DATE: 20020501 DOCKET: C34629
COURT OF APPEAL FOR ONTARIO
CHARRON, SHARPE and CRONK JJ.A.
B E T W E E N :
OREST TEODOROWYCH
Orest Teodorowych, The appellant in person
Plaintiff (Appellant)
- and -
NICHOLAS PASCAL AND MYRSA MANAGEMENT SERVICES LTD. AND OREST H.T. RUDZIK
Mark L. J. Edwards, for the respondents
Defendants (Respondents)
Heard: March 15, 2002
On appeal from the judgment of Justice Tamarin M. Dunnet, sitting with a jury, dated June 22, 2000 and from the order of Justice Dunnet, dated June 12, 2000.
CHARRON J.A.:
[1] This appeal involves a motor vehicle accident that occurred on January 14, 1986. The appellant was driving and was the single occupant of his motor vehicle. His claim against the driver and the owner of the other motor vehicle, Nicholas Pascal and Myrsa Management Services Ltd, is in negligence. The appellant claims for damages to his motor vehicle and damages for personal injury allegedly suffered as a result of the accident. The claim against the defendant Orest H.T. Rudzik, the appellant’s former solicitor, was founded on breach of contract and breach of fiduciary duties. This latter claim was dismissed summarily long before the trial in this matter and is not the subject-matter of this appeal. Following a trial before Dunnet J. and a jury, the jury found no negligence on the part of the respondents and assessed the appellant’s damages at zero. On June 22, 2000, Dunnet J. dismissed the appellant’s claim accordingly, with costs payable to the respondents fixed at $25,000. The appellant appeals from that judgment.
[2] The appellant’s main contention is that the jury’s verdict, in finding no negligence on the part of the respondent Pascal in the operation of the motor vehicle and in finding that no damages were suffered by him as a result of the motor vehicle accident in question, is perverse. The appellant also submits that the trial judge erred in her conduct of the trial: a) in dismissing his motion, brought at the commencement of the trial, to add two defendants; and b) in not permitting him to use a portable light box to view X-rays during the course of his cross-examination of the respondent’s medical expert. Finally, the appellant submits that the trial judge made several errors in her instructions to the jury.
[3] It is my view that there is no basis to interfere with the result at trial; consequently, I would dismiss the appeal.
The Evidence at Trial and the Positions of the Parties
[4] The evidence as to what happened in the accident was given by the appellant and by the investigating police officer who was called by the defence. Since the respondent Pascal had died two years after the accident, from causes unrelated to the accident, the defence was unable to call any direct evidence on liability. The trial judge accurately and succinctly summarized the evidence on liability in her instructions to the jury as follows:
The evidence, as to what happened in the accident, was given by Mr. Teodorowych and by Police Constable Harris. The evidence of Mr. Teodorowych is as follows. On January 14, 1986, he was travelling in the middle lane of the Gardiner Expressway westbound at the Jarvis Street ramp at 80 kilometres per hour. A car driven by the Defendant, Nicholas Pascal, was travelling in the same direction at 90 kilometres per hour in the passing lane. Mr. Teodorowych heard the screeching noise of braking tires and saw the Pascal car fishtailing and spinning clockwise. Traffic was heavy. Mr. Teodorowych applied his brakes and glanced at his right side mirror to try to change lanes. The Pascal car skidded and hit his left front corner. The impact knocked him from the centre lane and Mr. Teodorowych hit his head on the left door frame and his knees under the dashboard. The seatbelt caused his left shoulder to dislocate. He repositioned the shoulder. Later Mr. Pascal told him that after the impact, the Pascal car bounced back, rotated counterclockwise and collided with the left rear tire and fender, coming to rest at the guardrail. Mr. Teodorowych does not remember the second impact. After the police arrived, he drove his car down the ramp and took a taxi home. His evidence is that the seatbelt was damaged and the damage documents produced by him and marked as Exhibits 20 and 21 show repairs to the car of more than $2,000.
Constable Phillip Harris has been with the Metropolitan Toronto Police Service since 1975. On January 14, 1986, he arrived at the scene of the accident on the Gardiner Expressway near the Jarvis Street ramp at 5:45 p.m. He found the Ford Pinto driven by the Defendant Pascal against the left guardrail and the Volkswagen camper driven by the Plaintiff, Mr. Teodorowych in the middle of the road.
The road was in good condition with clear markings and the lighting was good. The left side of the passing lane was wet and the right side was dry. He noted skid marks from the car driven by Mr. Teodorowych, six metres before impact and eight metres after. He also noted skid marks left by the Pinto. There was damage to the right side and right front bumper of the Pinto and to the left front corner and left rear wheel-well of the Volkswagen. Based upon his experience, he concluded that the car driven by Mr. Pascal came around the curve in the highway at 80 kilometres per hour, skidded to avoid traffic and lost control. He swerved to the right, was struck by the car driven by Mr. Teodorowych and pushed to the centre guardrail.
