Quinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.
***
Three guys, installation of a new motor into a GMC pick-up truck, and a few beers … what could possibly go wrong?
The three men decided, after having had a few beers, and lunch, they would test the truck out across a farmer’s field … a little off-road exercise, if you will, to see if the new motor would stand up.
The driver, Robert Tremblay, took it nice and slow through the very tall grass in the field. His speed was only slightly faster than walking speed.
Robert’s friend, Rejean Proulx, who had helped install the motor, sat shot gun in the cab and because the S-10 pick-up is only a two seater, Robert Tremblay’s step-son Shane Landreau, who had also helped install the motor, sat in the truck’s box.
Not to worry about Shane’s comfort; Shane hoisted a cooler up into the box and sat comfortably on the cooler facing forward, while holding onto the vehicle’s roll bar. It wasn’t the first time Shane had sat in the box of a truck. He had sat in the box on fishing trips and camping trips without any incident.
The new motor seemed to be working perfectly fine for the first 250 metres, at which point the truck suddenly plunged down into a four- to five-foot trench, which had been caused by a wash out, in an unmarked ditch.
The two men who sat in the cab of the S-10 were thankfully unharmed. For Shane, who sat in the box, it was a different story. Shane’s face smashed into the roll bar causing him injuries, including a laceration to his right cheek, a puncture below his lower lip, dislocation of four upper teeth, fractures to a top and bottom molar, injuries to his shins resulting in permanent loss of sensation in his shins, as well as some injury to a finger and big toe. He also suffered some emotional damage that lingered long after the accident.
Shane sued the driver, his step-father Robert Tremblay as well as the registered owner of the truck (his mother) for damages.
Should Shane be allowed to collect? When he climbed aboard the box and set himself down on the cooler, he knew the driver had been drinking. Shane had “had a few” himself. He also knew the vehicle was going off road. He was an adult. Nobody put a gun to his head and ordered him on board. It was a pure accident after all. The driver didn’t do anything on purpose. The grass was so high, you couldn’t see the ditch. Accidents happen!
On the other hand, why shouldn’t the driver, Tremblay, pay? It was, after all, Tremblay’s negligence that caused the accident. He was the driver. When you choose to be the driver and you have passengers in your vehicle, aren’t you responsible for their safety too? One would think!
In this case, the Judge who heard the trial was pretty clear. The Judge said that the only way Shane could be held responsible for his own injuries was if he knew that risk to him was virtually certain when he sat himself down on that cooler. It was clear Shane did not know that risk was virtually certain. He had travelled safely in the box of a truck on previous camping and fishing trips.
That left the driver, Tremblay. The Judge found that Tremblay assumed the responsibility for the care and safety of his passengers when he put himself behind the steering wheel of the S-10 pick-up truck. The Judge found that Tremblay was the sole cause of the accident. The Judge said;
“But for Tremblay’s negligence, the accident would not have happened and [Shane] would not have struck his head against the roll bar.”
The Judge found that Shane’s pain and suffering was worth $60,000.
The Judge was not through yet. He had a little monetary pain for Shane too. The Judge found that even though the accident was caused by Tremblay’s negligence, Shane had failed to take reasonable precautions to protect himself from the consequences of the driver’s negligence. The Judge found that because Shane had made a choice to be unsecured in the back of the truck he had contributed to the negligence and was responsible for 35 per cent of his injuries. That meant that Shane actually received only $39,000.
Lessons to be learned:
1) There are always two sides to every story. You need a good lawyer to tell your side of the story to a judge.
2) Think, Think, Think. If you are the driver of a motor vehicle, think about the safety of yourself and everyone on board.
3) If you are the passenger, think about your own safety. So for example, don’t pile into a vehicle if you know the driver has been drinking. And of course, always fasten your seat belt. If you don’t, and you are injured in a car accident, the court will hold you partially responsible for any injury you may suffer.
