IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Gerard v. Babin, 2005 NSSC 141
Date: 20050511
Docket: S.PHa(AC) No. 185851
Registry: Port Hawkesbury
Between:
Darrell Gerard
Plaintiff
v.
Mark Joseph Babin
Defendant
Judge: The Honourable Justice Frank Edwards
Heard: May 10 & 11, 2005, in Port Hood, Nova Scotia
Written Decision: June 2, 2005
Counsel: Hugh MacIsaac, Esq., Tracey Sturmy, for the plaintiff
Robert L. Barnes, Q.C., and Jennifer Ross, for the defendant
By the Court (orally):
[1] This case on liability is a fact-driven scenario. Other cases only go so far as far as their assistance is concerned. In the final analysis, every case has to be decided on its own particular circumstances. I am dismissing the Plaintiff Gerard’s case against the Defendant.
[2] Mr. Gerard, you were well represented and every possible argument has been marshalled on your behalf, but as I will explain briefly later, you have failed to discharge the burden of proof which is on you. This case hinges upon whether or not Mr. Babin was stopped on the highway on the day in question. To illustrate burden of proof, it is not up to Mr. Babin to prove that he was not stopped, it is up to Mr. Gerard to prove that he was. If it were a close-call situation, which I do not think it is, and if I was left in a position, for example, of not knowing who to believe or who’s evidence to accept, then Gerard’s case would be dismissed because he had failed to discharge the burden.
[3] This action arises out of a motor vehicle accident which occurred on September 30, 2000 on the highway which runs from Arichat to West Arichat. The accident occurred just before noon. The conditions were clear and dry. It was in a 50 kilometre per hour speed zone. It was a two-lane paved highway and the lanes were separated by a double solid line.
[4] The Defendant, Mark Babin (“Babin”), was in a 1964 Cadillac with his wife, Joanne, and friends Edmond and Judith Simpson. Mr. Babin was the driver. Edmond Simpson was in the front passenger seat. Judith Simpson was in the rear passenger seat and Ms. Babin was seated behind the driver. The Babin vehicle was proceeding toward West Arichat. It had slowed down to make a left turn into Mr. Babin’s mother’s driveway.
[5] The Plaintiff, Darrell Gerard (“Gerard”), was proceeding in the same direction. He had come around a sweeping right turn which is depicted in photograph 1. He had slowed down when entering the 50 kilometre zone from a 70 kilometre zone. Gerard says he saw the Babin vehicle in the right lane stopped with the left turn signal on. He assumed that Babin would make the turn as there was no oncoming traffic. Gerard says he had slowed to 25 to 30 kilometres per hour just prior to the accident taking place. When Babin did not make the turn, Gerard tried to pass him on the right. Unfortunately, Gerard’s right wheels caught the edge of the ditch and his vehicle turned on its side and crashed into a tree. As events have demonstrated, attempting to pass on the right, given the condition and size of the shoulder of the road, and the very limited amount of travel lane left to him, was a very risky manoeuver.
[6] Gerard’s position is that by stopping in his travel lane, the Defendant Babin created a dangerous situation which caused the accident. As noted earlier, the Plaintiff’s case hinges on whether Babin had stopped in the travel lane.
[7] I have listened carefully to the evidence. I find Babin to have been a credible witness. He could have embellished his evidence by stating that he had to stop because there was an oncoming vehicle. He did not do so. He said he could not recall if there was or was not an oncoming vehicle. If he were being completely forthright, he would have said there was no oncoming vehicle but I think he was reluctant to contradict either his wife or Mr. Simpson. I am sure that, if there had been an oncoming vehicle, Babin, as the driver attempting to make the left turn, would have recalled it. By passing on an opportunity like that to strengthen his evidence, Babin in fact made me confident that I was getting his accurate recollection of what did occur despite the fact that he obviously did not want to contradict his wife and friend.
[8] I have considered the portions of his statement and the discovery evidence put to him and none of it in my view impairs his credibility or causes me to hesitate to accept his evidence.
[9] Gerard testified there was no oncoming traffic. I believe Mr. Gerard on that point. I reject the evidence of Edmond Simpson that he saw an oncoming vehicle. Mr. Simpson’s demeanor and presentation was of someone trying to help a friend rather than give an unbiased account of what occurred. Edmond Simpson is mistaken about the fact that there was an oncoming vehicle.
[10] Similarly Joanne Babin is also mistaken in her recollection of oncoming traffic. She was in the back seat talking to Judith Simpson, she was not watching for traffic. Her account in her statement and in her discovery evidence is, in my view, not plausible. There was no time for the movements and conversations she described when she heard the screech of Gerard’s vehicle. It would have been obvious that the noise was not the Cadillac motor. I cannot imagine she and Mr. Babin discussing whether there was a problem with their motor at that moment.
[11] In short, I am satisfied that Babin was doing nothing wrong at the critical moment. I am satisfied that his vehicle had not come to a complete stop and that he was in the process of preparing to make a lawful, left turn.
[12] On the other hand, I am satisfied that Gerard was travelling faster than he estimated in his evidence. I am satisfied that he was driving without due care and attention when he first observed the Babin vehicle. The photo exhibit plus the witness evidence make it abundantly apparent that there was no reason why a driver exercising due care and attention could not have stopped until Babin had executed his turn. Gerard is mistaken about how quickly he closed the distance with the Babin vehicle. He was not entitled to presume that the Babin vehicle would make the turn in time for him to get by. He was obliged to ensure that he could stop if the Babin vehicle did not make the turn in time. Further, the fact that Babin did not see the Gerard vehicle coming is more indicative of the suddenness, that is, the speed with which Gerard appeared than with Babin’s driving without due care and attention. I am satisfied that Babin was driving with due care and attention and was keeping a proper lookout to the front and to the rear.
[13] Gerard was either going too fast to stop when he should have been able to do so or he was impatient and unwisely elected to attempt the dangerous manoeuver of passing the Babin vehicle on the right. In either event, the fault for the resulting accident lies with Gerard and not with Babin. Gerard as Plaintiff has the burden of proof. He must satisfy me on a balance of probabilities that Babin was negligent and thereby caused the accident. For the reasons I have recounted, Gerard has failed to discharge that burden. I find that Babin did not cause or contribute to the accident. The action is dismissed.
[14] Costs: As the successful party, the Defendant is entitled to his costs. The Plaintiff saved a great deal of time and expense by agreeing to have the liability issue determined separately. The trial was straightforward and consumed only one and a half days of court time. The Defendant shall have his costs in the amount of $3,000.00 plus reasonable disbursements to be taxed.
Order accordingly.
J.