September 3, 2009 by Canadian Underwriter
A 22-year-old Beeton, Ontario woman who suffered a serious brain injury in a 2002 auto accident has received a court award of Cdn$18.4 million.
The sum, awarded by the Ontario Superior Court, is thought to be the highest-ever damage award in Canada for injuries suffered in a car accident.
Katherine-Paige (KP) MacNeil, 15 years old and in Grade 10 at the time of the accident, was riding in the back seat of a 1989 Tempo at 1 a.m. on Aug. 2.
Trevor Bryan was driving when the car ran a stop sign and became airborne, smashing front-first into a ditch along Highway 89 north of Toronto. KP MacNeil was the only person in the car wearing a seat belt.
The impact of the crash fractured MacNeil’s skull and left her with multiple, permanent and catastrophic brain injuries. Ontario Superior Court Justice Peter Howden found “she is no longer employable in any job” as a result of the crash.
Howden awarded a total judgment of Cdn$18.4 million, which included a loss of future income to McNeil of about Cdn$1.4 million and future care costs of about Cdn$15.2 million.
The Ontario Ministry of Transportation signed a so-called ‘Mary Carter agreement’ with the plaintiffs.
Under a Mary Carter agreement, a co-defendant — in this case the MTO — agrees to provide the plaintiffs with a payment of specified damages regardless of whether or not the plaintiffs lose a tort case. In return, the co-defendant’s liability is proportionately reduced, by increasing the other co-defendants’ liability.
In this case, the MTO’s co-defendants include State Farm, which is said to be the plaintiff’s under-insured vehicle insurer. Wawanesa Mutual Insurance Company was added on as a third party defendant.
As a result of the Mary Carter agreement, the insurers were not present at the time the award was calculated. Howden notes in the decision that “a companion action, ordered to be tried with or after this one, will deal, as one of its main issues, with the insurance coverage in respect of the MacNeils’ claims for loss arising out of the August 2nd, 2002 accident.”