Johnson et al. v. The Corporation of the Town of Milton [Indexed as: Johnson v. Milton (Town)]

91 O.R. (3d) 190

Court of Appeal for Ontario,

Moldaver, Cronk and Blair JJ.A.

June 4, 2008

Evidence -- Expert evidence -- Trial judge not performing gatekeeping function in permitting plaintiff's accident reconstruction expert to testify about matters on which he had no special training, knowledge or experience -- Defendant suffering no prejudice as trial judge did not rely on that testimony in making his findings on factual causation and in finding defendant liable for accident -- Defendant's appeal being dismissed.

Torts -- Negligence -- Contributory negligence -- Trial judge ignoring or misstating pertinent evidence in concluding that defendant municipality was entirely responsible for bicycle accident which injured plaintiff and killed her husband -- Evidence establishing that plaintiff's husband was not keeping proper lookout and that speed of bicycle was excessive in circumstances -- Defendant also responsible for accident as it likely would not have occurred had defendant posted better warning signs and taken care to ensure that road grades were not excessive -- Liability apportioned 60 per cent to defendant and 40 per cent to plaintiff.

The plaintiff was seriously injured, and her husband was killed, when they lost control of their tandem bicycle while riding downhill towards a single-lane bridge and collided with a rock embankment just north of the bridge. The plaintiff brought an action in negligence against the defendant Town of Milton, claiming that the section of road where the accident occurred was in a state of disrepair and that the defendant's failure to properly maintain the road caused or materially contributed to the accident. The defendant took the position that the plaintiff and her husband had been travelling at an excessive rate of speed and that the plaintiff's husband was not keeping a proper lookout. The trial judge found that the defendant was entirely responsible for the accident. The defendant appealed.

Held, the appeal should be allowed in part.

The trial judge permitted an expert in accident reconstruction who testified on behalf of the plaintiff to testify at large about a number of subjects and to give his opinion as to how the accident occurred. In the circumstances of this case, it was unnecessary to decide whether the "let-it- all-in" approach taken by the trial judge constituted reversible error. However, trial judges should do their best to perform the gatekeeper function they have been assigned, and should not permit expert witnesses to give opinion evidence on matters for which they possess no special skill, knowledge or training, nor on matters that are commonplace, for which no special skill, knowledge or training is required. In this case, the expert should not have been permitted to testify about matters on which he had no special training, knowledge or experience. However, the defendant was not prejudiced by the trial judge's approach to admissibility, as the trial judge did not rely on the inappropriate evidence in reaching his conclusions on factual causation and in finding the defendant liable.

The critical findings of fact that led the trial judge to conclude that the plaintiff and her husband were not negligent in the operation of their bicycle were not borne out by the evidence. In arriving at those findings, the trial judge either ignored or misstated pertinent evidence. The evidence established that the plaintiff's husband knew or should have known of the embankment and the sharp right turn just to the north of the bridge or, alternatively, if he did not, it was because he was not keeping a proper lookout. The evidence also strongly supported a finding that the speed of the bicycle was excessive in the circumstances. It was also clear that the accident would likely not have occurred had the defendant posted better warning signs and taken care to ensure, as far as possible, that the road grades were not excessive and that there were no undulations in the steepest part of the road that could potentially cause a loss of control due to a "speed wobble". In the circumstances, given the location of the undulations on the steepest part of the slope and the fact that they could not be seen or anticipated, they constituted a trap for the unwary. They were a substantial contributing factor to the plaintiff's husband's loss of control of the bicycle and the ensuing accident. The defendant should bear 60 per cent of the liability and the plaintiff 40 per cent.

APPEAL by the defendant from a judgment of G.E. Taylor J., [2006] O.J. No. 3232, 25 M.P.L.R. (4th) 17 (S.C.J.) finding liability in a personal injury action.

Cases referred to Housen v. Nikolaisen, [2002] S.C.J. No. 31, [2002] 2 S.C.R. 235, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Mero v. Waterloo (Regional Municipality), 1992 CanLII 7711 (ON CA), [1992] O.J. No. 284, 7 O.R. (3d) 102, 89 D.L.R. (4th) 533, 54 O.A.C. 334, 10 C.C.L.T. (2d) 197, 6 C.P.C. (3d) 250, 8 M.P.L.R. (2d) 1, 37 M.V.R. (2d) 56, 31 A.C.W.S. (3d) 1065; Partridge v. Rural Municipality of Langenburg, 1929 CanLII 220 (SK CA), [1929] S.J. No. 16, [1929] 3 W.W.R. 555, [1930] 1 D.L.R. 939 (C.A.) Statutes referred to Family Law Act, R.S.O. 1990, c. F.3

Geoffrey D.E. Adair, Q.C., for appellant. Paul J. Pape, for respondents.

