When several parties are invovled in an accident, varying degrees of fault can be assigned to those parties. The vast majority of personal injury cases are settled without the need of a trial, but some cases lasts several  years. The 2016 Ottawa trial of the Gardiner v. MacDonald case was complicated due to the multiple defendants and the various contributing factors named in the negligence suit.

In late January 2008, five young adults were traveling in an SUV when they were tragically involved in a car accident. The driver of the SUV, Mark MacDonald, ran through a red light at the intersection of Riverside Drive and Heron Road in Ottawa, and was subsequently hit by an OC Transpo bus operated by the City of Ottawa. Three of the car occupants were killed, including the driver. A passenger, Ben Gardiner, was seriously injured and another passenger fortunately escaped with minor injuries.  None of the bus passengers were injured.

Police investigators determined that alcohol was a contributing factor to the negligence of the SUV driver. The bus driver, who had a green light at the time of the collision, was not charged with any traffic violations or criminal offences for his role in the crash. Following the accident and subsequent investigations, a civil suit for several million dollars collectively was filed against the City of Ottawa, the bus driver, Mr. MacDonald’s (the driver’s) estate, the car owner (the driver’s father), Intact Insurance and several commercial social hosts who had served alcohol to Mr. MacDonald before the accident.  

One of the surviving victims of the car accident, Ben Gardiner, was named as a plaintiff in this suit along with Brianne Deschamps’ family, representing one of the fatal victims of the crash.  Mr. Gardiner sought damages on the grounds that the car accident was responsible for his diminished physical and mental health. The accident resulted in fractures to his ribs, left femur and coccyx, as well as traumatic brain injury, which affected his short and long term memory.

The plaintiffs agree that the primary cause of the accident was Mr. MacDonald’ negligence, for which liability has been admitted. However, the suit alleges contributory negligence by the bus driver who, as a professional driver, allegedly breached his duty of care to Mr. MacDonald as well as his passengers.   The issue at trial was to determine the degree of fault, if any, of the City of Ottawa and the bus driver. 

At the conclusion of the trial, the judge found that the driver, Mr. MacDonald, was eighty percent responsible for the accident. Toxicology reports showed that there was alcohol in his system (nearly three times the legal amount) and witnesses reported seeing the vehicle driving at excessive speeds with no regard for traffic signals just before the accident.

The bus driver was found twenty percent negligent in the cause of the accident. Investigations found that the bus was travelling at approximately 65km/hr in a 60km/hr zone at the time of the accident and the driver was not as attentive as he should have been. Also, the bus driver’s testimony was held to be unreliable when compared to the information recorded in the bus’ electronic GPS device, which showed that the bus was speeding at different points before the accident. The excessive speed was deemed to be particularly inappropriate for the winter road conditions. The judge concluded that the bus driver did not take reasonable steps to circumvent the collision which likely could have been avoided had he driven more slowly and been more attentive.

With respect to joint and several liability, when more than one party is found negligent for a person’s injury, if one or more of the defendants cannot afford to pay their share of the damages, another defendant with ‘deeper pockets’ may be required to cover the amount of the claim.  In this case, Mark MacDonald’s coverage through State Farm Insurance was reduced to the mandatory minimum of $200,000, plus costs, because Mr. MacDonald held a G2 driver’s licence but was not permitted to have any alcohol in his blood.   

The parties agreed in this case that if the defendants, including the City of Ottawa and the bus driver, were found either entirely or partly liable for this accident under the Negligence Act, they would pay the difference between the limited coverage on the State Farm policy and the total amount of damages. In accordance with this agreement, the City of Ottawa was required to pay the lion’s share of the damages in the Gardiner case and the Deschamps estate.

This case addresses many of the common issues in car accidents, such as the fact that reckless behaviours such as drunk driving, speeding and distracted driving are the predominant causes of car accidents and associated fatalities.  Although Mr. MacDonald’s impaired driving was the primary contributor to this tragic accident, the bus driver’s inappropriate speed given the winter driving conditions was also named as a causal factor and his actions received greater criticism due a higher standard of care for a City bus driver. Further, a municipality has a duty of care in terms of public safety, and indirectly, through the actions of the City bus driver, the  municipality was contributorily negligent in the accident.

Mr. MacDonald’s insurance coverage was drastically reduced as a result of the determination of drunk driving. This serves as a reminder that a breach in the terms of one’s motor vehicle insurance policy, which includes committing offences such as driving while impaired, can result in a reduction of, or voiding of, insurance coverage.  If this occurs and there are no other parties invovled in the accident, it will have a significant negative impact of the injured party’s right to compensation.

If you have been involved in a car accident, call one our lawyers at Burn Tucker Lachaîne to get more information about your rights.  The first meeting is always free of charge.