In Hussack v. Chilliwack School District No. 33, the Court partially allowed the appeal by a school board regarding damages awarded to a student for breach of duty of care. The case could be significant in that it clarified how the doctrine of novus actus interveniens is applied and confirmed that the appropriate test is foreseeability of subsequent conduct rather than unreasonableness.
Devon Hussack, a student within the Chilliwack School District, suffered a concussion as a result of an incident during a field hockey game at the school. He subsequently developed a psychiatric disorder that manifested itself in difficulties that he believed were physical in nature. Devon was parented solely by his overprotective father who interfered with his son’s medical treatment and school attendance.
Justice Bennett did not find error in the trial judge’s conclusion that the hockey incident represented cause in fact and law in spite of contributing factors. Bennett J.A. then analysed the issue of novus actus interveniens to address the school board’s argument that Mr. Hussack’s conduct amounted to a new intervening act which broke the chain of causation. The trial judge had found that Mr. Hussack’s actions were foreseeable and did not, therefore, represent a new act. The school board argued that reasonableness rather than foreseeability was the appropriate test and cited a series of cases that applied novus actus interveniens to unreasonable subsequent actions by family members. Bennett J.A. rejected the argument and characterized the "family cases" as dealing with "unusual" circumstances, rather than creating new law. She affirmed foreseeability as the appropriate test and deferred to the train judge’s conclusion on the facts that Mr. Hussack’s conduct did not represent a new act.
June 7, 2011
Link to Decision
Radostina Pavlova & Dominik Swierad
No comments:
Post a Comment