IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130617

Docket: 35129

Registry:
Penticton

Between:

John David Holt

Plaintiff

And

Theodor Rother

Defendant

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
The only issue in this trial is whether the plaintiff has proven that a
motor vehicle accident that occurred on August 9, 2011, was caused by the
defendant’s negligence.

[2]            
The parties agree that, given the circumstances of the accident, it is
open to the court to infer that it was caused by the defendant’s negligence. The
defendant argues, however, that he has rebutted that inference by evidence
which supports the conclusion that he suffered from an unexpected and unforeseeable
medical condition which caused him to lose consciousness. If that was so, then
the accident was not the result of his volitional conduct and he is not legally
responsible. The plaintiff argues that the evidence does not support that
conclusion but rather supports the inference that the defendant fell asleep.
Alternatively, the plaintiff says that the evidence is evenly balanced on the
question and because the defendant bears the burden, and he has not discharged
it, liability follows.

The Accident

[3]            
The defendant was born on June 30, 1935. He was 76 years old on the day
of the accident. He lives with his common law wife in Oliver, British Columbia.
He and his wife had operated a ranch for 42 years before they retired some three
years before the accident. Mr. Rother enjoys swimming. On most summer days,
he would get up and have a full breakfast which his wife prepared. She would
pack him a lunch, and at about noon, he would drive to a beach in Okanagan
Falls. Okanagan Falls is approximately a 20 or 30-minute drive from Oliver.
Sometimes Ms. Zammit would accompany her husband but usually he went by
himself. At the beach, he would alternate between swimming and lying in the sun.
He took a bottle of water with him, which he would consume during the afternoon.
At about 5 p.m., he would drive back to Oliver in time to have dinner with his
wife.

[4]            
Mr. Rother followed this routine on August 9, 2011. He was driving
his 2007 Volkswagen Jetta. It was in good mechanical condition.

[5]            
The plaintiff, John Holt, also lives in Oliver with his wife. He was 59
years old on the day of the accident. He too was retired. Just before 6 p.m.,
he walked to a neighbourhood mailbox to pick up the mail. He walked home along
what used to be called 350th Avenue, but has since been renamed Fairview Avenue.
Fairview Avenue is a level, straight, paved two-lane road in a residential area
of Oliver. There are broad paved shoulders separated from the travelled portion
of the road by white lines. Beyond the paved shoulders, there is a level gravel
section of shoulder which merges with the front lawns of the homes along the
street. The posted speed limit is 50 km per hour. In the vicinity of the
accident, the road runs southwest and northeast.

[6]            
On the day of the accident, it was sunny, clear and warm. The road
surface was dry and free of defects.

[7]            
Mr. Holt was walking northeast on the shoulder of 350th Avenue. Mr. Rother’s
home is just off 350th Avenue. He was driving southwest on 350th Avenue
returning from the beach in Okanagan Falls. He has no memory of the accident. It
is apparent, however, that he suddenly veered across the oncoming lane and onto
the southwest shoulder where he struck Mr. Holt. He then veered back
across both lanes of travel, and onto the northeast shoulder. He continued down
the shoulder a short distance and struck and sheared off a wooden telephone
pole located about 20 feet beyond the edge of the pavement. The force of that
collision caused his vehicle to overturn. The car came to rest some distance
down the road on its roof, facing back in the direction from which it had come.
It was damaged beyond economic repair. Mr. Holt was seriously injured. Like
Mr. Rother, he has no memory of the collision.

[8]            
Mr. Rother was issued a ticket for driving without due care and
attention. He did not dispute the ticket, and the violation was found to have
been established. I take nothing from this, accepting as I do Mr. Rother’s
explanation that he thought he must be guilty because he did strike the
plaintiff.

