Coakley v. Halifax (City)
Kevin Coakley, Plaintiff
The City of Halifax and Lawrence Felix Landry, Defendants
Nova Scotia Judgments:  N.S.J. No. 125
Action 1985 S.H. No. 53169
73 N.S.R. (2d) 331
Supreme Court of Nova Scotia - Trial Division
Halifax, Nova Scotia
Heard: April 21, 22, 1986
Judgment: April 22, 1986
Motor vehicle collision -- Inevitable accident -- Emergency vehicle skidding on unexpected icy portion of road -- Driver exercising due caution -- Action dismissed -- Back injury -- Pain for one year -- Off work five months -- $8,000 general damages.
The plaintiff's vehicle was struck by a fire truck responding to an emergency call. The plaintiff heard the siren and pulled over to the curb and was completely stopped when he was struck. The fire truck driver had negotiated around some vehicles which failed to yield to him but lost control on an unexpectantly icy portion of the road. The fire truck skidded and struck the plaintiff's vehicle on the opposite side of the road.
HELD: The action was dismissed. Skidding onto the opposite side of the road raises a presumption of negligence but the defendant rebutted the presumption by showing that at the time of the accident he was proceeding with due caution under all the circumstances. The defendant had driven along the same route earlier that day and had not encountered slippery portions and had no reason to expect a slippery patch when he struck the plaintiff. As well, he had carefully driven around other vehicles which had blocked his progress. The plaintiff suffered a soft tissue injury to the lower back and a neck and shoulder sprain. He lost $3,980 while off work for five months. He had 40 physiotherapy treatments and suffered considerable pain for more than one year. The Court found that he should expect recovery soon. General damages were assessed at $8,000.
Mr. Mark H. Arnold, solicitor for the plaintiff.
Mr. David A. Miller, solicitor for the defendants.
KELLY J.:-- (Orally at the conclusion of evidence)
This is a case that involves a claim by the plaintiff for certain injuries arising out of an accident which occurred on January 8th, 1985 on Dutch Village Road in the City of Halifax.
The plaintiff was proceeding southbound on Dutch Village Road in his vehicle with his wife and two other adult passengers and an infant child in the rear of his vehicle. He was struck on the left rear portion of his vehicle by a fire truck owned by the defendant, the City of Halifax and operated by the defendant, Lawrence Landry, an employee of the City of Halifax and a fireman first class who had been trained in the operation of that particular vehicle.
At the time of the accident the fire vehicle was proceeding northerly on Dutch Village Road and was responding to an emergency call which had been received moments before. Fortunately the plaintiff was the only one of the occupants of his motor vehicle who was injured although the accident caused considerable damage to his vehicle as evidenced by photographs in exhibit in this matter. The fire truck suffered some damage to its left front bumper area. Prior to the incident in question the fire truck had responded to a number of previous calls during that day, at least one of which was over the route in question.
The weather conditions were cold on the day in question and evidence was adduced that the temperature during the day varied in the eight to eleven below zero range and at the time of the incident, was approximately eight below zero at the weather station located in Shearwater, not far from the place where the incident occurred. The fire vehicle was occupied by several other firemen, all of which gave evidence in this matter. The evidence of all of these people was consistent that the vehicle was in good working order during the day and in fact its operational status had to be checked as part of the normal course of events during their shift. They did not experience slippery conditions driving elsewhere in response to calls in their district of Halifax that day. The operator of the vehicle had noted, that there were two other areas that he crossed that day where normally he would have expected slippery conditions in cold weather but did not experience them on the day in question.
At approximately 7:21 p.m. on January 8, 1985, the fire vehicle in question, named "Rescue Two", was responding to an emergency call. The defendant fire fighter, Landry, drove the fire truck with all of the sirens and horns activated and the lights flashing in the normal manner of such a vehicle when proceeding on an emergency call. They did not experience much traffic until they turned onto the Dutch Village Road area where they experienced some considerable traffic as this is an area which is somewhat built up with a number of business establishments on both sides of the road.
