IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100201

Docket:
M025267

Registry: Vancouver

Between:

Carsten Simon, by his Guardian ad litem,
Joe Simon

Plaintiff

And

Wade Robert Portsmith and Beverly
Ellen Bostock

Defendants

Before: The Honourable Mr. Justice Joyce

Reasons for Judgment

INTRODUCTION

[1]            
In the early morning hours of October 17, 2001,
Carsten Simon was walking on the shoulder of the Trans Canada Highway #1, just
to the east of Salmon Arm, British Columbia, when he was struck by a vehicle
travelling eastbound. The vehicle did not stop at the scene and sped away.
Several hours later, the car, a white Toyota Tercel, was found abandoned in
Salmon Arm and keys to the car were found in the back seat. The car was
identified as belonging to the defendant Beverly Bostock.

[2]            
As a result of being struck by the motor
vehicle, Mr. Simon suffered numerous serious injuries including a traumatic
brain injury, amputation of the right leg above the knee, pelvic fracture, fracture
of the right forearm, fracture of the right femur, a lacerated spleen, and
extensive and disfiguring scarring.

[3]            
There were three persons in the vehicle when it
struck Mr. Simon, namely the defendant Wade Portsmith, who was known in the
community as “Kato”, Mr. Robert Cook, and Mr. Craig Tychkowski. The
plaintiff alleges that the vehicle that struck him was being driven by Wade Portsmith
and that Mr. Portsmith’s negligence caused his loss and damage. The plaintiff
further alleges that Mr. Portsmith was living with Ms. Bostock, his
mother, as a member of the family at the time of the accident or,
alternatively, acquired possession of the car with Ms. Bostock’s express or
implied consent. The plaintiff alleges that Ms. Bostock is thereby vicariously
liable under s. 86(1) of the Motor Vehicle Act, R.S.B.C. 1996, c.
318, which provides:

86(1)    In the case of a motor vehicle that
is in the possession of its owner, in an action to recover for loss or damages
to persons or property arising out of the use or operation of the motor vehicle
on a highway, a person driving or operating the motor vehicle who

(a)        is
living with, and as a member of the family of, the owner, or

(b)        acquired
possession of the motor vehicle with the consent, express or implied of the
owner.

is deemed to be
the agent or servant of, and employed as such by, that owner and to be driving
or operating the motor vehicle in the course of his or her employment with that
owner.

[4]            
In the further alternative, the plaintiff
alleges that Ms. Bostock is negligent by failing to take reasonable steps to
secure her car and thereby prevent Mr. Portsmith from driving it without
her consent.

[5]            
Mr. Portsmith was arrested in connection with
this incident and charged with criminal negligence causing bodily harm,
operating a motor vehicle while impaired, failing to stop with intent to escape
civil or criminal liability, resisting a peace office in the execution of his
duty, assaulting a police officer, and uttering threats to a peace officer. The
criminal trial took place in June 2002 and Mr. Portsmith was acquitted on all
counts except those of assaulting a police officer and uttering threats to a
peace officer.

[6]            
This action was commenced on December 11, 2002.

[7]            
On March 2, 2005, Mr. Portsmith passed away from
a drug overdose.

[8]            
An order was made in the action that there be
separate trials on the issues of liability and quantum. The liability trial was
originally scheduled to start in June of 2008, but was adjourned on application
by the plaintiff because three of the plaintiff’s witnesses failed to attend
pursuant to subpoenas. The parties subsequently settled the issue of quantum
and the trial on liability began on September 2, 2008. After four days, the
trial was once again adjourned on application by the plaintiff when one of the
plaintiff’s witnesses again failed to respond to a subpoena. The trial
eventually resumed on June 24, 2009.

ISSUES

[9]            
The issues to be determined are:

(a)      Was the
driver of the vehicle that struck Mr. Simon negligent?

(b)      Was Mr.
Portsmith driving the motor vehicle that struck Mr. Simon?

(c)      Was Mr. Portsmith living with Ms. Bostock as a member of her
family at the time of the accident?

(d)      Was Mr. Portsmith operating the motor vehicle with the express
or implied consent of Ms. Bostock?

(e)      Was Ms. Bostock
independently negligent in failing to secure her vehicle so as to prevent Mr.
Portsmith from being able to use it?

REVIEW OF EVIDENCE

The plaintiff’s evidence

[10]        
The plaintiff is 32 years old. He was born in
Germany but raised in Salmon Arm by his grandparents. At the time of this
accident, Mr. Simon was working in Salmon Arm for a carpet and upholstery
cleaning business that was owned by Mr. Gordon Dodds. He was also living
in a basement suite in Mr. Dodds’ house.

[11]        
Mr. Simon has no recollection of the accident. His
last recollection before waking up in the hospital in Vancouver, following the
accident, was of going to Salmon Arm with Mr. Dodds in Mr. Dodds’ van.

Evidence relating to the accident

[12]        
Evidence regarding the accident itself was given
by Mr. Noel McDonald, a truck driver. He testified that he was driving his
tractor-trailer unit eastbound on the Trans Canada Highway just east of Salmon
Arm, going up a hill that his known as “Tank Hill”. There are two eastbound
lanes going up the hill which converge into a single eastbound lane at the top
of the hill. Mr. McDonald was in the outside lane closest to the shoulder of the
highway when he saw a car come up behind him moving fast. Mr. McDonald passed a
person who was on the paved shoulder of the highway on the ditch side of the
fog line. Mr. McDonald then heard a “thump” and a small white car pulled out in
front of his truck from the right shoulder and kept going. Mr. McDonald recalls
seeing two occupants in the car but could not say for certain whether they were
both in the front seat. Mr. McDonald flashed his lights at the car that was
speeding away, then stopped and went back to where he had heard the thump and
found Mr. Simon. Mr. McDonald then called 9-1-1.

