Jessome v. Walsh, 2003 NSCA 35

NOVA SCOTIA COURT OF APPEAL Citation: Jessome v. Walsh, 2003 NSCA 35 Date: 20030318 Docket: CA 182209 Registry: Halifax Between: Eric Joseph Jessome Appellant v. Barry Walsh Respondent Judges: Glube, C.J.N.S.; Roscoe and Bateman, J.J.A. Appeal Heard: March 18, 2003 in Halifax, Nova Scotia Written Judgment: March 20, 2003 Held: Appeal dismissed with costs of $2,000.00 plus disbursements as per oral reasons for judgment of Roscoe, J.A.; Glube, C.J.N.S. and Bateman, J.A., concurring. Counsel: M. Joseph Rizzetto, for the appellant David A. Miller, Q.C. and Nancy I.

Murray, Q.C. for the respondent Reasons for judgment : [ 1 ] This appeal arises out of a collision between a motorized dirt bike and a motor vehicle at the intersection of Dominion Street and Victoria Road in Whitney Pier, Nova Scotia on April 23, 1994. The appellant, Eric Jessome, then 14 years old, was driving the dirt bike in a northerly direction on the sidewalk adjacent to the west side of Victoria Road and proceeded into the unmarked crosswalk of

the intersection with Dominion Street where the respondent Barry Walsh, driving a cab, was then making a right-hand turn to travel southerly on Victoria Road. [ 2 ] After a trial before Justice Frank C. Edwards, sitting with a jury, during which only liability was in issue, the jury apportioned liability for the accident 95% against the appellant and 5% to the respondent. In the answers to the questions directed to them, the jury indicated that the respondent’s negligence consisted of a failure to keep a proper lookout.

The appellant’s negligence was particularized as: - Excessive speed *- Dirt bike on pedestrian sidewalk - No operating front brake - No operating headlight *- Disregard for public safety *- Disregard for motoring public [The asterisks were inserted by the jury.] [ 3 ] The appellant and one other witness testified that the respondent’s car did not stop at the stop sign on Dominion Street. The respondent and three other witnesses testified that he did stop at, or slightly beyond, the stop sign before proceeding ahead and making the turn.

The appellant admitted that he drove the bike fast and dangerously, estimating his speed to be from 30 to 50 kilometres per hour.

An independent witness who was driving a motorcycle on Victoria Road going in the same direction adjacent to the appellant testified that the appellant’s speed was more than 50 kilometres per hour, perhaps 60 to 70 kilometres per hour, just prior to the collision. [ 4 ] On appeal, the appellant submits that the jury charge provided inadequate instruction regarding the significance of the respondent’s negligence, that the jury’s particularization of the negligent acts and their apportionment was perverse, and that the jury erred by considering irrelevant factors.

Essentially, the appellant’s argument is that the respondent’s failure to keep a proper lookout was a more significant contributing cause to the accident than any of the appellant’s negligent actions, some of which were irrelevant to causation, and therefore the apportionment of liability should have been more in favour of the appellant. [ 5 ] With respect to the jury charge, this court will not interfere with the result on the basis of an allegedly defective jury charge unless we are persuaded that there was clear error of law or misdirection contained therein, or an error or omission that caused the jury to deliver an unreasonable verdict , suggesting that the jury must have been confused (see Fowler v.

Schneider National Carriers Ltd. 2001 NSCA 55 (CanLII) , [2001] N.S.J. No. 123 ; 2001 NSCA 55 and Morriscey v. Zwicker [2001] N.S.J. No. 126 ; 2001 NSCA 56 ). For example, if the judge had advised the jury that the plaintiff had to prove that the negligence of the defendant was the only cause of the accident, or neglected to explain the concepts of contributory negligence or proximate cause, there would be an obvious legal error. [ 6 ] The standard of review in a case such as this is very deferential to the jury as noted by Justice Pugsley in Piercey v.

Board of Education of Lunenburg County District et al. (1998), 1998 NSCA 50 (CanLII) , 167 N.S.R. (2d) 68 . Where the determination of negligence and the apportionment of liability is questioned on appeal, the burden on the appellant is to convince us that it was: [30] . . . . . . so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it . . . [31] Duff, C. J. in McCannell v. McLean , 1937 CanLII 1 (SCC) , [1937] S.C.R. 341, as approved by the same court in Olmstead v.

Vancouver-Fraser Park District , 1974 CanLII 196 (SCC) , [1975] 2 S.C.R. 831; 3 N.R. 326, per deGrandpré, J., at p. 838 [S.C.R.].

[ 7 ] At ¶ 41 of Piercey , Justice Pugsley set out the applicable appellate standard of review where there is a submission that the jury’s finding was perverse: [41] With respect to the characterization by counsel that the jury's verdict was perverse, I note Justice deGrandpré's comments in Olmstead v. Vancouver- Fraser Park District at p. 836: First, a word about the suggestion that a verdict should be "perverse" before it is set aside. To my mind, this word implies a moral turpitude which, in the present instance, has not been proven to exist.

On this point I would rather accept the statement of Lord Fitzgerald in Metropolitan Railway Co. v. Wright , [1886] 11 Ap. Cas. 152: The judgment of the noble and learned Earl who presided in the Court of Appeal imports that a verdict once found is not to be set aside unless it appears to be a verdict perverse or almost perverse.

If my recollection does not mislead me, we have departed in this House, in several instances, from the old rule which introduced the element of "perversity" and have substituted for it that the verdict should not be disturbed unless it appeared to be not only unsatisfactory, but unreasonable and unjust . . . [ 8 ] We have carefully reviewed the jury charge. It is thorough and easy to follow. The judge clearly explained the concepts of contributory negligence and proximate cause and reviewed the relevant evidence.

He also explained that there might have been negligence that was not a proximate cause of the accident, for example, the appellant’s failure to wear a helmet. As well, the jury was given appropriate instruction regarding apportionment of liability. It is significant that counsel were invited on several occasions during the trial to make submissions on the content of the charge, and Justice Edwards read significant portions of it to counsel in the absence of the jury prior to delivering it. As well, counsel consented to the wording of the jury questions.

Also crucial to our consideration of the appeal, is that appellant’s counsel took no objection to the charge when invited to do so by the trial judge. [ 9 ] In Rogers v. Young , [2000] N.S.J. No. 179 , at ¶ 16 , and again in Morriscey v. Zwicker , supra , at ¶ 40 , this court approved of and applied the following statement from the decision of the Alberta Court of Appeal in Royal Bank of Canada v.

Wilton (1995), 1995 CanLII 11041 (AB CA) , 123 D.L.R. (4th) 266 at p. 275 : In a civil jury trial, lack of objections with respect to the jury charge and the questions put to the jury are a strong factor against finding that a jury charge was faulty and that a new trial should be ordered . . . [ 10 ] After carefully reviewing the trial record and considering the written and oral submissions, we are satisfied that the instruction to the jury when considered as a whole and viewed in light of the evidence was in accordance with the law.

There was substantial evidence upon which the jury could have reached the conclusions they did. None of their answers could be considered unreasonable, unjust or perverse. [ 11 ] The appeal is therefore dismissed with costs payable to the respondent in the amount of $2,000.00, plus disbursements. Roscoe, J.A. Concurred in: Glube, C.J.N.S.

Bateman, J.A.