The judgment of the court was delivered by

MOLDAVER J.A.: -- Introduction

[1] This appeal arises out of an unfortunate accident that claimed the life of Robert Johnson and left his wife Nelly Johnson badly injured.

[2] On the afternoon of September 13, 1992, the Johnsons were riding their tandem bicycle along the Fourth Line in the Town of Oakville. As they proceeded downhill towards a single-lane bridge, they lost control of their bicycle and eventually collided with a rock embankment located just north of the bridge. Mr. Johnson died from the injuries he sustained on impact. Mrs. Johnson survived but suffered severe injuries.

[3] Mrs. Johnson brought an action in negligence against the Corporation of the Town of Oakville [See Note 1 below] on her own behalf and on behalf of her infant children under the Family Law Act, R.S.O. 1990, c. F.3, claiming that the section of road where the accident occurred was in a state of disrepair and that Oakville's failure to properly maintain the road caused or materially contributed to the accident.

[4] Oakville denied liability, claiming that Mr. Johnson was entirely responsible for the accident. Oakville's position was that the Johnsons had ridden their bicycle downhill at a rate of speed that was excessive in the circumstances and that Mr. Johnson had not kept a proper lookout. Had Mr. Johnson been riding the bicycle safely and responsibly, he would have kept it under control and not collided with the embankment. Oakville maintained that the road condition played no part in the accident and, in any event, the road was in a proper state of repair.

[5] The trial of this matter proceeded for 17 days before Taylor J. in the Superior Court of Justice. On July 28, 2006, the trial judge delivered extensive reasons for judgment in which he determined that Oakville was entirely responsible for the accident and that the Johnsons were blameless. Oakville was ordered to pay substantial damages to Mrs. Johnson and the children.

[6] Oakville does not challenge the award of damages. It appeals solely from the trial judge's finding of liability and seeks to have the judgment overturned and the action against it dismissed. In the alternative, it seeks a new trial.

[7] Oakville's primary ground of appeal relates to the evidence of Mr. Zygmunt Gorski, an expert in accident reconstruction who testified on behalf of the respondents. Oakville submits that the trial judge did not perform his gatekeeper function at the qualification stage and failed to delineate the area or areas of expertise upon which Mr. Gorski could properly give opinion evidence. In light of that error, Oakville submits that the trial judge wrongly permitted Mr. Gorski to give crucial opinions on contentious issues about which he had no special skill, knowledge or training and upon which the trial judge relied in finding Oakville liable. According to Oakville, absent Mr. Gorski's impermissible opinion evidence, there was no case to meet. Hence, it submits that the action should be dismissed in its entirety, or alternatively, that a new trial should be ordered.

[8] Oakville's secondary ground of appeal centres on the issue of contributory negligence. Oakville submits that in finding Mr. Johnson blameless, the trial judge misconstrued or ignored pertinent evidence which showed that Mr. Johnson was riding his bicycle too quickly in the circumstances and was not keeping a proper lookout. Without conceding liability for the accident, Oakville submits that if it is to be held liable, liability should be apportioned on a 75:25 ratio with Mr. Johnson bearing the larger share.

[9] For the reasons that follow, I would not give effect to the primary ground of appeal. I would, however, allow the appeal on the secondary ground and substitute a finding that Mr. Johnson was negligent in the operation of the bicycle and that his negligence contributed to the accident. I would apportion liability on a 60:40 ratio, with Oakville bearing the larger share. Background Facts

The Fourth Line Road

[10] On the afternoon of September 13, 1992, Robert Johnson, age 51, and his wife Nelly, age 30, were riding their tandem bicycle along the Fourth Line in the Town of Oakville. The Fourth Line is a secondary scenic road, with a hard "tar and chip" surface. The section of the Fourth Line where the accident occurred runs in a north-south direction between Burnamthorpe Road and Lower Base Line. Approximately mid-way between those two intersections, the Fourth Line crosses over Sixteen Mile Creek via a single-lane bridge known as the Glenorchey Bridge. [See Note 2 below]

[11] The Johnsons were travelling northbound along the Fourth Line at the time of the accident. The configuration of the road leading up to and just beyond the Glenorchey Bridge, the signage and the physical state of the road where the accident occurred are significant to this case. The trial judge addressed each at some length in his reasons for judgment. (i) Configuration of the road

[12] Commencing with the configuration of the road, the trial judge noted that 283 metres south of the bridge, the road begins descending to the creek with the downslope "increas[ing] in severity as the bottom of the valley is approached". At approximately 60 metres south of the bridge, the downslope reaches its maximum grade of 18 per cent. It levels out somewhat at 40 metres south of the bridge, although it remains at a grade of between 6 and 15 per cent up to the bridge.

[13] The bridge itself is relatively level. It consists of one lane and measures 12.2 metres in length by 4 metres in width.

