IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Penner International Inc. v. Basaraba Estate, |
| 2013 BCSC 2356 |
Date: 20131223
Docket: M143726
Registry:
New Westminster
Between:
Penner
International Inc.
Plaintiff
And
Lillian Vera
Basaraba as Executrix of the Estate of Larry Basaraba, Deceased, and Superior
General Partner Inc. doing business as Superior Propane
Defendants
Before:
The Honourable Mr. Justice Jenkins
Reasons for Judgment
Counsel for Plaintiff: | J.A.S Thomson |
Counsel for Defendant: | L.G. Harris, Q.C. |
Place and Date of Trial: | New Westminster, B.C. December 4, 2013 |
Place and Date of Judgment: | New Westminster, B.C. December 23, 2013 |
I.
INTRODUCTION
[1]
In this proceeding I am asked to determine liability for the second of
two motor vehicle accidents which occurred within seconds of each other on
snow-ridden Highway 16 near the Yellowhead Lake turnoff near Valemount, B.C. on
January 14, 2011. At issue is the standard of care of a driver facing a near
whiteout on a rural highway.
[2]
Two large highway tractor-trailers, or rigs, were involved in the
accidents as was a tanker truck which was being driven by the late Mr. Basaraba
who died in the first of the two accidents. It is admitted that Mr. Basaraba
was negligent and responsible for the first accident.
[3]
The plaintiff owns the two tractor-trailers involved in the accidents
and claims the cost of damage to them.
[4]
I will set out a summary of the relevant facts, which are not in
dispute, before discussing the issues and my findings on liability.
II.
The Accidents
[5]
At approximately 12:40 p.m. on January 16, 2011, Mr. Basaraba was
driving a tanker truck owned by his employer, Superior Propane, westbound on
Highway 16. Highway 16 is a two-lane highway in the area where the accidents
occurred.
[6]
At the same time, the plaintiffs two tractor-trailers were travelling
eastbound on Highway 16. The first Penner vehicle was driven by Mr. Frank Reimer,
and following less than a minute behind Mr. Reimers tractor-trailer was the second
Penner tractor-trailer was driven by Mr. Ray Gustavson. Although there were two
tractor-trailers owned by the plaintiff in close proximity, the vehicles were
not travelling together. The drivers had observed each others units at a truck
stop earlier that day; however, they were not aware that they were travelling
so closely.
[7]
Mr. Gustavsons rig was fully loaded. The gross vehicle weight, which
includes the weight of the vehicles and its load, was 80,000 pounds.
[8]
The speed limit in the area of the accidents was 100 km/hr. Immediately
prior to the accidents, it was snowing heavily. In a statement given to the
RCMP following the accidents, Mr. Reimer stated it was icy and snow [was] blowing
very bad. Mr. Reimer also stated that there was considerable traffic on
Highway 16 that day and he had been passed by several trucks.
[9]
Mr. Gustavson was asked about the weather conditions in his examination
for discovery and stated at pages 36 to 38:
Q. And the — you saw — saw — your vision was
obscured by snow?
A. Yes.
Q. Was it snowing heavily?
A. Yes. It was just blowing the snow pretty heavy
that day.
Q. What
did you see up ahead that led you to input that there was an accident?
A. Just
the snow. It was blowing on the road but I never knew there was an accident
ahead of me until I —
Q. So what
was the maximum distance that you could see in front of you?
A. About
5 to 10 centimeters.
Q. I dont
think centimeters.
A. Not
even — because you couldnt even see from
Q. Well,
theres a building across the street from us here. Its a blue building.
A. From
that end to this end, you couldnt even see half a ways down the table here.
Q. So
youre pointing to the boardroom table.
A. Yeah.
Q. So it
was — this table was what 10, 15 feet in that area? Thats as far as you could
see?
A. Yeah.
Q. Do you
remember seeing — coming across an accident scene?
A. No.
Q. You
just remember —
A. Not
till —
Q. You
just remember snow blowing?
