Accessed using Litigator, a Westlaw Canada service.
2002 CCLTPleading 24981 / Page XXXAccessed using Litigator, a Westlaw Canada service.
2002 CCLTPleading 24981 / Page XXXView Pleading Document Collection - 2002 CarsPleadingW 331
Pleading; Claim or Originating Document
Subject: Family; Insurance; Torts
Date: July 28, 1999
© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved.
Court document related to:
Childs v. Desormeaux, 2002 CarswellOnt 2885, 13 C.C.L.T. (3d) 259
Document appears as reproduced from court files, including any omissions or deficiencies arising from the reproduction process.
*****START OF COURT DOCUMENT*****
Court File No. 99-0815
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ZC, ANDREW CHILDS, PAULINE CHILDS, HEATHER LEE CHILDS and JENNIE KHRISTINE CHILDS
Plaintiffs
—and—
DESMOND DESORMEAUX, JULIE ZIMMERMAN, THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA and DWIGHT COURRIER
Defendants
BARRY D. LAUSHWAY
Barrister & Solicitor
214 King Street West
Prescott, Ontario,
KOE ITO
BARRY D. LAUSHWAY
613-925-5991
Solicitor for the Plaintiff s
AMENDED STATEMENT OF CLAIM
TO THE DEFENDANT(s)
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff(s). The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a Statement of Defence in form 18A prescribed by the Rules of Civil Procedure, serve it on the plaintiff(s) lawyer(s) or, where the Plaintiff(s) do(es) not have a lawyer, serve it on the Plaintiff(s), and file it, with proof of service, in this court office, WITHIN TWENTY DAYS after this Statement of Claim is served on you, if you are served in Ontario.
If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your Statement of Defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days.
Instead of serving and filing a Statement of Defence you may serve and file a Notice of Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.
Date: July 28, 1999
Issued by ......
Local Registrar
Address of Court Office:550 King St. W.
Brockville, Ontario
K6V 3P2
TO:Desmond Desormeaux,
Regional Detention Centre,
Ottawa, Ontario
AND TO:Julie Zimmerman
XXXXXXXXXX.,
Gloucester, Ontario
AND TO:The Dominion of Canada General Insurance Company,
165 University Ave., 5th floor,
Toronto, Ont.,
M5H 3B9
AND TO:The General Accident Assurance Company of Canada,
2206 Eglinton Ave. E.,
Toronto, Ont.,
M1L 4S8
AND TO:DWIGHT COURRIER
XXXXXXXXXX
Gloucester, Ontario
AMENDED CLAIM
Relief Claimed
1. The Plaintiffs claim against the Defendants for the following:
(a) General damages in the amount of $4,000,000.00;
(b) Special Damages in the amount of $1,000,000.00;
(c) Punitive Damages in the amount of $1,000,000.00;
(d) Prejudgment and postjudgment interest pursuant to The Courts of Justice Act;
(e) Costs of this action;
(f) Such further and other relief as to this Honourable Court may seem just.
The Parties
2. The Plaintiff Zoë Childs is an 18 year old female (d.o.b. XXXXXXXXXX, XXXXXXXXXX). She resides in the County of Grenville, Province of Ontario. On January 1, 1999 she was a rear seat passenger in a 1989 Chrysler LeBaron with Ontario Licence Number XXXXXXXXXX (The "Hadden Vehicle") owned by Catherine Hadden and driven by Patricia Anne Hadden (d.o.b. XXXXXXXXXX.
3. The Plaintiffs Andrew Childs and Pauline Childs are the father and mother of Zoë Childs. They are 44 and 47 years old respectively and resided at all material times with the Plaintiff Zoë Childs at their family home on XXXXXXXXXX, Grenville County.
