Sarabeth Kippenhuck Plaintiff And: Bradley Evoy First Defendant And: Hubert Loder Second Defendant, 2020 NLSC 24

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Kippenhuck v. Evoy , 2020 NLSC 24 Date : February 10, 20 20 Docket : 201908G0019 Between: Sarabeth Kippenhuck Plaintiff And: Bradley Evoy First Defendant And: Hubert Loder Second Defendant Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: October 29, 2019

Summary: The Plaintiff, a pedestrian, was struck by the Second Defendant’s vehicle while the vehicle was being driven by the First Defendant. The Second Defendant was the father of the First Defendant. The Plaintiff suffered serious injuries. The only issue was whether the First and Second Defendants were liable for the injuries suffered by the Plaintiff. The Court found both Defendants liable to the Plaintiff for her injuries. The Plaintiff was also found contributorily negligent; however to a much less degree than the Defendants. Liability was apportioned between the parties.

Appearances: Kimberly A. Horwood Appearing on behalf of the Plaintiff Bradley Evoy Appearing on his own behalf Hubert Loder Appearing on his own behalf Authorities Cited: CASES CONSIDERED: R. c. Gagnon, 2006 SCC 17; R. v. K.P., 2019 NLCA 37; R. v. Best, 2016 NLCA 10; R. v. S.O., 2019 NLCA42; R. v. M. (R.E.), 2008 SCC 51; McLoughlin (Guardian ad litem of) v. Ray Luff Ltd, 2003 NLCA 3; Holloway Estate v. Giles, 2004NLCA 8; Christie v. Insurance Corp. of British Columbia, (1993), (BC CA), 79 B.C.L.R. (2d) 370; Heller v.Martens, 2002 ABCA 122. STATUTES CONSIDERED: Automobile Insurance Act, R.S.N.L. 1990 c.

A-22; Insurance Companies Act, R.S.N. 1990, c. I-10, s. 1;Highway Traffic Act, R.S.N.L 1990, c. H-3; Contributory Negligence Act, R.S.N.L. 1990, c. C-33. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. TEXTS CONSIDERED: L.N. Klar in Tort Law, 3rd ed. (Toronto: Carswell, 2003). REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] On the evening of November 8, 2010, Sarabeth Kippenhuck and Christopher Ivany were walking on Campbell Street in HappyValley-Goose Bay, Newfoundland and Labrador. They were walking in the direction of traffic.

Bradley Evoy was driving his father’sVolkswagen Jetta, even though he was not insured to drive the vehicle. While driving, he struck both Ms. Kippenhuck and Mr. Ivanyfrom behind. The force of the strike caused Ms. Kippenhuck to hit the windshield of the vehicle and then fall to the ground. Shesuffered injuries including a fracture to her leg. Mr. Ivany also received injuries including an injury to his Achilles tendon. [2] Ms. Kippenhuck commenced an action against both Mr. Evoy and his father Hubert Loder, in April of 2012.

Although theaccident occurred in Happy Valley-Goose Bay, and the parties both reside in Happy Valley-Goose Bay, the action was commenced inthe judicial district of St. John’s, Newfoundland and Labrador. [3] Commencing the action in St. John’s has impeded a timely resolution of the matter. The Defendants were initially representedby counsel, but early in the proceedings, after filing the defence on behalf of both Mr. Evoy and Mr. Loder, counsel made application towithdraw as counsel for the Defendants. The application was allowed. Two attempts were then made by Ms. Kippenhuck to hold

discoveries in St. John’s. The Defendants appeared on neither occasion even though when notice of the discovery proceedings was served on the Defendants, the Defendants were advised they could have appeared by telephone. The Defendants wrote the Court advising that they wished the proceedings to take place in Happy Valley-Goose Bay where the accident occurred and the witnesses were located. An order from the Court in St.

John’s directed that the trial on the issue of liability be held in the judicial district of Happy Valley-Goose Bay. [ 4 ] At the commencement of the trial, the parties confirmed that they were self-represented. THE EVIDENCE [ 5 ] The Plaintiff called two witnesses, Mr. Ivany and herself. The evidence of Christopher Ivany [ 6 ] Mr. Ivany testified that on the day in question he and the Plaintiff took her dog for a walk around the block where they lived, in Happy Valley-Goose Bay. He was not sure of the time, but it was after supper in the evening, and it was “getting dark”.

There are no sidewalks where they walked, but there was a gravel shoulder on both sides of the road. The road was paved and was described as a “two-lane” road. Mr. Ivany testified they were walking on the side of the road “with” the traffic; meaning that cars on their side of the road approached them from behind. They were near their home on Campbell Street when they were struck from behind by a vehicle. Mr. Ivany testified he did not know that the vehicle “was there” until he was struck. [ 7 ] Mr. Ivany testified neither he nor Ms. Kippenhuck consumed alcohol or drugs that evening prior to the walk.