Evidence relating to the identity of the
driver

[13]        
The only direct evidence relating to the
identity of the person who was driving the car when it struck Mr. Simon came from
Messrs. Cook and Mr. Tychkowski and from the testimony of Mr. Portsmith at his
criminal trial.

[14]        
Mr. Cook admitted that he had a criminal record,
including convictions for impaired driving, mischief, theft, assault and break
and enter. Mr. Cook testified that he knew Mr. Portsmith and Mr. Tychkowski and
socialized with them. He described Mr. Tychkowski as a friend and Mr. Portsmith
as more of an acquaintance. Mr. Cook and Mr. Tychkowski purchased and used
cocaine together.

[15]        
Mr. Cook testified that on October 16, 2001, he
went to a local bar in Salmon Arm called “Jiggers” where he had a few beers. He
met Mr. Tychkowski at the bar and they drank some more beer. Mr. Portsmith then
arrived at the bar and the three of them drank beers and played pool.

[16]        
A few hours later, they decided to go to Vernon
to purchase some cocaine. Mr. Cook testified that Mr. Portsmith drove them to
Vernon in a small white car that he said was his mother’s car. Mr. Cook had
never seen the car before. On the way back from Vernon, all three of them used
the cocaine that they bought. They returned to Jiggers and resumed drinking.

[17]        
Mr. Dodds and Mr. Simon arrived at Jiggers and
sat with them. That was the first time that Mr. Cook had met Mr. Simon. Mr.
Cook said that they all then walked to a nearby nightclub called “Live Wire”
where they drank some more. They left Live Wire and went to the parking lot
outside Jiggers. A decision was made that Mr. Cook, Mr. Tychkowski and Mr.
Portsmith would go to Vernon for some more cocaine. All three were intoxicated.
Mr. Cook admitted in cross-examination that all three of them were staggering
drunk.

[18]        
Mr. Cook testified that Mr. Portsmith drove, Mr.
Tychkowski was in the front passenger seat and he was in the rear seat, “kind
of slouched down.” Mr. Cook said that Mr. Portsmith was driving erratically, “like
a maniac.” He said that as they were heading up the hill out of town Mr.
Portsmith passed a semi-truck on the shoulder and hit something on the shoulder
of the highway. Mr. Cook said that Mr. Portsmith did not stop when he told
him to do so. Mr. Cook said that Mr. Portsmith ran over a median sign a couple
miles down the highway, then drove down a road, stopped the car, jumped out and
headed toward a 7-11 store. Mr. Cook and Mr. Tychkowski went in a
different direction to the house of a friend, Mandy. The next day, he and Mr. Tychkowski
holed up in a hotel room. He registered using an assumed name. He said they
were scared and did not know what to do. They did not contact the police but
the police located Mr. Cook and he provided them with a statement.

[19]        
Mr. Cook denied that he drove the car that
struck Mr. Simon.

[20]        
Mr. Tychkowski described Mr. Portsmith as an
acquaintance whom he had known, off and on, for two or three years before the
accident. He described the relationship between him and Mr. Cook as “just
drinking friends.” Mr. Tychkowski testified that on October 16, 2001 he
walked to Jiggers where he ran into Mr. Cook. Then Mr. Portsmith showed up
at the bar and the three of them drank together. At about 4 p.m. they decided
to go to Vernon to buy cocaine. Mr. Tychkowski testified that Mr.
Portsmith told him he had a car and that he was going to drive. It was a white,
compact size car. Mr. Tychkowski said that Mr. Portsmith drove, Mr. Cook
was in the back seat and he was in the passenger seat. Mr. Tychkowski said that
he asked Mr. Portsmith whose car it was. Mr. Portsmith told him it was his
mother’s car and that he had borrowed it.

[21]        
After purchasing cocaine in Vernon the three men
returned to Jiggers in Salmon Arm where they resumed drinking. Mr. Dodds and
Mr. Simon joined them at their table.

[22]        
Mr. Tychkowski testified that at one point Mr.
Portsmith drove him and Mr. Dodds looking to buy some cocaine in Salmon
Arm. He said that on that trip he offered to drive but Mr. Portsmith told him
it was his mom’s vehicle and no one was driving but him. He said they returned
to Jiggers after buying some cocaine and resumed drinking and played some pool.

[23]        
Mr. Tychkowski testified that he, Mr. Portsmith
and Mr. Cook walked to Live Wire where they had some drinks. They left Live
Wire intending to drive to Vernon to buy more drugs. Mr. Tychkowski testified
that Mr. Portsmith drove, Mr. Cook was in the back seat and he was in the front
passenger seat. Mr. Tychkowski said Mr. Portsmith’s driving on this
occasion was erratic and dangerous. He said that Mr. Portsmith failed to
stop at a stop sign, went onto the Trans Canada Highway and up the hill. Mr.
Tychkowski said there were two semis going up the hill, with one passing the
other. Mr. Portsmith went into the oncoming lane to pass but an oncoming car
forced him back behind the semis. Mr. Tychkowski testified that Mr. Portsmith
then passed a semi using the shoulder, which is when he hit Mr. Simon. Mr. Tychkowski
said he and Mr. Cook told Mr. Portsmith that he had hit someone but Mr. Portsmith
did not stop. Mr. Tychkowski said the passenger side window had shattered and
he had some glass fragments in his eyes and some cuts on his face.

[24]        
Mr. Tychkowski said that Mr. Portsmith continued
to drive towards Vernon and that it was in Enderby that Mr. Portsmith struck a
median and got high centred. Mr. Portsmith then drove back towards Salmon Arm
using back roads and ended up at the Elks Hall. Mr. Tychkowski testified that
Mr. Portsmith went across the road towards the 7-11 store and said that he was
going to report the car stolen.

