COURT FILE NO.: 55057
DATE: 2012/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Andrew James Fordham by his Litigation Guardian Andrea Fordham, Andrea Fordham, Ronald Fordham, Danielle Fordham and Phillip Fordham
Plaintiffs
- and -
The Corporation of the Municipality of Dutton-Dunwich
Defendant
James J. Mays, Emily Foreman & Anna Szczurko, for the Plaintiffs
T. Shillington, J. De Vries, K. Wilson, for the defendant
Court File No. 57634A
B E T W E E N:
Andrew James Fordham and E.L. Fordham Motors Ltd.
Defendants
- and -
The Corporation of the Municipality of Dutton-Dunwich
Third Party
James J. Mays, Emily Foreman & Anna Szczurko, for the Plaintiffs
Terry R. Shillington, Jonathan de Vries, Keri Wilson, for the defendant
HEARD: May 29th, 31st, July 9, 10, & 11, 2012 with written closing submissions by September 14th, 2012
MORISSETTE J.
REASONS FOR JUDGMENT
Overview:
[1] This action arises as a result of a single vehicle accident which occurred at the intersection of Willey Road and Erin Line in Dutton-Dunwich, Ontario at approximately 8:50 p.m. on January 20th, 2007.
[2] The plaintiff, Andrew Fordham, who was 16 years old at the time, with a G2 driver’s licence was the driver, while Robert Kersten, a 23-year-old acquaintance was in the front passenger seat. There were no witnesses to the accident. Neither the plaintiff nor the passenger have memory of the accident.
[3] Acquaintances and friends of the plaintiff have confirmed that he attended a get-together at the Tomczyk residence on the evening in question and was on his way to a gathering at the Drouillard residence at the time of the collision.
[4] The parties have agreed to the following facts:
(1) Andrew was the holder of a G2 license at the time of the collision;
(2) Willey Road and Erin Line are gravel roads;
(3) the accident occurred in a rural area;
(4) the intersection was marked with stop signs for southbound and northbound traffic along Willey Road at the time of the accident;
(5) the plaintiff had a blood alcohol level between 29.6 and 53.6 milligrams per deciliter at the time of the collision. He had consumed between 1.7 to 2.3 bottles of beer at some point pre-collision. It was further agreed that the closer the alcohol was consumed to the time of the collision, the closer it would be to the lower end of the ranges;
(6) Police charged the plaintiff with careless driving but instead he pled guilty to failing to stop at a stop sign.
Summary of the position of the parties and identifying the issues:
[5] The plaintiffs concede that Andrew failed to stop at the stop sign at the intersection, however, he submits that the defendant failed to warn him of the change in the road alignment through the intersection, or the concrete abutment on the other side of the intersection thereby causing a risk of harm.
[6] The defendant submits that the plaintiff failed to prove a condition of non-repair at this intersection. Had he stopped at the stop sign, the plaintiff would have had no unreasonable risk of harm.
[7] The following are the questions that the parties have asked me to answer:
(1) What happened that evening and how did this single motor vehicle accident occur?
(2) Does the plaintiff meet his onus to show that there exists a non-repair of the road and that this non-repair, if any, caused or contributed to the accident?
(3) Did the defendant establish that the plaintiff contributed to the accident?
(4) If so, how is liability apportioned?
The crash and events leading up to it:
[8] This Court has heard from a number of lay witnesses and the police as to what happened that evening. Although there is not great controversy as to what happened leading up to the crash, the facts are still important to my eventual findings on the issues of non-repair, causation and driver’s negligence.
[9] Andrew and his passenger each sustained serious injuries that deprive them from having any memory of the events of January 20th, 2007, and there were no witnesses to the crash.
[10] Andrew’s father sponsored a car at Delaware Speedway which involved his son, Andrew, as a pit crew member and then eventually as a racer every week from May to September just prior to the accident. Andrew attended driving lessons in classroom sessions each week before getting on the track. In the summer of 2005, Andrew began racing full sized vehicles and ran one race in October of 2005. As of 2006, he ran races once per month from April to October. At the last race in October of 2006, he won an award for the “most improved driver.”
