Shi v. Security National Insurance Company

[Indexed as: Shi v. Security National Insurance Co.]

Ontario Reports

Ontario Superior Court of Justice,

Barnes J.

November 29, 2013

118 O.R. (3d) 277 | 2013 ONSC 7377

Case Summary

Insurance — Automobile insurance — Fault determination — Collision occurring when Driver A backed out of driveway while Driver B was backing up on street across driveway — Driver B's insurer erring in applying rule 19(a) of Fault Determination Rules — Ordinary rules of law applying as accident was not fully described by any of Fault Determination Rules — Driver A held negligent as he failed to maintain proper lookout — Driver B held contributorily negligent despite having right-of-way as she failed to maintain proper lookout once her vehicle was in motion — Responsibility for collision apportioned at 50 per cent each.

The plaintiff was in a car accident with a van driven by L. L was backing out of a driveway and the plaintiff was reversing on the street across the driveway when the vehicles collided. The defendant insurer assessed the plaintiff as 50 per cent at fault for the accident and 50 per cent liable for repair costs for her vehicle. The plaintiff brought an action challenging that determination.

Held, the action should be dismissed.

The defendant erred in applying rule 19(a) of the Fault Determination Rules. Rule 19(a) contemplates a circumstance where Driver A reverses and collides with Driver B's vehicle. It does not address a circumstance where both drivers are reversing at the time of the collision. Rules 7 and 12 also had no application. As the accident was not fully described by any of the Fault Determination Rules, the ordinary rules of law applied in determining fault. L was negligent as he failed to maintain a proper lookout. Despite the fact that the plaintiff had the right-of-way, she could still be found negligent if she failed to exercise reasonable care, such as to alert herself to L's disregard for the law and she had sufficient opportunity to take steps to avoid the collision. In the circumstances, the plaintiff was contributorily negligent as she failed to maintain a proper lookout once her vehicle was in motion. Responsibility for the collision was properly apportioned at 50 per cent each.

Walker v. Brownlee and Harmon, 1952 328 (SCC), [1952] S.C.J. No. 56, [1952] 2 D.L.R. 450, apld

Other cases referred to

Berry v. Mappleback (1953), 1953 737 (NS CA), 31 M.P.R. 379 (N.S.C.A.); Boutilier v. Atton, 1964 944 (NS CA), [1964] N.S.J. No. 26, 50 M.P.R. 131 (C.A.); Burgoyne v. Indust. Shipping Co. (1956), 1956 764 (NS CA), 38 M.P.R. 233 (N.S.C.A.); Cepo v. Short, [1993] O.J. No. 1907, 42 A.C.W.S. (3d) 218 (Gen. Div.); McLatchy v. Harper (1953), 1953 718 (NB CA), 33 M.P.R. 185 (N.B.C.A.); Pilgrim v. Weston Bakeries, 1970 277 (ON CA), [1970] 3 O.R. 256, [1970] O.J. No. 1528, 12 D.L.R. (3d) 692 (C.A.); R. v. Hornstein, 1973 1391 (ON CJ), [1973] O.J. No. 2342, 11 C.C.C. (2d) 197 (Prov. Ct.); R. v. Perry, 1941 369 (NB COCT), [1941] N.B.J. No. 1, 77 C.C.C. 103 (Co. Ct.); Shepherd v. Helm, 1983 5221 (NS SC), [1983] N.S.J. No. 501, 60 N.S.R. (2d) 93, 128 A.P.R. 93, 23 A.C.W.S. (2d) 21 (S.C.T.D.); Simmons v. Gammon, 1972 1946 (PE SCTD), [1972] P.E.I.J. No. 18, 3 Nfld. & P.E.I.R. 161 (S.C.)

Statutes referred to

Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 139(1), 142

Rules and regulations referred to

Fault Determination Rules, R.R.O. 1990, Reg. 668, rules 2, 3, 4(1), (2), 5(1), (2), 7, 12, 19(a)

ACTION challenging the insurer's apportionment of fault for a motor vehicle accident.

Weihua Shi, in person.

Alan S. Drimer, for defendant.

BARNES J.: —

Introduction

[1] The defendant provided car insurance for the plaintiff. On May 1, 2011, the plaintiff was in a car accident with a van which caused damage to the plaintiff's vehicle. The driver of the van was A. Lobatto.

