Attaching Liability to Road Authorities Challenging for Plaintiffs

The Advocate Files: Personal Injury Law | Attaching Liability to Road Authorities

Attaching Liability to Road Authorities Challenging for MVA Plaintiffs

With comment from Ottawa Accident Lawyer – David Hollingsworth

Although in cases where joint and several liability apply, a person who is injured by multiple parties may be awarded compensation from one, several or all responsible, recent cases show that the court does not readily attach liability to defendants with ‘deep pockets,’ Ottawa personal injury lawyer David Hollingsworth writes.

As Hollingsworth, principal of Ottawa Personal Injury Lawyers, explains, the principle of joint and several liability was applied recently in Gardiner v. MacDonald Estate 2016 ONSC 602, Tuffnail v. Meekes 2016 ONSC 710, and more recently, in Beckford v. Bathia 2016 ONSC 5115.

The Beckford case, he says, “further demonstrates that any perceived injustices arising from the doctrine of joint and several liability are grossly overstated and in fact it is now harder than ever to attach liability to road authorities and others (roadway engineers, highway construction firms, vehicle manufacturers etc.) in the context of motor vehicle accident claims.”

In Beckford, writes Hollingsworth, the plaintiff sued the defendant for damages arising from a 2012 motor vehicle accident that occurred near the Yonge St. exit on Highway 401. The plaintiff alleged that her vehicle was completely stopped and while she was stopped her vehicle was struck from behind by the defendant’s motor vehicle.

However, Hollingsworth says: “The defendant commenced a third-party claim against the Ministry of Transportation (MTO) for failing to ensure that the highway was reasonably safe for motorists. Specifically, the defendant alleged that dust and debris were present in the laneway he was driving on the date of the accident, and the presence of that dust and debris caused and/or contributed to the accident.”

The MTO defended the third-party claim and issued a fourth-party claim against Brennan Paving & Construction Ltd. (Brennan) for contribution and indemnity, as the MTO had allegedly hired Brennan to perform maintenance and repair work to the highway.

The MTO and Brennan brought joint motions for summary judgment, submitting that there was no evidence to support the allegations of negligence in the third-party claim, and therefore the fourth-party claim.

Although Hollingsworth says the defendant resisted the motion on the basis that the MTO and Brennan produced evidence that was incomplete and did not reflect the “true and accurate condition of the lane at the time of the accident,” he says the MTO produced affidavit evidence from a maintenance superintendent, while Brennan produced affidavits from the co-project managers.

The court also reviewed the motor vehicle accident report, noting that dust and debris were never mentioned by the parties involved in the accident in the investigating officer’s notes. The court ultimately relied on Hryniak v. Mauldin 2014 SCC 7 and granted the summary judgment.

“Beckford and Tuffnail both demonstrate that the court will not easily attach liability to second or third defendants which may include road authorities, municipalities, or construction firms, among others. If anything, the Beckford case once again tips the scale in favour of deep pocket defendants. The case may potentially be used against plaintiffs who may wish to add, for example, a road authority as a defendant in an action. After reviewing Beckford, it is unclear what evidence is required to keep a road authority in an action,” writes Hollingsworth.

Ultimately, he adds, both Beckford and Tuffnail “appear to place an onerous burden on parties advancing claims against road authorities or companies that may be responsible for a highway’s state of disrepair.”