IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131029

Docket: M123960

Registry:
Vancouver

Between:

Dominic Rockall

Plaintiff

And

Alberni
Construction Ltd.

and Robert Wallace
Stephens

Defendants

Before:
The Honourable Mr. Justice Leask

Oral Reasons for Judgment

In
Chambers

INTRODUCTION:

[1]           
THE COURT: Mr. Rockall was riding his bicycle westbound on
Highway 4 west of Port Alberni at approximately 6:30 a.m. on September the
16^th, 2010.

[2]           
Mr. Stephens was driving his work vehicle, a 2001 Ford 250 4X4
pickup truck, owned by his employer, Alberni Construction Ltd., westbound on
the same highway at the same time.

[3]           
Mr. Rockall was injured and this lawsuit is to determine whether Mr. Stephens,
as the driver, and Alberni Construction Ltd., as the owner of the vehicle, are
liable for Mr. Rockall’s injuries.

[4]           
The vehicle owner admits that Mr. Stephens was authorized to drive
their Ford pickup truck, but does not admit any liability for Mr. Rockall’s
injuries.

[5]           
In this case, the issues of liability and quantum of damages have been
severed. The hearing I have conducted dealt solely with the issue of
liability for causing Mr. Rockall’s injuries.

EVIDENCE:

[6]           
In terms of Mr. Rockall’s evidence, he testified that at the time
of the accident the road surface was dry, the weather clear, and it was still
dark. Daylight had not arrived. He was riding his bicycle with front and rear
lights.

[7]           
The highway is essentially an east west highway with one lane of travel
in each direction. Where the accident occurred there is a slight curve to the
right for westbound travel. The asphalt road surface has a gravel shoulder that
borders the outside of the westbound lane and adjacent to that gravel shoulder
is an embankment that extends down to a nearby river.

[8]           
Mr. Rockall testified that he is an experienced cyclist, rides his
bike two or three times per week for fitness. He is familiar with the location
where the accident occurred; he testified this was his favourite riding spot if
he had the time.

[9]           
On the day in question he was riding near the far right edge of the
westbound traffic lane and he testified that he was travelling approximately 10
to 15 kilometres per hour.

[10]       
At a point in his journey the front wheel of his bike went onto the
gravel shoulder. When he tried to correct the path of the bicycle he
encountered a ridge caused by the tarmac road surface. At the point where he
was trying to get back onto the road the ridge was two to three inches in
height and in some fashion the front wheel of the bicycle essentially got hung
up on that ridge.

[11]       
Mr. Rockall felt that the bike was sliding out from under him and
he engaged in what I think we could call a controlled fall to his left
onto the roadway. He was intruding on the westbound lane approximately the height
of a tall man, six feet.

[12]       
Mr. Rockall testified that he landed on his left-hand side and did
not experience any immediate pain or perceive that he had suffered immediate
injury. He stood up, picked up his bicycle, moved off the road onto the gravel
shoulder.

[13]       
At some point before the trial he had estimated that that event took
five to ten seconds. At some point nearer to the trial he had attempted to do a
reconstruction of it and timed himself at seven seconds.

[14]       
When he got off the road he was standing on the gravel shoulder holding
onto his bike, which was just on the edge of the tarmac. He heard the sound of
a vehicle driving on the gravel and felt himself being struck on his left hip
buttock area. He pretty much fell where he was standing and his evidence was
that he felt pain almost immediately and felt that he was unable to get up.

[15]       
Mr. Stephens’ evidence is, firstly, he agreed with Mr. Rockall’s
evidence about the road conditions. I do not think there is any dispute
about that. After he drove across the orange bridge, which is a landmark on the
highway west of Port Alberni on Highway 4, he noticed a cyclist riding
westbound ahead of him on the highway. He soon caught up with him but was
unable to pass safely because of oncoming eastbound traffic.

[16]       
He testified that for a certain distance he was following the cyclist,
travelling at approximately the same speed as the cyclist, that is to say, 10
or 15 kilometres per hour.

[17]       
He then observed the cyclist turn towards the centre of the road and
fall off his bicycle over the handlebars and onto his left side. He saw the
cyclist get up and take his bicycle towards the side of the road. At this
moment he was unable to pass the cyclist on the left because of two oncoming
motor vehicles in the eastbound lane. He believed that he did not have
sufficient separation from the cyclist to stop his vehicle without hitting him.
He, therefore, steered to the right onto the gravel shoulder. He also testified
that while executing this manoeuvre he was concerned about the riverbank
further right.

