In Beardwood v. Hamilton (City), 2023 ONCA 436, a recent case from the Ontario Court of Appeal, the court held the City of Hamilton 100% at fault for a motorcycle accident.
The Plaintiff Was Injured in a Motorcycle Accident
In 2015, the plaintiff fell off his motorcycle while driving through an intersection in Hamilton and fractured his left tibia.
The plaintiff had previous experience driving motorcycles, and the accident occurred at a low speed when he encountered a “surface discontinuity” formed by an asphalt lip on the road.
The Plaintiff Brought an Action Against the City of Hamilton
Consequently, the plaintiff brought an action against the City of Hamilton, David Beardwood et al. v. The City of Hamilton, 2022 ONSC 4030. While both damages and liability were at issue, we will specifically address the issues relating to liability for this summary.
Evidence Regarding the Road’s Condition
The court heard evidence from the plaintiff, the police officer who attended the scene of the accident, and a civil engineering expert retained by the plaintiff. Both the police officer and civil engineering expert provided evidence of their belief that the road was in poor condition and was the cause of the motorcycle accident.
The civil engineering expert also provided evidence regarding the estimated height of the surface discontinuity. While the expert had not taken measurements at the accident scene, he estimated that the height of the discontinuity was between 3.8 and 5 centimetres based on photographic evidence.
Municipal Liability for the Accident
The court noted that s. 44 of the Municipal Act, 2001, S.O. 2001, c 25 sets out the duty of municipalities regarding allegations of improper highway repairs. This section states that municipalities are not liable for failing to keep a highway in a reasonable state of repair if, at the time the accident happened, the alleged default met the Minimum Maintenance Standards (MMS) outlined in a Regulation of the Municipal Act, 2001. For surface discontinuities, the MMS was five centimetres high or lower.
Based on the evidence that had been presented in the case, the court determined that the height of the discontinuity was 4.5 centimetres (essentially “splitting the difference” of the civil engineering expert’s estimates); therefore, the defendant had a statutory defence to the plaintiff’s claim as they were not obligated to make repairs to the surface discontinuity based on the MMS. The court dismissed the plaintiff’s claim, determining no municipal liability for the accident.
The Plaintiff Appealed the Ontario Superior Court of Justice’s Decision
The plaintiff appealed to the Ontario Court of Appeal, arguing that the MMS did not apply to the pavement discontinuity or that the City of Hamilton failed to prove that it had complied with the MMS.
The Court Determined that the Process of Determining the Height of the Surface Discontinuity Was Flawed
The court noted that the civil engineering expert was the only party that provided evidence at trial regarding the height of the pavement discontinuity. As the expert had yet to measure the height of the pavement discontinuity and had provided a range based on his review of photographs, the court believed that his calculations were merely speculative.
Furthermore, the court took issue with the lower court’s use of an average to determine the height of the pavement discontinuity by adding further guesswork to a range already considered speculative.
The City of Hamilton Did Not Prove the Height of the Surface Discontinuity
The court noted that the plaintiff, rather than the City of Hamilton, had introduced photographic evidence regarding the height of the surface discontinuity. Noting that the City of Hamilton had the burden of establishing that it had complied with the MMS and had not called evidence to establish the reliability of the photographic evidence (or other evidence supporting their defence), the court found that the City of Hamilton had failed to meet the onus of proving that it was entitled to a statutory defence against the plaintiff’s claim.
The Court Allowed the Plaintiff’s Appeal
The court allowed the plaintiff’s appeal, finding that the City of Hamilton was 100% liable for the motorcycle accident and resulting damages.
What This Case Means for Personal Injury Claimants
This case is a great reminder of municipalities’ obligations to protect the public (and the consequences of failing to protect them). For example, s. 44 of the Municipal Act, 2001 requires municipalities that have jurisdiction over highways or bridges to keep them in a state of reasonable repair. Failing to comply with this requirement and the MMS means that a municipality will be liable for damages sustained due to their error.
Even where a statutory duty does not exist under the Municipal Act, of 2001, plaintiffs may still advance personal injury claims against municipalities by relying on traditional negligence principles. Those are where a plaintiff proves:
- the defendant (in this case, a municipality) owed them a duty of care (a specific legal obligation not to harm others);
- the municipality breached the standard of care they owed to the claimant;
- the municipality’s actions caused the claimant’s injury or loss;
- there was a foreseeable connection between the municipality’s actions and the plaintiff’s injury or loss; and
- the plaintiff suffered actual harm or loss.
Municipal Liability in Personal Injury Claims
While personal injury claimants can bring claims against municipalities in many cases, it’s also important to remember that there are special exemptions that provide municipalities with some degree of immunity from liability in certain types of cases.
For example, under s. 448 of the Municipal Act, 2001, personal injury claimants cannot seek damages against municipal councillors, officers, employees, or agents where they have acted in good faith in the performance of a duty or authority under the Municipal Act, 2001 or municipal bylaws passed under the Municipal Act, 2001. Personal injury claimants are also precluded from seeking damages against municipalities under s. 450 of the Municipal Act, 2001, where the action or inaction giving rise to the personal injury claim arose due to a policy decision of a municipality that was made in good faith.
To summarize, municipal liability in personal injury claims can quickly become complicated. If you require assistance with this unique and often challenging area of law, speak with a skilled personal injury lawyer.
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At Tierney Stauffer LLP, our skilled personal injury lawyers have many years of experience going up against insurance companies to get full and fair settlements for our clients. We will advise you of the best course of action to obtain the maximum possible settlement so that you can recover financially and move on with your life.