Pet food recall settles for $24 million

 

Menu Foods Inc., a Mississauga, Ontario manufacturer of pet foods, has received court approval for a US$24-million (Cdn$30-million) settlement over recalled tainted pet food. In March 2007, Menu Foods recalled approximately 60 million cans and pouches of its "cuts and gravy" style food, sold under 95 different brand names, after it received reports of kidney failure and death in cats and dogs.

More than 1,600 Canadians and roughly 23,000 Americans believe their pets were sickened or killed by the pet food, which was tainted with melamine. More than 100 class action lawsuits were filed in Canada and the U.S.

 

Pet owners will receive 100 per cent of any "economic damages" they incurred related to the recalled products, provided they have suitable documentation. Those without documentation may receive compensation up to US$900.

 

Economic damages include costs of purchasing the food or expenses relating to the pet's illness and/or death, including testing, veterinarian bills and burial costs. The settlement does not cover "non-economic losses" such as emotional distress.

 

The settlement is in addition to US$8 million already paid out to pet owners by some of the pet-food brands involved.

Menu Foods expects their total expenses related to the recall to hit $55 million. To date, their share price has lost approximately 90 per cent of its value since March 15 of last year, the day before the recall. 

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Pest-control manufacturer fights off $1.5-million lawsuit

 

The first role of liability insurance is to mount a vigorous defence to a lawsuit for damages, whatever the merits of the lawsuit. Insurers for a pest-control product recently secured the dismissal of an action seeking substantial damages arising from a February 1999 fire that destroyed an Ottawa banquet hall.

The plaintiff believed that a skunk was nesting under the floorboards in the men's washroom, so he ignited a fumigation cartridge and suspended it by a clothes hanger through an open drainpipe under the washroom floor. He then left the premises. Several hours later, he received a call from his alarm company advising that the fire department was attending a fire at the facility. The blaze destroyed the hall and its contents.

The plaintiff and his insurers sued the supplier of the fumigation cartridge, claiming $1.5 million in damages for negligence, breach of contract, and breach of statutory warranties and conditions under the Ontario Sale of Goods Act.

The court learned that the product was designed to fumigate and exterminate rodents. Upon ignition, the gas cartridge produces sulphur oxide gases and is intended to be dropped into rodent burrows out of doors.

After a three-day trial, the court concluded that the product was properly labelled and included detailed instructions on its safe use. The judge determined that the fire was caused by the plaintiff's unsafe use of the product and his deliberate disregard of the manufacturer's warning labels. Accordingly, the action against the manufacturer was dismissed. 

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Appeal court upholds tiger mauling ruling

 

In a 2-1 ruling, the Ontario Court of Appeal has upheld a trial court verdict that African Lion Safari, a Hamilton, Ontario safari park, is liable for injuries suffered by a couple who were attacked in their car by a tiger. Jennifer-Anne Cowles and David Balac were driving through the big cat enclosure in April 1996 when the tiger entered the vehicle through an open window. Both occupants were seriously injured. The trial court awarded the couple damages of $2.6 million.

Our Canadian Liability Insurers program was the primary insurer for the defendants. The trial court ruling was originally reported in the spring 2005 edition of News Board.

The insurers appealed the trial court verdict. They argued that the court wrongly applied strict liability doctrine rather than normal contributory negligence. They also claimed that the court improperly disregarded expert evidence that the occupants must have deliberately lowered their car window. They said evidence of the appellant's investigators was not admitted and evidence of park officials and ambulance attendants, who heard the plaintiffs quarrelling about the accident, was ignored or misapprehended by the trial court.

The appeal court upheld the trial court verdict.

You can read the appeal court verdict at: http://www.ontariocourts.on.ca/decisions/2006/october/C43131.htm  .

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US$15-million for fatal Chicago crash

 

Our insurers have reached a US$15-million (Cdn$17.2-million) pretrial settlement on behalf of a Quebec trucking firm for damages arising from a terrible multi-vehicle accident in September 2002. A Chicago-area couple, travelling to Detroit to celebrate their 33rd wedding anniversary, were stopped in traffic when their car and three other vehicles were rear-ended by our client's tractor-trailer.

The 56-year-old man was pronounced dead on arrival at the hospital. His 58-year-old wife's injuries included a torn carotid artery, which caused bleeding in the brain and resulted in a partial paralysis on her right side. She has cognitive deficits and continues to receive outpatient physical therapy. She is dependent on a four-prong cane to move about her home and requires a wheelchair when outside the house. Three other people received minor injuries in the accident.

The settlement was reached just days before the trial was due to commence. With legal and court costs, this settlement will likely cost insurers more than Cdn$18 million.

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Hepatitis A scare costs Loblaws more than $4-million

 

In the summer of 2002, an employee of a Loblaws store in Toronto was diagnosed with hepatitis A, a relatively mild form of the disease. As a public health precaution, more than 19,000 people were vaccinated against the disease.

Matthew Vezina, a court reporter, commenced a class action seeking more than $100 million in damages.

Loblaws did not admit negligence or guilt but agreed to pay $150 for anyone who shopped in the store between July 19 and August 16, 2002 and was vaccinated or consulted a doctor.

They will also pay $700,000 in legal fees to the class action lawyer.

To date, only two people are thought to have contracted the disease from this exposure. They will be compensated separately.

This case will likely cost Loblaws more than $4 million, including their own legal fees.

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Christmas dinner ruined by salmonella contamination costs $1.5-million

 

A large salmonella outbreak in December 1998 hit 118 of 130 guests at a Christmas banquet at a restaurant and entertainment centre in Canmore, Alberta. The victims were employees, clients and friends of a local residential developer. The salmonella was found to be present in the roast turkey served to guests.

Eighty-five people received $2,500 each and the others received higher settlements, depending on their symptoms. One victim who suffered a recurrence of polio, a condition known as post-polio syndrome (PPS), received a very large settlement in mediation.

In total, this outbreak cost $1.2 million and more than $350,000 in legal and defence costs.

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Teen thrown from bicycle awarded $3.5-million

 

In March 2006, a six-person jury awarded $3.5 million in damages to a young man who was seriously injured after being thrown from a defective bicycle. The accident occurred on May 18, 1998, after the front suspension forks separated from the frame of the bike. Nathan Anthony Resch, a 15-year-old Grade 9 student, crashed face-first onto the pavement.

The court heard that he suffered severe head injuries, including a fractured forehead and lower jaw. His tongue was cut in half, part of his nose was crushed, and he suffered multiple facial cuts. He also suffered serious and lasting brain injuries. As a result of the accident, he has since gone through 20 jobs and is unable to hold down steady work.

Resch and his stepfather purchased the assembled mountain bike in April of 1998. On May 12, the stepfather saw a notice in the local paper recalling the bike. Although the manufacturer, Procycle Group Inc., had already received six complaints regarding the suspension forks separating from the frame, the recall notice did not warn the bicycle owners of the seriousness of the recall nor did it advise them to stop riding the bikes.

Three days after reading the notice, Resch returned the bike to the Fort Erie Canadian Tire where he had purchased it. A store employee told him that a replacement part needed to fix the bike wasn't available and advised him to bring the bike back the following week for repair. Resch continued to ride the bike over the weekend, and the crash took place on the holiday Monday. Included in the $3.5 million in damages are $160,000 and $32,000 in punitive damages against Canadian Tire and Procycle respectively. "Punitive damages are meant to punish a company for their conduct, and the jury clearly wanted to punish Canadian Tire and Procycle for their conduct in this matter," said Resch's co-counsel, Darcy Merkur.

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Another $2-million award for boy who fell through apartment flyscreen

 

A boy who survived a fall through an apartment window and was awarded almost $13 million for his injuries has been awarded an additional $1,795,800 for guardianship costs and $250,000 for post-judgment interest. The boy was two years old at the time of the accident. His parents left him in the care of his aunt, who lived at the same apartment building. From a bed that was pushed up against and at the same level as the open window, he broke or fell through a hole in a flyscreen. He fell five storeys and landed on the grass, very close to a cement walkway.

He suffered multiple serious injuries, including permanent brain injury as a result of which he will require care for the remainder of his life.

The jury assessed damages at $13 million, including more than $11 million for the cost of future care. The parties agreed that the plaintiff's costs and damages for future guardianship costs would be left to be determined by the judge alone.

The judge subsequently agreed to award the boy's lawyer a $350,000 bonus to recognize the lawyer's exceptional result on behalf of the plaintiff. As is customary when the plaintiff is a minor, the boy's lawyer applied for the court's consent for a $1-million premium on top of her $1,260,000 fee.

The court acknowledged that counsel had achieved significant results for the plaintiff. The court also recognized that the boy's family would have been very hard pressed to pay the lawyer's fee if their case had failed. The lawyer had tried the case with great energy for more than eight years and satisfied both the result and risk criteria for a fee premium. But the judge ruled that an appropriate premium would be $350,000-not the $1 million requested by the lawyer-and the bonus will be paid by the defendants, not the plaintiff.

With the defendants' legal fees, this case will likely cost the defendants more than $16 million. This is a record in Canada, so the award will likely be appealed.

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$2-million award has victims of violent crime rejoicing

 

Victims of crime claimed victory when an Ontario court endorsed a plea bargain that gives a Toronto woman $2 million in restitution from the men convicted of paralyzing her in a botched mob hit. On April 21, 2004, Louise Russo, a 45-year-old mother of three, had just entered a local sandwich shop when a barrage of bullets came piercing through the glass, striking her twice. One of the bullets grazed her scalp while the other struck her in the back, shattering her spine and resulting in permanent paralysis.

In exchange for the compensation and their admission of guilt, the four men in question will receive prison sentences of 11 to 12 years each.

Critics blasted the deal, arguing that restitution should not be used as a get-out-of-jail-early card. Progressive Conservative MPP Bob Runciman said it looks as though organized crime is attempting to buy a cheaper sentence.

Those involved in the negotiations defended the deal, saying it is the best possible outcome for all parties. It avoids a lengthy and costly trial and provides the victim with a greater level of compensation than she would have otherwise received.

In Ontario, victims of crime have historically received restitution from the Criminal Injuries Compensation Board, which offers victims either a lump-sum payment of up to $25,000 or monthly payments of up to $1,000 to a cap of $365,000.

Backers of the deal also argued that the sentences are largely the same as what the men would have received had they been convicted at trial.

Because restitution is a relatively new provision of law, introduced in 1996, the public is not very familiar with it.

Russo held a brief news conference to thank her supporters and defined the deal as a rare step in the right direction for the rights of victims of crime.

The controversial agreement was approved by Ontario Attorney General Michael Bryant.

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Appeal court rules leasing company must pay most of $5.8-million award

 

The British Columbia Court of Appeal has partially reversed a trial court ruling, with the result that a leasing company must pay the majority of a plaintiff's damages. In December 2004, the B.C. Supreme Court awarded a young woman $5.8 million and additional amounts for income tax gross-up, management fees, costs, and pre- and post-judgment interest for serious injuries sustained in a December 1998 auto accident.

The principal defendant was the driver of the car in which the young woman was riding. The vehicle was leased to the driver's father, so both the father and the leasing company were added to the lawsuit. The plaintiff asked the court to make the father and the leasing company vicariously liable with the driver for her injuries.

The driver of a second vehicle involved in the accident was also sued, but it appeared that she was blameless, so the case against her was dismissed.

The trial court found that under B.C.'s legal rules, the father, not the leasing company, was the owner of the vehicle. Under section 86 of B.C.'s Motor Vehicles Act, the owner is vicariously liable for the acts of the driver.

It appeared that the leasing company required the owner to carry $2 million in auto limits. However, after the trial court verdict, both father and son left Canada, so it is unlikely that they were willing or able to satisfy the uninsured portion of the damages award. As a result, the plaintiff appealed the trial court's finding that the leasing company was not jointly liable with the other defendants for her injuries.

The appeal court reversed the lower court's finding, and because the rest of the verdict was not appealed, the leasing company must pay the unsatisfied portion of the award. This trial court verdict was previously reported in our Spring 2005 edition of News Board.

You can read this appeal court verdict at: http://www.courts.gov.bc.ca/jdb-txt/ca/06/02/2006bcca0217.htm .

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$10-million award for neighbours of "snowmobile highway"

 

A Quebec Superior Court judge has issued a stunning verdict in favour of neighbours of a snowmobile trail in the Laurentians, north of Montreal. The dispute started in 1997, when the trail was opened on an old railway right-of-way. The trail was soon so busy that it became known as the "snowmobile highway." Residents close to the trail complained that they had to sleep with earplugs to drown out the sound of the snowmobilers.

The lawsuit was aimed at the snowmobilers' association; the province of Quebec, which owns the trail; and the Laurentians Regional Municipality (MRC), which operates the trail. But only Quebec and MRC must pay compensation to residents. The total cost of the award, including legal expenses, may reach $10 million. The court also ruled that a 38-kilometre section of the snowmobile trail represents a source of noise pollution and should be closed.