[14] Immediately north of the north end of the bridge, the road begins to ascend quite sharply, "with an upslope of approximately 10 percent". There is a rock embankment 20 metres north of the north end of the bridge. Immediately before the embankment, the road veers very sharply to the right, at close to 90 degrees. Drivers who fail to negotiate this sharp right- hand turn will collide with the embankment. (ii) Signage

[15] The following signs would have been visible to motorists and cyclists traveling north on the Fourth Line from Burnamthorpe Road to the embankment on the day of the accident:

(1) A sign posting the maximum speed limit as 60 kilometres per hour immediately north of the Burnamthorpe Road/Fourth Line intersection;

(2) A sign posting the maximum speed limit as 50 kilometres per hour 560 metres south of the bridge;

(3) A sign reading "Winding Road Ahead" 410 metres south of the bridge;

(4) A sign reading "Single Lane Ahead" 380 metres south of the bridge;

(5) A sign reading "Narrow Road" 329 metres south of the bridge;

(6) A sign indicating "Curve" at an unspecified distance south of the bridge; [See Note 3 below]

(7) A sign showing a car going down a steep grade 285 metres south of the bridge;

(8) A sign indicating "One Lane Bridge" 42 metres south of the bridge; and

(9) A checkerboard sign, measuring 30 inches by 30 inches, located on the embankment wall, with an arrow in the middle denoting a sharp right-hand turn.

[16] The trial judge noted [at para. 14] that "there was no sign south of the Glenorchey Bridge warning motorists or cyclists . . . about the sharp right hand turn to be negotiated immediately north of the bridge", nor was there a companion sign advising motorists or cyclists to reduce their speed from the posted speed limit of 50 kilometres per hour to something considerably lower at which that turn could safely be negotiated.

[17] Pausing here, I note that irrespective of the signage, the accident occurred in broad daylight and the embankment was not hidden from view. Constable Michalski, a police officer who assisted with bicycle tests at the scene two days after the accident, testified that where the road begins its downward slope 283 metres south of the bridge, a cyclist would have a "perfect view" of the bridge and the embankment. Other evidence, including evidence from the respondent's expert Mr. Gorski, established that a cyclist travelling northbound would have a clear view of the embankment for a distance of at least 155 metres and possibly as much as 180 metres south of the embankment. (iii) Physical state of the road

[18] The trial judge considered the condition of the road surface in the area of the accident and found as a fact that from a point 60 metres south of the south end of the bridge, where the road commenced its steepest decline of 18 per cent, to the bridge itself, the road surface was marked by "unevenness or roughness". Constable Michalski explained that the unevenness was due to slight undulations in the road. Other witnesses referred to these undulations as "wash boarding". Regardless of the precise term used, the trial judge's finding that the road was uneven and rough for a distance of 60 metres south of the south end of the bridge is amply supported by the evidence.

Other evidence of significance (i) Eyewitness testimony of Frederick Marshall

[19] The only eyewitness to the accident was Frederick Marshall. He had been riding his motorcycle and was stopped at the bridge having a cigarette when he suddenly heard people on the hill shouting "woo hoo" or "yahoo", as if they were having fun. Moments later, he saw a couple coming down the hill on a tandem bicycle. When he first observed them, they were approximately 150 feet (45 metres) south of the bridge.

[20] Mr. Marshall's first thought when he saw the couple was that they were "going way too fast". When asked what the lead rider was doing when he first observed him, Mr. Marshall stated that "his head was down . . . he was looking more ahead of the bicycle than in the distance" and he was "alternately pedaling and coasting". The bicycle appeared to be "upright and stable" and "there didn't seem to be any lack of control at that point". Nonetheless, given the speed that the bicycle was travelling, Mr. Marshall thought "how are they going to stop?"

[21] When the bicycle was about 10 to 15 feet (3 to 4.5 metres) south of the south end of the bridge, Mr. Marshall heard the lead cyclist (Mr. Johnson) say "Oh, shit" and saw him "appl[y] the brakes . . . quite suddenly and hard and the bike began skidding".

[22] Mr. Marshall then saw the bicycle continue across the bridge, skidding in a straight line. Its rear wheel remained locked and Mr. Marshall believed that it was now "out of control". He estimated the speed of the bicycle as it crossed the bridge to be more than 40 kilometres per hour. The trial judge accepted that figure and it accords with the estimate of speed given by the respondents' expert Mr. Gorski.

[23] According to Mr. Marshall, just as the bicycle left the north end of the bridge, it hit a "fairly abrupt rise" in the pavement and it "rose into the air just a few inches". Thereafter, he believed that the bicycle remained airborne until it eventually struck the embankment sideways at a height of approximately 3 feet (0.9 metres) up the wall.

