Noftall v. Evely, 2014 NLCA 30

Date: 20140 814 Docket: 12/03 Citation: Noftall v. Evely , 2014 NLCA 30 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: DOUGLAS NOFTALL APPELLANT AND: MELISSA EVELY FIRST RESPONDENT AND: JODI OLIVER SECOND RESPONDENT AND: ST. JOHN’S TRANSPORTATION COMMISSION THIRD RESPONDENT AND: THE CITY OF ST. JOHN’S FOURTH RESPONDENT AND: VICTOR FLEMING FIFTH RESPONDENT Coram: Rowe, White and Hoegg JJ.A.

Court Appealed from: Supreme Court of Newfoundland and Labrador Trial Division (G) 201401T1518 (2011 NLTD(G) 164) Appeal Heard: February 10 and 11, 2014 Judgment Rendered: August 14, 2014 Reasons for Judgment by Hoegg J.A. Concurred in by White J.a. Separate Concurring reasons by Rowe J.A. Counsel for the Appellant: Dana Lenehan Q.C. Counsel for the First and Second Respondents: Natalie S. O’Donnell Counsel for the Third, Fourth and Fifth Respondents: Gerry R. Fleming Hoegg J.: INTRODUCTION [1] This case concerns liability for a motor vehicle accident which occurred on March 26, 2002, at St. John’s.

Shortly before 9a.m. on that date, Douglas Noftall dropped off his wife for work at an office building located at 251 Empire Avenue. Mr. Noftall exitedthe building parking lot and attempted to make a left turn to drive west on Empire Avenue (Empire). As he was attempting to executehis turn, the driver’s side of his minivan collided with the front driver’s side of a Metrobus, which was being driven by Victor Fleming inan easterly direction on Empire. Upon impact, Mr. Noftall’s minivan spun backwards and collided with a red Toyota which had alsobeen travelling east on Empire.

Melissa Evely and Jodi Oliver were Metrobus passengers who were injured in the collision. The trialjudge found Mr. Noftall 100% liable for the collision. [2] Mr. Noftall appeals to this Court alleging that the trial judge made legal error in his assessment of the evidence and palpableand overriding errors of fact which caused him to wrongly decide liability for the accident. Facts and Trial Evidence [3] The trial took seven days and ten witnesses gave evidence. [4] It is not disputed that when Mr. Noftall exited the parking lot to turn left onto Empire, he had to drive across the eastboundtraffic lane to do so.

There is also no dispute that the eastbound traffic lane adjacent to 251 Empire was wide enough for two lanes ofeastbound traffic despite not being so marked. Just east of the entrance/exit of 251 Empire, the eastbound lane divides into two markedlanes ‒ one for traffic turning left onto Freshwater Road and one for traffic continuing east through the intersection of Empire withFreshwater Road. On March 26, 2002, the markings on Empire were faint to non-existent due to their having been worn by winterweather conditions. [5] At trial Mr.

Noftall testified that in exiting the parking lot, he stopped at the stop sign and a burgundy van in the eastboundlane stopped and waved him to proceed onto Empire. He said he drove across the path of the burgundy van and when he was in theprocess of executing a left turn to go west on Empire he collided with the Metrobus. Mr. Noftall says that the Metrobus was on the leftside of the eastbound lane passing traffic which was backed up to proceed straight through the Empire/Freshwater Road intersection. Mr.

Noftall contended that the eastbound Metrobus was in a lane “of its own creation” when the collision occurred. According to Mr.Noftall, he had no obligation be on the lookout for it because it was not supposed to be there. He further maintained that the Metrobusdriver ought to have seen and yielded to him as he exited the parking lot and crossed in front of the eastbound van that had stopped forhim, and that therefore Metrobus is liable for the accident. [6] Mr.

Fleming testified that as he approached the entrance/exit to 251 Empire, he began to pull to the left side of the eastboundlane in preparation for entering the left-turn lane to turn onto Freshwater Road. He denied that traffic was backed up in the eastboundlane and that he was passing it at the time of the collision. He said his focus was on driving his bus safely along Empire as heapproached the intersection and that he was not looking for vehicles that might be exiting from the parking lot at 251 Empire. He said hedid not see Mr.

