COURT OF APPEAL FOR ONTARIO
CITATION: Hamilton v. Bluewater Recycling Association, 2016 ONCA 805
DATE: 20161103
DOCKET: C60368
Hoy A.C.J.O., Benotto and Huscroft JJ.A.
BETWEEN
Matthew Hamilton and Sophie Marion
Plaintiffs (Appellants)
and
Bluewater Recycling Association and John Keith Bonnett
Defendants (Respondents)
John J. Adair, Joseph Sidiropoulos, and Jeffrey Hernaez for the appellants
Paul Tushinski, Stephen A. Mullings, and Jennifer Arduini for the respondents
Heard: October 6, 2016
On appeal from the judgment of Justice James W. Sloan of the Superior Court, sitting with a jury, dated August 13, 2015.
By the Court:
[1] At the conclusion of a 13-day trial, a jury found the plaintiff/appellant Matthew Hamilton 100% responsible for the injuries he sustained when the motorcycle he was driving collided with the respondent’s recycling truck driven by the defendant/respondent John Bonnett. The trial judge granted judgment in accordance with the jury’s verdict. Mr. Hamilton and his spouse appeal that judgment.
[2] For the reasons that follow, the appeal is dismissed.
The accident
[3] The accident occurred early in the morning of August 11, 2010 in southwestern Ontario where Road 130 and Line 39 intersect. Bonnett in his recycling truck and Hamilton on his motorcycle were travelling eastbound on Line 39. Gary Roth, an independent witness at the trial, was driving a van and was stopped on Road 130, facing south. The sun was rising and there was fog in the area. Hamilton, Bonnett and Roth provided differing evidence as to the extent of the fog.
[4] Hamilton said there was “some fog in the fields, that’s like every day in the summer there”; Bonnett described the conditions as “thick, soupy fog”; Roth described “patchy fog”. The police officers who were first responders, PC Rowbotham and Sinko, reported fog in the area. Rowbotham described the area as “foggy in patches”, and reported fog at the location of the accident. Sinko testified that there were “areas of thicker fog and … areas where it was foggy but yet you could see”. The investigating officer, PC McComb, described foggy conditions as he drove to the accident scene.
[5] Evidence as to visibility at the time of the accident also varied. At discovery Bonnett said that at the time of the incident he could see “a little better than from telephone poll to telephone pole” ahead, but he testified that all he saw in his mirror was fog. Roth testified that visibility at the intersection was “good” and that he could see 500 feet or more up Line 39.
[6] Bonnett testified that the caution lights on the top of the truck were on, as were the headlights and a strobe light on the top left side of the truck. The truck was equipped with steering wheels on both the left and right hand sides, and Bonnett was driving the truck from the right hand side. He testified that he braked as he approached the intersection and was travelling at a relatively low rate of speed. His left-turn signal was on.
[7] Bonnett testified, further, that he observed Roth’s van stopped on Road 130, facing southbound. As he entered the intersection he steered his truck to the right to some extent in order to go around the van, which had pulled forward slightly into the intersection in order to obtain a better view of oncoming traffic.
[8] Hamilton testified that he thought Bonnett’s truck was pulling over, although he wasn’t sure if it was to stop or to yield the road to him. He testified that the truck did not have its left-turn signal on. Bonnett testified that his left-turn signal was on. Hamilton did not contest the matter on appeal.
[9] Hamilton pulled out to pass Bonnett’s truck. He testified that he was driving below the speed limit prior to attempting to pass the truck. He did not sound his horn before executing his passing manoeuvre.
[10] Bonnett testified that he had checked his mirrors regularly and never saw Hamilton approaching from behind or attempting to pass. He said that all he saw behind him was fog. The truck was equipped with a camera showing the left side of the truck, as well as a sonar device that sounds an alarm when it detects something on the left side of the truck. Bonnett testified that the alarm did not sound prior to him making the left turn.
