how much they can control.”

The MacCabe case could also have an impact on the way courts calculate the damages awarded to women for lost income.

Historically, judges have given smaller awards to women, arguing that women usually earn less because they take time off to have children and, on average, they receive lower salaries.

Johnstone ruled that practice violates the constitutional right to sexual equality.

“How can the court embrace pay inequity between males and females? I cannot apply a flawed process which perpetuates a discriminatory practice.”

Barbara Billingsley, who teaches insurance law at the University of Alberta, said the judge’s decision to peg MacCabe’s compensation to a man’s pay scale could have a “significant impact.

“We now have a judge saying women should not be penalized, just because, in reality, they tend to earn less than men.”

Billingsley predicts insurance companies, and their lawyers, will be watching closely, to see if that part of the judgment is appealed.

Eleanor Olszewski, who acted for Romanuik and the Evergreen school division, said it was too soon for her to comment on the case.

“It’s a very lengthy decision, and we’re still in the process of discussing it with our client.”

The lawyers, and their economists, are still calculating the precise value of the court’s award.

- Edmonton Journal

Counsel

• Ronald G. Cummings, Q.C., Beverly J. Larbalestier, Timothy M. Sax, Warren R. Stengel, for the plaintiff.
• Eleanor A. Olszewski, Sandra L. Corbett, for defendants.

JOHNSTONE J.:—
TABLE OF CONTENTS
I. INTRODUCTION

A. Issues
1. Liability
2. Quantum

II. PRELIMINARY MATTERS

A. Browne v. Dunn Argument

III. FACTS AND BACKGROUND

A. Monday, April 22, 1991
B. Tuesday, April 23, 1991

IV. LIABILITY

A. Interpretation of the Law of Negligence 1. Relevant Legislation
B. Interpretation of the Common Law
1. Was a Duty of Care Owed?
2. What is the Appropriate Standard of Care?
3. Was the Standard of Care Met?
C. Application of the Evidence to the Four
Thornton Criteria
1. Appropriate Activity
(i) High Bar Station
(ii) Mini-Trampoline Station (iii) Springboard/Full Height Box Horse/Crash Mat Station
2. Proper Progressions (Progressively Coached
and Trained to do an Activity Properly to
Avoid Danger)
3. Equipment Configuration
(i) Springboard/Full Height Box Horse/Crash Mat
(ii) Mini-Trampoline/Crash Mat (iii) High Bar/Tumbling Mat Station
4. Supervision
D. Causation
1. The Law of Causation
2. Breaches of the Standard of Care to be
Tested for Cause in Fact
3. The Defendant’s Position on Cause in Fact
4. The Hypothetical Question
5. Application of the Hypothetical Question
to the Thornton Criteria
(i) The Causal Impact of Permitting Inappropriate Activities
(ii) The Causal Impact of Failing to Ensure Progressive Training (iii) The Causal Impact of the Equipment Configurations
(iv) The Causal Impact of Incorrect Supervision
6. The Cumulative Effect of the Defendant’s
Breaches
E. Voluntary Assumption of Risk
F. Contributory Negligence

V. ASSESSMENT OF DAMAGES

A. Non-pecuniary Damages
B. Pecuniary Damages
1. The Plaintiff’s Typical Day
2. Extra Curricular Activities
3. The Plaintiff’s Medical Condition (i) Spasms
(ii) Bowel and Bladder Complications (iii) Ectopic Calcification and Hip Flexion Deformities
4. Personal Care Attendance
5. Life Expectancy
6. Employment
7. Probability and Duration of Gainful
Employment
8. Dr. Krause’s Study
9. Pregnancy

VI. LOSS OF INCOME

A. Employability Potential
1. Pre-injury Analysis
2. Post-injury Analysis
(i) The Plaintiff’s Educational Motivation
(ii) The Plaintiff’s Vocational Interests
(iii) The Plaintiff’s Practicum
(iv) The Plaintiff’s Perceptions as to her Employability
(v) The Amount of Time the Plaintiff Could Work Post-Injury
(vi) How Long the Plaintiff Could be Gainfully Employed
(vii) The Plaintiff’s Employment Opportunities
3. Determination of Employability
4. Wage Statistics
B. Determination of Loss
1. Pre-trial Loss of Income
2. Loss of Future Income
(i) Pre-injury
(a) Pre-injury Contingencies Non-participation Contingency (aa) Positive Contingencies Fringe Benefits (bb) Negative Contingencies
(ii) Post-injury
(iii) Discount Rate
(iv) Income Tax Gross-up
(v) Conclusion