[2] The defendant assessed the plaintiff as 50 per cent at fault for the accident and 50 per cent liable for repair costs for the plaintiff's vehicle. The plaintiff disputes the defendant's assessment. The matter proceeded to trial before this court.

[3] The plaintiff represented herself and testified on her own behalf. A. Lobatto and Marsha Teemal testified on behalf of the defendant. Marsha Teemal is employed as a claims analyst by the defendant.

[4] I have carefully considered all the submissions of counsel and the evidence put before this court. However, I refer only to portions of the evidence and submissions which are necessary to provide context to and explain the conclusions I have reached in this case.

Background Facts

[5] The accident occurred on the road of 1221 Dundix Road in the City of Brampton. Dundix Road is a north-south two-way unmarked road in a residential area. The exact location was between townhouse unit 113 and townhouse unit 115 on the east side of the road. The driveway of townhouse unit 113 is adjacent to the driveway of townhouse unit 115.

[6] On the west side of Dundix Road, directly adjacent to townhouse 113 and 115, are townhouses 162 and 163. The driveway for townhouse 162 is adjacent to driveway for townhouse 163.

[7] On May 1, 2011, at about 5:00 p.m., the plaintiff went to pick up her child from townhouse 113. The plaintiff parked her car in front of townhouse 115. She went into unit 113 to pick up her child. [page279]

[8] In the interim, Mr. Lobatto, a resident of townhouse 115, got into his van and moved it, from the driveway of townhouse 115, across the street, westbound, to the driveway of townhouses 162 and 163. The driver of the van took this action to allow his spouse to remove a vehicle from the garage of townhouse 115. His intention was to reverse into the driveway of townhouse 115, once his wife completed this task.

[9] Mr. Lobatto moved his van completely to the west side of the roadway. The front half of Mr. Lobatto's van was in the driveway of townhouse 162 and 163. The second half of the van was on the west side of the roadway. At some point, the plaintiff returned to her vehicle. The plaintiff reversed her vehicle across the driveway of townhouse 115. Mr. Lobatto reversed his van toward the driveway of townhouse 115. The plaintiff and Mr. Lobatto's van collided in the east side of the roadway in front of the driveway of townhouse 115.

Issues

[10] These are the main issues in this trial:

(i) Did the defendant apply the correct fault determination rules?

(ii) Was the driver of the van negligent?

(iii) Was the plaintiff contributorily negligent?

(iv) Was the defendant's assessment of the plaintiff as 50 per cent at fault accurate?

(v) Is the defendant liable for 100 per cent of the plaintiff's car repair costs?

[11] I have concluded that the defendant did not apply the correct fault determination rules; that the particular circumstances of this accident are not captured by the fault determination rules and therefore the ordinary rules of law apply; that both the driver of the van and the plaintiff are each liable for 50 per cent of the cost of repairing the plaintiff's vehicle and the defendant is liable for 50 per cent of the repair costs for the plaintiff's car.

Law

(1) Did the defendant apply the correct fault determination rules?

[12] The Fault Determination Rules, R.R.O. 1990, Reg. 668 sets out some fault determination rules to assist insurance companies in determining who is at fault in a collision. [page280]

[13] For the purposes of this case, the salient portions of the fault determination rules are the following:

(a) insurance companies are to use the fault determination rules to determine the degree of fault of an insured, in a collision, for loss or damage arising from the collision: Rule 2;

(b) the degree of fault, under the rules, is assessed without reference to the circumstances under which the accident occurred. Which includes weather conditions, road conditions, visibility, actions of pedestrians or the location of the point of contact of the insured's vehicle or any other vehicle involved in the incident: Rule 3;

(c) in circumstances where more than one rule applies to the insured, the rule that attributes the least degree of fault to the insured shall be deemed to be the only rule that applies in the circumstances: rule 4(1);

(d) despite rule 4(1), if two rules apply to the insured in the same incident, and under one rule the insured is 100 per cent at fault, and under the other rule the insured is not at fault, then the insured shall be assessed as being 50 per cent responsible for the incident: rule 4(2);

(e) if an incident is not described by any of these rules, then the degree of fault of [the] insured shall be determined in accordance with the ordinary rules of law: rule 5(1);