He could not recall what either was wearing. He testified that at the time they were hit they were both on the shoulder of the road, and Ms. Kippenhuck was the person closer to the road. He could not say who was struck first but he knew that Ms. Kippenhuck was “thrown” to the car that struck her; as she hit the windshield and then fell to the ground. He recalled that she landed in the ditch beside the road. He testified he also fell to the ground and that he thought the dog was also hit, but was not sure. He testified that he jumped up cursing and swearing.

He testified there was “a lot of adrenalin” and everyone was swearing and there was panic. He testified that Ms. Kippenhuck was in pain but neither of them could call the police as they did not have cell phones with them. [ 8 ] Mr. Ivany testified that the vehicle stopped and the driver exited the car. Mr. Evoy was the person who exited the driver’s side, and the car was a white Volkswagen “Jetta” or “Golf”. Mr. Evoy offered to take them to the hospital. On route to the hospital there was no conversation and Mr. Evoy did not stay after he dropped them off. Mr. Ivany testified there was nothing he or Ms.

Kippenhuck could have done to avoid the accident. [ 9 ] Under cross-examination, Mr. Ivany agreed that neither he nor Ms. Kippenhuck wore reflective clothing that evening. He could not say whether the leash used for the dog was of a “retractable” type but testified that the dog was on the shoulder of the road with them. He agreed that there was an intersection about 300 feet from where the accident occurred and was a four way stop. Mr. Ivany testified he did not notice any lights from the car, and did not see the car before the accident because it was coming from behind him. He did not agree the car was grey.

He testified there was not much traffic at the time. Mr. Ivany did not agree that Mr. Evoy waited at the hospital until the police arrived. The evidence of Sarabeth Kippenhuck [ 10 ] Ms. Kippenhuck testified that she was living on Campbell Street in Happy Valley-Goose Bay at the time of the accident. She testified that she and Mr. Ivany had taken her dog for a walk on the evening in question. Ms. Kippenhuck described Campbell Street as a residential street with “not a lot” of traffic. She testified there were no sidewalks but there was a wide shoulder on which to walk.

She thought of the street as a “safe” place to walk, and she walked her dog probably two to three times per week on the street. She testified she remembered she was wearing a fall light brown jacket. She could not recall what Mr. Ivany was wearing. She testified she and Mr. Ivany were walking with the flow of traffic, meaning that cars on the side of the street on which they were walking, were approaching from behind. [ 11 ] At the time of the accident, she testified that she and Mr. Ivany were on the “straight” part of Campbell Street where the accident occurred and near a playground across the street.

She testified that they had “made the turn” to come home and when they were halfway down Campbell Street she was struck from behind. She testified at the time she was struck she thought she was stopped to light a cigarette. She testified that the bumper struck her across the back of her leg and the force caused her to go up off the ground whereupon she hit the windshield of the vehicle. The windshield broke upon impact and she and fell to the ground. She testified Mr. Ivany was also thrown when struck by the vehicle. [ 12 ] Ms. Kippenhuck described the vehicle that hit them as being a white Jetta Volkswagen.

After they were struck, the vehicle stopped. The driver got out of the vehicle and Ms. Kippenhuck recognized the driver as Mr. Evoy. She testified she has known Mr. Evoy all her life, and went to school with him. [ 13 ] Ms. Kippenhuck testified that she tried to get up but she was in too much pain and had to sit. Her leg was broken. Because neither she nor Mr. Ivany had a cell phone with them, she could not call 911 or an ambulance or police. She testified that she asked Mr. Evoy to get an ambulance, but he stated that they did not need an ambulance and instead offered to drive them to the hospital himself.

She testified she agreed to go to the hospital with him. [ 14 ] Ms. Kippenhuck testified that because of the broken windshield, Mr. Evoy had to go get another vehicle than the Jetta to take them to the hospital and left with the Jetta to take it back to his house. Ms. Kippenhuck testified that Mr. Evoy had to look out through the driver’s side window of the Jetta to see where he was going. When Mr. Evoy returned with a pick-up truck, Ms. Kippenhuck testified that she had to be carried to be put into the vehicle. Her dog was also put in the vehicle and they left to go to the hospital. At the hospital, Ms.

Kippenhuck testified that Mr. Evoy told them not to tell the police they were hit by him in his car because he would lose his heavy equipment license.

[ 15 ] Ms. Kippenhuck testified that at the scene of the accident, there was an imprint of a tire track on the gravel shoulder of the road. She testified that the tire mark was visible for a couple of weeks after the accident because it was very cold. She testified that there was no snow on the ground at the time. She was certain that she and Mr. Ivany were on the shoulder of the road at the time. She did not recall seeing any car lights or hear tires screeching. She testified she had not consumed any alcohol or drugs that evening. Ms. Kippenhuck testified that she and Mr.

