Spaargaren v. Demont, 2021 NSSC 318

SUPREME COURT OF Nova Scotia Citation: Spaargaren v. Demont , 2021 NSSC 318 Date: 20211116 Docket: Halifax , No. 451670 Registry: Halifax Between: Shane Williams Spaargaren Plaintiff v. Cory Clifton Demont, Jacob Shawn A. Tomsett, and TD General Insurance Company Defendants DECISION Judge: The Honourable Justice Ann E. Smith Heard: June 28, 2021, in Halifax, Nova Scotia Counsel: Angus Smith, for the Plaintiff Karen Bennett-Clayton, Sara Walsh, for the Defendant, TD General Insurance Company Lisa Richards and Tom Blackburn, for the Defendant, Jacob Shawn A.

Tomsett Cory Demont, Defendant, acting on his own behalf By the Court: Introduction [ 1 ] This action arises from a collision between a motor vehicle driven by the Defendant Jacob Shawn Tomsett and an uninsured ATV owned and operated by the Defendant Cory Clifton Demont. The Plaintiff, Shane William Spaargaren, was a passenger on the uninsured ATV who claims injuries and losses as a result of the collision. The collision occurred at approximately 11:30 p.m. on August 7, 2015 on Beech Hill Road in Chester, Nova Scotia. [ 2 ] The Defendant TD General Insurance Company (“TD”) is the

Section D insurer for the Plaintiff Cory Demont since he was an uninsured motorist at the time of the accident. [ 3 ] Both Defence counsel note in their pre-trial briefs that in practical terms, the issue of liability in this case centres on the question of what insurance policy will respond to the Plaintiff’s claim for personal injury: the policy of the owner of the vehicle that hit him, i.e., the Defendant Tomsett, or the Plaintiff’s uninsured motorist coverage under

Section D of his own insurance policy, i.e., the Defendant TD. [ 4 ] Both counsel also agree that the “one percent” rule or requirement is engaged by these facts. The one percent rule means that even if the Defendant Tomsett is found only one percent liable for the accident, TD has no contractual obligation under its insurance policy to respond to the Plaintiff’s personal injury claim. [ 5 ] Accordingly, the issue for the Court’s determination is whether Mr. Tomsett bears any legal responsibility for the accident. Positions of the Parties in Brief

[ 6 ] TD says that the evidence at the trial showed that the Defendant Tomsett was likely speeding at the time of the accident, that he failed to operate his vehicle in a careful and prudent manner and that he did not exercise reasonable due care in the circumstances. More specifically, TD argues that the Defendant Tomsett should have slowed down or adjusted his driving after seeing a group of other ATVs cross the same stretch of road immediately before the collision. As such, TD says that Mr. Tomsett’s conduct fell below the standard of care of a reasonable driver in the circumstances, that accordingly

Section D is not engaged and that the claim against it should be dismissed. [ 7 ] The Defendant Tomsett says that he did nothing wrong, that he was operating his vehicle lawfully with the right of way on the highway when the uninsured ATV failed to yield the right of way and suddenly entered his path. Mr. Tomsett argues that the evidence at trial showed that he bears absolutely no liability for the accident and that Mr.

Demont is entirely at fault for failing to yield the right of way to his vehicle, as required by law. [ 8 ] In response, TD says that simply because the Defendant Tomsett had the right of way, does not absolve him of his statutory duty to drive in a reasonable manner with respect to the circumstances. Evidence Before the Court Law and Analysis Undisputed Facts [ 9 ] At approximately 11:23 pm, on August 7, 2015, Jacob Tomsett was driving his 1992 Toyota Soarer down Beech Hill Road, near Gold River.

Beech Hill Road consists of a single travel lane in each direction, with the lanes separated by a double, solid, yellow centre line. It is a rural

section of road with trees and shrubs on either side. [ 10 ] Beech Hill Road intersects with the Chester Connection Trail recreational trail. The trail is gravel surfaced and approximately three metres wide on the east side of Beech Hill Road. At the time of the accident, approaching from the east, several boulders were on either side of the trail, and a yellow, steel post (or bollard) was in the centre of the trail, approximately 12 metres before the nearest pavement edge of Beech Hill Road.

There was also a stop sign facing ATV drivers approximately eight metres from the edge of the highway, requiring them to yield the right of way to approaching motorists before crossing the highway. The Evidence Shane Spaargaren [ 11 ] Shane Spaargaren is 38 years old. Mr. Spaargaren and his wife have known Cory Demont since they were young. Mr. Spaargaren, his wife, and Mr. Demont were good friends at the time of the accident. [ 12 ] At about 6:30 or 7:00 pm on Friday, August 7, 2015, Mr.

Spaargaren, his wife, and their three children left Dartmouth to drive to Sandra Demont’s cottage in Chester, Nova Scotia for the weekend. On the way to Ms. Demont’s cottage, Mr. Spaargaren and his wife stopped at the liquor store where they purchased beer and wine for the weekend. [ 13 ] When Mr. Spaargaren and his family arrived at about 7:30 pm, Sandra Demont and her boyfriend were at the cottage, along with Ms. Demont’s daughter, her daughter’s husband, and their two small children. Once the Spaargaren family decided where they were going to sleep inside the cottage, they joined the others for supper.

He drank half of a glass of wine after supper. Mr. Spaargaren had nothing else to drink at that time. [ 14 ] Mr. Spaargaren said that at about 9:30 or 10:00 pm, he decided to join Cory Demont and several others on an ATV ride to the Gold River Bridge, a place they had visited on previous occasions. Mr. Spaargaren rode as a passenger on the back of Mr. Demont’s ATV; he had done this before and had no safety concerns. He brought two beers, which he stored in the seat compartment. Mr. Demont did not bring beer, and Mr. Spaargaren did not see him drink anything before they left. Mr.

Spaargaren conceded, however, that he did not know whether Mr. Demont consumed any alcohol while Mr. Spaagaren was inside the cottage watching the baseball game. Both men put on helmets for the ride. Neither helmet had anything reflective on it. [ 15 ] Mr. Spaargaren said there were about five or six ATVs on the ride, traveling in a single line on the gravel trail. Mr. Demont’s ATV was in the middle of the line, close to the end. Mr. Spaargaren described the trail as former railroad tracks that had been turned into a trail for “bikes”. There was no lighting on the trail and Mr.

Demont was not driving fast because “there are potholes everywhere” and “you had to swerve around them”. The ATVs headlights were on throughout the ride. During the ride, Mr. Spaargaren held on to Mr. Demont’s waist or to the sides of the seat in the back. [ 16 ] The ATVs crossed three roads on the way to the bridge. Mr. Spaargaren said there were “little barriers” on the trail that would force the ATVs to slow down before crossing the road. When they reached the bridge, the group sat and socialized for a while. Mr. Spaargaren had a beer, as did several others. Mr. Spaargaren did not see Mr.

Demont drink anything at the bridge. No one was smoking marijuana. [ 17 ] On the way back to the cottage, Mr. Spaargaren held on to Mr. Demont’s waist. During the ride, he was looking to the right side of Mr. Demont’s helmet. He could not see anything to the left of the ATV because his view was obstructed by Mr. Demont’s helmet. This time, Mr. Demont’s vehicle was at the end of the line of ATVs and Mr. Spaargaren lost sight of the others before Mr. Demont’s ATV reached the intersection at Beech Hill Road. [ 18 ] When shown photographs of the trail where it meets Beech Hill Road, Mr.

