IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100720

Docket: S69754

Registry:
Kelowna

Between:

Nancy Lea Aymont

Plaintiff

And

Patrick Gregory
Capp

Defendant

Before:
The Honourable Madam Justice Gropper

Reasons for Judgment

Introduction

[1]            
The plaintiff, Ms. Aymont, claims that the defendant is liable for the motor
vehicle accident that occurred on Friday, May 14 2004, between 3:30 and 4:00
p.m. on Bartley Road in Kelowna.  The parties have agreed to sever the trial; these
reasons address liability only.

[2]            
At the time of the accident, Ms. Aymont was driving a red 1997 Mazda Protégé. 
Mr. Capp was driving a white 1992 Dodge pickup truck.  The accident occurred on
Bartley Road, south of Ross Road at the driveway to the Petro-Canada service
station (the “exit”).  The exit provides access to Bartley Road from the west
side.  The exit is 14.2 metres wide.  Bartley Road has one lane in each
direction at the exit.  There is no road opposite the exit; vehicles must turn
to the left (northbound) or to the right (southbound).

[3]            
Mr. Capp was southbound on Bartley Road in his pickup.  Ms. Aymont was
exiting the Petro-Canada station.  Her son Joel was a passenger in the front
seat.

Evidence

[4]            
Ms. Aymont says she had stopped at the Petro-Canada to buy her son a
drink.  As she was heading towards the exit from the Petro-Canada station
toward Bartley Road, her son said to her, in reference to his drink, “look mom
– it is growing!”  Ms. Aymont said “just a sec” and stopped at the right side
of the exit.  She says that she looked to the left and the right and that there
was no one behind her.  She continues:

I ascertained that I was safe to
stay there.  I put my car in neutral.  My feet were on the clutch and the brake
and my hands were both on the steering wheel.  I turned to look at the slushie [the
drink] and the accident occurred.

[5]            
Ms. Aymont says that she does not remember the impact at all.  She
describes that she stopped on the right side of the exit.  She says:

I pulled up there and I stopped
well before the fog line.  I intended to turn left, but I stopped and wanted to
stay there.  I turned towards my son in the passenger seat and that was the
last thing I remember.

[6]            
Ms. Aymont says that there was nothing obstructing her view to the
left.  Her feet were on the clutch and the brake and therefore she could not
roll forward.  She says that she stopped her car in the exit but it was not out
onto the travel portion of Bartley.  Ms. Aymont describes that she has used
that exit many times before.  She would always stop “well back” and check
before she proceeded onto Bartley road.

[7]            
In her later testimony, Ms. Aymont says that she was two feet before the
fog line.

[8]            
Ms. Aymont explained that the “fog line” is the white line that denotes
the shoulder of the road and either side of the exit.  She did not know the
term at the time of the accident, but learned it later when it was referred to
in the experts’ reports. It is not painted across the exit.  Ms. Aymont’s
estimate of being two feet behind the fog line is based on where she would
consider the fog line to be if it was actually painted across the exit.

[9]            
The day following the accident, May 15, 2004, Ms. Aymont went for
treatment to her chiropractor’s office, Dr. Susan Holroyd.  She says that she
felt dizzy and nauseous, disoriented and in a great deal of pain that morning.

[10]        
Dr. Holroyd produced her clinical records, which included a “motor
vehicle accident history” form.  Ms. Aymont says that she does not recall the
form or filling it out.  She cannot recall if it is her handwriting on the form
or not.  The handwritten notations (in italics)  on the form state, in relation
to the accident:

State How Accident Happened in your own words.

I had stopped at the entrance of gas st. looked both ways
saw no one and began onto road – was hit by a truck travelling very fast.

Where you stopped Yes/No?

No [circled]

Estimate your speed?

10 km/h

Brakes on Yes/No?

No [circled]

[11]        
Dr. Holroyd’s evidence is that she gave the form to Ms. Aymont who
filled it out.  She says that the handwriting is Ms. Aymont’s; or if it
contains any of Dr. Holroyd’s handwriting, it was based upon information
provided to her by Ms. Aymont during her examination.  Some of the information
on the form was provided by Ms. Aymont on Saturday, May 15, 2004 and some was
provided in her next visit on May 17, 2004.

[12]        
Ms. Aymont denies that the handwritten notations on the form are
correct; she says she did not remember much about the accident.  She agrees
that most of the other information on the form is accurate, although she notes
some inaccuracies.  The handwriting refers to the location of the accident as
Bartlet, when it was Bartley.  It refers to an injury to the right eye, when
her injury was to the left eye.  Ms. Aymont pointed out other inaccuracies.

