WILLIAM R. HAMILTON PLAINTIFF AND: PATRICIA TAVENOR DEFENDANT, 2015 NLPC 114

IN THE PROVINCIAL COURT OF NEWFOUNDLAND AND LABRADOR DISTRICT OF ST. JOHN’S (SMALL CLAIMS DIVISION) Citation: Hamilton v. Tavenor, 2015 NLPC 0114C00503 Date: 20150415 Docket: 0114C00503 BETWEEN: WILLIAM R. HAMILTON PLAINTIFF AND: PATRICIA TAVENOR DEFENDANT Before: The Honourable Judge D. Orr Place of Trial: St. John’s, Newfoundland and Labrador Date of Trial: March 31, 2015 Appearances: Patrick MacKenzie appeared as agent for Plaintiff Edward J. Vanderkloet appeared on behalf of the Defendant Authorities Cited: CASES CONSIDERED: White v.

Fudge, (NL SC), 87 Nfld. & P.E.I.R. 246; Penney's Transport Limited v.O'Brien, (NL SC), 72 Nfld. & P.E.I.R. 80 (NfldSCTD); Saskatchewan Wheat Pool v. Canada, (SCC), [1983] 1 S.C.R. 205; Miller v. Minister of Pensions, [1947] 2 All E.R. 372; Smith v Smith and Smedman, (SCC),[1952] 2 S.C.R. 312; F.H. v. McDougall, 2008 SCC 53 STATUTES CONSIDERED: Highway Traffic Act, RSNL1990

Chapter H-3 REASONS FOR JUDGMENT ORR, P.C.J.:

INTRODUCTION [ 1 ] This matter involves a traffic accident. The Plaintiff states that the Defendant’s vehicle collided with his and damaged the front of his vehicle. The Defendant denies that there was a collision between her vehicle and the Plaintiff’s. THE FACTS [ 2 ] The only witnesses to the alleged event were Mr. Hamilton and Ms. Tavenor. The other witnesses, Constable Lynch and Mr. Janes, provided evidence about the damage or lack of damage on the two vehicles involved. The other piece of evidence was a 911 recording obtained from the Royal Newfoundland Constabulary. [ 3 ] Mr.

Hamilton said that on the 7 th of May, 2014, at approximately 7:45 in the morning, he was driving on Pitts Memorial Highway. He stated that he was headed toward Conception Bay South. He said that he was driving in the left lane, the lane closest to the middle of the road, and was overtaking a vehicle in the curb lane. The highway is a multi-lane roadway at that point with two lanes in each direction. He stated that the vehicle he was overtaking was a white Ford pickup. He said the pickup moved across into his lane. He said he tried to steer to avoid the pickup and blew his horn.

He said he observed the driver’s side rear bumper of the pickup strike the front passenger side of his car. The Plaintiff’s car was a Toyota Corolla. Mr. Hamilton stated that the pickup truck did not stop so he pursued it. He said that he tried to attract the attention of the driver by driving up next to the pickup and gesturing. He called the police and informed them he was in pursuit of the pickup. [ 4 ] Ms. Tavenor for her part states that she was operating her pickup truck on Pitts Memorial Drive on the 7 th of May. She said that she first became aware of Mr.

Hamilton when he began tailgating her and in her view was attempting to run her off the road. She, like Mr. Hamilton, called 911 and told the operator that she was being pursued by an erratic driver. She stated that she was afraid to stop her vehicle because she did not know the driver or recognize the vehicle and did not know what he wanted. She stated that she did not change lanes at any point and her vehicle did not contact Mr. Hamilton’s car. [ 5 ] The 911 operators realized quite quickly that the complaints from Mr. Hamilton and Ms.

Tavenor were related and they directed Constable Lynch toward them and asked them to stop their vehicles. [ 6 ] They stopped their vehicles on Kenmount Road in a parking lot. Ms. Tavenor stated she looked at her vehicle and could detect no damage. Mr. Hamilton’s vehicle sustained $2,836.22 in damages. He has recovered the cost of the repair from his insurance company and is claiming the deductible amount he paid. [ 7 ] Constable Lynch did not note any damage to Ms. Tavenor’s vehicle but did not conduct a detailed inspection of it. Ms.

