Legal Analysis

Truck accidents are inherently complex due to the combination of legal, regulatory, and practical issues involved. These accidents often lead to severe injuries or fatalities, and the subsequent legal proceedings can be challenging for several reasons. Determination of liability will oftentimes involve multiple parties, which can prove difficult and hinge on expert evidence. Factoring in insurance claims as well as medical and financial consequences can complicate truck accidents even more.

Issues of Liability

Claims resulting from truck accidents can take a variety of forms, such as negligence, wrongful death, personal injury, property damage, or product liability. Determining who is responsible for a truck accident is crucial especially because liability can fall on multiple parties, including the truck driver, the trucking company, maintenance contractors, cargo loaders, or vehicle manufacturers. Moreover, through vicarious liability, employers can be held liable for their employees actions if they were operating within the scope of their employment.

In Ouellette and Babineau v Atlantic Bandag Limited, 1995 CanLII 11015, the court addressed the specific issue of liability. In Oullette, two tires on plaintiffs’ truck blew out while carrying six tons of asphalt for a paving job. Plaintiffs had purchased the tires from defendant and had returned the outside tire within days due to a slow leak, with defendant repairing and reinstalling it. The issue became whether defendant negligently repaired and rethreaded the tire. Finding defendant liable, the court accepted plaintiff’s expert’s opinion as assertive, logical, and supported by the evidence while defendant’s expert’s evidence was purely hypothetical with no evidence to support his conclusions.

While outlining the difficulties in assessing liability, Oullette also demonstrates the importance of expert testimony in determining liability.

Negligence & Contributory Negligence

Most truck accident cases are built on proving negligence, which requires demonstrating that:

• Defendant owed a duty of care, for example, following traffic laws or maintaining the truck);
• He breached that duty, for example by speeding or driving while fatigued;
• The breach caused the accident; and
• The accident resulted in damages.

It is well established that a plaintiff bears the burden of establishing the above elements. Absent special circumstances, the plaintiff must show that on the balance of probabilities, his or her injury would not have occurred but for the negligence of the defendant. However, issues of duty and causation can be complex. As an example, in the motor vehicle accident case Kremer v Walker, 2010 NSSC 443 (CanLII), the court found that defendant was 100% liable for the accident, however noted the number of factors that complicated the issue of causation, namely, that the plaintiff had various ongoing health problems, that the plaintiff had pre-existing injuries, the effects of long term obesity on plaintiff, the lack of professional medical evidence, and plaintiff’s credibility. In light of these factors, the court found that plaintiff did not meet his onus of proving that defendant’s conduct caused injuries and therefore was not entitled to damages from defendant. This case demonstrates that proving what injuries were caused by a defendant’s conduct is often one of the bigger issues in a motor vehicle case, as defense lawyers will investigate whether plaintiff had any pre-existing injuries or health problems that may be the cause for the injuries

If a court finds that the plaintiff was negligent and that negligence contributed to the cause of the accident, his or her damages may be reduced proportionately based on the degree of fault. In assessing negligence, courts will determine whether the plaintiff complied with the standard of care required:

The determination of fault of each party, and the consequent apportionment of liability, requires an assessment of the extent to which each party failed to meet the standard of care applicable in the circumstances. Clyke v Blenkhorn, 1958 CanLII 347 (NSCA).

For example, in Furlong v Sexton Trucking Ltd., 2019 NLSC 202 (CanLII), the standard of care was that required of an ordinary driver on a highway. The court found plaintiff breached her duty of care, twofold: first, she pulled her vehicle to the side of the road, but not off the travelled portion, abruptly, notwithstanding that she was aware there were two vehicles, one of which was a loaded transport truck, traveling very close behind her at highway speeds; and second, she failed to look in her rear-view mirror to determine how close these vehicles were.

As another example, in Tibbetts v Murphy, 2015 NSSC 280 (CanLII), a motorcyclist collided with a truck. After hearing all the evidence, the court found that both parties failed to see each other, with plaintiff in a slightly better position to see defendant’s truck, given its size. Furthermore, the court found that plaintiff was solely focused on the road and should have seen his friend swerve from the truck prior to collision. Ultimately, the court apportioned two third liability to plaintiff and one third to defendant, with the damage award adjusted accordingly.

