Court of Appeal Dismisses appeal in Deering

Written on June 11, 2012.

The Court of Appeal for Ontario, on June 7th, 2012, dismissed the appeal of the City of Oshawa and Township of Scugog in Deering v. Scugog (Township) et. al.. Interestingly, the Plaintiff’s cross appeal against the 30% finding of contributory negligence was also dismissed, and costs were awarded to the unsuccessful appellants in the sum of $50,000. The full decision is available here: http://www.ontariocourts.ca/decisions/2012/2012ONCA0386.pdf In Deering, two teenaged sisters suffered catastrophic injuries after a car accident in 2004.  In 2010, at trial the Honourable Justice Howden found the city two-thirds at fault because of a lack of road markings and a failure to post speed limit signage on the road. The Plaintiff, Shannon Deering, was held 1/3 at fault. The Court of Appeal, in dismissing the municipalities’ appeal, stated:

” The municipalities contend that the trial judge erred in concluding that the road was in a state of non-repair and that, but for this non-repair and Shannon’s own contributing negligence in the manner of driving, the accident would not have occurred.

 We do not accept this submission. Although the municipalities frame their argument in terms of legal errors made by the trial judge, in reality the trial judge’s legal conclusions flowed from a series of factual findings that were amply supported by the evidence. The core of those factual findings included:

The road had a unique feature, an “accident hill”,that presented an unusual and dangerous deflection of light that might lead even an ordinary, reasonable driver in the westbound lane to believe that eastbound traffic was in their lane as eastbound traffic crested the hill;

The road was unlit;

The speed limit was unposted and excessive such that even a driver going at or slightly under the speed limit would not have sufficient time to react to oncoming traffic;

There was no centre line on the road; and

The road was excessively narrow in light of the above factors.

Put simply, at the crest of the subject hill, even a prudent driver facing nighttime eastbound traffic would have only seconds to react to an apparently directly oncoming car on a narrow, unlit, unmarked and unsigned rural road. Accordingly, the trial judge’s finding that the road was in a state of non-repair and his conclusion that the municipalities were at fault for the non-repair were entirely reasonable.”

It appears from the foregoing that the Court of Appeal did not find any “palpable and overriding error” by the trial Judge, and agreed with him that notwithtanding the speeding by Shannon Deering, the highway in question was not maintained in a reasonable state of repair for an ordinary driver, exersicing reasonable care for their own safety.