IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110216

Docket: M50219

Registry:
Nanaimo

Between:

Diane Elizabeth
Brooks-Martin

Plaintiff

And

James Martin,
MacNutt Enterprises Ltd. and John Doe

Defendants

Before:
The Honourable Mr. Justice Halfyard

Reasons for Judgment

The Action

[1]            
The trial of this action for damages for personal injury proceeded on
the issue of liability only. Settlement had previously been concluded between
the parties, on the issue of damages.

[2]            
The plaintiff, Diane Elizabeth Brooks-Martin alleges that she was
injured in a motor-vehicle accident which occurred on June 25, 2005,
on Interurban Road, in Saanich, British Columbia when she lost control of the
motorcycle she was driving and went down onto the road. Those alleged facts are
not in dispute.

[3]            
The plaintiff further alleges that the loss of control which resulted in
her injury was caused by the negligence of the defendant, James Martin, in the
operation of his motorcycle and by the negligence of the defendant, MacNutt
Enterprises Ltd. in failing to clean loose material off the surface of
Interurban Road where the accident occurred. It is the plaintiff’s position
that the negligent acts and omissions of the two defendants caused her to lose
control of her own motorcycle and to go down onto the road and be injured as a
result. All of these allegations are in dispute.

[4]            
The first position taken by both defendants is that the plaintiff was
entirely at fault for the accident. In their alternative positions, the
defendants allege negligence against each other, and contributory negligence by
the plaintiff.

Background Facts

[5]            
The plaintiff and the defendant Martin are married. The plaintiff is now
52, and her husband is 55. They were living in Shawnigan Lake and were both
gainfully employed. They were both experienced motorcycle drivers, although the
defendant Martin had much greater experience than the plaintiff. He had been
operating motorcycles for about 30 years, whereas the plaintiff had been
driving a motor cycle since 2001. Each year during the months from April
through October, they drove their motorcycles together regularly, on weekends.

[6]            
The defendant Martin owned a Harley Davidson touring bike, which is one
of the largest motorcycles available. It weighed about 700 pounds, and was
approximately 7 to 8 feet long. The plaintiff owned a 1996 Harley Davidson Sportster
1200, which she had acquired in 2002. Her motorcycle weighed about 400 to 500
pounds, and was a bit shorter than her husband’s motorcycle.

[7]            
June 25, 2005, was a Saturday. The plaintiff and her husband
intended to visit a friend who lived in the Brentwood Bay area of the Saanich
Peninsula. They set out together from their home in Shawnigan Lake, on their
motorcycles, in the early afternoon. The defendant Martin was riding ahead of
the plaintiff in a position about two to three feet to the right of the centre
line of the highway (which is known as the A position). The plaintiff was
travelling some distance behind her husband in a position about two or three
feet to the left of the white fog line at the right edge of the travel lane,
which separates the travel lane from the shoulder of the roadway (which is
known as the C position). If the two motorcycles were in a side-by-side
position, there would be about 4 to 6 feet of space between them.

[8]            
The plaintiff and the defendant Martin turned East off the Island
Highway before reaching Victoria, travelled East for a short distance, and then
turned left (to the North) and were travelling North on Interurban Road. The
time was shortly after 1:30 p.m.

[9]            
Interurban Road is a paved road that consists of two lanes of travel,
one for North-bound and one for South-bound traffic. The two lanes are divided
by a yellow centre line, and there is a white fog line at the right edge of the
North-bound and South-bound travel lanes. The pavement continues outside the
fog lines so that there is a shoulder or bicycle lane which is about three or
four feet wide.

[10]        
Alan Road intersects Interurban Road from the West, and does not go
across Interurban Road (i.e., it is a “T” intersection). Interurban Road is a
through road and there is a stop sign for vehicles travelling on Alan Road
toward Interurban Road.

[11]        
Alan Road is a dirt and gravel road. At the western most end of Alan
Road, approximately 2,000 feet west of the intersection with Interurban Road,
the defendant MacNutt Enterprises Ltd. (“the defendant MacNutt”) has a large
piece of property on which it has operated a soil-processing business for many
years. They sell top soil, bark mulch, sawdust and hog fuel. They accept dump
truck loads of dirt that are hauled in from construction excavations in and around
Victoria. Many trucks (many of which are large trucks) travel into and out of
the MacNutt yard each day. These trucks travel east on Alan Road, and turn
either north or south onto Interurban Road, after leaving the yard of the
defendant McNutt.

[12]        
Shortly before the accident, the plaintiff and the defendant Martin were
driving their motorcycles North on Interurban Road, and approaching the Alan
Road intersection. The weather was clear and sunny and the road surface was dry.
The speed limit was 50 kilometres per hour (“kph”). Traffic was relatively
light. Both motorcycles appear to have been in reasonably good operating
condition.

The Accident

[13]        
As they travelled North on Interurban Road, the defendant Martin was
driving in the A position, a few feet to the right of the centre line, and the
plaintiff was some distance behind him, and travelling in the C position a few
feet to the left of the white fog line. They were travelling on an upgrade and
as they reached the crest of a hill, the defendant Martin was travelling at
about 50 kph and the plaintiff was travelling at about 45 kph. As they crested
the hill, the intersection of Alan Road was about 120 yards ahead of them and
at the bottom of a downgrade. A pickup truck was stopped in the northbound lane
ahead, signalling to make a left turn from Interurban Road onto Alan Road. (It
was not suggested by any party that the driver of this pickup truck was in any
way at fault for this accident.)

[14]        
The defendant Martin saw this truck at a distance of about 100 yards,
and the plaintiff also saw the truck when she was about 100 yards away from it.
The pickup truck was down the hill ahead of them, and around a curve to the
right. The plaintiff testified that, at this point in time she was about four
to six motorcycle lengths behind the defendant Martin’s motorcycle. However,
that point is in dispute, as the defendant Martin alleges that the plaintiff
was only about two motorcycle lengths behind him as they came over the crest of
the hill.

[15]        
Both the plaintiff and the defendant Martin say that they intended to
come to a stop behind the pickup truck. But this assertion is disputed by the
defendant MacNutt.

[16]        
The plaintiff testified that, after seeing the pickup truck ahead, she
reduced the throttle on her motorcycle and geared down to second gear. She said
that she slowed down to a speed somewhere between 20 and 40 kph, that she
maintained her C position and that she expected the defendant Martin to
maintain his A position. She testified that there was sufficient time and
distance for her to come to a stop behind the pickup truck. The plaintiff
states that the defendant Martin steered his motorcycle across the lane and
directly in front of her, suddenly and without warning. She testified that,
when he did this, she immediately steered to the right and applied her brakes,
in order to avoid running into his motorcycle. She said that when she did this,
the distance between the front of her motorcycle and the rear of her husband’s
motorcycle was about two motorcycle lengths (i.e. 14 to 16 feet).

[17]        
The plaintiff testified that when she steered to the right, she ran over
sand and gravel on the road surface, which she had not seen before then. She
said that when she applied her brakes, the rear wheel skidded on this loose material,
causing her to lose control of her motorcycle. She says that she could not
regain control of it and had to jump off it to avoid being hit by her
motorcycle. She testified that in doing so, she fell down onto the road and was
injured.

[18]        
The defendant Martin testified that, when he was at some uncertain but
considerable distance from the back of the pickup truck, he cut down on the
throttle and began to slow down. He testified that he saw dirt and sand on the
road surface ahead of him, but said he did not think it would cause him any
problem with the operation of his motorcycle. He says that, when he was at a
distance of about three or four motorcycle lengths (i.e. 24 to 32 feet) away
from the back end of the pickup truck, he applied his brakes. The defendant
Martin says that when he did this, his rear wheel skidded on the loose material
on the road, and moved to his left. He testified that this required him to
steer to his right in order to maintain (or regain) control of his motorcycle. He
does not know what his speed was, when he applied his brakes. He says he
managed to regain control of his motorcycle, but by this time he had travelled
across the lane into the plaintiff’s path of travel. He says he straightened
out his motorcycle and drove past the pickup truck on its passenger side. He
says that, when his motorcycle started to move over toward the C position on
the roadway, he saw that the plaintiff was not far behind him and that she was
already losing control of her motorcycle, and going down.

The plaintiff’s case against the defendant Martin

[19]        
The plaintiff alleges that the defendant Martin was negligent in driving
his motorcycle in front of her and directly into her path of travel, suddenly
and without signalling or warning of any kind. She says that this manoeuvre
forced her to take evasive action so as to avoid a collision. It is implicit in
the plaintiff’s case that she would nevertheless have maintained control of her
motorcycle, if she had not encountered and ran over loose material on the
roadway while braking, which caused her to lose control of her motorcycle.

[20]        
The plaintiff alleges that the defendant Martin should have begun
applying his brakes at a significantly greater distance away from the pickup
truck than he did. It is alleged that, had he done so, he would have been able
to maintain control of his motorcycle, and come to a safe stop behind the
pickup truck, in the A position.

[21]        
The plaintiff further alleges that, if the defendant Martin lost control
of his motorcycle as a result of his motorcycle skidding on loose material on
the road surface, then he knew or ought to have known that the material was
present on the road, and that it created a potential hazard. Consequently, he
should have reduced his speed even further to eliminate that risk, and his
failure to do so was negligence. In the alternative, the plaintiff contends
that, even assuming that ideal driving and road conditions existed, the
defendant Martin failed to reduce his speed to a speed that would allow him to
come to a safe stop behind the pickup truck in the distance available. She says
that the defendant Martin thereby put it out of his power to do this and that
as a consequence he had to cut over in front of her, and drive past the pickup
truck, to avoid crashing into the back of it. (Paragraph 5 of the statement of
claim alleges that: “The defendant Martin swerved right to avoid another
vehicle.”) The plaintiff alleges that he was driving without due care and
attention and at a speed that was excessive relative to the road and traffic conditions.

The defence of the defendant Martin

[22]        
The defendant Martin denies liability. He alleges that the plaintiff was
negligent, and that her negligence was the sole cause of the accident and her
resulting injury.

[23]        
The defendant Martin admits that he steered his motorcycle across the northbound
lane and into the plaintiff’s path of travel. But he alleges that this action
on his part did not cause or contribute to the plaintiff’s injury, because it
did not cause the plaintiff to lose control of her motorcycle. He alleges that
her loss of control was caused solely by her negligence in failing to keep a
proper lookout and in following too closely behind him.

[24]        
In the alternative, the defendant Martin alleges that the plaintiff’s
loss of control of her motorcycle was caused by the said negligence of the
plaintiff together with the negligence of the defendant MacNutt, in depositing
sand and gravel on Interurban Road and then failing to clean it off.