(f) in circumstances where there is insufficient information to determine the degree of fault under these rules, the fault of the insured shall be determined in accordance with the ordinary rules of law, unless required otherwise by the rules: rule 5(2);

(g) a driver of an automobile entering a roadway from a parking place, private road or roadway, who collides with an automobile passing the parking place, private road or roadway is 100 per cent at fault for the collision. In other words, the driver passing the parking place, private road or roadway has the right-of-way: Rule 7;

(h) Rule 12 applies when vehicles are travelling in opposite directions in adjacent lanes; and

(i) when a driver of a motor vehicle "A" is backing up and strikes another motor vehicle "B", the driver of motor vehicle "A" is 100 per cent at fault: rule 19(a). [page281]

[14] The plaintiff submits that the applicable rule is Rule 7 because she was on the roadway and the driver of the van was half in the driveway and half on the roadway. The plaintiff explains that, under Rule 7, she had the right-of-way and the driver of the van was 100 per cent at fault for failing to yield right-of-way to her.

[15] The defendant submits that the correct rule is rule 19(a). According to the defendant, because both the driver of the van and the plaintiff were backing up and the driver of the van could not reasonably have foreseen that the plaintiff was moving her vehicle, the plaintiff and the driver of the van were 50 per cent at fault for the collision.

Analysis

[16] I found Mr. Lobatto and the plaintiff to be credible witnesses. They both tried their best to give the court their best recollection of the circumstances surrounding the collision.

[17] Mr. Lobatto drove his vehicle from the driveway of townhouse 115 to the driveway of 162 of townhouse 162 and 163. He noticed the plaintiff's vehicle parked on the road between townhouses 113 and 115. He did not notice the plaintiff's vehicle to have its emergency lights on.

[18] Mr. Lobatto did not fully enter the adjacent driveways of townhouses 162 and 163. He brought his vehicle to a stop and looked around him. He did not notice the plaintiff's vehicle in motion. He then reversed, seeking to re-enter the driveway of townhouse 115. During this time the plaintiff set her vehicle in motion, backing up across the driveway of townhouse 115. A collision occurred between the two vehicles.

[19] Under these specific circumstances, I find that rule 19(a) has no application in this case. Rule 19(a) contemplates a circumstance where the driver of automobile "A" reverses and collides with automobile "B". The rule does not address a circumstance where both drivers are reversing at the time of the collision. Therefore, I conclude that the defendant applied the wrong fault determination rule.

[20] The plaintiff postulated that Rule 12 supported her argument that the driver of the van was 100 per cent responsible for the collision. Rule 12 sets out fault determination rules for automobiles travelling in opposite directions in adjacent lanes.

[21] On the evidence, I conclude that the vehicles were reversing in opposite directions approximately perpendicular to each other; the road was unmarked and the centre line is an imaginary one; the location of the imaginary centre line is unclear; [page282] the exact location of the vehicles on collision, in relation to the imaginary centre line, is approximate at best. Under all the circumstances, I do not find Rule 12 to be a useful fault determination rule in this case.

[22] Mr. Lobatto moved the van, from the driveway of townhouse 115, to the driveway of driveway of townhouse 162 and 163. He brought the van to rest with the front end in the driveway of townhouse 162 and 163. The second half of the van was in the west portion of the roadway. From this resting place, Mr. Lobatto began to reverse his vehicle into the driveway of townhouse 115.

[23] According to Rule 7, Mr. Lobatto from his resting position in the driveway is 100 per cent at fault in colliding with the plaintiff's car, which was travelling on the roadway into which he was travelling. Mr. Lobatto had to cross the east portion of Dundix Road and then into the driveway of townhouse 115. The plaintiff was traveling southbound, on Dundix Road, across the driveway of townhouse 115.

[24] Section 139(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") requires any driver on entering a highway from a private road or driveway to yield the right-of-way to all traffic "approaching on the highway so closely that to enter would constitute an immediate hazard". The driver entering a private roadway from a private highway is under a high duty to refrain from entering that roadway until vehicles approaching on that roadway have safely passed the driveway: Boutilier v. Atton, 1964 944 (NS CA), [1964] N.S.J. No. 26, 50 M.P.R. 131 (C.A.).

