Ketler v. Nova Scotia (Attorney General), 2016 NSCA 64

Nova Scotia Court of Appeal Citation: Ketler v. Nova Scotia (Attorney General) , 2016 NSCA 64 Date: 20160817 Docket: CA 444047 Registry: Halifax Between: Mark Paul Ketler Appellant v. The Attorney General of Nova Scotia, representing Her Majesty The Queen in right of the Province of Nova Scotia Respondent Judge: The Honourable Justice Cindy A. Bourgeois Appeal Heard: May 18, 2016, in Halifax, Nova Scotia Subject: Elements of negligence; “but for” test of causation

Summary: The appellant sustained injuries when his vehicle drove through the side of a wooden bridge in rural Hants County. He sued the Province of Nova Scotia, alleging that the Department of Transportation and Infrastructure Renewal was negligent in the monitoring, maintenance, and failure to upgrade the structure to a new standard of construction implemented in May 2007. After a five day trial, the trial judge found that the respondent was not required to upgrade the bridge to the new standard of construction, but rather, maintain it to its original construction.

The trial judge also concluded that the respondent failed to maintain the bridge as required, and as such, breached its duty of care to the appellant. Applying the “but for” test of causation, the trial judge concluded that the appellant failed to establish that the respondent’s failure to maintain the bridge caused his losses. As such, the action was dismissed. Issues:

(1) Did the trial judge err in determining the standard of care?

(2) Did the trial judge err in concluding the appellant had failed to establish causation? Result: Appeal dismissed. The trial judge did not err in concluding that the respondent’s obligation was to maintain the bridge to the standard of its original construction. The new policy, relied upon by the appellant, specifically contemplated the continuance of the pre-existing standard in certain factual circumstances. The trial judge made findings of fact which justified his application of that policy. There was no reason to interfere with his factual conclusions.

With respect to causation, the appellant launched numerous arguments as to why the trial judge’s conclusion was erroneous. None had merit. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages. Nova Scotia Court of Appeal Citation: Ketler v. Nova Scotia (Attorney General) , 2016 NSCA 64 Date: 20160817 Docket: CA 444047 Registry: Halifax Between: Mark Paul Ketler Appellant v.

The Attorney General of Nova Scotia, representing Her Majesty The Queen in right of the Province of Nova Scotia Respondent Judges: Fichaud, Bryson and Bourgeois, JJ.A. Appeal Heard: May 18, 2016, in Halifax, Nova Scotia Held: Appeal dismissed with costs, per reasons for judgment of Bourgeois, J.A.; Fichaud and Bryson, JJ.A. concurring Counsel: Nicolle A. Snow, for the appellant Duane Eddy, for the respondent Reasons for judgment: [ 1 ] The appellant, Mark Paul Ketler, sustained injuries when his vehicle drove through the side of a wooden bridge in rural Hants County.

He sued the Province of Nova Scotia, alleging that the Department of Transportation and Infrastructure Renewal was negligent in the monitoring, maintenance, and failure to upgrade the structure. [ 2 ] The trial was heard over five days by Justice Gregory M. Warner. Mr. Ketler’s action was dismissed, the trial judge finding he failed to establish the necessary element of causation. He now appeals to this Court. For the reasons to follow, I would dismiss the appeal. Background [ 3 ] The circumstances surrounding the accident were summarized by the trial judge: [2] Mark Ketler was driving home on the gravel

section of the North Salem Road, Hants County, Nova Scotia, about 4:15 p.m. on the sunny afternoon of October 21, 2010. As he approached an old ten-meter-long wooden bridge over a small creek (MacPhee Brook Bridge), he says that a deer darted into his path from the right and may have contacted the right front corner of his 1998 GMC Jimmy.

He swerved to the right, drove off the right side of the bridge, rolled over and came to rest on the north bank of creek, about two meters below. [ 4 ] There was much evidence led at trial about the nature of the MacPhee Brook Bridge, as well as the “Timber Bridge Barrier Standards” (PR5076) adopted by the respondent in May 2007. Some background is helpful to put the issues on appeal in context. [ 5 ] The MacPhee Brook Bridge, a 10 metre long timber frame bridge was originally constructed in 1914. In the late 1970s/early 1980s, the bridge was substantially rebuilt.

