2019 NLCA 5, 2019 NLCA 5

Prashant Jadhav (appellant/respondent by cross-appeal) v. David Kielly (respondent/appellant by cross-appeal) (18/76 and 18/80) Indexed As: Jadhav v. Kielly 2019 NLCA 5 4 C.A.N.L.R. 36 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and White JJ.A. January 22, 2019

Summary: The appellant, Mr. Jadhav, was injured when he was struck by a motor vehicle driven by the respondent, Mr. Kielly. The accident occurred on a night when it was raining heavily, windy and dark. The appellant was dressed entirely in black, without any reflective material, and was walking on the right-hand side of the road, with, rather than against, traffic. The trial judge concluded that the respondent was liable in negligence, but that the appellant was contributorily negligent and 10% at fault. The judge awarded Mr. Jadhav damages of $338,097.19. Mr.

Jadhav appeals against portions of the award of damages. Mr. Kielly cross-appeals against the finding that he was liable in negligence, or in the alternative, against the apportionment of liability. Held: Cross-appeal allowed; unnecessary to determine the appeal. Welsh J.A. (Fry C.J.N.L. and White J.A. concurring): At issue is whether the trial judge erred: (1) in concluding that Mr. Kielly was driving at an unsafe speed, given the road and weather conditions; (2) in concluding that Mr. Kielly left the paved roadway and struck Mr.

Jadhav while he was on the gravel shoulder of the road; (3) in failing to undertake a proper analysis of the issue of causation; and (4) in the alternative, in the apportionment of fault for the accident. The elements necessary to prove an action in negligence are a duty of care, breach of the standard of care, compensable damage, and causation. The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. The trial judge gave reasons for concluding that Mr.

Kielly breached the duty and standard of care owed by drivers to pedestrians. Mr. Kielly had a duty to drive at the speed of a reasonably prudent driver given the road and weather conditions at the time of the accident. The judge also gave reasons why he did not accept a police witness’ opinion that driving at or slightly above the speed limit was reasonable. There is no basis on which to set aside this factual finding by the judge. ______________________________ Leave to appeal to SCC refused, 38560 (June 13, 2019) The trial judge concluded that the vehicle struck Mr.

Jadhav when he was on the shoulder of the road, rather than on the pavement. The question regarding the location of the accident was determined based on: Mr. Kielly’s evidence that Mr. Jadhav was on the pavement when he was struck; since the shoulder of the road was gravel, it could be expected that Mr. Kielly would have been aware of the different surface on which his vehicle was travelling had he strayed onto the gravel from the pavement; the fact that Mr.

Jadhav had no memory of the accident and, therefore, could not say that he was not on the pavement; the failure of the police officer to take photographs or notes or conduct any investigation; and the failure of Mr. Jadhav to subpoena or seek to cross-examine Mr. Kielly at trial or to adduce expert evidence to address the issue. The trial judge erred in concluding that Mr. Jadhav, as the plaintiff, had established on a balance of probabilities that he was struck while

he was walking on the gravel shoulder of the road. There was no foundation on which the judge could rely to infer or determine on a balance of probabilities that Mr. Kielly had driven onto the gravel shoulder and that Mr. Jadhav was on the shoulder when the impact occurred. The onus was on Mr. Jadhav to establish on a balance of probabilities either that he was walking on the gravel shoulder at the time of impact or that, if he was on the pavement, Mr. Kielly could have avoided hitting him if he had been driving more slowly. There was no foundation on which to conclude Mr. Jadhav was walking on the shoulder.

There was no evidence from either party regarding whether driving at a slower speed would have given Mr. Kielly time to react and avoid hitting Mr. Jadhav. Where scientific or expert evidence is not adduced, the plaintiff, in discharging the onus of proof, must provide sufficient evidence from which the judge may draw inferences and conclusions based on common sense. The extent of evidence necessary to discharge the plaintiff’s burden of proof will vary depending on the circumstances. In the appeal before this Court, the trial judge did not conduct a causation, “but for” analysis.

