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NEGLIGENCE - Duty and standard of care - Causal connection

Tuesday, June 18, 2019 @ 10:31 AM  

Lexis Advance® Quicklaw®
Appeal by the defendant University from a jury decision finding it solely negligent, awarding the respondent $9,160,584 in damages and dismissing its third-party claim against the Swim Club. The respondent, 16, a competitive swimmer and member of the Club, was rendered a quadriplegic when she dove into a pool owned by the University. The respondent failed to perform her dive as instructed and struck her head on the bottom of the pool. The starting blocks were installed at the shallower end which was acceptable because of the pool’s age. There was expert evidence that it was negligent for the University to allow the use of the diving blocks at the pool’s shallow end. The University disputed the jury’s failure to find the Club negligent. By agreement, the jury was given a damages summary worksheet which set out the respondent’s claims for damages and the joint position of the University and Club in respect to these heads of damages. The jury rendered its verdict on those heads of damages where there was no agreement, and which were not left to the trial judge to determine. The University challenged the award for the loss of a chance to enter an interdependent relationship of $879,000, the amount for pretrial and post-trial income or earning capacity of $1,512,000 and the amount for future care costs of $5,710,000. After her accident, the respondent entered competitive wheelchair rugby at which she excelled. As an elite carded athlete, she had received significant government funding.

HELD: Appeal dismissed. It was open to the jury to find that the University was negligent and that its negligence caused or contributed to the accident. Given the totality of the evidence, it was open to the jury to conclude that under any circumstance it was negligent to allow the use of the starting blocks at the pool’s shallow end and that the University was negligent because there was an alternate, safer place to mount the starting blocks. There was a sufficient foundation for the jury to conclude that if the dive had occurred at the pool’s deeper end, the respondent would not have suffered her injuries. There was a basis in the evidence for the jury to conclude that the respondent slipped and that the reason for the slip was the failure by the University to clean the diving blocks and that this breach of duty caused the respondent to slip, leading directly to her injury. It was open to the jury to find that the respondent was not negligent or that her negligence did not cause or contribute to her injuries. Although the respondent did not execute the dive as intended, this did not mean she failed to take reasonable care for her own safety. It was open to the jury to find that the Club was not negligent or that its negligence did not cause or contribute to the respondent’s while simultaneously finding the University solely liable. There was evidence to support the jury’s award of loss of marriage and interdependency benefits which fell within the range open to it on the evidence. The jury’s award reflected 60 per cent of the amount claimed. It can be inferred, therefore, that the jury did not conclude that the respondent’s chances of entering an interdependent relationship were fully impaired. With respect to the pretrial loss of income, there was an evidentiary foundation for the jury to ignore the government funding the respondent received before the trial. There was an evidentiary basis for the jury to calculate loss of future earnings damages on the basis that the respondent would experience a 71 per cent reduction in her future earnings because of her permanent injuries. In determining the cost of future care, there was evidence to support the conclusion that the respondent’s estimation of her own needs was falsely optimistic. The trial judge’s conclusion that respondent’s counsel’s comments did not risk prejudicing the jury’s verdict attracted deference. There was no reason to order a new trial because of any risk that the comments made to the jury affected a fair determination on the issues it was invited to decide.

Biletski v. University of Regina, [2019] S.J. No. 193, Saskatchewan Court of Appeal, R.G. Richards C.J.S., P.A. Whitmore and R. Leurer JJ.A., May 23, 2019. Digest No. TLD-June172019006