IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20100514

Docket: M075446

Registry: Vancouver

Between:

Sarah Brooks

Plaintiff

And

Robert Gilchrist, James Gilchrist, and
Brendan Beynon

Defendants

And

Insurance Corporation of British Columbia

Third Party

– and –

Docket: S091220

Registry: Vancouver

Between:

Sarah Brooks

Plaintiff

And

Insurance Corporation of British Columbia
and John Doe

Defendants

Before: The Honourable Mr. Justice
Sigurdson

Reasons for Judgment

Introduction

[1]            
This is an action for damages for personal
injuries allegedly suffered by the plaintiff in two motor vehicle accidents,
the first on January 31, 2006 and the second on February 2, 2007.

[2]            
Late in the evening on January 31, 2006,
the plaintiff, Sarah Brooks, was stopped at a red light at the intersection of
Grandview Highway and Rupert Street.  The vehicle in the lane to her left on
Grandview Highway was rear-ended by a vehicle driven by the defendant, James
Gilchrist.  The plaintiff heard a loud sound and felt that she may have been
hit as well.  Upon arriving at home, she observed scuffs to the driver’s side
of her vehicle and suspected that the car alongside her had sideswiped her
vehicle, which is what she believed until trial.

[3]            
At trial, the expert and lay evidence indicated
that it was not possible that the plaintiff’s vehicle had been sideswiped by
the car beside her.  The plaintiff’s counsel asserted a different theory on how
a collision occurred and her injuries resulted, which was that Gilchrist vehicle,
after or while striking the vehicle in front of it, also made contact with the
rear of the plaintiff’s vehicle.

[4]            
The defendants’ position is that there was no
collision between either of the defendants’ vehicles and the plaintiff’s
vehicle.

[5]            
Ms. Brooks asserts that in the first accident
she suffered injuries, which she claims were pain and stiffness to her left
wrist, her neck and her hips as well as mid-back difficulties.

[6]            
On February 22, 2007 the plaintiff was
involved in the second accident, and asserts that the injuries to her hips and
neck were exacerbated.

[7]            
The plaintiff also was involved in a third
accident which occurred in October 2008 when she was a passenger in a
vehicle driven by her husband.  That accident is not the subject of this
litigation.  The third accident occurred when her husband rear-ended a vehicle
that had stopped quickly for another vehicle entering the road.

[8]            
The key issues at trial were whether the
plaintiff was involved in a collision in the first accident and, if so, the
extent of her injuries from that collision.

[9]            
Although the plaintiff claims to have suffered personal
injuries in the first accident, I have concluded that the plaintiff has not
proven, on a balance of probabilities, that she was involved in a collision on January 31,
2006.  The evidence does, however, establish that the plaintiff did have back,
neck and hip difficulties, which were exacerbated during the second collision.

[10]        
I will first discuss whether the plaintiff was
involved in an accident on January 31, 2006 in which she allegedly suffered
injuries, and will then discuss what damages she is entitled to for the motor
vehicle accident that occurred in February 2007.  Because of my conclusion
that the plaintiff was not involved in a collision on January 31, 2006,
the defendants are not liable for any pain and discomfort that she may have
suffered in the time following that accident, and it is not necessary to discuss
the medical evidence surrounding that aspect of her claim.

The First Accident – January 31, 2006

[11]        
On January 31, 2006, just before midnight,
the defendant, James Gilchrist was driving a Ford F350 truck owned by his
father, Mr. Robert Gilchrist.  He was returning from a rock concert with
three of his friends.  James’s friend, Brendan Beynon, was driving his Volkswagen
Jetta and Mike Forbister was his passenger.  Christopher Gueho was travelling
with Mr. Gilchrist.

[12]        
The Beynon vehicle was ahead of the Gilchrist
vehicle as they travelled east on Grandview Highway and approached the Rupert
Street intersection.  Mr. Beynon applied his brakes to stop at the light
at Rupert Street intersection but was rear-ended by the vehicle driven by Mr. Gilchrist.