[25] While the driver entering a roadway from a driveway must yield the right-of-way to vehicles travelling on the roadway, cases considering s. 139(1) of the HTA have consistently held that, despite having the right-of-way, the driver crossing the driveway is still bound by the general duty of care applicable to motorists on the roadway:

(i) a driver on a highway may also be guilty of contributory negligence if that driver fails to maintain a proper lookout; is driving at excessive speeds; driving in the wrong side of the road, etc.: Berry v. Mappleback (1953), 1953 737 (NS CA), 31 M.P.R. 379 (N.S.C.A.); Simmons v. Gammon, 1972 1946 (PE SCTD), [1972] P.E.I.J. No. 18, 3 Nfld. & P.E.I.R. 161 (S.C.); Pilgrim v. Weston Bakeries, 1970 277 (ON CA), [1970] 3 O.R. 256, [1970] O.J. No. 1528 (C.A.); Burgoyne v. Indust. Shipping Co. (1956), 1956 764 (NS CA), 38 M.P.R. 233 (N.S.C.A.);

(ii) driver of vehicle exiting the driveway stalled on the roadway. Driver of car travelling on the roadway hit the stalled vehicle. Driver of car driving on the roadway was held solely responsible for the accident: McLatchy v. Harper (1953), 1953 718 (NB CA), 33 M.P.R. 185 (N.B.C.A.); and

(iii) despite having the right-of-way, the driver driving past the driveway still has a duty to exercise the reasonable care of a reasonable, careful and skilful driver and avail herself of a reasonable opportunity to take evasive action to avoid the accident: Walker v. Brownlee and Harmon, 1952 328 (SCC), [1952] S.C.J. No. 56, [1952] 2 D.L.R. 450, at p. 461 D.L.R.

[26] As noted in Rule 3, the degree of fault, under the rules, is assessed without reference to all the circumstances of the accident. Rule 7, cannot be a complete answer to who is at fault in this case as it does not take into account the manner in which the driver crossing the driveway was operating that automobile. It does not take into account the complete circumstances under which the collision occurred. Thus, the accident is not encompassed fully in the rules and pursuant to rule 5(1) the ordinary rules of law apply in determining fault.

(2) Was Mr. Lobatto negligent?

[27] The plaintiff testified that after the collision she spoke to Mr. Lobatto and detected alcohol on his breath. The plaintiff explained that she reported this to the 911 operator. Mr. Lobatto denied that he had consumed any alcohol. The police encountered Mr. Lobatto after the collision. The police did not charge Mr. Lobatto with any alcohol-related driving offence or take any other action consistent with the operation or care and control of a motor vehicle after the consumption of more than the legal limit of alcohol. On a balance of probabilities, I cannot conclude that Mr. Lobatto had consumed alcohol at the time of the collision.

[28] Mr. Lobatto testified that prior to reversing eastward toward the driveway of townhouse 115, he had noted the parked vehicle on the roadway and he did not notice any flashing lights. He explained that he did not see the vehicle move into his path as he reversed the van.

[29] Mr. Lobatto was parked partially in the driveway and in the roadway. In practical terms, he had already entered the roadway. From that position was he subject to the duty to yield articulated under s. 139(1) of the HTA or only the general duty of motorists to exercise reasonable care while operating their vehicle? Some courts have held that the duty to yield is extinguished once the driver enters the roadway and at that point is replaced with the general duty of all motorists to exercise reasonable care: R. v. Perry, 1941 369 (NB COCT), [1941] N.B.J. No. 1, 77 C.C.C. 103 (Co. Ct.); [page284] others have concluded that the duty to yield does not end until the driver has safely completed his entry into the roadway: R. v. Hornstein, 1973 1391 (ON CJ), [1973] O.J. No. 2342, 11 C.C.C. (2d) 197 (Prov. Ct.).

[30] A driver entering a roadway from a driveway is always bound by a statutory duty to yield to motorists approaching on the roadway "so closely that to enter would constitute a hazard": see Boutilier. This duty does not extinguish simply because the driver has entered the roadway but continues until the driver is safely in the roadway; however, once the driver enters the roadway, the duty to yield exists concurrently with the general duty to exercise reasonable care applicable to all motorists on the roadway. There may be rare circumstances where it may be unsafe to yield once the driver has entered the roadway. The duty to yield, however, remains the dominant duty until the vehicle is safely on the roadway, at which time it is replaced by the general duty to exercise reasonable care applicable to all motorists on the road.