[13]        
Cst. Rudy Andreucci telephoned Ms. Aymont the day following the accident
and they arranged to meet on Sunday, May 16, 2004 at the RCMP Detachment in
Westbank.  Cst. Andreucci testified that the purpose of the meeting was to give
Ms. Aymont a traffic violation ticket. Cst. Andreucci served a violation ticket
on Ms. Aymont for a breach of s. 176(2) of the Motor Vehicle Act:
emerging vehicle: failure to yield.  He noted on the reverse side of the ticket
what Ms. Aymont said to him:

04-5-16 V.T issued at
office dri Nancy Aymont advised she just didn’t see him.  She knows better-than
go on without being sure.

[14]        
Ms. Aymont says that she thought her discussion with Cst. Andreucci was
to talk about the accident.  She says that Cst. Andreucci said, “I just need to
give you a ticket”.  Ms. Aymont describes herself as shocked.  She says Cst.
Andreucci continued: “I am not a traffic expert but [Mr. Capp] was going in
excess of 60.  Come to the back get a ticket …” Ms. Aymont says that if she
had done anything wrong she would have come forward and admitted it.  She was
very upset and was in tears.  She says Cst. Andreucci said: “I know that you
are upset, it is not an admission of guilt, I have to give a ticket to
someone”.  Ms. Aymont remembers saying that she knew better than to go out
without being sure, but she does not recall saying “I just didn’t see him”.

[15]        
On May 21, 2004, Ms. Aymont met with Mr. Bonner of the Insurance
Corporation of British Columbia (“ICBC”) at his office.  Mr. Bonner is a bodily
injury adjuster.  He was the adjuster assigned to Ms. Aymont’s file.  Another
adjuster was assigned to Mr. Capp’s file.  Mr. Bonner said that he asked
questions and typed the answers into the ICBC note taking system on his
computer.  He prepared a sketch based on the information provided to him by Ms.
Aymont.  In the statement Mr. Bonner recorded Ms. Aymont stating:

I looked to my right first, and
then the left and Bartley Road was vacant, and I thought to myself how often
does that happen on a Friday afternoon.  After looking right, then left, I
looked right again, and that is the last thing I remember…  If the other
driver wasn’t going so fast he probably could have stopped.  My husband drove
the road the next day.  At the 50 km/h speed limit, and stopped without
skidding before the driveway… I was knocked out and can’t say how far I
pulled forward from the exit onto Bartley Road before being hit.

[16]        
Ms. Aymont also provided a rough sketch showing where the vehicles were
as she approached the exit.

[17]        
Ms. Aymont does not recall saying “I can’t say how far I pulled out from
the exit onto Bartley before being hit.”

[18]        
Mr. Bonner produced a hard copy of the statement for Ms. Aymont to
review.  She thought that the second page statement was “all mixed up.”  Ms.
Aymont says she made certain corrections to the statement in handwriting.  The
last sentence of the statement is “I have nothing to add to this statement,
which is true to the best of my memory.”  Ms. Aymont signed the statement.  She
says that Mr. Bonner said that the statement did not need to be exact and “we
just needed to get something down” and that it would not be used in court.  Mr.
Bonner drew the diagram.  Ms. Aymont says she only wrote the word “visibility?”
on the sketch and signed it.  She says that she left the adjuster’s office
feeling as if the statement did not say what she wanted to say.  She was tired
and had a headache.  Ms. Aymont did not contact Mr. Bonner or anyone else at
ICBC to revise her statement.

[19]        
Mr. Bonner says that the statement reflects what Ms. Aymont told him. 
He says that he did not tell her that the statement was not important and that it
would not be used in court.  He says, “I would have impressed upon her the importance
of her statement in representing her claim.”

[20]        
Joel Aymont was a passenger in his mother’s vehicle.  He was 14 years
old at the time.  Joel Aymont could not say what Ms. Aymont was doing or where
she was looking in the moments before the impact.  He stated in cross-examination
that despite his nose and collarbone being broken and thinking that his mother
might have been seriously injured in the accident, the one thing he recalls
most vividly is that his mother’s vehicle was stopped, with her left tires at
the border between the exit and the paved shoulder of Bartley Road, slightly
angled to the left.

[21]        
On May 28, 2008, Joel Aymont was examined by counsel for the defendant,
under Rule 28.  At that time, he could not recall any pertinent details about
the accident.

[22]        
Mr. Capp states that he was driving southbound on Bartley.  He came
around a curve before the intersection with Ross Road and observed “a little
car coming out of the lane from Petro-Can”.  The “little car” was Ms. Aymont’s
red Mazda Protégé.  Mr. Capp says:

The lane is the exit driveway
coming out of Petro-Can.  It was ahead of me and to my right.  The little car
was pointing straight ahead out of the exit.  I could not tell if it was going
left or right.  It was 90 degrees to the highway.  The little car was moving
when I first noticed it… I looked at [the driver’s] face and realized she was
not going to stop.  I hit the brakes.  The little car was on the paved section
of the road.  There is no gravel shoulder at the driveway.