Spaargaren confirmed that there was a metal pole or “bollard” in the centre of the trail and a stop sign beyond the bollard, requiring vehicles on the trail to yield to traffic on the road. He said Mr. Demont drove slowly around the bollard, but he could not remember whether the ATV went around it to the left or to the right. Mr. Spaargaren said Mr. Demont either stopped or performed a rolling stop at the stop sign before slowly approaching the shoulder of Beech

Hill Road. Mr. Spaargaren recalled Mr. Demont checking for traffic before starting to cross, but his own helmet and Mr. Demont’s helmet made it impossible for him to see which way Mr. Demont was turning his head. Mr. Spaargaren remembered looking to his right – the only direction he could see – to check for traffic. He saw no oncoming vehicles. As he continued to look right, Mr.

Spaargaren saw lights reflecting in the shrubbery, signalling to him that something was approaching from the left. [ 19 ] Although he could not recall whether the lights appeared while the ATV was still on the shoulder or after it had started to cross the road, Mr. Spaargaren conceded that he had given evidence on discovery in February 2018 that the ATV was already partially across the road when he saw the lights. Upon seeing the lights, Mr. Spaargaren turned his head to the left. He saw the headlights of an oncoming vehicle and heard what he described as the sound of “an after-factory exhaust”. He yelled Mr.

Demont’s name and lifted his left leg before the impact. The car did not blow its horn. Mr. Spaagaren said the ATV was driving very slowly as it crossed the road. He denied that the ATV had darted out into the road at a high rate of speed. [ 20 ] When the car hit the left rear of the ATV, Mr. Spaargaren “went flying” and landed on the pavement. He said it felt like he “got hit by a freight train” and he was “in agony”. Mr. Spaargaren estimated that he remained on the pavement for a long time, at least 20 minutes, before an ambulance arrived. He recalled hearing Jacob Tomsett “fighting with Cory about his car”.

After the ambulance arrived and Mr. Spaargaren was placed inside, the police came to the back of the ambulance and asked him whether he had been drinking. When he responded that he had, they told him that he would be charged with drinking and driving. Mr. Spaargaren informed them that he was not the driver of the ATV. Eventually, Mr. Spaargaren and his wife told the police that Mr. Demont was the driver because the police had said they were going to charge Mr. Spaargaren. Cory Demont [ 21 ] Cory Demont was self-represented and chose not to give his own evidence in direct.

He said only that “what Shane said is basically what happened.” His evidence came primarily by way of cross-examination by the lawyers for TD and Jacob Tomsett. [ 22 ] At the time of the accident, Mr. Demont was 26 years old. Mr. Demont purchased his ATV – a 1998 Honda Foreman – about a year before the accident. He described the 5-speed manual transmission vehicle as being in “perfect working condition” and in “good working order” on the day of the accident. The ATV had three headlights – two on the front bumper and one on the handlebars. All three headlights were working on the day of the accident.

The ATV was not designed to have a passenger on the back. [ 23 ] Although Mr. Demont had driven ATVs many times, the 1998 Honda Foreman was the first one he had ever owned. He denied that it was a “beater” but acknowledged that he had described it that way on discovery in February 2018. He said the ATV “needed repair”. Mr. Demont did not know whether the speedometer worked. The ATV was not registered or insured. [ 24 ] On the night of the accident, Mr. Demont arrived at his mother’s cottage at about 7:30 pm. Not long after, he and the other guests had a barbeque. He ate some cheeseburgers and drank one beer. Mr.

Demont denied having any other drinks prior to the accident. [ 25 ] At about 10 pm, Mr. Demont left the cottage to go for the ATV ride with Mr. Spaargaren. Both he and Mr. Spaargaren wore helmets. They met up with some others on the trail, but Mr. Demont did not remember who they were. Mr. Demont was familiar with the trail and had driven on it about 10 times before, both during the day and at night. He said the gravel trail is not lit and is full of potholes, which means you must “take your time and go slow”.

He thought the speed limit was 25 km per hour but said, “You’d have to go 10-15 just to not throw yourself off the machine.” The ride from the cottage to the bridge took about 15 or 20 minutes. When the ATVs arrived at the bridge, the group stopped and talked, and took in the scenery. Mr. Demont smoked a cigarette. The group stayed at the bridge for about 15 or 20 minutes before heading back along the trail to the cottage. Mr. Demont said he was driving about 10 to 15 km per hour. [ 26 ] Mr. Demont confirmed that the bollard and the stop sign before Beech Hill Road were there on the night of the accident.

He testified that he slowed down significantly to go around the post, and then approached the stop sign. Mr. Demont said it is not possible to see clearly in both directions when stopped at the stop sign, so it is necessary to “pull out a bit” to check for traffic approaching from the left. He recalled stopping at the stop sign, then inching his way out so he could see clearly in both directions. Mr. Demont’s evidence was that he stopped the ATV on the shoulder and satisfied himself that there were no cars coming from either direction.

He said he believed he would have looked right first, then left, and then right again, before proceeding. [ 27 ] Mr. Demont was taken to his discovery evidence where he said he thought he came to a complete stop before attempting to cross Beech Hill Road, but that he couldn’t be sure. He agreed that he was giving evidence to the best of his ability at that time. Mr. Demont was also reminded of his evidence on discovery that he looked both ways for traffic but could not recall which way he looked first. [ 28 ] After satisfying himself that there was no traffic, Mr. Demont drove the ATV onto the pavement.

He estimated his speed as he started to drive across the road at no more than 10 km per hour. Mr. Demont said Mr. Spaargaren did not call his name until the ATV had already started to cross the road. After hearing his name, Mr. Demont looked to the left and saw a car coming. The car did not blow its horn. Mr. Demont heard tires screeching. He hit the gas in an effort to get the ATV into the other lane and out of the car’s way. [ 29 ] Mr. Demont rejected the possibility that he had “just missed” the car when he looked both ways. His only explanation for the accident was that Mr.

Tomsett’s vehicle must have been back behind the curve on Beech Hill Road at the time he checked for traffic. He conceded, however, that the accident happened “very fast” after he started to cross the road. [ 30 ] After the accident, Mr. Demont called 911. Although he remained at the scene for a period, he did not tell anyone that he was the driver of the ATV. Mr. Demont admitted that he knew the police officers on the scene would be looking for the driver of the ATV, but he did not present himself to them.

He knew that his ATV was being impounded but he did not approach anyone to ask where it was being taken or how he would get it back. He walked home without speaking to police. Mr. Demont explained his failure to identify himself by saying there was “a lot of commotion” and he did not want a ticket for the unregistered ATV. He denied that he was trying to avoid a breathalyzer.

[ 31 ] Although Mr. Demont was aware that the police would be looking for him, he did not contact them in the days following the accident. Eventually, the police called him and later ticketed him for driving an unregistered, uninsured ATV. At that time, Mr. Demont was asked to provide a statement. He refused. At some point, he received a bill for the damage to Mr. Tomsett’s vehicle. He paid for the repairs because he said that Mr. Tomsett’s insurance company told him that he was automatically at fault as the driver of an uninsured vehicle.

Constable Tamu Bracken [ 32 ] Constable Tamu Bracken has been an RCMP officer for 25 years. In August 2015, she had been stationed in Chester for two years. She explained that when an officer attends a collision, one of their first tasks is determining whether anyone is injured, and, if so, tending to them. They also perform traffic control and an investigation, including determining whether there is any fault and whether any offences have been committed, including drinking and driving.

