Mallory v. The Estate of Werkmann, deceased, et al.

[Indexed as: Mallory v. Werkmann Estate]

Ontario Reports

Ontario Superior Court of Justice,

Lack J.

February 10, 2014

118 O.R. (3d) 776 | 2014 ONSC 971

Case Summary

Torts — Negligence — Motor vehicles — Deceased losing control of his motorcycle and colliding with plaintiff's vehicle while on motorcycle ride with N and M — Plaintiff suing N and M for damages for negligence — Evidence of N and M's convictions for offences under Highway Traffic Act being admissible and relevant — Totality of evidence establishing that all three cyclists were engaged in joint venture to commit unlawful and negligent acts — Cyclists' conduct creating grave risk of death or injury to other users of highway — Plaintiff's loss foreseeable — N and M each 25 per cent at fault for collision.

While on a motorcycle ride with the defendants N and M, W lost control of his motorcycle and collided with the plaintiff's vehicle. W died and the plaintiff was seriously injured. The plaintiff sued N and M for damages for negligence.

Held, the action should be allowed.

Evidence that N and M pleaded guilty to dangerous driving and careless driving, respectively, under the Highway Traffic Act, R.S.O. 1990, c. H.8 was admissible and relevant to the issue of negligence. That evidence, the evidence of witnesses and a video recorded by a camera mounted on W's motorcycle established that all three cyclists drove at excessive rates of speed and made unsafe lane changes. W was lagging behind N and M and was trying to keep up with them at the time of the accident. The evidence established that W, N and M were engaged in a joint venture to commit unlawful and negligent acts. Their conduct created a grave risk of death or injury to other users of the highway. The loss that the plaintiff suffered was within the ambit of that risk and was readily foreseeable by all three of them. N and M were each 25 per cent at fault for the collision.

Cases referred to

Caci v. MacArthur (2008), 93 O.R. (3d) 701, [2008] O.J. No. 4436, 2008 ONCA 750, 68 C.P.C. (6th) 298, 303 D.L.R. (4th) 377, 171 A.C.W.S. (3d) 371

Statutes referred to

Highway Traffic Act, R.S.O. 1990, c. H.8 [as am.], s. 130 [as am.]

Insurance Act, R.S.O. 1990, C. I-8, s. 265 [as am.]

ACTION for damages for negligence.

Andrew Bruce, for plaintiff.

Nestor E. Kostyniuk, for defendant Istvan Mihali.

Jeffery T. Booth and David L. Silverstone, for defendant Security National Insurance Company.

[1] LACK J.: — On February 6, 2005, the plaintiff, Robert Mallory, was driving his vehicle westbound on Bloomington Road in [page777] Aurora when it was struck head-on by a motorcycle driven by Gabor Werkmann. Mr. Werkmann had been travelling in the eastbound lane, lost control of his motorcycle and crossed the centre line. As a consequence of the collision, Mr. Mallory's passenger Arnie Hobbs was killed. Mr. Mallory was seriously injured. Mr. Werkmann was killed.

[2] Mr. Werkmann had been out for a motorcycle ride with the defendants Krisztian Nemes and Istvan Mihali who were each operating their own motorcycles.

[3] Mr. Mallory sued to recover damages for negligence from the estate of Mr. Werkmann, as well as from Mr. Nemes and Mr. Mihali. Mr. Werkmann did not have insurance. Eventually, the claim and cross-claim against the estate were discontinued. The plaintiff's insurer Security National Insurance Company is a defendant in this action, pursuant to s. 265 of the Insurance Act, R.S.O. 1990, c. I-8, for uninsured automobile coverage. Security National has cross-claimed against Mr. Nemes and Mr. Mihali. Mr. Nemes has been noted in default. Mr. Mallory's damages have been agreed on.

[4] The issue to be determined in this action is whether negligence on the part of the defendants Mr. Nemes and/or Mr. Mihali caused or contributed to the accident and, if so, to what extent.

Onus of Proof

[5] Both defendants Mr. Mihali and Security National seek a determination of who carries the burden of proof in this proceeding.

[6] Both sides agree that the burden of proof is generally on the plaintiff who is asserting a claim to establish all of the substantive elements of the claim. The defendant Mihali's position is that also applies by extension to Security National here on its cross-claim against Mr. Mihali and Mr. Nemes because it is asserting that they were negligent.

