Shared Liability between Government Authority and 'At fault' Driver

Government authorities have a responsibility for keeping the public reasonably safe on their property, including roads.  Accordingly, a government authority including a municipality may be found liable for injury or damage when there are unsafe circumstances or hazards that present a risk of harm to road users if they failed to take reasonable action to reduce or eliminate the danger within a reasonable time after they became aware of the unsafe condition (or ought to have been aware of it).   This liability is not necessarily diminished or removed when a driver is determined to be have committed a negligent or careless action that was, at least partly, at fault in causing a motor vehicle accident.  In such cases, the courts commonly apportion fault between the negligent driver(s) and the municipality, according to their relative blameworthiness.

There are many Ontario court cases in which the municipality and negligent driver were found contributorily negligent in causing the plaintiff’s injuries.  Roberts v. Morana (1997) is one such case, where a young woman claimed damages resulting from catastrophic injuries she suffered when she and her passenger were hit by a car while standing on the shoulder of Highway 401 near Scarborough, while coming to the aid of a stopped vehicle.

The plaintiff, ‘P.R.’, was 16 years old at the time of the accident.  She sustained catastrophic injuries including: severe brain injury: partial paralysis of her left side; fractures to her left jaw, ankle and femur; and loss of her left leg above the knee.  She was comatose for 18-24 days following the accident. The plaintiff underwent more than ten surgical procedures, including removal of her spleen and amputation of her left leg at the knee, prior to the trial.  The traumatic brain injury significantly impaired her cognitive and memory skills.  P.R. will require substantial community support and care for the remainder of her life.

Both the driver of the stopped car and the vehicle that later hit the young woman lost control on the icy and slippery highway, and the court determined that both drivers were at fault for causing P.R.’s injuries.  The first vehicle at the scene spun around three times before coming to rest on the guardrail, and although his vehicle was not disabled, the driver made no attempt to pull the vehicle fully onto the shoulder (although he was not injured, just shaken up) nor did the driver turn on his emergency flashers in the five minute interval between this initial accident and when the vehicle later struck P.R.

P.R. slowed and pulled over safely in front of the stopped vehicle which extended partly onto the Highway, before she and her passenger got out to assist the driver.  Another driver struck both girls (as well as the stopped vehicle) while they were standing on the shoulder.  The judge in this case surmised that both the first driver and the driver who struck P.R. were both driving too fast and at an unsafe speed, when both were fully aware of the slippery and icy road conditions.

In his determination of whether the Ministry of Transportation (MTC) was also liable, the judge weighed evidence and witness testimony pertaining to weather forecasts for the area, observations of road conditions and visibility, MTC procedures for dealing with ice and snow, procedures for inspecting the Highway, employee training, and other pertinent evidence.  The judge found the MTC patrolman responsible for inspecting the portion of the Highway where the accident occurred, in particular, to have failed both in monitoring weather forecasts and in acting on communications from adjoining patrolman who warned of dangerous icy road conditions in adjacent areas.  Further, the patrolman for the area did not order the timely application of salt when he should have known that road conditions were dangerous and slippery.  For these reasons, the judge concluded that the MTC has substantial liability in the plaintiff’s injuries. 

P.R. was found not at all responsible for the injuries she suffered.  Liability was apportioned at 50 per cent for the Ontario Ministry of Transportation, and 25 per cent each for the two at fault drivers.

At the time of the accident, P.R. had recently quit school and was working at a job selling flowers.  Although P.R. had a learning disability and was not a strong student, she was an excellent athlete, well-liked and popular among her classmates.  Since the accident, P.R.’s severe injuries have rendered her unemployable.  The judge accepted the testimony of the plaintiff’s experts, an economist and actuary, who assessed damages for lost income and future loss of income at $400,769 for the plaintiff.

General damages, which are awarded for pain, suffering and loss of enjoyment in life, were assessed at $225,000, which was the upper limit in case law at the time of the trial.  Excluding amounts awarded to family members under the Family Law Act, P.R. was awarded a total of about $4,450,000 in damages.  This sum included damages for rehabilitation and attendant care expenses, housekeeping expenses, housing, and recreation and leisure expenses.

At the time of the trial, the plaintiff had already been awarded $435,000 in statutory accident benefits under her motor vehicle policy, and this amount was to be deducted from the total amount received in the judgement.  It is not unusual for a seriously injured plaintiff to claim for accident benefits against their vehicle insurance policy as well as making a tort claim against the ‘at fault’ driver.  For P.R. and her family, this two-pronged approach allowed the accident victim to received needed financial aid for her recovery relatively quickly from her vehicle insurer while waiting for the negligence suit to be resolved.  

Injury of Ontario (ILO) lawyers are respected and well-experienced attorneys with practices in many communities throughout Ontario.  Our community ties facilitate our access to local medical, police and legal professionals that support our clients in their recovery and in developing strong evidence for your claim.  Call ILO today for a free no-obligation consultation to find out how we can help with your case.