A new trial has been ordered in the case of a four-year-old boy who was struck and badly injured by a school bus 16 years ago.
In a 24-page decision, Nova Scotia's highest court ordered a new trial must be held in the case of Jonathan Lee Marshall.
In April of 1994, Marshall was playing alongside Highway 201 in Paradise, in the Annapolis Valley, when he darted in front of a school bus which hit him and sent him flying. He was knocked unconscious and remembers nothing about the accident.
Sixteen years, and about a dozen surgeries later, Marshall, 20, can't work, can't walk very far or very easily. He also has mental issues arising from the accident, and needs constant care.
Marshall's lawyer said doctors at the IWK Health Centre in Halifax basically re-built Marshall.
Marshall and his family sued the Annapolis County District School Board and the bus driver, Douglas Feener, for negligence.
The case didn't go to trial until 2009 because the family had waited to see how much care Jonathan Marshall needed now, and would need in the future.
The Nova Scotia Supreme Court jury trial lasted 10 weeks, with doctors for both sides offering opinions on how much care Marshall would require in future.
The jury sided with the school board and the bus driver against Marshall and his family. But now, the Court of Appeal has ruled the trial judge made mistakes that warrant a new trial.
In particular, the three appeal court judges said the trial judge erred in his submission to the jury that Marshall, although only four years old, was partially responsible for the accident.
The appeal court judges said Marshall should not be held to the same standard of care as an adult under the Motor Vehicle Act.
Marshall's lawyer hopes to have the case re-tried later this year.