H v. J 2019 ONSC 3571

Drunk driver and host establishment found liable for plaintiff’s catastrophic injuries including severe traumatic brain injury

The Reasons for Judgment of The Mr. Honourable Justice G. E. Taylor were given June 13, 2019 at Hamilton, Ontario.

On June 7, 2012 at approximately 1:30 a.m., PJ was operating a motor vehicle approaching a T intersection in the community of Fonthill, in the Town of Pelham. The plaintiff, WH was the front seat passenger in the vehicle and was not wearing a seatbelt. P was driving at 80 kilometers an hour when the posted speed limit was 50 kilometers an hour. P failed to observe the stop sign at the intersection. The vehicle left the roadway, hit a tree, rotated 180 degrees and came to rest facing west on the front lawn of a residence. W suffered serious injuries including comminuted, depressed skull fracture, subarachnoid hemorrhage, subdural hemorrhage, intraparenchymal hemorrhage and diffuse axonal injury.

On the evening of June 6, 2012, P and W with four other friends and acquaintances attended the All Star Tap and Grill House in Fonthill to watch a Stanley Cup finals hockey game and take advantage of a “12 for 12 special” – that is 12 cups of beer for $12.00. The group ordered and consumed 4 trays of beer. It was determined that P drank more than an equal share of the 48 glasses of beer that were served. At approximately 1:00 a.m. P drove the group home, after which he, W and their friend G went out to buy cigarettes. On the way home G and W encouraged P to drive faster, which he did.

P was found 80% at fault for the accident and the All Star Tap and Grill House was found 20% liable as they failed to fulfil their obligations, pursuant to Smart Serve, to engage in behaviour designed to keep their patrons safe. W was found contributorily negligent for failing to wear a seatbelt, riding in a vehicle when he knew the driver was intoxicated and, encouraging the driver to speed. As a result his award was reduced by 25%. In that regard, the Court found that All Star breached its duty to W and the All Star is therefore 20% responsible for having overserved W.

Dr. Rosenbloom, an expert in pharmacology, testified that, at the time P left the All Star, he would have had a blood alcohol concentration between 217 and 254 milligrams of alcohol per 100 millilitres of blood. (This is referred to as a BAC of 192) “Dr. Rosenbloom said that at the BACs that he determined, there would be noticeable signs of impairment including red eyes, staggering, stumbling, slurred speech and impaired fine motor skills. He said these signs of impairment should be apparent to a trained observer.”

Dr. Flor Muniz, physical medicine and rehabilitation expert with respect to acquired brain injuries concluded that W had suffered a severe traumatic brain injury which has resulted in significant cognitive consequences. She opined that there could be deterioration of W’s condition in the future. “The aging process could be more severe and it could occur earlier. She said there could be a higher likelihood of dementia.”

Dr. Michael Rathbone, neurologist, performed a neurological examination of W. According to Dr. Rathbone “W has lost approximately one third of his brain cells and the connectors between his brain cells. This is a significant loss of brain function. He doubts that there will be any further recovery”

Conclusion – Non-pecuniary damages were assessed at $300,000.00; Past income loss – $356,627.00; Future income loss – $1,741,863.00; Cost of future care – $9,055,000.00. A management fee of 2% is allowed. W’s parents were awarded $175,000.00 each and W’s siblings were awarded $25,000.00 each for their claims under the Family Law Act.

The full text of this Decision can be found here

For further analysis and reporting of the decision please download the linked PDF

If you would like to book an assessment with Dr. David Rosenbloom, Pharmacology, Dr. Michel Rathbone, Neurology or Dr. Flor Muniz Rodriguez, Physiatry, please contact us at Integra

Written by Stella Gowans, Paralegal