[23]        
Mr. Capp says that when he first noticed the little car his vehicle was
in his lane of travel.  He was a foot or two away from the double line that was
to his left.  He says that his truck was right in the middle of his lane in
between the double line and the fog line.

[24]        
Mr. Capp says that he expected the driver of the “little car” to stop
and look.  He says, “the driver’s head was looking straight ahead-preoccupied
or something different I don’t know”.  Mr. Capp states that when he realized
that the little car was not going to stop, he hit the brakes as hard as he
could and tried to move over to the left to give the little car more of a place
to stop.  He says that he did not pump the brakes.  He kept the brake pedal
down as far as he could.  He described his vehicle as going into a skid and
while he cannot say if his vehicle slowed down, it ended up straddling the
yellow line of the highway.  His left tires were across the double line in the
middle of the road when the truck stopped.

[25]        
Mr. Capp says he was unable to take evasive action.  Ms. Aymont’s
vehicle was coming into his lane.  He says he tried to swerve to the left but
the brakes were on and that the truck did not turn “too good when the brakes
are on full”.  He says that he could not drive around Ms. Aymont’s vehicle.  He
was in full braking and went into the oncoming lane to try to give her more
room.

[26]        
Mr. Capp says that the Aymont vehicle was moving when his vehicle and
the Aymont vehicle collided.  Mr. Capp describes the point of impact as caving
in his right front fender.  It did not break his headlights.  In Mr. Capp’s words,
“it creamed out the whole front of the right hand of my vehicle”.

[27]        
Mr. Capp says that his vehicle came to a stop.  He got out.  Ms.
Aymont’s vehicle was proceeding down the southbound lane and he ran after it.

[28]        
Mr. Capp says that his vehicle remained where the collision took place
until a tow truck came and removed it.  The tow truck came after the police
were finished doing measurements of the scene and taking photographs.

[29]        
In cross-examination, Mr. Capp denied that he had any problems with his
eyes on May 14, 2004.  He admitted that he had an eye injury in 1984.  He had a
sliver of metal in his eye due to a work accident.  He had surgery.  His eye
was quite photosensitive after the surgery, and is still sunlight sensitive. 
He wears sunglasses on sunny days.  He did not wear prescription glasses at the
time of the accident.  He could not recall whether he was wearing sunglasses
when the accident happened.  If he was, they were photo gray special sunglasses
to accommodate his photosensitivity.

[30]        
Mr. Capp denied being distracted or having his view impaired by
anything, including his drinking cup that he kept on the dash of his truck, or
his rear view mirror.  He says that his vehicle was in two-wheel drive and was
powered by the rear wheels.  He made a mistake in the report he prepared for
the police by referring to his truck being in four-wheel drive.  Mr. Capp says
that he does not use four-wheel drive in the summertime.

Expert Evidence

Ed D’Aoust

[31]        
Ms. Aymont retained Ed D’Aoust, a retired member of the RCMP.  He served
24 years, the majority of which was in highway patrol and traffic law
enforcement duties.  He has particular expertise in skid marks, vehicle crush analysis,
and calculations of speed, time and distance.  He was retained by Ms. Aymont on
June 9, 2005, approximately one year after the accident.  He reviewed the photographs
that were taken by the police at the accident scene on May 14, 2004.  His task
was to determine the position of the vehicles immediately before the collision.

[32]        
In preparation for his report, Mr. D’Aoust met with Ms. Aymont and she
provided her description of events.  In his report dated June 15, 2007, he
refers to Ms. Aymont’s statement that she was stopped on the approach to
Bartley Road and placed her car in neutral gear and was sitting on the grade
with her foot on the brake as she was stopped on an incline.  Ms. Aymont also
advised him that while she was stopped and waiting, she had a conversation with
her son.  She told Mr. D’Aoust that as she looked to her right in the direction
of her son and while she remained stopped with her foot on the brake, her
vehicle was struck by the Dodge pickup truck.

[33]        
Mr. D’Aoust attended at the accident scene on June 9, 2005 and did
measurements.  His opinion is based on the police photographs and the measurements
that he derives from them, and from his view of the accident scene.

[34]        
In his report of June 2007, he interprets the marks that are seen on the
photographs taken by the police officers.

[35]        
Photograph number 4 in the police package is attached to Mr. D’Aoust’s
report and identified as photograph number 1.  This photograph plays a
significant role in Mr. D’Aoust’s opinion.  He identified several points on the
photographs; the number and descriptions are:

1.       One
is the impending mark, which he describes as a “post impact skid by the left
rear tire of the Capp vehicle”.

