



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Murao
                v. Richmond School District No. 38,









2005 BCCA
            43




Date: 20050126




Docket: CA031077

Between:

Travis
      Murao

Appellant

(
Plaintiff
)

And

The Board
      of School Trustees, School District
No. 38 (Richmond), Yumi Yang, Sara Haave,
Charlie Phipps and Graham Harkley

Respondents

(
Defendants
)











Before:



The Honourable
            Madam Justice Southin





The Honourable
            Mr. Justice Oppal





The Honourable
            Mr. Justice Lowry









P. T. McGivern



Counsel for the Appellant





C. L. Forth



Counsel for the Respondents





Place and
            Date of Hearing:



Vancouver, British Columbia





December 13, 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





January 26, 2005









Written
              Reasons by
:





The Honourable
            Mr. Justice Lowry





Concurred
              in by:





The Honourable
            Madam Justice Southin

The Honourable
            Mr. Justice Oppal





Reasons for Judgment
        of the Honourable Mr. Justice Lowry:

[1]

This
      is a negligence action that was tried before Madam Justice Sinclair Prowse
      sitting with a jury.  The questions on this appeal are whether the learned
      judge erred in refusing to admit certain evidence, in permitting unwarranted
      cross-examination, or in the instructions she gave to the jury on the elements
      of the tort and, if so, whether a new trial should be ordered.  The judge
      provided written reasons for some of her rulings that are raised as the
      grounds of the appeal: (2003), 22 B.C.L.R. (4th) 392, 2003 BCSC 1961.

[2]

In
      January 2000, when he was 17 years of age, Travis Murao (now 22) fell while
      snowboarding at Blackcomb Mountain and suffered a spinal injury that, tragically,
      left him a quadriplegic.  He was one of a group of students in a high school
      ski club who participated in a day on the mountain that was organized by
      one of their teachers and supervised by three others who attended.  In
      the action, damages were sought against Blackcomb Skiing Enterprises Limited
      Partnership ("Blackcomb"), the Board of School Trustees of the
      Richmond School District No. 38 (the "Board"), the teacher who
      organized the outing, Charlie Phipps, and the three other teachers who
      attended, Yumi Yang, Sara Haave, and Graham Harkley (all four collectively
      the "Teachers").

[3]

Mr.
      Murao was not an experienced snowboarder.  He fell backwards while attempting
      a jump in an area known as the Terrain Park which Blackcomb had developed
      for snowboarding.  It contained a series of jumps or steep elevated parts
      of a downhill slope that, when approached at speed, would enable a boarder
      to "take air" over some or all of a table top surface.  Broadly,
      the case pleaded against Blackcomb was that it had knowingly created conditions
      that were particularly dangerous for the inexperienced and had failed to
      warn of the dangers.  The case pleaded against the Board and the teachers
      was that they had failed to properly supervise Mr. Murao.

[4]

Blackcomb
      settled the claim against it such that the action proceeded to trial against
      only the Board and the Teachers.  The jury returned a verdict apportioning
      liability based on attributing fault 70% against Blackcomb, 15% against
      the Board, and 15% against Mr. Murao.  The Board appears to have been found
      vicariously liable for the negligence of one or more of the Teachers.  The
      action against each of the Teachers was dismissed on the basis of a statutory
      provision relieving them of personal liability for negligence.  Damages
      were awarded that resulted in a judgment against the Board of $533,533.33.

The Grounds of Appeal

[5]

Mr.
      Murao seeks a new trial.  He raises four grounds of appeal which I address
      in turn.

1.  The evidence of Robert Jackson

[6]

Mr.
      Murao's counsel sought to adduce evidence from Robert Jackson, a retired
      high school teacher who taught for 31 years in the Richmond School District.  Objection
      was taken and the judge refused to permit Mr. Jackson to testify.  Unfortunate­ly,
      we now have no more than a transcript of what counsel said the testimony
      would be.  It would have been preferable if a written statement had been
      taken from Mr. Jackson of what he would say and had been made available
      for the judge's (and hence for our) consideration.

[7]

Mr.
      Jackson was said to have organized ski trips for students at Manning Park
      on several occasions during the 1980s as part of the physical education
      programs he was teaching.  He chose hills where the students could be monitored
      and he insisted that they take lessons to permit an assessment of their
      abilities before they were permitted on the more dangerous parts of the
      mountain.  He took advice from the ski instructors in this regard.  He
      took these steps to ensure that the students were adequately trained for
      the activities in which the teachers invited them to participate and to
      minimize the effect of peer pressure to enter upon areas of the mountain
      where they did not belong.

