nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2007 SKCA 122 Date: 20071101 Between: Docket: 920 Kevin Miezianko (Plaintiff) Appellant and Bjorkdale Lions Club Inc., Bjorkdale Fair Board Inc., Edward Kehrig in his personal capacity and as representative of the members of the Bjorkdale Lions Club Inc., Carl Schneider in his personal capacity and as representative of Bjorkdale Fair Board Inc., and Village of Bjorkdale (Defendants) Respondents Coram: Cameron, Smith, and Wilkinson JJ.A. Counsel: Karen Prisciak, Q.C. for the Appellant Shaunt Parthev for the Respondent Bjorkdale Lions Club Inc. Paul A. Demong for the Respondent Village of Bjorkdale Appeal: From: QB No. 127 of 2003, J.C. of Melfort Heard: November 1, 2007 Disposition: Appeal Dismissed Reasons By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A.: [1] This is an appeal from a decision of Madam Justice Rothery who granted a motion to withdraw the case from the jury in an action for damages in negligence brought by the appellant (plaintiff), Kevin Miezianko, against the respondents (defendants), Bjorkdale Lions Club Inc. and Village of Bjorkdale. The action arose out of burns suffered by the appellant while participating in demolition derby run by the Bjorkdale Lions Club with the assistance of the Bjorkdale Fire Department. Justice Rothery granted the motion on the premise there was no case to go to the jury because the appellant had failed to adduce sufficient evidence of: (a) the requisite causal connection between his injury and the alleged acts of negligence, and (b) the standard of care required of the respondents. In consequence, she dismissed the action, with costs to the respondents. [2] The appellant then brought this appeal, contending that Justice Rothery had erred in granting the motion to withdraw the case from the jury. Alternatively, the appellant contended that she had erred in her award of costs. [3] The parties agree that Justice Rothery employed the right test in addressing the motion, having addressed it along the lines of whether the plaintiff had adduced sufficient evidence, considered in its best light, to enable the jury, properly instructed and acting judicially, to find the defendants or either them liable in negligence. So, the issue reduces to whether she applied the test correctly in light of the evidence. [4] The evidence adduced by the appellant may be taken for the purposes at hand to have established the following, though it may be noted that there were number of inconsistencies and weaknesses in the evidence, especially in the testimony of the appellant. [5] The appellant was an experienced demolition derby participant, assisted by four-man pit crew. He had modified his vehicle to the required standards, as well as to his own satisfaction in relation to its operation and safety, including the safety of an unconventional ignition system he had devised to give him an advantage in starting the vehicle whenever it stalled. [6] While participating in the demolition derby in issue, the appellant suffered burns of varying degree to various parts of his body. His right hand and arm were particularly badly burned. They were burned when gasoline from the gas tank located behind the driver’s seat of the vehicle he was driving splashed on him and was set on fire shortly afterwards, after he had signalled his desire to have the contest halted and his vehicle had come to stop. Having come to stop, the appellant tried to restart the vehicle it seems, though that is not entirely clear. In any event, he made some adjustments to its fittings before getting out of it. He positioned the batteries located on the floor of the vehicle, bringing them to an upright position, and then repositioned the electrical wiring leading from the batteries to rigged-up, toggle ignition switch situated on the dash. He then caught on fire, exited the vehicle, and rolled on the ground. Within seconds, several persons came to his assistance. One attempted to put out the fire with fire extinguisher, which malfunctioned, while others managed to put it out with dirt. About 30 seconds elapsed between the time he caught on fire and the time the fire was put out. [7] One of the persons overseeing the competition on behalf of the Bjorkdale Lions Club had noticed splash of liquid or gasoline in the interior of the vehicle shortly before the appellant stopped. This person was acting as flagman, with power to halt the contest by waving his flag, but he did not do so, at least not immediately upon noticing the liquid or gas. He stopped the contest shortly afterwards, however, upon the appellant signalling his desire to have it halted. Another flagman then approached the appellant’s vehicle and spoke with him, telling him he smelled gas. In response, the appellant said he was covered with gas, implying he would be exiting the vehicle, and with that the flagman turned to leave. Within moments thereafter the appellant caught on fire. [8] The Bjorkdale Fire Department was standing by, in the sense that it had fire truck parked nearby and had some of its members in attendance. Who attempted to put out the fire with fire extinguisher was not established, but there was fire extinguisher nearby and it malfunctioned while others were in the midst of taking action to smother