[25]        
Mr. Portsmith died before he could be examined
for discovery. A statement that he made to the police and his testimony at the
criminal trial were admitted in evidence. During the statement to the police,
Mr. Portsmith did not say anything helpful with regard to the circumstances of
the accident or who was driving the car. He simply exercised his right to
silence.

[26]        
In his testimony at the criminal trial, Mr. Portsmith
denied driving the car at the time that Mr. Simon was hit by it. He testified
that on the morning of October 16, 2001, he was at his mother’s home
rototilling the garden. He said that after she left in her truck, he hitchhiked
into town to meet someone. He testified that the person he was to meet showed
up in town driving his mother’s car. Mr. Portsmith admitted that he took
control of the car and drove it to Jiggers. He also admitted that he drove the
car with Mr. Cook and Mr. Tychkowski to Vernon to purchase drugs. He said that
during that trip, Mr. Tychkowski was in the front passenger seat and Mr. Cook
was in the rear seat. Mr. Portsmith also testified that after returning to
Jiggers he drove the car in Salmon Arm when Mr. Tychkowski and Mr. Dodds wanted
to buy cocaine. He said that Mr. Tychkowski occupied the front passenger seat
and Mr. Dodds was in the rear of the car during this trip. Mr. Portsmith
testified that he, Mr. Tychkowski and Mr. Cook left Livewire, intending to go
to Vernon again to look for more drugs, but he denied that he drove the car on
that occasion. He testified that he was drunk and not feeling well and gave the
car keys to Mr. Cook while they were in the nightclub and told Mr. Cook that he
would have to drive. Mr. Portsmith testified that he lay down on the back seat
of the car, Mr. Cook drove and Mr. Tychkowski occupied the front passenger
seat. He testified that he was laying down when he heard a thump and that he
did not see what Mr. Cook had hit.

[27]        
Mr. Portsmith testified that when the car
stopped at the Elks Hall, Mr. Cook threw the keys to him in the back seat
and told him to report the car stolen, so he called his mother from the 7-11
store and told her to report the car stolen. He then telephoned 9-1-1 and,
using a fictitious name, asked that an ambulance be sent to the store.

[28]        
Mr. Portsmith testified that he was not supposed
to drive his mother’s car and that she did not like him driving her vehicles.
He also denied living with his mother at that the time of this incident.

Evidence of the defendant Bostock

[29]        
At the time of the accident, Ms. Bostock lived
in a farm house located in an area called Silver Creek, which is about 10
kilometres from Salmon Arm. The house is in a rural area and is quite isolated
from other houses. Ms. Bostock said that she kept the front door of the home
locked but did not lock the back door unless she was away overnight. She also
did not lock her car unless she was going away overnight. She said that she
kept a spare set of keys for the car in the kitchen and that she left them
there when she went away. She said that neither Mr. Portsmith nor anyone else
had keys to the house and that she never saw any signs of forced entry to the
house. She said that there was no way someone could have driven the car periodically
without her knowing it unless she was away.

[30]        
Ms. Bostock had worked at a store in Salmon Arm
but she took a leave of absence from her job in about June 2001, when her
husband was diagnosed with terminal liver cancer. Between June and September
2001 Ms. Bostock and her husband did some travelling to see friends and family
and only returned to Salmon Arm a few times. On September 5, 2001, Ms.
Bostock’s husband was admitted to Vancouver General Hospital where he died on October
2, 2001. Ms. Bostock testified that in the three months prior to September
5, 2001 they spent only about 10 to 12 days at their home in Salmon Arm.

[31]        
Ms. Bostock gave evidence about Mr. Portsmith’s
upbringing and background. She said that her son had a difficult upbringing
with his father, her first husband, who was an abusive alcoholic. Ms. Bostock
separated from her first husband when Mr. Portsmith was five years old. Mr.
Portsmith lived with his mother until he was eight and then lived with his father
for a couple years before being removed by the child welfare authorities and
returned to her home. Mr. Portsmith was rebellious and frequently ran away
from home. When he was 15 he left for the last time. For a time he lived on the
streets in Calgary where Ms. Bostock’s home was. Ms. Bostock tried to convince
him to come home but he generally refused. In 1990 or 1991 Mr. Portsmith lived
with Ms. Bostock for a couple months then left again.

[32]        
When Mr. Portsmith was about 17 he got in touch
with Ms. Bostock, who was then living in British Columbia, and asked if he
could come home. She said that he could live with her if he either went to
school or got a job, but he did neither. After living with her for three or
four months, Mr. Portsmith got into a fight, was convicted and sent to jail.

[33]        
After Ms. Bostock married her second husband
they offered to have Mr. Portsmith live with them if he worked and paid
rent. He lived with them for about six months in 1999 before he lost his job
and his step-father asked him to move out. Ms. Bostock said that he took his
belongings with him but did leave a few articles of clothing in her house. They
turned his bedroom into a spare bedroom. Ms. Bostock continued to receive
mail for Mr. Portsmith at a post office box in Salmon Arm. Ms. Bostock
understood that Mr. Portsmith was living in Kelowna.

[34]        
Ms. Bostock said that Mr. Portsmith moved back
to Salmon Arm in the summer of 2001, but he did not stay with her again until
the night of her husband’s funeral, which she thought was October 8, 2001. That
night, he slept on the couch because Ms. Bostock’s sisters used the spare
bedrooms. She testified that Mr. Portsmith spent another night at her house on
October 14, 2001, the night before Ms. Bostock buried her husband’s ashes.
He had done some rototilling that day. She said that she saw Mr. Portsmith the
next morning and did not see him again for about a year or more after the
accident.