[18]       
He did not see any contact between his vehicle and the cyclist and after
passing the spot where the cyclist had been standing he thought he had a near
miss. His first thought was simply to drive on. When he looked back he saw the
cyclist lying down beside the road at the place he had last seen him standing. He
stopped his vehicle and went back to speak to Mr. Rockall. He then called
the police and an ambulance, who took approximately 15 minutes to arrive at the
scene.

[19]       
When interviewed by the police at the scene, he said a couple of things.
First, in response to the question: “Can you explain to me what happened here?”
his answer was:

I was coming back from town.
I had just got fuel for my work truck and I seen a bicycle there in
the middle of the road and he fell down. And I tried to go around him and
he jumped up and jumped towards the side of the road which I was trying to
go around him and I believe we made contact. I’m not a hundred per cent
sure, but I believe we did.

[20]       
And, then, towards the end of his discussion with the officer he is
asked this question:  “And you say you can’t see if he hit your truck?” And his
answer was:

No. I — there’s no —
no damage. There’s — and I believe — I’m not sure how hard he hit it. It
— if he bounced off it or if he was hit by it, but I didn’t see contact.

[21]       
At trial, Mr. Stephens’ evidence was that he did not see his truck
make contact with Mr. Rockall but he could not say that it did not happen.

[22]       
Now, in addition to those two parties testifying we had three experts
give evidence. I am going to deal first with the expert from Baker Engineering
who was called by counsel for the defendants. His name was Mr. Harper. He
is an accident reconstruction expert. He visited the scene of the accident and
prepared a site diagram which was presented to the court independently and used
by one of the other experts in forming his conclusions.

[23]       
Mr. Harper’s conclusions were:

Our analysis of this incident is based on a review of
documentation provided, an examination of the bicycle ridden by Mr. Rockall,
and an examination of the accident site four weeks after the incident. We
conclude the following:

(1)           
We found no evidence on the bicycle or at the accident site which would
allow us to conclude whether or not the bicycle or bicyclist was contacted by
the truck.

(2)           
There are irregularities at the road edge in the area of the described
incident which could cause considerable control problems were a rider to
encounter these irregularities.

(3)           
Tire track evidence at the scene is consistent with Mr. Stephens
having performed an avoidance manoeuvre onto the shoulder.

(4)           
The location of some of the road edge irregularities is consistent with
an area Mr. Stephens may have been trying to avoid in his steering manoeuvres.

[24]       
I might say that in cross-examination Mr. Harper agreed with a
statement that I think is in Dr. Toor’s report. One of Dr. Toor’s
conclusions, which I will get to in a moment, was: “The findings in the
Baker report do not preclude that contact occurred between the Stephens’
vehicle and Mr. Rockall.” And the author of that Baker report, Mr. Harper,
agreed with that statement. Indeed, I got the impression he thought that
it was obvious. But, in any event, he agreed with it.

[25]       
Now, another of the experts called in this case by counsel for the
plaintiff was Dr. Viskontas, who is an orthopaedic trauma surgeon. His
report contained as its opinion both a diagnosis and an opinion about causation.
His diagnosis of  the injuries were:

(1)           
Open book pelvic fracture consisting of symphyseal widening and left
sacroiliac fracture requiring an open reduction and internal fixation.

(2)           
Penile numbness.

(3)           
Left posterolateral hip and pelvic pain.

[26]       
Then also as part of his opinion and headache causation:

Mr. Rockall’s pelvic fracture is most likely due to him
being hit by the vehicle rather than him falling off his bicycle. The reasoning
for this is as follows:

(1)           
An open book pelvic fracture such as that suffered by Mr. Rockall
is typically due to a high energy mechanism, especially in a young, healthy
patient with good soft tissue and bone quality. Mr. Rockall has a widening
of the symphysis pubis by 3.5 centimetres, as stated in the CT pelvis scan
report. He was wearing a pelvic binder (a circumferential device applied to the
pelvis for open book injuries to close down the volume of the pelvis) at the
time of the CT scan, so likely the widening at the time of injury was greater
than that. As well, he has a comminuted sacral fracture. This injury pattern is
typically seen in falls from large heights, motorcycle and motor vehicle
collisions, and impacts and injuries with a significant amount of force. This
injury is not seen in people falling off of a bicycle riding at approximately
10 kilometres per hour.

