COBOURG COURT FILE NO.: CV-51/11 A1 DATE: 20190228

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Estate of Amy Morton, deceased, by her Litigation Administrator, Bruce Morton, Bruce Morton, personally, Jane Morton, Elsie Morton, Hetty Voskamp, Brian Voskamp, Sara Morton Haynes, Dallin Morton, Shaylynn Morton and Jordanna Morton, minors by their Litigation Guardian, Bruce Morton Plaintiffs

– and –

Jayson Atkinson and Pierre Benedetti Defendants

– and –

Township of Cramahe Third Party

Counsel:

C. Morrison and S. Quesnelle, for the Defendants W. Menninga and K. Cooke, for the Third Party

HEARD: November 27 to 30, 2017, June 28, 2018, and August 17, 2018

Justice S. J. Woodley

PART I – OVERVIEW

[ 1 ] This action arises out of a fatal motor vehicle accident that occurred when a tractor and a passenger van collided on a rural road located in the Township of Cramahe, in the County of Northumberland.

[ 2 ] The accident occurred on June 2, 2016, at 9:35 p.m. On that night, Jayson Atkinson was driving a 14-foot-wide John Deere tractor westbound, after dark, on an 18-foot-wide, undivided, rural road known as Telephone Road. Jayson was towing an implement, known as a Salford disc, behind his tractor.

[ 3 ] At this same time, Amy Morton was driving her Dodge Caravan eastbound on Telephone Road, travelling to her parents’ home to pick up her three minor children.

[ 4 ] Just prior to the accident, Jayson’s tractor began the ascent of a hill as Amy’s van had crested that same hill and began the slight down grade in the opposite direction.

[ 5 ] Amy’s van had its headlights on and both were operational.

[ 6 ] Jayson’s tractor had its “road lights” on which included two headlights, five white lights across the front of the engine, flashers on the upper cab, a hazard beacon over-head and two amber marker lights, which extended out from each side of the tractor behind the front tires to mark the width of the tractor. On the night of the accident, the amber marker light over the roadside dual tractor wheels was operational; however, the amber marker light over the shoulder-side dual tractor wheels was not operational.

[ 7 ] When the two vehicles reached their pass-by points, the tractor was approximately 12 inches over the center of the road. Amy’s vehicle, although entirely within her lane, was close to the center of the road.

[ 8 ] At the pass-by point, the vehicles collided. On impact, the roadside dual tractor wheels gripped and crushed a portion of the driver’s side of Amy’s van.

[ 9 ] Amy died the following day at Sunnybrook Hospital as a result of injuries sustained in the collision. Amy was survived by her three minor children.

Litigation History

[ 10 ] Amy’s estate commenced litigation against Jayson Atkinson, as operator of the tractor, and Pierre Benedetti, as owner of the tractor, for damages arising out of the accident (the “Main Action”).

[ 11 ] In response to the Main Action, Jayson and Pierre (the “Defendants”) commenced a Third Party Claim against the Township of Cramahe (“Cramahe”) for contribution and indemnity.

[ 12 ] The Main Action between Amy’s estate and the Defendants resolved. The sole remaining issue is whether any action or inaction of Cramahe caused or contributed to the accident.

Positions of the Parties

[ 13 ] The Defendants allege that the accident was caused by the negligence and/or breach of statutory duty of Cramahe in failing to keep Telephone Road in a reasonable state of repair in accordance with the Municipal Act, 2001, S.O. 2001, c. 25.

[ 14 ] The Defendants claim that there was a requirement for a centerline in the area of the accident. As such, in the specific circumstances of this case, the Defendants claim that a centerline would have allowed Amy to recognize that Jayson’s tractor was over the center of the road and that she was on or near the center. Had Amy adjusted her position as she approached, crested, or proceeded down the hill, the accident would not have occurred. The Defendants state that Amy’s death was caused by an inability to understand the lateral positions of her vehicle and Jayson’s tractor on the road.

[ 15 ] The Defendants further claim that Cramahe was aware that the users of the road included large trucks and tractors that are legally entitled to use the road. Further, due to Cramahe’s maintenance of the road, there were sections that were insufficiently maintained such that an oversized vehicle approaching another motorist would not be able to yield half the roadway to the oncoming motorist. In these circumstances, the Defendants claim the situation was inevitable. As Cramahe is responsible for ensuring the safety condition of the road and the safety of the motorists who utilize it, the Defendants claim that Cramahe is almost entirely responsible for the subject accident.

[ 16 ] In response, Cramahe claims that Telephone Road was in a proper state of repair at the time of the accident. Cramahe takes the position that their conduct in maintaining Telephone Road was reasonable and appropriate. It was maintained in a fashion consistent with a low-volume rural road. Cramahe further claims that the accident occurred in a location where the prevailing guidelines would not have even recommended that a centerline be present.

[ 17 ] Cramahe asserts that the Defendants cannot establish causation as there is no dispute that the accident occurred because the tractor was in the wrong place at the wrong time. Further, that the Defendants cannot establish that Amy would have been able to avoid the accident in different circumstances, as there is no evidence regarding her observations or the possible alternative actions that she may have taken on the night of June 2, 2009.

[ 18 ] Finally, Cramahe asserts that liability lies solely with the Defendants. Jayson determined to operate an oversized, 14-foot-wide piece of farm equipment on an 18-foot, unlined rural road in the dark. He did this knowing that he would be obstructing the flow of oncoming traffic and knowing that there were no lines on the road. Cramahe claims that liability of this accident lies on the Defendants and there is no legal basis for transferring responsibility to Cramahe or anyone else.

PART II - ISSUES

[ 19 ] The only issue to be determined is whether any action or inaction of Cramahe caused or contributed to the accident. All issues relating to any contributory negligence to Amy have been factored into the settlement that the Defendants reached with the Plaintiffs.

[ 20 ] The Defendants allege that the accident was caused by the negligence and/or breach of statutory duty of Cramahe in failing to keep Telephone Road in a reasonable state of repair in accordance with the Municipal Act. More particularly, the Defendants allege that had there been a centerline painted along Telephone Road at the material time that the accident could have been avoided.

[ 21 ] In order to establish that Cramahe failed to keep Telephone Road in a reasonable state of repair at the material time, the Defendants have the onus of establishing on a balance of probabilities:

a. The provisions of the Ontario Road Manual that provide guidance to municipalities with respect to pavement markings (including center lines), required pavement markings on Telephone Road, and that the lack of pavement markings (including center lines) on Telephone Road constitutes non-repair; and

b. The lack of pavement markings (including center lines) caused or contributed to the accident.

[ 22 ] If the court finds that Telephone Road was not in a proper state of repair and the state of “non-repair” was a causative factor in the accident, whether Cramahe is entitled to rely on the statutory defences in accordance with the Municipal Act to avoid liability must be determined.

PART III – SUMMARY OF FACTS

[ 23 ] The following facts are generally undisputed:

Characteristics of Telephone Road

a. The accident occurred on Telephone Road. The road is a rural, undivided, 18-foot wide, two-lane road that runs east/west and has been in place in Cramahe in excess of one hundred years.

b. The road surface of Telephone Road where the accident occurred was “chip and tar” with a gravel shoulder on each side, raised in the center and crowned towards the shoulders.

c. There were no pavement markings indicating the center of the road or the road’s edge.

d. The paved portion of the road width, where the accident occurred, was measured by the investigating officer and was found to be 18.83 feet (6.35 meters). With the gravel shoulders included, the total width of the road was 30.67 feet (9.35 meters).

e. The gravel shoulders, in the area of the accident, gave way to long grass, small trees, and brush on the north and south side of the road.

f. Beyond the edge of the shoulders there were steeply banked, deep ditches.

g. The gravel shoulders were narrow in the area of the accident, measuring 2.6 feet/31.5 inches (0.8 meters) on the north side and just less than 1.6 feet/19.68 inches (0.5 meters) on the south side.

h. The speed limit of Telephone Road was 80 km/hr.

i. There were no traffic control signals or devices in the area of the accident.

j. Telephone Road is a rural road, often utilized by local farmers and oversized trucks from a local quarry.

k. At the request of Cramahe, Telephone Road was appraised by independent engineers from the Greer Galloway Group in 2007, prior to the accident. The appraisal noted that road markings and additional signage ought to be considered but concluded that there were no improvements needed.

l. Telephone Road remained unmarked at the time of the accident.

