CITATION: McIntee v. Cheung, 2007 ONCA 208

DATE: 20070326

DOCKET: C44578

COURT OF APPEAL FOR ONTARIO

RE:

TASHA McINTEE and MAUREEN MATTHEWS (Plaintiffs) – and – ROBIN CHEUNG, KATHLEEN CHENG , VANESSA FRIDAY (Defendants (Appellants on Appeal)) - and ZURICH NORTH AMERICA CANADA (Respondents on Appeal)

BEFORE:

FELDMAN, SHARPE and SIMMONS JJ.A.

COUNSEL:

Paul J. Pape

for the appellants Robin Cheung and Kathleen Cheng

Patrick C. Ho

for the respondents

HEARD & RELEASED ORALLY:

March 15, 2007

On appeal from the judgment of Justice David Crane of the Superior Court of Justice, sitting with a jury, dated November 9, 2005.

E N D O R S E M E N T

[1] The appellants seek to set aside the verdict of the jury that attributed fifteen percent responsibility for the accident and the plaintiffs’ injuries to the appellant driver and eighty-five percent to the unidentified driver.

[2] The appellant’s position is that it was unreasonable to attribute any degree of negligence to the appellant. After finding that there was some negligence by the appellant that caused or contributed to the cause of the accident, the jury was asked in Question 2: “If your answer to Question 1 is yes, then state fully and clearly of what the negligence consisted”. Answer: “He should have sped-up. There was no defensive driving on his part. His reaction time was nil on car coming up on him”.

[3] We agree with the submission of the appellant that it was unreasonable for the jury to find that the appellant’s failure to speed up amounted to negligence. In our view, it cannot be said, when the appellant perceived a car driving erratically behind him and did not know what course the erratic driver was going to take, that holding his course and not speeding up could be negligence. Furthermore, there was no evidence that had the appellant sped-up, the accident would probably have been avoided.

[4] The other two findings of the jury in Question 2 are general and, in our view, on the facts of this case, it is impossible to divine any other acts of negligence from those findings. The respondent submits that the two general findings should be interpreted as a finding that the appellant was negligent by over-reacting and swerving into the plaintiffs’ lane. In our view, given the specificity of the first finding that the appellant should have sped-up, together with the failure by the jury to make the specific findings suggested by the respondent, it is not open to interpret the jury’s general findings in the manner proposed.

[5] The appeal is therefore allowed, the jury verdict attributing any degree of liability to the appellant is set aside, and a verdict of one hundred percent liability to Zurich is substituted.

[6] Costs to the appellant fixed in the amount of $15,000, inclusive of disbursements, G.S.T. and any applicable P.S.T.

Signed: “K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”