IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101203

Docket: 29388

Registry:
Penticton

Between:

Ravideep Singh
Bassi, Jasmine Kaur Bassi and,

Jaskanwarpal Singh
Bassi, by their Litigation Guardian,

Baljit Kaur Bassi,
and the said Baljit Kaur Bassi

Plaintiffs

And:

Talwinder Singh
Bassi

Defendant

Before:
The Honourable Mr. Justice Cullen

Oral Reasons for Judgment

In
Chambers
December 3, 2010

[1]            
THE COURT: On July 17, 2005, at approximately 5:00 to 5:30 a.m.,
the defendant, Talwinder Bassi, while driving eastbound on Highway 3A between
the villages of Keremeos and Olalla, swerved off the travelled portion of the
roadway across the paved shoulder and onto the gravel shoulder to his right. 
He then swerved sharply to his left, crossed the eastbound and westbound lanes
of the highway crossing the paved shoulder and ending up on the gravel shoulder
of the westbound lane.  As he sought to correct his vehicle’s momentum, it
rolled over one complete revolution ending up with its rear wheels in the westbound
lane’s ditch and his front wheels on the westbound lane’s shoulder.

[2]            
At the time of the accident, the defendant had been up and not slept for
nearly 24 hours.  Earlier during the evening of July 16, he and his wife,
Baljit, and their three children, Ravideep, Jasmine, and Jaskanwarpal, had
attended a wedding in the Lower Mainland of British Columbia.  At the end of
the evening at about 1:00 a.m. on July 17, the defendant and his wife and
children left for their home in Oliver, which in total is about a five-hour
drive in their family vehicle, a Honda van.  It was during that trip home,
nearly five hours into the drive, that the accident occurred causing some
degree of injury to each of the three children and to Ms. Bassi, all of whom
are plaintiffs in this action.  This is an application brought by the
defendant, Mr. Bassi, to have the plaintiffs’ action against him dismissed on
the basis that the evidence falls short of proving that he was negligent in the
manner in which he drove leading up to the accident.

[3]            
The evidence is that it was light at the time of the accident, although
the sun was not up.  The highway was dry and there was no other traffic on the
road at the material time.  The accident occurred just east of a slight curve
in the highway as it skirts around a bluff or embankment on the left-hand side
to eastbound traffic.  The defendant provided an explanation for the accident
in his examination for discovery conducted on August 5, 2008, and subsequently in an affidavit sworn July 20, 2009.  In his examination for discovery, the defendant testified he was travelling at around 80 kilometres per hour, either
a little under or a little over that speed, which he believed to be the speed
limit.  The curve in the road is not that sharp, but, "You can’t see
around it" because of the bluff or embankment to the left of the eastbound
traffic.  He was asked if he slowed his vehicle down when he was making his
turn and he responded, "It’s not that sharp a turn, but I have to —
there’s no like — no yellow signs to slow down or something.  It’s not that
sharp."  He was asked to describe what happened and he responded as
follows:

120      Q         Yes?

 A          And
it was kind of little bit of blind spot, so you cannot see the whole highway on
the other side.

121      Q         Right.

 A          And
when I start turning there, then I saw a deer jumping into the highway.

122      Q         All right.

 A          And
then I got a little nervous, so I tried to steer away from the deer.

123      Q         Right.

 A          And as soon
as I steer away from the deer, my vehicle was on the shoulder, which is very
tight over there, like only three, four feet.  And the vehicle, I start losing
control, so I try to bring the vehicle back to the pavement, which I did, but
the turn was so sharp it started going to the other way right away, on the other
side of the highway.  And then I went on the other shoulder within — you know,
without even noticing, you know, right on the left shoulder.  And then I tried
to steer back onto the highway again, to the main like pavement.  And then
there I start rolling around, 360, and went back onto the wheels of the
vehicle.  I was trying to avoid those ditches, but that’s the best I could
avoid.

[4]            
He testified he knew the area had wildlife including deer.  He was in
the middle of the curve when he saw the deer.  He steered to the right "to
avoid the deer."  When his right wheels hit the gravel shoulder, he turned
to the left to avoid the ditch.  He agreed he veered across the highway going
very sharply to the other shoulder and then corrected again to bring the vehicle
back on the highway, at which point, the vehicle rolled over.  Earlier in the
trip, he saw some wildlife standing right beside the road and "slowed down
and went by them."

