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In the Ontario Court of Appeal decision of Smith v. Safranyos, 2018 ONCA 760, the Court considered an appeal from the trial decision of a claim arising from a serious car accident.
The plaintiffs were passengers in a car travelling westbound on Green Mountain Road in the City of Hamilton. The driver of the car, Safranyos, failed to stop fully at the stop sign and proceeded to make a left turn across two northbound lanes. The co-defendant, McHugh, was travelling northbound and struck the driver's side of the Safranyos car. The City of Hamilton was added as a defendant on the theory that there was a design defect in the construction of the intersection.
The trial judge apportioned 50% of liability to Safranyos, 25% to the City and 25% to McHugh.
The trial judge found that McHugh was negligent as he was travelling at up to 85 km/h in a 70 km/h zone, and had consumed alcohol to the point where it affected his perception and reaction time. She also concluded that he had the last clear chance to avoid the accident.
The City and McHugh appealed. The appeal of the City was dismissed. The appeal of McHugh was allowed, as the Court of Appeal found that the trial judge made a palpable and overriding error since the evidence did not support her conclusions.
Blood alcohol readings of McHugh were used by an expert toxicologist to conclude that he had a blood alcohol level over the provincial legal limit of 0.05 mg/100ml and straddled the criminal limit of 0.08 mg/100ml. The expert added that persons with this blood alcohol level may be a hazard on the road and that it is possible that they would display signs of impairment.
A review of the engineering evidence made clear that McHugh could not have avoided the accident even if travelling at 80 km/h. He was 125 metres away when he first observed the Safranyos vehicle. It would have taken about 5.6 seconds for him to reach the intersection. In this time the Safranyos vehicle would have moved from a stopped position in to the intersection, so that it was unrealistic to expect that McHugh could have reacted and taken effective action to avoid the collision, since he had nowhere to go.
The mere fact that McHugh was travelling in excess of the speed limit was not evidence of negligence. There must be a causal connection between the act of speeding and the accident. Speeding is negligent because of the inherent risks of reduced reaction time or loss of control that it can produce. The fact that increased speed brings one to a point of the roadway earlier than otherwise, is not enough.
The trial judge concluded that McHugh would have been impaired under the provincial standard of 0.05 mg/100ml. She went further and concluded that, if charged criminally, he would have been convicted of impaired driving. This conclusion was wrong in law. It was incorrect to use blood alcohol readings to draw a conclusion about impairment. The expert evidence went no further than to suggest that McHugh may have been impaired. There was no evidence from paramedics, police or other witnesses at the scene or after to suggest that he showed signs of impairment. As the Court suggested: "Care has to be taken in using general probabilities as proof capable of forensic application in particular cases."
While it may be tempting to suggest that the driver of a vehicle with a blood alcohol level in the range of 0.05 to 0.08 mg/100ml travelling 15 km/h over the speed limit will carry some measure of negligence, one must look more closely at the inferences one can draw from the evidence and whether there is a causal connection between the alleged negligence and the accident.
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