To make these determinations, officers rely on the information they receive from the dispatcher during the initial call, their observations at the scene, and statements from witnesses and drivers. [ 33 ] Shortly before midnight on August 7, 2015, Constable Bracken attended the accident scene as a backup police officer. Her colleagues Constables Burridge and Caldwell were already on the scene, along with ambulance and fire services. Mr. Spaargaren was on the ground being tended to by paramedics. Constable Bracken was tasked with taking photographs of the scene and obtaining a statement from Jacob Tomsett.

She also briefly joined Constable Burridge and Mr. Spaargaren in the back of the ambulance where she checked to see whether she could smell alcohol. [ 34 ] Mr. Tomsett told Constable Bracken that he was driving up Beech Hill Road and six to eight ATVs came onto the road from the trail and did not stop. The Demont ATV just appeared, entering the road from his right side. He said he hit the ATV at about 5 km per hour. Mr. Tomsett said he thought he was driving between 60 and 80 km per hour. He said that the speed limit was 60 km per hour. Constable Bracken smelled alcohol on Mr.

Tomsett and he told her that he had had two beers earlier. She administered a roadside sobriety test and Mr. Tomsett’s results were 0.06, far below the legal limit of 0.8. [ 35 ] Constable Bracken took several photographs of the accident scene, including photographs of the skid marks. She did not take any measurements of the skid marks and was not aware of any measurements being taken by any other officers on the scene. Constable Bracken did not learn the identity of the driver at the scene. She said, “We knew something was up; there was no license plate, no insurance, and no papers for the vehicle.

No one was volunteering any information.” [ 36 ] Constable Bracken obtained a second statement from Mr. Tomsett on August 12, 2015. At that time, Mr. Tomsett estimated his speed to have been about 70 km per hour. Constable Bracken confirmed that it was her understanding from Mr. Tomsett that when the Demont ATV appeared in the road in front of him, there were no other ATVs crossing at that time. Mr. Tomsett told her that he “wasn’t even doing the damn speed limit”. He did not mention what he thought the speed limit was on that road. [ 37 ] On August 13, 2015, Constable Bracken received a phone call from Mr.

Spaargaren’s wife, informing her that the driver of the ATV was Cory Demont. She agreed that that was the first time she learned the identity of the driver but pointed out that the accident was Constable Burridge’s file, and she was not doing follow up with the investigation. Jacob Tomsett [ 38 ] Jacob Tomsett is 29 years old. At the time of the accident, he was employed doing a mix of carpentry, groundskeeping and general maintenance at a property in Chester. [ 39 ] Mr. Tomsett grew up on Chester Commons Road, about 10 km from the scene of the accident.

He had traveled on Beech Hill Road frequently prior to the accident. He was also familiar with the trail that intersects the road and agreed that it is called the Chester Connection Trail or the Rails to Trails. Mr. Tomsett had previously traveled the trail by ATV, dirt bike, and horseback. He said it was common to see ATVs cross Beech Hill Road from the trail. [ 40 ] On August 7, 2015, Mr. Tomsett went to his mother’s house on Chester Commons Road for supper after work. He stayed there for three or four hours and had one or two beer during that time. At about 10:20 pm, Mr.

Tomsett left his mother’s house in his 1992 Toyota Soarer to make the 20-minute trip to his friend’s home on Beech Hill Road where he planned to spend the night. It was a dark, clear night. Mr. Tomsett turned on his high beams. [ 41 ] Mr. Tomsett described Beech Hill Road as a “kind of narrow and twisty” two lane road. It has a slight uphill grade in the vicinity of the accident. Mr. Tomsett agreed that the road curves before it intersects with the trail and until a driver gets around that curve, it is not possible to see the entrance or exit to the trail.

He estimated that a driver would first see the trail about 30 feet from the entrance. [ 42 ] At the time of the accident, Mr. Tomsett believed the speed limit on Beech Hill Road was 70 km per hour. He estimated that he was travelling at about 60 km per hour as he rounded the curve and approached the trail. As he came around the curve, he saw six ATVs quickly cross the road from the trail. Mr. Tomsett said he did not react in any way to seeing the ATVs; he did not slow down or honk his horn.

He was not concerned by the sight of the ATVs because he knew that ATVs are required to yield to traffic before attempting to cross. [ 43 ] His evidence was that the collision with Mr. Demont’s ATV happened about 10 or 20 seconds after he saw the group of ATVs cross the road. According to Mr. Tomsett, he was about 30 or 40 feet from the Demont ATV when he first spotted it on the far side of the shoulder of the road. He said that within 1.5 to 3 seconds, the impact occurred.

His evidence was that when the ATV drove out in front of him, he applied the brakes heavily and steered to the right in an effort to avoid the collision. He said his brakes locked and his vehicle struck the left rear of the ATV. Mr. Tomsett estimated the ATV’s speed before the collision at 60 km per hour, or higher. [ 44 ] After the accident, Mr. Tomsett pulled his car over to the side of the road. He believed he briefly spoke to Mr. Spaargaren, who was lying on the road. Mr. Tomsett was aware that Mr. Spaargaren had been the passenger but did not know who had been driving

the ATV. No one approached him to say they were the driver, and he did not witness anyone identifying themselves as the driver to anyone else at the scene. [ 45 ] Mr. Tomsett recalled speaking with Constable Bracken at the scene. She recorded his statement and gave him a breathalyzer test, which he said he passed. Mr. Tomsett was not charged with any offences. After speaking with police, he drove his car to his friend’s house. [ 46 ] The day after the accident, Mr. Tomsett returned to the scene and took several photographs. When asked why he did that, Mr.

Tomsett said “To cover my butt.” He explained, “I just wanted some pictures that I knew I took that portrayed the accident scene accurately.” Mr. Tomsett was shown two photographs he took depicting the skid marks left behind by his vehicle. He said that when he took the pictures, his feet were at the point where the skid marks began. As a result, the skid marks extended two feet beyond what was visible in the photographs. [ 47 ] On cross-examination, Me.

Tomsett acknowledged that he told Constable Bracken on August 12, 2015, that the ATV was “about 10 feet” in front of him when he first saw it, not 30 or 40 feet away. On discovery in February 2018, he said it was about 20 feet away. Mr. Tomsett said each statement was true but conceded that the evidence he gave one week after the accident was likely more reliable than the evidence he gave six years later. [ 48 ] As to his speed at the time of the accident, Mr.

Tomsett agreed in cross-examination that he told Constable Bracken at the scene that he had been driving up Beech Hill Road doing 60 to 80 km per hour, and that he hit the ATV at a speed of about 5 km per hour. In his second statement to Constable Bracken, he said he “wasn’t even doing the damn speed limit”, which he believed at the time was 70 km per hour. At discovery, he said his speed was 50 to 60 km per hour. Mr. Tomsett confirmed that he was telling the truth when he gave each statement. [ 49 ] Mr.

Tomsett was also reminded in cross-examination that in a statement to his insurance adjuster on September 9, 2015, he said he saw one to two ATVs cross the road before the accident, not six to eight as he told Constable Bracken at the scene, and not six as he said in his direct evidence. When the insurance adjuster asked whether there was a reason he did not slow down after seeing those initial ATVs, Mr. Tomsett responded, “Well I did slow down. I was only doing 60. I was just putting along.” He denied that this comment meant that he was driving faster than 60 km per hour before he saw the ATVs.

He said he “just didn’t accelerate past 60”, and that he “came around a sharp turn and accelerated up to 60”. Mr. Tomsett testified that he did not react at all when he saw the other ATVs. He said, “It did not merit a reaction.” The Evidence of the Experts [ 50 ] Both the Defendant Tomsett and TD filed expert reports. Mr. Tomsett filed two reports prepared by accident reconstruction expert, Ken Zwicker, of AtlantiCrash Analysis. In the first report, dated July 9, 2019, Mr. Zwicker reached the following conclusions: 1. Prior to Mr.

