IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101110

Docket: M123836

Registry:
New Westminster

Between:

Robert Alan Jennings

Plaintiff

And

John Doe, Jane Doe
and

Insurance
Corporation of British Columbia

Defendants

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
As previously order by Justice Schultes, this trial proceeded on the
issue of liability only.  On October 7, 2008, the plaintiff was injured when
his Toyota pick-up truck left the travelled portion of the Trans-Canada Highway
(“the highway”) and struck a hydro pole in the adjacent ditch.  The plaintiff
alleges that the accident was caused by the negligence of the unidentified
driver of a tractor-trailer unit which crossed into his lane of travel, forcing
his vehicle to leave the roadway.

[2]            
The defendant Insurance Corporation of British Columbia (“the Insurer”)
says that Mr. Jennings’ injuries resulted from a single vehicle accident caused
by Mr. Jennings’ own negligence; that if there was a second vehicle involved
Mr. Jennings caused or contributed to the accident by his own negligence; and
finally that Mr. Jennings failed to take all reasonable steps to identify the
driver of the tractor-trailer unit and is therefore disentitled to compensation
for his injuries received in the motor vehicle accident, pursuant to s. 24(5)
of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.

Facts

[3]            
Robert Jennings was 18 years old in October 2008.  He had graduated from
high school in June; and was employed at a ranch located at 70 Mile House in
British Columbia.  Mr. Jennings’ family have a cottage near 70 Mile House and
Mr. Jennings was residing at the family cottage.  Presently Mr. Jennings
is 20 years old and an apprentice carpenter.

[4]            
October 7, 2008 was a Tuesday.  Mr. Jennings had been at his parents’
home in Maple Ridge on the weekend in order to attend an engagement party for
his sister and her fiancé’.  He had remained in the Lower Mainland Monday in
order to celebrate the anniversary of his second year of dating his
girlfriend.  He slept well on Monday evening and had not consumed alcohol for
24 hours prior to departing from his parents’ home at about 7:00 a.m. on
Tuesday, October 7 and had not consumed any drugs.  He was not in a hurry and
was not expected to be at work that day.  Mr. Jennings had his dog “Scout”
with him.  The dog was sleeping on the front passenger seat of Mr. Jennings’
truck.

[5]            
Mr. Jennings testified that the sky was overcast when he left his
parents’ home but that as he headed north there was very light rain – he said
it was “sprinkling” – requiring intermittent windshield wiper use.  Mr.
Jennings said the road was “damp” – I understood him to mean that there was not
enough precipitation to cause water to stream or pool on the roadway.  Mr.
Jennings was driving his 1995 Toyota Tacoma pick-up truck, which he had
purchased from a previous owner.  The vehicle was in good mechanical condition
and well-maintained.

[6]            
Mr. Jennings was employing the vehicle’s cruise control.  The speed
limit on the relevant portion of the TransCanada Highway is 90 kph; Mr.
Jennings had set the cruise control at 94 kph.  The evidence does not establish
that this was an unsafe speed for the road conditions prevailing at the time. 
Mr. Jennings testified that traffic was not heavy.

[7]            
Mr. Jennings was northbound on the TransCanada Highway.  He was very
familiar with the highway having driven it, accompanied by his parents, when he
had a driver’s learner’s permit; and by himself since obtaining his driver’s
licence.  He had also been a passenger on that highway many, many times,
travelling to and from his family’s cottage near 70 Mile House and also to
another family-owned residence at Sun Peaks Mountain.

[8]            
By approximately 9:30 a.m., Mr. Jennings was north of the community of
Boston Bar and was nearing the south slope of Jackass Mountain.  For
approximately two to three miles of the approach to Jackass Mountain the
highway has four lanes of travel − two for southbound vehicles, and two
for northbound vehicles.  The two northbound lanes continue to the point that
the highway begins to level out at the top of the Mountain, and then merge into
one lane.

[9]            
The evidence indicates that in assessing and rejecting Mr. Jennings’
claim for compensation for his injuries, at least one representative of the
Insurer had incorrectly assumed that the accident happened at a location much
further up Jackass Mountain than the actual location.  I am satisfied that Mr.
Jennings and his father have correctly identified the location of the accident
and that that location is confirmed by photographs taken by Mr. Jennings, Sr.
on the day of the accident, and a videotaped recording made by Mr. and Mrs.
Jennings, Sr. on a subsequent date.  I conclude that at the location where the
accident happened there are two northbound lanes and two southbound lanes.

[10]        
Before the events began that culminated in Mr. Jennings’ collision with
a hydro pole, Mr. Jennings was driving in the northbound lane closest to the
centre line; sometimes referred to as the “fast lane”.  The videotape made by
Mr. Jennings’ father and mother indicate that there are road signs advising
drivers to “Keep Right Except to Pass”.  Mr. Jennings testified that there are
often large trucks on the highway; that the highway grade as the road ascends
Jackass Mountain is very steep; that large trucks have difficulty maintaining
speed as the grade steepens and lengthens and that it is often necessary to
pass the slower vehicles by utilizing the left hand lane.  Mr. Jennings’
father, Bradley Jennings, testified to the same effect.  He said that by the
time large trucks reach the top of the grade; they are often geared down and
moving very slowly.