[13]        
The plaintiff, Sarah Brooks, was stopped at the
red light at that intersection and was in the lane to the right of Mr. Beynon’s
vehicle.  She was driving her Dodge Neon and was alone.  At the intersection,
there are three lanes heading east, as well as a designated left hand turn
lane.  Mr. Beynon had stopped in the left of the three lanes, and Ms. Brooks
was to his right in the centre lane.  It is not clear in the evidence precisely
where the rear of the Brooks vehicle was in relation to the rear of the Beynon
vehicle, when the Beynon vehicle stopped.

[14]        
Ms. Brooks testified that she heard the
sound of a collision and thought “oh my god I can’t believe it, I (am) in an
accident”.  She got out of her car and the defendant Robert Gilchrist got out
of his vehicle, and said something to the effect of “oh, did I hit you too?”.  Mr. Gilchrist
walked around her car but did not see any damage to it.

[15]        
The damage to the Beynon vehicle was to the
right rear and the damage to the Gilchrist vehicle was to the left front.  The
Gilchrist vehicle was offset to the right and when it stopped was approaching
or in the lane in which the Brooks vehicle was stopped.

[16]        
Ms. Brooks testified that the first thing
she was aware of was the sound of the collision.  She testified that she
remembered the sound more than the feeling of her car moving.  She said she was
shaken and called her husband, and she agreed she may have told him “I think I
may have been in an accident”.  She testified that upon arriving at home after
the incident, her husband took his flashlight and looked at her car, pointed to
scrapes on the left side of her vehicle, and told her that she was not
imagining things, that she had been hit.

[17]        
The plaintiff reported the accident to ICBC the
next day.

[18]        
Mr. Beynon also reported the accident
causing damage to the rear end of his car but said that it was a hit and run. 
Because Mr. Gilchrist was aware of that false report, ICBC has denied
coverage in this case and for that reason both defendants are representing themselves
in this proceeding.

[19]        
The plaintiff’s theory of this case – that is
that the Beynon vehicle to her left had been pushed into her when it was
rear-ended by Mr. Gilchrist – remained the same until shortly before
trial.  However, both expert witnesses, Mr. Goulet and Mr. Sdoutz, concluded
that it was not possible that the Beynon vehicle, the Volkswagen Jetta, was
pushed into the plaintiff’s vehicle.

[20]        
The plaintiff’s theory at trial became that her injuries
were suffered when her vehicle was rear-ended by the defendant, James Gilchrist,
after he had rear-ended the Beynon vehicle.   The plaintiff’s case is that
although there was not a significant impact, there was some impact.  The
plaintiff’s counsel asserts that, given what counsel describes as Ms. Brooks’
weakened state, just having had a child and under the care of a chiropractor
for neck and back injuries at the time of the accident, a minor collision could
cause significant injury.

[21]        
It is clear that Mr. Gilchrist, driving his
Ford F350 truck, was either following his friend Mr. Beynon too closely,
or traveling too quickly, and when he braked he was unable to stop in time and struck
the Beynon vehicle.  It appears he moved to his right to try to avoid the
collision.  There was damage to the left front of the Gilchrist vehicle and the
right back of the Beynon vehicle.  The Gilchrist vehicle was off centre towards
the right of the vehicle in front of it, and was at least pointing towards, if
not in, the lane in which the Brooks vehicle was located.

[22]        
The question is, did the Gilchrist vehicle collide
with the Brooks vehicle?

[23]        
Mr. Gilchrist testified that, after the
collision, he got out of his truck and for about thirty seconds spoke to Ms. Brooks. 
He testified that he said to her “I don’t think I hit you” but he could not
recall her response.  He agreed that although he thought that he might have hit
her, he considered it a remote possibility.  However, he agreed that
Ms. Brooks seemed distraught and shocked at the scene.  According to
Ms. Brooks, Mr. Gilchrist said they should see if there was damage.  Based
on looking around and seeing no transfer of paint or damage to the vehicles, he
testified that he was confident he did not hit her.  He said that, in walking
around, he was able to pass between the Dodge Neon and his truck, something
with which Ms. Brooks disagreed.  She said the vehicles were too close to
get between them.  Mr. Gilchrist agreed that it was possible that
the passenger side front tire of his vehicle was in the plaintiff’s lane when his
vehicle came to rest.

