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Judge sides with South Okanagan school district in negligence case
A South Okanagan school district has won a court battle against a former student who sued after suffering permanent injuries as a result of being punched by a classmate.
Tylor Jackson alleged in his lawsuit that the Okanagan Similkameen School District was negligent because the boy who hit him didn’t receive a stiff enough penalty for his involvement in another scuffle seven months earlier.
But B.C. Supreme Court Justice Lance Bernard ruled in the school board’s favour due mainly to a lack of information about the severity of the earlier incident, according to a written decision delivered Feb. 8 in Penticton.
The decision outlines how Jackson was injured at South Okanagan Secondary School in Oliver on Oct. 5, 2006. During the last class of that day, he asked his assailant, Makwala Hall, if he could borrow a pencil, to which Hall replied: “Maybe I should kick your white ass.”
After class, Jackson, who “blew off” the threat, was in a school corridor when Hall pushed him into a window then punched him in the head. Jackson later went to hospital where he was diagnosed with “brain-bleed,” and he still suffers from “permanent, significant mental and physical disabilities” that have “prevented him from completing high school or securing decent employment,” the judge wrote.
Both boys were in Grade 9 at the time. Hall died in July 2010 while competing in a bull riding event at a rodeo shortly after graduating from Mount Boucherie Secondary in West Kelowna.
Jackson’s legal action against the school district was initiated in July 2011 and sought unspecified damages, plus recovery of health-care costs. The lawsuit hinged on the earlier incident, after which Hall was suspended for a half-day for punching another boy at the same school on March 2, 2006.
According to the decision, Philip Rathjen, who was the school’s vice-principal at the time, wrote in a report that day that Hall “punched another student for spilling juice on him." But Rathjen later described the boy’s conduct as “physical intimidation” in a letter sent to Hall’s father.
Six years later, Rathjen told the court he couldn’t recall the incident, but could infer from the punishment that it was “not serious,” and likely involved “more of a shove or a threatening gesture than a hard punch.”
Jackson’s lawyer argued the school district failed to abide by its own disciplinary policy that called for a three- to five-day suspension for a student’s first assault offence. The less serious category of physical intimidation did not carry a mandatory minimum punishment.
Had the school suspended Hall for three days or more, Jackson’s lawyer suggested, it may have deterred Hall from the subsequent assault and served as a warning to Jackson to steer clear of Hall.
Justice Bernard concluded, however, that there was not enough evidence to determine whether the earlier incident was correctly classified as assault or physical intimidation. He also noted “it would require considerable speculation” to conclude that Hall would have been “sufficiently deterred or rehabilitated” by a stronger penalty, or that the assault on Jackson occurred because Hall “was emboldened by the inadequacy of the discipline.”
Marieze Tarr, who chairs the board of the Okanagan Similkameen School District, said in a statement Saturday that student safety is of the “utmost importance” to the district, and “there is never a winner in a case like this (because) we all know that this event has had a lifelong impact” on Jackson. Tarr added that the board respect’s Bernard’s decision, but that Jackson has 30 days to appeal.
Jackson couldn’t be reached for comment.