Tomsett applying the brakes, the Toyota was traveling at approximately 55 km per hour. 2. The impact speed of the Honda ATV when the collision occurred cannot be calculated with an acceptable degree of certainty or precision. 3. There is no physical evidence from which to calculate the speed of the Honda as it approached Beech Hill Road with an acceptable degree of certainty. However, the physical evidence indicates that the Honda’s approach speed was probably closer to Mr. Demont’s estimate of 10 km per hour than Mr. Tomsett’s estimate of 50 to 70 km per hour. 4.

There is no physical evidence to indicate that Mr. Demont perceived the Toyota as an immediate collision hazard at any substantial time before the collision occurred. 5. Mr. Tomsett perceived the Honda as an immediate collision hazard approximately 2.3 seconds before the collision occurred. At that time, the Toyota was approximately 32.3 metres south of where the collision occurred. 6. There is no physical evidence to indicate that Mr. Demont took any evasive action to avoid the collision. 7. Mr. Tomsett attempted to avoid the collision by steering to the right and fully applying the Toyota’s brakes. 8.

A line of sight for at least 75 metres to the south was available to Mr. Demont before he attempted to cross the road. The time for the Toyota to travel 75 metres at a speed of 55 km per hour is 4.9 seconds. 9. Assuming the Honda’s approach speed averaged 10 km per hour, approximately half of the Honda was visible when Mr. Tomsett perceived it as an immediate collision hazard. 10. Mr. Demont’s perception of the approaching Toyota as a collision hazard was delayed by approximately 2.3 seconds. 11. There was no delay in Mr. Tomsett’s perception of the Honda as an immediate collision hazard. 12. Mr.

Demont could have avoided the collision had he ensured there was no approaching traffic close enough to be a collision hazard before he began to cross the road. 13. Mr. Tomsett could not have avoided the collision. [Zwicker report, p. 21-22]

[ 51 ] In response to the Zwicker report, TD filed a report prepared by Roger Bortolin of HRYCAY Consulting Engineers Inc. Mr. Bortolin is an expert in motor vehicle accident investigation and engineering analysis. In his report dated August 11, 2020, Mr. Bortolin challenges several aspects of the Zwicker report. His primary criticism relates to the skid marks used by Mr. Zwicker to calculate the Toyota’s speed prior to the collision. Mr. Bortolin noted that none of the site photographs taken either the night of the accident or soon afterward show the entirety of the Toyota tire marks.

He noted that the photographs all began too far north and cut off the southern portion of the tire mark. The only photographs showing the initial area of the tire marks were obtained later by Crawford Insurance, when the tire mark evidence had “faded substantially”. Mr. Bortolin opined that, at best, the skid marks relied upon by Mr. Zwicker would be a minimum length, which he said, Mr. Zwicker failed to acknowledge in his report. According to Mr.

Bortolin: All that can be reasonably concluded is that the tire mark length may have been a minimum of 14.7 m, but it could have actually been longer, perhaps significantly longer. With all other factors unchanged, a longer braking tire mark equates to a higher initial travel speed. Thus, although Zwicker stated that the Toyota was at approximately 55 km/h at the start of the tire mark, he does not indicate this is a minimum speed and the actual Toyota speed could have been higher depending upon how much of the tire mark had faded by the time the Crawford pictures were taken. [Bortolin report, p. 9] [ 52 ] Mr.

Bortolin noted that if the Toyota tire mark was five metres longer, the initial speed would increase from 55 km per hour to 63 km per hour. If it was 10 metres longer, the speed would rise to approximately 70 km per hour. [ 53 ] Mr. Bortolin further noted that Mr. Zwicker’s collision avoidance analysis was premised on his estimate of the location at which the Toyota began to skid, his calculation of the Toyota’s speed, and his assumption that the ATV was traveling at a constant speed of 10 km per hour. Mr.

Bortolin wrote at p. 9 of his report: In using the 10 km/h ATV speed, Zwicker appears not to have considered the Demont and Spaargaren testimony regarding them either stopping or at least slowing and inching out before continuing. In such case, the ATV was stopped or nearly so at the immediate roadside east of the pavement for at least a few seconds; a location where they were not obscured by vegetation.

This changes the relative sightlines and one could conclude that a more alert northbound motorist encountering the ATV would have perceived and reacted sooner by some combination of slowing down earlier, using the horn or steering as precautionary measures. Zwicker’s opinion that Mr. Tomsett did not delay in perceiving the ATV is unsupported because there are other possible scenarios for where the ATV was and how long it was actually in Mr. Tomsett’s line of sight. [ 54 ] In addition, Mr. Bortolin pointed out that Mr.

Zwicker’s sightline analysis was based on the Toyota being a left-hand drive car, when it was actually a right-hand drive car. [ 55 ] Mr. Bortolin went on to opine that a more observant driver in Mr. Tomsett’s position, after seeing a few ATVs cross the road moments earlier, “would have had a heightened awareness to the possibility of additional ATVs on the trail, thus shortening the time to perceive and respond if any additional ATVs did present themselves.

At a minimum, this would include being ready to blow the car horn if any additional ATVs were encountered, to help ensure that they would yield” : Bortolin report, p. 12. [ 56 ] Mr. Bortolin summarized his conclusions as follows: 1. The collision occurred as the northbound Tomsett’s Toyota left front corner struck the left rear wheel of the westbound Demont Honda ATV. 2. The pre-impact braking tire marks from the Toyota indicate heavy, peak-level braking by Mr. Tomsett. 3.

The actual length of the pre-impact braking tire marks from the Toyota are unknown, since the southern end of the tire marks were not documented fully at or soon after the collision. 4. The effort to determine the start of the pre-impact braking marks undertaken by Zwicker was based on poor quality photographs, taken some time after the accident, where the start of the tire marks was not distinct or clear. The selection of the start of the tire marks at point S1 based on two photographs is questionable as that point is difficult to discern in either of the photographs used.

At best the length of 14.7 m from S1 to S3 would be a minimum length of braking by the Tomsett Toyota. 5. Thus, the Toyota speed of 55 km/h at the start of the tire marks identified by Zwicker can only be concluded to be a minimum speed, and the actual tire mark length, and by extension, the actual speed of the Toyota at the moment Mr. Tomsett began to perceive and respond is unknown. 6.

It is not possible to conclusively establish where the ATV was in relation to the Toyota prior to the moment of contact, and thus we disagree with Zwicker’s positioning of the ATV relative to the car at 2.3 s before impact as being the most likely scenario. 7. Alternative, possible scenarios exist where the Toyota was above the 60 km/h speed limit, as we have shown, and as a result there are possible scenarios where impact with the ATV could have been avoided. [Bortolin report, p. 13] [ 57 ] Mr. Zwicker responded to Mr. Bortolin’s opinion in a second report dated December 3, 2020. In his rebuttal report, Mr.

Zwicker disputed Mr. Bortolin’s suggestion that the tire mark evidence had “faded substantially” by the time the Crawford photographs were taken: I agree that the tire marks appear to be weathered to some extent but, in my opinion, there is no evidence to support that the evidence had faded substantially . Comparing the photographs referenced in the Hrycay report at Figures 2 and 3, the weathered appearance may be at least partly caused by camera settings that may have overexposed the images.

