The interpretation of 'ordinary driver' in Ontario's courts has expanded to include those drivers who "sometimes make mistakes," and has thus increased municipalities' exposure to liability for not keeping safe roads.
Steven Stieber, a managing partner at StieberBurlach LLP, spoke as a panel member during 'The Rising Cost of BI Claims: Why You Should Be Concerned,' at the RIMS Canada 2011 Conference in Ottawa.
Stieber referenced the 2010 Ontario Superior Court of Justice case Deering v Scugog. In this case, a novice driver was driving a group of friends down a rural road at night to see a movie. As she drove up over the crest of a hill (10 km-h faster than the speed limit), the headlights of an oncoming vehicle appeared to be in her lane. She swerved and lost control of the vehicle.
Both she and her sister, a passenger in the car at the time, were left quadriplegic.
Both sisters sued the municipality of Oshawa and Scugog. They alleged the municipality had failed to keep the road safe because no speed limit was posted and the road had no painted centre line at the time of the accident.
Citing the written decision from the case, Stieber said the court ruled: "The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient or the especially perceptive driver or one with exceptionally fast reflexes but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes."
"So we have to protect that driver, although there was some degree of contributory negligence," said Stieber. "That is a very, very difficult standard to meet. Apart from the [issue of the] resources available to meet it, the costs make it very difficult to meet it."