Sep 12, 2021

If you were hurt in an accident caused by another driver’s negligence or their failure to take proper care, you have the legal right to sue them to recover compensation for any losses you suffered due to your injury.  Losses (or ‘damages’) can include any expenses associated with your injury, such as lost income (if your injury prevented you from working), rehabilitation expenses, and an award for pain and suffering.

The defendant in a car accident lawsuit will often try to argue that the accident was not their fault or due to circumstances outside their control; however, if they were charged for a traffic violation or criminal offence such as impaired driving, in connection with the accident, the courts will generally view this as evidence that the defendant was, in fact, responsible for the accident.  Alternatively, a defendant may argue that the accident was inevitable, for example, due to road and weather conditions, or due to an animal running onto the road, but again, the courts often find that a defendant could likely have avoided the accident if they took appropriate precautions and drove with due care.

In a recent personal injury lawsuit (Jones v. Jones, 2021), the defendant made a summary judgement motion to have the lawsuit against him dismissed on the grounds that the accident causing his passenger’s injuries was ‘inevitable’.  The defendant was being sued for damages by his wife (the passenger), who was seriously injured when the defendant’s motorcycle collided with a deer during a driving holiday in northern Wisconsin.  Upon colliding, the plaintiff, Mrs. Jones, was thrown from the motorcycle and spent nine days in a U.S. hospital before being able to return home to Ontario.

The case was tried in an Ontario court, where the burden of proof is on the defendant when putting forward a defence of ‘inevitable accident’, and a defendant must present a compelling argument why the accident could not have been avoided. In deciding this case, Judge Cassulo referred to the Supreme Court of Canada decision in Rintoul v. X-Ray & Radium Industries Ltd. (1956), where the judge stated that in order to make a successful defence based on ‘inevitable accident’ the defendant must demonstrate “on a balance of probabilities, that (a) he/she had no warning or indication of the hazard and could not be warned of the hazard by exercising reasonable care and skill, and (b) once the hazard was apparent, there were no reasonable steps open to the defendant such that the accident could not be avoided.”  Judge Cassulo also referred to personal injury lawsuits involving a vehicle striking a wild animal: Olsen v. Barrett (2002) and Tabaka v. Greyhound Lines (1999).  In Tabaka, the judge stated that the following factors are pertinent in determining whether a defendant was driving negligently: weather, road conditions, speed, vehicle condition, experience and familiarity with the road.

Judge Cassulo concluded that, based on the evidence, it was reasonable to infer that the defendant’s driving actions were negligent and caused the accident and further, this case cannot be dismissed in a summary judgement action. The judge based her conclusions on the following circumstances surrounding the incident.  The defendant was driving in the rain all day without safety gear, namely without driving googles or a helmet with a visor.  Once merging onto the highway, he did not drive at a safe distance behind other vehicles, but rather, sped up to pass the car ahead of him after spray from the car compromised his ability to see.  He then continued to drive well above the speed limit, despite wet road conditions, previous signs warning of elk crossing, and the fact that he was driving in an unfamiliar rural area surrounded by forest. The defendant was also distracted from the road just seconds before the accident, because he turned to tell the plaintiff that they were going to get wet, and this is why he didn’t see the deer before colliding with it. 

Judge Cassulo noted that the defendant’s summary judgement would have failed even if she had not made a negligence determination because the “availability of the inevitability accident defence under Wisconsin law is a genuine issue requiring a trial” and the defendant did not address the conflict of laws question. Further, under U.S. tort law, the courts in several states have criticized the unavoidable accident principle and condemned or abolished its application in automobile accident actions.

If you were injured in a motorcycle accident, pedestrian accident or other motor vehicle accident, talk to a knowledgeable Kitchener-Waterloo and area accident lawyer at Dietrich Law.  At Dietrich Law, our vast experience fighting for fair compensation for accident victims means that can well prepare for any argument a defendant may put forward, including the inevitable accident defence, and in the majority of cases, can successfully resolve your case without going to court.


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