Conditions

m. The accident occurred on June 2, 2009, at 9:35 p.m. The sky was clear and the road was dry. It was dark. There was no artificial lighting illuminating Telephone Road other than the illumination from lights of the van and the tractor.

The Collision

n. Immediately prior to the accident, Amy was operating the van eastbound on Telephone Road and had just crested a hill.

o. Proceeding westbound, in the opposite direction and approaching the hill on Telephone Road that Amy had just crested, was the tractor towing a Salford disc, driven by Jayson.

p. Jayson was travelling with the tractor’s road lights activated. The road lights included two headlights, five white lights across the front of the engine, flashers on the upper cab, a hazard beacon over-head, and two amber marker lights which extended out from each side of the tractor behind the front tires to mark the width of the tractor. On the night of the accident, the right side amber marker over the dual wheels on the shoulder side of the road was not working.

q. Amy was travelling with her headlights on, both were operational.

r. Upon observing the headlights of the van after it had crested the hill, Jayson slowed his speed to less than 20 miles per hour (roughly 30 km/hr) and moved the tractor to the right. Despite these adjustments, the tractor continued to encroach into the eastbound lane by approximately 12 inches.

s. The sight distance available to Amy after cresting the hill was in the range of 1.5 to 2 kilometers.

t. The sight distance available to Jayson at the accident site was in the range of 170 meters to 220 meters to the crest of the hill.

u. The Ontario Traffic Manual (the “OTM”) recommends that on rural undivided highways such as Telephone Road, there should be short segments of center line marked along the approaches to the hill where the available sight distance is less than 150 meters.

v. Jayson’s evidence was that he had no concerns that an accident was going to occur prior to the impact. However, Jayson was concerned that Amy was travelling at a high rate of speed. The speedometer on Amy’s van was stuck at 65 km/hr after the collision which is not determinative of Amy’s actual speed at the point of impact. For the purpose of the accident reconstruction the expert utilized the speed of 80 km/hr to gauge Amy’s speed. It was conceded by the Defendants that speed is not an issue in this litigation.

w. At the time of the accident, Jayson’s tractor was 11.81 to 15.74 inches (0.3 to 0.4 meters) over the center of the road and the right side was 3.9 to 7.88 inches (0.3 meters) from the outer edge of the shoulder.

x. At the time of the accident, Amy’s van was entirely in the eastbound lane but was either touching or extremely close to the center of the road.

y. At the point of impact between the van and the tractor, the overlap between the vehicles was 11.81 inches (0.3 meters). The overlap was caused by the left outer wheel of the tractor being situated in the eastbound lane directly in Amy’s path of travel.

z. Jayson did not see Amy swerve, alter her path, or brake prior to the collision.

aa. At approximately 9:35 p.m., the outer left wheel of Jayson’s tractor struck the driver’s side of Amy’s vehicle.

bb. Amy died as a result of her injuries.

Evidence at Trial

[ 24 ] No evidence of what Amy observed that evening as her van travelled toward Jayson’s tractor was available to the court. The court did receive evidence and observations from:

a. Jayson Atkinson, the operator of the tractor;

b. Police Constable Flindall, the investigating officer who prepared the Technical Collision Investigation Report;

c. Barry Thrasher, the former Director of Public Works for Cramahe;

d. Russell Brownlee, a road safety expert retained by the Defendants;

e. David Porter, a senior forensic engineer and accident reconstruction and causation expert retained by the Defendants; and

f. Brian Malone, an expert in the field of road operations, maintenance and traffic safety, retained by Cramahe.

Jayson Atkinson

[ 25 ] Jayson advised that he had just finished working one field with the Salford disc and was on his way to another property to continue working. The John Deere tractor that he was driving was well lit. All road lights on the tractor were working except the right amber marker light that was positioned over the outer dual tires on the shoulder side of the road.

[ 26 ] Jayson saw Amy’s van approaching. The van was the only vehicle on the road travelling in the eastbound lane.

[ 27 ] Jayson noted that the van was positioned close to the center of the road.

[ 28 ] Jayson lowered his speed to less than 20 miles per hour (roughly 30 km/hr) and advised that he moved his tractor as far to the right edge of shoulder of the road as was safe for the tractor without collapsing the shoulder or tipping the tractor into the ditch. Despite the adjustments, Jayson was aware that the tractor wheels remained over the center of the road and encroached into the opposite side of the road.

[ 29 ] Jayson did not see Amy adjust the position of her van to take into account the position of the tractor. Neither did he see Amy slow or adjust her speed as she approached the tractor, nor swerve or take any defensive manoeuver to avoid colliding with the tractor. Jayson’s evidence was that Amy did not slow; did not brake; did not swerve.

Police Constable Flindall

[ 30 ] Police Constable Flindall of the Ontario Provincial Police gave evidence about the observations she formed during the investigation of the collision. PC Flindall prepared a Technical Collision Investigation Report.

[ 31 ] PC Flindall’s evidence, primarily consisted of measurements and visual observations of the accident site and was generally accepted and relied upon by the Defendants and Cramahe, with two exceptions – the speed attributed to the van at the point of impact and her evidence that the right amber marker light was working prior to the collision (Jayson testified that it wasn’t working).

[ 32 ] PC Flindall testified that the road surface was raised in the center and crowned towards the shoulders. The paved portion of the road width was 6.53 meters and with the gravel shoulders included the total width was 9.35 meters. The tire track width of the tractor was 4.35 meters. The grade at the point of impact was 4.3 degrees. The speed limit posted was 80 km/hr. At the time of the collision, Jayson’s tractor was 0.3 to 0.4 meters (11.81 to 15.74 inches) over the center of the road and the right side was 0.1 to 0.2 meters (3.9 to 7.88 inches) from the outer edge of the shoulder. Amy’s van was close to the center of the road as the overlap between both vehicles was 0.3 meters (11.81 inches). The body of the tractor did not make contact with the van; the impact was limited to the tractor’s wheels.

[ 33 ] PC Flindall testified that there was no suggestion that Amy was operating her van in an unusual manner. Further, there was no evidence that Amy was speeding and there was no evidence of distractions impacting Amy while she was driving.

[ 34 ] PC Flindall opined that “as it was dark, Amy Morton may not have been aware of the type of vehicle approaching her and therefore did not turn out to the right to avoid the tractor”. PC Flindall concluded that Amy may not have been aware of the type of vehicle that she was approaching because “the fact that the tractor had five lights across the front, and the amber tire markers, she may not have been aware that it is a tractor. It’s not a typical vehicle that you would see on the road. She would have just crested the hill as well”.

[ 35 ] PC Flindall assumed that Amy was travelling at 65 km/hr at impact, as this was the speed “frozen” on the van’s speedometer. However, David Porter, who was qualified as an expert in accident reconstruction, provided a detailed explanation as to why the “frozen” speed was not the actual speed at impact. Mr. Porter assumed that Amy was travelling the speed limit, of 80 km/hr. It is this speed that was utilized for the purposes of the accident reconstruction. It was agreed and accepted by the Defendants and Cramahe that “speed” was not a causation issue at trial.

Russell Brownlee

[ 36 ] Russell Brownlee was qualified as a road safety expert and gave evidence with respect to the conditions on Telephone Road.

[ 37 ] Mr. Brownlee was retained by the Defendants in May 2011, and he first attended at the accident scene (alone) on November 20, 2012. Mr. Brownlee re-attended the scene on October 29, 2014 with Mr. Porter to conduct the accident reconstruction, at which time, measurements were taken.

[ 38 ] Mr. Brownlee testified that Telephone Road should have complied with the guidelines established by the OTM and the Geometric Design Guide for Canadian Roads (the “TAC Guide”).

[ 39 ] Mr. Brownlee testified that the TAC Guide indicates a minimum shoulder width of 1.0 meter for a rural local road and that in the area of the collision, Telephone Road had narrow shoulder widths that were variable.