2.       Two
is a tire tread that Mr. D’Aoust considers as identifying the path of travel of
the right front tire of the Capp vehicle at the moment of and most initial
contact.

3.       Three
is a short grey mark leading towards a darker black tire mark, which is
perpendicular to the roadway edge and goes from near the edge of the photograph
towards the darker mark.  Mr. D’Aoust describes this as the “first identifiable
evidence of position of the left front tire of the Aymont vehicle at the moment
of impact”.

4.       Four
identifies scrub marks and gouges left by the Mazda.

5.
Five indentifies a scrub mark of the front tires of the Mazda.

6.       Six
identifies fluid deposits on the road by the Aymont vehicle after collision.

[36]        
From these marks, Mr. D’Aoust considers that point number three shows
the position of the left front tire of the Mazda which is “at or around the point
where the right front tire of the Capp vehicle crossing a crack in the
asphalt”.  The short grey mark toward a darker black tire mark at point number three
is perpendicular to the roadway edge.  Mr. D’Aoust considers this the first
identifiable evidence of position of the left front tire of the Aymont vehicle
at the moment of impact.

[37]        
Mr. D’Aoust says that the penetration of the right front corner of Mr.
Capp’s truck continued to override the left front corner of the Mazda front bumper,
which caused the left front of the Mazda vehicle to rotate clockwise and travel
with the pickup truck.  He says that there is a point inside the lane where, if
it were painted across the exit of the Petro-Canada would be the fog line, as a
point of maximum engagement.  He says the Aymont vehicle continued to rotate
and departed from the Capp vehicle and continued to rotate.  He says that the
two white scratch marks that appear in the photograph which were made within
the black tire marks on the road and in the direction of the travel of the
Mazda as it departs from the pickup truck.

[38]        
Mr. D’Aoust identified point number one on the photograph of the post
impact skid by the left rear of the Capp vehicle.  Mr. D’Aoust considered that
the mechanical antilock rear brake system of the pickup did not function as
expected because of the dynamics that were created when Mr. Capp applied his
brakes at the same time he attempted to steer to the left.

[39]        
Mr. D’Aoust opines that the pickup penetrated the Aymont vehicle to the
side because Ms. Aymont had her brakes on.  Based on his conclusion the
parallel marks behind the pickup truck in photograph number 1 to his report are
from different axles, he says that they are a mark left by the left side rear
tire and the right front tire of Mr. Capp’s vehicle.  The path of travel, as
well as the post impact side slip marks from the pickup truck provides the
basis for Mr. D’Aoust’s opinion that the pre-collision position of the right
hand side of Mr. Capp’s vehicle was in line with the right side painted fog
line, or over the fog line on the [right] shoulder at the moment of collision. 
He concludes that the Mazda’s right front edge was positioned somewhat into the
travel lane on Bartley Road at the moment of collision.

[40]        
Mr. D’Aoust considers that the marks from the Mazda on the road and the
damage to it show that the Mazda was not moving at the point of impact.  He
says that there was no evidence that it was moving.  The evidence would be
cracks in the paint, which show the direction of travel.  Mr. D’Aoust did not
see the damage pattern on the Mazda.

[41]        
Mr. D’Aoust concluded that while the right front corner of the Mazda
would have been in the travelling portion on the road by approximately 1 metre,
in a 3.5 metre lane, Mr. Capp’s truck of 1.5 metres in width meant he would
only have to move only slightly to the left to the centerline to go around.

[42]        
Mr. D’Aoust considers that the Aymont vehicle “was, in all probability,
stopped at the moment of impact” on the basis the debris field shown in the
photographs behind the Mazda.  He did agree, in cross examination, that the
weight of the Mazda was much less than the weight of the Dodge pickup and that
the imbalance of weight and speed could produce the same debris field, and that
if the Mazda was moving slowly the debris field would not be sufficiently
different to identify in a photograph.

[43]        
In his subsequent report of July 8, 2008, Mr. D’Aoust states:

There is no doubt in my mind,
that the impact did occur on the right side of the westbound lane, and well
west of or past the crack in the roadway [as shown on the photographs of the
scene] that is the lane traveled by Mr. Capp.  The right front tire of the Capp
vehicle was well west of (past) this crack at the initial contract with the
Aymont vehicle.

[44]        
Mr. D’Aoust suggested in his evidence, although he did not address it in
his written report, that if Mr. Capp were travelling at 50 km/hour, he would
have seen Ms. Aymont’s vehicle when it was 75 metres away.  He was travelling
13.88 metres per second and he would have 5.43 seconds to bring his vehicle to
a stop.  Assuming a perception time of .5 seconds and a response time of .75
seconds, and that Ms. Aymont’s vehicle was stopped, Mr. Capp could have avoided
Ms. Aymont’s vehicle.  Mr. D’Aoust does not provide any analysis for that
conclusion.

