Cuming & Gillespie represented a cyclist who brought a claim for injury against the driver of a Volkswagen van who struck her in an intersection. This was a difficult liability scenario in that the Plaintiff cyclist had proceeded through a stop sign and entered the intersection when the Defendant struck her. The Defendant was travelling with the right of way and neither party saw the other prior to impact. The Defendant denied all liability and so the parties proceeded to trial on the issue of liability.
The Trial Judge confirmed the Plaintiff’s position that section 186 of the Traffic Safety Act imposed a reverse onus on the Defendant driver to prove she was not negligent. The Court then went on to find that the Defendant driver had no discharged that onus and she was negligent for taking her eyes off the road before entering the intersection while in a playground zone. The Trial Judge went onto find that the Plaintiff was contributorily negligent for failing to stop at the stop sign. Liability was apportioned 2/3 to the Plaintiff cyclist and 1/3 to the Defendant driver.
The Defendant appealed the Trial Judge’s decision. In dismissing the Defendant’s appeal, the Court of Appeal held that the Trial Judge did not err in holding that section 186 applied and was correct in his application of the Contributory Negligence Act and the “comparative blameworthiness” approach to apportioning liability. The Court of Appeal also found that the Trial Judge had properly weighed and considered all of the circumstances and evidence in determining and apportioning liability, such that his decision should not be interfered with.