Ivany were struck “without warning”. [ 16 ] Ms. Kippenhuck testified that her leg was broken completely through. She was in a cast for three and a half months, and then had to attend physiotherapy for another six months. Ms. Kippenhuck testified it has been nine years since the accident and she still has problems with her leg. Ms. Kippenhuck revealed her leg to the Court. There was a visible protrusion in the shin area. [ 17 ] Under cross-examination, Ms. Kippenhuck agreed there was no snow, but denied that she could have slipped. She did not agree that the conditions may have been slippery.

She testified that she was standing on “solid gravel” when the accident occurred. She agreed there was “mass confusion” at the scene. She recalled only one other person besides herself, Mr. Evoy and Mr. Ivany. She recalled that a Brad McLean may also have been present, and had been in the Jetta with Mr. Evoy. Exhibit Number B.E. #1 [ 18 ] Counsel for the Plaintiff then called Mr. Evoy to the stand to tender a document described as a “Section 28 endorsement” or “Excluded Driver Endorsement”. The

Section 28 endorsement was marked as B.E. #1. Exhibit B.E. #1 identified “Bradley Evoy” as an excluded driver for several vehicles, including a “93 Volks Jetta”. There was no dispute the Jetta referred to in B.E. #1, was the Jetta driven by Mr. Evoy when he struck the Plaintiff. Nor was there any dispute he was an excluded driver on the date in question. B.E. #1 also identified Hubert Loder as the owner of the vehicles, including the Jetta. The evidence of Bradley Evoy [ 19 ] Prior to taking the stand, Mr. Evoy equivocated about what he wanted to do.

He asked the Court “Can I have a lawyer?” and “Can I get witnesses?” The Court then inquired as to why the witnesses had not already been subpoenaed. Mr. Evoy’s explanation was that he did not know that this hearing was the trial. The Court then reviewed the history of the proceedings with both Defendants; including that the trial date had been scheduled for over seven months and that both Defendants advised the Court in writing that they in fact intended to represent themselves in the proceedings. Mr. Evoy agreed that this was the case. Mr.

Evoy, upon further reflection after the Court had reviewed the record, and discussion with Mr. Loder, was satisfied to continue with the trial. [ 20 ] The Court then explained to Mr. Evoy that he was not obliged to testify, but if there was information he wanted the Court to consider, particularly his recollection as to what occurred that evening, he could testify to that information. Mr. Evoy took the stand without hesitation. [ 21 ] Mr. Evoy testified that on the night in question he and three of his friends were at his home on Roberts Road, which is near Campbell Street where the accident occurred.

He testified that they were getting the Jetta ready to put away for the winter. He testified that one of his friends wanted some beer, so they all got in the Jetta and headed towards a store to purchase some beer. Mr. Evoy testified that he also took his dog with him, and it was seated in the back seat of the car with two of the passengers. He testified that when they turned from Ford Street on to Campbell Street, his dog saw Ms. Kippenhuck’s dog and started to bark. His dog jumped up behind the driver’s seat to put his head out the driver side window to bark. [ 22 ] Mr. Evoy stated he then saw Ms.

Kippenhuck’s dog in the middle of the road and tried to swerve to avoid it. He testified that was when he hit Ms. Kippenhuck and Mr. Ivany. He testified he clipped Mr. Ivany and then he hit Ms. Kippenhuck. she came up and hit the windshield of his car. He agreed that the windshield was broken as a result of Ms. Kippenhuck hitting it. He thought he had hit her dog. He testified he did not see either Ms. Kippenhuck or Mr. Ivany until he hit them. He testified he was only driving in “first gear” so he was not going fast.

He testified there were no streetlights where the accident occurred, and that he hit the brakes when the accident occurred. He stated there were no skid marks or tire marks. [ 23 ] He testified that he saw the dog, because it was wearing some kind of reflective material. He agreed Ms. Kippenhuck was on the gravel when he struck her, but Mr. Ivany was on the pavement. He stated if Ms. Kippenhuck and Mr. Ivany had been wearing reflective clothing, he might have seen them. He stated he swerved the car because he did not want to hit the dog. He testified when his own dog jumped it did not interfere with his driving.

He stated that Mr. Ivany was swearing at him because he thought Mr. Evoy had struck them intentionally. Ms. Kippenhuck and Mr. Ivany asked for him to call an ambulance, but he offered to take them to the hospital and they accepted. [ 24 ] He returned the Jetta to his home to get the Sierra pick-up truck (one of the four vehicles identified on B.E.#1 for which Mr. Evoy acknowledged he was an excluded driver) to take Ms. Kippenhuck and Mr. Ivany to the hospital.

