COURT OF APPEAL FOR ONTARIO
RE:
MILENA WRBASKIC, NEBOJSA WRBASKIC and TANIA WRBASKIC (Plaintiffs/Appellants) v. CLARENCE N. RATKOWSKI and THE TDL GROUP LTD. (Defendants/Respondents)
BEFORE:
CATZMAN, DOHERTY and LASKIN JJ.A.
COUNSEL:
E.R. Murray and
Oslyn Braithwaite
for the appellants
T. Clemenhagen
for the respondents
HEARD:
November 9, 2001
RELEASED ORALLY:
November 9, 2001
On appeal from the judgment of Justice George Yates, sitting with a jury, dated December 17, 1999.
E N D O R S E M E N T
CATZMAN and DOHERTY JJ.A.
1The appellant was struck by a bus driven by the respondent Ratkowski. She was walking across the street with the light and the respondent’s bus was making a slow left turn across the appellant’s path.
2Taking the respondents’ evidence at its very best, the court is satisfied that there is no basis upon which a reasonable jury, properly instructed, could have concluded that the respondents had discharged the onus of showing that Ratkowski was not negligent. The appellant must have been crossing the street when he turned into her path. He had a duty to yield and he failed to do so.
3The majority is, however, satisfied that there is some basis upon which this jury could conclude, as it did, that the appellant did not exercise the caution expected of a reasonable pedestrian in the circumstances. The fact that the respondent Ratkowski failed to yield as required does not preclude a finding that the appellant also failed to exercise reasonable caution for her own safety in all of the circumstances.
4The court is satisfied that the damages must be assessed afresh. The perverse finding by the jury with respect to the respondents’ liability does not necessarily require that the damage assessment be set aside, but it does give cause for concern about that award, particularly when, as here, the award is low. The jury also heard a great deal of evidence about various benefits and payments that had been made to the appellant as a result of her disability flowing from the accident. None of that evidence had anything to do with the jury’s task of quantifying her non-pecuniary damages. Unfortunately, this was not made clear to the jury. Finally, the charge read as a whole was not helpful to the jury. There was no attempt to relate the evidence to the issues or to clearly contrast the competing positions of the parties and the evidence on which they relied. The jury was left very much on its own.
5The majority would order a new trial on the question of the appellant’s contributory negligence, if any, and on the quantification of damages. In the majority’s view, that trial should take place before a judge and jury, subject to any order to the contrary made in the trial court.
“M.A. Catzman J.A.”
“Doherty J.A.”
6Although I agree with the majority that the jury’s verdict on question 1 was perverse, I am unable to agree that the evidence could reasonably support a finding that the plaintiff, Milena Wrbaskic, was contributorily negligent. In my view, the only reasonable verdict on this record is one fixing the respondent, the bus driver, with 100% liability for the accident. In so concluding, I rely on the following considerations:
The appellant Milena was 80% through the intersection on a green light when she was hit by the bus;
The respondent driver had a mandatory duty to yield under s. 140(1) of the Highway Traffic Act, a duty he admitted that he breached by pleading guilty to a contravention of the section;
The respondent driver had to wait some 20 seconds even to make his left turn; and
The defence led no evidence about where the appellant Milena was when the bus driver first saw her.
7I agree with my colleagues that the appellants should have a new trial on damages. I would, however, order that this trial take place before a judge alone.
“John Laskin J.A.”