In all the circumstances of this case, the application of common sense could not be relied upon to conclude that the impact would have been avoided if Mr. Kielly had been driving more slowly. More information would be necessary to assess the question of causation. Otherwise, the simple fact that the trial judge found that Mr. Kielly was driving too fast for the conditions would automatically, without a proper and necessary consideration of the “but for” test, result in a finding of liability.

In the result, the trial judge erred by failing to properly consider the question of causation, and in particular, whether there was sufficient evidence to establish that Mr. Jadhav would not have been struck “but for” Mr. Kielly driving at a speed that was too fast given the road, weather and visibility conditions. Accordingly, the cross-appeal should be allowed. It is unnecessary to consider the appeal. Cases cited: Ediger v. Johnston , 2013 SCC 18 , [2013] 2 S.C.R. 98 Clements v. Clements , 2012 SCC 32 , [2012] 2 S.C.R. 181 Benhaim v. St-Germain , 2016 SCC 48 , [2016] 2 S.C.R. 352 McLoughlin v.

Luff , 2003 NLCA 3 , 221 Nfld. & P.E.I.R. 54 Baker v. Russell , 2008 NLCA 51 , 281 Nfld. & P.E.I.R. 247 Counsel: Philip J. Buckingham, for the appellant/respondent by cross-appeal; Peter Shea, for the respondent/appellant by cross-appeal. This appeal was heard on October 18, 2018 before Fry C.J.N.L., Welsh and White JJ.A. The following judgment was filed on January 22, 2019 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] On October 27, 2013, Prashant Jadhav was injured when he was struck by a motor vehicle driven by David Kielly.

The trial judge concluded that Mr. Kielly was liable in negligence, but that Mr. Jadhav was contributorily negligent and 10% at fault. The judge awarded Mr. Jadhav damages of $338,097.19. Mr. Jadhav appeals against portions of the award of damages. Mr. Kielly cross-appeals against the finding that he was liable in negligence, or in the alternative, against the apportionment of liability. [ 2 ] Mr. Kielly applied for and was granted a stay of enforcement of the order under appeal ( 2018 NLCA 50 ).

At the same time, although appeals regarding liability and assessment of damages ordinarily would be heard together, in the circumstances, it was determined that the cross-appeal should be heard and determined first (2018 NLCA 50, at paragraph 16). Accordingly, this decision deals only with the question of liability in negligence.

BACKGROUND [ 3 ] On October 27, 2013, at approximately 10:45 p.m., having left work at the end of his shift, Mr. Jadhav was walking along Brookfield Road in St. John’s. It was raining heavily, windy and dark at the time. In the area where the accident occurred the road is straight with one paved lane of traffic in each direction, with gravel shoulders and no sidewalks. Mr. Jadhav was dressed entirely in black, without any reflective material, and was walking on the right-hand side of the road, with, rather than against, traffic. [ 4 ] At the same time, Mr.

Kielly was driving along Brookfield Road in the same direction as Mr. Jadhav was walking. The trial judge accepted Mr. Kielly’s evidence on discovery that he was traveling at 50 to 55 kilometres per hour where the posted speed limit is 50, and further stated ( 2018 NLSC 97 ): [7] Shortly after [Mr.

Kielly] turned up his windshield wipers to accommodate the rain coming down harder he saw: a shadow, a dark shape come from the shoulder of the road and out into the pathway of my vehicle from my side of the road, so I swerved to avoid, almost, but unfortunately wasn’t able to [avoid striking the pedestrian]. [8] The front right corner of the Jeep hit [Mr. Jadhav]. [Mr. Kielly], to his credit, stopped his vehicle, called 911 and lent assistance to [Mr. Jadhav] until ambulance personnel arrived and were able to transport him to hospital. [ 5 ] Mr.

Jadhav testified that he was walking on the gravel shoulder on the right-hand side of the road, that he never left the shoulder and never walked on the pavement, and that he has no memory of being struck. Mr. Kielly took the position that the shadowy movement he swerved to avoid was on the pavement, but towards the shoulder of the road. Ultimately, the trial judge concluded that Mr.

