Written by: Ashley Frydrych
I came across a recent interesting decision from July 14, 2014, Kelly v. Perth (County), 2014 ONSC 4151 (CanLII).
On April 6, 2009, Stephanie Kelly was driving to work along Country Road 37 in Perth County when she lost control of her vehicle and hit a tree. She suffered serious and permanent injuries as a result.
The day in question was “a bit of a snowy day” but because of the strong north wind, a drift developed on the road. The drift was especially problematic because the drift was wet at the bottom with packed snow on the top, creating an “icy drifting snow”.
The accident occurred during the late afternoon. At some time around 8:00 a.m. on that day County Road 37 was salted and plowed.
Brad McIntosh was driving his truck behind Stephanie Kelly. He testified that he thought Stephanie Kelly was driving “a little quickly” for the conditions.
At issue was whether and to what extent the County of Perth bore responsibility for the accident and the damages suffered by Stephanie Kelly and her family.
The Municipal Act, 2001, S.O. 2001, c. 25 requires each municipality to keep highways under its jurisdiction “in a state of repair that is reasonable in all the circumstances” and provides that a municipality that fails to do so “is, subject to the Negligence Act, liable for all damages any person sustains because of the default.”
Section 44(3) of the Municipal Act excuses a municipality from liability in three situations. The relevant portion provides:
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway …in a reasonable state of repair if,
A. it did not know and could not reasonably have been expected to have known about the state of repair of the highway…;
B. it took reasonable steps to prevent the default from arising; or
C. at the time the cause of action arose, the minimum standards established under subsection (4) applied to the highway…and to the alleged default and those standards have been met.
The onus was on Stephanie Kelly to prove two things: first, that the County failed to keep County Road 37 in reasonable repair in all the circumstances and second, that the accident would not have occurred but for the state of disrepair.
Once those elements were proven, the onus then switched to the municipality to establish one of the statutory defences noted above in s. 44(3) of the Municipal Act, 2001.
In order to determine whether a road is in reasonable repair, the trial judge stated that the question is whether the condition of the road would pose a risk to the reasonable driver exercising reasonable care.
Based on the evidence, the trial judge concluded that a dangerous situation faced all motorists travelling on County Road 37 at the time of the accident. The trial judge stated, “a large drift containing a mixture of wet, packed and blown snow had formed that created a danger to ordinary drivers exercising reasonable care”.
The trial judge also concluded that County Road 37 would not have been in such a state of disrepair had the Country maintained the road throughout the day, and not just once at around 8:00 a.m. The evidence revealed that the other roads in County Road 37’s snow removal route were salted and plowed throughout the day but that County Road 37 was not. It was suggested that because the other roads in the route were closer together, County Road 37 was left out by the operator due to inconvenience.
The trial judge acknowledged the expert’s comment that “you can’t catch every snowflake before it hits the ground” but replied, “one cannot catch a single snowflake by staying indoors”. The trial judge stated, “the inaction of the operator of truck 5 leads to this conclusion; on April 6, 2009 and in relation to Line 37, the County did not do all that was reasonably required of it”.
The trial judge found no contributory negligence on the part of Stephanie Kelly and awarded her a substantial amount of damages.
I think this case is particularly interesting because people often think that in single car collisions they alone are at fault. This case illustrates how a person can fully recover damages for a single car collision because of the condition of the road. It is always wise to speak to a lawyer about the facts of your collision before determining that the collision was your own fault.
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