Before coming to the more built up section, the fire vehicle had experienced some difficulty with vehicles in front of them not giving way to them and it had to come almost to a stop on a few occasions. The effect of this is that the vehicle was travelling at a relatively slow rate of speed, approximately 15 to 20 miles an hour, when it came close to the scene of the incident. As it approached that area it again found a car in front of it not responding to its signals which included the blowing of a rather loud horn and eventually that vehicle turned into a business establishment on the right hand side of the road, allowing the fire vehicle to continue.
After passing that vehicle, the defendant Landry came upon a vehicle which appeared to be exiting from another business establishment and he maneuvered the fire vehicle to the left of his lane and crossed the center line to avoid this vehicle. His evidence was he then turned back toward his lane and immediately came upon a slight turn to the left on Dutch Village Road which required him to start that turn. At this time he had noticed vehicles ahead of him on the same side of the road, about two hundred and fifty feet further on, that had stopped because of another vehicle ahead of them turning left onto Rufus Avenue, a street to the west of Dutch Village Road. His evidence was that he felt he would have to stop his vehicle because of these cars and touched his brake. This time he indicated he felt the truck starting to skid to the left and he responded in the manner that he was trained to do, that is to remove his foot from the brake and to attempt to maneuver his vehicle by the steering wheel and the accelerator to bring it under control. Apparently this did not work and according to his evidence he skidded into the Coakley vehicle, which at this time had been pulled to an almost complete stop on the curb on the opposite side of the highway. The defendant Landry felt that he side-swiped the Coakley vehicle but was uncertain as to the actual nature of the impact. The fire vehicle hit a further vehicle and eventually skidded into a telephone pole, shearing off that pole and then came to a stop.
What is clear, from all of the evidence and from the photographs of the damage to the two vehicles, is that the left front bumper of the fire truck struck the left rear of the plaintiff's vehicle and continued on down the street to strike the second vehicle.
Mr. Coakley's evidence was that some distance from the site of the impact he had heard the emmergency siren but could not see the source of that siren. He indicated he slowed his speed and there was a discussion in his vehicle as to the possible source of the sound. After a brief period of time he saw the fire vehicle with its flashing lights and pulled over to the side of the road moving very slowly along the curb. He noticed the fire vehicle attempting to go around another vehicle and coming onto his portion of the highway. The defendant Landry felt about 25 percent of the fire vehicle crossed the center line of Dutch Village Road, whereas Mr. Coakley felt more of the vehicle had crossed the center of the road. Mr. Coakley's evidence was to the effect that the fire truck did not appear to pull back onto its own side of the road and although he felt the vehicle could pass safely, his wife commented that she felt the fire vehicle might strike them. In fact, the fire vehicle did, of course, strike them in the manner indicated. The evidence of the defendant Landry was to the effect that he felt the skidding of the fire vehicle had been caused by a slippery surface on the highway and that when he eventually got out of his truck he did experience a somewhat slippery surface.
A number of the witnesses commented that the surface of the road was wet at this point. Some of them stating that it was slippery and some not noting whether or not it was slippery and not experiencing problems walking on the highway. The evidence of one of the witnesses, Glendon Gill, a fireman driving in the cab of the fire truck, was to the effect that he did note that the street was damp and not dry and that he could walk on it without worrying about falling, but when he rubbed the street with his rubber boot it did appear to be slippery on the surface.
As I indicated earlier, the firemen, and particularly Mr. Landry, did not anticipate a slippery road at this point as they had not experienced slippery roads throughout the day nor, in fact, had Mr. Coakley experienced any difficulty in maneuvering over the rather lengthy distance of approximately five miles from his place of residence to the place of the incident. During this time he would have had to stop several times and climb a number of hills and take a number of turns.
I accept the evidence of all of the parties that it would have or was a surprise to all of them to have found a slippery area on Dutch Village Road at the point in question.
