Liability Rests With The Rule Breaker

Curley et al. v. Ottawa Electric Railway Company et al. 1946 CarswellOnt 241

This article highlights key legal precedents in vehicular negligence demonstrating that users of the roadway will not be found to have breached the appropriate standard of care for not anticipating and avoiding collisions caused by the illegal or negligent driving of others.

1. The Trial

• The facts of this case were as follows:
  • The Defendant was operating a streetcar with the right of way on Queen Street in Ottawa, Ontario.
  • From a side street, the Plaintiff drove across Queen Street without first ensuring that it was safe to do so.
  • The streetcar struck the Plaintiff's vehicle.
  • The Plaintiff suffered serious personal injuries and brought a claim against multiple Defendants including the streetcar operator.
• At trial, the jury found that the Plaintiff's injuries were caused entirely by the negligence of the Defendants. No contributory negligence was found to lie with the Plaintiff. The Defendants appealed.

2. The Appeal

• The decision of the Court of Appeal, delivered by Laidlaw J.A., held that the verdict of the jury was "perverse"¹ and that no jurors could "reasonably be satisfied on the evidence that the loss sustained by the respondents did not arise through the negligence or improper conduct of the respondent"².
• While there are special circumstances in which acts or omissions that would typically be considered negligent can be excused, in the absence of evidence of such circumstances, it is not open to a jury to find that there is no negligence on the part of a person who has proceeded through an intersection without looking from a place where he can see if it is safe to do so.³
• In the absence of special circumstances, it is obviously a reckless act on the part of a motorist to proceed across a highway, and particularly through a highway, where he knows there is likely to be moving traffic, without knowing that it is safe for him to do so. If his view in either direction has been obstructed, he must approach the intersection at such speed and with his car under such control that he can stop in a place of safety after he comes to a place where he can see that it is unsafe to proceed.
• In applying this reasoning to the facts of the appeal, the Court of Appeal held that by recklessly attempting to cross Queen Street in front of an approaching streetcar without exercising reasonable care to ensure that it was safe to do so, the Plaintiff behaved negligently. There was no evidence adduced to prove that in the circumstances, the Plaintiff's acts or omissions were to be excused.
• The Court of Appeal allowed the appeal with costs, set aside the judgment of the jury, and dismissed the Plaintiff's action with costs.

3. Implications

3.1. The Rules of the Road

• The reasoning of the Court of Appeal from 1942 has been enshrined in our rules of the road. Justice Laidlaw's holding places a heavy onus on drivers proceeding through an intersection under the Highway Traffic Act⁴ pursuant to section 136(1)(b):
• Every driver or street car operator approaching a stop sign at an intersection, (b) shall yield the right of way to traffic in the intersection or approaching the intersection on another highway so closely that to proceed would constitute an immediate hazard and, having so yielded the right of way, may proceed.
• The Curley decision tells us that drivers entering oncoming traffic/through lanes bear the onus of ensuring it is safe to do so and if they fail to, absent specific excusing circumstances, they will be found liable for a collision which occurs as a result.

3.2. Contributory Negligence

• Over 60 years after the Curley decision placed the onus on the driver entering oncoming traffic/through lanes to ensure that it is safe to do so, Justice Harris of the Ontario Superior Court in the Hubbard v Saunders⁵ decision addressed whether some negligence could be attributed to the driver who fails to avoid a collision caused by a driver who negligently entered oncoming traffic.
• In Hubbard, the Defendant, Anthony Sears, entered an intersection in Waterdown on a red light and collided with the Defendant, Amanda Gilliot, whose vehicle then collided with the Plaintiff. The Plaintiff brought an action against Ms. Gilliot alleging that she should have seen the incoming vehicle driven by Mr. Sears and taken evasive action as Mr. Sears was clearly not going to stop at the red light.
• The allegation raised the question of law: is there a duty on a driver entering a controlled intersection to anticipate danger before entering? Justice Harris held that drivers do not have a duty to anticipate the possibility of danger, nor is there negligence in failing to take extraordinary precautions⁶. Drivers entitled to the right of way are also entitled to assume that all other drivers will obey the rules of the road and stop for red lights⁷.
• However, Justice Harris outlined an exception where drivers can be found to have contributed to the collision if it is established that they were "aware or reasonably should have been aware of the impending accident and had an opportunity to avoid the collision"⁸.
• As Ms. Gilliot approached the intersection within the speed limit, the light was green and there was no reason for her to believe that she could not proceed through the intersection as expected⁹. On the facts, Justice Harris held that there was no evidence which, in law, would allow for a finding that Ms. Gilliot was negligent in entering the intersection.

3.3. Conclusion

• When read together, the Curley decision, the Hubbard decision, and the Highway Traffic Act stand for the following principles:
  • Drivers who wish to enter intersections must yield the right of way to oncoming traffic.
  • Absent special circumstances, it is negligent to proceed across a highway or enter an intersection where there is likely to be moving traffic without knowing that it is safe to do so.
  • Other road users are entitled to assume that other drivers will obey the rules of the road and will yield to oncoming traffic and traffic control signals. There is no duty to anticipate that other road users will break the law or drive dangerously.

Footnotes

1. Curley et al. v. Ottawa Electric Railway Company et al. 1946 CarswellOnt 241 at para 2 [Curley].

2. Curley at para 2.

3. Curley at para 7.

4. R.S.O. 1990, c. H.8 at s. 136(1)(b)

5. 2008 CanLII 57161 (ON SC) [Hubbard].

6. Hubbard at para 11.

7. Hubbard at para 15.

8. Hubbard at para 12.

9. Hubbard at para 6.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.