Noftall’s vehicle until just before impact ‒ in time to shout a warning to his passengers. [7] Mr. Fleming gave several statements shortly after the accident. (A party’s proved admissions are admissible against him or herfor the truth of their content in both civil and criminal matters (R. v. Evans, (SCC), [1993] 3 S.C.R. 653-664)). [8] In Mr. Fleming’s statement to Constable Foley of the Royal Newfoundland Constabulary on April 2, 2002 at 1:07 p.m., he

said: I was driving east on Empire Ave. Traffic was backed up in the right hand lane when I reached the left turn lane for Freshwater Rd. I entered it as I continued east a blue van came out of the parking lot of the Ford Motor Credit Building and entered my path. I collided with the van. [ 9 ] Mr. Fleming gave two more statements on April 3, 2002. In the one given to insurance adjuster Marilyn Pike, he said: I was travelling east on Empire Avenue in the left-turning lane to turn left onto Freshwater Road. The left-turning lane starts about 8-10 feet before the intersection of 251 Empire Avenue parking lot.

I was going about 15 km an hour. The weather was good and the roads were dry. A blue van pulled out from parking lot of 251 Empire Avenue across two lanes of traffic and it collided with the bus. I didn’t have a chance to stop. I braked but it was too late. In the one given to insurance adjuster Bev Parsons on April 3, 2002 he said: I was proceeding east on Empire Ave. I had just about a full load aboard – 60 people. I stopped at the bus stop across from the Taxation Centre and let off some students. I pulled back into the traffic which was heavy at the time.

There was a lineup of traffic on the inside lane, just past O’Dea Pl. I went into the intersection where the p. lot of 251 Empire Ave exits onto Empire Ave. heading east towards the left turn lane and traffic lights at Freshwater Rd. I was going about 15 to 20 km when a vehicle just came out in front of me. I slammed on the brakes and braced myself against the wheel. The left front of the bus collided with the driver’s side of this vehicle. [ 10 ] Karen Webber, who was a passenger standing at the front of the Metrobus at the time of the collision, testified that she saw Mr.

Noftall’s vehicle pull quickly away from the building and drive out of the parking lot of 251 Empire without stopping at the stop sign and into the path of the Metrobus in an attempt to turn left on Empire. She could not recall seeing a burgundy van or another vehicle beside the Metrobus at the time of impact. Ms. Webber had no connection to any of the parties involved in the collision. [ 11 ] Constable Paul Didham was one of the Royal Newfoundland Constabulary officers who investigated the accident. He attended at the scene. He testified that the front driver’s side corner of the Metrobus struck Mr.

Noftall’s van along its left side from the driver’s door forward. The point of impact on the respective vehicles was not disputed, and in any event, speaks for itself. [ 12 ] Joseph Correia gave expert evidence respecting the speeds and locations of the Metrobus and Mr. Noftall’s van at the time of the collision, the trajectory of Mr. Noftall’s vehicle on impact and the time Mr. Fleming had to react to and avoid colliding with Mr. Noftall’s vehicle. Mr.

Correia’s evidence was based on, among other things, measurements and material that police and insurance companies had generated from their investigations of the accident, maps and drawings provided by city officials respecting Empire Avenue, and statements given by Mr. Fleming and Mr. Noftall shortly after the accident. The Trial Decision [ 13 ] The trial judge found that Mr. Noftall exited from 251 Empire without stopping at the stop sign and that he collided with the Metrobus in the manner described in paragraph 1, above. The trial judge found that Mr.

Fleming was driving the Metrobus in the eastbound lane and that it had not been overtaking a burgundy van or any other traffic. In fact, the trial judge found that there had never been a burgundy van which had waved Mr. Noftall out onto Empire. The trial judge found that Mr. Noftall was in breach of his statutory duties to yield the right of way to oncoming traffic and to proceed cautiously from the exit of 251 Empire. The trial judge found that the Metrobus was lawfully proceeding east on Empire and that Mr. Fleming was keeping a proper look-out at all times despite not seeing Mr.

Noftall’s vehicle until just prior to the collision. The trial judge concluded that the driver of the Metrobus did not have sufficient opportunity to avoid the collision, and that the collision was “a product only of the negligence of Mr. Noftall”. Consequently, he found Mr. Noftall 100% liable for the accident. The Appeal [ 14 ] Mr. Noftall alleges that the trial judge erred in law in his approach to and treatment of Mr. Fleming’s evidence. Specifically, he argues that the trial judge failed to address the differences between Mr. Fleming’s testimony and his previous statements, to assess all of Mr.

