IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130227

Docket: 45316

Registry:
Kamloops

Between:

Rui
Xiang (Tony) Shao

Plaintiff

And

Stuart
Jerald Swanson, Maowen Li, Haiping Huang,
Prairie View Holdings Ltd. and Budgetcar Inc.

Defendants

Before:
The Honourable Mr. Justice Meiklem
in Chambers

Reasons for Judgment

[1]            
This is an action for damages for personal injuries sustained in a motor
vehicle accident on May 3, 2009. The action is set for trial for five days
commencing June 17, 2013. In this application, the plaintiff seeks to have the
question of liability determined summarily and submits that on the evidence, the
defendant, Stuart Jerald Swanson (“Swanson”), is solely responsible for the
accident.

[2]            
The issues raised by the defendant, Swanson’s, opposition are whether it
is appropriate in this case to sever the liability issue from the assessment of
damages, whether the liability issue is suitable for a determination by summary
trial, and whether the evidence adduced establishes Swanson’s liability.

[3]            
As foreshadowed by my remarks at the end of the hearing, I find in the
plaintiff’s favour on all three issues.

[4]            
The following narrative emerges from the evidence comprised of photographs
and the plaintiff’s affidavit and the examinations for discovery of the
defendants, Maowen Li (“Li”) and Swanson.

[5]            
The plaintiff, Mr. Shao, was a seat-belt restrained passenger asleep in
the second row bench seat of a full-sized Ford Econoline van owned by the
defendant, Prairie View Holdings Ltd., rented by the defendant, Haiping Huang
(“Huang”), and driven by the defendant, Li, at the time of the accident. This
vehicle was struck very forcefully from the rear by a 1999 Ford pickup truck
owned and driven by the defendant, Swanson, while both vehicles were southbound
on the divided four-lane Highway No. 5, south of Merritt, British Columbia. The
collision occurred in daylight hours in bright, sunny conditions, and the
highway was bare and dry.

[6]            
Following the collision, the Swanson vehicle breached the no-post
concrete barrier on the right hand side of the highway and rolled down a steep
slope, coming to rest 50 to 60 metres from the roadway. The van driven by Li
zig-zagged and stuck the concrete barrier on the left side of the two-lane
southbound portion of the highway, but came to rest in the right hand lane.

[7]            
There was a passenger in the Swanson vehicle, but he was also asleep.
Both vehicles had started journeys from Calgary, Alberta, approximately eight
hours earlier on the day of the accident. Mr. Shao had driven the van from
Calgary to Kamloops, where Li took over the driving. Mr. Swanson had driven the
entire distance.

[8]            
Mr. Shao is unable to provide any evidence as to what occurred prior to
him being awakened by the sound of the collision at the rear of the van.
Swanson did not present any evidence by way of affidavit on this application.
He was examined for discovery on July 4, 2012 and stated under oath that he had
no recollection of the collision or of seeing or driving through the no-post
barrier. All he remembered was “the sky and the dark and the sky and the dark,
and then everything stopped.” He testified that his truck was in good
mechanical condition. He said he was tired, had driven the entire distance from
Calgary, had been partying the previous evening, drinking and using
non-prescription illicit drugs, including methamphetamine, ecstacy, coacine and
marihuana. When asked if he had “any explanation for what happened in terms of
your loss of control,” he replied “lack of sleep, fell asleep?” The next
question asked was “Are you guessing there? Is that a possibility?” he
responded “I was tired. That’s why I stopped and got a coffee in Merritt.”

[9]            
The defendant, Li, was also examined for discovery on July 4, 2012. His
recollections were refreshed by several questions asking if his post-accident
written account given to Budget Rent-a-Car was accurate. He recalled his
vehicle being struck from behind with a very strong force, while in the right
hand lane travelling about 80 kph. He “jumped out from” his seat, the van moved
to the right and then, as he held “very tight to the steering wheel,” it
zig-zagged, and after several zig-zags, the left front tire struck the centre
median barrier and the van came to rest where depicted in a photograph shown to
him. Li said he had not attempted to pass any vehicle in front of him in the
right hand lane.

[10]        
The photographs in evidence show skid marks clearly made by the van
after the left front tire was flattened. The photographs in evidence are
consistent with Li’s recollection of events, and Mr. Shao deposes that “I
observed Mr. Li attempt to regain control of the van, but as he continued down
the highway, the van struck a centre barrier on the front left side.” Following
this second impact, the van continued down the highway coming to stop some
distance from the first point of impact.

[11]        
On the question of severance of the liability and quantum issues, it is
to be noted that there is no stand-alone application to sever the trial of
these issues. Apparently all parties initially agreed that a summary trial of
the liability issue was appropriate, but Mr. Horne’s instructions were
subsequently changed.