[7] The defendant Security National's position is that there is no burden of proof as between Mihali/Nemes and Security National. I agree with Security National's position for these reasons. The fact that damages have been agreed on does not alter the fact that the plaintiff is still a player in these proceedings. He has the onus of proving that Mr. Mihali and Mr. Nemes were negligent. He also has the onus, if he wishes to access uninsured coverage from Security National, of proving that he meets the eligibility requirements of the legislation and his policy and that there are no insured liable tortfeasors. It would undermine the policy and reasons behind uninsured coverage to require Security National, the insurer, in the circumstances of this case, [page778] to bear the onus of proving that Mr. Mihali and Mr. Nemes caused or contributed to the plaintiff's loss. I do not see that the fact that Security National marshalled the evidence on behalf of the plaintiff changes this. The onus to prove that the defendants Mihali and Nemes were negligent remains the plaintiff's onus.

The Highway Traffic Act Convictions

[8] One evidentiary ruling remains to be decided. It is the admissibility of the evidence of Mr. Mihali's and Mr. Nemes' respective convictions under the Highway Traffic Act, R.S.O. 1990, c. H.8 and the facts underlying these convictions. These issues were left for me to decide at this juncture. There is no issue of what the substance of that evidence would be, if admitted.

[9] On September 30, 2010 before the Honourable Justice H.I. Chisvin at Newmarket, the defendant Mr. Mihali pleaded guilty to careless driving contrary to s. 130 of the Highway Traffic Act. At the same time, Mr. Nemes pleaded guilty to dangerous driving under the Act.

[10] Counsel for Mr. Mihali takes the position that his client's guilty plea does not constitute prima facie proof of negligence, nor does it shift the onus of proof in the case. He submits that it is not relevant because there is no connection between the defendant Mr. Mihali's driving and the plaintiff's loss. It was Mr. Werkmann who crossed the centre line and hit the Mallory vehicle. The same argument would apply respecting the defendant Mr. Nemes.

[11] To determine whether the conviction has relevance to the issues in this case it is necessary to review the factual underpinnings of the conviction.

[12] The following facts were read into the record as particulars of the offences for which Mr. Mihali and Mr. Nemes pleaded guilty, as set out in a transcript of the proceeding. At about 3:30 in the afternoon on February 6, 2005, Mr. Nemes and Mr. Mihali with Mr. Werkmann gathered at Moore Park Avenue in Toronto. They had three high performance sport bikes. Mr. Werkmann affixed a camera to the inside of his motorcycle which captured both the speedometer and a portion of the road ahead. They set out and travelled north from Toronto into York Region. The route and manner of driving was captured on the camera affixed to the motorcycle that Mr. Werkmann was operating. During their 45 minutes of travel, Mr. Mihali, operating one motorcycle and Mr. Nemes, operating another motorcycle, reached very excessive speeds. The maximum speed reached at one point exceeded 240 km per hour, and that was in an 80 km per hour zone. There were many unsafe lane changes, passing in between moving [page779] motor vehicles. Each of Mr. Nemes and Mr. Mihali performed two wheelies, that is, bringing the front tire of the motorcycle off the ground while it was in motion, and these were at speeds of about 145 km per hour and 155 km per hour. Ultimately, the trio was northbound on Kennedy Road in York Region, turned eastbound onto Bloomington Road and proceeded eastbound from that location. Both Mr. Mihali and Mr. Nemes continued from the location at a high rate of speed. Mr. Werkmann was some distance behind. Mr. Werkmann accelerated to a speed of about 180 km per hour and ultimately lost control of the motorcycle, crossed into the westbound lane and collided with a westbound car. He died as a result of that collision as did a passenger in the vehicle. The evidence of the dangerous driving is captured on the video. There were a number of witnesses at that location at that time. After the collision, Mr. Nemes and Mr. Mihali were not in close proximity when that occurred. They ultimately returned. Mr. Nemes took off his helmet and had a conversation with one of the witnesses on scene. Mr. Mihali was identified to police. Crown counsel said that he did not allege that Mr. Mihali's or Mr. Nemes' actions caused or contributed to the deaths or impacted upon the occurrence. Mr. Mihali's lawyer said that the plea was on that basis and was based on driving at an excessive rate of speed. The facts as read in were accepted by the presiding judge as the basis for the convictions.

[13] I find that the convictions are relevant to the issues in this case. Mr. Nemes' and Mr. Mihali's driving immediately before the collision is relevant because it is alleged that they, with Mr. Werkmann, were engaged in a joint venture.

[14] In Caci v. MacArthur (2008), 93 O.R. (3d) 701, [2008] O.J. No. 4436, 2008 ONCA 750, the Ontario Court of Appeal held that a conviction of dangerous driving causing bodily harm is prima facie evidence of negligence and the essential facts underlying the conviction including driving at an excessive speed. The findings were dispositive of negligence and the convicted person was not permitted to relitigate his/her negligence.

