Plaintiff’s Four Accidents Require Analysis of Causation, Consent, Threshold, Protected Defendant and Damages

The recent judgment of Superior Court Justice Ruth Mesbur in Moore v. Wienecke reads more like a law school problem than a real-life set of facts.

The plaintiff was involved in motor vehicle accidents in 1998 and 2002, which were the claims that were tried by Justice Mesbur. But before that, the plaintiff had also been injured in a 1986 MVA and had then suffered a serious brain injury in a 1991 accident. (This same plaintiff was again involved in a car accident in 2000, had twice fallen down stairs and had fallen off a ladder, all between the 1998 and 2002 accidents. He was also convicted of impaired driving in 2002 and prohibited from driving for two years. Some might view this as a therapeutic measure for such an accident-prone plaintiff!)

The case is interesting for its analysis of causation on very complicated facts. To add to the complexity, fault was very much a live issue in relation to both the 1998 and 2002 accidents. The owner of the other vehicle involved in the 1998 accident was an unprotected defendant. And on top of all of this, it was alleged that the driver of that vehicle had not been properly licensed and was driving without consent.

Justice Mesbur’s handling of the consent issue was instructive. The other vehicle involved in the 1998 accident was a tractor trailer. It had been driven by the son of the principal of the company that owned the vehicle. The son had only a “G” licence, not the required “DZ” licence. Both the son and his father testified that the son had had permission to drive the tractor trailer on the family farm, but not on the highway (where the accident involving the plaintiff had occurred). On the day of the accident, the son was initially driving on the farm, but had then entered the highway. Justice Mesbur ruled that “possession with consent can change to possession without consent without any change in the actual physical possession of the vehicle”. She found that, at the time of the accident, the son was not driving with the consent of the owner (his father’s company). As a result, the company (and presumably, its insurer) was not liable.

This disposition of the consent issue may turn out to be somewhat academic, since Justice Mesbur also found the plaintiff 100% liable for the 1998 accident. But, in a rather puzzling passage towards the end of her reasons (paragraphs 255-257), Justice Mesbur also noted that the son, i.e., the driver of the tractor trailer in the 1998 accident, had not defended the action. According to the Rules of Civil Procedure, by being noted in default, the son was deemed to admit the plaintiff’s allegations against him. Even though Justice Mesbur had already found that the plaintiff bore 100% of the fault for the 1998 accident and the driver of the tractor trailer none, she nevertheless gave judgment against the driver for all of the damages that she found to have been caused by that accident. Her basis for doing so was that the son’s default meant that he was deemed to admit the allegations against him.

In theory, one of the parties could now appeal Justice Mesbur’s ruling on the consent issue and, if that appeal were successful, the plaintiff would already be armed with a judgment against the driver of the tractor trailer. If the decision on the consent issue were reversed on appeal, the owner of the vehicle and its insurer might be exposed to liability because of the judgment against the driver. The plaintiff could then sue the insurer of the tractor trailer under s. 258(1) of the Insurance Act, all in a case where the driver was found, on the facts, to be blameless for the accident.

Her Honour’s imposition of liability on the ground that the driver in the 1998 accident had been noted in default is especially odd, given that Rule 19.06 specifically provides that “a plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.” Here, Justice Mesbur had already found that the facts of the 1998 accident did not entitle the plaintiff to judgment.

Justice Mesbur found 100% liability against the defendant in the 2002 accident. She also found that the plaintiff’s injuries, attributable to that accident, met the Bill 59 threshold.

Her Honour did not enter into a threshold analysis of the 1998 MVA because she concluded that the owner of the tractor trailer was not a protected defendant and so, threshold issues did not arise. The basis for concluding that the owner was not a protected defendant was that the son had been operating the tractor trailer in the course of his employment by his father’s company. Her Honour relied on the Court of Appeal’s 2005 decision in Vollick et al. v. Sheard et al. However, it is not clear why she ruled that  Bill 59 protections, such as threshold and deductibles, did not apply to the driver in the 1998 accident. His status as a protected defendant would not be affected by the Vollick case. Normally, this would not be terribly significant, since the same insurance policy would usually be responding on behalf of both owner and driver. But here, judgment in relation to the 1998 accident was given only against the driver, as it was he who had failed to defend the action. No deductible was applied to the damages assessed against him and no finding was made, that the plaintiff’s injuries met the threshold.

The absence of a threshold analysis for the 1998 accident is of some importance, given that Justice Mesbur found that “Mr. Moore’s physical injuries from the 1998 accident have left him with fairly minor sequelae”.

Justice Mesbur then had to assess the damages (a complicated process that we won’t summarize here) and finally, make findings as to causation.

Her Honour applied the Supreme Court of Canada’s decision in Athey v. Leonati. She stated her approach to the causation issue this way: “Using the formula outlined in Athey, I must determine his global damages resulting from both accidents, determine what his ongoing damages would have been just before the 2002 accident, and then allocate the difference to the 2002 accident.”

Using this approach, she assessed the plaintiff’s overall general damages at $100,000. She then concluded that the 1998 accident  had been responsible for $40,000 of that figure, leaving the remaining $60,000 to be attributed to the 2002 accident. 

Justice Mesbur did not expressly address the issue of whether the plaintiff was a “crumbling skull” as a result of his two prior accidents in 1986 and 1991. In 2004’s Hartwick v. Simser, Superior Court Justice Toscano Roccamo reduced both plaintiffs’ general non-pecuniary damages because of their pre-accident conditions. While Justice Mesbur did not undertake the same sort of analysis here, it appears (from paragraph 153 of her reasons), that she meant to award compensation only to the extent that the 1998 and 2002 accidents had worsened the plaintiff’s already “damaged” condition. So, it may be that the result is the same.

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