The Law

[9]            
The parties do not disagree on the law. The plaintiff has the burden of
establishing a prima facie case of negligence on the part of the defendant. Once
that is done the defendant, if he or she is to avoid liability, must present
evidence “negating that of the plaintiff or necessarily the plaintiff will
succeed” (Fontaine v. British Columbia (Official Administrator), [1998]
1 S.C.R. 424 at para. 27). Evidence that a vehicle has left the travelled
portion of a level, straight, well-maintained road in good weather conditions
and broad daylight is circumstantial evidence from which an inference of
negligence may be drawn.

[10]        
An inference of negligence can be rebutted. One way in which that may be
done is by establishing that the accident was not due to negligence but was,
rather, what is sometimes referred to as an “inevitable accident”. Driving is
presumptively a volitional activity but not necessarily a volitional activity.
In Hagg v. Bohnet (1962), 33 D.L.R. (2d) 378 (B.C.C.A.), the defendant
relied on the defence of inevitable accident (para. 38). He argued, based
on the evidence of his doctor, that he had a transient lapse of attention due
to low blood sugar, which was in turn due to diabetes, a condition the
defendant was diagnosed with six days after the accident. Tysoe J.A. wrote at para. 55:

[55]      The question here is,
therefore, whether the appellant has proved by means of [his doctor’s] evidence
that the probability is that his acts and omissions in the course of his
driving were not conscious acts of his volition — that what he did or failed
to do was not done or omitted by him as a conscious being. A mere possibility
is not sufficient.

[11]        
In a similar vein, Evans J. wrote in Boomer v. Penn (1965), 52
D.L.R. (2d) 673 (Ont.H.C.) at para. 9:

[55]      …A driver claiming
inevitable accident must discharge the onus upon him of rebutting by a
preponderance of evidence and on the balance of probabilities the presumption
of negligence arising from his manner of driving. The test to be applied is
whether the faculties of judgment of the driver became impaired to such a
degree that a reasonable person could not regard his operation of the motor
vehicle in the manner complained of as the conscious act of his will. The onus
of establishing that the acts or omissions were not conscious acts or omissions
of the driver rest upon that driver, and it is not discharged if the Court is
left in doubt on that subject. The evidence must disclose the probability that
the driver’s acts and omissions were not conscious acts of his volition and
that what he did or failed to do was not done or omitted by him as a conscious
being.

[12]        
This test has been adopted in many cases in this province, including Calvert
v. Gauthier, [1991] B.C.J. No. 150 (S.C.), and Perry v. Banno
(1993), 80 B.C.L.R. (2d) 351 (S.C.).

[13]        
In Perry v. Banno, Brenner J. (as he then was) distinguished
between the defence of explanation and that of inevitable accident: the former
rests on circumstances external to the driver, such as the presence of black
ice on the road; the latter arises from circumstances “wholly within the
defendant himself”. The onus of proof necessary to avoid liability differs
depending on which defence is at issue. In the case of the defence of
explanation, the defendant must only establish how the accident may reasonably
have happened without negligence on his or her part. If that is done, then the
plaintiff will not succeed because he or she will not have discharged the
burden of proving negligence. On the other hand, if the defence is inevitable
accident, the burden is greater. Such a defence is only made out upon proof on
a balance of probabilities that the driving was not the product of conscious
acts on the part of the defendant. As Tysoe J.A. put it “mere possibility is
not sufficient”.

Analysis

[14]        
The defendant in this case advances the defence of inevitable accident.
He concedes that an inference of negligence can be drawn given the
circumstances of the accident. He argues, however, that it is rebutted because
the evidence supports the conclusion that he unexpectedly lost consciousness just
prior to hitting the plaintiff. Further, he argues that even with the exercise
of reasonable care, he could not have foreseen that he would lose consciousness
and thus he was not negligent. Although the precise reason why he may have lost
consciousness need not be proven, he argues that there are two distinct
possible reasons for it. One possibility arises from the evidence of his family
doctor, and the other from the evidence of the plaintiff’s medical expert.

[15]        
The plaintiff argues that while there are other possible explanations
for Mr. Rother’s driving conduct, they are not the probable cause of it. Rather,
the plaintiff argues that he either fell asleep or simply lapsed into a state
of inattention, short of a loss of consciousness, and that was the cause of his
erratic driving. In either case, the plaintiff argues the defendant was
negligent.

