El Dali et al. v. Panjalingam et al., 2013 ONCA 24

El Dali et al. v. Panjalingam et al.

[Indexed as: El Dali v. Panjalingam]

Ontario Reports

Court of Appeal for Ontario,

Laskin, MacPherson and Gillese JJ.A.

January 18, 2013

113 O.R. (3d) 721 | 2013 ONCA 24

Case Summary

Torts — Negligence — Prima facie negligence — Defendant's vehicle crossing centre line on icy road and striking plaintiff's vehicle — Defendant breaching s. 148(1) of Highway Traffic Act by crossing centre line — Defendant prima facie negligent and bearing onus of explaining that accident could not have been avoided by exercise of reasonable care — Defendant not testifying at trial in plaintiff's negligence action and offering no other evidence to explain why his vehicle crossed centre line — Jury finding that there was no negligence on defendant's part which caused or contributed to accident — Verdict unreasonable — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 148(1).

The plaintiff and the defendant were driving in opposite directions on an icy road when the defendant lost control of his car and crossed the centre line. The plaintiff pulled over to the right side of the road and stopped, but the defendant's car struck his car, injuring him. The plaintiff sued the defendant for damages for negligence. The defendant did not testify at trial and offered no evidence to explain his driving. Defence counsel implicitly acknowledged that the defendant at least contributed to the accident and asked the jury to find her client only 50 per cent at fault. In answer to the question whether there was any negligence on the defendant's part that caused or contributed to the accident, the jury responded no. The action was dismissed. The plaintiff appealed.

Held, the appeal should be allowed.

By crossing the centre line of the road, the defendant breached s. 148(1) of the Highway Traffic Act. When a driver breaches s. 148(1) and an accident occurs, the driver is held to be prima facie negligent. The driver then bears the onus of explaining that the accident could not have been avoided by the exercise of reasonable care. Absent any explanation, the jury's verdict that there was no negligence on the defendant's part that contributed to or caused the accident was unreasonable. While the maxim res ipsa loquitur no longer applies in Canadian law, the plaintiff was not relying on that maxim. Rather, he led direct evidence that the defendant crossed the centre line and struck his car after it was stopped. That evidence established a prima facie case of negligence. As the defendant did not negate that evidence, he had to be found negligent.

Cases referred to

Levesque v. Levesque, 2001 8615 (ON CA), [2001] O.J. No. 4416, 151 O.A.C. 227, 17 M.V.R. (4th) 171, 109 A.C.W.S. (3d) 837 (C.A.), apld

Fontaine v. British Columbia (Official Administrator), 1998 814 (SCC), [1998] 1 S.C.R. 424, [1997] S.C.J. No. 100, 156 D.L.R. (4th) 577, 223 N.R. 161, [1998] 7 W.W.R. 25, J.E. 98-715, 103 B.C.A.C. 118, 46 B.C.L.R. (3d) 1, 41 C.C.L.T. (2d) 36, 34 M.V.R. (3d) 165, 78 A.C.W.S. (3d) 203, consd

Other cases referred to

Gauthier & Co. v. Canada, 1945 40 (SCC), [1945] S.C.R. 143, [1945] S.C.J. No. 1, [1945] 2 D.L.R. 48; Graham v. Hodgkinson (1983), 1983 1775 (ON CA), 40 O.R. (2d) 697, [1983] O.J. No. 2503, 18 A.C.W.S. (2d) 46 (C.A.); [page722] McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, [1937] S.C.J. No. 23, [1937] 2 D.L.R. 639 at 649; Olmstead v. Vancouver-Fraser Park District, 1974 196 (SCC), [1975] 2 S.C.R. 831, [1974] S.C.J. No. 129, 51 D.L.R. (3d) 416, 3 N.R. 326; Rydzik v. Edwards (1982), 1982 2064 (ON SC), 38 O.R. (2d) 486, [1982] O.J. No. 3446, 138 D.L.R. (3d) 87, 23 C.C.L.T. 23, 15 A.C.W.S. (2d) 365 (H.C.J.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6)

Highway Traffic Act, R.S.O. 1990, c. H.8 [as am.], s. 148(1)

APPEAL by the plaintiff from the judgment of McLean J. of the Superior Court of Justice dated February 11, 2011 dismissing a negligence action.