Craig Brown

[45]        
The defendant called Craig Brown, a mechanical engineer specializing in
accident reconstruction for 20 years.  His report concludes that the parallel
marks in photograph 1 (as defined by Mr. D’Aoust) behind the Capp
vehicle are from the front tires of the Capp vehicle.  The skid marks go to a
“kink” which, in Mr. Brown’s view is consistent with Mr. Capp having steering
hard to the left just prior to locking up his front brakes.  Mr. Brown is
certain that the tire marks are from the same axle as they are parallel.  It is
only an illusion from the photograph that suggests that they are not parallel.

[46]        
Mr. Brown opines that the impact between the vehicles occurred where the
skid marks from the two front tires changed direction.  He notes that skidding
tires cannot change direction.  A sudden change in direction can only occur
where an external force was applied.  The truck skid marks changed direction to
the left after several metres in a straight line.  It was the impact between
the two vehicles that caused the marks on the road to change direction.

[47]        
Mr. Brown concludes that the right front corner of the Capp pickup
contacted the front of the Aymont Mazda near its left side at an angle of
approximately 45 degrees from head on.  As a result, the Aymont Mazda was
pushed forward, spun clockwise, and then rolled south to its rest position. 
The front of the Capp Dodge was redirected to the left at impact.  The Dodge
pickup left two skid marks from its front tires prior to impact, and these
skids changed directions to the east and continued to cross the centerline
towards the pickup’s rest position.  The Dodge’s skid marks started at an angle
to the centerline, consistent with its steering to the left prior to skidding.

[48]        
Mr. Brown opines that the area of impact was about 2.4 metres from the centerline
of Barkley Road.  The left front corner of the Aymont Mazda was more than 1.1 metres
into the southbound lane when it was struck.  The point of impact is indicated
by the deviation in the skid marks, gouges from the suspension or undercarriage
of the Mazda, the start of the curve tire mark from the Mazda’s left front tire
and the start of the fluid spray from the Mazda.

[49]        
In regard to the question of whether the Aymont Mazda was stopped at the
point of impact, Mr. Brown did a computer analysis on a program entitled “PC
Crash,” from which he concluded that the Aymont Mazda was stationary or
travelling very slowly around 5 to 7 km/hour.  Mr. Brown also concluded, based
on a very preliminary analysis that the evidence is consistent with free
rolling or being in gear with the engine still running.

[50]        
Mr. Brown states that if the Aymont Mazda was moving at 7.2 km/hour, she
would be travelling at 2 metres per second.  It would take one second for it to
travel from one metre back of the fog line to one metre into the lane of travel. 
If she was stopped and then accelerated from zero at average acceleration, it
would take 1.7 seconds to travel 2 metres into the lane of travel.

Statutory Provisions and Case Authorities

[51]        
Section 176(2) of the Motor Vehicle Act, R.S.B.C. 1996 c. 318
states:

(2) The driver of a vehicle about to enter or cross a
highway from an alley, lane, driveway, building or private road must yield the
right of way to traffic approaching on the highway so closely that it
constitutes an immediate hazard.

[52]        
The Court of Appeal considered the definition of “immediate hazard” in the
case of Raie v. Thorpe, (1963) 43 W.W.R. 405 (B.C.C.A.) where the court
stated (at page 410):

I do not propose to attempt an
exhaustive definition of “immediate hazard”.  For the purposes of this appeal
it is sufficient for me to say that, in my opinion, if an approaching car is so
close to the intersection when a driver attempts to make a left turn that a
collision threatens unless there be some violent or sudden avoiding action on
the part of the driver of the approaching car, the approaching car is an “immediate
hazard” within the meaning of [s. 176].

[53]        
The case authorities refer to the driver in the dominant position as a
driver having the statutory right of way and the driver in the servient
position as the one who has a statutory duty to yield the right of way.  In
this case, Mr. Capp is the dominant driver and Ms. Aymont is the servient
driver.  In Walker v. Brownlee, [1952] 2 D.L.R. 450 at 460-61 (S.C.C.)
sets out the duties of each of the drivers:

46     The duty of a driver having the statutory right-of-way
has been discussed in many cases.  In my opinion it is stated briefly and
accurately in the following passage in the judgment of Aylesworth J.A.,
concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N.
221 at p. 223: "Authority is not required in support of the principle that
a driver entering an intersection, even although he has the right of way, is
bound to act so as to avoid a collision if reasonable care on his part will
prevent it. To put it another way: he ought not to exercise his right of way if
the circumstances are such that the result of his so doing will be a collision
which he reasonably should have foreseen and avoided."

