Full Liability Upheld Where Jury’s Conclusions and the Admission of Expert Evidence Not Patently Unreasonable


Hamilton v Bluewater Recycling Association et al (2016 ONCA 805) involved a motorcyclist (Hamilton) who tried to overtake a recycling truck as the truck turned left. The vehicles collided and Hamilton was grievously injured. Hamilton brought a personal injury action for damages.

At trial, the jury found Hamilton 100% liable because a reasonably prudent motorcyclist would not try to overtake a recycling truck and a reasonably prudent motorcyclist would have enough control to stop in unexpected situations. Hamilton appealed the decision, and the appeal was dismissed.

The issues on appeal were:

  1. Was the jury’s decision unreasonable because there was evidence proving Hamilton should not have been 100% liable?
  2. Was the opinion evidence of two of the plaintiff’s expert witnesses improperly adduced because the evidence related to causation and went beyond the scope of their expertise?
  3. Was the jury’s second answer a fundamental error because it addressed an act of negligence not argued at trial?

1) Another Jury Could Have Reached the Same Verdict

The Court of Appeal noted that the that the appellants faced a high threshold in trying to overturn the jury’s verdict for being unreasonable. The test is 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 the same decision. In this case the jury was properly instructed and asked to consider the onus on both the Hamilton and the truck driver. Even though another jury may have found some liability on the truck driver, it cannot be said that no jury would have found Hamilton fully liable.

2) The Expert Evidence Was Not a Miscarriage of Justice

One of the appellants witnesses, Fricker, was an accident reconstruction expert. The appellants took issue with the fact that Fricker conceded that in an “ideal world” Hamilton would have waited instead of overtaking the truck. However, Fricker also said he was not in a position to judge what an average driver would do. The Court of Appeal found this evidence tentative at best and not outside of Fricker’s area of expertise.

Another one of the appellants witnesses was Dr. Rudin-Brown, a human factors expert. Dr. Rudin-Brown was probed on her assumptions about other lights on the truck which could have contributed to a misunderstanding by Hamilton. Dr. Rudin Brown also spoke to Hamilton’s lack of experience as a motorcycle driver. The Court of Appeal found that Dr. Rudin-Brown’s answers were not outside of her expertise, and in any event, were ambiguous.

3) The Jury’s Conclusion Was Reasonable

The appellants took issue with the jury’s finding, that “[a] reasonably prudent motorist should have had enough control to navigate an unexpected situation and come to a complete stop if necessary.” The appellants argued that Hamilton’s conduct after he pulled out to pass was not part of the respondent’s case. The Court of Appeal was not persuaded that the jury’s conclusion was so plainly unreasonable and unjust that no jury acting judicially could have reached it. In addition, the jury’s initial finding was directly responsive to the defence theory at trial which showed that the jury understood their task.  The appeal was dismissed.


What the Insurer Should Know

This is another illustration of the difficulties in trying to overturn a jury trial decision.

Mitch Kitagawa & Sasha Willms, Summer Student