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Case Study: Little v Floyd Sinton Limited
Defence + Indemnity

A plaintiff’s incapacity does not, as a matter of law, relieve him/her of the obligation to mitigate their damages; the issue of mitigation must still be put to the trier of fact.

Little v Floyd Sinton Limited, 2019 ONCA 865 per Roberts, J.A.

Facts and Issues

On her last day of Grade 8 the minor Plaintiff, aged 13, jumped from the back of the Defendant operator Floyd Sinton Limited’s school bus, travelling at between 20 and 25 kilometres per hour, while it was approaching her stop. She had revealed her plan to jump to other students who “tried to dissuade her from jumping from the moving school bus, repeating to her what she already knew”, that it “was a very dangerous act”.  She fell and hit her head and suffered a catastrophic head injury. The Plaintiff would never recover from her injury. She was rendered incapable with respect to her personal care and property and would likely never be able to work or live independently.

A jury found the defendant 75% liable for the plaintiff’s injuries on the basis that it had failed to follow clear expectations set out in its own handbook by failing to report reoccurring unsafe acts to the school: specifically, that students in Grade 8 had a tradition of jumping from the back of school buses on the last day of school. Had this been reported, proactive steps would have been taken to address the issue. The jury found the plaintiff 25% contributorily negligent for her injuries.

The Defence argued that the Plaintiff’s damages should be reduced because of her failure to mitigate by failing to follow medical recommendations after her suicide attempt that she continue to receive psychiatric treatment and reside in a supervised group home. The trial judge removed the issue of mitigation from the jury, charging it that they could not reduce the damages on that basis, telling the jury as follows:

I have decided as a matter of law that you cannot make any reduction to Ms. Little’s damages for failure to mitigate. You cannot hold Ms. Little responsible for any failures on the part of her mother or treatment providers to implement treatment recommendations. As for Ms. Little, she was an adolescent and then a young adult diagnosed with a brain injury who, upon attaining adulthood, was assessed to be incapable of managing her personal care and her property. Accordingly, Ms. Little cannot be held responsible for her decisions as she was not capable of making decisions concerning her treatment.

In any event, there is no evidence to prove that Ms. Little’s damages would have been reduced had she obtained the recommended treatment. [Emphasis added by the Court of Appeal.]

The defendant appealed on the following grounds that in charging the jury:

  1. The trial judge misstated the law of negligence and causation such that the amount of liability apportioned to the Plaintiff was overly low.  The trial judge charged the jury that the Plaintiff had to prove that she suffered damages “suffered damages as a direct result of the negligence of the defendant’s employee”.  Notwithstanding that trial counsel for the parties had drafted this portion of the jury charge and did not object to it, the Defendant argued that:
    1. The legal test for causation is the “but for” test such that a defendant can be liable if its negligence is an indirect cause.  The Defendant submitted that its negligence was at best indirect “because of its failure to report prior incidents of students jumping from school buses”.   
    2. That as a result, in finding the Plaintiff to have been contributorily negligent “the jury only mentioned that Ms. Little was negligent because she knew it was against the rules to jump out of the emergency exit; the jury failed to mention that Ms. Little was negligent by jumping out of a moving school bus”
  2. The trial judge wrongly stated that as a matter of law they could not reduce the Plaintiff’s damages for a failure to mitigate by not implementing specific treatment recommendations.
  3. The trial judge failed to reduce the Plaintiff’s damages by the amount of statutory accident benefits she received prior to trial as required under the Insurance Act, RSO 1990, c I.8.
    1. The Defendant argued that its trial counsel had inadvertently failed to note the omission of the reductions from the formal judgement and sought to file fresh evidence explaining the inadvertence.
    2. The Plaintiff sought to file fresh evidence showing that counsel agreed that past statutory accident benefits would not be deducted because the Plaintiff would not claim past damages. Defence trial counsel denied any such agreement existed.

HELD: Appeal dismissed regarding the apportionment of liability and mitigation issues; the issue of deduction of statutory benefits remitted back to the trial Court.

  1. The Court held that the trial judge had not misdirected on causation, nor was the liability verdict unreasonable, concluding that:
    1. The trial judge clearly set out the different factors that led to the Plaintiff’s injuries and explained how they related to the parties’ negligence theories, the difference between causation and apportionment of liability, and properly reviewed the “but for” test.
    2. The jury was alive to the Defence position that the Plaintiff should be principally responsible for her decision to jump from the bus.
    3. There was ample evidence to support the jury’s verdict and apportionment of liability.
    4. Defence trial counsel had not objected to this part of the jury charge but, indeed, had participated in the drafting of it.
  1. The Court held that the trial judge had erred in removing the question of mitigation from the jury on the basis that the plaintiff had no duty to mitigate because she lacked capacity to make treatment decisions.
  1. The Court held that in a personal injury case, the defendant must prove (1) that the plaintiff acted unreasonably in not following the recommended treatment, and (2) the extent  to which the plaintiff’s damages would have been reduced had they acted reasonably: Chiu v Chiu, 2002 BCCA 618.
  2. The Court also held that:
    1. Personal injury victims must take all reasonable steps to avoid the negative consequences of their injuries and prevent accumulation of losses.
    2. The Plaintiff’s incapacity did not excuse her, as a matter of law, from mitigating her damages.
    3. The reasonableness of a Plaintiff’s refusal of medical treatment recommendations is best determined by the trier of fact, which can appreciate the evidence firsthand.
  1. However, the Court held that this error regarding mitigation did not affect the trial outcome and occasioned no miscarriage of justice on the following bases:
    1. Section 134(6) of the Courts of Justice Act, RSO 1990, c C.43 bars an appellate court from directing a new trial unless a substantial wrong or miscarriage of justice has occurred. No substantial wrong or miscarriage of justice could have occurred if the error would have made no different to the outcome of the trial. 
    2. There was no expert medical evidence that this would have changed her prognosis of disability or reduced her damages.
      1. The only evidence suggesting psychiatric care might have assisted the Plaintiff’s prognosis was from a witness who was not a doctor and thus not qualified to offer an expert opinion on the Plaintiff’s medical and psychiatric prognosis.
      2. The Plaintiff was already participating in multiple treatments recommended to improve her psychological problems.
      3. Because of the long waiting lists for psychiatric treatment in the area where the plaintiff resided, it was unlikely the Plaintiff would have received any of the recommended treatment before trial.
  1. It was held that the issue of deduction of statutory accident benefits should be remitted for determination by a judge of the trial Court.
  1. It was noted that 267.8(4) and (8) of the Insurance Act provide for the deduction of statutory benefits from a damages award and that while these reductions are mandatory the parties may agree that they not be applied.
  2. The positions of the parties were diametrically opposed on whether or not an agreement not to reduce the damages for such benefits had been reached. This was not an issue the appellate court could determine. The respective versions of events were contained primarily in sworn affidavits. There was no written record of an agreement. Determining the issue required making findings of credibility, which was not appropriate for an appellate court in the circumstances.
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