[25]        
In the final alternative, the defendant Martin says that if the court
finds that the plaintiff’s loss of control of her motorcycle was caused by his
negligence, then it should find that the fault of the plaintiff and the fault
of the defendant MacNutt are greater than his degree of fault.

[26]        
As against the defendant MacNutt, the defendant Martin alleges that sand
and gravel on the surface of Interurban Road, which was present as a result of
the negligence of the defendant MacNutt, caused him to steer his motor cycle
into the path of the plaintiff’s motorcycle, and also caused the plaintiff to skid
and lose control of her motorcycle, and to go down onto the road and be injured.
It is the position of the defendant Martin that, had it not been for the sand
and gravel on the road, which caused him to skid and temporarily lose control
of his motorcycle, he would have been able to maintain his A position in the
Northbound lane and come to a safe stop behind the pickup truck.

Reply position of the Plaintiff

[27]        
The plaintiff denies that she failed to keep a proper lookout and denies
that she was following too closely behind the defendant Martin’s motorcycle. In
final argument, counsel for the plaintiff seemed to concede that sand and
gravel on the road in the defendant Martin’s path of travel in the A position
caused him to temporarily lose control of his motorcycle and forced him to
steer in front of the plaintiff. But the plaintiff replies to this “sand and
gravel” excuse of the defendant Martin in two ways. First (as already
mentioned) she says that the defendant Martin knew or ought to have known of
the hazardous condition created by the presence of sand and gravel on the road
and that he could have taken (but failed to take) steps to safely eliminate
this risk. Second, the plaintiff alleges that the defendant Martin could not
have brought his motorcycle to a safe stop behind the pickup truck, even if
there had been no sand and gravel on the road.

[28]        
The plaintiff’s position is that the defendant Martin’s negligent
operation of his motorcycle caused her to take emergency evasive action, and
that the presence of sand and gravel on the road which was present due to the
negligence of the defendant MacNutt, caused her to lose control of her
motorcycle while taking this evasive action. It is implicit in her position
that she could have safely maintained control of her motorcycle, regardless of
the defendant Martin’s conduct, had it not been for the presence of sand and
gravel on the road.

The plaintiff’s case against the defendant
MacNutt Enterprises Ltd.

[29]        
The plaintiff alleges that there was a patch of sand and gravel on
Interurban Road which caused her rear wheel to skid and fishtail, which in turn
caused her to lose control of her motorcycle. She alleges that this loose
material was on the roadway, at that location, as a result of the activities of
trucks owned by the defendant MacNutt and operated by its employees. It is
further alleged that these MacNutt trucks had picked up loose material in their
tires while travelling east on Alan Road away from the MacNutt yard, and then
drove out onto Interurban Road, where the loose material fell off the truck
tires onto the roadway. It is alleged that this material was spread to the
south of the Alan Road intersection, and into the northbound lane of Interurban
Road, by the movements of other vehicles travelling south on Interurban Road.

[30]        
The plaintiff concedes that other trucks not owned or operated by the
defendant MacNutt, visited the MacNutt yard and then drove out along Alan Road,
picking up loose material (sand, dirt and gravel) in their tires along the way,
which loose material also fell off the tires onto the surface of Interurban
Road. It is alleged that all of this loose material (i.e. the material
deposited by both MacNutt trucks and other trucks) constituted an unreasonable
risk to the safety of motorcyclists using Interurban Road, that the defendant
MacNutt knew or ought to have known of this ongoing, hazardous condition and that
the defendant MacNutt should have cleaned it off the roadway at regular intervals,
but failed to do so.

[31]        
The plaintiff states that the defendant MacNutt’s failure to clean this
loose material off the travelled surface of Interurban Road was conduct which
fell below the standard of care required of it, by law; and that this negligent
omission caused the plaintiff to lose control of her motorcycle.

[32]        
As she must, the plaintiff alleges that the defendant MacNutt owed a
duty to take reasonable care for the safety of motorcyclists using Interurban
Road at and near the intersection of Alan Road.

The Defence of the Defendant MacNutt

[33]        
The defendant MacNutt denies liability. This denial includes:

a)    The denial that
the defendant MacNutt owed a duty of care to the plaintiff;

b)    The denial that
sand or gravel was present on Interurban Road, at the location where the
plaintiff lost control of her motorcycle;

c)     The denial
that any sand and gravel that may have been present on the roadway at the place
where the accident occurred, was on the road as a result of any negligent act
or omission of the defendant MacNutt; and

d)    In the final
alternative, it is denied that any sand and gravel that may have been present
on the roadway at the place where the accident occurred, was the cause of the
plaintiff losing control of her motorcycle.

[34]        
The defendant MacNutt alleges that the plaintiff’s loss of control of
her motorcycle was caused solely by her own negligence. The particulars of the
negligence advanced by the defendant Martin are also relied on by the defendant
MacNutt and, in addition, it alleges that the plaintiff should have seen any
sand or gravel that may have been on the road and should have taken (but did
not take) steps to eliminate any such risk. (But as noted, this defendant goes
further, and denies that any sand or gravel was even present on Interurban Road
at the location where the plaintiff lost control of her motorcycle.) In the
alternative, the defendant MacNutt alleges that if the plaintiff’s negligence
was not the sole cause of the accident, then it was a partial cause, and the
negligence of the defendant Martin was the only other cause of her loss of
control of her motorcycle. In the final alternative, the defendant MacNutt
alleges that if it is found partly at fault for the accident, then the
negligence of the plaintiff and the negligence of the defendant Martin were
also contributing causes.

[35]        
By the end of the trial, the defendant MacNutt seemed to concede that
there may have been some sand and dirt on Interurban Road at and near the
intersection of Alan Road and that some of this loose material may have been
tracked out onto Interurban Road by trucks owned and operated by the defendant
MacNutt. But it maintained the denial that any of this loose material was on
the surface of the northbound lane of Interurban Road at the location where the
plaintiff lost control of her motorcycle. In the alternative, the defendant
MacNutt says that if there was sand and gravel on Interurban Road at that
location, then it was the plaintiff’s own negligence that caused her to lose
control of her motorcycle (or her negligence combined with the negligence of
the defendant Martin), and not the presence of sand or gravel on the roadway.

[36]        
The defendant MacNutt further alleges that, if there was any sand or
gravel on Interurban Road at the place where the plaintiff lost control of her
motorcycle, and if the plaintiff’s loss of control was caused by the presence
of this sand or gravel, then this material was not present on the roadway as
the result of any negligent act or omission on the part of the defendant
MacNutt. Finally, the defendant MacNutt denies that it owed any duty of care to
the plaintiff.

[37]        
The first position taken by the defendant MacNutt is that the plaintiff
and the defendant Martin have fabricated their evidence that they each lost
control of their motorcycles by reason of skidding on loose material that was
present in the northbound lane of Interurban Road. This defendant says that an
equally probable explanation for this accident is that the plaintiff and the
defendant Martin assumed that the pickup truck would turn left onto Alan Road and
would be out of their way before they got to its location, and as a result they
did not slow down in a timely way to a speed that would enable them to stop
safely behind the pickup truck in the event that it did not make the anticipated
left turn before they got there. It is said that, when the truck did not turn
left, the defendant Martin ran out of time and distance to stop, and so he
steered to his right to go around the pickup truck on its passenger side and,
when he did that, he cut sharply in front of the plaintiff, who was following
too closely behind him and going too fast to be able to safely avoid running
into the defendant Martin’s motorcycle. The defendant MacNutt says that, as a
consequence of her negligent driving, the plaintiff had to steer sharply to her
right, and apply her brakes forcefully, which caused her to lose control of her
motor cycle and go down.

Reply Position of the Plaintiff

[38]        
The plaintiff joins issue with the defendant MacNutt on all of the
points which it raises in defence of her claim. She denies that she made any
assumption that the pickup truck would move out of the way before she and the
defendant Martin got to its location, and insists that she was intending to
come to a full stop behind the pickup truck. The plaintiff implies that she
would have been able to avoid the defendant Martin’s motorcycle and to come to
a safe stop behind the truck, had it not been for the unexpected presence of loose
material on the roadway.

[39]        
The plaintiff concedes that sand and gravel was also tracked out from Alan
Road onto Interurban Road in the tires of trucks that were not owned and
operated by the defendant MacNutt. It is further conceded that the plaintiff
cannot prove that the particles of sand and gravel which she alleges caused her
to lose control of her motorcycle were carried onto Interurban Road by a truck
or trucks owned and operated by the defendant MacNutt. But the plaintiff says
that the court should apply the “material contribution” test and not the “but
for” test, to decide this aspect of the issue of causation. It is alleged that
the evidence proves facts which satisfy all elements of the material
contribution test for causation, with the consequence that the defendant
MacNutt should be found liable to the plaintiff.

The Law

[40]        
A plaintiff who sues for damages for personal injury allegedly caused by
the defendant’s negligence, must prove:

a)    that the
defendant owed him or her a duty of care;

b)    that the
defendant committed an act or failed to do an act, which act or omission fell
below the standard of care required of the defendant by law; and

c)     that the
defendant’s said negligent act or omission caused the injury to the plaintiff.

[41]        
If a plaintiff alleges that he or she was injured as a result of a motor
vehicle accident, then he or she must prove that the accident was caused by the
negligent act or omission of the defendant.

[42]        
The defence that the negligence of the plaintiff was the cause of the
accident (and therefore, the cause of the plaintiff’s injury) can be a full or
partial defence to liability. The burden of proving this defence lies with the
defendant.

[43]        
These general principles of negligence law are well settled and were not
in dispute. There was considerable discussion about the element of causation
and the decision in Resurfice Corp. v. Hanke [2007] 1 S.C.R. 333.

The issue of the credibility of witnesses

[44]        
Counsel for the defendant Martin challenged the credibility of three
parts of the plaintiff’s evidence, namely:

a)    that she was
travelling four to six motorcycle lengths behind the defendant Martin’s
motorcycle, when they crested the hill and saw the pickup stopped up ahead of
them;

b)    that she was
following behind the defendant Martin’s motorcycle at a safe distance and at a
safe speed, when he swerved over in front of her; and

c)     that she
did not take evasive action until the defendant Martin’s motorcycle had moved
into her path of travel and created the risk of collision.

[45]        
I understood the defendant Martin’s challenge to the plaintiff’s
credibility to be directed at the reliability of her evidence on these three
points, and not to her honesty.

[46]        
Counsel for the defendant MacNutt challenged the credibility of the
plaintiff on the three parts of her evidence: (a) that there was loose material
(sand and small rocks) on the road at the place where she took evasive action
to avoid crashing into the defendant Martin’s motorcycle; (b) that this loose
material caused her to lose control of her motorcycle while taking that evasive
action; and (c) that she had intended to stop behind the pickup truck, and
would have done so without losing control (regardless of the defendant Martin’s
actions), had it not been for the loose material on the road.