[11] As a result of this uncontraverted evidence, I find that Andrew had more experience operating a motor vehicle than an average 16-year-old with a G2 licence.
[12] On the evening of January 20th, 2007, Andrew had planned to meet up with his friend, Andrew Okolisan, then visit Dustin Drouillard and stay there overnight. Andrew’s mom had driven Andrew to Dustin’s home once before that night. Andrew had never driven on Willey Road near Erin Line before that night.
[13] Andrew used his father’s 1999 Pontiac Grand Am motor vehicle. It was in good operating condition. Andrew left home at approximately 6:00 p.m. He had not consumed any alcohol prior to his departure.
[14] Andrew visited the Tomczyk residence and called his mother at 7:34 p.m. advising her of his whereabouts. Cassandra Tomczyk testified that Andrew arrived at her residence with other people gathering at her house and planning to go to the Drouillard residence. She indicated that she believed that Andrew was only at her place for no more than 10 minutes. She did not see Andrew bring alcohol into her home and/or consume any alcohol in her home prior to his departure for the Drouillard residence.
[15] Andrew left with an acquaintance Robert Kersten as his passenger and followed another vehicle with Andrew Okolisan and Jeff Voros in it, en route to the Drouillard residence. Cassandra left her residence shortly thereafter. Andrew Okolisan’s vehicle was ahead of Andrew’s vehicle. Okolisan testified that he lost sight of Andrew’s vehicle behind him and slowed to look behind and saw Andrew’s vehicle stopped at the side of the road and Robert Kersten stepped outside the vehicle to urinate. Okolisan and Veros arrived at the Drouillard residence and within a few minutes of their arrival he received a cell phone call from Cassandra Tomczyk advising that the plaintiff had been in a crash. Cassandra did not see the crash.
[16] Police photographs indicate that there was a case of beer in the Fordham vehicle. There was no forensic investigation performed by police on the case of beer itself to determine its location in the vehicle or its ownership prior to the crash.
[17] As indicated, the parties agree that Andrew’s blood alcohol concentration was between 29.6 and 53.6 mg/DI which is equivalent to consuming 1.7 to 2.3 beers prior to the crash. Both parties agree that the closer to the collision, Andrew is found to have consumed the alcohol, the lower his blood alcohol concentration would have been at the time of the crash.
[18] Given that there is no evidence that Andrew was seen to have consumed alcohol at the Tomczyk home, then the only reasonable inference is that he consumed that beer while en route to the Drouillard residence. As a result, I find that his concentration of blood to alcohol would be closer to 29.6 mg/DI.
The stop sign:
[19] Mr. Hull is the road superintendent for the municipality of Dutton Dunwich, a position he has held since 2001. His job includes maintaining the roadways, reporting to council and the clerk, attending council meetings and supervising the repair and construction of roadways. He has seven employees in his department but no professional engineer.
[20] Mr. Hull was raised in this area and prior to his employment with the defendant he had worked for the Ministry of Transportation of Ontario for 15 years in construction of roadways, signage and drainage.
[21] Mr. Hull testified that 80% of the roadways in this County are gravel roads. A traffic count performed in 2007 revealed that only 69 vehicles per day travel on Willey Road.
[22] In the fall of 2006, the Municipal Council asked Mr. Hull to consider if stop signs should be installed at the various intersections in the County because taxpayers had complained of drivers failing to obey yield sings. Based on Mr. Hull’s review of the Ontario Traffic Manual, he formed an impression that stop signs were not required due to the low traffic volume, clear sightlines and no collision history.
[23] In the fall of 2006, Municipal Council overruled Mr. Hull’s recommendations and ordered 46 yield signs in the Municipality be replaced with stop signs. This decision was clearly done to satisfy taxpayers for political reasons and not for valid engineering principles.
[24] Mr. Hull’s evidence at discovery was that people had a habit of going through yield signs in the area. Although he initially denied this fact, at trial he eventually conceded in cross-examination that he had been telling the truth at discovery. He further confirmed that the removal of the yield signs was conducted between December 5th and 14th, 2006 by simply placing the stop signs on the old posts. No traffic studies were conducted. No “new stop ahead” sign were installed.
