Ketler v. Nova Scotia (Attorney General), 2015 NSSC 170

Judge:Warner, J.
Court:Supreme Court of Nova Scotia
Case Date:June 10, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSSC 170;(2015), 360 N.S.R.(2d) 361 (SC)
 
FREE EXCERPT

Ketler v. N.S. (A.G.) (2015), 360 N.S.R.(2d) 361 (SC);

    1135 A.P.R. 361

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.018

Mark Paul Ketler (plaintiff) v. The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia (defendant)

(Tru. No. 340878; 2015 NSSC 170)

Indexed As: Ketler v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

Warner, J.

June 10, 2015.

Summary:

In October 2010, the plaintiff lost control of his vehicle while swerving to avoid striking a deer. He drove through the wooden guardrail on the side of a 10 metre long wooden bridge. The vehicle came to rest upside down in a creek. The plaintiff sued the Province for damages, alleging negligence in the inspection and maintenance of the guardrail, which had significantly deteriorated. A series of inspections dating from 2000 noted the need for repairs. The last inspection, 1.5 years before the accident, noted that the railing system was rotten and in urgent need of replacement. No repairs or replacement were undertaken notwithstanding the Province's knowledge of four fatalities between 2002 and 2007 on other short timber bridges. Repairs were scheduled, but ranked a low priority given the light traffic on this rural road.

The Nova Scotia Supreme Court dismissed the action.

Crown - Topic 1573.1

Torts by and against Crown - Negligence by Crown - Bridges - In October 2010, the plaintiff lost control of his vehicle while swerving to avoid striking a deer - He drove through the wooden guardrail on the side of a 10 metre long wooden bridge - The plaintiff sued the Province for damages, alleging negligence in the inspection, maintenance and failure to replace the guardrail, which had significantly deteriorated - A series of inspections dating from 2000 noted the need for repairs - In 2007, the Province had in place a program for inspecting, maintaining, repairing and replacing all wooden guard rails to a higher standard - Since all could not be replaced immediately, that work was based on the bridge's location on a priority list - Some bridges were upgraded - The bridge in question was number 28 of the list of 51 bridges left to be upgraded to the new standards - The Nova Scotia Supreme Court dismissed the action - The Province conceded that it owed a prima facie duty of care respecting the maintenance of bridges and that the risk was reasonably foreseeable - The policy in place to upgrade all wooden guardrails on a priority basis was a policy decision, negating any duty to immediately upgrade all wooden guardrails to the new higher standards - That policy was both reasonable and reasonably carried out - The court opined that the state of the wooden guardrails at the time of the accident probably did not meet that pre-2007 standard - However, the plaintiff failed to prove causation - The "but for" test was not met where the plaintiff did not establish that, if the wooden guardrail had been maintained to the pre-2007 standards, his vehicle would not have gone off the bridge - Absent accident reconstruction evidence or any other evidence that the pre-2007 standard would have prevented the vehicle from going off the bridge, causation was speculative - See paragraphs 335 to 372.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - [See Crown - Topic 1573.1 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - [See Crown - Topic 1573.1 ].

Torts - Topic 61

Negligence - Causation - Causal connection - [See Crown - Topic 1573.1 ].

Torts - Topic 78

Negligence - Duty of care - Effect of statutory precautions or safeguards on the scope of the duty of care - [See Crown - Topic 1573.1 ].

Torts - Topic 79

Negligence - Duty of care - Factors limiting or reducing scope of duty of care - [See Crown - Topic 1573.1 ].

Torts - Topic 9156

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Highway authorities - [See Crown - Topic 1573.1 ].

Cases Noticed:

Leddicote v. Nova Scotia (Attorney General) et al. (2002), 203 N.S.R.(2d) 271; 635 A.P.R. 271; 2002 NSCA 47, refd to. [para. 208].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 218].

Bubar v. New Brunswick (1995), 167 N.B.R.(2d) 222; 427 A.P.R. 222 (T.D.), refd to. [para. 218].

Balan et al. v. Newfoundland (1994), 128 Nfld. & P.E.I.R. 99; 400 A.P.R. 99 (Nfld. T.D.), refd to. [para. 220].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 220].

Swinamer v. Nova Scotia (Attorney General) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 251].

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. 252].

Anderson v. British Columbia et al., [2008] B.C.T.C. Uned. 16; 2008 BCSC 41, refd to. [para. 252].

Hanscher v. Saskatoon (City), [1998] S.J. No. 116 (Prov. Ct.), refd to. [para. 252].

Fry v. Henry and Alberta (1985), 64 A.R. 304 (C.A.), refd to. [para. 253].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 460].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 281].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 283].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 284].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al. (2001), 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 285].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 285].

Odhavji Estate et al. v. Woodhouse et al. (2003), 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 287].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 287].

Fullowka et al. v. Pinkerton's of Canada et al. (2010), 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 294].

Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 2012 SCC 32, refd to. [para. 326].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 327].

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201, refd to. [para. 351].

Authors and Works Noticed:

Chaudhury, Shantona, Causation in the Law of Negligence: Where are we now? Where are we going? Clements v. Clements; Ediger v. Johnston (2012), 40 Adv. Q. 257, generally [para. 327].

Chiefetz, David, Factual Causation in Negligence After Clements (2013), 41 Adv. Q. 179, generally [para. 326].

Klar, Lewis, Tort Law (5th Ed. 2012), pp. 344 [para. 320]; 487, 495, 496 [para. 333].

Knutsen, Erik S., Coping with Complex Causation Information in Personal Injury Cases (2013), 41 Adv. Q. 149, p. 155 [para. 329].

Linden, Allen M., and Feldthusen, B., Canadian Tort Law (9th Ed. 2011), pp. 378, 381 [para. 332].

Counsel:

Nicolle A. Snow, for the plaintiff;

Duane Eddy, for the defendant.

This action was heard on November 8-15, 2013, at Truro, N.S., before Warner, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 10, 2015.

To continue reading

FREE SIGN UP