47     While the judgment of the Court of Appeal in that case
was set aside and a new trial ordered [ [1952] 1 D.L.R. 82] there is nothing
said in the judgments delivered in this Court to throw any doubt on the
accuracy of the statement quoted.

48     In applying this principle it is necessary to bear in
mind the statement of Lord Atkinson in Toronto R. W. Co. v. King, 7
C.R.C. 408 at p. 417, [1908] A.C. 260 at p. 269: "Traffic in the streets
would be impossible if the driver of each vehicle did not proceed more or less
upon the assumption that the drivers of all the other vehicles will do what it
is their duty to do, namely, observe the rules regulating the traffic of the
streets."

49     While the decision of
every motor vehicle collision case must depend on its particular facts, I am of
opinion that when A, the driver in the servient position, proceeds through an
intersection in complete disregard of his statutory duty to yield the
right-of-way and a collision results, if he seeks to cast any portion of the
blame upon B, the driver having the right-of-way, A must establish that after B
became aware, or by the exercise of reasonable care should have become aware,
of A’s disregard of the law B had in fact a sufficient opportunity to avoid the
accident of which a reasonably careful and skilful driver would have availed
himself; and I do not think that in such circumstances any doubts should be
resolved in favour of A, whose unlawful conduct was fons et origo mali [the
source of the original problem].

Position of the Parties

The Plaintiff

[54]        
The plaintiff’s position is that I ought to rely entirely on the opinion
of Mr. D’Aoust in determining liability for this accident.  She acknowledges
that her evidence and the evidence of her son Joel, is inconsistent with the
expert evidence of Mr. D’Aoust concerning the position of the Aymont Mazda just
before Mr. Capp collided with it.

[55]        
In respect of the statements that the plaintiff made to her
chiropractor, the police officer, and the insurance adjuster, the plaintiff
asserts that her memory may have been affected by injuries she sustained in the
accident.

[56]        
The plaintiff asserts that Mr. D’Aoust’s evidence concerning the events
immediately preceding the collision and during the collision ought to be
preferred over that of the evidence of Mr. Brown.  Mr. D’Aoust’s evidence was
that the Aymont Mazda’s right front corner was one metre beyond the fog line
(into the travel lane).

[57]        
The plaintiff submits that all the damage was caused by Mr. Capp’s
truck.  The truck was traveling just to the right of the fog line or over the
fog line, but not in the middle of the southbound lane.  The plaintiff asserts
that if Mr. Capp was driving in the centre of the lane, the collision could
have been avoided.  It was only a “bit” of the right front of Ms. Aymont’s vehicle
that was into the driving lane.  If Mr. Capp had observed what was in front of
him, he would have missed Ms. Aymont’s vehicle.  He also had the entire
northbound lane to occupy and to avoid Ms. Aymont’s vehicle.

[58]        
The plaintiff submits that Mr. Capp had 75 metres to stop.  The
plaintiff asserts that if Mr. Capp was paying attention and maintaining a
proper look out and driving defensively, carefully, and not dangerously, and
not drinking from his coffee cup or fiddling with his radio, he could have
avoided the collision.  Mr. Capp knew that vehicles were coming out of the
Petro-Canada station.  The plaintiff further submits that Mr. Capp’s reference
to attempting to make eye contact with the driver of the “little car” was
careless.

[59]        
Ultimately, the plaintiff argues that she did not pull into Mr. Capp’s
lane.  She says that she was stopped at what she considered a safe place.

The Defendant

[60]        
The defendant submits that he was a dominant driver.  Ms. Aymont was
oblivious to his approach and pulled into Mr. Capp’s lane.  At the time she did
that, Mr. Capp’s truck posed an “immediate hazard”.

[61]        
The defendant argues that Mr. Capp steered and braked to avoid the
plaintiff’s vehicle but he had an insufficient opportunity to avoid the
accident, despite his being a reasonably careful and skilful driver.

[62]        
The defendant asserts that Mr. Brown’s opinion should be preferred.  The
point of impact shown on the photographs is where there is a deviation (or
kink) in the skid marks of the truck that occurred about 2.4 metres from the
centre line of Bartley Road.  This indicates that the Mazda’s left front corner
was more than 1.1 metres into the southbound lane and the right front corner of
Mr. Capp’s truck contacted the right front of the car near its left side at an angle
of approximately 45 degrees from head on.

[63]        
The defendant submits that the plaintiff’s statements to Dr. Holroyd, Cst.
Andreucci, and insurance adjuster Bonner should be treated as an admission. 
She did not say to any of them that she considered that she was in a safe spot
or that Mr. Capp crossed the fog line and ran into her.

