Where a driver’s speed is the sole alleged basis of negligence and the driver was travelling at or near the posted speed limit a conclusion that the driver was driving too fast for the conditions, in and of itself, is not sufficient to find driver negligence – a proper “but for” causation analysis must be undertaken.
Jadhav v Kielly, 2019 NLCA 5, per Welsh J.A.
Facts + Issues
Jadhav was struck by a motor vehicle driven by Kielly and was injured. The Trial Judge concluded that Kielly was liable in negligence, but that Jadhav was 10% at fault in contributory negligence.
At the time of the accident, it was dark, raining heavily, and windy. Jadhav was wearing all black and walking along the shoulder of the road with the flow of traffic. Kielly was driving in the same direction and struck Jadhav as he walked.
Jadhav appealed from his apportionment of the damages and Kielly cross appealed against the finding that he was liable in negligence, or alternatively, the apportionment of liability.
The Trial Judge concluded that Kielly had been driving at an excessive speed for the road and weather conditions given the fog, heavy rain, build-up of water on the road, wind, and darkness of night.
Kielly admitted that he was driving at or slightly faster than the posted speed limit of 50km/h. The Trial Judge had specifically rejected the testimony of the police that despite the conditions, a driver could be at or over the speed limit and still be driving reasonably.
On appeal, Kielly submitted that the Trial Judge’s conclusion that he should have substantially reduced his speed was based on an inference without evidentiary foundation, amounting to palpable and overriding error.
Kielly further submitted on appeal that the evidence did not support the Trial Judge’s inference that he had driven onto the gravel shoulder and struck Jadhav there in light of Kielly’s clear evidence that he was on the pavement when the collision occurred.
The issues on appeal included whether the Trial Judge erred:
- in concluding that Kielly was driving at an unsafe speed, given the road and weather conditions
- in concluding that Kielly left the paved roadway and struck Jadhav while he was on the gravel shoulder of the road
- in failing to undertake a proper analysis of the issue of causation, and
- in the alternative, in the apportionment of fault for the accident.
HELD: Cross-appeal allowed.
This ground of appeal to the effect that the Trial Judge had erred in rejecting the police opinion that Kielly’s speed was reasonable in the conditions was rejected.
- The Court held:
18 In response, Jadhav submits that the judge gave reasons for rejecting the police officer’s opinion, including reference to the Highway Traffic Act. There was uncontradicted evidence regarding the poor road, weather and visibility conditions at the time of the accident. The judge was satisfied that, in the circumstances, a reasonably prudent driver would have driven at less than the posted speed limit. That conclusion is consistent with the discussion of the reasonably prudent driver in Baker v. Russell, 2008 NLCA 51, 281 Nfld. & P.E.I.R. 247 (N.L. C.A.)...
- The Court held that the Trial Judge gave sufficient reasons for concluding that Kielly breached the duty and standard of care owed by drivers to pedestrians. Kielly had a duty to drive at the speed of a reasonably prudent driver given the road and weather conditions at the time of the accident. However, the evidence was clear that Jadhav was, at least, near the gravel shoulder when he was struck.
- The Court held that the Trial Judge had erred in inferring that Kielly had driven onto the gravel shoulder in the circumstances:
31 In summary, the question regarding the location of the accident must be determined based on: Kielly’s evidence that Jadhav was on the pavement when he was struck; since the shoulder of the road was gravel, it could be expected that Kielly would have been aware of the different surface on which his vehicle was travelling had he strayed onto the gravel from the pavement; the fact that Jadhav had no memory of the accident and, therefore, could not say that he was not on the pavement; the failure of the police officer to take photographs or notes or conduct any investigation, leaving unanswered the issues raised by Constable Osmond; and the failure of Jadhav to subpoena or seek to cross-examine Kielly at trial when offered or to adduce expert evidence to address the issue.
32 In the circumstances, I am satisfied that the Trial Judge erred in concluding that Jadhav, as the plaintiff, had established on a balance of probabilities that he was struck while he was walking on the gravel shoulder of the road. There was no foundation on which the judge could rely to infer or determine on a balance of probabilities that Kielly had driven onto the gravel shoulder and that Jadhav was on the shoulder when the impact occurred.
33 In the result, the question of causation must be addressed without a finding that the impact occurred when Jadhav was on the shoulder of the road. That said, the evidence is clear that Jadhav was, at least, near the gravel shoulder when he was struck.
The Court held that the Trial Judge erred by not conducting a causation “but for” analysis. The Trial Judge had erroneously concluded that the impact had occurred in the shoulder without a factual basis to do so, given the weakness of the factual evidence. Where the driver’s speed is the sole alleged basis of negligence and the driver was travelling at or near the posted speed limit expert evidence is necessary to conduct a proper analysis. The Court held:
 In all the circumstances, the application of common sense could not be relied upon to conclude that the impact would have been avoided if Kielly had been driving more slowly. More information would be necessary to assess the question of causation. Otherwise, the simple fact that the Trial Judge found that Kielly was driving too fast for the conditions would automatically, without a proper and necessary consideration of the “but for” test, result in a finding of liability.
 In circumstances such as these, where the driver’s speed is the sole basis for finding negligence related to the accident, and the speed was near or just slightly more than the speed limit, application of the “but for” test will ordinarily involve expert evidence regarding factors such as perception-reaction times, the distance a vehicle would travel from the initial perception at various speeds, and the effect of swerving when the object was at various locations on the road. (See Baker v. Russell, [(2008) 2008 NLCA 51]. In this case, while the Trial Judge determined that Kielly should have been driving more slowly given the conditions, there was no information on which the judge could determine that the accident would not have occurred but for Kielly’s negligence in travelling at 50 to 55 kilometres per hour.
 In the result, I am satisfied that the Trial Judge erred by failing to properly consider the question of causation, and in particular, whether there was sufficient evidence to establish that Jadhav would not have been struck “but for” Kielly driving at a speed that was too fast given the road, weather and visibility conditions. A proper application of the “but for” analysis leads to the conclusion that Jadhav failed to provide sufficient evidence regarding the element of causation to discharge the onus of proving on a balance of probabilities that Kielly was liable in negligence.
In summary the Court concluded:
- That there was no basis on which to set aside the Trial Judge’s conclusion that Kielly was driving at an excessive speed given the road, weather and visibility conditions;
- That the Trial Judge erred in concluding that Jadhav had discharged the burden of establishing that he was struck while walking on the gravel shoulder;
- That the Trial Judge erred by failing to conduct a proper assessment of the element of causation; and
- That in the circumstances, Jadhav did not provide sufficient evidence to discharge the burden of establishing the element of causation, which is a necessary precondition to finding Kielly liable in negligence.
A driver simply being at or over the speed limit does not sufficiently meet the test of “but for” causation without direct consideration of the speed as a factor of causation in a collision. While it may be imprudent to drive quickly in poor conditions, the plaintiff bears the onus of proof to demonstrate that the driver’s speed directly caused the injuries suffered.
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