Debate over liability when pedestrian hit on road with no sidewalk

If your client hits a pedestrian while driving slightly faster than the limit in a dark rain storm, does that mean he or she is liable?

It depends which judge you ask.

Prashant Jadhav was walking down the shoulder of Brookfield Road on Oct. 27, 2013 in St. John’s, Nfld. He was hit by a Jeep Grand Cherokee driven by David Kielly. The visibility was very poor because it was dark and raining.

The driver stopped, called 911 and helped the pedestrian until the ambulance showed up. The driver admitted to police he was driving between 50 and 55 km/h in a 50 zone. Kielly was not charged with speeding.

Jadhav sued Kielly.

As it stands, Kielly is not liable. Jadhav was initially awarded $338,000 but the finding that Kielly was mostly at fault was reversed on appeal.

Jadhav applied for leave to appeal to the Supreme Court of Canada, which announced June 13, 2019 it will not hear an appeal from Jadhav.

After the accident, Jadhav was in a medically-induced coma for six days, with severe injuries to his spine and shin. Jadhav tried to return to work at Burger King but became distracted by pain as a result of standing and craning his neck to view a monitor.

Initially, in a ruling released May 1, 2018, Justice Vikas Khaladkar of the Supreme Court of Newfoundland and Labrador, general division found Jadhav was 10% liable. Jadhav was walking on a shoulder with traffic but ection 128 (2) of the province’s Highway Traffic Act stipulates that when there are no sidewalks, pedestrians must walk on the shoulder facing traffic.

That left Kielly mostly liable.

The Court of Appeal of Newfoundland on Labrador ruling in favour of  Kielly was released Jan 22, 2019. Jadhav appealed the damage award (had had asked for $1 million) while Kielly cross-appealed the finding that he was liable for Jadhav’s injuries.

Both the trial judge and appeal court judges criticized the police for not taking photographs of the accident scene.

Justice Khaladkar erred in his analysis of causation, the provincial appeal court ruled.

In essence, Justice Khaladkar said Jadhav would not have been hit by Kielly’s vehicle had Kielly not been driving at the speed that he was. That speed was too fast given the road, weather and visibility conditions, Justice Khaladkar ruled.

Justice Khaladkar found it was likely, on a balance of probabilities, that Kielly had been on the shoulder when his vehicle hit Jadhav. The appeal court disagreed.

Appeal court Justice Gail Welsh noted it is likely Kielly would have noticed if his vehicle strayed on to the shoulder because the road was paved whereas the shoulder was gravel.

Jadhav had no memory of the accident.

Kielly did not testify during the trial but did testify during an examination for discovery. Though Kielly was available to be cross-examined during the trial, the plaintiff did not cross examine Kielly.

Justice Khaladkar found it was not clear from Kielly’s evidence whether Jadhav was on the shoulder or on the pavement.

He also ruled that Kielly had a duty of care on the night of the accident to reduce his speed and his failure to do so makes him liable for the accident.

But the appeal court countered that the fact that Kielly was driving slightly above the speed limit is not, in itself, enough to find Kielly is negligent.

“The question is whether Mr. Jadhav established on a balance of probabilities that he would not have been injured ‘but for’ Mr. Kielly driving at a speed that the judge found was excessive for the conditions,” Justice Gail Welsh wrote for the appeal court in its unanimous ruling. “A central factor in the analysis is the location of Mr. Jadhav and the vehicle at the time of the accident.  In the absence of evidence to the contrary, had Mr. Kielly been driving on the pavement and Mr. Jadhav walking on the gravel shoulder, the accident would not have occurred even had Mr. Kielly been driving at 50 to 55 kilometres per hour.”