IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130912

Docket: M093900

Registry:
Vancouver

Between:

Sky Miles

Plaintiff

And

Sapna Seema Kumar
and

Phelps Leasing
Ltd.

Defendants

Before:
The Honourable Mr. Justice Bernard

Reasons for Judgment

A. Overview

[1]            
On the morning of October 20, 2007, Sapna Seema Kumar was the driver and
lone occupant of a car travelling eastbound along Grandview Highway in
Vancouver. As Ms Kumar neared Slocan Street she struck Sky Miles. Mr. Miles
was riding a bicycle at the time, and just prior to the collision he had moved
into Ms Kumar’s lane of travel in preparation for a left turn onto Slocan
Street.

[2]            
The collision knocked Mr. Miles off his bike. The damage to Ms Kumar’s
car indicated that upon being struck, Mr. Miles bounced off the hood and
windshield of Ms Kumar’s car before coming to rest on the roadway some
distance ahead.

[3]            
Not surprisingly, Mr. Miles sustained physical injuries in the
collision, all of which have been categorized as “soft tissue”. Mr. Miles
says that he continues to have pain from some of these injuries; principal
among them is an alleged injury to his lower back for which he says he suffers
chronic pain that has had a significantly negative impact upon his life, his
work, and his psychological well-being.

[4]            
Mr. Miles seeks damages from Ms Kumar to compensate him for
pain, suffering, loss of enjoyment of life, and for various past and future
pecuniary losses, all of which he says are attributable to Ms Kumar’s
negligence.

[5]            
Both Ms Kumar’s liability for the collision and the quantification
of damages were matters very much in issue at the trial.

B. Background

[6]            
Mr. Miles is a 42-year-old single man with no dependants. He was schooled
in England, where he completed “fifth form” (the equivalent of grade 10 in
Canada). In his early twenties, he obtained a welding ticket. Until his
mid-thirties, he maintained steady employment in a wide variety of jobs,
including that of bike courier, roofer, landscaper, truck driver, movie extra,
and restaurant manager.

[7]            
Mr. Miles presently lives alone in Vancouver, and is in the fourth
year of a romantic relationship with a woman named Pauline Moshier. He is a
public transit bus driver by occupation and has been so employed, on a
full-time basis with Coast Mountain Bus Company, since early 2006. He describes
this job as secure, with good pay and benefits; it is employment he hoped to maintain
until his retirement from the workforce.

[8]            
Mr. Miles does not own a car; bicycling has been his sole mode of
personal transport for many years. At the time of the collision he was on his
way to work a regular bus-driving shift.

[9]            
Prior to the collision, Mr. Miles was very active and physically
fit. He worked out with weights, and was a runner, swimmer and cyclist. His
only physical complaint shortly before the accident was a pain in his right
shoulder for which he had received some physiotherapy.

C. Evidentiary Synopsis

(i) The Collision

[10]        
At the time of the collision, Mr. Miles was wearing a bike helmet
and a bright yellow rain jacket, and he had a rear flashing red light in
operation under his bicycle seat. It was approximately 10:30 a.m. and the road
surface was wet from a recent rainfall. There were no adverse weather,
visibility or traffic conditions.

[11]        
Shortly before Mr. Miles was hit, he was riding his bicycle
eastbound along Grandview Highway and nearing Slocan Street with the intention
to turn north onto Slocan. For traffic turning left at Slocan, there is a
dedicated lane at the intersection, and a concrete median which separates
eastbound traffic from westbound traffic.

[12]        
At this stretch of Grandview Highway, the road is relatively flat, the
speed limit is 50 km/h, and there are two lanes for eastbound traffic,
divided by a broken line. Adjacent to the outside (“right”) lane is a space for
parked cars. As there were some parked cars, Mr. Miles was riding his bike
in the space between the parked cars and the eastbound right lane.

[13]        
Mr. Miles testified that he was travelling at an estimated speed of
20-25 km/h at the point when he decided to move over to the inside
(“left”) lane in preparation for a left turn at Slocan. He said he did a
“shoulder check” for eastbound traffic behind him and saw headlights “off in
the distance” in the right eastbound lane. He said this vehicle (not further
described) was “far enough back that it didn’t pose a threat”. He said he then
immediately did a second shoulder check and saw the same vehicle lights in the
distance, signalled (using his left arm) his intention to move leftward into
traffic, and proceeded to move across the right lane and into the left lane, at
approximately a 45 degree angle. He did not perform another shoulder check
before entering the left eastbound lane.

[14]        
Mr. Miles has no memory of what transpired in the period between
his move towards the left lane and the collision. He also cannot recall the
moment of impact, or landing on the roadway; however, he said he remembers
spinning through the air. Mr. Miles said he believes that he was hit from
behind.

[15]        
In cross-examination, Mr. Miles agreed to the following: that the
vehicle he noted in his shoulder check was likely travelling faster than was
he; that he could have let this vehicle pass before crossing into traffic; that
at the point when he entered the left lane, Ms Kumar’s car must have been
there to be seen; and, that he was hit shortly after his shoulder check but
could not say whether he was struck immediately upon entry into the left lane,
or at some time thereafter.

