Kulig v. Clayton, 2012 NSSC 252

SUPREME COURT OF NOVA SCOTIA Citation: Kulig v. Clayton, 2012 NSSC 252 Date: 20120718 Docket: Hfx. No. 294271 Registry: Halifax Between: Leena Kulig Plaintiff -and- Michael Clayton Defendant Decision Judge: The Honourable Justice Robert W. Wright Heard: June 25 and 26, 2012 at Halifax, Nova Scotia Written Decision: July 18, 2012 Counsel: Counsel for the Plaintiff- Glenn Jones Counsel for the Defendants - J.W. Stephen Johnston Wright, J.

INTRODUCTION [ 1 ] On June 25, 2005 a collision occurred between the plaintiff cyclist and the defendant ’ s motor vehicle while it was making a right hand turn at a T-intersection in the town of Yarmouth, Nova Scotia.

Both had been travelling in the same direction just prior to the collision. [ 2 ] By Consent Order granted on May 24, 2012 it was directed that the issues of liability and damages be severed, such that only the issue of liability be heard and determined at this trial, with the issue of damages to be determined at a later date as required. [ 3 ] Apart from the parties themselves, there were only two eyewitnesses to the accident, namely, the occupants of a vehicle that was travelling immediately behind the defendant ’ s vehicle when the accident occurred. The operator of that vehicle, Mr.

Anthony Purdy, was the only witness to testify in addition to the parties themselves, his passenger father now being deceased. The plaintiff, the defendant and the eyewitness all gave differing accounts as to how the accident occurred. REVIEW OF THE EVIDENCE [ 4 ] I begin my review of the evidence with the testimony of the plaintiff Leena Kulig. At the time of the accident, she was 58 years of age and a resident of Lennox, Massachusetts. Having taken up an interest in long distance cycling, Ms. Kulig embarked on a cycling tour of Nova Scotia as part of a group of more than one hundred strong..

They all arrived in Yarmouth on the ferry from Maine around noon that day. The weather was clear and sunny. [ 5 ] After making a currency exchange, Ms. Kulig stopped with other cyclists at a restaurant on Main Street but because of the slow service, she decided to keep on going. She therefore headed north on Main Street, the main thoroughfare in Yarmouth, with a couple of other cyclists travelling ahead of her. [ 6 ] Traffic was fairly heavy from the landing of the ferry as Ms. Kulig peddled her way along Main Street at her estimated speed of 5- 10 mph.

She recalls being passed by several vehicles on her left and that there were several parked vehicles on her right, none of which she had any reason to take any particular notice of. [ 7 ] Suddenly, however, as she was about to enter the T-intersection of Main and Grand Streets, she found herself in the agony of collision with the defendant ’ s half-ton truck. Her first sighting of the truck was as it made a right hand turn onto Grand Street directly in front of her at what she estimated to be a 45 degree angle.

It was in that same first visual image that she saw her bicycle wheel pointing at the right side door of the truck, observing as well that the driver was looking straight down Grand Street. She described the speed of the truck as quite swift or quite fast. She tried to avoid the collision by braking and swerving to her right but it was too late. The front wheel of her bicycle collided with the right rear tire of the truck and she was thrown to the pavement. She said it all happened very fast, within a couple of seconds.

She is certain from what she saw and where she fell, however, that the point of impact occurred on Grand Street itself. [ 8 ] Ms. Kulig said that right after the impact, she went blank for a moment and then became aware of the defendant walking towards her after pulling over his vehicle. He was very helpful to her in seeing if she was all right and trying to contact the tour operator. Just then, an RCMP patrol car happened to come along which the defendant flagged down. After speaking with both parties, the police officer drove Ms. Kulig to the hospital as she was concerned with a sore shoulder. Ms.

Kulig had no recollection whatsoever of having seen or heard Mr. Purdy at the scene of the accident. [ 9 ] Ms. Kulig testified that as she approached the intersection, she did not notice any motor vehicles in front of her. She did then notice, however, two cyclists travelling ahead of her, at a distance she was unable to measure. She was unable to say whether they were both riding a tandem bicycle, or riding separate bicycles in single file. [ 10 ] In her testimony, Ms. Kulig assumed that the defendant ’ s truck came up from behind her because of the angle of its turn at the intersection.

