Court of Appeal Decision of the Week

Apportionment: More “How Wrong Are You?” or Less “Two Wrongs Make A Right”?

Case: Bradford v. Snyder et al., 2016 ABCA 94 

Keywords: Motor Vehicle Accident; Cyclist; Apportionment of Liability; Contributory Negligence Act, RSA 2000, c C-27; Traffic Safety Act, RSA 2000, c T-6; Reverse Onus Provision

Synopsis:

A cyclist and a Volkswagen van collide at the intersection of 24th Avenue NW and 5th Street NW in Calgary, Alberta. Lighting conditions are dim, the road is wet – a grey and rainy afternoon.

The cyclist, Ms. Casey Bradford, testifies she came to a “rolling stop” at the stop sign before proceeding through the intersection. She concedes that, had she properly stopped, the accident could have been avoided. The driver of the van, Ms. Siobhan Snyder, testifies that, as she was driving through a playground zone, she looked down to check her speedometer (for between two and four seconds) and simply did not see Ms. Bradford before the collision.

At trial, accident reconstruction experts, Dr. Good and Mr. MacInnis provide evidence that sightlines at the intersection were clear, that both cyclist and driver should have been visible to one another.

Ms. Bradford is seriously injured in the collision – the parties agree upon damages in the amount of $187,500.00 plus costs. The only issue at trial is the extent to which the driver was liable.

The Court finds Ms. Snyder negligent, but also finds contributory negligence on the part of Ms. Bradford – she bears “greater responsibility” for the accident because she failed to properly stop at the stop sign (see para. 17 Bradford v. Snyder, 2015 ABQB 406 (CanLII)).

Pursuant to the Contributory Negligence Act, RSA 2000, c C-27, the trial judge apportions liability as follows: one-third to the driver and two-thirds to the cyclist. Ms. Snyder and her mother, Ms. Eitne Snyder (the owner of the van) appeal on the following grounds:

  1. That the trial judge erred in holding s. 186 of the Traffic Safety Act, RSA 2000, c T-6 (the “TSA”) applies in this case; imposes an onus on the driver to prove the accident was not caused entirely or solely by her negligence; and
  2. That the trial judge failed to consider relevant evidence in his apportionment of liability.

The Court of Appeal dismisses the appeal.

Importance:

In accidents involving a motorist and a non-motorist, s. 186 of the TSA imposes a statutory burden of proof, requiring motorists to prove the accident did not “entirely or solely arise” because of negligent operation of a motor vehicle – a “reverse onus” or rebuttable presumption.

Where the driver is able to prove the accident occurred through no fault of their own, the presumption is rebutted and the motorist will be found not liable. Conversely: “If, at the end of the case, either: (a) the evidence shows that the driver was at fault; or (b) the evidence was too meagre or too evenly balanced for a court to determine the issue of the driver’s negligence, then the presumption will not be rebutted. The non-motorist’s claim will therefore succeed” (see para. 21).

Section 185 of the TSA places a similar onus of proof on a party who contravenes the Act and sustains loss or damage:

  1. If

(a) a person sustains loss or damage arising out of the operation of a motor vehicle on a highway, and

(b) that motor vehicle is operated by a person who is in contravention of or fails to comply with this Act,

the onus of proof in any civil proceeding that the loss or damage did not arise by reason of that contravention or failure to comply is on the owner or driver of the motor vehicle.

The Appellants argued s. 185 applied in the circumstances; that a cyclist should be considered the same as a motorist where there is a breach of the TSA or the Use of Highway and Rules of the Road Regulation, Alta Reg 304/2002 (“Road Regulation”) because both statutes impose the same duties on cyclists and motorists.

The Court of Appeal rejected this argument – whether or not Ms. Bradford (the cyclist) breached the TSA and Road Regulations does not impact the relevant inquiry at s. 186 of the TSA. As the Court stated at para. 31:

Ultimately, the appellants’ section 185 arguments fail to recognize that the onus of proof in this case is not based on the alleged blameworthiness of the parties, but rather on a statutory framework. Imposing an onus of proof on the operator of the motor vehicle is not the same as a finding of negligence on the part of the operator of the motor vehicle. [Emphasis added]

It is only where the motorist acts lawfully and without negligence that the motorist is able to fully discharge the reverse onus at s. 186 of the TSA. The argument with respect to s. 185 is beside the point. For the Court of Appeal, although cyclists (and even pedestrians for that matter) have obligations under the TSA, this should not prevent courts from applying the reverse onus provisions at s. 186 against the motorist (see para. 34 for examples of accidents involving motor vehicles, pedestrians, and s. 186).

With respect to the apportionment of fault, the Court of Appeal cited Heller v. Martens, 2002 ABCA 122 and took the view that apportionment is based on the degree to which each party departs from the standard of care – not the extent to which each party’s conduct may have caused the damage.

Heller sets out a non-exhaustive list of factors a court can consider in assessing comparative blameworthiness:

  1. The nature of the duty owed by the tortfeasor to the injured person;
  2. The number of acts of fault or negligence committed by a person at fault;
  3. The timing of the various negligent acts;
  4. The nature of the conduct held to amount to fault. For example, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis; and
  5. The extent to which the conduct breaches statutory requirements.

 The appellants argued that when the totality of the evidence relating to Ms. Bradford’s fault is contrasted with Ms. Snyder’s “brief but inopportune speedometer glance”, it was wrong to apportion liability in the manner set out by the trial judge.

The appellants referred to the testimony of expert witnesses and an independent eyewitness who described the accident as having been caused by Ms. Bradford, the cyclist. However, as stated before, the Court of Appeal was not interested in the extent to which each party’s conduct caused the damage. As such, the Court found the trial judge was correct to use the “comparative blameworthiness” approach and Contributory Negligence Act and “any omissions the trial judge might have made in his reasons – absent proof that he had actually forgotten, ignored or misconceived the evidence at trial – does not constitute palpable and overriding error” (para. 55).

Counsel for the Respondent: Craig Gillespie and Petrina Wallebeck (Cuming & Gillespie) Calgary

Counsel for the Appellants: David Pick (Brownlee LLP) Calgary

Posted: Wednesday, April 13, 2016