[16]        
I will deal first with the evidence of the medical doctors. The
defendant’s general practitioner is Dr. Thomas Francis. He attended to Mr. Rother
in the hospital either the day of the accident or the day after. He wrote a
letter to the “drive fitness unit” on November 21, 2011. The letter was written
in support of Mr. Rother’s desire to keep his driver’s licence. I infer
that he was at risk of losing his licence due to the accident at issue in this
case. Dr. Francis wrote that:

The best possible explanation
currently is that he suffered a vasovagal fainting spell as a result of heat
exhaustion in the presence of inadequate fluid intake…

In his evidence at trial, Dr. Francis explained
that vasovagal fainting is a nerve mediated loss of consciousness usually
secondary to dehydration.

[17]        
The plaintiff argues that I should discount Dr. Francis’s opinion
because he candidly acknowledged that when he wrote his November 21, 2011
letter, he did so as an advocate for his patient. He argues that the doctor
simply accepted what the defendant told him about the events leading up to the
accident and that this suggests bias or something other than impartiality.

[18]        
I recognize the limitations on Dr. Francis’s opinion given the
purpose for which he wrote his November 21, 2011 letter. Nevertheless, I accept
that his opinion represents his considered medical opinion and is one which he
holds based on his dispassionate assessment of the circumstances as he found
them.

[19]        
Dr. Donald Cameron is a neurologist. He has a subspecialty in
neurophysiology. He has been continuously practicing in that field since 1989. His
medical legal opinion is contained in his report of February 8, 2013. He has
never met nor examined the defendant. His opinion is based on his review of Mr. Rother’s
medical records. Based on his review, he agreed that “it was appropriate to
investigate the loss of consciousness or altered state of consciousness that Mr. Rother
probably suffered” in the accident. He accepted that it is possible that Mr. Rother
suffered either a loss of consciousness or a decreased level of consciousness
prior to hitting the plaintiff. He mooted, by way of differential diagnoses,
the following possible conditions:

…possible seizure, possible
cerebrovascular event or transient ischemic attack, or other intracerebral
insult to the brain…or a cardiac arrhythmia causing hypotension and resultant
decreased level of consciousnesses.

Dr. Cameron thought it appropriate to investigate
the issue of loss of consciousness because Mr. Rother had no memory of
hitting the plaintiff or of his course of travel afterwards. He had no memory
of striking the lamp standard or of his vehicle rolling over. I infer that the
doctor also thought it unlikely that Mr. Rother deliberately drove into
the plaintiff and then into the lamp standard.

[20]        
Dr. Cameron eliminated the various differential diagnoses he
considered and concluded that Mr. Rother’s amnesia was likely due to a
blow to his head that he likely suffered in the accident. He concluded that
while it was possible that Mr. Rother lost consciousness prior to striking
the plaintiff, he thought that unlikely.

[21]        
At trial, the defendant argued that it was likely Mr. Rother lost
consciousness prior to hitting the plaintiff and that his loss of consciousness
was likely due either to a vasovagal fainting spell, as Dr. Francis
believed, or the result of a syncopal episode due to a cardiac arrhythmia. The
plaintiff argues that the latter condition is not one supported by a medical
opinion tendered by the plaintiff, and thus I ought not to consider it. It is a
condition that arises on the evidence of Dr. Cameron, although he
ultimately rejects it. I think it a matter that can be considered and
I propose to do so.

[22]        
I will deal first with whether the evidence establishes on a balance of
probabilities that Mr. Rother suffered a syncopal episode. As I understand
it, a syncopal episode is a temporary loss of consciousness. In the context of
this case, the cause may be cardiac arrhythmia. An irregular heartbeat can
result in the temporary loss of oxygenated blood to the brain. When the loss is
substantial enough, fainting can result. Once the blood supply is restored,
consciousness is recovered. A pacemaker is a device intended to regularize the
heart beat. If a patient experiences fainting due to an irregular heartbeat, a
pacemaker will usually solve the problem.

