Personal injury claims arising from motor vehicle accidents often come down to a battle of credibility, not only between the parties to the case, but also among any expert witnesses retained on their behalf. It is not uncommon for litigants to hire accident reconstruction experts to assist the court in determining fault, which in turn can make a lawsuit too complex to dispose of before trial on a motion for summary judgment.
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Clarke v. Toronto Transit Commission: Defence Tries to Blame Pedestrian for Accident
For example, in a recent decision, Clarke v. Toronto Transit Commission, an Ontario Superior Court justice dismissed a defence motion for summary judgment in a lawsuit arising from a 2013 pedestrian accident involving the defendant’s motor vehicle and the plaintiff, who was crossing the street.
Here is briefly what happened. The plaintiff was riding on a Toronto Transportation Commission bus, which was heading southbound on Keele Street, a four-lane road. The plaintiff exited the bus at a marked stop near the intersection of Keele and Donald Avenue. The intersection was controlled by a traffic light.
The plaintiff walked south on the sidewalk before entering the intersection to cross Keele Street just in front of the bus he had exited. According to evidence presented in court, the traffic light had changed to red “either just before [the plaintiff] left the curb to cross Keele Street or as he was doing so.” At the same time, the defendant was driving his car southbound on Keele Street in the left-hand lane. (The bus was still in the right-hand southbound lane.)
According to the defendant, he “did not see” the plaintiff as the latter crossed in front of the bus. Only after the plaintiff cleared the front of the bus did the defendant notice there was a pedestrian in the road. The defendant then tried to brake but he was “too late.” The defendant’s car hit the plaintiff, forcing him “into the air” and into the path of another bus travelling on the northbound side. Fortunately, that bus was able to stop before running the plaintiff over. Nevertheless, the plaintiff sustained “multiple injuries” and subsequently sued the defendant for damages.
Before Justice Markus Koehnen of the Superior Court, the defence moved for summary judgment. In effect, the defence’s theory of the case was that the plaintiff was clearly responsible for the accident as he “darted into traffic, from behind a bus, against a red light.” The defendant maintained he had the “right of way” at the time of the impact and that he was entitled, as a matter of law, to assume pedestrians such as the plaintiff would “follow the rules of the road.”
In response, the plaintiff asserted that even if his actions in crossing the street were partly to blame, a trial was still necessary to determine the extent of the plaintiff’s “contributory negligence.” Among other points, the plaintiff said there was conflicting evidence as to whether or not the defendant was “speeding as he approached the intersection” and kept a proper lookout for pedestrians. In addition, there was evidence suggesting the defendant had been drinking just before the accident, specifically “an empty beer bottle found in the driver’s side door panel of his car.”
Judge Notes He Lacks the “Math Skills” to Understand Accident Reproduction Expert Reports Absent a Full Trial
Both sides retained accident reconstruction experts to help ascertain whether or not the defendant was speeding just before the accident. The plaintiff’s expert determined the defendant was driving “between 54 and 58 km per hour and most probably 57 km per hour.” This was excessive speed under the circumstances, the expert said, because if the defendant had limited his speed to around 50 km per hour, the plaintiff “would likely have finished crossing the street safely and the collision would likely have been avoided.”
Not surprisingly, the defendant’s expert believed the defendant was, in fact, travelling at 50 km per hour and applied his brakes “within a reasonable reaction time after he saw [the plaintiff] and that the accident could not have been avoided.”
Justice Koehnen noted both experts were “highly qualified,” but their differing conclusions were the result of employing “different approaches and assumptions.” For example, both relied upon different angles taken from surveillance camera footage in calculating the speed of the defendant’s car. Both experts differed as to the speed at which the plaintiff was crossing the street.
Overall, the judge said the conflicting expert reports “raise a number of complex factual issues.” While the defence insisted the court could resolve these issues just by reviewing the reports, Justice Koehnen disagreed. “Judges are not accident reconstructions experts,” he noted, and his “math skills, like those of the majority of lawyers and judges I have encountered, are not particularly sophisticated.” At this stage of the litigation, he was simply unable to resolve which expert’s calculations were more likely correct. This is a case in which “a finder of fact needs a slow, methodical explanation, in bite sized pieces, of what the experts did, why they did it and why their approach is superior to that of the opposing expert.” In other words, this is a case that requires a full trial on the merits.
Indeed, even beyond the critical issue of the defendant’s speed, there are also the questions of the plaintiff’s actions in crossing the street and the beer bottle found in the defendant’s car. Both of these issues go to the respective credibility of the parties, which again warrant having a full trial.
Preszler Law can Help if You Have Been Injured in a Pedestrian Accident
In pedestrian accident cases, it is common practice for the motorist defendant to try and shift blame to the plaintiff. As you can see from the case above, a pedestrian may require the assistance of a qualified expert to help prove he or she was not the negligent party. Even a seemingly “simple” accident case often requires a more complex and detailed examination of the available evidence.
For this and many other reasons, you need to contact a qualified Toronto personal injury lawyer following an accident. Call Preszler Law Firm today to schedule a free, no-obligation consultation with one of our lawyers.