[11]        
I am not persuaded that Mr. Jennings was negligent in choosing to drive
in the fast lane in the circumstances despite the road sign directing drivers
to occupy the slow lane except when passing, and I am satisfied that the fact
that Mr. Jennings was initially driving in the fast lane did not cause or
contribute to the collision.

[12]        
Mr. Jennings testified that at a time when there was no other traffic in
the vicinity he became away that a large northbound tractor-trailer had
approached from behind him and was quickly closing the gap between the two
vehicles.  He perceived the tractor-trailer unit to be travelling at high speed
− perhaps as fast as 120 to 125 kph.  He saw that the tractor was blue,
with a Kenworth logo, and that it was pulling a white trailer.  Mr. Jennings
agreed in cross-examination that although he did not count the wheels, he would
describe the vehicle as an “18 wheeler”.

[13]        
Mr. Jennings’ testimony on discovery indicates he did not see the
tractor-trailer unit until it was fairly close to his vehicle.  He was asked to
provide an estimate of the distance between the two vehicles on examination for
discovery and did so, but his evidence on discovery and at trial indicates he
was not confident in the accuracy of his estimate and I conclude it was little
more than a guess.  Estimating the distance between vehicles, particularly
those travelling at speed, is a difficult task and any apparent inconsistency
in Mr. Jennings’ testimony does not cause me to doubt his credibility.

[14]        
Mr. Jennings testified that when he saw the tractor-trailer coming up
fast behind him, he activated his right turn signal and moved into the right,
or slow, lane of travel, expecting the larger vehicle to pass on his left.

[15]        
As the tractor-trailer unit began to pass him, however, Mr. Jennings saw
that the passing vehicle’s trailer tires were crossing over the line dividing
the two north-bound lanes and that the trailer was swaying.  He reduced the
speed of his vehicle utilizing his cruise control deceleration lever and steered
his own vehicle closer to the right side of the slow lane.  However, as the
tractor-trailer unit proceeded to overtake his vehicle, the unit continued to
move to the right, into Mr. Jennings’ lane of travel, eventually entering the
lane fully, leaving no space for Mr. Jennings’ vehicle and forcing him to steer
onto the paved shoulder, and then the gravel shoulder and then into the ditch. 
As his vehicle entered the ditch, the front of his truck struck the base of a
hydro pole.

[16]        
These events happened very quickly.  Mr. Jennings considered trying to
slow his vehicle by braking, but by that time the passenger side wheels of his
truck were on the soft gravel shoulder and he was afraid that braking would
cause the tires to dig into the shoulder and propel his vehicle into the
ditch.  In the circumstances, and considering the limited opportunity Mr.
Jennings had to react to the dangerous and unexpected manoeuvre of the
tractor-trailer, I am not persuaded that Mr. Jennings’ failure to brake or to
cancel his cruise control was negligence.  I am also not persuaded that braking
earlier or at all, or cancelling the cruise control would have enabled Mr.
Jennings to avoid the collision.

[17]        
Immediately prior to the impact, Mr. Jennings felt his vehicle vibrate,
as if it had been struck by the passing trailer.  He described it as being
“nudged” by the trailer.   He believes that there was actual contact between
his vehicle and the trailer.

[18]        
The front of Mr. Jennings’ pickup truck struck the hydro pole.  The
impact sheared off the base of the hydro pole, leaving the top of the pole
dangling from the overhead hydro wires.  At least one wire was knocked to the
ground.  When his truck collided with the pole, Mr. Jennings’ air bag
deployed.  He did not lose consciousness.  When he came to a stop he was
coughing from powder that had come out of the airbag.  He saw the
tractor-trailer unit disappearing in the distance and was unable to see a
licence number.  He checked his dog to see if the animal had been injured.  He
noticed the dangling hydro line and was afraid that it might cause his truck to
burst into flames or explode.  He tried to open his driver’s side door but
realized his left arm was bent behind his back in an unnatural way − he
believed it was broken.  He managed to get the door open with his right arm and
got himself and his dog out of the truck.  He returned to the vehicle to
retrieve some clothing and other possessions.

[19]        
After about 15 minutes, a vehicle approached from the north.  The driver
stopped but did not get out of his vehicle.  He rolled down his car window and
asked Mr. Jennings if he needed help.  Mr. Jennings told him he had been forced
off the road by a truck and that he was injured.  The other driver told Mr.
Jennings he would drive to Boston Bar and notify the police and ambulance; and
immediately drove away.  It did not occur to Mr. Jennings to ask this
individual to give his name.  I conclude from the fact that an ambulance did
subsequently turn up at the accident location that this individual did as he said
he would.