Fleming’s evidence in the context of the other trial evidence, and to explain why he accepted Mr. Fleming’s trial testimony and rejected Mr. Noftall’s evidence. Mr. Noftall also argues that the trial judge made palpable and overriding factual errors respecting the evidence of witnesses Ms. Karen Webber and Mr. Joseph Correia. Mr. Noftall maintains that all of the trial judge’s errors caused him to err in his determination of liability for the accident. Standard of Review [ 15 ] Mr. Noftall argues that the trial judge’s incorrect analytical approach to assessing Mr.

Fleming’s evidence was an error in law subject to the correctness standard of review, and he relies on Performance Factory Inc. v. Atlantic Insurance Co. , 2013 NLCA 11 , 333 Nfld. & P.E.I.R. 191, to support his position. Performance Factory involved the assessment of prior statement evidence given by the plaintiffs which was denied by them at trial and also at odds with some other trial evidence.

In Performance Factory , this Court stated that in such circumstances, a trial judge must weigh the statement evidence in the whole of the remaining evidence to determine whether the statements had in fact been made and if so, to assess their truthfulness in the context of the evidence as a whole. The Court found that the trial judge had assessed the truthfulness of the statement evidence in that case independently from and without considering other relevant evidence, and determined this approach to be wrong in principle which attracted a correctness standard of review (paragraph 2). Mr.

Noftall argues that the alleged errors of fact made by the trial judge respecting the evidence of other witnesses are subject to review on a standard of palpable and overriding error. [ 16 ] Metrobus argues that all of the errors alleged by Mr. Noftall amount to errors of fact which are reviewable on a standard of palpable and overriding error. Metrobus also asserts that the trial judge’s perceptions as to the credibility of witnesses and the reliability of their evidence ought to be accorded deference.

[17] The standard of review for questions of law is correctness and for findings and inferences of fact is palpable and overridingerror (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). Errors of principle extricable from questions of mixed fact and lawamount to errors of law which are reviewed on a correctness standard (Courtney v. Cleary, 2010 NLCA 46, 299 Nfld. & P.E.I.R. 85,para. 15; and Midnight Marine Limited v. Underwriters, Lloyd’s, London, 2010 NLCA 64, 302 Nfld. & P.E.I.R. 85, at paras. 26 and 28).

On a question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace theopinion of the trial judge with its own (Housen, paragraph 8). Analysis [18] Mr. Noftall argues that if the trial judge had properly assessed the truthfulness of Mr. Fleming’s statements in the context of thetotality of the trial evidence as mandated in Performance Factory, he could not have concluded there was no burgundy van and that Mr.Fleming was not passing other eastbound traffic when the collision occurred. [19] The main differences between what Mr.

Fleming said in his statements and what he said in his trial testimony concern thelocation of the Metrobus on Empire and whether it was passing other eastbound traffic when the collision occurred. Mr. Fleming’sstatement evidence indicates that the Metrobus was on the left side of the eastbound lane when the collision occurred. In two of hisstatements he stated that he was already in the left-turning lane, and in the third he said that he was heading toward the left-turning lanewhen the collision occurred.

In all of the statements he either specifically stated or it can be reasonably inferred from what he said thathe was passing eastbound traffic which was backed up in the eastbound lane adjacent to 251 Empire when the collision occurred. Mr.Fleming’s statement evidence accords with most of Mr. Noftall’s trial evidence and also with the evidence of the police witnesses andMr. Correia respecting the location of the vehicles on Empire at the time of impact. I note that Mr.

Noftall’s statements given shortlyafter the accident to insurance adjusters Marilyn Pike and Beverly Parsons reference the backed-up traffic, his being waved onto Empireby the driver of another eastbound vehicle (in one of his statements he describes the vehicle this driver was driving as a burgundy van)and that the Metrobus was proceeding eastward to the left of other eastbound traffic. I note that Mr. Noftall’s trial testimony wasentirely consistent with the statements he gave shortly after the accident. [20] I agree with Mr. Noftall’s argument that the trial judge’s approach to the assessment of Mr.