Other than periodic maintenance, no further upgrading to the bridge design or structure was undertaken, including to the timber rail barrier. [ 6 ] In May 2007, the respondent implemented a new standard for timber bridges in the province (PR5076). All newly constructed wooden bridges are now to be built utilizing a metal “flex rail mount” (a guardrail in common parlance) as described in Table 1 of the policy, instead of the historically used wooden railings.

At trial, the respondent acknowledged that the function of the new design is to distribute the force of impact, thus reducing the risk of vehicles going through the side rail barrier. The standard also addresses existing timber bridges. It provides: 3. Timber Bridge Repairs Table 1 applies to all timber bridge repair projects where the existing bridge barrier requires replacement of 50 percent, or more, of the posts on either side of the bridge.

Timber bridge repair projects where less than 50 percent of the existing bridge barrier requires replacement shall have the barrier reinstated to the standard which applied to the original construction. [ 7 ] Following the implementation of PR5076, a number of bridges were immediately upgraded, as they were determined to meet the 50% threshold. The remaining timber bridges in each provincial district were placed on a replacement list, based on a system of prioritization. The MacPhee Brook Bridge was 28 th on the replacement list, and was scheduled to be upgraded in 2014.

The decision under appeal [ 8 ] Before reviewing the relevant aspects of the trial judge’s decision, it is helpful to canvas the arguments advanced by the appellant at trial. For the purpose of disposing of the appeal, it is only necessary to consider his submissions relating to liability.

In the pre-trial submissions of counsel, the appellant summarized the basis of the respondent’s alleged liability as follows: 6 The Plaintiff will adduce evidence that will show that the Department of Transportation Infrastructure and Renewal (DTIR) was aware, as result of its own Engineer’s inspections and reports on the status of the bridge, that the MacPhee Brook Bridge was in poor

condition. In the years before the accident the bridge was reported at various times to be in need of maintenance; in poor condition; as having end rot and in need of a new rail barrier. Despite all the reporting, the required maintenance measures were never taken, until after the subject accident. The only step taken by the DTIR in the years before the crash was the replacement of a short piece of timber barrier where the rail had partially broken away (we say, due to the significant rot of the rail). The timber was nailed up by or at the direction of a level one Operations Supervisor.

This was not a structural step toward safety of the barrier, since the bridge rail still contained rot, was wobbly and in poor condition. For appearances, this made the barrier look whole again, while structurally doing nothing to address the root problem. [ 9 ] Counsel framed the issues before the trial judge as follows: 1. Did the Province owe a duty of care to the Plaintiff? 2. If yes to #1, did the Province breach its duty of care? 3. If yes to #2, what if any injuries did the Plaintiff sustain in the October 21, 2010 car crash? 4.

What is the appropriate compensation for general and special damages? [ 10 ] Acknowledging that the claim was one of negligence, counsel set out the following statement of the law: 8 This is a negligence case therefore certain elements must be present. A commonly accepted formula that has been called the “ABC rule” requires that three components be established in order to prove negligence: (

A) a duty of care exits (

B) there has been a breach of that duty (

C) damage has resulted from the breach: Allen M. Linden, Lewis N. Klar, & Bruce Feldthusen, Canadian Tort Law: Cases, Notes & Materials , 12 th ed. (Markham, Ontario: LexisNexis Canada, 2004) at 155. [ 11 ] As the existence of a duty of care was acknowledged by the respondent, the pre-trial submissions focused extensively on element “B” – a breach of the duty of care. Two main arguments were advanced by the appellant to establish a breach: that the respondent failed to properly maintain the bridge; and that after implementing PR5076 in May 2007, it failed to ensure that the MacPhee Brook Bridge met that standard.

Counsel submitted to the trial judge: 16 The Plaintiff says that the Province, through its representatives, failed to maintain reasonably safe conditions on the MacPhee Brook Bridge despite the foreseeable risk of harm to the travelling public. We expect overwhelming documentary evidence that speaks directly to the condition and repair of the MacPhee Brook Bridge will be before the court, in addition to Engineer’s recommendations to replace the rail system in question as early as July 2004.

