September 28, 2018
Bélanger, Savard, Samson (ad hoc)
Appeal from a judgment of the Superior Court granting an application to dismiss. Allowed.
The appellant, who suffered bodily injury when the snowmobile he was driving collided with the respondent’s, brought an action against the respondent, claiming $865,972. The appellant’s spouse, an indirect victim, also claimed damages of $20,000. After the plaintiffs declared their cases closed, the defendant presented an application to dismiss on the ground that there was no evidence establishing his liability. The trial judge accepted the respondent’s ground for dismissal in light of the appellants’ evidence alone. She excluded the application of any factual or legal presumption of liability and concluded that the appellants had failed to establish the respondent’s fault.
The judge correctly directed herself when finding that there was no evidence of the respondent’s fault. She did not commit any determinative error in her assessment of the evidence concerning the speed of the snowmobiles or the location where the victims’ bodies and the vehicles were found after the impact. She erred, however, by setting aside the application of the presumptions of liability of the owner and the driver set out in sections 108 to 114 of the Automobile Insurance Act (CQLR, c. A-25), which are also applicable to bodily injury, and by consequently dismissing the appellants’ action.
Although she heard all the evidence, she decided the matter on the sole basis of the evidence presented by the plaintiffs. In this case, neither party established a fault having caused the accident on a balance of probabilities. Under section 113 of the Automobile Insurance Act, the appellant and the respondent, who were the drivers and owners of their respective snowmobiles, are therefore equally liable. Moreover, this liability is solidary with respect to third parties. Consequently, the appeal is allowed, and the Court finds the respondent liable for 50% of the damages sustained by the appellant. The respondent is ordered to pay the appellant victim $57,097 for loss of income and various expenses claimed. He must also pay the victim’s spouse $10,000 for the damage she suffered as an indirect victim. Finally, while awaiting the consolidation of his injuries, the appellant’s right to claim damages for the permanent injury and non-pecuniary loss he sustained is reserved for a period of 3 years.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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