Like many children in Barrie, Sarah took the bus to school. The last day of school was always special. Grade 8s would jump out the Emergency Exit of the bus as a grand farewell. The Bus Company did nothing to stop this annual event.
When Sarah was 13, she jumped out of the Emergency Exit on the last day of school. When Sarah jumped, she fractured her skull on the pavement and suffered a traumatic brain injury.
The Jury found Sarah was 25% at fault for her accident, and the Bus Company was 75% at fault.
Sarah’s impairments are profound. She won’t be able to work or to live alone. Because of the severity of Sarah’s impairments, the Jury awarded Sarah over 7 million dollars.
The Bus Company appealed the Jury verdict on three grounds;
1. The Trial Judge did not charge the Jury properly on negligence and causation, and the Jury arrived at an unreasonable verdict as a result.
2. The Trial Judge did not allow the Jury to consider Sarah’s failure to mitigate and the Jury arrived at an unreasonable verdict as a result.
3. Trial Counsel inadvertently did not ask the Trial Judge to deduct the past statutory accident benefits from Sarah’s award in the Judgement.
With respect to negligence and causation, the Court found that the Trial Judge clearly explained causation and apportionment to the Jury, explained each parties respective negligence positions and the factors that led to Sarah’s injury. The Court noted at paragraph 20;
There is no question that the jury was alive to the defence position that Ms. Little should be principally responsible for her tragic decision to jump from a moving school bus. It is noteworthy that in assessing Ms. Little’s contributory negligence at 25% the jury rejected her argument that the appellant should bear 80 to 90% of the fault.
The Court also noted that the parties drafted the liability portion of the charge and Counsel did not object to it.
The Court found the Trial Judge did not misdirect on causation and there was ample evidence to support the jury’s verdict and apportionment of liability.
With respect to mitigation, the Court found that a Jury could consider a child’s failure to mitigate, but it did not impact this case because there was no evidence an alternative course of treatment would have made a difference. The Court noted at paragraph 51;
Again, the appellant had the onus of proving a failure on the part of Ms. Little to mitigate her damages. This onus is not a light one. The appellant had to establish, on a balance of probabilities, that Ms. Little acted unreasonably in failing to take steps to mitigate her damages. See: Janiak, at pp. 163-166; Branco v. Allianz Insurance Co. of Canada (2006), 40 C.C.L.I. (4th) 277 (Ont. S.C.), at para. 20. Merely suggesting that Ms. Little should have taken some other course of action is insufficient to meet this standard and criticism of a plaintiff’s conduct must be viewed with caution. Instead, the appellant was required to bring forward reasoned and factually based evidence: Branco, at para. 21. In my view, it failed to do so.
With respect to the deduction of past Statutory Accident Benefits, the Defendant claimed that its Trial Counsel forgot to ask the Trial Judge to deduct past Statutory Accident Benefits from the Judgement. The Plaintiff’s position was that the parties agreed to not make the deduction because the Plaintiff did not make a claim for past medical and treatment expenses. The Court of Appeal determined it could not resolve the conflicting positions and ordered a new hearing on this issue alone.