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Tort Law - Negligence - Contributory negligence - Apportionment of liability - Relation to causation

Thursday, August 25, 2016 @ 8:00 PM  


Action by the plaintiff, Mackey, against the defendant, the Province, for damages to compensate for personal injuries. In 2007, the plaintiff, age 17, was part of a school choir visiting Victoria from Arizona. While en route to a performance, the plaintiff climbed a concrete baluster on a railing along the perimeter of a pedestrian plaza overlooking the waterfront. He swung around a lamp post that proved to be severely corroded. The lamp post came loose and the plaintiff fell from approximately 20 feet to a concrete walkway. The plaintiff suffered a traumatic brain injury and was hospitalized for five weeks. The Province, through a now-dissolved Crown corporation, owned and managed the plaza, including the railing and lamp post. The Province issued third party claims against the School district and chaperones responsible for the plaintiff and other students at the time of the accident. The Province took the position that the accident was wholly the fault of the plaintiff, or the plaintiff and the third parties. The plaintiff claimed that but for his injury, there was a real and substantial possibility he would have become an orthopedic surgeon. The Province submitted that the plaintiff’s employment prospects were unchanged, as he was an average student who was and remained capable of modest employment.

HELD: Action allowed. The lamp post was never inspected or maintained. Annual painting allowed the underlying corrosion to continue unchecked. The skirt of the lamp post was never bolted to the baluster for support. The plaintiff’s accident would not have occurred, but for the state of the lamp post. However, the accident would not have occurred but for the plaintiff climbing the baluster and swinging around the lamp post. The Province was negligent and the plaintiff was contributorily negligent. The plaintiff’s conduct was more blameworthy than that of the Province, as he mounted a safe railing with a dangerous drop. The Province could not escape liability, as the lamp post was an accident waiting to happen. Liability was apportioned 35 per cent to the Province and 65 per cent to the plaintiff. No liability was attributable to the third parties, who behaved reasonably throughout. The accident caused a substantial permanent brain injury that adversely impacted the plaintiff’s bright future prospects. Although the plaintiff was able to marry and have a family, his injury left him immature, and unable to work in jobs requiring significant executive function, intellectual dexterity, and full emotional stability. The Province’s submission that his past scholastic performance barred him from eventually becoming a surgeon was rejected. The plaintiff’s exceptional drive and determination gave him a 60 per cent chance of achieving his career prospect, but for the accident. Prior to adjustment for his contributory negligence, the plaintiff was awarded $250,000 CAD for non-pecuniary damages, $15,000 CAD for an in-trust claim, $20,000 USD for costs of future care, and $4.53 million, USD, for loss of future earning capacity. No failure to mitigate damages was established.