the fire. [9] As part of his case, the appellant introduced expert evidence concerning his injuries. He called Dr D.A. Classen, plastic surgeon who practices plastic and reconstructive surgery and who treated the appellant’s burns. Dr Classen was qualified to testify as an expert in relation to reconstructive surgery, care of burn victims, the effect of spontaneous combustion of gasoline on human skin within the first few seconds of contact, and so on. In the course of his testimony, he said that once body cells reach certain temperature the cells are damaged very quickly, adding that if the temperature reaches 100 degrees, for instance, the injury is instantaneous and that it does not much matter at that temperature whether the burning lasts one second or five seconds. He went on to say that, while there is correlation between time and temperature and the extent of the injury, at very high temperatures the time factor is of little significance after very brief period of time. [10] Later, having been asked to bring these observation to bear on the appellant’s burns, particularly the burns to his right hand, arm, and shoulder, Dr Classen said the damage resulting from these burns would have occurred within few seconds—five or six he supposed—of the gasoline on the appellant’s body having ignited. [11] Now, the appellant took the position at trial that he had made out prima facie case of liability against each of the Bjorkdale Lions Club and the Bjorkdale Fire Department based on their having breached their respective duties of care and having caused or contributed to his injury. He did not adduce any expert evidence of the standard of care required of persons in the organization and conduct of demolition derbys, nor any expert evidence of the standard of care required of volunteer fire department when assisting in the conduct of such derbys. He was content to leave this to common sense inference, contending that the flagman who noticed the splash of liquid or gasoline in the interior of the appellant’s vehicle was bound to have immediately stopped the competition and alerted the Fire Department to this condition. The flagman’s failure to do so, he argued, constituted an act of negligence attributable to the Lions Club. As for the Fire Department, the appellant suggested that it failed to take timely action and to have functioning fire extinguisher at hand. These failures, he argued, constituted acts of negligence on its part. [12] The appellant went on from there to contend that each of these acts of negligence contributed to the extent of his injuries, contending that had the respondents acted in accordance with the standard of care expected of each of them his burns would not have been as serious as they turned out to be. [13] In granting the motion to withdraw the case from the jury for lack of evidence in relation to the elements of the tort of negligence, Justice Rothery first expressed the view that the appellant had failed to adduce sufficient evidence of causal connection between his injuries and the alleged acts of negligence. She observed that, while the actions of the flagman who failed to immediately halt the competition on noticing the presence of gasoline in the interior of the appellant’s vehicle might be seen to be negligent, the flagman did not cause the fire, nor contribute to the appellant’s injuries. She noted that the competition was halted shortly afterwards, at the behest of the appellant, and that the appellant, knowing he was covered in gasoline, remained in the vehicle for period of time before the fire broke out. [14] She went on to express the further view that the appellant had failed to adduce sufficient evidence of the standard of care required of persons in the organization and conduct of demolition derbys, suggesting that in the absence of expert evidence to that effect it was not possible to say that the flagman who failed to halt the competition and alert the fire department to the condition he had observed had thus failed to meet the standard of care expected of him. She was of the opinion that expert evidence was needed in this respect, especially in light of the 30 second time-frame the appellant was on fire. Hence, she concluded that the appellant had failed in effect to make out prima facie case of breach of duty on the part of the Bjorkdale Lions Club. [15] Turning to the case against the Bjorkdale Fire Department with the standard of care in mind, she said the standard of care required of volunteer fire department is this: The department is to do its best with the resources available to it, taking care not to worsen the situation or substantially depart from basic principles of fire fighting: Hammond v. Town of Waban (1998), 1998 CanLII 18022 (NL CA), 170 Nfld. P.E.I.R. 97 (Nfld. C.A.). That being so, and having regard once again for the 30 second time-frame the appellant was on fire, including the time it took him to exit the vehicle, she was of the opinion expert evidence was necessary to enable the jury to conclude that the actions of the Fire Department fell short of the standard of care and constituted acts of negligence. [16] In the circumstances, we are of the opinion there is no tenable basis to interfere with the decision of Justice Rothery. We do not necessarily subscribe