[24] The trial judge found Mr. Marshall to be "a credible witness". The only part of Mr. Marshall's evidence that he rejected related to the bicycle being 3 feet in the air when it struck the embankment. The trial judge concluded that Mr. Marshall must have been mistaken on that aspect of his evidence because there were scrape marks on the road leading to the embankment which could only have been made by the bicycle skidding along the road into the embankment. (ii) Testimony of Nelly Johnson

[25] Mrs. Johnson had little recollection of the accident. She did remember that as she and her husband were travelling down the hill, she felt that he was going too fast and she told him to "try to stop", but he did not respond. Although she could not say how the accident happened, Mrs. Johnson did recall "something vibrating" as they "were downhill" but she did not know what had caused the vibration. She confirmed that earlier that day, she and her husband had driven along the stretch of road where the accident occurred in their car on two occasions -- once going northbound and once returning southbound. (iii) Testimony of Constable Michalski

[26] As mentioned, Constable Michalski assisted in the investigation of the accident. He was a member of the Halton Regional Police force and he had extensive training in bicycle patrol. The trial judge described him as "an expert cyclist" but refused to rely on any opinions he expressed "in the field of bicycle riding, training and safety" because Constable Michalski was not formally qualified as an expert witness.

[27] In the trial judge's summary of Constable Michalski's evidence, he noted that the constable had performed a number of test runs, using his own "police issue hybrid bicycle along the Fourth Line in an attempt to reconstruct the route ridden" by the Johnsons. Salient to the trial judge's findings on causation were Constable Michalski's observations of a "speed wobble" he encountered approximately 60 metres south of the south end of the bridge. The trial judge outlined this aspect of Constable Michalski's evidence as follows [at para. 53]:

At a point approximately 60 metres south of the south end of the bridge while traveling at a speed of 51 kilometres per hour, Constable Michalski encountered a "speed wobble". Constable Michalski said that the speed wobble was caused by the unevenness or roughness of the road surface. He almost lost control of his bicycle. The speed wobble continued almost to the point where the bicycle was brought to stop [just before the south end of the bridge]. On other runs down the hill, Constable Michalski determined that the highest speed at which he could travel without encountering the speed wobble was 40 kilometres per hour.

[28] Sergeant MacIntosh, the officer in charge of the investigation, monitored the test runs performed by Constable Michalski. The trial judge found that when Constable Michalski "encountered the speed wobble", Sergeant MacIntosh "did not observe [him] almost lose control of his bicycle. He had to be told about it after the fact."

[29] Finally, Constable Michalski testified that based on his tests, the maximum speed at which he was able to safely negotiate the sharp right-hand turn north of the north end of the bridge just before the embankment was 28 kilometres per hour. (iv) Testimony of Zygmunt Gorski

[30] Mr. Gorski was called by the respondents and qualified as an expert in the field of accident reconstruction. Over the objection of Oakville, he was permitted to testify at large about a number of subjects, including the topography of the road; the fact that it exceeded maximum grade specifications in road-design manuals; the inadequate signage along the road; the nature and type of signs that should have been present; and the effect that bumps have on a bicycle and on a cyclist's ability to maintain control of the bicycle.

[31] Mr. Gorski was also permitted to give his opinion as to how the accident had occurred. The trial judge summarized his opinion as follows [at para. 69]:

Mr. Gorski's final conclusion was that Robert Johnson, as lead cyclist, had many factors to deal with as he was traveling along the Fourth Line on the day in question. Those factors included the speed of the bicycle caused by gravity, the unevenness of the road surface, the changing slope of the road, a sudden realization of the sharp right hand turn and excessive braking. Taking all factors into consideration, it was Z[y]gmunt Gorski's opinion that the reason why the Johnson bicycle struck the rock embankment was an inability, due to the above factors, to stop the bicycle as opposed to excessive speed.

The trial judge's findings and conclusions (i) How the accident occurred

[32] The trial judge's findings and conclusions as to how the accident occurred are found at paras. 71 and 72 of his reasons:

As Robert and Nelly Johnson began the descent on the Fourth Line towards the Glenorchey Bridge, the tandem bicycle began to pick up speed. Initially this was no cause for concern. Having reached a speed of approximately 45 kilometres per hour, they encountered wash boarding on the road at approximately 60 metres south of the south end of the bridge. This is the general area where the Johnsons were first observed by Frederick Marshall. This is the same area where Constable Michalski encountered the speed wobble. It is to be noted that . . . Sergeant Mac[I]ntosh did not observe Constable Michalski almost lose control of his bicycle. He had to be told about it after the fact. It is therefore not surprising to me that Frederick Marshall does not describe the tandem bicycle as being in a speed wobble or out of control. Frederick Marshall does say that Robert Johnson was looking down in the direction of the road a few feet in front of the front wheel. This would be consistent with someone attempting to deal with a speed wobble.

