COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Nason v. Nunes, |
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2008 BCCA 203 |
Date: 20080509
Dockets: CA034903, CA034904
Docket: CA034903
Between:
Tamara Nason
Appellant
(Plaintiff)
And
Sergio Nunes, Argo Road Maintenance (South Okanagan)
Inc., and Her Majesty the Queen in Right of the Province of
British Columbia as represented by the Ministry of
Transportation and Highways
Respondents
(Defendants)
Docket: CA034904
Between:
Licinio Santos
Appellant
(Plaintiff)
And
Sergio Nunes, Argo Road Maintenance (South Okanagan)
Inc., and Her Majesty the Queen in Right of the Province of
British Columbia as represented by the Ministry of
Transportation and Highways
Respondents
(Defendants)
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Before: |
The Honourable Madam Justice Newbury |
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The Honourable Mr. Justice Hall |
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The Honourable Mr. Justice Tysoe |
| F.R. Scordo |
Counsel for the Appellants |
| R.R. Cundari, Q.C. |
Counsel for the Respondent, S. Nunes |
| A. Howden-Duke |
Counsel for the Respondent, Argo Road Maintenance (Excused) |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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April 22, 2008 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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May 9, 2008 |
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Written Reasons by: |
| The Honourable Madam Justice Newbury |
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Concurred in by: |
| The Honourable Mr. Justice Hall The Honourable Mr. Justice Tysoe |
Reasons for Judgment of the Honourable Madam Justice Newbury:
[1] This appeal raises, once again, questions of onus and sufficiency of proof in the context of an accident that occurred when a driver lost control of his motor vehicle in winter driving conditions. In this case, the summary trial judge, Madam Justice Russell, found that the plaintiffs, who were passengers in a pickup truck driven by the defendant Nunes, had failed to prove negligence on his part. She also found that in any event, Mr. Nunes had driven with reasonable care and that any presumption of negligence arising from his loss of control was rebutted by his “explanation” that the truck had fishtailed when it went over a “bump” between the road surface and a bridge. The truck traversed the bridge, travelled about ten feet after leaving it, and then rolled over and landed on its wheels below the road, resulting in injury to the plaintiffs.
[2] The plaintiffs sued the driver, the Ministry of Highways and the contractor it had hired to perform road maintenance in the area. (That area was described as “15-20 km. East of Oliver and 8-10 West, to Okanagan Falls to the North, and to the U.S. border to the South”.) The contractor had sanded the road, a Class ‘C’ road (i.e., of lower priority for maintenance services than Class ‘A’ or ‘B’ roads) early in the morning of December 27, 2002. The accident occurred at about 7:30 in the evening. The summary trial judge noted the plaintiffs’ evidence that there was no precipitation at the time, and Ms. Nason’s recollection that at 6:30 p.m., the roads had been bare and wet. She dismissed the claim against the contractor on the basis that it had met the required standard of care and could not have reasonably foreseen that black ice would form on the road at the time of the accident.
[3] At the commencement of the hearing of this appeal, counsel advised that the plaintiffs were abandoning their appeal as against the contractor. The claim against the Province had already been dismissed by consent.
The Trial Judgment
[4] Russell J. dealt with the question of the defendant driver’s negligence beginning at para. 51 of her reasons, which are indexed as 2007 BCSC 266. She noted that the plaintiffs were relying on the “presumption” stated in Redlack v. Vekved (1996) 82 B.C.A.C. 313 (lve. to app. refused, [1997] 2 S.C.R. xii) and Savinkoff v. Seggewiss (1996) 25 B.C.L.R. (3d) 1, [1996] 10 W.W.R. 457 (B.C.C.A.), that a driver is negligent if his or her vehicle goes off the road. The plaintiffs also argued that the defendant “should have been aware of the possible ice conditions, and should have driven slowly and with greater caution than he did.” However, the trial judge distinguished Savinkoff and other cases which applied it, on the basis that Mr. Nunes had in fact foreseen the risk of slippery conditions on the bridge and had taken reasonable steps to avoid it. (Para. 52.) In particular, she found that:
… the evidence suggests that the defendant took all reasonable precautions to avoid losing traction: he was using all season tires, he had weight over the rear wheels of the pickup, he had slowed his speed coming down the hill, and the plaintiffs themselves had no concerns with the way he was driving. There is no evidence that greater precautions, such as using snow tires or driving even more slowly, would have been advisable when the air temperature in Osoyoos was above freezing. Further, there is no evidence that such further precautions would have prevented the MVA. Therefore, I find that the plaintiffs have not proven that Nunes failed to meet the required standard of care in all of the circumstances.