Of course, the photograph on the right in Figure 2 was also taken in shadow conditions causing it to look darker while the others were taken in full daylight. [Zwicker rebuttal, p. 2] [ 58 ] As to Mr. Bortolin’s suggestion that the tire mark length could have been “significantly longer”, Mr. Zwicker opined that there was no evidence on which to base that statement. In his view, “there is no evidence to conclude the skid distance was 5 or 10 m or any other distance longer than the distance measured, 14.7 m”: Zwicker rebuttal, p. 3.

In any event, he noted, a longer tire mark would not necessarily mean the Toyota was speeding: It may be noted that, if the Toyota was actually travelling the speed limit, 60 km/h, the actual skid distance can be calculated at 18.2 m, 3.5 m longer than determined through the analysis. Therefore, allowing for tire mark fading does not necessarily put the Toyota’s speed in excess of the posted limit. [Zwicker rebuttal, p. 3] [ 59 ] Mr. Zwicker acknowledged that his sightline analysis was based on the Toyota being a left-hand drive car, but “the slightly different perspective has no measurable effect on Mr.

Tomsett’s line of sight to the Honda ATV. As I reported previously, about half of the ATV would still have been visible to Mr. Tomsett”: Zwicker rebuttal, p. 4. [ 60 ] Mr. Zwicker agreed with Mr. Bortolin’s statement that if Mr. Demont had stopped his ATV at the edge of the trail, the ATV would have been visible to Mr. Tomsett for a longer period of time.

He disagreed, however, that it would have been considered an immediate hazard collision for that longer time: In my experience, it is common that vehicles stop before entering roadways, thereby yielding, and appearing to approaching motorists to yield rights of way as required by legislation. My observation is that drivers don’t usually respond to these frequent occurrences by taking emergency evasive action such as a maximum brake application. Instead, in this scenario, the ATV would be considered a potential collision hazard to which a driver would take little action in response.

However, in my opinion, what is inconsistent with the Hrycay report authors’ hypothesis is Mr. Demont’s testimony that he didn’t notice the approaching Toyota until, “…. it was right on top of me ” [Discovery 27-16]. In my opinion, had he stopped before he entered the road, having the benefit of a long line of sight to the south and extra time, there is a high probability that he would have noticed the approaching Toyota. That he didn’t notice it is more consistent, in my opinion, with him emerging from behind the bushes and continuing across the road without stopping. [Zwicker rebuttal, p. 5] [ 61 ] Mr.

Zwicker also disagreed with Mr. Bortolin’s opinion that a more observant motorist who had seen other ATVs cross the road a few moments earlier would have had a heightened awareness of the possibility of additional ATVs on the trail and been better prepared to respond if any additional ATVs presented themselves. Mr. Zwicker wrote: I disagree with this statement. I am unaware of any evidence that the probability of another ATV appearing increased because a group of ATVs crossed the road previously.

It may be argued that the previous group lessened the probability that another ATV would appear. [Zwicker rebuttal, p. 5] [ 62 ] Mr. Zwicker concluded with the following

summary of his opinions: Having reviewed the Hrycay Consulting Engineers Inc report, the opinions stated in my report dated July 9, 2019 have not changed. In

summary, it is my opinion to a high degree of certainty that the Toyota approached the collision site at a minimum speed of 55 km/h, based on the analyzed length of the skid mark. Mr. Tomsett perceived the Honda ATV as an immediate collision hazard approximately 2.3 seconds before the collision occurred; that is, when Mr. Tomsett perceived it as an immediate collision hazard. Mr. Tomsett responded by appropriate steering and braking but could not avoid the collision.

The scenario that the Honda ATV did not stop as it approached and crossed the road is consistent with the foregoing time and distance analysis, the available sightline, the observations of Mr. Tomsett and the Discovery testimony of Mr. Demont that he did not notice the approaching Toyota until it was “ right on top ” of him. For these reasons, it remains the most likely scenario, in my opinion.

If it is determined that the Honda ATV had stopped or nearly stopped before crossing in front of the Toyota, my opinion remains that the ATV didn’t become an immediate collision hazard, resulting in the noted avoidance response by Mr. Tomsett, until approximately 2.3 seconds before the collision occurred when it began to cross the road. In this scenario, the ATV would have been visible to Mr. Tomsett for a longer time but only as a potential collision hazard to which drivers have responded by moving over 0.37 m or less and slowing 2.6 km/h or less.

The available physical evidence in this case is not useful in confirming whether Mr. Tomsett slowed, but the location of the tire mark indicates the Toyota moved to its left before its brakes were fully applied. This action is consistent with a precautionary response to a potential collision hazard. The potential hazard could have been the stationary ATV, or possibly the glow of the approaching Honda’s headlamps before the Honda itself became visible. This latter aspect is consistent only with the first (no stop) scenario. [Zwicker rebuttal, p. 6] Law and Analysis

Section D Coverage [ 63 ] The law in Nova Scotia concerning motor vehicle accidents is determined in accordance with the ordinary rules of liability, namely negligence.

The standard of care is reasonableness in the circumstances, and is guided by the Motor Vehicle Act , R.S.N.S. 1989 c. 296 (“ MVA ”), in particular sections 100-124. [ 64 ] Most relevant to this matter are sections 100(1), 101, 122(1), 122(2), 123(1), and 133 of the MVA , which state: 100(1) Every person driving or operating a motor vehicle on a high-way or any place ordinarily accessible to the public shall drive or operate the same in a careful and prudent manner having regard to all the circumstances. […] 101 A person operating or driving a vehicle on a highway shall operate or drive the same at a careful and prudent rate of speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of all other conditions at the time existing, and a person shall not operate or drive a vehicle upon a highway at such a speed or in such a manner as to endanger the life, limb or property of any person.

R.S., c. 293, s. 101. […] 122

(1) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection , and when two vehicles enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield to the driver on the right. [emphasis added]

(2) The driver of a vehicle who has stopped as required by law at the entrance to a through highway shall yield to other vehicles within the intersection or approaching so closely on the through highway as to constitute an immediate hazard, but said driver having so yielded may proceed, and other vehicles approaching the intersection on the through highway shall yield to the vehicle so proceeding into or across the through highway. [emphasis added] […] 123

(1) The driver of a vehicle entering a highway shall yield the right of way to all vehicles approaching on the highway . [emphasis added] […] 133

(1) Subject to

Section 86, the traffic authority may designate main travelled or through highways by erecting at the entrances thereto from intersecting highways signs notifying drivers of vehicles to stop before entering or crossing such designated highways, or may designate particular intersections and erect stop signs at one or more entrances thereto, and whenever any such signs have been so erected it shall be an offence for the driver of a vehicle or the motorman of a street car to fail to stop in obedience thereto, except where directed to proceed by a peace officer or traffic control signal.