Jadhav was on the gravel shoulder of the road when he was struck. [ 6 ] The police officer who attended at the scene of the accident did not take notes or photographs and did not conduct an accident investigation or request assistance for that purpose. The judge did not accept the officer’s opinion that Mr. Kielly was driving reasonably and prudently at the time of the accident. Rather, he concluded: [34] … [Mr.

Kielly] ought, in my view, to have substantially reduced his speed in order to account for the fog, heavy rain, water build up on the road, wind and darkness of the night. [ 7 ] At the time of the accident, Mr. Jadhav, a temporary foreign worker, had just begun employment. Due to his injuries he was unable to return to his employment. [ 8 ] I note that Mr. Kielly did not testify at the trial, but relied on the evidence he gave at the examination for discovery proceeding. He was available for cross-examination during the trial or could have been subpoenaed by Mr. Jadhav, who did not pursue either of these options.

For these reasons, the trial judge rejected Mr. Jadhav’s request to draw an adverse inference against Mr. Kielly based on his failure to testify at the trial (decision of the trial judge, at paragraphs 23 and 24). However, the result was that the trial judge did not have the opportunity to hear Mr. Kielly’s evidence first-hand which would, in the ordinary course, have assisted in considering his testimony. ISSUES [ 9 ] At issue is whether the trial judge erred: (1) in concluding that Mr. Kielly was driving at an unsafe speed, given the road and weather conditions; (2) in concluding that Mr.

Kielly left the paved roadway and struck Mr. Jadhav while he was on the gravel shoulder of the road; (3) in failing to undertake a proper analysis of the issue of causation; and (4) in the alternative, in the apportionment of fault for the accident. ANALYSIS Negligence – Legal Principles [ 10 ] In Ediger v.

Johnston , 2013 SCC 18 , [2013] 2 S.C.R. 98 , Rothstein and Moldaver JJ., for the Court, summarized the elements necessary to prove an action in negligence: “a duty of care, breach of the standard of care, compensable damage, and causation” (paragraph 24). [ 11 ] Principles regarding causation are discussed in Clements v. Clements , 2012 SCC 32 , [2012] 2 S.C.R. 181 . McLachlin C.J.C., for the majority, explained: [8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.

Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry.

If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Italics in the original.] … [11] Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident would have happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable. … [ 12 ] For example, in Clements , the accident occurred when the rear tire on the defendant’s motorcycle deflated suddenly due to a nail puncture, causing loss of control with resultant injury to the passenger.

At the time, the motorcycle was overloaded and the defendant was traveling faster than the speed limit in order to pass a vehicle. The matter was remitted for a new trial because the trial judge had

not conducted a proper analysis, applying the “but for” test. [13] In Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, Wagner J., for the majority, summarized principles regardingwhat is necessary in order to prove liability in negligence: [54] In sum, the Court held in Snell [ (SCC), [1990] 2 S.C.R. 311] that “the plaintiff in medical malpractice cases – asin any other case – assumes the burden of proving causation on a balance of the probabilities”: Ediger, at para. 36. Causation need notbe proven with scientific or medical certainty, however.

Instead, courts should take a “robust and pragmatic” approach to the facts, andmay draw inferences of causation on the basis of “common sense”: Snell, at pp. 330-31; Clements, at paras. 10 and 38. The trier of factmay draw an inference of causation even without “positive or scientific proof”, if the defendant does not lead sufficient evidence to thecontrary.

If the defendant does adduce evidence to the contrary, then, in weighing that evidence the trier of fact may take into accountthe relative ability of each party to produce evidence: Ediger, at para. 36. [14] In the case of a motor vehicle accident, the correct standard against which to assess the conduct of the driver is that of areasonably prudent driver in the particular circumstances (McLoughlin v. Luff, 2003 NLCA 3, 221 Nfld. & P.E.I.R. 54, at paragraphs 27and 32). Speed of the Vehicle [15] The trial judge concluded that Mr.

Kielly was driving at an excessive speed for the road and weather conditions given the fog,heavy rain, build-up of water on the road, the wind and the darkness of the night. This is a finding of fact to which a standard of reviewof palpable and overriding error applies. [16] Mr. Kielly admitted that he was driving at or slightly faster than the posted speed limit, which was 50 kilometres per hour.