[24]        
The estimators who looked at the Brooks vehicle
and the Gilchrist vehicle were called. There is no evidence of any damage or
paint transfers or scrapes to the right front of the F350, or the left back end
of the Brooks Neon.  Mr. David Andrew conducted the material damage
estimate on the plaintiff’s vehicle.  He has done about 10,000 of these in his
career.  As part of his normal review, he would have examined the rear bumper,
and he testified that there was no damage to the rear bumper of the plaintiff’s
vehicle.  He agreed however that his focus was on the left side of the car,
which was the area of reported damage from ICBC’s perspective.  However, he did
not go under the vehicle to inspect the bumper of the plaintiff’s vehicle.

[25]        
Mr. Mike Forbister was a passenger in the
Beynon vehicle.  He had been Mr. Beynon’s roommate.  He indicated that
after the collision, he looked to his right and saw a green Neon with a woman
in it who was looking at them.  He testified that the vehicle he was in was in the
centre of its lane, and she was in the centre of hers, and that the vehicles
were 3-4 feet apart.  He testified that there was one collision and that was
between the Beynon vehicle and the Gilchrist vehicle.  He said that the defendant’s
truck was not in contact with or touching the Neon.

[26]        
Mr. Forbister agreed that it was dark and
rainy and that he did not get out of the vehicle after the accident.  He agreed
that the car he was in was pushed forward but he was not sure how far.  He did
not notice if the Gilchrist vehicle was over into the Dodge Neon’s lane.

[27]        
Mr. Gueho was a passenger in the Mr. Gilchrist’s
vehicle, but was asleep at the time of the accident.  He woke up when the collision
happened and said that there was a vehicle to the right of Mr. Beynon’s
vehicle and that Mr. Gilchrist got out and a woman got out of her car.  He
testified that the woman’s vehicle and Mr. Gilchrist’s vehicle were not
touching.

[28]        
Reports were filed by two experts who testified:
Mr. Jean-Francois Goulet, a professional engineer, for the plaintiff; and Mr. Gerald
Sdoutz, a professional engineer and accident reconstruction engineer, for the
defendant ICBC.

[29]        
The defendant’s expert opined that there was no
physical evidence to support contact between the Beynon Jetta and the Brooks Neon,
and the light scratches to the Neon’s driver door were inconsistent with having
been caused by contact with another vehicle.  His report indicated that the forces
involved in causing the scratches and scuffs on the Neon’s driver’s side would
not have been sufficient to move the vehicle forwards or sideways on the
roadway, nor would they have been large enough to move the vehicle on its
suspension.  Mr. Sdoutz indicated in his testimony that when the Gilchrist
truck struck the Beynon vehicle, that vehicle would be turned to the left away
from the Neon.

[30]        
The defendant’s expert said in his report’s conclusions:

Therefore, the
only possible contact between the F-350 and the Neon could have been between
the F-350’s right front corner and the Neon’s left rear corner.  No damage was
noted to either of these areas in the provided information.  Also, as can be
seen from the Jetta’s damage, the height of the F-350’s front end is
significantly higher than that of a small sedan such as the Jetta and the Neon. 
Resultantly, if the F-350 had made contact with the rear of the Neon it would
most likely have contacted the Neon’s left taillight and left quarter panel
above the rear bumper.  These structures, especially the taillight, would have
been readily damaged by even minor contact of the F-350.

[31]        
Mr. Goulet, the expert retained by the
plaintiff, replied to the Sdoutz report and reached these conclusions:

1) It is possible that, following the impact
with the Gilchrist Ford, the right rear corner of the Beynon Volkswagen moved
slightly towards the Brooks Dodge. The two vehicles could possibly have come
into contact without sustaining any damage. However, this scenario requires the
rear ends of the Beynon and Brooks vehicles to be very close to each other
initially, which may not be very likely.

2) Unless the left side of the Beynon
Volkswagen was very close to the left edge of its lane when it was struck by
the Gilchrist Ford, a portion of the Gilchrist Ford was likely over a portion
of the lane the Brooks Dodge was in.