[ 40 ] The lane width on Telephone Road met the minimum guidelines set out in the TAC Guide.

[ 41 ] Mr. Brownlee testified that if a vertical curve has a sight distance of less than 150 meters, the OTM requires a yellow short segment centerline be painted “along the approaches to the crest of a hill”. Mr. Brownlee further testified that the term “along the approaches to the crest of a hill” does not denote any “specific distance”.

[ 42 ] In the present case, Mr. Brownlee testified that given the particular vertical curve involved in the accident, the posted speed limit of 80 km/hr, and the sight distance on the portion of Telephone Road where the accident occurred, the OTM required a yellow centerline be painted “along the approaches to the crest of the hill”. When cross-examined, Mr. Brownlee confirmed his opinion that there are no specific distances indicated in the OTM for the short segment of centerline and that the centerline would “begin on the approaches”.

[ 43 ] Mr. Brownlee testified that given the number of hills on Telephone Road that would require short segments of pavement marking, that the municipality would probably “stripe this hill for sure”. More specifically, Mr. Brownlee testified that as the location of the accident was on the “approaches of the hill”, due to the vertical curve, the OTM required a centerline reaching to the accident site.

[ 44 ] Mr. Brownlee stated that the purpose of a centerline on approaches to hills is to provide vehicles approaching some time to “think about their lateral location and other hazards on the roadway”.

[ 45 ] Mr. Brownlee’s expert opinion was that Telephone Road did not meet design standard because a centerline was required along the approaches to the crest of the hill at or near the collision site. Mr. Brownlee did not testify whether the failure to comply with design standard caused the accident as that was not in the scope of his study.

Brian Malone

[ 46 ] Mr. Malone was qualified as an expert in road design and was retained by Cramahe to respond to the evidence of Mr. Porter and Mr. Brownlee.

[ 47 ] During the course of his retainer, Mr. Malone provided two reports. Mr. Malone’s second report opined that in the present case, the OTM recommended a short segment of centerline on Telephone Road and that the short segment of centerline would pass through the crash site.

[ 48 ] During his examination-in-chief, Mr. Malone testified that the OTM recommends a short segment of centerline on Telephone Road that would have run from the crest of the hill east for approximately “150 meters, maybe a little less”. Mr. Malone opined that the short segment would “probably end before the crash location, but not much; perhaps just before the driveway to number 13210”.

[ 49 ] Mr. Malone agreed with Mr. Brownlee that the guidelines provided by the OTM in regards to the centerline were widely used and accepted guidelines that Cramahe should have considered and been aware of. Mr. Malone stated that variations from the OTM standards may be defensible if the variation is for technical reasons. Mr. Malone did not identify any technical reason why a short segment of centerline could not have been painted on Telephone Road.

[ 50 ] Mr. Malone testified that a short segment of centerline near the collision site would be in place for the benefit of assisting the westbound vehicles (i.e. the tractor) to understand their ability to make passing maneuvers. The short segment would serve no purpose to eastbound drivers like Amy who had a sight distance of 1.5 to 2 kilometers after cresting the hill.

[ 51 ] Following completion of his examination-in-chief, Mr. Malone re-attended the collision site without an assistant or tools to measure distances.

[ 52 ] The following day during cross-examination, Mr. Malone testified that the short segment of centerline would extend 150 meters from the crest of the hill downwards. Mr. Malone further testified that the collision occurred between 170 and 190 meters east of the crest of the hill. In the circumstances, Mr. Malone testified that there was no requirement in the OTM for a short segment of centerline at the crash location, as the crash location is 20 to 40 meters past the termination point for the short segment of centerline. Thereby testifying that his finding in his second report that the short segment of centerline would pass through the crash site was incorrect.

[ 53 ] In addition to assisting drivers with passing manoeuvers, during cross-examination, Mr. Malone acknowledged that a centerline can assist drivers to align their positions on the road and assist drivers in understanding their own and other vehicles’ lateral positions on the road.

[ 54 ] Counsel for Cramahe argues that Mr. Malone re-attended the accident scene “in his continuing obligation as an expert of the court” to “satisfy himself as to the location where the short segment of centerline should have terminated”.

[ 55 ] Counsel for the Defendants submit that Mr. Malone did not act forthrightly. He did not attend the accident scene with an assistant or tools to measure distances and was not forthright to the court that he had only conducted his investigation the previous evening.

Barry Thrasher

[ 56 ] Barry Thrasher was the former Director of Public Works for Cramahe. While acting as the Director, Mr. Thrasher commissioned an assessment of Telephone Road from the Greer Galloway Group. The report was completed in November 2007.

[ 57 ] The Greer Galloway Group report was prepared by Frank Pinder, transportation consultant who was deceased at the date of trial. The report indicated that there were “no improvements needed”, although there was an entry that noted “consider pavement marking”. Mr. Thrasher could not recall any discussions with Mr. Pinder regarding pavement markings.

[ 58 ] Mr. Thrasher advised that in 2007, pavement markings were restricted to the Village of Colborne where the roads had higher traffic volume. The only markings on rural roads in Cramahe at the time were stop bars. Mr. Thrasher indicated that the population of Cramahe in 2007 was approximately 5,000 people, albeit this was an estimate. In 2007, he had a staff of three workers for the roads. Mr. Thrasher advised that there was no discussion to increase the budget for rural pavement markings, and further, that in his six years working for Cramahe, that he never prepared a budget for consideration to have pavement markings on Telephone Road.

David Porter

[ 59 ] The Defendants retained David Porter as an accident re-constructionist to recreate the collision and provide his opinion on “causation” issues. Mr. Porter is a senior forensic engineer who provided an expert report dated October 29, 2014, and he was qualified as an expert in accident reconstruction at the trial.

[ 60 ] Mr. Porter very clearly testified that his conclusions were based on his observations and could not testify as to what Amy actually saw or observed.

[ 61 ] Mr. Porter recreated the collision and provided testimony as to what he observed in five timed intervals prior to impact: at eight seconds, five seconds, three seconds, two seconds, and one second.

[ 62 ] The observations were recorded in two stages: (1) without a centerline present; and (2) with a centerline present. However, due to a miscalculation, the centerline purchased did not extend to the collision site. Mr. Porter’s evidence relative to the centerline includes observations made in “his mind’s eye”.

[ 63 ] The accident reconstruction was conducted in a manner that was intended to best replicate the conditions that existed on the night of the collision. When recreating the collision, Mr. Porter took stationary photographs from Amy’s eastbound perspective, including photographs of the interval points of eight seconds, five seconds, three seconds, two seconds, and one second, which were intended to visually document his observations noted. Mr. Porter also took a videotaped recording of the reconstruction from the viewpoint of the driver of the van. Notwithstanding the photographs and the video recording, Mr. Porter repeatedly stated that his actual observations differed from the observations captured by the photographs and video recording due to the dynamic nature of the scene and the limitations of photography and video recording.