The plaintiff's submission is that there was no satisfactory evidence of a slippery road and that the only reasonable explanation would be that the fire vehicle was operated in a way that could be considered improper or imprudent under the circumstances because it struck them and possibly skidded thereafter - because of the impact.
The defence submits that the accident occurred without any negligence on the part of the defendants and that the accident was purely inevitable and that it was not caused by the fault of the defendant.
Both parties have referred to Grant v. Lutes (1976), 17 N.S.R. (2d) 614 where the Appeal Division of this court overturned the jury's verdict in which the defendant has been found negligent in causing an accident brought about as a result of a skid on a highway. The Appeal Division in that case reviewed the evidence and concluded that it occurred without negligence on the part of the defendant and that the plaintiff's claim failed on that account. At page 626 Justice Cooper referred to the burden of proof of negligence in circumstances similar to the case before us. His comments are:
"The car being driven by Mrs. Lutes 'slewed', which I take to be the same as skidded. This raised an inference of negligence on her part which called for an explanation. The fact of the skid itself cannot be taken as sufficient to overcome that inference. It was incumbent upon Mrs. Lutes to go further and establish that the skid happened without any negligence on her part. The matter is very clearly put by Lord Greene, M.R., in Laurie v. Raglan Building Co.,  1 K.B. 152, Court of Appeal at p. 154:
'..., the plaintiff gave evidence which showed that the position of the lorry over the pavement was due to a skid, and it is contended on behalf of the defendants that, assuming a prima facie case of negligence, that circumstance is sufficient to displace the prima facie case. In my opinion, that is not a sound proposition. The skid by itself is neutral. It may or may not be due to negligence. If, where a prima facie case of negligence arises, it is shown that the accident is due to a skid which happened without default of the driver, the prima facie case is clearly displaced, but merely to establish the skid does not appear to me to be sufficient for that purpose.'
I refer also to the statement of Kellock, J., in Gauthier & Company Ltd. v. The King,  S.C.R. 143 at p. 152:
'Skidding of a vehicle on a highway by itself is a "neutral fact", equally consistent with negligence or no negligence.'"
The question therefore for us to determine is whether the skid was caused by negligence on the part of the defendant Landry. The fact of the truck crossing the highway and striking the defendant while he is parked either at a stop or almost at a stop next to the curb creates, in my mind, an obligation for the defendant to respond. The defendant in this case responds by stating that it skidded and that the skid was due to a slippery patch on the highway that it could not have reasonably anticipated. In the Grant v. Lutes case (supra), Justice Cooper concluded at page 627:
"All the testimony in my opinion indicates that Mrs. Lutes was driving with caution at a reasonable rate of speed and that she came upon the 'greasy' spot on the highway, as contrasted with a merely slippery condition, without any forewarning that it was there."
In the same case Mr. Justice MacDonald summarized his understanding of the law in this area and the burdens or evidentiary requirements of the parties at p. 644:
"... if the driver can establish that he was driving with the ordinary care, caution and skill which a driver is required to exercise under the conditions as they existed at the time of the accident he is not to be found guilty of negligence because for some reason or other, an accident takes place owing to a skid. In other words, if he proves that he met the foregoing standard of care he has established or shown 'a way in which the accident may have occurred without negligence.'"
I am satisfied on review of all of the evidence that there was an unexpected slippery portion of the highway located in the area where Mr. Landry applied the brakes of the fire vehicle. I am also satisfied that he was proceeding with due caution under all of the circumstances. This had been evidenced by his actions in coping with at least two or three vehicles which had not properly responded to the emergency signal. When he did cross the center line it was under such circumstances where he could be expected to have passed the Coakley vehicle without risk. The evidence of Mr. Coakley agrees with this conclusion in that he felt the fire vehicle could have passed him without risk. It is therefore my finding that the defendant Landry established that he had met the standard of care outlined by the justices of the Appeal Division in Grant v. Lutes (supra) and had rebutted any prima facie case of negligence established against him by his vehicle crossing the center line of the highway and striking the Coakley vehicle. I base this upon a careful assessment of the evidence given by all of the witnesses, including the evidence of Mr. Coakley, and on my assessment of the credibility of the other witnesses who were passengers in the fire vehicle. The accident was clearly an unfortunate one that has caused Mr. Coakley severe pain and suffering, inconvenience and cost and expense, but this should only be responded to by the defendants if Mr. Coakley can discharge the burden imposed upon the plaintiff that the defendant was operating in an improper or imprudent manner and negligently was responsible for the damage that was caused. I do not find that this burden was discharged.
