The Ontario Court of Appeal has upheld the trial court decision that awarded Sarah Little (“Sarah”) $7 million after suffering a brain injury when she jumped from a rear emergency exit on a bus.
On the last day of grade 8 in June 2011, Sarah Little, of Barrie, Ontario, was on her way home from school on the school bus. The dangerous practice of jumping from moving buses had become a tradition for 8th graders at Sarah’s school. Despite being aware of the danger and being warned by her sister and other students, Sarah, 13 years old at the time, jumped from the back of the moving bus, somersaulted and smashed her head on the pavement.
As a result of her actions, Sarah suffered multiple skull fractures. Sarah was left with impairments that doctors expect will make her unable to work or live independently for the rest of her life.
WHAT HAPPENED AT THE TRIAL?
Sarah and her family sued the bus company, which operates as Landmark Bus Lines.
At the trial, evidence was presented to the court that the bus driver had observed children jumping out of the back door for several years and had done nothing to stop it. The school principal testified that she was unaware of this dangerous tradition and had she known about it she would have put an immediate end to this practice.
The jury found that the bus company did not follow its own policy and failed to inform schools about previous incidents of students jumping off of moving buses on the last day of school.
In Canada, employers can be held responsible for the negligence of their employees. In this case, the jury found that the bus company was liable for the following actions taken by its bus driver:
- Failing to follow clear expectations set out in the company handbook about reporting unsafe behaviour to the school;
- Failing to report re-occurring unsafe acts; and
- Failing to fulfill his duty to keep children safe.
After a four week trial, the jury concluded that Sarah was 25% responsible for her own injuries and the bus company was responsible for the rest. The jury reduced Sarah’s $9 million award for damages to $7 million in damages. This is one of the largest jury awards for damages in Ontario.
WHAT HAPPENED AT THE APPEAL?
The bus company appealed the trial court decision and asked the Ontario Court of Appeal to order a new trial or reduce the damages award. The bus company’s position was that the trial judge made legal errors in instructing the jurors on causation and informing them that mitigation was unavailable. Furthermore, the bus company argued that the trial judge erred in failing to reduce Sarah’s damages by the amount of statutory accident benefits that she received prior to trial.
The Ontario Court of Appeal rejected the bus company’s arguments that the trial judge, Justice Elizabeth Quinlan, made errors in instructing the jury and concluded that Justice Quinlan was clear in providing the factors that led to Sarah’s injuries. Furthermore, both the plaintiff and the defence took part in drafting the jury instructions.
Justice J.A. Roberts, on behalf of the three judge panel of the Ontario Court of Appeal wrote:
There is no question that the jury was alive to the defence position that Ms. Little should be principally responsible for her tragic decision to jump from a moving school bus. In assessing Ms. Little’s contributory negligence at 25 per cent, the jury rejected her argument that the bus company should bear 80 to 90 percent of the fault.
The trial judge did not misdirect on causation, and there was ample evidence to support the jury’s verdict and apportionment of liability. As such, the liability verdict is reasonable.
The Appeal Court did agree with the bus company’s argument that Justice Quinlan erred by removing the question of mitigation from the jury given Sarah’s lack of capacity to mitigate. However, the Appeal Court did not find that a miscarriage of justice occurred due to this error.
With respect to the bus company’s position regarding statutory accident benefits, the Appeal Court did order a new trial to deal with the specific issue of whether the award of damages to Sarah should be reduced by the amount of statutory accident benefits she had received.
At Cuming & Gillespie Lawyers, we are committed to helping you and your loved ones. If you or a loved one have been injured in a motor vehicle accident and believe a third party is responsible, you may be entitled to compensation for damages. Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or at 403-571-0555. We can get started with a free case evaluation and are dedicated to providing you with the legal help that you deserve.