OVERVIEW
[1] Late in the afternoon on New Year’s Eve 2001, the appellant, Janice Martin-Vandenhende, left her place of work and drove her Toyota Camry south on Erie Street, a two-lane roadway in the town of Ridgetown. The respondents, Peter Myslik and his father, Edward Myslik, were behind her in a GM pickup truck. Peter Myslik was driving. His father was in the passenger seat.
[2] Ms. Martin-Vandenhende realized she had left something behind. She decided to turn left into a private driveway to turn around and go back to work to retrieve the item. As she started the turn, the Myslik vehicle came up from behind and collided with the left side of the back of her car.
[3] Ms. Martin-Vandenhende was injured and taken to hospital. No charges were laid.
[4] The amount of damages has been settled. Liability remains in issue.
[5] During the 14 years since the accident, two trials have taken place to determine responsibility for the collision. The first trial judge, Thomas J., held that Peter Myslik was 100 percent at fault. The Mysliks appealed. The appeal was allowed and a new trial ordered. The second trial judge, Patterson J., apportioned 50 percent liability to both parties.
[6] Ms. Martin-Vandenhende appeals. She asks this court to overturn the trial judge’s finding of contributory negligence against her on the grounds that she neither breached the standard of care nor caused the accident. Alternatively, Ms. Martin-Vandenhende seeks to reduce her degree of responsibility to between five to ten percent.
[7] Based on the following analysis, I would allow the appeal. I would set aside the judgment and hold Peter Myslik 90 percent responsible for the collision and Ms. Martin-Vandenhende 10 percent responsible.