COURT OF APPEAL FOR ONTARIO
CITATION: Deering v. Scugog (Township), 2012 ONCA 386
DATE: 20120607
DOCKET: C52880
Goudge, MacPherson and Cronk JJ.A.
BETWEEN
Shannon Deering, Tony Deering and Deborah Deering
Plaintiffs/ Respondents
and
Corporation of the Township of Scugog, Corporation of the City of Oshawa, Miller Paving Limited, Primmum Insurance Company and Totten Sims Hubicki Associates (1997) Limited
Defendants/ Appellants
BETWEEN
Erica Deering, Anthony Deering, Anthony Deering and Deborah Deering
Plaintiffs/ Respondents
and
Corporation of the Township of Scugog, Corporation of the City of Oshawa, The Regional Municipality of Durham, Miller Paving Limited, Shannon Deering and Primmum Insurance Company and Totten Sims Hubicki Associates (1997) Limited
Defendants/ Appellants
Steven Stieber, for the appellants
Paul Pape and Shantona Chaudhury, for the respondents Alexander Heroux, Erica Deering and Shannon Deering
Patrick Ho, for the respondent Shannon Deering
Heard: June 4, 2012
On appeal from the judgment of Justice Peter H. Howden of the Superior Court of Justice, dated October 5, 2010.
ENDORSEMENT
[1] On August 10, 2004, Shannon Deering, age 19, was driving to a movie theatre in Whitby with her younger sister, Erica, and three friends. They were travelling on an unlit, hilly rural road. As she neared the crest of a hill, Shannon was momentarily blinded by the headlights of an oncoming vehicle. Thinking that the oncoming vehicle was coming right at her, she steered right, lost control, oversteered left trying to stay on the road, and veered into a ditch. The car rolled twice and hit a rock culvert. Shannon and Erica were rendered quadriplegic; the other three passengers were also injured.
[2] Four of the five injured parties sued several defendants, including the Corporation of the City of Oshawa and the Corporation of the Township of Scugog (“the municipalities”).
[3] Following a 17-day trial, Howden J. released a judgment on October 5, 2010 apportioning liability for the accident at 1/3 for Shannon and 2/3 for Oshawa and Scugog.
[4] The municipalities appeal. They contend that they were not at fault at all for the accident and, accordingly, they seek an order dismissing the plaintiffs’ claims against them.
[5] The cross-appellants Shannon Deering, Erica Deering and Alexander Heroux also appeal. They seek a reapportionment of fault at 10 per cent for Shannon and 90 per cent for the municipalities.
[6] The damages portion of the trial has not taken place.
A. The municipalities’ appeal
[7] The municipalities contend that the trial judge erred in concluding that the road was in a state of non-repair and that, but for this non-repair and Shannon’s own contributing negligence in the manner of driving, the accident would not have occurred.
[8] We do not accept this submission. Although the municipalities frame their argument in terms of legal errors made by the trial judge, in reality the trial judge’s legal conclusions flowed from a series of factual findings that were amply supported by the evidence. The core of those factual findings included:
- The road had a unique feature, an “accident hill”, that presented an unusual and dangerous deflection of light that might lead even an ordinary, reasonable driver in the westbound lane to believe that eastbound traffic was in their lane as eastbound traffic crested the hill;
- The road was unlit;
- The speed limit was unposted and excessive such that even a driver going at or slightly under the speed limit would not have sufficient time to react to oncoming traffic;
- There was no centre line on the road; and
- The road was excessively narrow in light of the above factors.
[9] Put simply, at the crest of the subject hill, even a prudent driver facing nighttime eastbound traffic would have only seconds to react to an apparently directly oncoming car on a narrow, unlit, unmarked and unsigned rural road. Accordingly, the trial judge’s finding that the road was in a state of non-repair and his conclusion that the municipalities were at fault for the non-repair were entirely reasonable.
[10] The municipalities also contend that the trial judge erred in his apportionment of fault. They say that he minimized the seriousness of Shannon’s driving misconduct (speeding on an unfamiliar, unmarked, hilly unlit rural road) and ascribed too much responsibility to the municipalities for the state of non-repair of the road.
[11] We disagree. A trial judge’s apportionment of fault among various tortfeasors is entitled to substantial deference: see Giuliani v. Halton (Regional Municipality), 2011 ONCA 812, at para. 46.
[12] The trial judge carefully and comprehensively reviewed Shannon’s conduct and that of the municipalities. We can see no basis for interfering with his ultimate conclusion that “the greater degree of fault lies with the defendants”.
B. The cross-appeal
[13] The cross-appellants concede that Shannon was negligent in speeding. They accept that as she approached the hill in question, Shannon was driving at 90 km/hr on a road where the speed limit was 80 km/hr. Moreover, they acknowledge that she was speeding at night on a hilly, unlit, unmarked and unfamiliar road. However, they submit that Shannon’s driving amounted to a momentary lapse in judgment; that she was an inexperienced driver, not a street racer. In support of this position, they also point out that the trial judge found that if the municipalities had provided proper signage and pavement marking to alert drivers to the need for caution, Shannon would “probably” have decreased her speed and avoided the accident. The cross-appellants also rely on the trial judge’s observation that even at a speed of 70 km/hr, a reasonable driver would have lost control. Based on these findings, the appellants contend that Shannon’s conduct did not cause the accident, but, rather, merely contributed to her injuries. Her apportioned fault, they say, should therefore be less than one-third.
[14] We do not accept this submission. The trial judge found that Shannon “was paying no attention to her speedometer as she drove on August 10, 2004”, that she overdrove her headlights and lost control of her car and, generally, that she was essentially oblivious to the need for caution given the road conditions confronting her.
[15] Accepting these findings, as we do, and recalling again the case law, cited above, directing appellate deference to a trial judge’s decision about the apportionment of fault among multiple tortfeasors, we can see no basis for interfering with the trial judge’s assignment of 1/3 liability to Shannon in this case.
C. DISPOSITION
[16] The appeal and cross-appeal are dismissed. Although success is divided, the issues on the appeal were more substantial than those on the cross-appeal. The respondents are entitled to their costs fixed at $50,000 inclusive of disbursements and applicable taxes. No costs to Mr. Ho.
“S.T. Goudge J.A.”
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”