[20]        
Soon after the southbound vehicle departed the scene, three northbound
vehicles came up behind Mr. Jennings’ vehicle and stopped.  A woman who got out
of one of these vehicles gave Mr. Jennings a blanket and tried to comfort him. 
Someone found a leash for Mr. Jennings’ dog.  Another person helped extricate a
bag from Mr. Jennings’ vehicle that he had been unable to get because of his
injuries.

[21]        
An ambulance arrived soon after, with a driver and one attendant.  Mr. Jennings
walked to the ambulance and the ambulance attendants immediately placed him on
a stretcher and put the stretcher into the rear of the ambulance.

[22]        
Mark Simon, the ambulance attendant, testified at trial; having earlier
responded through his employer to questions provided by plaintiff’s counsel. 
The ambulance driver who had been with Mr. Simon on October 7 had no recall of
the events, so was not asked to testify.

[23]        
Mr. Simon, with the assistance of the notes he had made at the time on
the ambulance record, was able to recall the events when he testified at
trial.  As he noted on the ambulance record, he recalled Mr. Jennings telling
him that he had been forced off the road by a tractor-trailer unit consisting
of a blue Kenworth tractor and a white trailer.

[24]        
Mr. Simon testified that Mr. Jennings was angry.  He noted this emotion
in particular because he concluded that it was Mr. Jennings’ anger that was
allowing Mr. Jennings to “compensate” for the pain caused by the injury to Mr.
Jennings’ arm.  Mr. Simon believed that the arm was broken; although x-rays at
hospital later proved it to be a double-dislocation rather than a fracture. 
Because of the severity of the injury, Mr. Simon expected that Mr. Jennings
would be experiencing more pain than he was reporting, and also that he would have
begun to display symptoms of “shock” − changes in blood pressure and
heart rate, that were not present.  Mr. Simon concluded that what was occurring
was a medical phenomenon he called “compensation” and that the anger Mr.
Jennings was feeling towards the driver of the tractor-trailer unit was
delaying the onset of severe pain and shock-like symptoms.

[25]        
Mr. Simon could not, of course, read Mr. Jennings mind.  However, he is
a trained observer and the manifestations of anger observed by Mr. Simon are
consistent with Mr. Jennings’ assertion that the accident was caused by the
actions of another driver.

[26]        
Mr. Simon also confirmed Mr. Jennings’ testimony that Mr. Jennings was
anxious to talk to the police about the tractor-trailer unit that had left the
scene.  Just as the ambulance was about to depart, through the open rear doors
of the ambulance, Mr. Jennings and Mr. Simon saw a police car arrive.  Mr.
Jennings asked to be allowed to speak to police before the ambulance departed,
but Mr. Simon told him it was more important to get him to hospital.  Mr.
Simon said he was anxious to transport Mr. Jennings before he began to
“decompensate”.  Mr. Simon said that in his experience, the police usually
come to the hospital to speak to people involved in an accident and he told Mr.
Jennings that he would be able to talk to the police at the hospital.

[27]        
When Mr. Jennings got to the hospital in Hope, x-rays were taken; he was
sedated and underwent a procedure to have the two dislocations in his arm
corrected, after which the arm was placed in a partial cast.  After arriving at
hospital, Mr. Jennings had placed a telephone call to his mother − a
teacher − at her place of work and she left work and drove to Hope.  Mr.
Jennings was discharged into her care.  Contrary to the information Mr. Simon
had provided, no police officers came to the hospital to speak to Mr.
Jennings.  In any event, he had been sedated and was recovering from surgery.

[28]        
I conclude that Mr. Jennings told his mother that he had been forced off
the road by a truck and he told her it was a blue Kenworth tractor with a white
trailer.  I conclude this because Mrs. Jennings Sr. contacted her husband −
Bradley Jennings − by telephone and conveyed this information and the
vehicle description to him.

[29]        
Bradley Jennings had driven to Kamloops that same morning to the
location of a building site where he was constructing a home.  He had a couple
of telephone calls with his wife (the plaintiff’s mother) and then set off to
drive to Hope from Kamloops to check on his son’s condition.  On route from
Kamloops to Hope, Mr. Jennings Sr. actively searched for vehicles matching
the description of the tractor-trailer unit relayed to him by his wife.  He
checked out parking lots at truck stops, pull-offs and lay-bys.  He understood
from speaking to Mrs. Jennings that the police had been at the scene of the
accident and that Mr. Jennings’ dog and Mr. Jennings’ personal possessions
had been taken by the Boston Bar RCMP for safekeeping.

[30]        
Mr. Jennings Sr. stopped on the side of the highway when he arrived at
the accident scene.  His son’s vehicle was still there, although it appears it
may have been moved from where it came to rest; probably by BC Hydro
employees.  BC Hydro employees were present at the location when Mr. Jennings
Sr. arrived there, waiting for a new pole to be delivered to replace the one
sheared off by the plaintiff’s pickup truck.  Mr. Jennings Sr. took photographs
of his son’s truck and the sheared-off hydro pole and the hydro workers and
their vehicles.