3) The absence
of damage to the right side of the front bumper of the Gilchrist Ford and to
the left side of the rear end of the Brooks Dodge does not necessarily imply an
absence of contact between these two vehicles.  There could have been contact
without damage.

[32]        
Mr. Sdoutz stated in his reply report as
follows:

Section 4.2 of the MEA report discusses the
possibility of contact between the rear bumper of the Dodge and the front
bumper or the tow hook of the Ford.  Addressing the latter first, any contact
between the Ford’s tow hook and the Dodge’s rear bumper cover, if it had been
forceful enough to move the Dodge, would have resulted in damage to the Dodge’s
bumper cover, due to the focused impact force presented by the tow hook. 
Therefore, as the Dodge’s rear bumper cover showed no damage at all, even if
the Ford’s tow hook contacted the bumper, the contact force would not have been
enough to move the Dodge forward.

As illustrated in the MEA report, it is
possible that the Ford’s front bumper contacted the upper edge of the Dodge’s
rear bumper cover.  However, this portion of the Dodge’s rear bumper cover has
no solid structural support below it, and with any forceful contact would have
deformed allowing contact with the taillight and quarter panel.  Therefore,
again, if there was contact between the Ford’s front bumper and the upper
portion of the Dodge’s rear bumper cover, the force applied to the Dodge would
most likely at best have moved the car’s body on its suspension.

The other factor not considered by the MEA
report is that the Ford and Dodge were not in contact following the collision. 
If the Ford’s front bumper had contacted the rear of the Dodge, with such
little force that there was no resultant damage to the Dodge, then the Ford should
have come to rest in contact with the Dodge.

Finally, for
either of the two scenarios presented in the MEA report to have occurred, the
Volkswagen, when it was struck by the Ford, would have to have been either
centered in its lane, or at or over the line dividing the lanes between the
Volkswagen and the Dodge.  However, if it was, then it would not have come to
rest partially into the left turn lane.  For this to have occurred the
Volkswagen, most likely, was initially near the left edge of its lane. Resultantly,
it would have been too far away from the Dodge to even touch it following the
collision by the Ford.  Additionally, as illustrated in Figure 5(a) of the MEA
report, with the Volkswagen near the left edge of its lane, the Ford’s right
side tires would just have been over the line dividing the through lanes. 
Therefore, for the Ford to have contacted the rear of the Dodge, the Dodge’s
left side would have to have been on, or very near, to the same line; in other
words, the Dodge could not have been centered in its lane.

[33]        
Mr. Goulet, the expert called by the
plaintiff, agreed that if there was contact on the Dodge it would be first on
the plastic bumper after which there is foam and then rebar.  He agreed that if
the rear ends of the Beynon vehicle and the defendant vehicle were side by side,
there would probably be damage to the plaintiff’s vehicle.  He testified that although
it was possible for the defendant’s vehicle to contact the plaintiff’s bumper
without contacting the rear panel or the light, there was no evidence of damage
of any nature to the bumper of the plaintiff’s vehicle.

[34]        
Also, the defendant’s vehicle had a tow hitch, which
would likely have contacted the bumper of the plaintiff’s car if there had been
a collision; however there is no evidence of scuffing, paint marks, cracking,
or anything of that sort.  The expert witness for the plaintiff agreed that, to
not cause any damage to the bumper, the speed change would have been small.

[35]        
My conclusion on the evidence is that, in the
first accident, there was no contact at all between the defendant’s vehicle and
the plaintiff’s vehicle.  If any contact had been made, it would have been so minor
that the vehicles would be touching, but I find, based on the evidence of the
witnesses at the scene, that the vehicles were not touching after the collision. 
If the vehicles were touching, the plaintiff would have made that observation
at the time, rather than simply advancing the theory that the Beynon vehicle
must have struck her car, a theory which she maintained until just before the
trial.

[36]        
Further, the absence of any damage or mark or
paint transfer or scuffing to the Neon or the right side of the Gilchrist truck
supports the view that there was no collision between the Gilchrist vehicle and
the plaintiff’s vehicle.  The Gilchrist vehicle had a tow hook at the front and
the absence of damage from that also suggests the absence of any collision.  I
have considered the possibility that braking might cause the tow hook to be
lower, but the absence of any damage from the tow hook is consistent with the
fact that there was no collision.