Joseph Obagi and Elizabeth A. Quigley, for appellant.

Peter Cronyn and Patricia Lawson, for respondents.

The judgment of the court was delivered by

LASKIN J.A.: —

A. Overview

1On December 11, 2005, the appellant Walid El Dali was injured in a car accident. The accident occurred on an icy, slippery road in Ottawa. The respondent driver Pauchanathan Panjalingam lost control of his car, crossed the centre line of the road and collided with El Dali's car.

2El Dali sued Panjalingam for damages for negligence and the case was tried before McLean J. and a jury.

3Although available to do so, Panjalingam did not testify to explain his driving. Nonetheless, in answer to the question whether Panjalingam's negligence caused or contributed to the accident, the jury responded no. El Dali's action was therefore dismissed. The jury did assess El Dali's damages: $35,000 for general damages, $55,000 for past loss of income, but zero damages for future loss of income.

4El Dali appealed both liability and damages. He argued four grounds of appeal:

(1) the jury's verdict on liability was unreasonable and unsupported by the evidence;

(2) the trial judge failed to instruct the jury properly on negligence and contributory negligence;

(3) defence counsel's jury address, both on liability and damages, was misleading and inflammatory. And the trial judge erred by failing to correct defence counsel's misstatements; [page723]

(4) the trial judge erred by failing to grant the appellant's mistrial motion brought because the defence withheld certain documents relevant to El Dali's loss of future income claim.

5We called on the respondents only on grounds 1 and 2. In our view, defence counsel's closing was neither misleading nor inflammatory. It was simply forceful advocacy. Further, the trial judge did not err in exercising his discretion not to declare a mistrial. Overall, we are satisfied that the jury's damages award was reasonably supported by the evidence.

6However, I would set aside the jury's verdict on liability and order a new trial on that issue. In the absence of any explanation for Panjalingam's driving or any evidence that he exercised reasonable care, the jury's verdict was unreasonable.

B. Facts

(1) The accident

7The accident occurred on Prince of Wales Drive in Ottawa. Weather conditions the day of the accident were poor. The road was icy and slippery.

8El Dali and Panjalingam were travelling in opposite directions towards one another. El Dali was driving at about 10-20 kilometres per hour. From about 300 to 500 feet away, El Dali saw Panjalingam lose control of his car and cross the centre line of the road. El Dali pulled over to the right side of the road and stopped -- seemingly a prudent thing to do. Still, Panjalingam's car struck El Dali's car. El Dali sustained injuries to his shoulders and knees.

9A police officer was called to the scene of the accident. She spoke to both drivers. At trial, she testified that Panjalingam admitted losing control of his car. She also testified that he was not impaired. She decided not to lay charges under the Highway Traffic Act, R.S.O. 1990, c. H.8, "due to poor road conditions".

(2) The trial

10The trial took four weeks. Panjalingam did not testify and the defence called no other evidence to explain his driving.

11In closing submissions, counsel for El Dali argued that Panjalingam was 100 per cent at fault for the accident. In her closing submissions, Panjalingam's counsel implicitly acknowledged that her client's negligence at least contributed to the accident: [page724]

When you are given the questions by His Honour to answer -- and there will be 10 questions -- we ask that you say the following: "Responsibility for this action is shared between the plaintiff and the defendant."

The defendant did lose control of his vehicle on an icy road so he may be partially responsible, but Mr. El Dali was not travelling fast, he saw the object or vehicle from 300 to 500 feet away and took no steps to avoid the collision . . . [Mr. El Dali] is at least 50% responsible for this accident.

