IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101001

Docket: M082795

Registry:
Vancouver

Between:

Michael Hough

Plaintiff

And

Ryan Dyck

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]          
This trial proceeded on the issue of liability only.  As ordered by
Master Tokarek on January 4, 2010, it was heard together with the trial of
action M091787, in which Mr. Hough is also the plaintiff.

[2]          
On October 27, 2007, a pick-up truck driven by the plaintiff, Michael
Hough, was struck from behind by a car driven by the defendant Ryan Dyck.  Mr.
Hough alleges that Mr. Dyck caused the collision by driving too fast and by
failing to keep a sufficient distance between the two vehicles to be able to
bring his vehicle to a stop before colliding with Mr. Hough’s vehicle.

[3]          
In their testimony, the two drivers gave two quite different versions of
how the collision occurred.

[4]          
Mr. Hough testified that he was southbound on 176^th Street in
Surrey, having just exited onto 176^th from the TransCanada Highway. 
He testified that 176^th has two southbound travel lanes until just
south of the intersection of 176^th and 92^nd Avenue, or
perhaps just south of 176^th and 96^th Avenue.  He
testified that a short distance south of that intersection, the right travel
lane ends and traffic in the right lane must merge into the centre lane.

[5]          
Mr. Hough testified that when he drove through the intersection of 176^th
Street and 92^nd Avenue (or perhaps it was the intersection of 176^th
Street and 96^th Avenue) he was driving in the lane closest to the
centre line.  He testified that Mr. Dyck was travelling in the right lane. 
Mr. Hough testified that Mr. Dyck failed to merge into the left lane when he
should have, and instead was driving on the right shoulder of the road.  Mr.
Hough also referred to this area as the “sidewalk”.  Mr. Hough testified that
Mr. Dyck attempted to force his way into Mr. Hough’s lane.  He said that Mr. Dyck
was trying to cause a collision and was driving like “a maniac” and was an
“idiot”.  Mr. Hough testified that in order to avoid being struck by Mr. Dyck’s
vehicle, Mr. Hough swerved to his left, into the lane for northbound traffic,
and then immediately pulled to his right to return to the southbound lane ahead
of Mr. Dyck’s vehicle.  Mr. Hough testified that 10 to 30 seconds later, he had
to slow or stop his truck, and that Mr. Dyck’s car then collided with the rear
of Mr. Hough’s truck.

[6]          
Mr. Hough testified that his vehicle was never behind Mr. Dyck’s
vehicle.  He testified that he slowed or stopped his vehicle immediately before
the collision because a truck had emerged from a driveway on the east side of
176^th Street; had crossed over the northbound lanes and made a left
hand turn into the southbound lane, in front of Mr. Hough’s vehicle.

[7]          
Mr. Hough testified that following the collision he started to pull over
onto the right hand shoulder, but there was lots of traffic, and that vehicles
planning to turn right onto 88^th Avenue sometimes drive down the
shoulder of the road, so he decided to continue driving south on 176^th. 
He said that when he realized that there had been a collision he had looked
behind him and had seen a black car.  He said he looked ahead, and then looked
in his rear view mirror and again saw a black car behind him, which he assumed
to be the vehicle that had collided with his own.  Mr. Hough testified
that he drove south until the intersection of 176^th and 60^th
Avenue, where he stopped for a red light.  He testified that he got out of his
truck and walked back and started to write down the licence plate number of the
black car behind him.  He said that a female driver in that vehicle said “I
didn’t hit you – the guy that hit you made a U-turn and took off”.

[8]          
Mr. Hough testified that he turned east onto 60th Avenue and then used
his cell phone to call his insurance company.  He testified that he did not
drive to his home, but went to another location.

[9]          
Mr. Dyck’s memory of the events was quite different.  He had exited off
the TransCanada Highway and was southbound on 176^th Street.  He
testified that both he and the truck driven by Mr. Hough had merged into the
lane nearest the centre line dividing the northbound and southbound traffic. 
His car was immediately in front of Mr. Hough’s truck at the intersection of
176^th Street and 96^th Avenue.  He testified that there is
a concrete barrier separating the northbound and southbound lanes that ends
south of the intersection.  Mr. Dyck recalled that as soon as the concrete
barrier ended. Mr. Hough suddenly pulled into the northbound lane, passed Mr. Dyck’s
car, and then just as suddenly swerved back into the southbound lane and
abruptly stopped, immediately in front of Mr. Dyck’s vehicle.  Mr. Dyck said that
there was no apparent reason for Mr. Hough to stop his vehicle abruptly when
and where he did.   Mr. Dyck testified that he was driving quite slowly,
because of the heavy traffic in the area; and was nearly able to bring his
vehicle to a stop by braking, but that he did collide with the rear of Mr.
Hough’s truck.  He said the force of the collision was very minor.

[10]       
Mr. Dyck testified that after the collision, he drove his vehicle onto
the shoulder of the road and waited to see if Mr. Hough would also pull over. 
He waited until he saw that Mr. Hough was not going to stop to exchange driver
information, and then drove home.  When he arrived at his home, he called his
insurance company and reported the collision.

[11]       
Mr. Hough’s testimony was not convincing.  He was a careless witness. 
It was difficult to determine when he was testifying from memory; when he was
reconstructing; and when he was merely speculating.   He freely and repeatedly
asserted that due to the passage of time, his recall of details of the events
was poor.  He also testified that his use of pain medication adversely affects
his memory.  However, he was also adamant at times about the accuracy of his
testimony.