[31] Mr. Lobatto did not see the plaintiff's vehicle backing up. His van had already entered the roadway from a resting position. The back half of the van was resting in the west portion of the roadway. Having already entered the roadway the driver was subject to the concurrent duties of yielding to vehicles approaching so closely on the roadway such as to constitute a hazard, and the general duty to exercise reasonable care applicable to motorists. The duty to yield is the dominant duty from that position.

[32] As he reversed the van, across the east portion of the roadway, the driver was required to maintain a proper lookout in order to see the plaintiff's vehicle moving into his path. This duty to maintain a proper lookout does not only apply prior to the manoeuvre of reversing out, but throughout the execution of the manoeuvre, until it is safely completed. The driver failed to maintain a proper lookout throughout the reversing manoeuvre. It was reasonably foreseeable that the plaintiff's vehicle could move during the course of this manoeuvre. The purpose of maintaining a proper lookout was to capture the exact circumstance that an event like that could occur. Since the driver failed to maintain a proper lookout, he could not observe that the plaintiff's vehicle was approaching on the roadway too closely as to constitute a hazard. Therefore, the driver was unable to determine that it was necessary for him to yield to the plaintiff's vehicle by stopping or taking some other manoeuvre. This negligence contributed to the collision with the plaintiff's vehicle. [page285]

(3) Was the plaintiff contributorily negligent?

[33] I have concluded that the plaintiff was contributorily negligent. The plaintiff submits that since she had the right-of-way, there is no corresponding duty on her to be on the lookout for vehicles entering the roadway from the private driveway.

[34] In support of this argument, the plaintiff relies on Shepherd v. Helm, 1983 5221 (NS SC), [1983] N.S.J. No. 501, 60 N.S.R. (2d) 93 (S.C.T.D.), where the Nova Scotia Supreme courts states [at para. 12]:

It is trite to say that the overriding obligation in the circumstances such as this is that a person exiting onto a public street from a private parking lot has the responsibility to make such a manoeuver in safety. I am not aware of any correlative duty on the person driving on the street to ensure that he can drive on the street without interfering with vehicles entering onto the street from private parking lots.

[35] The Supreme Court of Canada in Walker v. Brownlee, supra, sets out the test for finding negligence on the part of a driver with statutory right-of-way [at para. 49]:

. . . I am of opinion and that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A's disregard of the law B had in fact a sufficient opportunity to avoid accident of which a reasonably careful and skillful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favor of A, whose unlawful conduct was fons et origo mali.

[36] I am bound by and prefer the decision in Walker, supra. Thus, the plaintiff had the statutory right-of-way. To find the plaintiff negligent, this court must be satisfied, on a balance of probabilities, that the plaintiff failed to exercise reasonable care such as to alert herself to Mr. Lobatto's disregard for the law and that the plaintiff, as a reasonably careful and skilled diver, had sufficient opportunity to take steps to avoid the collision.

[37] The law with respect to liability vis-à-vis the driver about to enter a roadway from a driveway and the driver crossing the driveway on the roadway can be summarized as follows:

(a) the driver "A" about to enter the roadway has a statutory duty to yield the right-of-way to the driver "B" crossing the roadway: s. 139(1) HTA;

(b) the driver "B" crossing the driveway is subject to the general duty to exercise reasonable care applicable to all motorists. This duty includes travelling at the appropriate speed, maintaining a proper lookout, etc. This duty is not displaced by having the statutory right-of-way: Walker; Cepo v. Short, [1993] O.J. No. 1907, 42 A.C.W.S. (3d) 218 (Gen. Div.);

(c) the elements of the general duty to exercise reasonable care applicable to the driver "B", with the statutory right-of-way, includes maintaining a proper lookout such that the driver "B" can become aware of "A's" impending disregard of the law, or by the exercise of reasonable care should have become aware of "A's" disregard of the law and was cognizant of, and had a reasonable opportunity to avoid the accident of which, a reasonably careful and skillful driver would have availed herself: Walker, supra; and

(d) a driver on the roadway who begins to traverse the roadway, from a resting position, has a statutory duty to maintain a proper lookout to ensure that movement can occur safely and to turn on an appropriate and plainly visible signal indicating to any vehicle her intention to move her vehicle: s. 142, HTA.

