Insurers (and plaintiffs) should take note of a recent Superior Court decision arising from an unusual tort trial.
The defendant Randi Rumney rear-ended the plaintiff (Sabrina Reece) while she was riding her motorcycle. Prior to the collision, the plaintiff was stopped at a t-intersection. She turned west onto Myrtle Road and was riding ahead of Rumney. The plaintiff was subsequently convicted of failing to yield contrary to section 136(b) of the Highway Traffic Act.
Reece sued Rumney in tort, claiming damages arising from the accident. The trial of this matter commenced on November 14, 2011 before a jury in the City of Oshawa. The parties had drafted an Agreed Statement of Facts which identified the essential findings of facts underlying the decision of the Justice of the Peace in the HTA trial. After hearing submissions on how the evidence could be led using an Agreed Statement of Facts in order to avoid conflict with any factual findings made by the J.P., the trial judge ordered that the evidence on liability would be characterized by distance and not speed. They anticipated potential problems with a conflict with the J.P.’s findings if speed and time were used.
As a result, the parties were not permitted to call any evidence that would undermine the factual findings of the J.P. The jury were told this at the outset and were reminded of this several times during the trial. As part of the trial judge’s charge, she told the jury that these facts were binding on them.
The jury returned with a liability split of 90-10, favouring the defendant. The plaintiff then moved unsuccessfully to set aside the jury’s verdict.
The interesting part of this case is that the plaintiff retained a qualified expert, whose evidence at trial (even using the Agreed Statement of Facts) demonstrated that the defendant could have stopped in time to avoid the collision. It isn’t clear how the jury was able to come back with a 90-10 liability split.
But more importantly, I wonder whether the HTA trial would have yielded a conviction had the plaintiff retained the engineer to give his evidence at that proceeding. It seems that insurers (and plaintiffs) might need to consider getting involved in HTA matters to preserve their tort claims/defences. Otherwise, they could be bound later by detrimental fact findings.
For more, see Reece v. Rumney et al, 2012 ONSC 780 (CanLII).