[12]       
Mr. Hough could not recall with any precision where the accident
happened; at times he asserted that it was between 96^th Avenue and
92^nd Avenue, and at other times that it was between 92nd Avenue and
88^th Avenue.  He gave inconsistent testimony about where, when, and
by what means he had made a telephone call to report the collision to his
insurer.  At trial, he said that he was “almost positive” that he called on his
cell phone because he always carries it with him, and that he didn’t go home
after the accident.  On his examination for discovery on April 8, 2009, he had
testified that he called his insurer on his home phone, because he wasn’t
carrying his cell phone that day.

[13]       
Mr. Hough could not recall with confidence where it was that he had an
interaction with the independent witness, Ms. Maynes.  Ultimately, he testified
that he believed he had spoken to her when both he and she stopped their
vehicles for a red light at 60^th Avenue.  Ms. Maynes testified that
she turned off 176^th Street to go to her home, before the
intersection with 60^th Avenue.

[14]       
Mr. Hough does not dispute that he stopped his vehicle in front of Mr.
Dyck’s vehicle.  He testified at trial that he stopped because a vehicle was
entering the highway from a driveway on the east side of the highway, crossing
over the northbound lanes and turning left to go south.  He elaborated by
saying that it was a truck pulling a “pup” trailer and that it had entered the
highway from a driveway on the east side of the highway and had crossed over
the northbound lanes before turning south on 176^th in front of Mr.
Hough’s truck.  When he was pressed in cross-examination about the location of
the driveway he had referred to, Mr. Hough was initially adamant about his
recall of the truck coming out of a driveway.  However, he later changed his
testimony, saying that perhaps the truck had not come out of a driveway;
perhaps it had been stopped on the roadside on the east side of 176^th.

[15]       
On his examination for discovery in 2009, however, Mr. Hough had made no
mention of a truck, or a truck with a trailer, crossing over the northbound
lanes and turning onto 176^th Street to head south.  Instead, he
testified on discovery that he had stopped because a car in front of him (also
southbound):

 …
was going to hang a left or right, and it didn’t know what it was doing so I
was waiting for them to decide what they were going to do.

[16]       
Mr. Dyck’s testimony was internally consistent and he was a careful and
coherent witness.   His testimony about how the accident happened and the
relative positions of the two vehicles immediately prior to impact was
reasonable and was supported by the testimony of an independent witness, Ms.
Kristy Maynes.

[17]       
Ms. Maynes testified that she witnessed the collision between the
vehicles driven by the plaintiff and the defendant.  Ms. Maynes was returning
to her home from her workplace along a route with which she was very familiar. 
She had also exited onto 176^th Street from the TransCanada Highway
and was also southbound.   Like Mr. Dyck, she was driving a small black car. 
Her attention was drawn to Mr. Hough’s truck, which was immediately in
front of her own vehicle as the traffic moved away from the intersection at 96^th
because, she said, Mr. Hough was driving erratically.  She saw that Mr. Dyck’s
black car was in front of Mr. Hough’s truck.  She said she could see Mr. Dyck’s
vehicle because Mr. Hough was swerving to the right and the left as the
vehicles were going downhill.  She saw Mr. Hough alternately pull onto the
right shoulder of the road and then veer left into the northbound lane; and also
stop abruptly.  She was sufficiently concerned about what she saw to slow down,
in an attempt to open up more space between her vehicle and the pick-up truck. 
She testified that she thought the driver of the truck must be intoxicated.

[18]       
Ms. Maynes testified that near the bottom of the hill, as traffic was
approaching 92^nd Avenue, she saw Mr. Hough’s vehicle pull across the
double solid centre lines into the northbound lane, pass Mr. Dyck’s vehicle,
swerve back into the southbound lane and then slam on its brakes.  She saw the
brake lights of Mr. Dyck’s vehicle come on and saw the collision.  She
said it was a minor impact, because of the relatively slow speed of travel due
to heavy traffic.

[19]       
Ms. Maynes’ recollection of events after the accident was less clear. 
She testified that both vehicles involved in the collision pulled a little to
the side, but that she kept driving, thinking it would be a mistake to get
involved given the circumstances.  Ms. Maynes also testified, however, that she
was forced to stop her vehicle at the scene of the accident because Mr. Hough
stopped his truck in front of her car, got out and stood in front of her car,
and started to make a note of her licence number.  She said he said “Did you
see that?” and that she replied “It wasn’t me.”  She denied having seen Mr.
Dyck’s vehicle make a u-turn and denied having told Mr. Hough that she had seen
Mr. Dyck make a u-turn following the accident.

[20]       
I believe that Ms. Maynes may be mistaken about the location of the
interaction she had with Mr. Hough following the accident.  I consider it most
probable that it was at the intersection of 88^th or some subsequent
intersection that Mr. Hough approached her vehicle.  Ms. Maynes testified that
she exited 176^th before the intersection with 60^th Avenue.

[21]       
I find Mr. Dyck to be a credible witness and I accept his testimony.  I
consider Mr. Hough’s testimony to be inaccurate and unreliable.   The testimony
of Ms. Maynes supports Mr. Dyck’s testimony that Mr. Hough caused the
accident by first passing Mr. Dyck’s vehicle when passing was prohibited, as
evidenced by a solid double centre line and then abruptly pulling back into Mr.
Dyck’s lane and equally abruptly slamming on his brakes, for no good reason,
and when it was foreseeable that a collision would result.  In doing so, he was
negligent, and his negligence was the sole cause of the accident.

[22]       
I am not persuaded that anything done or omitted to be done by Mr. Dyck
caused or contributed to the accident.  He was cut off when Mr. Hough pulled
back into his lane of travel and then stopped abruptly.

[23]       
It follows that the action must be dismissed.  Mr. Dyck shall have his
costs, payable by Mr. Hough, on Scale B.

“W.G. Baker J.”