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PHYSICAL AND PSYCHOLOGICAL INJURIES - Head injuries - Brain damage - Concussion - Cognitive impairment

Wednesday, May 16, 2018 @ 8:36 AM  

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Appeal by the defendant Town from the award of damages to the plaintiff for injuries she sustained in a cycling accident and application by the Town for leave to appeal the award of costs. In 2006, the plaintiff, who was not wearing a helmet, fell off her bicycle after colliding with an undemarcated empty bollard bracket on a paved trail. She was taken by ambulance to the hospital, where she was diagnosed with a concussion. Several witnesses testified to the plaintiff's changes post-accident, including being forgetful, easily distracted, irritable, and unable to manage her workload as an IT specialist. The plaintiff had pre-existing anxiety and sleep issues that worsened after the accident. After the accident, she was treated by a psychiatrist for post-concussion syndrome. The plaintiff had not been employed since 2012, when her position was declared surplus and her request for redeployment was rejected. She grieved under her collective agreement and her grievance was settled for $10,000. The trial judge found the Town solely liable for the accident. He awarded the plaintiff damages, including $737,000 for lost income. The Town appealed. The Town argued that the trial judge made numerous errors, including incorrectly interpreting the Occupier's Liability Act, failing to apply the "but for" test, awarding damages for loss of income and failing to attribute any contributory negligence to the plaintiff. It also sought to appeal the costs award on the grounds that the amount awarded exceeded the reasonable expectation of the parties.

HELD: Appeal dismissed and application for leave to appeal the costs award denied. The trial judge made no error in his interpretation of the Occupier's Liability Act. The relevant provision, s. 4, did not require a finding that the Town acted intentionally with reckless disregard for the safety of others. The trial judge applied the appropriate test and his finding that the easily removable bollard and undemarcated housing constituted reckless disregard to the safety of persons using the trial was open to him. Reading the judge's reasons as a whole, it was apparent that the judge applied the "but for" test. The trial judge accepted the expert evidence that given the limited visibility of the housing, the plaintiff would not have had time to avoid the collision had she spotted it and, based on that evidence, he concluded that the incident occurred as a result of the Town's disregard for users of the trail. The accident caused the plaintiff to lose income as it affected her ability to perform the functions of her job and, after she was surplussed, she was unable to find another position. The expert evidence established that her cognitive disabilities were so profound that she was unable to obtain and maintain competitive employment. The trial judge made no error in not finding the plaintiff contributorily negligent. The Town had not adduced sufficient evidence to establish that the plaintiff did or did not do anything that contributed to the accident or the severity of her injuries. The trial judge had jurisdiction to make an award for lost income. There was nothing in the collective agreement that limited the right of the plaintiff, as a unionized employee, to sue a third party tortfeasor for lost wages. In reaching his decision on costs, the trial judge considered the reasonable expectations of the parties. He also considered Town's conduct of the litigation, which warranted an increase in costs.

Labanowicz v. Fort Erie (Town), [2018] O.J. No. 1923, Ontario Court of Appeal, C.W. Hourigan, G.I. Pardu and G. Huscroft JJ.A., April 10, 2018. Digest No. TLD-May142018005