I feel it appropriate in these circumstances to deal with the matter of quantum in spite of my finding on liability. There are various heads of damage. I find that the first claim of damage is with reference to a cost of travel by Mr. Coakley to some forty (40) physiotherapy treatments during 1985, and I find that he should receive his costs of that travel. The parties have discussed the matter of distance and if the parties need further assessment of those costs I will retain jurisdiction to deal with that.
With reference to the loss of employment, Mr. Coakley lost considerable employment income during the summer period of 1985 arising out of his injury claim in that he lost a total of 398 hours during the periods of May to September. On cross-examination his employer indicated that it would be fair to average his employment at 35 hours a week rather than the 40 hours a week but I find in the context of that response the employer was referring to the period of employment commencing with May and ending in November or December and that the actual hours claimed was during a more intensive work period. The rate of pay during that period of time was $10.00 per hour and I find that his loss of pay during that period was $3,980.00.
A somewhat different situation arises with reference to his claim for loss of wages from the period of October 10 to November 29, when his employer shut down his operation for the season. During that period of time the employer stated that he was forced to lay off one employee because of a shortage of work. He indicated that he normally would have laid off the man with the least seniority. However, because of Mr. Coakley's back and shoulder bothering him, he volunteered to take the layoff. Mr. Coakley has given evidence that during a period of layoff he normally received unemployment benefits.
I have reviewed the evidence with reference to Mr. Coakley's condition during this period of time, that is from October 10th to November 29th as well, and I find from that during this period there is not clear evidence that he was incapable of doing any of the work that his employer described on the stand. There was some evidence from Mr. Coakley that certain of the employment, such as digging graves and lifting heavy rocks, was not possible but at that stage of his recovery I feel it would be inappropriate for me to find that during that period of time he should recover full lost wages because of his volunteering to be laid off in place of another less senior employee. I find that no damages should be recovered for that head of damage.
The last claim is his general damage claim for pain and suffering and the physical difficulties he encountered as a result of the accident. The court had extensive evidence from Dr. Yabsley, an orthopedic surgeon, by oral evidence and by way of two medical reports. There was some question early in the treatment period as to the actual extent of his back injury but it appears in final assessment that he had soft tissue injury to the left flank or lower portion of his back and as well he had a sprain of some magnitude to his neck and shoulder areas which were classified by Dr. Yabsley on a scale of mild, moderate and severe as mild. Regardless of its classification, it is clear that from the various medical reports, Dr. Yabsley's observation and testing of this individual and from his own evidence, that he suffered extreme pain over a long period of time. At present he still sometimes has difficulty sleeping, lifting weights and is restricted from some actions. It is also clear from the expert testimony this type of an effect may not occur in every case of soft tissue injury but is not unusual. I did not get the impression from listening to the plaintiff's testimony that he was exaggerating his symptoms to any great degree. I feel that he has suffered considerably but I must accept the testimony of Dr. Yabsley that his injuries are reversible ones and that normally he should expect recovery soon and that he has substantially recovered with reference to his neck injury. There was some evidence before me that the plaintiff could have followed more religiously certain treatment and lifting practices and other exercises given to him by his physiotherapist.
In all of the evidence it is clear that he has suffered considerably over a period of time in excess of one year. I have been referred to a number of cases by counsel in this matter to assist me in determining the quantum of general damages and I assess his general damage at $8,000.00.
I reiterate, my assessment of damage is provisional as I do not find that the plaintiff has discharged his burden of proof in this matter.