The November 2004 ruling set snowmobilers and the recreation industry against rural cottagers.

Quebec quickly introduced legislation that cut snowmobile speeds to 30 kilometres an hour in residential areas and restricted access to some trails between 10 p.m. and 6 a.m.

The controversial Bill 90 will remain in effect until May 2006 and prevents new lawsuits from homeowners for noise, odours or other nuisances. The bill is retroactive, covering other complaints launched in the last three years.

We expect the defendants to appeal this ruling.

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Polio survivor wins $1.5-million for supermarket fall

 

A 1993 slip and fall in a Toronto supermarket resulted in an unusually high award for damages. The victim was a 52-year-old doctor from Vancouver who was visiting Toronto with his family. He slipped on a wet floor near the produce section of the supermarket, fracturing the patella of his left leg.

As a very young child, he had contracted poliomyelitis that affected his lower limbs and left him with a significant impairment in his right leg.

After the accident, he began to experience symptoms of profound fatigue, pain and muscle weakness and was eventually diagnosed with post-polio syndrome or PPS. He now wears braces on both legs and walks with difficulty. There is no known remedy for PPS, so his level of disability will continue to advance progressively.

He commenced a legal action for damages against Loblaws, and the case was heard by Justice Lax of the Ontario Superior Court of Justice over four weeks in June 2005.

The plaintiff argued that Loblaws's negligence was the cause of his injury and that the trauma either caused PPS or contributed in a material way to his overall impairment. Loblaws denied that it was negligent or that the accident caused his present condition. Loblaws argued that the plaintiff would likely have developed PPS regardless of the slip and fall.

In November 2005, more than 12 years after the accident, Justice Lax found in favour of the plaintiff and awarded him $1.5 million. With prejudgment interest and four weeks of trial, this verdict will cost the defendants $2.4 million.

You can read this verdict at: http://www.canlii.org/en/on/onsc/doc/2005/2005canlii43678/2005canlii43678.html .

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$5.7-million settlement for border-crossing collision families

 

A drunk driver who collided with another car while it was stopped at a B.C.-Washington border crossing must pay $5.7 million in damages. Sixty-year-old salesman John Lagerwey had a blood alcohol level of 0.24, three times the legal limit. He was travelling at 120 kilometres an hour when he rammed the other vehicle in May 2004. Lagerwey was driving a company van for Nurnberg Scientific of Portland, Oregon. Nurnberg's insurers will pay about $3.5 million. Insurers for Lagerwey and the owners of a bar in which he was drinking prior to the accident will pay about $1.1 million each.

Victim Koon Bun Kwan, 60, will require care, likely 24-hour-a-day assisted care or at least a nurse's aide for most of his waking hours, according to his lawyer, Greg Samuels.

The defendants' insurers opted to settle out of court for policy limits rather than risk the possibility of a larger jury award in Whatcom County Superior Court. "Frankly, it's a case that was probably worth around US$12 million," said Samuels.

He said the settlement would have been substantially lower in Canada, with the award for pain and suffering probably limited to about Cdn$280,000.

This case is unreported as we go to press.

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$5-million settlement for welding failures

 

Our insurers have secured a substantial settlement on behalf of a client arising from the failure of industrial process equipment at a major industrial plant in the U.S. The Canadian fabricator of industrial equipment entered into a contract to fabricate a number of important components for the industrial plant.

Within six months from installation in 2002, the plant operators identified production problems and determined that the components supplied by our clients had not been fabricated to specifications. They shut down the plant, disassembled the components, and hired another contractor to repair the defective components. The huge plant was shut down for almost a week.

They commenced a legal action against the main contractor, the Canadian component supplier and several other defendants for repair costs and downtime, totalling more than US$6 million. Investigation of the loss involved extensive engineering analysis of the manufacturing failures and legal analysis of liability and coverage issues.

Shortly before the trial date, the parties reached a settlement for US$3.35 million or just under Cdn$3.95 million. Including legal and investigation expenses, we believe that this case will cost our insurers more than Cdn$5 million. This case is unreported as we go to press.

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Tow truck must pay most of $9-million award for downtown Toronto collision

 

A young girl who was terribly injured in an automobile collision in downtown Toronto has secured a substantial settlement. The car in which the girl was a rear-seat passenger was driven by her aunt. She was driving through an intersection controlled by a stop sign when she was struck by tow truck that had the right of way. The impact hit the car on the left-side passenger compartment. The three occupants of the car were injured, but none as seriously as the girl. The two vehicles mounted the sidewalk together and struck two pedestrians, one of whom was also seriously injured.

The girl was six years old when the accident occurred. She was in a coma for eight days and suffered irreversible brain damage, as a result of which she will need 24-hour-a-day care for the rest of her life.

Halfway through the trial, the parties agreed on damages, reaching a $5.5-million settlement. The settlement is in addition to no-fault accident benefits, which will exceed $2 million, and plaintiff's legal fees, likely more than $1 million.

The trial continued, but only with respect to the apportionment of liability between the drivers of the two vehicles. The girl's aunt carried only $1-million limits, and her insurer secured a settlement prior to trial, so only the case against the tow truck operator remained to be tried. The girl's aunt failed to yield to the right-of-way tow truck driver, but the jury also heard evidence from an accident reconstruction expert that the tow truck operator was likely speeding. Accordingly, they held the aunt 53-per-cent to blame for the accident and the tow truck operator 47-per-cent to blame.

Under Ontario's contributory negligence rule, if an at-fault defendant is impecunious or unable to pay his share of the judgment, the other defendants must pay the unsatisfied portion of the damages in addition to their own share.

Thus, the majority of this award would likely have fallen to the tow truck operator, no matter how blame was apportioned between the at-fault defendants.

The total cost of this accident, including the legal and trial costs, is likely to exceed $9 million. This case is unreported as we go to press.

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$2.5-million award for wrongfully jailed man

 

A Shelburne, Nova Scotia man who spent five years in prison for a murder he didn't commit has won a $2.5-million settlement from the Nova Scotia Minister of Justice. The man's wife was found dead in February 1989. At first, the death was regarded as a tragic accident, but after the man remarried, the RCMP reopened the case and charged him with murder.

He was convicted in 1998, but acquitted by the appeal court in 2002.

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Court rejects insurer's bid for contribution for judo victim's $2.75-million award

 

The Ontario Superior Court of Justice has rejected an insurer's bid to make two other insurers contribute to a $2.75-million mediated award to a man who was seriously injured while sparring after judo class. Canadian Universities Reciprocal Insurance Exchange (CURIE) agreed to pay the mediated damages award, then commenced an action for contribution against two other insurers. State Farm was the personal liability insurer of one of the defendants. Before this issue came to trial, State Farm settled for $300,000 and was released from the action. CGU Insurance was the insurer for Judo Ontario. On behalf of its client, CGU argued that the University of Windsor's judo club was not a member of Judo Ontario. Accordingly, the activity was not a Judo Ontario-sanctioned event, so no cover was afforded under the Judo Ontario policy.

After a four-day trial, the court ruled against the plaintiff.

In September 1996, Chester Lam sued several defendants - his sparring partner; the judo instructor who organized the classes; the assistant instructor; and the University of Windsor, in whose multi-purpose room the accident occurred.

The assistant instructor completed the evening class of instruction and, as is the custom, bowed the class out. Lam and Jeffrey Piescic, who was attending his first judo class, decided to remain behind to practise some throws together. The court concluded that Piescic lost his balance and accidentally hit Lam on the chin. The court found no evidence of excessive force, but Lam suffered a broken neck and, as a result, will spend the rest of his life in a wheelchair.

The instructor left the premises shortly after the class commenced. The assistant instructor left shortly after the class finished and was not present when the accident occurred. The court concluded that it was improper for members of the class to be permitted to practise unsupervised, especially students of differing age, weight and experience.

No blame for the accident was attributed to Lam or his sparring partner. Instead, liability was divided equally among the other three defendants.

CURIE agreed to settle the plaintiff's case in full, then seek contribution from insurers for the other defendants.

In 2004, the Ontario Court of Appeal restored Lam's lawyer’s claim for $550,000 under a contingency fee agreement, calling it both fair and reasonable.

When Lam received counsel's statement of account for $550,000, he asked the court to reassess or modify the contingency fee agreement.

The trial court concluded that the fee was unenforceable and excessive, and ordered it to be halved. The appeal court reversed the lower court ruling, saying that the fee was fair and reasonable, given the complex issues of liability and negligence posed by the case, the high risk of contributory negligence, and the outstanding results achieved by the litigation team. With interest and defence expenses for the various parties, we expect the cost of this claim to exceed $4 million. You can read this verdict at http://www.canlii.org/en/on/onsc/doc/2005/2005canlii28177/2005canlii28177.html .

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Mediated settlement for 2002 Catholic World Youth Day accident

 

The July 2002 Catholic World Youth Day was a week-long event that attracted young Christian pilgrims from all over the world to Toronto. It culminated in a huge outdoor mass in Downsview Park in north Toronto, led by Pope John Paul II and attended by more than 500,000 worshippers.

After the event was over, more than 7,000 portable toilets had to be emptied before they could be trucked away. As the waste was being pumped into a city sewer, a large quantity backed up into the basements of several local businesses, resulting in substantial property damage and business interruption losses.

The affected businesses commenced legal actions against the organizers and more than a dozen other potentially responsible parties. Insurers for the affected businesses also initiated subrogation actions to recover their cleanup and restoration costs. The lawsuits sought more than $18 million in damages.

The cases were settled under the supervision of a court-appointed mediator in April 2005. The settlement was subject to a confidentiality agreement, so its final cost and the identity of its contributors were not disclosed.

A case such as this, involving multiple plaintiffs and defendants, could take many years to work through the courts, at great expense. The mediation undoubtedly saved the various parties considerable legal fees and court costs.

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Alberta appeal court upholds cyclist's $2,087,000 award

 

A cyclist who was awarded more than $2 million by a trial court judge appealed the award, arguing that he should have won nearly $2.5 million.

The man was seriously injured when he was hit by an inattentive motorist in August 1999. The trial court heard eight days of evidence and concluded that the motorist was solely responsible for the accident.

Both parties appealed the damages award. The cyclist argued that the award was too low and the motorist argued that it was too high. The matter of liability was not raised in the appeal.

The appeal court ruled that the trial judge had made no reviewable errors and upheld the trial court award for damages.

You can read this verdict at:

http://www.canlii.org/ab/cas/abca/2005/2005abca154.html

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$220-million settlement for Athabasca Oil Sands fire

 

Eight days after production began at the massive Muskeg River Mine in January 2003, production was interrupted by a series of fires and explosions. Production was halted for a further three months.

The $220-million business interruption settlement was less than half of the original claim for $500 million. Settled separately for an undisclosed sum, the repair costs were said to have been elevated by the cost of shipping custom-made parts to the remote site.

News Board usually reports only on liability losses but this settlement, which is likely the largest business interruption loss ever in Canada, was too big to ignore.

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Court rules new trial required for $6.2-million auto accident

 

The British Columbia Court of Appeal has ruled that a road accident that resulted in a large damages award against two drivers be retried.

Jason Coulter was a rear-seat passenger in a vehicle that was involved in a serious accident on the Trans-Canada Highway near Golden, B.C. in February 1997. The vehicle in which he was riding was driven by 16-year-old Erin Ball and owned by her father, Robert Ball. The accident occurred when Ms. Ball attempted to cross the highway from a side road. The Ball vehicle crossed into the path of a vehicle travelling on the highway and driven by the appellant, an off-duty RCMP Constable, Pierre André Leduc.

The trial without a jury began on May 13, 2002 and spanned some 20 days. The trial judge found each driver equally responsible for the accident and said the fact that Coulter was not wearing a seat belt did not contribute to his injuries.

The appellants disputed the findings of liability, division of liability, contributory negligence and damages. In April 2005, after a four-day hearing, the appeal court ruled that the evidence presented at the trial court did not support the verdict on liability and ordered a retrial.

The appeal court upheld the award of non-pecuniary damages but set aside substantial elements of the awards of damages for past income loss, loss of future earning capacity and cost of future care. Income tax gross-up, management and committee fees will also be reassessed.

You can read this verdict at

http://www.courts.gov.bc.ca/jdb-txt/ca/05/01/2005bcca0199err2.htm .

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Appeal court upholds $5.6-million truck crash award

 

The Ontario Court of Appeal has upheld a trial court verdict in favour of a young woman who was seriously injured in a collision with a stationary tractor-trailer.

The accident occurred on the evening of April 17, 1997 on a rural two-lane road in Sarnia, Ontario. At the end of a run to Flint, Michigan, the driver of the tractor-trailer was backing the rig off the road into his driveway, but he lost traction and was unable to get completely off the road. Instead, he moved the rig slowly forward until the stationary cab was facing down the road, with the trailer straddling the road.

