IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121123

Docket: M44456

Registry:
Kamloops

Between:

Shawna Rae Brook

Plaintiff

And

Mona Ruth Tod as
executor of the estate of
James Francis Tod, deceased, and Kora Goodrick

Defendants

Before:
The Honourable Mr. Justice Affleck

Oral Reasons for Judgment

[1]            
THE COURT: On July 2, 2008, at about 8:30 in the morning, a
collision occurred on the Trans-Canada Highway at a location known as Kault
Hill near Salmon Arm between a Toyota Camry driven by James Francis Tod and a
Dodge pickup truck driven by Colin James Brook. Mr. Tod was killed in the
collision. The plaintiff was a passenger in the Dodge pickup driven by her
husband. In response to a notice to admit delivered by the plaintiff to the
defendant, Mona Ruth Tod, as executor of the estate of the late Mr. Tod and to
the defendant, Kora Goodrick, both those defendants admit that the accident
occurred as a result of one or both of their negligence and that they are, in
the language of the notice to admit, individually or jointly and severally 100
percent liable for the injuries and loss suffered by the plaintiff as a result
of the accident. By consent, the action has been dismissed against Mr. Brook
and he has been removed from the style of cause. The trial of liability as
between the remaining defendants was severed from the damage claim with that
assessment to be addressed at a later date. The hearing this week has been
conducted for the purpose of determining the respective degrees of fault of the
defendants.

[2]            
On July 2, 2008, Mr. Brook was travelling west on Highway Number 1 when
he approached a long downward incline for his direction of travel on Kault Hill.
Mr. Brook was travelling in the single westbound lane. There were two eastbound
lanes for traffic coming up the hill. The right lane for uphill traffic was for
slower vehicles and the left lane closest to the centre line was for the use of
vehicles overtaking those in the slower lane. The two uphill lanes were marked
with the typically painted broken line. The road surface was bare and in good
condition. The weather was bright and clear.

[3]            
As Mr. Brook arrived at the top of the hill looking west, the plaintiff
was sitting in the front passenger seat and their two young children were in
the back seats of the Dodge pickup. The plaintiff called Mr. Brook’s name to
get his attention and he was immediately alerted to several vehicles travelling
eastbound towards his vehicle. He described one vehicle in the slow uphill lane
as a red pickup truck with a camper and another smaller vehicle in the fast
lane adjacent to the red truck and a third vehicle, which he described as out
of control as it was turned partially to its right and was, in part, in the
westbound lane at about a 45-degree angle across that lane. Mr. Brook testified
that he could see most of the vehicle which was moving east in the westbound
lane, but its front end was partially obscured from his sight by the smaller
vehicle which Mr. Brook testified was in the fast lane. The vehicle which was
partially in the westbound lane was the Toyota driven by Mr. Tod. Mr. Brook
described the Toyota as giving off smoke from all four tires when he first saw
it.

[4]            
Mr. Brook’s recollection is probably in part incorrect. The
reconstruction of the accident using physical evidence of skid marks indicates
that the Toyota had first turned sharply to its left towards a concrete barrier
at the edge of the highway, which barrier would have been to Mr. Brook’s right
going down the hill and had then turned back to its right in what was described
as a yawing motion. In that motion, its tires would have begun to smoke. Mr.
Brook had not seen the initial swerve to the left. He first saw the Toyota when
it began to yaw back towards the centre of the highway.

[5]            
Mr. Brook had little time to react. From the moment he recognized the
danger until his collision with the Toyota, perhaps no more than about two
seconds elapsed. Mr. Brook’s vehicle was equipped with a crash data retrieval
system which supplied considerable information to those experts who have done
their best to reconstruct how the accident happened. On realizing the danger,
Mr. Brook braked and turned his vehicle to the left in the hope, as he put it
at the trial, to thread the needle between the approaching vehicles. It is not
certain why he believed this turn would be beneficial, but he cannot be faulted
given the negligible time available to react.

