Court of Appeal failed to appreciate dual function of statutory right-of-way provisions

Supreme court | Civil Procedure

TRIAL

Court of Appeal failed to appreciate dual function of statutory right-of-way provisions

Boy, aged four, suffered catastrophic injuries when he ran onto highway and into path of oncoming school bus. Jury concluded no negligence by bus driver that caused or contributed to boy’s damages. Court of Appeal ordered new trial, referring to provisions concerning duty of pedestrians to yield right of way to vehicles and finding that trial judge improperly invited jury to treat boy like adult, and therefore find him responsible for accident. Appeal allowed; cross-appeal dismissed. Court of Appeal failed to appreciate dual function of statutory right-of-way provisions. Although boy’s contributory negligence ruled out as matter of law due to his young age, statutory right-of-way provisions continued to inform standard of care bus driver owed to all pedestrians. Absent special circumstances, where driver has right of way, he can reasonably proceed on assumption that others will follow rules of road and yield right of way to drivers. Trial judge’s instructions served only to delineate standard of care applicable to bus driver and did not improperly invite jury to find boy legally responsible for accident. Nor did trial judge err in asking jury whether situation was one in which bus driver should have expected children to be present. This was further factor that had to inform jury’s ruling on whether bus driver negligent.

Marshall (Litigation Guardian of) v. Annapolis County District School Board (June 7, 2012, S.C.C., McLachlin C.J.C., Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34189) Decision at 198 A.C.W.S. (3d) 550 was reversed. 214 A.C.W.S. (3d) 796 (12 pp.).

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