[31]        
Mr. Jennings Sr. checked out his son’s vehicle.  He picked up some glass
and other debris and threw it into the truck.  He opened the driver’s side
door.  He noticed that the driver’s side mirror was flattened against the
vehicle door.  He noticed the wind deflector above the driver’s side window was
broken and the one above the storage area (jump seat?) behind the driver’s side
door was gone.  He examined the non-mirror side of the driver’s side mirror and
noticed what he believed to be recent scuffs and scratches.

[32]        
From the accident scene, Mr. Jennings Sr. continued driving south to
Boston Bar.  He went to the RCMP detachment there.  A shift change was
underway.  Mr. Jennings Sr. spoke with Constable Gatto, who was one of two
officers from the Boston Bar detachment who had been to the accident scene. 
The other officer who had been with Constable Gatto at the scene was Constable
Gravelle.  Mr. Jennings Sr. told Constable Gatto that his son’s vehicle had
been forced off the road by a tractor-trailer unit, and he gave Constable Gatto
the description his son had given − a blue Kenworth tractor pulling a
white trailer.  Mr. Jennings Sr. retrieved Scout and his son’s possessions from
Constable Gatto and then continued on to the hospital in Hope where he met up
with his son and Mrs. Jennings, Sr.

[33]        
After assuring himself that his son was okay and was being discharged
and would go home with Mrs. Jennings Sr., Mr. Jennings Sr. drove back to his
job site in Kamloops.  When he drove by the accident scene he saw that his
son’s vehicle had been removed.  On his return journey to Kamloops he again
searched for a vehicle matching the description given by his son and checked
the same likely locations he had checked on the trip south.  Mr. Jennings Sr.
testified that he hoped to find the vehicle so that the police could pursue the
person he regarded as a hit and run driver.  He was not aware of the provisions
of s. 24 of the Insurance (Vehicle) Act.

[34]        
Mr. Jennings spent the next few days recuperating at home.  When Mr. Jennings
Sr. returned from Kamloops on Friday October 10 he placed a call to the
Insurer’s dial-a-claim line, with the intention of making an appointment for
his son and himself to meet with an adjuster.  Mr. Jennings Sr. believed that
because his son was not yet 19 years old, he would have to be involved in the
insurance claim process. The notes of one of the Insurer’s dial-a-claim
employees are in evidence and confirm that Mr. Jennings Sr. reported the
accident to have been caused by a second vehicle that did not stop at the
scene.

[35]        
Mr. Jennings and Mr. Jennings Sr. were given an appointment to meet with
an adjuster on October 20, 2008.  On his return to Kamloops, Mr. Jennings Sr.
again used the opportunity to watch for tractor-trailer units matching the
description provided by his son en route.  He also stopped in to the Boston Bar
RCMP detachment and spoke again to Constable Gatto.

[36]        
Messrs. Jennings said that no Insurer employee with whom they dealt ever
told either of them that Mr. Jennings had an obligation to make efforts to
locate the driver or owner of the other vehicle involved in the accident. 
Nothing was said that indicated that the accuracy of Mr. Jennings’ report of
the events leading to the accident was disputed or in doubt.  Mr. Jennings Sr.
said that their initial meeting with the adjuster was pleasant and that what
Mr. Jennings said to the adjuster about how the accident had happened seemed to
be accepted.  The adjuster told the two men that she would be getting a copy of
a police report and a copy would be provided to them.  She prepared a statement
summarizing the information provided by the two men.  Before signing the
statement prepared by the adjuster, Mr. Jennings or his father sought
legal advice and some handwritten alterations were made to the typewritten
document prepared by the adjuster.  Mr. Jennings signed the amended statement. 
It, and the necessary notices required by the Insurance (Vehicle) Act,
were delivered to the Insurer.

[37]        
A few weeks after the accident, Mr. Jennings received a photocopy of a
form which the Insurer adjuster called a “MV6020” and which the parties
referred to as a “police report” at trial.  According to a letter written at a
later date by an Insurer representative to counsel for the plaintiff, the
MV6020 had been forwarded to the Insurer by the Boston Bar detachment of the
RCMP.   There is a stamp on the bottom of the document that reads:

CPL D DOYLE

TEAM LEADER

Fraser
Valley Traffic Services

Under the stamp, a signature that appears to be that of D.
Doyle appears.

[38]        
There was evidence − although hearsay − that the
investigation of traffic accidents on the Trans Canada Highway is considered to
be the responsibility of the Chilliwack RCMP Detachment, even if the accident
happens at a location closer to the Boston Bar Detachment.  Other evidence at trial
− again hearsay − indicates the form referred to above may have
been completed by a Constable Small from the Chilliwack RCMP Detachment.  No
evidence was led to establish that Constable Small went to the accident scene
(although an e-mail he apparently authored suggests he did), or from what
source he obtained the information included in his report; or the basis of his
choice of codes that he recorded on the form, or why the form seems to have
been signed by someone other than the person who prepared it.  There’s no
evidence that Corporal Doyle ever went to the scene.

[39]        
Selected codes, according to counsel and a code glossary included as an
exhibit, indicate that the officer who filled out the MV6020 selected “weather”
and “driver inattentive” as “contributing factors”.