[16]        
As part of his case, the plaintiff “read in” selected excerpts of Ms Kumar’s
testimony from her examination for discovery, which may be summarized as
follows:

–       
On October 20, 2007 Sapna Seema
Kumar was 20 years of age and had a class N (“novice”) driver’s licence.

–       
At approximately 10:30am she was
driving eastbound on Grandview Highway, and approaching Slocan Street.
She had turned east onto Grandview at Nanaimo Street.

–       
She was familiar with this section
of Grandview because it was a route she had been taking to work for the past
four-to-five months. She believed that there were two lanes for eastbound
traffic and that she was in the left lane as she approached the point where the
collision occurred. As she drove along Grandview, she said she moved from the
right lane to the left lane to pass a vehicle in front of her and because she
planned to make a left turn a few blocks ahead, at Renfrew Street. She recalled
that the car she passed had been travelling behind a very large white “semi”
truck, with a long rectangular box.

–       
Ms Kumar recalled driving in
the left lane, beside the truck to her right. Ms Kumar agreed that, at
this point in time, the truck would have obscured her vision of “things” such
as a bicycle if such were immediately ahead-and-to-the-right of her. She agreed
it was possible that she had not passed the truck when the cyclist “appeared”.
She said she was not aware of the cyclist until he entered her lane of travel.

–       
Ms Kumar said she did not
“swerve or manoeuvre or change her direction of travel” between the time she
first saw the cyclist and the collision. She said she did not do so because “it
didn’t seem safe – there were other vehicles around me”.

–       
Ms Kumar said that her
recollection was that it was the “left part” of her vehicle which struck the
cyclist. She said the cyclist hit the area of her windshield directly in front
of her, and she agreed that by the time of impact the cyclist had entered the
left lane and “moved over half of the lane”.

–       
Ms Kumar said the speed limit
was 50 km/h. She could not recall “exactly” how fast she was travelling but she
said “it must have been maximum 60”. When asked if it was possible she could have
been travelling more than 60 km/h Ms Kumar said “I don’t know”. When
asked what the basis was for her speed estimate at the point of collision, she
said it was the relatively short distance she had traveled from the turn she
had made onto Grandview from Nanaimo.

–       
Ms Kumar said she cannot
recall anything about the bicycle she struck, including whether it had a
tail-light. She recalled that the road surface was wet and agreed that such
would affect her ability to “come to a stop”.

[17]        
If there were independent eyewitnesses to the collision then none testified
at the trial, and the defendants did not present a case. The speed of the truck
which apparently obscured Ms Kumar’s car from Mr. Miles’ view at the
time he performed his shoulder checks is not known.

[18]        
Post-collision photographs of Ms Kumar’s car show damage to the
left front area, including a large dent to the hood and damage to the
windshield, consistent with Mr. Miles’ body landing on the hood and his head
hitting the windshield. Mr. Miles’ bicycle sustained considerable damage. 
No accident reconstruction evidence based upon the collision damage was
tendered.

(ii) The Injuries

[19]        
Mr. Miles was removed from the collision scene by ambulance. Skin
abrasions to his right knee, right shoulder and right elbow indicated that he
hit the pavement on his right side. He suffered acute trauma to his right knee,
which caused considerable pain and swelling, and had him in a leg brace and on
crutches for a few months. Mr. Miles saw his family physician, Dr. Norrie,
two days after the collision. Dr. Norrie said:

When I saw Sky on October 22, he was in obvious pain and
walking with difficulty. His right knee was obviously swollen and was too
tender to examine fully. He had multiple abrasions, especially on his right
elbow and right knee. As well, his neck and shoulders were very stiff and
painful to move.

I organized an urgent orthopedic
referral to Vancouver General Hospital and recommended that Mr. Miles
undertake physiotherapy when his injuries subsided to the point where therapy
was possible. He was obviously not going to return to his job as a bus driver
for many weeks.

[20]        
Mr. Miles’ post-collision complaints are as follows:

1.       Back:
Initially, he said his pain was in the lower back. It was a very deep ache
which moved up from his lower back to his head, causing headaches.

2.       Shoulders:
He said his right shoulder aches if he lifts something such as a jug of milk.
The shoulder pain wakes him from sleep and causes him to avoid activities that
may cause pain or aggravation. His right shoulder feels as if it has gotten
worse over time, rather than better. Both shoulders “consistently” ache without
having done anything to aggravate them. For temporary relief he uses heat/ice
packs and massage. Mr. Miles believes his left shoulder pain is from
favouring it after his right shoulder injury in the collision.

3.       Right
knee: Mr. Miles said that over a three-year period his knee healed reasonably
well; however, he is now unable to run because 15 minutes into a run he
gets a deep ache and must stop.

4.       Right
ankle: Mr. Miles said in the first year or so, he had a chronic throb in
his ankle. It has been sporadic since then. It still bothers him when he presses
on the bus accelerator, walks and cycles; however, he would not categorize it
as a major complaint. He saw a podiatrist about it and now wears prescribed
orthotics.

5.       Neck: Mr. Miles
complains of chronic neck pain. He said he has flare-ups which give him a “huge
amount of grief” for a couple of weeks at a time before he returns to his “new
normal”: a state of neck discomfort not known to him prior to the collision.