As to the plaintiffs’ suggestion that Nunes was negligent in gearing down instead of braking, which I infer from their reliance on the (inadmissible) expert report suggesting that Nunes ought to have been able to stop his truck on the bridge had he applied the brakes, I note two things. First, as I stated above, there is no evidence that the reasonably prudent driver would consider braking as preferable to gearing down when trying to recover control of a fishtailing truck. Second, the law does not demand a standard of perfection from drivers who must react quickly to a developing situation: see Couturier (Guardian ad litem of) v. Rud, [1990] B.C.J. No. 150 at ¶ 22 (C.A.) (QL). Although there is no expert evidence before me, attempting to slow a fishtailing vehicle by gearing down rather than braking, while at the same time steering in the same direction as the skid, seems to be within a range of reasonable reactions to a sudden loss of control of a vehicle. There is certainly no evidence before me that it is an unreasonable thing to do. [At paras. 57-8.]
[5] Having found that Mr. Nunes had taken reasonable care in the operation of his truck, Russell J. noted that the “real force” of the plaintiffs’ argument in favour of negligence lay in the assertion that a presumption of negligence arises if a motor vehicle leaves the roadway. She agreed with the defendant that this presumption had been dealt with by the Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator) [1998] 1 S.C.R. 424, 46 B.C.L.R. (3d) 1, the well-known case involving two hunters who were found dead in their truck, which had gone off a road and come to rest in a river bed. There was evidence that the area had experienced severe storms. The two lower courts denied recovery to the widow of the passenger in the truck on the basis that the defence had provided an explanation as to how the accident could have occurred without negligence on the driver’s part. This result was upheld by the Supreme Court of Canada, but the Court took the opportunity to decide that the “doctrine” of res ipsa loquitur should be treated as “expired” and “no longer used as a separate component in negligence actions”. (Para. 27.)
[6] Major J., speaking for the Court, began his analysis by explaining the meaning of res ipsa loquitur in Canada. He quoted with apparent approval from Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), who wrote that the doctrine applied where a defendant had sole control of the thing (“res”) that inflicted the damage complained of, and the occurrence was such that it could not normally have happened without negligence on the part of the defendant. The authors noted that there were three alternative views as to the legal effect of res ipsa loquitur, but that:
Res ipsa loquitur, correctly understood, means that circumstantial evidence constitutes reasonable evidence of negligence. Accordingly, the plaintiff is able to overcome a motion for a non-suit and the trial judge is required to instruct the jury on the issue of negligence. The jury may, but need not, find negligence: a permissible fact inference. If, at the conclusion of the case, it would be equally reasonable to infer negligence or no negligence, the plaintiff will lose since he or she bears the legal burden on this issue. Under this construction, the maxim is superfluous. It can be treated simply as a case of circumstantial evidence.
A different construction of the doctrine is that the defendant has an evidential burden to adduce some evidence of a lack of negligence. In the absence of evidence to the contrary, the trier of fact must find for the plaintiff on the negligence issue: a compelled fact determination. If the defendant adduces sufficient evidence of no negligence to satisfy this evidential burden, the plaintiff bears the legal burden on the issue of negligence. The third possible construction is that both the evidential and legal burdens rest on the defendant to disprove negligence to a balance of probabilities.
Since the maxim often leads to confusion, its use might be abandoned and replaced by language that accurately conveys the evidentiary effect of unexplained circumstantial evidence from which negligence may be inferred. [At 81-2; emphasis added.]