[47]        
Counsel for the defendant MacNutt challenged the credibility of the
defendant James Martin on his evidence: (a) that there was loose material (sand
and dirt) on the road at the place where he applied his brakes; (b) that this
loose material caused him to temporarily lose control of his motorcycle and to
swerve into the path of travel of the plaintiff’s motorcycle, and (c) that he
intended to stop behind the pickup truck (in the A position) and would have
done so, had it not been for the loose material on the road.

[48]        
Counsel for the plaintiff challenged the defendant Martin’s evidence to
the effect that the plaintiff was following too closely behind him, and that
she failed to reduce her speed in a timely way or to the extent she should have.
The plaintiff also took issue with Mr. Martin’s evidence that he could
have stopped safely behind the truck. I understood these challenges to be
against the reliability of Mr. Martin’s evidence on the disputed points.

[49]        
The defendant MacNutt’s attack on the credibility of the plaintiff and
the defendant Martin included a challenge to the honesty of these witnesses.

[50]        
Counsel for the defendant MacNutt also challenged the credibility of two
witnesses called by the plaintiff, Roger Adolf (operator of a street sweeping
machine for Saanich Municipality) and John Lisman, Professional Engineer, (as
to the reliability of his opinion as to the source of the loose material on
Interurban Road). Counsel for the plaintiff challenged the reliability of parts
of the evidence given by Constable Hugh Williams, and attacked the credibility
of Wayne Kersch, an employee of the defendant MacNutt, (who testified to a
number of other possible non-MacNutt sources of loose material on Interurban
Road). But none of the evidence given by any of these witnesses could be
decisive on the material issue of whether there was loose material on Interurban
Road at the place where the plaintiff lost control of her motor vehicle, at the
time it occurred.

[51]        
The only eye witnesses to this accident were the participants, the
plaintiff and the defendant Martin. The credibility of each of them is an
important issue in the case, and must be determined before any findings of
disputed facts relating to the accident can be made.

The Credibility of the Plaintiff

[52]        
In my view, there are a number of matters contained in or implied by the
evidence, which have the potential to adversely affect the credibility of the
plaintiff. I will deal with each of these matters, below.

[53]        
In direct examination, the plaintiff testified in substance that, as she
and her husband travelled down the grade toward the pickup truck, they were both
slowing down their motorcycles. In cross examination by counsel for the
defendant Martin, the plaintiff said that she did not know if her husband was
slowing down more than she was. However, on her examination for discovery on October 16, 2008
(Q. 327), the plaintiff testified to the effect that she did not even know
whether the defendant Martin “was slowing down or not.”  This was an
inconsistency in her evidence, on a significant point. I do not recall any
explanation being given for this inconsistency.

[54]        
In cross examination by counsel for the defendant Martin, the plaintiff
insisted that when she steered to her right to avoid a collision with her
husband’s motorcycle, she did not go across the fog line onto the paved
shoulder. In cross examination by counsel for the defendant MacNutt, it was
established that on her examination for discovery, the plaintiff had answered
“I think so” when asked whether she had moved to the right of the fog line
(question 195), and that (at question 234) the plaintiff testified that she did
not recall whether she was outside the fog line or not when her bike went down.
Other than a possible difficulty with memory, there is no suggested explanation
for this inconsistency.

[55]        
In direct examination, the plaintiff testified that, shortly before the
accident, she and the defendant Martin had been riding in the A and C positions
and that she was riding about four to six motorcycle lengths behind him in the
C position. She testified that, as they came to the crest of the hill on Interurban
Road, she was about four motorcycle lengths behind the defendant Martin. She
said that, as they slowed down while travelling down the grade toward the
pickup truck, they got closer together, so that she was only “a couple of bike
lengths behind him.” The plaintiff further testified on direct that her husband
was about two bike lengths ahead of her when he cut in front of her (meaning
that there were about two motorcycle lengths between the front of her
motorcycle and the back of his motorcycle).

[56]        
But on cross examination by counsel for the defendant Martin, it was
established that the plaintiff had given the following evidence on her
examination for discovery (at Questions 110, 113 and 327):

110      Q         And how far ahead of you was he in the
course of travel?

 A          I would think about a couple of
motorcycle lengths.

113      Q         So about double the length of your bike
ahead of you and to your left?

 A          That’s right.

327      Q         Can you tell me again – we’ve been over
this before – how far ahead of you he was when he started to move in?

A          When he started to move in front of me, I know we
were a couple of motorcycle lengths apart because that’s how we travel, and
then I was slowing down. I can’t say for sure whether he was slowing down or
not. He just came right in front of me. A few feet.

[57]        
Counsel for the defendant Martin submitted that the plaintiff had
effectively admitted on discovery (in Question 327) that she had been riding
about two motorcycle lengths behind the defendant Martin, at the time when the
pickup truck first came into view ahead of them on Interurban Road. It was said
that this evidence contradicted her trial testimony that she was about four
motorcycle lengths behind the defendant Martin at that point. I do not agree. As
I see it, the plaintiff is referring only to the time when the defendant Martin
steered over in front of her. Her reference to “that’s how we travel” could
just as well mean that she had closed the distance from four lengths to two
lengths as they slowed down in preparation for stopping side by side, in
accordance with the usual procedure that she had described in her trial
testimony.

[58]        
The plaintiff testified in direct examination that, after she fell onto
the roadway she was in pain, disoriented and unaware of much that was going on
around her. She said she could only vaguely recall getting into the ambulance.
But she then proceeded to describe the amount of debris on the roadway by
comparing it with the loose material on the roadway shown in Photograph 1 at
Tab 5 of Exhibit 1, and photo 4 at Tab 6 of Exhibit 1. She testified in cross
examination that she was able to observe this gravelly or sandy material on the
roadway, while she was sitting at the side of the road after being injured.

[59]        
The plaintiff’s evidence of her lack of awareness and disorientation
after her fall to the roadway seems inconsistent with the testimony of Mr. Beverley
Evoy, the paramedic, who said that he examined the plaintiff and found her to
be fully oriented and alert. The plaintiff’s evidence that she observed the
loose material on the roadway after she was injured, also seems inconsistent
with her evidence given on examination for discovery (Questions 643 – 646),
where the plaintiff testified in substance  that she had no opportunity to look
at the area on the road that was covered by debris, after the accident.

[60]        
Counsel for the plaintiff requested an opinion from David R. Hay, motorcycle
instructor and safety consultant. His report was filed and he testified at the
trial. Mr. Hay completed his final report on August 13, 2010. In
the usual way, when requesting this report, counsel had asked Mr. Hay to
make a number of assumptions, which included the following:

a)    “Mr. Martin
pulled right to avoid hitting the truck directly in front of him, and swerved
into Ms. Brooks-Martin’s path of travel.”

b)    “The two
motorcycles were traveling at either 45 or 50 kmh.”

c)     “Mr. Martin
was following this truck with a minimum of two seconds between the truck and
his motorcycle.”

[61]        
In cross examination by counsel for the defendant Martin, Mr. Hay
testified that he was also told to assume as a fact that the defendant Martin
did not reduce the speed of his motorcycle as the pickup truck slowed down to
make a left turn onto Alan Road. Mr. Hay further testified that he had not
received any information to the effect that both the defendant Martin and the
plaintiff had reduced the speed of their motor cycles before the defendant
Martin swerved in front of the plaintiff’s motorcycle.

[62]        
It was submitted by counsel for the defendant Martin that some important
facts which counsel for the plaintiff had asked Mr. Hay to assume, are
inconsistent with the version of events given by the plaintiff at the trial. That
is true insofar as the plaintiff’s speed is concerned. She testified that she
was only travelling 20 to 40 kph when her husband steered in front of her. No
explanation was offered at the trial for these differences.

[63]        
The plaintiff filed the report of John Lisman, Professional Engineer,
(dated August 22, 2010) and he was called as a witness at the trial. He was
asked to provide his opinion as to the source of the alleged loose material on
the surface of Interurban Road at the time of the accident. It should be
pointed out, in fairness to the plaintiff, that the facts that her counsel
asked Mr. Lisman to assume, included the following:

. . . Mr. Martin slowed
down, intending to come to a stop behind the Sierra truck, but his braking
action on the loose gravel-covered lane surface locked his wheels, reducing his
deceleration. As he slid forward towards the truck he pulled right to avoid
hitting the truck directly in front of him, and swerved over into Ms. Brook-Martin’s
path of travel.

[64]        
On the other hand, counsel for the plaintiff asked Mr. Lisman to
assume a fact which is contrary to her trial testimony that she did not cross
over the fog line, namely:

Ms. Brooks-Martin braked and
swerved to the right and into the shoulder to avoid colliding with Mr. Martin.

[65]        
Having regard to the assumptions that Mr. Hay and Mr. Lisman
were asked to make, there seems to be a reasonable possibility that, at some
earlier time, the plaintiff had described the events leading up to her loss of
control of her motorcycle, in a way that was different from her trial
testimony, in several significant respects.

[66]        
Beverley Evoy, the paramedic who attended on the plaintiff at the
accident scene, was called as a witness by the defendant MacNutt. In addition
to describing the plaintiff’s level of awareness, Mr. Evoy confirmed that
the plaintiff had told him, in substance, what he wrote in his crew report,
namely:

Patient rolled from bike and
tumbled after laying her bike down.

[67]        
The plaintiff testified that she could not recall any conversation she
may have had with Mr. Evoy. But it is apparent that she did talk to Mr. Evoy,
and that she did not tell him anything to the effect that she had lost control
of her motorcycle after skidding on loose material on the road. One would
expect her to have done so, when describing what had happened, to Mr. Evoy.

[68]        
Constable Hugh Williams was called as a witness by the defendant MacNutt.
He had been a police officer for over 28 years by the time of trial, and had
been a constable with the Saanich Police Department since 1991. He attended the
scene of the accident on his motorcycle on June 25, 2005, shortly
after it occurred. Constable Williams testified that he believed he followed
his normal practice of talking to all persons who were involved in an accident
and witnesses to that accident. He said he could not be certain that he did
this, because he does not specifically recall what he did at the accident scene.
Constable Williams prepared the police report of the accident (Exhibit 1, Tab
1) and confirmed that he wrote this description of the accident on
June 25, 2005:

Vehicle 1 [the plaintiff’s
motorcycle] rounding blind curve and made emergency stop to avoid vehicle
turning left. Rider lost control and put motorcycle down.