[ 64 ] In summary, Mr. Porter’s observations as a result of his accident reconstruction are as follows:

a. At the eight second point, all the lights facing westward were visible, including the operational amber marker light that was over the roadside tractor tires. However, the tractor or the outline of the tractor could not be seen, only the tractor lights at this point. He also could not see the bottom of the tractor, including the wheels, as they were obscured by the roadway, nor could he see the temporary centerline as it was also obscured by the roadway.

b. At the five second point, all the lights facing westward and the reflective strips on the marker light bars over the tractor wheels were visible. Mr. Porter could neither see the tractor nor the outline of the tractor. He could not identify the lights, but the lights were reflecting off the roadway. He was able to see tire tracks in front of the tractor lights – a worn path previously travelled by other vehicles– illuminated by the tractor lights. He also noted that he could see a “center joint” or “center hump” in the middle of the roadway. With the temporary centerline, Mr. Porter testified that even though the centerline did not extend to the tractor, that he could see the centerline “in his mind’s eye”. Although Mr. Porter could not see the tractor, or the tractor tires, he noted that “at that position it was possible to discern that the centerline was between the positional light (amber marker light) and the headlights of the tractor”. Mr. Porter testified that this assisted him in understanding that the left side of the tractor was over the centerline. Without the centerline, he stated that it “was more difficult” to discern that the tractor was over the centerline. However, he also stated that because the tire tracks (the worn path) in front of the tractor were visible, it was not impossible to infer the roadway. There was also the center joint/hump/seam which “illustrated that the seam, in fact, was in the center of the roadway”.

c. At the three second point, all the lights facing westward and the reflective strips were visible. The tractor headlights appeared noticeably brighter and were becoming a “powerful light” that was still reflecting off the roadway illuminating the tire tracks (worn path) and the center joint (center hump) but for a “markedly” shorter distance. Mr. Porter stated that at this point it was more difficult to infer the roadway center because he was “beginning to lose an understanding of the lateral position of those tire tracks relative” to “that light” (amber marker light). With the centerline in place, Mr. Porter could see all the lights and reflector strips the same way. However, Mr. Porter could still not see the tractor, the outline of the tractor or the tractor wheels. Mr. Porter stated that with the centerline in place, although it did not extend to the tractor, he could see “in his mind’s eye” that the amber marker light was over the “visual extension of the centerline”. Further, Mr. Porter noted that the “seam” (center joint/center hump) in the center of the road, was “more visible” when the centerline was present.

d. At the two second point, all of the lights and reflective strips on the tractor were still visible. The scale of the tractor was “becoming obvious” to him, but he still could not see the tractor or the tractor wheels. The reflection of the tractor off the roadway allowed for an identification of the left side tire track, but the right side track was virtually unidentifiable (he is referring to the worn path illuminated in the tractor lights not the actual tractor tire track). Mr. Porter testified that it was becoming difficult to identify the worn path in front of the tractor because of the “relative brightness of the tractor lights – they were becoming bright enough that they were difficult to look at”. With the centerline in place, Mr. Porter testified that it accentuated the fact that the positional light of the tractor (amber marker light) was over the extrapolated centerline. However, the tires of the tractor (the actual tires) were not visible to him.

e. At the one second point, all lights and reflective strips were visible on the tractor and the lights were becoming too bright to comfortably look at them. The headlights of the tractor were beginning to cause “a discomfort glare”. Mr. Porter testified that he had to “fight the temptation to look away because they were quite bright”. It was only at this point that the leftmost tire on the tractor was directly visible, as he could see the black rubber of the tire. However, the glare of the tractor headlights was overpowering to the “extent I could not see much of the rest of the lights on the tractor anymore”. The entire roadway was bright and did not allow him any understanding. With the centerline present, although not extending to the tractor, as the left front tire of the tractor was visible, the presence of the centerline made it apparent that the tire was over the centerline. He noted that although the centerline did not extend all the way to the tractor, he “could see from the illumination that the center of the roadway…the tire was, in fact, over that middle of the road”.

[ 65 ] During cross-examination, Mr. Porter testified that the tractor presented itself as follows:

i. at first glance it was a light in the distance;

ii. as the van crested the hill, the amber light on top of the tractor became visible;

iii. as the van proceeded forward, the headlights of the tractor became visible;

iv. eventually all the lights were visible;

v. as you approach the tractor, the headlights became brighter and brighter to the point that it was uncomfortable to look directly at them, and as a result, “I would look towards something else on the road”;

vi. while you might be able to see the tractor “a little bit sooner” than one second away “it’s not within the field illumination of the headlights particularly”; and

vii. the tractor tires – that were travelling in the eastbound lane – were not visible until one second away.

[ 66 ] Mr. Porter also provided evidence with respect to the overall perception response time of drivers reacting to hazards. The overall response time is normally measured from the emergence of the hazard to the application of the brake. Mr. Porter advised that research indicates that an unaware driver will respond to a hazard in 0.9 to 1.5 seconds. 0.9 seconds represents the 5th percentile, 1.5 seconds represents the 95th percentile, and 1.1 seconds is the mean of those drivers. Mr. Porter advised that 2.5 seconds is typically accepted in roadway design as a conservative estimate to capture all the drivers on the roadway.

[ 67 ] Mr. Porter concluded that the reconstruction indicated that it would have been possible for Jayson to move the tractor over closer to the shoulder of the road but there were some risks associated with that. While Mr. Porter did not believe that the tractor would have rolled over, he believed it is entirely reasonable that the shoulder may have given way in some way. If Jayson had moved the tractor over so that it was entirely on his side of the road, that would have resulted in the tractor having at least a portion of the set of dual tires hanging out into the air of the ditch, which he stated “presents some real challenges”, which could have pulled the tractor into the ditch. Jayson’s opportunity to avoid the collision “rested with him taking that risk”.

[ 68 ] As for Amy’s opportunity to avoid the collision, Mr. Porter noted that there was no definitive evidence regarding what she was doing in the moments prior to impact. As such, Mr. Porter made assumptions, including that Amy failed to see the tractor, because if she had “perceived the tractor as a hazard, she had enough time to be able to come to a stop before impacting it”. Mr. Porter testified that he could not “definitively determine if any changes to the environment, specifically to the existence of a centerline, would have changed her detection of the tractor”. Therefore, Mr. Porter relied upon his own observations.

[ 69 ] Mr. Porter testified that the presence of a centerline provided a clear indication of the location of the center of the roadway for the entire duration of the approach of the tractor. With the centerline not present, he found that the determination of the location of the centerline was more difficult in the final seconds before he approached the tractor. This was because the reflections off the roadway did not allow him to identify the tire marks (worn path) and the location of the middle of the road (center joint/hump/seam). Mr. Porter testified that with the centerline present, the middle of the roadway was easily identifiable and obvious. Based on his reconstruction and observations, Mr. Porter concluded that “it was probable that the centerline would have improved” Amy’s “ability, similarly to mine, to detect the center of the roadway and by extension obviously, detect that the Atkinson tractor was over the center of the roadway”.

[ 70 ] Mr. Porter further noted that the presence of a centerline provided an improved method of understanding his lateral location on the roadway. Therefore, it was probable that the centerline would have improved Amy’s ability to recognize that she was travelling closer to the center of the roadway and not as far to the right as she could have.

[ 71 ] In summary, Mr. Porter concluded that the centerline would have improved Amy’s ability to recognize that the tractor was over the centerline, and that she was close to the centerline. Thus, he concluded that the centerline would have increased the probability that Amy would have taken some action to avoid the collision.

PART IV – THE LAW AND ANALYSIS

Municipality’s Duty of Repair and the Ordinary Reasonable Driver Standard

[ 72 ] Section 44(1) of the Municipal Act requires a municipality to keep highways and roadways under its jurisdiction “in a state of repair that is reasonable in the circumstances, including the character and location of the highway”.

[ 73 ] In Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, 70 M.V.R. 6, at paras. 28-29, Laskin J.A. described the ordinary reasonable driver standard, the standard of care which governs a municipality’s duty of highway repair. As described by Laskin J.A., a municipality is required to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. Ordinary reasonable drivers are not perfect; they make mistakes. Notably, however, a municipality’s duty of reasonable repair does not extend to remedying conditions that pose a risk of harm for negligent drivers.

The Four Step Test to Determine Liability under s. 44 of the Municipal Act

[ 74 ] In Fordham, at para. 26, Laskin J.A. sets out the four-step test that is to be applied in analyzing whether a municipality is liable under s. 44 of the Municipal Act:

1. Non-repair: The plaintiff [the Defendants] must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair.

2. Causation: The plaintiff [the Defendants] must prove the “non-repair” caused the accident.

3. Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.

4. Contributory Negligence: A municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s [the Defendants] driving caused or contributed to the plaintiff’s [Amy Morton’s] injuries.

[ 75 ] The first two steps of the four step test, determining whether the Defendants have proven non-repair and causation, resolve whether there is a prima facie case of liability.

[ 76 ] If a prima facie case of liability is established, step three requires the municipality to establish on a balance of probabilities any statutory defences outlined in s. 44(3) that it seeks to rely on.

[ 77 ] If no statutory defences apply, then at step four, the municipality is entitled to attempt to show the Defendants’ contributory negligence.

