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An Alberta judge has dismissed a lawsuit involving one child suing another after a disagreement over a toy dinosaur led to a finger injury.
In a decision released earlier this month, Justice Brian Hougestol said the lawsuit involving the boys in Grande Prairie, Alta., was “quite rare” and raised “numerous legal issues related to capacity.”
The boys were enrolled in a summer daycare program operated by a non-governmental organization in 2022, when they got into a fight over the toy the judge described as being “the size of a 500-ml bottle of water.”
The plaintiff was nine years old at the time and the defendant was 11, said the Alberta Court of Justice decision.
‘Severed at the bone’
In a “swatting match,” it said, the toy was used by the defendant to strike at the plaintiff, causing a “dislocation fracture” to the ring finger of his right hand.
“The finger was essentially severed at the bone but still attached,” the judge wrote. “The injury required surgery or the finger would apparently have been lost.”
The finger of the plaintiff, who is now 13, healed well and causes him little to no ongoing difficulties, Hougestol said.
The judge said in his decision that a video of the altercation was taken at the time, but it was not produced at trial. Doctor or hospital records were also not provided to the court.
“The plaintiff’s descriptions of the incident were not very detailed,” Hougestol said of the boy’s testimony. “He was trying to recall an incident from over three years previous when he was much younger.”
The judge’s decision wasn’t clear whether the boys’ litigation representatives were their parents or other relatives.
However, Hougestol said the plaintiff’s mother “seemed fixed” on the fact that the defendant’s parents didn’t contact her after the injury.
‘No lack of supervision’
“The lack of contact is largely explained by the awkward situation presented by the third-party daycare,” said the judge, who also noted in his decision that it has since closed.
He said that although contact from the parents would have been “polite and courteous,” they were under no legal obligation to make contact.
“There was no evidence that they did anything wrong in relation to the incident itself,” Hougestol wrote.
“Their son wasn’t provided with a dangerous weapon or object. There was no lack of supervision. There was no encouragement. There was no evidence of poor child-rearing.”
In dismissing the lawsuit, the judge wrote that the injury was an “unfortunate fluke” that couldn’t have been anticipated and was not “part of any concerted or intentional assault.”
“Reasonable people expect the possibility of children having minor disagreements and minor altercations,” Hougestol said. “Children in these situations are within the expected scope of risk.”
He said if liability was found, the damages sought would have been $10,000 in general damages, plus out-of-pocket expenses.