Tavenor took her truck to Janes Auto Body to have it assessed and repaired if there were any damages. She did not expect there would be any as she maintained her truck had not contacted Mr. Hamilton’s car. Mr. Mark Janes examined the truck and concluded “there is no visible damage to the rear bumper or any other rear panels.” Mr. Janes did note on looking at the photographs of the Plaintiff’s vehicle that there is obvious damage to the Plaintiff’s vehicle but in his opinion the white marks on the vehicle around the damaged area are not paint transfer from the white pickup truck.

They are areas where the black paint has come off or been knocked off the Toyota and exposed the white plastic underneath. THE LAW [ 8 ] The following Highway Traffic Act sections apply in this case:

Section 101 of the Highway Traffic Act states: The driver of a vehicle on a laned roadway

(

a) may drive from one lane to the another where 1 or more broken lines only exist between lanes; (

b) except as provided in paragraphs (

c) and (

d) shall not drive from one lane to another where the action necessitates the crossing ofa solid line; (

c) when a solid line and a broken line exist together may, with caution, cross the solid line from the lane in which the broken line islocated and recross; (

d) may with caution, cross a solid line when necessary to turn left into a private road or driveway or when necessary on entering theroadway from a private road or driveway; (

e) shall not drive from one lane to another without first signaling an intention to do so in the manner prescribed by section 117(3); (

f) when approaching an intersection and intending to turn left or when intending to turn left into a private road or drive way shalltravel in the left-hand available to traffic moving in the direction of travel of the vehicle; (

g) when approaching an intersection intending to turn right shall travel in the lane nearest to the right-hand side of the roadway andmay pass another vehicle travelling in the same direction in a lane to the drivers left. [9] In addition to these provisions of

section 101,

section 97 of the Highway Traffic Act also applies.

(1) The driver of a vehicle shall not overtake and pass upon the right of another vehicle except (

a) when the other vehicle is making a left turn or its driver has signaled his or her intention to make a left turn; (

b) when on a laned roadway there are 1 or more unobstructed lanes available to traffic moving in the direction of travel of thevehicle;

(2) Notwithstanding subsection (1) the driver of a vehicle shall not overtake and pass another vehicle upon the right (

a) when the movement cannot be made safely; (

b) by driving off the roadway. [10] In the case of White v. Fudge, (NL SC), 87 Nfld. & P.E.I.R. 246, Mr. Justice Woolridge considered asituation where the defendant truck driver had rear-ended a passenger vehicle. The evidence of the defendant was that the roadconditions were slippery and snow covered. He contended that the plaintiff had suddenly and without warning changed from the lefthand to the right hand west-bound lane and the defendant was unable to stop. [11] At paragraph 8, the Judge stated: Citing appropriate authority the defendant argues that Mr.

Fudge (defendant) was not bound to anticipate the folly of the Hann vehiclewhen without warning it altered the status quo on the highway at a perilous time in such a fashion that Mr. Fudge was left helpless toavoid the accident.

[12] Similarly, in the case of Penney's Transport Limited v. O'Brien, (NL SC), 72 Nfld. & P.E.I.R. 80(NfldSCTD), the plaintiff car driver passed a loaded tractor trailer on a down hill grade. The car slowed down, moved to the right; thetractor trailer could not slow as fast and pulled out to pass. In doing so the driver failed to sound his horn and the plaintiff's car turned leftdirectly across the path of the tractor trailer causing the vehicles to collide. [13] Madame Justice Cameron considered the doctrine of last clear chance and stated at paragraph 14: It is clear the acts of Mr. Penney and Mr.

Tibbetts occurred in the same time period. The doctrine of last clear chance, if it survives, hasno application to the case. [14] In deciding on the issue of liability at paragraph 17: I find Mr. Tibbetts’ departure from the standard of care required in the circumstances was greater than that of Mr. Penney. Mr. Tibbetsfailed to signal his turn, turned when it was unsafe to do so and slowed suddenly. Fault is apportioned 80% to Mr. Tibbets and 20% toMr. Penney. [15] If I accept Mr. Hamilton’s evidence in this case, then Ms. Tavenor was in breach of

section 101 of the Highway Traffic Act byfailing to remain within her lane and occupying a portion of both lanes. However, in Canadian Tort law, the breach of a statutory dutydoes not of itself result in liability, though proof of a statutory breach that causes damage may be evidence of negligence. SaskatchewanWheat Pool v. Canada, (SCC), [1983] 1 S.C.R. 205. [16] Counsel for the Defendant did not wish to address the issue. Rather his position was that if the court accepts the evidence ofMs. Tavenor, there is no need to consider it; and if it accepts the version provided by Mr.

