Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CARLINGTON WHITE, DEBORAH BAKSH, KAWESHA MUSANGA NJELESANI, by her Litigation Guardian DEBORAH BAKSH, and NASTAYJHA KHYLA WHITE, by her Litigation Guardian DEBORAH BAKSH
Plaintiffs
AND:
STEVEN FOLKERTS, PRIMMUM INSURANCE COMPANY, TD MELOCHE MONNEX and SECURITY NATIONAL INSURANCE COMPANY
Defendants
BEFORE: Mr. Justice Chalmers
COUNSEL: B. Kahler, for the Plaintiffs
J. Grossman, for the Defendants
HEARD: In writing
ENDORSEMENT
Background
1The Plaintiffs bring this motion pursuant to R. 7.08 for approval of a settlement of the claim brought by the minor Plaintiffs, Kawesha Musanga Njelesani (born September 30, 2003) and Nastayjha Khyla White (born February 28, 2010).
2Carlington White is the stepfather of Kawesha and the father of Nastayjha. He was involved in three motor vehicle accidents. This action arises out of an accident which occurred on November 3, 2010. He was walking across a pedestrian crosswalk when he was struck by the Defendant’s vehicle. As a result of the accident, he sustained a fracture of the left fibula. He had a partial tear of the anterior cruciate ligament, and a complete tear of the medical collateral ligament. On April 17, 2012, Mr. White sustained a traumatic brain injury and severe right leg fracture which required a below the knee amputation. On May 14, 2015, he was involved in an accident in which he sustained a femur fracture above the amputation site.
3This action was commenced as a result of the 2010 accident. An action was also commenced as a result of the 2012 accident. The action arising out of the 2012 accident settled. I approved the settlement and granted judgment on February 21, 2020. No action was commenced as a result of the third accident.
4The proposed settlement in this action is in the amount of $150,000, the breakdown of which is as follows:
Plaintiff’s counsel’s fees $24,500.00
HST $ 3,185.00
Disbursements $73,493.74
Subtotal $102,178.74
Less discount ($8,178.74)
Net Fees $ 94,000.00
Previous lawyer’s fees $ 2,000.00
Carlington White and Deborah Baksh $ 50,000.00
Kawesha $ 2,500.00
Nastayjha $ 2,500.00
Liability
5Liability for the 2010 accident is in dispute. Mr. White stated to the police following the accident that he was walking south. When he approached the crosswalk, the pedestrian crossing was green. As he was crossing the road, the orange solid hand came on. He started to run across the intersection when the was struck by the Defendant’s vehicle. He later stated that he was walking north and as he was in the intersection to signal turned to the flashing hand signal. He started to jog across the street but was struck by the Defendant’s vehicle.
6The Defendant takes the position that as he approached the intersection, the traffic light for his direction of travel was green. As he entered the intersection, he saw Mr. White at the last second. He states that he was unable to avoid striking him. The Defendant states that the change in Mr. White’s version of the accident is significant. If he was walking south, the pedestrian signal would have been a solid hand and he should not have attempted to cross the road. The Defendant also takes the position that regardless of the direction he was walking he decided to run across the road notwithstanding the fact that the orange hand came on when he still had several lanes of traffic to cross.
Damages
7Mr. White sustained significant orthopedic injuries as a result of the 2010 accident. Dr. Chan, Mr. White’s orthopedic surgeon prepared a medical note dated March 22, 2012; one month before the second accident. She states that Mr. White was doing very well and had minimal complaints of pain. He has no swelling and full range of motion. It is alleged that Kawesha and Nastayjha were affected by Mr. White’s injuries because he was not able to play with them or take them to the park.
The Proposed Settlement
8Plaintiff’s counsel, Brendan Kahler swore an affidavit dated February 21, 2021. He states that in his view, this is an excellent sentiment for Kawesha and Nastayjha. A Family Law Act Plaintiff whose damages do not exceed $66,256.09 will face a deductible of $19,877.16. The deductible is applied after contributory negligence. He states that there was a “very substantial probability” that a jury would have found Mr. White completely or significantly at fault for the accident. Even if the jury found the Defendant to be at fault, they would have likely found Mr. White to have been contributorily negligent. There was a risk that their claims would have been wiped out by the deductible.
9The Litigation Guardian, Deborah Baksh swore an affidavit on February 3, 2021. She states that she reviewed the affidavit of Mr. Kahler and also states that she believes this is an excellent settlement for Kawesha and Nastayjha.
10Kawesha was born on September 30, 2002 and is currently 17 years of age. Pursuant to R. 7.08(4)(c), a minor over the age of 16 is required to consent in writing to the judgment. Kawesha executed her consent to the settlement on February 3, 2021.
Legal Fees
11The Plaintiffs’ were previously represented by Grillo Law Personal Injury Lawyers. The prior lawyers charged costs and disbursements in the amount of $2,000.
12The Plaintiff’s solicitors agreed to accept fees of $27,685 inclusive of HST. He is not taking a fee with respect to Kawesha and Nastayjha’s settlement. He has also provided a discount of his fees in the amount of $8,178.74.
Disposition
13I reviewed the affidavit of Mr Kahler and the exhibits attached thereto, the affidavit of Deborah Baksh, the Minutes of Settlement dated February 24, 2021 and the consent of Kawesha dated February 3, 2021. I am satisfied that the proposed settlement is fair and reasonable and in the best interests of the minor Plaintiffs. I approve the settlement.
14Order to go in accordance with the draft Judgment filed and signed by me.
DATE: June 3, 2021