In this stunning decision the Supreme Court of Canada has overturned the decision of the Nova Scotia Court of Appeal and restored the verdict of  the Jury dismissing the infant’s  personal injury claim (Annapolis County District School Board v. Marshall,2012 SCC 27).
The injury claimant, a four-year-old, was playing with his brothers in front of the family home when he ran onto the highway and into the path of a school bus.  The bus driver could not stop in time and the young boy was struck suffering catastrophic injuries. After a ten-week trial, the jury found that the bus driver was not at fault and dismissed the claim.
The Nova Scotia Court of Appeal overturned the Jury decision and ordered a new trial on the ground that the trial judge’s reference in his Jury charge to the provisions of the Motor Vehicle Act, R.S.N.S. 1989, c. 293, concerning the duty of pedestrians to yield the right of way to vehicles confused the Jury. The Supreme Court of Canada disagreed with the Court of Appeal’s conclusion that, in referring to the right-of-way provisions, the trial judge effectively invited the jury to find the young boy legally responsible for the accident.
This case does not water down the law relating to child liability and Canadian Courts must still instruct juries that children of “tender age”can be too young to be negligent and are immune from tort liability. As Judge Deschamps points out in his majority ruling:

[7]    I agree with the appellant that the Court of Appeal failed to appreciate the dual function of statutory right-of-way provisions. Not only do such provisions inform the assessment of whether a pedestrian was contributorily negligent by failing to yield a right of way, they can also help determine whether a driver breached the applicable standard of care in the circumstances. In this case, even though Johnathan’s contributory negligence had been ruled out as a matter of law, the statutory right-of-way provisions continued to inform the standard of care that Mr. Feener owed to all pedestrians. The jury needed to be told that, absent special circumstances, where the driver has the right of way, he or she can reasonably proceed on the assumption that others will follow the rules of the road and yield the right of way to drivers.

[8]  I respectfully disagree with the Court of Appeal’s conclusion that, in referring to the right-of-way provisions, the trial judge effectively invited the jury to find Johnathan legally responsible for the accident. At the outset of his charge, Pickup J. made it clear that Johnathan’s liability was not at issue because of his young age(A.R., vol. I, at p. 44). In no part of the charge did the trial judge instruct the jury to adjudicate on the child’s negligence. When the trial judge’s instructions on the right-of-way provisions are read in light of the entire charge, it is clear that they served only to delineate the standard of care applicable to Mr. Feener. The jury was invited to consider the conduct of a reasonable pedestrian in assessing whether Mr. Feener had demonstrated the requisite degree of precaution.(emphasis added)

In his lone dissenting opinion Judge Cromwell stated, …The critical instruction was that the jury had to consider whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be and should therefore exercise greater care. This instruction was given almost in passing and in the midst of confusing instructions about the duty of pedestrians and self-contradictory instructions about the burden of proof. The plaintiff was entitled to have the key liability issue in the case put to the jury in clear terms.  Looking at the charge as a whole, this, in my respectful view, did not occur.  The misdirection may have given rise to an injustice.  I would therefore dismiss the appeal.”

Children beyond the tender years are still treated differently than adults and are expected to use the care of children of like age, intelligence and experience. Read my article review of Vedan v. Stevens, 2011 BCCA 386. Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A., LL.B.

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