[6]            
The Toyota travelled across the westbound lane of travel while also
moving eastward and then yawed, which is a word used by Mr. Leggett, an
engineer, who gave expert evidence that the yaw means it was sliding partially
sideways. It yawed towards the centre line of the highway. Despite the efforts
of Mr. Brook and the efforts of Mr. Tod, the two vehicles collided essentially
head on, but at an angle. The front of both vehicles was heavily damaged. The
Dodge pickup was a much heavier and higher vehicle than the Toyota and the
latter suffered catastrophic damage which caused Mr. Tod’s death.

[7]            
At the trial, there was some dispute about the number of vehicles which
were travelling eastbound on Kault Hill as Mr. Brook’s vehicle began its
descent. There is no doubt there were at least three, but the defendant Ms.
Goodrick, gave evidence of a fourth vehicle which she could not identify.

[8]            
Ms. Goodrick testified that she left home that morning to drive to work.
She travelled east on the Trans-Canada Highway eventually driving up Kault Hill.
She described a camper van ahead of her in the slow lane and behind it another
vehicle which she could not describe by make or model. She thought it might
have been a light colour of a rather unspecified variety. She testified this
unknown vehicle turned into the fast lane and overtook the camper. She did not
see the unknown vehicle again.

[9]            
Ms. Goodrick testified that she decided to overtake the camper herself. She
gave a detailed description of checking her mirrors, doing a shoulder check,
and then activating her turn signal before beginning to move her vehicle to its
left to begin to overtake the camper. She gave some confusing evidence about
moving her vehicle from side to side within the slow lane, but I do not
attribute causal effects to this movement. Ms. Goodrick testified that at no
time while driving up Kault Hill before activating her turn signal to change
lanes to the left had she seen the Toyota in her mirrors or otherwise.

[10]        
After turning on her signal, she glanced to her left doing what is
called a shoulder check and, for the first time, saw the Toyota in the fast
lane. Its front bumper was adjacent to the area just forward of her left rear
wheel. This was described as her blind spot. Simultaneously with noticing the
Toyota, Ms. Goodrick said it made an abrupt swerve into the westbound lane of
travel. The expert, Mr. Leggett, said the physical evidence revealed an
eight-degree turn which he described as extreme and not a sign of inattention,
but an avoidance manoeuvre. Ms. Goodrick testified she saw the Toyota travel
across the westbound lane and then travel back towards the centre of the
highway. Ms. Goodrick did not see the collision which she testified was masked
from her view by the camper van. Ms. Goodrick testified that her car at no time
crossed over the broken line marking the change between the two eastbound
lanes.

[11]        
Ms. Goodrick stopped her vehicle beyond the accident scene and walked
back down the hill. She spoke to a woman who was present and also spoke to Mr.
Brook who was now out of his vehicle. Both of those witnesses gave evidence
that Ms. Goodrick acknowledged that she was responsible for the accident. Ms.
Goodrick denies she did so.

[12]        
Nancy Begin is the woman to whom Ms. Goodrick spoke when she walked back
down the hill. Ms. Begin was an eastbound driver who testified she arrived at
the accident scene immediately after the collision, which she did not see, just
before the two colliding vehicles had come to rest. Ms. Begin stopped her
vehicle and called 911 on her mobile phone. She requested ambulances and
remained on the phone with the 911 dispatcher for a few moments while she gave
information. Ms. Begin walked towards the Dodge pickup and saw it had occupants.
By that time, other drivers were arriving and began to help the occupants. Ms. Begin
intended to go to the Toyota to assist, but was dissuaded by a person who told
her not to do so and that the driver of the Toyota was dead. Mr. Tod had been
the only occupant of the Toyota.

[13]        
Very shortly after that, Ms. Goodrick walked up to Ms. Begin. Ms.
Goodrick acknowledges she was very upset and was crying. Ms. Begin described
Ms. Goodrick as hysterical. Ms. Begin’s evidence was that Ms. Goodrick said:

I think I caused the accident. I
pulled out to pass and I did not see the Toyota.