VII. COST OF FUTURE CARE

A. Summary of Evidence of Ms. Lancaster And Ms. Kirker
B. Methodology
C. General Assessment Rules
D. Housing Accommodations
E. Miscellaneous Items
- Scald Guard and Pressure Balancing Valve
- Lever Taps
- Hand-Held Shower Device
- Counselling
- Wheelchair Including Sports Wheelchair
- Primary Chair
- Back-Up/Stand-By Chair
- Electric Powered Chair
- Racing Wheelchair
- Camelback Hydration System
- J-2 Cushion
- Replacement Cover
- Ramps
- Backpack
- Ram Porch Lift
- Exercise Equipment
- Attendant Care
- Homemaker
- Handyma
- Yard Maintenance
- Nanny
- Physiotherapy
- Van
- Rycon Power Lift and Elain-Ann Lift
- Power Door Operator to Use with Platfor Lift
- Door Opener and Rear Switch
- Remote Start
- Power Wheelchair Tie Down
- Lower Floor
- Raised Roof for Ventilation, Cut Out Running Boards and Side Entry Door
- Cell Phone
- Membership with the Alberta Motor Association
- Handicapped Parking Placard
- Clothing
- Bathing
- Raised Padded Toilet Seat
- Commode Chair
- Bath Chair
- Apartment Lever Taps
- Apartment Hand-Held Shower Device
- Bath Lift
- Grab Bar
- Padded Transfer Bath Bench
- Foot Brush
- Slip-X Bathmat
- Long-Handled Back Brush
- Chix Absorbent Cloths
- Lubricating Jelly
- Savodil
- Uri-Kleen
- Robinson #14 French Catheters an Additional Catheterizations
- Foley Catheter
- Leg Bags
- Catheter Tray
- Chem Strips
- Baby Powder
- Blue Pads/Incontinent Liners
- Sterile Gloves
- Non-Sterile Gloves
- Stainless Steel Slipper Bed Pan
- Basin
- Mirror
- Digital Bowel Stimulator
- Lotion
- Digital Thermometer
- Padding
- Debrison, Pharmacia 60 mg
- Kenacomb Cream
- Xylocaine Gelee, 2%
- Bactrigras Antiseptic Dressing
- Hair Brush with an Attached Velcro Handle
- Sliding Shelves
- Adjustable Bed
- Intercom System
- Zim Jar Opener
- Electric Can Opener
- Swedish Knives
- Gordon Peeler
- Extended Reacher
- Food Processor
- Food Preparation Board
- Kitchen Roll-About
- Adjustable Fold-Away Cart with Casters
- Quad-Quip Meat Cutter Knife
- Leather Wheelchair Pushing Gloves
- Pen Splint
- Heart II Chair
- Two Extra Pillows
- Dycem Matting
- Transfer Board
- Over-the-Bed Table Tray
- Cordless Speaker Phone
- Large Size Bath Sheets
- Additional Television Set
- Two Extra Sets of Sheets
- Lever Key Holder
- Life Call of Canada System
- Medication
- Computer Equipment
- Specialized Software
- Tuttle Environmental Control System

VIII. COSTING OF FUTURE CARE AWARDS
IX. SPECIAL DAMAGES

A. Subrogated Claims
1. The Claim for Alberta Health
2. The Claim for Services Provided by the Government of Alberta: Handicapped Children’s Division
B. Pre-trial Special Damages
C. Care Provided by Family Members up to Trial (i) Mother’s Claim for Compensation (ii) Father’s Claim for Cost of Care/Housekeeping
(iii) Mr. Conquest’s Claim for Cost of Care/Housekeeping

X. MANAGEMENT FEE
XI. COSTS

I. INTRODUCTION

¶ 1 On April 23, 1991, the Plaintiff, Margaret Anne MacCabe went for a warm-up run with her classmates. Unfortunately it was to be the last run of her life. Less than halfway through her second gymnastics class, Margaret MacCabe attempted a gymnastic manoeuvre from a box horse onto a crash mat. She failed in her attempt and as a result sustained a spinal cord fracture rendering her quadriplegic.

¶ 2 The Plaintiff alleges that the Defendants, Westlock Roman Catholic Separate School District No. 110 and her teacher, Darcy Romanuik (collectively hereinafter referred to as the “Defendants”), are solely responsible for her injury. She claims compensatory damages approximating $7,100,000.
A. Issues

1. Liability

(a) Do the Defendants owe a duty of care to Margaret Anne MacCabe (the “Plaintiff”)?
(b) If a duty of care existed, what standard of care was required?
(c) Was that standard of care met? Specifically:

(i) Did Darcy Romanuik (”Romanuik”) exceed his own abilities or those of his students or exceed the exercises mandated by the Junior-Senior High School Curriculum Guide for Physical Education (Grade 7-12)(1988 Edition) (the “Curriculum Guide”) in the set-up, utilization, or configuration of the equipment, or in either directing, or alternatively acquiescing in, the exercises demonstrated or attempted either by the Plaintiff, or in the Plaintiff’s presence on April 22 and April 23, 1991?
(ii) And further:

(a) was the exercise performed by the Plaintiff on April 23, 1991 suitable to her age and condition, both mental and physical?
(b) was the Plaintiff progressively trained and coached to perform the exercise properly in order to avoid danger?
(c) was the equipment adequate and suitably configured or arranged?
(d) was the exercise, having regard to its inherently dangerous nature, properly supervised?

(d) Was there a voluntary assumption of risk by the Plaintiff?
(e) If the Defendants are liable, is the Plaintiff contributorily negligent?

2. Quantum

¶ 3 If liability is established, what is the quantum of damages to be awarded?
II. PRELIMINARY MATTERS

A. Browne v. Dunn Argument

¶ 4 At the end of the trial the Defendants argued that I should rule the admissions made by Romanuik to several of his students and to the Plaintiff subsequent to the accident inadmissible because of the Plaintiff’s failure to cross-examine Romanuik relative to these admissions during the course of the trial.

¶ 5 The Defendants submit that based upon the rule established in the seminal case of Browne v. Dunn (1893), 6 R. 67 (H.L.), the Plaintiff is obliged to cross-examine Romanuik on the alleged admissions if the Plaintiff intends to rely on such admissions (which she clearly does) as a basis for her case.

¶ 6 Browne v. Dunn establishes that if a cross-examiner “intends to impeach the credibility of a witness by means of extrinsic evidence, he must give the witness notice of his intention … [and] the witness must be confronted with the evidence in cross-examination while he or she is still in the witness box” (Sopinka, Lederman, Bryant, The Law of Evidence in Canada, Toronto, Butterworths 1992 at p.876).

¶ 7 It is worthy to note the relevant passages oft quoted from Browne v. Dunn espousing this rule or, as some have categorized it, principle. The first is taken from Lord Hershell L.C. at pp.70-71 which establishes the principle of “fair advocacy”:
… it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth. I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

¶ 8 Further, Lord Halsbury states at pp. 76-77 as follows:
… with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which the trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.

¶ 9 Lord Morris states the second more flexible principle at p. 79:
… there is another point upon which I wish to guard myself, namely, with respect to laying down any hard-and-fast rule as regards cross-examining a witness as a necessary preliminary in impeaching his credit. In this case, I am clearly of opinion that the witnesses, having given their testimony, and not having been cross-examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, and with the fact of the retainer having been given, it was impossible for the plaintiff to ask the jury at the trial, and is impossible for him to ask any legal tribunal, to say that those witnesses are not to be credited. But I can quite understand the case in which a story told by a witness may have been of so incredible and romancing of character that the most effective cross-examination would be to ask him to leave the box. I therefore wish it to be understood that I would not concur in ruling that it was necessary, in order to impeach a witness’s credit, that you should take him through the story which he had told, giving him notice by the questions that you impeached his credit.