The plaintiff's vehicle passed the cab, then hit the rear of the trailer and flipped over into the ditch. The plaintiff was seriously and permanently disabled.

The court ruled that on the unlit road, the plaintiff could not have seen the trailer blocking the road until she had passed the headlights of the cab. There was no evidence that she was travelling at an excessive speed, so the truck driver was held solely at fault for the accident. The owner of the trailer was held jointly and severally liable for the accident, along with the driver.

The trial court awarded $5.6 million in damages and costs to the plaintiff. The defendants appealed several features of the trial verdict, but following a two-day appeal, the trial verdict was upheld except for some minor adjustments to the award for plaintiff's legal costs.

You can read this verdict at:

http://www.ontariocourts.on.ca/decisions/2005/april/C40260.htm

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$10-million award for barbecue lighter fire

 

A Barnstead, New Hampshire family has won a huge settlement from the Canadian producer of barbecue equipment and others as a result of a tragic house fire in October 1999. The family lost a two-year-old child in the house fire, and the mother and a five-year-old boy suffered serious burns.

The family alleged that the boy had been handling a butane barbecue lighter and that this was the likely cause of the fire.

The lighter was manufactured in the far east under contract to the Canadian distributor as part of a range of grill accessories. The lighter did not have a child-proof feature, and although there was no national standard for such devices to be childproofed, insurers for the distributor elected to settle rather than take the case to trial.

The far-east manufacturer carried no product liability insurance, so was unable to contribute to the settlement. Instead, insurers negotiated a pretrial settlement worth Cdn$10 million in June 2004. The retail chain through which the product was sold also secured a settlement for an undisclosed sum.

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$2-million award for family of girl killed in fluke camping accident

 

The family of a five-year-old girl who died in a freak camping accident in July 2002 have secured a substantial settlement.

The Mount Orab, Ohio family was roasting marshmallows at a Tennessee campsite when the girl's 10-year-old brother set fire to his marshmallow. When he shook the barbecue fork vigorously to extinguish the flames, the metal tines separated from the handle, flew several metres and hit his sister in the back of her head. The impact pierced her skull and she died as a result of her injuries.

The barbecue forks were manufactured in the far east. They were imported by a Canadian distributor and sold in the U.S. through a national retail chain. Under the terms of the purchase order, the retailer looked to the manufacturer and the distributor to defend the loss.

Unfortunately, the manufacturer carried no product liability insurance, so it fell to the Canadian distributor to defend the loss. The distributor's insurer secured the settlement with the family in June 2004.

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Tavern to pay much of $7-million award for server failure

 

The Supreme Court of British Columbia has ruled on a server liability case which we believe may have serious future implications for the hospitality industry.

In the early hours of June 12, 1999, a large group of young people was standing on the sidewalk and in a parking lane adjacent to the Steveston Hotel in a historical section of Richmond, B.C. when a car drove through the group, injuring five people. One of the pedestrians suffered permanent injuries and will likely never work again.

The 21-year-old driver's blood alcohol level was more than twice the legal limit. He pleaded guilty to the charge of impaired driving causing bodily harm.

The driver had spent the evening at the Steveston Hotel. The court heard that the man was visibly intoxicated when he left the tavern and that a young server, alert to his condition, begged the doorman, other servers and patrons to help her prevent the driver from getting into his car. She followed him into the parking lot, but was unsuccessful in preventing him from getting behind the wheel. Within minutes, he had struck and injured the pedestrians.

Following the three-week trial, the court found that the driver was 50-per-cent to blame for the accident.

The court ruled that in permitting the man to be over-served and to disregard the intervention of the server, the bar should be held 50-percent to blame for the injuries. To date, server liability cases have usually resulted in no more than a 15- to 20-per-cent share of the blame for servers.

The court was not asked to determine damages, but it appears that total damages for all the injured pedestrians might exceed $7 million, plus interest and legal costs.

This ruling is likely to be appealed, but practically speaking, if the driver had insufficient insurance to satisfy his share of liability for the accident, then under B.C.'s joint and several liability doctrine, the tavern must pay the unsatisfied portion of the damages-whatever percentage of blame is attributed to them-in addition to their share.

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Another leased vehicle crash results in $5.8-million award

 

In contrast to our front-page story, the British Columbia Supreme Court recently awarded a young woman $5.8 million for serious injuries sustained in a December 1998 accident.

The driver of a second vehicle involved in the accident was also sued, but it appeared that she was blameless, so the case against her was dismissed.

The principal defendant was the driver of the car in which the injured young woman was riding. The vehicle was leased to the father of the driver, so both the father and the leasing company were added to the lawsuit, and the court was asked to determine whether the father and the leasing company were vicariously liable for the woman's injuries.

The court found that under B.C.'s legal rules, the leasing company is not vicariously liable with the driver. The father was deemed to be the owner of the vehicle, and under s.86 of B.C.'s Motor Vehicles Act, the owner is vicariously liable for the acts of the driver.

In addition to the $5.8-million damages award, additional amounts were awarded for income tax gross-up, management fees, pre- and postjudgment interest and costs.

The court heard evidence that the leasing company required the owner to carry $2 million in auto limits, but it is not clear whether the owner has additional insurance limits or other assets to satisfy this judgment.

Read this verdict at: http://www.courts.gov.bc.ca/jdb-txt/SC/04/16/2004BCSC1648.htm .

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$13-million award for leased vehicle crash

 

A young woman who was terribly injured in a single vehicle accident has won a massive contribution to her settlement for damages from the leasing company that owned the vehicle.

The August 1997 accident occurred when the car skidded off a county road near Peterborough, Ontario. It rolled several times and landed in a ditch.

The 22-year-old woman was a front-seat passenger in the car. She was thrown 50 metres from the car and suffered a broken pelvis and massive brain injuries. Following the accident, she endured many months of treatment for her injuries, but she remains severely disabled and will require around-the-clock care for the rest of her life.

The driver was convicted for dangerous and drunk driving. There is no report of any injuries to the driver or the other occupants of the vehicle.

Under Ontario's Highway Traffic Act, the vehicle owner is jointly and severally liable with the driver, so the leasing company must pay the vast majority of this settlement.

The settlement was reached just four days before the trial was scheduled to start. The woman's lawyer said, "The settlement will provide her with the best care available for the rest of her life. The structured annuity will generate millions of dollars to meet her future care needs."

State Farm, the driver's auto insurer, paid almost $3 million for third-party and accident benefit claims. Insurers for the leasing company contributed another $10 million toward the settlement, according to Review, Swiss Re's monthly newsletter.

It appears that if the vehicle had been owned by the driver rather than leased, the victim would have recovered only $3 million.

The Canadian Finance and Leasing Association said that talks are scheduled with the Ontario Minister of Transportation to review the fairness of making the leasing company responsible for such a large share of the damages awarded to the victim in the absence of negligence by the leasing company.

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$11-million award for families of Giant Mine explosion

 

Seven miners were killed by an explosive device set deliberately by an angry miner during a long and bitter strike at the Giant Mine in Yellowknife, Northwest Territories in September 1992.

In December 2004, the families of the seven miners were awarded $11 million in damages.

The lawsuit was commenced by the Workers Compensation Board (WCB). The WCB will pay out some of the award to the families of the victims. The remainder will go to the WCB as compensation for some of the money it has already paid out to the families.

The 419-page judgment criticized the mine owners, the union and even the Mines Safety Division of the provincial government.

Roger Warren was convicted of second-degree murder for setting the explosive device, which killed seven miners who had crossed the picket line to resume work in the mine.

Blame for the accident was apportioned in the following way: 26 per cent to Warren; 23 per cent to mine owner Royal Oak; 22 per cent to the union; 15 per cent to Pinkerton's, the security company; and nine per cent to the territorial government.

Warren did not file a defence to the action and remains in custody. He is unable to pay his share of the damages, so under the N.W.T.'s doctrine of joint and several liability, the other defendants must pay Warren's share of the damages as well as their own.

This is the first case in which a union has been held to blame for the independent, criminal act of a union member.

The total cost of this award, including pre- and post judgment interest and the legal expenses of all the parties involved, will likely exceed $15 million. This verdict, which comes 12 years after the tragic explosion, is expected to be appealed.

Read this verdict at:

http://www.canlii.org/en/nt/ntsc/doc/2004/2004nwtsc66/2004nwtsc66.html .

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Appeal court upholds $11-million award for birthing injuries

 

A huge trial court verdict for the family of a 19-year-old girl for injuries she sustained at birth has been upheld by Ontario's Court of Appeal. The girl's mother sued two family physicians who attended the birth, the Smiths Falls, Ontario hospital and several other medical practitioners.

The baby was born limp and white with a dark-blue head and face. Deprived of oxygen, the baby suffered permanent brain damage during birth and will never be able to take care of herself. She will require full-time care for the remainder of her life.

The baby was born in December 1983, but her mother did not commence the lawsuit until 1994, when the girl was 11 years old. It was only then that she discovered that medical negligence might have caused her daughter's injuries. The case took a further nine years before it was heard before the Ontario Superior Court of Justice.

After a 57-day trial, the judge ruled that the girl's injuries were the result of a lack of oxygen during birth, which was caused by excessive birth weight due to untreated gestational diabetes. The judge awarded the family $9.5 million. With costs and prejudgment interest, this award will exceed $11 million.

The defendants referred the verdict to the Ontario Court of Appeal, which upheld the trial court's decision. The family was awarded a further $255,000 for their cost of the appeal.

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B.C. court rules parents must share blame for teen drinking crash

 

British Columbia's Supreme Court has ruled that parents have a duty to ensure that their underage party guests don't drink and drive. Eighteen-year-old Desiree Vetter became intoxicated at a back-yard party held at Greg and Shari Vetter's home in Enderby, B.C. in June 1998. She left the party by car at 1:30 a.m. with six passengers. Just a few minutes later, she failed to negotiate a curve and the car left the road. One of the passengers, Adam Prevost, was thrown through the open sunroof and trapped under the overturned vehicle.

As a result of the accident, Prevost suffered serious permanent injuries. He commenced lawsuits against the driver and the Vetters for damages. Before the trial began, damages were agreed between the parties at $2.5 million.

The court heard that after the Vetters fell asleep, their teenage children returned to the house with a few friends. A little later, Desiree Vetter, the niece of Greg and Shari Vetter, dropped in with some other friends. Before long, there were more than 30 people in the Vetters' back yard, many of whom brought beer or liquor to consume at the party.

At 1:00 a.m., an RCMP constable attended the premises to investigate a noise complaint. Shortly afterwards, the party began to break up. Desiree Vetter was one of the last guests to leave. After the accident, police tested Desiree with a breathalyser, which indicated that she was impaired.

In his judgment, Justice Gerald Coultas said that the although the Vetters did not serve alcohol to any of their guests, "they created a dangerous situation by permitting minors to drink at their home and drive from it. The danger to minors who drove with an intoxicated driver was forseeable. The Vetters had a duty and they failed in that duty."

We do not know whether the defendants have enough coverage to ensure that the accident victims recover their award in full. Separate actions by the plaintiff against the RCMP and a third-party claim by Desiree Vetter were settled prior to the trial, although details of the settlements were not disclosed. The court did not rule on how the damages will be divided among the various defendants, so this will be determined at a later hearing. Desiree Vetter's Alberta-based car insurance has a limit of $500,000, and the Insurance Corp. of B.C. asked the court to apportion the damages among the defendants before it provides her with any underinsured motorist coverage.

Prevost's lawyer, Robert Clarke, said: "Until now, there have only been a handful of social host cases litigated in Canada where party-goers have left intoxicated and either injured themselves or others, and none have been successful in establishing civil liability against the social host for the resulting damages."

Lawyers for Greg and Shari Vetter say they will appeal the decision.

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$1.2-million settlement for two-truck collision

 

A settlement has been reached in a lawsuit that arose from the 1996 head-on collision of two tractor-trailer rigs on a snow-covered, two-lane highway near Bergland, Michigan. One of the drivers, a Centreville, N.B. man, was pronounced dead at the scene of the accident. By coincidence, both rigs were Canadian. One vehicle was registered in New Brunswick and the other was registered in Ontario.

The collision caused major damage to both vehicles and their loads. A considerable amount of diesel fuel was spilled, and the cost of the clean-up was nearly US$40,000 (Cdn$60,000).

The family of the dead man commenced a lawsuit for damages in Michigan. Following a hearing by a panel of mediators, who held the driver of the Ontario-based vehicle solely at fault, the claim was settled in November 2000 for $1,190,000 Cdn. plus legal expenses.

