Car accidents involving damage to vehicles and/or injuries are often traumatic and disorienting to drivers and passengers, particularly in the period immediately following the collision. With multiple vehicle collisions, the confusion is multiplied many times over, and it may be difficult to ascertain the exact order of events and errors that led to the incident. Emergency responders, including police officers, are typically involved in garnishing information from all involved motorists and witnesses, but there will be occasions where some information is not recorded in police reports for a myriad of reasons, and thus, may not be readily available over the long term. Procuring all the accurate and relevant details for your insurance claim is clearly important and should be completed as soon as possible to reduce the likelihood that some details fell through the cracks. Insurers have deadlines for reporting accidents that must be met, as well. If personal injuries were sustained as a result of the accident or if there is uncertainty about the long-term effects of the trauma, whether physical or psychological, accident victims are strongly advised to consult with a personal injury lawyer in making their claim.
In February 2010, a collision occurred on Highway 401 in Toronto, involving three cars and a small school bus. The incident began when, for unknown reasons, the bus abruptly moved from the center lane of the collectors, weaving and zig zagging until finally stopping on the right shoulder of the road. The two cars directly behind the school bus came to a stop and successfully avoided colliding with the vehicle in front of them, the first with the bus and the second with the car in front. The third car, belonging to the plaintiff, Mr. McDonald, collided with the rear of the second car, which propelled this vehicle into the first car. The first two drivers did not suffer serious injuries, and damage to their cars was fairly minor. The plaintiff’s car had major damage, and over time, Mr. McDonald began to experience the symptoms of more serious injuries as well.
Police directed the three cars to be towed to a collision reporting centre. At that point, the three drivers made self-reports of the accident to an OPP officer. They reported that the school bus had remained at the scene until emergency responders arrived. The second driver alone had spoken to the bus driver, who indicated that no one was hurt; however, there was no explanation for the reason for his erratic driving. No charges were laid against any of the drivers.
Mr. McDonald, the plaintiff, reported different versions of his own driving behaviour, particularly with regard to whether he was making a lane change at the time of the collision versus in an attempt to avoid the accident. Mr. McDonald’s lawyer argued that Mr. McDonald was in his 70’s when the collision occurred, and suffered from diabetes and memory loss which affected his ability to accurately recount his driving details. It was claimed Mr. McDonald had no intention to deceive the court. In the months and years following the accident, Mr. McDonald’s medical condition worsened due to chronic pain, insomnia and other ailments.
The claims against the other two drivers were settled. Now, five years after the accident, the remaining claim involves Mr. McDonald against his insurance company and Jane or John Doe, the driver/owner of the bus. Mr. McDonald is making a claim against Jane or John Doe on the theory that the school bus driver’s negligence resulted in the accident. Because no record of the bus driver or owner’s name has been found, Mr. McDonald is suing State Farm Mutual Automobile Insurance Company, his insurer, under unidentified motorist coverage of his policy pursuant to s. 265 of the Insurance Act, R.S.O. 1990. However, Mr. McDonald’s claim can only succeed against State Farm if he can prove his claim against the driver/owner of the school bus.
The defendants, State Farm, brought forward a motion for summary judgement to argue that, in this case, there is no issue requiring a trial on the matter of liability of an unidentified owner and driver; the skidding of the bus is a neutral fact and does not prove negligence on behalf of the school bus driver. Defense argued, in reference to the bus driver, that there is no particular provision in the Highway Traffic Act, R.S.O.1990, c.H.8 (“HTA”) that requires a driver to exercise due care at all times so as to keep the automobile under control and able to be operated safely at all times. It was pointed out that Mr. McDonald had produced no physical evidence to explain the behaviour of the bus. Further, there was seemingly no attempt on behalf of the plaintiff, to locate any notes or the names of emergency services personal who appeared at the accident; only the OPP accident report including the three driver’s observations, could be produced at trial. The lawyer for the Defense submitted that Mr. McDonald was solely responsible for the accident.
Justice Dunphy asserted that without an explanation, it is reasonable to conclude that spinning out of control assumes negligence on the part of the bus driver. If the bus driver had appeared in court, the onus would be on her/him to provide an explanation that precludes negligence. The court cited the case of Gauthier & Company Limited v. The King,  S.C.R. 143, wherein the plaintiff made a case for negligence by showing that the driver of a military carrier crossed a centre line. Similarly, the plaintiff, Mr. McDonald, made a prima facie case by presenting evidence that the school bus lost control and crossed two lanes of traffic. Justice Dunphy concluded that this is circumstantial evidence that the negligence of the school bus owner/driver contributed to the accident.
With regards to Mr. McDonald’s responsibility in the accident, the court stated that the fact that two cars were able to stop in time to avoid the school bus does not prove negligence for the plaintiff’s failure to stop. Mr. McDonald may have been following too closely, however, there was no evidence provided to prove or disprove this possibility. The judge observed that the plaintiff’s capacities are to some extent, impaired; Mr. McDonald’s inconsistencies in the recollection of his speed and distance did not make him a reliable witness, but the fact that the second driver did not remark that Mr. McDonald was following particularly closely suggests that tailgating was not an issue. The court found that an emergency situation demands attention and reasonable skill, not perfection. Justice Dunphy’s conclusion was that the plaintiff, Mr. McDonald was not the sole cause for the accident, whether or not his driving performance may have been deficient.
On a motion for summary judgement, the judge must determine whether there is no genuine issue for trial. Without clear evidence to support the motion, the court is generally reluctant to deprive parties from presenting their case in a trial by jury. Justice Dunphy asserted that it would be inappropriate for the court to resolve the liability issues using the “toolbox” of Rule 20.4(2.) of the Rules of Civil Procedure to draw inferences and make findings of credibility, as the right to trial by jury is a party’s substantive right. The plaintiff’s story may be convincing if conveyed in context at trial. As such, the motion for summary judgement was dismissed. The plaintiff was allowed costs of $9000 including fees and disbursements for the motion.
Noteworthy in this case, is the finding that a driver cannot be assumed to be negligent in a multiple car collision simply because they alone were unable to avoid crashing, even when the other drivers were successful at doing so. Drivers can be held to a reasonable standard of skill only. It is uncertain whether further investigation at trial will find that Mr. McDonald is absolved entirely or even, partially of blame in this incident. Clearly, if details of the bus driver’s actions in precipitating the collision had been properly recorded and acquired as evidence, the facts in this case would have been more certain.
Rastin & Associates commonly guide clients through claims involving personal injury and negligence issues due to car accidents. Early fact finding as required by each unique situation is key in building a strong case. Further, Rastin & Associates assist their clients in consultation with medical experts necessary for the proper diagnosis of injuries, and in correspondence with insurance companies, particularly with regards to current injuries and possible future complications. Call us today.