[8]

Mr.
      Jackson was not on the plaintiff's list of witnesses that, in this case,
      counsel was required to deliver prior to the trial.  His evidence formed
      no part of the plaintiff's opening because it was not until perhaps the
      third day of the trial that, having heard about the case, he approached
      the plaintiff's counsel.  Counsel sought to tender the evidence, not to
      prove the existence of any general practice concerning student ski trips,
      but to prove there were measures that could have been taken in respect
      of the ski club's outing to Blackcomb that had been taken some years before
      when students were taken to ski at Manning Park.  Mr. Jackson's testimony
      would, it is now said, have rebutted the Teachers' assertion that there
      were no steps they could reasonably have been expected to take that would
      have prevented the injury suffered by Mr. Murao.

[9]

The
      judge ruled Mr. Jackson's testimony inadmissible because it was not evidence
      of a general practice.  She approached the issue as a consideration of
      whether the testimony was relevant to establishing the standard of care
      from which the Teachers had to be found to have departed to a marked degree
      to give rise to liability.  She took the view that the authority to which
      she had been referred did not support the admission of an individual practice
      or recommendation as evidence that would establish a standard of care,
      citing, in particular,
Myers v. Peel (County) Board of Education
,
      [1981] 2 S.C.R. 21, 123 D.L.R. (3d) 1.

[10]

I
      consider the judge took too narrow a view of the nature of evidence that
      can be adduced to establish a standard of care.  Mr. Jackson's testimony
      should have been admitted.

[11]

The
      standard of care is the measure by which the discharge of the duty owed
      by one person to another is determined in the law of negligence.  Where
      the conduct in question conformed to a recognized or general practice in
      any given circumstance, the standard of care required is normally met.  In
      cases where the nature of the conduct in question is beyond the common
      understanding of judge and jury, as in medical malpractice cases, expert
      evidence is routinely introduced to prove an established practice and hence
      the requisite standard of care:
ter Neuzen v. Korn
, [1995]
      3 S.C.R. 674, 127 D.L.R. (4th) 577.  By contrast, in motor vehicle negligence
      cases, evidence of an accepted practice often need not be adduced to establish
      the standard of care either because the practice to be followed in any
      given instance has been prescribed by legislation or because what is required
      is so broadly understood as a matter of common sense by everyone regularly
      travelling on city streets and provincial highways:
Tucker (Guardian
      Ad Litem of) v. Asleson
(1993), 102 D.L.R. (4th) 518, 78 B.C.L.R.
      (2d) 173 (B.C.C.A.) at 553.

[12]

Where,
      however, there may be no recognized or general practice, or where any practice
      that does exist is contended to be woefully inadequate, a plaintiff is
      entitled to adduce evidence to establish the standard of care required
      in any given instance.  It is for the trier of fact to determine the standard
      of care having regard for the nature and foreseeability of the risk and
      the utility of measures by which it could be minimized.  The standard may
      be derived from evidence of a general practice that prevailed, or from
      evidence of what might reasonably have been done to prevent the injury
      that gives rise to the cause of action, or from the simple application
      of common sense where the circumstances permit it.

[13]

In
Ware's
          Taxi Ltd. v. Gilliham
, [1949] S.C.R. 637, [1949] 3 D.L.R. 721,
          a taxi company was found negligent for injuries suffered by a young
          child who fell out of a moving vehicle after meddling with the door
          lock and opening the back door.  There was, at the time, no generally
          approved practice followed in the transport of children in similar
          circumstances.  Evidence was adduced of the availability of inexpensive
          childproof locks and the fact that at least one other taxi owner made
          it a practice to position older children next to the doors or place
          young children in the front seat where they could be supervised.  That
          evidence was seen as proving that there was a general awareness of
          the danger to which the injured child had been exposed and it effectively
          established the requisite standard of care.

[14]

A
      recent decision of the Supreme Court of British Columbia appears to be
      particularly germane.  In
Madsen v. Mission School District No. 75
,
      [1999] B.C.J. No. 1716 (QL), a school district was found liable for the
      negligence of a teacher in supervising a game of "Capture the Flag" being
      played during a physical education class.  One student was injured when
      he was tackled by another at a time when they were hidden from the teacher's
      view by trees in the area where the game was being played.  Another teacher
      testified as to how he supervised the game.  His practice was to choose
      an open field to ensure that he always had an unrestricted view.  That
      was effectively accepted as the standard of care required given the number
      involved in the game and the potential for injury.

