Municipalities have a duty to keep roads in a reasonable state of repair to protect “ordinary drivers” from an unreasonable risk of harm – and the ordinary driver is not expected to be perfect, according to the Ontario Superior Court of Justice.
In Deering v. Scugog (Township)  O.J. No. 4229 (S.C.J.) 19-year-old Shannon Deering was driving her 16-year-old sister Erica and three friends from Port Perry to Oshawa on the evening of August 10, 2004. The group of friends was going to the movies.
Shannon was driving up the third and largest of three hills on Coates Road West in Durham Region when the headlights of an oncoming vehicle appeared over the crest of the hill. To Shannon the headlights of the oncoming vehicle appeared to be in her lane. Shannon steered right and lost control of her vehicle. The Deering vehicle rolled and smashed into a culvert. The other vehicle continued down the hill and was never identified. Both Shannon and Erica were left quadriplegics as a result of the crash. Two other occupants of the vehicle sustained serious injuries. There was no alcohol or drugs involved in the crash. Shannon was driving approximately 10 km per hour above the speed limit.
Coates Road West is a low volume rural paved two lane roadway. In August 2004, the road had no centre line, no lane marking and no signage. The speed limit was an unposted 80 km/hr. Coates Road West is a boundary road and in August 2004 its maintenance was under the jurisdiction of both the Township of Scugog (“Scugog”) and the City of Oshawa (“Oshawa”).
The Deering sisters along with the other two injured passengers sued Oshawa and Scucog on the basis that they failed to keep Coates Road West in a reasonable state of repair. Erica Deering and the other two passengers also sued Shannon Deering for contributing to the crash. Shannon’s insurer agreed to tender its policy limits of $1,000,000 prior to trial. Prior to trial, Shannon, through her counsel, admitted that she was at least 1% at fault for the crash.
Sight distance was limited for drivers on Coates Road West as they approached the crest of the hill where the accident occurred. In addition there was a horizontal deflection in the alignment of the roadway near the top of the hill. This horizontal deflection is what caused Shannon to perceive that the oncoming vehicle was in her lane.
The issue of liability for the crash proceeded to trial before the Honourable Mr. Justice Peter Howden in Oshawa in May 2010. The plaintiffs alleged that the roadway was hazardous in the area of the hill because of a combination of factors including the limited sight distance, the lack of a centerline, an inappropriately high speed limit, narrow lane widths, narrow shoulders and the presence of a culvert close to the roadway edge.
Scucog and Oshawa argued that Coates Road West was similar to countless other low-volume rural roads and that the crash was caused by Shannon Deering’s speed and inexperience as a driver.
Justice Howden thoroughly reviewed the case law with respect to the issue of what constitutes non-repair. The defendants made submissions that the Court ought to follow the minority dissenting opinion of Bastarache J. in Housen v. Nikolaisen, 2002 SCC 33,  2 S.C.R. 235 and find that even if the road could have been safer as long as a driver using reasonable care could have negotiated the road safely then there is no liability on the road authority. The plaintiffs argued that the municipality had an obligation to make the road safe for ordinary drivers, which include drivers who may have been partially at fault for their own crash.
Justice Howden concluded that municipalities have a duty to keep their roads in a reasonable state of repair so as to protect “ordinary drivers” from an unreasonable risk of harm. His Honour described the concept of the “ordinary driver” as follows:
The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty of repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided…The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.
Justice Howden found that the hill upon which this crash occurred was “an accident waiting to happen” because of the short sight distance, horizontal deflection, 80 km per hour speed limit and its narrow width and narrow shoulders. His Honour found that the hill, without a painted centerline, presented an unreasonable risk of harm for an ordinary driver, driving at or even below the speed limit of 80 km per hour at night.
Justice Howden concluded that the hazardous road condition could have been eliminated by a painted centerline and a reduction in the speed limit.
The municipalities were found liable. Shannon Deering was found to be contributorily negligent for driving 90 km per hour up the hill where the crash happened. Fault was apportioned at 2/3 to the municipalities and 1/3 to Shannon Deering.
Deering reviews the standard of care that road authorities in Ontario must meet to fulfil their duties under the Municipal Act, 2001. The standard of care involves an understanding of how a reasonable road user would have traveled the road in the circumstances. Justice Howden took advantage of recent findings in human factors engineering and design principles to determine what the reasonable road user would have done. The conclusion that the reasonable user is not a perfect driver, but an ordinary and fallible one, is fundamental to the court’s findings is
The decision also examines how road design manuals help to establish the standard of care. In effect they provide guidelines for the court. Justice Howden found that standards that have been adopted by engineers and road authorities must be followed absent a valid or compelling reason to do otherwise.
In order to be successful in these cases plaintiffs’ counsel must develop persuasive evidence concerning the impact of substandard design on the reasonable user of the roadway. In addition, counsel must establish that accepted industry standards have not been met and that because the road is substandard that it poses an unreasonable risk of harm. Counsel must also ensure their experts have a firm grasp on the interface between the substandard road design and driver behaviour.