4. The Plaintiff Heather Lee Childs is the sister of the Plaintiff Zoë Childs. She is 19 years old (d.o.b. XXXXXXXXXX. The Plaintiff Jennie Khristine Childs is also a sister of the Plaintiff Zoë Childs.She is 22 years old (d.o.b XXXXXXXXXX XXXXXXXXXX. The parents and the sisters bring their claims pursuant to Section 61 of the Family Law Act, R.S.O. 1990, Chapter F.3
5. The Defendant Desormeaux, resides in the City of Ottawa. He was at all times the owner and operator of a 1992 Ford Taurus motor vehicle bearing Ontario Licence Plate XXXXXXXXXX
6. The Defendant Julie Zimmerman and the Defendant Dwight Courrier were the occupants of a residence located at XXXXXXXXXX Gloucester, Ontario. They were the social hosts at the location where the Defendant Desormeaux was served or allowed to consume intoxicating liquour at a New Year's Eve Party to such a degree that his ability to operate a motor vehicle was impaired by alcohol.
7. The Defendant The Dominion of Canada General Insurance Company ("Dominion of Canada") is a motor vehicle insurer properly licenced to issue motor vehicle policies of insurance in the Province of Ontario. On January 1, 1999, it was the insurer of the Hadden Vehicle pursuant to a valid policy of insurance which contained the requisite clause providing for uninsured liability coverage in favour of all occupants of the Hadden Vehicle to a maximum of $200,000.00. The Policy Number was XXXXXXXXXX
8. The Defendant The Canadian General Accident Assurance Company of Canada ("General Accident") is also a motor vehicle insurer properly licenced to issue motor vehicle policies of insurance in the Province of Ontario. On January 1, 1999, it was the insurer of a vehicle owned by the Childs-McNeilly Ltd. pursuant to a valid policy of insurance. The Policy Number was XXXXXXXXXX with an expiry date of November 13, 1999, insuring among other vehicles a 1986 Honda Accord LX owned by the company. Zoë Childs was listed as a driver for said vehicle. Said policy contained the optional OPCF44R clause providing for underinsured liability coverage in favour of all insured persons named under the Childs Policy of insurance to a maximum of $1,000,000.00.
How the Accident Occurred
9. At approximately 1:35 A.M. on January 1, 1999 the Hadden Vehicle was proceeding southbound on Albion Road, Gloucester, Regional Municipality of Ottawa Carleton. The vehicle was being operated by Patricia Hadden at a prudent rate of speed. The Plaintiff Zoë Childs was in the rear seat with her boyfriend DD (age XXXXXXXXXX Sitting beside Patricia Hadden in the front seat was ND DD's twin brother.
10. Patricia Hadden was in all respects and in all ways complying with all laws in the operation of her vehicle. Her ability was not impaired by alcohol or drugs. She was driving at a reasonable rate of speed and complying with all of the rules of the road.
11. At the same time the Desormeaux vehicle was proceeding northbound on Albion Road, Gloucester. The vehicle was being operated by Desmond Desormeaux, whose ability to drive was grossly impaired by alcohol or drugs. Suddenly and without warning the Desormeaux vehicle crossed the road at a high rate of speed, collided with the Hadden vehicle, killing DD outright and seriously injuring all of the other three passengers in the Hadden vehicle including the Plaintiff Zoë Childs whose spine was completely severed at T10. She is now a paraplegic.
