Proving Negligence in a motor-pedestrian collision: beware of s. 193 of the HTA

In situations where a plaintiff is struck by a motor vehicle while crossing the road as a pedestrian, there is often the presumption that the plaintiff has to undergo the onerous task of proving liability in the situation. This is mainly stemming from the general onus on the plaintiff to bring his case forward, and to argue for his case for compensation.

However, in situations where the plaintiff is struck by a defendant as a pedestrian, the onus is actually on the defendant to disprove negligence. S. 193 of the Highway Traffic Act, R.S.O. 1990, c. H.8 states:

 “When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.” [Emphasis added]

This creates the presumption that the defendant was negligent, and creates a special circumstance where the defendant is already presumed at fault. Therefore, plaintiff’s counsel needs to put their effort into proving the case for damages as opposed to liability, since efforts towards liability should be thrust on the defendant in accordance with the statute.

There is established case law from the Ontario Court of Appeal that, in motor vehicle-pedestrian collisions, the onus of liability must be observed throughout the entire trial, including at the point of the jury instructions on the question of liability. In Senger v Lachman2008 ONCA 323 (CanLII), a new trial on the issue of liability was ordered by the Court of Appeal because it was determined that the jury received improper instructions on the liability question.

Furthermore, there are some recent decisions that would suggest that cases involving motor vehicle-pedestrian collisions would not be ideally dealt with on a summary judgment basis (see Abuajina v Haval, 2015 ONSC 1938 (CanLII) at para 40).

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