The Test for “Non-Repair”

[ 78 ] The “state of non-repair” alleged by the Defendants is that there should have been a centerline present on Telephone Road at the time of the accident. Although the Defendants raised the issue of other traffic control measures, such as reduced speed limits, it was conceded that speed was not an issue in this accident.

[ 79 ] The test for “non-repair” will be established if the Defendants prove “on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair”: Fordham, at para. 26.

[ 80 ] A municipality has a duty to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. In other words, a municipality’s standard of care is measured by the “ordinary reasonable driver”. Ordinary reasonable drivers are not perfect drivers; they make mistakes.

[ 81 ] As Howden J. wrote in Deering v. Scugog (Township), 2010 ONSC 5502, 3 M.V.R. (6th) 33, affirmed 2012 ONCA 386, leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 351, at para. 100:

[t]he principle that the standard of care to be met by road authorities is not perfection. Further, it is neither determinative of liability that an accident occurred on the road in question, nor is it sufficient for a claimant to show that the road could have been made safer by some improvement, pavement marking or other means where cues that should be reasonably obvious to the ordinary driver called for caution. The question remained in all such cases: was the road at the material time sufficiently in repair that those users of the road, exercising ordinary or reasonable care, could use it in safety?

[ 82 ] And further, at para. 154:

In conclusion, I accept what have become the submissions of all counsel that road authorities have a duty to ordinary motorists to keep their roads in reasonable repair, including the type and location of the road. The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty to repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided, subject to the defences of no knowledge and reasonable steps to prevent and minimum standards compliance. The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.

[ 83 ] The question to be answered under s. 44 is fact specific of whether the road in question was sufficiently in repair at the material time that users exercising ordinary or reasonable care could use it in safety.

[ 84 ] In the present case, there is no suggestion that Amy was anything other than an ordinary reasonable driver. PC Flindall testified that there was no suggestion that Amy was operating her van in an unusual manner. There was no evidence that Amy was speeding. There was no evidence of distractions impacting Amy while she was driving. Based on the evidence presented at trial, I find that Amy was an ordinary driver exercising reasonable care who did not recognize that the vehicle approaching her was a tractor encroaching on her side of the road.

[ 85 ] The question now becomes whether the Defendants have proven on a balance of probabilities that Cramahe failed to keep that segment of Telephone Road in a reasonable state of repair in all the circumstances.

[ 86 ] As noted above, the Defendants called Mr. Brownlee, who is qualified and worked as a transportation engineer, done many road assessments, and trained others in the area of road safety and design. Cramahe called Mr. Malone, an expert in the field of road operations and maintenance and traffic safety, and Mr. Thrasher, the former Director of Public Works for Cramahe.

[ 87 ] Each of the two experts, Mr. Brownlee and Mr. Malone, referenced and relied upon excerpts from the OTM, and more particularly, the guidelines entitled “Pavement, Hazard and Delineation Markings” (March 2000, MTO). The guidelines, at pp. 37-39, provides as follows:

Where a continuous directional dividing line is determined to be impracticable or unnecessary, short segments of directional dividing line are required at specific roadway features. These include:

Vertical curves ;

On temporary bituminous and rural two-lane roadways, where the directional dividing line is not continuous, these locations should be marked as follows:

Along the approaches to the crest of a hill where the available sight distance is less than 150 m. [Emphasis added.]

[ 88 ] Although Telephone Road pre-dates the OTM, as noted by Howden J. in Deering, at para. 22(b):

In the case of old roads which pre-date modern design guidelines, where permanent features create an unreasonable risk of harm to those normally using the roads, and where the authority lacks the means to reconstruct the road in order to correct such features, the road authority’s duty is to install low cost traffic control devices to guide the motorist and to warn of the danger. [Citations omitted.]

[ 89 ] Mr. Thrasher testified that the only markings on rural roads in Cramahe during his employment were stop bars. At that time, Cramahe’s population was approximately 5,000 people and Mr. Thrasher had a staff of three workers for the roads. During his tenure, Mr. Thrasher never prepared a budget for consideration to have pavement markings on Telephone Road, nor did he discuss implementing pavement markings despite Greer Galloway’s report suggesting that they “consider pavement markings”. Mr. Thrasher noted that the 2007 Greer Galloway report concluded that there were “no improvements needed” to Telephone Road.

[ 90 ] In considering whether markings were required by the OTM on Telephone Road, I have considered the Greer Galloway report. I note that the report merely indicated that Cramahe should “consider pavement markings”, but concluded that no improvements were needed. As such, the report is only one piece of evidence and is not determinative of the issue.

[ 91 ] In the present case, the OTM guidelines dealing with pavement markings utilize the words, “required” and “should”.

[ 92 ] Where a manual guideline cited in a civil trial is expressed by “must” or “shall”, its nature as a guideline is not changed; the application of the guideline remains subject to engineering judgment.

[ 93 ] As noted by Howden J. in Deering, at para. 243, where a road manual is one respected within the road engineering community, as the OTM is, and the guideline uses the word “must”, the court should approach it in the sense that there should be some compelling reason not to follow it in the circumstances and context within which the transportation engineer is working. This approach would provide some distinction from a guideline reading “should”.

[ 94 ] In the present case, there is no doubt that Cramahe had a duty to keep Telephone Road in a reasonable state of repair pursuant to s. 44 of the Municipal Act and was acting under such a duty.

[ 95 ] The standard of care that a municipality must meet in fulfilling its duty to keep the road in a state of repair is one of reasonableness for use by the motoring public, assuming those users of the road do so exercising ordinary care, and taking into account circumstances including the road character and location: see s. 44(1), Municipal Act; Deering, at para. 250.

[ 96 ] In the present case, the hill in question does not rise to the hill that was encountered in the Deering case. Instead, the hill appears to have been one of a series of undulating hills on a rural unlined highway.

[ 97 ] Jayson testified that he had driven the tractor on Telephone Road in the past and had passed countless cars on the road without difficulty. Moreover, that he had not experienced an issue before as “you see the car coming, you move over as much as you can, and…”

[ 98 ] Jayson further stated that he knew that the shoulder was narrow on this part of the road. He knew that there was limited space. He also knew that he would be encroaching into the eastbound lane.

[ 99 ] Jayson testified that he had only driven this tractor on Telephone Road where the accident occurred after dark, maybe once or twice. He stated that “we didn’t move a lot of equipment after dark”. He further stated that on previous occasions when vehicles approached him after dark, there were no accidents.

[ 100 ] Mr. Brownlee and Mr. Malone both testified that the vertical curve that Amy encountered as she drove eastbound should have been marked with a short segment centerline. Mr. Brownlee and Mr. Malone agreed that the necessity to mark the short segment line arose not as a result of Amy’s sight lines but as a result of Jayson’s sight lines as he approached the vertical curve. In the circumstances, from a westbound point of view, the vertical curve caused sight lines to be less than 150 meters at a certain point in the road.

[ 101 ] What Mr. Brownlee and Mr. Malone could not agree upon was whether the short segment of centerline would have reached the collision point.

[ 102 ] For the purposes of determining the issue of non-repair, it is not necessary for me to decide who is correct with respect to the length or location of the short segment of centerline. The point is that both experts agree that a short segment of centerline was recommended as a result of the diminished sight lines experienced by the westbound drivers approaching the vertical curve.

