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LIABILITIES OF MUNICIPALITY - Negligence - Duty of care - Types - Property maintenance and operation - Highways

Wednesday, May 10, 2017 @ 9:18 AM  


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Appeal by the defendant County of Lennox and Addington (County) and Town of Greater Napanee (Town) from the finding of liability and award of damages made against them in relation to a motor vehicle accident. The respondent Leslie Lloyd (LL) suffered serious injuries when she collided with a propane truck on a curve in the road. LL suffered serious permanent disabilities affecting her mobility, speech, dexterity, cognition and overall functioning. The County was the owner of the road on which the accident occurred and the Town was responsible for its winter maintenance pursuant to a 1998 agreement between the appellants. At the time of the accident, it was snowing heavily and the road was slippery and snow-covered. Although the plows had been called out for road maintenance and two plow drivers indicated that section of road had received maintenance, there was no evidence that the road had been plowed, sanded or salted. The judge found that at the time of the accident, the section of road was in a state of non-repair. He further found that the Town failed to show that it undertook reasonable efforts to address a condition of non-repair. He went on to conclude that the condition of non-repair caused or contributed to LL’s injuries. He found that the driver of the propane truck, with whom the respondents had settled, was partially liable for the accident and that LL was also partly at fault. He apportioned 60 per cent liability to the appellants, 30 per cent to the propane truck driver and 10 per cent to LL. He assessed the respondents’ damages at $4 million, including $2 million for attendant care costs. He also awarded the respondents costs of $750,000. The appellants appealed, arguing that the trial judge erred in his finding of liability and in his interpretation and application of their duty under the Municipal Act to clear roads of snow and ice. They also appealed the award of damages for attendant care costs and the costs of the action. Finally, they claimed that the judge exhibited bias against them.

HELD: Appeal allowed in part. The jurisprudence was clear that a lower standard applied with respect to the state of repair on a low-traffic rural roadway than on higher-traffic thoroughfares and highways. For a road to be in a state of non-repair, it had to present a hazard that posed an unreasonable risk of harm to ordinary, non-negligent users of the road in the circumstances. The trial judge did not properly assess the nature of the road and surrounding circumstances. As no such analysis was carried out by the trial judge, his finding that the road was in a state of non-repair was set aside. In addition, the trial judge’s conclusion that the Town did not take reasonable steps to prevent the state of non-repair was set aside. The trial judge improperly focused on whether the state of non-repair had been corrected rather than on the reasonableness of the steps that were taken by the Town. He also improperly focused on other steps the Town could have taken and made no findings on the reasonableness of the Town’s response. Furthermore, the trial judge erred in failing to admit evidence of the financial impact of other possible steps. While the trial judge’s interventions were, on occasion, unduly aggressive and disrupted the flow of the appellants’ cross-examination of the respondents’ witnesses, and the transcript showed that he subjected the factual challenges made by the appellants to greater scrutiny than those advanced by the respondents, his interventions and comments did not displace the presumption of impartiality. The trial judge did not err in his assessment of the costs of attendant care. The future cost of care was calculated at $1,447,708 and was appropriately increased to $2 million to account for various contingencies. Accordingly, the Court did not interfere with the trial judge's assessment of damages, but set aside the trial judge's finding of liability and ordered a new trial on that issue. The costs issue was also to be determined at the new trial.

Lloyd v. Bush, [2017] O.J. No. 1559, Ontario Court of Appeal, P.S. Rouleau, K.M. van Rensburg and B. Miller JJ.A., March 28, 2017. TLD-May82017009