[25] Mr. Hull testified at trial that warning markers were placed around the concrete bridge abutment after the Fordham crash because a snow plow operator requested the placement. At discovery, he had stated that the object markers were placed because of the crash itself.
[26] On behalf of the plaintiffs, an expert in accident reconstruction, Mr. Hrycay, testified that the new stop sign was not warranted at that intersection and that Mr. Hull was right when he recommended to the Municipal Council that yields signs ought not be replaced. In agreeing with Mr. Hull’s original opinion on this issue, he confirmed that uniform signage is important for motorists. If there are too many stop signs in place, motorists have a tendency to ignore them.
[27] In fact, the evidence of Ms. Tomczyk who was also a beginner driver with a G2 licence, testified that in her experience as a passenger travelling in that area, many drivers would go through intersections without stopping at a stop sign if they could see that there was no traffic coming.
[28] Dustin Drouillard, who has lived in the vicinity most of his life and can see the intersection of Willey Road and Erin Line from his house, says that depending on the time of year, as to whether the crops are high or not, if he can see both ways as he approaches the intersection mostly in the winter, when there are no crops, he would run through the intersection if he felt safe to do so.
[29] Clearly, it is a local practice in this rural area for drivers do go through stop signs if they consider it safe.
The intersection of Willey Road and Erin Line:
[30] The parties agree that this intersection is a rural hard-pack dirt and gravel road with no lane markings and an unposted speed limit of 80 km per hour. There are no shoulders. There is no artificial light in the vicinity of the intersection.
[31] At issue is the configuration or characterization of the intersection. In other words, what is the most accurate manner in which to describe the geometric design of this intersection? The plaintiff’s experts and the police investigators describe the intersection as “offset”. The defendant expert describes the intersection as “skewed.” The geometric design determines the appropriate signage.
[32] Of note, the Elgin County Ontario Provincial Police prepared a Technical Collision Investigation (TTCI) report at the time of the crash and arrived at their findings outside of the context of this litigation. They found the following salient points:
• The night of the crash was cold and overcast. There was no moon. There was no artificial or ambient light present. The collision occurred in a rural area, surrounded by farmland. In January, there were no crops or foliage in the fields interfering with sight lines at the intersection.
• The officers described the intersection as “offset” measuring 8.9 metres.
• There was a stop sign controlling southbound and northbound traffic.
• Because of the heavy damage to the vehicle, the investigators could not determine if the vehicle’s headlights were on high or low beam in the moment preceding the crash.
• The vehicle left marks in the gravel road leading to the crash site which were measured using a total sight survey device. As a result of these tire marks and the vehicle damage, the investigators concluded that the vehicle failed to stop at the stop sign and slid into a yaw to the right, resulting in the driver’s side colliding with the concrete abutment rotating into the abutment, coming to rest facing the culvert.
Expert evidence on characterization of the intersection:
[33] The plaintiffs called two experts on the reconstruction of the crash while the defendants called one.
[34] I qualified Mr. Hrycay as an accident re-constructionist and a road design and maintenance engineer.
[35] I further qualified Dr. Alison Smiley as an ergonomist expert in the area of interaction between the behaviors of people and motor vehicles and roads. She has a PhD in Vehicle Steering Control. She has researched how human factors and highway safety interrelate. She has conducted research in young drivers and alcohol.
[36] The defendants called Jack De Chiara who I qualified as a traffic engineer in the area of road design and traffic control and signage.
James Hrycay:
[37] Mr. Hrycay described the intersection as an “offset”. He explained that due to the absence of a hard road surface, gravel roads tend to meander over time. He confirmed that the width of Willey Road north of Erin Line was 8.16 metres but that the road is narrowest between the concrete headwall (bridge abutments) at 6.6 metres. He described the road flared at the northwest corner of the intersection, which appeared to be a migration of the original road surface.
[38] Mr. Hrycay disagreed with the defendant’s suggestion that the road could be best categorized as “skewed” intersection. He noted that the radius of the curve is very short, at approximately 140 metres. The length of the curve at the intersection is 31 metres on each side. This, in his opinion, was a substantial change in alignment and could only be characterized as “offset”.
