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Digest of the Week — Negligent to Fail to Anticipate Children's Foolish Behaviour

Paquette (Litigation guardian of) v. School District No. 36 (Surrey) |
2014 CarswellBC 3548 |
British Columbia Court of Appeal

Torts | Negligence | Occupiers' liability | Particular situations | Roofs

Twelve year-old student and his friend climbed cherry tree close to roof of elementary school and went onto roof — Vice-principal called out to them to get off roof — Student jumped off roof and fell onto cement surface at bottom of stairwell, suffering significant injuries — Student and his litigation guardian ("plaintiffs") brought action against defendant school board for damages — Trial judge found defendant liable in negligence and in breach of its duties under Occupiers Liability Act, and apportioned 75 per cent of liability to defendant and 25 per cent to plaintiffs for contributory negligence — She found it was reasonably foreseeable that trees close to school might be used to access roof, and that child on roof might fall off and get badly injured — Defendant appealed — Appeal dismissed — Trial judge did not misapprehend evidence about prior incidents of young people climbing trees to access roof or impose standard of perfection in assessing whether defendant met duty of care as occupier — Defendant was aware of risk and took some steps to reduce it by erecting barricade and trimming trees — It was open to trial judge to find that risk of injury which materialized was posed by tree in question and that school, in failing to deal with that evident risk, failed to discharge its obligation under s. 3 of Act — Trial judge's conclusion that by failing to deal with that evident risk, defendant failed to discharge obligation it owed under s. 3 of Act was upheld — There was no basis to disturb her finding of fault.
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