She didn ’ t think that she herself passed any vehicles on the right in travelling along the block before the accident occurred, it not being her usual practice to do that.

[ 11 ] I now turn to a review of the evidence of the defendant Michael Clayton. At the time of the accident, he was 50 years of age and a lifelong resident of Yarmouth. He has worked as a licensed real estate broker there for many years. [ 12 ] Before leaving his downtown office to do a real estate showing, Mr. Clayton had noticed several cyclists proceeding along Main Street. He acknowledged that it was not unusual for cyclist tours to arrive in Yarmouth from the Bar Harbour ferry.

He too said it was a sunny day as he then drove along Main Street in his 2004 Chevrolet half-ton truck amidst the heavy ferry traffic. [ 13 ] As he drove along Main Street in the block formed by the side streets of Parade and Grand on the right, Mr. Clayton saw the plaintiff on her bicycle as he drove past her.

He said that this happened in the vicinity of the driveway into the municipal building and the walkway to the cenotaph (which appears from the photographs in evidence to be approximately halfway through the block). [ 14 ] As he was just coming up on the Grand Hotel (adopting his evidence on discovery) which was located on his right at the corner of Main and Grand Streets, Mr. Clayton realized he had forgotten to bring the realty signs with him. Knowing that he therefore had to double back to his office to retrieve them, he decided to turn right onto Grand Street in order to do so.

He said that when he came alongside the hotel, he put his right signal on. [ 15 ] Before making the turn, however, he noticed two riders on a tandem bicycle to his right. He decided to let them pass so that they wouldn ’ t feel uncomfortable from his presence. He said he therefore came to a full stop, with his right turn signal on, and that once they passed through the intersection, he made his turn onto Grand Street. He said that as he made the turn, he felt a thump and at first, didn ’ t know what it was. When he looked in his rear view mirror, however, he saw Ms. Kulig lying on the pavement with her bicycle.

He thereupon stopped his truck and got out to ask her if she was all right. He also offered to take her to the hospital but just then, saw a passing police car which he flagged down. Mr. Clayton said he didn ’ t talk to Ms. Kulig much, if any, after that and that the police officer, after talking to them both, drove her to the hospital. [ 16 ] Mr. Clayton candidly acknowledged that as he was making his turn, he was looking up Grand Street and did not check the side view mirrors on his truck for the presence of any other cyclists or pedestrians.

He readily acknowledged that after passing the plaintiff further back on Main Street, he did not again see her until after the accident occurred. He adopted a rough estimate of 150 feet as the distance by which he had passed the plaintiff before realizing he had forgotten the realty signs and therefore had to make a right turn onto Grand Street to retrieve them. [ 17 ] Mr.

Clayton further testified that after the collision occurred, the driver of the vehicle who had been travelling immediately behind him on Main Street called out to him, saying words to the effect “ Mike, I saw it all; if you need a witness, give him my name ” . Mr. Clayton immediately recognized this person to be Mr. Anthony Purdy who was a long time acquaintance of his and someone he had once sold a car to when in the car business.

There is some conflicting evidence about this exchange, which will be touched on later in this decision, but in any event, nothing further transpired at the scene. [ 18 ] That brings me to a review of the evidence of Mr. Purdy, the third and final witness at trial. Mr. Purdy is a lifelong resident of the Yarmouth area and has known the defendant for many years, although they are only acquaintances and don ’ t socialize with each other. [ 19 ] Mr. Purdy recounted in his evidence that he was driving north along Main Street in his half-ton truck in normal traffic conditions.