(2)           
Mr. Rockall clearly recalls not having pelvic or left hip pain
after falling off of his bicycle. As well, he was able to stand up after his
fall and attempted to move off the road onto the gravel shoulder. A person who
had an open book pelvic fracture such as the one Mr. Rockall had would not
be able to stand back up and try to move off the road. Mr. Rockall clearly
recalls having left pelvic and hip pain and not being able to stand up after
being hit by the truck.

(3)           
There are different patterns of pelvic injuries. An open book type
pelvic fracture is one pattern that is typically seen in people that have
either been hit in the back of the pelvis or in the front. The vector of force
is generally from either an anterior to posterior direction or acts as a
fulcrum posteriorly, externally rotating one or both of the hemi pelvises. Mr. Rockall’s
open book pelvic fracture is more likely due to the fact that he was hit on the
back of his pelvis by the pickup truck rather than him falling off his bicycle
onto his left side. If he had fallen onto the left side of his pelvis with
enough force this may have led to a lateral compression type pattern of pelvic
fracture. This pattern is due to one-half of the pelvis rotating internally as
the load comes from the side of the pelvis. This mechanism does not lead to a
widening of the synthesis pubis of the pelvis as seen in open book fractures. Therefore,
the open book pattern of injury seen in Mr. Rockall’s case is more
consistent with a large force hitting the posterior aspect of his pelvis by a
pickup truck rather than him landing on his left side when he fell off of his
bicycle.

[27]       
Now, Dr. Viskontas was cross-examined by counsel for the defendants,
Mr. Christofferson, and some of that cross-examination is significant. The
first point made by the cross-examiner dealt with speed. The question was:

Q         Okay. And
you have informed the court that the injuries are more consistent with a high
velocity impact than – than this cycling incident, correct?

A          Yeah,
yes. That would be correct.

And the follow-up question: 

Q         What
type of speed change is normally associated with these type of high impact
injuries?

A          So they’re generally higher
speeds such as 40, 50 kilometres an hour or higher.

[28]       
Then, as to the possibility of simply falling off the bicycle the
question was asked:

Q         Okay. Are
they — are they — is there a potential that a cyclist could suffer this type
of injury?

A          Depending on the trajectory of
force, yes.

[29]       
Then counsel attempted to get the expert to describe what angle would be
a fore and aft blow and what angle would be a side blow. And there was a couple
of questions and answers related to that:

Q         Okay. If
I — so it’s — it’s quite a narrow range then that would be strictly described
as side impact then?

And
the answer began with these words:

A          Well,
I don’t know the exact angle. I just know that if somebody falls onto
their sides they typically have a lateral compression injury, whereas their hip
from the front or their back, then they would have an anterior or posterior or an
open book type of injury.

But
the expert continued:

I do not know what angle, you know, the force would change
from a lateral compression to an open book type injury. I guess that would
have to be looked at more specifically.

[30]       
And following that he was questioned in this way: “But we’re — we’re
not able to ascertain a range off of 90 degrees and 270 degrees where it would
be consistent … .” The expert did not even let him finish the question. The
answer was: “I do not know of a specific number.”

[31]       
And an important point dealing with the question of whether a person
could sustain this injury and then be able to move, the question:

Q         Now, if
a healthy gentleman had fallen in the middle of the road and suffered a
fracture of the open book type would it be possible with adrenalin and fear to,
at least, partially get up and fall off in a direction?

A          Yes, I would think so.

[32]       
And there was then some redirect and re-cross and Mr. Christofferson
followed up with sort of a combination of counsel and the court. Counsel begins:

Q         And if
a person had a support like a bicycle would he be able to use sort of the –

And
the court intervenes: “The bicycle like a crutch.”

And
counsel takes that suggestion:

Bicycle as a crutch and the one leg
that had some mobility to effectively travel?

A          I suppose if he could hop on
his right leg then he may be able to use the bicycle as a crutch.

[33]       
And the last expert — well, not last in time, but last that I am
dealing with — was Dr. Toor, who was an expert in accident reconstruction.
He did two reports, one on July the 18^th, 2013 and then a
rebuttal report on August the 6^th, 2013. His conclusions in his
first report were as follows:

(1)           
The Stephens’ vehicle would have travelled a distance of 4.2 metres
during the perception response time with the assumed speed of 10 kilometres per
hour.

(2)           
If the vehicle brakes were fully applied corresponding to a deceleration
rate of about 0.55 to 0.7 g the Stephens’ vehicle could have been brought to a
stop from a speed of 10 kilometres per hour at a distance of .6 to .7 of a
metre.