Fleming’s evidence was not inaccordance with the approach stipulated in Performance Factory. The trial judge accepted Mr. Fleming’s trial testimony withoutattempting to reconcile it with his statement evidence or consider it in the context of the whole of the remaining evidence. While Mr.Fleming did not specifically reference a burgundy van in his evidence, in his statement evidence he clearly indicated that the Metrobuswas on the left side of the eastbound lane passing backed-up eastbound traffic at the time of the collision. The trial judge’s conclusionsthat there never had been a burgundy van (because Ms.

Webber would have seen it if it had been there) and that the Metrobus was notpassing any other eastbound traffic at the time of the collision are difficult to reconcile with both Mr. Fleming’s and Mr. Noftall’sstatement evidence and with the whole of the remaining evidence, including the material generated by the police and insuranceinvestigators. I also note that Ms. Webber’s evidence was not necessarily inconsistent with eastbound traffic being situated to the rightof the Metrobus.

While she initially stated that the bus was not passing other traffic, she clarified her evidence saying that she could notsay that there was no traffic, only that she did not see it. [21] Other evidence also points to the Metrobus being located on the far left of the eastbound lane and passing traffic when thecollision occurred. [22] When Mr. Noftall’s vehicle collided with the Metrobus, the impact spun it backwards causing it to collide with the frontdriver’s side of the red Toyota. If the Metrobus were merely beginning to pull to the left side of the eastbound lane from a single lane oftraffic as Mr.

Fleming testified and Ms. Webber suggested, the red Toyota would had to have been behind it and would have beenprotected from being struck by Mr. Noftall’s vehicle. The collision of Mr. Noftall’s vehicle with the red Toyota tends to suggest that theMetrobus was fully located on the far left side of the lane and passing eastbound traffic on its right at the time of the collision. As well,the point of impact between the Metrobus and Mr. Noftall’s vehicle indicates that the Metrobus was in a straight position on the far leftside of the eastbound lane.

If the Metrobus were just beginning to pull to the left side it would have been somewhat angled and Mr.Noftall’s minivan would have collided with the passenger side of the Metrobus, not the driver’s side. [23] Accordingly, I conclude that the trial judge erroneously concluded that the Metrobus was not passing other traffic at the time ofthe collision and that there was no burgundy van which waved Mr. Noftall onto Empire. To my mind these findings are plainly not “inharmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable”(Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)). [24] Mr. Noftall also argues that the trial judge erred in accepting Ms. Webber’s evidence that Mr. Noftall darted out of the parkinglot onto Empire without stopping and in rejecting Mr. Correia’s avoidance analysis evidence. The time Mr. Fleming had to react andavoid the collision was material to Mr. Noftall’s argument that Mr. Fleming failed in his duty to drive with due care and attention. In thisregard, the trial judge was not satisfied “that the opinion evidence of Mr.

Correia regarding times and distances and his avoidanceanalysis for the bus can be accepted or be given any significant weight” because it rested on the assumption that Mr. Noftall had stoppedat the stop sign before entering Empire. The trial judge, on the basis of Ms. Webber’s evidence, found that Mr. Noftall did not stop atthe stop sign on exiting the parking lot. [25] Ms. Webber was a standing passenger at the front of the Metrobus and had a clear view of Mr. Noftall’s vehicle exiting theparking lot and of the collision. She was not constrained in her ability to see Mr. Noftall’s vehicle, for unlike Mr.

Fleming, she did nothave to focus her attention on driving. While Ms. Webber was shown to have been mistaken about some of the circumstances of theaccident, which she readily admitted, her evidence that the Noftall vehicle did not stop on exiting the parking lot was not shaken. Herevidence on this point was also arguably consistent with Mr. Fleming’s evidence, both his statement evidence and his testimony, that hedid not see Mr. Noftall’s vehicle until it appeared in front of the Metrobus. The trial judge was therefore entitled to accept Ms. Webber’sevidence that Mr.

Noftall did not stop on exiting the parking lot and to reject Mr. Correia’s evidence that Mr. Fleming had sufficient timeto react to Mr. Noftall’s advancing vehicle and avoid the collision. [26] The remainder of Mr. Correia’s evidence did not rely on the assumption that Mr. Noftall stopped, and was not undermined by

any other evidence. While it may have been preferable for the trial judge to clearly explain which parts of Mr. Correia’s evidence heaccepted and which he rejected and why, he is not required to address every argument made by a party nor to give precise and detailedreasons respecting the acceptance and rejection of each piece of evidence (R. v. R.E.M., 2008 SCC 51, [2008] 2 S.C.R. 3 and R. v. J.M.H.2011 SCC 45 , [2011] 3 S.C.R. 197 (para. 32)). [27] In the result, I cannot conclude that the trial judge erred in accepting Ms.