In re-examination, the officer testified that traffic ahead of Mr. Pascal stopped because of the stalled car in the passing lane. He concluded that the accident was caused by Mr. Pascal. The officer estimated damage to the Pinto at $1500 and the Volkswagen at $800. Both cars were driven off the expressway by their own drivers. He noted that Mr. Teodorowych told him his head was sore. He did not want to go to hospital. The officer was not aware of complaints to his left shoulder, back or knees.
[5] The appellant, who represented himself at trial, took issue with the police officer’s estimate of the damage to his vehicle. He cross-examined the officer at some length on this point. More significantly, on the question of liability, the appellant took issue with the officer’s theory on how the accident had happened. The appellant challenged the officer’s conclusion that both vehicles were traveling at approximately the same speed at the time of the collision at 80 kilometers an hour and that the Pascal vehicle was traveling slightly ahead of him. He also challenged the officer’s conclusion that it was the appellant’s vehicle that had struck Pascal’s vehicle when the latter swerved to the right to avoid stopped traffic ahead. The officer disagreed with the appellant’s version of events when it was put to him in cross-examination. He testified that he had no independent recollection of the investigation he conducted but that he was quite confident based on his notes and report that the accident had happened in the way he had described in his report and in his testimony.
[6] It was the appellant’s position at trial that: the respondent’s negligence had caused the accident; he was in excellent physical condition before the accident; as a result of the accident, he suffered a significant injury to his shoulder, neck and back; in the fourteen years since the accident, he only worked for rehabilitation purposes and while on pain killers; during that same period he had taken more than 1,000 physiotherapy and chiropractic treatments as well as extensive medication; he wore a back and shoulder brace; he suffered from memory loss; his sleep was disrupted; his condition was chronic; he was unable to work; his social and sports activities were severely restricted. The appellant called medical evidence and testified himself in support of his position.
[7] The respondents’ theory at trial was that: the appellant’s testimony on liability was not credible; there was no evidence that the accident was caused by the respondent driver’s negligence; the appellant’s recurring shoulder problem was long-standing and unrelated to the 1986 accident; at most he suffered from a sprain to his neck and back which had resolved for the most part by September 1986 when the appellant returned to work; his claim for damages, both general and specific, was not credible and largely unsupported by the evidence; and that, at most, the jury could consider lost wages from the time of the accident until the appellant returned to work in September 1986. The defence called one medical expert and the investigating officer.
[8] The appellant contends that the jury’s verdict, both on liability and damages, is perverse. The appellant recognizes that the onus on him is high and he relies on the correct test. It is well established that the verdict of a jury will not be set aside as against the weight of the evidence unless 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 that verdict. He submits that this test has been met in this case and, in support of his contention, he essentially reiterates his position at trial.
[9] The respondents take the position that the verdict is not perverse. They submit that the appellant’s case depends almost entirely on his evidence and, hence, if his credibility was found to be lacking, it was open to the jury to reject any or all of the appellant’s evidence. The respondents note that the appellant refused to disclose his medical records prior to 1985, and that he gave evidence about his pre-accident health which was inconsistent with evidence he gave in previous legal proceedings, with evidence he gave under oath on discovery, and with information he supplied to his medical doctors. The appellant also gave evidence about his pre- and post-accident work history which was inconsistent with information he supplied to his doctors and with information supplied by him to Revenue Canada. As a result, the respondents take the position that when faced with the appellant’s untruths, exaggerations and inconsistencies, the jury’s verdict is not perverse but entirely consistent with the conclusion that the jury did not believe any of the appellant’s testimony with respect to damages and liability.
Analysis
[10] It is my view that the record amply supports the respondents’ assessment of the appellant’s case at trial. Based on the evidence adduced at trial, it was open to this jury to totally reject the appellant’s testimony and any other evidence produced by him. The bulk of his evidence, with respect to damages in particular, was so fraught with inconsistencies, exaggerations, and unsupported allegations that it was plainly incredible. It was well within the jury’s purview to conclude that the appellant’s numerous ailments were either unproven or unrelated to the accident.
[11] With respect to liability, I have also reached the conclusion that it was open to the jury to find that the appellant had not proved his case. It was uncontested at trial that the parties were involved in a two-vehicle accident on the day in question and that the appellant’s motor vehicle was damaged as a result. However, the trial judge correctly instructed the jury that the mere fact that there was an accident was not in any way determinative of the question of liability. She stated:
The mere fact that an accident has happened and damage has been sustained does not permit you to draw an inference that the accident was caused by somebody’s negligence. Negligence must be proved by the person on whom rests the burden of proof.