This evidence will establish the knowledge and level of understanding the Defendant had in relation to the vehicular hazard this bridge presented. . . . . . 19 . . .[N]ew Timber Bridge Repair Standards came into force and effect May 25, 2007 and this evidence will be before the court. Thus, as of May 25, 2007, the new standard for Timber bridges was set, yet the MacPhee Brook Bridge was not upgraded to this standard before the October 21, 2010 accident.

As stated, evidence of an Engineers report dated March 2009, mentions the fact that the MacPhee Brook Bridge had not yet been upgraded to the new TIR standard, and , that the rail system was rotted and needed replacement. [ 12 ] The appellant’s pre-trial submissions did not address the element of causation in any detail, either in terms of legal principles, or anticipated evidence relating thereto.

The sole reference to causation was the suggestion that the appellant’s expert evidence would establish: If the Department (DTIR) had followed its own Standard Timber Bridge Plans and maintained the MacPhee Brook Bridge barriers the Ketler vehicle would have been redirected away from the bridge edge and not careened into the brook. [ 13 ] From a review of the transcript, the appellant’s post-trial arguments mirrored those contained in the pre-trial brief. [ 14 ] I turn now to the trial judge’s decision. After reviewing the evidence in detail, as well as the law, the trial judge concluded: (

a) As acknowledged, the respondent had a duty of care to the appellant; (

b) The duty did not require the respondent to have brought the MacPhee Brook Bridge up to the new standard outlined in PR5076, but rather maintain it to the standard of construction utilized when it was rebuilt in the late 1970s/early 1980s; (

c) The respondent had failed to maintain the bridge to the required standard, and as such, breached its duty of care to the appellant; and (

d) Applying the “but for” test of causation, the appellant failed to establish that the respondent’s failure to maintain the bridge caused his losses. As such, the action was dismissed. Issues [ 15 ] In his Notice of Appeal, the appellant advanced the following grounds of appeal: The trial judge erred by: 1. wrongly applying the legal test for causation of the accident by: a. failing to apply the test in a robust, pragmatic and common sense fashion;

b. confusing the application of the “but for” test; c. finding that the appellant ought to have presented scientific evidence; namely, an accident reconstruction report; d. finding that it was the appellant’s burden to prove with scientific precision that his truck would have broken through the bridge barrier even without the respondent’s negligence; e. failing to find that the respondent ought to have presented evidence to the contrary if the respondent’s argument that the accident would have happened without the respondent’s negligence was to be accepted; f. such other errors in the application of the legal test which may be found upon review of the record; 2. determining that the standard of maintenance for the bridge was the standard and condition at the time of its construction, which finding did not conform to the evidence adduced; 3. determining that the posts and rails on the bridge were repaired as needed, which finding did not conform to the evidence adduced; 4. determining that the purpose of the bridge barrier was primarily to delineate the edge of the bridge, which finding did not conform to the evidence adduced; 5. failing to consider, forgetting or ignoring important evidence before the court regarding the cost, availability and ability of the respondent to erect jersey barriers along the bridge when determining that the respondents Bridge Replacement Priority list was a reasonable response to the risk to the travelling public; 6. failing to make a determination on causation of damages and damages on a provisional basis; 7. such other grounds as may appear on review of the record. [ 16 ] In his factum, the appellant condensed the issues to be determined by this Court as follows: 1 Whether the lower court erred by applying the wrong legal test or applying the legal test wrongly, when determining fault/liability. 2 Whether the lower court erred by forgetting or ignoring important evidence before the court when determining fault/liability, including:

a) by finding that the posts and rails on the bridge barrier were repaired as needed;

b) by determining that the bridge barrier was primarily to delineate the edge of the bridge. 3 Whether the lower court erred in its determination of the applicable standard of care. [ 17 ] In my view, the appellant’s issues can be further condensed into two broad inquiries: 1. Did the trial judge err in determining the standard of care to be met by the respondent? 2. Did the trial judge err in concluding the appellant had failed to establish causation?

Standard of Review [ 18 ] Although I will address the standard of review as it relates to particular aspects of the trial judge’s decision, at this point I will simply confirm that the normal appellate standard of review will apply. That is, correctness will apply to questions of law, and palpable and overriding error to issues of both fact and mixed fact and law with no extractable legal issue ( Housen v. Nikolaisen , 2002 SCC 33 ).