Thetrial judge rejected the testimony of the police officer that, in his opinion, despite the road and weather conditions, “you could drive thespeed limit or a few kilometers per hour over and still be driving reasonably” (decision of the trial judge, at paragraph 29). The judgereferred to section 110(1)(

a) of the Highway Traffic Act, RSNL 1990, c. H-3, which requires motorists to drive at a speed that isreasonable and prudent having regard to the conditions and “having regard to actual and potential hazards”. The judge also referred tosection 110(3)(

a) which makes it an offence to exceed the speed limit by one to ten kilometres per hour, and concluded: [30] … The maximum speed limit is the fastest one is legally allowed to travel under the best of conditions. As conditions deteriorate,drivers are expected, and obliged by law, to reduce their speed to account for those adverse conditions. … [17] On appeal, Mr. Kielly submits that the trial judge’s conclusion that he should have substantially reduced his speed in thecircumstances was based on an inference without evidentiary foundation amounting to a palpable and overriding error. Mr.

Kielly relieson the evidence of the police officer who had driven to the accident scene and was, on that basis, of the view that a speed at or slightlyover the speed limit was reasonable in the conditions. Mr. Kielly submits that there was no evidence to the contrary. [18] In response, Mr. Jadhav submits that the judge gave reasons for rejecting the police officer’s opinion, including reference to theHighway Traffic Act. There was uncontradicted evidence regarding the poor road, weather and visibility conditions at the time of theaccident.

The judge was satisfied that, in the circumstances, a reasonably prudent driver would have driven at less than the posted speedlimit. That conclusion is consistent with the discussion of the reasonably prudent driver in Baker v. Russell, 2008 NLCA 51, 281 Nfld. &P.E.I.R. 247. In the context of a moose-vehicle collision, Wells C.J.N.L. and Mercer J.A. wrote: [31] Considering all the circumstances as noted it is clear in our opinion that a reasonably prudent driver would have decreased hisspeed appreciably in the area specified by the moose warning sign.

In our view the risk of encountering moose was real, that is, “onewhich would occur to the mind of a reasonable man in the position of the defendant …”. ... One obvious defensive step would be toreduce speed so that the driver can have more time to react to the presence of moose. … As stated in Mustapha v.

Culligan of CanadaLtd., 2008 SCC 27 at para. 7: “A defendant’s conduct is negligent if it creates an unreasonable risk of harm”. … [32] Important factors leading to the foregoing conclusion were the prevailing highway conditions at the time of the accident, thediminished and diminishing light, the presence of a moose warning sign and the gravity of the risk posed by moose.

Drivers should bearin mind that the exercise of the appropriate standard of care may well require drivers encountering these factors to reduce vehicle speedin moose warning areas. [19] As applied in this case, the trial judge gave reasons for concluding that Mr. Kielly breached the duty and standard of care owedby drivers to pedestrians. Mr. Kielly had a duty to drive at the speed of a reasonably prudent driver given the road and weatherconditions at the time of the accident.

The judge also gave reasons why he did not accept the police officer’s opinion that driving at orslightly above the speed limit was reasonable. There is no basis on which to set aside the factual finding by the judge. Location of the Accident [20] The trial judge concluded that the vehicle struck Mr. Jadhav when he was on the shoulder of the road, rather than on thepavement. His reasons for drawing that conclusion were succinctly stated: [39] … When one analyzes [Mr. Kielly’s] evidence it is not clear whether [Mr. Jadhav] was on the shoulder or the pavement. Although [Mr. Kielly], at one point, says that [Mr.

Jadhav] was on the paved portion of the road but closer to the shoulder, it is difficultto say from [Mr. Kielly’s] discovery evidence what, exactly, he is attesting to. [40] We do know, for certain, that the rainfall increased substantially enough that [Mr. Kielly] was forced to turn up the speed of his

windshield wipers. We do know, for certain, that the roadway was covered with water. We can surmise that it would have been difficult to see both the center line of the road and fog line. [41] The contradictions in [Mr. Kielly’s] versions of what, exactly, took place militate against accepting the proposition that [Mr. Jadhav] was on the pavement when he was struck. I am also not unmindful of [Mr. Kielly’s] evidence that he found [Mr. Jadhav] on the shoulder after he had been struck. [ 21 ] Mr. Kielly submits that the trial judge erred in assessing the evidence from which he drew the inference that Mr.