Webber’s evidence respecting the failure of theNoftall vehicle to stop on exiting the parking lot and in rejecting Mr. Correia’s avoidance analysis evidence, or that his reasons for doingso were so deficient as to constitute error. Liability [28] While I agree with Mr. Noftall that the trial judge erred in his approach to assessing Mr. Fleming’s evidence and in reachingsome of his factual findings, I do not agree that the trial judge’s errors are material to his finding that Mr. Noftall is liable for theaccident. In this regard, I am of the view that whether the judge’s error with respect to evaluation of Mr.

Fleming’s evidence ischaracterized as legal or factual, the same result obtains. If his error was legal, it is immaterial to the result. If his error was factual, itwas palpable but not overriding. [29] The trial judge himself acknowledged that the location of the Metrobus on Empire and whether it was passing backed up trafficwas insignificant, saying at paragraph 8 of his decision: I have to say that a good deal of time was spent at trial reviewing prior alleged statements provided by Victor Fleming in particular and,to a lesser degree, Mr. Noftall. For Mr.

Fleming, emphasis was placed on his take on the configuration of Empire Avenue near or at thescene of the collision as well as his knowledge at the time of the collision as to whether there were one or two lanes in the eastbound lanein which he was travelling. I have concluded that this evidence is, in the end, really not all that significant considering the totality of theevidence … and again at paragraph 36, where he stated: … it is my view that the position of the bus in its lane of traffic at the time of the collision is of little relevance to the question of liabilityin these circumstances.

Analysis [30] Sections 99, 110 and 120 of the Highway Traffic Act, RSNL 1990, c. H-3, (the Act) are relevant: 99.

(1) A driver shall not drive a vehicle to or upon the left side of the centre line of a roadway in overtaking and passing anothervehicle unless the left side is clearly visible and is free of oncoming and overtaking traffic for a sufficient distance to permit overtakingand passing to be completely made without interfering with the safe operation of another vehicle. …

(3) The driver of a vehicle shall not overtake and pass other traffic in circumstances where the driver cannot see sufficientlyfar ahead to overtake and pass with safety. [31]

Section 110 states:

(1) Notwithstanding subsection (2), a person shall not drive a vehicle on a highway or in another place … (

b) without due care and attention; or (

c) without reasonable consideration for other persons; … [32]

Section 120 states: Where a driver is about to enter or cross a highway from a private road, alley, building, driveway or lane, he or she shall yield the right-of-way to traffic approaching on the highway and, having yielded, he or she may proceed with caution. [33] Mr. Noftall has submitted the following cases in support of his position on liability: 1) Young v.

Williams (1997), (NL SC), 183 Nfld. & P.E.I.R. 333 (NFTD), which involved liability for a collisionwhich ensued when a tractor trailer crossed a double line on a highway to pass a vehicle ahead of it which had stopped to make a left turnwithout signaling. The tractor trailer was found 80% liable for the accident; 2) Daigle v. Turrett, 2001 NBCA 38, 244 N.B.R. (2d) 148, which involved liability for an accident involving a motorcycle whichstopped on a highway to make a left turn and was waved through the intersection by a truck which was coming from the oppositedirection on the same highway.

A third vehicle drove around the truck to the right and struck the motorcycle. The driver of the thirdvehicle was found liable for the accident; and 3) Earle v. Fournier, 2004 NBQB 248, which involved a similar situation to that of Daigle. A driver had commenced a left turn afterbeing waved on to do so by a stopped vehicle coming from the opposite direction on the same highway. A third vehicle passed thestopped vehicle on the right-hand side and collided with the turning vehicle. The driver of the third vehicle was found liable.