A. Yeah.
Q. And
being able to see only 10 to 15?
A. Yeah.
[10]
In these conditions Mr. Basaraba, while travelling westbound, drifted
into the eastbound lane of Highway 16. Mr. Reimer suddenly saw the headlights
of the Superior Propane truck driven by Mr. Basaraba directly in front of him.
Mr. Reimer immediately swerved to the left in an attempt to avoid the Superior
truck but the front passenger side of his tractor-trailer struck the front
passenger side of the Superior truck. Mr. Reimers vehicle deflected to his left,
or towards the north side of the highway, into the westbound lane and
jackknifed. The trailer of Mr. Reimers rig was sitting at an angle to the
highway so that the rear of the trailer was partially in the eastbound lane.
[11]
The impact caused the Superior Propane vehicle to spin 180 degrees, and
the cab to tear from the tank portion of the vehicle. The tank remained on the
south shoulder of the highway, partially in the eastbound lane. Tragically, Mr.
Basaraba died, likely immediately.
[12]
Meanwhile, Mr. Gustavson had been continuing eastbound a matter of
seconds behind the Reimer vehicle, driving, according to him, at between 30 and
40 km/h in the snow storm. He suddenly saw the back of Mr. Reimers trailer,
which was partially in the eastbound lane, and also the wreckage of the
Superior Propane truck, which was on the south or right side of Mr. Gustavson
and was partially in the eastbound lane. Not having time to stop, Mr. Gustavson
attempted to drive between the Superior Propane truck and the trailer on Mr.
Reimers rig. However, there was not enough room and he impacted with the back
right portion of Mr. Reimers trailer, pushing it further towards the north
side of the highway, dangerously close to going over a steep hillside. Mr.
Gustavsons rig ended up eastbound on the south side of the highway, but off
the highway. There is no evidence before me as to the width of the shoulder on
the south side of the highway at the area of the accidents.
[13]
There was extensive damage to the tractor, trailer and contents of Mr.
Gustavsons rig. The trailer of Mr. Reimers rig also sustained considerable
damage.
[14]
Mr. Reimer deposed in an affidavit submitted in evidence by agreement
that the second accident occurred 5 to 10 seconds after the first accident.
In his examination for discovery evidence which was read in at trial, Mr.
Reimer stated that it was less than a minute, for sure between the two
accidents. Considering the circumstances, it is quite understandable that Mr.
Reimer would not be able to give an accurate time between the accidents. Regardless,
the time difference is not material except to establish that Mr. Gustavsons
rig was very close behind Mr. Reimers and with the heavy snowfall, Mr. Gustavson
would not have realized how closely he was following Mr. Reimers rig.
[15]
Attached as Appendix A to these reasons for judgment is a sketch of
the location of the vehicles prepared by a member of the RCMP. Vehicle #1 is
the Superior Propane cab and tanker, vehicle #2 is Mr. Reimers rig and vehicle
#3 is Mr. Gustavsons rig. The reference on the sketch to Gouges @ POI identifies
where the Superior Propane truck and Mr. Reimers rig impacted.
[16]
Also in evidence was a Collision Investigation Report prepared by
Jonathan Lawrence who was retained by the defence to investigate the aspects
of the second accident including to comment on the speed of the Freightliner [that
is, Mr. Gustavsons truck] at the time of the crash. To help him prepare his
opinion, Mr. Lawrence had at his disposal the RCMP Traffic Analyst
Investigation Report, 64 photographs of the scene and GPS data from the Engine
Control Module for Mr. Gustavsons vehicle.
[17]
At pages 5 to 6 of his report, Mr. Lawrence made the following
significant finding:
I have assumed that the driver of
the Freightliner claims he approached the accident location at a speed of 30 to
40 km/h (or 27 to 37 feet per second). Furthermore, I have assumed that the
driver could see 10 to 15 feet ahead. This visibility distance would have
allowed the driver less than 0.6 seconds to react to a hazard. Because typical
perception-response times are about 1.1 seconds [Olson, 1989] 0.6 seconds would
not be enough time to react to a suddenly appearing hazard. A slower speed (in
the range of 10 to 15 km/h) would have been required to allow any reaction with
a visibility distance of 10 to 15 feet.