Providing that the correct legal test for causation is identified, a trial judge’s conclusion with respect to causation is a factual determination attracting a deferential standard of review ( Ediger v. Johnston , 2013 SCC 18 ). Analysis Did the trial judge err in determining the standard of care to be met by the respondent? [ 19 ] The trial judge concluded that the respondent was not obligated, prior to the accident, to bring the MacPhee Brook Bridge in line with the new standard for timber bridges contained in PR5076.

Rather, the trial judge concluded the respondent’s obligation was to maintain the bridge to its original construction. [ 20 ] The appellant submits that the trial judge erred. He says that the respondent had ample knowledge prior to the accident that the bridge was in poor condition. As such, the respondent ought to have either immediately upgraded it to the new standard upon implementation of the policy, or alternatively, at some time later, once the extent of the structural problems became apparent.

The appellant similarly takes issue with the placement of the bridge on the “replacement” list, suggesting that given its condition, it ought to have been given greater priority. [ 21 ] The critical flaw in the appellant’s argument is that he does not challenge the reasonableness of PR5076, and in fact, seeks to rely on it with respect to the existence of a higher, more modern, standard of care. The trial judge heard, and accepted, expert evidence that PR5076, and in particular its staggered implementation of a new rail system, was reasonable.

We have not been requested to set aside that conclusion. [ 22 ] What the appellant seeks, is for this Court to interfere with the trial judge’s application of PR5076. He argues that as more than

50% of the barrier posts were rotted, under the policy, the respondent was obligated to install a new railing system and that the trial judge erred in concluding otherwise. Despite the appellant’s assertion at trial, the trial judge found that less than 50% of the barrier posts required replacement. In accordance with PR5076, this finding called for the barrier to be “reinstated to the standard which applied to the original construction”. [ 23 ] Notwithstanding the appellant’s assertion that the above finding constituted an error of law, it is not.

The trial judge’s conclusion with respect to the extent of the barrier posts requiring replacement was a factual finding, one attracting deference, absent palpable and overriding error. [ 24 ] The record shows that the trial judge had evidence before him which grounded that conclusion. Although evidence was before the court suggesting the bridge was in a general state of poor repair, there was also evidence that suggested that the posts requiring replacement did not meet the 50% threshold. The trial judge was entitled to accept that evidence.

Flowing from that factual finding, the trial judge’s determination that the standard of care called for the “original construction”, fell squarely within PR5076. [ 25 ] Finally, the appellant takes issue with the respondent’s prioritization of the MacPhee Brook Bridge on its replacement list, asserting it should have been scheduled earlier. The appellant offers nothing beyond that simple assertion to justify his allegation that the respondent was negligent in its prioritization efforts.

The appellant called no evidence to counter the opinion advanced by the respondent’s expert that the system of prioritization was appropriate and a reasonable method of scheduling infrastructure renewal in keeping with fiscal considerations. Further, there was no evidence adduced that could support an assertion that this bridge was inappropriately given less priority over other timber bridges also placed on the replacement schedule.

As such, I would not interfere with the trial judge’s conclusion that the system of prioritization for replacement, or the scheduling in relation to this bridge in particular, were appropriate. [ 26 ] The trial judge ultimately concluded that the respondent failed to maintain the bridge to the standard of its original construction, and as such, breached its duty of care to the appellant.

Did the trial judge err in concluding the appellant had failed to establish causation? [ 27 ] With respect to causation, the trial judge concluded as follows: [363] The plaintiff must prove that the negligence of the defendant in fact caused his injury.

In this case, the plaintiff must prove the defendant’s failure to maintain the timber bridge barrier on the east side of the bridge to the condition at the time of its original construction, caused his harm or injury; said differently, that the failure of the defendant to maintain the bridge to the standard of the late 1970s or early 1980s, made a difference in the injury he suffered. [364] On direct and cross-examination, Dr.

Wilson acknowledged that he was not aware of any accident reconstruction investigation having been carried out in respect of this accident, nor did he have any data that would enable him to express an objective determination of whether a barrier built to the new 2007 technical standard or the former AASHTO standard would have kept the plaintiff’s vehicle from veering off the bridge.

