SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: C-384-10

DATE: August 21, 2013

RE: Alexander Hahn - Plaintiff (Responding Party)

AND:

Marty Elliott - Defendant (Moving Party)

BEFORE: The Honourable Mr. Justice J. W. Sloan

COUNSEL:
James Bromily - Counsel for the Defendant (Moving Party)

Derek Johnson - Counsel for the Plaintiff (Responding Party)

HEARD: August 16, 2013

ENDORSEMENT

[1] This lawsuit arises out of a motor vehicle accident that occurred on July 17, 2008.

[2] In essence, the defendant was attempting to turn left into a car dealership when she was struck from behind by the plaintiff.

[3] Each party gives a different version of events as to how the accident happened.

[4] The defendant states that she activated her left turn signal and gradually brought her car to a stop and was stopped for some unknown period of time before the defendant rear-ended her.

[5] The plaintiff states that the defendant did not use any turn signals and stopped abruptly such that he was unable to avoid the accident.

[6] There were two independent witnesses, one Reichert who supports the defendant’s recollection of the accident and one Farrell who supports the plaintiff’s recollection of the accident.

[7] Reichert was waiting at the side of the road for traffic to dissipate so that he could cross the road and was approximately 8m from the point of impact.

[8] Farrell was in her car on the other side of the road wishing to make a left-hand turn and was 59 metres from the accident.

[9] The plaintiff's evidence at his examination for discovery was that he was traveling behind the defendant had about 40 to 50 km an hour; he noticed the brake lights go on and off approximately a second or two before it came to an abrupt stop. The plaintiff then applied his brakes and at the same time attempted to swerve to the right but was unable to avoid the defendant’s vehicle and collided with it while still travelling at approximately 30 to 35 km an hour.

[10] On January 3, 2013, the defendant retained Dr. Alison Smiley, a Canadian Certified Professional Ergonomist and Licensee with the Professional Engineers of Ontario to provide an opinion on the human factor issues pertaining to the accident.

[11] Dr. Smiley relates what she termed human factor issues to the evidence. These include:

• Limitations in information processing,

• Accuracy of memory

• Driver steering response

• Perception reaction time and

• Headway selection.

[12] It is Dr. Smiley’s opinion that Reichert's recollection of the accident is more accurate than that of Farrell. Based on this report the defendant now brings a motion for summary judgment seeking to have the plaintiff’s claim dismissed.

[13] Dr. Smiley’s report is troubling from the point of view that she appears to be taking over the function of what the trier of fact is supposed to do, in this case the jury.

[14] She concludes based mostly on the vantage points with the Reichert being closer to the point of impact than Farrell that his evidence is to be preferred to Farrell’s. In her words "I give more weight to his (Reichert’s) evidence concerning the turn single than Ms. Farrell's". This is clearly the function of the jury.

[15] For part of her analysis, she uses what I would term artificial data from controlled testing to draw conclusions on what the defendant ought to have been able to do in the circumstances as she perceives them. In her last concluding paragraph she states “… had Mr. Hahn been following at the recommended two-second headway he would have had …”

[16] While much of Dr. Smiley's report may find its way into the summation of the defendant’s lawyer, it may very well be that the jury prefers the evidence of Ms. Farrell and Mr. Hahn to that to that of Mr. Reichert and Ms. Elliott.

[17] It is very likely that all of the jury members will have experience driving cars and should have little difficulty deciding who is at fault and in what percentage.

[18] Although it appears that the plaintiff has an uphill battle to win this case, on the evidence before me I am not prepared to dismiss it.

[19] I therefore dismissed the defendant’s motion with costs.

[20] If the parties are unable to agree on costs Mr Johnson shall forward his brief submissions on costs to me by August 28, 2013. Mr. Bromily shall forward his brief response to me by September 6, 2013. Mr Johnson shall then forward his reply, if any, to me by September 10, 2013. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca

J. W. Sloan J.

Date: August 21, 2013