J. SC 870/2002 2003 SKPC 19 IN THE PROVINCIAL COURT FOR SASKATCHEWAN AT SASKATOON CIVIL DIVISION BETWEEN: JOHN MORRISON -the Plaintiff -AND- SYDIA BROS. ENT. LTD. and MARVIN PROCYSHYN the Defendants Appearances: Mr. Morrison appeared for himself. Mr. Procyshyn appeared for himself. JUDGMENT T. WHITE, PCJ JANUARY 29, 2003 [1] This is an action in negligence arising out of a vehicle accident whichoccurred on December 3, 2001 at Avenue “C” and Circle Drive inSaskatoon. [2] number of the material facts in the case are not in dispute: low speed collision occurred in the turning lane at this location; tractor (without trailer) slowly inched up to Honda Corrolla automobile operated by the plaintiff and nudged it causing damage to the back bumper of the Honda on the driver’s side and some slight denting on the trunk lid of the vehicle; there was no damage to the tractor; the driver of the tractor and his wife did not see the automobile before or at the immediate time of the collision; the estimated cost for repairs is in the range of thousand dollars or so and all that the plaintiff seeks is the deductible of $700 plus costs of the summons and service costs in the proceedings. [3] The points of disagreement between the parties centered on the question of who is at fault as matter of law for the collision and the subsequent damage. The ultimate disagreement between the parties was over the issue of whether the defendant ought to have seen the plaintiff’s vehicle in front of him and therefore, have stopped his vehicle thus avoiding the collision. [4] The plaintiff testified that around 7:00 a.m. on this dark December morning he was driving on Circle Drive and had proceeded into the turning lane and was waiting for an opportunity to make left turn onto Avenue “C” when the tractor slowly collided with the back of his vehicle. He testified that there were no other vehicles in front of him at this point; he specifically denied cutting in front of the tractor unit prior to the collision. [5] The defendant testified that there was half-ton truck in front of his tractor unit in the intersection shortly before the accident occurred; the defendant’s wife was with him that morning and corroborated his version of the facts as to the presence of the half-ton truck and as to the fact that neither she nor her husband saw the Honda Accord until just after the actual collision when Mrs. Procyshyn told her husband that his tractor unit was nudging another vehicle that must be in front of them. [6] Mr. Procyshyn, his wife and Omer Houle, representative from Mr. Procyshyn’s employer, Sydia Bros. Ent. Ltd., each testified about the blind spots that exist for tractor trailer drivers. In particular they gave evidence of the two very difficult areas located along the passenger side in advance of the mirror along the engine hood/block and the area directly in front of the tractor. [7] This case raises issues pertaining to the burden of persuasion or proof in this civil matter and it also raised some issues pertaining to the application of the Highway Traffic Act S.S. c.H-3.1 in relation to the claim of negligence raised by the facts of this case. [8] The HIGHWAY TRAFFIC ACT applies to this case, specifically, the following: “44(1) No person shall drive vehicle on highway without due care and attention. (2) No person shall drive vehicle on highway without reasonable consideration for other persons using the highway. 48(1) The driver vehicle on highway shall: (b) on overtaking person or vehicle using the highway, pass to the left, unless: (i) he is approaching an intersection of highways at which he intends to make right turn or he is approaching an intersection of highways that he intends to cross without turning and the other person is making or has indicated that he is about to make left turn, in which case he may pass to the right; (3) After having overtaken and passed another person or vehicle using the highway, no driver of vehicle on highway shall move in front of the other person or vehicle until it is safe to do so.” [9] There are two possible ways that the accident could have happened in this case. The first theory is that the plaintiff had simply stopped his vehicle and was waiting until it was safe to proceed with the turn through the intersection when his vehicle was struck from behind by the defendant’s tractor; on this view, the defendant was inattentive, did not notice the plaintiff’s car in front of him, and thus the tractor collided with the car. The second theory is that the plaintiff quickly overtook and passed the defendant’s vehicle in close proximity to the intersection and therefore the plaintiff’s vehicle was lost to the defendant’s sight due to the blind spots on the right and in the front of the tractor unit. The cause of the accident under this scenario was the plaintiff ‘cutting’ in front of the defendant’s tractor. [10] The only material difference in the testimonies proffered by the plaintiff, the defendant and the defendant’s wife concerning the circumstances at the scene of the accident was the presence or absence of half-ton truck in front of the plaintiff’s vehicle when the collision occurred. This is an important difference because if there were vehicle in front of the plaintiff’s vehicle at the time of the accident then this would lend credence to the view that the collision occurred as result of the plaintiff ‘cutting in front of the tractor’. must say that found all of the witnesses to be quite believable; each witness to the actual occurrence actually believed that what they were relating was true and correct version of the facts as they perceived them to have transpired. [11] This is one of those rare cases were the scales of justice are evenly balanced. The scales do not weigh persuasively in the favor of either the plaintiff or the defendant based upon the oral evidence given by the witnesses who testified at the trial.  I am simply unable to conclude that one version of the facts is correct and the other is incorrect. Each version contains an equally rational explanation for what transpired on the date in question. The physical evidence, taken together with the exhibits (consisting of diagrams and photographs), does not assist the court in reaching a determination regarding the issues of negligence and legal liability in this case because it is, at the end of the day, equivocal – i.e. it could support either version of the events related to the court by the plaintiff and the defendant respectively. Therefore, as matter of law, it does not support (or detract from) either version of the facts put forth by the parties. (See R. v. S.(T.) (1995) 1995 CanLII 3957 (SK CA), 98 C.C.C. (3d) 529 at pp. 556-557 and at pp. 552-553.) [12] For the foregoing reasons, I am not satisfied on a balance of probabilities that the plaintiff’s claim has been proven. On this basis, as matter of law, the plaintiff’s claim must be and is hereby dismissed with no order as to costs to either party. T. WHITE, PCJ
At issue in the negligence suit was whether the defendant ought to have seen the plaintiff's vehicle in front of him and stopped his vehicle to avoid the motor vehicle collision. The only material difference in testimonies was whether there was a half-ton truck in front of the plaintiff's vehicle when the collision occurred. HELD: The plaintiff's claim was not proven on a balance of probabilities. The physical evidence did not assist and the court was unable to conclude that one version was correct and the other incorrect.