He denied that he had to put his head out through the driver’s window to see where he was going because of the broken windshield. [ 25 ] On cross-examination, when asked why he had not previously raised that the dog was in the road, Mr. Evoy testified that he did not know anything about the Court proceedings and that his father, Mr. Loder, had dealt with the Court proceedings, not him. He testified he did not know about any discovery proceedings or that this was a trial. He stated he gave no statement to Mr. Ivany’s insurance company. [ 26 ] At the conclusion of the evidence, Mr.

Evoy was offered a short adjournment if he still wished to see if potential witnesses could be made available (who apparently lived in the area). Mr. Evoy declined.

The evidence of Hubert Loder [ 27 ] Mr. Loder’s testimony was brief. He confirmed his signature on B.E. #1, but stated he did not think the exclusion applied to all four of the listed vehicles, only the Jetta. He testified he was “200%” sure of this, but agreed that is not what B.E. #1 stated. He acknowledged that at the time of the accident, Mr. Evoy was not covered by his insurance to drive the Jetta. He was not questioned as to whether or not he knew that his son drove the Jetta when the accident occurred. [ 28 ] He testified that the accident was unfortunate.

The time of year for driving was not good, because it was dark. He testified there were never any tickets issued to either he or his son by the police, even though Mr. Evoy gave a statement to the police. He testified he had been the person dealing with the Court proceedings. POSITIONS OF THE PARTIES [ 29 ] Ms. Kippenhuck asserts that liability for the accident rests “solely” with the Defendants. The circumstances of the accident support that Mr. Evoy was driving negligently and without reasonable care and attention. Ms.

Kippenhuck points to the fact that she was struck while she was on the shoulder of the road with Mr. Ivany and her dog and the road was located in a residential neighbourhood. Not only could it be expected by the prudent driver that there would be pedestrians, but children as well. There is a playground near where the accident occurred. Although it was evening, and Ms. Kippenhuck concedes she was not wearing reflective material, there is street lighting near the location where the accident occurred. Ms. Kippenhuck asserts, given her location and the force with which she was struck, Mr.

Evoy failed to take precautions to avoid hitting her. [ 30 ] Ms. Kippenhuck submits that with respect to Mr. Loder, if the Court is satisfied that if Mr. Evoy is found liable, liability also attaches to Mr. Loder by virtue of

Section 200 of the Highway Traffic Act , R.S.N.L 1990, c. H-3 (the “ HTA ”), as amended. Mr. Evoy was in possession and control of the Jetta with the consent, express or implied, of Mr. Loder. [ 31 ] Both Mr. Evoy and Mr. Loder submit no liability should be found. The accident was not caused by the negligence of Mr. Evoy, but was caused because Ms. Kippenhuck’s dog was in the middle of the road. When Mr. Evoy swerved to try and avoid the dog, it was then that he struck both Ms. Kippenhuck and Mr. Ivany, who were on the wrong side of the road. Mr.

Evoy asserts they were not wearing reflective clothing, there was no street lighting at that point on the street, and so he did not see them. The accident was unavoidable and the claim should be dismissed against both Defendants. ISSUES [ 32 ] There is no dispute that the Jetta driven by Mr. Evoy struck Ms. Kippenhuck and caused her leg to be broken on the date in question. Nor is there dispute that at the time the vehicle was driven it was registered to Mr. Loder, the father of Mr. Evoy. [ 33 ] The issue is whether or not the accident was caused by the negligence of Mr. Evoy. If the accident was caused by Mr.

Evoy’s negligence, the Court must also decide whether Ms. Kippenhuck bears some responsibility for her injuries as a result of her own contributory negligence. The issues can be framed this way: Issue 1 What is the evidence that is accepted to establish the facts in this matter? Issue 2 Given the facts as found, do they establish that Mr. Evoy was negligent and that his negligence caused the accident? Issue 3 Is Mr. Loder liable to Ms. Kippenhuck for her injuries caused by the accident as the owner of the vehicle? Issue 4 Was Ms.

Kippenhuck negligent and if so, did this negligence contribute to causing the accident? Issue 5 If Ms. Kippenhuck was contributorily negligent, what is the proper apportionment of liability between the parties? ANALYSIS Issue 1: What is the evidence that is accepted to establish the facts in this matter? [ 34 ] While there is agreement as to much of what happened on the evening in question there are also differences in the recollections of Ms. Kippenhuck and Mr. Evoy that could have a bearing on the extent to which, if any, Mr. Evoy should be held responsible for the injuries suffered by Ms. Kippenhuck.

