Doyle v. Roberts et al., (2015) 373 Nfld. & P.E.I.R. 82 (PEISC)

• Judge: Cheverie, J.
• Case Date: June 15, 2015
• Jurisdiction: Prince Edward Island
• Citations: (2015), 373 Nfld. & P.E.I.R. 82 (PEISC)

Doyle v. Roberts (2015), 373 Nfld. & P.E.I.R. 82 (PEISC);

    1161 A.P.R. 82

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.048

Scott Doyle (plaintiff) v. Nancy Roberts & Lloyd Roberts, Executors of the Estate of Leo Frederick Roberts (defendant) and P.E.I. Mutual Insurance Company (third party)

(S1-GS-19458; 2015 PESC 37)

Indexed As: Doyle v. Roberts et al.

Prince Edward Island Supreme Court

Cheverie, J.

December 9, 2015.

Summary:

The plaintiff sued the defendant for injuries that he sustained while working on a fishing vessel owned and operated by the defendant. At the close of the plaintiff's case, the defendant brought a motion for non-suit pursuant to rule 52.11 of the Rules of Civil Procedure. The plaintiff objected to the motion, arguing that the defendant was prohibited from bringing such a motion because he had already opened his case by tendering the examination for discovery evidence of the plaintiff.

The Prince Edward Island Supreme Court, in a decision reported at (2015), 361 Nfld. & P.E.I.R. 127; 1122 A.P.R. 127, dismissed the motion.

The Prince Edward Island Supreme Court dismissed the plaintiff's action.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - Doyle sued Roberts for injuries that he sustained while working on Roberts' fishing vessel - Besides the parties, Roberts' daughter (Kim) was also on the vessel the day Doyle was injured - No discovery evidence from Kim was tendered at trial - Both parties asked the court to draw an adverse inference from the failure of the other to call Kim as a witness - The Prince Edward Island Supreme Court held that it was prohibited from exercising its discretion to draw an adverse inference - An adverse inference could only be drawn against a party who had control over the witness and was therefore the only party who could bring that witness before the court - Kim was not a party and therefore was not in the control of either party - She was equally available to be called by both parties - See paragraphs 11 to 16.

Master and Servant - Topic 5661

Liability of master to servant - Negligence - General - Roberts hired Doyle to work on his fishing vessel in August 2001 - Roberts' daughter (Kim) also worked on the vessel - Later than month, Doyle became caught up in the net hauler and suffered significant injuries to his arm - Doyle sued Roberts in negligence, asserting that Roberts (a) failed to provide him with a safe work environment; (b) failed to provide him with any or adequate training; and (c) was vicariously liable by reason of Kim, who was also not properly trained and did not turn off the net hauler quickly enough so as to avoid Doyle's injuries - The Prince Edward Island Supreme Court dismissed the action - The standard of care in 2001 was to use a net hauler of the type used by Roberts and to offer on-the-job training to helpers - Doyle did not need much training because he had been involved in the fishery for about 13 years prior to the incident and had previously performed the same tasks on another vessel - He knew how the net hauler operated and had gotten a glove caught in it on other occasions - Roberts' employment of both Doyle and Kim, rather than just one employee, to operate the net hauler was a reasonable precaution that he took to ensure Doyle's safety in a dangerous activity - Roberts did not breach the standard of care - Even if Roberts was negligent in the manner suggested by Doyle, those negligent acts did not cause Doyle's injury - The injury occurred so quickly that there was nothing anyone could have done to prevent it - See paragraphs 17 to 58.

Torts - Topic 26

Negligence - Standard of care - Knowledge of hazardous condition - [See Master and Servant - Topic 5661 ].

Torts - Topic 38

Negligence - Standard of care - Particular persons and relationships - Employers (master and servant) - [See Master and Servant - Topic 5661 ].

Torts - Topic 65

Negligence - Causation - Evidence and proof - [See Master and Servant - Topic 5661 ].

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - [See Master and Servant - Topic 5661 ].

Cases Noticed:

Doiron v. Haché (2005), 290 N.B.R.(2d) 79; 755 A.P.R. 79; 2005 NBCA 75, refd to. [para. 13].

Wiche v. Ontario et al., [2001] O.T.C. 359 (Sup. Ct.), refd to. [para. 13].

Director of Child Protection (P.E.I.) v. C.P. and T.P. (2014), 356 Nfld. & P.E.I.R. 58; 1108 A.P.R. 58; 2014 PECA 18, refd to. [para. 14].

Mustapha v. Culligan of Canada Ltd. (2008), 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 18].

Waldick v. Malcolm, [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, dist. [para. 27].

Zacharuk v. Kitlarchuk and Sawiak (1979), 18 A.R. 423 (Q.B.), refd to. [para. 32].

Canadian Northern Railway Co. v. Anderson (1911), 45 S.C.R. 355, refd to. [para. 33].

Shebansky v. Kapchinsky, Bar K Three Ranch and Smith (1981), 28 A.R. 451 (Q.B.), dist. [para. 34].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 40].

Clements v. Clements (2012), 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 2012 SCC 32, refd to. [para. 55].

Counsel:

John W. Hennessey, Q.C., and Thomas B. Keeler, for the plaintiff;

Mitchell T. MacLeod, for the defendant;

Douglas R. Drysdale, Q.C., for the defendant (for summation and argument only - June 15, 2015);

Murray L. Murphy, Q.C., and Nicole M. McKenna, for the third party.

This action was heard at Charlottetown, P.E.I., on November 3-6, 2014, January 6 and 13 and June 15, 2015, before Cheverie, J., of the Prince Edward Island Supreme Court, who delivered the following judgment on December 9, 2015.