6.       Lower
back: Mr. Miles said that he suffers from chronic and constant lower back
pain, with occasional flare-ups which are disabling. He said in the first few
months after the collision he felt very sore and tender all over; an achiness
that went to his core. He described the flare-ups as searing pain which drops
him to his knees. He said he does not mention it to his doctor on every visit
because it is chronic and “he knows it”.

7.       Depression:
Mr. Miles said that since the collision he constantly feels like he is
“battling the blues”. He said he has gone from “happy-go-lucky” to someone with
a flat affect and limited range of emotion. He is taking anti-depressant
medication which he believes helps with his mood, but not his energy or
happiness.

8.       Sleeplessness:
Mr. Miles said he hasn’t slept well since the collision. His discomfort
causes him to wake up and he doesn’t feel refreshed in the morning.

[21]        
At Mr. Miles’ first post-collision appointment with his family
physician, Dr. Norrie, he was referred to Dr. Blachut, an orthopaedic
surgeon who recommended massage and physiotherapy.

[22]        
Dr. Norrie saw Mr. Miles many times thereafter. In his
medico-legal report dated August 16, 2011, he wrote:

Mr. Miles obviously suffered
a significant accident in October 2007. He has experienced substantial pain and
disability, as a result, as detailed above. Thankfully, most of his symptoms have
improved to a great extent; however, he still experiences ongoing symptoms.
While I believe that Sky’s long term overall prognosis is good, I also believe
that he is predisposed to recurrent pains in his right knee, his shoulders, his
neck, and his low back as a direct result of the accident. He may also be at
increased risk in the future of arthritis, especially in his right knee and
right shoulder. As a result of the depression and anxiety that he suffered over
the past several years, this also makes him more predisposed to future episodes
of the[se] condition[s].

[23]        
In Dr. Norrie’s pre-accident history (commencing February 16, 2005)
with Mr. Miles as a patient, Dr. Norrie said that he saw Mr. Miles
for, inter alia, right shoulder pain.

[24]        
Steven Helper is a physiatrist who examined Mr. Miles on November
30, 2012. On the controversial question of whether the collision was the cause
of Mr. Miles’ complaints of low back pain and shoulder pain, Dr. Helper
reported as follows:

In my opinion, the motor vehicle collision of October 20,
2007, is directly related to Mr. Miles’ low back pain complaints. [The
factors upon which I base this opinion are]: (i) No history of pre-existing
lumbar pain; (ii) Likely pre-existing history of degenerative disc changes from
the L5-S1 segment; asymptomatic; (iii) The mechanism of the motor
vehicle-bicycle collision is unknown; (iv) Mr. Miles had consistent low
back pain complaints along his clinical course; (v) Mr. Miles current
presentation is most in keeping with discogenic low back pain from the L5-S1
segment. It is most likely he had pre-existing degenerative changes that were
aggravated by the MVC of October 20, 2007, converting him from an asymptomatic
state to symptomatic; and, (vi) Despite the existence of L5-S1 degenerative
changes, the development of discogenic mechanical low back pain was not
inevitable. These findings are common on imaging studies in asymptomatic
individuals.

…In my opinion the patients
current shoulder pain complaints are partially related to the motor vehicle
collision in question … it appears as though he had a pre-existing history of
right-sided bicipital tendinopathy that was responding well to therapy and
nearly resolved. The motor vehicle collision resulted in a fall on his right
hand side. He likely experienced a direct aggravation of his pre-existing condition
Mr. Miles demonstrates bilateral mild impingement syndrome of the
rotator cuff … it is unlikely that the mechanics of the motor vehicle collision
in question resulted in a direct injury to the rotator cuff tear bilaterally.
More likely, the patient’s maladaptive mechanics from his low back pain, neck
pain, and ankle pain resulted in suboptimal postures and maladaptive
biomechanics, uncovering a predisposition to impingement syndrome. If Mr. Miles
had not been involved in the motor vehicle collision, it is unlikely that he
would be experiencing his current shoulder symptoms

[25]        
Dr. Helper assessed Mr. Miles’ prognoses for recovery from his
complaints as follows:

(a)        Low back pain: “Poor” for full recovery, and
“good” for partial. He could not quantify these terms.

(b)        Bilateral shoulder pain: With physiotherapy, 50%
likelihood of full recovery, and 75% for partial.

(c)        Neck pain: “Poor” for full recovery, and “fair”
for partial, with physiotherapy.

(d)        Right knee pain: “Good” for “near full resolution”
with physiotherapy.

(e)        Right ankle pain:
“Good” for near full, or full recovery, with physiotherapy.

[26]        
Dr. Helper specifically recommended a graduated four-month course
of physiotherapy with an athletic therapist named Thomas Tran.

[27]        
In cross-examination, Dr. Helper agreed that he did not discuss
with Mr. Miles an apparent one-year hiatus (January 2008 to January 2009)
in back complaints (as disclosed by Dr. Norrie’s clinical records), and he
agreed that such is not consistent with Mr. Miles having “consistent lower
back pain since the collision”. He said it “casts some doubt on the causal
relationship” between the collision and the complaint of lower back pain in
July 2010. He added: “Although there is a hiatus there is still a moderate
suspicion of causation; but, doubt about a hard assertion”.