(3)           
Based on the assumption that the Stephens’ vehicle was 15.2 metres, 50
feet, from the cyclist when the cyclist was observed to have capsized:

(a)       the
Stephens’ vehicle could have decelerated at a rate of about 0.04 g’s and stopped
from an initial speed of 10 kilometres per hour; and

(b)       the
Stephens’ vehicle operator could have implemented the perception response
process and decelerated at about 0.55 to 0.7 g from an initial speed of about
25 to 7 kilometres per hour or less.

(4)        Based
on the assumptions that the Stephens’ vehicle was travelling 10 kilometres per
hour and was 5 seconds from the Rockall bicycle when the Rockall bicycle was
observed to have capsized:

(a)        the
Stephens’ vehicle would have been about 13.9 metres, which is 45.6 feet, from
the Rockall bicycle; and

(b)        the
Stephens’ vehicle could have stopped with a deceleration rate of 0.04 g.

(5)        Based on the assumed speed of
10 kilometres per hour for the Stephens’ vehicle that was calculated, the
Stephens’ vehicle would have been able to stop with deceleration rate
experience due to engine braking for both provided scenarios.

[34]       
Now, Dr. Toor was then provided with the report from Baker
Engineering, including the site diagram which was marked in this proceeding as
Exhibit 17. Based on his review of the Baker Engineering report and the site
diagram he came to the following conclusions:

(1)           
The Baker report prepared by G.T.K. Harper, P.Eng. was reviewed. The
Baker report could not determine if the Stephens’ vehicle did or did not strike
the bicycle or Mr. Rockall. However:

(a)       during
impact between a vehicle and a pedestrian or cyclist there may not be any
visibly obvious damage to either the involved vehicle or the bicycle;

(b)       the
findings in the Baker report do not preclude that contact occurred between the
Stephens’ vehicle and Mr. Rockall.

(2)        If the
Baker report’s description of the tire mark in the grass is considered together
with the Baker’s site diagram reproduced as Figure 1 in this report [and
I add again reproduced as Exhibit 17 in the trial] and the Baker
assumptions 7 through 9, then additional assessments can be made:

(a)        The
Stephens’ vehicle would have likely travelled a minimum distance of about 12 to
16 metres from a location near the middle of the westbound lane to the Stephens’
vehicle location when it began to cross over to the gravel shoulder.

(b)        If the
deviation in the intended path of travel of the Stephens’ vehicle was in
response to a hazard, as indicated in the Baker report, then the deviation
would have occurred after the operator of the Stephens’ vehicle detected and
responded to Mr. Rockall and/or his bicycle as a hazard.

(c)        A
vehicle decelerating at an emergency deceleration rate of 0.7 g can stop in a
distance of 12 to 16 metres from initial speeds of about 46 to 53 kilometres
per hour; and

(d)        A vehicle decelerating at about
0.2 g (a deceleration rate similar to normal braking for a known hazard such as
a stop sign) can stop in a distance of 12 to 16 metres from initial speeds of
about 25 to 29 kilometres per hour.

ANALYSIS:

[35]       
Counsel for the defendants makes a number of alternate submissions:

1)            
That the truck and the cyclist did
not collide.

2)            
In legal argument referred to as
agony of the collision; and

3)            
Contributory negligence by the
plaintiff.

(1) Collision

[36]       
Dealing first with the no collision submission. This argument depends in
part on the fact that neither the cyclist, nor the driver, saw the collision. It
also relies in part on counsel’s cross-examination of Dr. Viskontas.

[37]       
There are really two answers to this defence argument. First, there is
the testimony of Mr. Rockall. He didn’t see the truck hit him. He did,
however, hear the noise of its tires on the gravel. He felt an impact when he
was hit and knocked to the ground. Then, and only then, he felt the pain
associated with his injury. After that he was unable to move.

[38]       
Second, Dr. Viskontas in describing the open book injury to the
pelvis suffered by Mr. Rockall gave his opinion that such injuries are
caused by forces acting on the front or back of human victims. Side impact
forces cause noticeably different pelvic injuries. Both Mr. Rockall and Mr. Stephens
agree that Mr. Rockall fell off his bicycle on his left side. The whole of
Dr. Viskontas’s report and testimony supports the probability that Mr. Rockall
was struck in the front or back with more force than was likely to be
experienced by a cyclist falling off his bicycle.