[69]        
Constable Williams testified that he summarized that description of the
accident from the combined information that he received from people at the
accident scene. He said he did not write anything down about the condition of
the road, or the actions of another motorcycle driver having anything to do
with the accident. He said he believed that no one told him anything to that
effect at the accident scene, because if they did, he would have included it in
his report. Constable Williams also stated that he does not recall seeing any
sand or gravel on the roadway; that he drove his motorcycle to the scene of the
accident in a northerly direction on Interurban Road, likely at a speed above
the limit of 50 kph; and that he does not recall having any difficulty in
bringing his motorcycle to a safe stop at the accident scene.

[70]        
Constable Williams testified that he had a telephone conversation with
the plaintiff on July 23, 2005, and that he made notes of this
conversation (his notes appear at Tab 1 of Exhibit 1). He said that his notes
contained the substance of this conversation, and the notes read as follows:

While speaking with her details
of the MVI emerged of which Cst. Williams had previously been unaware. Brooks-Martin
advised that as she rounded the sharp bend northbound on Interurban and came
across the stationary vehicle waiting to make a left turn onto Alan Road, her
husband who was riding in front of her, veered right to avoid the stationary
vehicle and cut her off. Brooks-Martin stated that she was forced right and
encountered gravel on the roadway while conducting an emergency braking
manoeuvre. She advised that the A/M [above-mentioned] factors caused the loss
of control.

[71]        
At trial, Constable Williams confirmed that this telephone conversation
with the plaintiff was the first time he had heard that the plaintiff’s husband
had cut in front of her on his motorcycle or that she lost control of her
motorcycle when she steered to her right, applied her brakes and encountered
gravel on the road.

[72]        
One of the hospital records admitted into evidence was a document
entitled “Triage Assessment” made by a nurse at the Victoria General Hospital. The
nurse’s notes say that the plaintiff arrived at the hospital on
June 25, 2005, at 2:19 p.m., and the notes include the following
statements:

On motorbike – layed [sic] bike
down trying to avoid car – rolled then tumbled. Felt lightheaded. . . .

[73]        
In cross examination by counsel for the defendant Martin, the plaintiff
insisted that she did not talk to any police officer at the accident scene and
that she did not recall saying anything to any ambulance attendant.

[74]        
In cross-examination by counsel for the defendant MacNutt, the plaintiff
specifically denied making a statement to a police officer at the accident
scene, to the effect that she lost control of her motorcycle while making an
emergency stop to avoid a vehicle turning left. She said she did not recall
telling anyone that she laid her bike down, trying to avoid another vehicle. Counsel
suggested to the plaintiff that she had wrongly assumed the pickup truck would
make its left hand turn and get out of the way before her motorcycle reached
its location. It was further put to the plaintiff that she had put her bike
down, while trying to avoid the stopped pickup truck. The plaintiff denied both
of these suggestions.

[75]        
It is apparent that someone at the accident scene told Constable
Williams, in substance, that the plaintiff lost control of her motorcycle while
trying to avoid colliding with the left-turning pickup truck. It appears that
the only persons who would have any knowledge about how the accident occurred
were the plaintiff, the defendant Martin and the driver of the left-turning
pickup truck, Mathew Willow (who was not called as a witness by any party). There
is evidence that a second police officer was at the accident scene, and it is
possible that he spoke to one or more persons there, and passed on information
to Constable Williams. There is uncertainty as to which person or persons
Constable Williams talked to at the accident scene.

[76]        
The defendant Martin testified that he spoke to the police officer who
came to the scene on a motorcycle (i.e. Constable Williams) and that he told
the police officer what he believed to be the cause of the accident, namely,
that he had to cut in front of the plaintiff because of the road conditions. The
defendant Martin also testified that the police officer had trouble stopping
his motorcycle when he arrived at the scene of the accident, implying that this
was due to loose material on the roadway. As mentioned, Constable Williams
testified that he did not recall having any such difficulty stopping his
motorcycle or being told anything more about how the accident occurred, than
what he wrote in his report.

[77]        
In these strange and uncertain circumstances, I am not prepared to find
that the plaintiff made statements at the accident scene which amounted to the
statements contained in Constable Williams’ accident report. However, it is
clear that the plaintiff did not make any statement at the accident scene to
the effect that her husband had cut in front of her, or that she lost control
as the result of skidding on loose material on the road.

[78]        
The defendant Martin testified that, when he went to the hospital to see
the plaintiff, he may have spoken to a nurse or a doctor, but could not recall
what he may have said to them. Beverley Evoy testified that he did not give any
description of how the accident happened, to the triage nurse. That means that
the triage nurse could only have received the information she wrote down in her
notes, from either the plaintiff or the defendant Martin (the other paramedic,
Sarah Braithwaite, did not talk to the plaintiff, had not been given any
description of how the accident occurred, and so could not have given any
information about it to the triage nurse). Since patients are assessed by the
triage nurse at the time of arrival at the hospital, and since the defendant
Martin testified that he did not go to the hospital until some 20 to 30 minutes
later, there is some probability that the plaintiff told the triage nurse that
she laid her bike down trying to avoid a car. That would of course be a serious
contradiction of the version of events which she testified to at the trial.

[79]        
But in any event, the evidence supports the inference that the plaintiff
did not make any statement to anyone (before July 23, 2005, when she
spoke to Constable Williams by telephone) to the effect that her husband had
cut her off, or that she lost control of her motorcycle as a result of skidding
on loose material on the road. Counsel for the defendant MacNutt made the clear
suggestion of recent fabrication in cross examination, and no rebuttal evidence
was called in response, to show that the plaintiff had given a description
consistent with her trial testimony of how the accident occurred, before
July 23, 2005. Nor is there any evidence to suggest that the
plaintiff was incapacitated by her injuries or kept in the hospital longer than
a few hours. It may be that Constable Williams was away on vacation for a time.
But in my opinion, the plaintiff’s apparent failure to make such a statement to
anyone for almost a month after the accident is conduct which is inconsistent
with the truth of the version of events which she testified to at the trial.

[80]        
Although not mentioned by counsel at the trial, it seems to me that the
plaintiff made a statement to Constable Williams on July 23, 2005,
that was inconsistent with her trial testimony. She told the officer in
substance that

. . . as she rounded the sharp
bend northbound on Interurban and came across the stationary vehicle waiting to
make a left turn onto Alan Road, her husband who was riding in front of her
veered right to avoid the stationary vehicle and cut her off.

To my mind, the plaintiff was there describing an emergency
situation being created by the stopped truck, which they could not see until it
was so close ahead of them that they could not stop behind it. That is
inconsistent with the plaintiff’s testimony that she saw the stopped truck at a
distance of about 100 yards.

[81]        
In her trial testimony, the plaintiff did not claim to know the reason
why her husband steered his motorcycle across the lane and into her path of
travel, and of course there was no onus on the plaintiff to explain his action.
But in final argument, counsel for the plaintiff accepted the allegation of the
defendant Martin that he had to steer to his right to regain control of his
motorcycle because it had skidded on loose material on the road surface. It was
certainly open to counsel to accept this position of the defendant Martin. But
in paragraph 5 of her statement of claim, which was filed on
May 9, 2007, the plaintiff alleged facts which included:  “The
defendant Martin swerved right to avoid another vehicle. . . .”  That pleading alleges
a deliberate act on the part of the defendant Martin, and implies that his
reason for so acting was to avoid running into the back of the pickup truck,
not to regain control of his motorcycle after skidding on loose material on the
road. So there is a difference between the plaintiff’s case as originally
pleaded, and her case as advanced in final argument. I was at first concerned
about this difference. But I do not think that much can be made of it because
counsel for the plaintiff argued in the alternative that the defendant Martin
could not have stopped his motorcycle before reaching the back end of the
pickup truck, even if there had been no loose material on the roadway.

[82]        
The plaintiff testified that she intended to bring her motorcycle to a
stop behind the pickup truck, and that she had sufficient time and distance in
which to execute this stop in a safe manner. The plaintiff testified that she
first saw the pickup truck stopped ahead of her, at a distance of about 100
yards, when she was travelling at 45 kph. The expert evidence of Grant Harper,
Professional Engineer, supports the plaintiff’s evidence that, at a distance of
100 yards and at a speed of 45 kph, the stopped pickup truck did not constitute
an emergency situation for the plaintiff, in that there was then adequate time and
distance for her to stop safely behind the pickup truck (see Mr. Harper’s
reports dated January 6, 2009, [Exhibit 5] and
August 20, 2009, [Exhibit 6]). Moreover, the plaintiff testified that
she began slowing down very soon after first sighting the pickup truck.

[83]        
Notwithstanding her firm position on this issue, the plaintiff testified
on several occasions to the effect that she was planning to stop behind the
pickup truck, but in case she couldn’t stop, she would keep going and drive past
the pickup truck on its passenger side. The plaintiff said this on her cross
examination by counsel for the defendant Martin, in cross examination by
counsel for the defendant MacNutt and on her examination for discovery (at
Question 120). If there was sufficient time and distance within which to stop,
and if the plaintiff was confident in her ability to do so and was already in
the process of coming to a safe stop before any emergency evasive action became
necessary, it seems highly improbable that she would be concerned about the possibility
of having to drive around the pickup truck. In my view, such a concern is more
consistent with a belief that she might not be able to stop behind the pickup
truck.

[84]        
In my opinion, the matters that I have outlined above (with two
exceptions), taken together, do have the effect of diminishing the credibility
of the evidence given by the plaintiff on the issues where it is challenged. As
a result, I am not prepared to accept the plaintiff’s evidence on the points challenged
by the defendants, unless I find it to be confirmed by other evidence which is
both independent and reliable, or unless I find it to be consistent with the
probabilities in the case. I am not persuaded that the plaintiff was dishonest
in giving her testimony. I am concerned that she may have been mistaken about some
of the events leading up to the accident and the factors which caused her to
lose control, as a result of attempting to reconstruct these matters after the
fact.

The Credibility of the Defendant James Martin

[85]        
Counsel for the defendant MacNutt challenged the defendant Martin on his
evidence that, at the accident scene, he had told the police officer (Constable
Williams) that there was debris on the road which had caused him to cut in
front of his wife. Mr. Martin adopted the following evidence he gave on
examination for discovery on January 12, 2009, as being true:

191      Q         Did you speak to the police officer?

 A          Yes, I did.

192      Q         What did you say to him?

A          Commented to him on the road conditions. What I
believe was the cause of the accident, of me having to cut down in front of her.
I can’t really remember much else of what we said.

[86]        
As I mentioned in considering the credibility of the plaintiff,
Constable Hugh Williams testified later in the trial, and gave evidence
inconsistent with this evidence of the defendant Martin. I find it highly
improbable that Constable Williams would have failed to write down these things
that the defendant Martin claims to have told him, if in fact he did say these
things to Constable Williams. Moreover, one would expect Constable Williams to
have inspected the road, to have described any debris in his notes, and
possibly to have taken photographs, if the defendant Martin had told him these
things.

