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Blind lawsuit
Created On: February 9, 2012
Jon Dunkerley is one of the defendants in a $300,000+ claim. Photo: Dan Plouffe

 

2008 Paralympic runner who is blind being sued for colliding with woman on canal pathway


By Anne Duggan
 
Running is an act of trust for Jon Dunkerley.
 
More than most of us who accept a certain amount of risk each time we step outside to run along Ottawa's pathways, the 2008 Paralympian is dependent on his guide and the actions of those around him.

“For someone who has been blind since birth, it is easy to trust,” explains the Canadian national team member who has Leber's congenital amaurosis, a rare inherited eye disease that appears at birth or in the first few months of life, and affects around 1 in 80,000 of the population.

But a recent lawsuit against Dunkerley questions whether he is right to train just as any able-bodied athlete might while using two equalizers: a tether and a human running guide. A tether is a cloth rope linking him to his guide.

On Jan. 24, 2010, a collision occurred involving Dunkerley, his guide Jamie Stevenson and another runner, Mimi Lepage, along the Rideau Canal between Patterson Creek and Fifth Ave. It was a typical, busy Sunday morning on the pathway, recalls Dunkerley, who was in a group of nine runners that day.

Running at a moderate pace, he and Stevenson were the last ones to attempt to pass Lepage, Dunkerley says.

“I had no idea what was about to happen. I was just running along  – one minute I’m running and the next I’m running into a woman,” says Dunkerley, a competitor in the T11-class for runners who have no light perception in either eye and are unable to recognize the shape of a hand at any distance or direction.

Lepage was struck from behind “without warning” and knocked to the ground, with two larger runners then falling on top of her, court documents filed on Dec. 22, 2011 say.

“I understand that she was hurt and I feel bad,” Dunkerley says. “I was the one who hit her.”

Since Dunkerley is blind and because the rest of his group had already passed Lepage as they all traveled south along the canal, only his guide Stevenson saw what happened in the moments before the collision.

Stevenson was out of the country and unavailable for comment at the time of publication.

Lepage’s injuries as a result of the collision included soft tissue damage to the neck and shoulder, partial dislocation of her shoulder and labral tears of the right hip, says the statement of claim.

Lepage is suing for $300,000 for pain and suffering, plus a yet undetermined amount to cover lost income (including vacation and sick days), healthcare costs and other damages. She also claims $50,000 on behalf of her nine-year-old son for loss of care.
Dunkerley’s older brother Jason, a three-time Paralympic medalist, the Ottawa Lions Track-and-Field Club, and seven other unnamed individuals (including both guides) who were part of the group are also defendants in the lawsuit.

The statement of claim says the accident has had a long-term impact on Lepage, resulting in restricted physical activity, hip surgery, relentless appointments and a continued dependence on medication, while she “now has difficulty walking, sitting, sleeping, and has (been) unable to run or race since January 24, 2010.”

Race results on sportstats.ca indicate that a runner by the name of Mimi Lepage from Ottawa completed a 10-kilometre race on April 25, 2010 in under 54 minutes, but there are no results after that date.

Lepage declined the Ottawa Sportspage’s request for an interview on the record. ­
Her lawyer, Susanne Sviergula, explains there is only one accepted way for an injured party to gain compensation in our society and that is with a lawsuit.

“It is not a fair system for either side,” she says.

For a successful case, Lepage must “prove that (Dunkerley) has breached the standard of care of a reasonable runner,” says University of Ottawa law professor Louise Bélanger-Hardy. It is up to the court, she adds, to determine exactly what the standard of care is for a runner. 

Standard of care for a blind runner, or his guide, “has not been fully explored in Canadian law,” Bélander-Hardy notes.
 

Plaintiff carries law background

Lepage holds a Master’s degree in law and is currently the executive director at the Information & Privacy Policy division at the Treasury Board of Canada, her lawyer confirms.

Living on the $1,500 per month income of a carded athlete and some earnings as a webmaster, Dunkerley is unable to pay for a lawyer himself beyond three hours of free legal help through Reach Canada – an organization that serves people with disabilities – and he feels overwhelmed and helpless.

Dunkerley’s legal aid has told him that because of his lack of house insurance, and therefore an ability to pay for a defence and any damages he may be 
ordered to pay, it is likely the case will focus on his guide instead.

Dunkerley dreads the ordeal that his friend, along with his club and former running buddies, will now face.

“It's not something that is just going to go away,” says the fourth-place finisher from the 2011 world championships who believes that his guide did everything possible to avoid Lepage. “I feel really badly for Jamie who was doing me a favour and now he is being accused of negligence.”

At the time of the accident, Stevenson had been guiding the Dunkerley brothers for two years. A guide's training is led by the runner with visual impairments, Dunkerley explains, noting the more they run together, the better they figure it out. He adds that Stevenson was an especially good guide since he had lots of experience and was of similar size and stride.
 

Paralympics remains focus

Dunkerley says the lawsuit is frequently on his mind, but that it hasn’t affected his preparations towards qualifying for the 2012 Paralympic Games Aug. 29-Sept. 9 in London. With the goal of bettering his seventh-place finish from the 2008 Bejing Paralympics in the 400 m, it means that it is time to refocus, at least for his workouts.

“It bothers me a lot, I think about it a lot, but it’s not going to stop me from training – let’s put it that way,” says Dunkerley, who is coping with an ankle injury at the moment but maintains high goals for London. “It would be really nice to podium obviously, if I could.”

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