Goff v. Kyte, EG et al.

Plaintiffs’ counsel: Timothy Boland | Russell Howe
Defence Counsel: David Neil | Peter Boekl

The trial of this action involved a serious single motor vehicle accident which occurred on July 9, 1992. The trial was heard over 17 days before Justice Shaughnessy.

The defendant Kyte lost control of his vehicle while travelling northbound over a steep hill on the 2nd Concession Road in the Town of East Gwillimbury, north of Newmarket. The vehicle became involved in a rollover on the downgrade of the hill and came to rest in a field on the side of the road. All three occupants were ejected. The right front seat passenger, Jonathan Rycroft, sustained fatal injuries and the rear seat passenger, William Goff, sustained catastrophic injuries, including paralysis from his chest down, and a head injury. Although liability and damages were both contested, the main issue at trial was an East Gwillimbury’s liability. The Town maintained its position throughout that the sole cause of the accident was the negligent operation of the vehicle by the defendant Kyte. It only offered a nominal contribution at the mediation and pretrial which would not have protected the plaintiffs.

The matter was referred to us by a lawyer who was aware of our interest in municipal liability cases. With the damages claims far exceeding the defendant Kyte’s $1 million policy limits, our objective upon being retained was to determine if any liability rested with the municipal road authority. We attended at the site and concluded that, other than a fairly steep hill, the road looked like any other gravel road in the area. The road was in reasonably good condition and the posted speed limit was reduced from 80k/h to only 50k/h as a driver approached the hill. We met with the investigating officers from the York Regional Police force and obtained the most complete police data available in relation to the accident itself and the accident history in the immediate vicinity. The police work up confirmed that the mechanical fitness of the Kyte vehicle played no role in the accident. There was no evidence that the defendant Kyte was impaired. A police accident reconstruction expert calculated that the speed of the Kyte vehicle was only 63km/h at the point where it began to slide on its roof in the first rollover phase. Other than a cursory analysis of the road surface there was no mention of any other problems with the road in the police file.

It became apparent that our only hope of succeeding against the municipality would be to demonstrate that deficiency with the geometry of the road at the accident site contributed to the loss of control by Kyte. We hired a civil engineer who specialized in roadway accident reconstruction who immediately undertook a comprehensive site survey. The survey revealed that deficiencies in the roadway included inadequate width at the top of the hill, restricted sightlines over the hill, a steep downslope to the north side of the hill, and inadequate signage to warn motorists of these conditions. We then familiarized ourselves with the geometry of the roadway and all applicable design standard manuals. We also undertook our own radar studies, which confirmed that motorists were routinely speeding.

Notwithstanding the presence of these deficiencies the challenge was to connect the non-repair of the road to Kyte’s loss of control of the vehicle and to gather sufficient evidence to prove that the municipality should have recognized and dealt with the defects before the accident happened. The Town argued that although the roadway did not meet the design standards for Ontario roadways, the roadway had been built many decades before and was not subject to geometric design standards. Although it was acknowledged that plans to reconstruct the accident hill had been approved as early as 1985, the Town claimed that it was hampered in its efforts to complete the project by funding restrictions, other urgent priority projects, and difficulties associated adjacent land acquisitions. If there were any delays associated with undertaking remedial work at the accident hill, the Town argued they were either beyond the Town’s control or policy decisions beyond judicial review. The Town claimed that it took appropriate steps to warn motorists of the accident hill by reducing the posted speed limit and installing appropriate signage.

We obtained records from the Town, which clearly established that for a considerable period of time before the accident the Town had been monitoring the frequency of accidents on its roadways. An accident locator map prepared by the Town showed a dense clustering of accidents in the vicinity of the accident hill. By detailed examination of each accident report, we were able to rule out all accidents that were not caused by geometric deficiencies. Analysis revealed there was an average of 4.4 single motor vehicle accidents per year at the accident hill from 1988 to 1992. What we could not prove was why these accidents were occurring.

All of the accident information was charted and a separate map was prepared which was filed as an exhibit at trial and referred to in our cross-examination of the Town’s engineer to show what the Town knew about the accident hill. We successfully argued that even though we had no evidence to submit as to how these other accidents occurred, their existence had probative value in terms of the Town’s knowledge of a dangerous condition on the accident hill. In response to a request by Town council, the engineer had made various recommendations in a memorandum in the fall of 1991 which he testified in chief were implemented to reduce vehicle speeds at the accident hill. The Town’s engineer acknowledged on cross-examination that a sharp crest of a hill is an undesirable design feature because of the safety concerns associated with restricted sightlines. He also admitted that reducing speed limits does not always deter motorists from speeding and that drivers in general do not usually adjust their speed to compensate for Sightline restrictions. Following the accident, the Town installed a flashing amber light with a “Steep Hill” sign. The engineer’s explanation for not installing the sign earlier was that the Manual of Uniform Traffic Control Devices (MUTCD) did not mandate the installation of such assignment at the location of the accident hill. We argued that discretion always rests with a municipal engineer to use non-standard signage when warranted.

In his Reasons for Judgment, Shaughnessy J. Found that the evidence of previous accidents on the roadway was relevant and had probative value in terms of the Town’s knowledge of the dangerous condition on the accident hill. His Honour concluded that our approach of focusing on single vehicle northbound collisions where alcohol was not a factor was particularly helpful in understanding what the Town knew or ought to have known about what was happening at the accident hill. The internal recommendations made by the Town’s engineer in the fall of 1991 was further evidence that the Town had knowledge of the roadway was not safe. The installation of signs in accordance with the Town engineer’s recommendations was found to be ineffectual in morning motorists of reduced sightlines and the significant downgrade over the crest of the accident hill.

In apportioning 60% liability to the defendant driver Kyte and 40% to the defendant Town, Shaughnessy J. Held that the Town had knowledge of the geometric deficiencies, but failed to take appropriate remedial action to address them. He found that the significantly reduced sightlines and the steep down-grade, compounded with the lack of adequate signage to warn motors of these conditions, were contributing causes of the motor vehicle accident. Immediately following the accident, the Town approved the appropriate funding requirements and completed the entire reconstruction project by November 1992, 6 months following the accident. The final award was in excess of $5 million.