to the whole of her analysis, but we do share her view that the action was preordained to failure in light of the evidence and the burden upon the appellant to prove each of the elements of his cause of action. To put the case on appeal at its highest, let us assume without deciding that, as the appellant contends, she made too much of the need for expert evidence in relation to the standards of care in issue. Even then, we are of the opinion the action was destined to fail because, based upon the evidence before the court and the theory advanced by the appellant, the jury could not have found the requisite causal connection between the appellant’s injury and the alleged acts of negligence. [17] Had the case been permitted to go to the jury on the theory of the appellant, the jury would have been asked to conclude on a balance of probabilities that, but for the actions of the flagman who failed to immediately halt the competition and alert the Fire Department to the condition he had observed, the appellant would have suffered less serious burns than he in fact suffered. Similarly, the jury would have been asked to conclude that, but for the failure of the volunteer fire fighters to take more effective action, the appellant would have suffered less serious burns. [18] The jury could not have arrived at either conclusion, given the evidence of the duration the appellant was on fire, about 30 seconds, and the expert evidence that his injuries would have occurred virtually instantaneously or within five to six seconds of his having caught on fire while still in his vehicle. In the light of this evidence, and in the absence of further evidence of the standard of care required of each of the respondents, we are of the opinion the jury could not rationally have concluded that either of the respondents caused or materially contributed to the extent of the appellant’s injury. On the basis of the expert evidence, the damage would have occurred just the same, fault or no fault on the part of the respondents. That being so, the damage could not be seen to have been caused or materially contributed to by the respondents. [19] For these reasons, then, the appeal is dismissed to the extent it takes issue with Justice Rothery’s decision to withdraw the case from the jury. [20] As for her award of costs, we note that costs are in the discretion of the trial judge, that the discretionary power committed to trial judges in relation to costs is largely unfettered, and that the standard of review on appeal is decidedly narrow, all as mentioned in detail in Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask. R. 17 (Sask C.A.). Viewed in this light, we can see no tenable basis for interfering with the award. Accordingly the appeal is dismissed in this respect as well. [21] It follows that the appeal is dismissed in its entirety. The respondents shall have their costs on appeal, such costs to be taxed in the usual way.
This is an appeal from a decision of the trial judge who granted a motion to withdraw the case from the jury in an action for damages in negligence brought by the appellant plaintiff against the respondent defendants. The action arose out of burn suffered by the appellant while participating in demolition derby run by the defendants. The motion was granted on the premise there was no case to go to the jury because the appellant had failed to adduce sufficient evidence of the requisite causal connection between his injury and the alleged acts of negligence, and the standard of care required of the respondents. In consequence, the trial judge dismissed the action with costs to the respondents. The issue on appeal is whether the trial judge applied the test correctly in light of the evidence. HELD: Appeal dismissed. 1) Had the case been permitted to go to the jury on the theory of the appellant, the jury would have been asked to conclude on a balance of probabilities that, but for the actions of the flagman who failed to immediately halt the competition and alert the Fire Department to the condition he had observed, the appellant would have suffered less serious burns than he in fact suffered. Similarly, the jury would have been asked to conclude that, but for the failure of the volunteer fire fighters to take more effective action, the appellant would have suffered less serious burns. The jury could not have arrived at either conclusion, given the evidence of the duration the appellant was on fire, about 30 seconds, and the expert evidence that his injuries would have occurred virtually instantaneously or within 5 to 6 seconds of his having caught on fire while still in his vehicle. In the light of this evidence, and in the absence of further evidence of the standard of care required of each of the respondent, the Court is of the opinion the jury could not rationally have concluded that either of the respondents caused or materially contributed to the extend of the appellant's injury. On the basis of the expert evidence, the damage would have occurred just the same, fault or no fault on the part of the respondents. That being so, the damage could not be seen to have been caused or materially contributed to by the respondents. 2) There is no tenable basis for this Court to interfere with the trial judge's award of costs.