[34] Regardless of whether Mr. Noftall stopped at the stop sign or was waved onto Empire by the driver of a burgundy van, andregardless of his speed in doing so, there is no dispute that he exited the parking lot at 251 Empire Avenue and attempted to turn left ontoEmpire. The parking lot he exited is that of a private building situated on land adjacent to Empire. Vehicular access to it is gained byturning directly into the parking lot from Empire and egress from it is governed by a stop sign. As Mr. Noftall was exiting from aprivate building (see

section 120 of the Act) onto Empire, he had an obligation to yield to the approaching traffic and to proceed to turnonto Empire with caution. [35] The Metrobus was approaching the exit from 251 Empire on the left side of the eastbound lane. There was no legal impedimentto it being there and there was plenty of room for it to pass traffic backed up in the eastbound lane in order to advance to the turning lane,provided that if it strayed into the westbound lane there was no westbound traffic coming toward it and Mr.

Fleming could seesufficiently far ahead to overtake and pass with safety (paragraphs 99(1) and (3) of the Act). The actual length of the turning lane fortraffic turning onto Freshwater Road from Empire was very short ‒ approximately 100 feet ‒ making it understandable that eastboundtraffic intending to turn from Empire onto Freshwater would begin to move to the left side of the eastbound lane prior to actually enteringthe turning lane. Such traffic cannot always make perfect lateral moves into a short turning lane at the precise point where the road isdelineated into two lanes.

Accordingly, the Metrobus was an approaching vehicle on Empire within the meaning of

section 10 of theAct. [36] Regardless of whether Mr. Noftall was waved onto Empire by the driver of a burgundy van, he was emerging from a privatebuilding onto a roadway and had a duty to yield to approaching traffic. He must be taken to have known that the invitation to proceedwas only an invitation to pass in front of the burgundy van, for the driver of the burgundy van was in no position to guarantee to Mr.Noftall that he could proceed in front of other lawfully approaching traffic or execute his turn safely. [37] Mr.

Noftall testified that he did not look to his left for other eastbound traffic, but looked only to his right to be sure there wasno approaching westbound traffic. Mr. Noftall was familiar with that

section of Empire, having dropped off his wife at 251 Empire onmany occasions before March 26, 2002. He must be taken to have been aware of the width of that eastbound

section of Empire, and itought to have been within his contemplation to look for traffic beyond the burgundy van to be sure he could drive across the full width ofthe eastbound lane on Empire before turning to drive west. Moreover, the Metrobus is a large vehicle, and it would not have beendifficult for Mr. Noftall to see it if he had been proceeding with caution as he ought to have been. [38] None of the authorities submitted by Mr. Noftall are akin to the factual situation of this case, and they are not of assistance tohim.

The entrance/exit of 251 Empire does not intersect with Empire in the way two roadways do. A vehicle emerging from a privatebuilding is not a contender for the right-of-way in the way that the two vehicles involved in Young, or the motorcycle and truck inDaigle, or the defendant and the stopped vehicle in Earle were. Moreover, there is a difference between passing stopped traffic on theright than on the left.

When a vehicle passes stopped traffic on the right, the passing vehicle does not have a clear view-plane, andneither does any vehicle which might be making a legal turn from an opposite direction. [39] This case is more akin to the circumstances of the accident in Pond v. Lethbridge, 2005 NLTD 60, 246 Nfld. & P.E.I.R. 189,upheld by this Court in 2006 NLCA 50, 259 Nfld. & P.E.I.R. 246. In that case, the plaintiff, who emerged from a hidden driveway ontoa highway, alleged that the defendant was driving too fast into a blind curve on the highway, and that his speed contributed to theaccident.

It could not be proved the defendant was speeding, although driving conditions may have suggested lower than legal speeds. Nevertheless, the Court found that the plaintiff, although driving cautiously out of the driveway, failed to yield the right-of-way toapproaching traffic and should not have moved until she was sure that no traffic was approaching. She was found fully liable for theaccident. [40] The bottom line in this case, as the trial judge found, is that the Metrobus had the right of way on Empire and Mr. Noftall, inexiting from a private building, did not. Not having the right of way, Mr.

Noftall failed to yield to approaching traffic and failed toproceed onto Empire to execute his turn with caution as he was required to do. Mr. Fleming’s Driving [41] Mr. Noftall argued that Mr. Fleming was in breach of his statutory duty to drive with due care and attention and with reasonablecare for other persons (paragraphs 110(1) (

b) and (

c) of the Act). In the circumstances of this case, there is no indication that Mr.Fleming was driving without due care and attention or not taking care for other persons. Because Mr. Fleming did not avoid the accidentdoes not mean that he was driving without due care and attention. He was confronted with a situation of imminent peril caused by Mr.Noftall coming out from 251 Empire and passing directly across his path. It is not reasonable to expect that Mr.

