Summary

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Summary

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Torts – Negligence – Contributory negligence – Motor vehicle accidents – Whether standard of care articulated in McEllistrum v Etches, [1956] S.C.R. 787, should continue to prevail – Whether doctrine of contributory negligence should be narrowed on basis that otherwise negligent conduct by children can be excused because they are notoriously forgetful when distracted or confused – Given increasing levels of deference shown to trial judges and the decreasing scope for error correction on appeal, whether the law of negligence should evolve in a manner favouring consistent outcomes – What is appropriate role of “demeanour” in assessment of testimonial evidence and whether trial judges entitled to impugn witness credibility on basis of “demeanour” alone.

Dean Saumur was badly injured when struck by a car while crossing a busy street in Hamilton on his way to school on May 14, 2002. He was almost 10 years old at the time. The driver of the car settled the action with the plaintiffs and the City of Hamilton without admitting liability. The plaintiffs, Dean Saumur and his mother, then claimed from the City for negligence. As the parties had agreed upon the quantum of damages, the trial judge was only required to decide issues of liability and apportionment. That determination focussed on what time the accident occurred (i.e., whether it occurred during the period of time when the crossing guard employed by the City of Hamilton was supposed to have been present) and whether Dean should be found to be contributorily negligent.

The trial judge apportioned liability in negligence equally between the driver of the vehicle and the City of Hamilton. The trial judge held that contributory negligence by the respondent, Dean Saumur, was not proven on a preponderance of the evidence. The Ontario Court of Appeal dismissed the City of Hamilton’s appeal on the basis that the trial judge had not made any reviewable errors; in particular, it held that the trial judge applied the correct legal standard of care, namely the standard of a reasonably prudent 10-year old of like intelligence and experience, in concluding that no contributory negligence should be attributed to Dean Saumur.

Lower Court Rulings