[11] Hamilton testified that as the truck turned left in front of him he slammed on his brakes. He realized he could not stop in time and he put the motorcycle between him and the truck and slid into it.
[12] Tragically, Hamilton was rendered paraplegic as a result of the accident. The parties agreed his damages were $8,000,000.
The jury’s verdict
[13] The jury found Hamilton 100% responsible for the accident and provided two reasons:
- A reasonably prudent motorist would not have made the decision to overtake the recycling truck.
- A reasonably prudent motorist should have had enough control to navigate an unexpected situation and come to a complete stop if necessary in this scenario.
Issues on appeal
[14] The appellants argue that the jury’s verdict was unreasonable because there was incontrovertible evidence of Bonnett’s negligence. They say that the jury should not have found Hamilton 100% responsible. They contend that the evidence established that Bonnett was negligent in three ways:
- He breached s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, by failing to see whether his left turn could be made safely;
- He breached s. 141(6) of the Highway Traffic Act by failing to initiate his turn from a position immediately to the right of the centre-line of the road; and
- He operated the truck from the right side position, in violation of the truck’s safety manual (because he was not engaged in house-to-house pickups), and on the morning of the accident had driven the truck at a faster speed than the manual and the American National Safety Institute standards allowed.
Analysis
[15] The appellants face a high threshold in attempting to overturn the jury’s verdict on the basis that it is unreasonable. The test is not whether a different conclusion could reasonably have been reached on the facts of this case. It is whether the conclusion reached by the jury is so plainly unreasonable and unjust that no jury, reviewing the evidence as a whole and acting judicially, could have reached it: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 30. Recent decisions of this court applying this standard include Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 49 and Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at para. 23.
[16] The appellants do not take issue with the trial judge’s instructions to the jury. We are satisfied that he fully and fairly explained the relevant requirements of the Highway Traffic Act. He also adverted to the “great deal of evidence” with respect to right-hand vehicles as well as Bonnett’s evidence that, with the aid of his mirrors and camera, he could see behind his truck as clearly from the right-hand steering wheel as he could from the left.
[17] The trial judge instructed the jury that there was a heavy onus on Bonnett when making a left turn to ensure that his turn could be made safely, and that there was likewise a heavy onus on Hamilton when overtaking and passing Bonnett to ensure that he could pass in safety. He instructed the jury that if they were satisfied that Bonnett was negligent and that his negligence was a proximate cause of the accident, they could find for Hamilton. On the facts of the case, it was open to the jury to find either that Bonnett was not negligent or that his negligence was not a proximate cause of the accident.
[18] The jury’s answers indicate that they considered that Hamilton was the author of his own misfortune in making the decision to pass in all of the circumstances. This finding was open to the jury. Hamilton attempted to pass Bonnett’s truck when it was in the midst of making a left turn. It may be that another jury would have reached a different decision on the facts of this unfortunate case and might have attributed some liability to Bonnett. However, it cannot be said that no jury, reviewing the evidence as a whole and acting judicially, could have reached the decision that this jury did.
Other grounds of appeal
[19] The appellants submit that opinion evidence was improperly adduced by defence counsel during cross-examination of the appellants’ two expert witnesses, Travis Fricker, an accident reconstruction expert, and Dr. Christina Rudin-Brown, a human factors expert. The appellants say that these witnesses answered questions concerning their opinion as to the cause of the accident that were unrelated to their expertise and went directly to the ultimate issue for the jury. The appellants submit that there is a risk that the jury was “overwhelmed” by inadmissible opinion evidence.
[20] We disagree.
[21] First, there is no longer a general prohibition on the admission of expert evidence concerning the ultimate issue: see R. v. Mohan, [1994] 2 S.C.R. 9, at p. 24; R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303, leave to appeal refused, [2014] S.C.C.A. No. 460, at para. 271; Hoang v. Vicentini, 2016 ONCA 723, at para. 62.