[23]        
Ms. Zammit testified that sometime in the fall of 2011 and into
early 2012, Mr. Rother had spells where he seemed to just sit and stare. When
he was in that condition, she would shake him and he seemed to wake up. She
said that he had a pacemaker installed in February 2012, and since then, he has
not had any further episodes. Mr. Rother did not mention this in his
evidence, although it is clear that he was not, by the time of the trial, a
reliable historian. He had been examined for discovery in February 2013 by Mr. Davie.
At the trial in May 2013, he knew that he had seen Mr. Davie before but
could not remember when or under what circumstances. He thought the discovery
had taken place two years ago.

[24]        
Dr. Francis testified that he knew Mr. Rother experienced
syncopal episodes after the accident and that it was as a result of these that
he initiated the referral which eventually led to the installation of the pacemaker.
He confirmed that as far as he was aware, Mr. Rother had not had further
episodes after the pacemaker was installed.

[25]        
The defendant argues that on this evidence, it is open to the court to
conclude that what Mr. Rother experienced on August 11, 2011, was merely
the first of what became a series of syncopal episodes. I am not satisfied on a
balance of probabilities that this is so. There are four reasons for this
conclusion.

[26]        
Short of a patient wearing a heart monitor at the time of a fainting
spell, it is impossible to know for certain whether the fainting episode is due
to a cardiac arrhythmia. According to Dr. Cameron, the usual presentation
involves an ongoing arrhythmia, at least in the immediate aftermath of a
syncopal episode sufficient to cause a loss of consciousness. Mr. Rother
was fitted with a Holter heart monitor on the day of the accident. During the
24 hours that he wore it, it did not record any significant pauses in his
heartbeat. This tends, in Dr. Cameron’s view, to make a syncopal episode
unlikely as the explanation for the driving behaviour.

[27]        
Second, Dr. Cameron explained that if a person loses consciousness,
he or she loses all ability to control muscles, including the ability to exert
force on a gas pedal or a brake pedal. In cross-examination, he noted that Mr. Rother’s
vehicle recrossed the road after striking the plaintiff, struck a lamp standard
with enough force to shear it off, and continued down the shoulder of the road
until it rolled onto its roof. Dr. Cameron is not an engineer, as he
pointed out during his cross‑examination, but he said that this sequence
of events is unlikely if the driver was unconscious. I recognize the
limitations of this evidence. Standing alone, it would not cause me to
eliminate the possibility of a syncopal episode, but it does seem to make the
proposition less likely than it might otherwise be.

[28]        
Next, according to Dr. Cameron amnesia, whether of events prior to
the onset of a syncopal episode or subsequent to its termination, is not common.
Mr. Rother had both. He said that he remembered the drive up to the point
not long before the accident. His next memory is when he was in the hospital.

[29]        
Finally, Dr. Francis did not suggest that the accident was due to a
syncopal episode. He agreed that the heart monitor showed no evidence of
arrhythmia. Although his letter was written before the onset of the fainting
spells which gave rise to the installation of the pacemaker, he did not revise
his opinion or suggest that the subsequent fainting spells were diagnostic of Mr. Rother’s
condition on August 11, 2011.

[30]        
In reaching this conclusion, I have not ignored the fact that Mr. Rother
had a history of cardiac arrhythmia dating back to 2006. I accept Dr. Cameron’s
opinion that many people have that condition but that they, like Mr. Rother,
do not suffer from fainting episodes as a result. That is so because fainting
only results when the irregular heartbeat gives rise to sufficiently long
pauses between beats that a loss of consciousness results.