[40]        
When Mr. Jennings Sr. and Mr. Jennings received a copy of the MV6020 in
late October or early November 2009, they noticed that no information had been
included on the form about the other vehicle Mr. Jennings says caused the
accident.  They did not know, however, how to decipher any of the many codes
and numbers appearing on the form and were not aware that the police officer
who prepared the form was treating the accident as a single-car event, or that
he had selected codes indicating that “driver inattentive” and “weather” were
contributing factors in the accident.

[41]        
Mr. Jennings spoke to Constable Gatto briefly a couple of times in the
months after the accident, primarily about whether a pair of expensive
sunglasses that had been in his vehicle had been located, but also about the
accident.

[42]        
Mr. Jennings had collision insurance.  He did some internet research
about the value of his truck, which had been “written off” by the Insurer; and
the Insurer and he reached agreement about the amount he would be paid for the
damage to his vehicle, and this sum was paid.  Mr. Jennings had some medical
expenses and these were discussed with the adjuster and Mr. Jennings was also
reimbursed for these expenses.  In these interactions, no mention was made of
any obligation on the part of Mr. Jennings to take steps to try to identify the
driver of the tractor-trailer unit.

[43]        
 It was not until early March 2009 that Mr. Jennings learned, through
his counsel, that the Insurer was taking the position, primarily in reliance on
the MV6020 report, that Mr. Jennings was “…100% responsible for the accident
of October 7, 2008”.  The letter sent to plaintiff’s counsel stated that the
police report indicated only one vehicle was involved.  The adjuster also
referred to photographs in the possession of the Insurer purporting to depict
the location of the accident but I am satisfied that the Insurer was mistaken
about the location of the accident and believed at the time that it had
occurred several kilometres north of the actual accident scene.

[44]        
Because of the adjuster’s misunderstanding about where the accident took
place – defendants’ counsel continued to assert in submissions at trial that
the plaintiff was “travelling up a steep hill at the time of the accident”
although that statement does not accord with the evidence − there is also
some erroneous speculation in the adjuster’s letter to plaintiff’s counsel
about the likely speed that a tractor-trailer could have been travelling when
the accident happened.  Finally, the adjuster stated that the condition of the
driver’s side of Mr. Jennings’ vehicle didn’t support his statement that the
trailer of the tractor-trailer unit had “nudged up against” his vehicle.  Even
this letter did not, however, assert that the plaintiff had failed to take
reasonable steps to try to identify the driver or owner of the tractor-trailer
unit.

[45]        
Mr. Jennings Sr. testified that he attempted to reach Constable Small by
telephone twice after learning that it may have been Constable Small who
prepared the police report on which the Insurer was relying.  Both times he was
told by someone at the Chilliwack RCMP Detachment that Constable Small was not
there; and both times he left a message asking that Constable Small return his
call.  No calls were returned.

[46]        
An e-mail purporting to be from Constable Small and received by
plaintiff’s counsel, dated February 14, 2009, is in evidence.  In the e-mail,
Constable Small, referring to himself in the third person, reported that Mr.
Jennings had been taken by ambulance from the accident scene before Constable
Small arrived there; that Constable Small had not spoken to Mr. Jennings before
preparing the accident report and that no traffic analyst had been involved. 
Constable Small wrote that he had written to Constables Gatto and Gravelle
inquiring if they had any notes or photographs and would advise plaintiff’s
counsel if any were received.  None are in evidence and I infer from that that
none were provided.

[47]        
 On November 26, 2009, the plaintiff commenced this action.

Reasons and Analysis

[48]        
I found both the plaintiff and his father to be credible witnesses. 
There were a couple of minor inconsistencies arising out of testimony Mr.
Jennings gave on examination for discovery.  These inconsistencies arose, in my
view, out of Mr. Jennings’ relative youth and eagerness to be a
cooperative witness.  He attempted, when invited to do so, to provide estimates
of distance and speed although his first response − that he did not know
or was not sure − had been the correct response.  These minor
inconsistencies did not, however, cause me to doubt Mr. Jennings’
truthfulness.  It would, in my view, have been surprising if Mr. Jennings had
actually been able to provide, with any degree of accuracy, some of the details
he was pressed to provide about events that were sudden and unexpected and
which must have been frightening.

[49]        
Mr. Jennings testified that he believed that the trailer portion of the
tractor-trailer unit actually made contact with the side of his vehicle as it
entered his lane.  The defendants take issue with this assertion.  Both Mr.
Jennings and his father were cross-examined about the configuration of Mr.
Jennings’ vehicle.  They were asked to explain how a passing trailer could
cause the wind deflectors to shear off but the side mirror − which
protrudes further than the deflectors from the frame of the vehicle − to
remain intact.  Mr. Jennings was unable to say that he actually saw any part of
the tractor-trailer strike his vehicle − his attention was focused
elsewhere.  He said he believes there was contact because he felt his vehicle
vibrate and because the wind deflectors above the windows on the driver’s side
of his vehicle were damaged.