In addition, he was unaware, and the court is satisfied that there was no evidence, that described enough particulars of how the plaintiff’s vehicle veered through the barrier so as to find or infer that the railing would probably have redirected the vehicle to a safe stop on the bridge.

The particulars would include the mass of the plaintiff’s Jimmy; where on the bridge the railing was struck; the angle at which the plaintiff’s vehicle struck the railing; and, the speed at which the vehicle was driving at the time that a deer ran out into the plaintiff’s path and he struck the railing. [365] In order for the plaintiff to establish that the defendant’s negligence in failing to maintain the pre-2007 standard for timber bridge barriers would have caused him not to go over and off the bridge, he would have to satisfy the court that the pre-PR5076 technical standard for the barrier would probably have prevented him from going through the railing and off the bridge.

In Snell , Justice Sopinka made it clear that causation in fact need not be established to scientific certainty, but he and the Supreme Court in Clements were clear that there must be some evidence from which the court, applying common sense, can infer that the vehicle in this case would likely not have gone off the bridge if the timber railing had been to the standard of its original construction in the late 1970s or early 1980s. [366] There is no evidence from which the court can determine whether this railing, maintained to that standard, would have prevented Mr. Ketler’s vehicle from careening off the bridge.

Speculation is not permissible. [367] The plaintiff has not established factually, on a balance of probabilities, that but for the failure of the defendant to maintain the bridge barrier to the condition at the time of its construction, the plaintiff’s vehicle would not have gone off the bridge. And further: [370] I am satisfied, based primarily on the evidence of Dr.

Robinson, that a timber barrier maintained to the condition at the time of its construction on this low volume road was not intended, and would not have prevented the Ketler vehicle from careening off the bridge. [371] I am not satisfied that the condition of the timber barrier on the east side of MacPhee Brook Bridge on October 21, 2010, made a difference with regards to whether the Ketler vehicle would have gone over the bridge, which event caused the harm and injury for which Mr.

Ketler claims damages. [ 28 ] Before this Court, the appellant challenged many aspects of the trial judge’s conclusion, raising a number of reasons why there is error, including: • Causation is not a necessary element for a finding of negligence, and the trial judge erred in concluding otherwise; • Alternatively, causation was not an issue in question by virtue of the “Agreed Statement of Facts” filed by the parties, and

as such, the trial judge erred in considering it; • Alternatively, as “inevitable accident” was pled in the defence, this served to transfer the burden to disprove causation tothe respondent, and the trial judge erred in not doing so; • Alternatively, the trial judge erred in applying the “but for” test as outlined in Clements v. Clements, 2012 SCC 32, as thatcase had no application to the case before him; • Alternatively, if the “but for” test as articulated in Clements applied, the trial judge erred in the application of the test. [29] None of the arguments advanced by the appellant have merit.

In her oral submissions, counsel for the appellant repeatedlyasserted that “where negligence is clearly proven, there is no need to prove causation”. It is clear from the record and submissions beforethis Court, that the appellant holds the view that once a duty of care is recognized, and a breach thereof is established, that a finding ofliability ought to flow. With respect, such a position overlooks basic tort law. [30] Causation is a necessary element in a negligence action. Without it being established, there can be no liability.

In assessing theappellant’s claim of negligence, the trial judge did not err in considering whether the appellant had established causation. [31] I also reject the appellant’s assertion that the issue of causation had been removed from the trial judge’s consideration. Inadvancing the argument that the respondent had acknowledged causation, the appellant relies upon the contents of an Agreed Statementof Facts filed prior to trial. It provided: The Plaintiff and the Defendant have agreed to the following facts: 1. The subject motor vehicle accident occurred on October 21, 2010. 2.

The subject motor vehicle accident occurred on the MacPhee Brook Bridge on the North Salem Road in Shubenacadie, Nova Scotia. 3. The Plaintiff was driving a 1998 GMC Jimmy truck. 4. The Plaintiff was travelling North on the North Salem Road at the time of the October 21, 2010 accident; and the Plaintiff’s vehiclewent off the East side of the MacPhee Brook Bridge. 5. Timber Bridge Barrier standards were adopted by the Department of Transportation Infrastructure Renewal (DTIR), effective on May25, 2007 (PR5076)[.] 6.

