In a world where child safety is a growing concern, the question of the school’s responsibility for supervision becomes increasingly relevant.
What happens if your child gets injured? Who will be held responsible for their injuries? Can you get compensation on behalf of your child? We explain the law applicable to this type of situation.
The obligation to monitor
Article 600 of the Civil Code provides that parents have parental authority. On the other hand, article 601 allows them to delegate “the custody, supervision [et]/ or education of the child” to others. Thus, by enrolling their children in a school, parents delegate this responsibility to schools and their attendants, including educators and caregivers. As a result, during school hours, they remain responsible for the children and their actions.
Therefore, when your child suffers injury, whether physical, material or moral, as a result of a fault committed by a school attendant, you will be subject to compensation. As provided for by the Civil Code, the person who claims to have a remedy will have to demonstrate the fault, the damage, and the causal link between these two elements.
The obligation of supervision, being an essential duty, is an obligation of means. Thus, when supervising children, the school must exercise caution and diligence. On the other hand, the applicable standard is not arbitrary, each case being a case in point. In addition, the degree of supervision depends on the age of the children. High school students do not require the same level of supervision as elementary school students.
This duty extends to recess hours and during sports activities. As the risk of injury is higher during these hours, the obligation of school remains more important. Moreover, with regard to the field of sport, the courts have established the obligations of the school as follows:
[…] The school, through the physical educator or supervisor, assumes and automatically binds itself to the following four main obligations:1- The obligation to inform the student about the dangers inherent in sports activities;
2- The obligation to monitor the progress of sports activities;
3- The obligation to provide safe and adequate sports equipment and premises;
4- The obligation to obtain the prior consent of parents for their child to participate in a particular sports or physical activity outside the regular framework of the recreation or physical education program.
Sharing of responsibility
When your child is injured at school, several people can be held responsible. Since the parental authority of the children is delegated to the school as well as to the educators, a legal claim could be brought against them. On the other hand, there are several other parties who can be sued as a result.
For example, your child plays in the schoolyard with his classmates. A student throws an object at other students, and as a result, your child suffers a serious injury. Who is responsible? In this case, liability may be shared between several parties.
The responsibility of the child
To begin with, according to article 1457 of the Civil Code, a person who commits a fault is required to compensate for the damage. In the case of a minor child, in order to be held responsible, he must be endowed with reason. Unlike criminal and penal law , there is no specific age at which a child is considered to be endowed with reason. However, case law considers that this age is around seven years, but this can be ruled out according to the opinion of the court. Consequently, if the court is of the opinion that the child is not endowed with reason, he will be relieved of any responsibility. Each case remains a case in its own case and the courts do not adopt specific criteria to determine the capacity of discernment of a minor child.
In a recent decision, the court gave examples of acts recognized as wrongful and giving rise to the responsibility of the child:
- accidentally punching one eye (12 years old);
- assault on a young girl at the end of recess;
- firing pellet rifles at residences (16 years old);
- throwing rocks at a school bus (6 years 9 months);
- fire ignited with liquid fuel in wood pellets (12 years) »
In addition, the following acts are not considered wrongful according to the court:
- accidentally throwing a snowball into the eye during a fort battle at school;
- playing matches for a 7-year-old child, which caused a fire to start in a dwelling;
- shoulder kicking during a game derived from football as part of a school activity;
- injury caused in a stick spear game (7 years);
- School yard fight.
Parental responsibility
Article 1459 of the Civil Code provides that parents, being the holder of parental authority, are required to compensate for the harm that their child causes to others. In order to get out of this, they will have to demonstrate that they have not failed in their duty of custody, education and supervision. In short, as soon as the duties inherent in parental authority have been fulfilled, they are relieved of all responsibilities.
The responsibility of the school
Finally, in such a situation, since the school and its employees are employees of a school board, it is the school board that will be held liable, according to article 1463 of the Civil Code. Moreover, in order to demonstrate their responsibility, three conditions must be demonstrated by the party wishing to sue the School Board. The Quebec courts mention that: (1) the wrongful act of the child, (2) the minority of the child, as well as (3) the status of the person responsible must be demonstrated.
In the event that these three factors have been demonstrated, the Commission could demonstrate no fault on its part in order to avoid their liability. For example, by demonstrating that the wrongful act occurred following the end of custody, that the Board provided adequate supervision, that the wrongful act was unforeseeable, etc.
It is important to remember that each case is a case in point. The facts will be analysed as a whole. So, if your child has suffered injuries as a result of neglect at school, do not hesitate to contact our firm.