Dr. Alison Smiley:
[39] Dr. Smiley testified that she accepted Mr. Hrycay`s report on the characterization of the intersection. She testified that the road turns sharply and one needs 2.5 to 3 seconds before the turn to respond in time to navigate safely through the intersection.
Jack De Chiara:
[40] Mr. De Chiara opined that the jogged intersection initially arose as a result of surveying practices from the pioneering days and this intersection arose gradually from those days. He referred to Exhibit 17 which was the schematic diagram of the intersection prepared by Mr. Hrycay and accepted the measurements. From those measurements he opined that the angle of the intersection resulted in a 13 degree skew across the intersection and therefore disagreed with the characterization of Mr. Hrycay that this intersection was “offset”.
Analysis on the characterization of the intersection:
[41] First, I must make clear that I found Mr. De Chiara`s credentials impressive, but unfortunately, his testimony was so stringent and unyielding even when certain uncontroverted facts were put to him in cross-examination, that I have found his opinion to be less then objective.
[42] I say this because he advised the Court that according to Mr. Hrycays own diagram and measurements he could calculate the angle of the intersection. However, when asked why he chose that point on Mr. Hrycays diagram he indicated that it was Mr. Hrycay`s own determination of the middle of the road markings.
[43] But on the other hand, he was asked numerous times why he chose that spot instead of another point closer to the stop sign to calculate his angle of the intersection and he could not advise or help the Court with an answer.
[44] The point Mr. De Chiara chose on Mr. Hrycay`s diagram assisted him in arriving at a “skew angle” of 13 degrees at the intersection which supports his opinion.
[45] However, in doing so he finally conceded, after considerable cross-examination, that no guidance was provided in either the Ontario Traffic Manual or any other manual to suggest where a point should be selected to determine a skew angle of an intersection. Had he chosen a point closer to the stop sign then the angle would have been greater than 13 degrees which then would defeat his own opinion.
[46] I am also mindful that when his handwritten notes of his own measurements of the site were reviewed during trial, it appeared that he calculated the distance of the concrete abutment from the side of the road at 2 metres. However, in his report, he stated that the distance was 2.1 metres. This minor difference is not so minor because at 2 metres an object marker sign on the abutment would have been required.
[47] This demonstrates partisanship and not unbiased expert opinion.
[48] Given the unbiased opinion of the police and the expert opinion of Mr. Hrycay, and having reviewed the numerous photographs of the intersection in question, I find that this intersection is best described as an “offset” intersection.
The Law:
[49] The duty of a municipality with respect to the highways within its jurisdiction is contained in section 44 (1) and (2) of the Municipal Act, 2001[^1]:
- (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
[50] The plaintiff bears the initial onus to proving both that a condition of non-repair exists and that the condition of non-repair caused or contributed to the damages alleged.
[51] The existence of a condition of non-repair will depend on a variety of factors, including the location of the road, its history, its character, its normal usage and the resources of the municipality within which it is located.[^2]
[52] In Deering v. Scugog (Township), 2010 ONSC 5502, [2010] O.J. No. 4229, Howden J. noted that guidelines like the Ontario Traffic Manual (OTM) “are always subject to informed judgment in their application” and further are “not intended to be used to impose civil liability.” [^3]
[53] Justice Howden defined the municipality’s general duty of repair as:
… a duty to ordinary motorists to keep their roads in reasonable repair. The duty to repair arises wherever unreasonable risks of harm exists on the roadway for which obvious cues on or near the road are not present and no warnings are provided. The ordinary motorist includes those of average driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.[^4]
[54] The OTM sets standards for design, maintenance and, in particular, placement of warning signs on roads in Ontario. It was accepted by all expert witnesses, including Mr. Hull, that it is the only collection of best practices.
Was additional signage required?
[55] The OTM requires a checkerboard sign to be placed if the intersection is considered an “offset”[^5].
[56] Mr. Hrycay testified that in his opinion, a checkerboard sign for both legs of Willey Road ought to have been installed. Dr. Smiley testified that the subject intersection required some form of warning sign to advise motorists of the upcoming change in the road alignment. A stop sign was insufficient.
