In Fordham v. Dutton-Dunwich, the Court of Appeal
reiterated that municipalities are only obliged to maintain
roadways so that ordinary drivers can travel on them safely.
The plaintiff in this action was 16 years old when he was
involved in a single vehicle accident while driving on a rural road
which was unfamiliar to him. He came to an intersection with a stop
sign, but ignored it and instead drove through the intersection at
about 80 km/hour, the speed limit in the area. The road he was
driving on curved to the right just after the intersection. He lost
control and crashed into a concrete bridge abutting the road,
suffering serious injuries.
The plaintiff sued the municipality for non-repair of the road,
specifically alleging that the municipality had not met its
obligations to maintain the roadway by failing to post a
checkerboard sign warning of the change in the road's
At trial the Court apportioned liability equally as between the
municipality and the plaintiff. The Court accepted that it was the
local practice in "this rural area for drivers to go through
stop signs if they consider it safe." The curve in the road
was a hidden hazard, and more than a stop sign was required to give
ordinary rural motorists reasonable notice of the danger ahead. The
municipality appealed the decision.
In a unanimous decision, the Court of Appeal allowed the
municipality's appeal and dismissed the plaintiff's action.
The Court of Appeal reiterated that a municipality's duty is to
maintain roadways so that they can be safely driven on by ordinary
drivers exercising reasonable care.
In this case, there was undisputed evidence that the road posed
no hazard to drivers who stopped at the stop sign or even drivers
who slowed down to 50 km/hour at the intersection. Accordingly, an
ordinary driver exercising reasonable care would not have had
difficulty navigating the curve in the road.
The Court of Appeal also rejected the plaintiff's argument
that the municipality was required to erect a sign warning of the
curve in the road. Although the Ontario Traffic Manual recommends
checkerboard warning signs for a "sharp change in road
alignment," the recommendation does not establish a legally
enforceable standard of care for civil liability. Although the
guidelines in the Ontario Traffic Manual may be a consideration,
the overriding issue is whether a roadway posed an unreasonable
risk of harm to reasonable drivers. In this case, the Court of
Appeal held that it did not.
The upshot of this case is that, in maintaining the roadway,
municipalities must account for ordinary drivers who are not
perfect and occasionally make mistakes. What may be an issue in
future cases is determining whether a driver has simply made some
mistakes or whether a plaintiff's driving is so bad that it
falls outside the realm of "ordinary" and imperfect
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
The recent Preliminary Issue decision in Walsh and Echelon (FSCO A15-007448, August 31, 2016) confirms that an economic loss does not need to be demonstrated in order to be entitled to attendant care benefits.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
Policyholders recently won a key victory at the Supreme Court of Canada in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. as the Supreme Court clarified the interpretation of a standard form...
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