Tag Archives: car accident

A Reminder of the Importance of Reasonable Foreseeability in Negligence Claims

Written By: Joseph Cescon and Brandon Pedersen, Summer Student

Negligence Claims

Importance of Reasonable Foreseeability in Negligence Claims

At law, certain relationships are recognized to give rise to a prima facie duty of care. It is a well-known fact and well-established point of law that a driver of a car who is at-fault owes a duty of care to a person who was injured as a result of the driver’s negligence. The reason for this is that a risk of personal injury after a driver’s negligent conduct (for example, being intoxicated while driving) is reasonably foreseeable.

In what circumstances might a property owner owe a duty of care to a thief who steals from their business? On the face of things, the notion that an innocent party could owe a duty of care to someone who steals from them seems illogical; however, last year, the Supreme Court of Canada revisited the question of foreseeability in establishing a duty of care.

In Rankin (Rankin’s Garage & Sales) v JJ,[1] two teenagers drank alcohol and smoked marijuana to the point of intoxication, and subsequently went to Rankin’s Garage in Paisley, Ontario.  At the time, Rankin’s was an unsecured car dealership and mechanic property, where the teens found an unlocked vehicle with the keys in the ashtray. The two teenagers decided to go for a joyride, though the driver did not have a driver’s license and was drunk and high. As most could anticipate, the driver got into a serious single-vehicle accident, and the passenger suffered a catastrophic brain injury as a result.

After the Ontario Court of Appeal upheld the trial court’s decision that Rankin’s Garage was negligent, the Supreme Court of Canada was forced to conduct a thorough analysis to determine if a duty of care existed.  In a split decision, 7-2, the majority for the Court determined that “this case [could] be resolved based on a straightforward application of existing tort law principles” by applying the Anns-Cooper test.[2] Based on the application of the test, the Court affirmed that what needs to be “reasonably foreseeable” is not only the risk of theft, but that the type of harm suffered – in this case, devastating personal injuries – was reasonably foreseeable to someone in the position of the thief, when considering the security of the vehicles stored at the garage. The Supreme Court of Canada ruled that a commercial car garage did not owe a duty of care to a person who was injured following the theft of a vehicle from its premises.

Implications for Tort Law

  • The decision in Rankin’s demonstrates that risk needs to be assessed on a case-by-case basis, and a duty of care must be based on the reasonably foreseeable risk of harm rather than just a mere possibility of such harm. The outcome of Rankin’s is likely to result in greater attention being paid to the foreseeability inquiry in future negligence cases.
  • While the majority’s decision clarified that a business will only be liable in this kind of situation where both the theft and the unsafe operation of the stolen vehicle should have been foreseen, it indicated that a defendant may still owe a duty of care even if a plaintiff participates in criminal activity.
  • The question that remains is whether or not individual automobile owners owe a duty of care to those injured as a result of the theft of their car. The Rankin’s decision illustrates that cars are not inherently dangerous, and storing them (whether for commercial or personal reasons) will only create a reasonably foreseeable risk in certain circumstances.

Contact the lawyers at McLeish Orlando LLP for more information about your rights, and the options available to you.

[1] Rankin (Rankin’s Garage & Sales) v JJ , [2018] 1 SCR 587, 2018 SCC 19 (CanLII)

[2] Cooper v Hobart, [2001] 3 SCR 537, 2001 SCC 79

Types of Distracted Driving: What is Illegal?

Written By: John McLeish

Distracted driving is one of the leading causes of motor vehicle accidents in Canada. In fact, the Ontario Provincial Police calls distracted driving the “number one killer on roads”, as it is attributes to more fatalities than any other type of crash, including impaired driving.

What is “distracted driving”?

Under sections 78 and 78.1 of the Highway Traffic Act, drivers are prohibited from:

  • Using handheld wireless communication, such as cell phones
  • Texting, dialling or emailing
  • Using handheld entertainment devices, such as iPods or MP3 players
  • Viewing display screens unrelated to driving
  • Programming a GPS device

What can you do without breaking distracted-driving laws?

  • Use hands-free wireless devices such as Bluetooth
  • Wear headphones
  • Eat or drink
  • Talk with passengers
  • View the display screen of a GPS unit that is integrated into the vehicle, or mounted on the dashboard, without obstructing the view of the driver
  • Use portable MP3 players that are hands-free
  • Call 911

What is the new penalty?