[22] The appellants point to Fricker’s concessions on cross-examination that in an “ideal world” Hamilton would have waited, and that it would be more prudent to stop for any potential thing that could happen. But Fricker made clear that he was not in a position to judge what the average driver would do. Fricker’s evidence was tentative at best, and cannot be said to have been outside his expertise.
[23] Dr. Rudin-Brown assessed “human factors”, including the conspicuity of the left turn signal on the recycling truck and motorcyclist inexperience. She opined – based on the facts of the case and on her knowledge of human factors issues and road safety – that Hamilton reacted to the unfolding situation in a manner that was appropriate for the conditions that were present at the time and that his behaviour was entirely reasonable.
[24] Dr. Rudin-Brown had testified that the other flashing lights on the recycling truck might reasonably have contributed to any misinterpretation by Hamilton of the left turn signal. In cross-examination, defence counsel probed the assumptions underlying Dr. Rudin-Brown’s opinion that Hamilton reacted in a manner that was appropriate, leading to one of the answers with which the appellant takes issue:
Q. What if there was a left turn signal, because you know it’s a very significant issue in this case. If the left turn signal was activated and [Hamilton] made that move within a few car lengths of the intersection with the [Roth van] to the left, basically at the edge of the asphalt and a very large recycling truck with a left turn signal, you would agree that that would have been completely inappropriate behaviour?
A. It was appropriate.
Q: It was?
A: It was appropriate to Mr. Hamilton.
Q. Even with a left-turn signal?
A: If he saw the left turn signal and understood what it indicated, yes, that would be.
[25] Although the answer to the last question is ambiguous, this line of questions follows on from Dr. Rudin-Brown’s opinion and cannot be said to be unrelated to her expertise.
[26] The appellants also complain about an exchange in which Dr. Rudin-Brown appears to agree with defence counsel’s suggestion that Hamilton’s actions were those of an inexperienced motorcycle driver. (Although Hamilton was an experienced car driver, he had only been riding a motorcycle for a few weeks at the time of the accident.) Dr. Rudin-Brown assessed Hamilton’s motorcycle experience in arriving at her opinion. Her answer that his actions “could be interpreted that way” cannot be said to have been outside her expertise and, in any event, was ambiguous.
[27] Finally, the appellants challenge Dr. Rudin-Brown’s agreement with defence counsel’s suggestion that it would be prudent for a driver to keep even farther back than usual from a very large truck with many lights.
[28] This appears to be a common sense proposition that does not necessarily require expert evidence. However, no objection was taken to this line of questioning at trial.
[29] The failure to object to the admission of evidence at trial is not determinative on appeal. But even assuming that this evidence was wrongly admitted, it cannot be said that its admission occasioned a substantial wrong or a miscarriage of justice: see Gabriella Kadar v. Deszo Kadar (1999), 122 O.A.C. 36, at para. 17.
[30] Finally, the appellants say that the second answer submitted by the jury – that “[a] reasonably prudent motorist should have had enough control to navigate an unexpected situation and come to a complete stop if necessary in this scenario” – demonstrates fundamental error, because Hamilton’s conduct after he pulled out to pass was not part of the respondents’ case. In other words, the jury found an act of negligence that was not argued at trial.
[31] This submission does not persuade us that the jury’s conclusion was so plainly unreasonable and unjust that no jury, reviewing the evidence as a whole and acting judicially, could have reached it. The jury’s first answer – that a reasonably prudent person would not have made the decision to overtake the recycling truck – was directly responsive to what the appellants characterize as “the heart of the defence theory at trial”. It demonstrates that the jury understood its task. The jury’s additional answer does not undermine its conclusion that the respondent bore no liability for the accident.
Disposition
[32] The appeal is dismissed.
[33] The respondents are entitled to costs of $25,000, as agreed by the parties, inclusive of taxes and disbursements.
Released: November 3, 2016 “AH”
“Alexandra Hoy A.C.J.O.”
“M.L. Benotto J.A.”
“Grant Huscroft J.A.”