[87]        
Counsel for the defendant Martin requested the report of Grant Harper,
Professional Engineer, relating to this accident. At pages one and two of his
report dated January 6, 2009, Mr. Harper set out the facts that
he assumed to be true. One of those assumed facts was the following:

(e)        Mr. James Martin
steered his motorcycle to the right to manoeuvre             around the left-turning
vehicle.

[88]        
In cross examination by counsel for the plaintiff, Mr. Harper
confirmed the assumption just described. He also stated that he had not been
given any information to the effect that the defendant Martin had intended to
stop behind the pickup truck or that his motorcycle had skidded on loose
material on the roadway. It is apparent that the information provided to Mr. Harper
by counsel for the defendant Martin does not contain important parts of the
evidence given by the defendant Martin at trial, namely, that he intended to
stop behind the pickup truck, and that he skidded on sand and dirt while
attempting to do so. The assumptions provided to Mr. Harper did include a
reference to the plaintiff’s allegation that she encountered gravel on the road
and lost control as a result, but there was no suggestion that the defendant
Martin had encountered gravel or lost control. In my opinion, the absence of
this information from Mr. Harper’s assumptions makes it even more unlikely
that the defendant Martin made the statements to Constable Williams that he
claims to have made.

[89]        
As I see it, if the defendant Martin had told Constable Williams (as he
claims) that the road conditions caused him to cut in front of his wife, he
would necessarily have explained how the road conditions had this effect. That
is, to make any sense, he would have had to say that he skidded on loose
material when he put on his brakes, and that he put on his brakes because he
was going to stop behind the stopped truck.

[90]        
Yet the defendant Martin does not claim to have told Constable Williams
that he was intending to stop behind the left-turning pickup truck, or that he
was in the process of doing so when his motorcycle skidded on loose material.
That was an essential part of the version of events which he testified to at
the trial, yet on his examination for discovery on January 12, 2009,
(Question 192) he professed an inability to remember telling Constable Williams
more than:

Commented to him on the road
conditions. What I believed was the cause of the accident, of me having to cut
down in front of her.

[91]        
To my mind, if the defendant Martin had told Constable Williams that he
intended to stop behind the pickup truck (but was prevented from doing so by
reason of skidding on loose material), then he would have remembered doing so.
That would be an important part of any description of the accident that Mr. Martin
would be expected to give to the police officer. I conclude that he did not
tell these things to any police officer at the accident scene.

[92]        
From all of this evidence, I conclude that the defendant Martin failed
to convey his present version of what caused the accident, to anyone, at the
first reasonable opportunity. In my view, that is conduct which is inconsistent
with the truth of his trial testimony concerning these matters.

[93]        
In direct examination, the defendant Martin testified that he did not
know how far behind him his wife was riding, when they crested the hill. He
testified further in direct examination to the effect that when he began moving
over towards the plaintiff’s path of travel, he saw that she was very close behind
him and she had already lost control of her motorcycle and was falling from it.
However, in cross examination by counsel for the plaintiff, he said in
substance that the plaintiff was about four motorcycle lengths behind him when
he saw that she was already fishtailing. It seemed to me that this evidence
contradicted what he had said in his direct examination.

[94]        
In cross examination by counsel for the defendant MacNutt, the defendant
Martin testified to the effect that he had seen the debris on the road ahead of
him, that he could have applied the brakes sooner than he did, but that he did
not do so because he did not think it was necessary. In cross examination by
counsel for the plaintiff, the defendant Martin repeated that he had seen the
debris on the road ahead of him but did not consider it to be a concern at the
time. In re-examination, he was asked by his counsel about how a lead rider
would warn a following rider of a hazard on the road, and he said this would be
done by pointing at it or flashing the brake lights. He appeared to explain his
failure to warn the plaintiff about the debris he had seen on the road ahead of
him, by saying that he did not think it would cause him a problem and when it
did cause his motorcycle to skid, he was preoccupied with regaining control and
had no opportunity to warn the plaintiff. I thought his explanation for failing
to warn the plaintiff about debris being on the road up ahead to be somewhat self-serving.
If there was debris on the road ahead, and if he saw it but believed it was not
a hazard, then Mr. Martin made a serious error in judgment. But he did not
clearly admit this error, which was implicit (but hidden) in his own version of
events.

[95]        
As already noted, Mr. Harper was not told that Mr. Martin
intended to stop behind the pickup truck or that he was prevented from doing so
as a result of skidding on loose material on the road surface. On the contrary,
Mr. Harper was asked to assume that:  “Mr. James Martin steered his
motorcycle to the right to manoeuvre around the left-turning vehicle.”

[96]        
In the result, I have serious concerns about Mr. Martin’s
credibility, and therefore about the reliability of the challenged parts of his
version of events given at the trial. I am not prepared to accept his trial
testimony on the disputed matters, unless I am persuaded that it is confirmed
by other evidence which is independent and reliable.

Is the defendant James Martin liable to the plaintiff in negligence?

[97]        
It is admitted (as it must be) that the defendant Martin owed a duty of
care to the plaintiff. It is admitted that the plaintiff was injured when she fell
or jumped from her motorcycle at the time and place alleged (the accident)
after losing control of it. It is further admitted that the plaintiff’s loss of
control of her motorcycle caused the accident and her resulting injury. The
issues are whether the plaintiff’s loss of control of her motorcycle was caused
by an act or omission of the defendant Martin, and if so, whether that act or
omission fell below the standard of care.

[98]        
The defendant Martin admits that he steered his motorcycle across the
northbound lane of Interurban Road, and into the path of the plaintiff’s
motorcycle.

[99]        
The plaintiff testified that she reacted to this sudden action on the
part of her husband by steering to her right and applying her brakes. There was
no direct challenge to that evidence, and in my view it accords with the
probabilities of the case. I accept that testimony of the plaintiff.

[100]     The
plaintiff testified that it was during these actions of steering to her right
and applying her brakes that she lost control of her motor vehicle. Again,
there was no challenge to this part of the plaintiff’s trial testimony, and I
accept it. Accordingly, I find that the act of the defendant Martin caused or
contributed to the plaintiff’s loss of control of her motorcycle (leaving aside
for now the question of whether there were other contributing causes).

[101]     The next question
is whether the defendant Martin’s action of steering across the lane and into
the plaintiff’s path of travel was negligent, in the sense that it fell below
the standard of care required of him. In my opinion, for the following reasons,
it did.

[102]     The
defendant Martin testified that after he had throttled down and had begun to
slow down from his speed of 50 kph, and at a distance of about 24 to 32 feet
from the back of the pickup truck, he applied his brakes, with the intent to
stop behind the pickup truck. He testified further that when he applied the
brakes, his rear wheel skidded to his left (on loose material on the road), which
forced him to steer to his right, in order to maintain (or regain) control of
his motorcycle, which put him into the path of the plaintiff’s motorcycle. It
was implicit in his testimony that he could no longer stop before reaching the
pickup truck, and so when he got his motorcycle straightened out, he simply
drove past the truck on its passenger side, before stopping. He further
testified (and there is no dispute about this) that by this time, the plaintiff
had lost control of her motorcycle and had gone down onto the road behind him.

[103]     The first issue
is whether the defendant Martin skidded on loose material as he claims. I must
look for confirmation of his evidence. In order to amount to confirmation,
evidence must be independent of the witness who needs confirmation, and must
strengthen the court’s belief that the witness was telling the truth on the
disputed issue. See R. v. Kehler [2004] 1 S.C.R. 328; R. v. Khela [2009]
1 S.C.R. 104.

[104]     The
plaintiff also testified that she encountered loose material on the road, which
caused her to skid and lose control of her motorcycle after she applied her
brakes. But in my view, the plaintiff did not give any trial testimony that confirms
the defendant Martin’s evidence that he skidded on loose material on the
roadway. She did not say that she saw any gravel on the road ahead, nor did she
testify that she saw her husband’s motorcycle skid. In any event, I am not
prepared to accept the plaintiff’s evidence that she encountered gravel in her
path of travel, without confirmation; and I do not think the evidence given by
either of these two witnesses can confirm the other’s evidence. Moreover, I
have a concern as to whether her evidence is independent of Mr. Martin’s
evidence (even assuming the evidence of one was capable of confirming the
other’s evidence).

[105]     Sarah Braithwaite,
who was one of the attending paramedics and who was an experienced motorcycle
rider, testified that she saw loose material (gravel and dirt) scattered on
Interurban Road, in the vicinity of the Alan Road intersection, some of it
being in the northbound lane. But there is nothing to connect her evidence to
the location where the defendant Martin claims to have skidded on loose
material. In my opinion, the evidence of Ms. Braithwaite is not capable of
supporting the inference that there was loose material in the northbound lane
of Interurban Road, at the place where the defendant Martin says that his
motorcycle skidded. In my view, while her evidence is independent and I accept
it, Ms. Braithwaite’s testimony does not strengthen my belief in Mr. Martin’s
evidence, and so it does not confirm his evidence on this issue.

[106]     In my
opinion, there is no evidence which confirms the evidence of the defendant
Martin on the issue of whether there was loose material on the road which
caused his motorcycle to skid and to make him steer to his right across the
northbound lane, in order to regain control. I therefore do not accept his
evidence to that effect.

[107]     I will
next consider the plaintiff’s alternate position, namely, that the defendant
Martin deliberately steered across in front of the plaintiff’s motorcycle, in
order to avoid crashing into the back end of the stopped pickup truck. The
defendant Martin admits that he first saw the pickup truck at a distance of
about 100 yards ahead of him (i.e. about 91 metres). He testified (and it does
not appear to be in dispute) that he was then travelling at 50 kph. He
testified that he began to slow down by throttling down, not long after seeing
the pickup truck stopped ahead, and that when he was three or four motorcycle lengths
behind the pickup truck (i.e. 24 to 32 feet, or about 7.3 metres to 9.7 metres)
he applied his brakes. Mr. Martin does not claim to know what his speed
was, when he applied his brakes, only that it was slower than 50 kph.

