This action arises from an accident between a pedestrian and a motor vehicle. The plaintiff was crossing a crosswalk and was struck by a turning vehicle. The driver was charged under the Highway Traffic Act for making an unsafe turn. He pleaded guilty and was convicted of the charge. He conceded his negligence in the context of this personal injury action. The plaintiff and defendant driver argued that the City was negligent in maintaining an appropriate level of lighting. Following a trial, Justice Mitchell dismissed the action as against the City, holding that the intersection and the lighting were in a reasonable state of repair. Although two luminaires were not working, there was sufficient illumination from all other sources of light to have enabled an ordinary driver exercising reasonable care to detect the plaintiff while he was standing at the intersection and while he traversed the crosswalk. The driver’s HTA conviction required an admission that the driver did not check to ensure his turn was safe before her turned. The driver’s windows were tinted and he only saw the plaintiff out of the front window after he started to turn.
The plaintiff was awarded damages in excess of $2 million. He was 42 years old at the time of the accident and worked at TD Bank in IT services. He suffered a serious brain injury and was in a medically induced coma for a few days after the accident. He had not returned to work at any point since the 2015 accident. The damages awarded were:
- General Damages: $330,000 plus interest
- Special Damages: $58,134.71 (agreed upon)
- Past Income Loss: $16,800 (net)
- Future Income Loss: $775,520
- Future Care Costs: $773,191 (following AB decuction)
- FLA Damages to Partner: $70,000 plus interest
- FLA Damages to Mother: $10,000 (net) plus interest
- FLA Damages to Sister: $5,000 (net) plus interest
Justice Mitchell also rejected the argument that the plaintiff’s settlement of the AB claim was improvident. He settled for $840,000, leaving $700,000 in attendant care benefits. Justice Mitchell did not find any evidence that the plaintiff acted with malicious intent or bad faith.