Defendants alleged that the parents failed to supervise their child
The Ontario Superior Court has approved a tort settlement for a minor who sustained injuries after being struck by a car on Canboro Road in Pelham, Ontario.
A vehicle hit 11-year-old Audrey Serravalle as she crossed a road after collecting her family's mail from a mailbox. The car was attempting to get around a garbage truck parked on a lane beside the mailbox when Audrey was hit. Audrey suffered serious and permanent injuries.
Audrey and her parents sued the owner and operator of the garbage truck and the vehicle that hit her for damages. The defendants filed a counterclaim against Audrey's parents for allegedly contributing to the damages by failing to supervise or instruct the child.
The parties reached a settlement at a mediation proceeding. Audrey's father, who also served as her litigation guardian, brought a motion seeking court approval of a portion of the tort settlement related to the minor. The Ontario Superior Court said that the burden of proof is on the plaintiff to convince the court that the settlement was fair and reasonable. The lawyer's affidavit must show, "how does the proposed settlement compare to decided cases found in the law reports and case digests for similar personal injuries?"
Liability of the defendants
The court acknowledged that the defendants vigorously contested their liability. The vehicle operator that hit Audrey, Thomas Duggan, argued that the minor was entirely responsible for the accident as there was nothing he could have done to avoid the accident.
The court noted that none of the cases referred to in the supplementary affidavit of the plaintiff's lawyer dealt with contributory negligence of a pedestrian in similar circumstances. The court found no discussion on the law concerning contributory negligence in a pedestrian accident, the onus, the factors to be considered in assessing contributory negligence in a pedestrian or motor vehicle accident involving children, or any references to case law showing the range of assessment in similar cases.
The defendants who owned and operated the garbage truck also took a "zero-liability" position. The court referred to the Highway Traffic Act even though the plaintiff did not raise it in the materials submitted. The court found that the garbage truck breached the statute for occupying most of the westbound lane and blocking traffic for westbound motorists at the time of the accident.
The court noted that while a breach of a statutory provision does not automatically give rise to a cause of action, proof of a statutory breach may be evidence of negligence. The court likewise found other facts which could potentially ground finding negligence against the garbage truck defendants.
The court also found that the truck owner, Timberline, was vicariously liable for Duggan's negligence. The court pointed out that there is a presumption of negligence on the part of a motorist who strikes a pedestrian. The court found ample evidence and factors suggesting that Duggan could not discharge the onus of proving that he was not negligent. The fact that Audrey was running or did not look both ways merely goes to contributory negligence. Duggan still bears the burden of proving that he was not negligent. Based on the evidence filed, the court found that Duggan would have some difficulty discharging the onus.
Contributory negligence of the minor
The materials before the court failed to address contributory negligence in the context of a child. The court said the reasonableness of the minor's behaviour must be considered in light of her age and experience. The test was whether the child exercised the care expected from children of like age, intelligence, and experience.
The court found evidence suggesting that Audrey might have been at fault for failing to look out for her safety. The court noted that several witnesses saw Audrey run across the street before looking both ways, which supports the contention that she was also negligent.
The court explained that there is no assessment of the range for contributory negligence regarding the guidelines in the jurisprudence or considering her age, intelligence, and experience. Each case must be assessed on an individual basis.
Settlement approved
The court acknowledged that Audrey sustained multiple injuries from the accident, including a serious and permanent impairment of her left foot. The court also noted that her residual earning capacity is reduced to sedentary employment.
After considering all the relevant factors, the court ultimately found that the proposed settlement was fair and reasonable. The court also considered that the Office of the Children's Lawyers did not object to the settlement. In the end, the court approved the settlement for the minor plaintiff in the amount of $280,000 for all claims, including interests plus costs and disbursements.
