Ontario Court of Appeal upholds TTC's liability in personal injury case of woman struck by bus

She claimed serious and permanent physical and psychological impairments from the accident

Ontario Court of Appeal upholds TTC's liability in personal injury case of woman struck by bus

The Ontario Court of Appeal has upheld the Toronto Transit Commission's (TTC) liability in the personal injury case of Shoba Kolapully, who was struck by a TTC bus.

The appeal stemmed from a 2022 jury verdict that awarded Kolapully $175,000 in non-pecuniary damages and $200,000 for past loss of income, with 75 percent of the negligence attributed to the TTC and 25 percent to Kolapully.

Kolapully claimed serious and permanent physical and psychological impairments from the accident, leading to extensive litigation, including proceedings before the Licence Appeal Tribunal (LAT) and the Financial Services Commission of Ontario. The LAT found her catastrophically impaired in January 2018, and she was awarded non-earner benefits. The TTC has consistently resisted her claims, arguing that she was malingering.

The TTC’s appeal focused on several alleged errors by the trial judge, including the admission of a Single Photon Emission Computed Tomography (SPECT) scan and the exclusion of attendant care claim forms.

The TTC argued that the trial judge erred in allowing testimony regarding a SPECT scan used to diagnose Kolapully's mild traumatic brain injury. However, the trial judge found the scan admissible as a diagnostic aid, supported by a clinical neurologist. The Court of Appeal upheld this decision, noting that the TTC did not present expert evidence to counter the scan's admissibility.

The TTC also contested the exclusion of attendant care forms signed by Kolapully, alleging they were part of a fraudulent scheme. The trial judge excluded these forms as irrelevant and prejudicial. The Court of Appeal agreed, stating the forms were not pertinent to the issues at trial and could unjustly bias the jury.

The TTC claimed errors in the trial judge's instructions to the jury regarding causation and the calculation of damages. The trial judge corrected misstatements made by Kolapully's counsel about the "material contribution" test for causation and the method for calculating non-pecuniary damages. The Court of Appeal found these corrections adequate.

Furthermore, the trial judge refused to deduct $95,000 in non-earner benefits Kolapully received from the damages awarded for past income loss. The Court of Appeal determined that non-earner benefits should be considered income replacement benefits and thus deductible under s. 267.8 of the Insurance Act. This decision aligned with recent jurisprudence, which grouped non-earner benefits in the income replacement category.

The Ontario Court of Appeal partially allowed the TTC’s appeal, requiring the $95,000 in non-earner benefits to be deducted from the $200,000 awarded for past income loss. Despite this adjustment, the court upheld the trial judge’s decisions regarding evidence admission and jury instructions. Kolapully was awarded $40,000 in costs for the appeal.

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