Law Times

LAW TIMES • OCTOBER 31, 2011 NEWS $5.3M personal injury award Jury finds rear-ended driver liable BY KENDYL SEBESTA Law Times A injury jury has found a woman responsible for roughly $1 million in personal damages stemming from a 2008 collision in To- ronto despite the fact that it was another driver who had rear-ended her. Alfred Schurr, 72, was standing with his wife Jean while waiting to cross Victoria Park Avenue at Cassandra Bou- levard at around 10:30 a.m. on Sept. 3, 2008, according to his lawyer, Michael Shannon of Cassels Brock & Blackwell LLP. At the same time, a deliv- ery truck driven by Oluwatosin Ladejoh rear-ended Camille Hutchinson's car. Th at caused the car to propel forward into the intersection, ultimately hit- ting Schurr. "Normally, people would think the truck who rear-end- ed the car was at fault," says Shannon. "But it was impor- tant that we show the jury, al- though the truck was at fault, the car was as well." Th e case raises familiar questions about how a driver who was rear-ended may be held liable for personal injury damages in Ontario, according to lawyers. "If you're the pedestrian in that case, you would have to prove that the driver could have done something better," says Darcy Merkur, a partner at Th omson Rogers. According to Merkur, the pedestrian would need to prove the driver used the brakes improperly or failed to signal correctly in order to demonstrate liability. Th ose issues came up several times in court, says Shannon, who notes he argued Hutchin- son was inexperienced and travelling to a place she wasn't overly familiar with on the day of the accident. "Th e driver of the car said she did initiate a right-hand turn signal," says Shannon. "It came out later, though, that really she thought the proper thing to do when you make a right-hand turn is to stop, turn your signal on, and then look for pedestrians. At fi rst, it looked as though she might have actually overshot her turn." According to Shannon, Hutchinson stopped suddenly at the intersection while at- tempting to make a right-hand turn. Ladejoh, however, said the driver never made a right- turn signal prior to stopping suddenly. Th is caused Ladejoh to slam into Hutchinson's car and propel her into the inter- section. Insurers consider the driver coming from behind at fault in nearly every rear-end motor ve- hicle collision, according to the Insurance Bureau of Canada. Th ere are exceptions, however, www.lawtimesnews.com in rare cases where the driver coming from behind would have no control over the sud- den actions of the vehicle in front. At the same time, On- tario law requires drivers not to follow too closely, meaning they should be able to safely stop to avoid traffi c ahead. "Every case depends on the facts, and it should be treated that way by the jury," says Shannon. "Many cases involving rear-end collisions in mo- tor vehicle accidents do not fi nd the person who was rear-ended at fault. Howev- er, I think it's important for plaintiff s' lawyers in the fu- ture to not always automati- cally assume because their client was rear-ended that they aren't automatically at fault." According to Statistics Canada, 307 pedestrians were killed between 2008 and 2009 'Many cases involving rear-end colli- sions in motor vehicle accidents do not find the person who was rear-ended at fault,' says Michael Shannon. on Canada's roads. Th is ac- counts for roughly 13 per cent of all fatalities during the same time period. Overall, there were roughly 2,000 fatali- ties resulting from motor vehicle collisions during the same year and more than 11,000 collisions that caused serious injury. But lawyers say cases like the Schurr litigation will likely have little impact on future matters. "It's not re- ally that rare in terms of the case itself," says Merkur. Th e accident in this case caused Schurr to suff er sig- nifi cant brain damage and other life-threating injuries, leaving him incapacitated and requiring around-the- clock care for the rest of his life, says Shannon. His wife Jean suff ered no life-threat- ening injuries at the time of the accident. Th e jury in the case re- leased its verdict fi nding Hutchinson negligent ear- lier this month. It determined Hutchinson had crossed the line into the intersection at the time of the accident and couldn't make her right-hand turn safely. Th is fi nding re- fl ected testimony by a police accident reconstructionist who told court she thought it was odd to fi nd a car trying to make a right-hand turn from that position, Shannon notes. Th e jury also found the truck driver, Ladejoh, negli- gent. Total damages in the case amounted to $5.3 million. Th e jury found Hutchinson partial- ly at fault. She now has to pay 20 per cent of the damages. "Th e victim was a vibrant man, in better shape than most people half his age," says Shan- non. "Th is accident may have been avoided if the driver of the car, a G2 licence holder, was more familiar with the rules of the road." PAGE 3 THE MOST RELEVANT CASES RIGHT WHERE YOU NEED THEM BESTCASE All of the most relevant decisions are right on your desktop with the online research service BestCase. You'll have access to Canada's leading law reports and renowned case summary services, as well as a comprehensive collection of unreported decisions dating back to 1977. Also benefit from the case citator feature. Our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. 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