I note that Mr. Lawrence did
not state that at the slower speeds of 10 to 15 km/h, Mr. Gustavson would have
had time to avoid the second accident. Rather, he only stated that the slower
speed was required to allow any reaction, and would not have allowed for any
time to depress the brake and bring the truck to a stop. I conclude that even
at such a slow speed of 10 to 15 km/h, Mr. Gustavson could not have avoided the
accident; however, there would have been less of an impact and perhaps less
damage.
[18]
Mr. Lawrences conclusions included the following:
1. The left
front corner of the Freightliner [Mr. Gustavsons vehicle] struck the right
rear corner of the Volvos [Mr. Reimers] trailer.
2. Data from
the engine control module of the Freightliner does not provide the information
necessary to precisely estimate the speed of the truck at the time of the
crash.
3. Assuming
that the clock in the ECM was accurate and the collision occurred at 12:40 as
the police recorded, data from the engine control module of the Freightliner
and the GPS system indicate average speeds in the range of 60 to 83 km/h over
the hour or two leading up to the crash.
4. Accounting
for potential errors in the ECM clock and the recorded accident time, data from
the engine control module of the Freightliner and the GPS system indicate
average speeds in the range of 59 to 83 km/h over the hour or two leading up to
the crash.
5.
If Mr. Gustavson approached the accident location at a speed of 30 to 40
km/h with a visibility distance of 10 to 15 feet he would not have had enough
time to react to a suddenly appearing hazard. A slower speed (in the range of
10 to 15 km/h) would have been required to allow any reaction.
[19]
Regarding the changing snow conditions and visibility leading up to the
accidents, Mr. Gustavson also stated on examination for discovery:
Q. And as
you proceeded north or northeast along Highway 5 toward Highway 16, did the
snow increase? Was there more snow?
A. Yeah, it started to get worse.
Q. And at some point you turned off of Highway 5 and
on to Highway 16?
A. Yes.
Q. And
what happened to the snow then?
A. Oh, it just kept being the same.
And then it started getting worse and worse.
Mr. Gustavson stated that as conditions worsened as he
continued eastward, he slowed down considerably to cope with the decreasing
visibility.
III.
Issues
[20]
As stated earlier in these reasons, the defence admits liability for the
first accident between the Superior Propane vehicle and Mr. Reimers vehicle
due to Mr. Basaraba having been found to be driving westbound in the eastbound
lane of Highway 16. Mr. Reimer had little or no opportunity to avoid a
collision with the Superior Propane vehicle.
[21]
At issue before me is liability for the second collision between the two
Penner vehicles. I must determine whether Mr. Gustavson, driving the second
Penner vehicle, was negligent in the operation of his rig and the effective
cause of the second accident when his rig struck the back of the trailer of Mr.
Reimers rig. Alternatively, I must determine whether Mr. Gustavson was
contributorily negligent with respect to the second collision.
IV.
Submission of the Plaintiff
[22]
The plaintiff submits that Mr. Gustavson had no opportunity to avoid colliding
with the trailer on Mr. Reimers rig which was partly in the eastbound lane in
which Mr. Gustavson was travelling. The plaintiff further submits that Mr.
Gustavson faced colliding with the Superior Propane truck, which was also
partially in the eastbound lane, and that his only chance of avoiding a
collision was to attempt to go between Mr. Reimers trailer and the Superior
Propane truck. Whether there was sufficient space for Mr. Gustavsons rig to
pass between the two vehicles involved in the first collision is unknown;
however, I accept that Mr. Gustavson instinctively tried to manoeuvre between
those vehicles in the split second after they became visible to him.