[35]        
Ms. Bostock’s evidence of events preceding the
accident was as follows. On the morning of October 16, 2001 she went to Salmon
Arm where she went to see her husband’s doctor about some papers. The doctor
provided her with some medicine because she was upset. He either gave her a
prescription or some sample medication. Ms. Bostock also picked up some gas for
the rototiller because it had run out of gas when Mr. Portsmith was rototilling
her garden for her a couple days previously. According to Ms. Bostock, when she
arrived home shortly after noon she parked her car by the door of the garage
that was located to the side and at back of the house. She left the car keys on
the seat of the car because she intended to get the can of gas from the trunk
later in the day.

[36]        
Ms. Bostock had made arrangements to take her
pickup truck to her brother-in-law that day to have the oil changed. She left
home in the pickup truck shortly before 4:00 p.m. She did not notice if her car
was still parked by the garage or not. Ms. Bostock arrived home from her
brother-in-law’s home at about 6:30 or 7:00 p.m. She did not notice if the car
was there or not. She forgot about getting the gas out of her car and just went
inside the house. Ms. Bostock made something to eat and watched television for
a while. She then took the medication the doctor had given her and went to bed
around 9:30 p.m.

[37]        
Ms. Bostock testified in her direct examination
that she was awakened by a telephone call from her son, Wade Portsmith, at
about 2:00 a.m. asking for some telephone numbers. He was incoherent and
sounded drunk. She said he called back and told her that her car was stolen. He
told her he was uptown and saw two guys driving her car. He told her to make a
report to the police. He told her he was at the 7-11 store. In her examination
for discovery, Ms. Bostock said that he told her to report the car stolen
during the first call and that he asked her for a phone number during the
second call. I understand that these two calls were made closely together.
After the second call, Ms. Bostock checked and saw the car was missing and she
called 9-1-1.

[38]        
Ms. Bostock testified that Constable Ferguson
came to the house to take a report about the stolen car. Constable Ferguson
questioned Ms. Bostock about the whereabouts of her son. She did not tell
Constable Ferguson that her son had telephoned her. Mr. Portsmith called Ms.
Bostock twice while Ms. Bostock was talking to Constable Ferguson but she did
not tell him her son was on the line. She testified that she did not tell Constable
Ferguson about the calls because she believed the police officer was more
interested in finding her son than in finding her car.

[39]        
In cross-examination, Ms. Bostock admitted that
she did not tell Constable Ferguson that her son had told her to report the car
stolen. She told him that she first discovered the theft when she got up in the
middle of the night to put another log on the fire and looked out and saw that
it was missing. She also admitted that she deliberately deceived Constable
Ferguson about who telephoned her when he was talking to her.

[40]        
The day after Constable Ferguson came to her
home, Ms. Bostock was interviewed by Corporal Grondin, who was suspicious about
Ms. Bostock’s earlier statement to Constable Ferguson. Ms. Bostock told Corporal
Grondin that Mr. Portsmith had telephoned her only when she was confronted with
information that the police had telephone records. At that point, she told Corporal
Grondin only that he called and wanted a phone number. It was in stages that
she related the telephone calls and eventually admitted that Mr. Portsmith had
told her to report the car stolen. Her explanation for her actions was that she
was telling him what happened step-by-step. She admitted that by that time she
thought there was a warrant out for Mr. Portsmith’s arrest. She was trying to
protect him and she wanted them to be concerned about her car. She said she was
concerned that someone would get into an accident in her car and, because she
had left the keys in the car, her insurance would be void.

[41]        
Ms. Bostock admitted that she never told the
police that Mr. Portsmith had told her during the telephone conversations that
he saw her car with two men in it and said that it might have been much later
that he told her that. She also agreed that when examined for discovery she did
not mention Mr. Portsmith telling her about seeing the two people in the car.

[42]        
 Ms. Bostock testified that Mr. Portsmith did
not have a key to her house or her vehicles and did not have permission to stay
live in her house or to drive her vehicles. Ms. Bostock testified that, to her
knowledge, Mr. Portsmith never had a driver’s license and was never allowed to
drive her vehicles. She said that he drank and was not reliable so she would
not have given him her vehicle to drive. She said that she drove her son to
various places around Salmon Arm.

[43]        
In cross-examination, Ms. Bostock agreed that
there was no way that anyone could have driven her car on a regular or periodic
basis without her knowing about it unless she was not around and that if she
was not around the keys were locked in her house.

Ms. Bostock’s discovery evidence

[44]        
Ms. Bostock testified that when she spoke to Constable
Ferguson she did not tell him that her son had called her and told her to make
a report because she wanted to believe that her son had not taken her car. She
said that she did not tell Constable Ferguson where her son was when he
called because she was more concerned about them finding her car.

[45]        
Ms. Bostock also testified that she kept a set
of keys to the car on a hook inside the house and that Mr. Portsmith knew where
they were kept. She said those keys were still on the hook when Constable
Ferguson attended.

[46]        
Ms. Bostock testified that she told Constable
Ferguson that she first noticed her car missing when she got up to put some
wood on the fire, lit a cigarette, looked out the window and saw that the car
was not there.

Other evidence

[47]        
Mr. Dodds testified that when he went to Jiggers
with Mr. Simon he intended to tell him that he would have to move out of his
house because his wife no longer wanted him residing there. He said that they
arrived at the pub at about 6:30 p.m. and met up with Mr. Portsmith, Mr. Cook
and Mr. Tychkowski. Mr. Dodds testified that, at one point, he went with Mr.
Portsmith and Mr. Tychkowski to try to buy some cocaine in Salmon Arm and that
Mr. Portsmith drove. Mr. Dodds testified that Mr. Portsmith’s driving was
erratic and that Mr. Tychkowski offered to take over the driving, but Mr.
Portsmith told him that no one else drove that car.

