Prashant Jadhav v. David Kielly
(Newfoundland & Labrador) (Civil) (By Leave)
Torts - Negligence, Motor vehicles - Torts — Negligence — Motor vehicles — Causation — When applying the “but for” test for causation, does a plaintiff have to prove that “nothing but” a defendant’s negligence could have caused the loss, or should this Court’s “common sense inference” approach be applied?.
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On October 27, 2013, at approximately 10:45pm, David Kielly struck Prashant Jadhav with his motor vehicle. At the time, it was raining heavily, windy, and dark. Mr. Jadhav was dressed entirely in black, without any reflective material, and was walking on the right hand side of the road with traffic. In the area where the accident occurred, the road was straight with one paved lane in each direction. The road had gravel shoulders and no sidewalks. Mr. Jadhav sued Mr. Kielly for negligent driving. The Supreme Court of Newfoundland and Labrador General Division found that Mr. Kielly was driving at an excessive speed given the conditions (50 55 kilometers per hour in a zone with a posted limit of 50 kilometres per hour). The trial judge also found that Mr. Jadhav was struck on the shoulder of the road, not the pavement. As a result, the trial judge concluded that Mr. Kielly drove negligently. However, since Mr. Jadhav was wearing dark clothing making it difficult to see him, the trial judge found him contributorily negligent. The Court of Appeal of Newfoundland and Labrador granted the cross-appeal on the basis that the trial judge made palpable and overriding errors. It found that Mr. Jadhav was walking on the pavement, not the shoulder of the road when he was struck. The Court of Appeal determined that he trial judge failed to apply the ‘but for’ test in causation. It concluded that no matter the speed at which Mr. Kielly was driving, if Mr. Jadhav had not been on the road, there would have been no accident. Since Mr. Jadhav had failed to prove causation, negligence was not established.
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