Allegations of Negligence
12. The Plaintiffs state that the collision was caused by the negligence of the Defendant Desormeaux, the particulars of which are as follows:
A. AS TO THE NEGLIGENCE OF THE DEFENDANT DESORMEAUX:
(a) he failed to keep a proper lookout;
(b) at the time, his faculties of observation, perception, judgment and self-control were impaired and due to his physical and mental condition, he was incompetent to operate a motor vehicle with normal and reasonable care and attention;
(c) he failed to have or maintain his vehicle under proper control;
(d) he was travelling at too high a rate of speed in the circumstances;
(e) on the occasion in question, he was an incompetent driver, lacking in reasonable skill and self-command, and ought not to have attempted to operate a motor vehicle;
(f) even after the danger of a collision arose, he could, by the exercise of reasonable care, have avoided the same but he failed to do so;
(g) he created a situation of danger from which the Plaintiff, Zoë Childs despite all reasonable efforts and precautions was unable to extricate herself;
(h) he failed to give any warning of the approach of his vehicle, though such warning was reasonably necessary under the circumstances;
(i) he failed to give the Hadden vehicle the right of way to which it was entitled;
(j) he failed to have his vehicle in a proper state of mechanical repair suitable for the safe use thereof in a highway;
(k) he failed to have the brakes in his vehicle in a proper working order, or in the alternative, he failed to properly apply the same or at all;
B. AS TO THE NEGLIGENCE OF THE DEFENDANT JULIE ZIMMERMAN/DWIGHT COURRIER:
(a) they permitted a person who they knew to be an unlicenced and uninsured driver to consume alcoholic beverages to excess on their premises, knowing that he was likely to drive his vehicle home;
(b) they continued to serve alcoholic beverages to Desormeaux even though he was clearly and visibly intoxicated;
(c) even though Desormeaux was clearly intoxicated they took no or inadequate steps to get his car keys or offer him an alternate way home;
(d) they made no or inadequate arrangements for the safe return of their guests to their own homes even though they lived in the country where it was impossible to walk home or obtain taxis or public transit;
(e) they had the last clear chance to prevent Desormeaux from operating his motor vehicle when he was visibly intoxicated and where it would reasonably be assumed that he would constitute a danger to other users of the highway in his drunken state.
Description of Injuries
13. As a result of the force of the impact, the Plaintiff Zoë Childs sustained permanent serious disfigurement and permanent serious impairment of an important physical, mental and psychological function and catastrophic impairment including complete severing of her spinal column at T10, and numerous other injuries to her body.
14. She is now a paraplegic, totally and irrevocably paralyzed from mid abdomen down.
Non-Pecuniary General Damages
15. The injuries were accompanied by shock, anxiety, depression, emotional trauma, chronic pain and loss of bodily functions which will continue for the rest of her life.
16. Her own injuries were exacerbated by the trauma of seeing her boyfriend killed before her eyes, and are further exacerbated every time she sees or talks to his identical twin brother who survived the crash.
17. The Plaintiff Zoë Childs has sustained and will continue to sustain pain and suffering, a loss of enjoyment of life and a loss of amenities. She is unable to participate in those recreational, social, household, athletic and employment activities to the extent to which she participated in such activities prior to the collision.
Treatment
18. As a further result of the negligence of the Defendants, the Plaintiff Zoë Childs has undergone and will continue to undergo hospitalization, therapy, rehabilitation, attendant care, the use of specialized equipment, specialized housing and other forms of medical treatment and health care. In addition, the she has received and will continue to receive medication.
Future Cost of Care
19. The Plaintiff Zoë Childs has incurred and will continue to incur in the future expenses, including expenses for hospitalization, therapy, rehabilitation, attendant care, the use of specialized equipment, specialized housing and other forms of care, the full details of which are not within the Plaintiff's knowledge at this time.
Loss of Household and Handyman Capacity
20. The Plaintiff, Zoë Childs is unable to perform household and handyman chores for herself to the extent that she was able to do so before the collision and resultant injuries. She has suffered a loss of housekeeping and handyman capacity and will require assistance in the future to complete such chores.
Loss of Income
21. The Plaintiff Zoë Childs has sustained a loss of income and will continue to sustain a loss of income, a loss of competitive advantage in the employment field, a loss of income earning potential and a diminution of income earning capacity.
Claim for Special Damages and Future Expenses
22. As a result of the negligence of the Defendants, the she has suffered other pecuniary damages up to the present and will continue to suffer pecuniary damages in the future, the full particulars of which are not known at this time.
Loss of Interdependent Relationship
23. She has also suffered a loss of interdependent relationship or a loss of marriageability. She will be less likely to marry or form a spousal relationship with another wage earner than before her accident. She will sustain an economic loss occasioned by her inability to share income with a spouse or partner.