[12] In this case, the defence challenged the appellant’s version of events on the basis that it was incredible. It was suggested to him in cross-examination that it would be rather difficult for Pascal’s motor vehicle to be rotating clockwise hitting him in the left front and then counterclockwise hitting him in the left rear as described by the appellant. The appellant explained that these movements had not happened at the same time but, rather, in sequence. He explained further that he himself did not remember the second episode when his motor vehicle was hit in the rear left side and that he had determined that this had happened from questioning the driver of the other motor vehicle after the accident. The appellant was also cross-examined on his testimony in-chief that Pascal had been traveling at 90 kilometers an hour. The appellant responded that Pascal was traveling faster than that, and that he was not traveling but “marauding.”
[13] As mentioned earlier, the investigating officer’s theory of how the accident happened did not support the appellant’s version of events. The officer concluded that Pascal’s motor vehicle came around a left curve, skidded to avoid stopped traffic ahead, swerved out right and was struck by the appellant’s motor vehicle. When asked in cross-examination by the appellant how that theory could account for the damage to the appellant’s motor vehicle, the police officer explained how he thought it may have happened. He stated that when the appellant’s motor vehicle struck the front right side of the other vehicle, it caused the other vehicle to spin out to the left and probably the back right corner of the other vehicle caught the appellant’s vehicle at the back. The police officer further testified that he had concluded from his investigation that Pascal’s vehicle was slightly ahead of the appellant’s vehicle when it skidded into the appellant’s lane. When asked what choices that presented to the appellant, the officer testified that, depending on the traffic conditions, the appellant could have reduced his speed or turned right to avoid the collision. The officer had concluded nonetheless in the “apparent driver action” part of his report that the appellant had been driving properly and that Pascal’s vehicle had lost control. He did not note, however, any other apparent driver action such as “following too closely”, “speed too fast”, or “improper passing.”
[14] The trial judge instructed the jury as follows on the application of the law of negligence to the facts of this case:
Members of the jury, a prudent motorist should drive at such a rate of speed with his vehicle under such control that he is able to stop within the range of his vision. If there is difficulty in seeing because of weather or road conditions, then common sense dictates that he should travel more slowly; in other words, if you can’t see where you are going, don’t go. You should ask yourselves, was Mr. Pascal keeping a proper lookout? If he was keeping the best possible lookout, was he going too fast for the lookout that could be kept in the circumstances? There is a duty on the driver of a motor vehicle to keep a reasonable lookout for possible danger. Where there is nothing to obstruct his vision, it is negligence not to see what is clearly visible.
Here, the speed limit on the road was 90 kilometres per hour, and the evidence of both Mr. Teodorowych and the police officer is that Mr. Pascal was driving within the speed limit. No person should drive their car upon a highway at speeds greater than what is reasonable or prudent having regard to weather, visibility, traffic on and general nature of the condition of the surface of the highway. If upon all the evidence you conclude on a balance of probabilities that Mr. Pascal lost control of his car because of his lack of care and attention or lack of consideration for others which caused the accident, then you will find negligence on his part.
[15] As I stated earlier, it is my view that it was open to the jury, based on their overall assessment of the appellant’s credibility, to reject the appellant’s testimony entirely. While the police officer had not witnessed the accident and, of course, could not provide direct evidence on the way the accident happened, his testimony could nonetheless serve to further undermine the appellant’s evidence and lead the jury to conclude that the appellant was exaggerating his observations of the other driver’s actions to suit his purpose. The police officer’s conclusory observations that the Pascal vehicle had lost control and caused the accident, in and of themselves, could not support an inference of negligence in the absence of a credible underlying basis in the evidence. Based on the totality of the evidence, the jury, acting reasonably and judicially, could well have concluded that the appellant had not met the burden of proving negligence on a balance of probabilities. Hence, it cannot be said that the verdict is unreasonable or perverse. I would not give effect to this ground of appeal.
[16] I see no merit to the remaining grounds of appeal related to the conduct of the trial and the instructions to the jury. The motion to add defendants was properly dismissed on the basis that the limitation period had expired over 13 years before the motion was brought. It was within the trial judge’s discretion to decide whether or not the appellant could use a portable light box to view X-rays during the course of his cross-examination of the respondent’s medical expert. It is apparent from the record that the X-rays could be viewed against the light in the courtroom and that the failure to use this device did not adversely affect either the witness’s ability to give his evidence fully or the appellant’s cross-examination. Finally, the trial judge’s instructions to the jury were correct in law, fair and balanced on the evidence, and free from any of the errors alleged by the appellant.
DISPOSITION
[17] For these reasons, I would conclude that the appellant’s action was properly dismissed with costs. I would dismiss the appeal with costs fixed at $6,000.
RELEASED: May 01, 2002
“Louise Charron J.A.”
“I agree Sharpe J.A.”
“I agree Cronk J.A.”