A plaintiff in a personal injury lawsuit must prove several key elements in order to win their case for compensation. They must establish that the defendant was responsible for causing the accident, if the defendant hasn’t already accepted liability. The plaintiff must also establish that the injuries they are suffering were caused by the accident and not, for example, by a pre-existing condition. Finally, the plaintiff must provide evidence to establish the extent or severity of their injuries and correspondingly, the amount of losses (economic and non-pecuniary) they sustained.
In many personal injury actions arising from a motor vehicle accident, the defendant in the case has already been charged and convicted of a traffic violation (such as failing to stop at a stop sign) or a criminal driving offence (such as impaired driving), in connection with the accident. In these instances, the defendant commonly admits fault and liability for the accident early on in the litigation process, since there is little point in denying fault when civil courts almost always accept the criminal or traffic conviction as proof that the defendant caused the accident.
If there were no driving-related charges brought against the defendant or the defendant denies responsibility for the accident for any reason, a judge may be required to decide whether the defendant driver caused the accident. In order to do so, the Courts rely on case law, the Fault Determination Rules (FDR) in Ontario’s Insurance Act, and provisions in the Highway Traffic Act (HTA). Among other things, these rules can be used to clarify who’s at fault in multi-car collisions, parking lot accidents, and accidents involving several cars rear-ending one another. For example, in Royal & Sunalliance Insurance Company of Canada v. AXA Insurance (Canada) (2012), an Ontario Court relied on the Fault Determination Rules in determining fault for an insurance dispute involving a three-car collision, which was part of group of collisions involving about 86 vehicles in total that crashed on Highway 400 during foggy weather.
Rear-end collisions are the most common type of accident. On the question of ‘who is negligent in a rear-end collision, the driver of the rear vehicle is almost always found at fault for causing the accident. This is supported both in the FDR and case law, which finds that the rear driver must follow with enough distance to allow them to stop “under any circumstances” (Whiddon v. Wickstrom). Also, the Courts place the onus on the rear driver to prove that they were not at fault.
In State Farm Mutual Automobile Insurance Company v. Aviva Canada Inc. (2015), the courts were tasked with determining who was at fault for a motorcycle accident that occurred at Yonge and Richmond Streets in Toronto, and the judges relied on FDR and HTA rules in determining fault. The accident involved a motorcycle rider who was injured when he lost control of the motorcycle and crashed, after a car travelling in the opposite direction on Young Street turned left directly in front of him. The motorcyclist was paid statutory accident benefits from his own insurer, State Farm, and then State Farm sought indemnification from the car driver’s insurance company, Aviva. In arbitration, the Arbitrator used the FDR rule 5(1) and decided that the car driver was 100 percent at fault for the accident since the plaintiff had the right of way, was travelling at a legal speed and his view of the intersection was blocked by other traffic. The Arbitrator further opined that the car driver should have seen the motorcyclist.
The Arbitrator also referred to the Highway Traffic Act, s. 141(5) which is consistent with the FDR and states that a driver must not turn left at an intersection into the path of an oncoming vehicle unless the driver has “afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision”.
Aviva appealed the Arbitrator’s decision and the application judge decided that the car and motorcycle driver were each 50 percent at fault for the motorcycle accident. The application judge stated that, it’s undisputed that the motorcyclist had the right of way and was ‘there to be seen’; however, the Arbitrator erred in law by applying only FDR rule 5(1) and disregarding the fact that cars were stopped to the left of the motorcyclist as he was nearing the intersection and the motorcyclist should have been alert to this fact.
State Farm subsequently appealed the application judge’s decision. The Appeal judge noted that the Arbitrator was mistaken when applying rule 12(5) of the FDR (which refers to collisions that result when one vehicle turns left into the path of an oncoming vehicle) to the current case, since there was no actual collision. However, the Arbitrator had also referenced the HTA s. 141(5) and asserted that, although there was no collision, the car driver still had the same obligation to not turn unless oncoming vehicles had a reasonable opportunity to avoid crashing. The relevant sections of the HTA and FDR both led the Arbitrator to the same decision on fault determination, which is that the car driver was wholly at fault. The Court of Appeal judge found that the Arbitrator’s approach was consistent with legislative policy, which is “to provide an expedient and summary method of determining fault for the purposes of indemnification” even if the FDRs tend to favour expediency over exactitude. The Appeal judge allowed the appeal and agreed with the Arbitrator’s finding that the car driver was 100 percent at fault.
In some personal injury claims, a judge cannot rely on a previous driving conviction, HTA provisions or FDR rules in deciding fault, but must instead examine all the circumstances of the accident in making a decision. House v. Baird (2017) is a personal injury lawsuit that arose after the defendant driver lost control of his vehicle on a rural rode and collided with an oncoming car. As a result, one passenger in the car driven by the defendant was killed and two other passengers, as well as the driver, were injured. One of the injured passengers was the owner of the car.
In House, the judge assessed all the circumstances of the accident – slippery road conditions due to a recent wet snow, worn tires on the defendants’ vehicle, suggestions that the driver was distracted due to recently finding out his girlfriend was pregnant, a passenger’s testimony that everyone in the defendants’ vehicle was smoking marijuana during the drive, and the defendants' claim that the municipality failed to properly monitor and fix the road conditions – and found that the defendant driver and owner of the car were equally liable for causing the accident and the plaintiff’s injuries. The vehicle owner was found 50 percent at fault because the car’s tires were defective: they were worn well beyond acceptable limits, and were mismatched and over-inflated. An accident reconstruction specialist testified that the defendant’s vehicle “was not safe to be driven on anything but a clear, dry road” and the terrible condition of the tires would cause reduced traction, stability and control. The driver was deemed to be 50 percent liable because he was driving too fast for the road conditions, may have been distracted and his inexperience also likely contributed to his loss of control.
The trial judge acknowledged that it was not possible to know to what exact degree the defective tires, speeding and distracted driving contributed to the accident. Accordingly, the judge applied the Negligence Act, s. 4, which states that, when it’s not practical or possible to determine the respective degrees of negligence or fault between parties, the parties are found to be equally at fault.