[50]        
I can conceive of ways in which the damage could have been caused −
straps or other items protruding from the trailer at the level of the
deflectors, for example; or the air displacement caused by the passing vehicle,
but it is not necessary for me to do so.

[51]        
The evidence establishes that there was physical damage to the
plaintiff’s vehicle present after the accident that was not present before the
accident.  It is unlikely that that the damage to the wind deflectors resulted
from contact with the hydro pole − the vehicle struck head on and the
wind deflectors on the passenger side were undamaged.   The damage to Mr.
Jennings’ vehicle corroborates his testimony.

[52]        
Counsel for the defendants objected to the admission of the testimony of
Mr. Simon and Mr. Jennings, Sr., and various documents indicating that Mr. Jennings
did, at the earliest opportunity, and consistently since that time, claim that
the accident had been caused by the actions of the driver of a tractor-trailer
unit.  Counsel submitted, correctly, that previous “consistent” statements of a
witness are normally not admissible for the truth of their contents, or to
buttress the credibility of a trial witness’ testimony.  The defendants say
they are not asserting a “recent” fabrication, although by implication they are
asserting that Mr. Jennings has fabricated a story about how the accident
happened.

[53]        
In my view, earlier decisions of this court establish that in
circumstances such as these, the previous out-of-court statements are
admissible and relevant not for proof of the truth of the out-of-court
statements but to rebut any inference that a claimant is lying because he
failed to assert his present version of events at the first and any subsequent
opportunity when it would be reasonable to expect him to do so, or had made
inconsistent claims in the past about the circumstances of the accident.

[54]        
In Vanderbyl v. Insurance Corporation of British Columbia, (1993)
79 B.C.L.R. (2d) (S.C.), at paras. 37 and 38, Mr. Justice Trainor, an
experienced trial judge, set out a list of elements to be considered in assessing
the credibility of a plaintiff in cases such as these.  Among the elements
identified by Justice Trainor were the following:

1.  Whether the plaintiff reported the existence of the
unidentified vehicle as soon as reasonably possible to the police or other
persons in authority and to I.C.B.C.

2.  Whether the description of the unidentified motor vehicle
given by the plaintiff was as specific as might reasonably be expected from the
particular plaintiff in the circumstances.

3.  Whether the plaintiff’s testimony at trial is consistent
with statements given to the police, doctors or medical attendants, family
members, associated or other witnesses or to I.C.B.C.

4.  Whether the plaintiff has called witnesses to testify to
whom statements were made or who might testify about the plaintiff’s actions
after the incident.

…

8.  Whether the plaintiff’s
actions following the accident are consistent with those one might reasonably
expect of a person in similar circumstances.

[55]        
In this case, Mr. Jennings reported the existence of the unidentified
vehicle as soon as reasonably possible to the police and to the Insurer.  Mr.
Jennings told drivers who stopped at the scene and the ambulance attendant −
Mr. Simon − that a tractor-trailer unit had been involved and he attempted
to make a report to police at the scene, but was prevented from doing so by the
ambulance personnel who were concerned about his physical injuries.  Mr.
Jennings Sr. reported the involvement of a second vehicle to the Boston Bar
RCMP Detachment on the day of the accident.  Mr. Jennings Sr. reported the
circumstances to the dial-a-claim adjuster by telephone and Mr. Jennings made a
statement in person and in writing to an adjuster a few days after the
accident.  The evidence of Mr. Simon about Mr. Jennings’ anger and his
physical condition when assessed at the accident scene is consistent with what
one might reasonably expect of a person in similar circumstances.   I believe
Mr. Jennings, and I accept his testimony about how the accident happened.

[56]        
I conclude also that the accident was caused solely by the negligence of
the driver of the tractor-trailer unit who entered Mr. Jennings’ lane of travel
when it was unsafe to do so.  That driver failed to see Mr. Jennings’ vehicle
when it was there to be seen, and changed lanes when it was unsafe to do so and
without having signalled his intention to change lanes by activating his turn
signal.

[57]        
I am not persuaded that Mr. Jennings was negligent in failing to reduce
his speed or brake earlier than he did, or in using or failing to cancel his
cruise control.  I am not persuaded that anything done by, or omitted to be
done by Mr. Jennings made any difference to the outcome.

[58]        
Counsel for the defendants introduced into evidence excerpts from the
owner’s manual issued by Toyota for the year and model of the truck driven by
Mr. Jennings.  In reference to the use of cruise control, the manual
included the following statement:

“Caution:

To
help maintain maximum control of your vehicle, do not use the cruise control
when driving in heavy or varying traffic, or on slippery (rainy, icy or
snow-covered) or winding roads.”

[59]        
Mr. Jennings testified that although there was some light precipitation,
the roadway was only damp.  Counsel for the defendants points to the conclusion
apparently reached by Constable Small that weather conditions contributed to
the accident, but Constable Small did not testify and it is not clear what
weather conditions he was referring to.  There is no evidence that the road
surface was “slippery”.  No expert opinion evidence was tendered from which I
could conclude that the use of cruise control in the circumstances was a breach
of the standard of care expected of a reasonably prudent driver.

