In the immediate aftermath of a car accident, your first thought is probably not to document the scene or gather evidence. But if you are in a position to do just that, it can help you immeasurably when filing an insurance claim or even bringing a personal injury lawsuit. After all, your own recollection of the accident may be hazy, especially when you need to recall it months (or years) later, and the other driver may be quick to try and blame you for what happened.
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Case Study: *Pavlovic v. Vankar*
Of course, in the real world, Ontario judges and juries often have to sort out liability for a car accident with less-than-complete evidence. Here is a recent example taken from the Ontario Superior Court of Justice, Pavlovic v. Vankar. In this case, the presiding judge decided an issue of liability on summary judgment–i.e., without submitting the question to a jury.
There was no disagreement between the parties as to the fact that there was a car accident. Specifically, on the afternoon of February 2, 2011, two vehicles collided. The plaintiff was a passenger in one of the two cars, which was driven by her husband, a man named Pavlovic. The other car was driven by a man named Vankar and owned by another man named Vankar.
The plaintiff sustained injuries in the accident and filed a personal injury claim, naming both her husband and the Vankars as defendants. The Vankars then filed a cross-claim against the husband Pavlovic, alleging he was solely responsible for the accident. Defendant Pavlovic then filed the previously mentioned motion for summary judgment, in effect asking the trial judge to declare he did not cause the accident.
Here is some additional background on the accident itself. The collision occurred in an area of Hamilton where Highway 6 merges with Highway 403. According to the defendant Pavlovic, he was driving southbound on Highway 6 and approaching the merger when the Vankars’ vehicle “left the westbound lanes of Highway 403, went through a narrow snow covered area between the two highways and then onto the ramp into [Pavlovic’s] lane of Highway 6” and hitting the Pavlovics’ car.
In contrast, the Vankars said the accident occurred on Highway 403 itself, not Highway 6, and was the result of the defendant Pavlovic improperly merging into the westbound lane.
Although police responded to the accident scene and took reports from the parties, no sworn evidence from any police officer was introduced at trial by any of the parties. The defendant Pavlovic signed a police statement at the time that suggested the accident occurred after the merger onto Highway 403–which supported the defence’s account–but Pavlovic denied saying that at trial.
The other evidence presented to the judge included testimony from an independent witness, who was driving behind the Pavlovics’ car. The witness said he saw another vehicle leave Highway 403 “and travel through the snow bank near the end of the Highway 6 ramp” before entering Highway 6 and striking the Pavlovics’ vehicle. In other words, the witness confirmed the defendant Pavlovic’s account of the accident.
For their part, the Vankars presented expert testimony from a “professional accident reconstruction engineer.” The expert’s opinions were limited by the conflicting versions of events, however, and at best all he could only provide two likely points of impact for the accident.
Judge: Co-Defendant’s Explanation of Events Leading to Accident “Lacks Common Sense”
Justice R.J. Nightingale of the Superior Court granted the defendant Pavlovic’s motion for summary judgment in a January 4, 2019, endorsement. (It should be noted Pavlovic’s wife, who is the plaintiff in this case, did not participate or take a position on the summary judgment motion.) As a result, the judge dismissed both the Vankars’ cross-claim against Pavlovic, as well as the original claim made by Pavlovic’s wife.
In this type of summary judgment motion, the judge has to largely rely on each party’s evidence stemming from the examination for discovery. Here, Justice Nightingale identified a number of statements made by the the driver Vankar that undercut the defendant’s reliability and credibility. For example, Vankar said in his examination that he “operated his right turn signal when in the centre lane of Highway 403 with no intention to actually enter the right lane just before losing control of his vehicle.” Justice Nightingale said that “lacks common sense and is also not likely true.”
Similarly, Vankar said “he saw the Pavlovic vehicle enter the right lane of Highway 403 after he had already lost control of his vehicle.” The judge said this statement was “certainly questionable and problematic.” The court noted that if Vankar had lost control of his vehicle while travelling at 70 km/hr, as he admitted, then it’s likely that Vankar “could not reasonably and accurately state where the Pavlovic vehicle was at the time of impact.”
And then there was the independent eyewitness, whose testimony the judge said was “clear and concise and not shaken or diminished in his cross-examination.” The witness confirmed the accident occurred on the Highway 6 ramp, not Highway 403. And while the witness said he “could not identify the appearance, colour, make or license plate of the two vehicles,” Justice Nightingale said that did not affect the overall credibility of the witness evidence. The important thing is that the witness confirmed the location of the impact, which was the main point of dispute between the two sides.
Indeed, Justice Nightingale said there would be no point in conducting a full trial on this subject, as he was satisfied the Vankars’ car did, in fact, leave Highway 403 and strike the Pavlovics’ car as the husband maintained. Given this, the judge concluded there was nothing “that the defendant Pavlovic could have done anything to avoid the impact.” He was therefore not liable for the accident or the injuries to his wife.
Call Preszler Law Today if You Need Legal Advice Following a Toronto Car Accident
As the case above illustrates, it often takes several years for a personal injury case to get to court. This is why it is so important to gather and preserve as much evidence as possible as closely to the date of the accident. An experienced Toronto personal injury lawyer can advise you on what steps to take. So if you have been injured in a car accident, call Preszler Law Firm today if you would like to schedule a free, no-obligation consultation with one of our lawyers.