Although he didn ’ t realize it at the time, the vehicle proceeding directly ahead of him was being operated by Mr. Clayton. [ 20 ] As they went past the Grand Hotel before coming to the Grand Street intersection, Mr. Purdy observed that the vehicle in front of him began to slow down with its right turn signal activated. Mr. Purdy therefore slowed his vehicle as well. He then recounted that all of a sudden, the plaintiff cyclist came up alongside him on his right and as he put it “ wham, it went right into the defendant ’ s right rear tire as he was making a normal turn onto Grand Street ” .

[ 21 ] Mr. Purdy said that he had no doubt but that the defendant ’ s right turn signal was on before he made the turn. He could not be precise as to when the turn signal was activated but he said that it was put on in enough time to warn himself to slow down. He maintained that the defendant ’ s right turn signal was on before he even saw the cyclist passing him on his right. When pressed on cross- examination, he adopted his discovery evidence where he said the defendant ’ s signal was put on just past the hotel. [ 22 ] Mr.

Purdy testified that the defendant ’ s vehicle did not come to a stop at the intersection but rather simply slowed down before making the turn. Mr. Purdy said that the defendant ’ s vehicle had no reason to stop there, adding that the plaintiff was the only cyclist that he saw. He further testified that the first time he saw the plaintiff cyclist was through his side vision as she passed him on the right just before the collision. He too added that it all happened very quickly. [ 23 ] Mr. Purdy testified that after the impact, the defendant stopped his vehicle right away on Grand Street. Mr.

Purdy stopped his vehicle as well, but only for a couple of minutes he said. He cannot say for sure if he said anything at the time to Mr. Clayton but that he might have asked him if everything was all right and being looked after and under control, or words to that effect. He simply did not recall having any specific conversation with the defendant at the scene. ASSESSMENT OF EVIDENCE AND FINDINGS OF FACT [ 24 ] After hearing and observing these witnesses, I am satisfied that all three of them were earnestly trying to describe what happened to the best of their recollection.

What is in question is therefore not their credibility, i.e., their sincerity and desire to tell the truth. Rather, what is in question is the reliability of some of their evidence, that is to say, the accuracy of some of the details recounted.

That, of course, is affected by their own perceptions and powers of observation at the time, coupled with the lengthy passage of time since the accident occurred (which was seven years to the day of the commencement of this trial). [ 25 ] As is evident from the foregoing review of the plaintiff ’ s evidence, the theory of her case is that she was lawfully cycling along Main Street and was just about to enter the mouth of the Grand Street intersection when the defendant ’ s vehicle overtook her and cut her off as it made a right turn. The evasive action she took was not enough to prevent the collision. Ms.

Kulig assumes the defendant ’ s vehicle came from behind her because of the angle and the fast speed of its turn in front of her, coupled with her evidence that she did not see the defendant ’ s vehicle before that. She therefore maintains that the defendant is solely liable for the accident. [ 26 ] As is also evident from the defence evidence, the theory of Mr. Clayton ’ s case is that he was lawfully proceeding along Main Street when, after realizing he had forgotten to bring the realty signs, he decided to make a right turn onto Grand Street to retrieve them.

After stopping (or at least slowing) his vehicle just before the intersection to allow a tandem bicycle to pass on his right, and with his right turn signal engaged, he made the turn in a normal fashion with nothing obstructing his view.

He acknowledges that he did not first check his side mirror for the presence of anyone else but it is argued by defence counsel that having obeyed the rules of the road, there was no legal duty to do so in the present circumstances and hence, no liability should be attached to him. [ 27 ] It should be mentioned that counsel for the plaintiff did draw out a few inconsistencies between the evidence Mr. Clayton gave at trial and his earlier discovery evidence and statement to an insurance adjuster.

However, these inconsistencies essentially relate to minor details and only go to the reliability of those details as above mentioned (e.g., where he was on Main Street when he realized he had forgotten the signs, how far he proceeded down Grand Street after the collision, how much conversation he had with Mr. Purdy at the scene of the accident and whether he called him about a week later to thank him). [ 28 ] More significantly, counsel for the plaintiff also drew out inconsistencies between the testimony of Mr. Clayton and that of Mr. Purdy, notably, whether Mr.