Jadhav was struck while on the shoulder of the road. He submits that his evidence was unequivocal that the accident occurred on the pavement, and further, that there is no evidence to the contrary since Mr. Jadhav had no memory of the accident and the police officer found nothing at the scene to contradict Mr. Kielly. In addition, since Mr. Jadhav was struck by the front right corner of the vehicle when Mr. Kielly swerved to the left, it cannot be inferred, without more, that, because Mr. Jadhav was found on the shoulder of the road, he was on the shoulder when he was struck.

In other words, such a conclusion would require the assistance of expert evidence and is not something of which the judge could take judicial notice or which may be inferred by common sense. [ 22 ] It is most unfortunate that the police officer did not do a proper accident investigation or take photographs or notes. In describing where the impact occurred, Mr. Jadhav submits that Mr. Kielly used a variety of phrases, that is, that: Mr. Jadhav was in his lane; Mr. Jadhav moved from the shoulder to his lane; Mr. Jadhav was in his pathway; Mr.

Jadhav was suddenly in front of him; and he saw a shadow, a dark shape come from the shoulder of the road and out into the pathway of his vehicle from the side of the road. Mr. Kielly never says that he drove or wandered onto the gravel shoulder of the road. Indeed, the above phrases are consistent with the conclusion that the impact occurred on the pavement, rather than on the shoulder. [ 23 ] During the examination for discovery, in response to questions from Mr. Jadhav’s counsel, Mr. Kielly repeatedly used language indicating that Mr. Jadhav was on the pavement at the time of the impact.

In addition to the comments referenced in the above paragraph, he used the following language: “[in comparison to a moose] a sudden movement and something is in front of you”; “it wouldn’t have been in the middle of my lane, it would have been more towards where the shoulder was”; “I saw a black shape in my lane”; “it was something that suddenly was in front of me”; “an object that was suddenly visible in my path”; “the pedestrian was in my laneway”; “he was on the pavement, not on the shoulder”.

Again, none of these phases is consistent with the conclusion that the impact occurred on the gravel shoulder. [ 24 ] When asked at the examination for discovery whether he was “hugging” the shoulder, Mr. Kielly responded that there would have been no reason to hug the shoulder, that there was not much traffic on the road, and while he did not specifically recall, he assumed he would have been in the middle of his lane. [ 25 ] Further, Mr. Jadhav submits that Mr. Kielly gave evidence at the examination for discovery that was different from his statement to the police two days after the accident.

The following exchange took place during the examination for discovery when counsel for Mr. Jadhav cross-examined Mr. Kielly: Mr. Buckingham: Okay, I’ll just read down [the statement to the police], halfway down the page it says, “I left my house to go visit my girlfriend in Paradise. I was travelling west on Brookfield Road. It’s a two lane roadway, one eastbound and one westbound. I would estimate my speed to be about 50 to 55 kilometers an hour”. Would that have been your speed on that day? A. Yeah. Q. Okay, “I was alone, it was dark. Approximately five minutes after I left my home the rain was increasing.

I glanced down to turn the wiper on a higher speed and I looked back up, the rain was heavy, I saw a black shape in my lane”. The only difference there is you’re suggesting today that you saw it move from the shoulder to your lane, and here it just says, “I saw it in my lane”. Do you recall specifically which of those two more accurately reflects what happened? A. Well, yeah, it was, it was something that suddenly was in front of me. Q. Okay. A. So it wasn’t visible in front of me, and then I saw a shadowy movement and it was in front of me. [ 26 ] This exchange does not, as suggested by counsel for Mr.

Jadhav, provide either contradictory evidence or evidence that the impact occurred when Mr. Jadhav was on the gravel shoulder. [ 27 ] The trial judge’s reliance on contradictions in Mr. Kielly’s evidence and uncertainty where the impact occurred is not supported by the above. Since Mr. Kielly did not testify at the trial, the judge did not have the opportunity to observe him or to seek clarification or further explanation. As set out above, the judge refused to draw an adverse inference against Mr.

