IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100409

Docket:
S043377

Registry: Vancouver

Between:

Jason
Beazley, Laurel Beazley and William Beazley
and Insurance Corporation of British Columbia

Plaintiffs

And

Suzuki
Motor Corporation, General Motors Corporation, General Motors of Canada Limited
– General Motors Du Canada Limitee, Cami-Automotive, Inc.
Stingray Holdings Ltd. formerly known as Sunshine Motors Ltd., and Anchors Away
Worldwide Cruises Inc., formerly known as Sunshine Motors (1994) Limited

Defendants

-and-

Docket:
S060519

Registry: Vancouver

Between:

Natalia
Spehar, a person under disability, by her Committee, Ann Spehar,
and Insurance Corporation of British Columbia

Plaintiffs

And

Suzuki
Motor Corporation, General Motors Corporation, General Motors of Canada Limited
– General Motors Du Canada Limitee, Cami-Automotive, Inc.
Stingray Holdings Ltd. formerly known as Sunshine Motors Ltd., and Anchors Away
Worldwide Cruises Inc., formerly known as Sunshine Motors (1994) Limited

Defendants

Before: The Honourable Mr. Justice Goepel

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiffs apply at a pre-trial conference
to exclude the report of David L. Wood and the portions of the report of Jeya
Padmanapan that deal with the statistical relationship between seatbelt use and
injuries in motor vehicle accidents. The defendants oppose the applications. They
submit that the applications should be deferred to trial and only determined
after the witnesses have testified at trial on a voir dire. Alternatively,
the defendants submit the reports are, in any event, admissible. The trial is
scheduled to commence on April 19, 2010, for 60 days.

BACKGROUND

[2]            
On August 23, 1994, a 1994 two-door 4×4 Geo
Tracker (the “Tracker”) owned by William and Laurel Beazley and driven by their
son Jason was involved in a single car accident. The three passengers in the
Tracker, including the plaintiff Natalia Spehar, suffered serious injuries and
each commenced actions against the Beazleys.

[3]            
I detailed the resolution of those actions and
the background of these proceedings in Beazley v. Suzuki Motor Corporation,
Spehar v. Suzuki Motor Corporation, 2008 BCSC 13. I need not repeat that
history here.

[4]            
The focus of the present action is the design
and safety of the Tracker. The plaintiffs allege that the Tracker was defective
in design and manufacture and was unreasonably dangerous in numerous ways as
particularized in the statement of claim. The plaintiffs submit that the design
and manufacturing defects resulted in vehicle instability which in turn caused
the accident.

THE REPORTS

A.       Report of Mr. Wood

[5]            
Mr. Wood purports to give an opinion as to
the quality and thoroughness of the process by which the Tracker was designed
and evaluated by the defendants General Motors Corporation (“GM”) and Suzuki
Motor Corporation (“SMC”). Mr. Wood is a 32-year GM employee. His present
employment includes providing evaluation of technical issues and discovery
related matters in product liability litigation involving GM vehicles.

[6]            
Mr. Wood is a registered professional
engineer. He has been employed in the automotive engineering field for over 39
years. His duties at GM have included testing, analysis, and component
development in chassis engineering, specializing in tires, wheels and related
components. At present his primary responsibility is evaluating field
performance of current and past production vehicles, focussing on areas of
steering, suspension, handling and stability, tires and wheels. His opinion
states that he has knowledge and expertise relating to tire performance,
suspension, steering and chassis systems, including handling and stability
characteristics of vehicles such as the Tracker.

[7]            
In his report Mr. Wood provides opinions concerning
how GM and SMC evaluated the handling, stability and rollover characteristics
of the Tracker and whether the Tracker was defective or unreasonably dangerous
due to instability characteristics, tire placard pressure or “aggressive
cornering force” capability. Mr. Wood also opines as to the cause of the
accident. The defendants acknowledge that Mr. Wood is not qualified to
give that opinion and agree that portion of his opinion should be excised from
the report.