[37]        
The plaintiff was at best uncertain whether she
was involved in an accident.  Perhaps the noise of a collision in her vicinity startled
her and made her suspect that her vehicle had been contacted but I find on all
of the evidence that it was not.  Her answer on discovery was accurate when she
said: “I remember the sound more than the actual, like, feeling of the car
moving.”

[38]        
The plaintiff’s case, at its best, is that there
was a possibility that the defendant vehicle made contact with her vehicle. 
However, the plaintiff has the burden of proof on that issue on a balance of
probabilities, and has fallen far short of meeting that burden.

[39]        
Accordingly, because there was no collision
involving the plaintiff, there can be no liability with respect to the first
accident.

[40]        
I note that the defendant does not suggest that
the plaintiff is deceitful.  Although she complained of complaints to her neck
and back that were exacerbated by the first accident and says that she suffered
new injuries in the first accident, such as hip problems, those symptoms were
not caused by the first accident.  Let me turn to the second accident.

The Second Accident – February 22, 2007

[41]        
The plaintiff said that the second accident
involved her being hit in the side or t-boned when another vehicle drove out of
an alleyway.  She said that she pulled over, but the driver of the vehicle that
struck her left the scene.  She said that the second accident increased her
injuries, but did not give her new injuries, and that it was her neck and hips
that were affected, both in terms of frequency and pain.  She testified that
she continued at work and that massage therapy helped.

[42]        
The evidence indicates that the damage to the
vehicle was similar to damage when one vehicle sideswipes another.   The
defendants’ position is that the accident would not have much effect on the
plaintiff’s health.

[43]        
The plaintiff’s counsel suggests that the
injuries be apportioned three-fifths to the first accident and two-fifths to
the second accident but no portion to the third accident.

The Third Accident – October 13, 2008

[44]        
The third accident occurred on October 13,
2008 when the plaintiff was a passenger in the vehicle driven by her husband.  They
were driving down Kingsway when a car backed out, the car in front of the
Brooks vehicle stopped, and her husband rear ended that car.  The defendants’
counsel says that this is the only accident where the plaintiff attended the
emergency department.  The plaintiff said her injuries were exacerbated by this
accident, but she recovered to her pre-accident condition in about a month.

CONCLUSION

[45]        
The plaintiff described three accidents in which
she says she was injured.  I have not discussed the medical evidence in this
case because it focuses almost entirely on the aftermath of the first accident. 
Although it was not suggested that Ms. Brooks’ complaints of back, neck
and hip pain were not legitimate, I have concluded that the plaintiff has not proved
she was involved in a collision in the first accident.  The plaintiff has not
proven that her physical complaints arose as a result of a collision caused by
the negligence of the defendants.  I therefore must conclude that her
complaints have as their origin a cause other than the accident.

[46]        
Therefore, the action against the defendants Robert
Gilchrist, James Gilchrist and Brendan Beynon in connection with the first
accident (Action No. M075446) must be dismissed.

[47]        
The second accident was a minor sideswipe in
which the plaintiff says her existing injuries were exacerbated in terms of
severity and duration.  As the focus of the evidence at the trial was on the
injuries allegedly suffered in the first accident, the medical evidence is not
of much assistance.

[48]        
Doing the best I can on the evidence at trial, I
find that the plaintiff has shown an increase in her pre-existing symptoms of
back, neck and hip pain for a few months following the second accident. The
plaintiff has the burden of proving her loss from the second accident.  Her
evidence is very limited and it is as I have described it above.

[49]        
I award the plaintiff general damages of $4,000 in
action S091220 and no damages for loss of earning capacity, a claim which, in
my view, depended on a finding of liability in the first accident, because the
exacerbation of her symptoms from the second accident ended after a short
period.

Summary

[50]        
The plaintiff’s claim for damages in connection
with the first accident (Action No. M075446) is dismissed with costs.

[51]        
The plaintiff is awarded $4,000 general damages
in connection with the second accident (Action No. S091220).

“J.S. Sigurdson J.”

The Honourable Mr. Justice J.S. Sigurdson