[15] Nevertheless, Mr. Mihali was given the opportunity to diminish any weight which might be given to the conviction. His evidence about his driving at trial differed substantially from the facts that underlay the plea. He testified that he did not fight the charge but pleaded guilty because he wanted to get on with his livelihood. He testified that he never exceeded 60 km per hour on Yonge Street, 70 km per hour on Highway 7 and 80 km per hour on Kennedy Road. He said he did not perform wheelies. If the tire was raised off the ground, it was done unintentionally. [page780]

[16] A review of the videotape clearly establishes the underlying facts as read in when Mr. Mihali's and Mr. Nemes' guilty pleas were entered. The improper lane changes and the cutting into and out of traffic and the "wheelies" of the Mihali and Nemes vehicles can be seen in the recording. Sergeant Stock and Detective Constable Hebert testified as to the accuracy of the speeds shown on Mr. Werkmann's speedometer as recorded by the camera. The officers were able to do that based on the visuals of passing vehicles, the passing roadway, the passing landmarks in the background, the hash marks on the road, the sound of the engine, the sound of tires and observing the two other motorcycles. The speeds of the Mihali and Nemes vehicles were thus evident when they were in the frame. As well, two witnesses to the collision testified that they observed the three motorcycles travelling well above the speed limit on Bloomington Road. This evidence was clearly credible and reliable and I accept it. Mr. Mihali was not a credible witness in light of the overwhelming evidence that contradicted his testimony.

[17] Mr. Mihali was represented by counsel at the hearing in Provincial Court. There is no evidence of mistake, coercion or fraud in connection with Mr. Mihali's guilty plea.

[18] I find that Mr. Mihali's conviction for careless driving and the facts as accepted by the presiding judge on which the conviction was based, which were accepted by Mr. Mihali at the time of the conviction are admissible in evidence. The same holds true respecting Mr. Nemes' conviction and the facts accepted as underlying it.

[19] The conviction for careless driving means that at time of the offence Mr. Mihali drove his motorcycle on a highway without due care and attention or without reasonable consideration for other persons using the highway. The conviction is prima facie proof of his unlawful act and of the essential facts that support the conviction. The same holds for Mr. Nemes' conviction for dangerous driving. The convictions and underlying facts, however, are not prima facie proof of joint enterprise, although they are evidence to be considered on that issue.

Causation

[20] The issue remains whether the negligence of Mr. Nemes and Mr. Mihali caused or contributed to the plaintiff's damages.

[21] The evidence established that Mr. Werkmann was driving at an excessive rate of speed at the time of the collision. Ms. Hancock, a witness to the event, is knowledgeable about motorcycles and has been around them for years and she has driven them. She said that before the collision the Werkmann [page781] vehicle was travelling at an excessive speed. She said it went into a "wobble" and the driver lost control of it. A wobble is quick oscillation of the front (steering) wheel. The videotape shows that the motorcycle's speedometer read 195 km an hour immediately before impact, according to Detective Constable Hebert. Det. Hebert said the high speed was consistent with the extensive damage caused to the Mallory vehicle. It was his view that the Werkmann vehicle had gone into a high-speed wobble before the collision occurred and the driver lost control. He saw physical evidence that the front tire was separating and the bike was either sliding or high siding. It was his opinion that Mr. Werkmann simply did not have the ability to operate the motorcycle at the speed at which he was travelling. I find that the evidence clearly establishes that Mr. Werkmann was negligent in driving at the speed he did on Bloomington Road and his negligence caused the collision.

[22] It is the position of the plaintiff and Security National that Mr. Werkmann's negligence took place in the context of a joint venture of unlawful activity in which all three defendants, Mr. Werkmann, Mr. Nemes and Mr. Mihali were engaged. They all owed a duty of care to other users of the road and specifically to Mr. Mallory who was one user. They were all negligent. It was foreseeable that other users of the road to whom they owed a duty of care could suffer loss as a result of their negligent activity. Consequently, they all caused or contributed to the loss that was suffered by the plaintiff.

[23] Counsel for the defendant Mr. Mihali points out that it is conceded by counsel for Security National that Mr. Werkmann, Mr. Nemes and Mr. Mihali were not involved in a street race or contest at the time of the accident. The three cyclists were driving separate motorcycles independent of one another. Immediately before the collision, Mr. Mihali was not driving with or near Mr. Werkmann. He was not involved in the collision between the plaintiff's vehicle and the Werkmann motorcycle and he did not even witness the accident. In his submission, his client was not engaged in a joint venture at the time with the other two cyclists.

