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ARTICLE · 22 NOVEMBER 2016

Setting Aside A Jury's Verdict – A Heavy Burden

"Author of his/her own misfortune" is a common defence in personal injury cases and in Hamilton v. Bluewater Recycling Association, the jury reached this determination...

CanadaLitigation, Mediation & Arbitration

"Author of his/her own misfortune" is a common defence in personal injury cases and in Hamilton v. Bluewater Recycling Association, the jury reached this determination when it found that the appellant/ plaintiff was 100% responsible for the injuries he sustained when his motorcycle collided with a recycling truck driven and owned by the respondents/defendants. Nevertheless, the plaintiff appealed this decision to the Court of Appeal, which dismissed the appeal in November 2016.

The facts of the case were that the appellant was operating his motorcycle on a foggy day, with a rising sun, which was affecting visibility. The respondent's recycling truck had its caution lights, headlights and a strobe light. It was the driver of the recycling truck's intention to make a left turn and the driver indicated that his left- turn signal was on. However, the appellant/plaintiff driver believed the recycling truck was pulling over to the right and therefore, attempted to pass the

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