J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Jeffery v. Naugler, 2006 NSSC 43 Date: 20060210 Docket: S.H. No. 193869 Registry: Halifax Between: Girth Ruth Jeffery Plaintiff/Respondent v. Chris Naugler Defendant/Applicant Judge: The Honourable Justice M. Heather Robertson Heard: September 28, 2005, in Halifax, Nova Scotia Written Decision: February 10, 2006 Counsel: Sarah L. Harris, for the plaintiff/respondent Christa M. Hellstrom, for the defendant/applicant Robertson, J.: [1] The defendant’s motion for summary judgment arises out of an automobile accident that occurred on May 22, 2001. The plaintiff was driving from Halifax to Seabright on Highway 103. She alleges that when the defendant driving tractor-trailer passed her vehicle, piece of metal came off of his vehicle, fell to the pavement, bounced on to the engine bonnet of her car, hit the left front fender near the aerial and then the wind blew it in through her open driver’s side window. [2] The plaintiff says that this caused her to remove her hands from the steering wheel to brush the metal away from her face. The plaintiff says her glasses were knocked off her face to the floor of the vehicle. The plaintiff says that in grabbing the steering wheel, her hand became caught in the opening of the wheel and this resulted in an injury to her as she turned the wheel, attempting to regain control of her vehicle. The plaintiff claims damages for injuries to her arms, shoulders and neck. [3] The defendant engaged two experts who examined the piece of metal and reported that the metal did not come from the tractor-trailer. The defendant says that the claim is factually unsupported and cannot be proved and there is therefore no issue to be tried. [4] The defendant correctly relies upon the operation of Civil Procedures Rule 13.01(a) and Supreme Court of Canada judgments, Hercules Management Ltd. v. Ernst Young, 1997 CanLII 345 (SCC), [1997] S.C.R. 165 (S.C.C.) and Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 (S.C.C.). They also rely upon the Nova Scotia Court of Appeal’s decision in United Gulf Developments Ltd. v. Iskander, 2004 CarswellNS 67 (N.S.C.A.) where that court adopted the Supreme Court of Canada’s test for summary judgment applications as outlined by Moir J. in Binder v. Royal Bank, 2003 CarswellNS 309 (N.S.S.C.). [5] It is now well established law that the applicant for summary judgment must meet threshold test and establish that there is no genuine issue of material fact requiring trial. Once the applicant has succeeded in meeting this test the respondent must then establish that his or her claim is one with real chance of success. [6] In Selig v. Cook’s Oil Co. 2004 CarswellNS 328 (N.S.S.C.) MacAdam J. adopted useful outline of five propositions that had been accepted by Rooke J. in Jagar Industries Inc. v. Canadian Occidental Petroleum Ltd., [2000] A. J. No. 994 (Alta Q.B.). (1) It is not open to Respondent on summary judgment application to argue that triable issue exists based upon facts or evidence not currently available but which may emerge at discovery or trial. (2) Where an Applicant has shown there are no facts in issue for trial, it is incumbent upon the Respondent to adduce evidence that it has reasonable chance of success at trial. (3) It is not sufficient for Respondent who resists summary judgment to present only bare allegations of fact; the Respondent must present evidence which lends some support to the claims it advances. (4) It is appropriate to summarily dismiss Third Party action for indemnity where the evidence shows no claims are advanced in the Plaintiff's pleadings which give rise to an obligation to indemnify. (5) summary judgment application may be made at any time. There is no need for an Applicant on summary judgment application to await the outcome of examinations for discovery before applying for and obtaining judgment. [7] The respondent in reply must therefore not simply rely upon the allegations made in the pleadings, but must present, by way of affidavit or other evidence, specific facts showing that there is genuine issue to be tried. [8] In considering the motion, the Chambers judge must consider not only the pleadings, but the other available documentation such as discovery evidence, admissions of fact, affidavit evidence or other evidence then available. Dawson v. Rexcraft Storage Warehouse Inc. 1998 CarswellONT 3202 (Ont. C.A.). [9] As stated by Justice Borins in Dawson, supra, at para. 13: The essential purpose of summary judgment is to isolate and then terminate, claims and defences that are factually unsupported. ... He then continues However, as most motions for summary judgment focus on the factual foundation of the claim or defence, their legal sufficiency does not arise frequently on motion for summary judgment. Even though there is no genuine issue for trial with respect to the facts, plaintiff is not entitled to summary judgment if the facts do not establish cause of