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Photographer wins $6-million award in record-setting suit

 

A talented photographer who developed symptoms of Parkinson's disease after being struck by a van has been awarded more than $6million. The award is said to be the largest personal injury lawsuit against British Columbia's provincial auto insurer.

Dan Heringa, 43, won the award after a four-week trial in June 2000, in which his lawyers argued that the condition arose from head injuries sustained in the accident.

Mr. Heringa was a happily married 38-year-old when he was struck by a van as he crossed a busy Vancouver street in 1995, according to Heringa's lawyer, Mike Slater. Heringa had been called one of Canada's most promising young photographers.

Today, he cannot work and lives alone; his wife left him shortly after the accident. He shakes like a leaf and is starting to stumble when he walks.

Slater said the award is only fair for a young, talented man whose career was destroyed by a careless driver. "He needs it to live the rest of his life with the dignity he deserves."

The award includes $588,035 for past income loss, $3.86 million for future income loss, $1.3 million for future cost of care and $253,000 for pain and suffering,

The Insurance Company of British Columbia called four expert witnesses to dispute the theory that the crash and resulting head injury were responsible for the onset of Parkinsonism, a condition with symptoms identical to Parkinson's disease.

It is a progressive disorder characterized by tremors, muscle rigidity and slowness of movement. There is no cure.

ICBC is planning to appeal the award and ask for a new trial. But the plaintiff's lawyer is looking for a way to collect more than the $2-million coverage available from the auto insurer. Slater said he does not know yet what assets the driver of the vehicle, or the company owning it may have, or whether there is other coverage which might be available to the company.

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$8.5-million award for drunken car crash

 

The family of a Burlington, Ontario boy has been awarded nearly $8.5 million in damages for injuries he sustained in an April 1994 car accident. Thirteen-year-old Scott Dryden was returning home from a Christian music concert when a vehicle speeding through a red light struck the car in which he was a passenger. Another passenger, Rod McCaw, and the driver of the at-fault vehicle, David Campbell, died in the accident.

As a result of the accident, Dryden suffered permanent and very serious brain injuries. He is unable to take care of himself and will require constant care for the rest of his life.

In his ruling, Mr. Justice John Cararzan of Ontario's Superior Court said that Campbell was an 18-year-old high school student and therefore below the legal drinking age. But he was known to drink to excess and had demonstrated a tendency to drive while intoxicated. On the afternoon leading up to the accident, a 24-year-old friend, Bill Parchem, purchased a bottle of rum, which the two men consumed in the car. It was alleged that Campbell continued to drink at the homes of two friends.

Later that evening, Campbell attended the NRG nightclub in Burlington. He was observed drinking beer there, and the club later ejected him. The fatal accident occurred about 20 minutes after he left the nightclub. After the crash, Campbell's blood alcohol level was found to be three times the legal limit.

The judge ruled that Campbell was 80-per-cent liable for Dryden's injuries. The court also found that the nightclub served liquor to a minor and allowed him to leave, knowing that he was likely to be driving from the club. It also ruled that Parchem should not have purchased liquor for an 18-year-old high school student, especially one with a known propensity to drink and drive. Stars Inc., which at that time owned the NRG nightclub, was held 15-per-cent liable, and Parchem was held five-per-cent liable.

The award included nearly $7.2 million for the cost of future care, $841,054 for loss of future income and $250,000 in general damages. The court also awarded $50,000 to each of Dryden's parents, $15,000 to each of his sisters, and $1,500 to his grandmother.

Campbell was driving an uninsured pick-up truck owned by his father, James Campbell. The Campbells did not present a defence at the trial. Under Ontario's contributory negligence rules, if the Campbells are unable to pay their share of the award, the other defendants must pay their own and the Campbells' portions. It is not clear whether the at-fault parties have enough coverage to ensure that the plaintiff will recover this award in full. Separate settlements for Rod McCaw and other victims are unreported and could further reduce the pool of funds available to pay this award.

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$3.2-million settlement for Indiana truck-stop accident

 

An Oklahoma trucker will receive a US$2.1-million (Cdn$3.2-million) settlement for injuries he received while walking across the lot of a truck stop near Lake Station, Indiana.

In February 1999, just around midnight, the 32-year-old man was knocked down by a tractor-trailer. The rig, which was based in Lanoraie, Quebec, rolled right over him and dragged him across the lot before the driver realized something was wrong.

The victim suffered a broken leg and serious injuries to his hip and back--he required six weeks of hospital treatment, including hip replacement surgery. Persistent pain forced him to sell his rig, and he is unlikely to work as a truck driver again.

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Girl gets $3-million settlement for toboggan accident

 

A young girl has won a huge settlement for an accident that left her seriously and permanently disabled. The girl, who was six at the time of the accident, was tobogganing on a hill owned by the City of Medicine Hat. Her mother was pulling her on the toboggan when two other young tobogganers struck the girl. She suffered serious brain injuries and total blindness as a result of the accident.

The girl's grandmother, acting as her next friend, initiated a lawsuit against the City of Medicine Hat, the girl's mother and the two young toboganners who caused the accident. The matter settled for $3,015,707 in September 2000.

The girl's lawyer had proposed a contingency fee agreement by which the legal fee would be up to one-third of any settlement but nothing if the suit was unsuccessful. After settlement, the lawyer tendered a bill for $1,066,412. Alberta's Office of the Public Trustee, acting for the interests of a minor plaintiff, challenged the contingency fee. The court ruled that the fee was excessive and reduced it to $472,500.

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BC ski-lift accident settlements cost $13-million

 

Two skiers were killed and ten others were injured in an accident on the Quicksilver chairlift at Whistler Mountain in December 1995. Four chairs carrying 10 passengers on the high-speed lift detached from the haul rope, and fell to the ground. Investigators concluded that the failure was caused by a deficient grip design.

The injuries to the passengers ranged from serious to catastrophic and included two fatal injuries. Ten lawsuits were advanced against the U.S. based manufacturer of the lift, and the ski area operator. The American manufacturer carried minimal insurance coverage, and shortly went into bankruptcy, leaving the ski area operator to deal with the litigation.

The litigation took 5 years to resolve. All claims except one were settled before trial. Although details of the settlements are subject to confidentiality provisions, the total paid out was more than $12 million. Legal, adjusting, investigation and expert witness fees exceeded $1 million.

Following the lift incident, Whistler Mountain was sold to Intrawest Corporation, the owners of Blackcomb Mountain. Intrawest quickly replaced the Quicksilver lift with state-of-the-art equipment.

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Car rental company must pay $2-million for single-vehicle accident

 

Two Korean students have won large settlements for injuries they received in an October 1997 single-vehicle accident.

Seven exchange students attending school in British Columbia were in a rented minivan when it flipped over. One occupant suffered permanent brain injuries and another was rendered paraplegic. The other occupants suffered minor injuries.

The insurer initially took the position that no cover was available because the person who signed the rental agreement was not driving the van. At discovery, the rental company agent said it was their practice not to rent to drivers under 25 years of age. In this case, the rental agreement required that other drivers be scheduled. Accordingly, the contract did not permit the driver at the time of the accident to operate the vehicle.

During examination for discovery, the student who signed the rental agreement testified that the rental company agent had not warned them about the rules. Indeed, another person drove the minivan off the rental company lot. The students had limited English, and although the rental company had a Korean-speaking agent, she was not made available for this transaction.

Rather than pursue the denial, the insurer elected to settle. The $2,180,611 settlement was finalized in January 2002.

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Tainted water losses hit $50-million

 

Liability losses following the contaminated water scandal in Walkerton, Ontario have already exceeded $50 million and there is still no end in sight, according to lawyers involved in the case.

Several people died and hundreds became ill as a result of E.-coli contamination at a town well. The town was forced to rely on bottled water for the entire summer of 2000 while the system was repaired and purged.

The Walkerton Compensation Plan is administered under the jurisdiction of Justice Warren Winkler of the Ontario Superior Court.

Insurers for the township and the public utilities commission settled the first $19 million in losses, while the province agreed to settle the remainder.

So far, the compensation plan has received more than 10,000 claims for compensation. It has been reported that Walkerton's population was 5,000 in 1999.

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Passenger in rented vehicle wins $2.8-million injury award

 

25-year-old woman who was injured in a single-vehicle accident in August 1997 has been awarded $2.8 million by the Supreme Court of British Columbia.

The plaintiff and six friends were travelling to Seattle in a rented Ford Expedition to celebrate the upcoming marriage of one of the friends, who was driving the vehicle at the time of the accident. Near Bellingham, Washington, the vehicle veered off the highway and rolled over three times before coming to a stop.

The plaintiff and four other occupants were ejected from the car. All those ejected, except the plaintiff, died from their injuries. The driver and the other front-seat passenger were both wearing seatbelts and received relatively minor injuries.

Although it appears that the plaintiff was not wearing a seatbelt, the court ruled that the defendants had not proved contributory negligence on the part of the plaintiff.

The driver's liability for the accident was admitted. The vicarious liability of the auto rental company for the driver's actions was also admitted, so the only issue before the court was quantum. The four-week trial examined the nature and extent of the plaintiff's brain injury and resulting disability, as well as her future care needs. The court awarded total damages of $2,847,522, including $950,000 for future wage loss and $294,000 for non-pecuniary damages. With interest and legal fees, this award will cost the defendants more than $3.5 million.

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Town must pay $2.2-million for snowmobiler's injuries

 

A 32-year-old man who was severely injured in a snowmobile mishap in February 1993 has been awarded more than $2.2 million by a Quebec Superior Court judge.

The man was snowmobiling on Lac Masson in the Laurentians when he drove straight into an icy snowbank. The snowmobile fell backward onto him, crushing his legs. He lost the use of his legs and suffered irreparable damage to his bladder and intestines.

The court concluded that the municipality was 50-per-cent at fault for his injuries because it had created the snowbank when it cleared an aircraft landing strip on the lake. The plaintiff was held 50-per-cent liable for his injuries.

The court assessed the plaintiff's damages at $3.6 million and awarded a further $880,000 to the plaintiff's wife and three children, for a total of $4,480,000. With 11½ years of pre-and post-judgment interest and defence expenses, we estimate that the defendant's share of this loss will exceed $3 million.

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$7.5-million award upheld by appeal court

 

The British Columbia Court of Appeal has upheld an award of nearly $7.5 million to a woman who was seriously injured in an August 1994 car crash.

The young woman was 16 years old when the driver of the car in which she was riding lost control and crashed. She was thrown from the vehicle and suffered serious permanent injuries.

Although she recovered from her physical injuries, she suffered a severe traumatic brain injury that left her with impaired executive functions, memory, temper, emotions and personality. As a result of her injuries, she has experienced significant loss of enjoyment of life and will never be gainfully employed.

In June 2002, the trial judge awarded the woman nearly $7.5 million, saying that she "lost what to many is one of the most valuable aspects of being an adult human — the ability to have control over one's life."

Insurers for the driver appealed the award for non-pecuniary damages and future care. They argued that the award for future care was too high and proposed an alternative live-in caregiver arrangement that might have reduced damages for future care by $3 million.

The appeal court found no grounds to modify the decision of the trial court.

The court transcripts do not indicate the nature of the injuries suffered by the other occupants of the vehicle, nor the damages that may have been assessed for those injuries in addition to the damages for this plaintiff.

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Double quadriplegia road crash tragedy

 

A woman who was rendered quadriplegic by an auto accident has been awarded $3.2 million by the Supreme Court of B.C.

The 47-year-old woman was a passenger in a vehicle travelling on the Island Highway on Vancouver Island in October 2001. Her vehicle was struck by another vehicle and she suffered serious permanent injuries.

Her father, himself a quadriplegic, was also in the car and was killed in the accident. The father's caregiver and three of her children were in the car as well. The children suffered relatively minor injuries.

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$2.4-million award for lost hockey career

 

A Regina, Saskatchewan man who was seriously injured in a car accident has been awarded a large sum for damages.

The man was just 14 years old when he was injured in a two-vehicle crash in April 1994. Following the crash, he was in a coma for 77 days. He still has difficulty walking and suffers from fatigue as well as memory, social and behavioural problems.

The jury trial heard expert testimony from a New York Rangers hockey scout who said that he saw the plaintiff play hockey as a teenager and was convinced that he had the potential to be a successful professional hockey player. The jury awarded damages totalling $2,425,000. With legal costs and prejudgment interest going back 10 years, the case will cost considerably more than this.

The driver of the car in which the plaintiff was a back-seat passenger was found 85 per cent at fault for the accident. The plaintiff was found 15 per cent at fault for failing to wear a seat belt.

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Ex-Canadians in second scrap over $20.3-million comic-book lawsuit

 

A second St. Louis, Missouri jury has awarded huge damages to Tony Twist, an ex-National Hockey League scrapper. Twist sued a publisher because the Spawn comic book used the player's name for a villainous character — a violent, morally bankrupt mob boss named Antonio Twistelli, also known as Tony Twist — in the comic book and in an animated cartoon. The award must be paid by the publisher, Image Comics, and others involved in the production of the Spawn franchise.