¶ 10 To understand the status of Browne v. Dunn in Canadian law, it is important in my determination to review its application by our Canadian Courts. From the outset, I note that the British Columbia Court of Appeal in R. v. MacKinnon (1992), 72 C.C.C. (3d) 113 held that the rule in Browne v. Dunn is a rule of practice not a rule of law; put simply, a procedural not a substantive rule. However, in the recent decision of Stewart v. Canadian Broadcasting Corporation (1997), 150 D.L.R. (4th) 24 (Ontario Court of Justice (General Division)), Macdonald, J. goes further and says that Browne v. Dunn does not establish a rule of law but rather establishes two defining principles, in essence two different versions of the same theme with one version being more flexible than the other.

¶ 11 The Supreme Court of Canada first adopts the fair advocacy principle of Browne v. Dunn in Peters v. Perras et al. (1909), 13 Alta. L.R. 80. Duff, J. speaking for the majority, holds that it applies in a case where the pleadings are silent as to the intention of the respondents to impeach the credibility of the appellants and there is no opportunity given to the witnesses for the appellant to explain or qualify the facts or conduct on which the respondents base their attack of the veracity or honesty of those witnesses.

¶ 12 In Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759, the Supreme Court again address the applicability of the principle in Browne v. Dunn. In upholding the decision of the British Columbia Court of Appeal, the Court clearly establishes that the principle in Browne v. Dunn is not absolute, and the extent and manner of its application shall be determined by the trial judge considering all of the circumstances of the case. The Alberta Court of Appeal embraces this principle in Calmont Leasing Ltd. v. Kredl (1995), 30 Alta. L.R. (3d) 16 (appeal and cross appeal dismissed). The Defendants in the case at bar have no quarrel with this interpretation of the principle.

¶ 13 The recent case of Stewart, supra, provides an excellent review of the applicability of the principles enunciated in Browne v. Dunn. In Stewart, Edward Greenspan, a criminal defence lawyer, had acted for a plaintiff in a notorious criminal trial. Some years subsequent to this, Greenspan, in his capacity as a television producer for the Canadian Broadcasting Corporation, used the facts of the plaintiff’s case for a “Scales of Justice” program. The plaintiff sued Greenspan, inter alia, for breach of fiduciary duty and was successful.

¶ 14 In the course of the trial Macdonald J. required counsel to deliver written submissions respecting the role of defence counsel at a sentencing hearing. He indicated that he was prepared to draw negative inferences and make findings with respect to Greenspan’s conduct or credibility. Greenspan responded by moving for a mistrial. His counsel argued the Browne v. Dunn principle, stating that it would be unjust to make any finding or draw any inference with respect to his conduct or credibility because he had not previously been questioned with respect to these findings or inferences at trial and thus had not been given an opportunity to testify and provide appropriate explanations. Macdonald J. dismissed the mistrial motion, after an extensive review of the Canadian jurisprudence relative to the principles enunciated in Browne v. Dunn. He found that the principle was one designed to accord fairness to both the witnesses and the parties to the action. It was not absolute. The extent and manner of its application was to be determined by the trial judge considering all of the circumstances of the case.

¶ 15 Further, Macdonald, J. held that the test of whether there was sufficient notice was an objective one. This objective test, however, did not provide a party or a witness with a guarantee that during their examination the opposing counsel would or would not question them with respect to other evidence which contradicted or conflicted with their testimony. Therefore, Macdonald, J. concluded at pp.184-185:
In the result, it may well be necessary for each party to a civil action to protect his or her own interest including credibility by addressing during examination-in-chief issues which, in all the circumstances of the case, are reasonably foreseeable as arising. In my opinion, this is consistent with Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969 where Lord Mansfield stated at p.970 E.R.:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

¶ 16 The principle of Browne v. Dunn may not be relied on when the party has clear notice of the full case he must meet prior to his testifying in the witness box: United Cigar Stores Ltd. v. Buller & Hughes, [1931] 2 D.L.R. 144 (Ont.S.C.(A.D.)); Regina v. Verney (M.) (1993), 67 O.A.C. 279 (Ont.C.A.) and Regina v. M.L.W. (1995), 82 O.A.C. 397 (Ont.C.A.).

¶ 17 Two recent decisions of our own Court of Appeal have also dealt with this issue. The first is Martin v. McCoy, (13 May 1993) Calgary 12460, A.J. No. 405 (Q.L.), an appeal from a judgment involving a two car collision on an Alberta highway. The trial judge disbelieved the plaintiff/appellant and found that his evidence was “virtually a fabrication”. On appeal, the appellant submitted that by virtue of the respondent’s failure to cross-examine the appellant on certain facts, the trial judge was not entitled to make such a finding of the lack of credibility on the part of the appellant. The Court of Appeal, without referring to the principle in Browne v. Dunn, held that given all the parties were examined for discovery, and knew the broad outline of the case they had to meet, the appellant should have known that the veracity and accuracy of the evidence he had given was in dispute. Accordingly, the appeal was dismissed.

¶ 18 Similarly, in the decision of our Court of Appeal in Janiten v. Bibaud (1997), 209 A.R. 70, the Court once again dealt with what Justice McClung described as the “so-called rule in Brown [sic] v. Dunn”. In that case, a witness, Taylor, had testified for the defence as to certain conversations with the plaintiff that undermined the plaintiff’s credibility. The Court of Appeal found that the plaintiff had every opportunity to recall Mr. Taylor during the trial proper but declined to do so.