[ 65 ] In considering whether the Plaintiff has a legitimate

Section D claim against TD, it is important to recognize the proper role of

Section D insurance in personal injury claims. [ 66 ]

Section D of the Standard Automobile Insurance Policy for Nova Scotia is intended to provide coverage of last resort in circumstances where an insured has absolutely no entitlement to recover money under a liability policy of another person at fault. [ 67 ] Most commonly,

Section D is thought of as the insurance that responds where a plaintiff has been injured by an unidentified or uninsured motorist. [ 68 ]

Section D insurance is in place to act as a safety net for insureds injured by tortfeasors from whom they cannot recover compensation. The fact that

Section D is a safety net, or insurance of last resort, is reflected by the legislation creating

Section D, which states that a

Section D insurer is not liable where a claimant is legally entitled to recover any sum of money under the third party liability

section of any motor vehicle liability policy. [ 69 ]

Section D provisions have been in place in Nova Scotia since July 1, 1996 when both the Insurance Act , and the Motor Vehicle Act , were amended and the Uninsured Automobile and Unidentified Automobile Regulations were made under s. 139 of the Insurance Act, OIC 96-376, NS Reg. 94/96 . [ 70 ] Pursuant to s. 139(2) of the Insurance Act, all Nova Scotia automobile liability policies are deemed to provide for payment by the insurer of all sums that a person insured under the contract is legally entitled to recover as damages from the owner or driver of an uninsured automobile or unidentified automobile. The uninsured or unidentified motorist coverage provided for in

section 2 of the

Section D provisions in the Standard Automobile Policy for Nova Scotia is made mandatory by section 139(2) of the Insurance Act , which reads: 139(2) Every contract evidenced by a motor vehicle liability policy shall provide for payment by the insurer of all sums that: (

a) a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile; (

b) a person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or the death of a person insured under the contract resulting from an accident involving an automobile; and (

c) a person insured under the contract is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents, or to both the insured automobile and its contents, resulting from an accident involving an automobile, subject to the terms, conditions, provisions, exclusions and limits prescribed by regulation. [ 71 ] Section 3(1) of the Uninsured Automobile and Unidentified Automobile Coverage Regulations , NS Reg. 94/96 mirrors section 139(2) of the Insurance Act , and reads: 3(1) The insurer shall pay all sums that: (

a) a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile; (

b) a person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or the death of a person insured under the contract resulting from an accident involving an automobile; and (

c) a person insured under the contract is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents or to both the insured automobile and its contents, resulting from an accident involving an automobile.5 [ 72 ] Section 4(1) of the Uninsured Automobile and Unidentified Automobile Coverage Regulations , places limits on the coverage that an insurer is obligated to provide under s. 139(2) of the Act and s. 3(1) of the Regulations . Section 4(1)(

d) of the Regulations states: 4 Limits and Exclusions

(1) The insurer is not liable under subsection 3(1) of these regulations . . . . . (

d) to make any payment to a claimant who is legally entitled to recover a sum of money under the third party liability

section of any motor vehicle liability policy ; [emphasis added] [ 73 ] Accordingly, s. 3 of the standard

Section D provisions delineates specific limits and exclusions to the coverage provided for in s. 2(1) of

Section D. Section 3(1)(

d) of

Section D reads: 3 Limits and Exclusions

(1) The insurer not liable under subsection 2(1) of this

Section D (

d) to make any payment to a claimant who is legally entitled to recover a sum of money under the third party liability

section of any motor vehicle liability policy.

[74] The legislature has made contractual entitlement to

Section D coverage subject to the terms, conditions, provisions, exclusionsand limits prescribed by the Regulations. The provisions of the Uninsured Automobile and Unidentified Automobile CoverageRegulations, were drafted to protect

Section D insurers who assume financial responsibility for damages caused by unidentified oruninsured tortfeasors. [75] A review of these provisions and

section 3 of

Section D makes clear that the legislative intent is for

Section D coverage toapply only in circumstances where the claimant does not have any other means of recovery. The One Percent Rule [76] Subsection 3(1)(

d) of

Section D further establishes the so-called “one percent rule.” The “one percent rule” is the shorthandused in the case law and in practice to describe the operation of

section 139 of the Insurance Act, 8 sections 3(1) and 4(1)(

d) of theUninsured Automobile and Unidentified Automobile Coverage Regulations, 9 and subsection 3(1)(

d) of

Section D of the insurancepolicy. The effect of these sections is that, if an identified, insured driver (here, the Defendant Tomsett) is even one percent at fault foran accident, the

Section D insurer has no legal obligation to make any payment to the Plaintiff. [77] As Justice Duncan (as he then was) noted in Jeffery v. Naugler, 2010 NSSC 385,

section D has been referred to as the“coverage of last resort.” [78] As explained by Justice Laskin of the Ontario Court of Appeal in the 2004 case of Kosanovic v. Wawanesa Mutual InsuranceCo, (ON CA): Although [the

Section D insurer] nominally stands in the place of an unidentified tortfeasor, it is not a tortfeasor. … [The

Section Dinsurer’s] unidentified driver coverage provides a safety net to its insureds. [79] Another succinct explanation of the one percent rule is found in Gronka v. Spagnuolo, 1987 CarswellOnt 415 (Dist Ct) inwhich the Court considered a three-vehicle accident involving an unidentified driver. While the Court was unable to make adetermination on the motion for

summary judgment which was before it, the Court recognized the effect of the one percent rule, citingOntario’s equivalent to subsection 3(1)(d): This is known as the one per cent rule (or the one per cent requirement). That is, if a defendant … is found even one per cent liable forthe accident, then the plaintiffs’ insurer would not have to pay any part of a claim. Before the plaintiffs in this case will be able torecover from the [insurer], [the defendant] will have to be found totally blameless. Did Mr.

Tomsett breach duties under the Motor Vehicle Act? [80] The standard of care applicable to the Defendant Tomsett is informed by the relevant provisions of the Motor Vehicle Act,R.S.N.S. 1989, c. 293.

Under these provisions, every person driving a motor vehicle on a highway has a duty to drive “in a careful andprudent manner having regard to all the circumstances” (s. 100(1)), and to drive “at a careful and prudent rate of speed not greater than isreasonable and proper, having due regard to the traffic, surface and width of the highway and of all other conditions at the time existing”(s. 101). [81] The Defendant TD says Mr.

Tomsett failed to discharge his duties under the Motor Vehicle Act on the night of the accident intwo ways: (1) he was speeding; and (2) he failed to slow down or adjust his driving after seeing several ATVs cross the highwaymoments earlier. TD states at p. 16 of its brief: The circumstances at the time ought to have caused the Defendant Tomsett to slow down and take cognizance of his surroundings. It wasdark. Visibility was poor, requiring him to engage his high beam headlights. He knew that there were at least two but up to eight ATVsthat had just crossed the road directly in front of him.

He was familiar with the area. He knew where the ATV trail was. He knew ATVsused the Trail frequently. He should have reacted after seeing the headlights from the ATV as it was stopped (or, if not stopped, nearlystopped) on the shoulder of the road, and acted accordingly by slowing down and/or blowing his horn at the very least. He did none ofthese things. Rather, the Defendant Tomsett takes the position that since he had the right of way then he had no obligation to respond tothe circumstances around him.

That is simply not the case. [82] TD continues at p. 17: Here, the evidence will show that the Defendant Tomsett was very familiar with the area. It was incumbent upon him to be more carefuland begin to immediately slow down when he first perceived the group of ATVs pass. [83] TD cites Theriault v. Huctwith, (SCC), [1948] S.C.R. 86 (S.C.C.), for the proposition that having the right ofway does not give a driver carte blanche to drive without due regard for the prevailing circumstances.

In that case, Kellock and LockeJJ., in a concurring judgment, rejected the respondents’ argument that the statutory right of way places a duty upon the driver of theservient car to yield the right of way which is "absolute" and from which "nothing in the conduct of the dominant car can possibly excuseit": p. 97.

Kellock and Locke JJ. concluded, with respect to the driver of the respondent vehicle, that “the statutory right-of-way does not,in the circumstances, absolve him from his failure to act as he could and should, had his inattention and probably also his excessivespeed not prevented his so doing”: p. 99. [84] In Walker v. Brownlee and Harmon, (SCC), [1952] S.C.J. No. 56, Tascherau J. (in dissent) cited Theriault v.Huctwith when he wrote at para. 27: The right-of-way conferred by statute is not absolute, and it does not exempt the driver of the dominant car from exercising proper careand attention: Theriault v.