[28]        
Dr. Helper agreed that Mr. Miles likely had age-related disc
degeneration prior to the collision, and that such could be the cause of Mr. Miles’
low back pain. In relation to Mr. Miles’ extensive use of massage therapy,
Dr. Helper said such is usually not useful for chronic pain, and has
diminishing returns. Regarding the onset of symptoms, Dr. Helper said he
would expect to see such within approximately three months if they are related
to the trauma.

[29]        
William Craig is a physiatrist who examined Mr. Miles on June 10,
2011. For the purposes of preparing his report, Dr. Craig assumed that Mr. Miles
had no pre-collision issues with his left shoulder, neck, back and lower limbs;
and that an issue with his right shoulder had mostly resolved prior to the
collision. In his examination, Dr. Craig found, inter alia: (a) some
limited range of neck motion, tightness and tenderness in the cervical
paraspinals; (b) impingement of the rotator cuffs, bilaterally, consistent
with rotator cuff injury, and tenderness over the tendons of the long head of
the biceps; (c) low back pain and tenderness suggesting a moderate soft
tissue injury to the low back and a “possible” lumbar facet joint injury; (d) tightness
in the hip girdle, bilaterally; (e) tenderness and crepitus in right knee;
and, (f) tenderness along the medial tendon of the right ankle.

[30]        
In relation to causation, Dr. Craig opined that the collision: (a) aggravated
a pre-existing right biceps tendinopathy; and (b) caused the right knee,
right ankle, neck and low back injuries. He said that the left shoulder symptoms
probably developed as compensation for ongoing right shoulder issues.

[31]        
As for the prognosis, Dr. Craig used the term “guarded” for the
neck, back and right shoulder, and “more favourable” for the left shoulder. He
opined that Mr. Miles will continue to be susceptible to recurrent
episodes of back pain, and at a slightly increased risk of premature
degenerative changes in his neck and back, all arising from the collision. He
believed that Mr. Miles will continue to improve, and will be able to
continue working as a bus driver for the “long term” and perform activities of
daily living, including cycling and jogging. He thought he would have some
difficulty with household maintenance and yard work.

[32]        
William Koch is a registered psychologist who assessed Mr. Miles on
June 21, 2011, and November 29, 2012. For the purposes of his reports, he
assumed, inter alia, that Mr. Miles did not have a history of
ongoing psychological distress. Dr. Koch diagnosed Mr. Miles as
suffering from a major depressive disorder (“MDD”), chronic pain disorder
(“CPD”), and post-traumatic stress disorder (“PTSD”). Dr. Koch said that
it is a rare patient who has PTSD occurring alone.

[33]        
In relation to the prognoses for these disorders, Dr. Koch was
“guardedly optimistic, with appropriate treatment”. He recommended a minimum of
three years of psychotherapy, with 50 sessions in the first two years and a
reduced number thereafter. He also strongly recommended that Mr. Miles
attend a multidisciplinary pain management clinic.

[34]        
In cross-examination on whether or not Mr. Miles met the mandatory
Criterion A (a “traumatic stressor”) for PTSD, Dr. Koch said: “At the
end of the interview, I still had some concerns; but, the interview suggested
some serious symptomology, which is the bottom line.” In his report, Dr. Koch
set out the DSM rules for an event to qualify as a traumatic stressor:

Both of the following (must be)
present: 1. the person experienced, or witnessed, or was confronted with an
event or events that involved actual or threatened death or serious injury, or
a threat to the physical integrity or self or others; 2. the person’s response
involved intense fear, helplessness, or horror.

[35]        
Edgar Emnacen is an occupational therapist who evaluated Mr. Miles’
“functional capacity” on July 21, 2011. Following a battery of tests, Mr. Emnacen
formed the following opinion:

Mr. Miles presents with limited neck postural tolerances
(flexion, extension, and rotation); sitting tolerance; and sustained low level
positioning (crouching and kneeling) tolerances, especially in combination with
trunk twisting/bending. He also presents with pain mannerisms that may also
eventually limit his standing tolerance. Such postures elicit reports of neck,
shoulder, and back pain and headache onset.

Overall, I am of the opinion that Mr. Miles is capable
of gainful employment, so long as the functional demands of such work are
within the guidelines and limitation as noted in this report

…Mr. Miles has the physical capacity to perform the job
duties of a bus driver, however, his symptom reactivity to sustained sitting
postures and exposure to neck rotation movements throughout the shift will
likely limit his ability to perform this work on a continual, full-time basis

With [split shifts allowing for
postural breaks and driver’s position and movement adjustments] in place to
assist with managing his symptoms, it is my opinion that Mr. Miles can
continue working as a bus driver. However, Mr. Miles has indicated working
split shifts makes for a longer working day overall, starting early and ending
quite late in the day (e.g. he wakes up at 4:30am to get ready for his first
shift, and his work day does not end until 6:30pm), compared to if he were
working one continual eight hour shift.