[ 103 ] However, with respect to the accuracy, reliability and impartiality of the expert testimony as between Mr. Brownlee and Mr. Malone, I prefer and rely upon the evidence provided by Mr. Brownlee for the following reasons:

a. Mr. Brownlee presented his evidence in a straight-forward and professional manner. He did not appear to be personally or competitively engaged in the litigation. Mr. Brownlee prepared his report and provided his testimony to the court in the ordinary course based on his site inspections, review of the information available to him, and based upon his knowledge, experience and expertise in the field of road safety assessment. Mr. Brownlee’s expert opinion did not differ from the written report that he provided for the benefit of the litigation. Mr. Brownlee’s report was in keeping with his testimony and he was a consistent witness throughout the proceeding.

b. Mr. Malone prepared two reports dated November 21, 2014 and January 26, 2017. The November 2014 report was prepared using the measurements provided by the police without attending at the scene of the accident. This first report indicated that a centerline was not required on Telephone Road. The January 2017 report was prepared following a site inspection with two assistants and measurements taken. This report indicates that a centerline was required on Telephone Road and that the line would have extended through to the collision site.

c. At trial during his examination-in-chief, Mr. Malone testified for the first time that his January 2017 report was incorrect, and upon further consideration, the centerline would have ended at about 150 meters, or approximately 30 meters prior to the collision site. The evening following his examination-in-chief, Mr. Malone returned to the accident site without an assistant and without any equipment to take measurements. The next day, during cross-examination, Mr. Malone testified emphatically that his January 2017 report was wrong and that upon further review the centerline would have commenced on the crest of the hill and continued for 150 meters, ending between 50 and 70 meters prior to the collision site.

d. Mr. Malone insisted that his previous reports were based on the misconception that the term “centerline” meant “continuous centerline” and did not reference a “short segment of centerline”. He stated that he did not understand that the accident site involved a vertical curve. Mr. Malone insisted that this was the root of his misconception, notwithstanding that he had attended the scene, inspected the vertical curve, and had taken measurements prior to completing his January 2017 report. I do not accept this evidence from Mr. Malone in light of his prior attendance at the accident site, his knowledge, his expertise, and the fact that he was one of the authors of the OTM and well aware of the terminology contained therein.

[ 104 ] In the present case, I find that Mr. Malone did not display the hallmarks of an independent expert. Mr. Malone resiled from his January 26, 2017 expert report while on the witness stand, seemingly at the suggestion of counsel for Cramahe. Mr. Malone re-attended the accident site in the middle of his testimony. He attempted to use his attendance during his testimony to buttress his “new” opinion, despite the frailties involved on this attendance. He appeared competitive and combative in his testimony. Finally, his insistence that he misunderstood the use of the term “centerline” in writing his reports was completely unbelievable.

[ 105 ] I am of the opinion that Mr. Malone lost sight of his professional responsibility and duties as an expert witness in this trial and entered the fray. To the extent that it is relevant – where Mr. Malone’s opinion differs from that presented by Mr. Brownlee – I accept, prefer, and rely upon Mr. Brownlee’s opinion.

[ 106 ] As the vertical curve in question had no centerline markings of any length, the absence of the centerline markings may constitute a state of non-repair, dependent on the standard in the industry and the recommendations contained in the OTM.

[ 107 ] Both Mr. Brownlee and Mr. Malone testified that there was a “necessity” for a short centerline on the approaches to the crest of the hill. While the OTM are guidelines only, the guidelines reflect the standard of practise in the industry. Cramahe retained discretion to implement the guidelines, but the standard of practise in the industry required the short segment of centerline.

[ 108 ] As noted in Deering, at para. 228, where a manual such as the OTM says “should”, it represents a recommendation that is good practise in most situations. Nevertheless, it is always subject to the judgment of the transportation engineer and the particular programme context and circumstances in which they are working. Further, Howden J. noted that the use of the term “should” means it “should” be followed unless there are valid reasons not to do so. Mr. Malone made a similar statement during the trial. Mr. Malone stated that variations from the OTM standards may be defensible if the variation is for technical reasons. Mr. Malone did not identify any technical reason why a short segment of centerline could not have been painted on Telephone Road. Moreover, both Mr. Brownlee and Mr. Malone testified that the OTM guidelines in regards to the centerline were widely used and accepted guidelines that establish the standard in the industry.

[ 109 ] The OTM uses the word “should” and not “must” when discussing the placement of a short segment of centerline on a vertical curve with less than 150 meters of sightline; however, the preface to the provision uses the word “required”. More particularly, the OTM provides “where a continuous directional dividing line is determined to be…unnecessary short segments of directional dividing line are required at specific roadway features. These include: Vertical curves.

[ 110 ] The OTM, like all legislation cannot be read in a vacuum. Accordingly, the foregoing provision requiring directional dividing lines must be read in concert with the related OTM provision that where the directional dividing line is not continuous, these locations should be marked along the approaches to the crest of a hill where the available sight distance is less than 150 meters.

[ 111 ] On a wholesome reading of the OTM, the net result is that a short segment of directional dividing line is required (i.e. it must be done) on a vertical curve. The “should” element does not affect the requirement to mark short segments of directional dividing lines on vertical curves but relates only to the placement of the markings. In other words, the marking of a short segment of directional dividing line on a vertical curve is mandatory. However, the placement of the marking utilizes the term “should” and the length and placement of the marking is discretionary and in the purview of the road technicians and engineers.

[ 112 ] The fact that short segments of dividing lines are “ required ” on vertical curves, but the location of the lines “ should” be marked along the approaches to the crest of a hill is completely logical and understandable in the circumstances.

[ 113 ] Support for this proposition is found at the very root of the disagreement between the experts. Mr. Brownlee testified that the short segment begins “on the approaches to the crest of the hill” which has no specific distance mandated, although he determined in the present case that it would reach the collision site. Mr. Malone testified that the short segment begins at the crest of the hill and continues in a westward direction down the hill for 150 meters; thus it would fall short of the collision site by approximately 70 meters.

[ 114 ] It is my determination that the centerline was required and therefore, the absence of the centerline constitutes “non-repair”. In the circumstances of the present case, I find that the Defendants have established “on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair”.

[ 115 ] In the event that I am mistaken in my interpretation that the terms “required” and “should” as they appear in the OTM created an onus upon Cramahe to complete the pavement markings, I am of the opinion that in the particular circumstances of this case, that a short vertical line on the approaches to the hill was required. This is due to the overall age and condition of the road coupled with the known users of the road, being oversized gravel trucks, oversized farm equipment, and passenger vehicles. The combination of the differing types of oversized vehicles (gravel and farm) that would routinely encroach over the center of the roadway into the opposing lane of traffic, mixed together with the narrow width of the road, and the reported numerous vertical curves (the rolling hills of Northumberland County) created a situation that was ripe for disaster.

[ 116 ] Further, I note that both Mr. Brownlee and Mr. Malone, experts in the field of road safety, both testified that a short segment of centerline was required on the approaches to the crest of the hill. The term “should” in a respected road manual means that it should be followed unless there are valid reasons supported by a transportation engineer not to do so. No person testified that there were valid reasons not to do so. I reject Cramahe’s argument that Mr. Thrasher indicated that there were budgetary restrictions. Mr. Thrasher indicated that he never prepared a budget and never presented a budget for pavement markings. It cannot be said that this non-action equates with budgetary restrictions. Mr. Brownlee testified that pavement markings are a “low cost” improvement and there is no evidence to support the position that Cramahe could not afford to complete the required pavement markings. The recommendation in the OTM represents “good practise in most situations” and the standard in the industry that promotes uniformity.

[ 117 ] As there was no valid reason not to comply with the industry standard presented to the court, failure to comply constitutes non-repair. Based on the evidence of Mr. Brownlee and Mr. Malone, I am satisfied that a centerline was required by the OTM. Though, I am also satisfied that the exact length of the centerline is not determined by regulation. The centerline is to be marked “on the approaches to the hill” and, as Mr. Brownlee testified, there is no specific distance.

The Test for Causation

[ 118 ] Mr. Porter testified that “had the centerline extended all the way to the collision scene”, based on his reconstruction, Amy would have been able to see the centerline disappear beneath the tires of the tractor, which would have highlighted the fact that there was some overlap between the tractor’s position on the road and her own vehicle. Mr. Porter concluded that the presence of a centerline could have resulted in a different outcome and as such the absence of a centerline “caused” the accident. Thus, causation must be determined.

[ 119 ] Legal causation is proven on a balance of probabilities using the “but for” test: see Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, Ediger (Litigation Guardian of) v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98. It is not necessary to prove what action the motorist in this case would have taken with “scientific precision”, but rather, the court is required to make common sense inferences. As noted in Clements at paras. 8-10:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendants negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendants’ negligence was necessary to bring about the inquiry – in other words, that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.

A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Citations omitted.]