Huctwith, (SCC), [1948], 3 D.L.R. 542, S.C.R. 86.

[85] The principal reasons on behalf of the majority in Walker v. Brownlee were given by Estey J. and by Cartwright J. (with whomLocke J. concurred). In his judgment, Cartwright J. agreed with Tascherau J. that the person having the statutory right of way mustnevertheless proceed with due care: 46 The duty of a driver having the statutory right-of-way has been discussed in many cases. In my opinion it is stated briefly andaccurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v.

Harris,[1951] O.W.N. 221 at p. 223: "Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, isbound to act so as to avoid a collision if reasonable care on his part will prevent it.

To put it another way: he ought not to exercise hisright of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen andavoided." 47 While the judgment of the Court of Appeal in that case was set aside and a new trial ordered [ (SCC), [1952] 1D.L.R. 82] there is nothing said in the judgments delivered in this Court to throw any doubt on the accuracy of the statement quoted. [86] Cartwright J. added, however, that the driver with the right of way is entitled to assume that other vehicles will obey the rulesof the road: 48 In applying this principle it is necessary to bear in mind the statement of Lord Atkinson in Toronto R.

W. Co. v.

King, 7 C.R.C. 408 atp. 417, [1908] A.C. 260 at p. 269: "Traffic in the streets would be impossible if the driver of each vehicle did not proceed more or lessupon the assumption that the drivers of all the other vehicles will do what it is their duty to do, namely, observe the rules regulating thetraffic of the streets." [87] Cartwright J. explained that the onus will be on the driver in the servient position to show how reasonable care would haveprevented the accident, while keeping in mind the dominant driver’s right to expect a clear path: 49 While the decision of every motor vehicle collision case must depend on its particular facts, I am of opinion that when A, the driverin the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and acollision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after Bbecame aware, or by the exercise of reasonable care should have become aware, of A's disregard of the law B had in fact a sufficientopportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that insuch circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali. [88] Applying these principles to the facts, Estey J. stated: 29 It is conceded that Walker entered the intersection first.

That, however, does not necessarily determine the issue: Royal Trust Co. v.T.T.C., (SCC), [1935], 3 D.L.R. 420, S.C.R. 671, 44 C.R.C. 90; Thériault v. Huctwith, (SCC), [1948], 3D.L.R. 542, S.C.R. 86. Walker entered, as he says, after he had looked and when, upon the evidence, had he looked with reasonable care,he would have seen Harmon. Upon his own evidence it is a fair assumption that had he then seen Harmon he would have, at that point,yielded to him the right-of-way, in which event this collision would not have followed.

It was his negligence at this point that wouldappear to be the direct cause of the damages here claimed. 30 In the particular circumstances of this case, the fact that the stop sign on the south-east corner of this intersection was not there andthat Walker did not know that Hugel Ave. was a through street does not affect the result, as, in his position, Walker was under a duty toyield to Harmon the right-of-way, and his failure to do so constituted negligence on his part. … 32 The drivers were proceeding in a manner that would, and did, result in a collision.

The respective positions of these drivers are,however, different in this important respect: the law required Walker to yield the right-of-way, while Harmon had a right to expect, and,therefore, to proceed upon the basis, that Walker would stop at the intersection. When, however, he ought to have seen that Walker,without stopping, was proceeding into the intersection, then a duty devolved upon him to use due care to avoid a collision.

Walker'snegligence was from that moment, for Harmon, one of the surrounding circumstances to be considered in determining his conduct. … [Emphasis added] [89] Estey J. concluded: 34 When all the relevant factors are considered it cannot be said that the probabilities upon this record are such that Harmon, once heobserved, as he should have, Walker entering the intersection, could, in the exercise of due care, have then avoided the collision. [90] The principles set out in Walker v. Brownlee were applied in MacLean (Litigation guardian of) v. Thomson, (PE SCTD).

In that case, the plaintiff MacLean was a passenger in Smith’s pickup truck as the two men drove west along Highway 225on a clear, hot, July day. Their trip ended at the intersection of Highway 225 with Route 13 when the Smith vehicle collided with the leftrear wheel of the tractor portion of an 18-wheel tractor trailer driven by the defendant Killam.

Killam stated that he stopped at theintersection, which has a flashing red light and stop sign for those heading south on Route 13, but he did not see the Smith vehicle.Webber J. (as she then was) began by noting: 50 There is considerable case law concerning motor vehicle accidents at intersections where one road is a through road and one road is across road with stop signs at the intersection with the through road.

That law quite consistently places the onus on the driver of thevehicle in the cross road to show that he was not negligent. [91] After reviewing the respective reasons of Cartwright and Estey JJ. in Walker, Webber J. wrote:

53 The duty of a driver stopped at an intersection to see what is there to be seen was described as follows by Estey J. in Lauder v.Wollman et al (1984), (SK KB), 31 Sask. R. 105 (Sask. Q.B.) at p. 36: There is no question that there was a stop sign which confronted the defendant Wollman as he approached the intersection proceedingeast on the grid road and therefore he was required to bring his vehicle to a dead stop which he says he did. The question is therefore, didhe proceed prior to it being safe to do so.

I find on the evidence that the defendant Wollman should have seen the plaintiff's vehicle priorto the latter vehicle entering the intersection and the defendant Wollman's evidence was that he did not see the plaintiff's vehicle untilimmediately prior to the collision. Indeed, I am of the view, that the defendant Wollman first saw the plaintiff's vehicle immediatelyprior to the collision when his attention was drawn by his daughter-in-law to that vehicle. The defendant Wollman's own evidence wasthat there was nothing to obstruct his view to the south on Highway 40 for 700 to 800 feet.

The statement of Cannon J, in Schwartz Bros.Ltd. et al v. Wills, (SCC), [1935] 3 D.L.R. 277, at 281, Where there is nothing to obstruct the vision and there is a duty to look, it is negligence not to see what is clearly visible. has, I believe, application to the present case. It was in my opinion negligence on the part of the defendant Wollman not to have seen theplaintiff's vehicle prior to his entering the intersection as such vehicle was 'clearly visible'. 54 This same point was made by DesRoches J. in Gallagher v. Gallant and Arro Transport Ltd. (1993), 2 P.E.I.R. 139 (P.E.I.S.C.) at p.143.

He concluded at p. 144: In the instant case, I am of the opinion that it was negligence on the part of Gallant not to have seen Gallagher prior to his entering theintersection because Gallagher was clearly visible. Notwithstanding that Gallagher was paying more attention to the condition of thestreet than to the truck as he approached the intersection, in my view, he was entitled to proceed along Notre Dame Street on theassumption that Gallant would stop at the stop sign and would remain at the stop sign until it was safe for him to proceed into theintersection.

While that case involved a plaintiff on a bicycle in a collision with a truck at an intersection, the legal principle of negligence applied inthat case is similar to the principle applied in cases involving two motor vehicles. 55 Contributory negligence can be found in such cases because the person having the statutory right-of-way must nevertheless proceedwith due care. Taschereau J. in his dissent in Walker v. Brownlee states the right-of-way conferred by statute is not absolute.

However,the majority decision in that case and others makes it clear the onus is on the driver without the statutory right-of-way to show howreasonable care would have prevented the accident and this must be done in the face of the dominant driver's right to expect a clear pathand his right not to have to watch out for crossing vehicles. Only when he actually becomes aware of such a vehicle must the dominantdriver then take whatever action is reasonable to try to avoid an accident. As Rand J. stated in Walker v. Brownlee at p. 455: ...he was assuming that his right-of-way, clear under any

interpretation of the statute, would be respected and it was not. The most thatcan be said is that the accident might have been avoided: but that is not enough... [Emphasis added] [92] Applying the authorities to the case before her, Webber J. concluded: 56 In the instant case the defendant driver Smith was in the dominant position, driving on the through road, and the defendant driverKillam was in the servient position -- required to stop at the stop sign with the flashing red light and proceed only when such could bedone safely.