[15]

These
      two cases illustrate the admissibility of the kind of evidence it was said
      Mr. Jackson would give.  It was not necessary that his testimony be evidence
      of a general practice to be admitted.  It was relevant to establishing
      the required standard of care because it was evidence of measures taken
      in what could be said to be somewhat similar circumstances for the purpose
      of minimizing the risk of injury.  The weight that Mr. Jackson's evidence
      might have been afforded had it been admitted is of course another matter.

2.  The OSBIE Ski Package

[16]

Mr.
      Murao's counsel sought to enter as evidence a seven-page document containing
      a Safety Guideline Manual of minimum safety information for ski and snowboarding
      education programs prepared in 1998 by the Ontario School Boards' Insurance
      Exchange and the Ontario Ski Resorts Association (the "OSBIE Package").  Counsel
      wished to cross-examine one of the Teachers, who he called as a witness,
      on the document and to put it before the jury.  Objection was taken, although
      I understand it to have been accepted that the document was what it purported
      to be.  The judge permitted some cross-examination on the guidelines, but
      she ruled the document inadmissible for the same reason that she ruled
      Mr. Jackson's evidence inadmissible: it was not relevant because it was
      not evidence of any general practice of teachers on school snowboarding
      outings.  The judge observed that she understood counsel to have made it
      clear that he had no intention of calling any witness to prove that the
      guidelines had been accepted or implemented.

[17]

It
      is now said that counsel "indicated his intention to call witnesses
      from Ontario to prove the guidelines and the manner in which they were
      used in that Province".  We have not, however, been taken to any statement
      to that effect in the transcript.  The most that we have been shown is
      that at one point counsel said that he "
may
be calling a teacher
      from Ontario" who ran a series of school ski trips in a manner similar
      to that of Mr. Jackson.  We have not been shown the plaintiff's list of
      witnesses, but it is not said that any witnesses listed were to be called
      to testify about the OSBIE Package.  No witness from Ontario was called.

[18]

In
      the absence of a witness being called who could testify to the preparation
      of the guidelines by the Insurance Exchange and the Ski Resorts Association
      in Ontario, or the extent, if any, to which they have been used, I do not
      see that the package had any evidentiary value.  The statements that form
      the guidelines could not have been subjected to cross-examination by counsel
      for the Board.  It would have gone before the jury as evidence of a standard
      of care that could not have been challenged.  I do not consider it should
      have been admitted.

3.  Defence counsel's cross-examination of Mr. Phipps

[19]

Although
      the Board undertook to call Mr. Phipps, the teacher who organized the Blackcomb
      outing for the Ski Club, counsel for Mr. Murao called him as a witness
      in the plaintiff's case.  He proceeded to cross-examine Mr. Phipps broadly
      and at length as is permitted by Rule 40(20) of the
Rules of Court:


(20)  A
      party calling a witness in accordance with subrule (17.1) or (17.2) is
      entitled to cross-examine the witness generally on one or more issues.  Cross-examination
      of the witness by counsel for the adverse party shall be confined to explanation
      of matters brought out in the examination-in-chief.  Cross-examination
      of the witness by other parties may be general or limited, as the court
      may direct.  Re-examination shall be confined to new matters brought out
      in cross-examination.

[20]

Counsel
      then took objection to Mr. Phipps being asked leading questions by counsel
      for the Board in the course of her cross-examination.  He took the position
      that while the Rule permitted him to ask leading questions while cross-examining
      Mr. Phipps, it did not permit counsel for the Board to do so while she
      was cross-examining him.  The judge considered it was open to counsel for
      the Board to ask leading questions and permitted her to do so.

[21]

It
      is now said that permitting the Board's counsel to ask leading questions
      of the teacher who was the Board's principal witness gave the Board an
      unfair advantage, one for which the Rule does not provide.  I disagree.  The
      greater unfairness lay in the Board being deprived of the opportunity to
      have Mr. Phipps testify before the jury, and to give his account of
      the events, before he was subjected to cross-examination.

