COURT OF APPEAL FOR ONTARIO
Cronk, Lang and Juriansz JJ.A.
BETWEEN
Donald Greer, by his Litigation Guardian William David Greer, William David Greer personally, Donna Greer, James Greer, Gary McCarthy, Tammy Greer and Kerry Greer
Plaintiffs (Respondents)
and
Karl Kurtz, City of Hamilton, Town of Paris, City of Burlington, and Her Majesty the Queen in Right of the Province of Ontario as represented by the Minister of Transportation for the Province of Ontario
Defendants (Appellant/Kurtz)
and
Integrated Maintenance & Operations Services Inc. and John Bouwmeester
Third Parties
AND BETWEEN
Donald Greer, by his Litigation Guardian William David Greer, William David Greer personally, Donna Greer, James Greer, Gary McCarthy, Tammy Greer and Kerry Greer
Plaintiffs (Respondents)
and
Daimler Chrysler Services Canada Inc.
Defendant (Appellant)
Gerald A. Swaye, Q.C. and Stephen H. Fay, for the appellants
Allan A. Farrer and David F. MacDonald, for the respondents
Heard and released orally: December 3, 2009
On appeal from the judgment of Justice Barry H. Matheson of the Superior Court of Justice, dated June 2, 2008.
ENDORSEMENT
Introduction
1This case arises out of a motor vehicle accident, the consequences of which were tragic for all concerned.
2During oral argument, the focus of the appellants’ attack on the trial judge’s decision narrowed considerably. As argued, the appellants challenge the trial judge’s finding in negligence that Mr. Kurtz was partially liable for Mr. Greer’s injuries. The appellants did not pursue their appeal from the trial judge’s apportionment of liability.
Analysis
3In our view, the trial judge’s finding of negligence against Mr. Kurtz was open to him on the evidence.
4The Greer vehicle entered Mr. Kurtz’s lane of travel on two occasions, the first time when the vehicles were separated by a distance of about 300 metres. The trial judge held that while Mr. Kurtz slowed his vehicle after Mr. Greer first entered his lane, he did not do so sufficiently in all the circumstances and that, if Mr. Kurtz had done so, “it would have at least lowered the impact speed”.
5There was ample evidence to support this finding. First, Mr. Kurtz testified that, although he initially took his foot off the accelerator when he first saw the Greer vehicle, he again put his foot on the gas pedal and kept on driving after Mr. Greer went back into his own lane.
6Second, throughout his testimony, Mr. Kurtz indicated that he believed the Greer vehicle came back under Mr. Greer’s control when it returned to Mr. Greer’s lane. Under cross-examination however, he appears to have accepted his wife’s testimony on discovery that it was unclear whether the vehicle was back under control when Mr. Greer returned to his own lane. The trial judge fairly held that Mr. Kurtz “may or may not have felt that the Greer vehicle was under control when it went back into its own lane”.
7On this evidence, at the very least, Mr. Kurtz proceeded on the assumption, under icy and snow-windy conditions, that the Greer vehicle was under control and would remain so. In these circumstances, the trial judge did not err in essentially concluding that Mr. Kurtz should have taken further precautionary action by continuing to slow his vehicle. See Gill Estate v. Greyhound Lines of Canada Ltd., [1987] B.C.J. No. 2452.
8The appellants rely on Dennis v. Gairdner, [2002] B.C.J. No. 2017 to argue that since Mr. Kurtz took all necessary precautions in the circumstances, his actions were reasonable and not negligent. But in Dennis, the trial judge specifically found that the defendant, having slowed down on seeing the first fish-tailing of the other vehicle, “kept her foot over the brake ready to take evasive action”. The court held that she “had taken precautions which would allow her flexibility of further evasive action based on what she had observed of the movements of the [other vehicle]”.
9That is not this case. In this case, in a decision that admittedly was made quickly and perhaps even instinctively, Mr. Kurtz put his foot back on the accelerator.
10We also do not agree that the trial judge’s findings are tantamount to a ruling that Mr. Kurtz should have applied his brakes. The trial judge simply held that Mr. Kurtz should have slowed his vehicle more than he did and that his failure to do so meant that the speed of impact was greater than it otherwise would have been. The evidence before the trial judge, some of which we have alluded to above, supports this finding.
11Finally, the trial judge’s impugned negligence finding is not related to avoidance of the accident. As we have said, it is directed to Mr. Kurtz’s failure to slow his vehicle adequately, the result of which was to make the force of the collision greater than it otherwise would have been. This is negligence.
Disposition
12The appeal, therefore, is dismissed. The respondents are entitled to their costs of the appeal, fixed in the amount of $10,000, inclusive of disbursements and G.S.T.
“E.A. Cronk J.A.”
“S.E. Lang J.A.”
“R.G. Juriansz J.A.”