In addition, the Court in Fontaine quoted a passage from Lewis Klar in Tort Law (2nd ed., 1996), in which the author explained that res ipsa loquitur simply describes a situation in which a plaintiff has no direct or positive evidence to explain the occurrence in question, but is permitted to introduce circumstantial evidence which will enable him to survive a motion for non-suit. Klar continued:
This, however, does not end the matter. What, if anything, must the defendant do at this point? In theory, where the case is being tried by a judge and jury, the defendant still need not do anything. Although the judge has decided that as a matter of law it would not be an error for the trier of fact to find for the plaintiff on the basis of the circumstantial evidence which has been introduced, it is still up to the jury to decide whether it has been sufficiently persuaded by such evidence. In other words, the judge has decided that as a matter of law, the maxim can apply. Whether as a question of fact it does, is up to the jury. The jury may decide, therefore, that even despite the defendant's failure to call evidence, the circumstantial evidence ought not to be given sufficient weight to discharge the plaintiff's onus. Thus, even if a defendant has decided not to introduce evidence, a trial judge should not, in an action tried by judge and jury, either take the case from the jury and enter judgment for the plaintiff, or direct the jury to return a verdict in favour of the plaintiff. It is up to the trial judge to determine whether the maxim can apply, but up to the jury to decide whether it does apply. [Fontaine, at para. 25; emphasis added.]
(See also G.H.L. Fridman, The Law of Torts in Canada (2nd ed., 2002) at 414-5.)
[7] Major J. also summarized the doctrine in his own words as follows:
Should the trier of fact choose to draw an inference of negligence from the circumstances, that will be a factor in the plaintiff's favour. Whether that will be sufficient for the plaintiff to succeed will depend on the strength of the inference drawn and any explanation offered by the defendant to negate that inference. If the defendant produces a reasonable explanation that is as consistent with no negligence as the res ipsa loquitur inference is with negligence, this will effectively neutralize the inference of negligence and the plaintiff's case must fail. Thus, the strength of the explanation that the defendant must provide will vary in accordance with the strength of the inference sought to be drawn by the plaintiff. [Fontaine, at para. 24; emphasis added.]
[8] As I read these passages, even when res ipsa loquitur was alive and well, it applied only where the evidence was circumstantial, and in Canada, it created at most the drawing of an inference at the end of the plaintiff’s case that permitted, but did not require, the trier of fact to decide in favour of the plaintiff if no further evidence was adduced. But, since the maxim was seen as “more confusing than helpful” the Court in Fontaine decided it should no longer be applied as an element of negligence actions in Canada. (Para. 27.) Instead, the Court provided a simpler formulation of the correct approach that refers only to the end of the trial: the trier of fact should, Major J. said, weigh all the evidence, both direct and circumstantial, to determine whether the plaintiff has established a prima facie case. If he has, the defendant must “negate” that evidence, failing which the plaintiff will succeed. (This of course is true of the process that the trier of fact in most civil cases must follow.) Applying this to the facts of Fontaine, the Court concluded that the trial judge had not erred in finding that the fact the hunters’ vehicle had left the roadway, taken together with evidence of the road and weather conditions, constituted only ‘neutral’ evidence. (Para. 29.) As well, the Court stated:
… there was evidence before the trial judge that a severe wind and rainstorm was raging at the presumed time of the accident. While it is true that such weather conditions impose a higher standard of care on drivers to take increased precautions, human experience confirms that severe weather conditions are more likely to produce situations where accidents occur and vehicles leave the roadway regardless of the degree of care taken. In these circumstances, it should not be concluded that the accident would ordinarily not have occurred in the absence of negligence. [At para. 32; emphasis added.]
