Eugeniusz Jablonowski - v. -, 2015 SKPC 005

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: January 8, 2015 Citation: 2015 SKPC 005 File: File # 442/14 Location: Regina, Saskatchewan Between: Eugeniusz Jablonowski - and - Logan Hall Peter Jablonowski For the Plaintiff Howard Hall For the Defendant JUDGMENT P. DEMONG , J Introduction [ 1 ] The plaintiff brings this negligence action against the defendant seeking damages to his motor vehicle arising from an incident which occurred on July 12, 2014 while driving on Highway 1 near the Village of Pense, Saskatchewan. [ 2 ] The plaintiff has authorized the then driver of his vehicle, Peter Jablonowski, to act as his agent in these proceedings.

[ 3 ] The defendant chose not to respond to his Summons to appear at Trial. Instead, his father, Howard Hall, presented as his agent. [ 4 ] The defendant has denied that he was negligent either in whole or in part. He does not dispute the quantum of damages claimed, which is in the sum of $700.00 and which constitutes the cost of the insurance deductible paid by the plaintiff to fix his vehicle. Evidence [ 5 ] On July 12, 2014, during daylight driving hours, Peter Jablonowski was driving his father ’ s vehicle, a 2004 Chevrolet Aveo, eastbound on highway 1 between the cities of Moose Jaw and Regina.

He was driving in the southernmost lane of travel. The one furthest from the centre ditch. He was proceeding at about 115 kilometres per hour. [ 6 ] As he approached the turnoff to the village of Pense, he noticed a farm tractor pulling a large Schulte cutter. A cutter is a wheeled agricultural attachment which is about 6 feet wide and which, when attached to the back of a tractor, is used, among other things, to cut weeds along the sides and in the ditches of highways.

It can be best described as a large, powerful, pulled lawn mower. [ 7 ] The tractor and attached cutter was proceeding in a westerly direction on highway 1 into the face of oncoming eastbound traffic. It was situated partially on the shoulder of the median lane of eastbound traffic and partially into the ditch. It was obviously cutting the weeds which had accumulated along the centre of the highway.

It was moving slowly. [ 8 ] The tractor had an orange light sitting on top of the cab but there was no evidence led as to whether or not that orange light was either blinking or illuminated. [ 9 ] Just as Peter was passing the tractor and cutter, he heard and felt several loud pounding noises against the exterior of the driver ’ s side of his vehicle. He pulled over to the shoulder of the highway, exited the car and noted a series of scratches, dents and abrasions along the length of his car. One of his door handles had been knocked off and smashed.

There was a hole in his driver ’ s side door which had fully penetrated the frame of his vehicle. [ 10 ] Peter quickly came to the conclusion that as he had passed the tractor, the cutting blade of the cutter had whipped rocks and gravel out and across the highway and toward his vehicle, striking it multiple times.

He came to this conclusion after confirming that there were no other vehicles within the vicinity of this incident and because of his close proximity (a little over a highway lane ’ s width) from the cutter as he drove by. [ 11 ] Peter drove back to the tractor and had a short conversation with its operator, Logan Hall. Peter explained what had happened and asked Logan what he intended to do about the damage to the Jablonowski vehicle. Logan advised that he was not prepared to do anything. [ 12 ] Peter then contacted SGI and the Department of Highways and was told that they could do nothing for him.

Eugeniusz subsequently submitted a claim to SGI using his own insurance to have his vehicle repaired and paid his insurance deductible of $700.00. [ 13 ] At trial Peter submitted photographs of the Jablonowski vehicle which confirmed the extent of the damage. He also submitted an appraisal estimate showing that the cost to repair the vehicle, inclusive of taxes, equated to slightly more than $3900.00. [ 14 ] Peter submitted a photograph of the tractor and attached cutter into evidence. He took this photograph when he was talking to Logan immediately after the incident.

He advised that the photograph fairly depicts the approximate positioning of the cutter when he

drove by it. That is to say, the cutter is situated partially on the shoulder and partially into the ditch. [ 15 ] This photograph clearly shows accumulated rock and gravel near and underneath the equipment. In addition, because of the gradual downward slope of the ditch, the cutter is angled such that its left side is slightly more elevated than the right. [ 16 ] In consequence, one can readily see that there is a space of between perhaps four and eight inches between the metal surround of the cutter and the road.

There is no doubt in my mind that as this equipment moves along the uneven surfaces between the ditch and the shoulder of the highway, this space would rise and drop. When one looks at the cutter one can readily envisage a cutting blade sweeping rock, gravel and debris out from under it and to the sides of the cutter. There is no visible guard on the cutter to prevent this from happening. [ 17 ] On cross-examination Howard Logan asked Peter two questions. He was asked about his speed at the time of the incident and whether or not he had noticed the orange lamp atop the tractor.

