Gellie v. Naylor and Laidlaw Transport Ltd.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Howland, C.J.O., Lacourcière and Krever, JJ.A.
• Citation: (1986), 15 O.A.C. 129 (CA)
• Date: 14 May 1986

Gellie v. Naylor (1986), 15 O.A.C. 129 (CA)

MLB headnote and full text

Gellie v. Naylor and Laidlaw Transport Limited

Indexed As: Gellie v. Naylor and Laidlaw Transport Ltd.

Ontario Court of Appeal

Howland, C.J.O., Lacourcière and Krever, JJ.A.

May 23, 1986.

Summary:

The plaintiff pedestrian sued the owner and driver of a tractor-trailer truck for damages suffered in an accident. Following a civil jury trial, the judge dismissed the pedestrian's action, because the jury had decided that the truck driver satisfied them that the accident had not been caused by any negligence or improper conduct on his part. The pedestrian appealed.

The Ontario Court of Appeal allowed the appeal and ordered a new trial on both the issues of liability and damages.

Practice - Topic 5167

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Closing address - In a civil jury trial in which the defendant called evidence, the trial judge instructed the plaintiff's counsel to give his closing address to the jury first - The Ontario Court of Appeal held that the judge not only contravened Rule 255 of the then existing Rules of Practice, but deprived the plaintiff of the opportunity to have his case fully and properly presented in accordance with the law, since the right to address the jury last traditionally has been considered important - See paragraphs 12 to 15.

Practice - Topic 5193

Juries and jury trials - Jury charge - Respecting law and case law - The Ontario Court of Appeal examined a jury charge in a motor vehicle accident case and held that the trial judge erred in his instructions respecting the doctrine of emergency and respecting relating the evidence to that doctrine in the particular circumstances of the case - See paragraphs 7 to 11.

Torts - Topic 378

Negligence - Motor vehicle - Standard of care of driver - Emergencies - The Ontario Court of Appeal held that "a motorist need not anticipate that pedestrians will unexpectedly dash from a safe position on the curb into the path of his moving vehicle. He may assume that pedestrians as well as other motorists will not act unreasonably and foolishly. However, if the motorist is alerted, by the previously observed conduct of another person that there is a distinct possibility the other person may act negligently and expose himself to danger, then the assumption loses its justification. The anticipation of negligent conduct renders such conduct foreseeable and makes it incumbent on the motorist to take additional precautions." - See paragraph 9.

Statutes Noticed:

Rules of Court (Ont.), Rules of Practice, rule 255 [para. 12].

Rules of Court (Ont.), Rules of Civil Procedure, rule 52.07(1) [para. 14].

Authors and Works Noticed:

Fleming, The Law of Torts (6th Ed. 1983), p. 115 [para. 9].

Counsel:

Cynthia R.C. Sefton, for the appellant;

D.G.E. Adair, Q.C., for the respondent.

This appeal was heard before Howland, C.J.O., Lacourcière and Krever, JJ.A., of the Ontario Court of Appeal on May 14, 1986. The decision of the Court of Appeal was delivered orally by Lacourcière, J.A., and released on May 23, 1986.