[60]        
There is no expert opinion evidence from which I could conclude that had
Mr. Jennings reduced his speed seconds earlier; or braked earlier; or
cancelled his cruise control; or thought to honk his horn or activate his four
way flashers; the accident would not have happened; and I am not persuaded I
should draw such conclusions in the absence of evidence.  The events
culminating in Mr. Jennings’ truck striking the hydro pole happened
unexpectedly and quickly.   Mr. Jennings did slow his vehicle using the
deceleration feature of his cruise control; pulled to the far side of his lane;
then onto the shoulder and finally into the ditch in an attempt to avoid a
collision with the much larger vehicle that was crowding him off the road.  He
considered applying his brakes but in the agony of the moment believed he might
worsen his situation by doing so.  His decision was not unreasonable.  I am not
persuaded that the defendants have proved negligence on the part of Mr.
Jennings.

[61]        
I turn now to the question of whether Mr. Jennings failed to make “all
reasonable efforts” to ascertain the identity of the driver or owner of the
tractor-trailer unit.

[62]        
Section  24(5) of the Insurance (Motor Vehicle) Act, provides:

In an action against the corporation as nominal defendant, a
judgment against the corporation must not be given unless the court is
satisfied that

(a) all reasonable efforts have
been made by the parties to ascertain the identity of the unknown owner and
driver or unknown driver, as the case may be, and

(b) the identity of those persons or that person, as the
case may be, is not ascertainable.

[63]        
Counsel provided the court with many authorities on this point.  The
authorities referred to include: Leggett v. ICBC (1992), 18 B.C.A.C.
281; Mattu v. ICBC (1998), 52 B.C.L.R. (3d) 272 (C.A.); Cunningham v.
Slubowski, 2003 BCSC 1979; Grant v. Slater, 2001 BCSC 1409; Nelson
v. ICBC, 2003 BCSC 121; Becker v. ICBC, 2002 BCSC 1106; Fan v.
John Doe, 2009 BCSC 568; Palmer v. Alberta, 2005 ABQB 176; Stanley
v. ICBC, 2004 BCSC 1697; Goncalves v. Doe, 2010 BCSC 1241; Warder
v. ICBC, 1992 CanLII 724 (BC S.C.); Hough v. Doe, 2006 BCSC 1450; Gill
v. ICBC, 2007 BCPC 0049; Hocaluk v. ICBC, 2007 BCSC 170; Filsinger
v. ICBC, 2009 BCSC 232; Ingram v. ICBC, (1994) 93 B.C.L.R. (2d) 267
(C.A.); and Dewart v. ICBC, 2005 BCSC 1293.

[64]        
It cannot be said that reconciling all of these decisions is an easy
task, but I must do the best I can.  Several of the decisions cited involved
plaintiffs who had refrained from recording the licence number of the other
vehicle or obtaining the name of the other driver in circumstances in which
they could easily have done so, or had neglected to even speak to available
witnesses, including a person who was a passenger in the vehicle when the
accident occurred.  Some are cases in which the plaintiff failed to report the
accident to the police, or the insurer, for weeks or even months.  In some
cases, the plaintiffs had provided inconsistent statements about how the
accident happened, or had reported that the accident happened at a location
other than the actual location.  In other cases, expert testimony established
that the accident could not have happened in the manner described by the
plaintiff.

[65]        
In Ingram v. ICBC, cited above, the Court of Appeal stated, at
para. 3:

The words “not ascertainable” in
s. 23(5) of the Act (“his identity is not ascertainable”) have been held by
this court to mean could not have been ascertained had the claimant made all
reasonable efforts, having regard to the claimant’s position, to discover them.

[66]        
 The authorities appear to establish that a determination of what
efforts are reasonable must be made with regard to the circumstances of each
case, at the time that the accident happened, and in the following weeks and
months.  In Hough v. Doe, cited earlier, Mr. Justice Bernard said, at
para. 24:

In my view a proper determination of the efforts which might
reasonably lead to discovering the identity of the unknown driver or owner must
be made with due regard for the location where the collision occurred and the
circumstances in which the collision occurred. …

… the instant collision
occurred along an undeveloped and sparsely populated stretch of the
Trans-Canada highway where there are no pedestrians and where vehicles travel
at speeds in excess of 100 km/h.  A collision which occurs in such a location
and circumstances is likely to be witnessed by relatively few people, if any. 
The speed at which the offending vehicle would be travelling would seriously
hamper the ability to observe and note a licence plate number.  The likelihood
that a witness would recognize the driver or the car is miniscule.  In the days
following the collision, the task of locating any witnesses would be daunting. 
The highway serves many people from far-off places travelling considerable
distances to an array of destinations.  It would be a far-fetched exercise to
post a notice at the accident scene or advertise in a local newspaper and there
would be no-on to canvass.