A June 2015 amendment to the Highway Traffic Act increased the penalties for distracted driving in Ontario. Fines have risen from $60-$500 to $300-$1,000, plus three demerit points. Although things such as eating and talking to passengers do not violate the distracted-driving law in Ontario, they still are a distraction. Additionally, if they cause others to be put in danger or result in an accident, there can be even more serious consequences.

Drivers convicted of careless driving automatically receive six demerit points, fines up to $2,000 and/or a jail term of six months. Dangerous driving, a criminal charge that is often laid in the case of an accident causing serious injury or death, can result in a jail term of up to 5 years.

Distracted driving is broken down into three categories. Manual distractions require the driver’s hands to be taken off of the wheel. This can include eating, applying makeup or adjusting the radio. Visual distractions cause the driver to look away from the road and traffic situation, perhaps when operating a GPS, searching for an item, or browsing through music. Cognitive distractions impede the driver’s focus and takes his or her attention off the road. Examples of these would include being preoccupied, talking on the phone, chatting with passengers, or falling asleep.

Many distractions, including texting and driving, fall into all three of these categories and cause an increased risk of danger to the driver, passengers, pedestrians, bicyclists, and other motorists on the road.

As a personal injury lawyer in Toronto, I have, sadly, seen too many unnecessary injuries and casualties to people inside – and outside – cars. Happily, though, reports indicate that 90% of drivers do understand that distracted driving is extremely dangerous, so police are optimistic that these new regulations will encourage them to put down their phones while behind the wheel.

Let’s keep our eyes on the road.

How to Avoid Accidents on Slippery Roads

roadsBy: John McLeish and Yana Banzen

March break is around the corner and many of us in Ontario will be driving up north with our families to enjoy the last days of the skiing and snowboarding season. A word of caution is in order. Slippery, slushy roads create dangerous conditions for drivers. While snow tires make driving in these conditions safer, having snow tires on your vehicle may make you believe you are safer than you actually are.

Here are some safety tips to remember in order to prevent accidents on slippery roads:

  • Make monitoring the weather conditions during winter part of your morning routine. Being aware of what’s ahead of you will help you be more prepared;
  • Pump the brakes if you notice that your car is sliding. Braking hard will cause the wheels to lock up. Sliding wheels are uncontrollable – steering won’t change the direction of your car if the wheels are sliding;
  • Avoid sudden movements. Quickly turning your tires, accelerating, or braking can cause you to lose traction.
  • Drive slower. Everything takes longer on snow, ice and slush-covered roads. Accelerating, stopping, and turning – nothing happens as quickly as on dry pavement. Give yourself time to maneuver by driving slower than you would in dry conditions;
  • Don’t follow other vehicles too closely. Allow yourself more space to slow down;
  • Don’t drive when you are fatigued. Getting the proper amount of rest before driving in the winter reduces driving risks;
  • Do not use cruise control when driving on a slippery road. You need to be in full control at all times;
  • Avoid hills or other dangerous roads during icy conditions;
  • If you hit black ice – the general rule is to do as little as possible and to allow the car to pass the black ice. Do not hit the brakes and make sure to keep the steering wheel straight. If you try to steer in the opposite direction from where the car is going you risk skidding or spinning out.

If you follow the above driving rules, you will significantly reduce the risk of having an accident.

If you do have an accident and are injured, it may not be your fault.

Municipalities have responsibilities for plowing, sanding, and salting roads and keeping them clear and safe.  Often municipalities do not live up to their responsibilities.  If you feel you have been driving safely, and have an accident, and are seriously injured, consult with a lawyer.  Most lawyers will not charge anything for an initial interview.  Some will even hire a winter road conditions expert and have the expert conduct a preliminary investigation at no charge.

New Lawyer Practice Series Part 3: Plaintiff’s Personal Injury Law

The third part of our blog series entitled: Developing and Funding  a Plaintiff’s Personal Injury Practice.

In this post we will take a look into developing systems for document gathering and file development and its importance through the various stages of litigation.

File Development and Progression

In our office, we have dedicated a lot of thought and energy to developing systems for document gathering and file development.  If you are running your law firm like a business you will realize that it is very important for files to move as quickly as possible through the various stages of litigation.  This is what your client wants and this is also in your best financial interest as all or nearly all of your retainers will be on a contingency basis whereby you are not receiving fees or recovering your disbursements until the case in concluded.  In the majority of injury cases, you will not be able to get an opinion on the prognosis for the future from a physician until two years has passed from the date of injury.  You should plan to have your case at discovery at or near the two year anniversary of the incident to allow you to set the case down shortly after discovery. 