[36]        
Pauline Moshier has been in a romantic relationship with Mr. Miles
since September 2009. She said she loves Mr. Miles and expects the relationship
to continue. She and Mr. Miles “lived together” from December 2011 to May
2012. In spending time with Mr. Miles, Ms Mosher has observed
difficulties Mr. Miles has with sleeping – constantly shifting positions
and waking up in apparent pain. She has also observed “pain behaviour” during
their shared meals and while watching movies together. She said Mr. Miles
is uncharacteristically short-tempered and non-communicative when he is in pain.

[37]        
In 2009, prior to the start of her relationship with Mr. Miles, Ms Moshier
wrote an article about Mr. Miles as a bus driver. (She was employed by
Coast Mountain Bus Company at the time.) She said she chose to write about Mr. Miles
because he had an unusually high number of commendations from passengers.

[38]        
Rhianne Williams is the sister of Mr. Miles. She saw Mr. Miles
often before and after the collision. She described Mr. Miles,
pre-collision, as very physically active, fit and strong. She said he was
upbeat, social, and liked to help friends with various projects. In the period
immediately after the collision, she saw that he was in a severe amount of
pain. From January 2008 to March 2009, Ms Williams cooked, cleaned, and
took Mr. Miles to various appointments. She noted “huge” changes in Mr. Miles
– he was not socially active and was “emotionally unavailable”.

[39]        
After March 2009, Ms Williams began full-time employment outside
Vancouver, but maintained contact with Mr. Miles. She continues to help
him in the winter when her work schedule permits it. She said, currently, Mr. Miles
continues to be “very flat” emotionally, and non-social. She said he moves
slowly and appears to be dealing daily with pain.

[40]        
Delia Envoldson is a registered massage therapist. She first treated Mr. Miles
in 2004. Prior to the collision, the massages were for relaxation rather than
treatment for injury. In the post-collision period, Ms Envoldson first saw
Mr. Miles in November 2007. She said she treated him for low back pain,
hips, upper back, shoulders and neck. She said he also had a swollen knee which
she could not treat.

[41]        
Ms Envoldson said she has treated Mr. Miles on a frequent and
consistent basis since the collision. She said she understood that her
treatments gave Mr. Miles temporary relief so that he could sleep.

C. Discussion

[42]        
 In relation to the allegation of negligence, the essence of the
plaintiff’s position is: (a) that Mr. Miles was struck from behind by
Ms Kumar after he had lawfully executed his lane change; (b) that Mr. Miles
was the dominant driver vis a vis Ms Kumar at the point of collision;
and, (c) that Ms Kumar’s car struck Mr. Miles’ bicycle from behind
because she was driving without due care and attention, travelling at an unsafe
speed for the conditions, and/or exceeding the speed limit.

[43]        
The plaintiff also says that as Ms Kumar travelled in the left lane
beside the large truck to her right, she failed to recognize that vehicles
ahead of the truck and out of her view might move into her lane for the purpose
of executing a left-hand turn at Slocan Street.

[44]        
In support of the plaintiff’s position that Mr. Miles had completed
his lane change and was travelling eastbound in the left lane when he was
struck, the plaintiff relies upon the location of the damage to Ms Kumar’s
car as evidence that Mr. Miles was “well over on the left side of the
[left] lane when he was struck”.

[45]        
The defendants’ position is that the plaintiff was solely at fault for
the collision; that it was caused by his negligent act of changing lanes in
front of Ms Kumar when it was unsafe to do so; that Ms Kumar’s
vehicle was “there to be seen” if the plaintiff had performed a proper lane
check; and, that the plaintiff has not shown that Ms Kumar could not have
avoided the collision with the exercise of reasonable care and skill. The
defendants cite Lowe v. Greyhound Canada Transportation Corp., 2008 BCSC
64, and McStravick v. Metzler, 2012 BCSC 1685, in support of their
position.

[46]        
The applicable provisions of the Motor Vehicle Act, R.S.B.C.
1996, c. 318 (the “MV Act”) are as follows:

141(1) A person must not drive a motor vehicle on a highway

(a) without due care and
attention,

(b) without reasonable
consideration for other persons using the highway, or

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

151(1) A driver who is driving a vehicle on a laned roadway

(a) must not drive it from one
lane to another when a broken line only exists between the lanes, unless the
driver has ascertained that movement can be made with safety and will in no way
affect the travel of another vehicle.

(c) must not drive it from one
lane to another without first signalling his or her intention to do so by hand
or arm or approved mechanical device in the matter prescribed by sections 171
and 172.

183(1) In addition to the duties imposed by this section, a
person operating a cycle on a highway has the same rights and duties as a
driver of a motor vehicle.

183(2) A person operating a cycle

(c) must … ride as near as practicable to the right
side of the highway.

[47]        
It is well settled that the provisions of the MV Act provide
guidelines, rather than a complete legal framework, for assessing fault in
motor vehicle accident cases. Users of the road are expected to exercise
reasonable care, even when others have failed in respect of their statutory duties
(see Salaam v. Abramovic, 2010 BCCA 212).

[48]        
It is evident that the collision in question occurred very shortly after
Mr. Miles moved into Ms Kumar’s lane of travel, and it is not
contentious that prior to Mr. Miles’ entry into the left lane, Ms Kumar
enjoyed the right of way within that lane; accordingly, before Mr. Miles
entered the left lane he was obliged to: (a) ascertain that the lane
change could be made in safety and not affect Ms Kumar’s travel (MV Act
s. 151(1)(a)); and, (b) alert Ms Kumar by signalling his
intention to move in front of her (MV Act s. 151(1)(c)).