Hamilton, then the Defendant is clearly at fault. [17] The burden of proof in any civil dispute is on a balance of probabilities. In Miller v. Minister of Pensions, [1947] 2 All E.R. 372,Lord Denning defined it as follows: That degree is well settled .It must carry a reasonable degree of probability but not so high as is required in a criminal case. If theevidence is such that the tribunal can say: “we think it more probable than not”, the burden is discharged, but if the probabilities areequal it is not. [18] In Smith v Smith and Smedman, (SCC), [1952] 2 S.C.R. 312, Mr.

Justice Cartwright held: I wish however to emphasize that in every civil action before the tribunal can safely find in the affirmative of an issue of fact required tobe proved it must be reasonably satisfied, and that whether or not it will be so satisfied must depend upon the totality of thecircumstances on which its judgment is formed including the gravity of the consequences of the finding. [19] And in F.H. v. McDougall, 2008 SCC 53, the Supreme Court of Canada held: There is only one standard of proof in a civil case and that is proof on a balance of probabilities.

Although there has been somesuggestion in the case law that the criminal burden applies or that there is a shifting standard of proof, where, as here, criminal or morallyblameworthy conduct is alleged, in Canada, there are no degrees of probability within that civil standard. [20] In this case, both Mr. Hamilton and Ms. Tavenor expressed doubt about the credibility of the other. Mr. Hamilton suggested thatMs. Tavenor was aware of the collision, tried to flee and used the 911 call to try to add an element of authenticity to her claim. Ms.Tavenor suggested that Mr.

Hamilton had damaged his car on some other occasion and was seizing the opportunity to recover the cost ofthe repair, again using the 911 call to bolster his claim. I did not find any evidence on either part to establish that the 911 call was

anything but legitimate. [ 21 ] Reviewing the evidence, Mr. Hamilton testified that he saw Ms. Tavenor’s truck move from her lane and collide with the front of his car. He did not lose sight of her vehicle and pursued it until it was stopped. There is nothing to suggest that he is not providing an accurate account of what he saw. There is no suggestion he knew Ms. Tavenor and had some ulterior motive; he is making only a modest claim for damages, his insurance deductible, and he is not claiming money for physical injury or any large amount of compensation.

The damage to his vehicle is clear in the photographs and is consistent with being struck in the manner that he says that it was. [ 22 ] Similarly, in Ms. Tavenor’s evidence there was no suggestion that she knew Mr. Hamilton and had any reason to be anything other than truthful. There was no suggestion of any potential secondary gain on her part. The contact between the vehicles involved the rear of Ms. Tavenor’s truck and the front of Mr. Hamilton’s car; consequently, she would not necessarily have seen contact between the vehicles or felt any impact.

The roadway is a multi-lane roadway and any small amount of inattention or distraction can result in a vehicle drifting over from one lane into the other. The driver might not be aware of this particularly on a busy roadway in heavy traffic. Mr. Hamilton’s car was much smaller and lower than Ms. Tavenor’s; it would not have been as visible as a larger vehicle particularly as it approached from behind in what is typically a blind spot for the vehicle in front. [ 23 ] Ms. Tavenor’s position is largely based on the fact that she can see no damage to the back of her vehicle.

However, while her vehicle was visually assessed by her and her witness it was not subjected to any forensic analysis. It seems quite possible that the steel bumper on Ms. Tavenor’s vehicle could have damaged the front of Mr. Hamilton’s vehicle without showing significant outward sign of damage. The bumper protrudes beyond the painted metal on the truck and it is possible that the painted metal of the truck did not contact the car only the steel bumper was involved. That is consistent with Mr.

Janes’ evidence that the white marks on the Hamilton vehicle are not paint transfer but are instead areas where black paint has been rubbed off. [ 24 ] I am satisfied that the Plaintiff has met the burden of proof. I give judgment to the Plaintiff in the amount of $500 plus his costs as claimed. _________________________ DAVID ORR Provincial Court Judge