Peter confirmed his speed as 115 kilometres per hour, and that yes, he had seen the orange lamp. [ 18 ] As stated, Logan Hall chose not to attend the trial. He chose to go to work instead. His father, Howard Hall, attended in his place and advised the Court that Logan had been working for him at the time of the incident pursuant to a subcontract Howard Hall had with the government. He stated that he would testify instead of Logan as to what transpired based on what Logan had told him.

When he was advised that this would be hearsay and that he could not testify to these matters in the place of his son, he indicated that his only other witness would be Logan ’ s mom who would testify as to Logan ’ s character. [ 19 ] I expressed my concern about this kind of evidence. I indicated that it would not be particularly helpful.

If the only evidence to be tendered by her would be an affirmation that Logan is a generally careful young man, this evidence alone would not be of much utility, particularly in the absence of any evidence from Logan himself. [ 20 ] Howard considered this and chose to call no evidence whatsoever. In the result I have no evidence as to what if any protective equipment this cutter may have had or not had and whether or not it comes from the manufacturer with certain safety features which were modified or not.

I have no evidence as to whether there were signs posted warning of potential danger to other users of the highway. I have no evidence other than that which was given by Peter. Analysis [ 21 ] In order to succeed in this negligence action the plaintiff carries the burden of proving, on a balance of probabilities, that the damage to the Jablonowski vehicle was caused by, or was contributed to, by the negligent actions of the defendant.

In addition, he must satisfy the Court that Logan owed a duty of care to other users of the highway and that in conducting his activities he fell below the standard of care of a reasonable prudent operator of equipment on a highway. [ 22 ] In the circumstances, I have no hesitation in concluding that the damage to the Jablonowksi vehicle arose precisely in the manner explained to me by Peter.

I am satisfied that as he drove by the cutter, rocks and gravel were swept from the ground and out the left side of the cutter with sufficient force to fully penetrate the driver ’ s side door of the Jablonowski vehicle. [ 23 ] In final argument, Howard Hall ’ s only defence was to argue that Peter was travelling too fast, because the presence of an orange lamp atop the tractor created what he described as ‘ an orange zone ’ . He did not articulate or expand on this line of argument.

Presumably, he wanted the Court to infer that as a result of this presumed ‘ orange zone ’ there were a number of driving protocols that Peter should have observed. What are these? Were there flag men present? Were there warning signs and speed limit signs posted? Was Peter obligated to pull his vehicle off the highway until the tractor had passed?

In the absence of any evidence on this point or further clarification as to the nature of this defence I am not prepared to conclude that Peter did anything wrong. [ 24 ] Specifically, I am not prepared to conclude that Peter ’ s speed caused or in any way contributed to the damages the Jablonowski

vehicle sustained. Quite the contrary. While it is certainly prudent to slow down in the face of on oncoming tractors it is clear to me thatthe cutter was whipping up rock and gravel and spraying these onto the highway.

Had the Jablonowski vehicle slowed to 60 kilometresper hour or less it would have been within the area of spray for a proportionately longer period of time and arguably would havesustained more damage than it did. [25] On a review of the evidence available to me I am satisfied that the damage to the Jablonowski vehicle was directly and solelyattributable to the operation of the tractor and cutting unit and the subsequent spitting up of rock and gravel towards oncoming traffic. [26] I am also satisfied that Logan Hall, as an operator of agricultural equipment on or near a public highway, owed a general duty ofcare to other users of this public highway in the general proximity of the defendant’s activities.

The harm that occurred is, in my view, areasonably foreseeable consequence of using a powerful cutting implement on the side of any road which may have rock and gravelstrewn along it’s shoulders. Any reasonable person having once used a mower recognizes the natural and indeed intended proclivity of amower to expel materials from the side of that mower. This should be particularly evident to a person who engages in this activity for hislivelihood.

A prima facie duty of care therefore exists. [27] Because I cannot identify any residual policy reasons outside of the relationship of the parties that should negative tort liability Iconclude that Logan Hall owed a duty of care to Peter. That duty of care demanded that, in the conduct of his activities, he takereasonable steps to prevent against the creation of an unreasonable risk of harm or loss to other users of the highway. [28] Other than describing the means by which the loss occurred, Peter provided no evidence on the appropriate standard of care by which Logan should have comported himself.

As noted by G.H.L. Fridman, The Law of Torts in Canada 3rd ed. (Toronto: Carswell,2010) at p. 363 what constitutes the appropriate application of a standard of care is a mixed question of fact and law. [29] In DesBrisay v Canadian Government Merchant Marine Ltd., (SCC), [1941] SCR 230 our Supreme Courtconfirmed that the standard of care depends on the facts of each case. It is not a matter of uniform standard.