[64]        
In respect of the engineering evidence, the defendant submits that Mr.
Brown’s is the most rational evidence, particularly about the kink in the skid
marks.  Mr. D’Aoust has provided no explanation for what caused the kink in the
skid marks,   only that there was some “unknown source of energy at the point”
because any change in the direction requires energy, which Mr. D’Aoust could
not identify.

Decision

[65]        
Both counsel assert that a resolution of the expert evidence is
necessary to determine liability in this matter.  The expert evidence was based
on photographs which were taken at the scene which were addressed a year later
in Mr. D’Aoust’s case and almost four years later in Mr. Brown’s report.  There
were no measurements taken at the scene.  The opinions rely on extrapolations
based on measurements of the vehicles involved and on Bartley Road and at the
exit.

[66]        
There are several reasons why I cannot accept Mr. D’Aoust’s opinion
about the dynamics of this motor vehicle accident.  First, Mr. D’Aoust made
certain assumptions based on statements made to him by Ms. Aymont.  Most
particularly, he relied on Ms. Aymont’s statement to him that she had stopped
in the exit and placed the car in neutral gear, and was sitting with her foot
on the brake as she was stopped on an incline.  Mr. D’Aoust accepted the
plaintiff’s description that while she was stopped and waiting, she was having
a conversation with her son about his drink and that she looked to her right in
the discussion with her son, she remained stopped with her foot on the brake
and her vehicle was struck by Mr. Capp’s vehicle.

[67]        
While Mr. D’Aoust purports to consider whether Ms. Aymont’s vehicle was
stopped or not at the moment of impact, he concludes that in all probability it
was stopped.  The source of this conclusion is the debris field that Mr.
D’Aoust considered left by the Mazda.  It appears that Mr. D’Aoust began his
analysis with the conclusion that the Aymont vehicle was stopped and built a
theory of reconstruction based on that fact.  As the defence points out, the
debris field is difficult to ascertain from the photographs and does not
accommodate the disparity in weights and sizes of the two vehicles.  The debris
field, in my view, is insufficient to establish this significant fact.

[68]        
Second, Mr. D’Aoust has adopted the position of an advocate in this
matter.  He prepared several reports, each more strident than the one before. 
He attempts to undermine the expertise of Mr. Brown and suggests that Mr.
D’Aoust’s expertise is superior.  I have accepted both individuals as experts
in their field but cannot conclude that Mr. D’Aoust’s experience, as a traffic
analyst with the RCMP is superior to that of Mr. Brown, a mechanical engineer
with 20 years experience in accident reconstruction.

[69]        
Further, Mr. D’Aoust prepared the plaintiff’s argument in this case. 
While the argument refers to Mr. D’Aoust in the third person, it is clear that
he prepared the report in that it contains notes to Mr. Gordon, counsel for the
plaintiff, in italics.

[70]        
In reply to the defendant’s argument, counsel for the plaintiff provided
a submission that was prepared by Mr. D’Aoust.  It reiterates Mr. D’Aoust’s
evidence and responds with matters that were not in evidence before me.  The
report contains bold font for emphasis of the plaintiff’s position.  It is
argument in the barely hidden guise of opinion.  Counsel for the defendant
objected to Mr. D’Aoust providing the reply submission.  I agreed with the
objection and directed that Mr. Gordon prepare the submissions in reply.  The
submission that was made on March 1, 2010, was a rewritten submission of Mr.
D’Aoust’s earlier submission, presenting precisely the same material, but
rewritten to express it in the context of plaintiff counsel’s submission.

[71]        
Thirdly, I have reviewed Mr. D’Aoust’s opinion expressed in his several
reports, and his submissions provided by counsel, as well as his evidence in my
deliberations.  I have attempted to express his opinion in my summary of his
evidence.  The opinion is convoluted and impenetrable.

[72]        
Finally, and perhaps most importantly, Mr. D’Aoust’s opinion is not
supported by the evidence of any witness at the trial.  Specifically, it is not
consistent with the evidence of the plaintiff or Joel Aymont at trial, or with
the various statements that Ms. Aymont made to her chiropractor, Cst. Andreucci
or Mr. Bonner, the insurance adjuster.  Significantly, it differs from Ms.
Aymont’s evidence at trial.  She places herself in a position that is on the
right side of the driveway “well back from the fog line”.  Mr. D’Aoust’s
opinion is that Ms. Aymont was on the right side of the driveway, and her left
front quarter panel protruded 1 metre or 1.1 metres into Mr. Capp’s southbound
lane.  I find that Ms. Aymont has adopted Mr. D’Aoust’s opinion as her evidence
concerning her location in the exit, although she has placed herself in a position
that is inconsistent with Mr. D’Aoust’s views.  Ms. Aymont also adopted Mr.
D’Aoust tendency to use “well” as an adjective to describe a unit of measure;
she says that she was “well” before the fog line.