Kielly based on his failure to testify at the trial since “defence counsel offered to produce the witness should plaintiff’s counsel have desired to cross-examine him” (decision of the trial judge, at paragraph 24). Alternatively, Mr. Jadhav could have subpoenaed him or cross-examined him on his discovery evidence. [ 28 ] Further, while Mr. Jadhav maintained that he had not left the gravel shoulder, he admitted that he had no recollection of the accident. Although it was his apparent intention to remain on the gravel, he was unable to say that, at the time of the impact, he was not on the pavement.

Indeed, he specifically repeated in cross-examination that he did not know or remember where he was located when he was struck. In determining that the accident occurred when Mr. Jadhav was on the shoulder, the judge makes no reference to Mr. Jadhav’s testimony. There is no indication that he was relying on Mr. Jadhav’s evidence in this regard. It follows that, without contradictory evidence from Mr.

Kielly, the trial judge did not have evidence from which to reach the conclusion that the accident occurred on the gravel shoulder. [ 29 ] In addition, there is no basis for the trial judge’s statement that, “We can surmise that it would have been difficult to see both the

center line of the road and the fog line” (paragraph 20, above). On the contrary, it could be expected that paint used to place markings on roads would be such that the markings could be seen using a vehicle’s headlights even when the road was wet. Without more, the judge’s inference cannot be drawn on the basis of common sense. [ 30 ] The trial judge expressed frustration with the police officer’s testimony and did not rely on it. He emphasized the officer’s failure to conduct a proper investigation or take notes: [32] Regrettably, Cst.

Wright made up his mind about liability without benefit of a thorough investigation. This finding is aided by the general occurrence report filed by Cst. B. Osmond, who was Cst. Wright’s superior.

In that report he outlined the following: Areas of Concern: - whether or not the pedestrian was walking on the gravel shoulder of the road or the pavement. - was the pedestrian visible to motorists driving at reasonable speed given the driving conditions. * placement of light sources lighting the roadway. * clothing worn or items being carried by pedestrian. * any reflective items. - road lines (center line and fog lines) clearly visible in area to assist driver in maintaining proper driving position. - any mechanical issues with the vehicle, did the front defog work, was the windshield clean inside, were the wipers good, headlights working (hot shock?). [33] And although Cst.

Wright referred the matter to Accident Investigation in the Royal Newfoundland Constabulary, there was no follow up, no accident investigation and the matters raised by Cst. Osmond were never answered. [ 31 ] In

summary, the question regarding the location of the accident must be determined based on: Mr. Kielly’s evidence that Mr. Jadhav was on the pavement when he was struck; since the shoulder of the road was gravel, it could be expected that Mr. Kielly would have been aware of the different surface on which his vehicle was travelling had he strayed onto the gravel from the pavement; the fact that Mr.

Jadhav had no memory of the accident and, therefore, could not say that he was not on the pavement; the failure of the police officer to take photographs or notes or conduct any investigation, leaving unanswered the issues raised by Constable Osmond; and the failure of Mr. Jadhav to subpoena or seek to cross-examine Mr. Kielly at trial when offered or to adduce expert evidence to address the issue. [ 32 ] In the circumstances, I am satisfied that the trial judge erred in concluding that Mr.

Jadhav, as the plaintiff, had established on a balance of probabilities that he was struck while he was walking on the gravel shoulder of the road. There was no foundation on which the judge could rely to infer or determine on a balance of probabilities that Mr. Kielly had driven onto the gravel shoulder and that Mr. Jadhav was on the shoulder when the impact occurred. [ 33 ] In the result, the question of causation must be addressed without a finding that the impact occurred when Mr. Jadhav was on the shoulder of the road. That said, the evidence is clear that Mr.

Jadhav was, at least, near the gravel shoulder when he was struck. Causation [ 34 ] The trial judge concluded that Mr. Kielly was driving at an excessive speed given the road and weather conditions. This is not, of itself, sufficient to establish Mr. Kielly’s liability in negligence. The question is whether Mr. Jadhav established on a balance of probabilities that he would not have been injured “but for” Mr. Kielly driving at a speed that the judge found was excessive for the conditions. A central factor in the analysis is the location of Mr. Jadhav and the vehicle at the time of the accident.