[57] Given Mr. De Chiara’s opinion that the geometric design of the intersection was not an “offset”, he was of the view that no additional signage was required.
Dr. Smiley’s opinion on signage:
[58] Dr. Smiley testified that she conducted a site visit in February of 2011 and she confirmed that the visibility of the stop sign at the intersection was not an issue. She further confirmed that the stop sign was visible on low beam at a distance of 200 metres.
[59] Dr. Smiley focused her analysis on what happens if a driver chooses not to stop at the stop sign. She testified that road maintenance personnel should design roadways for “all people”, not just the “reasonable driver who’s sober, wearing a seat belt and obeying all traffic laws.” Accordingly, she opined that additional signage would have assisted drivers, who likely will drive through a stop sign in a rural area while having clear visibility of the intersection to negotiate the offset.
[60] In support of that opinion, she testified that a driver operating a motor vehicle can only focus on a very small amount of information. To process information, she says that we interpret the world by making assumptions on how things are going to be. When things are not as expected, we have trouble. So when drivers are surprised because their expectations are violated, slowed responses and errors occur. At night, drivers are particularly reliant on expectations because the visual information available is very reduced, especially in rural areas.
[61] She explained that a study was conducted in which subject drivers first encountered a pedestrian target without forewarning. Once the driver knew exactly where the target was and what it looked like, a repeat run was made at the same speed. On average, seeing distances when the target was unexpected were 50% of those obtained when the driver knew where to look. Applying this 50% correction factor to account for expectancy reduces the estimated visibility distances for drivers not expecting an offset.
[62] Thus, Dr. Smiley estimated that the visibility distance for drivers using low beams who are not expecting the offset at this intersection to be 9 to 41 meters. This is a distance travelled in 0.4 to 1.8 seconds at 80 kilometers per hour. If high beams were utilized by a motorist at this intersection, the estimated visibility distance would be approximately double this distance.
[63] Accordingly, Dr. Smiley opined that a driver ought to have been advised with a sign of the upcoming change in alignment in the road, otherwise the driver will simply assume that there is no change in alignment.
[64] Of course, Dr. Smiley recognized that alcohol can impact driving even at low levels.
[65] I heard extensive evidence about the “ordinary driver.” Dr. Smiley testified that road authorities should design for the 95th percentile when designing roads. She further stated that is it well known that drivers make mistakes and do not always “follow the rules.” That is why road authorities provide redundant safety systems such as rumble strips, warning signs and other safety measures to assist the ordinary driver.
[66] Dr. Smiley concluded that Andrew did not have sufficient visual cues to be able to perceive the change in road alignment to safely navigate the hazards at this intersection while traveling at or near the speed limit.
[67] In order to analyze the issue of non-repair, I must make findings of fact with respect to the driving of Andrew. He was driving at or about the speed limit of 80 km/hr while likely consuming a beer while driving. He had never driven on this road before that night.
[68] Was that driving reckless? It certainly was not prudent to drive while consuming alcohol.
[69] In that regard, the defendants are relying heavily on the recently released decision of the Court of Appeal in Morsi v. Fermar Paving Limited, [2011] O.J. No. 3960. In that case. Mr. Morsi’s driving was described as follows:
In my view, the unfortunate reality is that the most appropriate word to describe Mr. Morsi’s driving is ‘reckless’. From his entry onto Major Mackenzie Drive to the accident scene, he covered a distance of about 400 meters. He obviously accelerated very rapidly as he drove through the long first curve because he exited it, the experts agree, at about 90 km/h. He then accelerated again and over a short straightaway he reached a speed, the experts agree, of 120 km/h. He then lost control, flew off the road and hit a telephone pole. All this happened in about 30 seconds. During that time, Mr. Morsi would have seen, and ignored, two 60 km/h speed signs, a reverse curve warning and a 40 km/h advisory sign, and two construction signs. He also would have seen and experienced the long first curve, seen the reverse curve straight ahead of him, and noticed that the road surface straight ahead of him was about to change. In the face of all this information, he chose to accelerate and reach a speed of 120 km/h in a legal 60 km/h zone with a curve advisory speed of 40 km/h.