Robert Johnson was not prepared to deal with the sharp right hand turn just to the north of the bridge. His attention was focused on regaining control of the bicycle. There was no reason for him to be concerned about the sharp right hand turn because there had been no warning given to him in advance of the bridge. When he looked up, he saw the checkerboard sign with the right pointing arrow. This is when he first became aware that he would be required to make a sharp right hand turn just to the north of the bridge. It must be remembered that just south of the bridge, a cyclist would be required to make a slight line adjustment because of the alignment of the road and Glenorchey Bridge. As they were about to leave the north end of the bridge, the bicycle hit a bump and went over on its side. The bicycle and the Johnsons struck the rock embankment with considerable force and with tragic results.

(ii) State of the road and its relationship to the accident

[33] The trial judge recognized that to succeed in this action, the respondents bore the burden of establishing on a balance of probabilities that the road was in a "state of disrepair" and that "the non-repair of the roadway was the cause of the accident in question".

[34] The trial judge also recognized [at para. 77], in accordance with this court's decision in Mero v. Waterloo (Regional Municipality) (1992), 1992 CanLII 7711 (ON CA), 7 O.R. (3d) 102, [1992] O.J. No. 284 (C.A.), that a condition of non-repair can involve "any aspect of the road and its environs", including "not only the surface of the road but also the alignment of the road, obstacles on the side of the road and signage".

[35] Finally, the trial judge correctly identified the standard of care a municipality must meet in fulfilling its duty to keep the road in a state of proper repair, namely, "that the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety": see Partridge v. Rural Municipality of Langenburg, 1929 CanLII 220 (SK CA), [1929] S.J. No. 16, [1929] 3 W.W.R. 555 (C.A.), at pp. 558-59 W.W.R., quoted with approval in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, at para. 38.

[36] Having identified the governing legal principles, the trial judge provided reasons for concluding that the road in question was in a state of disrepair and that the condition of non-repair was a material cause of the accident [at para. 80]:

My conclusion that the Fourth Line and the Glenorchey Bridge were in a state of non-repair arises out of a combination of a number of factors. The section of the Fourth Line immediately to the south of the Glenorchey Bridge had a slope of approximately 18% at its maximum. The slope is in excess of what is generally recommended. The posted speed limit was 50 kilometres per hour. The evidence is that the maximum speed at which a bicycle could negotiate the sharp right hand turn immediately to the north of the Glenorchey Bridge was 28 kilometres per hour. Nevertheless, there was no warning sign in advance of the bridge indicating the sharp right hand turn nor was there any speed advisory sign telling motorists or cyclists to reduce their speed to permit successful negotiation of the sharp right hand turn. There was a condition on the surface of the road which caused bicycles when traveling northbound down the slope to lose control. It is reasonable to conclude that wash boarding is a condition that occurs on tar and chip roads. It is reasonable to conclude that wash boarding on a road with a down slope of as much as 18% will cause vehicles and in particular, bicycles to lose control. Immediately to the north of the Glenorchey Bridge is a significant increase in elevation. It would be apparent to anyone that a failure to negotiate to the sharp right hand turn to the north of the Glenorchey Bridge could result in disastrous consequences because of the unforgiving rock embankment just to the north of the bridge. In addition, the alignment of the road and the Glenorchey bridge was such as to require a slight turn to the left and then to the right in order to traverse the bridge.

[37] The trial judge further found that Oakville knew of or was willfully blind to the condition of the road and that it failed to meet "the expected standard with respect to signage", particularly as regards the failure to post a sign warning drivers of the speed at which the sharp right-hand turn north of the bridge could safely be negotiated. (iii) Contributory negligence

[38] On the issue of contributory negligence, Oakville argued that Mr. Johnson bore responsibility for the accident because he was travelling at an excessive rate of speed and was not keeping a proper lookout.

[39] The trial judge rejected this submission for the following reasons [at paras. 92-94]:

I am unable to conclude that either Robert or Nell[y] Johnson were negligent in the operation of the tandem bicycle. They were traveling within the posted speed limit. They had been given no advance warning of either the sharp elevation change to the north of the Glenorchey Bridge or the sharp right hand turn that could only be negotiated at a speed far below the posted limit.

As Z[y]gmunt Gorski testified, traveling the road earlier in the day in an automobile could actually mask of the danger to be faced by traveling the Fourth Line on a bicycle. Because of engine drag, an automobile would not be affected by gravity to the same degree as a bicycle. Also, the evenness of the road surface, or washboarding, would not be noticeable, or as noticeable, to the occupant of an automobile equipped with shock absorbers.

I have considered the evidence of Frederick Marshall about the exclamation "woo hoo" or "yahoo" apparently made by one of the Johnson's, but I am not prepared to conclude from that evidence alone that the Johnsons were traveling too fast for the road conditions or were not paying careful attention. Analysis

[40] Against that backdrop, I turn to the issues raised on appeal.

