December 20 2012

Paying the price for a lapse in safety

October 9, 1998 – by 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