[67]        
The majority of the authorities indicate that the assessment of the
reasonableness of any actions the defendant submits the plaintiff could or
should have taken must include consideration of the likelihood that the
proposed action would or could have produced a favourable outcome.  It would be
incorrect, in my view, to conclude that the Legislature intend to impose on an
insured the burden of actions that viewed objectively had such a remote
prospect of success as to be merely “going through the motions” or an exercise
in futility.

[68]        
Some of the authorities say that an insured may not rely on the police
to carry out an investigation; in other words, may not delegate to the police
the duty that is imposed by the legislation on the insured.   While I accept
this proposition as I must, I am also of the view that where there is evidence
that an insured has promptly reported to the police activity on the part of an
unidentified driver that could constitute a criminal act; and the reasonable
conclusion is that the police considered investigative efforts to identify the
perpetrator would be futile, the court may take that evidence into account in
assessing the nature of the efforts it is reasonable to require of an insured.

[69]        
In this case, there were no pedestrians or other vehicles in the
vicinity and the accident occurred on the Trans-Canada highway along a sparsely
populated stretch of the road.  There were no witnesses who could assist in
identifying the driver of the tractor-trailer.  It is true that Mr. Jennings
failed to obtain the names of the passersby who stopped at the scene, but the
evidence establishes that none of them were present when the accident happened
and the first arrived approximately 15 minutes after the accident.  I do not
believe any of them could have assisted in identifying the driver or owner of
the other vehicle.

[70]        
There was nothing about the tractor-trailer unit that was likely to
cause another driver on the Trans-Canada Highway to take note of it.  Even if,
as Mr. Jennings believed, there had been actual physical contact between
the trailer and his truck, the minimal nature of the damage to his truck
indicates it was unlikely the other vehicle would have had significant damage,
or damage that would have been noticed by a passing motorist.  Mr. Jennings had
been unable to see any logos on the tractor or trailer and had no opportunity
to see the vehicle’s licence number.

[71]        
If the driver realized at the time that he had caused Mr. Jennings’
vehicle to leave the roadway and collide with the hydro pole, it is reasonable
to assume the driver intentionally left the scene.  It is highly unlikely that
he or she would respond to signs posted at the accident scene asking the driver
to identify him or herself.  If the driver did not realize he or she had been
involved in an accident, it is equally unlikely that the driver would reply to
such signs or newspaper advertisements to similar effect.

[72]        
Realistically, the only prospect of detecting the driver of the other
vehicle lay in immediate pursuit and/or police roadblocks set up as soon as the
accident came to their attention.  Mr. Jennings was prevented from reporting to
the officers at the scene by the well-intentioned actions of the ambulance crew
who reasonably believed the police would go to the hospital to speak to Mr.
Jennings.   Mr. Jennings was sedated and underwent surgery, so soon after
arriving at hospital he was probably in no position to be interviewed in any
event.  Mr. Jennings’ Sr. did speak to the Boston Bar RCMP officer within hours
of the accident and he did tell police that a second vehicle had been
involved.  I conclude that the police thought there was so little prospect of
identifying the perpetrator that they were not prepared to allocate police
resources to the matter.  Both Mr. Jennings and his father checked back with
the police − I concede Mr. Jennings’ main purpose in doing so may have
been his missing sunglasses − but they checked nonetheless.

[73]        
Mr. Jennings had no reason to believe that the information relayed to
the Boston Bar Detachment about the involvement of a tractor-trailer unit would
not be passed along to the Chilliwack Detachment, or that police would file a
report and purport to reach conclusions about how the accident had happened
without at least speaking to him by telephone.  By the time that Mr. Jennings
realized that the police report, on which the Insurer subsequently relied, was
incomplete and inaccurate, several months had elapsed.

[74]        
Mr. Jennings Sr. made efforts to locate the tractor-trailer unit on his
drive from Kamloops to Hope, and on his return journey, without success, and
continued to watch for vehicles matching the description provided by his son
during journeys made on the highway during the time period that it was most
likely that the vehicle would still be in this part of the province.

[75]        
The accident and the involvement of a second driver were reported to the
Insurer promptly.  Ignorance of the law is no defence, and the Act does
not impose on the Insurer a positive obligation to tell a claimant about s.
24(5) of the Insurance (Vehicle) Act.  However, Mr. Jennings was given
no reason to believe, in any of his interactions with representatives of the
Insurer that what he had reported to the Insurer would be challenged, or that
he had should be making efforts to locate the other driver.  To the contrary,
he was led to believe that what he said had been accepted.  He was reimbursed
for the damage to his vehicle and for his medical expenses.

[76]        
In my view, Mr. Jennings did make all efforts that were reasonable, in
the circumstances of this case, to identify the driver of the tractor-trailer
unit.  I am persuaded that the identities of the unknown driver and owner are
not ascertainable.  Mr. Jennings is entitled to an order that the defendants,
including the defendant Insurer, are liable for any damages payable to the
plaintiff caused by the accident.

[77]        
Mr. Jennings is also entitled to the costs of this action, on Scale B.

“W.G. Baker J.”