In particular, there is a difference in their testimony as to the location of Ms. Kippenhuck’s dog at the time she was struck by the Jetta. Both Ms. Kippenhuck and Mr. Ivany testified the dog was on the side of the road. Mr. Evoy testified her dog was in the middle of the road and this was the reason he swerved and hit Ms. Kippenhuck. He was trying to avoid hitting the dog. The location of the dog may have a bearing on the extent to which Mr. Evoy should be held responsible for causing the accident and Ms.

Kippenhuck’s injuries. [ 35 ] In order to determine what evidence, if any, the Court accepts, the Court must assess the credibility of the witnesses and the reliability of their testimony.

The assessment of the credibility of a witness, as well as the veracity of a witness’ testimony, is not a formulaic process; but the culmination of a number of considerations such as, but not limited to, how the witness responded to questions, were they argumentative, evasive or forthright, how was their recall, what was their opportunity to observe the event, and were there inconsistencies in their evidence standing alone, or in relation to the other evidence called. In assessing the witnesses, I keep in mind the

words of the Supreme Court of Canada in R. c. Gagnon, 2006 SCC 17, at paragraph 20: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. … [36] I also keep in mind the further comments of our Court of Appeal in R. v. K.P., 2019 NLCA 37 at paragraphs 42 and 47. Referring to their previous decision of R. v.

Best, 2016 NLCA 10, the court reminds us that as the trier of fact, I may accept all, some ornone of the evidence of a witness. [37] In R. v. S.O., 2019 NLCA 42, at paragraph 16, Hoegg, J.A, speaking for a unanimous court, stated that the assessment ofcredibility of the witness is the “province” of trial judges, and “many factors inform the result”. At paragraph 17, Hoegg, J.A. statedfurther: This Court addressed the issue in Stassis v. Amicus Bank, 2014 NLCA 38, 356 Nfld. & P.E.I.R. 80, (N.L.

C.A.) wherein White J.A.endorsed the time-tested approach to assessing credibility set out by the British Columbia Court of Appeal at page 357 of Faryna v.Chorny (1951), (BC CA), [1952] 2 D.L.R. 354, (B.C. C.A.): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions … …The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothethe trial judge with a divining insight into the hearts and minds of the witnesses… [38] As stated by McLachlin, C.J. in R. v.

M. (R.E.), 2008 SCC 51, at paragraph 49, “assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization”. [39] I also keep in mind that witnesses may have differing perceptions of the same event. [40] With the above guidance I will review my findings with respect to the assessment of the witness evidence, in particular that ofMs. Kippenhuck and Mr. Evoy. Sarabeth Kippenhuck [41] I found Ms. Kippenhuck to be a credible and reliable witness. She was straightforward in her testimony and was clear aboutwhat she could or could not remember.

For example, while she remembered only that she had been wearing a brown light jacket, shewas forthright that she was not wearing any reflective clothing. Nor was she vindictive towards Mr. Evoy or Mr. Loder. She did notembellish her evidence and admitted she was on Mr. Evoy’s side of the road when the accident occurred. Of the three witnesses whotestified about the accident, Ms. Kippenhuck’s testimony was the most detailed. Christopher Ivany [42] While Mr. Ivany’s recollection was not detailed, he was also credible. Like Ms. Kippenhuck, Mr. Ivany was candid in hisrepsonses, nor was he evasive.

However his recollection was not detailed. His testimony tended to be consistent with Ms. Kippenhuck,but it was not so similar that it gave rise to any concern that there may have been collusion between he and Ms. Kippenhuck. To thecontrary, there were enough differences in their recollections that the similarities in their narrative as to how the accident occurred ismore likely because that is how the accident happened. Bradley Evoy [43] On the other hand, I found Mr. Evoy to be cavalier in his testimony and in his responses to questions.

Although he was candidthat he was not insured to drive the Jetta, this did not seem to be of concern to him. Mr. Evoy testified there were other persons in thevehicle with him at the time of the accident; yet none of these witnesses who might be able to corroborate his version of events werecalled to testify. [44] Mr. Evoy’s cavalier attitude persisted throughout the proceedings. He interrupted proceedings and was, at times, argumentativewith the Court. At times, his father, Mr. Loder, had to speak to him and only then would Mr.

Evoy refrain from being disruptive. [45] With respect to why he did not have his witnesses present, Mr. Evoy complained that he did not know he had to have hiswitnesses present. This is the explanation despite that the record is clear that the trial had been scheduled for several months.

It is notcredible or adequate in the circumstances that on the day of trial, that has been set for months, for a matter that has been outstanding foralmost ten years, to complain to the Court that one did not know he needed to have his witnesses present. [46] When I consider his testimony with all the evidence, and consider his demeanor and attitude towards the proceedings, I do notfind him a credible or reliable witness.