Insurance & Section B Benefits

All licensed vehicle owners in Nova Scotia, New Brunswick, and Prince Edward Island are required to carry insurance, inclusive of mandatory Section B benefits. In Newfoundland and Labrador, Section B benefit coverage is optional.

Section B provides no fault accident benefits insurance to certain persons deemed to be insured and are paid to an injured party by their own insurance company. Benefits under Section B include payments for medical expenses, death, dismemberment, and total disability and income loss. Section B can also include massotherapy, physiotherapy, orthopedic pillow, dental treatments, kinesiology and gym, and psychologist. In essence, Section B benefits may cover treatment that a doctor deems medically necessary for recovery. In Nova Scotia, New Brunswick and Prince Edward Island, the benefits max out at $50,000 and can last up to four years. In the case of fatality, funeral expenses of up to $2,500 are paid to the deceased family, with $25,000 and $5,000 in death benefits provided to the spouse or dependents, respectively.

Litigative issues can be raised in respect to Section B in itself, for example, the nature and scope of a plaintiff’s injuries from a motor vehicle collision, whether the person is considered an “occupant” of the vehicle, which insurance company should pay Section B benefits, and whether those injuries render the plaintiff disabled in accordance with the contractual provisions under the Section B policy. In order to timely claim any section B benefits you’re entitled to, you should apply straight away, in accordance with your policy. Experienced counsel can help you navigate your claim and seek the benefits you deserve.

Damages

When a plaintiff has proven liability on the part of the defendant, he or she may be entitled to such damages as:

1. 1. General damages: an award of general damages for pain and suffering is intended to provide solace to a plaintiff by providing opportunity to replace aspects of life lost to injury that are otherwise uncompensated. General damages in particular cases are based on the facts of the case, however comparable case law can be informative. It is important for an injured party to mitigate any damages, as any award may be reduced to the extent a court finds otherwise. For example, in Ryan v Curlew, 2018 NLSC 72, a plaintiff’s award was reduced by 10% for failure to take medical/health steps advised to her.
   2. Cost of future care: damages for cost of future care are a matter of prediction, however must be assessed at trial (subject to modification on appeal). Courts will rely on evidence as to what care is likely to be in the injured person’s best interest and will then calculate the present cost of providing that care, making adjustment for the chance that the future may differ from what the evidence at trial indicates.
   3. Special damages: special damages include items such as the cost of prescription drugs or travel costs to attend therapy. These damages must be strictly proven, for example, providing mileage and costs associated, however may be offset by insurance or Section B benefits.
   4. Past/future loss of earning capacity: the value of plaintiff’s uninjured earning capacity, past loss of earning capacity, and future loss of earning capacity all fall within this category of damages. In order to determine an appropriate award under this category, courts will look to a plaintiff’s past work and the continuation of future employment if not for the accident.
   5. Past/future loss of housekeeping capacity/cost of valuable services: under this category, plaintiff can be compensated for loss of capacity to do housework, even though someone else may be performing the household tasks and may not be paid for doing so. Awards average $25,000 across Canada, with a high of $45,000 in Ontario, $30,000 in Newfoundland, and $15,000 in Nova Scotia.

Limitation Period

The statute of limitation for a personal injury lawsuit provides for a two year period in Nova Scotia, Prince Edward Island, New Brunswick, and Newfoundland and Labrador. There are, however, circumstances where this period can be extended. These timelines can vary based on each Provinces Limitations’ Acts:

• Nova Scotia: Limitations of Actions Act, Paragraph 8(1)(a)
• Newfoundland and Labrador: Limitations Act, Paragraph 5(a)
• Prince Edward Island: Statute of Limitations, Paragraph 2(1)(d)
• New Brunswick: Limitations of Actions Act, Paragraph 5(1)(a)

The limitations period is one of the first things a lawyer will look at when assessing a motor vehicle claim. It is essential to act quickly once a claim arises so that it is timely brought before the courts, the injured party is properly compensated, and the wronging parties are held accountable.

Should I seek legal advice?

In light of the complexity and interplay of issues in motor vehicle accidents, as well as the potential gravity of injuries involved, obtaining skilled counsel can be essential to recovery. Experienced lawyers will scrutinize the facts of your case, ascertain relevant expert witnesses to testify on your behalf, and negotiate with insurance companies to get you the compensation you deserve.