B.       Report of Ms. Padmanapan

[8]            
Ms. Padmanapan is a statistician of more
than 20 years experience in the areas of automotive safety research. She has a
Bachelor’s degree in mathematics and a Master of Science degree in operations,
research and statistics. She has worked as a statistician reviewing accident
injury data collected by local and federal agencies for the past 20 years. She
has authored several papers that examine field data, analyzing risk of injury in
automobile accidents, including the factors associated with different types of
automobile accidents.

[9]            
At trial the defendants will argue that the
injuries suffered by Ms. Spehar were caused solely or partially by her own
negligence for failing to fasten and properly adjust her seatbelt. One of the
issues upon which Ms. Padmanapan opined is the statistical link between
seatbelt use and injuries in motor vehicle accidents, including rollover
accidents. In the report she reviews certain statistical data to determine the
injury risk to belted and unbelted occupants in rollover accidents. She
concludes that an unbelted occupant in a light truck rollover crash is about
six times more likely to be seriously injured than a belted occupant. Similarly,
an unbelted occupant is about eight times more likely to sustain serious
head/face/neck injuries than a belted occupant. Her statistical data suggest
that seatbelts are highly effective in reducing complete ejection in vehicle
rollover accidents.

POSITION OF THE PARTIES

A.       Position of the Plaintiffs

[10]        
The plaintiffs concede that the admissibility of
expert evidence in most cases should be determined only after hearing from the
expert at trial. In this case, however, they submit that given Mr. Wood’s
work history and his present employment with GM there is, at a minimum, a
reasonable apprehension of bias that disqualifies him from acting as an expert.
They submit that where it is demonstrated that there exists a relationship
between the proposed expert and the party calling him which a reasonable
observer might think was capable of affecting the views of the expert so as to
make them unduly favourable to that party, the evidence should not be admitted.
They submit that given Mr. Wood’s employment history, he cannot possibly
satisfy the requirement of independence. They submit that when the issue is the
appropriateness of GM’s own work, it is patent that a GM employee, trained by GM
and familiar only with GM’s own process, is not an independent expert. Such an
expert cannot possibly meet the test of no appearance of bias.

[11]        
The plaintiffs further submit that in any event Mr. Wood’s
general involvement in GM’s test procedures as a GM employee is insufficient to
meet the qualification requirement for the admissibility of expert evidence. Experts
must limit their opinion to their area of expertise. They submit that Mr. Wood
is not qualified to give expert opinion evidence on whether design goals were
appropriate or whether the Tracker was defective or unreasonably dangerous.
Mr. Wood’s curriculum vitae discloses no specific expertise in these
areas.

[12]        
The plaintiffs further submit that Mr. Wood’s
report does not comply with Rule 40A because the facts and assumptions on which
Mr. Wood’s opinion is based are not clearly set out. The plaintiffs submit
that the report is inadmissible for that reason alone.

[13]        
In regard to Ms. Padmanapan’s report, the
plaintiffs submit that the only purpose of her opinion is to support the
defendants’ argument that  Ms. Spehar’s injuries would have been less
severe had she been wearing a seatbelt. The plaintiffs submit that general
statistical evidence concerning rates of injuries for belted and unbelted
vehicle occupants will not be of assistance to the court, and evidence which is
not helpful does not meet the test for admissibility.

B.       Position of the Defendant

[14]        
The defendants submit that Mr. Wood is
qualified to give opinions concerning how GM and SMC evaluated the handling,
stability and rollover characteristics of the Tracker and whether the Tracker
was defective or unreasonably dangerous. They submit the body of Mr. Wood’s
report makes clear the facts and assumptions upon which he relies to form his
opinions. They note that all the tests and evaluations that were carried out on
the Tracker are well known to the plaintiffs.

