This is a personal injury case study of a pedestrian who was hit by a car. Our client, Henrietta,* an elderly lady was hit by the driver of a car while she crossed a downtown street on her way to attend a church service on a Sunday morning. It was an unfortunate set of circumstances that brought together a male driver in his 80’s (Mr. Davies*) and a female pedestrian (Henrietta) in her 80’s into a serious accident on a clear sunny day in late fall of 2014. The impact of the car hitting Henrietta resulted in her suffering extensive physical injuries including physiological damage to her brain.
This personal injury claim took several years to be successfully settled and involved Ashley Gnys and his personal injury team, Henrietta’s family physician, two occupational therapists, and a psychologist who specializes in Clinical Neuropsychology.
This case study uses information from the client`s settlement brief and supporting documentation.
DETAILS OF THE PEDESTRIAN ACCIDENT
Our facts were drawn from a compilation of an independent witness statement combined with the investigation done by Niagara Regional Police Services which was summarized in their accident reconstruction report.
The asphalt roadway on the street where the accident occurred was in a good state of repair, level and straight. All roads were dry and clear and lighting was not a factor. it was a quiet Sunday morning with little traffic.
Our client was walking to her church for Sunday service. Standing across the street from the location of the church, she then crossed the street towards the church. At this same time, Mr. Davies was on route to the St. Catharines General Hospital to visit his wife who was hospitalized there. He was familiar with the area and indeed his wife had been hospitalized for a number of days and her husband came to visit her daily, using this same general route to travel.
Henrietta began to cross the street when she was struck by Mr. Davies just as Henrietta crossed the centre line on the two-way street. Mr. Davies car collided with Henrietta’s purse with his driver’s side mirror, sending the purse flying and then striking her body with his front left fender. Henrietta came to rest on the roadway on her back with her head facing in a southerly direction with her right arm behind her back. Her boots and blue coat and white sweater were scattered on the yellow centre line of the street.
WITNESS ACCOUNTS SUPPORT OUR CLIENT
A witness to the accident, James Taylor, was standing at the front door, located beside the front window of the church. He was acting as an usher and was opening doors for church members coming into the service that Sunday morning. He was positioned at the two front glass entrance doors to the church, looking through those windowed doors, straight onto the roadway where the accident took place. He saw Henrietta walk across the street heading towards where he was standing. He observed her cross to the centre of the street, close to the yellow line, then somewhat into the lane closest to the church, that is, somewhat more than just over halfway across the street, when a car proceeding “in the lane closest to the church” drove by, hitting Henrietta and sending her purse flying. Traffic was not busy at the time and the motorist was not traveling quickly. James did not hear the squeal of brakes applied by the driver, and could not understand why the driver didn’t see her on the roadway
Mr. Davies did not give a formal statement in writing to the police but is recorded as asserting at the time that he simply never saw her; in the centre of the road. Unless the driver can show why he is NOT liable for hitting a pedestrian, the pedestrian wins liability under the reverse onus provisions of s. 193(3) of the Highway Traffic Act even though the police did not charge the driver. It was noted that he wore corrective glasses for driving.
The police did not charge Mr. Davies with a traffic violation, and sadly, he passed away before he could be examined for discovery.
IMPACT OF HER INJURIES
Henrietta was examined for discovery and due to her brain injuries, much of her evidence was unreliable and made no sense. She testified:
- she had already been at the church – wrong;
- that the service was finished – it had not started yet;
- she went back to the church to see if a lady there was selling bananas at the church and since she was not there Henrietta intended to go to a general store on Geneva St. – she had not yet arrived at the church;
- that she came up the same street and was about to reach the bridge to cross – there is no bridge anywhere near the accident site;
- she was standing on the side of road, with one foot on the street and one foot on the street behind the truck that was on Geneva St. – no positioning of feet, wrong street, no truck;
- that the street was crowded – it was not, it was a quiet Sunday morning with little traffic;
- that she was not familiar with the collision site of Church and Calvin St. – it was very familiar, she had walked to this church many times in the past at this street location; and
- she was on that street to go over to grocery store – wrong, she was crossing over to a church, there is no grocery store within blocks of the accident site.
Dr. Elena Ballantyne, a psychologist who specializes in Clinical Neuropsychology, diagnosed Henrietta with “anosognosia, a neurologically based lack of awareness which is consistent with right hemispheric injury. … Individuals with this condition are largely unaware of their neurocognitive injuries though often readily acknowledge physical injuries … (eg. memory problems) or neurobehavioral issues which may put her at risk (eg. impulsivity). She also denies any psychological distress or need for treatment as she is unaware of the changes in her cognitive status and the limitations they impose.”
Anosognosia is a deficit of self-awareness, a condition in which a person who suffers some disability seems unaware of the existence of his or her disability. Anosognosia results from physiological damage to brain structures, typically to the parietal lobe or a diffuse lesion on the fronto-temporal-parietal area in the right hemisphere.
Henrietta also suffered extensive orthopedic fractures to her:
1. left knee (left distal metaphyseal femoral fracture with plate and screw fixation),
2. right upper arm (right fracture mid-humeral diaphyseal fracture surgically repaired by O.R.I.F.),
3. bilateral rib fractures with an associated small right-sided pneumothorax,
4. bilateral sacral fractures,
5. multiple pelvic fractures (comminuted left superior and inferior pubic rami fractures extending into the left symphysis pubis),
6. right occipital condyle (neck), and
7. C7 transverse process fracture (neck)
After the accident, she went from complete independence at the time of the accident to complete dependence on others for her care.
THIS CASE WAS SETTLED FOR $780,000
This personal injury case was opened in 2014 and Ashley Gnyś successfully settled Henrietta’s personal injury claim in February 2018, providing Henrietta with the financial compensation she deserved and needed in her life. The tort claim settlement was for $280,000 and the accident benefits claim settlement was $500,000 for a combined settlement of $780,000.
*Names have been fictionalized to protect the privacy of our clients and other parties.
Disclaimer – This personal injury case has been selected to show the variance of processes and the nature of compensation claims that we deal with. They do not reflect what happens in every circumstance nor what may happen with other legal providers. We have used our experiences to outline likely scenarios that may occur when making a claim. Past results are not necessarily indicative of future results.”