[49]        
In order to effectively execute these statutory duties, Mr. Miles
was obliged to be in a position where he could see and be seen. In other words,
Mr. Miles’ lane check was only meaningful if he had the lane he intended
to enter in clear view, and his signal was only of use as a warning device if
it was within the range of vision of its intended recipient(s).

[50]        
The evidence establishes that Mr. Miles was not in such a position
when he performed his lane check and signal; rather, it shows that he was at
the far right side of the right lane of travel. It is apparent that from this
vantage point he was neither well-positioned to see, nor did he see, Ms Kumar’s
vehicle travelling in the left lane because Ms Kumar was beside or
slightly behind a large eastbound truck travelling in the right lane.
Similarly, in these circumstances Ms Kumar’s view of Mr. Miles as he
rode eastbound at the right side of the right lane would have been obscured, as
would any signal made by Mr. Miles from this position.

[51]        
 It is clear from Mr. Miles’ testimony that his two lane checks and
his arm signal were each executed from the right side of the right lane before
he began his lane-change manoeuvre. He was unquestionably in a position of
disadvantage from this point and was, thus, obliged to perform a further lane
check and signal at a point where: (a) he had a clear view of the left
lane; and, (b) any approaching traffic in the left lane had a clear view
of him and was able to read his intentions. As Mr. Miles reasonably
conceded, Ms Kumar’s approaching vehicle was “there to be seen” by him
before he entered the left lane.

[52]        
Although the MV Act obliges cyclists to ride as near as
practicable to the right side of the highway, on multi-lane highways it does
not logically follow that this means that it is only from this position that a cyclist’s
statutory duties pursuant to ss. 151(1)(a) and 151(1)(c) of the MV Act
are to be fulfilled. If a cyclist travelling on the far right of a multi-lane
highway does not have a clear view of each lane of travel he or she intends to
enter or cross, then a lane check and signal from this position is, quite
obviously, not sufficient either to determine that the manoeuvre is safe or to
warn approaching traffic of his or her intention. A cyclist in the position of Mr. Miles,
whose view of the lane of travel he intends to enter is obstructed by a large
truck, must either wait until he has a clear view before commencing his lane
change or perform a further lane check and signal from a position where he is
able to see approaching vehicles and be seen by them.

[53]        
For the foregoing reasons, I am satisfied that when Mr. Miles rode
his bicycle from the far right of Grandview Highway directly into the left lane
occupied by Ms Kumar, he did so in breach of his statutory duties to: (a) ascertain
that it was safe to do so; (b) ensure that it would not affect Ms Kumar’s
travel; and, (c) signal his intention to do so. In all the circumstances,
including the traffic and speed at the time in question, the lane checks and
signal performed by Mr. Miles at the far right of the highway did not
satisfy these duties.

[54]        
Notwithstanding the foregoing, Mr. Miles’ position is that he had
successfully executed his lane change and was travelling eastbound on the left
side of the left lane when he was struck; that the collision was caused by Ms Kumar’s
carelessness and excessive speed, and not by his moving into her path when it
was unsafe to do so. In support of his position Mr. Miles relies upon: (a) the
damage to the left front of Ms Kumar’s vehicle; (b) Ms Kumar’s
estimate of her speed as “not more than 60 km/h”; (c) the wet road
surface; (d) Ms Kumar’s partially obscured view due to the truck to
her right; (e) Ms Kumar’s knowledge that eastbound vehicles which
were in the right lane but intending to turn north at Slocan would have to move
to the left lane prior to reaching the intersection; (f) the absence of
evidence that Ms Kumar sounded her horn or applied her brakes prior to the
collision; and, (g) Ms Kumar’s failure to swerve to avoid impacting
with Mr. Miles.

[55]        
For the reasons which follow, I am not satisfied that the evidence
establishes that Mr. Miles had, prior to the collision, successfully
executed his lane change and that he was travelling eastbound at the left side
of the left lane when he was struck. Significantly, Mr. Miles did not
testify to such; moreover, if such was, indeed, the case then no explanation was
given for why Mr. Miles would have no memory of it.

[56]        
It is noteworthy that Mr. Miles purports to have a good
recollection of everything preceding the moment of his entry into the left lane
and no memory loss in the immediate aftermath of the collision; thus, if there
is a memory gap then it is limited to the very brief period between the alleged
successful entry into the left lane and the collision. This is a very specific,
isolated and critical memory loss for which no explanatory evidence was
tendered.