12Instead of arguing that Panjalingam was not negligent, she emphasized that El Dali could have taken steps to avoid the accident, and urged the jury to find her client only 50 per cent at fault.

13The first question the jury was asked to decide was the following:

Was there any negligence on the part of the defendant, Pauchanathan Panjalingam, which caused or contributed to the motor vehicle accident on December 11, 2005?

14The jury answered no.

C. Analysis

(1) The applicable standard of review

15The standard of appellate review of a civil jury verdict is well established. Where the trial judge's charge is fair and accurate, the jury's verdict will be set aside only where it is "so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it": McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, [1937] S.C.J. No. 23, at p. 343 S.C.R.

16Although the standard requires appellate courts to treat jury verdicts deferentially, it does not require that they treat them "with awe": Olmstead v. Vancouver-Fraser Park District, 1974 196 (SCC), [1975] 2 S.C.R. 831, [1974] S.C.J. No. 129, at p. 839 S.C.R. Juries are not infallible. Occasionally, they make mistakes. When they do, an appellate court should intervene. This is one of those cases where appellate intervention is called for.

(2) The jury's verdict on liability was unreasonable

17By crossing the centre line of the road, Panjalingam breached s. 148(1) of the Highway Traffic Act, which provides:

148(1) Every person in charge of a vehicle on a highway meeting another vehicle shall turn out to the right from the centre of the roadway, allowing the other vehicle one-half of the roadway free.

18When a driver breaches s. 148(1) and an accident occurs, the driver is held to be prima facie negligent. The driver then bears the onus of explaining that the accident could not have [page725] been avoided by the exercise of reasonable care. Charron J.A. set out this proposition in Levesque v. Levesque, 2001 8615 (ON CA), [2001] O.J. No. 4416, 151 O.A.C. 227 (C.A.), at para. 6:

It is my view that the overwhelming weight of the evidence established that the respondent, at the time of the collision, did not leave one-half of the road clear for the appellant's vehicle, as he was required to do pursuant to the Highway Traffic Act, R.S.O. 1990, c. H-8, ss. 148 and 149. Hence, on this circumstance alone, a prima facie case of negligence was made out, and it became incumbent upon the respondent to explain that the accident could not have been avoided by the exercise of reasonable care.

(Citations omitted)

19The explanation need not come from the defendant driver, but it must come from someone. Otherwise, the defendant will be found negligent and at least partly responsible for the accident.

20Further, as Cory J.A. explained in Graham v. Hodgkinson (1983), 1983 1775 (ON CA), 40 O.R. (2d) 697, [1983] O.J. No. 2503 (C.A.), at p. 703 O.R., ". . . where the situation (such as driving on the wrong side of the road) necessarily calls for an explanation by a party and that party's explanation fails to demonstrate that he was not acting in a negligent manner", a jury's verdict that the party was not negligent may be set aside as unreasonable.

21That is precisely this case.

22We have no explanation for Panjalingam's driving. We have no evidence about why he crossed the centre line and struck El Dali's car when it was parked on the side of the road; no evidence about Panjalingam's driving before he lost control of his car; no evidence about what caused him to lose control of his car; no evidence about what rate of speed he was driving; and no evidence about whether he took any steps to avoid the accident, and if so what they were. Absent any explanation, the jury's verdict that no negligence on the part of Panjalingam contributed to or caused the accident was unreasonable. That it was unreasonable is supported by defence counsel's closing submission in which she asked the jury to find Panjalingam only 50 per cent at fault. Although not binding on the jury, defence counsel's assessment of the record strongly suggests that the jury's verdict was unreasonable.

23I expect the jury may have concluded that the accident was unavoidable and not due to Panjalingam's negligence, perhaps relying on the police officer's evidence and the condition of the road. If so, the jury's conclusion is unsupportable and amounts to nothing more than speculation.

