June 5, 2013 by Canadian Underwriter
The Ontario Court of Appeal last week overruled part of the verdict of a lawsuit against a bar that served alcohol to a driver who crashed his car and the injured plaintiff.
Kyle McLean was a passenger in a vehicle driven by Matthew Knox in June 2005. They had been drinking together at a restaurant and bar in Renfrew, about 90 kilometres west of Ottawa, when they got into the same vehicle, which Knox drove.
The “evidence suggests” both Knox and McLean were “seriously intoxicated” when Knox’s car crashed, according to background provided with the Ontario Court of Appeal decision released May 31.
McLean, who suffered a concussion and three fractures, sued both Knox and Finnigan’s Roadhouse, officially known as 1197854 Ontario Inc., which is where they were drinking.
In late 2011, Mr. Justice Robert J . Smith of the Ontario Superior Court of Justice ordered Finnigan’s to pay McLean damages of $141,378 plus costs. The jury in the trial found that Knox was 84% liable, McLean was 15% liable and Finnigan’s was 1% liable.
In the original trial, The Personal Insurance Company was named as a defendant while Pembridge Insurance Company was a statutory third party. Neither carrier was named as a party in the appeal.
Last Friday, the Ontario Court of Appeal ruled that the questions put to the jury on apportionment of liability were flawed and that the jury should have been instructed to assess Finnigan’s liability for damages to McLean from over-serving Knox and from over-serving McLean. It also restored the jury’s verdict that awarded McLean nothing in damages for future income loss.
The jury’s award to McLean included: $13,720 in damages for past income loss; $52,600 for pain, suffering and loss of enjoyment of life; and $3,000 for future care costs, including homemaking and household services.
Judge Smith refrained from entering the jury’s verdict of $0 for future income loss, assessing future income loss himself at $117,200. Finnigan’s successfully appealed that part of Judge Smith’s ruling.
Among other things, the Court of Appeal noted that McLean “earned as much income, or more, following the accident as he had earned before the accident.”
McLean, by cross-appeal, had asked the Court of Appeal to set aside the jury’s verdict and order a new trial, based in part on the conduct of a defence lawyer.
But the Court of Appeal declined to order a new trial, noting that although Judge Smith had described the defence lawyer’s conduct as “pushing the boundaries,” Judge Smith had added the lawyer’s behaviour was “not so extreme as to be a major factor in deciding costs.”
The Court of Appeal did agree with McLean’s contention that the questions put to the jury on apportionment of liability were flawed, ruling that the Court of Appeal itself should now apportion of liability.
“If the parties are unable to resolve the apportionment issues, they may make brief written submissions, not to exceed eight pages, within fifteen days of the date of release of these reasons, on the issue of the apportionment of liability for the plaintiff’s damages,” Madam Justice Eileen Gillese wrote on behalf of the Court of Appeal May 31. Judges Marc Rosenberg and Paul Rouleau agreed with the ruling.
Court records indicate that Finnigan’s Roadhouse defended itself on the basis that McLean had been a “willing passenger in a car driven by person that he knew, or ought to have known,” was intoxicated.
“The trial judge accepted the bar’s contention that there was no need for the jury to apportion liability for the accident between the driver of the car and the bar,” the Court of Appeal wrote.
But the appeal court suggested that the jury should have been instructed to determine Finnigan’s liability both for causing or contributing to the accident — by over-serving Knox — and for causing or contributing to damages McLean had suffered, due to over serving both Knox and McLean.
“In considering the commercial host’s liability for the accident, the jury will have to make findings about, among other things, the amount that it served the driver and over what period of time,” Judge Gillese wrote.
“Where the driver and passenger were drinking together at the bar, those findings will be relevant when the jury considers how much the commercial host served the passenger and over what period of time, considerations critical to the jury’s apportionment of liability for the passenger’s damages.”
In the original trial, the jury was asked to state, in percentages, what degree of negligence it attached to each party, given that Finnigan’s had admitted 1% liability.
But the Court of Appeal suggested Finnigan’s was not necessarily only 1% liable, noting that prior to the trial, “Finnigan’s agreed to settle liability on the basis that it would admit that it was ‘at least 1% liable’ and McLean would limit his damages claim to a maximum of $1 million.”
Therefore, the Court of Appeal suggested, the jury should have been instructed to decide how much responsibility Finnigan’s had.
The Court of Appeal ruled that the jury should have been instructed to first apportion liability for the accident itself to Knox (for drinking alcohol) and to Finnigan’s (for serving him alcohol). The jury should then have been instructed to apportion liability for damages to McLean, which flow from over-serving Knox and from over-serving McLean.