The second jury awarded Twist US$15 million (Cdn$20.3 million). In 2000, an earlier jury trial awarded him US$24.4 million (Cdn$33.1 million) but that verdict was thrown out by the judge, who ordered a retrial.

By coincidence, both Twist and Todd McFarlane, creator of the Spawn comic character, are Canadians who live in the U.S.

Twist, who retired from the St. Louis Blues in 1999, racked up 149 penalty minutes while scoring only eight points in the 63 games he played in the 1998-99 season. He claimed that he had lost lucrative product endorsements because of confusion and the soiling of his reputation.

Michael Kahn, lawyer for Image Comics, vowed to appeal the latest verdict.

"The issue at stake is no different from Simon and Garfunkle's use of the name Joe DiMaggio in the song Mrs. Robinson," Kahn said.

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$13.2-million for injured kindergarten girl

 

A Moose Jaw, Saskatchewan jury has awarded a young woman a huge sum for damages as a result of injuries she suffered more than 13 years ago. The $13.2 million award is the largest bodily injury award in Saskatchewan's history.

Jennifer New was walking to school with her older sister on her first day of kindergarten when she was struck by a speeding driver. The August 1990 accident left her quadriplegic. She will need a respirator to help her breathe and around-the-clock care for the rest of her life.

Despite her injuries, New impressed the court as a courageous and determined young woman. Last year, she graduated from high school with honours. She is currently taking university-level classes and hopes to be a psychologist one day.

After a five-week trial, the jury of six women awarded New and her family more than $13.2 million. With defence expenses and nearly 14 years of prejudgment interest, this award will cost the defendants considerably more than this.

The driver of the speeding vehicle was found 35-per-cent to blame for the accident. The City of Moose Jaw was found 45-per-cent at fault for failing to regulate speed limits near the school, and the retired Moose Jaw police chief was found 20-per-cent at fault for failing to enforce road safety near schools.

It has been reported that the driver, who was 16 years old at the time, carried only the Saskatchewan minimum insurance limits of $200,000. Under Saskatchewan's contributory negligence rule, if an at-fault defendant is impecunious or unable to pay his share of the judgment, then the other defendants must pay his share as well as their own. As a result, the majority of this award will fall to the City of Moose Jaw.

Several other defendants were also named in the action. Prior to the trial, the Moose Jaw Public School Division and an ambulance company settled for $2,050,000 and $475,000 respectively, so the city was the only remaining defendant at the trial. These sums will be deducted from the global award.

This case will likely be appealed.

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Girl wins $5.3-million for truck crash

 

A young woman who was seriously injured in a collision with a stationary tractor-trailer has been awarded $5.3 million in damages for her injuries.

The accident occurred on the evening of April 17, 1997 on a rural two-lane road in Sarnia, Ontario.

At the end of a run to Flint, Michigan, the driver of the tractor-trailer was backing the rig off the road into his driveway, but he lost traction and was unable to back fully off the road. Instead, he moved the rig slowly forward until the stationary cab was facing down the road, with the trailer straddling the road.

The plaintiff's vehicle passed the cab, then hit the rear of the trailer and flipped over into the ditch. The plaintiff was seriously and permanently disabled.

The court ruled that on the unlit road, the plaintiff could not have seen the trailer blocking the road until she had passed the headlights of the cab. There was no evidence that she was travelling at an excessive speed, so the truck driver was held solely at fault for the accident. The owner of the trailer was held jointly and severally liable for the accident, along with the driver.

At a separate hearing in February 2004, the court ruled that the plaintiff's counsel was entitled to $750,000 in fees in addition to the plaintiff's damages.

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$2.9-million award to snowboarder - school must pay 15 per cent

 

Richmond School District has been ordered to pay a 15-per-cent share of a huge court award to a student who was seriously injured while snowboarding during a school outing at Whistler-Blackcomb, one of Canada's top ski resorts.

In January 2000, the 17-year-old student flipped off a 4.5-metre jump in Blackcomb's terrain park, landed on his head and broke his neck. He was rendered quadriplegic and will likely never walk again.

The plaintiff, a relatively inexperienced snowboarder, sued the ski resort, the school board and the teachers who accompanied the field trip. He alleged that the ski jump was hazardous and that the field trip was inadequately supervised.

An eight-person jury found Blackcomb Mountain Ski Resort 70-per-cent liable for the accident, while the school board and the plaintiff were each held 15-per-cent at fault. No liability was assessed against the four teachers who escorted the field trip.

It is not clear exactly how much of this judgment the plaintiff will receive. Local newspapers reported that shortly before the trial began, the hill operator made a separate, private settlement with the plaintiff. Therefore, the trial was concerned only with the allocation of blame between the plaintiff and the school board.

The chair of the Richmond School Board said she anticipates that the board will re-evaluate its policy on school trips, and the suit is widely expected to influence how other schools select and promote field trips.

This case will likely be appealed.

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Ontario must pay $5-million for icy highway accident

 

The Ontario Court of Appeal has upheld a trial award to a young woman who was seriously injured in a highway accident in November 1989.

Brenda Murray was driving to work on Ontario's Highway 48 just south of Lake Simcoe when her car hit a patch of black ice. She slid across the centre line and collided with an oncoming vehicle. The accident rendered her quadriplegic, and she will rely on others for care for the rest of her life.

The case was heard by the Superior Court of Justice in March 2001. The trial judge heard evidence that the section of road where the accident occurred was known to be treacherous. Although a Ministry of Transportation patrolman ordered a sander to the site of the accident several hours before the accident, the sander failed to respond.

Damages were agreed between the parties prior to the trial at more than $5 million.

The trial court ruled that the Province of Ontario failed in its duty of care to the plaintiff and was 70-percent responsible for her injuries. The plaintiff was held to be 30-per-cent to blame.

In September 2002, the case came before the Ontario Court of Appeal, which upheld the trial court verdict.

The judgment did not describe the nature of any injuries suffered by other occupants of the vehicles or report whether any other claims for damages are settled.

With legal expenses and 13 years of pre- and post-judgment interest, the plaintiff will likely receive more than $7 million.

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$2.7-million awarded to Nova Scotia boy

 

An Appeal Court ruling has upheld a $2.7 million award to a 14-year-old boy who was rendered quadriplegic while playing in a rope game at an adventure camp outing organized by a school board.

The boy fell from a rope about four feet off the ground, hitting his head. The lower court had apportioned liability 59% to the school board, 32% to the camp operator and 9% to a third party hired to assist in the camp.

The Appeal Court found no contributory negligence on the part of the plaintiff. The school board was held vicariously liable for the negligence of the other two parties, so in spite of the lower courts apportionment of liability, the plaintiff recovered 100% of his damages from the school board.

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$4,102,509 judgement for body-check victim

 

In November 1993, the lower court had awarded $3,742,509 to a young hockey player who was rendered quadriplegic in March 1990 as a result of illegal body check from behind.

The defendants appeal to the BC Supreme Court was heard in April 1994. The appeal was unsuccessful, and resulted in additional damages of about $360,000 adjudicated against the defendant Webber, and the attendant cost of the appeal. Unrah vs Webber. April 1994 (B.C.)

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$8-million awarded to young hockey player

 

A young hockey player who was left paraplegic after he slipped on a patch of thin ice at a Township owned arena in October 1988 has won a $8 million award for his injuries. The judgement to be paid by Township, which only carried $5 million insurance limits. Stein vs Township of LaSalle, Ont et al. July 1993. (Ontario)

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Hockey victim awarded $4.2-million

 

A 17-year old hockey player who was seriously and perma­nently disabled by a body check from a player on the opposing team in November 1992 has been awarded damages in excess of $4.2 million.

The court heard much conflic­t­ing testimony about the nature of the check. The plaintiff contended that the check was from behind, hence an illegal check, whilst the defendant con­tended that it was a legal, shoulder-to-shoulder check.

On the evi­dence, the trial judge decided the case in favour of the plaintiff and awarded about $4.2 million in dam­ages in August 1995. William Zapf vs William Muckault.

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$3,074,991 judgement for school-trip accident

 

19 year old plaintiff suffered serious head injuries during a school-sponsored mountain-climbing excursion. As a result, he is partially paralyzed on right side, and suffers vision and speech impairment, cognitive difficulties and post traumatic epilepsy. The action against supervising teacher and School Board succeeded, but plaintiff was held to have been 25% contributorily negligent. Bain vs Calgary Board of Education. December 1993 (Alberta).

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Bite me! Couple wins $2.6-million verdict for safari park injuries

 

A couple has been awarded a large sum for damages arising from a day trip to a Hamilton, Ontario safari park in April 1996.

The two were driving through an enclosure containing big cats when a tiger leaped up to the side of the car and attacked the couple through an open window.

The judge concluded that the man was unlikely ever to be gainfully employed and awarded him $1,750,000.

The woman, an exotic dancer, was awarded $928,000 for her injuries, which included unsightly scars that affected her earning capacity. This verdict will likely be appealed.

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Guard service must pay more than $3-million for school fire

 

A midnight fire in a Grande-Riviere, Quebec school resulted in a $3,165,000 out-of-court settlement--the largest loss in the history of our program.

The November 1984 fire was started by an arsonist who was caught and convicted. However, the property insurers of the school board sued the guard service hired to patrol the premises, to recover the cost of the fire damage.

The civil case went to trial in November 1992. The court heard that the overnight security guard had left his post and gone home. The guard's absence meant that there was a lengthy delay before firefighters were called.

The court held the security guard solely liable for the fire and awarded the plaintiff $4,268,000 in damages, interest and costs.

Our insurer elected to appeal this verdict in Quebec's backlogged appeal court. In early 1997, just before the appeal was to commence, the parties re-opened negotiations and agreed to a compromise settlement.

If the appeal court had upheld the lower court award, the total cost, including pre-trial and post-trial interest of the award would have been more than $7 million.

Our insurer agreed to pay the plaintiff $3,165,000 on top of the nearly $330,000 paid in legal expenses. The claim was finally settled 12 years and five months after the fire.

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Law firm to pay $9-million for withholding advice

 

A Toronto lawyer and his law firm have been ordered to pay nearly $9 million in damages and interest to a former client for their failure to warn him that his business partner was an ex-lawyer who had been jailed for fraud.

The judge said that the lawyer was caught in a "classic conflict of interest" when he decided to act for both the plaintiff and his business partner. The total damage award was $5,949,000, plus pre-judgment interest from January 1990.

The defendants subsequently appealed this verdict and the appeal court ordered a new trial.

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Dental surgery victim wins $5.1-million settlement

 

A massive anaesthetic overdose during surgery for impacted wisdom teeth in November 1994 left a Brampton, Ontario woman brain damaged and unable to move or take care of herself. The 31-year-old woman will require constant care for the rest of her life.

In March 1997, just one month before the case was due to go to trial, the court approved a $5.1 million structured settlement that could reach $17 million in value if the plaintiff lives to age 78.

The settlement will be paid by insurers for the anaesthetist. Originally, she sued the anaesthetist, the oral surgeon and the hospital, but the actions against the other defendants were dropped earlier.

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Appeal court upholds $3.8-million award for escaped mental patient

 

An Ontario Appeal Court ruling has upheld a lower court verdict that an Owen Sound, Ontario hospital and a physician must pay $3.8 million for catastrophic injuries suffered by a psychiatric patient in an August 1984 suicide attempt.

The patient, who had been assessed as a high suicide risk, escaped from the hospital by smashing through a window in a secure ward on the ground floor.

Shortly afterward, he deliberately ran in front of an automobile, sustaining very serious injuries, which required round-the-clock care.

In December 1996, the trial court ruled that the defendants were negligent on a number of grounds, including the use of easily breakable glass, their failure to ensure constant observation while the plaintiff posed a high suicide risk, failure to hold a timely intake conference and poor charting. The hospital and two physicians were ordered to pay damages to the plaintiff and his mother, who was his principal care-giver. Regrettably, the plaintiff died in 1997.

The hospital and two physicians appealed the 1996 verdict. The appeal court ruled that the second physician should share no part of the blame for the accident. The hospital will pay 75% of the award the physician must pay 25%. Pre- and post-judgement interest and legal fees have increased the cost of this claim to over $6.5 million.

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$2.2-million settlement for girl injured during birth

 

A Prince George girl who was born with cerebral palsy has been awarded a $2.2 million settlement in BC Supreme Court. The girls injury resulted from asphyxiation caused by severe restriction of the umbilical cord, The court found the obstetrician negligent in inducing labour before ensuring the baby's head was fixed against the mothers pelvis.

A concurrent action against the Chilliwack General Hospital was dismissed.