¶ 19 When the trial concluded, the trial judge reserved his judgment. Within ten days thereof, the plaintiff made an application to reopen the case and call additional evidence. The trial judge agreed to reopen, but would only permit the plaintiff to take the stand to explain the contents of the conversation from his perspective. The trial judge declined to hear the witness Taylor.

¶ 20 On appeal, the Court of Appeal found that the decision to recall the witness Taylor was a decision “steeped in the trial judge’s discretion”. It found there was no overriding or reversible unfairness about what had happened and that the Browne v. Dunn principle had no application to the case. These two cases confirm that the determination on this issue is best made by the trial judge, who is best positioned to evaluate the fairness of the proceedings.

¶ 21 In addition to the common law principle enunciated by Browne v. Dunn, the Defendants’ counsel have submitted that ss. 23 and 24 of the Alberta Evidence Act, R.S.A. 1980, c.A-21 as amended (”A.E.A.”), are applicable to these admissions. Section 23 of the A.E.A. governs cross-examination on a prior written statement, and s.24 deals with proof of a contradictory statement. As there is no distinction expressly drawn between inconsistent statements and admissions in s. 24 of the A.E.A., counsel argue that it encompasses an admission if the admission deals with an inconsistent statement made by a party to the action.

¶ 22 The relevant provisions of ss. 23 and 24 of the A.E.A. are:
23(1) A witness may be cross-examined with regard to previous statements made by him in writing, or reduced to writing, and relative to the matter in question, without the writing being shown to him.
(2) If it is intended to contradict the witness by the writing, his attention shall, before the contradictory proof is given, be called to those parts of the writing that are to be used for the purpose of contradicting him.

…
24(1) If a witness on cross-examination with regard to a former statement made by him about the matter in question and inconsistent with his present testimony does not distinctly admit that he made the statement, proof may, subject to subsection (2), be given that he did in fact make that statement.
(2) Before that proof is given, those circumstances of the alleged statement that are sufficient to designate the particular occasion shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

¶ 23 The Defendants acknowledge that there appears to be conflicting authority as to whether there is a distinction between inconsistent statements and admissions when applying the Browne v. Dunn principle and the relevant provisions of the A.E.A.

¶ 24 In R. v. Jackson and Woods (1974), 20 C.C.C. (2d) 113 the Ontario High Court of Justice at pp.115 to 117 found that on the basis of Browne v. Dunn and the Canada Evidence Act, R.S.C. 1970, c.E-10 (”C.E.A.”), the defence could not introduce the alleged statements of the complainant in evidence as they were not first put to the witnesses. However, in contrast in Regina v. Grant (1989), 49 C.C.C. (3d) 410 (Man. C.A.) at pp. 414 – 416, the Court drew a distinction between the admissibility of a prior inconsistent statement and an admission. Although the statute requires the circumstances of time, place and person to be put to the witness, the Court found that, at common law, the most that is required is that there be cross-examination of such a nature that it gives the witness notice of the allegation being made against him or her and an opportunity to explain himself or herself. The Court held that a complainant in a sexual assault case, although not formally a party, was to be considered a party insofar as her admissions which affected the vital issue of consent. Therefore, the question put to her must be sufficient to satisfy the common law requirements. The Court went on to hold that in that case it had.

¶ 25 The relationship of the statutory provisions to the rule in Browne v. Dunn was canvassed in the civil case of Stewart, supra. However, in that case, the Court again entered the criminal law arena to seek assistance and referred in particular to the decision of its Court of Appeal in Regina v. P(G) (1996), 112 C.C.C. (3d) 263. The Court found that although that case dealt with the C.E.A. the provisions of the Ontario Evidence Act, R.S.O. 1990, c.E-23 (”O.E.A.”) were similar. The same can be said here given that the provisions of our A.E.A. are also similar to those of the C.E.A.

¶ 26 Justice Macdonald in Stewart, supra, concluded that proving a prior inconsistent statement, whether oral or in writing, is governed by s.21 of the O.E.A. equivalent to s.24 of the A.E.A. whereas cross-examination on a prior written inconsistent statement is governed by s.20 of the O.E.A.(s.23 of the A.E.A.). However, cross-examination on an oral prior inconsistent statement is governed by the common law, and in particular the principle espoused in Palmer and Palmer v. The Queen, supra. Macdonald J. went on to hold as follows at p. 184:
It therefore follows that the provisions of s.21 O.E.A. [s.24 A.E.A.] should be applied generally but in a proper case, the court may admit proof of a prior inconsistent statement despite non-compliance with s.21. If the person making the prior inconsistent statement was given an opportunity to deal with the alleged inconsistency when testifying at trial, or if an opportunity is afforded by re-calling that person to testify, strict compliance with s. 21 O.E.A. is not mandatory, because the fairness concerns which underlie not only s.21 but also Palmer and other cases interpreting and applying Browne v. Dunn have been satisfied.
In my opinion, the existence of this discretion respecting s.21 O.E.A. means that a similar discretion exists respecting the procedures in s.20 O.E.A. [s.23 A.E.A.]. It would be awkward and unduly technical to permit such a discretion in respect of proof of a prior inconsistent statement, which may affect substantive rights depending on the questions asked, but to deny such a discretion in respect of the process by which the proof is made.

¶ 27 I agree with Justice Macdonald’s conclusion. Therefore, although there may be technical non-compliance with s.24 of the A.E.A., in the proper circumstances the Court may admit the oral prior inconsistent statement despite this non-compliance provided the common law fairness concerns are met.

¶ 28 The Defendants submit that the students’ testimony as to what Romanuik told each of them should be excluded, as the Plaintiff had a duty to cross-examine Romanuik relative to each students’ statement. I find that Romanuik was in fact questioned on this issue at trial, both in his examination-in-chief and in cross-examination by the Plaintiff. He had ample opportunity to explain each and every statement made or to have denied making such statements.

