Toronto Injury Lawyer Blog
It’s been snowy.
It’s been icy.
It’s been slushy.
It’s been mucky.
It’s been dark, cold and cloudy.
Yes my friends. It’s been a bitter cold winter.
And with bitter cold winters come lots of car accidents. Even if you have snow tires and you’re an experienced driver, and you drive slowly, accidents still happen. Because operating a 4,000+ pound machine on a sheet of ice and snow at speed isn’t supposed to be normal. Accidents will happen.
The topic of this edition of the Toronto Injury Lawyer Blog relates to winter related car accidents because a little birdy told our personal injury lawyers that this Sunday we are expecting over 30cm of snow. If even half of that amount falls on an Ontario City, it will cause some seriously dangerous driving conditions which municipalities are showing that they are having more and more difficulty handling. Cities and Municipalities seem to be less equipped to deal with winter; or is that just us thinking that. It’s a story for another blog entry.
Here’s what the Courts have to say about winter weather accidents which may, or may not, be attributable to the weather, or attributable in part to a driver’s breach of the standard of care which is heightened on account of the poor driving conditions.
The dominant driver will be held to the standard of care of a reasonable and skillful driver in the same circumstances (Walker at 461. See also Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para. 69, [2007] 2 S.C.R. 129). The dominant driver will be fixed with some responsibility if he or she had a reasonable opportunity to avoid the collision but failed to do so (Knight v. Li, 2011 BCSC 184 at para. 17).
Travelling over the speed limit does not, in itself, constitute negligence. The rate of speed that will be considered excessive is a factual determination that will vary from case to case (Martin v. Powell, 1928 CanLII 459 (ON CA), [1928] 4 D.L.R. 149 (Ont. S.C. (A.D.)). In general, “[t]ravelling over the speed limit will only constitute negligence if the speed prevented the driver from taking reasonable measure[s] to avoid the collision” (Cooper v. Garrett, 2009 BCSC 35 at para. 42).
In Saldana v. Caruana, 2015 ONSC 4426, Faieta J. concluded that not adjusting driving speed to account for poor weather conditions amounted to a breach of the standard of care. In Saldana, the dominant driver, Mr. Caruana, was travelling at approximately 10 kilometers per hour under the posted speed limit on a snow-covered, slippery road. He proceeded through the intersection on a green light and collided with a vehicle turning left. He testified that he had difficulty seeing the other vehicle, but that he attempted to avoid the collision by steering and applying his brakes once he became aware of the other vehicle’s presence. The court found Mr. Caruana at least 1 per cent liable for the collision: “He failed to exercise reasonable care to avoid the collision. Caruana was simply travelling too fast given the poor visibility and slippery, snow-covered road conditions even if his vehicle was travelling at a speed that was less than the posted speed limit” (Saldana at para. 62).
This last quote is very important. Many people think that they are “innocent” or cannot be held at fault for a car accident because they were travelling at the posted speed limit. Courts have refuted this. If the weather or the conditions make it unsafe to drive at the posted speed limit, then you are expected to drive under the posted speed limit. The driver has to drive at speeds which are safe and reasonable given the weather and road conditions.
For example, if the road is completely flooded due to a broken watermain and the speed limit is 60km/hr; is it reasonable for a driver to drive through the flooded street at 60km/hr? A driver is expected to adjust their speed (down) in the circumstances. The driver cannot use the excuse that they were travelling at the posted speed limit, when it was clearly unsafe to do so. Drivers need to appreciate that speed limits are calculated taking into consideration optimal weather conditions; meaning to hazards or conditions making it unsafe to drive at that speed. Sometimes those hazards or conditions are unknown, or invisible (like black ice). Other times, they are clear as day (white out conditions on Highway 401). Would it be reasonable for a driver to operate his/her motor vehicle at the posted speed limit of 100km/hr in a complete white out blizzard on Highway 401 when visibility is next to zero? In those conditions, you see most vehicle put on their 4 way hazard lights and slow to a crawl. This is what it means for a motorist to adjust their speed according to the conditions. This is particularly important in a cold weather country like Canada.
The ‘relevant circumstances’ may also take into account the expertise of the driver. Professionals can be held to a higher standard than the general public when performing their professional duties. A professional “must live up to the accepted standards of professional conduct to the extent that it is reasonable to do so in the circumstances” (Hill at para. 70). Though this is a heightened standard, it is not a standard of perfection (Hill at para. 73). This is a very interesting statement. It means that if you’re involved in a car accident with someone who has to drive for a living (a professional driver like a mailman; deliveryman, truck driver, police officer etc.) those defendants will be held to a higher standard than that of a regular operator who does not have to drive their vehicle for a living. This does not suggest that the professional defendant driver needs to be perfect in their driving. But, it means that a Court will scrutinize their behaviour more heavily compared to a regular average driver.
The Courts have recognized that there is no duty on a driver to anticipate that other drivers will disobey a traffic control device and that a driver is free to assume that drivers approaching the intersection from other directions shown a red light will stop, the statutory right-of-way does not absolve the driver from exercising proper care (Sekhon at para. 4).