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$3.3-million settlement for mishandled birth

 

A brain-damaged boy has been awarded $3.3 million after medical staff allegedly mishandled his birth. The boy's mother was 3-1/2 weeks overdue when she arrived in labour at Margaret Cochenor Hospital in Red Lake, Ontario, in April 1988.

The fetus was aspirating fecal matter in the amniotic sac, which had no amniotic fluid. But the hospital had no ultrasound machine and attempts to monitor the fetal heartbeat were only intermittent.

The boy's parents said he incurred severe brain damage as a result of the botched birth, and they sued the hospital, two doctors and five nurses.

The court-approved settlement of $3.3 million could be worth up to $30 million if the boy lives to age 70.

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Couple wins $2.9-million for wrongful births

 

In an unusual lawsuit, parents of two boys who were born with a rare congenital condition have won substantial damages from their physicians. They argued successfully that the doctors failed to test for the congenital condition and did not offer the parents enough information about the condition. The jury agreed that had the parents been sufficiently informed, they would never have conceived or they might have chosen to abort one or both of the babies. The court awarded the couple $2,918,965 in damages.

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Teenager wins $2.9-million award for surgery malpractice

 

A 15-year-old suffered catastrophic brain injury when she was left unattended while recovering from the effects of anaesthetics at Victoria General Hospital. She had been admitted for a minor surgical procedure in February 2001 — a laparoscopy to investigate abdominal pain. Attending nurses didn't notice that she had gone into cardiac arrest. Her brain was starved of oxygen for several minutes and suffered permanent damage.

The civil trial was due to commence in October 2004. At a preliminary hearing, an attending nurse was ordered to produce notes she had made the day after the injuries occurred. The defendants had argued that the notes were privileged and should not be included in the evidence. Shortly after the hearing, the young woman's family secured a pre-trial settlement for $2.9 million.

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Appeal court upholds $2.3-million award for misdiagnosed tumour

 

The Saskatchewan Court of Appeal has upheld a $2.3-million award to a woman who was wrongly diagnosed and treated for terminal brain cancer.

When the woman was examined in 1994, the defendant, a general surgical pathologist, diagnosed a malignant brain tumour. The patient began radiation treatment, during which she took 35 steroid pills a day.

She experienced frequent seizures brought on by the difficult treatment and suffered permanent mental and emotional incapacity. She became desperately unhappy and had no enjoyment from life or hope of getting better.

When she did not improve, she sought a second opinion from a neurosurgeon, who concluded that the tumour was benign and operable.

The court found that the woman went from being a relatively healthy, successful 26-year-old before the misdiagnosis to someone with significant cognitive deficits who could no longer live independently and required almost one-to-one care.

With legal expenses and pre- and post-judgment interest, this award will likely exceed $4.5 million.

This is thought to be the highest ever award for medical malpractice in Saskatchewan.

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Insurer must pay $2.5-million punitive award

 

An Ontario jury has ruled that an insurance company must pay a former mushroom farmer and his tenant $2.5 million in punitive damages for "malicious" and "high-handed" conduct in its refusal to settle after his farm was destroyed by fire.

This award eclipsed the previous punitive damages record set in the case of Whiten vs. Pilot Insurance Company.

Frank Mazza's farm was destroyed by fire in August 1993. Hamilton Township Farmers Mutual Fire Insurance Company of Cobourg, Ontario, concluded that the fire had been set deliberately and rejected his claim.

In total, the jury awarded more than $4 million, including the punitive award. Midway through the trial, Mazza had offered to settle with the insurer for $450,000.

In setting such a high punitive award, the jury did not appear to feel constrained by the guidelines with respect to punitive awards set by the Supreme Court of Canada in the Whiten case. Accordingly, the insurer will likely appeal this verdict.

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Township building inspector must pay $11.2-million to developers

 

Two developers have won a massive award as a result of building inspection errors by the staff of the resort village of Bobcaygeon, Ontario in the 1990s.

The plaintiff developers had obtained guaranteed financing for the construction of four rental buildings. During the final phase of construction, serious building code infractions were found in all four structures. Tenants left, and when the project went into receivership, the lender foreclosed on its mortgage and tied up the other assets of the guarantors.

The court found that the building code violations were so numerous that the building inspector could not have conducted proper inspections during construction.

The court rejected the defendant's argument that the developers had partially contributed to their loss. Instead, the court found the village, which is now part of the City of Kawartha Lakes, solely responsible for the developer's loss.

According to Lawyers Weekly, the lawyer who represented the village's insurer has recommended an appeal.

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Ex-Canadians scrap over $24.5-million comic-book lawsuit

 

A St Louis, Missouri jury has awarded US$24.5 million (Cdn$36.7 million) to Tony Twist, an ex-National Hockey League scrapper. Mr. Twist's lawsuit argued that the Spawn comic-book used the player's name for a villainous character, a violent, morally bankrupt Mob boss named Antonio Twistelli, also known as "Tony Twist," in the comic-book and in an animated cartoon. The award must be paid by the publisher, Image Comics, and others involved in the production of the Spawn franchise.

Twist, who recently retired from the St. Louis Blues, racked up 149 penalty minutes while scoring only eight points in the 63 games he played in the 1998-99 season. He claimed that he had lost lucrative product endorsements because of confusion and the soiling of his reputation.

By a coincidence, both Mr. Twist and Todd McFarlane, creator of the Spawn comic character are Canadians who presently live in the US.

Michael Kahn, lawyer for Image Comics, said the celebrity of Mr. Twist in St. Louis was the only reason the case was successful. "Although the evidence shows that the plaintiff is a minor local celebrity, there is not much evidence that he is known anywhere else. He had only a few national articles written on him over a 10-year career," said Mr. Kahn.

"If you are Tony Twist, the best place to bring a lawsuit is St. Louis. I think we all agree that if he tried to sue him in Phoenix, where Todd McFarlane is, or southern California, where Image Comics is, it would be different."

"To my knowledge, this is the only case like this involving a fictional character that has ever gotten this far," he said. He will be asking the judge to toss out the jury's decision and render his own decision.

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Software company pays $3.7 M for celebrity privacy lawsuit

 

Corel, the Ottawa-based computer software company, and their insurers have settled a lawsuit with the Hollywood film star Hedy Lamarr.

An unauthorized image of Lamarr, created with CorelDRAW software, was the winner of a design contest. Unaware of the oversight, Corel used the image on their packaging and display material for CorelDRAW, which was marketed in Canada and around the world.

The cost of the negotiated settlement exceeded $3.7 M (US$2.5 million). Lamarr also granted Corel a five-year exclusive licence to continue to use the image.

Hedy Lamarr was one of the most popular actresses of her day. She died in January 2000 at the age of 86.

$4-million judgement for gym fall

 

In October 1998, an Alberta court awarded a Westlock, Alberta girl about $4 million for an accident in a school gymnasium which left her completely paralysed. The girl was a grade 11 student at St Mary's Catholic school when she broke her neck after flipping backward off a box horse and landing on her head in April 1991.

The court ruled that the gym teacher exposed the girl and other students to "unreasonable risk" when he allowed them to practice aerial gymnastics without direct supervision and long instruction. Her lawyer said this is Alberta's largest ever personal injury judgement.

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Christmas-tree light maker pays Cdn$10-million for house fire lawsuit

 

A tragic house fire cost a Texas family the lives of two young children. Three others were seriously injured in the blaze. Plaintiff's counsel alleged that the fire was caused by a defect in Canadian-made lights on the family's Christmas tree.

Insurers for the manufacturer elected to settle out of court for Cdn$10 million plus Cdn$690,000 in defence expenses.

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Tennessee highway accident costs trucker more than Cdn$8-million

 

A Canadian trucker was involved in a two-vehicle accident on a highway in Tennessee. The sole occupant of the other vehicle was a single mother of three. The Canadian auto carrier chose to settle the case out of court for Cdn$8.1 million plus defence expenses of Cdn$100,000.

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Inco to pay $10-million for gas leak

 

Inco Ltd. has agreed to pay about $10 million to compensate Sudbury residents for a massive poison gas leak from its Copper Cliff acid plant in November 1995.

The payments to as many as 10,000 people affected by the leak include amounts for physical or psychological injuries, property damage, out-of-pocket expenses and loss of income. The original claim for $200 million shrank drastically during 18 months of negotiation, giving way to a process that will likely pay out about $10 million.

Inco had previously settled with 24 individuals, but they will also get any advantages of the class action settlement.

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$14.5-million settlement for waste incinerator blast

 

Bovar Inc. of Calgary, Alberta and its property insurers have agreed to a $14.5-million settlement after a massive explosion in the main incinerator at Bovar's hazardous waste treatment plant in Swan Hills, Alberta.

A tank-trailer full of benzene-laced sludge was waiting to discharge its cargo in July 1997. It sat too long in the hot sun, over-heating the contents. When the tank was opened for discharge, a blast of benzene vapour hissed through the pipes. The vapour mixed with outside air to create a volatile combination that, at first, snuffed out the burners. When staff re-ignited the burners, they triggered a massive explosion that blew apart inch-thick metal valves and threw a giant elbow pipe over the plant tower to land almost 100 metres away.

The explosion shut down the plant until January 1999. Bovar sued its insurer for $30.9 million in damages, but the parties agreed to settle the dispute privately for $14.5 million in April 1999.

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$53-million tab to fix mine spill in Spain

 

Boliden Ltd. of Toronto has allocated Cdn$53 million to the cost of repair and cleanup caused by the failure of a tailings dam at their Los Frailes zinc mine in Spain.

The April 1998 dam failure was one of Spain's worst environmental disasters. About four million cubic metres of acidic water and 1.1 million cubic metres of tailings discharged into the nearby Rio Agrio. The toxic sludge poured over farmland and narrowly missed contaminating a nearby national park.

A company spokesman said responsibility for cleaning up the spill has been divided between the company and Spanish government authorities.

Boliden acquired the mine site, including the dam, from Spanish owners in 1987. Operations at the mine were halted for over a year following the tailings dam failure

$2.5-million fire at Mississauga recycling depot

 

A June 1995 fire destroyed a Mississauga, Ontario plastic recycling plant and its contents. The fire marshal estimated the damage at $2.5 million.

The sprinkler system had been disabled in violation of the fire protection warranty in the fire insurance policy, so the insurer denied the policyholder's claim. Because of the provisions of the mortgage clause, the insurer was unable to enforce the breach of the warranty against the mortgagee, and the insurer paid about $800,000 to satisfy the mortgagee's claim.

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$4-million to defend lawsuit from skier killed by avalanche

 

Insurers for Canadian Mountain Helicopters (CMH) successfully defended a lawsuit which arose from a March 1991 avalanche accident in which nine skiers lost their lives. However, the total cost of the defense was more than $4 million. The only survivor was the mountain guide employed by CMH, the B.C. heli-skiing company that organized the ski trip.

All the skiers were from the U.K. and Germany except for Mr. Ochoa, a Mexican national. All were experienced skiers and had signed CMH's standard contract, which included a liability waiver.

Mr. Ochoa's family sued CMH and their guides, alleging that they were negligent in choosing to ski at the site where the avalanche occurred and asking the court to set aside the signed liability waiver.

The case went to trial in Vancouver in September 1995 and lasted six months.

In September 1996 the court ruled that neither CMH nor its guides were negligent, and upheld the plaintiffs assumption of risk and the liability waiver. This is probably the most expensive defence expense ever incurred by a Canadian insurer for an individual bodily injury lawsuit.

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Appeal court upholds huge awards for broadcast defamation

 

The Ontario Court of Appeal has upheld large trial verdicts against the Canadian Broadcasting Corporation.

The CBC had appealed two separate trial verdicts that found the broadcaster liable for damages arising from a story by the news program the fifth estate, broadcast in February 1996, about drugs for heart attacks.

Dr. Frans Leenen and Dr. Martin Myers alleged that the investigative program was malicious, unfair and defamatory.

In April 2000, the Ontario Superior Court of Justice awarded Dr. Leenen $950,000 in damages and $836,178 in legal expenses. In a separate case heard by the Ontario Superior Court, the CBC was ordered to pay Toronto cardiologist Martin Myers $200,000.

The appeal court dismissed the CBC’s appeals and awarded a further $150,000 to Dr. Myers for aggravated damages.

Together these awards and associated legal expenses will exceed $4 million. We judge that these awards represent the most costly defamation verdict against a Canadian broadcaster or publisher.

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U.S. EPA reaches into Canada for Columbia River cleanup

 

The U.S. Federal Environmental Protection Agency (EPA) wants a Canadian mining company to pay for environmental studies to examine health risks from pollution dumped in the Columbia River, which runs from British Columbia into Washington State.

The EPA wants the firm to pay for extensive studies into ecological and human health effects of pollution migrating down the Columbia River and to reimburse the EPA for about US$1.8 million already spent on preliminary studies.