¶ 29 At pp. 3952 and 3953 of the transcript of the testimony at trial (the “Transcript”) counsel for the Defendants, Ms. Olszewski, asked Romanuik in direct examination whether he had discussed with his students the circumstances surrounding the Plaintiff’s injury and what he had seen of the exercise of Denise Boulerice (nee Fagnan) (”Denise”). Page 4133 of the Transcript reveals that Romanuik was later questioned in cross-examination, at which time he admitted to having had conversations with several students regarding Denise’s exercise, but could not recall the content of the conversations. Page 4135 of the Transcript reveals that Romanuik was asked if he remembered talking to certain students: Rhonda Victoor (”Rhonda”), Denise, Claude Seguin (”Claude”), Karen Belanger (”Karen”), Lyle Bombay (Lyle”), Clayton Strilchuk (”Clayton”), Lisa Tymkow (nee Yager) (”Lisa”) and the Plaintiff, with respect to his awareness of the events leading up to the accident. Romanuik said he could not remember and agreed that reliance would have to be placed upon the students for the content of those conversations (p. 4135, ll. 22 – 25):
Q. Okay. And, again, as I said, we’ll have to rely upon them [the students] in that regard for the content of the conversation?
A. Yes. As I said Mr. Cummings, I can’t remember.

¶ 30 I agree with the Plaintiff’s position that they could not cross-examine Romanuik further because of his answer – he could not remember the conversations. In testimony Romanuik directed the Court to rely on the memories of the students for the content of these conversations, if they in turn could recall such conversations. Further, and more importantly, the effect of failure to cross-examine or the brevity of cross-examination on the impeachment of a party’s credibility is dependent upon the circumstances of the particular case. In this case, it should have been apparent to Romanuik that his credibility might have been impugned; I find this was reasonably foreseeable given the Examination for Discovery. Romanuik should clearly have been aware of the case he had to meet. He had sufficient notice prior to his testimony that his credibility as to this matter would be in issue.

¶ 31 Finally with respect to the Defendants’ argument that an admission is analogous to a former inconsistent statement and therefore compliance with s.24 of the A.E.A. is required, I do not agree. Firstly, I do not find that a prior inconsistent statement is analogous to an admission made by a party and given prior to trial to a third party or parties. Admissions have been treated differently within the evidentiary context. For example, admissions made by a party at examinations for discovery are admissible into evidence whether the party testifies or not. If the read-ins are made before the party testifies as part of his case, the party has the opportunity, and may wish to use that opportunity to explain or clarify what he meant when he made such admissions under oath. However, in that circumstance, the adverse party, having already read-in the admissions, is under no obligation to question the party regarding those read-ins. Romanuik was fully aware of the read-ins forming part of the Plaintiff’s case. The read-ins were made near the beginning of the trial, and as a result, Romanuik had every opportunity to explain what he meant when he made those admissions under oath. In short, Romanuik was not caught by surprise by the Plaintiff but rather had a full awareness of the case he had to meet prior to putting forward his case. Furthermore, the question put to Romanuik in cross-examination as to what he may have told the students about the accident was substantially the same as that asked in the Examination for Discovery.

¶ 32 If I should be wrong in my categorization of admissions, and they are to be equated to inconsistent statements, then even so, as was found in R. v. P(G), supra, and followed in Stewart, supra, such admissions are admissible notwithstanding non-compliance with s.24. The use of such evidence is clearly within my discretion and the exercise of my judicial responsibility if I am satisfied that the underlying principle of fairness protected by s.24, and the common law principle of Browne v. Dunn, is met. I find that it has been met for the reasons earlier espoused.

¶ 33 Accordingly, I find that the admissions made by Romanuik to his students following the Plaintiff’s accident are admissible. However, the issue that remains is the weight to be given to these admissions. This will be dealt with in my review of the testimony at trial.

III. FACTS AND BACKGROUND

¶ 34 The Plaintiff, born December 16, 1974, was a 16 year old Grade 11 student attending St. Mary’s School located in Westlock, Alberta at the time of the accident in question. Romanuik was the School’s Physical Education teacher responsible for the Plaintiff’s gymnastics class at that time.

¶ 35 The Defendant, Westlock Roman Catholic Separate School District No. 110 (”School Board”) was duly constituted under the School Act, S.A. 1988, c. S-3.1 as amended, and was the employer of Romanuik. The School Board was the owner, occupier, controller, general supervisor and operator of St. Mary’s School and all physical education equipment therein situate.

¶ 36 The gymnastics class was part of Romanuik’s 20/30 Physical Education class which was an optional course; that is, students voluntarily registered for the course in contrast to the mandatory Physical Education 10 class prescribed by the Grade 10 Curriculum. Romanuik was to commence the gymnastic segment on April 8, 1991 and conclude it on April 17, 1991. The gymnastics class actually commenced two weeks later on Monday, April 22, 1991.

¶ 37 The course was reduced to five days; the last day dedicated to testing the students as to the program each one had created (on an individual basis) relative to exercises performed on three stations, namely the:
a. Box horse station consisting of a springboard, full height box horse and crash mat;
b. Mini-trampoline station and tumbling mat configuration; and
c. High bar station consisting of a high bar above thin tumbling mats.

¶ 38 This was Romanuik’s second year of teaching. He had received his gymnastics training in 1986 at the University of Saskatchewan from Dr. Keith Wayne Russell, who testified at this trial. Dr. Russell was called by the Plaintiff and was properly qualified before me as an expert witness in the instruction of education gymnastics. Romanuik never obtained his coaching certification in gymnastics as he never wanted to coach this activity. He did coach cross-country skiing, golf, volleyball, junior and senior high basketball and softball. Romanuik’s resume indicates that he was certified in four sports: hockey, football, badminton, and basketball.

¶ 39 The students in Romanuik’s gymnastic class had a variety of athletic backgrounds. Several of his students were very athletic and participated in other competitive team sports at St. Mary’s School such as basketball, volleyball and football; some of which were coached by Romanuik. However, very few students had prior gymnastic experience other than basic tumbling. With the exception of Andy Brand (”Andy”) and Danny Shank (”Danny”), the students had not taken gymnastics for at least two years prior to this course. Romanuik had taught Andy and Danny gymnastics the year before. In teaching his gymnastics class, Romanuik relied upon the resource book used in his university class with Dr. Russell (the “Resource Book”) and the Curriculum Guide. The Curriculum Guide listed the skills to be taught but did not explain the manner of teaching each skill.