Fleming, in thecircumstances of this case and while in the agony of collision, would have been able to brake and stop his bus in the couple of secondsbetween when he first saw the Noftall vehicle and impact, and consequently avoid the collision. This is not to say that Mr. Fleming hadno obligation to avoid a collision if he could reasonably do so (Walker v. Brownlee and Harmon, (SCC), [1952] 2D.L.R. 450 (S.C.C.)). Rather, it is to say that in the circumstances of this case, Mr. Fleming could not be expected to have been able tosee and react to Mr.

Noftall’s vehicle in time to be able to take evasive action to avoid the collision. To say otherwise would requiredrivers to divert their attention from their own safe driving so as to be on constant alert for vehicles entering the highways unlawfully. Conclusion [42] In the result, while the trial judge’s errors in his handling of the evidence were not material to his determination that Mr. Noftallwas fully liable for the accident. Accordingly, I would uphold his decision and dismiss the appeal. [43] I would order Mr. Noftall to pay costs to Metrobus and Ms. Oliver and Ms.

Evely on column 3 of the scale of costs. _________________________________ L. R. Hoegg J A.

I Concur: __________________________ C. W. White J.A. Rowe J.A.: [44] I agree with the result set out by my sister Hoegg. As to her reasons, I agree in part and disagree in part. [45] I disagree with her conclusion at paragraph 18 that, having regard to this Court’s decision in Performance Factory Inc. v.Atlantic Insurance Co., supra, the judge in this case made a reviewable error in his assessment of Mr. Fleming’s evidence. [46] In argument, counsel for Mr.

Noftall invited us to treat Performance Factory as an open door to characterize issues relating tothe assessment of credibility as “legal” and, therefore, subject to review on the standard of correctness. If we accept his invitation andstep through that door, the Court would readily and regularly engage in substituting our assessment of the credibility of witnesses for thatof the trial judge. That is not our role. [47] The standard to be applied concerning findings of fact is palpable and overriding error. This includes the assessment ofcredibility. Deschamps J. in R. v.

R.P., 2012 SCC 22, [2012] 1 S.C.R. 746 stated at para. 10: Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appealthat reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). (Emphasis added.) Counsel for Mr.

Noftall has demonstrated no palpable and overriding error by the trial judge in his assessment of Mr. Fleming’sevidence. [48] Beyond this, what must be borne in mind is that the pivotal testimony in this case was not that given by Mr. Noftall or Mr.Fleming, both of whom are interested parties. Rather, it is the testimony given by an independent witness, Ms. Webber, who had anunobstructed view of what occurred. The key passage is paragraph 20 of the decision, which reads: Obviously, Ms. Webber’s description of the driving of the Noftall van is much different from the testimony of Mr. Noftall has set outabove.

While Ms. Webber was not able to recall the color of the Noftall van and admitted that she incorrectly recalled the placement ofthe van after it came to rest subsequent to impact, I am completely satisfied that she is a credible and important witness who hasdescribed her observations of what transpired as she recalled them. Ms. Webber was unable to confirm the presence of the burgundy vanreferred to by Mr. Noftall and stated that the bus was not passing another vehicle at the time of the collision. I am satisfied that had therebeen a burgundy van operating as described by Mr. Noftall, Ms.

Webber would have seen this. She had an unobstructed view of theevents as they occurred and I find myself unable to discount or ignore the testimony of Ms. Webber in reaching my conclusions here asto what transpired. [49] The foregoing would be sufficient for me to dismiss the appeal. However, I would add that I agree with Justice Hoegg’sanalysis that even if Mr. Noftall had entered Empire Avenue when beckoned to do so by the driver of a van, he would still be liable as itwas his responsibility under the Highway Traffic Act to ensure that he was entering the roadway safely. Put simply, Mr.

Noftall failed tokeep a good lookout and drove into the path of the bus, causing the collision. For this, he bears full liability. [50] I would dismiss the appeal, with costs to Mr. Fleming. M. H. Rowe J.A.