[70] In light of the Morsi decision, my assessment of liability should be done based on all of the circumstances, including the stop sign and the lack of warning with respect to the change in alignment.
[71] So did this intersection pose an unreasonable risk of harm to an ordinary motorist exercising reasonable care who was approaching the intersection while southbound on Willey Road?
[72] The defendants say no because of the stop sign. All agree that if Andrew had stopped at the stop sign, then he would have been able to manoeuver safely through this intersection.
[73] The plaintiffs say yes because the stop sign was not enough. As indicated by Dr. Smiley and other witnesses including that of Mr. Hull, “rural stop signs are not viewed as credible signs.” Drivers who are able to assess the existence of traffic on an intersecting road are known to disregard regulatory signs. A study referenced by Dr. Smiley indicated that in these circumstances, up to 75% of drivers do not make a full stop and a lesser number (about 30 to 35%) proceed straight through.
Analysis of signage required:
[74] In Morsi, the plaintiff had had many warning signs which he ignored. He drove at an excessive speed notwithstanding. This is not the case before me. Andrew was not driving at an excessive speed. He had never driven on this road before. He was not aware that on this road the alignment was about to change. He had no warning of that. He did have a clearly visible stop sign, but given the time of year, he likely saw that there was no oncoming traffic on Erin Line and simply drove through not suspecting a change in the alignment of the road.
[75] The defendant knew that some rural drivers do not follow the regulatory signs placed at intersections. The activities of these drivers caused sufficient complaints to Council members in just few months before the accident to order the superintendent to change all yield signs to stop signs, notwithstanding Mr. Hull’s beliefs that this change would not be necessary. In fact, this change to stop signs did not equip the defendants with knowledge that this would correct the driving behavior of rural drivers.
[76] Ordinary rural drivers do not always stop at stop signs and the defendant knew that. Proper signage was inexpensive at only $800. There was evidence that the defendant’s practice was to place checkerboard signs in conjunction with stop signs at other similar intersections such as Coyne Road and Pioneer Line intersection. Mr. Hull testified that it was “probably there to protect people from going through the stop sign.”
[77] This hidden and unknown change in the road alignment, obscured from view with no signs to warn of the deceiving sharpness of the curve or the need to slow down from the speed limit of 80 km/h has been held to be a “hidden hazard.” [^6]
[78] I find that the circumstances of this intersection require more than a stop sign to give ordinary ‘rural’ motorists reasonable notice of potentially catastrophic hazard ahead.
[79] The defendant ought to have placed a warning sign at the subject intersection to warn motorists of an impending change in road alignment. That warning sign could have been the checkerboard sign as suggested by Mr. Hrycay or at the very least a reverse curve sign.[^7]
Causation:
[80] In Resurfice Corp. v. Hencke,[^8] the Supreme Court of Canada determined that the plaintiff bears the onus of showing that “but for” the negligent act or omission of the defendant, the injury would not have occurred.
[81] Both Mr. Hrycay and Dr. Smiley were of the opinion that Andrew was unable to perceive the change in road alignment at the intersection with enough time and distance to safely navigate the hazard, that is the change in alignment of the road to avoid the concrete abutment on the other side.
[82] The plaintiff argues that if a checkerboard sign or some other sign would have been present warning motorist of the change in road alignment, then Andrew would have had the information needed to safely navigate through the intersection at a lower speed and avoid the hazard.
[83] The defendant argues that notwithstanding the presence of these warning signs, it is only speculative to say that Andrew would have reduced his speed.
[84] I disagree with that argument. It is quite reasonable to infer that had Andrew known about this change of alignment in the road, he would very likely have reduced his speed. Andrew was an experienced young race car driver. It is not speculation that if Andrew would have been provided with this information about the change in the alignment of the road, he would have reduced his speed to manoeuver his vehicle accordingly. To infer otherwise or to suggest that this is purely speculation is not founded in the evidence.
[85] The fact that he was not going to reduce his speed for the stop sign does not, in my view, suggest that he would not have done so for another type of warning sign. It can reasonably be inferred that likely Andrew looked at the lack of oncoming traffic from both sides of Erin Line simply provided him with sufficient information that he could continue to drive through expecting the road to continue in a straight line in front of him.