[108]     From the
expert evidence and simple mathematical calculation, it is apparent that a
moving object which is travelling at one kph will travel 0.278 metre in one
second. If the defendant Martin was travelling at 40 kph at the time he applied
his brakes (which I consider the minimum estimate of his speed, in the
circumstances), then he would have been travelling 40 x 0.278 = 11.1 metres per
second. If the defendant Martin was 32 feet (i.e. 9.7 metres) from the back end
of the pickup truck when he applied the brakes (which is his own maximum
estimate), it is apparent that it would be very difficult, if not impossible,
for him to bring his motorcycle to a full stop behind the pickup truck. The
expert, David Hay testified that, under the Motor Vehicle Act
regulations, a motorcycle must be capable of stopping in 9.14 metres at a speed
of 32 kph (i.e. 8.9 metres per second). (The version of Regulation 5.02(1)(b)
that I read stated, in effect, that a motorcycle must be equipped with brakes
that can stop it in nine metres, at a speed of 30 kph, in ideal conditions.) But,
according to the defendant Martin’s own evidence, he would have had to stop his
motorcycle in 9.7 metres or less, and I have found that he was travelling at
least 40 kph when he applied the brakes. I conclude that he probably could
not have stopped his motorcycle, before reaching the back end of the pickup
truck.

[109]     I find
that a motorcycle driver who possessed reasonable driving skills and knowledge,
and who was exercising reasonable care for the safety of a following motorcycle
driver (i.e. the plaintiff) would have applied his brakes at a much greater
distance away from the pickup truck than Mr. Martin did, in this case. If Mr. Martin
had done this, then he would have been able to come to a safe stop, in the A
position, behind the pickup truck. In my judgment, his failure to do these
things was conduct which fell below the standard of care required of him by law.
That same negligent conduct made it necessary for him to steer around the
pickup truck, and in executing that manoeuvre, he cut in front of the
plaintiff’s motorcycle and created an unreasonable risk to her safety. I have
already found that this act of the defendant Martin was a cause of the
plaintiff’s loss of control, and was therefore a cause of the plaintiff’s
injury. I find that the plaintiff has established on a balance of probabilities
that she would not have lost control and been injured, “but for” the negligent
conduct of the defendant Martin. There is a substantial connection between her
injury and the negligent conduct of the defendant Martin. See Resurfice
Corp. v. Hanke [2007] 1 S.C.R. 333 at paragraphs 21 – 23.

[110]     Had I been
persuaded that the defendant Martin skidded on loose material on the roadway as
he claimed, I would nevertheless have found that he was negligent and that his
negligence was a cause of the plaintiff’s injury. As mentioned, Mr. Martin
testified that he saw loose material on the roadway ahead of him as he drove
toward the pickup truck, but did not slow down further in reaction to it,
because he did not think it would cause him any problem. I accept the evidence
of David Hay that a motorcycle driver who possessed reasonable skill and
knowledge “should know that gravel or sand on the roadway is a very dangerous
hazard for motorcycles and their rider.”  (See his report at page 5). I also
accept Mr. Hay’s evidence that “. . . a small sprinkling of sand or just a
handful of small gravel can easily cause a brake to lock” (page 5), “It doesn’t
take a large amount of sand or gravel to provide a difficult stopping scenario”
(page 6), “Sand or gravel on a roadway is dangerous to a motorcycle rider in
any amount” (page 6), and “Any sudden movement of the rider’s position on the
machine, a sudden application of the brakes, an abrupt upshift or downshift,
are all done at the risk of losing the available traction” (page 6).

[111]     If the
defendant Martin’s evidence was accepted on this point (i.e., that he saw loose
material on the road ahead of him, did nothing about it, and then skidded on
it), then he effectively admits that he made a serious error of judgment when
he concluded that the loose material on the roadway would not cause him any
problem and would not require him to take any steps to ensure that he could
travel over it safely. I find that a motorcycle driver who possessed reasonable
driving skills and knowledge and who was exercising reasonable care (for his
own safety and for the safety of a following motorcycle driver) would have
slowed down considerably, immediately upon seeing the loose material in his
path of travel on the roadway ahead. In my view, Mr. Martin’s admitted failure
to do this would be negligent in driving too fast for road conditions. Therefore,
even assuming that he did skid on loose material, it would have been his own
negligence that caused him to temporarily lose control of his motorcycle and to
steer in front of the plaintiff’s motorcycle. His conduct violated s. 144
of the Motor Vehicle Act, it was negligent, and it was a cause of the
plaintiff’s injury.

[112]     Counsel
for the plaintiff cross examined the defendant Martin about his previous
knowledge and experience in driving past the Alan Road intersection, with a
view to establishing that he ought to have known there was a risk that there
would be loose material on Interurban Road on the day of the accident. That
evidence had little significance, since Mr. Martin admitted seeing loose
material on the road ahead of him at the relevant time. I would also note that Mr. Martin
did not say in cross examination that he had, on any earlier occasion, skidded
on loose material, or even that he had slowed down or exercised special care,
when motorcycling through that area.

[113]     I find
that the plaintiff has proved all of the essential elements of liability for
negligence, against the defendant Martin.

Is the defendant MacNutt Enterprises Ltd. liable to the plaintiff in
negligence?

[114]     The
plaintiff alleges (and must prove) that the defendant MacNutt owed a duty of
care to her (and to all motorcyclists using Interurban Road). It is suggested
that this duty included the requirement that the defendant MacNutt take
reasonable care for the safety of motorcyclists using Interurban Road by taking
reasonable steps to clean sand, dirt and gravel off the surface of Interurban
Road in the vicinity of the Alan Road intersection, on a regular basis. It is
said that the failure to do this would create an unreasonable risk to the
safety of motorcyclists.

[115]     The
plaintiff must also prove that there was sand and gravel on Interurban Road in
the northbound lane of travel, at the place where she lost control of her
motorcycle; and that this loose material was in that location on Interurban
Road as a result of being tracked out onto Interurban Road by trucks travelling
along Alan Road onto Interurban Road after leaving MacNutt’s yard. The
plaintiff argues that it is not necessary for her to prove that the loose
material that was (allegedly) at the accident location was tracked out onto
Interurban Road by a truck or trucks owned by the defendant MacNutt. It is said
that the plaintiff need only prove that this loose material originated from the
tires of a truck or trucks that had visited the MacNutt yard.

[116]     The
plaintiff must further prove that the defendant MacNutt failed to clean off
Interurban Road in the area in question, within a reasonable time before the
accident occurred, and that this failure fell below the required standard of
care. (If the alleged duty of care existed, it seems obvious that the defendant
MacNutt did nothing to comply with it.)

[117]     Finally,
the plaintiff must prove that her injury was caused by this breach of the
standard of care (in that she lost control of her motorcycle as a result of
skidding on this loose material).

[118]     As
previously mentioned, the defendant MacNutt denies each of the above
allegations, and alleges that the plaintiff lost control of her motorcycle as a
result of her own negligence, or a combination of her own negligence and the
negligence of the defendant Martin.

[119]     In logic,
the plaintiff’s attempt to establish liability on the part of the defendant
MacNutt should begin with these two disputed fact issues:

a)    Was
there loose material (sand, dirt or gravel) on the surface of Interurban Road
in the northbound lane, at the place where the plaintiff lost control of her
motorcycle?

b)    If so, did the
presence of this loose material on the roadway cause the plaintiff to lose
control of her motorcycle?

[120]     As I have
already stated, the evidence of paramedic Sarah Braithwaite establishes that
there was loose material on Interurban Road, at and near the intersection of
Alan Road, some of which was in the northbound lane. But in my view, Ms. Braithwaite’s
evidence does not confirm the plaintiff’s evidence that there was loose
material on the roadway, at the place where she lost control of her motorcycle.
It is apparent that Ms. Braithwaite did not know where that loss of
control had occurred. The weight of the evidence indicates that the plaintiff
went down at a location approximately across from the “Bin Road” which connects
with the west side of Interurban Road, some distance to the south of the
intersection of Alan Road. William Kersch, the manager for the defendant
MacNutt’s operation located at the end of Alan Road, testified that the
distance between the Alan Road intersection and the Bin Road intersection was
60 to 90 feet. That evidence was not challenged. But the point at the Alan Road
intersection from which this distance was estimated, and the point where the
estimated distance of 60 to 90 feet ended at the Bin Road intersection, were
not identified. In any event, the distance was significant, and Sarah
Braithwaite did not clearly identify the location of loose material in the
northbound lane, as being across from or south of the Bin Road intersection.

[121]     The
evidence of Roger Adolf, the street sweeping machine operator for the District
of Saanich suffers from an even greater weakness. He testified that he had
seen debris on Interurban Road, including in the northbound lane, in the
vicinity of the Alan Road intersection, in the month of June 2005. Again, this
evidence is too imprecise to amount to confirmation of the plaintiff’s evidence.
The evidence of Joseph Ashton, who rode his bicycle through the area in
question on a regular basis, including in 2005, also fails to confirm the
plaintiff’s evidence.

[122]     The
defendant Martin did not claim to have seen loose material in the plaintiff’s
path of travel as they rode down the grade toward the pickup truck. His
description of the loose material on the road which he claims to have seen
after the accident, was generalized. He did not attempt to identify the
location in the northbound lane where the plaintiff had lost control of her
motorcycle, other than to imply that she was in, or near to, the C position. I
have already expressed my concern that these two witnesses are not entirely
independent from each other. But even assuming that they were, in my opinion, Mr. Martin’s
evidence does not provide confirmation of the plaintiff’s evidence that she
encountered loose material on the road when she applied her brakes, or her
evidence that this loose material caused the rear wheel of her motorcycle to
skid, resulting in her loss of control.

[123]     I am not
persuaded that the plaintiff’s evidence on this issue should be accepted. As a
consequence, I am not satisfied that it has been proved that there was loose
material on the road at the place where the plaintiff applied her brakes. It
follows that the plaintiff has failed to prove that the rear wheel of her
motorcycle skidded on loose material when she applied her brakes, which caused
her to lose control of her motorcycle.

[124]     If I had
found that there was loose material on the road and that it caused the
plaintiff to lose control of her motorcycle, I would nevertheless have found
that the plaintiff’s case against the defendant MacNutt failed. First, I am not
satisfied that it has been proved on the balance of probabilities that the
defendant MacNutt owed a duty of care to the plaintiff, to keep Interurban Road
reasonably clear of loose material, in the vicinity of the Alan Road
intersection. By the end of the trial, the plaintiff no longer was alleging
that the loose material on Interurban Road originated from the MacNutt yard or
that it had fallen out of the boxes of large trucks coming out of the MacNutt
yard. By then, the plaintiff was alleging (in accordance with the evidence) that
the loose material had been picked up by the tires of trucks while travelling east
along Alan Road, and had then been tracked out onto Interurban Road where it
fell off the truck tires.

