The Ontario Court of Appeal confirmed that the test for whether a road was in a a reasonable state of repair is an objective test: that is, it is to be assessed through the lens of an average driver.
The issue came to head in this personal injury case because the defendant driver was speeding excessively and did not have his hands on the wheel at the time he lost control of the vehicle as it crossed over a dip in the road, eventually leading to a horrific crash that caused significant losses to the occupants.
The driver asserted that the dip in the road was a state of disrepair that caused or contributed to his loss of control. The trial judge disagreed, concluding that there was nothing about the road that constituted a state of non-repair, thereby relieving the Municipality from any and all liability.
The appeal was launched because the driver of the accident thought the trial judge made an error by looking at the way he was driving rather than assessing the state of the roadway vis-à-vis an ordinary driver. But the appellate court disagreed. Reading the lower court decision as a whole, the appellate court was satisfied that the trial judge assessed the state of the road against an average driver. Indeed, the trial judge came to the conclusion that the road was of good design because of:
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- the witnesses who lived in the area describing how they were able to drive safely over the dip;
- the absence of any known prior reported collisions around the dip since 1993;
- the police re-enactments driving over the dip at speeds up to 120km/h without a problem;
- the applicable guidelines that suggested the dip was not of a magnitude that made it unsafe; and
- the applicable guidelines regarding signage for road hazards which suggested that no warning signage was necessary for the dip in question.
As can be seen from the foregoing, none of these factors involved a look at how the defendant driver was operating his vehicle at the time: indeed, it was all objective and extrinsic criteria leading the judge to conclude, on a balance of probabilities, that the road was not in a state of non-repair, for the average driver, at the time of the accident.
Stamatopoulos v. Harris, 2022 ONCA 179
https://www.canlii.org/en/on/onca/doc/2022/2022onca179/2022onca179.html