[48]        
Mr. Dodds and Mr. Simon left Jiggers around
midnight. It was then that he told Mr. Simon that he had to move out. Near the
top of the hill, Mr. Simon asked to be let out of the vehicle. He was upset
that he had been told he had to move out of Mr. Dodd’s house. Mr. Dodds went
home and learned from the police the next day that Mr. Simon had been in an
accident.

[49]        
Mr. Clayton Bushman was working at the 7-11
store located on the Trans Canada Highway, in Salmon Arm, on the night of the
accident. At about 2:50 a.m., a man, whom Mr. Bushman later came to know as Mr.
Portsmith, came into the store smelling of alcohol. He said that he lost his
keys and that his car was stolen. He did not seem upset. He spent about an hour
at the store, trying to get a ride to Tappen, which is about 10-15 minutes from
Salmon Arm, from other customers. At times, he went outside to use the pay
phone.

[50]        
Mr. Ronald Pincheira, the operator of Live Wire
testified that he knew Mr. Portsmith from the night club and that he had
seen him on a number of occasions driving a white compact car, which he thought
was a Honda or Toyota make. When shown photographs of Ms. Bostock’s white
Toyota Tercel, Mr. Pincheira said it resembled the car he saw Mr.
Portsmith drive.

[51]        
Mr. Brock French, who manages a pawn shop in
Salmon Arm and was acquainted with Mr. Portsmith, testified that a couple
months before the accident he saw Mr. Portsmith two or three times driving around
town in a little white Toyota. He said the car in the photographs of Ms.
Bostock’s car looked like the car he saw Mr. Portsmith drive.

[52]        
Ms. Colleen Johnson, who worked at Jiggers,
testified that she knew Mr. Portsmith and saw him about a dozen times driving
a white 4-door car. I note that Ms. Bostock’s Toyota is a 2-door.

[53]        
Ms. Shari McKenzie, who had known Mr. Portsmith
for over 20 years and described him as a good friend, testified that quite
often she saw him driving a little white car. She said she was pretty sure it
was the same car that was depicted in the photographs taken of Ms. Bostock’s
Toyota. She said Mr. Portsmith’s mother drove Mr. Portsmith to her place on
occasion in a similar little white car.

[54]        
Ms. McKenzie testified that a couple days after
the accident, Mr. Portsmith came to her residence and told her that he had
been in an accident. She testified that Mr. Portsmith initially told her that
Mr. Tychkowski had been driving, but later told her that he was the driver.
However, on cross-examination, Ms. McKenzie said that an investigator told her
that Mr. Portsmith was the driver and that was probably the source of her
information about the identity of the driver. She then said that Mr. Portsmith
never changed his story to her that he was not driving.

[55]        
Mr. Kevin Jones, who lived in Enderby and knew
Mr. Portsmith for a number of years, testified that he saw Mr. Portsmith drive
a small white car that looked similar to that depicted in the photographs taken
of Ms. Bostock’s Toyota.

[56]        
At trial, I admitted an affidavit of a Mr. Daniel
Stushnov that he had sworn in support of an earlier unsuccessful motion to
dismiss the action as against Ms. Bostock. Mr. Stushnov died before trial.
Mr. Stushnov’s evidence was that he was an acquaintance of Mr. Portsmith. He
said that in August 2001, Mr. Portsmith had been staying with a woman by
the name of Shari Spada. One day, Mr. Portsmith told him that he had a
temporary job at a ranch close to where Mr. Stushnov lived and asked if he
could stay with Mr. Stushnov so that he could walk to and from work. Mr.
Stushnov agreed to let Mr. Portsmith stay with him. Mr. Stushnov said that
Mr. Portsmith stayed with him for approximately four to six weeks. He
deposed that, by October 17, Mr. Portsmith had lived in his house for between
four and six weeks.

DISCUSSION AND ANALYSIS

Was the driver of the vehicle that
struck Mr. Simon negligent?

[57]        
I accept the evidence of Mr. McDonald and am
satisfied that Mr. Simon was struck when he was walking on the shoulder of the
highway, on the ditch side of the fog line, by the vehicle that drove onto the
shoulder while passing Mr. McDonald’s tractor-trailer on the right at high
speed. I am satisfied that the driver of that vehicle is 100% at fault for the
loss and damage suffered by Mr. Simon as a result of this incident.

Was Mr. Portsmith driving the motor
vehicle that struck Mr. Simon?

[58]        
Counsel for the defendants submit that all three
of the men who were in Ms. Bostock’s car at the time of the collision should
be considered to be “unsavoury witnesses” whose evidence must be viewed with
great caution (R. v. Vetrovec, [1982] S.C.J. No. 40). They submit that
the evidence of these witnesses should not be accepted unless there is some
independent corroboration The applicability of the “Vetrovec” warning in
non-criminal cases was discussed in Fetherston v. College of Veterinarians
of Ontario, [1999] O.J. No. 370 (Ont. C.J.), a case concerning disciplinary
proceedings before the Ontario College of Veterinarians at which evidence was
given by an accomplice by the name of Terpevich. At para. 9, Campbell J.
discussed the Vetrovec principle as follows:

9 Having regard to the importance of Terpevich, a classic Vetrovec
accomplice, it would have been better had the tribunal directed itself
explicitly to the dangers of relying on his evidence in the absence of
independent confirmatory evidence. R. v. Vetrovec (1982), 67 C.C.C. (2d)
1 repeats a common sense principle of evidence, not confined to criminal law.
It applies in this case where the evidence of the accomplice was so central to
proof of guilt, where the accomplice was so unsavoury, had made an American
plea bargain to deliver the appellant, and was during much of the material
period high 95% of the time on either Oxycocet, heroin, or cocaine.

