COURT OF APPEAL FOR ONTARIO

Court File and Parties

DATE: 20000223

DOCKET: C29458

RE: STEPHEN LANGTON (Plaintiff/Appellant) v. NAMASCO
LIMITED-NAMASCO LIMITEE and DANIEL HERON
(Defendants/Respondents)

BEFORE: AUSTIN, MOLDAVER AND BORINS JJ.A.

COUNSEL: C.J. Haber
For the Plaintiff/Appellant

A.T. Graham
For the Defendants/Respondents

HEARD: February 14, 2000

On appeal from the judgment of Morrison J., sitting with a jury,
dated March 5, 1998.

E N D O R S E M E N T

[1] The plaintiff appeals from the dismissal of his claim for
damages for personal injuries occasioned when he fell from his
bicycle and his left hand was run over by the defendant’s truck.

[2] One of the issues was whether the trial judge misstated to
the jury the evidence respecting the sequence of events
immediately preceding the inquiry. There was evidence which the
jury could accept that the driver looked in the mirror at the
same time as he engaged the clutch and that he did not see the
plaintiff at that time. As he moved forward he looked again and
saw the plaintiff in the process of falling. He braked and
stopped, having covered a distance of six to eight feet.

[3] It is common ground that that six or eight feet was straight
forward; that is, the truck never began the actual turn. It is
also agreed that it was not the movement of the truck that caused
the plaintiff to fall. In these circumstances it was immaterial
whether the driver looked and then moved, or looked and moved
simultaneously. Nor was it material whether or not he saw the
plaintiff on the first occasion when he looked in the mirror;
the plaintiff was in no difficulty until he fell off his bicycle
and into the path of the truck, by which time the truck was
already moving. If, on the first occasion when the driver
looked, he did not see the plaintiff, there was no obligation on
the driver to wait until he re-appeared. In the circumstances,
we are not persuaded that the trial judge misstated the evidence,
or that if he did, the plaintiff was prejudiced thereby.

[4] It is also argued that the plaintiff’s statement to the
defendant driver that it was not the driver’s fault should not
have been admitted into evidence. The plaintiff was asked in
cross-examination whether he told the driver at the scene: “Don’t
worry about it, it wasn’t your fault”. He said he didn’t recall
that he had made this statement, but that he could have said
anything. No objection was taken to this evidence. In re-
examination, the plaintiff was reminded of this question and
answer and was then asked whether, when he referred to fault, he
was referring to falling off his bicycle or the truck running
over his hand. He replied: “Ah, probably falling off my bike”.
He went on, at his counsel’s suggestion, to say that he was not
thinking clearly at the time.

[5] We agree with the trial judge that whether the plaintiff
made the statement, and if he did, whether he was referring to
falling off his bicycle or to his hand being run over by the
truck were issues for the jury to resolve.

[6] It was argued that the appellant’s alleged statement
respecting fault given to the driver and another statement said
by the driver to have been given by the appellant to a fireman,
should not have been admitted because neither was disclosed to
appellant’s counsel prior to trial. We disagree. In the absence
of any duty to disclose, such as by way of production of
documents, which has no application here, or by way of response
to questions on discovery, there is no obligation on a party to
make gratuitous disclosure of relevant information. It was not
made clear to the trial judge, or to this court, that the
necessary enquiries were made of the respondent in this case to
require disclosure of the statements in question. The situation
is not analogous to Snelgrove v. Steinberg’s Inc. (1995), 85
O.A.C. 365.

[7] It was suggested in the appellant’s factum that the
statements in question should have been pleaded in the statement
of defence. Again we disagree. Pleadings are intended to set
out the facts, not the evidence intended to be led to prove those
facts. The statements in issue here are precisely such evidence
and the trial judge was entirely correct in cutting off cross-
examination of the driver on that point.

[8] It was also argued that the trial judge erred in prohibiting
the accident reconstruction expert called by the plaintiff from
testifying upon the very issue that the jury had to decide, in
failing to emphasize to the jury the importance of the expert’s
evidence and in failing to instruct the jury that the expert’s
evidence made it clear that the accident could not have happened
as described by the driver.

[9] Defence counsel objected to the introduction of the expert’s
opinion evidence as opposed to the evidence as to distances and
similar matters. There was substance to that objection. The
subject matter was neither technical nor arcane; it was a matter
of every day observation. Expert opinion evidence is admitted
where it is helpful, and excluded where the jury can as easily
draw the necessary inferences without it. From our review of the
instructions to the jury, we are satisfied that the evidence of
the expert was fairly and adequately put to the jury.

[10] We see nothing to be gained by the appellant’s suggestion
that further instructions should have been given to the jury
respecting the application of ss. 142(1), 147(1), 148(8) and
193(1) of the Highway Traffic Act.

[11] There is no basis for the suggestion made in the appellant’s
factum that the verdict reached by the jury was unreasonable.
There was evidence to support the answers given.

[12] Despite the grievous injuries suffered by the plaintiff, we
are unable to find any substantial error in the trial proceedings
or in the disposition of costs at trial.

[13] The appeal is therefore dismissed with costs.

“Austin J.A.”

“M.J. Moldaver J.A.”

“S. Borins J.A.”