The defendant Killam has failed, on the evidence presented, to establish that after Smith became aware of Killam's enteringthe intersection there was something which Smith as a reasonable driver could have done to prevent the accident. 57 Dr. Wilson calculated it would take 7.6 seconds for the Smith vehicle to travel from the crest of the hill on Route 225 to the point ofimpact. Mr. Tyner states the pickup would first be visible, i.e. at the crest of the hill, 7.5 seconds from the point of impact. Mr.

Tyneralso calculated it would take 5.45 seconds for the Killam vehicle to travel from the stop line to the point of impact. Since Killam stateshe stopped a second time at or near Route 225, Dr. Wilson deducts one second from the travel time of the tractor trailer. This results inthe Smith vehicle being visible for three seconds before the Killam vehicle starts to move. 58 Killam was clearly negligent in failing to see the Smith vehicle which, according to both experts, was visible and there to be seen byanyone stopping at the intersection.

The only evidence of when the Smith vehicle became aware of the Killam vehicle's presence in theroad are the skid marks. They indicate, again according to both experts, an approximate speed of 90 km's per hour prior to the skid.While this speed was higher than the speed limit, speed in excess of the speed limit is not necessarily negligence. In the case of Stewart v.Murphy, [1994] P.E.I.J.

No. 20 a driver who was found to be travelling in excess of the speed limit was found to be neither negligent norin any way contributing to the accident. 59 In the instant case, both experts agreed that even if the defendant Smith had been driving at the speed limit, given where heapparently became aware of the defendant Killam's vehicle, the accident could not have been avoided by Smith. 60 While the defendant Killam tried to argue the defendant Smith should have seen Killam earlier, the law as cited in Walker v.Brownlee and the cases that follow clearly affirm the driver of the vehicle on the throughway need not be as vigilant as the driver on thecross road and the driver on the throughway has the right to assume he doesn't have to watch out for drivers on the cross road: they areonly authorized to cross when it is safe to do so. … 62 While the accident might have been avoided if the Smith vehicle had been exercising more caution than the law requires of a vehicleon a throughway, that possibility is not enough to impose a burden of contributory negligence on the defendant Smith.

The defendantKillam has not produced any evidence that the defendant Smith contributed to the accident or was in any way negligent. I find the speed

of the Smith vehicle, in the circumstances, was neither excessive nor negligent. The Killam vehicle entered upon the throughway when itwas not safe to do so and when the Smith vehicle was clearly visible and there to be seen; this was the sole cause of the accident. [Emphasis added] [93] The principles outlined in Walker have also been applied in Nova Scotia: Tripp v. Peck, (NSSC) andBoutilier v.

Merrill, 2000 NSCA 149. [94] Accordingly, while the Defendant TD is correct that having the right of way did not exempt the Defendant Tomsett from theobligation to exercise reasonable care, it bears the onus to show how reasonable care would have prevented the accident, while takingaccount of Mr. Tomsett’s right to expect any ATV drivers using the recreational trail to obey the rules of the road and yield to hisvehicle. Has TD discharged its onus? Was the Defendant Tomsett speeding? [95] Contrary to TD’s prediction in its pre-trial brief, the evidence at trial fell far short of establishing that Mr.

Tomsett wasspeeding at the time of the accident. TD relied on Mr. Bortolin’s expert opinion that the tire marks may have been longer than the 14.7metre measurement used by Mr. Zwicker to calculate the Toyota’s speed. TD also relied on Mr. Demont’s evidence that he did not seethe Tomsett vehicle until “it was right on top” of him. [96] Although the starting point of the tire marks is not clearly shown in the photographs obtained on the night of the accident, it isspeculation on Mr.

Bortolin’s part to suggest that they could have been five to 10 metres longer than the marks that remained visiblewhen Crawford Insurance obtained its photographs. The date those photographs were taken was not in evidence before the Court. Ascounsel for TD pointed out in closing submissions, the deficiencies in the photographic evidence obtained on the night of the accidentgive rise to several possibilities, but liability determinations are based on probabilities. Moreover, as Mr.

Zwicker noted in his rebuttalreport, even if the marks were originally 3.5 metres longer than they appeared in the Crawford photographs, the Toyota would still nothave been speeding. [97] TD has not shown that the Defendant Tomsett failed to drive “at a careful and prudent rate of speed not greater than isreasonable and proper, having due regard to the traffic, surface and width of the highway and of all other conditions at the time existing”(s. 101 of the Insurance Act).

Although the Defendant Tomsett gave differing estimates of his speed prior to the collision under oath (attrial and at discovery examination) any lack of credibility on his

part in this regard, does not prove that he was actually speeding. [98] TD has not shown that the Defendant Tomsett was driving in excess of the speed limit. Did Mr. Tomsett have an obligation to slow down after seeing the other ATVs? [99] The only other basis upon which TD says the defendant Tomsett failed to exercise reasonable care is that he did not slow downor blow his horn after seeing a group of ATVs cross the highway in front of him. According to Mr. Bortolin, a more observant driver inMr.

Tomsett’s position, after seeing a few ATVs cross the road moments earlier, “would have had a heightened awareness to thepossibility of additional ATVs on the trail, thus shortening the time to perceive and respond if any additional ATVs did presentthemselves. At a minimum, this would include being ready to blow the car horn if any additional ATVs were encountered, to help ensurethat they would yield”: Bortolin report, p. 12. [100] TD’s position on this issue would make more sense if the Tomsett vehicle had collided with a moose, and not an ATV.

When aperson driving on the highway at night sees a moose cross the road in front of them, that driver, if acting reasonably, would slow downand be ready to respond if another moose should attempt to cross the highway. Wild animals are unpredictable. For this reason, if acollision can be avoided, responsibility falls entirely to the driver. [101] Other drivers attempting to cross the highway, however, are held to a higher standard than moose.

As the leading authoritiesestablish, the driver with the right of way is entitled to assume that other drivers, including those operating ATVs, will obey the rules ofthe road. The law required Mr. Demont to yield the right of way. It follows that Mr. Tomsett had no duty to react to the presence of theDemont ATV at the intersection until he became aware, or reasonably should have become aware, that Mr. Demont was not going toyield the right of way as required. It was only then that Mr. Tomsett had a duty to use due care to avoid a collision. [102] Accordingly, even if the Court accepts that Mr.

Demont stopped and looked both ways at the intersection – notwithstanding theconflict between that evidence and Mr. Zwicker’s time and distance analysis, the available 75 metre sightline, and Mr. Demont’sevidence that he did not notice the Toyota until it was “right on top” of him – Mr. Tomsett had no obligation on these facts to slow downor otherwise respond to the presence of an ATV that was stopped at the intersection, as required by law. [103] TD has failed to establish that once Mr. Tomsett became aware, or should have become aware, that Mr. Demont was not going toyield the right of way, Mr.

Tomsett could have avoided the collision through the exercise of reasonable care. Conclusions [104] Mr. Demont’s negligence caused the accident. Mr. Tomsett was legally blameless. The Defendant TD must respond to thePlaintiff’s claim for coverage under

Section D. [105] The Defendant Tomsett is entitled to costs payable by the Defendant TD. If the parties cannot agree on costs, the Court willreceive written submissions within 30 calendar days of this decision.

Smith, J.