[14]        
Ms. Begin attempted to comfort Ms. Goodrick, but shortly thereafter
began to assist the passengers in the Dodge pickup including Brody Brook who
was then 18 months old. Ms. Begin carried Brody to attempt to calm him. Ms. Begin
spoke to a paramedic who had arrived and mentioned what Ms. Goodrick had said
to Ms. Begin about her involvement in the accident. The paramedic suggested Ms.
Begin wait to tell the police. By this time, it appears Ms. Goodrick had driven
away from the accident scene.

[15]        
In cross-examination, the transcript of a conversation within about two
hours of the accident between Ms. Begin and one of the police constables who
arrived at the scene of the accident was shown to Ms. Begin. In answer to a
request from the constable to, "Just tell me the circumstances," Ms. Begin
agrees she said the following:

Um, I pulled up and it had
happened in front of me, uh, a little while later I was out of my vehicle, um,
near the truck that was involved in the collision and a lady, a young lady in
her 20s, I would guess, um, was crying and I asked her if she was in the truck
and she said no, um, but she was sort of involved in the accident, um, she was
passing a vehicle and the — she pulled out and did not see the Toyota behind
her and it came flying up behind her so it — to avoid her swerving into the
oncoming lane and hit the truck.

[16]        
Also in cross-examination, a written statement which Ms. Begin acknowledged
was hers, dated November 16, 2011, was shown to her. She is recorded as saying
that:

Ms. Goodrick told me that she was
not in the accident, but thought she might have caused it. I tried to reassure
her that it would be all right. She then said something to the effect that she was
in the process of passing or about to pass and did not see the Toyota. I was
patting her back and calming her down. She was still very upset crying. I would
only have spoken to her for a few minutes. She did say she was on her way to
work.

[17]        
Counsel for Ms. Goodrick suggested to Ms. Begin that she had made
assumptions that may not conform with the actual events. Ms. Begin insisted she
had heard Ms. Goodrick acknowledge that she had not seen the Toyota before she
began to overtake the camper van. Later in her November 2011 statement, Ms. Begin
is recorded as saying, "When she," that is Ms. Goodrick:

…told me this, I came to my own
assumption as to how the accident happened. I assumed that the Toyota was also
going eastbound and was passing the young female’s vehicle in the fast lane
when she either pulled out or was in the process of pulling out in the fast
lane which made the Toyota go into the oncoming lane and hit the truck which
was heading west. I never saw what led up to the accident and, again, only made
those assumptions based on what the young female told me. Things were quite
chaotic at some point. I was helping with the young child from the truck. I was
holding the child and comforting him. I recall at some point speaking to
someone and mentioning about the young female, what she had told me. I think it
might have been a paramedic I mentioned it to. I said the young female had come
up to me and told me she might have caused the accident. Whoever this person
was told me that I should mention it to the police. By that time, the police
were at the scene, as well, and I approached a female officer. The reason I
wanted to speak to the officer is because I had noticed the young female was
gone and I wanted to let the officer know what she had told me. I thought the
young female had left the scene and did not speak to police before they arrived.
At the time I spoke to the police, at least one to two hours had passed. One of
the officers eventually had me sit in a police vehicle and she interviewed me. She
took a recorded statement.

[18]        
Mr. Brook testified that Ms. Goodrick also spoke to him at the accident
scene. He testified she told him that she had caused the accident. Mr. Brook
noticed that Ms. Goodrick was uninjured and he asked her, "You mean you
were in the other car?" to which Ms. Goodrick replied:

I did not see him coming and I
cut him off.

[19]        
An important question is whether Ms. Goodrick remained in her lane of
travel or whether she moved into the fast lane causing Mr. Tod to make a hard
swerve to his left into the westbound lane. Two pieces of evidence persuade me
that her car did intrude into the fast lane at least to some extent. The first
is the evidence of Mr. Brook that when he first saw the Toyota it was next to a
car in the fast lane close to the red camper van which was in the slow lane. This
could have been the unknown car described by Ms. Goodrick, but I do not accept
that it was. If there had been another car present which behaved as Ms. Goodrick
described, it had already overtaken the camper before Ms. Goodrick decided to
do the same thing.