Analysis of the Evidence [ 47 ] Given the above assessment, I do not accept Mr. Evoy’s evidence that Ms. Kippenhuck’s dog was in “the middle of the road”, or that his dog was barking. Neither Ms. Kippenhuck nor Mr. Ivany testified to hearing a dog bark, or seeing another dog, or hearing tires screech when the accident occurred. If Mr. Evoy’s dog had been barking out the driver’s side window at Ms. Kippenhuck’s dog, one might have expected that Ms. Kippenhuck and Mr. Ivany would have heard this. However, neither testified to hearing anything immediately prior to being struck by the vehicle.

To the contrary, their testimony was that they were taken by surprise by the presence of the car when they were struck. [ 48 ] I also cannot ignore that the assertion by Mr. Evoy that his dog was barking at Ms. Kippenhuck’s dog was not put to either Ms. Kippenhuck or Mr. Ivany, and so I am circumspect about this explanation from Mr. Evoy. [ 49 ] As discussed earlier, witnesses can remember events differently. But when I consider all of the evidence, and my assessment of Ms. Kippenhuck as a credible and reliable witness, I am satisfied that Ms.

Kippenhuck’s dog was not on the pavement at the time the accident occurred. [ 50 ] Upon review of all the evidence, on balance I find Ms. Kippenhuck’s and Mr. Ivany’s account of what happened is the more reliable account and I find the following facts: - That Ms. Kippenhuck and Mr. Ivany were walking on the right hand side of Campbell Street, that is, with the traffic. - It was evening after supper, and it was “getting dark”.

There was no snow on the ground, but it was not slippery, and there was little traffic. - That Campbell Street is located in a residential part of Happy Valley-Goose Bay, NL, and is a two laned paved road with no sidewalks but wide gravel shoulders. There is street lighting near where the accident occurred, and there is a playground across the street. - Mr. Evoy that evening drove a Volkswagen Jetta. There was at least one other passenger besides Mr. Evoy. Mr. Evoy was driving to a store to purchase some beer at the request of one of Mr. Evoy’s friends. - Mr.

Evoy’s vehicle turned from Ford Street on to Campbell Street and while traveling along Campbell Street, struck Ms. Kippenhuck in the back of her leg and then Mr. Ivany. - Both pedestrians may have been stopped at the time they were struck, but whether walking or stopped, they were on the gravel shoulder of the road, at the point they were struck by Mr. Evoy in his vehicle. - Ms. Kippenhuck did not slip, but was struck in the back of her leg, as she described, and was thrown to the windshield of the Jetta, and then to the ground. Mr.

Ivany was also thrown to the ground after being struck by the Jetta. - The force of Ms. Kippenhuck hitting the windshield of the Jetta caused the windshield to break. - Mr. Evoy was the driver of the vehicle that struck Ms. Kippenhuck. - Neither Ms. Kippenhuck nor Mr. Ivany heard the vehicle, nor saw lights from the vehicle prior to being struck. - After striking Ms. Kippenhuck and Mr. Ivany, Mr. Evoy immediately stopped his vehicle and exited. Mr. Ivany was upset because of what happened. - Ms. Kippenhuck knew Mr. Evoy, and asked Mr. Evoy to contact an ambulance or 911, but Mr.

Evoy offered instead to drive them to the hospital. Mr. Evoy drove the Jetta back to his house nearby, and returned with a Sierra pick-up truck to transport Ms. Kippenhuck and Mr. Ivany to the hospital. Ms. Kippenhuck and Mr. Ivany went with Mr. Evoy in his truck to the hospital. - While at the hospital, Mr. Evoy stated to Ms.Kippenhuck and Mr. Ivany to not tell the police that he struck them as he would lose his license. - Ms. Kippenhuck’s leg was broken as a result of having been struck by the Jetta driven by Mr.

Evoy. - There was an imprint of a tire track left on the gravel by the Jetta, which could be seen for a couple of weeks after the accident. Issue 2: Given the facts as found, do they establish that Mr. Evoy was negligent and that this negligence caused the accident? [ 51 ] Based on the above findings of fact I am satisfied that Mr. Evoy was negligent. There is no dispute that Mr. Evoy owed a duty of care to Ms. Kippenhuck to drive his vehicle in a reasonably prudent manner (see McLoughlin (Guardian ad litem of) v. Ray Luff Ltd , 2003 NLCA 3 , at paragraph 27 ).

Driving in a reasonably prudent manner included not only looking out for pedestrians who could be expected to be walking in the residential neighbourhood and near a playground, but as well to remain on the actual pavement of the road, and not the shoulder where Ms. Kippenhuck, as a pedestrian, was entitled to be located. [ 52 ] Given that Mr. Evoy’s vehicle struck Ms. Kippenhuck with enough force to send her up over the windshield, I am satisfied he did not see her. Mr. Evoy admits that he did not see Ms. Kippenhuck, but saw her dog. Mr. Evoy asserts that he did not see either Ms. Kippenhuck or Mr.