Clayton fully stopped (as he said) or merely slowed down (as Mr. Purdy said) before the turn was made. These two witnesses also differed on what conversation they had at the scene of the accident and whether there were other cyclists to be seen just before it occurred (i.e., the tandem bicycle). There were a couple of other peripheral discrepancies as to the volume of traffic on Main Street and where the defendant stopped his vehicle after the impact. [ 29 ] The key consistency to be noted between the evidence of the two defence witnesses is that Mr.

Clayton, whether he fully stopped or merely slowed down before making his right turn, engaged his turn signal before the plaintiff cyclist came up alongside them from behind. Both were very definitive about that and, I interject here, Mr. Purdy did not show any favouritism to Mr. Clayton as a past

acquaintance when giving his evidence. [ 30 ] Significantly, Mr. Clayton made a number of candid admissions when giving his evidence which can be summarized as follows: (

a) He knew when leaving his office that a cycling tour group was proceeding along Main Street after disembarking from the ferry; (

b) He knew from general experience that it was usual for cyclists to pass to the right of stopped vehicles along the way; (

c) He recalls seeing and passing the plaintiff cyclist while proceeding in the same direction on Main Street about halfway down the block between Parade Street and Grand Street; (

d) He acknowledged that the plaintiff would therefore be getting closer to his vehicle after he stopped before making his turn onto Grand Street; (

e) As he was about to enter the Grand Street intersection, he saw and waited for a tandem bicycle to pass on his right before making his turn; (

f) He acknowledged that he did not check his side view mirror before making his turn onto Grand Street and that he was looking straight down that street when the accident occurred. [ 31 ] Having found Mr. Clayton to be a generally credible witness, I accept his testimony that he did pass Ms. Kulig on her bicycle about mid-way through the block on Main Street above described and that he was therefore ahead of her when he paused to let the tandem bicycle go by on his right at the mouth of Grand Street.

I also accept his evidence that he had by that time activated his right turn signal which he likely did as he went past the hotel (although the timing cannot be stated with precision). [ 32 ] Mr. Clayton ’ s evidence in this regard finds corroboration not only by the testimony of Mr. Purdy, but also by the plaintiff ’ s acknowledgement that just prior to the collision, she saw two cyclists who were travelling ahead of her after leaving the restaurant. Being ahead of her at a distance she was unable to measure, she couldn ’ t say whether they were travelling on a tandem or on separate bicycles in single file.

However, I infer, on a balance of probabilities, that the cyclists preceding her were the same two riding on a tandem that Mr. Clayton waited to let pass at the mouth of Grand Street. This too would place Ms. Kulig behind both the Clayton and Purdy vehicles and passing to their right as she approached the intersection. [ 33 ] Although she has no recollection of having seen or passed either of these vehicles, and does not think she did so based on her usual driving habits, Ms.

Kulig obviously cannot be definitive about it because her only specific recollection about the accident was limited to the couple of seconds or so before the collision with the defendant ’ s truck. She candidly admitted that up to that point, she couldn ’ t say where any specific vehicles were because there was then no reason for her to take notice or remember that. [ 34 ] Whether Mr. Clayton briefly came to a full stop at the intersection, or merely slowed down to let the tandem bicycle pass on his right, is a relevant but not critical finding for the court to make.

On a balance of probabilities, I conclude that it is more likely that he slowed down to a rolling stop rather than a complete full stop. Be that as it may, the more important factual finding I make is that Ms. Kulig did pass to the right of the Purdy and Clayton vehicles when approaching the Grand Street intersection with the tandem cyclists a short distance ahead of her. Coupled with that are my findings that Mr. Clayton ’ s right turn signal was engaged as he waited for the tandem bicycle to pass and that he did not check his side view mirror before then making the turn onto Grand Street.