24The officer did not witness the accident. Moreover, she was investigating whether a Highway Traffic Act charge should be laid, not whether Panjalingam was negligent. That [page726] she exercised her discretion not to lay a charge has no bearing on whether Panjalingam drove his car with reasonable care. And whatever statement she took from Panjalingam about his driving was not tendered in evidence.

25The poor driving conditions do not support the jury's verdict. The mere slippery or icy condition of a road does not permit a trier of fact to infer that an accident was unavoidable and not caused by a driver's negligence. Rutherford J. made this point in Rydzik v. Edwards (1982), 1982 2064 (ON SC), 38 O.R. (2d) 486, [1982] O.J. No. 3446 (H.C.J.), at p. 489 O.R., relying on the Supreme Court of Canada's judgment in Gauthier & Co. v. Canada, 1945 40 (SCC), [1945] S.C.R. 143, [1945] S.C.J. No. 1:

It was said in Gauthier by Kellock J. at pp. 55-58 D.L.R.:

Skidding of a vehicle on the highway by itself is a "neutral fact", equally consistent with negligence or no negligence.

When the onus of explanation lies on the defendants by the application of the breach of a statutory duty, an explanation that the accident occurred from skidding upon an icy roadway is not a sufficient explanation because of this neutrality, or in the context of the Gauthier case, at p. 56 D.L.R.:

Accordingly, for the respondent [The King] in the circumstances of this case to go no farther than to show that the accident was occasioned by the skidding of the [vehicle], was not to show "a way in which the accident may have occurred without negligence"[.]

26In the case before us, that El Dali was able to control his own car is some evidence that the road conditions alone did not disprove negligence on Panjalingam's part or point to unavoidable accident.

27Before concluding, I will briefly address the Supreme Court of Canada's decision in Fontaine v. British Columbia (Official Administrator), 1998 814 (SCC), [1998] 1 S.C.R. 424, [1997] S.C.J. No. 100, which the respondents relied on heavily. They submit that Fontaine precludes this court from finding a prima facie case of negligence where a car has crossed the centre line of a road. I disagree.

28Fontaine marked the end of res ipsa loquitur in Canadian law. The maxim res ipsa loquitur -- "the thing speaks for itself" -- in some circumstances permitted a court to infer that a defendant's negligence caused an accident in the absence of an explanation from that defendant. Even where the plaintiff had no direct or positive evidence to prove the defendant's negligent, the plaintiff could lead circumstantial evidence to raise a prima facie case for the defendant to answer.

29In Fontaine, Major J. wrote, at para. 27, "that the law would be better served if the maxim was treated as expired . . .". [page727] Instead, the trier of fact should simply weigh the direct and circumstantial evidence to determine whether the plaintiff has established, on a balance of probability, a prima facie case of negligence against the defendant. If the plaintiff has done so, then the defendant must lead evidence to negate the evidence of the plaintiff. If the defendant does not do so, the plaintiff will succeed.

30Fontaine does not assist the respondents. El Dali does not rely on res ipsa loquitur. The appellant led direct evidence that Panjalingam crossed the centre line and struck El Dali's car after it was stopped. This court's decision in Levesque, which was decided after Fontaine, holds that evidence of this sort establishes a prima facie case of negligence. As Panjalingam did not negate this evidence, he must be found negligent. The jury's verdict holding otherwise is unreasonable.

31For these reasons, I conclude that the jury's verdict on liability was unreasonable. It is therefore not necessary to deal with the appellants' second ground of appeal concerning the trial judge's charge to the jury. In a civil case, an appellate court may order a new trial where there has been a "substantial wrong or miscarriage of justice has occurred": Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). The judgment dismissing this action was unjust in the light of the jury's unsupported finding that Panjalingam was not negligent. I would therefore order a new trial on the issue of liability only.

D. Conclusion

32I would allow the appeal, set aside the judgment at trial and order a new trial on liability only. The parties may make brief written submissions on the costs of the appeal and the trial within two weeks of the release of these reasons.