[5]            
In his affidavit, he deposed that during the trip, he stopped briefly
two times to refresh himself.  At Princeton, his wife offered to drive, but he
told her he was okay and kept driving.  In his affidavit, he described the
events leading to the accident as follows, and here I am quoting from
paragraphs 20 to 26:

20.       I
started to drive around the curve in the highway, when all of a sudden I saw a
deer jumping onto the highway. The deer was going from my left to my right
side. I got a little nervous so I tried to steer away from the deer.

21.       As I
steered to the right and my vehicle went onto the right shoulder, which was
very tight. There was only about 3 or 4 feet of space on the right shoulder,
There are ditches on either side of that portion of the highway.

22.       I
started to lose control on the right gravel shoulder, so I tried to bring the
vehicle back to the pavement, which I did, but the turn in the highway was so
sharp, the van started to go right across the highway and onto the left
shoulder.

23.       I tried
to steer the van back onto the highway again, to the main pavement. I was trying
to avoid the ditches. At this point, the van started to roll over onto its
roof.

24.       The van
rolled, just once as I recall. The van came to rest on the left side of the
highway with the front wheels on the shoulder and the back wheels hanging into
the ditch.

25.       My van
never did make contact with the deer.

26.       The whole thing, from the time I
saw the deer to the time the van stopped, took only a few seconds.

[6]            
None of the passengers in the vehicle saw the deer as they were asleep
or close to asleep at the time the accident occurred.  Ms. Bassi deposed in an
affidavit sworn August 6, 2009, that she thought her husband told her that he
braked as he swerved, but the defendant does not adopt that in his evidence
asserting only that he swerved and made no mention of braking or attempting to
brake.  Ms. Bassi also deposed that she thought the defendant told her he was
going about 90 kilometres per hour which she believed was the speed limit.  His
evidence was that he was going about 80 kilometres which he believed was the
speed limit.

[7]            
There are some photographs depicting the area where the accident took
place attached to Ms. Bassi’s third affidavit dated September 30, 2009.  The
photographs show the curve in the road as appearing very gradual.  The view of
the road ahead is partly impeded by the bluff on the left side to eastbound
traffic which the road curves around.  The road straightens out after the curve
for a significant distance.  According to the photos in Ms. Bassi’s September
30th affidavit, the point at which the vehicle went onto the gravel shoulder on
the right-hand side is some distance beyond the end of the curve in a straight
section of the road.  The area where it rolled over is similarly some distance
beyond the point where it went onto the right shoulder and, again, on the
straight portion of the road.

[8]             
The applicant’s position on the evidence is set out in his
outline of argument in paragraphs 15 to 22 which read as follows:

15.       The
Defendant believes that the speed limit at that portion of Highway 3A was 80
k/ph, and he believes that he was either driving a little over or a little
under the speed limit.

16.       As the
Defendant started to drive around the left curve, he suddenly saw a deer jump
onto the left side of the highway. He became nervous and tried to steer away
from the deer.

17.       The
Defendant steered to the right and his Van went onto the right shoulder. The
Defendant says the shoulders are only 3 or 4 feet wide.

18.       The
Defendant started to lose control in the gravel on the right side shoulder, so
he tried to bring the Van back onto the pavement. The Defendant says that the
curve in the highway was so sharp that his Van went across the highway and onto
the shoulder on the left side of the road.

19.       The
Defendant tried to steer the Van to the right and back onto the highway to
avoid going into the ditch on the side. At this point, the Van started to roll
over onto its roof.

20.       The Van
rolled over once and came to rest on the left side of the highway with its
wheels on the ground. The front wheels on the shoulder and the back wheels were
hanging into the ditch.

21.       The
Defendant’s Van did not make contact with the deer.

22.       The Defendant says that the time
from when he first saw the deer to his Van coming to a stop after rolling took
only a few seconds.

[9]            
The applicant submits and the respondents concede that this is an
appropriate case in which to sever off the issues of liability and quantum of
damages as the evidence relative to liability is unrelated to the evidence
required to determine the nature and extent of the plaintiff’s injuries.  The
applicant also submits and the respondents concede that the issue of liability
is amenable to resolution by way of what was Rule 18A and is now Rule 9-7.  The
respondent/applicant submits that although the evidence is to some extent
scant, it does not involve any issues of credibility as only the defendant can
describe what happened and there is no other cogent evidence to consider.