LEGAL ANALYSIS AND CONCLUSION [ 35 ] The legal analysis in the situation presented here begins with the application of s. 248(1) of the Motor Vehicle Act which reads as follows: 248

(1) Where any injury, loss or damage is incurred or sustained by any person by reason of the presence of a motor vehicle upon a highway, the onus of proof (

a) that such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner of the motor vehicle, or of the servant or agent of such owner acting in the course of his employment and within the scope of his authority as such servant or agent; (

b) that such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the operator of the motor vehicle,

shall be upon the owner or operator of the motor vehicle. [36] The operation of this provision has been dealt with by the Nova Scotia Court of Appeal on a number of occasions. A convenientsummary of the law is to be found in the decision of Gardiner v. Scherer 1999 NSCA 175 , [1999] N.S.J. No. 8, reading asfollows (at paras. 14-15): 14. The law respecting the operation of this

section is well settled. In Feener v. McKenzie 1971 CanRepNS 38; (SCC), [1972] S.C.R. 525; 3 N.S.R. (2d) 829, the Supreme Court of Canada ordered a new trial where the jury had been misdirectedregarding the onus in what was then s. 221 of the Motor Vehicle Act, the predecessor to the current s. 248. That case concerned acollision between a motor vehicle and a boy on a sled who had slid down a hill to the paved portion of a street.

The trial judge hadinstructed the jury that the driver had to prove that he was not entirely to blame for the accident, but then said that the moment that thedriver, operator proves that he was not entirely to blame, the burden falls back upon the pedestrian to prove that the driver wasresponsible. Hall, J. for the majority of the Supreme Court stated at paragraph 34 (page 834 N.S.R.): The law in Nova Scotia as to the effect and

interpretation of this

section was set out by Ilsley J. (as he then was) in Tuckey v. Dyer, (NS SC), 27 D.L.R. (2d) 408, where Ilsley J. correctly applied the judgment of this Court in Deering v. Hebert, (SCC), [1957] S.C.R. 843. The

section under review in Deering v. Hebert was, to all intents and purposes, the same as s. 221(1) (a)and (

b) of the Motor Vehicle Act of Nova Scotia and in particular contains the same phrase "... did not entirely or solely arise through thenegligence or improper conduct ..." and Locke J. for the majority, referring to the matter of onus, quoted with approval from thejudgment delivered by Lord Wright in Winnipeg Electric Company v. Geel, (UK JCPC), [1932] A.C. 690, as follows: But the onus which the

section places on the defendant is not in law a shifting or transitory onus: it cannot be displaced merely by thedefendant giving some evidence that he was not negligent, if that evidence, however credible, is not sufficient reasonably to satisfy thejury that he was not negligent: the burden remains on the defendant until the very end of the case, when the question must be determinedwhether or not the defendant has sufficiently shown that he did not in fact cause the accident by his negligence.

If, on the whole of theevidence, the defendant establishes this to the satisfaction of the jury, he will be entitled to judgment; if, however, the issue is left indoubt or the evidence is balanced and even, the defendant will be held liable in virtue of the statutory onus, whereas in that event but forthe statute the plaintiff would fail, because but for the statute the onus would be on him. 15. This Court considered and applied Feener v. McKenzie in Eisnor v.

Gracie, 1987 CanRepNS 20; 4 M.V.R. (2d) 65; (NS CA), 82 N.S.R. (2d) 41; 207 A.P.R. 41, a case where an automobile struck a pedestrian who was crossing the street.

The trialjudge did not refer to s. 248 of the Act, and approached the assessment of the evidence in a manner similar to that of the trial judge here.In Eisnor, Matthews, J.A. for the court, said at paragraphs 11 and 16: It was only after determining that the appellant [the pedestrian] was negligent that the trial judge turned her attention to the conduct ofthe respondent and found that "there was nothing that the defendant could have done to avoid this accident". ...

With deference the trial judge should not have first considered whether the appellant, the plaintiff pedestrian, was negligent and thenupon determining that was so, questioned whether there was any liability on the part of the respondent. The proper test to be applied by atrial judge in motor vehicle/pedestrian injury cases is that set out in s. 221 and the case law thereon. It is sometimes referred to as thereverse onus.

