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ASSESSMENT OF DAMAGES - Limiting factors - Contributory negligence - Duty to mitigate

Thursday, December 19, 2019 @ 6:25 AM  

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Appeal by the defendant from a jury trial verdict in which it was found 75 per cent liable for the plaintiff's damages. The plaintiff, age 13, was a grade eight student who suffered catastrophic injuries after she jumped from the back of a moving school bus operated by the defendant. The plaintiff knew that jumping from a moving school bus was dangerous but sought to do so in keeping with an informal tradition on the last day of school. Her twin sister and other students sought to dissuade the plaintiff from jumping. As the bus approached the plaintiff's home stop, she rushed to the back, opened the emergency exit door and jumped while the bus traveled at approximately 20 to 25 kph. The plaintiff fell and hit her head on the pavement. She suffered a head injury that likely rendered her permanently unable to work or live independently. The plaintiff was found 25 per cent contributorily negligent for her injuries. Damages were assessed at approximately $9.3 million, with the plaintiff receiving approximately $7 million. The plaintiff's mother was awarded an additional $4,700 for loss of care, guidance and companionship. The defendant's failure to report other similar jumping incidents to the school that reflected the students' last day tradition was a basis for being found negligent. The defendant appealed.

HELD: Appeal allowed in part. The trial judge did not misdirect the jury on the law of causation. The judge set out the different factors that led to the plaintiff's injuries and correctly explained the difference between the issues of causation and apportionment of liability. She properly reviewed the "but for" test for causation. Ample evidence supported the jury's verdict and apportionment of liability. There was no basis for appellate intervention with the liability verdict. Although the trial judge erred in removing the question of mitigation due the plaintiff's incapacity, the error did not affect the trial outcome given the absence of medical expert evidence her damages would have otherwise been reduced. The trial judge erred in failing to deduct the plaintiff's past statutory accident benefits from her award of damages. The deduction issue was remitted to the Superior Court for determination.

Little (Litigation guardian of) v. Floyd Sinton Ltd., [2019] O.J. No. 5615, Ontario Court of Appeal, M.H. Tulloch, L.B. Roberts and B. Miller JJ.A., November 4, 2019. Digest No. TLD-December162019007