[23]
Counsel for the plaintiff referred to the recent Court of Appeal
decision in Skinner v. Guo, 2010 BCCA 321, leave to appeal refd [2010]
S.C.C.A. No. 373. At para. 13 of that decision, Chief Justice Finch cited the
words of Mr. Justice Major in the Supreme Court of Canada decision Ryan v.
Victoria (City), [1999] 1 S.C.R. 201. Major J. stated at para. 28:
[28] Conduct is negligent if it creates an
objectively unreasonable risk of harm. To avoid liability, a person must
exercise the standard of care that would be expected of an ordinary, reasonable
and prudent person in the same circumstances. The measure of what is reasonable
depends on the facts of each case, including the likelihood of a known or
foreseeable harm, the gravity of that harm, and the burden or cost which would
be incurred to prevent the injury. In addition, one may look to external
indicators of reasonable conduct such as custom, industry practice, and
statutory or regulatory standards.
[Emphasis
in original.]
[24]
The plaintiff submits that Mr. Gustavson was not negligent in travelling
at between 30 to 40 km/h, which they submit is safe in the conditions and well
below the posted speed limit. Counsel submits that a speed of 30 to 40 km/h is
reasonable in the circumstances of this case, which include the speed limit,
weather conditions, the size and weight of Mr. Gustavsons rig, and the extent
of traffic on Highway 16 on the day of the accident. Central to the issue
before me is a determination of whether his continuing to travel through thick
snow on a busy, two-lane highway with visibility limited to 10 or 15 feet
created an objectively unreasonable risk of harm.
V.
Submission of the Defendant
[25]
Counsel for the defendants submits that Mr. Gustavson is contributorily
negligent as he failed to drive in a manner consistent with the requirements in
s. 144 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. That section
prohibits driving on a highway without due care and attention, without
reasonable consideration for others using the highway, or at a speed that is
excessive relative to the road, traffic, visibility or weather conditions.
[26]
Counsel for the defendants referred to the decision of Mr. Justice
Davies in Oliverius v. British Columbia, [1999] B.C.J. No. 138 (S.C.), another
case involving truck drivers caught in a whiteout on a busy two-lane highway.
In that case, the defendant, Mr. Clayton stopped or almost came to a standstill
upon exiting a snow shed on the Trans-Canada Highway and encountering sudden
whiteout conditions. Mr. Clayton pulled over to the right hand side of the
road to the extent he thought was safely possible. Within seconds another
slow-moving truck appeared behind him and was unable to stop before striking
the trailer of Mr. Claytons rig. Further vehicles following behind were unable
to stop and a chain of accidents occurred behind Mr. Clayton. It was alleged that
by stopping in those circumstances Mr. Clayton was negligent. In dismissing the
claim against Mr. Clayton, Mr. Justice Davies stated:
[43] I am satisfied that Mr. Clayton reacted
appropriately when faced with the unexpected white-out conditions in an avalanche
area. It would have been foolhardy to continue to proceed to the next show shed
through the white-out as was suggested by counsel for Mr. Oliverius. I find
that Mr. Clayton reacted in the agony of the moment to avoid the possibility of
a collision with any vehicle which might also have been caught in the
white-out, to avoid himself being caught in a possible avalanche, to avoid a
possible collision with oncoming traffic and to avoid driving off the roadway
into the ravine on the right side of the highway.
[44] In assessing whether Mr. Clayton acted
appropriately in the circumstances, I have considered the authorities to which
I was referred by all counsel as well as to the various provisions of the Motor
Vehicle Act (1996), c.318) relied upon by Mr. Oliverius.
[45] In assessing whether a driver has acted reasonably
and prudently in the circumstances facing that driver, care must be taken to
avoid standards of perfection based upon hindsight. See: Kuipers v. Gordon
Riley Transport Ltd. (1976), 1 C.C.L.T. 233 (Alta. S.C.) and Birk v.
Dhaliwal (1994) Duncan Registry No. S3207 (B.C.S.C.
[46] Mr. Clayton stopped
but never parked his vehicle. He stopped very briefly and only to avoid other
possible disastrous occurrences. These were actions necessarily taken for the
safe operation of his vehicle and did not contravene the Motor Vehicle Act.