[15]        
The defendants submit that the plaintiffs’
application is premature and that questions concerning Mr. Wood’s expertise
and perceived bias can only be answered in the context of a voir dire in
which his qualifications and background will be explored in depth. They submit
that his report should not be excluded summarily and the decision as to its
admissibility should be deferred until trial. They further submit that his
employment history is not in itself a basis for disqualification but is simply
a matter that goes to the weight to be given to his evidence.

[16]        
The defendants submit that Ms. Padmanapan’s
evidence will be of assistance in determining whether Ms. Spehar was
negligent with respect to her own safety by failing to wear a seatbelt. The
defendants submit that Ms. Padmanapan’s opinion is necessary and directly
relevant as to whether there is a causal connection between the failure to wear
a seatbelt in the course of a rollover accident and increased injury. The defendants
concede that whether Ms. Spehar actually suffered increased injuries as a
result of failing to wear her seatbelt will be addressed by other witnesses.

DISCUSSION

A.       Overview

[17]        
The admission of expert evidence depends on the
application of the criteria of (a) relevance; (b) necessity in assisting the
trier of fact; (c) the absence of any exclusionary rule; and (d) a properly
qualified expert: R. v. Mohan, [1994] 2 S.C.R. 9 at 20.

[18]        
 In determining the admissibility of expert
evidence the trial judge acts as the “gatekeeper”. That role is described in R.
v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600 at para. 28:

In the course of
Mohan and other judgments, the Court has emphasized that the trial judge
should take seriously the role of "gatekeeper". The admissibility of
the expert evidence should be scrutinized at the time it is proffered, and not
allowed too easy an entry on the basis that all of the frailties could go at
the end of the day to weight rather than admissibility.

[19]        
In this case the proffered evidence is clearly
relevant. The major issue in regard to the Wood report is whether he is a
properly qualified expert. In regard to the Padmanapan report the issue is
whether the evidence is necessary.

B.       The Wood Report

[20]        
Canadian courts appear to have taken different
positions on the issue of whether an expert witness’ bias or perceived bias will
disqualify him or her from giving evidence at trial. Some courts have held that
for expert evidence to be admissible, the expert must be seen to be absolutely neutral
and objective. Other courts have concluded that a lack of objectivity,
neutrality and independence are matters that only impact the weight to be
afforded that expert. Romilly J. in United City Properties Ltd. v. Tong,
2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.

[21]        
The cases are not easily reconciled. Where there
is a personal relationship between the proposed expert and the party, where the
expert has been personally involved in the subject matter of the litigation or where
the expert has a personal interest in the outcome, the expert has not been
allowed to testify. Examples of such cases are Fellowes, McNeil v. Kansa
General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal
Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct.
J.); Bank of Montreal v. Citak, [2001] O.J. No. 1096 (Sup. Ct.
J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC
617. In cases where the relationship between the expert and the party is more
institutional in nature, the evidence has been admitted subject to weight. Examples
of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd.
(2006), 80 O.R. (3d) 594 (Sup. Ct. J.).

[22]        
Mr. Wood is more in the category of an
institutional witness. He was not involved in the development of the
Tracker. He has no personal interest in the outcome of the litigation.

[23]        
 In Inco the defendant was accused of discharging
untreated mine effluent into a watercourse. The trial judge declined to qualify
a proposed Crown witness as an expert capable of giving opinion evidence on the
ground that the witness was an employee of the Enforcement Branch of the
Ministry of the Environment and could be perceived as lacking independence. On
appeal, the court found that the trial judge had erred in summarily rejecting
the witness. The court held at para. 49:

A finding of
lack of independence or impartiality cannot be based on a cursory examination
of the employment relationship or status. Unless the court is satisfied that
the witness is in a co-venture with the party, is currently in a position as an
advocate for the party or has acted as advocate for the party on the same
matter, the court must test any perceived partiality through a voir dire
hearing that tests the substance of the opinion to be proffered. After such a voir
dire, the trial judge will be in a much better position to assess the
partiality of the witness.

