Garrard v. Ching [Indexed as: Garrard v. Ching]
76 O.R. (3d) 433
[2005] O.J. No. 3142
Docket: C41366
Court of Appeal for Ontario,
Feldman, Gillese and LaForme JJ.A.
July 25, 2005
Civil procedure -- Appeal -- Jury verdict -- Jury finding defendant in motor vehicle accident case 90 per cent liable and plaintiff 10 per cent liable -- Defendant appealing -- Appeal dismissed -- Jury verdict will only be set aside where it is so plainly unreasonable and unjust that no reasonable jury reviewing evidence as a whole and acting judicially could have reached it -- That test not satisfied.
Torts -- Negligence -- Appeal -- Jury finding defendant in motor vehicle accident case 90 per cent liable and plaintiff 10 per cent liable -- Defendant appealing -- Appeal dismissed -- Jury verdict will only be set aside where it is so plainly unreasonable and unjust that no reasonable jury reviewing evidence as a whole and acting judicially could have reached it -- That test not satisfied.
The defendant's motor vehicle collided with the rear of the plaintiff's vehicle. In the resulting action, the jury found the defendant 90 per cent liable for the accident and the plaintiff 10 per cent liable. The jury found that the defendant's negligence consisted of not paying the attention required under the circumstances, as she testified that she was not looking behind or beside her vehicle and was only looking at the road ahead. The defendant appealed.
Held, the appeal should be dismissed.
A jury verdict will only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it. In this case, it could not be said that there was no evidence upon which the jury could conclude that the defendant had been negligent. Nor could it be said that the jury's findings were plainly unreasonable.
McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, [1937] 2 D.L.R. 639
APPEAL from the judgment of Hoy J. of the Superior Court of Justice in an action, dated January 16, 2004, for damages for personal injuries.
Cases referred to
Eric T. Sigurdson and Dwain C. Burns, for appellant. Donald G. Martin, Q.C., for respondent.
[1] Endorsement BY THE COURT: -- This is an appeal by Chien Ching from the judgment of Hoy J., sitting with a jury. The trial was based upon an action for damages for personal injuries sustained by the respondent, Kerry Garrard, as a result of a motor vehicle accident that occurred on February 16, 1995.
[2] Prior to the commencement of the trial, it was agreed that damages sustained by the respondent were in the sum of $75,000. Accordingly, the sole issue for the jury was that of liability. The jury determined that liability for the accident rested [page434] 90 per cent with the appellant and 10 per cent with the respondent. The jury gave the following answer to the question "What did such negligence [that of the appellant] consist of?":
Ms. Ching testified that she was not looking behind or beside her vehicle. She said she was only looking at the road straight ahead. We concluded that she was not paying the attention required under the circumstances to ensure the safety of her fellow motorists. We concluded her vehicle collided with the rear of Ms. Garrard's vehicle, setting in motion the accident.
[3] In accordance with the jury findings, judgment was granted in favour of the respondent for $67,500 (90 per cent of the agreed upon damages).
[4] The appellant asks this court to set aside the judgment below on the basis that there was no evidence to support the jury's findings or that the jury's verdict was so plainly unreasonable that it cannot stand.
[5] The standard to be applied by this court when considering whether to set aside a jury's verdict is this:
The verdict of a jury will not be set aside as against the weight of 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.
See McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, [1937] 2 D.L.R. 639.
[6] The respondent testified that immediately prior to the accident, she was driving in the middle of three westbound lanes on the Q.E.W., in the company of her two teenage daughters, Christy and Holly. She testified that the roads were dry, the weather was clear, that driving conditions were "perfect" and that she was driving in a lawful and prudent fashion. It was about 1:00 a.m. and "there was no traffic".
[7] The respondent's evidence was corroborated by the evidence of her two daughters. None of the occupants of the respondent's vehicle were in a position to observe the appellant's vehicle, which was behind the respondent's vehicle. However, they testified that they saw bright lights coming up from behind and that they felt a "thump' on the right rear of their vehicle just prior to the accident.
[8] Kimberly Ashworth, an independent witness, testified on behalf of the appellant. Ms. Ashworth had also been proceeding in a westerly direction on the Q.E.W., and on the approach to Dixie Road, where she intended to take the exit ramp. She was behind the appellant and respondent and could see both of their vehicles. She testified that for some unapparent reason, the respondent's SUV lost control, crossed from the left to the right lane of traffic and collided with the appellant's Mercedes Benz [page435] but that she had not seen anything before the collision to suggest why the respondent's SUV would veer out of control.
[9] The only other vehicles on the highway in proximity to the respondent's SUV were those of the appellant and the independent witness.
[10] The trial judge, in her charge to the jury, carefully reviewed the evidence of the witnesses. She clearly and fairly summarized the examination and cross-examination of these persons. She set forth the parties' theories of the case and carefully summarized the evidence of the independent witness. No objection was taken by counsel for the appellant at trial with respect to the charge nor is any objection to the charge made before this court.
[11] As the trial judge noted in response to a motion by the appellant to strike the jury verdict, the appellant testified that she was looking straight ahead, listening to Chinese music and there was evidence that the appellant was tired at the time of the accident. Thus, there was a basis for the jury's inference that the appellant was not keeping a proper lookout.
[12] Moreover, there was an evidentiary basis upon which the jury could infer that the appellant's vehicle moved out of the right hand lane into the lane where the SUV was travelling and struck the SUV. On the record, it was open to the jury to find that the independent witness may not have seen the original rear-end "bump" that was the precipitating event that caused the SUV to lose control, but that does not mean the bump did not occur. It was open to the jury, as well, to prefer the evidence of the respondent and her daughters.
[13] It cannot be said that there was no evidence upon which the jury could conclude that the appellant had been negligent. Nor can it be said that the jury's findings are "plainly unreasonable".
[14] Accordingly, we would dismiss the appeal with costs to the respondent fixed at $7,500, inclusive of GST and disbursements.
Appeal dismissed.