[27]
The defendants use this case as an example of what is reasonable in
whiteout conditions on a busy highway. The defence submits that Mr. Gustavsons
speed of 30 to 40 km/h was much too fast considering the whiteout conditions of
heavy, driving snow with visibility of 10 to 15 feet. The defendants submit
that Mr. Gustavson was negligent in driving at this speed. Counsel refers to
the evidence in Mr. Lawrences report that while travelling at 30 to 40 km/h
Mr. Gustavson would not have had enough time to react to a suddenly appearing
hazard. That is exactly what happened. Considering reaction time, the time
needed to depress the brake and the time that would have passed until Mr.
Gustavsons rig could stop, it would have been impossible for Mr. Gustavson to
come to a stop before colliding with at least one of the vehicles before him.
[28]
As I mentioned above, in stating that a slower speed would have been
required to allow any reaction, Mr. Lawrence did not mean that a slower speed
would have prevented the collision. Mr. Lawrences report indicates that even
at the lower speed of 10 to 15 km/h, a collision could not have been avoided. For
Mr. Gustavson to have stopped his rig within 10 to 15 feet, he would have had
to have been driving at a speed of less than 10 km/h.
VI.
Analysis and Decision
[29]
Mr. Basarabas negligence in driving the Superior Propane vehicle into
the eastbound lane caused the first accident, which resulted in Mr. Reimers
trailer being positioned across the highway such that Mr. Gustavson was not
able to continue in his lane without hitting one of the other vehicles. But for
Mr. Basarabas negligence in crossing into the on-coming lane thereby causing
the first accident, Mr. Gustavson would have been able to continue along
Highway 16 unimpeded by the first accident. I therefore find that Mr.
Basarabas negligence was a cause of the second collision.
[30]
I also find that Mr. Gustavson was contributorily negligent in
continuing to drive at a speed of 30 to 40 km/h upon encountering snow
conditions that reduced visibility to 10 to 15 feet. An experienced truck
driver must consider all aspects of road safety including visibility, reaction
time, the distance required to stop his or her vehicle and the extent of
traffic at the time in question.
[31]
Upon encountering the heavier snowfall, it is possible that Mr.
Gustavson could have greatly reduced the likelihood of any collision by parking
on the side of the road with lights flashing and traffic cones placed behind
his vehicle. However, it is not clear on the facts before me whether it was
feasible for Mr. Gustavson to have stopped his vehicle and pulled over in a
manner that would be safe for vehicles travelling behind him.
[32]
Assuming therefore that Mr. Gustavson could not stop safely by the side
of the highway, he would have had to continue. However, a reasonable, prudent
truck driver experiencing those conditions would have continued only at a speed
much slower than 30 to 40 km/h. By continuing to travel at this speed in the
conditions, Mr. Gustavson created an unreasonable risk of harm. Had Mr.
Gustavson slowed down, he would still likely have collided with the Reimer or
Superior Propane vehicles, but the extent of damage to the Penner vehicles
would most likely have been considerably less. Therefore the plaintiffs
negligence in continuing at 30 to 40 km/h in those conditions caused or
contributed to the causation of the damage that resulted from the second
accident, and the plaintiff is contributorily negligent for the second
accident.
[33]
I therefore find Mr. Basaraba and Mr. Gustavson to each be 50% liable
for the damages resulting from the second accident.
VII.
Damages
[34]
Counsel advised that they hope to reach an agreement on quantum
following issuance of these reasons. If they are not able to reach agreement,
this action will be set for trial once again to determine damages.
VIII.
Costs
[35]
The defendant has been successful in that the major issue of whether Mr.
Gustavson was negligent was decided in their favour. In that case, costs would
normally follow the event. However, there may be facts of which I am not aware
which could be relevant to an award of costs. If that is the case and the
parties cannot reach agreement, I will receive submissions in writing from
counsel up to January 31, 2014.
Jenkins
J.
Appendix A