[22]

The
      Rule exists to permit a party to adduce evidence from an adverse witness
      as part of its case that cannot be satisfactorily tendered in any other
      way.  It is a rule that I have had occasion to consider susceptible to
      abuse:
3464920 Canada Inc. v. Strother
(2002), 26 B.L.R.
      (3d) 235, 2002 BCSC 1179 ¶ 41-43.  Apart from a perceived tactical advantage
      it may be thought to give a plaintiff, I see little place for calling an
      adverse witness when, as here, there has been full discovery of the witness
      which can be read in and an undertaking has been given that the witness
      will be called.

[23]

That
      said, the Rule can only be read as affording counsel for the adverse party
      the right to ask leading questions during the cross-examination of the
      witness for which the Rule provides.  If it were otherwise, the terms "cross-examine" and "cross-examination" as
      used in the Rule would have to be given different meanings.  A cross-examination
      is generally understood to include asking leading questions that cannot
      be asked in a direct examination.  That, as a matter of practice, is certainly
      what Rule 27(21) governing discovery has been understood to mean where
      it provides for an examination being in the nature of a cross-examination.  I
      can see no reason why that term should be given a different meaning when
      used to describe the examination to be conducted by counsel for an adverse
      party under Rule 40(20).

4.  The judge's instructions to the jury

[24]

It
      is contended that the judge made two errors in the instructions she gave
      the jury about the tort of negligence.  It is first said that she failed
      to instruct the jury on the foreseeability of the risk.  But no objection
      was taken to this aspect of the charge at trial.  That would appear to
      be because the foreseeability of serious injury in the Terrain Park was
      never in issue.  Mr. Phipps made that concession and in her charge the
      judge told the jury that he was aware that a snowboarder could be seriously
      injured attempting jumps in the Terrain Park.  Given that his counsel took
      no exception to the charge in this regard at trial, I do not consider it
      now open to Mr. Murao to seek a new trial on the basis of a point that
      was never in issue.

[25]

The
      second error attributed to the judge has to do with her having instructed
      the jury that they were to consider what, if anything, the Teachers ought
      to have done given what they knew about the risk of injury to a student
      who participated in the outing.  She is said to have erred in not instructing
      the jury to consider not only what the Teachers knew but what, in the circumstances,
      they ought to have known.

[26]

It
      is of course well established that, in the law of negligence, a person's
      conduct is to be assessed not only by what was known, but also by what
      ought to have been known.  Counsel for Mr. Murao did ask that the jury
      be given further instructions in this regard, but his request was quite
      limited.  The judge had told the jury that Mr. Phipps had said that he
      did not know that the Terrain Park was for advanced or expert snowboarders.  Counsel
      suggested that the jury should also be told that it was open to them to
      find that Mr. Phipps ought to have known that fact.  The judge said "all
      right", but she did not address the point in recharging the jury in
      respect of other matters and counsel said no more about it.

[27]

In
      my view, this ground of appeal might have had merit if the evidence to
      which we have been referred did not show, as it does, that the Teachers
      could not have been expected to know that the Terrain Park was for advanced
      or expert snowboarders.  That was something that may have been known to
      Blackcomb, but it was not communicated to the Teachers.  Indeed, the Blackcomb
      website, at the time, advertised the Terrain Park as catering to "beginners,
      intermediate and expert riders".  Blackcomb's trail map marked the
      Terrain Park as "recommended snowboard terrain" with no mention
      of such being for the advanced or expert.  The signs Blackcomb posted at
      the Terrain Park indicated that it could be used by intermediate boarders.

[28]

The
      judge focused her charge on what was at issue in the trial in terms of
      liability in negligence: the standard of care.  She instructed the jury
      that, as a matter of law, teachers supervising students are held to the
      standard of prudent parents.  She emphasized the importance of assessing
      the conduct of the Teachers as one would assess the conduct of parents
      who knew what the Teachers knew about the risks of snowboarding at this
      particular mountain.  What the judge said about assessing the Teachers'
      conduct in light of their knowledge must be viewed in the context of her
      charge as a whole.  I do not consider that the real issue on which the
      case was tried required the judge to say more than she did.  Indeed, her
      having done so may have done more to confuse  rather than clarify the task
      the jury was asked to undertake.