[59]        
Mr. Cook and Mr. Tychkowski fall into the
category of accomplices of unsavoury character. Both have criminal records.
Both admit to being under the influence of drugs and alcohol at the time of the
accident. Immediately after the accident, they separated from Mr. Portsmith and
hid out from the police. Neither of them attended the trial willingly.

[60]        
Counsel for the defendants submit that there is
no independent evidence to confirm their testimony that Mr. Portsmith was the
driver of the car. Counsel for Mr. Portsmith submits that there is some
independent evidence to confirm his testimony at his criminal trial that he was
not the driver in that Mr. Macdonald gave evidence that he saw only two heads
in the car and not three, which is consistent with Mr. Portsmith’s
testimony that he was laying down in the back of the car and would not have
been seen. He also says that the evidence that the police found the keys in the
back of the car is consistent with Portsmith’s statement that he was still in
the back of the car when Mr. Cook threw him the keys after he had parked the
car.

[61]        
Counsel for the defendants also submit that the
hospital records relating to Mr. Portsmith, when he was admitted to hospital
the morning of the incident, establish that he was too intoxicated to drive.
However, the evidence of Mr. Bushman was that Mr. Portsmith spent a
considerable time at the store. He spoke to other customers trying to get a
ride and went outside the store a number of times to use the pay phone. Mr.
Bushman’s description of Mr. Portsmith is not that of a falling-down drunk. I
am not satisfied that during this last fateful outing Mr. Portsmith was too
intoxicated to operate a motor vehicle, even though he was clearly impaired.

[62]        
It is possible to reconcile Mr. MacDonald’s
evidence with Mr. Cook’s version of events and his testimony that he was in the
back seat, “kind of slouched down.” If that is so, he may very well have not
been visible to Mr. MacDonald. Further, Mr. MacDonald conceded in cross-examination
by Mr. Battista that he could not be sure that there were only two people in
the car and could not say for sure that those he saw were in the front seat.

[63]        
Mr. Battista argues that the conduct of Mr. Cook
and Mr. Tychkowski following the accident, in not making a report to the police
and in fact evading the police, is consistent with their general character in
not wanting to become involved with the police in any way and in their belief
that the police had caught the right person when they learned of Mr.
Portsmith’s arrest. He submits that this conduct should not be used to conclude
that one of them was actually the driver.

[64]        
Mr. Battista submits that there are a number of
circumstances, in addition to the testimony of Mr. Cook and Mr. Tychkowski,
that should lead me to conclude that Mr. Portsmith was the driver. Mr.
Portsmith admitted that on the two other occasions that the car was used that
night, it was he who drove. The fact that he did not have a driver’s license
and the fact that he was impaired by alcohol and drugs did not deter him from
driving the car on those occasions. It was his mother’s car and it would make
sense that he would be the one to drive. When Mr. Portsmith went with Mr. Tychkowski
and Mr. Dodds to look for drugs in Salmon Arm, in response to an offer by Mr.
Tychkowski to drive, Mr. Portsmith told Mr. Dodds and Mr. Tychkowski that
“no one else drives this car”. Mr. Portsmith was intoxicated and had consumed
drugs by this time and was probably in no better shape to drive that he was
during the last outing.

[65]        
Mr. Portsmith’s statement to the police, that
his friend Dan Benson drove the car into town and met up with him in Jiggers,
was not corroborated by any of the other witnesses.

[66]        
Mr. Battista points to the fact that the police
found pieces of broken windshield glass in Mr. Portsmith’s clothes, which is
consistent with his being in the front seat and not laying down in the back
seat.

[67]        
Mr. Battista also points to the fact that,
following the accident, Mr. Portsmith told Ms. McKenzie that Mr.
Tychkowski was the driver and later said that it was Mr. Cook who was the
driver. This was after he learned that Mr. Tychkowski’s blood had been found in
the front passenger seat, ruling out Mr. Tychkowski as the driver.

[68]        
Mr. Battista also relies on Mr. Portsmith’s
conduct after the accident as being consistent with his being the driver. Mr.
Portsmith telephoned his mother and lied about the car having been stolen. Mr.
Portsmith was also untruthful to the clerk at the 7-11 store when he said his
car had been stolen when, in fact, he had just left the car parked at the Elks Hall.
He was active and coherent during the hour or so he spent at the 7-11 store
until the ambulance responded to his 9-1-1 call, in which he gave a fictitious
name.

[69]        
I find that these additional circumstances are
sufficient to tip the balance in favour of the plaintiff with respect to this
critical factual issue. Upon consideration of all of the evidence, I am
satisfied on a balance of probabilities that Mr. Portsmith was driving the car
at the time of the accident.

Was Mr. Portsmith living with Ms.
Bostock as a member of her family?

[70]        
The next issue to address is whether Mr.
Portsmith was living with Ms. Bostock as a member of her family at the time
of the accident.

[71]        
What is meant by “a member of the family” was
discussed by Satanove J. in Rolleman v. Blackmon, 2002 BCSC 766, where
at paras. 11 – 12, she said:

11 In
our modern climate of equality, more recent cases are inclined to focus less
upon the deference that may or may not exist between two persons living in the
same residence. It is clear that the cases no longer require that the owner
stand in loco parentis to the driver (Paynter v. Wood (1970), 15 D.L.R.
(3d) 622 (B.C.S.C.) or that they have a blood or marital relationship.
Nevertheless, there is a certain dynamic of the required association that is
necessary. In Gray v. Insurance Corp. of British Columbia (1987), 20
B.C.L.R. (2d) 63 (C.A.). Carrothers J.A. stated that to his mind to be a "member"
of a household implied a constituent, an integral part or a component of a
whole, a bond or affinity, as an essential element of constituting a member of
the household.

12  Even in
other contexts, such as residential zoning legislation, the courts look for an
element of permanent social, moral or psychological commitment between the
persons living in the same physical premises. (Bowes v. Victoria, [1998]
B.C.J. No. 234 (S.C.)).

