Bossio v Ramsahoye, 2013 ONSCDC 6878
CITATION: Bossio v Ramsahoye, 2013 ONSC 6878
DIVISIONAL COURT FILE NO.: DC-13-436
DATE: 20131105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, LINHARES DE SOUSA and R. D. GORDON JJ.
B E T W E E N:
KATARINA BOSSIO, JOHN BOSSIO, ANTHONY BOSSIO and ALYSSA BOSSIO, a minor, by her Litigation Guardian, JOHN BOSSIO
Plaintiffs (Appellants)
- and -
KIMBERLY RAMSAHOYE and FINANCIAL LINX COMPANY
Defendants (Respondents)
COUNSEL:
Geoffrey Adair, for the Plaintiffs (Appellants)
Kieran C. Dickson, for the Defendants (Respondents)
HEARD: at Hamilton on June 27, 2013
ENDORSEMENT
MATLOW, J.:
The disposition
[1] For the reasons that follow, this appeal is dismissed.
This appeal
[2] This appeal by the plaintiffs is from the judgment of Justice Arrell dated April 11, 2011 after a trial with a jury. The action was brought by the plaintiff, Katarina Bossio (“the plaintiff”), to recover damages for personal injuries she alleges she suffered as a result of a motor vehicle accident that occurred on June 23, 2005. The other plaintiffs’ claims are derivative.
[3] On both liability and quantum, the jury found totally in favour of the defendants and, accordingly, the action was dismissed with costs.
[4] At the time of the accident, the plaintiff was driving her motor vehicle at the Oakville GO Train station northbound in the centre lane of the parking lot and was in the process of turning to the left when her vehicle was struck by a vehicle driven by the defendant, Kimberly Ramsahoye (“the defendant”), who was proceeding westbound on one of several exit lanes. Both drivers intended to leave the parking lot from an exit just west of where the collision occurred.
The issues
[5] The plaintiffs attack the judgment in appeal with respect to liability and quantum. With respect to the issue of liability, they allege that the trial judge failed to instruct the jury adequately on the applicable legal principles. With respect to quantum, they allege that the jury’s assessment was perverse. Other issues raised in the notice of appeal and the factum of counsel for the plaintiffs were abandoned at the opening of the hearing of this appeal.
Liability
STANDARD OF CARE
[6] After directing the jury that, according to law, the defendant owed a duty of care to the plaintiff, he went on to address the standard of care as follows:
I will now discuss with you the second element dealing with standard of care. If Ms. Ramsahoye failed to meet the standard of care expected in the circumstances, she was in breach of her duty of care to Ms. Bossio. The conduct of the defendant is not measured against perfection, but rather against the conduct of a person of ordinary prudence and intelligence in the community. A defendant is not required to exercise extraordinary caution or unusual skill or foresight. You must decide what a reasonable and careful person would have done in the circumstances described in the evidence. If the conduct of Ms. Ramsahoye fell below that standard, then, subject to what I say elsewhere, you must find Ms. Ramsahoye liable in negligence. But, if you find Ms. Ramsahoye met the standard of care required of a reasonable and careful person, you must dismiss the action.
You will of course recall the evidence describing how the accident occurred. Both parties were in the GO parking lot in Bronte on a clear, dry, sunny, late afternoon. Ms. Bossio was travelling north in the centre aisle while Ms. Ramsahoye was traveling west in the exit aisle. There is no dispute that both aisles were exactly the same width and were indistinguishable from each other. In other words, where the accident happened was a completely neutral intersection. Both drivers were very familiar with the layout of the lot as they had been using it regularly for quite some time. Both had used the centre aisle on previous occasions and of course both used the exist aisle daily. (emphasis added)
The evidence of Ms. Bossio is that she drove north at five to 10 kilometres per hour. She got to the exit lane slowed to five kilometres per hour while looking to her right, saw nothing coming and went into her turn and was hit on the passenger side. She estimated the speed of the car that hit her at 30 to 40 kilometres per hour while her speed remained at five kilometres per hour at the point of impact. Ms. Ramsahoye told you she was driving west in the exit aisle at 20 to 30 kilometres per hour. As she approached the centre aisle she slowed slightly and suddenly Ms. Bossio turned in front of her and she could not avoid hitting her.
You will also recall the evidence of Mr. Don Levy who was parked facing north between the eastern aisle and the centre aisle with the exit aisle in front of him. He was looking down when he heard what he described as a roar go by in front of him and seconds later heard a crash. He never saw the vehicle go by. Based on sound alone, he thought whatever car that went by him was going much too quickly for the parking lot and perhaps in the 60 kilometres per hour range.
Ms. Bossio felt she had the right of way because she was in the centre aisle which she felt was the through aisle. Ms. Ramsahoye felt she had the right of way because she was in the exit aisle where all vehicles eventually had to merge to leave the lot.
It is for you to decide which facts you accept out of the evidence you heard and what negligence you feel has been proven.
BURDEN OF PROOF
The burden of proof is on Ms. Bossio. I have told you that, as a matter of law, Ms. Ramsahoye owed a duty of care to Ms. Bossio at the relevant time. The plaintiff must satisfy you on a balance of probabilities;
(1) that Ms. Ramsahoye failed to meet the standard of care in the circumstances; and
(2) that, as a result of failing to meet that standard of care, Ms. Bossio suffered the damages of which she now complains.
[7] The trial judge then went on to instruct the jury on contributory negligence.