[125]     The
evidence establishes that Alan Road is a Municipal Road for which the District
of Saanich appears to have responsibility to maintain, by law. The evidence
also showed that for at least the past three years, the District of Saanich has
been sending its street sweeping machine to the intersection of Interurban Road
and Alan Road about every two weeks, on a regular basis, to sweep the debris
off Interurban Road, in that vicinity. The evidence also proved that Saanich
Bylaw Officer, James Carrigan handled a number of the numerous complaints
received by the District of Saanich over the years (several directed against
the defendant MacNutt, specifically) about loose material being on Interurban
Road in the vicinity of the Alan Road intersection. Mr. Carrigan testified
that, on a few occasions he responded to such complaints by asking the people
at MacNutt Enterprises Ltd. to clean off the road. He said that MacNutt did
clean up the road in response to his request on March 25, 2008, and
may have done so on April 1, 2008 (the number of requests he made was
unclear, but may have been limited to two occasions). Mr. Carrigan agreed
that MacNutt Enterprises Ltd. had been asking the District of Saanich to pave
Alan Road for a considerable length of time, but that this had not been done.

[126]     On his
examination for discovery on January 12, 2009, William Kersch gave
the following evidence, which was read in as part of the plaintiff’s case:

260      Q         Isn’t it correct that it’s MacNutt’s
responsibility to keep the road works around its work yard clean?

 A          Yes.

[127]     In my
opinion, the admission made by Mr. Kersch does not amount to an admission
that MacNutt bears responsibility for keeping Interurban Road clean, in the
vicinity of the Alan Road intersection.

[128]     From the
evidence given by Mr. Kersch and by way of the statement of John MacNutt
(Exhibit 1, Tab 2) I find that, in June 2005, on each day except Sundays, approximately
100 trucks went into the MacNutt yard, and came back out to Interurban Road by
way of Alan Road; and that 20 to 30 of those trucks were owned and operated by
the defendant MacNutt. I also find that, whenever Alan Road was muddy, these
trucks would pick up sand, mud and small gravel in their tires, and track this
material out onto Interurban Road for a distance of about 50 to 60 feet before
it all fell off the tires.

[129]     The
evidence clearly supports the inference that the owners and employees of the
defendant MacNutt knew that sand, mud and small gravel was being tracked out
from Alan Road onto Interurban Road by trucks leaving its yard. As a matter of
common sense, I think that the defendant MacNutt ought to have known that the
presence of this loose material in the bicycle lanes on each side of Interurban
Road constituted a potential hazard for bicyclists travelling along Interurban
Road. I am not satisfied that the defendant MacNutt ought to have known that
loose material on the lanes of travel of Interurban Road, at the vicinity of
the Alan Road intersection, constituted a potential hazard for motorcycle
drivers travelling on Interurban Road. But even if they ought to have known
this, it is my opinion that the evidence fails to justify a finding that the
defendant MacNutt owed the alleged duty of care to motorcyclists travelling on
Interurban Road. If such a duty was owed by anyone, I think it was the District
of Saanich.

[130]     I did not
agree with the plaintiff’s submission that District of Saanich Bylaws 5576 and
7058 should be considered in determining the standard of care to be met by the
defendant MacNutt (in the event the other elements of liability had been
established).

[131]     In the
result, my opinion is that even if there was loose material on the northbound
lane of Interurban Road at the place where the plaintiff lost control of her
motorcycle, the failure of the defendant MacNutt to have cleaned off the road
at that location was not negligent in that it had no duty in law to do this.

[132]     The
plaintiff faced yet another hurdle in her claim against the defendant MacNutt.
Counsel for the plaintiff acknowledged that the plaintiff could not prove that
the loose material which allegedly caused her to lose control of her motorcycle
was tracked out on to Interurban Road by a truck or trucks owned and operated
by the defendant MacNutt. But counsel for the plaintiff submitted that any loose
material that may have been on Interurban Road at the location where the
accident occurred, probably originated from either a truck owned and operated
by the defendant MacNutt, or by other trucks (not owned or operated by the
defendant MacNutt) which had visited the MacNutt yard on Alan Road and then
exited via Alan Road on to Interurban Road. That argument seems strong to me,
and I accept it and make that finding. However, the plaintiff further submitted
that it was unnecessary for the plaintiff to prove that the loose material
would not have been on the road “but for” the negligent act or omission of the
defendant MacNutt. It was argued that the court should apply the “material
contribution” test as described in Resurface Corp. v. Hanke at
paragraphs 24 to 28.

[133]     In my
view, this argument could not be properly advanced, unless it was shown that the
drivers of trucks other than trucks owned by the defendant MacNutt also had the
legal obligation to clean off the debris carried by their vehicles from Alan Road
on to Interurban Road. In other words, I think it would have to be shown that
all drivers of vehicles which tracked loose material from Alan Road out on to
Interurban Road, owed the duty of care being alleged by the plaintiff. The
evidence cannot support such an inference.

[134]     Without
such a duty of care being owed by all such vehicle drivers (not just drivers
employed by the defendant MacNutt), I do not see how the plaintiff could rely
on the “material contribution” test. As stated at paragraph 27 of Resurface
Corp. v. Hanke, if the plaintiff’s injury must have been caused by one of
two possible sources but the offending source cannot be identified, (such as in
Cook v. Lewis), it is necessary for the plaintiff to prove that both
potential sources must have been negligent.

[135]     The Court
of Appeal recently discussed the limited circumstances in which the material
contribution test can be applied, in Clements v. Clements 2010 BCCA 581.
That case involved a motorcycle accident in which the plaintiff was attempting to
prove that the defendant lost control of his motorcycle (on which the plaintiff
was riding as a passenger) as a result of his own negligence. The defendant had
lost control of his motorcycle after his rear tire had blown out at high speed,
causing instability and weaving. The defendant eventually lost control of the
motorcycle and it went down, causing injury to the plaintiff. The plaintiff alleged
that the defendant would have been able to recover from the weave instability,
had he not been travelling at an excessive speed, on an overloaded motorcycle.
The trial judge found that it was not scientifically possible to determine
whether excessive speed and overloading (which were found to be negligent) had
been a cause of the defendant’s inability to recover control of his motorcycle
and thus concluded that the “but for” test had not been met. But the trial
judge then applied the material contribution test, and held that the plaintiff
had proved causation in accordance with that test. The Court of Appeal held
that the trial judge erred in deciding that the material contribution test
should be applied. It was not sufficient for the plaintiff to say that due to
the current limits of scientific knowledge, it was impossible for her to meet
the “but for” test. See paragraphs 43 to 63 for a full discussion of this issue
by the Court of Appeal. The Court of Appeal dismissed the plaintiff’s action.

[136]     The court
confirmed that cases will be rare, and will require special circumstances,
before the “material contribution” test can apply; and that “the
material-contribution test is available only when a denial of liability under
the but-for test would offend basic notions of fairness and justice. . . .” 
(See paragraph 63)

[137]     Applying
the law set out in these leading authorities to the facts of this case, it is
my opinion that the material-contribution test cannot be invoked by the
plaintiff.

[138]     For the
reasons I have described, it is my opinion that the plaintiff’s action as
against the defendant MacNutt Enterprises Ltd. should be dismissed, and I so
order.

Was the negligence of the plaintiff a contributing cause of her injury?

[139]     I have
found that the negligence of the defendant Martin caused the plaintiff to lose
control of her motorcycle (which caused her to go down and be injured). But the
defendant Martin alleges that the negligence of the plaintiff was also a cause
of her losing control of her motorcycle. He bears the onus of proving
contributory negligence on the part of the plaintiff.

[140]     In law,
the drivers of all motor vehicles owe a duty of care to other persons using the
highway. This duty requires drivers to take reasonable care not to cause injury
to those other persons. But in addition, all users of the highway are required
by law to take reasonable care for their own safety. A finding of contributory
negligence on the part of a plaintiff driver represents the conclusion that the
plaintiff failed to exercise that degree of care for his or her own safety,
which would have been exercised by an objectively reasonable driver in the same
circumstances. That is the standard of care by which the plaintiff’s conduct
must be measured, in this case.

[141]     The
defendant Martin alleges that the driving conduct of the plaintiff fell below
the standard of care that a reasonable motorcycle driver would have exercised
if he or she was facing the same circumstances that were faced by the
plaintiff.

[142]     In
particular, the defendant Martin alleges that the plaintiff failed to reduce
her speed in a timely way and failed to reduce her speed to a sufficient extent,
as she drove her motorcycle down the hill toward the stopped pickup truck. It
is alleged that, as a consequence, the plaintiff was following too closely
behind the defendant Martin’s motorcycle when he steered across into her path
of travel. It is further contended that this negligent driving by the plaintiff
made it necessary for her to attempt emergency evasive actions and that it was
these actions which caused the plaintiff to lose control of her motorcycle and
go down onto the road.

[143]     The
substance of these allegations is that the plaintiff should have been further
behind the defendant Martin, and travelling at a slower speed than she was; and
that if she had been doing those things, she could have easily maintained
control of her motorcycle, regardless of the defendant Martin’s negligent
actions. The defendant Martin relies on ss. 144 and 162(1) of the Motor
Vehicle Act.

[144]     The
plaintiff’s reply to these allegations is that she was travelling behind the
defendant Martin at a safe distance and at a safe speed, when he steered into
her path of travel, suddenly and without warning.

Law

[145]    
The requirement to keep a proper lookout is codified in s. 144(1)
of the Motor Vehicle Act, which states in part:

144(1)  A person must not drive a motor vehicle on a highway

a)    
Without due care and attention . . . .

[146]    
Section 144 also provides, in subsection (c), that:

A person must not drive a motor vehicle on a highway

. . .

c)  at a speed that is excessive
relative to the road, traffic, visibility or weather conditions.

[147]    
Section 162(1) of the Motor Vehicle Act
states:

162  (1) A driver of a
vehicle must not cause or permit the vehicle to follow another vehicle more
closely than is reasonable and prudent, having due regard for the speed of the
vehicles and the amount and nature of traffic on and the condition of the
highway.

[148]     By reason
of s. 194(4) of the Motor Vehicle Act, it is not unlawful for two
motorcycle drivers to ride side-by-side in the same traffic lane. I accept that
it is permissible and common practice among motorcycle riders to ride in their
lane of travel in the A position and C position, and then come to a stop at
approximately the same time, side-by-side. But in my view, s. 194(4) does
not operate for or against the plaintiff in this case.

[149]     With
respect to the principles that should be applied in determining whether a
violation of s. 144 and s. 162(1) of the Motor Vehicle Act has
been committed, I found the reasoning of Madam Justice Baker in Pryndik v.
Manju 2001 BCSC 502 and of Mr. Justice Edwards in Rudman v.
Hollander 2005 BCSC 1342, to be of assistance. The general principle
appears to be that, if one motor vehicle is following behind another vehicle
travelling in the same direction, and in the same lane of travel, the driver of
the following vehicle must maintain a safe distance between his or her vehicle,
and the vehicle ahead, having regard to the speed of both vehicles and other
relevant prevailing conditions. The following driver must also keep a proper
and careful lookout, at all times, and be aware of the speed of her vehicle and
the speed and the distance away of the vehicle ahead.

