December 09, 2019, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Should a plaintiff’s failure to get treatment be used to reduce any damages award - Little v. Floyd Sinton Limited, 2019 ONCA 865
Date of Decision: November 4, 2019
Heard Before: L.B. Roberts J.A., M. Tulloch J.A., B.W. Miller J.A.
ON APPEAL - Appeal from Trial Decision (Jury) Regarding Findings of Contributory Negligence
STANDARD OF REVIEW: a jury’s verdict should only be set aside ‘where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict'
At trial the Appellant/Defendant Floyd Sinton Limited (FSL) the defendant was found to be 75% liable for damages to the Plaintiff/Respondent Ms. Little.
The accident occurred on the last day of school in grade 8, Ms. Little had been riding the school bus for several years, was a trained bus patroller, and had been taught how to open the emergency doors. She had been instructed that it was dangerous to jump from the back of the bus when it was moving.
She discussed a plan to jump out the door with her sister and other students on the bus. Several students tried to dissuade her repeating that this is dangerous. As the bus approached her home travelling around 25 km/h, she rushed to the back of the bus, and opened the door. Ms. Little jumped from the back facing door of a school bus operated by FSL, fell and hit her head. She suffered a catastrophic head injury from which she will never recover. It is not in dispute that she is incapable with respect to her personal care and property and that she will likely never be able to work or live independently.
She was found 25% at fault. She received an award of $7,032,600 + pre-judgement interest and costs. Her mother was awarded $4,730 under the Family Law Act.
On appeal FSL takes no issue with the finding that they breached the standard of care, however it argues that the trial judge erred in her instructions on causation and the jury erred in their findings of fact on causation and contributory negligence. FSL also argues that the trial judge erred by instructing the jury that mitigation was unavailable as a matter of law, du to Ms. Little’s lack of capacity to make decisions regarding her medical treatment. FSL also argued tat the trial judge erred in failing to reduce Mw. Little’s damages by the amount of SABs she received prior to trial as required by the Insurance Act.
i. Whether, in her charge to the jury, the trial judge misstated the law of negligence and causation? (the jury’s verdict therefore unreasonable and should not stand);
ii. Whether, in her charge to the jury, the trial judge erroneously instructed the jury that as a matter of law they could not reduce Ms. Little’s damages for a failure to mitigate by not implementing specific treatment recommendations.
Appeal Dismissed, with respect to the issue of the trial Judge’s charge to the Jury, the findings of contributory negligence/ causation, and mitigation.
Roberts J.A., writing for the Court of Appeal rejected the Appellants argument at  going on to note that the jury charge must be considered against the entire charge and the trial as a whole, citing Surujdeo v. Melady, 2017 ONCA 41; R. v. Daley, 2007 SCC 53. ‘the question on appellate review is whether the charge provided the jury with adequate assistance to determine the questions it had to decide’ citing Samms v. Moola, 2019 ONCA 220.
The Trial judge clearly set out at :
‘the factors that led to Ms. Little’s decision to jump from a moving school bus. In the context of summarizing the parties’ respective positions, the trial judge explained how these factors related to the parties’ negligence theories. She correctly explained the difference between the issues of causation and apportionment of liability. She reviewed the “but for” test for causation.’
Of note, trial counsel drafted this component of the charge and no objection was taken to it. Roberts J.A., concluded at
 that ‘there was no question that the jury was alive to the defence position that Ms. Little should be principally responsible for her decision to jump from a moving school bus.’ This was reflected in the finding that she was 25% contributory negligent.
With respect to the issue of Mitigation, the trial judge’s charge read 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]’
[27} As I will explain, I agree that the trial judge erred in removing the question of mitigation from the jury on the basis that, as a matter of law, Ms. Little did not have a duty to mitigate her damages because she lacked the capacity to make treatment decisions. However, I am satisfied that the trial judge’s error occasioned no miscarriage of justice since it would not have affected the trial outcome.
 Assuming the recommended treatment would have been available to Ms. Little in the small window of time between her suicide attempt and the commencement of trial, there was no medical expert evidence that Ms. Little’s prognosis would have been different and that her damages would otherwise have been reduced. Specifically, there was no evidence from a qualified medical expert that she would have been able to live independently and become financially self-sufficient. In the light of that conclusion, there is no need to consider the issue of whether Ms. Little’s damages ought to be reduced for any failures of her mother, as her guardian of care, or other treatment providers.
 Accordingly, I would decline the appellant’s request to exercise the discretion under s. 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43 to order a rehearing, nor would I reduce Ms. Little’s damages. For the reasons that follow, I am of the view that the appellant did not meet its onus to prove that Ms. Little has failed to mitigate her damages.
Upon review of the facts Robert J.A. stated at  “I am satisfied that no miscarriage of justice occurred from the trial judge’s error in failing to put the mitigation issue to the jury in the light of the fact there was no medical expert evidence that any delay in obtaining further psychiatric treatment or residence in a group home would have changed Ms. Little’s prognosis of disability or reduced her damages. The appellant has failed to meet its onus to prove Ms. Little failed to mitigate her damages.
With regard to the deduction of the SABs from the settlement amounts Roberts J.A. noted that while the reductions are mandatory, it is common ground that the parties may agree that they not be applied.
FSL argues that defence trial counsel failed to note the omission in the formal judgement, and it only came to light when appellate counsel reviewed the file.
Roberts JA noted that this was not an issue for this court’s determination.