In the bustling landscape of Ontario, the streets are often filled with a tapestry of people on the move. Pedestrians are everywhere, from commuters rushing to work to tourists exploring the downtown core. While walking might seem simple and routine, it comes with inherent risks, particularly when jaywalking is involved.
This blog post will consider the daily risks pedestrians face and the consequences of pedestrian behaviours. We will also review a recent matter before the Ontario Superior Court of Justice in which a jaywalking pedestrian sustained serious personal injuries, including a traumatic brain injury.
Pedestrian suffers traumatic brain injury; tort claim settles for $60,000
In the case of Brooks v. Culnan, the plaintiff was a pedestrian who was struck by a motor vehicle operated by the defendant on September 14, 2017. As a result of the accident, the plaintiff sustained serious personal injuries, including a traumatic brain injury (also referred to as a “TBI”) with associated cognitive issues. The matter arrived before the Court on a motion filed under Rule 7 seeking approval of a proposed settlement totalling $500,000.
In the solicitor’s affidavit, counsel for the plaintiff recommended the settlement in the tort action given the “uncertain liability situation” and the plaintiff’s “pre-accident medical conditions.” Expert reports were also provided regarding liability and damages. In this case, liability was a difficult issue for the plaintiff, as he was jaywalking at an intersection when the defendant was making a left-hand turn in their vehicle on a green light, which resulted in the accident. At the time of the accident, the plaintiff was 23 years old and was unemployed. His pre-accident medical history indicated that he suffered from fetal alcohol syndrome.
In the Court’s view, given the challenges regarding liability and damages, the tort action settlement of $60,000, inclusive of all claims, interests and costs, was reasonable.
Plaintiff deemed “catastrophically impaired” and settles SABS claim for $440,000
In accordance with the Statutory Accident Benefits Schedule (“SABS”) the plaintiff was considered to be “catastrophically impaired.” As such, the plaintiff’s counsel outlined various reasons as to why the resolution of the SABS claim was in the plaintiff’s best interests. After examining the amount of benefits claimed and paid since the accident occurred, the Court approved the settlement of the SABS claim for $440,000, which would cover the plaintiff’s cost of treatment into the future.
Further, the plaintiff’s lawyer had reduced his fees below the amount he could charge in accordance with the contingency fee agreement. As such, the Court found that the fees sought were reasonable.
Substantial portion of settlement funds placed in structured settlement
The accident benefits insurer required that at least $200,000 of the settlement funds be placed in a structure, which the Court agreed with, given the nature of the plaintiff’s impairments, inability to work, and age. The Court confirmed that the plaintiff’s litigation guardian had already reviewed various options for structured settlements.
The Court explained that when it reviews a proposed settlement, it must consider various items, including:
- the fees sought by counsel;
- the quantum of the settlements and
- the proposed distribution of settlement funds.
The Court must also consider the net amount to the party under disability and the proposal for using such funds. In cases where a substantial sum of money is payable to the party under disability, a Court will determine whether a structured settlement should be in place and, if so, what amount should be placed in such a structure and based on what terms. The terms for each structured settlement will depend on various factors, including:
- the age of the party under disability;
- the party’s injuries, and
- the nature of their disability.
Proper procedure for structured settlement approvals
Counsel for a party must also follow the proper procedure when bringing a motion for court approval of a proposed settlement for a party under disability when there will be a structured settlement for part of the money. This includes funding the structure in escrow or “locking it in” so that if the proposed structure is funded, yet the Court does not approve the settlement, it will collapse. The money will be placed into a different structure with Court approval. Further, the Court emphasized that pre-funding a structured settlement is necessary as it is the only way the insurers can guarantee rates before receiving Court approval.
If the Court does not approve a proposed settlement or distribution, the structure’s funds may increase or decrease accordingly.
Litigation guardian places $325,000 in structured settlement for plaintiff’s benefit
In this case, the plaintiff’s litigation guardian chose to place $325,000 in the structured settlement for the benefit of the plaintiff. The Court agreed this was an appropriate amount of settlement funds to place in a structure. A pre-funded structure was also proposed in this case. The plaintiff would receive tax-free payments of $1,363.19 until age 64. The Court agreed that the chosen structure was appropriate and noted that it was “locked in” and “directed to him, so there is security of payment, which is important given his cognitive deficits.”
This case highlights the difficulty that can arise in cases where liability is at issue, particularly in relation to pedestrians where jaywalking is involved. It also highlights how a plaintiff’s pre-existing medical conditions may cause the quantum of damages to be at issue, even when the accident-related injuries are significant and life-altering. For these reasons, working with an experienced personal injury lawyer who can help you recover maximum compensation is imperative.
Contact the Personal Injury Lawyers at Tierney Stauffer LLP in Ottawa for Trusted Advice on Personal Injury Matters
The knowledgeable personal injury lawyers at Tierney Stauffer LLP have over 35 years of experience successfully helping clients navigate and settle complicated personal injury claims. Whether you were involved in an accident in a vehicle or as a pedestrian and sustained serious injuries due to someone else’s negligence, we will manage your personal injury claim to allow you time to focus on your health and recovery. To schedule a consultation with a member of our personal injury team, contact us at 1-888-799-8057 or online.