On March 30, 2016, the Quebec Superior Court awarded more than $1.2 million to a man who is now paralyzed after falling in the parking lot of his apartment.1 In making this award, the court had to consider the vulnerability of the victim due to a serious pre-existing condition which may have contributed to his injuries, in accordance with a principle known as the "thin skull rule."
On the morning of December 28, 2006, Jacques Guichard had to clean the snow from his car before going to work. He succeeded in cleaning the hood and roof of his car without incident, but while cleaning the rear windshield, he slipped and fell on a patch of ice that was hidden beneath the snow. After two unsuccessful attempts to stand up, he finally got into his car by crawling on hands and knees to the driver's door.
In the weeks following the accident, Guichard felt he was gradually losing control of his limbs. He was admitted to hospital and underwent spinal surgery in February 2007. From that time on he never recovered his ability to walk. Both of his legs and his right arm are paralyzed and he only has use of his left arm and hand to 40% of their capacity.
Guichard sued his landlord, Domaine de Parc Cloverdale, which in turn brought an action in warranty against Daniel Da Silva, the snow removal contractor it had hired for the winter.
At trial, Guichard alleged that the landlord's negligence in maintaining the parking lot was the cause of his fall. According to the lease, the landlord was responsible for snow removal in the parking lot. The landlord had in fact hired Da Silva for this purpose. However, the landlord admitted that it had not asked Da Silva to spread abrasive between the parked cars. Da Silva was thus found not to be liable by the court.
The evidence revealed that there were numerous potholes in the parking lot as well as a drainage problem that allowed water to accumulate and freeze. Justice Mark Peacock considered that the landlord should have paid special attention to this problem as it was aware of the condition of the parking lot and of the weather conditions.
The victim's pre-existing condition
In its defence, the landlord denied any liability, arguing that Guichard's pre-existing condition was the cause of his injuries. Indeed, Guichard had suffered from cerebral palsy as a child. Although he was quite fit before the accident and enjoyed physical activity, particularly walking and bicycling, he walked with a certain instability and needed a cane for balance if he walked more than a kilometre. According to the physicians who gave expert testimony at trial, it is probable that even if Guichard had not fallen on the ice, he would eventually have suffered from progressive cervical myelopathy and could have been paralyzed by the age of 50. However, one of the experts suggested that if Guichard had not fallen, the deterioration in his health could have been stopped by laminectomy surgery.
The court thus had to determine whether Guichard's injury was caused by the fall. Although in the circumstances it was probable that Guichard's condition would eventually result in paralysis, surgery could have prevented such an outcome. As a result, the court found that Guichard would not have sustained the injury if he had not fallen on December 28, 2006.
The court ordered the landlord to pay Guichard damages of $1,234,820.49, including $459,731 for the loss of past revenues and $538,129 for the loss of future revenues. The court also mentioned an award of non-pecuniary damages of $218,795, although this amount was not referred to in the conclusions. The plaintiff was also awarded legal costs and an amount of $18,165.49 for the costs of two experts.
This decision underscores the principle according to which the frailty of the injured person is not a defence in a civil liability case in Quebec. The court's determination of causality and the quantum of damages will thus give little weight to a victim's pre-existing condition.
1. Guichard c. Domaine de Parc Cloverdale, 2016 QCCS 1384.
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