[20]        
Furthermore, I am generally sceptical of Ms. Goodrick’s recollections. She
could say nothing to identify the unknown car in any useful way and her memory
of other detail was very poor except when she described checking her mirrors
and the precautions she took before turning on her signal indicator to move
into the fast lane. I conclude much of her evidence about these precautions was
a reconstruction. I do not say she was trying to mislead the court. She may by
now actually believe she can remember some of the details of her conduct
immediately before the collision. Unfortunately, the details she remembers are
those that now suit her once she has lost the spontaneity that prevailed
immediately after the accident.

[21]        
The second part of the evidence that persuades me Ms. Goodrick’s vehicle
at least intruded into the fast lane is her own statements to Ms. Begin and Mr.
Brook. I find she told Mr. Brook that she had not seen the Toyota and had cut
it off. That expression tells me that she recognized that she had moved into
the lane already occupied by Mr. Tod’s vehicle. I also find she told Ms. Begin
that she had pulled out to pass.

[22]        
There is a duty imposed on drivers by s. 151(a) of the Motor Vehicle
Act not to change lanes unless that movement can be safely made and without
affecting the travel of other vehicles. Even if that subsection did not exist,
the common law duty to take reasonable care to conduct oneself so as to avoid
injury to one’s neighbour would apply. I find Ms. Goodrick failed to take
reasonable care when she changed lanes.

[23]        
I will add that it was negligent on her part not to have seen Mr. Tod’s
vehicle earlier as she travelled up the hill. If she had been alert to his
presence, she could have avoided presenting the danger to him that led to his
evasive actions. I do not accept Mr. Tod’s presence in her blind spot excuses
her failure to see his car. She had a legal obligation to be aware of the
traffic near her.

[24]        
The question remains about Mr. Tod’s alleged negligence which may also
have caused the collision. It is urged on me by Mr. Hemmerling in a forceful
argument on behalf of Ms. Goodrick that the accident was solely the fault of
Mr. Tod who was driving in a manner which should be characterized as negligent.
I have rejected that argument, but that does not provide the answer to whether
Mr. Tod was also at fault. Mr. Hemmerling submits that Ms. Goodrick did not
drive into the fast lane at all. I have also rejected that argument.

[25]        
Nevertheless, Mr. Hemmerling submits that even if Ms. Goodrick appeared
to Mr. Tod to present a danger, there was no agony of collision with which Mr.
Tod was faced. It is said that all he had to do was to tap his brakes and his
car would then have fallen back behind that of Ms. Goodrick and no collision
would have occurred. Mr. Garner for the plaintiff submits that Mr. Tod ought
not to have turned into the oncoming westbound lane because to do so would be
certain to come to no good. Mr. Garner suggests that Mr. Tod ought to have
accepted there would be contact between his car and that of Ms. Goodrick and
the risks that would have arisen from that contact would be acceptable in
comparison to those that came from swerving to the left across the double solid
line into the westbound lane. Mr. Hemmerling reinforces his argument by
reference to s. 155 of the Motor Vehicle Act which requires a driver to
remain to the right of the double solid line as there was on Kault Hill and
across which Mr. Tod obviously veered.

[26]        
Mr. Tod’s counsel  stresses the law in relation to the agony of
collision which would exonerate Mr. Tod of mistakes which he made in an
emergency situation. In Van Zanten v. Bruhs, 1991 CanLII 1023 (BCSC),
Mr. Justice A.G. Mackinnon referred to Carswell’s Manual of Motor Vehicle
Law, Volume III, 3rd edition, at page 22, where there is a discussion of
agony of collision. These words are found:

In a number of cases concerning
what is commonly called ‘agony of the collision,’ it has been pointed out that
a driver acting in an emergency created by another vehicle or by some
extraneous fact cannot be expected to exercise nice judgment and prompt
decision, and mere errors of judgment in such circumstances may often be
excusable … Where an emergency arises, it is not necessary for a driver to
possess extraordinary skill, presence of mind, poise or self-control, and his
failure to act as an ordinary person in an emergency is not held to be
negligence. He is not necessarily required to adopt the most prudent course and
is entitled to a reasonable time, depending on the circumstances, to exercise
his judgment as to what steps should be taken to avoid a collision [citations
ommitted.]