[86] Accordingly, I find that the cause of the crash was two-fold:
(1) Andrew did not stop at the intersection of Willey and Erin Line; and
(2) the defendant did not warn Andrew of the change in road alignment through the intersection, or the concrete abutments on the other side of the intersection.
[87] “But for” Andrew’s failure to stop, and the defendant’s failure to warn motorists of the hazard ahead, this accident would not have occurred.
Statutory defences:
[88] Section 44(3) of the Municipal Act, 2001 provides a statutory defence for the defendant municipality if they have done their reasonable best to seek out and remedy conditions of non repair.
[89] Not one of the statutory defences apply in the present case. Mr. Hull’s evidence was that at no point did he take any steps whatsoever to assess whether this intersection posed a hazard to motorists. There was no evidence of any predecessor having conducted any such analysis.
Apportionment of liability:
[90] The evidence before this Court regarding Andrew’s driving in the time period leading up to the crash and his resulting injuries are as follows:
• Andrew had a recently obtained his G2 licence;
• he was driving at or close to the speed limit in a rural road that he was unfamiliar with;
• he was not wearing his seatbelt; although the defendants agree that had Andrew been seat-belted he would likely not have survived the crash and so no contributory negligence will be apportioned to Andrew for this failure. [My emphasis.]
• he had been consuming alcohol while driving; and
• drove through a clearly marked stop sign.
[91] Clearly, Andrew has contributed to his own injuries. In my view, the degree of fault ought to be shared equally. Andrew’s negligence was a causal factor to the extent of 50% because if he had stopped at the stop sign this crash would not have happened. Recognizing that the failure to stop at the stop sign was part of the “ordinary” rural driver’s behavior in this area, it remains that had he had warning signs that the hazard was ahead he likely would not have been injured even if he had not stopped at the stop sign. Accordingly, I find defendant liable to the extent of 50%.
Conclusion:
[92] For these reasons, I find as follows:
the intersection of Willey Road and Erin Line was not in a reasonable repair on January 20th, 2007;
that but for the non-repair of the intersection in question, the crash would probably not have occurred and, therefore, the condition of non-repair was a cause of the plaintiff’s injuries;
that the defendants have failed to establish on the evidence a defence under s. 44(3) of the Municipal Act, 2001;
Andrew was contributorily negligent which contributed to the crash; and
that pursuant to the Negligence Act, the defendant is found responsible in law to the extent of 50% of the plaintiff’s damages, and Andrew responsible at 50%;
Costs:
[93] I am prepared to hear from counsel on the issue of costs, should they not be able to agree on same. I understand that the issue of damages was bifurcated and, as such, if this Court is required for same then again I invite counsel to seek a date for such a hearing through the trial coordinator.
“Justice J. N. Morissette”
Justice J. N. Morissette
Released: November 27 , 2012
COURT FILE NO.: 55057
DATE: 2012/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Andrew James Fordham by his Litigation Guardian Andrea Fordham, Andrea Fordham, Ronald Fordham, Danielle Fordham and Phillip Fordham
Plaintiffs
- and -
The Corporation of the Municipality of Dutton-Dunwich
Defendant
A N D B E T W E E N:
Court File No. 57634A
Andrew James Fordham and E.L. Fordham Motors Ltd.
Defendants
- and -
The Corporation of the Municipality of Dutton-Dunwich
Third Party
REASONS FOR JUDGMENT
Morissette J.
Released: November 27, 2012
[^1]: S.O. 2001, c. 25 [^2]: Foley v. East Flamborough Township, [1898] O.J. No. 76 at paras. 8-10 (Div.Ct.) (QL) [^3]: at paras. 100-101. [^4]: Ibid at para. 154 [^5]: OTM Exhibit 4, at tab 4, pp. 34-35. [^6]: Deering v. Scugog 2010 ONSC 5502 at para. 131, affirmed 2012 ONCA 386 citing Housen v. Nikolaisen 2002 SCC 33 [^7]: p. 25 of tab 4 of Exhibit 4 (OTM) [^8]: 2007 SCC 7, [2007] S.C.J. No. 7, paras, 21-23