DATE: 20050418

DOCKET: C40994

COURT OF APPEAL FOR ONTARIO

RE: JAMES REID (Plaintiff (Appellant)) – and – WILLIAM BRADLEY and GMAC LEASECO LIMITED (Defendants (Respondents))

BEFORE: FELDMAN, CRONK and JURIANSZ JJ.A.

COUNSEL: Hillel David and Eleni Maroudas for the appellant

Douglas O. Smith and Christina K. Litt for the respondents

HEARD: April 13, 2005

On appeal from the judgment of Justice B. J. Wein of the Superior Court of Justice, sitting with a jury, dated November 3, 2003.

E N D O R S E M E N T

[1] The appellant appeals the judgment of Justice Bonnie J. Wein of the Superior Court of Justice, sitting with a jury, dated November 3, 2003, dismissing the appellant’s action following a jury verdict that there was no negligence on the part of the respondent William Bradley that caused or contributed to the cause of the appellant’s injury. The appellant argues that the trial judge misdirected the jury in several respects and that the verdict is unreasonable. He also challenges the jury’s assessments of his damages.

[2] Notwithstanding the able submissions of counsel for the appellant, we are not persuaded that the trial judge erred in her instructions to the jury. In particular, in our view, her instructions concerning the defence of inevitable accident and the evidential burden on the respondent in advancing that defence accorded with the directions of the Supreme Court of Canada in Rintoul v. X-Ray and Radium Industries Ltd., 1956 16 (SCC), [1956] S.C.R. 674 and of this court in Graham v. Hodgkinson (1983), 1983 1775 (ON CA), 40 O.R. (2d) 697 and Telfer v. Wright (1978), 1978 1262 (ON CA), 23 O.R. (2d) 117.

[3] We also do not agree that the jury’s verdict was unreasonable. As this court said in Mizzi v. Hopkins (2003), 2003 52145 (ON CA), 64 O.R. (3d) 365 at para. 52, the verdict of a jury in a civil negligence case will not be set aside as against the weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it.

[4] This high threshold for appellate interference is not met in this case. Here, there was some evidence, which the jury was entitled to accept, that supported the finding of no negligence by the respondent. This included evidence that the respondent had never experienced a prior episode while he was awake and, accordingly, that he believed that his condition did not expose him to any risk of an episode during the day; no physician had told the respondent that he should not drive; no physician prescribed any form of anti-convulsant medication for the respondent; no physician informed the Ministry of Transportation that the respondent should not drive or was a risk if he did so; and the respondent had no advance warning of the episode on the day of the accident.

[5] The jury verdict, therefore, was soundly grounded in the evidence.

[6] Similarly, with respect to the jury’s damages assessments, we are not persuaded that the assessments were unsupportable on the record, requiring intervention by this court.

[7] Accordingly, for the reasons given, the appeal is dismissed. The respondent is entitled to his costs of the appeal on a partial indemnity basis, fixed in the amount of $10,000, inclusive of disbursements and Goods and Services Tax.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”