The MacPhee Brook Bridge was placed on a Timber Rail Replacement Priority List for an upgrade, which was scheduled for 2014. 7. The Automobile Accident Minor Injury Regulations N.S. Reg. 94/2010 (soft tissue cap) do not apply. 8. The Plaintiff sustained injuries in the October 21, 2010 accident, and the following are agreed to be a direct result: a. Fractured sternum b. Fractured 2nd and 3rd ribs c. Fractured back- comminuted T5, un-displaced T6 and T7. 9.

The Plaintiff has past lost wages in the amount of $3770 plus interest as agreed at $311 for a total past lost income of $4,081. [32] There is nothing in the admissions which serve as an acknowledgement of causation. Further, the record shows the respondentargued in its pre-trial submissions and before the trial judge that the necessary element of causation was not established. The issue ofcausation was a live one in the matter before the trial judge; one he was obligated to consider. [33] In its defence, the respondent pled “inevitable accident”.

The appellant says that this served to transfer the burden to provecausation from him to the respondent to disprove causation. He cites Wilson v. MacInnis (1992), (NS SC), 111 N.S.R.(2d) 78 as authority. [34] Wilson says no such thing. That decision addresses the burden on a defendant when arguing “inevitable accident”, and clearlynotes that the defence is considered following a finding of negligence.

It says nothing about the element of causation, nor does thedecision suggest a plaintiff’s burden to establish it, is transformed into a defendant’s burden to disprove it. [35] In the case before the trial judge, the Statement of Defence denied the appellant’s claim of negligence. Inevitable accident waspled in the alternative, to be considered if the appellant were able to prove negligence. As the trial judge concluded the appellant hadfailed to meet that burden, there was no need to consider the alternative defence.

There was no shifting burden – it remained theobligation of the appellant to establish causation. [36] The appellant says the trial judge, relying on Clements, erred in utilizing the “but for” test of causation, as that decision isfactually distinct, and of no application to the case before him. In advancing this argument, the appellant again makes a broad assertionwith no authorities in support, nor a suggestion for an alternative test. [37] Clements is widely recognized as the most recent explanation of the test for causation in negligence actions.

In Ediger v.Johnston, 2013 SCC 18, a medical malpractice claim, Justices Rothstein and Moldaver do not limit the applicability of the Court’searlier decision. They state:

28 This Court recently summarized the legal test for causation in Clements v. Clements , 2012 SCC 32 , [2012] 2 S.C.R. 181. Causation is assessed using the "but for" test ( Clements , at paras. 8 and 13 ; Resurfice Corp. v. Hanke , 2007 SCC 7 , [2007] 1 S.C.R. 333, at paras. 21-22 ). That is, the plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injury would not have occurred ( Clements , at para. 8 ).

"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" (para. 8 (emphasis deleted)). [ 38 ] Similarly, in CIBC Wood Gundy v. Matheson , 2015 NSCA 22 , this Court recently followed Clements and confirmed the applicability of the “but for” test in a claim of negligent misrepresentation. [ 39 ] The trial judge did not err in identifying the test of causation as being the “but for” test as articulated in Clements .

But did he, as asserted by the appellant, misapply it? In my view, he did not. The trial judge quoted from Clements as follows: [328] The Supreme Court’s description of the cause in fact analytical framework is articulate and comprehensive. It reads in part: [6] On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury.

That link is causation. [7] Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care – a defendant who is at fault and a plaintiff who has been injured by that fault. … [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. … [9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution of the defendant’s negligence made to the injury. … [10] A common sense inference of “but for” causation from proof of negligence usually flows without difficulty.

Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. … [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. … … [13] To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test.

This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. … this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact cause the injury, but it is established that one or more of them did in fact cause it. … [14] “But for” causation and liability on the basis of material contribution to risk are two different beasts. “But for” causation is a factual inquiry into what likely happened.

The material contribution to risk test removes the requirement of “but for” causation and substitutes proof of material contribution to risk. … [15] … “material contribution as a substitute for the usual requirement of “but for” causation only applies where it is impossible to say that a particular defendant’s negligent act in fact caused the injury. … [16] … A defendant in an action in negligence is not a wrongdoer at large: he is a wrongdoer in respect of the damage which he actually causes to the plaintiff” … For that reason, recourse to a material contribution to risk approach is necessarily rare, and justified only where it is required by fairness and conforms to the principles that ground recovery in tort. [21] … The usual requirement of proof of “but for” causation should not be relaxed where the result would be to permit plaintiffs to recover in the absence of evidence connecting the defendant’s fault to the plaintiff’s injury. … Sopinka J. stated that if the injury likely was brought about by neutral factors, that is, it would have occurred absent any negligence, the plaintiff cannot succeed.