Mining company Teck Cominco has operated a huge smelter in Trail, B.C. for more than a century. If the environmental studies suggest that Teck is responsible for the health hazards, the cost of damages and cleanup expenses could be massive.

Washington-based environmental groups want the EPA to designate sections of the Columbia River as a "superfund" site. Such a designation permits the EPA to commence cleanup of the river and recover expenses from any "potentially responsible party," regardless of fault.

At issue is whether the U.S. environmental regulators can reach into Canada to force U.S. law on the company over river pollution downstream from one of its smelters.

Teck argues that the smelter in Trail, about 16 kilometres from the U.S. border, is not subject to U.S. law and that the EPA should examine other U.S. sources of pollution. In a letter from the Canadian ambassador to the U.S. State Department, the Canadian government has also expressed its opposition to the application of U.S. domestic laws on a company operating legally within Canada.

A Teck proposal to pay $13 million for a human health and ecological impact study was rejected by the EPA as not up to U.S. standards.

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$3.2-million settlement for tainted water

 

Seven hundred people who became ill because of a parasite in their drinking water in the spring of 2001 will share in a $3.2-million settlement. The City of North Battleford and the Government of Saskatchewan announced the deal in August 2003. Negotiations continue toward settlement with another group of about 100 residents.

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$20-million pretrial settlement for hip replacement class action

 

A Quebec Superior Court judge has approved a huge settlement to conclude a class action arising from the sale of defective hip replacement devices. Up to 700 Canadian claimants, mostly in Quebec, will share in the $20-million settlement.

In December 2000, the defendant, Sulzer Orthopedics of Texas, announced the recall of thousands of replacement joints after it was found that a manufacturing defect had contaminated some of the devices with an oil residue. As a result, the implants failed to bond properly with the bone tissue and many patients experienced pain and discomfort. In some cases, the replacement became so loose that it had to be surgically replaced.

The Quebec settlement was part of a global class action settlement worth more than $1 billion to be apportioned among an estimated 3,500 patients.

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Man wins $1.4-million for sexual abuse

 

A former priest and the diocese he worked for must pay $1.4 million for sexual abuse inflicted on a 13- year-old boy more than 20 years ago.

The court did not find the diocese directly liable for the abuse but instead held that it was vicariously liable for the conduct of the priest, who is serving a 30-month sentence for his crimes.

Superior Court Justice Katherine Swinton described the conduct of the priest as "depraved and callous" and said, "The size of the damages in this case should deter others from similar misconduct."

The diocese and its insurers are likely to appeal both the liability verdict and the level of damages.

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U.K. student wins $10.6-million payout

 

A young man who was left severely brain-damaged after being knocked down by a van driver has been awarded damages of £4.8 million (Cdn$10.6 million), according to the BBC News.

The 20-year-old student was on the seaside esplanade at Bognor Regis, West Sussex, with a group of old school friends when the accident happened in September 2000. He was thrown nine metres in the air and landed on his head.

He was in a coma for three months and is now confined to a wheelchair. He cannot fully communicate, although he recognizes his family.

Now 23, he is undergoing rehabilitation but hopes to return soon to his parents' home and then live independently with caregivers.

Under the terms of the settlement, the driver's insurers are liable for 87.5 per cent of the damages.

The plaintiff's father said the family still has to find another £1 million (Cdn$2.2 million) to cover the costs of specialist care and accommodation.

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British girl wins $11.3-million for car accident

 

A girl who suffered severe spinal injuries when a car driven by her nanny crossed to the wrong side of the road and hit an oncoming vehicle has been awarded agreed damages of £5.1 million (Cdn$11.3 million).

The girl was three years old when the accident happened in November 1994. She lost the use of her legs and much of the use in her arms. She now needs extensive therapy and equipment to help her to do even the simplest tasks, such as dressing herself and cutting up food.

The damages will be paid by motor insurers on behalf of the nanny, who was also seriously injured in the crash.

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$3-million jury award reduced on appeal

 

A British Columbia judge has overturned a large part of a $3-million damages award to a young man who was seriously injured in an automobile accident. Ik Sanh Lee, who was 15 years old at the time of the accident, suffered traumatic brain injury, stunted psychological growth and permanent facial scarring. Liability for the accident was admitted.

A Vancouver jury awarded Lee $3 million in damages. Two-thirds of the sum awarded by the jury, or $2 million, was awarded for nonpecuniary damages or pain and suffering.

On appeal, the Supreme Court of British Columbia judge ruled that the trial judge should have constrained the jury to an upper limit for pain and suffering consistent with the Supreme Court of Canada’s ruling in the 1978 "trilogy" of pain and suffering cases. Accordingly, the judge reduced the award for non-pecuniary damages to $294,000, or the top end of the range suggested by the Supreme Court of Canada, adjusted for inflation.

The defendant insurer also argued that the award should be paid by way of a structured settlement, in which the defendant purchases an annuity for a discounted sum and the plaintiff receives annual or periodic instalments in lieu of an up-front amount. The plaintiff was opposed to such a settlement. The court ruled that without the plaintiff’s consent, a structured settlement should not be imposed upon him.

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$3.7-million award for broken ankle

 

A Nova Scotia dentist has won a huge damages award for injuries she suffered in a May 1995 automobile accident.

The accident occurred when 50-year-old Dr. Kathryn Campbell MacIsaac’s car was struck by another vehicle that crossed the centre line. Her husband was also in the car, but he escaped severe injury.

She suffered a serious ankle fracture that required surgery and many weeks in hospital. She has a discernable limp and is able to walk or stand for only a short while.

Financial experts for Campbell MacIsaac gave evidence that her successful dental practice in Antigonish, Nova Scotia suffered greatly in her absence. By the time she realized that she would be unable to resume her practice, it had declined so badly that it was sold at considerably less than optimum value. Because she was not able to maintain the required minimum practice hours, her licence to practise dentistry was lapsed.

Campbell MacIsaac recovered almost $1 million from the insurer of the driver of the at-fault automobile and then sued her own insurer for the remainder of the damages under the Underinsured Motorists provision.

In June 2003, the Nova Scotia Supreme Court awarded her $3.7 million plus her legal fees and prejudgment interest.

This verdict has broken many records, including the largest damages award in Nova Scotia, the largest award for lost earnings and the largest Canadian loss for Underinsured Motorists cover. The insurer will likely appeal the award.

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Girl wins $11-million for birthing injuries

 

The family of a 19-year-old girl has won a huge award for damages for injuries she sustained at birth.

The girl's mother sued two family physicians who attended the birth; the Smith Falls, Ontario hospital; and several other medical practitioners.

The baby was born limp and white with a dark blue head and face. Deprived of oxygen, she suffered permanent brain damage during birth. She will never be able to take care of herself and will require full-time care for the rest of her life.

The baby was born in December 1983, but her mother did not commence the lawsuit until 1994, when the girl was 11 years old. It was only then that she discovered that medical negligence might have caused her daughter's injuries. The case took a further nine years before it was heard before the Ontario Superior Court of Justice.

After a 57-day trial, the judge ruled that the girl's injuries were caused by a lack of oxygen during birthing, the result of excessive birth weight caused by untreated gestational diabetes. The judge awarded the family $9.5 million. With costs and prejudgment interest, this award will exceed $11 million, but the defendants are likely to appeal.

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Woman wins $3.5-million for cancer diagnosis error

 

A Regina, Saskatchewan woman who was admitted to hospital in October 1994 has won a substantial damages award for the consequences she suffered as a result of a brain cancer misdiagnosis by a staff pathologist.

After six months of radiation and steroid treatment, the woman sought a second opinion. This time the diagnosis was a benign growth in the brain that could be removed by surgery.

The woman suffered badly from the radiation and steroid treatment and her condition did not improve after the surgery.

Her post-operative recovery was complicated by seizures, and her physical and mental condition continued to deteriorate. Since December 2000, she has been living in a lodge for brain-damaged people and requires one-to-one care.

The court concluded that the adverse reaction to the treatment resulted from the misdiagnosis by the pathologist and that the surgical procedure would likely have been more successful if it were not for the six month delay.

The court set damages at $2,359,000. With prejudgment interest and legal expenses, we estimate that this case will cost more than $3.5 million.

$1.25-million for child injured by elevator

 

A toddler who was crushed by a home elevator in January 1996 has secured a settlement worth $1,250,000 from several defendants. The elevator had been installed to meet the needs of another disabled child in the family.

The two-year-old boy crawled through a 15-centimetre (six-inch) gap in the framing for the elevator door and fell into the elevator shaft. The child's mother heard his screams but was unable to open the upper doorway, so she assumed that the child was in the elevator car. Using a manual override key, she lowered the car, crushing the toddler. The child suffered serious permanent injuries.

Two elevator installers contributed to the out-of-court settlement, together with the insurer for the homeowner and two other defendants to the action.

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Australian athletes win $11.8-million for Israeli games accident

 

Three Australian athletes have won a settlement worth A$14.3 million (Cdn$11.8 million) for injuries they received at Israel's Maccabiah Games in July 1997.

A temporary footbridge collapsed as the 373-member Australian team was crossing to enter the gala opening ceremony of the quadrennial games outside the National Stadium in Tel Aviv. The athletes were plunged into the Yarkon River. Four died and more than 60 were injured. Several of the injured athletes suffered very serious permanent disabilities.

The organizers of the games purchased liability insurance to protect the event, but senior insurance industry sources believe that the insurance limit may not be high enough to cover the full compensation bill. The Israeli government contributed to these settlements, although its contribution was not disclosed. Experts believe that the final bill could exceed Cdn$40 million.

Following a trial that lasted more than two years, an Israeli court found five people guilty of negligence causing wrongful deaths. The offence can carry up to a four-year jail term. The five included the engineer, two subcontractors, the head of the firm that contracted the work to the subcontractors, and the head of the organizing committee for the international games.

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Supreme court won't hear appeal of $20-million cement claim

 

The Supreme Court of Canada won't hear an appeal by two Ontario cement companies that were ordered to pay more than $13 million in damages to 137 plaintiffs by a trial court and the Ontario Court of Appeal. The suit alleged that concrete foundations, mainly residential, crumbled prematurely because unsuitable fly-ash had been mixed into the cement.

The trial court judge ruled that Lafarge Canada Ltd and Bertrand & Frère Construction Co. Ltd., which provided the defective cement during 1987 and 1988, must pay damages to the homeowners.

Lafarge, which provided the cement, will pay 80 per cent of the damages and Bertrand & Frère, the ready-mix supplier, will pay 20 per cent.

Liability insurers for both the cement companies argued several coverage issues, but the courts also ruled that the damages were substantially covered by the available insurance.

The trial court heard more than 100 witnesses during 100 days of trial over a 16-month period. Forty-four lawyers were accredited to the case, with between 15 and 40 present on most days, making this case one of the longest running and most expensive civil trials in eastern Ontario. The verdict of the trial court was largely upheld by the Ontario Court of Appeal.

With interest and legal expenses, this case has likely cost the parties more than $20 million. Because the Supreme Court of Canada has declined to hear the appeal, the cement companies have exhausted their legal remedies.

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B.C. to pay $3.5-million for shaken baby

 

British Columbia has agreed to pay about $3.5 million to the family of a young girl who suffered permanent brain damage after being shaken severely as an infant by a foster parent.

The suit alleged that in May 1997, when the child was 18 months old, the foster mother shook the baby. As a result of the shaking, the child suffered severe mental impairment and will never be able to live independently.

The lawsuit also alleged that BC's Ministry of Children and Families placed the child in the care of a woman whose background suggested that she was unlikely to be a suitable foster parent.

The woman has never been charged with a criminal offence arising from the child's injuries.

The settlement came just a few days before the case was due to go to trial.

Last year we reported a similar story that resulted in a $6.3 million judgement against BC's Ministry of Children and Families.

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Town must share blame for $2.5-million country road crash

 

The Supreme Court of Canada has ruled that a rural Saskatchewan municipality must contribute to a $2.5-million award to a man who was injured in a single-car accident on a country road 10 years earlier.

In July 1992, the car in which the plaintiff was riding left the road, hit an embankment and rolled over. The plaintiff was rendered quadriplegic.

The court ruled that the rural municipality must bear a portion of the blame for the accident because the curve on the lightly travelled road was not sign-posted and the municipality was aware of three accidents at or near the accident site in the previous 10 years. The municipality must pay 35 per cent of the award. The driver of the car, who was heavily intoxicated, must pay 50 per cent, and the plaintiff must bear 15 per cent of the blame because he got into a car with a drunk driver. The driver carried only $200,000 insurance limits, so the municipality will likely have to pay the remainder of the driver's share of the award, as well as its own portion.

