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May 25, 2001 -Women Wins 6million lawsuit because of unsafe highway

A 53-year-old London, Ont., woman has been awarded almost $6 million after a court ruled the province should have cleared ice from a Highway 401 bridge where the woman suffered devastating head injuries in a crash.

Yesterday's award by a three-judge panel of the Court of Appeal in Toronto marks the end of a 12-year ordeal by Marilyn MacMillan, a mother of two sons, to prove the province failed to keep the highway safe. The accident on Oct. 12, 1988 near Woodstock, just before 8 a.m. occurred after provincial ministry of transportation workers failed to inspect the bridge for ice despite repeated weather forecasts of unseasonably cold weather and snow in the Woodstock area, the ruling stated.

MacMillan's lawyer, Earl Cherniak, said the award shouldn't open the province up to a flood of lawsuits over highway crashes. "There is no floodgates here. This case turns on its individual facts. Every single case turns on its individual facts." The judges concluded, "It is clear that the ministry ought to have known of a special and highly dangerous situation on the bridge in the early morning of Oct. 12, 1988 that created a risk of serious and imminent harm to motorists." MacMillan, who worked in the pension department of the Mutual Life Assurance Co. of Canada in Waterloo, was eastbound on her way to work from her London home when her car skidded on the ice and crashed into the median and another car. MacMillan spent four weeks after the accident in a coma and three years in a Texas rehabilitation facility. She wasn't available for comment last night.

Her appeal followed a trial court judge's decision in 1998 that the government wasn't liable for the accident. The ruling, which gave MacMillan and her family $3.9 million plus interest and legal costs, also dismissed a counter-appeal against MacMillan by lawyers for the transportation ministry . "Life will never be the same for Marilyn MacMillan," said Jim Virtue, her first lawyer from London who acted for her at the 1998 trial.

He said MacMillan still suffers from significant cognitive, behavioural and physical problems as a result of her brain injury. She is considered unemployable. The province argued workers couldn't have reasonably predicted ice would form on the bridge and there was the added problem that workers were still on a summer shift from 7.30 a.m. to 4 p.m. The winter shift, which has around-the-clock inspection, was to begin in early November. On the day of MacMillan's accident, the highway around Woodstock was bare and dry even though the bridge was icy. 'You have a duty to look at the weather conditions at all times.' Earl Cherniak "They can't simply say we will only do winter road patrol from November 1 to the end of March and because the accident occurred on Oct. 12, it's okay for us to close up shop at 4 p.m.," Cherniak said. "You have a duty to look at the weather conditions at all times." If the workers had checked the weather and inspected the bridge, it could have been made safe in about 20 minutes, court was told.

The Court of Appeal panel also reversed some key findings of fact by trial judge Mr. Justice William Jenkins, including his rationale for not finding the government liable. The panel said Jenkins' decision to find that the workers' knowledge of the ice on the bridge would have to be a "precondition" for the government to be held liable for the accident was wrong. The workers ought to have known about the icing, the appellate judges concluded. "Even if the ministry did not have constructive knowledge of the actual formation of ice on the bridge, it ought reasonably to have known of the real risk of this happening." The judges said the liability was aggravated because the ministry knew about the dangers of icing on bridges especially when the area around Woodstock had experienced freezing temperatures at the time. Ministry of Transportation spokesperson Bob Nichols said in a brief statement yesterday that the government was aware of the decision and was reviewing it.

In cases involving Traumatic Brain Injury, it is essential that measures be taken promptly to preserve evidence, prove the nature and extent of your injuries, and to enable expert medical witnesses to support the cause of your injuries. If you or a loved one has suffered what you believe may be a traumatic brain injury from an accident, call now at or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. Don't delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

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