[31]        
The other possible explanation is that advanced by Dr. Francis,
namely, a vasovagal fainting spell. Dr. Francis’s opinion in this regard
was based largely on Mr. Rother’s account of his activities that day. It
was a hot, sunny day. Dr. Francis reported that Mr. Rother had “spent
the whole day at the beach” where he had done “extensive swimming and lying in
the sun without adequate fluid intake”. Mr. Rother testified that he swam
at Okanagan Falls regularly in the afternoons. He usually took a large soft
drink sized bottle of water and a sandwich with him to the beach, and he thinks
he did so on the day in question. He said that the temperature on that day was “normal”
for that time of year. He said that he swam the “normal” amount. On examination
for discovery, he said that he “roasted” himself that day. He said that he
consumed his water and did not refill his bottle from a fountain that is
available at the beach. He said that he did not feel thirsty.

[32]        
Dr. Cameron disagrees with Dr. Francis’s opinion. He noted
that there was nothing in the emergency room record to suggest that dehydration
was a problem. Further, Mr. Rother’s blood pressure was normal (I assume
that abnormal blood pressure is sometimes a concomitant of dehydration). Based
on this, he concluded that Mr. Rother was not experiencing dehydration and
thus likely did not suffer a vasovagal event.

[33]        
Finally, I note that Dr. Cameron’s view is that Mr. Rother’s
lack of memory surrounding the accident is most likely the result of a
concussion sustained in the collision. He noted that the medical records reveal
that Mr. Rother suffered a “right periorbital hematoma and a small
laceration”. In addition, the collision was significantly violent. On cross-examination,
it was suggested to him that Mr. Rother did not have any symptoms of post-concussion
syndrome. He was asked whether that tended to reduce the likelihood that Mr. Rother
had sustained a concussion. Dr. Cameron said that most people that suffer
a concussion do not develop post-concussion syndrome, and thus the absence of
symptoms associated with that condition do not make his conclusion less likely.

[34]        
The issue that remains is whether the defendant has rebutted the
inference of negligence that arises from the proven manner of driving. He
points out that it is impossible to prove what may have caused him to lose
consciousness, if that is what happened, and he is not required to do that. It
seems to me that it is at least as likely that Mr. Rother dozed off just
before he struck the plaintiff as it is that he lost consciousness for some
other reason. In fact, I think this is the more likely explanation. He was
76 years old. He had been out in the hot sun all afternoon. He had been
intermittently swimming. He had driven 20 or 30 minutes on the highway in the
late afternoon. I agree with Dr. Cameron that a syncopal episode, while
possible, is not a likely explanation for what happened. Further, I agree that
vasovagal fainting, while more likely than a syncopal episode, is less likely
than simply dozing off.

[35]        
In reaching this conclusion, I have considered the actual driving
evidence. It is not necessary to conclude that Mr. Rother was attempting
to flee the scene after he struck the plaintiff. I have no doubt that had he
been aware he hit the plaintiff, he would have stopped immediately. I think it
likely that he was not aware he struck the plaintiff and was not attempting to
drive away when he hit the lamp standard. I think it likely that he was aroused
from his momentary lapse of consciousness, and before he regained his wits, he
struck the lamp standard and his vehicle rolled over.

[36]        
As noted by Evans J. in Boomer v. Penn, “[t]he evidence must
disclose the probability that the driver’s acts and omissions were not
conscious acts of his volition”. Further, he must establish that if he suffered
a lapse in consciousness, that it was not reasonably foreseeable. Dr. Francis
said, and common experience supports, that drowsiness while driving is usually
preceded by some advance warning, such as yawning, heavy eyelids, or a lack of
acute awareness. While Mr. Rother did not say that he experienced such
symptoms he is, as noted, an unreliable historian, and his memory of events
shortly before the accident is not complete.

[37]        
I am not satisfied that Mr. Rother has discharged the onus he bears
to establish that his driving, on the day in question, was not volitional or,
if it was not volitional, that it was the result of something that was not
reasonably foreseeable.

Conclusion

[38]        
In the result I find that the defendant is liable for the accident.

[39]        
The parties are at liberty to speak to the question of costs, if they
are unable to agree on the matter.

“G.M.
Barrow J.”

The
Honourable Mr. Justice Barrow