Ivany because they were not wearing reflective clothing. While this might contribute to why the reasonably prudent

driver might strike a pedestrian with their car if a pedestrian were on the pavement at nighttime, this does not explain why he struck Ms.Kippenhuck while she was on the shoulder of the road under street lighting. [53] I am satisfied that given the circumstances, Mr. Evoy was not paying attention to how and where he was driving and as suchwas not driving in a manner that was reasonably prudent. I am satisfied that Mr. Evoy was not paying attention as to whether or not hewas on the road, and who might be in the vicinity of where he was driving. The only reasonable explanation for Mr. Evoy’s havingstruck Ms.

Kippenhuck is that Mr. Evoy was not paying attention to where he was driving. This failure is why his vehicle struck Ms.Kippenhuck. [54] I am satisfied that the Plaintiff has established her claim in negligence against Mr. Evoy. Issue 3: Is Mr. Loder liable to Ms. Kippenhuck for her injuries caused by the accident as the owner of the vehicle? [55] I am also satisfied the claim of negligence against Mr. Loder is established by virtue of

section 200 of the HTA and find Mr.Loder, and owner of the vehicle, liable. [56]

Section 200 of the HTA states: Liability of owner 200.

(1) Without effect upon the liability of the driver of a vehicle, the owner of a vehicle is liable for loss or damage sustained by aperson because of negligence in the operation of the vehicle unless the vehicle was without the owner's consent in the possession of someperson other than the owner.

(2) A person driving a vehicle who is living with and as a member of the family of the owner of the vehicle shall be considered to be inpossession of it with the owner's consent unless the contrary is proved. [57] Mr. Loder is Mr. Evoy’s father and the owner of the Jetta. Mr. Evoy is a family member who was living with Mr. Loder at thetime. There was no evidence Mr. Loder did not consent to Mr. Evoy operating the vehicle. I am satisfied Mr. Loder is liable to Ms.Kippenhuck for her injuries. Issue 4: Was Ms.

Kippenhuck negligent and did her negligence contribute to causing the accident? [58] I am also satisfied that Ms. Kippenhuck was negligent and this negligence contributed to causing her injuries, pursuant to theContributory Negligence Act, R.S.N.L. 1990, c. C-33. As stated in Holloway Estate v. Giles, 2004 NLCA 8, at paragraph 11, referring to L.N. Klar in Tort Law, 3rd ed. (Toronto: Carswell, 2003) at page 457, in turn referring to Gravells, "Three Heads of ContributoryNegligence" (1977), 93 L.Q.R. 581, contributory negligence can happen in three ways.

The negligence may: (1) contribute to the accident itself, (2) consist in the Plaintiff’s self-exposure to a risk of involvement in an accident or (3) consist inthe failure to take precautions to prevent or minimize possible injuries should an accident occur. [59] Upon review of the evidence I am satisfied that Ms. Kippenhuck was negligent by breaching her duty to walk on the left side ofthe road, and facing traffic, as required by section 128(2) of the HTA. While I accept that breaching a statute does not necessarily equatewith negligence, I am satisfied that in these circumstances, her conduct was negligent.

To walk on the wrong side of the road, atnighttime, even in a residential area, showed a want of care on her part. As per Holloway, the reasonably prudent pedestrian would havewalked facing traffic; especially at nighttime. That would have minimized the risk of being struck. (see Christie v.

Insurance Corp. ofBritish Columbia, (1993), (BC CA), 79 B.C.L.R. (2d) 370) At paragraph 26 of Christie, the British Columbia Courtof Appeal stated: 26 While walking on the wrong side of the road may have no significance in certain circumstances, to do so at night on the highwayin question here, dressed in dark clothing, for no reason other than convenience, exhibits a want of care on the plaintiff's part whichenhanced the likelihood of injury and so contributed to the injury he in fact suffered. [60] Applying the above reasoning to the present circumstances, I find there was a failure by Ms.

Kippenhuck to act in her owninterests to minimize the risk as a pedestrian. As Ms. Kippenhuck testified, she and Mr. Ivany did not even know Mr. Evoy was thereuntil they were hit. If she had been walking on the other side of the street, she may have avoided being hit by Mr. Evoy. I am satisfiedthat when I consider all the circumstances, Ms. Kippenhuck was negligent and this negligence contributed to her injury. Issue 5: Issue 5: If Ms.