[ 120 ] It was conceded that speed was not a causative factor of the accident. The issue relating to causation is therefore restricted to the absence of the short segment of centerline “on the approaches to the crest of the hill” where the collision occurred. The Defendants must show on a balance of probabilities that “but for” Cramahe’s negligence, the collision would not have occurred. Inherent in the phrase “but for” is the requirement that Cramahe’s negligence was necessary to bring about the collision. In other words, the accident would not have occurred without Cramahe’s negligence. This is a factual inquiry. If having regard to all the evidence the Defendants do not establish this on a balance of probabilities, the action against Cramahe fails.

[ 121 ] The Defendants allege that there are four causative elements that would have prevented the accident had one been present at the time. The elements are as follows:

a. As Amy approached the hill, the centerline would have notified her that she was on, or within, two inches of the edge of the centerline. As she was approaching a blind hill, it is more reasonable to infer that she wold have moved over to the right and off the centerline.

b. Prior to Amy cresting the hill, she would have seen the beacon (hazard light) on Jayson’s tractor and knowing that an oncoming vehicle was coming, it can be reasonably inferred that she would have checked her position on the roadway, vis-à-vis the centerline and moved to the right.

c. As Amy descended the slope, she would have seen that a portion of the tractor (at the very least, the positional light on the left) was in her lane and it is reasonable to assume that she would have moved away from the centerline, over to the right;

d. The centerline would have allowed Jayson to see that for at least eight seconds, Amy was proceeding down the road on or within a few inches of the centerline.

[ 122 ] Having thoroughly considered the submissions of both counsel and having regard to all of the evidence presented at the trial, there is no doubt in my mind that the accident was not caused but for the absence of the centerline. I make this finding irrespective of whether the centerline continued 150 meters from the crest of the hill or whether the centerline continued through to the collision site.

[ 123 ] I will deal with each of the Defendants’ alleged causative elements separately. However, it is my view that the first and second causative element are virtually identical at their core – that the presence of a centerline would have afforded Amy the opportunity to check her relative position in her lane and readjust her position accordingly.

Causative Element #1: As Amy approached the hill, the centerline would have notified Amy that she was on or within two inches of the centerline and it is reasonable to infer that she would have moved over to the right of the centerline.

[ 124 ] There is no evidence that Amy was unaware of her relative position in her lane. Amy’s van was at all times entirely within her own lane. There is also no evidence that without a centerline, Amy would not have been able to determine the center of the roadway or her relative position in her lane. In fact, I find the opposite to be true.

[ 125 ] PC Flindall testified that the road surface of Telephone Road was raised in the center and crowned towards the shoulders. Jayson Atkinson testified that there was a “crown” in the road and that this “crown” was the center point of the road. Mr. Porter testified that the segment of roadway travelled by Amy had a “seam” in the center of the road. Mr. Porter referred to this “seam” interchangeably as a “seam”, “center joint” and “center hump”. Mr. Porter testified that the center joint/hump/seam “was in the center of the roadway”. Mr. Porter further testified that the “seam/center joint/center hump” in the center of the road was visible as he drove on the road. More precisely, Mr. Porter stated that the “seam/center joint/center hump” was “more visible” when the centerline was present, with the obvious inference that the seam/center, joint/center, hump remained visible without the centerline present.

[ 126 ] Regardless of the presence of the seam in the center of the roadway, given that Amy was in her own lane at all times, there was no reason for her to have “moved over to the right of the centerline” on her approach to the hill when there were no lights or hazard presented to her that would indicate an oncoming vehicle was encroaching in her lane. Amy was in her own lane. Had any vehicle approaching Amy also been in its own lane, there would not have been an accident.

Causative Element #2: Prior to Amy cresting the hill she would have seen the beacon (hazard light) on Jayson’s tractor and knowing that an oncoming vehicle was coming, it can be reasonably inferred that she would have checked her position on the roadway, vis-à-vis the centerline and would have moved to the right.

[ 127 ] Similar to causative element #1, there is no evidence that Amy was not aware of her relative position in her lane. Amy’s van was at all times entirely within her own lane. Given that Amy was in her own lane at all times, there was no reason for her to have moved to the right upon seeing the beacon (hazard light) knowing that an oncoming vehicle was coming, unless Amy could identify that the beacon was connected to a vehicle encroaching in her lane.

[ 128 ] There is also no evidence that the beacon would create a reasonable inference that the vehicle attached to the beacon was encroaching in Amy’s lane.

[ 129 ] PC Flindall opined that “as it was dark, Amy Morton may not have been aware of the type of vehicle approaching her and therefore did not turn out to the right to avoid the tractor”. PC Flindall’s conclusion was that Amy may not have been aware of the type of vehicle that she was approaching because “the tractor had five lights across the front, and the amber tire markers, she may not have been aware that it is a tractor. It’s not a typical vehicle that you would see on the road. She would have just crested the hill as well”.

[ 130 ] Mr. Porter provided accident reconstruction evidence regarding what he observed when driving on the same portion of roadway in a similar vehicle heading towards a similar hazard. Mr. Porter testified that at first glance, it was a light in the distance and then, as the van crested the hill, the amber light became visible. Mr. Porter agreed on cross-examination that he could not see or identify the size or type of vehicle attached to the beacon (hazard light) until one to two seconds before impact.

[ 131 ] Therefore, it is not reasonable to infer that the presentation of an amber hazard light, in and of itself, required Amy to move her position to the right when she was already entirely within her own lane. It is also not reasonable to infer that Amy would have lacked a frame of reference to locate her position on the roadway without a centerline present, given the amply available evidence that the center of the roadway had a raised crown/center, seam/center, or hump.

Causative Element #3: As Amy descended the slope, she would have seen that a portion of the tractor (at the very least, the positional light on the left) was in her lane and it is reasonable to assume that she would have moved away from the centerline, over to the right.

[ 132 ] This causative element seeks to conflate Amy’s ability to discern or identify approaching lights, the chassis of the tractor, and the wheels of the tractor that were in Amy’s lane of traffic.

[ 133 ] Mr. Porter’s evidence was that he could not see any portion of the tractor (the chassis) until two seconds prior to impact. Even then, the tractor’s chassis was entirely in the westbound lane. Mr. Porter’s further evidence was that he could not see the tractor’s wheels, the only object that encroached on the eastbound lane, until one second prior to impact.

[ 134 ] With respect to Amy’s ability to discern and identify the tractor and/or the tractor’s wheels, Mr. Porter noted that at two to one second prior to impact, the glare from the tractor lights made it difficult to continue looking forward. Mr. Porter “fought not to look away”. Mr. Porter referred to the approaching lights as having “a discomfort glare”.

[ 135 ] Mr. Porter’s evidence relating to his ability to discern or identify the location of the positional light was that at the five second point with a centerline present, that he was able to determine that the positional light was over the centerline. He did not testify that he was able to independently identify that the positional light was attached to a tractor or to any other vehicle.

[ 136 ] When challenged in cross-examination that the photograph did not record this observation, Mr. Porter insisted that at the five second point the positional light was over the centerline (when the centerline was present). Mr. Porter also insisted that his observation was that the five second point photograph confirmed that the positional light was over the centerline.

[ 137 ] I did not make the same observation as Mr. Porter.

[ 138 ] To my eye, at the five second point, the positional light was not over the centerline but fully within the opposing lane.

[ 139 ] Mr. Porter testified that the observations made by him as he conducted the accident reconstruction were recorded by videotape, photographs, and audiotape. He testified that his actual observations were different than what was captured by the photographs or videotape because photographs tend to flatten the light.

[ 140 ] While Mr. Porter’s explanation may be technically correct, it fails to consider the impact of Mr. Porter’s knowledge that he was viewing a positional light attached to a tractor that was positioned over the centerline. Mr. Porter, although challenged on this point, did not provide a satisfactory explanation as to how this knowledge affected his ability to provide objective observations. The thrust of the argument seemed to be that Mr. Porter was an expert in accident reconstruction. He recreates accidents and makes observations which he records using varying methods to evidence his observations. However, the recording of his observations do not always reflect his actual observations.

[ 141 ] In the circumstances of this case, I am not satisfied that Mr. Porter’s subjective evidence that he could discern that at the five second point that the positional light was over the centerline is objectively reliable evidence. Even if it is objectively reliable, I am not satisfied that it can be reasonably inferred that Amy made the same or similar observations.