The onus is upon the owner or operator of the motor vehicle to prove by a preponderance of evidence that the accident wasnot caused entirely or solely by his or her negligence or improper conduct. That burden is upon that owner or operator until the end of thecase. It does not shift.

It is only at the end of the case and on consideration of all of the evidence, should the trial judge after firstconcluding that owner or operator has proven by a preponderance of evidence that he or she did not in fact entirely or solely cause theaccident by his or her negligence or improper conduct that the claim by the pedestrian may be dismissed. [37] As succinctly put by Justice Fichaud in the more recent decision of Jeffery v. Naugler, 2006 NSCA 117 (at para. 32), “If s.248(1)is engaged, then [the defendant] has the onus to disprove negligence within the terms of s.248(1).

The legal nature of that reverse onus iswell-established”. [38] I also refer to the earlier decision of the Nova Scotia Court of Appeal in Langille v. D.G. Wolfe Enterprises Ltd. (1987) (NS CA), 79 N.S.R. (2d) 92 which was another case involving a collision between a motor vehicle making a right turn froma city street (albeit into a laneway) and an oncoming cyclist travelling on the sidewalk. The court there affirmed that s.221 of the MotorVehicle Act (now renumbered as s.248) merely creates a rebuttable presumption that the injuries of the plaintiff arose entirely or solely

through the negligence or improper conduct on the part of the operator of the motor vehicle. [39] Although that case has its factual differences, it is also instructive in its discussion of the duties, both statutory and at common law,on a driver who makes a turn from a driving lane or direct line on a highway. The court ruled (at para.36) that s. 108 of the MotorVehicle Act as it then existed and which has since evolved into the current s.111(b), was applicable to the facts of that case.

The courtwent on to say that even if there were no such statutory rule of the road, “it is obvious that a turn from a direct line on a highway isfraught with such potential danger that it is the duty of a driver of a vehicle to first see that such movement can be made in safety”. [40] The court noted (at para. 79) that the standard of care is proportioned to the gravity and imminence of the risk.

That is to say, thegreater the risk, the more care that should be taken. [41] In applying those principles to the fact situation in Langille, and with its observation that the presence of a bicycle on the RobieStreet sidewalk should not have been surprising to the defendant, the Court of Appeal concluded that: (

a) there was a duty upon the driver of the motor vehicle to determine that his turn from the highway could be carried out in safety; and (

b) the driver failed in that duty in not keeping a proper lookout in the circumstances. [42] That same analytical approach leads to similar conclusions being made in the present case where the circumstances are even moreacute. Having regard to the admissions made by Mr. Clayton in his evidence as summarized in paragraph 30 of this decision, I have nohesitation in finding that he failed in his duty to the plaintiff in not checking his side view mirror for her presence before making his turnonto Grand Street.

In thus failing to keep a proper lookout in those circumstances, he was clearly negligent which was causative of theplaintiff’s personal injuries. [43] A similar finding of negligence was made against the driver of a motor vehicle in a like situation in the case of Dolphin v. Lepine1999 Carswell BC 75. The finding of the court there was that either the defendant must have passed the plaintiff’s bicycle, or theplaintiff was coming from behind the vehicle and was passing it on the right immediately before the accident occurred.

The courtfurther found that the driver did not make the appropriate checks to his right before he turned at the intersection, and was therebynegligent in his failure to keep a proper lookout. [44] Having thus found that the defendant here has not disproved negligence under the reverse onus created by s.248(1), it remains toconsider whether he has discharged the burden of proving contributory negligence on the part of the plaintiff. [45] The test for contributory negligence has been affirmed by the Supreme Court of Canada in Bow Valley Husky (Bermuda) Ltd. v.Saint John Shipbuilding Ltd. (SCC), [1997] 3 S.C.R. 1210.

In that case, the court adopted the test summarized byLord Denning in Jones v. Livox Quarries Ltd. [1952] 2 Q.B. 608 (C.A.) at p. 615: Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligencerequires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself.

