Mr. Malone

The plaintiff sued the municipality for negligence after tripping and falling in a pothole on a residential road.

The parties agreed on damages of $100,000, leaving liability as the sole issue.

The court applied the four-step test for municipal non-repair under the Municipal Act.

The action was dismissed because the plaintiff failed to provide reliable evidence of the pothole's dimensions, thereby failing to prove that the road was in a state of non-repair that posed an unreasonable risk of harm.

The court noted that had liability been found, the plaintiff would have been 15 percent contributorily negligent for failing to pay reasonable attention to the roadway surface.

This is an appeal from a judgment dismissing an action against the Regional Municipality of Durham for failing to keep a roadway in a reasonable state of repair, following a motor vehicle accident that caused life-altering injuries to the plaintiff.

The trial judge found the road was not in a state of non-repair and did not pose an unreasonable risk to an ordinary reasonable driver, also noting the driver's excessive speed and distraction.

The Court of Appeal dismissed the appeal, finding no extricable error of law in the trial judge's analysis.

The appellate court affirmed that the trial judge correctly applied the four-part test for municipal negligence, considering the driver's conduct as one factor among others in assessing the road's condition relative to an ordinary reasonable driver, without conflating the driver's negligence with the road's state of non-repair.