[10]        
I have considered the matter and conclude that this is an appropriate case
to consider the issue of liability separately from that of damages and that it
is appropriate for resolution by way of Rule 9-7 as I am satisfied that despite
the relatively scant evidence to be considered on the issue of liability, I am
able to find the facts necessary to determine the issue and it would not be
unjust to do so on this application.  I consider that, as well, a determination
under Rule 9-7 will assist in the efficient resolution of this matter.

[11]        
On the issue of liability, the applicant contends that in the
circumstances the plaintiffs have not met the evidentiary burden of proving his
negligence on a balance of probabilities.  The defendant says this is a case in
which the evidence is equally consistent with an explanation of no negligence
as it is with negligence and given that the burden of proof lies on the
plaintiffs, their action stands to be dismissed.

[12]        
The defendant/applicant submits this is not one of those cases where the
defendant is relying on the defence of inevitable accident arising from some
factor under his exclusive control or wholly within himself as in the case of Perry
v. Banno, [1993] B.C.J. No. 59, where the defendant claimed a sudden
unanticipated loss of consciousness in which case the burden shifts to the
defendant.  The defendant contends this is a case where there is an external
cause of the accident – the deer running into the road – and in light of that
explanation which renders the accident as consistent with no-negligence as
negligence, the plaintiffs have failed to prove their case.

[13]        
The defendant/applicant relies on a number of decisions notably Pitts
Enterprises Ltd. v. Farkes et al, 2004 BCSC 1493, where the defendant was
confronted by a moose which suddenly appeared in the road in front of him in
circumstances where he had no opportunity to take any evasive action.  He
struck the moose and went into oncoming traffic.  In that case, Mr. Justice
Powers analysed the issue raised by the evidence before him in paragraphs 12 to
16 of his judgment as follows:

[12]      In
circumstances where a vehicle leaves a travelled portion of the road, or moves
into an oncoming lane of traffic, the presumption of negligence on the driver’s
part arises, which the driver must rebut by explaining how the accident
occurred without negligence on his part.  The explanation must be based on
evidence not speculation (Lee v. Chan 1997 CanLII 4201 (BC S.C.),
(1997), 29 B.C.L.R. (3d) 27 (B.C.S.C.)).

[13]      If the
driver can show how the accident occurred without negligence, and such
explanation is a reasonable one, then the burden is again on the plaintiff to
prove negligence.  If the explanation is equally consistent with negligence and
with no negligence, then the burden to establish negligence still remains upon
the plaintiff.  (Ballard v. North BB.R.Co. (1923), 60 Sc.L.R. 441 at
p.5).

[14]      In the
present case, the defendant must provide an explanation for how he came to be
on the wrong side of the road.  The explanation must be reasonable and equally
consistent with negligence and with no negligence before the burden of proof
shifts back to the plaintiff.

[15]      The
defendant has provided an explanation for how he came to be on the wrong side
of the road.  He lost control of his vehicle because the steering was damaged
when he struck the moose standing in his lane.  This explanation is equally
consistent with negligence and with no negligence and therefore, the burden to
establish negligence remains upon the plaintiff.

[16]      The issue then is whether the
plaintiff has proven on the balance of probabilities that the defendant was
negligent in operating his vehicle when it struck the moose.

In the result, Justice Powers found that the defendant
in that case "was not negligent in failing to see the moose earlier than
he did," and that he:

…was not driving at an excess
rate of speed given the road, lighting conditions, and condition of the vehicle
for that amount of wildlife where the accident happened.

[14]        
In that case, of course, the defendant actually struck the wildlife on
the road and what happened thereafter could not be attributed to the fault of
the defendant as he had lost control over the steering of his vehicle and hence
the vehicle itself.  In the present case, the defendant did not strike the deer
he described seeing and the issue remains whether the driving that ensued from
his reaction to seeing the deer was as consistent with non-negligence and with
negligence.

[15]        
In pursuing that analysis, counsel for the defendant submits that the
seminal case of Fontaine v. British Columbia (Official Administrator),
[1997] S.C.J. No. 100, which attenuates the value of those cases referring to a
"presumption of negligence" arising from the incontestable fact of a
vehicle leaving its lane of travel or the roadway altogether, is an important
consideration.  In Fontaine, two hunters, Leowen and Fontaine, went on a
hunting trip on November 9, 1990.  They were expected to return on November 12,
1990, but never returned.  They were found in their vehicle apparently driven
by Leowen several months later in a creek off the highway.  There were no
witnesses to the accident and no one knew precisely when, how, or why the
accident occurred.  There was evidence of heavy rains and washouts in the area
around the time the two went missing.