[38] The plaintiff checked her main mirror and her side mirrors before reversing her vehicle. She did not see the van. The only time the plaintiff noticed the van was after she had set her vehicle in motion and a collision had occurred. Therefore, I find that the plaintiff checked her surroundings, via side mirrors and main mirror, prior to moving her vehicle. However, she failed to maintain a proper lookout once her vehicle was in motion. She was travelling backwards.

[39] As a result of the failure of the plaintiff to maintain a proper lookout, she could not see that the van was approaching her direction of travel and was going to collide with her vehicle.

[40] The plaintiff was moving her vehicle backwards. It was reasonably foreseeable that between the time she first checked her surroundings and put her vehicle in motion, an object, in this case a van, could obstruct her path and result in collision.

[41] Since the plaintiff failed to maintain a proper lookout, during her reversing manoeuver, she could not determine whether she had a reasonable opportunity to avoid collision with the van because she did not see it coming into her path.

[42] I cannot determine, from the evidence, whether either the plaintiff or Mr. Lobatto could have avoided the collision if either of them had seen that it was imminent; however, that is not the deciding factor on these facts.

[43] Both the plaintiff and the driver of the van became aware of each other's presence after the collision occurred. Therefore, this court finds that neither party was maintaining a proper lookout during the respective maneuvers of reversing their vehicles. I conclude that the plaintiff and the driver were both contributorily negligent in the collision.

(4) Was the defendant's assessment of the plaintiff as 50 per cent at fault accurate?

[44] I have carefully reviewed all of the correspondence, as filed at trial, between the plaintiff and the defendant. It is unnecessary to refer to each piece of correspondence. Upon a review of the documentation, an assessment of the evidence of the plaintiff and Ms. Marsha Temeel, I conclude that the defendants received information from a third party witness to the collision. This witness recounted that the driver of the van reversed and struck the vehicle of the plaintiff which was parked on the roadway. Upon receipt of this information, the defendant, relying on Rule 7, concluded that the driver of the van was 100 per cent at fault.

[45] After making this fault determination, the defendant received the plaintiff's account of the circumstances surrounding the collision. The plaintiff informed the defendants that the driver of the van was reversing his vehicle and she was also reversing the vehicle at the time of the collision. Upon receiving this information, the defendants changed the fault assessment and, relying on rule 19(a), assessed the driver of the van and the plaintiff at 50 per cent fault each.

[46] The third party witness was not called at trial and her evidence was not tested by cross-examination. Her evidence is at odds with evidence of the plaintiff on this point and thus I accept the evidence of the plaintiff.

[47] There were many pieces of correspondence between the plaintiff and the defendant. The plaintiff made detailed arguments, to the defendants, as to why the defendants should reconsider the fault determination and assess Mr. Lobatto as 100 per cent at fault. The plaintiff explored several avenues of appeal prior to bringing this matter to trial. On the evidence, there is no basis for me to conclude that the defendants demonstrated any bad faith in dealing with the plaintiff.

[48] For reasons already articulated, I have concluded that the plaintiff and Mr. Lobatto were both negligent in the accident. Mr. Lobatto and the plaintiff failed to exercise proper lookout while reversing their respective vehicles. I therefore apportion their responsibility for the collision at 50 per cent each. The defendant reached the same conclusion, however; I have already concluded that they did so on the basis of an inapplicable rule, rule 19(a). [page288]

(5) Is the defendant liable for 100 per cent of the plaintiff's car repair costs?

[49] I have concluded that the plaintiff is 50 per cent at fault for the accident; therefore, the defendant, as the insurer, is responsible for 50 per cent of the plaintiff's car repair costs.

Costs

[50] This case raised the important issue of whether the plaintiff had a general duty to exercise reasonable care in the face of her statutory right-of-way; the specific circumstances of this case were such that it was difficult to determine whether the fault determination rules applied and which rule was the correct rule to apply. I have concluded that although the defendant was correct in apportioning responsibility for the collision, the wrong fault determination rule was applied.

[51] Under these circumstances, although [the] defendant was successful, it is not appropriate to award costs in this matter.

Action dismissed.

End of Document