[72]        
The mere fact that an adult child returns to the
home of his parent for a visit does not make him a “member of the family”.
Thus, in Paynter v. Wood, supra, it was said at para. 8:

8 … Even though he was welcome to come there whenever he wanted to
do so, and because his mother felt responsibility for him, the act of moving into
the family even without any arrangement about paying board does not per se make
him a member of a family unit. Otherwise any child coming back to visit a
family on a holiday would upon reaching home become a member of the family
unit, and such I am satisfied was never the intention of the law.

[73]        
Mr. Battista argues that the only established
household of which Mr. Portsmith was ever a member was that of his mother.
He argues that Mr. Portsmith’s other residences were transitory in nature
and that he never established another household. He points to the fact that Mr.
Portsmith received mail at Ms. Bostock’s house, returned there to stay on
a number of occasions, used a bedroom there and gave that address as his
address during the police interview. He says, further, that the fact that he
did chores, namely rototilling, is another factor that establishes that he was
a member of Ms. Bostock’s family.

[74]        
In my view, the weight of the evidence is
against the plaintiff on this issue. The testimony of Ms. Bostock was Mr.
Portsmith left home at the age of 15 and that, apart from a three or four month
period when he was 17 and a six month period in 1999, Mr. Portsmith was on his
own. She said that when her son moved out after the latter stay he took his
belonging with him, leaving only a few articles of clothing, and that she
turned his bedroom into a spare room. Her evidence is that it was not until the
night of her husband’s funeral that Mr. Portsmith again spent a night in her
house and, on that occasion, he slept on the couch.

[75]        
In addition, the evidence of Mr. Stushnov was
that by the time of the accident, Mr. Portsmith had been living with him for
approximately four to six weeks.

[76]        
The plaintiff provided no evidence to contradict
the defence evidence on this point.

[77]        
The evidence fails to establish the sort of
permanent commitment between Ms. Bostock and Mr. Portsmith that would be
required to find that he was a member of the family. Mr. Portsmith had
abandoned his family home many years before to lead a life independent of his
mother.

Was Mr. Portsmith operating the motor
vehicle with the express or implied consent of Ms. Bostock?

[78]        
Mr. Battista submits that Ms. Bostock expressly
gave her son consent to use her car on the day before the accident. He submits
that on a number of earlier occasions Mr. Portsmith was seen driving the car
and Ms. Bostock must have known of his driving it. He submits that her
knowledge constitutes express consent.

[79]        
In my opinion, the plaintiff cannot succeed in
establishing express consent. There is no evidence, as opposed to mere
conjecture, that Ms. Bostock expressly gave her son permission to drive her car
on the day in question. In my view, if she was aware of his driving the car on
previous occasions, that knowledge does not constitute express consent to drive
the car on the day of the accident. If consent is to be found, it must be on
the basis of implied consent.

[80]        
Mr. Battista submits that there was implied
consent because Ms. Bostock was wilfully blind in not securing the car keys when
she knew that Mr. Portsmith had a propensity to drive illegally, did not follow
the rules or law, drank excessively, and had no respect for authority and she
could not control him. However, merely providing an opportunity for someone to
take a vehicle does not constitute implied consent.

[81]        
The test for implied consent was set out in Palsky
(Next friend of) v. Humphrey, [1964] S.C.R. 580, in which the Supreme Court
of Canada affirmed the following test stated by Porter J.A. of the Alberta
Court of Appeal:

… It seems to
me that consent can be implied because it is clear that had it been sought it
would have been granted as a matter of course.

[82]        
 In Godsman v. Peck, [1997] B.C.J. No.
377 (C.A.) the Court of Appeal concluded that the foregoing remains the applicable
test. Godsman approved the following analysis of Boyd J. in Morrison
(Committee of) v. Cormier Vegetation Control Ltd. et al., [1996] B.C.J. No.
612 at para. 61:

61 The
case authorities establish that implied consent will not arise unless it can be
said that if permission had been sought, it would have been granted by the
owner as a matter of course. The mere possibility that consent would have been
granted is not sufficient. In an effort to determine this issue of fact, the
Court regularly examines all of the circumstances which existed at the time the
driver acquired possession of the vehicle including the relationship between
the owner and the driver (Godsman, Palsky, Usher); the circumstances in
which the owner had given or refused consent in the past (Godsman, Palsky,
Besse); any particular circumstances of the driver or the owner (Usher);
any relevant and particular characteristics of the vehicle (Palsky, Jaroszuk
v. Quewezance (1992) 66 B.C.L.R. (2d) 171 (B.C.C.A.)); and the use to which
the driver proposed to put the vehicle (Palsky, Usher). All of these
matters are examined by the Court, the relevant time being the time possession
of the vehicle was acquired.

While the
implied consent test is sometimes described by the Courts as an objective test,
it necessarily imports a subjective element into that determination. Put
another way, would this particular owner, in all of the circumstances, have
consented to the driver acquiring possession of the vehicle as a matter of
course? If the answer to that question is "yes", then the driver has
proven that he or she drove the vehicle with the owner’s implied consent.

[83]        
Morrison was
reversed on appeal on the basis of express consent (Morrison v.
Cormier Vegetation Control Ltd., [1996] B.C.J. No. 2601) but
the Court did not discuss the issue of implied consent.

[84]        
Mr. Battista submits that Ms. Bostock was not
truthful when she testified that she had no knowledge of her son driving the
car in the months before this accident. He submits that she was aware of his
prior use of the car and that despite her testimony that she would not have
given him permission to use the car on the day in question if he asked, her
conduct after Mr. Portsmith telephoned her and the inconsistencies in and the
illogical nature of her testimony indicate the opposite is true.