[39]       
The points conceded in cross-examination, in my respectful view, amount
to possibilities rather than probabilities. On a balance of probabilities,
I am satisfied that Mr. Rockall was struck by Mr. Stephens’
truck and that blow caused the injuries he suffered that day.

(2) Agony of the Collision

[40]       
Counsel’s submission on that point is that Mr. Stephens was in the
agony of the collision at the crucial moments of the interaction between the
parties. The agony of the moment is a long-standing principle originating from
admiralty law. A British Columbia case that went to the Supreme Court of Canada,
Gill v. Canadian Pacific Railway, [1973] 4 WWR 593 encapsulates this
principle at para. 19:

It is trite law that faced with a
sudden emergency for the creation of which the driver is not responsible he
cannot be held to a standard of conduct which one sitting in the calmness of a
courtroom later might determine was the best course.

[41]       
The problem with the agony of collision argument is the evidence of Dr. Toor.
In his rebuttal report of August 6, 2013, relying in part on the defence
engineering report, he calculates that Mr. Stephens’ vehicle would have
travelled 12 to 16 metres from its position travelling westbound on the highway
to its probable point of impact with Mr. Rockall. With emergency braking a
vehicle can stop in that distance from speeds of 46 to 53 kilometres per hour. With
normal braking, such as for a known stop sign, a vehicle can stop in that
distance from speeds of 25 to 29 kilometres per hour.

[42]       
Based on Mr. Stephens’ own evidence, he was travelling 10 to 15
kilometres per hour. I think in his trial evidence he stated that possibly
he could have been going as fast as 17 kilometres per hour, but definitely not
as fast as 20 kilometres per hour. Put simply, Mr. Stephens had ample time
to stop safely. Therefore, I find as a fact that Mr. Stephens was not
in a situation where the agony of collision doctrine was available to him.

(3) Contributory Negligence

[43]       
Defence counsel’s submission on that subject was that after the
plaintiff fell he was a hazard on the roadway. He knew that he was a hazard for
westbound traffic. He got up quickly, by all accounts, which is appropriate. However,
his focus was on retrieving his bicycle before getting off the road instead of
getting himself to safety, while casting a glance in the direction of traffic
that would be coming his way. It only took a couple of seconds to get his bike,
but the defence states that those seconds were poorly spent. The plaintiff
caused the emergent situation and did not act reasonably in those seconds where
he moved toward the shoulder of the road. The plaintiff, that is Mr. Rockall,
cannot avail himself of the agony of the collision doctrine. He has to act to a
higher standard. To spend his time looking for, grabbing, and struggling with
his bicycle and not just getting out of the situation, while watching where you
were going, is simply the height of negligence that was the defence submission.

[44]       
Continuing with the defence submissions. Without appreciating what type
of situation he is heading into, scrambling off the road without looking is
reasonably expected to continue to put him in danger. It is not largely
different than running into the oncoming eastbound lane. Traffic behind him is
expected at 50 kilometres per hour. If traffic is not to run over him, cannot
stop, and cannot go into the oncoming traffic it reasonably has to go onto the
shoulder. He does not know how fast Mr. Stephens was approaching. He does
not know that Mr. Stephens was exercising extraordinary care approaching
him. The plaintiff has to expect the worst when he creates such a situation and
must act accordingly.

[45]       
That is the defence counsel’s submission about contributory negligence.

[46]       
Counsel for the plaintiff gave a short answer to this defence submission.
If Mr. Stephens has ample time to stop, Mr. Rockall getting himself
and his bicycle off the road is not negligent. It is prudent considering the
possibility of other vehicles on the road. Mr. Stephens has time to stop. If
Mr. Rockall had looked up and saw him approaching he would have realized
that and continued to act as he did. It was not reasonable for him to
anticipate Mr. Stephens’ failure to brake.

[47]       
I agree with plaintiff’s counsel and I reject the defence
submission that the plaintiff was contributorily negligent.

CONCLUSION:

[48]       
I am satisfied on a balance of probabilities based on all of the
evidence and submissions of counsel that the collision between the truck owned
by the corporate defendant and driven by Mr. Stephens was caused by the
negligent driving of Mr. Stephens. For that reason both defendants are
jointly and severally 100 per cent liable for the injuries suffered by Mr. Rockall.

[49]       
THE COURT:  I thank you both for conducting a very efficient trial,
or all three counsel. Thank you.

[50]       
THE CLERK:  Order in court. Court is adjourned.

“Leask, J.”