In the absence of evidence to the contrary, had Mr. Kielly been driving on the pavement and Mr. Jadhav walking on the gravel shoulder, the accident would not have occurred even had Mr. Kielly been driving at 50 to 55 kilometres per hour. [ 35 ] The onus was on Mr. Jadhav to establish on a balance of probabilities either that he was walking on the gravel shoulder at the time of impact or that, if he was on the pavement, Mr. Kielly could have avoided hitting him if he had been driving more slowly. As discussed above, there is no foundation on which to conclude on a balance of probabilities that Mr.

Jadhav was on the shoulder of the road when he was struck. [ 36 ] There was no evidence from either party regarding whether driving at a slower speed would have given Mr. Kielly time to react and avoid hitting Mr. Jadhav. Where scientific or expert evidence is not adduced, the plaintiff, in discharging the onus of proof, must provide sufficient evidence from which the judge may draw inferences and conclusions based on common sense. In conducting the analysis, it is relevant that Mr.

Jadhav did not provide evidence as to: the placement of light sources lighting the roadway where the accident occurred; the width of the paved lane on which Mr. Kielly was driving; the width of the gravel shoulder; whether there was other traffic or the frequency of traffic as Mr. Jadhav walked along; whether there were other pedestrians; whether the water build-up on the road was sufficient to cause Mr. Kielly’s vehicle to skid; the condition of the tires on Mr. Kielly’s vehicle and any deficiencies in the vehicle.

Expert evidence as to driver reaction times and the effect of swerving or braking at various speeds would have assisted the judge in determining whether this was a case of inevitable accident. [ 37 ] Mr. Jadhav distinguishes the decision in McLoughlin v. Luff , supra , on the basis that in that and similar cases, the plaintiff had put himself in danger. That is, for example, in McLoughlin the vehicle in which the plaintiff was riding had crossed into the path of on- coming traffic. In this case, assuming, as discussed above, that Mr. Jadhav was on the paved roadway, walking in the same direction as

traffic, dressed all in black late at night when he was struck, he had, in fact, placed himself in danger. In McLoughlin , the requirement for evidence is addressed: [35] There was, in fact, no evidence that the collision would have been avoided if Cole’s speed had not been excessive. McLoughlin did not adduce evidence as to such factors as the time, distance and opportunity available to Cole to take effective measures to avoid the accident.

While one of the experts stated his belief that Cole should have braked when he saw the McLoughlin vehicle go out of control, he did not provide any specific evidence regarding such critical information as reaction time, the ice coefficient, and the probable effect that braking would have had on Cole’s attempt to avoid the accident while retaining control of his tractor-trailer.

Nor did this witness identify a lower speed which would have permitted Cole to take action so as to avoid the accident. … [ 38 ] The inference from this evidence is that, even if Cole had been travelling very slowly, he would probably not have been able to brake and still retain control of his tractor-trailer. In the circumstances, it was incumbent on the McLoughlins to adduce evidence to establish, on a balance of probabilities, the maximum speed at which Cole would have to have been travelling in order to avoid the accident.

In the absence of such evidence, it cannot be assumed or inferred that Cole would have been able to avoid the accident if he had been travelling at a slower speed. [38] The extent of evidence necessary to discharge the plaintiff’s burden of proof will vary depending on the circumstances. In this case, the only evidence was the testimony of Mr. Jadhav and Constable Wright at trial and the examination for discovery evidence of Mr. Kielly. The police officer’s failure to take photographs or notes or to conduct even a minimal accident investigation led the trial judge to give no weight to his testimony. Mr.

Jadhav had no memory of the accident. [ 39 ] I would contrast this lack of evidence with the evidence adduced in Baker v. Russell , supra , involving a moose-vehicle accident.