Kippenhuck was contributorily negligent, what is the proper apportionment of liability between theparties? [61] As per McLoughlin, at paragraph 48, to determine how liability should be apportioned between the parties the Court mustassess: 48. …the extent to which each party failed to meet the standard of care applicable in the circumstances (Cempel v. Harrison HotSprings Hotel Limited, supra, at paragraphs 19 to 24; Clyke v. Blenkhorn (1958), (NS CA), 13 D.L.R. (2d) 293(N.S.C.A.), at page 304). [62] According to Klar, at page 544, (citing Clyke v.

Blenkhorn, supra), the court must assess the “relative misconduct from theperspective of departures from the standard of reasonable care”, what is also described as the “comparative blameworthiness” of the

parties. The question might also be framed as: “to what degree did the parties depart from the standard of care”. Klar, supra, also cities Heller v. Martens , 2002 ABCA 122 as an example of an approach to apportioning fault.

Klar summarized the considerations discussed in Heller relevant to the determination including: - the nature of the duty owed by the defendant; - the number of acts of fault committed by each party; - the sequence of timing of the negligence; - the nature of the misconduct; and - the extent to which a statutory breach is involved [ 63 ] In Heller , the plaintiff had failed to wear a seatbelt in a vehicle not equipped with a belt. The court apportioned fault at 25% in those circumstances. [ 64 ] Applying the considerations outlined by Klar to the present case, Mr.

Evoy is the party primarily at fault for the injuries sustained by Ms. Kippenhuck. [ 65 ] Having made the decision to drive the Jetta, Mr. Evoy failed to keep a proper lookout for pedestrians. He admitted he did not see Ms. Kippenhuck. While Ms. Kippenhuck was not wearing reflective clothing, the reasonably prudent driver would have anticipated the presence of pedestrians in a residential area. Given that there was street lighting, I am satisfied the reasonably prudent driver would have seen Ms. Kippenhuck, because the reasonably prudent driver would have been looking out for pedestrians.

The reasonably prudent driver would have accounted for the lack of daylight, even with the presence of streetlights, and adjusted their driving accordingly. [ 66 ] Secondly, Mr. Evoy failed to keep his motor vehicle on the pavement. The reasonably prudent driver would not have driven on the shoulder of the road in a residential neighbourhood at night, and certainly not on the shoulder when pedestrians were there at the same time. [ 67 ] These failures in his duty of care support that he must bear the greater degree of fault for the accident. [ 68 ] On the other hand, Ms.

Kippenhuck’s conduct was negligent by not walking facing traffic at nighttime. While I accept that by being on the shoulder, she was walking in an area pedestrians were entitled to be walking, she exposed herself to more of a risk of being struck by a vehicle because she was not facing vehicles that were approaching her and in clothing that made her harder to see. If she had facing oncoming vehicles, she would have seen Mr. Evoy approaching and would have had more time to respond.

Given the direction she was going, if she had been on the other side of the road as she should have been, she might have altogether avoided being struck by Mr. Evoy. [ 69 ] Attaching a quantitative value to the above qualitative assessment of Mr. Evoy’s level of responsibility as the party at greater fault is not the result of a mathematical formula. At one end of the spectrum, if Mr. Evoy was found solely liable, his apportionment would be 100 percent. The mid-point, where both parties are equally at fault means each party would be apportioned 50 percent.

For the reasons above, an equal an apportionment, or 50 percent, would be not appropriate in these circumstances. However, as discussed, I am satisfied some liability must be apportioned to Ms. Kippenhuck. [ 70 ] In Christie , in circumstances similar to the circumstances here, the trial judge apportioned 35 percent liability to the plaintiff by the failure to walk on the proper side of a highway at nighttime and in dark clothing. However, that apportionment of liability was reduced to 10 percent on appeal. [ 71 ] In my view, Mr. Evoy is primarily at fault for the accident, notwithstanding Ms.

Kippenhuck’s failures in her duties, and a similar apportionment is appropriate in these circumstances. I apportion 10 percent liability to Ms. Kippenhuck. CONCLUSION [ 72 ] I find Ms. Kippenhuck has met her burden and I find both Defendants jointly and severally liable to her injuries. Mr. Evoy, through his negligent conduct struck Ms. Kippenhuck and this negligence caused her to suffer injuries. I find Mr. Evoy jointly and severally liable to Ms. Kippenhuck. His fault is apportioned at 90 percent. Mr. Loder is also jointly and severally liable to Ms. Kippenhuck for the negligence of Mr. Evoy, by virtue of

section 200 of the HTA . [ 73 ] Ms. Kippenhuck was contributorily negligent and is apportioned fault at 10 percent. [ 74 ] The Plaintiff, having been largely successful in her claim, shall have her costs on a party and party basis, per column three of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . [ 75 ] This matter is to be returned to the St. John’s General Division, as per the Order of Justice Stack, to set a date for a hearing to determine the appropriate award of damages. _____________________________ Frances J. Knickle Justice