Ketler v. Nova Scotia (Attorney General), 2016 NSCA 64

• Judge: Fichaud, Bryson and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: August 17, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 64;(2016), 376 N.S.R.(2d) 322 (CA)

Ketler v. N.S. (A.G.) (2016), 376 N.S.R.(2d) 322 (CA);

    1185 A.P.R. 322

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AU.027

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

(CA 444047; 2016 NSCA 64)

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

Nova Scotia Court of Appeal

Fichaud, Bryson and Bourgeois, JJ.A.

August 17, 2016.

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, in a judgment reported (2015), 360 N.S.R.(2d) 361; 1135 A.P.R. 361, dismissed the action. The parties agreed on costs with the exception of the successful defendant's claim for the full invoiced cost ($34,635) of its expert engineering witness.

The Nova Scotia Supreme Court, in a judgment reported (2015), 364 N.S.R.(2d) 225; 1146 A.P.R. 225, allowed as a disbursement $10,722.66 of the amount claimed for the expert witness. Although the expert evidence was necessary, of excellent quality, and central to the issues of liability, the hours charged to the defendant were unreasonable. The plaintiff appealed. The defendant applied for security for costs in the amount of 40% of the costs awarded at trial.

The Nova Scotia Court of Appeal, per Bryson, J.A., in a judgment reported (2016), 370 N.S.R.(2d) 196; 1165 A.P.R. 196, ordered that the plaintiff post security for costs in the modest amount of $2,500, which was about 25% of the amount sought by the defendant. The appeal proceeded.

The Nova Scotia Court of Appeal dismissed the appeal.

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 trial judge 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 trial judge 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 - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge did not err in determining the standard of care or in concluding that the plaintiff failed to establish causation.

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 ].

Counsel:

Nicolle A. Snow, for the appellant;

Duane Eddy, for the respondent.

This appeal was heard on May 18, 2016, at Halifax, N.S., before Fichaud, Bryson and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal.

On August 17, 2016, Bourgeois, J.A., delivered the following judgment for the Court of Appeal.