Issue one: Mr. Gorski's qualifications and testimony

[41] Mr. Gorski was called by the respondents as an expert in the field of accident reconstruction. On a voir dire to determine his qualifications, the respondents proposed that Mr. Gorski be qualified at large as an accident reconstructionist and that he be permitted to give opinion evidence generally about how the accident occurred and the various factors that caused or contributed to it.

[42] Oakville resisted that approach and sought to delineate the precise areas for which Mr. Gorski had special training, experience or knowledge with a view to limiting the breadth and scope of his opinion evidence. Oakville pointed out that Mr. Gorski's work history showed that his principal field of expertise was limited to vehicle occupant restraint systems and their effectiveness in preventing injuries. While Mr. Gorski held himself out as an accident reconstructionist and had engaged in that line of work as a self-employed consultant since 1995, Oakville argued that that did not mean he was qualified to give opinion evidence about such things as road design, pavement deterioration or placement of highway signs. It noted that Mr. Gorski had never been employed by a municipality or road authority and he had no hands-on experience with road maintenance. Similarly, Oakville argued that Mr. Gorski was not qualified to give opinion evidence about the impact of road conditions on bicycles or the manner in which cyclists were likely to respond to road conditions. Apart from performing some braking tests using a tandem bicycle, Mr. Gorski acknowledged that he had no special training or expertise with tandem bicycles or indeed any bicycles.

[43] At the conclusion of the voir dire, the trial judge ruled that:

I should hear it all and if there are areas where [Oakville's counsel] feels that he has strayed beyond the bounds of his expertise, it would seem to me that that can be handled quite effectively and perhaps in a way that would be very harmful to the [respondents] by dealing with those issues in the course of cross-examination.

[44] The trial judge continued by citing two examples -- one relating to bridge design and alignment, the other to road design and sign placement -- in which he was satisfied that Mr. Gorski had:

. . . sufficient expertise, sufficient experience, albeit gained in the field and gained during the course of his employment, to allow him to express an opinion, an opinion which, in my view, is beyond the normal experience of certainly this judge or a jury, so I am going to allow you to proceed.

[45] In response to a concern raised by counsel for Oakville that she not be prejudiced at a future date for failing to object each time she felt Mr. Gorski crossed the line, the trial judge assured her that there was no problem and that "the deficiencies that [she had] raised now go to the issue of weight". Analysis

[46] For reasons that will become apparent, I need not finally decide whether the "let-it-all-in" approach taken by the trial judge constituted reversible error. However, some general observations are in order.

[47] The trial in this case was conducted by a judge alone. As such, I believe that a somewhat more flexible approach to admissibility can be countenanced than would be the case if the matter was tried by a jury. That said, my comments should not be taken as approving an "anything goes" approach to the admissibility of expert evidence when a trial is conducted by a judge alone -- far from it. At very least, as I shall attempt to explain, such an approach is inadvisable.

[48] Recognizing, as I do, that expert evidence may not fit neatly into watertight compartments in every case and that shades of grey will inevitably exist, trial judges should do their best to perform the gatekeeper function they have been assigned, if for no other reason than trial economy. Permitting experts to give evidence on matters that are commonplace or for which they have no special skill, knowledge or training wastes both time and resources and adds stress to an already overburdened justice system. It is also legally incorrect.

[49] Apart from trial economy, trial judges who fail to properly perform their gatekeeper function run the risk of having their decision-making function usurped or severely eroded by "expert generalists" who profess to know something about everything and who are only too willing to provide the court with a ready-made solution for any contentious issue that might exist. The problem with such witnesses is that while they appear knowledgeable and generally come across well, upon closer scrutiny, their opinions may well turn out to be little more than concoctions consisting of guesswork, speculation, commonplace information and junk science, with a hint of valid science thrown in for good measure.

[50] Courts must be vigilant to guard against such impermissible evidence. It is trite law that expert witnesses should not give opinion evidence on matters for which they possess no special skill, knowledge or training, nor on matters that are commonplace, for which no special skill, knowledge or training is required.

[51] Thus, in the present case, Mr. Gorski should not have been permitted to testify about the effect of rough or uneven road surfaces on tandem or other bicycles, nor about the way in which cyclists are likely to respond to such adverse road conditions. The reason is simple -- he had no special training, knowledge or experience in either of these matters. Similarly, he should not have been permitted to testify about road design, pavement deterioration or placement of road signs for the same reason.

[52] Be that as it may, I am satisfied that in the particular circumstances of this case, the "let-it-all-in" approach to admissibility taken by the trial judge did not occasion any prejudice to Oakville.