[16]        
In the course of giving judgment for the court, Mr. Justice Major
reviewed the development of the "so-called maxim of res ipsa loquitur"
which "has been referred to in negligence cases for more than a
century."  He concluded at paragraphs 26 and 27 as follows:

26        Whatever
value res ipsa loquitur may have once provided is gone.  Various
attempts to apply the so-called doctrine have been more confusing than
helpful.  Its use has been restricted to cases where the facts permitted an
inference of negligence and there was no other reasonable explanation for the
accident.  Given its limited use it is somewhat meaningless to refer to that
use as a doctrine of law.

27        It would appear that the law
would be better served if the maxim was treated as expired and no longer used
as a separate component in negligence actions.  After all, it was nothing more
than an attempt to deal with circumstantial evidence.  That evidence is more
sensibly dealt with by the trier of fact, who should weigh the circumstantial
evidence with the direct evidence, if any, to determine whether the plaintiff
has established on a balance of probabilities a prima facie case of negligence
against the defendant.  Once the plaintiff has done so, the defendant must
present evidence negating that of the plaintiff or necessarily the plaintiff
will succeed.

In relation to the circumstantial case before the court,
he concluded that the allegation of negligence was not made out noting as
follows as paragraph 31:

There are a number of reasons
why the circumstantial evidence in this case does not discharge the plaintiff’s
onus.  Many of the circumstances of the accident, including the date, time and
precise location, are not known.  Although this case has proceeded on the basis
that the accident likely occurred during the weekend of November 9, 1990, that
is only an assumption.  There are minimal if any evidentiary foundations from
which any inference of negligence could be drawn.

In a passage the applicant in the present case relies
on, Justice Major noted as follows:

The appellant submitted that an
inference of negligence should be drawn whenever a vehicle leaves the roadway
in a single-vehicle accident.  This bald proposition ignores the fact that
whether an inference of negligence can be drawn is highly dependent upon the
circumstances of each case

[17]        
The applicant in the present case also relied on the recent case of Singleton
v. Morris, [2010] B.C.J. No. 185.  In that case, the defendant drove her
vehicle into the rear of the plaintiff’s vehicle while it was stopped at a stop
sign at an intersection.  The defendant provided an explanation corroborated by
others that there was an oily substance on the road surface that prevented her
from stopping in time.  The trial judge in that case found there was a prima
facie case of negligence, but found that the defendant provided an
explanation of how the accident could have happened without negligence on her
part, that the onus remained on the plaintiff, and that she failed to discharge
that onus.

[18]        
The Court of Appeal agreed with the trial judge’s analysis dismissing
the appeal.  In its reasons, the court relied on the judgment of Justice Major
in Fontaine explaining its effect as follows in paragraphs 33 and 34:

[33]      Mr.
Justice Major’s statement sets out the general approach in negligence cases. 
That is, the trier of fact should weigh both the circumstantial evidence and
the direct evidence, where available, in determining whether the plaintiff has
established a prima facie case of negligence.  In cases involving both
direct and circumstantial evidence, the circumstantial evidence, and any
inferences that may be drawn from it, is but one component of the case.  Where,
however, there is no direct evidence, circumstantial evidence and the
inferences that may arise from it may form the entire basis of the plaintiff’s
case.

[34]      Importantly,
as stated by this court in Marchuk v. Swede Creek Contracting Ltd.
(1998), 116 B.C.A.C. 318 at para. 10:

10        … The legal burden of proof,
of course, remains on the plaintiff throughout.

[19]        
The court noted, however, that whether an explanation will neutralize an
inference of negligence is highly dependent on the facts, citing Nason v.
Nunes, 2008 BCCA 2003, and that the issue is whether the explanation is
"adequate to neutralize whatever inference the circumstantial evidence
could permit to be drawn,’ relying on Fontaine at paragraph 33 where
Major J. described the inference of negligence in the particular circumstances
of that case as "modest."

