A woman driving in a town is rear ended and injured in an accident in which the details are disputed. She seeks to overturn an appeal ruling that she was 50% at fault

January 26, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

The accident victim indicated that on a very snowy day she was driving down a road when she realized she had forgotten something at home. She was driving below the speed limit due to poor conditions and was focussed on staying on the road which was obscured due to snow she states she turned on her left turn signal and started to turn into a driveway in order to turn her car around when she was struck from behind/side by a vehicle attempting to pass her on the left.

According to the 16 year old novice driver of the car that hit her, he was following behind her in snowy weather and was travelling faster than the woman. He saw her activate her right turn signal and move to the right of the road. He assumed she was going to allow him to pass her. As he was pulling alongside her, she suddenly turned left and the cars collided.

The amount of damages has been settled, but liability in the accident remains an issue. At a first trial 100% liability was assessed to the driver who struck the victim. On appeal of the decision a second judge apportioned 50% liability to each driver. The victim has appealed that decision asking that it be set aside, and this case is the result of the appeal.

The trial judge reviewed the evidence and testimony presented in the case along with the Highway Traffic Act (HTA). He determined that the victim had slowed significantly but failed to check her rear-view mirror to see if turning left was safe. The other driver was following too closely to stop safely. He thusly apportioned the 50% blame to each.

On review of this decision the Superior Court Judge determined that three questions needed to be addressed:

  1. Did the trial judge err in concluding the victim’s negligence?
  2. If she was negligent did the trial judge err in assigning 50% responsibility? Was there a casual connection between the Victim’s negligence and the collision?
  3. If the trial judge did err in the assignment of 50% liability what is the appropriate remedy?

Upon review the Superior Court Judge determined that the trial judge determined the victim’s negligence based upon her failure to check her blind spot and rear view mirrors to determine if turning left was safe. The Superior Court Judge determined the trial judge erred by applying the incorrect section of the HTA. The Superior Court judge confirmed that the other driver bears the burden of proving the defence of contributory negligence on balance of probabilities. He also determined the trial judge erred in concluding the victim’s negligence was casually connected to the accident, and therefore, assigning her 50% liability.

On the question of appropriate remedy the Superior Court judge indicated that a third trial after 14 years should be avoided. The record is sufficient to determine liability. As the heavy onus rests on the driver of the passing vehicle to excuse himself from liability. Given the evidence that he was a novice driver travelling too fast for the conditions on a slippery snow covered road with poor visibility the Superior Court  judge determined he played a major role in the accident.

The Superior Court judge also concluded that the victim was partially negligent and that the negligence contributed to her loss. He concluded that the victim is 10% responsible while the driver of the other car was 90% responsible.

For these reasons the appeal decision was set aside and the victim awarded $20,000 including disbursements and taxes.

 

Posted under Car Accidents, Personal Injury, Spinal Cord Injury

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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