[57]        
In the absence of a memory of where he was within the left lane and how
he was positioned within it at the time of impact, Mr. Miles relies upon
the location of the damage to Ms Kumar’s car as some evidence that he was
eastbound at the left side of the left lane when he was struck. I am not
persuaded, however, that much can reasonably be drawn from this damage in the
absence of accident reconstruction evidence from a qualified expert. To the
untrained eye, the damage does nothing more than establish or corroborate that
which is not contentious: i.e., that the front of Ms Kumar’s vehicle
struck Mr. Miles while he was riding his bicycle; that the force of the
blow separated Mr. Miles from his bike; and, that Mr. Miles hit the
left side of the hood and windshield of Ms Kumar’s car before he was
thrown forward onto the pavement. The damage, per se, does not permit
more nuanced inferences regarding the relative positions of the bicycle and the
car at the point of impact of these two moving objects. The existence of damage
to the driver’s side of the front of the car is simply not enough, particularly
in the context of this dynamic event. I cannot reasonably conclude, for
example, that the physical damage to Ms Kumar’s car and/or Mr. Miles’
path of travel after he was separated from his bicycle is inconsistent with Mr. Miles’
being struck shortly after he entered the left lane and as he crossed Ms Kumar’s
path to take his position at the left side of the left lane; that is, while he
was in the process of executing his lane-change rather than after it. In this
regard, it is noteworthy that if the collision occurred virtually upon entry
into the left lane as Mr. Miles moved across the front of Ms Kumar’s
vehicle then this would account for Mr. Miles’ lack of any memory of
riding eastbound in the left lane.

[58]        
 Similarly, I am not satisfied that the evidence establishes that Ms Kumar
drove without due care and attention, or without reasonable consideration for
other persons using the highway, or at a speed that was excessive relative to
the road, traffic, visibility or weather conditions. There is virtually no
evidence in relation to any of the foregoing. The mere fact of collision with Mr. Miles
is neither evidence of a breach of any of these statutory duties nor is it
support for a finding of negligence at common law.

[59]        
Ms Kumar candidly acknowledged that she does not know her speed of
travel; however, she was able to set an outside limit of 60 km/h.  There is no
contrary evidence on this point. Ms Kumar passed a truck travelling to her
right; however, there is no evidence that this truck was speeding. In this
regard, it is noteworthy that Mr. Miles did not perceive this approaching
truck as a threat to him when he crossed into its path.

[60]        
Even if Ms Kumar was driving at her maximum estimated speed, I am
not persuaded that such would reasonably support a finding that her speed was
excessive for the conditions. The road was essentially flat and straight, the visibility
was good, there was nothing notable about the vehicular or pedestrian traffic, and
the weather was benign. In these circumstances, simply a wet road surface from
recent rainfall – common for Vancouver – would not demand extra caution. It is
also noteworthy that Mr. Miles was very familiar with this section of
Grandview Highway, and was well aware that motor vehicles typically traveled
at, or over, the 50 km/h speed limit.

[61]        
Finally, I do not agree with the plaintiff’s submission that Ms. Kumar’s
partially obscured view, caused by the truck to her right, obliged her to “pay
extra attention” for drivers or cyclists who might move into her lane of travel
for the purpose of turning left at Slocan Street. On multi-lane highways large
vehicles frequently, and without warning, partially block the views of drivers
of smaller vehicles travelling in the same direction. Such occurrences do not
oblige the drivers of the smaller vehicle to immediately reduce speed so as to be
able to avoid collisions with non-visible vehicles which might move into their
path. Here, Ms Kumar had the right of way within her lane of travel and
such was not abrogated by a truck in an adjacent lane which happened to limit
her view to the right as she passed it. She was entitled to assume that other drivers
and cyclists would obey the rules of the road and not move into her lane of
travel when it was unsafe to do so. The oft quoted passage from Walker v.
Brownlee, [1952] 2 D.L.R. 450 is apposite:

49.       In applying this
principle it is necessary to bear in mind the statement of Lord Atkinson in Toronto
R.W. Co. v. King, 7 C.R.C. 408 at p. 417 [1908] A.C. 260 at p. 269:
“Traffic in the streets would be impossible if the driver of each vehicle did
not proceed more or less upon the assumption that the drivers of all the other
vehicle will do what is their duty to do, namely, observe the rules regulating
the traffic of the streets.”

[62]        
In summary, with due regard for all the foregoing, I make the following
determinations: (a) that as Ms Kumar travelled in the left lane to
the point of the collision, she enjoyed the right of way; (b) that the
evidence does not reasonably support a finding that Ms Kumar was, at the
time, driving without due care and attention, or without reasonable
consideration for other persons using the highway, or at a speed that was
excessive to the conditions; (c) that when Mr. Miles entered the left
lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car;
and, (d) that when Mr. Miles entered the left lane he did so in
breach of his statutory duties pursuant to ss. 151(a) and 151(c) of
the MV Act.

[63]        
In addition to the foregoing, I am also satisfied that there is no evidence
upon which I could reasonably conclude: (a) that Ms Kumar ought to
have known that Mr. Miles would disregard her right of way; or, (b) that
there was sufficient opportunity for a reasonably careful and skilled driver in
the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker
v. Brownlee, supra).

