Hamilton v. Bluewater Recycling Association, 2016 ONCA 805

This was a motorcycle vs. recycling truck collision where the parties agreed that the Plaintiff motorcyclist’s damages were $8 million. The Plaintiff appealed the jury’s verdict that he was 100% liable for the collision. 

Date Case Heard: October 6th, 2016 | Full Decision [PDF]

This appeal stems from a case where the Plaintiff was rendered paraplegic when his motorcycle collided with a recycling truck. The parties agreed that the Plaintiff sustained $8 million in damages. The jury decided, however, that the Plaintiff was the author of his own misfortune and 100% liable for the collision.

The circumstances of the collision were as follows: The Plaintiff motorcyclist was following the Defendant’s recycling truck. It was early morning. The sun was rising and the weather was foggy, and so visibility was reduced. When the recycling truck came to an intersection, he steered his truck to the right somewhat in order to go around a van which had pulled forward slightly into the intersection to better view oncoming traffic. The Plaintiff thought the recycling truck was pulling over, and attempted to overtake him. As the Plaintiff began to pass, the recycling truck commenced a left hand turn and the vehicles collided. The Defendant was driving the recycling truck using the steering wheel located on the right side of the truck. The Plaintiff testified that the recycling truck did not have its left turn signal illuminated prior to commencing the turn, while the Defendant testified that it was illuminated. The jury found that liability rested wholly with the Plaintiff.

The Plaintiff appealed the jury’s verdict as unreasonable. The Court of Appeal upheld the test from Housen v. Nikolaisen (2002 SCC 33), i.e. whether the conclusion reached by the jury is so plainly unreasonable and unjust that no jury, reviewing the evidence as a whole and acting judicially, could have reached it. It was not met in this case. It was open to the jury to find that the Plaintiff was wholly liable for the collision.

The Plaintiff also appealed on the grounds that defence counsel improperly adduced opinion evidence during the cross-examination of the appellant’s two expert witnesses. Specifically, the Plaintiff argued that opinion evidence about the cause of the collision was given which was unrelated to their expertise and that went directly to the ultimate issue for the jury. The Court of Appeal disagreed, stating 1) there is no longer a general prohibition on the admission of expert evidence concerning the ultimate issue and 2) the opinions given by the experts could not be said to have been outside of their expertise.

One of the opinions which the Plaintiff challenged as improper was an expert’s assertion that “it would be prudent for a driver to keep even farther back than usual from a very large truck with many lights.” The Court held that while this appears to be a common sense proposition not necessarily requiring expert evidence, no objection was taken to the line of questioning at trial. While the failure to object at trial is not determinative on appeal, the admission of this evidence could not be said to have occasioned a substantial wrong or a miscarriage of justice in this case.
The appeal was dismissed.

Read the full decision [PDF]
Joanna Sweet
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