[85]        
A number of witnesses testified that they saw
Mr. Portsmith driving a small white car in and around Salmon Arm prior to this
accident. Ms. Johnson testified she saw Mr. Portsmith drive a small white 4-door
car. The Bostock vehicle was a two-door. Mr. Pincheira testified that the car
he saw Mr. Portsmith driving “resembled” the one in the photograph of Ms.
Bostock’s car. Ms. French said the car she saw Mr.  Portsmith drive “looked
like” the car in the photograph. Mr. Jones said the car he saw Mr. Portsmith
drive “looked similar to” the car in the photograph. Ms. McKenzie, who
said she rode in the little white car, was “pretty sure” it was the car in the
photograph. However, she also testified that the car she rode in had things
hanging from the mirror. The photographs of Ms. Bostock’s car, taken after the
accident, do not show anything hanging from the mirror.

[86]        
Despite the lack of certainty in the evidence of
these witnesses, I think it is likely that Mr. Portsmith did, in fact, drive
Ms. Bostock’s car on a number of occasions before the night in question. But
does the evidence establish that Ms. Bostock was aware that Mr. Portsmith
had taken her car on the other occasions and can it be said that she would have
permitted him to take it on this occasion if he had asked?

[87]        
Ms. Bostock testified that she would have known if
her car had been taken and used, unless she was away at the time. She testified
that between June and September she and her husband were away from their home
for considerable periods of time. After her husband was admitted to hospital in
Vancouver on September 5, 2001, she was in Vancouver most of the time. Ms.
Bostock also testified that when she was away she locked the doors to her house
and locked her car but she left a set of car keys hanging in the kitchen. Mr.
Portsmith knew the keys were there. While Ms. Bostock testified she did not see
any evidence of forced entry to the house, Mr. Portsmith could have obtained a
key to the house and could have surreptitiously obtained the use of the car
without her knowledge.

[88]        
Mr. Battista submits that Ms. Bostock’s
credibility is severely undermined by the fact that she reported the car stolen
on the instructions of Mr. Portsmith and then did not tell the police the truth,
or at least the whole truth, when they interviewed her after the accident. He
submits that Ms. Bostock lied to the police because she knew that Mr. Portsmith
must have taken the car and she wanted to protect him, as well as protect her
own interests. Ms. Bostock’s actions are also consistent with her suspecting,
when Mr. Portsmith telephoned her, that he had been using her car and that
something bad had happened that involved him. The fact that she may have
developed that suspicion as a result of the telephone calls does not lead to
the conclusion that she was aware at the time Mr. Portsmith took the car.

[89]        
Mr. Battista also submits that Ms. Bostock’s
credibility is undermined by the illogical nature of her evidence. He says that
her evidence that she only locked the house and the car when she went away
overnight makes no sense. In my opinion, considering the rural nature of the
area in which she lived, it is quite understandable. Mr. Battista says that Ms.
Bostock’s explanation for leaving the keys in the car makes no sense. Ms.
Bostock provided an explanation that when she arrived home she needed to use
the bathroom and left the keys in the car because she intended to return to the
car to retrieve the can of gas but was tired and forgot about the gas. That is
not a far-fetched explanation.

[90]        
Mr. Battista submits that Ms. Bostock’s
testimony that she did not notice the car was missing when she returned from
having the oil changed in the truck is unbelievable. Ms. Bostock testified that
she just drove in and parked her truck by the back door and did not pay
attention to what other cars were parked in front of the garage. Again, that is
a plausible explanation given the fact that she was tired and upset at the
time.

[91]        
I, in spite of the challenge made by Mr. Battista,
found Ms. Bostock to be a credible witness.

[92]        
What I am left with on this issue is evidence,
which I accept, that Ms. Bostock did not give her son permission to drive her
vehicles on this or other occasions because he did not have a driver’s license,
abused alcohol and was not trustworthy. I am not satisfied there is a history
of his using the vehicle with her knowledge. In my view, the indicia of implied
consent referred to in the authorities are not present in this case.

Was
Ms. Bostock negligent in leaving her keys in the unlocked car?

[93]        
The plaintiff alleged in the alternative in her
amended statement of claim that Ms. Bostock was negligent in failing to take
reasonable steps to prevent Mr. Portsmith from driving her car in
circumstances where she knew or ought to have known that he might drive the car
without her permission. In particular, the plaintiff alleged that Ms. Bostock
was negligent in failing to secure the car keys in a manner that would prevent
unauthorized use of the car, failing to monitor Mr. Portsmith and failing
to secure the car, that is failing to lock it.

[94]        
Mr. Battista did not address this alternative
claim in his written submissions. I can deal with it briefly. This alternative
claim must fail for the following reasons. I have found Ms. Bostock’s
explanation for leaving the keys in the car to be reasonable. I have also
concluded that her habit of not locking the car when she was at home to be
reasonable considering the remote nature of her residence and the fact that
there had been no thefts during the five years she lived there. Further, given
my findings that Mr. Portsmith was not residing with her and that she was not,
in fact, aware that Mr. Portsmith had on previous occasions taken and used her
car without her knowledge and consent, there was no reason for her to believe
that he would take the car from her yard. It was not reasonably foreseeable
that the car would be stolen and driven negligently causing an accident (see: Hollet
v. Coca-Cola Ltd., [1980] N.S.J. No. 15 (S.C.); and Tong v. Bedwell,
[2002] A.J. No. 263 (Q.B.)).

SUMMARY

[95]        
The plaintiff is entitled to judgment against
the estate of Wade Robert Portsmith for damages to be assessed or as agreed.
The action against the defendant Beverly Ellen Bostock is dismissed.

[96]        
Counsel may arrange to speak to the matter of
costs, if necessary.

“B.M. Joyce J.”