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Reader's Digest grandma helps win $3.3-million from family doctor

 

The family of an eight-year-old girl has won a $3.3-million award for damages from their family doctor. The child contracted herpes simplex shortly after her birth in April 1993, leaving her with serious and permanent disabilities.

The girl's grandmother, an avid reader of Reader's Digest, happened to see an article in the magazine about Dr. Stephen Sacks, a world-renowned expert on the herpes simplex virus. Dr. Sacks agreed to examine the child and concluded that the family doctor's treatment had fallen short of the appropriate medical standard.

The baby's mother suffered with the disease during pregnancy, but the infant appeared to be healthy and normal until a week or two after she was born, when she exhibited a cluster of blisters on the crown of her head as well as other symptoms. The family's doctor, Richard Hay, prescribed a topical cream for the herpes blisters, but the baby experienced repeated outbreaks. The virus progressed to attack her central nervous system.

The child is now quadriplegic with severe neurological, visual and auditory impairment. She is totally reliant on her mother and grandmother, who struggle to provide care for her. They sued the family doctor for damages on the child's behalf.

Dr. Sacks and other medical experts for the family testified that if the defendant doctor had chosen a widely accepted treatment for newborns with herpes symptoms, the child would probably have recovered with no neurological damage.

The girl was awarded $200,000 in damages, $1.5 million for the cost of future care and $167,000 for her mother and grandmother for her care since birth. An additional $1.5 million was negotiated outside the court for medical equipment she will need over her lifetime, including a specially built house, for a total of $3,367,000 plus defence expenses.

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Town must pay $1.2-million for pool injury

 

A Port Cartier, Quebec man has won $1.2 million for injuries he sustained in a swimming pool accident in April 1993.

The 33-year-old plaintiff was training to compete in a triathlon event. He had joined a distance swimming class at a municipal pool operated by the town of Port Cartier. The court heard that he swam 60 lengths as part of his supervised training. After the class ended, he and another swimmer were doing some extra lengths underwater. One of the trainers was swimming in the pool and the other trainer had left the pool to smoke.

The other swimmer noticed the plaintiff lying still on the bottom of the pool. The plaintiff was pulled from the pool unconscious and rushed to hospital, but sustained brain damage as a result of oxygen deprivation.

The court concluded that the plaintiff was a strong, experienced swimmer. He was aware of the risks associated with swim training of this nature, but the level of supervision was insufficient to excuse the town from liability. Accordingly, liability was divided equally between the plaintiff and the defendant. Damages were determined at $1,483,725. The town’s share of damages plus prejudgment interest and legal expenses will exceed $1.2 million.

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$1.33-million settlement for boy hit by field hockey ball

 

A boy has won substantial damages for serious and permanent brain injury he suffered when he was hit by a field hockey ball. The boy, who was 11 years old at the time of the accident, was at the Burnaby Sports Complex in Burnaby, B.C., to play a scheduled soccer game in November 1993.

As he passed a field where a hockey game was in progress, a stray ball passed over the chain link fence and struck him on the back of the head. On his behalf, the boy’s parents sued the City of Burnaby, the B.C. Women’s Field Hockey Federation and two players. Plaintiff’s counsel argued that the fence was too low to protect passersby from fly balls.

In June 2000, the parties agreed to a $1.33-million settlement to be shared equally by insurers for the city and the association. A B.C. Supreme Court hearing in May 2001 approved the fee for the plaintiff’s lawyer, who had been retained under a contingency fee agreement. Court approval of the fee was necessary because the plaintiff was still a minor when the settlement was reached. The court approved more than $450,000 for fees, including taxes and disbursements.

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$2.75-million award for judo victim

 

An Ontario court has approved a $2.75-million award to a man who was seriously injured while sparring after judo class in September 1996. Chester Lam sued several defendants&emdash;his sparring partner, the judo instructor who organized the classes, the assistant instructor, and the University of Windsor, in whose multipurpose room the accident occurred.

The assistant instructor completed the evening class of instruction and, as is the custom, bowed the class out. Lam and Jeffrey Piescic, who was attending his first judo class, decided to remain behind to practise some throws together. The court concluded that Piescic lost his balance and accidentally hit Lam on the chin. The court found no evidence of excessive force, but Lam suffered a broken neck and will spend the rest of his life in a wheelchair.

The instructor left the premises shortly after the class began. The assistant instructor left soon after the class finished and was not present when the accident occurred. The court concluded that it was improper to permit members of the class to practise unsupervised, especially students of differing age, weight and experience.

No blame for the accident was attributed to the plaintiff or his sparring partner. Instead, liability was divided equally among the other three defendants.

With interest and defence expenses for the various parties, this claim will likely cost more than $3.5 million.

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Appeal court rules on $4-million gym fall verdict

 

The Alberta Court of Appeal has modified a trial court award to a Westlock, Alberta girl who was paralysed in a school gymnastics accident in April 1991. The Grade 11 student at St. Mary’s Catholic School broke her neck after flipping backward off a box horse and landing on her head.

In October 1998, the trial court ruled that the gym teacher exposed the girl and other students to “unreasonable risk” when he allowed them to practise aerial gymnastics without direct supervision and lengthy instruction.

The trial court awarded the girl more than $4 million. The trial judge calculated the award for future earnings on an actuarial estimate of the income expectation for an Alberta man rather than that for a woman, which would have been some $180,000 less.

The school board appealed the trial verdict. The appeal court agreed that the girl was aware that she was inexperienced at the routine. Accordingly, the court concluded that the girl had knowingly assumed some risk and allocated 25 per cent of the blame for the accident to the plaintiff. The school board remains liable for the other 75 per cent of the award.

The appeal court also overturned the trial court ruling with respect to future earnings, and that portion of the award was reduced by about $180,000. With the costs of two trials and pre- and post-judgment interest, we estimate that this loss will cost insurers for the school board around $5 million.

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$13-million settlement for B.C. ski lift accident

 

Two skiers were killed and 10 others were injured in an accident on the Quicksilver chairlift at Whistler Mountain in December 1995.

Four chairs carrying 10 passengers on the high-speed lift detached from the haul rope and fell to the ground. Investigators concluded that the failure was caused by a deficient grip design.

The injuries to the passengers ranged from serious to catastrophic and included two fatal injuries. Ten lawsuits were advanced against the U.S.-based manufacturer of the lift and the ski area operator. The American manufacturer carried minimal insurance coverage and soon went into bankruptcy, leaving the ski area operator to deal with the litigation.

The lawsuits took five years to resolve. All claims except one were settled before trial. Although details of the settlements are subject to confidentiality provisions, the total paid out was more than $12 million. Legal, adjusting, investigation and expert witness fees exceeded $1 million.

Following the lift incident, Whistler Mountain was sold to Intrawest Corporation, the owners of Blackcomb Mountain. Intrawest quickly replaced the Quicksilver lift with state-of-the-art equipment.

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$4.5-million for B.C. auto accident

 

The Supreme Court of British Columbia has awarded substantial damages to a man who was rendered quadriplegic in an automobile accident in January 1996. However, the plaintiff will likely see only a fraction of the award.

The two-car accident occurred on the Alaska Highway a few kilometers south of Fort Nelson, B.C. The driver of the pickup in which the plaintiff was a passenger lost control on a slippery area, crossed the centre line and collided with an oncoming vehicle.

The victim commenced a lawsuit against the drivers of the pickup and the other vehicle. ICBC, which insured both vehicles, paid the limits of the policy on the pickup into court before the trial started.

The plaintiff argued that the driver of the oncoming vehicle should have done more to avoid the collision.

The driver of the pickup had consumed a large quantity of alcohol over the 24-hour period leading up to the accident and was convicted for impaired driving. During part of the day of the accident and the prior evening, the plaintiff and the driver had been drinking together. The defendant argued that the plaintiff must have been aware that the driver was intoxicated and that as a result, he voluntarily assumed a risk of injury when he entered the car. The court also heard that the plaintiff was not wearing a seat belt.

The court absolved the driver of the oncoming vehicle of any blame and ruled that the driver of the

pickup was solely at fault for the accident. The court also rejected any arguments that the plaintiff should bear part of the blame for his injuries.

Prior to the commencement of the trial, the plaintiff also settled with two other defendants, although the nature of these settlements is not known.

The written judgment provides no details of injuries sustained by other parties in this accident. This plaintiff was awarded $4.2 million. With interest, defence expenses and the cost of a 10-day trial, the final value of the award will be much higher, but it is unlikely that the available insurance limits will be sufficient to satisfy this judgment.

Under B.C.'s Negligence Act, a finding of just one-per-cent liability against the oncoming motorist would find her liable for the unsatisfied portion of the judgment against the driver of the pickup as well. This verdict may be appealed.

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Supreme Court won't hear appeal of $6-million highway award

 

The Supreme Court of Canada has declined to hear Ontario's appeal of an appeal court verdict that awarded a Brampton, Ontario woman almost $6 million in damages arising from a highway accident. As is their custom, the Supreme Court gave no reasons for declining to hear the case.

Marilyn MacMillan was driving to work on Ontario's Highway 401 just west of Woodstock in October 1988 when she hit a patch of black ice. Her car skidded, rolled several times and crossed the median line, hitting an oncoming car. She suffered very serious permanent injuries.

MacMillan's lawsuit against the Province of Ontario alleged that the Ministry of Transportation should have foreseen an increased risk of bridge icing because of an Environment Canada weather warning.

In June 1998, a trial court judge ruled that the Province of Ontario was not responsible for MacMillan's injuries. The trial court fixed damages at $3,866,000.

The appeal court heard the case in December 2000 and overturned the lower court ruling. The appeal court concluded that the week leading up to the date of the crash had been unseasonably cold. Weather warnings had accurately forecast precisely the type of conditions that were likely to cause bridge icing. The court ruled that it would have taken maintenance crews no more than 20 minutes to inspect

the five highway bridges in their patrol area, so the bridges should have been salted and sanded before the plaintiff arrived at the bridge.

With interest and legal expenses, we judge that this verdict will cost the defendant $7 million.

Because the Supreme Court has declined to hear the appeal, Ontario has exhausted its legal remedies.

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Bacardi wins $4.8-million product recall case

 

A British company that makes gas for the soft drink industry must pay the makers of the market-leading cooler "Breezer" £2.125 million (Cdn$4.8 million) in damages following a contamination scare.

Bacardi Martini and other beverage-makers were forced to recall hundreds of thousands of bottles in 1998. The beverages were found to be contaminated with benzene, although the levels were too low to pose a risk to health.

The action by Bacardi Martini is the first of several similar actions that are expected to reach the courts soon. The contamination was traced back to carbon dioxide supplied by Terra Nitrogen of Bristol, which must pay the entire cost of the product recall. The ruling also exonerated other suppliers and bottlers in the supply chain from liability.

The July 2001 ruling in the U.K.'s Commercial Court is being hailed as a landmark in product liability law. When claims from the other beverage-makers are settled, the claim's total cost will be considerably higher.

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Supreme Court says no to Globe & Mail appeal

 

The Supreme Court of Canada has refused to hear an appeal of a $780,000 libel award against the Globe and Mail.

Last year, the Ontario Court of Appeal upheld a trial court verdict in favour of Robert Hodgson. Hodgson sued the Toronto newspaper for allegations in a series of articles published in 1991 that suggested improper links with land developers. As a result of the articles, he lost his job as regional engineer with York Region of Ontario.

The appeal court verdict upheld the award for general damages but overturned the punitive damages award of $100,000. Because the Supreme Court will not hear the appeal, the Globe and Mail has exhausted its line of legal defence against this action.

We estimate that pre- and post-judgment interest and legal costs will increase the cost of this dispute to more than $1.4 million.

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Woman wins $6-million for accident on icy highway

 

The Ontario Court of Appeal has awarded a 53-year-old Brampton, Ontario woman almost $6 million for damages arising from an October 1988 highway bridge accident. Marilyn MacMillan was driving to work just west of Woodstock when she hit a patch of black ice. Her car skidded, rolled several times and crossed the median line, hitting an oncoming car. MacMillan suffered very serious permanent injuries.

Her lawsuit alleged that Ontario's Ministry of Transportation, which was responsible for the highway, should have foreseen that an Environment Canada weather warning presented an increased risk of bridge icing.

In June 1998, a trial court judge ruled that the Province of Ontario was not responsible for MacMillan's injuries. The trial court fixed damages at $3,866,000.

The appeal court heard the case in December 2000 and overturned the lower court ruling. The appeal court concluded that the week leading up to the date of the crash had been unseasonably cold. Weather warnings had accurately forecast precisely the type of conditions that were likely to cause bridge icing. The court ruled that it would have taken maintenance crews no more than 20 minutes to inspect the five highway bridges in their patrol area, so the bridges should have been salted and sanded before the plaintiff arrived at the bridge.

With legal expenses and 12 years of pre- and post-judgment interest, we expect that this verdict will cost the defendant more than $6 million.

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