It may vary according to thecircumstances from man to man, from place to place, from time to time. [30] Often times, a party litigant will be obliged to tender expert evidence to assist the Court in attempting to ascertain what theappropriate standard of care should be. I do not think expert evidence is required in each and every case in which standards of care are to determined. In R v Mohan, (SCC), [1994] 2 SCR 9, 114 DLR (4th) 419 at para 17 our Supreme Court, provided a fourpart test to determine when expert evidence is admissible. That evidence must be relevant.

It must be necessary in assisting the trier fact.The expert should be properly qualified and there should be an absence of any exclusionary rule. [31] I will focus on the second criteria. Mohan discusses when an expert need be used: (

a) to provide the judge and jury with a readymade inference which the judge and jury, due to the technical nature of the facts, are unable to furnish; (

b) if the opinion is necessary inthe sense that it provide information which is likely to be outside the experience and knowledge of the judge or jury; (

c) if the evidenceis necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature; (

d) if the subject matter of theinquiry is such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge; (e)if it is in an area that is not understood by the average person: but, (

f) if on the proven facts a judge or jury can form their ownconclusions without help, then the opinion of an expert is unnecessary. [32] I believe that Mohan makes it clear that expert evidence on the issue of any given standard of care need not be provided unless thefinder of fact is unlikely to reach the correct conclusion without the assistance of an expert to assist on technical matters outside of theordinary scope of the Court’s experience and understanding. [33] In Krawchuk v Scherbak 2011 ONCA 352 , 106 OR (3rd) 598 at paras 133-135 the Ontario Court of Appeal, outlinedtwo exceptions to the general rule that expert evidence is required in the articulation of a professional’s standard of care.

While I am notprepared to conclude that Logan is or was a ‘professional’ as that term is generally understood, while he was cutting the weeds along theside of the ditch, the exceptions would, in my view, apply to him in the course of operating the tractor and cutter. The first exception iswhere the matters are of a non-technical nature and therefore within the ordinary knowledge of the trier-of-fact. The second exception iswhere the defendant’s conduct is so egregious that it would be obvious that the conduct has fallen short of the standard of care, evenwithout knowing precisely the parameters of that standard.

[ 34 ] As I review the evidence, I do not think that I require an expert ’ s assistance to conclude that operating a cutter on a highway exposes users of that highway to certain risks and that therefore an operator of that equipment should take certain precautions to prevent against or minimize those risks.

I cannot help but think of the potentially horrific and devastating consequences that might have occurred if, rather than a vehicle, a cyclist and her family had been biking into the cutter ’ s spray zone and were hit with rocks travelling at such a tremendous velocity that rock could fully penetrate a vehicle ’ s door panel. [ 35 ] The standard of care adopted by negligence law is an objective standard, not a subjective one. Conduct is negligent if it creates an unreasonable risk of harm. The Court must balance the danger created by the defendant ’ s conduct against the utility of the conduct in question.

The risk analysis must consider, and balance, the likelihood that harm may occur, and the seriousness of that harm, against the utility of the activity in question and the burden of reducing or eliminating that risk. [ 36 ] There is no question that there is a significant utility in ensuring that the weeds in the ditches along Saskatchewan ’ s highways are trimmed and kept short, but absent some reasonable steps to reduce or eliminate the very real risk of potentially serious injury or damage or loss to others in the course of this activity, the utility of this undertaking does not outweigh the hazard that was created with the equipment used. [ 37 ] I am unable to list all of those steps that can or should have been taken to ameliorate or reduce that risk, nor is it my function to do so, but I would think that at minimum the cutter should be equipped with a guard or some protective device which will reduce the likelihood, frequency, and velocity of the projectiles that are emitted from that equipment.

Alternatively, the operator of that equipment should stop or slow down as vehicles approach. [ 38 ] Regardless of which steps should have been taken, the failure of Logan Hall to take any steps to prevent against the risk that arose, or, to put it more properly, give evidence as to what if any steps he did take, leads me to the inevitable conclusion that he failed to exercise the standard of care of a reasonably prudent and careful operator of this machinery in the immediate vicinity of other users of the highway. As per Krawchuk the sequence of events and cause of loss are rather non-technical.

The nature of the conduct giving rise to the loss and its effect - spewing high velocity rock and gravel into the path of oncoming vehicles - is fairly stated as egregious. [ 39 ] For the foregoing reasons I am satisfied that Logan Hall breached the standard of care required of him in these circumstances and was negligent, and that his negligence was the sole and proximate cause of the damage to the Jablonowski vehicle. [ 40 ] I award damages to Eugeniusz Jablonowski in the amount of $700.00 as sought. In addition I award prejudgment interest on that amount from July 12, 2014, in the sum of $3.24.

Mr .Jablonowski is entitled to his costs which I fix at $34.95. [ 41 ] In total I award the sum of $738.19, which I order be paid immediately. P. Demong, J