[53] Oakville's chief complaint about Mr. Gorski is that he offered opinion evidence on two critical matters that were beyond the realm of his expertise but which the trial judge accepted in finding Oakville liable. The two opinions are identified by Oakville as follows:

(1) The accident was caused not by excessive speed on the part of the Johnson bicycle but rather by lack of an ability to stop due to the difficulty of applying heavy braking in the bumps on the roadway.

(2) That Mr. Johnson, upon encountering bumps in the roadway, would have been looking down at the bumps with his attention drawn away from the other problems -- the narrow bridge and beyond that the escarpment.

[54] The respondents reply to this submission as follows:

(1) The trial judge came to his own conclusion on the issue of factual causation and did not adopt Mr. Gorski's opinion; and

(2) to the extent that the trial judge took into account in his factual causation analysis the fact that Mr. Johnson would have been looking down as he travelled over the rough and uneven roadway and not paying attention to the dangers that lay ahead, that finding was supported by the evidence of the eyewitness, Mr. Marshall, and did not depend on Mr. Gorski's opinion.

[55] The reasons of the trial judge make it clear that in assessing the issue of factual causation, he did not rely on Mr. Gorski's opinion that the accident occurred because Mr. Johnson had "difficulty . . . applying heavy braking in the bumps on the roadway". Rather, as explained in para. 72 of his reasons, the trial judge found that Mr. Johnson was "focused on regaining control of the bicycle" as he crossed the bridge. According to the trial judge, the accident was precipitated not by Mr. Johnson's inability to brake, but by the bump or rise he encountered as he left the north end of the bridge:

As they were about to leave the north end of the bridge, the bicycle hit a bump and went over on its side. The bicycle and the Johnsons struck the rock embankment with considerable force and with tragic results.

[56] I agree with the respondents that the trial judge's findings on the issue of factual causation differed considerably from the opinion expressed by Mr. Gorski. As such, Oakville cannot have been prejudiced by Mr. Gorski's unadopted opinion.

[57] As for the second opinion of concern, the trial judge did not rely on Mr. Gorski's opinion that Mr. Johnson would have been "look[ing] down at the bumps" in finding that Mr. Johnson was looking down as the bicycle travelled over the rough and uneven section of the road extending 60 metres south of the south end of the bridge. Rather, he relied on Mr. Marshall's evidence that Mr. Johnson was in fact looking down at that time. That evidence is unassailable and it answers Oakville's contention that the trial judge relied on Mr. Gorski's impermissible opinion in finding Oakville liable.

[58] In sum, to the extent that Mr. Gorski may have given impermissible opinion evidence, Oakville suffered no apparent prejudice. Accordingly, I would not give effect to Oakville's primary ground of appeal.

Issue two: Contributory negligence

[59] In assessing factual causation, the trial judge [at para. 72] placed considerable emphasis on the fact that Mr. Johnson "was not prepared to deal with the sharp right hand turn just to the north of the bridge". According to the trial judge, as Mr. Johnson neared and then crossed the bridge, "[h] is attention was focused on regaining control of the bicycle". He was not "concerned about the sharp right hand turn because there had been no warning given to him in advance of the bridge". It was only "[w]hen he looked up [and] saw the checkerboard sign with the right pointing arrow" that "he first became aware that he would be required to make a sharp right hand turn just to the north of the bridge".

[60] The trial judge returned to this theme when he addressed the issue of contributory negligence. In concluding that the Johnsons were not negligent in the operation of their tandem bicycle, he found [at para. 92] that they "had been given no advance warning of either the sharp elevation change to the north of the Glenorchey Bridge or the sharp right hand turn that could only be negotiated at a speed far below the posted limit".

[61] The trial judge discounted Oakville's contention that the Johnsons were travelling too fast for the road conditions and were not keeping a proper lookout. While he accepted Mr. Marshall's evidence that one of the Johnsons shouted "woo hoo" or "yahoo" as the bicycle descended the hill, the trial judge stated [at para. 94] that he was "not prepared to conclude from that evidence alone that the Johnsons were traveling too fast for the road conditions or were not paying careful attention" (emphasis added). Analysis

[62] With respect, the critical findings that led the trial judge to conclude that the Johnsons were not negligent in the operation of their bicycle are not borne out by the evidence. In arriving at those findings, the trial judge either ignored or misstated pertinent evidence. Had he properly construed the evidence, I am satisfied that on this record, he would have found that Mr. Johnson was operating the bicycle in a negligent manner and that his negligence materially contributed to the accident. In particular, the evidence establishes that Mr. Johnson was travelling too fast for the road conditions and was not keeping a proper lookout.

[63] Commencing with Mr. Johnson's awareness of the sharp right-hand turn just to the north of the bridge, Constable Michalski testified that from the top of the slope, he would have had a clear view of the valley, the bridge, the embankment and the sharp right-hand turn. He further testified from his observations that a person travelling down the slope would be able to see the embankment from a distance of 180 metres. Mr. Gorski, the respondents' expert, gave similar evidence.

