Claim No: 322093
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Robb v. Grimes, 2010 NSSM 42
BETWEEN:
GLENN K. ROBB
Claimant
- and -
LYNE PATRICIA GRIMES
Defendant
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Dartmouth, Nova Scotia on March 23, 2010 and April 20, 2010
Decision rendered on June 8, 2010
APPEARANCES
For the Claimant Nathan Horton
Counsel
For the Defendant Andrew Gough
Counsel
BY THE COURT:
1 This is a claim and counterclaim arising out of a collision between a motorcycle driven by the Claimant and an automobile being driven by the Defendant. Each blames the other for the accident.
2 Both vehicles suffered moderate property damage. Happily neither driver was seriously hurt, though both were shaken up.
3 The accident happened on a suburban street that contains no painted centre line. This is significant because it is the contention of both parties that the other was driving over the centre line of the roadway, leaving no room to manoeuver and avoid the collision.
4 The collision was not exactly head on, but more of a sideswiping incident.
5 The Claimant was driving his 1984 model year motorbike and described the accident as follows. He says that he noticed the Defendant’s vehicle coming around a bit of a curve, straddling over the centre of the roadway. He noticed that the Defendant was not looking at him and he thought she probably had not noticed him. He says that he felt that a collision was imminent, looked down momentarily at his controls while he geared down to slow his bike and mitigate any possible collision, and in a split second she was upon him and the collision occurred, causing his bike to topple over on the side and slide along the road until it stopped. He says that he was not going more than 15 km/hr at the time, and managed to jump off the bike and avoid injury. He also stated that when the bike first went down, part of the bike - perhaps the foot pegs - scraped the road leaving clear marks that indicate precisely where he was, namely squarely on his side of the roadway. He admitted that he did not think to look for these marks until the next day when he went back to the scene of the accident to take measurements and photograph them.
6 By his measurement, the scrape marks are 3 feet onto what would have been his side of the centre of the road, and 14', 6" from the shoulder on his side. The photos of the scape marks do indeed look fresh. Counsel for the Defendant suggested that they might already have been there and might have nothing to do with the accident.
7 The photos in evidence also show that there are lengthwise cracks in the roadway that might give someone the impression that they represent the centre line, although clearly they are closer to the curb on the side that the Claimant was on, by a foot or more. It is hard for me to tell whether these cracks are the seams from the original paving job, or actual deterioration of the road surface.
8 The Claimant has claimed $3,500.00 as damage to the bike, although he believes it will cost more than $5,800.00 to repair it. It is questionable whether the bike is worth the cost of a full repair.
9 The Defendant’s version is the polar opposite. She testified that she had been returning home from grocery shopping in her 2002 Ford Escape, and saw the Claimant as he was approaching in his bike. She says that he appeared to be looking down, and that he was on her side of the road. She stated that she veered toward the extreme right of the roadway and was hit because she had nowhere else to go. In the aftermath of the accident, there was a pedestrian who came forward and who claimed to have seen it clearly. The Claimant approached and was concerned that she had not suffered any injury. She says that he apologized, which she took as some admission that he had been at fault.
10 The pedestrian, Karen Williams, lives nearly and has been aware of a number of accidents on that stretch of road. She was out walking her dog and spotted the bike driving down the street. She says that she felt he was not on his side of the road, i.e. was too far into the oncoming lane. She also thought that he was leaning too far over as he went through the curve in the road. Almost as soon as she had these thoughts, the accident occurred. She rushed over to check on the condition of the people involved, and then gave her information to the Defendant. She was not previously acquainted with the either party.
11 At the time she first arrived on the scene the Claimant was in the process of trying to get his bike upright.
12 Ms. Williams was cross-examined and had put to her the evidence concerning the cracks in the middle of the road and the marks allegedly made by the bike as it toppled over. She stated that she had not noticed these marks, and as for the crack in the centre of the road, she stated that they are not really noticeable when one is driving and doubts that anyone uses them as an indicator of the centre of the roadway.
13 She said that this particular section of roadway is in pretty poor condition as far as the paving is concerned.
14 The Claimant attempted to establish that this stretch of road is notorious for drivers not sticking to the centre line. Sometime after the accident he made some observations and took photos of random vehicles taking the same route as had the Defendant, and these pictures do suggest that some drivers take the particular turn very close to, or over the centre line.
15 This evidence is of somewhat limited value in that there was no oncoming traffic. It is hard for me to tell on the evidence, but it is quite possible that people feel at liberty to swing more widely through this turn, so long as there is nothing coming in the opposite direction. It is hard to say what any of them would have done if there had been an oncoming vehicle.
16 What I am left with are these conflicting pieces of evidence:
a. The Claimant’s first-hand account
b. Photos of scrape marks on the roadway
c. Photos showing other vehicles failing to respect the centre line
d. The Defendant’s first-hand account
e. The evidence of the pedestrian, Ms. Williams.
17 The evidence of each of the Claimant and Defendant must be discounted on the basis of self-interest. Neither of them gave any reason to suggest that they are not well-meaning, truthful people, but human memory is frail and honest people have a tendency to colour their perceptions in accord with their interest.
18 The scrape marks on the roadway have some value. What they show is that some part of the bike did make contact with the road, on the Claimant’s side of centre. What they do not show is how they were made - whether they were made at the instant the bike first went down, or a few split seconds later after the bike had already skidded away from its original position.
19 As already indicated, I place little value on the apparent behaviour of other drivers at different times under different conditions. They do not directly bear on what this Defendant did on this particular occasion.
20 The evidence of Ms. Williams is difficult to discredit. She has no apparent interest or bias in favour of either party. She had a good opportunity to observe the accident, and it stuck in her mind. She was unshakeable in her perception that the Claimant had been over the centre line.
Legal principles
21 The Motor Vehicle Act, s.110(1) places an onus upon drivers to keep to their side of centre:
Duty to drive on right
110 (1) Upon all highways of sufficient width, except upon one‑way streets, the operator or driver of a vehicle shall operate or drive the same upon the right half of the highway and shall drive a slow‑moving vehicle as closely as possible to the right‑hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway except when overtaking and passing another vehicle subject to the rules applicable in overtaking and passing set forth in Section 115.
22 Determining whether one part or the other was negligent requires something more than simply a finding that one party may have been in violation of a rule of the road, because it is the duty of every driver to act prudently.
23 The fact that one party is not keeping to his side of the road would normally be sufficient to underpin some degree of fault. The inquiry would have to go further and examine whether the other party’s response to the oncoming vehicle was reasonably prudent.
24 In such a case, liability could be divided in accordance with s.3(1) of the Contributory Negligence Act:
Apportionment of liability
3 (1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.
25 In the case here I am inclined to the view that there was some shared responsibility. Although the Claimant may have been close to the centre of the road, I find it hard to accept that the Defendant had no room to manoeuvre and avoid the collision. I am inclined to the view that she was not paying as close attention as possible and may indeed have been slightly distracted, as the evidence of the Claimant suggested.
26 While it is certainly not a science, my impression is that the Claimant was more responsible and I would place 2/3 of the fault upon him, and 1/3 on the Defendant.
27 The counterclaim seeks $4,514.32 in damages to the Defendant’s automobile corresponding to the repair cost. As mentioned, the Claimant seeks $3,500.00.
28 It is accordingly my order that the Claimant recover $1,166.67 on his claim and the Defendant is entitled to a judgment for $3,009.55 on the counterclaim.
29 Under the circumstances, there will be no order for costs.
Eric K. Slone, Adjudicator