[27]        
Counsel has submitted that it was Mr. Brook who faced the agony of
collision and yet his evasive efforts, although fruitless, have not been
characterized as negligence. On the other hand it is argued Mr. Tod had choices
available to him and his circumstances cannot be properly characterized as the
agony of collision. Notwithstanding the able arguments of Ms. Goodrick’s
counsel, I do not agree that Mr. Tod did not face an agonizing choice with no
time to make a considered decision. I have found Ms. Goodrick’s vehicle
intruded into the fast lane already occupied by Mr. Tod’s vehicle. She began
her lane change and simultaneously saw Mr. Tod’s vehicle overlapping hers by
several feet. It was not realistic to expect Mr. Tod to make an instantaneous
decision to accept a collision, no matter how minor it might in retrospect have
been, with Ms. Goodrick’s vehicle. In the negligible time available to Mr. Tod,
he cannot have been expected to weigh that fine calculation. It is true he
could have braked. One difficulty with that proposition is that it cannot be
now known if he both braked and swerved. What we do know from the evidence of
Mr. Leggett is that Mr. Tod was travelling at a safe speed. He did not create
the danger that caused him to react in the agony of the moment. If there had
been a collision between his car and Ms. Goodrick’s car, we cannot know if one
or both of those cars would have lost control leading to this accident.

[28]        
Mr. Garner for the plaintiff submits Mr. Tod had a higher standard of
care imposed on him because Ms. Goodrick’s car had an "N" plate on
the back indicating she was a novice driver. I doubt if the presence of that
letter on a car changes the standard of care of other drivers, but in any
event, Mr. Tod was driving with reasonable care before he was cut off by Ms.
Goodrick’s failure to see his car before beginning her lane change. It is not
open to this Court to criticize the agonizing choice made by Mr. Tod in the
last two or three seconds of his life as he attempted to avoid an accident
which I find was caused solely by the negligence of the defendant, Ms.
Goodrick.

[29]        
The action against Mr. Tod is dismissed.

[30]        
Is there anything else, counsel?

[SUBMISSIONS RE COSTS]

[31]        
THE COURT: What I wish to have happen is that this matter be dealt with
in writing. So I will hear counsel’s suggestions about the timing of submitting
written submissions. Mr. Garner, how long do you need to say whatever you want
to say?

[32]        
MR. GARNER: I can have something ready tomorrow — or Monday.

[33]        
THE COURT: Well, all right. Well, you, Mr. Garner, can deliver a written
submission by November 28 and, counsel for Mr. Tod, how long do you wish to
have to respond to make your own submissions?

[34]        
MR. MORIN: My Lord, one week following that.

[35]        
THE COURT: All right. That takes us to December 5 for your response and,
Mr. Moring, do you want more time than a week?

[36]        
MR. MORING: Both Mr. Hemmerling and I are in trial in the first week of
December, so —

[37]        
THE COURT: I do not think there is any rush about this, particularly, so
how much time do you want?  Do you want two weeks?

[38]        
MR. MORING: Yes, two weeks would be [indiscernible].

[39]        
THE COURT: 19th of December, is that acceptable?

[40]        
MR. MORING: Yes, thank you, My Lord.

[41]        
THE COURT: All right, and if there is any reply from Mr. Tod’s counsel,
that can be provided by the 24th —

[42]        
MR. MORIN: Thank you, My Lord.

[43]        
THE COURT: — on or before the 24th.

“Affleck J.”