¶ 40 Prior to trial, on June 5, 1997, Sanderman, J. granted an Order allowing the Defendants to inspect the St. Mary’s School gymnasium and all gymnastic equipment present at the time of the accident. The Order also permitted photographing and videotaping the gymnasium, equipment and re-enacting the accident. The Order was carried out on June 28, 1997. Gymnastic students from Ardrossan were the actors in the reconstruction. They performed the roles of the students in Romanuik’s class on April 22 and 23. Then at the outset of the trial, the Defendants made an application to exclude the evidence of certain of the student witnesses and the videotape that was created as an “attempted reconstruction” of the two days of gymnastic classes. The Defendants argued that this attempt at reconstruction had tainted the students’ memory to such an extent that it made their testimony worthless. I denied the application on the basis that evidence should not be found inadmissible because it “may be” unreliable, the determination of reliability can only be made after I have had the opportunity of hearing the evidence and the cross-examination of the witnesses (535-536). I do note that the video tape was never shown to any of the witnesses in the courtroom during the course of their respective testimonies.

¶ 41 I have concluded that the reconstruction attempt was an abysmal failure for many reasons. First, certain critical pieces of equipment were unavailable for the reconstruction, namely the mini-trampoline and the stanchions for the high bar. A beat board from a playschool was used instead of the mini-trampoline and the high bar station could not be set-up at all. Second, because of the delay in securing the equipment there was an abbreviated time for the reconstruction attempt making it virtually impossible to replicate all relevant activities. Finally, the Ardrossan students, who were the performers, possessed superior skills to those of the Plaintiff and her classmates. They were clearly from a different gymnastic background than the students in Romanuik’s class. It appears that Romanuik’s students treated the event as an opportunity to socialize and re-connect with their former classmates. The importance of the reconstruction was lost on them. Because the reconstruction was a complete failure, I find that the attempt itself could not taint the students’ memory of the actual event. The re-enactment did nothing to reinforce a particular fact scenario as nothing resembling the two classes was achieved in the abortive reconstruction. Further, I find that there was little, if any, opportunity to collude or collaborate in their testimony.

¶ 42 Accordingly, I exclude none of the evidence of the student witnesses called by the Plaintiff for that reason. However, in assessing the testimonial capacity of all of the witnesses who testified before me, including the student witnesses, and the weight to be attached to their testimony, I have measured the following factors, including:
1. The firmness of memory;
2. Accuracy;
3. Evasiveness;
4. The inherent believability of the testimony; and
5. Whether the witness is biased or corrupted or has been tainted through collusion or collaboration.

If a witness’s testimony survived that analysis, then I evaluated it on the basis of its consistency with the evidence of other witnesses and the documentary evidence adduced.

¶ 43 I have had the luxury of daily transcripts throughout this lengthy trial. To assist the parties and their counsel with respect to identifying the references I have made to the transcript testimony, rather than simply provide page number references given the volume of material involved, for ease of reference, I have in several instances excerpted the relevant testimony.

A. Monday, April 22, 1991

¶ 44 Monday marked the first gymnastics class. Romanuik’s class list (Exhibit 2 – Tab 13) indicates that the following students were in attendance on that day:
April 22, 1991 – Present,
Karen
Lyle
Denise
Andy
Dan Breault (”Breault”)
Colin Brost (”Colin”)
Eddie Germann (”Eddie”)
Lance Hyndman (”Lance”)
Nicole Nadeau (”Nicole”)
the Plaintiff
Glen Oshima (”Glen”)
Spencer Rufiange (”Spencer”)
Claude
Jody Stitsen (”Jody”)
Clayton
Lisa
Rhonda
Willie Winnerstrom (”Willie”)

Absent
Andy Nestrovich

¶ 45 At the beginning of the trial, counsel for the Plaintiff advised that Colin and Glen were not in the class either day and could, therefore, add nothing to the trial proceedings. Counsel for the Plaintiff further advised that Danny would testify as to the events of April 22 or 23, 1991 as he was in attendance at Romanuik’s class on both days even though his name did not appear on the attendance list (8). Of those in attendance in Romanuik’s class on April 22 or 23, 1991, only Lyle, Jody and Eddie did not testify (5241). However, Lyle’s questionnaire was admitted as evidence. I ruled it would be given limited probative value as I had no information as to the degree of reliance the experts placed upon it in formulating their opinions (3524). Further, I am also mindful that at the time of the accident Lisa’s father was a trustee with the School Board (3602) and Denise’s mother was Chairperson of the School Board (3701).

¶ 46 The students arrived in the gymnasium following lunch at 12:30 in the afternoon in time for their regularly scheduled 80 minute class which ended at 1:50 each day. They changed into their physical education clothes and went for a warm-up run for approximately ten minutes. On returning from the run several did some stretching exercises and then proceeded to set up the equipment. Clayton testified at trial that the class had taken the initiative to set up the equipment themselves (1541) and this was done in accordance with Romanuik’s instructions. Three stations were set up that day:
1. A springboard, a full height box horse and crash mat configuration;
2. Mini-trampoline with tumbling mats; and
3. Tumbling mats.

¶ 47 The Defendants strenuously argued that the incorrect usage of the gymnastic terminology throughout the course of this litigation and at trial prevented me from formulating a clear picture of the activities that occurred on the two critical days of Romanuik’s gymnastic classes. Therefore, it is incumbent upon me to review at length the relevant testimony to determine if that is the case. I agree that there was great confusion during the course of the trial, and at the Examination for Discovery, regarding certain terms: somersault, flip and salto; they were sometimes used interchangeably.

