On a winter night, 18-year-old Melinda Wasylyk was driving home from her first night of nursing college when she lost control of her vehicle twice on CR 88 – one of the busiest roads in Simcoe County (“Simcoe”) connecting Hwy 400 to Bradford. She crossed the centre line and was struck by an oncoming vehicle. Melinda suffered catastrophic injuries, with damages agreed upon prior to trial in the sum of $16 million. As a result of her brain injury, Melinda could not speak on her own behalf, having no recollection of the collision, or even purchasing her car 5 months earlier.
After hearing from 21 witnesses, Justice A. Casullo found that CR 88 was in a state of disrepair and that Simcoe failed to take appropriate steps to treat the roadway.
Simcoe blamed Melinda entirely for the collision. It hired an accident reconstruction engineer and winter maintenance expert who testified that CR 88 was bare and dry, that Simcoe had taken all reasonable steps to maintain the road and that it was Melinda who swerved onto the shoulder and crossed the centre line after trying to correct herself.
The plaintiffs retained an accident reconstruction engineer and a human factors expert to demonstrate that it was highly unlikely Melinda would have steered as rapidly or aggressively as Simcoe claimed and that there was a myriad of ways in which her vehicle could have arrived at its resting position without leaving the traveled portion of the roadway.
Justice Casullo rejected the PC Crash scenarios from both side’s experts, finding that such models were limited without knowing Melinda’s speed, steering inputs, or brake inputs and without skid or gauge marks on the road to suggest her direction of travel. Her Honour wrote: “Without the black box data there are too many unknowns at play. It is impossible…to determine with scientific accuracy the driver inputs made by Ms. Wasylyk. Given the competing findings that Ms. Wasylyk could end up at the final impact orientation on both a low and high friction surface, it appears to the court that the data could be manipulated to render a simulation that fit within either expert’s reconstruction theory.”
Justice Casullo, instead, relied on the evidence of first responders who took contemporaneous notes of the roadway being slippery. Her Honour also relied on the admissions made on cross-examination of Simcoe’s witnesses that Melinda’s loss of control occurred on the roadway and not on the shoulder. In particular, Simcoe’s police witness acknowledged, in cross-examination, that, if the marks left by the stretcher used by EMS remained visible in the shoulder in post-collision photographs taken hours after the crash, then tire marks left by Melinda’s vehicle would certainly have remained visible in the shoulder, had her car crossed on to it.
Given that police reconstructionist could not find such tire marks on the shoulder after a thorough search, Justice Casullo concluded that Melinda’s loss of control occurred on the slippery roadway itself.
Simcoe opposed the plaintiffs’ pre-trial motion to enter a forensic photographer’s enhanced police photographs which revealed key landmarks and the road surface condition which were otherwise too dark to appreciate. Justice Casullo’s ruling is the first civil case to accept such enhanced images and the efforts that must be undertaken to provide the court with the requisite assurances for their admission.
As for Simcoe’s maintenance efforts, under cross-examination, its road patroller acknowledged that he instructed all plows to be out servicing roads. The plaintiffs were able to establish that the plow operator responsible for CR 88 had remained in the yard for over three hours instead of servicing the road at key times as expected. Although the plow operator claimed his records were contemporaneous and showed that he had serviced CR 88 three times, with his last pass occurring minutes before the collision, plaintiffs’ counsel were able to prove, through cross-examination, that the plow operator was not a credible witness and that his records were unreliable. Furthermore, any claim that he had sanded CR 88 moments before the collision was contradicted by the observations of first responders who did not see any sand on the road; the admission of the patroller who did not observe any sand in the police photographs; and the testimony of an independent witness who had no recollection of seeing a plow pass by in the oncoming lane. Simcoe also downplayed that the police had to recruit a plow operator from another jurisdiction to sand the road before CR 88 was reopened.
Justice Casullo agreed with the plaintiffs’ winter maintenance expert that the disrepair was the result of a combination of snow that had melted and refrozen and compaction ice.
Simcoe appealed and argued there were a number of palpable and overriding errors in the trial decision.
Writing for a unanimous OCA, Justice Doherty rejected all of Simcoe’s grounds of appeal. Although the plaintiffs’ winter maintenance expert tendered a number of theories for how the ice formed (i.e. refreeze and snow compaction), Justice Doherty reinforced that a plaintiff need not prove the cause of the disrepair to establish liability against a road authority: “…the two explanations for the icing of the road are not mutually exclusive, or even inconsistent with each other…It was not necessary in establishing that the road was in a state of disrepair to demonstrate how the road became icy…”
The appeal decision supports the high level of deference accorded to a trial judge’s allocation of fault. Simcoe referred the OCA to several trial decisions in which contributory negligence had been found against drivers who had an initial loss of control but failed to adjust their driving to the conditions. Justice Doherty did not find that those cases provided a reason to interfere with Justice Casullo’s decision: “…the loss of control twice in a short timespan could reasonably be viewed as evidence of just how slippery and hazardous the road was at the relevant time and place…Findings of negligence or contributory negligence turn on the evidence of the particular case and, more importantly, the assessment of that evidence by the trier of fact who heard the evidence.” After concluding that the evidence of the only eyewitness to the collision “provided little assistance” as to the time Melinda had to react after her first loss of control or what steps she took in response, the OCA found no palpable and overriding error in Justice Casullo’s findings.