[8] Counsel for the plaintiffs now submits, as set out in paragraphs 32 and 33 of his factum, that the trial judge “erred in law in failing to provide the jury any guidance as to the law governing the movements of each driver as they approached and entered the uncontrolled intersection”. Those paragraphs read as follows:
While the trial judge noted in the charge to the jury that the intersection where the accident happened was a “completely neutral intersection” without stop of yield signs, he erred in law by failing to provide any instruction or guidance as to the law governing the movements of each driver as they approached and entered the intersection.
The trial judge ought to have instructed the jury regarding the provisions of the Highway Traffic Act, R.S.O. 1990, c. H. 8. which has been held to apply to parking lots used by the public for the passage of vehicles. Although courts have in other instances held that the Act does not apply to parking lots, the common law regarding the duties of each driver as they approach an uncontrolled intersection are the same as those set out in the Act and would apply in the absence of relevant legislation.
[9] In response to these submissions, counsel for the defendants responds as set out in paragraphs 45 to 49, inclusive, of his factum. They read, in part, as follows:
The trial judge did, in fact, provide guidance to the jury with respect to the determination of fault. Specifically, instruction was given on the standard of care and the competing burdens of proof.
The issue of the application of the Highway Traffic Act is being raised for the first time on appeal. The issue was not plead in the Statement of Claim and did not arise in the context of the charge to the jury, either by way of pre-charge discussions or objections to the charge.
The absence of any reference to the Highway Traffic Act at first instance was not inadvertent. The Highway Traffic Act generally has no application to private parking lots. While the Act and the rules of road therein have been found to apply to certain peculiar parking lot situations (i.e. where the parking lot has a dual function as a thoroughfare, or where the Act provision at issue does not use the word “highway” or any word that incorporates the word “highway in its definition), this was not the case at hand and there was never any dispute as between the parties on this point.
The authority cited by the Plaintiff does not support her assertion that there are duties at common law equivalent to those found in the Highway Traffic Act, applicable where the Act is silent. At most, the “rules of the road” are distillations of what amounts to reasonable care and offer guidance to situations not covered by the Act.
Had the Highway Traffic Act applied, this would have been to the benefit of the Defendant, not the Plaintiff. Under the rules of the road, and specifically subsection 135(3) of the Act, when two vehicles enter an uncontrolled intersection of highways at approximately the same time, the driver on the right (the Defendant in this case) has the right of way.
[10] I agree with these submissions made on behalf of the defendants. I am satisfied that the trial judge’s charge on the issue of liability was correct and sufficient in the circumstances of this case. The instructions given to the jury were clear and concise and the jury required no further instruction in order to arrive at a reasonable verdict in accordance with the law.
[11] As well, it is my view that, not having raised the matters now placed in issue in this appeal, the plaintiffs should not be allowed to raise them for the first time in this appeal.
[12] I will return below to one further reason why this appeal fails on the issue of liability.
Quantum
[13] Counsel for the plaintiff submits that the jury’s assessment of the plaintiffs’ damages at zero was perverse.
[14] The plaintiff testified that, as a result of the accident, she suffered a large number of physical and psychiatric injuries. Her evidence was supported by the evidence of five medical doctors and one rehabilitation expert who testified on her behalf. Apart from the plaintiff’s claim for general damages for pain and suffering, her counsel tendered experts on loss of income and loss of housekeeping capacity who gave evidence that her past income loss to the date of trial was $161, 500.00, that her future loss of income claim was between $930,000.00 and $1,106,000.00, that her medical and rehabilitation costs claim was $184,000.00 and her claim for housekeeping costs was $228,000.00.
[15] During his cross-examination of the plaintiff, counsel for the defendants challenged the bona fides of her claims and the relationship, if any, of her claims, to the accident. This challenge was supported by the evidence of three medical doctors who gave evidence on behalf of the defendants. The essence of their evidence was that the plaintiff had experienced a full recovery from any soft tissue injuries she may have suffered as a result of the accident and that she had suffered no neurological, brain or psychiatric injuries.
[16] It was entirely for the jury to weigh all of the evidence and render a fair and reasonable assessment of all of the plaintiffs’ claims. In the circumstances of this case, there was a very wide range open to the jury. I am not persuaded that the assessment made, albeit extreme, was outside the range and I would not interfere with it.
A Footnote
[17] During the course of his submissions, we asked counsel for the plaintiffs whether, if we were to uphold the assessment of damages at zero, there would be any point allowing this appeal and directing a new trial even if we were to allow the appeal on the issue of liability and he acknowledged that there would be none. This is the “further reason” referred to in paragraph 12, above.
Costs
[18] Both counsel advised that they had agreed that costs should be in the cause of this appeal and fixed at a sum equivalent to the total of $12,500.00, H.S.T. and the actual cost of transcripts obtained. Accordingly, the defendants are entitled to costs fixed in accordance with this formula.
MATLOW. J.
LINHARES DE SOUSA. J.
R. D. GORDON. J.
Released: November 5, 2013
CITATION: Bossio v. Ramsahoye, 2013 ONSC 6878
DIVISIONAL COURT FILE NO.: CD-13-436
DATE: 20131105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
KATARINA BOSSIO, JOHN BOSSIO, ANTHONY BOSSIO and ALYSSA BOSSIO, a minor, by her Litigation Guardian, JOHN BOSSIO
Plaintiffs (Appellants)
- and -
KIMBERLY RAMSAHOYE and FINANCIAL LINX COMPANY
Defendants (Respondents)
REASONS FOR JUDGMENT
MATLOW, LINHARES DE SOUSA and R. D. GORDON JJ.
Released: October 5, 2013