¶ 48 Just over two months following the accident, counsel for the Plaintiff prepared a questionnaire for the students to complete individually (the “Questionnaire”). Regrettably, certain manoeuvres described in the Questionnaire also did not employ correct gymnastic terminology. This led to considerable confusion amongst the students and counsel at the trial. Plaintiff’s counsel continued to use the words interchangeably, although the Court had requested that he not do so. Dr. Russell testified that the word “somersault” in lay vernacular means a forward roll on the floor, whereas in gymnastics vernacular it signifies a manoeuvre “that is always in the air.” Dr. Russell defined a somersault as a 360 degree rotation on the transverse axis, the axis running from side to side. He also testified that the word “salto” is the German word for somersault and it is “very much a part of the gymnastics vernacular”. The testimony of the students reproduced herein will reflect the exact terminology they used.

¶ 49 I now turn to the events of April 22 and the relevant testimony. Danny testified that prior to the commencement of class and after some of the equipment was set up, Andy, himself and “some of the boys” fooled around on the equipment (p. 1106, l. 22 – p. 1107, l. 9):
A. … We would run and jump off the springboard and jump as far and high as we could and land on the crashmat on our front, on our back, fooling around. You know, that is basically all we did. We would just try and, you know, do stuff we shouldn’t have been doing is what we were doing.
Q. Okay. Were there any, where you would run towards the mat and do anything?
A. Yes. We would, off the trampoline, we would do a dive roll or flip and try and land on our feet.
Q. By a flip describe that.
A. 360 degrees in the air.
Q. And that was before that class really got started.
A. Yes.

¶ 50 Claude’s testimony was similar to that of Danny’s (p. 1577, l. 12 to p. 1578, l. 10):
Q. Do you remember – I forgot to ask you, I think. But when you say the equipment was set up before on the Monday, say, before the class was actually called in, would anybody do anything with those mattresses at all or not?
A. While we were setting up or –
Q. Yeah. Say just after it was set up but before the class was called over.
A. Right. Well, on that Monday before – usually we would take the initiative to set the equipment up ourselves. Before class was usually called, you know, we would start – especially on the horse and the crash mat and the springboard, we would just do our own stuff before class would start. Then obviously we had to stop when we were called together as a group.
Q. What’s your own stuff?
A. Well, when you are a kid you try a lot of things. But I mean, like, for instance, running and doing a forward flip like I described before and running and doing a swan dive over the mat. Things like running, jumping on the mat from the horse and doing a forward flip. You know, just some things kids do. Like, fooling around and just jumping and, you know, seeing how high you could get over the horse, that type of stuff.

¶ 51 I am also mindful of Breault’s testimony (p. 1672, ll. 1-l24):
Q. Well, I’m thinking of before, say, actual commencement of say, come on over here, we’re going to do this and this, the equipment was set up. Were the kids doing anything on that equipment or was that equipment or not?
A. I can’t remember exact people, but there, of course, whenever we would set up to get class started there would always be a few people horsing around, so there was for sure somebody there.
Q. What’s horsing around, like, say, with the crash mat, for example, what’s horsing around?
A. With the crash mat? Like I said, Danny Shank before the class had started, done a somersault. Other people would be basically just jumping onto the mat. And it was a large mat, I mean, horsing around seemed pretty simple around it, so.
Q. How do you mean a somersault? Can you explain that one to me?
A. It was an aerial somersault. He was standing facing the mat on the box horse and he did a complete rotation onto the mat, basic head-over-heels rotation.
Q. So then class sort of got started after that?
A. Yeah.

¶ 52 Once the equipment was set up and inspected by Romanuik, the class did some warm-up exercises such as leg wrestling, log rolls, two person rolls and chicken fights at the tumbling mat station. Various games and tumbling activities were then performed at the floor station. The Plaintiff testified at trial on cross-examination that at the start of class Romanuik advised the students that they would be working on fundamentals which included break falls and rolling techniques (p. 1375, ll. 22-26). However, I am satisfied that her answer was affirming the nature of the activities, rather than the word “fundamentals”. She did not, as her later testimony reveals, understand that these were “fundamentals” for purposes of progressions.

¶ 53 Romanuik then began a lesson on landings. In his testimony, Romanuik indicated that he encouraged the students to endeavour to land as softly as possible. The landings off the mini-trampoline were demonstrated predominantly by him, although Andy did some demonstrations as well.

¶ 54 Then the break fall was demonstrated. The objective of this exercise was to provide instructions as to a general safety manoeuvre in daily life; for example, slipping and falling on ice. The break fall was done from a kneeling position, then a standing position, and then from the box horse. Andy demonstrated the break fall from the box horse (1663).

¶ 55 Claude testified the following with regard to the break fall activities (p. 1620, ll. 13-24):

presented March 17, 1998
Edmonton, Alberta
@ Grant MacEwan College

and March 24, 1998
@ Calgary Convention Centre

I. INTRODUCTION

Technology is an ever advancing juggernaut which is rushing forward, whether we want to keep pace or not. It has impacted on virtually every aspect of the legal profession. If you attended law school within the last 20 years, electronic legal research was a part of the curriculum. At least at the University of Alberta, computers and technology became integrated with the practice of law at the earliest opportunity.

In our every day practices, we do some or all of the following: Check a number of electronic sources for information such as our electronic schedule in the morning, voice mail, e-mail, the firm’s website for any messages, your favorite websites for updated information or QuickLaw for the latest decisions and legal commentary. You might start work by using an electronic timekeeper to track your billables and post .1’s to the firm’s accounting program. You can now speak normally into your personal computer and the words can be converted instantaneously into text in a letter. A simple voice command will fax or e-mail the document to its destination. We rely on technology to track our time, create our documents, manage clients or organize files, record and remind us of limitation dates, reconcile accounts and generally make our practices more manageable.

Litigators know only too well that technology has been affecting their practices more and more and this paper will touch on a number of effects of technology on litigation. In particular, issues relating to discovery of electronic evidence will be explored. There is a list of references and resources at the end of this paper. This work is also posted on our firm’s website at http://www.camllp.com under “Articles” where most of the resources are hypertext-linked to their original sites.