A person is guiltyof contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurthimself; and in his reckonings he must take into account the possibility of others being careless. [46] There can be no doubt but that both the plaintiff and the defendant were under an obligation to maintain a proper lookout as theywere proceeding along Main Street. Traffic was heavy and Ms. Kulig was aware that several vehicles were passing on her left in a line oftraffic.

Being in the centre of town, she must also have been aware that she would have to pass through a number of intersections. Itshould therefore have been reasonably foreseeable to her that the driver of a vehicle travelling in the same direction might easily decideto make a right turn at one of those intersections. That, of course, is the very thing that happened here. [47] It is undisputed by the parties that in this province, a cyclist may pass to the right of vehicles as they are overtaken while stopped

or slowed, provided that it is safe to do so. Indeed, that existing rule of the road was codified in a 2010 amendment to the Motor VehicleAct and is now embodied in s.114(2). It was therefore lawful for Ms. Kulig to pass to the right of such vehicles as she travelled downMain Street. [48] At the same time, however, Ms. Kulig had the obligation to ensure that it was safe for her to do so, having regard to the heavytraffic she was in, and the possibility of others being careless. As Justice Nunn put it in another cyclist - motor vehicle collision casecited as Birch v.

Eastern Dairyfoods Co-operative Ltd. [1986] N.S.J. No. 50 (at p.3), a cyclist “must be alert to all the circumstancesexisting at the time, the vehicles in his vicinity, their changing speeds and the reasons for such changes. In the present case the plaintiffshould have realized the truck speed was decreasing prior to its attempt to turn and the plaintiff should have slowed down accordingly . ..” [49] I have already made the finding of fact earlier in this decision that Ms.

Kulig did pass both the Purdy and Clayton vehicles on theright as they slowed before reaching the Grand Street intersection, by which point Mr. Clayton had activated his right turn signal. Itherefore conclude that had she been keeping a better lookout, the probability is that Ms. Kulig would have taken notice of thedefendant’s vehicle slowing with its right turn signal on, in sufficient time to either brake or successfully take other evasive action.

Herfailure to keep a proper lookout in those circumstances constitutes contributory negligence. [50] Accordingly, as was the case in Langille, I find that this unfortunate accident was not caused entirely or solely through thenegligence of the defendant, but by reason of the combined negligence of both parties. [51] The question then remains as to what the proper apportionment of liability between the parties ought to be. [52] In Leddicote v. Nova Scotia (Attorney General) 2002 NSCA 47 , [2002] N.S.J.

No. 160, the Nova Scotia Court ofAppeal affirmed that the primary focus of apportionment of fault is the comparative blameworthiness of the conduct which causes theaccident. It endorsed a previous decision of the Supreme Court en banc in Blankhorn v.

Correia (1958-59) (NS CA),41 M.P.R. 1 in which it was stated that the prevailing Canadian practice is to look at negligent conduct which contributes to the accidentin terms of relative or comparative blameworthiness or culpability, i.e., to see in what degrees the parties departed from the norm ofreasonable conduct. [53] This approach, of course, is predicated upon the provisions of The Contributory Negligence Act which stipulates in s.3(1) thatwhere damage or loss has been caused by the fault of two or more persons, the court shall determine the degree in which each personwas at fault. [54] In my view, the degree of fault on the part of the defendant in turning from his driving lane without checking his side view mirror,knowing of the plaintiff’s likely proximity, was markedly higher than that of the plaintiff in not keeping a better lookout for themovement of other traffic.

I therefore conclude that an appropriate division of liability, on the facts of this case, is 75% to the defendantand 25% to the plaintiff. This allocation can be said to be generally consistent with the apportionment of liability made in the Langilleand Birch cases to which I have referred, although I recognize that there are some factual differences upon which those cases weredecided. COSTS [55] The same apportionment should be made in respect of costs between the parties in keeping with the general rule that costs ought tofollow the event.

In the result, the plaintiff shall be entitled to 75% of her costs of the proceeding and the defendant shall be entitled to25% of his costs. If any dispute should arise over costs, however, counsel should send their written submissions to my attention within30 days. J.