[73]        
Mr. D’Aoust’s opinion cannot be reconciled with Mr. Capp’s evidence.  If
I am to accept Mr. D’Aoust’s opinion, I must find that Mr. Capp’s description
of the events is wrong or untrue.  For reasons that I will explain, I have no
basis to reject Mr. Capp’s evidence.

[74]        
Mr. Brown’s report provides, in my view, a more reasonable description
of what occurred.  Mr. Brown does not begin his analysis with a description of
the plaintiff’s view.  He does not consider at the outset that Ms. Aymont’s
vehicle was stationary.  He allows that it could have been stationary or moving
at a very low speed.  His explanation for the kink seen in the photographs
behind Mr. Capp’s truck is logical: it demonstrates a change of direction of
Mr. Capp’s truck following the impact with the Aymont vehicle.  It is more
likely that the tire tracks that are shown in the photograph come from the same
axle, rather than different axles as Mr. D’Aoust states.  His conclusion about
the area of the impact is consistent with Mr. Capp’s evidence.  His conclusion
regarding the point of impact is supportive not only by the kink in the skid
marks, but gouges from the suspension or undercarriage of the Mazda, the start
of the curb tire mark from the Mazda’s left front tire, and the start of the
fluid spray from the Mazda.

[75]        
Most importantly, Mr. Brown’s opinion is consistent with the evidence
that Mr. Capp provided, and is consistent with the statements that Ms. Aymont
made to her chiropractor, Cst. Andreucci and Mr. Bonner, the insurance
adjuster.

[76]        
As stated, I have no reason to find that Mr. Capp’s evidence is
inaccurate or untrue.  His evidence was straightforward.  It was not undermined
in cross-examination.  There is no basis upon which I can find that his version
was incorrect or that he suffered from a visual impairment or any other
impairment.

[77]        
Mr. Capp’s evidence that the Aymont vehicle was moving when he first
observed it is consistent with the statements that Ms. Aymont made to her
chiropractor.  In the form that she completed, or directed Dr. Holroyd to complete,
she says that she was not stopped and was moving at about 10 km/hour.  In her
statement to Cst. Andreucci she stated that she just did not see Mr. Capp’s
vehicle.  She told Mr. Bonner that she had pulled forward from the exit onto
Bartley Road before being hit.  All of these statements are consistent with the
circumstances that Mr. Capp describes.

[78]        
I find as a fact that Ms. Aymont was not stopped “well before the fog
line”.  She was moving from the exit into the southbound lane of travel on
Bartley Road.  She was going slowly, likely less than 10 km/hour.  Her foot was
not on the brake.  She was not looking in the direction of the oncoming traffic,
but was engaged in a conversation with her son Joel who was sitting in the
passenger seat, and had turned her face toward him to talk about his drink.

[79]        
 Ms. Aymont did not yield the right of way to Mr. Capp who was the
dominant driver.  She may have been in breach of s. 176(2) of the Motor
Vehicle Act, and while this is important to determine whether she has met
the standard of care, it is not the exclusive measure of that conduct.  “A
driver will not be held to have breached the standard of care simply because he
or she failed to take extraordinary steps to avoid an accident or to show
exceptional proficiency in the operation of a motor vehicle”: Salaam v.
Abramovic, 2010 BCCA 212 at para. 25.

[80]        
 I find that Ms. Aymont entered the intersection without yielding the
right of way to Mr. Capp who was approaching on the highway.  Mr. Capp is
entitled to assume that Ms. Aymont will obey the rules of the road.  In this
case, by the time Mr. Capp observed Ms. Aymont’s vehicle to be moving into his
lane of traffic, he was not able to avoid the collision; there simply was not
enough time and too short a distance to travel.  In other words, Mr. Capp’s
vehicle was an immediate hazard to Ms. Aymont’s vehicle who was about to enter
or cross the highway.  Mr. Capp did what he could to avoid the accident by
attempting to brake and drive into the oncoming lane of traffic.  He had
slightly over five seconds to perceive that Ms. Aymont was moving and was not
going to stop; to react; and then attempt to bring his vehicle, travelling at
50 km/hour to a stop.  I have found that Ms. Aymont was not stopped, but was
rather travelling at one metre per second, into Mr. Capp’s path of travel.

[81]        
To apply the test in Walker, Ms. Aymont has not established that
after Mr. Capp became aware, or by the exercise of reasonable care should have
become aware, of Ms. Aymont’s disregard of the law or that Mr. Capp had a
sufficient opportunity to avoid the accident, of which a reasonably careful and
skilful driver would have availed himself.

[82]        
In all of the circumstances, I find the plaintiff is 100% at fault for
this accident.

“Gropper J.”