action which entitles the plaintiff to some remedy from the defendant. [10] The plaintiff acknowledges the defendant’s expert reports, but says that nevertheless her evidence on discovery is that she saw the piece of metal dangling from the defendant’s trailer as it passed her motor vehicle. The plaintiff asserts that she has therefore established the factual underpinning to support her cause of action and is entitled to have her credibility on this evidence tested at trial. The plaintiff argues that neither of the expert reports refute her eye witness testimony. [11] The report of Bryden G. Ryan, Licensed Mechanic and Stuart D. Smith, B.Eng., Ph.D., Ph.Eng., of C.R. Tyner and Associates Ltd. included an appendix of photocopies of the piece of metal. It measured 13 18 centimetres (5 inches) and weighed approximately 140 grams (5.0 ounces). Also attached to the report were photos of the defendant’s vehicle and trailer, as well as photograph of pair of new original equipment brake backing plates (dust shields) purchased to compare them to the existing brake backing plates on the trailer to eliminate the suggestion that the piece of metal examined could have been piece of corroded brake backing plate on the trailer. An original brake backing plate examined on the trailer showed some corrosion and had dissimilarly sized piece missing from it. This was the reason for this line of inquiry as every other area of the trailer was upon inspection found to be in tact and in good repair. [12] The conclusion reached by Mr. Ryan after his examination of the metal and the vehicle and trailer was “The piece of metal is not and never has been part of the tractor-trailer.” Nor upon examination of the tractor-trailer was he able to find any location near the drive wheels or near the trailer wheels where the piece of metal could have been dangling. [13] H. A. Hancock metallurgical engineer examined the piece of metal in question and compared it to the purchased original equipment brake backing plate which he called dust shield in his report. He stated: In my opinion, the two samples of metal examined do not come from common source. They were both made from low carbon steel sheet which had been partly work hardened. This is common material used in the manufacture of motor vehicles. However, there was small but significant difference in the thickness of the sheet and also in the type of coating applied to it. The dust shield was painted which is the usual method used by the automotive industry to protect against corrosion. Given the exposed location of the dust shield, might have expected an additional coating of zinc as added corrosion protection but have no experience with truck parts of this type. The metal fragment has been coated with an aluminum-silicon alloy, probably by hot dipping process. The aluminum-silicon alloy formed metallurgical bond with the steel which is the second layer between the outer alloy coating and the steel. This type of coating may be used to protect the steel from corrosion but the most common application is to protect the steel from oxidation due to exposure to elevated temperatures. The fragment seems to have been exposed to road salt. One possible source of the fragment is the exhaust system from car or truck. He concluded: 1. In my opinion, the two samples tested did not come from common source. 2. Both samples were made from low carbon sheet steel which had been lightly cold worked. They had similar microstructures and hardness. 3. There was small but significant difference in the thickness of the coated steels. 4. The coating systems used on the two samples were quite different. The dust shield was painted and the fragment was coated with an aluminum-silicon alloy, probably by hot dipping. 5. The coating employed on the metal fragment strongly suggests that it was intended for an application where high temperatures were expected. [15] The defendant asks the court to conclude from their expert reports that the piece of metal the plaintiff alleges hit her vehicle and caused her injury did not come from the defendant’s vehicle and could not have been dangling from the defendant’s vehicle. [16] The defendant acknowledges the possibility that if the metal piece was lying on the highway it could have become airborne as the defendant’s vehicle passed the plaintiff’s vehicle. In this event they submit that the remoteness of cause would save the defendant harmless from liability. [17] In her discovery testimony the plaintiff gives varying answers when questioned as to where, on the defendant’s vehicle, she saw the piece of metal dangling. [18] The plaintiff indicated that she saw the metal dangling “between the two back wheels of the truck” and upon examining photo of the truck and trailer she pointed to an area between the second tire and third tire of the trailer in the area of the tool box. She agreed that she saw the metal dangling from the truck as it was passing her vehicle but expressed