The use of technology in personal injury cases is becoming more common every day. We have seen how social media can affect your case in a previous post How Social Networking Can Affect Your Case; but it goes far beyond that. New features and enhancements in vehicles, phones and other commonly used machines are now acting as a digital witness that can either refute or corroborate your version of events.
Here we take a look at a case (Kelly v. Perth) that dealt with this issue specifically, and a judgment which took into consideration evidence obtained from a Global Positioning System (GPS) tracking device.
Ms. Stephanie Kelly was involved in a motor vehicular accident where her vehicle left the road and collided with a tree in April of 2009. She has no memory of the accident or details leading up to it so the events were pieced together by eye witnesses on the scene.
According to Mr. Brad McIntosh who was traveling on the same road that day, he saw two vehicles driving in the same direction toward him at an arguably quick speed for the weather conditions at the time. He estimated snow fall of about ten inches along the long stretch of road and could see the imprints of tire tracks on either side of the road. It was also very windy. With the approach of the two vehicles, he slowed his truck to a stop, noticing quite a bit of snow coming off the back of each vehicle.
The first vehicle drove past him but the second vehicle lost traction and begun to swerve out of control when it reached the area with the deepest drift, leaving the roadway and hitting a tree.
Mr. Jody Catalan who came across the same long stretch of roadway noticed that while the weather conditions at that time were windy but fine, there was snowfall of between eight to twelve inches high, for about fifty yards along the roadway. After reducing his speed, he experienced a little bit of difficulty as he drove through the highest point of snow, not seeing any previous tire tracks to use for traction.
Some moments later in passing, he came across a stationary transport vehicle on the road and another vehicle in a field to his right. He assumed that the accident had happened some time ago, but noticed an arm sticking out of the driver side window of the car in the field. He turned his vehicle around and went to see if he could help the driver in the car.
Another gentleman, while not witness to the accident, was travelling the same length of highway when he lost control of the vehicle on the snow covered roadway and ended up on the lawn of a private residence.
The responding officer, Sergeant Van Essen’s assessment of the area was that the six to eight inch height of snow stretched one to two hundred feet along the roadway. He saw that the drift was wet below and had packed snow at the top.
Constable Susan Blacklock was another responding officer to the Kelly accident scene. According to her report, there was a strong northern wind with snow blowing. To the east of the accident location, it was wet and bare but had heavy drifting to the west. She did not take a measurement of the length or depth of the snow on the roadway.
Upon inspection of Ms. Kelly’s car, she saw that the vehicle had good tread snow tires. She concluded from what she saw on the under carriage that it had hit a stump which caused the car to go airborne and roll. The driver’s side made contact with the trunk of tree, quite a height above the ground and was heavily damaged.
Ms. Kelly had to be cut out of the vehicle and was unconscious when she arrived at the hospital. She had multiple, life threatening injuries.
According to the Municipal Act 2001, the maintenance and upkeep of the roadway needs to be in a reasonable state of repair otherwise the municipality would be held liable for any injuries sustained by anyone under the Negligence Act.
This can be waived if it is found that
- reasonable steps were taken to prevent such an issue
- if it is within reason that they could not have known about the condition of the roadway
- the minimum requirements of upkeep were met at the time of the incident
Ms. Kelly now has to prove that
- the County did not keep the roadway in a “reasonable state of repair”
- the accident was a direct result of the state of the roadway
On the day of the accident, Mr. Charles Blancher (the foreman for the County’s roads) testified that he was aware of a snowfall warning issued for the area and upon patrolling the area in the early morning, placed a call to the snow plow operators to clear the roadway of the fallen snow.
John Kelly (not related to the victim Stephanie Kelly), was the operator charged with the responsibility of maintain the upkeep of the particular stretch of road in question. According to the GPS installed in his truck, it was shown that he ploughed that area early that morning for about twenty three minutes. In his report he noted that visibility was good, experienced light winds from the northwest, the snow was loose and recorded that he plowed and salted the area.
After completing a few other work related duties that morning, he returned to base at noon and did not listen to further weather reports or go back to the site he ploughed that morning (the site of the accident). He attended to the maintenance of his truck and equipment but neglected to inform Mr. Blancher (his supervisor) that he was done plowing for the day.
In making a judgment, everyone’s actions as well as the circumstances surrounding the incident were taken into account.
Environment Canada forecasted rain and snow from the afternoon of the day before, leading into the day of the accident.
The weather forecasts for that morning were worrisome enough for the foreman to alert the crews of the ongoing situation for the day, with the expectation that they would continue monitoring the roads throughout the day.
Mr. Kelly followed procedure for that morning, plowing his set routes and recording vital information. Before returning to the depot at noon, he patrolled a route that was not assigned to him which gives way to question the state of his own routes that were neglected. Furthermore, he didn’t venture out after returning to the depot, nor was he aware of the conditions of his routes.
It was only after the accident that the specific route was ploughed by another operator. In his report, he noted that the roadway varied from good to very bad.
Ms. Kelly has now proven that the road was not in a reasonable condition.
Due to the eye-witness account from Mr. McIntosh, he was able to establish that the victim lost control of her vehicle when she hit the middle (the deepest) part of the slush which was the “very bad” part. This proves the direct link between the accident and the road conditions. If that area had been cleared and salted as it was scheduled to be, there would be no accident or injuries to speak of.
As for the County, since the accident happened outside of the winter maintenance season they agreed that the minimum maintenance standards did not apply. They had prior knowledge to the weather conditions and made the necessary effort to monitor and control the situation; it was just not carried on throughout the day by the operator. The County was therefore negligent and liable to Ms. Kelly for the accident and injuries sustained.
The question of contributory negligence was addressed in the judgment. This is where the plaintiff is shown to bear some responsibility that contributed to the injuries sustained. It decreases the recoverable amount for the plaintiff. It was noted that Ms. Kelly’s speed for the driving conditions that were present were questionably excessive and the County believes that she is equally responsible for the unfortunate outcome; that it was her speed not the road conditions that caused the accident. Each side had expert witnesses who had varying opinions of the speed she was traveling when she lost control.
Judgment was found in favor of the plaintiff and she was awarded compensation for general damages, past and future loss of income and future care costs. Her parents were also awarded compensation under the Family Law Act.
Be sure to read our piece on Claiming against the City. It is an informative piece that explains certain steps you can take as a client to aid in the success of your claim.