04/16/2015 12:13 EDT | Updated 07/01/2015 01:59 EDT

Court tells Hamilton to pay $8M to boy run down at crosswalk

A Hamilton judge has ruled the city owes $8 million to a boy and his family after the child was hit by a car at a crosswalk 13 years ago after a crossing guard left work early.

According to a Superior Court ruling released this week, nine-year-old Dean Saumur's heart stopped after his head hit the pavement, and years later, he still doesn't remember much of his Grade 4 year.

Saumur has a "catastrophic" brain injury and will need care for the rest of his life.

It was just a couple of weeks before Saumur's 10th birthday when Luba Antoniak was driving on Gray Road at Collegiate Avenue and hit him while he was walking to school on May 14, 2002.

Crossing guard Helen Kaumeyer was not at the crosswalk when Saumur was hit – and the sticking point in the case was whether or not it happened before or after 8:40 a.m.

That's when Kaumeyer's shift was supposed to end – and if she left early, the city could be found at fault. Justice James Ramsay considered the testimony of nine witnesses, and decided that's exactly what happened.

"In my view, the negligence of Luba Antoniak and the negligence of the city were of equal importance in causing the plaintiffs' loss," Ramsay wrote in his decision. "I apportion blame between them at 50 per cent each."

Saumur and his mother, Janet Saumur, were awarded $7.85 million plus pre-judgment interest and a portion of legal costs. The driver's insurance company settled out of court with the Saumurs and the city in 2005, so the full damages judgment falls to the city.

According to a memo, Hamilton's finance director Mike Zegarac sent to councillors Wednesday, the city lawyer thinks an appeal is "unlikely to be successful."

The city will owe a $1 million deductible on the claim, with the city's insurance company covering the rest of the damages.

"While there is nothing more the city could have done, this is a tragic event and the courts have decided against the city and other defendants," Zegarac wrote.

"I will advise council in the event [our lawyer] discovers reasonable grounds for appeal."