[64]        
The evidence establishes that Ms Kumar’s view of Mr. Miles was
obscured by the truck to her right. There is no evidence that Ms Kumar saw
Mr. Miles at any time prior to entering the left lane in front of her, and
no evidence from which it might reasonably be inferred that with the exercise
of due care and attention she would have seen Mr. Miles; accordingly,
there is no sound basis to find that Ms Kumar ought to have: (a)
anticipated that Mr. Miles would disregard her right of way; and, (b)
taken reasonable steps to avoid colliding with him. When Mr. Miles entered
the left eastbound lane, Ms Kumar had virtually no warning and no reasonable
opportunity to avoid the collision. Ms Kumar was a new driver but there is
no reasonable basis to conclude that inadequate skill or care was a factor in
the collision; moreover, the absence of a reasonable opportunity to avoid the
collision accords with Mr. Miles’ unexplained lack of memory of
successfully changing lanes before he was struck. The evidence suggests that Mr. Miles
moved into the left lane at a distance so close to Ms Kumar’s approaching
car that it is highly improbable that a skilled and careful driver in the
position of Ms Kumar would have been able to avoid the collision by taking
reasonable evasive action.

[65]        
In light of all the foregoing, I am not persuaded that the plaintiff has
established that Ms Kumar was negligent to any degree; thus, there is no
basis to apportion to the defendants any liability for Mr. Miles’ injuries
and losses.

[66]        
The plaintiff has submitted that the Court should draw an inference
adverse to the defendants because Ms Kumar – “the only person who could
have provided evidence as to her position, speed, attentiveness, driving
experience, familiarity with the road, as to when she first saw Mr. Miles,
and as to why she made no attempt to avoid a collision” – who had been
scheduled to testify, did not do so, and without explanation. In support of this
position, the plaintiff cites Bronson v. Hewitt, 2010 BCSC 169. In Bronson,
the court drew an adverse inference against the defendants because one of the defendants
did not testify. The court found that this defence decision deprived the court
of the best evidence of conversations critical to deciding the case.

[67]        
The defendants submits that Bronson is distinguishable from the
case at bar. In Bronson, a positive defence was advanced; one which
required proof of the content of critical conversations between the two
defendants. The court observed that evaluating the defence advanced obliged the
court to consider the credibility of both defendants, and the failure to call
one defendant deprived the court of the best evidence of the conversations and
the opportunity to assess credibility – a matter very much in issue.

[68]        
In the case at bar, the defendants note that a positive defence has not
been advanced. Here, the defendants simply rely upon the onus the plaintiff
bears to prove its case. The defendants’ position is that the plaintiff has
failed to prove the negligence alleged. In support they cite McIlvenna v.
Viebig, [2012] B.C.J. No. 292, 2012 BCSC 218. In reviewing the law on
adverse inferences, the court in McIlvenna stated:

[70]      The law with respect to adverse inferences in civil
cases when witnesses are not called is summarized in Halsbury’s Laws of
Canada [Civil Procedure II, 1st ed (Markham: LexisNexis, 2008) at para
228; Evidence, 1st ed (Markham: LexisNexis 2010), at para 14] under both Civil Procedure,
and Evidence headings, respectively, as follows:

It is highly unusual for a party
not to testify in a civil trial. The court may draw an adverse inference from
the fact that a party fails to testify, provided that it is reasonable in the
circumstances to do so. In order for an adverse inference to be drawn, there
must be a dispute as to those facts concerning which the party would be
competent to testify. Furthermore, if the plaintiff has failed to establish a
prima facie case against the defendant, no adverse inference will be drawn
should the defendant not testify. Nor is a party required to testify to rebut
allegations that are plainly absurd. More generally, an adverse inference will
not be drawn where the effect of drawing such an inference is to reverse the
onus of proof.

…

There is no obligation on any party to call any particular
witnesses. However, the trier of fact may draw an adverse inference from a
party’s failure to call a witness whose testimony would be expected to assist
the party’s case.

[69]        
Having regard to the foregoing, I agree with the defendants that the
effect of drawing an adverse inference against Ms Kumar would be to
reverse the onus of proof; moreover, Ms Kumar was extensively
cross-examined at her Examination for Discovery and the plaintiff chose to
“read in” many of Ms Kumar’s answers as evidence in the plaintiff’s case.

[70]        
 I am satisfied that there is a critical distinction between the case at
bar and that in Bronson. Here, the defendants have not advanced a
positive defence and then elected not to testify in support of it. In such
circumstances, the defendants are entitled to rest upon the plaintiff’s failure
to prove his case. Drawing an adverse inference against the defendants for the
failure to present a case with Ms Kumar as a witness would undermine the
fundamental legal premise that it is the party alleging the wrongdoing who
bears the onus of proof.

E. Conclusions

[71]        
Mr. Miles has failed to prove on a balance of probabilities that
the collision in question was caused by the negligence of the defendants;
instead, the evidence strongly suggests that Mr. Miles was, in the words
of counsel for the defendants, “the author of his own misfortune”. Regrettably,
it is, indeed, misfortune for Mr. Miles.  He continues to suffer the negative
impact of a momentary lapse of good judgment as an experienced, yet vulnerable,
cyclist; however, it was his lapse and not that of Ms Kumar. It would be
unjust to apportion any blame to the defendants in these circumstances.

[72]        
In the absence of proof of any liability on the part of the defendants,
no useful purpose would be served by engaging in a comprehensive quantification
of Mr. Miles’ damages; accordingly, I do not intend to do so.

F. Disposition

[73]        
The plaintiff’s claim is dismissed.

[74]        
The parties may make written submissions as to costs if such is necessary
given the result.

“The Honourable Mr. Justice
Bernard”