[9] Russell J. in the case at bar applied the ‘reformulation’ given at para. 27 of Fontaine. She found that the plaintiffs had failed to prove that Mr. Nunes had driven in a negligent manner and that “in any case”, any presumption of negligence had been rebutted. In her words:
… The plaintiffs cannot rely on the presumption of negligence to shift the onus of disproving negligence onto Nunes. In any case, I am satisfied that Nunes has demonstrated that he drove with all reasonable care, and that any presumption of negligence is rebutted by the fact that the loss of control was initiated by the rear wheels of the truck hitting the bump between the road surface and the bridge. As stated by Boyle L.J.S.C. referring to black ice in Loy v. Deacon, 1985 Carswell BC 1412 at ¶ 18 (S.C.) (eC), “[v]arious normal, non-negligent factors – braking, accelerating, turning – can cause skidding in these conditions.” I am satisfied that striking a bump which caused the rear wheels to lose traction is a sufficient non-negligent explanation for why the truck began to fishtail. [At para. 55; emphasis added.]
Accordingly, the plaintiffs’ case against Mr. Nunes was dismissed.
On Appeal
[10] On appeal, Mr. Scordo on behalf of the plaintiffs submitted that the trial judge had erred in distinguishing and failing to apply Savinkoff, supra, and Gauthier and Co. v. The King [1945] S.C.R. 143, [1945] 2 D.L.R. 48. Both cases pre-date Fontaine. In Savinkoff, the trial judge had found that slippery road conditions at the curve in the road, at which two accidents occurred, were unforeseeable and that the defendant had driven with reasonable care. This court reversed that finding, noting that there was “cogent, uncontradicted evidence to show that the slippery road conditions were reasonably foreseeable” and that the trial judge had therefore been required to provide an explanation or reason for rejecting that evidence. (Para. 17.) Other drivers had been able to negotiate the curve in the road without any apparent difficulty, a fact that seriously weakened the defendant’s argument attributing his loss of control to slippery road conditions. Finch J.A. (as he then was) for the Court concluded on this point:
In my view, sliding out of control into the plaintiff and the stopped vehicle gives rise to an inference of negligence on [the defendant’s] part, in that he was either not sufficiently attentive to the road conditions, or he was driving too fast, or both. It was for him to explain how this accident could have occurred without negligence on his part, and on the evidence there is no satisfactory explanation. I would allow the appeal on the first issue and hold the defendant was negligent. [At para. 28; emphasis added.]
Finch J.A. also referred to Gauthier, in which Kellock J., in giving the majority opinion, in turn quoted (at 156) a passage from Laurie v. Raglan Bldg. Co. [1941] 3 All E.R. 332, [1942] 1 K.B. 152 (C.A.) that was much discussed by counsel in argument in the case at bar:
If roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot pace. [At 336.]
[11] In Gauthier, the Supreme Court of Canada reversed a trial judge’s finding of no negligence on the part of the driver of a gun carrier, the rear end of which had skidded to the left on a curve as an ambulance approached from the other direction. The two collided. Although the majority stated that the skidding of a vehicle is a “neutral fact” equally consistent with negligence or with no negligence, their Lordships held that where a driver meets another driver on the highway, he is “entitled to rely on the performance by the approaching vehicle of the duty cast upon it by the [Highway Traffic Act, R.S.O. 1937, c. 288] and is in his turn bound by a similar duty. A breach of this duty occasioning damage will establish a prima facie case of negligence on the part of the driver of the offending vehicle ….” (At 149-50.) This prima facie case of negligence could, Kellock J. said, be met by an explanation “equally consistent with no negligence as with negligence”. He distinguished this class of case from those in which res ipsa loquitur applied, where “the defendant is liable unless he prove that the occurrence … falls within the category of inevitable accident”. (At 150.) (I note that this description of the onus in cases where res ipsa loquitur formerly applied differs from the description given by Major J., and the Canadian authors he cited, in Fontaine.)