[ 142 ] The evidence established that Amy did not slow her vehicle, did not alter her path, did not swerve her vehicle, and did not apply her brakes at any point.

[ 143 ] If I accept Jayson’s evidence that it was dusk and not dark, then Amy could have seen the outline of the tractor and the positional light and could have understood that she was approaching a hazard. In this circumstance, as noted by Mr. Porter, Amy would not have required a centerline to see the position of the tractor and take evasive action.

[ 144 ] If I accept PC Flindall’s evidence that the accident happened after dark, then Amy would not have seen the outline of the tractor until two seconds prior to impact and would not have seen that the tractor’s tires were in her lane until one second prior to impact.

[ 145 ] The presence of a positional light – centerline or no centerline – does not assist Amy. The positional light had no oppositional partner. It indicated nothing. The intent of the light was to act in tandem with the oppositional light to indicate or warn of the width of the vehicle. Without the oppositional position light working, Amy was not provided with visual cues as to the purpose of the light. PC Flindall’s evidence supports the theory that Amy did not know or understand that the “positional light” was connected to an oversized tractor.

[ 146 ] I am not able to reasonably infer that if a centerline were present, that Amy would have seen that a portion of the tractor (at the very least, the positional light on the left) was in her lane and would have moved away from the centerline and over to the right, due to the following factors:

a. The tractor’s headlights were centered in the middle of the chassis and made it appear as if the tractor was solidly centered within the lane that it was travelling.

b. The tractor’s headlights created the illusion that the tractor was much narrower than its actual width.

c. The working tractor lights did not assist approaching drivers to gauge the actual width of the tractor from any distance. Most notably, the tractor’s lights did not assist approaching drivers to gauge the actual width of the tractor from any distance. The existence of one positional light extended over the outside wheel provided no form of reference without an opposing positional light.

d. Taking into account the narrow position of the tractor’s headlights on the tractor’s chassis and the distracting glare of the tractor’s top and hazard lights, the positional light merely added confusion to the visual without providing any guidance or cues as to the purpose of the positional light.

e. During the accident reconstruction, Mr. Porter did not have sufficient centerline to extend all the way to the tractor. Notwithstanding the absence of a centerline extending to the tractor, Mr. Porter testified that “the centerline was visible essentially all the way to the tractor...in my mind’s eye”. This observation involving Mr. Porter’s “mind’s eye” buttresses my concern that where Mr. Porter’s observations differed from the photographs or videotape, that such observations may be subjectively skewed by his knowledge of the facts and not indicative of objective observations or Amy’s observations.

f. Mr. Porter stated that at the five second mark, “it was possible to discern that the centerline was between the positional light and the headlights of the tractor” and “that assisted me in understanding that the left side of the tractor was over the centerline”. Mr. Porter further stated, “I could, at that point, look down the centerline and understand that that was actually on my side of the road”. I have difficulty accepting this evidence as being objective in light of the fact that only the lights were visible. It was not possible to see any outline of the tractor, nor was there any ability to see the tractor wheels until one second prior to impact and the positional light had no oppositional partner for reference.

g. My review of the five second photograph did not coincide with Mr. Porter’s observations. I could not determine that the positional light was over the center of the road. Further, as the second positional light was not working, the positional light (and reflectors) as identified by Mr. Porter, did not provide any identifiable frame of reference nor did it assist in broadcasting the width of the tractor.

h. In cross-examination, Mr. Porter confirmed that he could not see the tractor’s wheels until one second prior to the collision. It was only at the one second position that the wheels became visible and were clearly over the centerline, however, by that point the lights were overpowering and there was very little reaction response time to avoid the accident. In this case, we know that if Amy did see the tractor wheels at the one second mark, she had no time to respond as she took no evasive action whatsoever.

[ 147 ] Therefore, it remains questionable to me that Amy ever identified the tractor as a hazard encroaching in her lane. It is not reasonable to infer that a centerline would have allowed Amy to avoid the accident as she could not have seen that anything was in her lane until one second prior to impact. As Amy did not react, either she never saw the hazard or she did not have sufficient time to react to the hazard. In either event, the centerline would have made no difference.

Causative Element #4: The centerline would have allowed Jayson to see that for at least eight seconds, Amy was proceeding down the road on or within a few inches of the centerline.

[ 148 ] Jayson testified that he was born in and grew up on a farm in the area. He had started driving a tractor at a very young age and began driving tractors on the road at the age of 16. On the day of the accident he was an experienced tractor driver.

[ 149 ] Jayson was familiar with the area and the road. He stated that he had driven on it many times before. Jayson’s evidence was that there was a crown in the center of Telephone Road that denotes the center of the road. Jayson stated that he knew that the tractor would be encroaching on the eastward portion of the lane and that the dual tires were over the crown of the road.

[ 150 ] Jayson’s evidence, although not relied upon by Mr. Porter for the reconstruction, was that at the time of the accident it was dusk – not dark. He specifically said “it was neither dark, nor daylight”.

[ 151 ] Jayson testified that he could see he was encroaching over the center of the road without any artificial lights. Jayson could see Amy’s van crest the hill. Jayson could see the entire outline of Amy’s vehicle because there was sufficient daylight.

[ 152 ] Jayson watched Amy’s vehicle approach him. Jayson testified that as the van approached, he could see it was positioned in the eastbound lane as if Amy was meeting a normal road vehicle.

[ 153 ] Jayson stated that he had passed many cars before on the road, although not on this occasion, and had never been involved in a collision because cars yield to the tractor and “get out of the way”.

[ 154 ] Jayson testified that given the lighting (dusk), he assumed that the entirety of the tractor was visible to Amy. He could see the surface of the road, the shoulders, and he believed that he could not go farther to the right. He did not see Amy adjust her lateral position on the road, nor did he observe her swerve, slow her vehicle on her approach, or brake. He was not aware that a collision was going to happen until a split second before the accident.

[ 155 ] Based on Jayson’s own evidence, he was fully aware of Amy’s position on the road as she approached him because he could see her, the road surface, was aware of his position on the road, and was aware of Amy’s position in her lane of traffic. What Jayson was not aware of was the fact that Amy would not slow, swerve or brake on her approach.

[ 156 ] In the circumstances, the evidence establishes that Jayson could see Amy’s vehicle and its relative position on the road. The presence of a centerline would not have made any difference.

Summary and Conclusion

[ 157 ] All of the evidence introduced at trial must be reviewed, considered, and balanced.

[ 158 ] Although Mr. Porter’s evidence as it relates to the accident reconstruction is the “best” evidence available in the absence of Amy’s observations, this evidence is clearly limited. It is a tool that assists the court with the determination of the issue of causation but is not determinative of causation.

[ 159 ] In the circumstances of this particular case, and for the reasons provided herein, I cannot conclude, nor can I make any reasonable inferences that would allow me to conclude on a balance of probabilities, that “but for” the absence of the centerline on Telephone Road, the accident would not have occurred.

[ 160 ] As causation has not been proven by the Defendants, it is not necessary to consider the statutory defences.

PART V – JUDGMENT ORDERED

[ 161 ] This Court Orders as follows:

a. The Defendants’ claim against the Third Party Cramahe is hereby dismissed.

b. Subject to any Offers to Settle that may affect costs, Cramahe shall be entitled to their costs on a partial indemnity basis.

c. In the event the parties are unable to agree on the quantum of costs payable, Cramahe shall have 30 days from the date herein to serve and file their costs submissions restricted to four pages in length with a Bill of Costs, Cost Outline, and any Offers to Settle, attached.

d. The Defendants shall have 60 days from the date herein to submit their response to Cramahe’s costs submissions, said response restricted to four pages in length with a Bill of Costs, Cost Outline, and any Offers to Settle, attached.

e. Any reply by Cramahe shall be served and filed within 75 days and restricted to two pages.

f. The parties may alter or extend the timetable for costs submissions on consent and shall thereafter provide the court with notice of any agreement in this regard.

Justice S. J. Woodley Released: February 28, 2019