[12]        
The affidavit of bodily injury adjuster, Michelle Carver, sets out some
of the factors relevant to her new instructions to counsel as follows:

a)    The RCMP
photographs appear to show skid marks from the defendant, Swanson’s, pickup
truck originating in the left lane;

b)    The defendant,
Li, provided a statement to the RCMP at the scene of the accident;

c)     The RCMP
took statements from the driver and passenger of a Volkswagon van, Sebastian
Kallos and Simon Woods; and

d)   
The evidence of the defendant, Li, Mr. Kallos and Mr. Woods is not
consistent.

[13]        
These stated factors relate to the issue of suitability for a summary
trial, rather than to the issue of severance itself. Ms. Carver’s comments on
the photographs the RCMP apparently have are either single or double hearsay
and inadmissible as evidence on the summary trial issue. Ms. Carver does not
state whether the opinion of inconsistencies of statements is her opinion or
someone else’s, nor does she state what the alleged inconsistencies relate to,
or whether all these statements are inconsistent with one another or if one is
inconsistent with the other two.

[14]        
Ms. Carver’s affidavit is a completely unacceptable means of presenting allegedly
conflicting evidence. These was no explanation tendered as to why the
potentially probative RCMP photographs and the police statements of the
defendant Li, and potential witnesses, Kallos and Woods, were not provided
directly to the court to enable the court to assess the existence and
significance of any inconsistencies.

[15]        
The following comments of Newbury J.A. in Everest Canadian Properties
Ltd. v. Mallmann, 2008 BCCA 275 are applicable here:

[34] It is trite law that
where an application for summary determination under Rule 18A is set down, the
parties are obliged to take every reasonable step to put themselves in the best
position possible. As this court noted in Anglo Canadian Shipping Co. v. Pulp,
Paper & Woodworkers of Canada, Local 8 (1988), 27 B.C.L.R. (2d) 378 at
382, a party cannot, by failing to take such steps, frustrate the benefits of
the summary trial process. Where the application is brought by a plaintiff, the
defendant may not simply insist on a full trial in hopes that with the benefit
of viva voce evidence, ‘something might turn up’: see Hamilton v.
Sutherland (1992), 68 B.C.L.R. (2d) 115, [1992] 5 W.W.R. 151 (B.C.C.A.) at
paras. 66-7. The same is true of a plaintiff where the defence has brought the
R.18A motion. In this instance, it was not realistic for Everest to hope that
the Court at the summary trial would of its own volition decline to proceed
because it was being asked to determine issues of dishonesty, or because the
possibility of certain viva voce evidence had been discussed in a
different context.

[16]        
Quite apart from the fact that Ms. Carver’s hearsay opinion (or her relaying
of someone else’s opinion) is inadmissible on this application, Li’s evidence
of where his vehicle was at the time of the rear-end collision is not
necessarily refuted by the fact (if it could be established) that skid marks
from the defendant Swanson’s, vehicle appear in the left lane. The Swanson
vehicle may also have entered that lane following the collision and prior to
veering off the road to the right.

[17]        
Notwithstanding the dearth of any further evidence that can be presented
on the liability issue, plaintiff’s counsel estimates that a viva voce
trial of that issue on the known evidence would consume up to four days of
trial. The witnesses to be called on that issue that would not be necessary for
the assessment of damages include Mr. Li (now a resident of China), Mr. Swanson,
Mr. Tennant (Swanson’s passenger), several RCMP officers, tow truck drivers,
ambulance attendants, emergency room doctors and nurses, and presumably Mr.
Kallos and Mr. Woods.

[18]        
Plaintiff’s counsel estimates that at least three days are required for
quantum assessment and suggests that there is a likelihood the trial date will
be lost if liability is not resolved by this application. The accident was
nearly four years ago and further delay is prejudicial to the plaintiff and
contrary to one of the main objections of the Supreme Court Civil Rules.

[19]        
I am satisfied that there will be considerable savings in time and
expense to all parties by deciding the liability issue summarily and
separately, and that all the probative relevant evidence on that issue is
before the court. Notwithstanding the adjuster’s comment that the possibility
of seeking a reconstruction expert has been referred to counsel, that does not
appear to be likely at this late date considering the dearth of empirical data.
Counsel did not suggest otherwise.

[20]        
I find the issue is capable of being determined on summary trial and, on
the evidence before me, the plaintiff has established a prima facie case
of negligence against Swanson. This casts an onus on the defendant, Swanson, to
provide an explanation of how this collision could have occurred without
negligence on his part: Spiering v. Trevor, 2012 BCSC 1653 and the cases
cited therein. No such explanation emerges from the evidence. I find that the
defendant, Swanson, is liable to the plaintiff for damages to be assessed at
trial.

[21]        
There is no prima facie case of negligence made out against the
defendant, Li, and the action against him is dismissed.

[22]        
The plaintiff is entitled to costs against the defendant Swanson,
payable forthwith.

[23]        
This is an appropriate case to order the defendant, Li’s, costs to be
paid directly by the defendant, Swanson, under Rule 14-1(18) of the Supreme
Court Civil Rules and I make that order.

“I.C. Meiklem J.”

MEIKLEM J.