 The document gathering process in motor vehicle litigation is essential.  The documents are essential to prepare the client for discoveries and avoid inconsistencies and credibility issues at trial. Productions also provide the building blocks necessary to obtain complete and consistent expert opinion.   Continue reading

Is a Carjacking An “Accident”?

On February 26, 2000, Michael Downer pulled into a Scarborough gas station in his Jeep.  He left the engine on the Jeep running while he sat in the driver’s seat and separated money from his wallet to pay for gas.  When Mr. Downer looked up from his wallet, he saw 3 or four young men around his jeep.  The men began hitting Mr. Downer while pulling him out of the vehicle.  Mr. Downer put the Jeep into reverse to get away from the men.  One of the men tried to force the gear into park while Mr. Downer reversed out of the gas station and then drove off.  A short time later, he became aware that he had suffered injuries in the incident.

Mr. Downer’s insurance company brought a motion to dismiss Mr. Downer’s claim for benefits on the basis that he had not suffered his injuries in an accident.

Was the carjacking an accident?

Continue reading

Catastrophic Definition is now under the Microscope: This review will have a serious impact on the Disabled !

The Financial Services Commission of Ontario (www.fsco.gov.on.ca) has now commenced a review of the “Catastrophic Definition”. The outcome of this review will have a dramatic impact on the victims who suffer severe disabilities in car crashes. For those deemed to be “catastrophic”, it can mean the ability to access essential services to live independently and with dignity. For those that are not, it can mean a life of limited help, despair and a stalled recovery. The stakes are very high!
The FSCO has now appointed an Expert Medical Panel to make recommendations regarding the definition and the assessment process. Careful attention will be made on people suffering traumatic brain injuries, paralysis, spinal cord injuries, severe mental and psychological disorders, and those suffering from multiple broken bones.
Many lawyers, doctors, rehabilitation professionals and treating providers are looking forward to the review. It is hoped that it will finally address the many holes that are within the system. Holes that have resulted in many seriously disabled victims being left out in the cold when it comes to basic care services and rehabilitation treatment. Treatment that will help them get better and integrated back into society and the workforce.

The last changes made by the Ontario Government to the insurance system was in September of 2010. These changes saw a drastic reduction in benefits to those suffering less severe injuries. The intent was to eliminate and drastically reduce benefits flowing to people suffering minor injuries. By cutting the flow, it would mean insurance companies would not have to raise auto insurance premiums to the driving public. It was also seen as a way of making sure greater benefits could flow to the more seriously disabled victims. As some would say, soft tissue injuries would have to take a back seat to the seriously injured.

Although the review process is to look at ways of making the present system better and more efficient, some fear that it will be used as a vehicle by the insurance industry to make it harder for people to be deemed “catastrophic”. This of course would mean people who otherwise would have up to two million in benefits available to meet their needs, would be reduced down to a bare bones package that is exhausted normally with one to two years. This of course cannot be the intent of the review. The review ought to ensure greater access is given to the seriously injured. Substantial savings have already been afforded to the insurance industry as cited in my previous blogs. To now go after the seriously injured and seek to reduce their benefits is just wrong.

Many are confident that the medical panel, FSCO and the Ministry will ensure these seriously injured persons are protected. An expansive approach with the definition must be done. A definition that recognizes all serious injuries. A definition that takes into consideration the collective impact of all injuries on the disabled. It should never be forgotten that there are no windfalls that happen when one is deemed “catastrophic.” Even if someone is found to suffer a catastrophic injury, they still must prove the need for benefits. It simply does not mean money falls on to their lap and they keep it. The money goes to rehabilitation, home modifications, mobility aids, and attendant care. The disabled person still must prove they need the services ( the wheelchair ramp, the wheel chair lift, the helper to get dressed etc.). If they don’t prove it, they don’t get it. If the definition is expanded, it simply means those who need it can access it beyond the temporal and monetary caps of $3,500 or $50,000 as set out in my previous blogs.

If the panel or FSCO or the Ministry seek to tighten up the definition, which would be contrary to the intent of the review, then many severely disabled individuals will be shut out from accessing the rehabilitation and medical help needed to live with dignity and independence. Of course further restriction would simply mean greater savings to the insurance industry. This time however, it will be on the backs of the severely disabled.