Annapolis County District School Board v Marshall: What Responsibilities Do Four-Year Olds Owe Us?
When a four-year old boy gets hit by a school bus, and suffers “catastrophic injuries,” questions need to be asked. The most important question is whether that driver was negligent, insofar as he caused or contributed to the boy’s damages: was the driver under the influence of alcohol? Was he driving above the speed limit? Were there extenuating circumstances that morning, such as fog, that created low visibility conditions on the road?
But can the Court ask questions about the four-year old boy? As a child of such tender years, the law cannot hold him liable for the accident. The jury was properly informed to not adjudicate on the boy’s negligence. Nevertheless, should we investigate whether the four-year old boy was contributorily negligent in any way? In other words, should we compare his conduct with that of a “reasonable” pedestrian?
These difficult questions about children and their decision-making capabilities are tackled in the context of a case, Annapolis County District School Board v Marshall, 2012 SCC 27, which was heard by the Supreme Court of Canada earlier this month. The incident that triggered the lawsuit occurred almost twenty years ago. On the afternoon of April 12, 1944, the respondent, four-year old, Johnathan Lee Marshall, was playing with his brothers in the front of his family home. His home was located along Highway 201. Douglas Ernest Feener, the appellant, was driving his empty school bus along the same highway at the time; he had just dropped off his elementary school children at school. When Feener passed Johnathan’s street, the boy ran onto the highway and directly into the path of the oncoming bus. Feener could not stop his bus in time, so Johnathan was struck. As a result, the respondent suffered “catastrophic injuries” (para. 11).
Johnathan brought an action against Feener and his employer, the Annapolis County District School Board, shortly after the accident. The jury had one question it had to answer: was there negligence on the part of the defendant, Douglas Feener, that caused or contributed to the damages suffered by the plaintiff, Johnathan Marshall? (para. 2) At the end of the ten-week trial, the jury gave an answer. The jury answered “no” to the question as posed to them.
Dual function of right of way provisions
The case then went up to the Nova Scotia Court of Appeal. One of the main grounds for appeal was whether the trial judge misdirected the jury in referring to the right of way provisions in the Motor Vehicle Act, RSNS 1989, c 293.
The provisions of the Motor Vehicle Act in question are s. 125(3) and (5):
(3) A pedestrian shall not leave a curb or any other place of safety and walk or run into the path of a vehicle that is so closely approaching that it is impractical for the driver of the vehicle to stop.
(5) A pedestrian crossing a roadway at any point other than within a crosswalk shall yield the right of way to vehicles upon the roadway.
The trial judge went into detail in his explanation to the jury about the subsections above. Specifically, he noted that a pedestrian, especially when not crossing the street at a regular crossing, must take special care to use vigilance and to yield the right of way to vehicles. Further, “a driver has the right to expect that a pedestrian will not act without care” (para. 5). The trial judge added that the standard of care owed to children on a highway is the same as that owed to adults, but that there may be circumstances that would put motorists on their guard (i.e. school zones).
As a result of the trial judge’s interpretation of the right of way provisions of the Motor Vehicle Act, the Court of Appeal concluded that the trial judge improperly invited the jury to treat Johnathan “like an adult” (Annapolis County District School Board v. Marshall, 2011 NSCA 13 at para. 16). Thus, the jury would have had “little choice but to find Johnathan responsible for this accident” (para. 19), despite the fact that Johnathan could not be held to be contributorily negligent as a result of his age.
Deschamps Weighs In
Justice Deschamps wrote the majority decision for the Supreme Court. She disagreed with the Court of Appeal’s analysis in regard to their understanding of the right of way provisions in the Motor Vehicle Act. “[They] failed to appreciate the dual function of statutory right of way provisions,” she summarized (para. 7). That is, the Court of Appeal did not fully grasp that “not only do such provisions inform the assessment of whether a pedestrian was contributorily negligent by failing to yield to a right of way, [but] they can also help determine whether a driver breached the standard of care in the circumstances” (ibid).
Justice Deschamps then applied her understanding of the statute to the facts of the case: “In this case, even though Johnathan’s contributory negligence had been ruled out as a matter of law, the statutory right of way provisions continued to inform the standard of care that Feener owed to all pedestrians” (ibid). By considering the conduct of a reasonable pedestrian in assessing whether Feener had demonstrated the requisite degree of precaution, it becomes clear that the statute helps to delineate the standard of care applicable to Feener. Unless under special circumstances, a driver can reasonably proceed on the assumption that others will follow the rules of the road and yield to the right of way to drivers (para. 8).
Justice Cromwell was the lone dissenter in this case. He argued that the trial judge misled the jury in regard to the right of way provisions. The “misdirection may have given rise to an injustice,” in his opinion (para. 14), which would necessitate the dismissal of the appeal. The reason for his differing opinion was that he focused on the larger ramifications of interpreting the statutory provisions in the way that his colleagues advocate. Cromwell supported his position with case law in which the judge similarly instructed the jury to “consider whether the plaintiff was responsible for the accident” (ibid). According to Justice Cromwell, phrasing the instruction to the jury in this way seems to cast blame on the plaintiff and victim. Even if the judge were to clarify that a child of four years of age cannot be held legally responsible, that point would be obfuscated by the surrounding instructions about the duty of pedestrians. Because the “key liability issue in the case was [not] put to the jury in clear terms, Cromwell would have dismissed the appeal. He would have upheld the Court of Appeal’s decision (ibid).
Both sides of the bench, Deschamps and the majority and Cromwell, are trying to achieve reasonable ends here. It is only reasonable for drivers to make the assumption that others will endeavour to follow the rules of the road, including fellow drivers and pedestrians. When a pedestrian has patently failed to do so, such as running into onto traffic, these actions must inform the standard of care that the driver owes to pedestrians. What Cromwell is trying to get at, essentially, is clarity: the judge should have been clearer with the jury that it is the driver on trial, not the four-year old boy. That is, the judge should have been clearer in pointing out that the dual function of right of way provisions is not to be used to hold the victim responsible for the accident. However, in an adversarial legal system, one side must win and the other side must lose. Justice Cromwell may be on the losing side, but the court should still heed his warning.