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Some thoughts on a recent Child’s Fatal Car Accident

Received a few calls wanting commentary on the recent fatal accident involving a 7 year old. The accident took place at intersection of Millwood Road and McRae Drive, south of Eglinton Avenue in Toronto in an affluent area of the City known as Leaside. The intersection has a baseball diamond nearby, a park and a children’s summer camp as well. Kids play in that area.

The facts of the case are still rather murky. All we know for certainty is that the child was struck by a van trying to make a right hand turn. No charges have been laid. Police continue to investigate this matter. Speed may or may not be an issue in this case. We’re still not certain.

Dignitaries and politicians attended at the child’s funeral including Prime Minister Stephen Harper and Premier Kathleen Wynne. Any funeral attended both by the Prime Minister of Canada and the Premier of Ontario is going to be a big story.

A fund raiser for Sick Kids in memory of the child raised well over $55K.

To say that the accident was a big deal and a big news story is an understatement. This car accident received national media attention.

There have been many stories surfacing in the media of late that speed of drivers in the area is a problem.

What’s adding to the problem is construction is reducing lanes, and causing traffic to be diverted in to residential areas, away from the main traffic arteries which are clogged and congested. This adds to the potential for risk of a car accident.

We know that kids play in residential areas and that it’s important to slow down and be mindful of pedestrians as motorists.

My law firm has seen many cases where kids are killed by motorists. Whether or not the motorist is at fault for the car accident is up to police and then the Courts to decide.

It’s uncertain in this case whether or not any charges will be laid. So, when people ask me who’s to blame, it’s not easy to give a cut and dry answer without having all of the facts. Many of those facts (evidence) is withheld from the public (even lawyers) so as not to interfere with the police investigation. Interesting in this case is that the van which struck the child was moved immediately after the accident to make way for traffic. This is a big “faux pas” because the positioning of the van will give the police along with their traffic investigation unit information like the point of impact, and give them a better idea about the speed at which the vehicle was travelling prior to impact.

Would speed bumps or installation of a traffic light or a traffic circle have prevented this accident? Perhaps. How about if the driver was going slower? Maybe.

The easiest way to have prevented this accident? Better supervision of the child. Period.

In cases like this we’ve seen, we normally sue the parents or guardian for failure to supervise.

When we sue the parent for failure to supervise, it’s generally the parent’s insurance company who will provide their defense and pay any potential award in the case. The parent having to pay out of pocket for their child’s award generally doesn’t happen.

If the Plaintiff lawyer doesn’t add the parent for failure to supervise; you can be assured that the lawyer for the insurance company representing the offending driver will by way of Third Party Claim. If they don’t add the parent, then it’s likely there will be an allegation contained in their Statement of Defence that seeking a set off for contributory liability from the Plaintiff. That means that the Plaintiff’s award should be cut by and percentage or degree of fault that the Judge apportions to the Plaintiff for having caused or contributed to the subject car accident. If the Plaintiff is found to have caused 50% of the accident; then the Plaintiff is only entitled to 50% of the award.

You’ve gotta remember that people drive like idiots. Even if they don’t drive like idiots, kids aren’t always the best at paying attention to their surroundings. Even if they are super cautious, PEOPLE STILL DRIVE LIKE IDIOTS. And in the physics battle of car vs. pedestrian; car always wins. That’s why you have to be super mindful of your children when they’re playing outside near a road.

And it doesn’t matter of the accident happened in the bustling metropolis of Toronto; or a quiet back road in London or Peterborough. You have to be very careful of what your kids do, where they’re playing when cars come in to the equation.

One thing I’d like to see more of in the City of Toronto are traffic circles. Having police monitor stop signs is not effective enough a deterrent and isn’t practical. People don’t obey stop signs in residential areas. Traffic calming circles FORCE drivers to slow down, otherwise, they’d drive straight in to the middle of the traffic circle. You see A LOT of traffic circles in the suburbs of London Ontario, particularly in NORTH LONDON, where there are plenty of kids around playing. From what I’ve seen, the traffic circles have done a better job at curbing high speed drivers in these residential neighbourhoods. I think the same strategy should be implemented for the City of Toronto.

Lots of people have also called me saying that the child’s case is a multi million dollar car. Unfortunately, fatality claims in Canada aren’t as valuable as fatality claims in the United States. The pain and suffering measured from the accident victim is measured from the moment of impact, until the moment of death. So, if you get struck by a car, and die a day later, that’s just ONE DAY of pain and suffering for the Plaintiff. There are caps for damages for pain and suffering in Canada. The limit is at around $355,000 right now. Reaching that threshold limit for pain and suffering is not common.

The real money for fatality claims comes from the Family Law Act Claim (loss of guidance, care and companionship), along with the claim for loss of earnings or loss of services to the family unit. If a family’s sole bread winner who was earning $80,000/year died, that would be an $80,000 income hit to the family. Those figures start to add up over time and add significant value to the fatality claim.

The valuation of a claim is always a mathematical process that uses objective criteria and numbers. This is where math and objective criteria take trump emotion and tragedy. Many a Plaintiff injury lawyer would like to just make up very high numbers to give a value to a claim, but unfortunately, that’s not the way that the law works in Ontario. I would love to tell all of my clients that their case is worth $100 Million dollars. That would certainly make everyone happy (except for insurers). But that’s just not the way that injury cases work.

Our thoughts and prayers are with the child and her family during these difficult times. Our thoughts are prayers are also in the Middle East where we hope for a peaceful resolution to the on going conflict. Our thoughts and prayers are with my departed friend, Sol Swartz who recently lost his battle with cancer at the young age of 34 years old. Add to that the passing of 17 year old Tyler Bailey at a Toronto GO Station and you have a week of tragic and terrible news. Here’s to some good news in the weeks to come.

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