[24] Counsel for Mr. Mihali does acknowledge that parties will be held equally responsible if the tort committed by one of them was committed in furtherance of a common purpose. However, he says the evidence here does not establish a common purpose. I disagree. I find that the evidence overwhelmingly establishes that the three cyclists were engaged in a common purpose to commit unlawful and negligent acts. [page782]

[25] The three of them decided to go for a ride together. Mr. Mihali watched Mr. Werkmann attach a camera to his bike before they left. Mr. Mihali said that he did not ask Mr. Werkmann why he did that. I find it was apparent to him why Mr. Werkmann did that. They anticipated that what they were embarking on was going to have the element of a performance to it. Mr. Mihali testified that his motorcycle was not a high performance vehicle. I do not accept that. It was clear from the evidence that it was just as capable as Mr. Nemes' and Mr. Werkmann's vehicle of reaching very high speeds. The three cyclists travelled together for approximately 45 minutes. Their ride together only terminated when the collision took place.

[26] Mr. Mihali testified that he was aware that motorcyclists travelling together should stay in staggered formation. It is apparent from the recording of the trip that there were numerous incidents over the course of the trip where they did not do that. Throughout the trip all three of the riders travelled at speeds well in excess of the speed limit. They made unsafe lane changes. Mr. Mihali and Mr. Nemes performed wheelies.

[27] The speedometer on Mr. Werkmann's vehicle showed the excessive speeds at which he was travelling during the trip, yet he generally trailed the motorcycles of Mr. Mihali and Mr. Nemes. As I noted, I am satisfied on the evidence that Mr. Werkmann's speedometer was accurate. On Kennedy Road, Mr. Mihali remained in front of Mr. Werkmann at a high rate of travel some length of time. Sargeant Stock testified that it looked like Mr. Werkmann was being "pulled by the nose" by the other two drivers throughout most of the video and I find that is an apt description of what took place. Mr. Werkmann was usually behind and trying to keep up with Mr. Mihali and Mr. Nemes.

[28] Mr. Mihali testified that just prior to the accident he intended to go home. He expected the other two to follow him. They did not know where he lived. So, obviously, Mr. Mihali expected them to follow him. Ms. Hancock was at the intersection of Kennedy and Bloomington Roads, where the cyclists stopped, then turned on to Bloomington. She said that they accelerated rapidly after doing so. Mr. Mihali took the lead followed by Mr. Nemes and then Mr. Werkmann. Mr. Juknewich, who was in front of the Mallory vehicle, remembered the first two vehicles went by really fast, then the third vehicle, which was the Werkmann vehicle. It was only approximately one-half km from the intersection to the collision site. By that time, Mr. Werkmann was travelling at 195 km an hour and Mr. Mihali and Mr. Nemes were well in front of him. [page783]

[29] Immediately after the collision when Mr. Nemes noticed that Mr. Werkmann had not kept up, he got Mr. Mihali to pull over and they went back to investigate. When they saw what had happened, Mr. Mihali denied to Ms. Hancock that Mr. Werkmann was his friend and he left. I accept Ms. Hancock's evidence, corroborated by Mr. Juknewich, but denied by Mr. Mihali, that they left before the police and ambulance arrived.

[30] I find that the three cyclists were engaged in a joint venture to participate in activity that involved driving considerably in excess of the speed limit and breaking other rules of the road. They encouraged and incited one another to do so. Immediately before the collision, Mr. Mihali's action in pulling away at a high rate of speed from Mr. Werkmann implicitly incited Mr. Werkmann to drive at the speed he did in order to follow to Mr. Mihali's home to get warm. In failing to remain at the scene of the accident, as anyone would whose friend had just been killed, the two cyclists left. I find that they did that because they were conscious of having been, in part, to blame for what had happened.

[31] The conduct of the trio in driving in the manner in which they did, viewed objectively and subjectively, created a grave risk of death or injury to other users of the highway and the loss that Mr. Mallory suffered was within the ambit of that risk and was readily foreseeable by all of them.

[32] Mr. Werkmann was the one who was involved in the collision, but the negligence of the defendants, Mr. Mihali and Mr. Werkmann, also caused it. I find that they are each 25 per cent at fault.

Conclusion

[33] For these reasons, judgment shall go incorporating paras. 1, 4 and 5 of the minutes of settlement, with an additional provision that the defendants Krisztian Nemes and Istvan Mihali are each 25 per cent liable for the damages suffered by the plaintiff, jointly and severally. Since Mr. Mihali was insured at the time of the collision, the claim against the defendant Security National Insurance Company is dismissed.

[34] If the parties are unable to settle the issue of costs or agree on the form of the judgment, they may take out an appointment with the trial coordinator to appear before me to make submissions.

Action allowed.

End of Document