Howard Smith

An appeal from a motion judge's order approving a $12.5 million settlement for a minor who suffered a severe brain injury in a high school rugby match.

The motion judge approved the overall settlement but reallocated funds to ensure adequate provision for the plaintiff's future care costs and reduced the solicitor's contingency fees from 30% to 20%, disallowing an additional $339,000.

The appellants challenged both the reallocation of funds and the fee reduction.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary decisions regarding the allocation of funds for future care or the reduction of solicitor's fees.

The plaintiffs sought court approval for a $12.5 million settlement arising from a catastrophic brain injury sustained by a 16-year-old during a high school rugby match.

The court reviewed the proposed structured settlement, private investment plan, and legal fees.

Finding the 30% contingency fee unreasonable given the size of the settlement and the exclusion of the OHIP subrogated claim, the court reduced the legal fee to 20% and directed the savings to the plaintiff's future care fund.

The settlement was approved with these modifications.

The plaintiff, a seven-year-old student, suffered a catastrophic brain bleed after being punched in the head by another student during recess.

The plaintiff sued the school board and its staff for negligent supervision.

The court found that while the punch caused the brain bleed due to the plaintiff's pre-existing undiagnosed arteriovenous malformation, the school board and staff were not negligent.

The general supervision of the schoolyard met the standard of a careful and prudent parent, and the offending student's prior minor misbehaviour did not warrant closer supervision.

The action was dismissed.

The appellant appealed a jury verdict finding the respondent not negligent in a snowmobile accident.

The appellant argued the trial judge erred in interpreting s. 10 of Regulation 804 under the Motorized Snow Vehicles Act and in admitting marijuana-related evidence.

The Court of Appeal dismissed the appeal, agreeing that the appellant was 'on a highway' whether on the paved portion or the shoulder.

The court found the jury was properly instructed on the respondent's potential negligence.

Because the jury found the respondent not negligent, the admissibility of the marijuana evidence relevant to the appellant's contributory negligence was moot.

During a trial regarding a schoolyard assault that allegedly caused the rupture of an arteriovenous malformation (AVM) in the plaintiff's brain, the plaintiffs moved to exclude an addendum to the defendants' neurosurgical expert report.

The plaintiffs argued the addendum, which contained statistics on the annual risk of an AVM bleeding, constituted a new 'crumbling skull' defence related to damages that was not properly pleaded or disclosed.

The court dismissed the motion, finding that the risk statistic was already patent in the expert's original report and had been accepted by the plaintiffs' own expert.

The court held that a medical fact relevant to causation for liability is equally relevant to the assessment of damages, and its use did not open a new medical field.

The plaintiffs in a personal injury action appealed an order requiring their expert witnesses to answer questions regarding the foundation and assumptions of their opinions during cross-examination on affidavits filed in response to a summary judgment motion.

The Divisional Court dismissed the appeal, finding no error in the motions judge's ruling that cross-examination on an expert's affidavit should be subject to the same rules as other affiants and is not strictly limited to the four corners of the affidavit.