[24]        
In my opinion, those considerations apply in
this case. I cannot find on the limited material before me on this application that
Mr. Wood cannot be properly qualified as an expert witness. He is a
trained engineer with extensive experience in the automobile industry. He was
not directly involved in the development of the Tracker. While his employment
at GM may influence the weight to be given to his opinion, I cannot summarily
determine that it is improper for him to testify. In the circumstances of this
case I accept the defendants’ submission, that his perceived partiality must be
tested in the course of a voir dire.

[25]        
The voir dire will deal not only with the
question of bias, but also Mr. Wood’s expertise. The plaintiffs have
submitted that he is not qualified to give certain opinions that are found in
his report. The defendants concede that is so in relation to the cause of the
accident. Whether by education, training or experience he is qualified to give
his remaining opinions cannot be determined from his résumé alone. Those are matters to be
canvassed on the voir dire if the defendants
seek to have the balance of his report admitted.

[26]        
The plaintiffs also submit that the report is
inadmissible because Mr. Wood has not clearly stated the facts and
assumptions upon which his opinion is based. While he could have done so more
clearly, I am satisfied that the report adequately sets out the facts and
assumptions upon which he bases his opinion and the report is not inadmissible
on that ground.

[27]        
The defendants will be entitled to tender Mr. Wood
as a witness. The admissibility of his report will be determined following
the voir dire.

C.       The Padmanapan Report

[28]        
Expert opinion evidence is admissible only where
a judge or jury are unable, due to the technical nature of the facts, to draw
appropriate inferences. The defendants seek to call Ms. Padmanapan’s
statistical evidence in order to establish a causal connection between a
failure to wear a seatbelt in the course of a rollover accident and increased
injuries. In certain circumstances statistical evidence can be helpful in
determining causation: Laferrière v. Lawson, [1991] 1 S. C.R. 541.

[29]        
It has been long recognized in British Columbia that
a party who fails to use an available seatbelt and sustains injuries more
severe than if the seatbelt had been worn will be found to be contributory
negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.);
Gagnon v. Beaulieu, [1977] 1 W.W.R. 702 (B.C.S.C.).

[30]        
While there appears to have been statistical
evidence led in Yuan and in Gagnon, subsequent cases have held
that such evidence is not necessary. In Lakhani (Guardian ad litem of) v.
Samson, [1982] B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then
was) noted at para. 3:

I reject the
suggestion that engineering evidence is required in these cases. The court is
not required to leave its common sense in the hall outside the courtroom, and
the evidence is clear that upon impact in both cases the Plaintiff’s upper body
was flung or thrown forward striking the dashboard or the steering wheel. And
common sense tells me that the restraint of a shoulder harness would have
prevented that, and therefore some of the injury from having occurred.

[31]        
To succeed on the seatbelt defence, the onus
will be on the defendants to establish upon a balance of probabilities that the
use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s
injuries: Harrison v. Brown, [1987] 1 W.W.R. 212 (B.C.S.C.); Terracciano
(Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).

[32]        
The statistical evidence to be led from Ms. Padmanapan
is, in my opinion, not necessary and will not assist me as trier of fact in
determining the issue of contributory negligence. If the evidence is not
necessary, it does not meet the test of admissibility.

[33]        
The exclusion of the seatbelt portion of Ms. Padmanapan’s
report is premised upon my present understanding as to the basis upon which
admission of that report is sought. If the basis for admission of the report
changes, perhaps because of evidence the plaintiffs lead at trial, or
otherwise, the defendants are at liberty when Ms. Padmanapan testifies to
apply for reconsideration of this ruling.

SUMMARY

[34]        
The plaintiffs’ application to exclude Mr. Wood’s
report is dismissed. The admissibility of his report will be determined
following a voir dire at trial. Ms. Padmanapan’s statistical
analysis is presently inadmissible.

[35]        
Costs of the application will be in the cause.

The
Honourable Mr. Justice R. Goepel