less certainty about where she might have seen the metal she variously described as “dangling” or “hanging” or “swaying back and forth.” [19] The plaintiff said in discovery that she was worried about the piece of metal and said to her son “I think that’s going to come off.” Her son Russell Parker when questioned at discovery did not remember this conversation. He testified that he just saw the piece of metal hitting the mirror of his mother’s vehicle. He agreed that since he was in the passenger seat he did not see the metal actually dangling from the trailer and said “I seen it come from underneath the wheels of the trailer.” He then suggested to his mother that they follow the tractor-trailer and get its license number although they did not flag it down and speak to the driver. [20] The plaintiff submits that her discovery evidence is not bare allegation, but material fact that if accepted at trial gives the plaintiff real chance of success. The plaintiff relies on Doug Beohner Trucking Excavating Ltd., 2004 CarswellNS 70 (N.S.S.C.) at para. 17 “There must be real distinction or difference of evidence requiring the court to make determination of credibility.” [21] The plaintiff further submits that the only way in this case that there could not be material fact in issue is if there was an agreement between the parties that this piece of metal was in fact dangling from the defendant’s tractor-trailer prior to the plaintiff being hit by the same piece of metal. [22] In asserting that the defendant is liable in negligence for her injuries the plaintiff relies on s. 248 of the Motor Vehicle Act: Onus of proof of liability 248 (1) Where any injury, loss or damage is incurred or sustained by any person by reason of the presence of motor vehicle upon highway, the onus of proof (a) that such injury loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner of the motor vehicle, or of the servant or agent of such owner acting in the course of his employment and within the scope of his authority as such servant or agent; (b) that such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the motor vehicle, shall be on the owner and operator of the motor vehicle. [23] The plaintiff argues that having established by her eye witness testimony that the piece of metal flew in the window and caused her injury the onus has shifted to the defendant to show that the injuries were not entirely or solely arising through his negligence. [24] The plaintiff cited two cases where objects have been airborne and caused damage or injury and defendant’s were found liable. [25] In Amos v. Watkins [1995] N.J. No. 409, the plaintiff made claim for property damage to the sunroof of his vehicle and alleged that rock flew from the dump truck that proceeded ahead of him. [26] The trial judge found direct causal link between the defendant carrying gravel and the plaintiff suffering the loss, as he found that the defendant trucker could have reasonably foreseen that the small rock sighted by the plaintiff bouncing out of the truck, would pose hazard to vehicle driving behind. [27] The respondent argues that the foreseeability is matter that should be left to the trial judge. [28] And similarly, in the case of Thomas v. Scott [1976] N.J. No. 63 the plaintiff says foreseeability was an issue determined by the trial judge where plaintiff had alleged that rock had flown from the rear wheels of the defendant’s truck toward his vehicle smashing the windshield and striking him in the chest. The defendant had acknowledged to police officer that large rock was jammed between the dual wheels and tires of the rear of his vehicle and that on the previous day he had tried to remove it without success. At trial he gave evidence that he had succeeded in removing the rock. This explanation was rejected by the trial judge. It was the defendant driver’s knowledge of the presence of the rock that led to finding that he ought to have foreseen that the rock constituted hazard to others. [29] However, these cases are distinguished on their facts. In Amos, supra, it was found that the truck driver hauling rock might reasonable foresee that his cargo could create hazard for vehicles travelling behind his. In Thomas, supra, the driver was actually aware of the presence of rock lodged between his double rear tires, that subsequently caused the damage and injury. [30] Here there is no evidence before me to suggest that the cargo of lumber hauled is in any way related to this mishap and there is no suggestion that the defendant was aware of or ought to have been aware of the 5" 7" piece of metal that allegedly flew from between the rear tires of the trailer. Further, plaintiff’s counsel had full opportunity to examine the defendant driver on discovery to explore these matters and no evidence arose respecting foreseeability or causation. [31] The plaintiff’s claim more closely mirrors the situation in Dorey .v. Oosterhoff 1989 CarswellONT 1645. [32] In that