[64] It follows that if Mr. Johnson had been keeping a proper lookout, he would have seen the embankment and recognized the danger it presented long before he reached the bridge and began to cross it.

[65] Moreover, Mr. Johnson knew or should have known of the embankment and the sharp right-hand turn because he had observed them only hours earlier that day when he and his wife travelled the road by car, going both north and south. The trial judge did not take that evidence into account in arriving at his finding that Mr. Johnson would not have been aware of the embankment and the sharp right-hand turn until moments before the collision. [See Note 4 below] He erred in failing to do so, as that evidence was highly significant.

[66] Taken as a whole, the evidence clearly establishes that Mr. Johnson knew or should have known of the embankment and the sharp right-hand turn long before he arrived at the bridge. Alternatively, if he did not, it was because he was not keeping a proper lookout.

[67] As for the speed of the Johnson bicycle and whether it was excessive in the circumstances, once again, the evidence strongly supports such a finding. In this regard, the trial judge erred in suggesting that the exclamation of "woo hoo" or "yahoo" was the only evidence capable of supporting a finding "that the Johnsons were traveling too fast for the road conditions". With respect, the evidence was much richer than that.

[68] Mrs. Johnson testified that she herself thought her husband was going down the hill too fast and that she told him to "try to stop". The trial judge referred to this aspect of Mrs. Johnson's evidence in his summary of her testimony but he failed to consider it when addressing the issue of excessive speed and contributory negligence.

[69] Similarly, the trial judge failed to consider much of Mr. Marshall's evidence on the subject. Mr. Marshall, it will be recalled, testified that when he first saw the Johnsons coming down the hill, he thought they were "going way too fast". He also testified that the lead rider had his head down and he was "alternately pedaling and coasting". That hardly fits the description of someone in trouble, experiencing a loss of control. Rather, it suggests someone attempting to maintain or increase speed -- a speed that in this case was already excessive in the circumstances. However, the trial judge made no mention of this evidence in his assessment of the speed of the bicycle or the manner in which it was being driven. Respectfully, he erred in failing to do so.

[70] The trial judge also erred in failing to consider other factors that were pertinent to the issue of speed and Mr. Johnson's failure to keep a proper lookout. The Johnsons, as found by the trial judge, were not experienced cyclists. On the day in question, they were travelling down a secondary road that was relatively unfamiliar to them. Common sense would suggest that such a road was unlikely to be in pristine condition, without bumps or rough or uneven sections -- hence, the need for caution. Common sense aside, if the Johnsons were paying attention, it would have been obvious to them as they started their descent into the valley that they were heading down a very steep hill, at the bottom of which was a single- lane bridge with an embankment in the background.

[71] The picture that emerges is one of obvious danger -- two inexperienced cyclists travelling down a very steep slope on an unfamiliar secondary road with a single-lane bridge and an embankment in the near distance. The situation clearly called for extreme caution. Regrettably, Mr. Johnson drove the bicycle down the hill at an excessive rate of speed while not keeping a proper lookout. He was negligent in doing so and his negligence materially contributed to the accident. Had he been travelling under 40 kilometres per hour, he would not have experienced "speed wobble" before reaching the bridge and there would have been no reason for him to lose control of the bicycle.

[72] However, it is also clear that the accident would likely not have occurred had Oakville posted better warning signs and taken care to ensure, as far as possible, that the road grades were not excessive and that there were no undulations in the steepest part of the road that could potentially cause a loss of control due to "speed wobble". In the circumstances, given the location of the undulations on the steepest part of the slope and the fact that they could not be seen or anticipated, they constituted a trap for the unwary. In my view, they were a substantial contributing factor to Mr. Johnson's loss of control of the bicycle and the ensuing accident.

[73] Given my conclusion that Oakville's failure to keep the road in proper repair was a substantial contributing factor to the accident, I believe that Oakville should bear 60 per cent of the liability and the respondents 40 per cent. Conclusion

[74] For these reasons, I would allow the appeal in part, apportion liability as indicated and vary the judgment below accordingly. In all other respects, I would dismiss the appeal. Costs

[75] The parties have had mixed success on the appeal. If they cannot agree on costs, they may file written submissions, not exceeding five pages double-spaced, within 30 days of the release of these reasons.

Appeal allowed in part.

Notes

Note 1: The action against the other two named defendants was dismissed prior to trial.

Note 2: The section of the Fourth Line in question has since been closed due to construction of Highway 407.

Note 3: This sign, as found by the trial judge, indicated a gentle right-hand turn and was not meant as a warning "about the sharp right hand turn" immediately before the embankment.

Note 4: The trial judge did mention [at para. 93] the earlier trip, but only to show that because of engine drag, an automobile going down the slope "would not be affected by gravity to the same degree as a bicycle".