[12] Returning to the case at bar, the plaintiffs submit that the defendant was, as he acknowledged in discovery, aware there might be ice on the road and aware of the “bump” between the road and the bridge. In the plaintiffs’ submission, the summary trial judge should have found, as did the appeal courts in Savinkoff and Gauthier, that he “must have been” driving too fast or was otherwise negligent in failing to equip his vehicle with winter tires or in failing to regain control quickly enough to avoid the accident. As for the trial judge’s findings of fact to the contrary, counsel submits that she applied incorrect legal principles in finding the facts – effectively, that she would have found different facts had she placed the onus on the defendant to explain how the accident “could have occurred without negligence on his part.” (Savinkoff at para. 28.) Further, the plaintiffs contend that the existence of the “bump” was not an “explanation” in the sense required by Savinkoff. Rather, it was something with which the defendant was familiar and which should have caused him to drive more slowly (to a “foot pace” if necessary) or to have driven otherwise more safely – whether by using winter tires, packing more weight, or braking in reaction to his skid.
[13] There are at least a few difficulties with this submission, in my respectful opinion. First, the trial judge was bound to find the facts and then apply the law to them, not the other way around. No authority was cited to us in support of the approach advocated by the plaintiffs. Nor is this an instance in which there was only circumstantial evidence regarding the accident. There was direct evidence, both from the plaintiffs and the defendant, that Mr. Nunes was driving at between 30 and 40 kmh and that he “geared down” when he skidded, rather than applying his brakes. He then steered into the skid – a course of action the trial judge said had not been shown to be unreasonable. (Para. 58.)
[14] More importantly for the plaintiffs’ submission, the Court in Fontaine clearly rejected the argument that an inference of negligence arises (as a matter of law) whenever a vehicle goes off the road in a single-car accident. Major J. stated:
The appellant submitted that an inference of negligence should be drawn whenever a vehicle leaves the roadway in a single-vehicle accident. This bald proposition ignores the fact that whether an inference of negligence can be drawn is highly dependent upon the circumstances of each case: see Gauthier & Co., supra, at p. 150. The position advanced by the appellant would virtually subject the defendant to strict liability in cases such as the present one. [At para. 35; emphasis added.]
(Arguably, strict liability is also the logical extension of the “foot pace” reasoning in Laurie v. Raglan Bldg., quoted above.) If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the manner suggested, I believe the decision has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to “explain” how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at para. 53 of her reasons (citing Fontaine at paras. 20, 24 and 35), such an inference will be “highly dependant on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”
[15] I read Savinkoff, then, simply as an instance of an appellate court’s finding that the findings of fact made below were clearly wrong. (See para. 20.) Such is not the case here, where no basis has been shown for us to interfere with Russell J.’s findings that the defendant was driving at a reasonable speed and in an otherwise reasonable manner. As Gibbs J. A. said for this court in Phillips v. Lyle [1990] B.C.J. No. 212:
Here, where there was evidence to support the findings of fact made in the trial judgment, the appellant could only succeed on the basis of inferences which ought to have been, but were not, drawn by the trial judge. For my part, I have not found any instance in the evidence where, on liability, the trial judgment can be found to be in error by reason of improperly drawn inferences. To infer is not synonymous with to speculate. An inference is defined as a fact or proposition deduced as a logical consequence from other facts already proven or admitted.
I would dismiss this ground of appeal.
[16] The plaintiffs’ second ground of appeal was that the trial judge’s finding that Mr. Nunes was not negligent, was unreasonable. For the reasons I have given above, this ground must also fail, in my respectful view.
[17] The plaintiffs’ final ground of appeal was that the summary trial judge had erred in refusing to admit into evidence an expert report prepared by a Mr. West. The summary trial judge’s reasons for excluding this evidence were that it was “neither relevant nor helpful” and did not assist the Court to reach a conclusion. (Para. 27.) At the hearing of the appeal, Mr. Scordo agreed that the case did not turn on the expert evidence. In any event, however, I am not persuaded that the plaintiffs have shown any error in the trial judge’s reasoning at paras. 27-9. I would therefore dismiss this ground of appeal as well.
“The Honourable Madam Justice Newbury”
I Agree:
“The Honourable Mr. Justice Hall”
I Agree:
“The Honourable Mr. Justice Tysoe”