II. PRACTICE

Most of us have taken for granted that computers and technology will help us with document assembly, conflict searches and limitation dates. But have you considered using video conferencing to have a face to face with your client, expert witnesses, other counsel or judges? The Supreme Court of Canada has been using video conferencing for Leave Applications since 1985.

New communications technology is affecting our practices and is even impacting solicitor/client confidentiality and privilege.(1)

As lawyers, we have a duty to maintain the confidentiality of our client’s matters. It has been suggested that e-mail and cordless phone calls are so easily intercepted that there can be no reasonable expectation of confidentiality. Use of these modes of communication by lawyers may waive privilege on the subject matter. In this competitive marketplace, where we feel pressure to streamline our practices and lower our overhead, professional obligations can be compromised in an effort to become more efficient and responsive to our clients’ needs.

E-mail is a very low cost and efficient means of communication, but it is not secure. So even if your client, as one of mine has, insists that even sensitive information be e-mailed, consider using encryption software as a safeguard. There are a number of shareware encryption programs available at little or no cost (depending on your conscience) off the internet and commercial utilities from your favorite retailer. A very simple encryption mode I use is to use the same word processor as my client (at least for this purpose), password protect the document and attach it to a simple cover e-mail. Just phone the client, communicate the password and the document can be decoded at the other end. No means of communication is absolutely secure, but at least you would not waive solicitor/client privilege(2) in respect of a document merely by the mode of communication. Encryption or password protection of the document should render the document unreadable to any internet interceptor and I would suggest satisfies a lawyer’s duty of confidentiality to the client and would also maintain privilege.

The automobile insurance industry in each province is controlled by provincial legislation. The insurance systems in each province differ, some more than others. In Alberta, we operate on a tort based system. This simply means that when a driver causes an accident and injures someone, the victim can sue the driver (the negligent motorist) and the Courts will do their best to reasonably compensate the victim for his losses. If the negligent motorist carries liability insurance (which is mandatory), then the insurance company will be forced to pay the accident victim in accordance with the Court Judgment. Generally, the negligent motorist who causes the accident will not be fully compensated under our current system; however, he will receive a portion of his lost income and he will have his medical expenses paid by his own insurance company up to a maximum of $10,000.00 within two years from the date of the accident. The at-fault motorist is not compensated for pain and suffering because he is responsible for his own injuries.

British Columbia has what is called “Government Insurance”. The system is very similar to ours. The accident victim is entitled to sue the wrong-doer and will be reasonably compensated by the Courts. However, unlike Alberta, there are not a number of competing insurers selling automobile policies. Rather, the government collects insurance premiums and pays the claims on behalf of negligent drivers. Again, a driver who causes an accident is prevented from claiming full compensation for his injuries, but will receive compensation similar to what is available in Alberta as mentioned above.

In Ontario, the tort system has been replaced by a form of no-fault automobile insurance. There are many different variations of no-fault insurance and the term is quite hard to define. However, generally speaking, no-fault insurance schemes tend to restrict the compensation payable to accident victims while allowing the negligent motorist to claim exactly the same benefits as the victim.

The tort system and the liability insurance system we presently enjoy in Alberta have been a long time in the making. Long before Canada was a country, Judges in England were struggling to find a fair method to have a wrong-doer compensate his victim. In 1932, the English Court of Appeal made a landmark ruling in the case of Donoghue v. Stevenson. In that case, the Judges summarized the developing law of negligence in a fashion so just and so appealing that the decision has been followed by virtually every Court in the western world. The decision applies to every fact situation (not just automobile accidents) and to people in all walks of life. In Donoghue v. Stevenson, the Judges said that if, in any given situation, your acts could reasonably be foreseen to harm another, then you have a duty to act reasonably and in such a manner so as not to cause him harm. If you fail to act reasonably and do cause him harm, then you will be held accountable and forced to compensate him.

Associated with the principle of indemnity is the reciprocal principle of subrogation. In many cases, a disability insurer has a right (by contract or common law) to recover from the disabled party if the disabled party achieves "full recovery" for their loss of income from third party sources (i.e.: where the person suffers a compensable injury). In general, the injured party is not entitled to "double recovery."

The problem is figuring out how much the disability insurer is entitled to recover when a person who has received disability benefits later settles a tort claim that includes a loss of income component.

A recent Alberta Court of Appeal case (Mutual Life Assurance Company of Canada v. pennan Marance) dealt with some of the pertinent issues. Mutual Life had paid $43,264.00 in respect of a calculated loss of income of $72,106.00. The insured settled a tort claim arising from a motor vehicle accident for $178,000.00. The insured argued that the settlement represented only 50 percent of his claim, and the evidence seemed to support this. Mutual Life argued that by settling the claim, the insured had fixed the value of his claim at $178,000.00, that being 100 percent recovery. The Court decided that the settlement by the insured did not fix the value of his claim at the settlement amount.

The reason the issue is at all important is because under the disability policy and also under general subrogation principles, Mutual Life would only recover on its subrogated interest once the insured had been fully indemnified for his loss of income (that being $72,106.00).

The Alberta Court of Appeal seems to have made a policy decision to allow parties to settle claims in "good faith" taking into account the contingencies of litigation. If every settlement by its very nature represented "full recovery," no tort actions with subrogated claims involved could settle without the consent of the disability insurer. Although most disability insurers are reasonable, there will always be instances of disagreement.

Further, the Court indirectly affirms the case of Confederation Life v. Causton (BCCA) by deducting the legal fees associated with collecting the loss of income in determining the point at which full recovery was achieved.

Here is a rough example of how the Court would have calculated the right of the subrogated disability insurer under Mutual Life Assurance Co. of Canada v. Marance (Column "B" is the recovery Mutual was requesting).

Though this would seem to allow insured’s to settle claims without the consent of the disability insurer, provided the insured acts in good faith, all legal counsel settling these claims should nonetheless be encouraged to get the disability insurer on side first, to prevent further unnecessary litigation.