[20]        
As I see it, the issue in the present case is whether the defendant’s
explanation of the accident, involving as it does the mechanism of a deer
running onto the highway from his left, neutralizes the inference that by
leaving his lane of travel onto the right gravel shoulder, then crossing both
lanes of the highway to the opposite gravel shoulder, and ultimately losing
control of his vehicle and causing it to roll over involved negligent driving
on his part.  In my view, it does not.  Although the deer running onto the
highway presents a basis for an explanation that the accident could have
happened without negligence, the explanation actually advanced by the defendant
is inadequate to offset the inference that his negligence had a significant
role in the accident.

[21]        
In the first place, there is no clear evidence where the deer was in
relation to the defendant’s vehicle when he saw it or whether the action he
took was the only or most effective way to evade the deer.  The defendant said
he swerved because he "got a little nervous."  It is unclear whether
he was simply startled and overreacted or whether he took the only evasive
manoeuvre open to him in the circumstances.  There is simply no evidence of
what actual crisis the defendant was confronted with or how imminent it was.

[22]        
Secondly, although the defendant asserts the deer came from his left
from behind the bluff and he noticed it partway through the curve, it appears
from the plaintiff Ms. Bassi’s uncontradicted pictures – and explanation that
the defendant’s vehicle did not swerve off the road to the right until some
distance past the corner down the straightaway which cast some doubt in the
absence of the clearer evidence as to the nature and duration of the
defendant’s reaction to seeing the deer or where he was when he reacted or
where the deer was when he first saw it.

[23]        
Third, the defendant asserts, at least in his affidavit, that the reason
he went across the highway to the left gravel shoulder was because "the
turn in the highway was so sharp."  It is evident, however, from the
defendant’s evidence on discovery and the photographs that the curve in the
highway is not sharp, but is, in fact, quite gradual.  Moreover, based on the
uncontradicted photographs and affidavit of the defendant, Ms. Bassi, at the
point where the van turned back onto the highway from the right gravel
shoulder, it was well out of the curve and on the straightaway.  There was no
turn in the highway at all to cause the defendant to go "right across the
highway and onto the left shoulder."

[24]        
In his discovery, the defendant testified that when he tried to bring
the van back onto the highway, "The turn was so sharp, it started going
the other way right away on the other side of the highway."  It is not
clear in that passage whether he was referencing the turn in the road or his own
turn of the van in trying to bring the vehicle back onto the highway.  Although
he clarified that in his affidavit, his explanation appears quite at odds with
the nature of the highway where he is said to have lost control and that
significantly attenuates the value of his explanation because it fails to
answer why he veered back across the highway to the opposite side.

[25]        
The defendant’s explanation also lacks any indication that he considered
or attempted any other means of avoiding the accident such as by braking either
when he first saw the deer or as he veered off the road to the right.  There is
no evidence of any skid marks, brake marks, distances, or reaction times that
would aid in understanding how the accident took place or whether the
defendant’s explanation could adequately account for what occurred.

[26]        
In my view, this is a case in which the plaintiffs have established a prima
facie case of negligence and, while the defendant has offered an
explanation of what occurred, it lacks cogent detail and is not sufficiently
full, complete, or consistent with the existing conditions to neutralize the
inference of negligence arising from the circumstances of the accident.  In
short, the defendant’s explanation does not adequately ground a non-negligence
version of how and why he came to lose control of his vehicle.

[27]        
I conclude that all the circumstances, including the evidence that the
defendant had not slept for nearly 24 hours and had driven for about
four-and-a-half hours through the night before the accident occurred,
establishes on a balance of balance of probabilities that the accident was a
product of his negligence notwithstanding the explanation he advanced involving
his reaction to seeing a deer coming onto the highway from his left.  I,
therefore, find liability in favour of the plaintiffs.

[28]        
Are there any other orders that you are seeking at this point, Mr.
Welsh, or is this matter simply to be adjourned so that the issue of damages
can be addressed?

[SUBMISSIONS RE
COSTS]

[29]        
THE COURT:  I am satisfied that this should be costs in any event of the
cause.

[30]        
MS. GARTNER:  And that is on this application?

[31]        
THE COURT:  On this application, yes, not of the action as a whole.

[32]        
MR. WELSH:  Of this application and preparation for it?

[33]        
THE COURT:  Yes.

[34]        
MR. WELSH:  Yes, and that is on Scale?

[35]        
THE COURT:  Scale B.

Cullen
J.