The appellant's husband, Constable Lewis, was struck and killed by a car driven by Todd and owned by his mother, McClure. The accident occurred near midnight at a major intersection on a well-lighted four lane thoroughfare; the road surface was bare and slightly damp. Two other police officers, who assisted in directing traffic while hydro lines were being repaired, left the scene and Constable Lewis continued his investigation near the centre line. He wore the dark regulation uniform. The flashing lights and four way flashers of the police car and hydro vehicles at the scene were clearly visible for over a quarter of a mile.
- Did Constable Lewis contribute to his death by his own negligence?
- Did the Ontario Court of Appeal err in reducing the quantum of damages awarded by the trial judge from $195,000 to $62,500?
The court found that Lewis did not depart from police practice and was not negligent in continuing his investigation on the road without assistance. The constable's duty of care was less than that of a pedestrian for there were circumstances which should have alerted other drivers to the presence of police officers on the highway. There was evidence upon which the trial judge could find that the constable did not fail to keep a proper lookout and that he had not been negligent in continuing his investigation as he had.
The court held that the 7% discount rate awarded in Arnold v Teno was not meant to be a rule and accepted the lower rate used by the trial judge. While there was some evidence adduced to indicate that a higher rate would be indicated, there was ample evidence to support the ruling of the trial judge.
Damages should be reduced according to a reasonable rate of interest such as can be proven at the time of trial.