A New Trial

[29]

It
      remains to consider whether a new trial should be ordered because Mr. Jackson
      was not permitted to testify in support of Mr. Murao's case.  The Chief
      Justice of this Court has stated the consideration as follows in
Tsoukas
      v. Segura
(2001), 96 B.C.L.R. (3d) 344, 2001 BCCA 664 ¶ 75:

In my view, there is no principled reason for distinguishing between
      a case where relevant evidence was excluded, and the case where inadmissible
      evidence has been admitted.  In either case, the appropriate test is whether
      a properly instructed jury acting reasonably would necessarily have reached
      the same conclusion if the evidentiary error had not occurred.  In other
      words, the question is whether there has been a miscarriage of justice.

[30]

There
      was no miscarriage of justice in this case.  I do not consider that Mr.
      Jackson's evidence would have resulted in a properly instructed jury rendering
      a different verdict, one holding the Board liable for more than 15% of
      Mr. Murao's damages.

[31]

It
      is important to keep Mr. Jackson's evidence in perspective.  His testimony
      was completely unknown to Mr. Murao's counsel until well into the trial.  Moreover,
      the weight a jury might give to the way Mr. Jackson organized skiing trips
      for students more than 10 years earlier, in the absence of more contemporary
      evidence adduced to establish the standard of care to be met by the Teachers,
      is an open question.

[32]

The
      case argued against the Board was essentially that the Teachers had fallen
      below the standard of care to be expected of the prudent parents of a 17
      year old boy in principally two respects.  First, they failed to insist
      that the students take a snowboarding lesson and have their skill level
      assessed to determine what areas of the mountain they should avoid.  Second,
      they failed to adequately monitor the students during the course of the
      day to ensure that by reason of peer pressure or for other reasons they
      were not attempting to do anything that was particularly dangerous.

[33]

While
      the case against the Board may have been supportable, when the evidence
      against Blackcomb is considered, it is difficult to see how, even with
      the benefit of Mr. Jackson's evidence, a jury could attribute any more
      than 15% of the liability to the Board if it meant attributing less than
      70% to Blackcomb.

[34]

The
      evidence tendered against Blackcomb (undefended at trial) was overwhelming.  Blackcomb
      created the Terrain Park containing the hazardous jumps which it advertised
      as available to all snowboarders regardless of ability and from which it
      profited.  Blackcomb's signage regarding the skill level required for the
      jumps in the park was misleading and that was evident to its supervisory
      staff.  In the weeks preceding Mr. Murao's accident, members of Blackcomb's
      staff sustained injuries in the park to the extent that the staff's testing
      of the jumps was actually suspended.  Blackcomb's supervisory staff was
      aware of injuries sustained by paying snowboarders on the very jump where
      Mr. Murao was injured, but no change to that jump was made either before
      or after his tragic fall.  On the day of Mr. Murao's accident, Blackcomb's
      supervision of snowboarding in the park was below its own standards because
      some members of its regular and volunteer staff were not at work.  A Blackcomb
      representative spoke to the students before they disembarked from the bus
      that transported them to the mountain, but he said nothing to warn them
      or the Teachers who were with them about the level of skill required to
      attempt the jumps in the Terrain Park.

[35]

By
      contrast, even with Mr. Jackson's evidence, the case against the Board
      would not support more than the proportion of liability the jury saw fit
      to impose.  It is particularly important that, at the time of his accident,
      Mr. Murao was 17 years old.  He was not a child.  He was old enough to
      be licensed to drive an automobile on public roads and highways  old enough
      to make decisions about his own safety and the safety of others.  The nature
      of snowboarding is such that it challenges participants and requires that
      they make decisions as to what they should attempt.  It appears that the
      students could have been required to take a lesson, but whether there is
      a sound evidentiary basis for concluding that the Blackcomb staff would
      then have made assessments about their abilities and given direction that
      Mr. Murao should not go into the Terrain Park is by no means clear.  Further,
      a failing in the extent of the supervision required by the Teachers, who
      were not themselves accomplished snowboarders, to have prevented the injury
      Mr. Murao suffered could not raise the proportion of the Board's liability
      beyond a modest percentage particularly when compared to Blackcomb's contributing
      conduct and the fact that Mr. Murao must accept a measure of responsibility
      for the decision he made to attempt the jump on which he fell.

[36]

A
      new trial is not warranted.

Disposition

[37]

I
      would dismiss the appeal.



The Honourable Mr. Justice Lowry

I agree:

The Honourable Madam Justice Southin

I agree:

The Honourable
      Mr. Justice Oppal