case it was found that the defendant had not seen the object that she drove over, which flew from beneath her vehicle and caused the plaintiff to swerve in avoidance of it hitting his windshield. He lost control and was hit by an oncoming van. The object was piece of muffler, not from the defendant’s vehicle, that was actually road debris. The defendant bore no liability for this unforeseeable event. [33] Having considered the pleading and the other evidence before me, I find that the defendant has met the threshold test. There is no genuine issue for trial with respect to these facts. [34] In responding to this application, the plaintiff has failed to adduce evidence to support the bare allegation made in these pleadings. [35] In the plaintiff’s pleadings the acts of negligence asserted are the defendant driver’s failure to maintain his vehicle, poor driving skills and lack of qualifications and driving at an excessive rate of speed. [36] However, the plaintiff has not offered any further evidence to support these claims. On the documentary evidence before me can only conclude that the defendant’s vehicle was well maintained, according to his expert Bryden Ryan and that the defendant has good driving record and the proper licensing to drive tractor-trailer. [37] Apart from the allegation made in the pleading see no further indication that the driver was speeding. The plaintiff’s evidence on discovery was that the driver was going fast and that to catch up to the defendant they needed to drive between 100-110 kph, not an inappropriate speed on 100 series highway. Nor has the plaintiff shown connection between the alleged rate of speed and the mishap of the flying metal piece. [38] Therefore, am left to consider the plaintiff’s bare allegation that the piece of metal that hit her car was dangling from the tractor-trailer, flew off in the manner earlier described, hit her vehicle and caused her injury. [39] Yet, the experts’ reports establish that this piece of metal did not belong to the tractor-trailer, nor upon inspection was there any place for such a piece of metal to dangle. [40] also note that this application was adjourned from August 2, 2005, to allow the plaintiff to secure their own expert report, although none was filed prior to this proceeding. [41] The expert reports filed by the defendant therefore remain uncontradicted. [42] claim in the tort of negligence can only succeed if the plaintiff can show that (i) that the defendant owed her duty of care, (ii) that he should have observed particular standard of care in meeting his duty, (iii) that he breached his duty by failing to observe this standard of care, (iv) that his breach of duty caused the damage or injury to the plaintiff, (v) that the damage or injury is not too remote consequence of breach so as to render the defendant liable for its occurrence. (The Law of Torts in Canada, Fridman, Vol. Toronto: Carswell, 1989.) [43] In my view, no trial judge or jury properly instructed would make finding of negligence against the defendant driver, having considered the body of evidence that is before me, in this application. [44] The plaintiff has therefore failed to show that this claim has any real chance of success. [45] The plaintiff cannot resist this summary judgment application by simply asserting that there are matters of the plaintiff’s credibility that can only be decided by a trial judge. [46] The plaintiff must demonstrate that if the matter proceeded to trial there would be remedy available to her. No evidentiary foundation has been laid to support or underpin the allegations made in the pleadings, apart from the plaintiff’s bare allegation. [47] The defendant should not be required to bear the expense of trial where the result is foregone conclusion that he would not bear liability for this mishap. [48] The defendant shall have summary judgment and costs for this application. In the absence of agreement by the parties the court is prepared to address the issue of costs. Justice M. Heather Robertson
The plaintiff alleged that a small piece of metal seen dangling from beneath the defendant's tractor trailer flew out from under the trailer as it passed the plaintiff's vehicle and hit her engine hood, bounced in the open window and caused her to lose control of her vehicle. She suffered injuries to her hands, arm and shoulder as she brought her vehicle under control. The defendant applied for summary judgment, presenting expert's reports to show that the metal did not come from his vehicle, nor upon inspection was there any location from which it might have dangled. Application for summary judgment granted; the defendant met the threshold test and the plaintiff failed to adduce any evidence beyond a bare allegation that this claim had a chance of success. The plaintiff cannot resist a summary judgment application by simply asserting that there are matters of the plaintiff's credibility that can only be decided by a trial judge.