In that case, there was significant evidence adduced regarding factors such as: the near location and details of a moose-warning sign; a line of sight of 945 metres; a description of the divided highway “separated by a four metre median with a maximum depth of .4 metres”; cleared land on either side of the highway “within approximately 90 metres of the highway”; the wet road surface due to heavy mist or light drizzle; a motor vehicle inspection after the accident that revealed deficiencies that did not cause or contribute to the accident; after- impact speed of the vehicle at approximately 90 kilometres per hour; evidence provided by an accident expert who was called by the defendant; the time when the sun set and weather conditions as they affected the light; a photo exhibit; evidence from the expert as to perception-reaction time and the distance a vehicle would travel from the initial perception; speed at which the moose was moving and its effect (paragraphs 4 to 11).

On appeal, this Court concluded that the defendant’s failure to reduce his speed in all the circumstances breached the standard of care and was “part of the cause of the accident” (paragraph 38). [ 40 ] In the appeal before this Court, the trial judge did not conduct a causation, “but for” analysis. Further, because he concluded that the impact occurred when Mr. Jadhav was on the gravel shoulder, he did not consider the alternative, that is, that Mr. Jadhav was on the pavement. There is no evidence regarding the street lighting and signage on the roadway where the accident occurred, though both Mr. Kielly and Mr.

Jadhav said it was dark. Nor is there evidence as to the frequency of pedestrians on that roadway at that time of night. This may have been relevant given that Mr. Kielly travelled that roadway regularly between his residence and that of his girlfriend. Mr. Jadhav did not adduce evidence as to the width of either the paved lane or the shoulder where the accident occurred. That information may have assisted in the analysis given that Mr. Jadhav, while on the pavement, was, at least, near the shoulder. By walking on the road, in the direction of traffic in dark clothing late at night, Mr.

Jadhav put himself in danger. Mr. Kielly’s evidence was that when he saw the dark shadow that was Mr. Jadhav, he immediately swerved to avoid an impact. [ 41 ] In all the circumstances, the application of common sense could not be relied upon to conclude that the impact would have been avoided if Mr. Kielly had been driving more slowly. More information would be necessary to assess the question of causation. Otherwise, the simple fact that the trial judge found that Mr.

Kielly was driving too fast for the conditions would automatically, without a proper and necessary consideration of the “but for” test, result in a finding of liability. [ 42 ] In circumstances such as these, where the driver’s speed is the sole basis for finding negligence related to the accident, and the speed was near or just slightly more than the speed limit, application of the “but for” test will ordinarily involve expert evidence regarding factors such as perception-reaction times, the distance a vehicle would travel from the initial perception at various speeds, and the effect of swerving when the object was at various locations on the road. ( See Baker v.

Russell , paragraph 39 , above.) In this case, while the trial judge determined that Mr. Kielly should have been driving more slowly given the conditions, there was no information on which the judge could determine that the accident would not have occurred but for Mr. Kielly’s negligence in travelling at 50 to 55 kilometres per hour. [ 43 ] In the result, I am satisfied that the trial judge erred by failing to properly consider the question of causation, and in particular, whether there was sufficient evidence to establish that Mr. Jadhav would not have been struck “but for” Mr.

Kielly driving at a speed that was too fast given the road, weather and visibility conditions. A proper application of the “but for” analysis leads to the conclusion that Mr. Jadhav failed to provide sufficient evidence regarding the element of causation to discharge the onus of proving on a balance of probabilities that Mr. Kielly was liable in negligence.

SUMMARY AND DISPOSITION [ 44 ] In

summary, (1) there is no basis on which to set aside the trial judge’s conclusion that Mr. Kielly was driving at an excessive speed given the road, weather and visibility conditions; (2) the trial judge erred in concluding that Mr. Jadhav had discharged the burden of establishing that he was struck while walking on the gravel shoulder; (3) the trial judge erred by failing to conduct a proper assessment of the element of causation; and (4) in the circumstances, Mr. Jadhav did not provide sufficient evidence to discharge the burden of establishing the element of causation, which is a necessary precondition to finding Mr. Kielly liable in negligence.

[ 45 ] Accordingly, I would allow the cross-appeal with costs under column 3 in this Court. It is unnecessary to consider Mr. Jadhav’s appeal. Cross-appeal allowed; unnecessary to determine the appeal.