[150]     I do not
accept the plaintiff’s submission that the situation should be treated as being
analogous to two motor vehicles travelling in the same direction, but in
separate lanes of travel (as was the case in Cue v. Breitkreuz 2010 BCSC
617). Both motorcycles were travelling in the same and only northbound lane,
and both were equally subject to any potential risks presented by motor
vehicles that were ahead of them in that same lane. I accept that the plaintiff
did not expect that her husband would suddenly steer across the lane in front
of her, but as a following motorcycle driver she was required by s. 162(1)
not to follow the lead motorcycle more closely than was reasonable and prudent,
having regard for the speeds of the two motorcycles and the stopped pickup
truck ahead of them.

[151]     Nor can
the plaintiff reasonably argue that the situation is analogous to the situation
where the defendant Martin was riding directly in front of her (i.e., not in
the staggered A position) and then braked to a sudden stop in front of her when
she had every reason to expect him to keep driving ahead, at the same speed.
The case of Ayers v. Singh [1995] B.C.J. No. 2842 cited by the
plaintiff on this issue is distinguishable and of no assistance to the
plaintiff, because the lead driver, who was entering an intersection on a green
light, suddenly stopped before entering the intersection, creating a hazard for
following drivers that could not reasonably be foreseen. Here, of course, the
defendant Martin did not stop.

Discussion

[152]     On the
whole of the evidence, I find that the plaintiff was traveling at a distance of
about 15 feet (4.56 metres) behind the defendant Martin, when he steered across
the lane into her path of travel. The plaintiff testified that she had slowed
down from her original 45 kph to a speed that was somewhere between 20 kph and
40 kph. Since she had also testified that she had closed the gap between her
and the defendant Martin’s motorcycle from four lengths to two lengths by the
time he swerved in front of her, I find that the plaintiff was travelling at a
speed of at least 40 kph, at that time.

[153]     I accept
the plaintiff’s evidence that she believed it was necessary in those
circumstances, for her to take immediate evasive action and that she did so, by
steering to her right and applying her brakes fairly forcefully. I do not
accept the defendant Martin’s evidence that the plaintiff took emergency action
too soon and was already in the process of losing control of her motorcycle,
before he ever got across the lane into her path of travel.

[154]     It seems
obvious that, if the defendant Martin was two motorcycle lengths ahead when he
cut sharply to his right, across the northbound lane, the front-to-back
distance between the two vehicles would be reduced very quickly (because the
defendant Martin was travelling almost sideways, whereas the plaintiff was
travelling straight ahead.) In my view, it would be a natural reaction to her
husband’s manoeuvre for the plaintiff to immediately steer to her right and
forcefully apply her brakes. I do not think she could be expected to make nice
estimates of whether the defendant Martin would be able to straighten out his
motorcycle in time to stay ahead of her so as to make it unnecessary for her to
steer sharply to the right and to apply her brakes forcefully. See Tubbs v.
O’Donovan (1997), 43 B.C.L.R. (3d) 381 (C.A.). I do not accept the
defendant Martin’s submission that the plaintiff acted prematurely or that her
evasive actions were excessive in the circumstances. But it seems obvious that,
if she had been further behind her husband, and travelling more slowly, such
drastic emergency measures would not have been necessary.

[155]     I accept
the expert evidence of David Hay and Grant Harper. Their evidence is relevant
to the issue of whether the plaintiff was contributorily negligent.

[156]     The
plaintiff testified she believed that, if she did not steer sharply to her
right and forcefully apply her brakes, she would have ran into her husband’s
motorcycle. I accept that evidence of the plaintiff. But her evidence in that
respect comes close to being an admission that she was following her husband’s
motorcycle more closely than was reasonable and prudent, in the circumstances that
prevailed. That conclusion is also supported by the expert evidence.

[157]     A moving
object which is travelling at 1 kph will travel 0.278 metre in one second. At
40 kph, the plaintiff was travelling at 40 x 0.278 = 11.1 metres per second.
The reaction time of a motorcycle driver is about 1.5 seconds, according to
Grant Harper, and I accept that this reaction time should be applied to the
plaintiff. In the time it would take the plaintiff to react after perceiving
the movement of her husband’s motorcycle into her path of travel, she would
have already travelled further than the distance which had initially separated
them. I infer that a collision was only avoided by Mr. Martin
straightening out and driving forward, and by the plaintiff’s evasive actions.

[158]     One of the
things said by Mr. Hay on cross examination by counsel for the defendant
MacNutt was that a motorcycle rider should stay far enough behind other
vehicles so that he or she can manoeuvre or come to a stop safely, no matter
what happens. Mr. Hay also confirmed the importance of a motorcycle driver
being aware of his or her surroundings, and keeping a careful lookout so as to
know what is coming up on the road ahead. Mr. Hay also agreed that, when
two motorcycles are travelling together in the staggered A and C positions, the
driver in the C position should maintain a distance behind the lead driver
which is equivalent to the distance that would be travelled in one second at
the prevailing speed of the two motorcycles.

[159]     Here, the
two motorcycles were each travelling at about 40 kph, which translates to 11.1
metres in one second. The plaintiff was only about 4.56 metres behind her
husband, and so she was clearly in breach of the one-second rule.

[160]     I must
consider the plaintiff’s driving conduct in relation to the stopped truck. When
he swerved to the right, the defendant Martin was 24 to 32 feet (i.e., 7.3 to
9.7 metres) away from the pickup truck. Even accepting the plaintiff’s evidence
that she was then 14 to 16 feet (4.25 to 4.86 metres) further away from the
pickup truck, she would still have been only 11.55 to 14.56 metres away from
the back of the pickup truck.

[161]     The
plaintiff testified that the reason she put on her brakes was to avoid crashing
into her husband’s motorcycle. She did not say when she would have applied the
brakes, in order to stop behind the pickup truck. But if she waited one more
second, she would have travelled another 11 metres and would have at best only
a few metres left within which to stop. In my opinion, the plaintiff’s own
conduct contradicts her evidence that she had always intended to come to a stop
behind the back end of the pickup truck and that she was in the process of
doing so when confronted with an emergency situation. I do not accept her
evidence to that effect. I do not accept the plaintiff’s contention that, if
her husband had not cut in front of her, she would have had sufficient time and
distance to come to a safe stop behind the truck.

[162]     I am
satisfied that the plaintiff failed to take reasonable care for her own safety,
in several respects. In my opinion, a motorcycle driver who possessed reasonable
driving skills and who was exercising reasonable care for her own safety would
not have been travelling in the C position only two motorcycle lengths behind a
lead motorcycle in the A position, at a speed of 40 kph, when both riders were
approaching the back end of a stopped pickup truck and when she was not more
than 14.56 metres away from that truck (and when the lead motorcycle driver in
the A position was closer to that truck and travelling at least as fast as she
was).

[163]     I find
that when the defendant Martin steered in front of her, the plaintiff was
driving without due care and attention and at a speed that was excessive
relative to the road and traffic conditions, in relation to both her husband’s
motorcycle and the stopped truck. That conduct was contrary to s. 144(1)
of the Motor Vehicle Act and also constituted negligence.

[164]     I find
also that, at the time the defendant Martin steered in front of her, the
plaintiff was following the defendant Martin’s motorcycle more closely than was
reasonable and prudent, having due regard for the speeds of the two motorcycles
and the presence of the stopped pickup truck ahead of them. That conduct was
contrary to s. 162(1) of the Motor Vehicle Act. I find that this
conduct also constituted negligence on the part of the plaintiff.

[165]     I am also
satisfied that this driving conduct of the plaintiff in breach of the standard
of care, was a cause of her losing control of her motorcycle. She put herself
into a situation where the defendant Martin (before he swerved) was a potential
hazard to her, and the stopped pickup truck was an actual hazard to her safety.
If she had been travelling at a slower speed and at a greater distance behind
the defendant Martin, and if she had slowed her motorcycle down sooner than she
did, the plaintiff could have safely avoided the defendant Martin’s motorcycle
and could have safely stopped behind the pickup truck. As it was, the
plaintiff’s own negligent driving made it necessary for her to take emergency
evasive action, which should not have been necessary. Taking that evasive
action caused the plaintiff to lose control of her motorcycle, which resulted
in her injury. I find that there was a substantial connection between the
negligent driving of the plaintiff, and her injury. In my opinion, the evidence
establishes on the balance of probabilities that the plaintiff was contributorily
negligent.

How should liability be apportioned between the defendant Martin and the
Plaintiff?

[166]     The Negligence
Act requires the court to determine the degree to which each of the
defendant Martin and the plaintiff was at fault for the plaintiff’s injury; to
express the degree to which each person was at fault as a percentage of the
total fault; and to apportion liability accordingly. If the court is unable to
establish different degrees of fault, the liability must be apportioned
equally.

[167]     In my
opinion, the defendant Martin must bear the greater share of the fault for the
plaintiff’s injury. I say that for several reasons. First, he had far greater
experience as a motorcycle driver than did the plaintiff. He should have slowed
down much sooner than he did, and to a much slower speed than he did. I think
it is a reasonable inference that, if he had done this, the plaintiff would
have followed his lead and done those same things.

[168]     Second, if
the defendant Martin had not steered across in front of the plaintiff, it seems
to be a reasonable inference that she would have been able to avoid colliding
with the pickup truck without losing control of her motorcycle, by driving past
it on the passenger side. Instead, the defendant Martin took advantage of that
escape route and in the process of doing so, he caused the plaintiff to lose
control of her motorcycle.

[169]     In my
opinion, the plaintiff’s negligence contributed to her loss of control to a
considerable degree. I would assess 70% fault against the defendant Martin and
30% fault against the plaintiff. Liability is apportioned accordingly. The
plaintiff will be entitled to recover 70% of her damages as against the
defendant Martin.

Costs

[170]     The
parties did not address costs at the trial. It seems clear that the defendant
MacNutt Enterprises Ltd. should have its costs, but there may be some issue as
to who should pay those costs.

[171]     As between
the plaintiff and the defendant Martin, Section 3 of the Negligence Act
provides that the plaintiff should recover 70% of her costs, and the defendant
Martin should recover 30%, of his costs, unless the court otherwise orders.

[172]    
If the parties are unable to settle the issue of costs, the matter may
be spoken to on a mutually convenient date, by contacting the trial scheduling
manager. That process should be initiated within 14 days of the filing of these
reasons.

“Mr. Justice D.A. Halfyard”