Mr. Bigelow

This is an appeal from a judgment dismissing an action against the Regional Municipality of Durham for failing to keep a roadway in a reasonable state of repair, following a motor vehicle accident that caused life-altering injuries to the plaintiff.

The trial judge found the road was not in a state of non-repair and did not pose an unreasonable risk to an ordinary reasonable driver, also noting the driver's excessive speed and distraction.

The Court of Appeal dismissed the appeal, finding no extricable error of law in the trial judge's analysis.

The appellate court affirmed that the trial judge correctly applied the four-part test for municipal negligence, considering the driver's conduct as one factor among others in assessing the road's condition relative to an ordinary reasonable driver, without conflating the driver's negligence with the road's state of non-repair.

During a civil trial arising from a motor vehicle collision, the court considered whether an expert accident reconstruction witness could remain in the courtroom during the testimony of the opposing party’s expert despite an existing witness exclusion order under Rule 52.06(1).

The moving party sought permission for the expert to observe the opposing expert’s testimony to assist counsel in cross-examination.

The opposing party argued the testimony involved credibility issues arising from changes between expert reports.

The court held that experts are commonly exempted from exclusion orders because they provide opinion evidence rather than factual testimony, and their presence can assist counsel in understanding and testing expert evidence.

Finding no prejudice and relying on its discretion to vary trial management orders where circumstances change, the court amended the earlier exclusion order to permit experts to hear the testimony of opposing experts.