To allow recovery where the injury was the result of neutral factors would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence. [ 40 ] The trial judge concluded that the material contribution test did not apply, leaving for consideration whether causation was established on the basis of a “but for” analysis.

The trial judge’s rejection of the material contribution test was not challenged on appeal. [ 41 ] The trial judge found that there was no evidence to suggest that the poor condition of the bridge caused the accident in question. He concluded the appellant failed to adduce evidence that in the event the standard of care was met, his vehicle would have been prevented from crashing through the barrier. To the contrary, from the evidence adduced, the trial judge found that if the bridge had been maintained to the original standard of construction, it would have probably crashed through the barrier in any event.

He based this on evidence elicited by the respondent that the function of the bridge barrier at the time of construction was not intended to deflect vehicles. [ 42 ] The appellant complains that requiring him to prove what would have happened if the bridge had been maintained is speculative. It is. But that, as explained by Professor Klar in Tort Law , 5 th ed. (Toronto: Thomson Reuters Canada Limited, 2012) at

page 450, is the nature of the beast: The “but for” test is evaluative and speculative. It requires the trier of fact to predict what would have happened to the plaintiff had the defendant not acted unreasonably. … Since a court cannot repeat a past event, controlling some conditions while altering others to see what results, the issue is necessarily speculative.

The court must guess at what would have occurred, using its best judgment, intuition, common sense, experiences, expert evidence, and whatever else might be of assistance. [Footnote omitted] [ 43 ] The appellant further argues that the trial judge erred in concluding there was no evidence advanced that had the bridge been properly maintained to the original construction standard, the accident would not have occurred. He points to the statement to that effect in the report of his expert, Dr. Wilson. I am satisfied that the trial judge did not inappropriately ignore Dr.

Wilson’s opinion on causation, but rather, weighed it in light of the concessions which followed in cross-examination. The trial judge summarized that evidence in his decision: [62] Dr. Wilson acknowledged that in order to determine the probability that a vehicle would be deflected by a bridge barrier or guardrail, that one had to know, among other things: the speed of the vehicle, the angle of impact with the guardrail and the nature of the barrier.

He acknowledged that he had no data respecting the angle of impact or what force that guardrail or any other guardrail would have to withstand to have deflected the Ketler vehicle. He had not conducted any tests on the structural integrity of the barrier system. . . . [69] He acknowledged that to determine whether a particular vehicle would probably have been deflected by a bridge barrier would require an accident reconstruction investigation, taking into consideration the vehicle’s speed, weight and angle of contact as well as driver input.

He was unaware of whether the plaintiff in this case applied his brakes or not. No accident reconstruction investigation was carried out. [70] Dr.

Wilson acknowledged that, in the last stage of preparing his report, he became aware that the MacPhee Brook Bridge had been scheduled before the accident to be upgraded to the PR5076 standard at a date subsequent to the accident. [71] He could not draw an engineering conclusion as to whether the plaintiff’s vehicle would have been deflected by the barrier if the barrier had been upgraded before the accident to the PR5076 standard. [ 44 ] As noted earlier, this Court will not interfere with factual conclusions regarding causation, absent palpable and overriding error.

The evidence before the trial judge was such that it permitted him to reach the conclusion he did. He accepted that the original barriers were not intended to deflect vehicles, and from this he inferred, permissibly, that the appellant’s Jimmy would have likely broken through even if the barrier were well maintained. There is no error justifying appellate intervention. Conclusion [ 45 ] For the reasons above, I would dismiss the appeal. The appellant shall pay costs of the appeal to the respondent of $10,125.00, inclusive of disbursements.

The appellant previously paid $2,500.00 into Court by way of security for costs. The Registrar shall release those funds to the respondent, as partial payment of the costs ordered herein. Bourgeois, J.A. Concurred in: Fichaud, J.A. Bryson, J.A.