IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140618

Docket: S114387

Registry:
Vancouver

Between:

Sienna Staaf

Plaintiff

And

Insurance
Corporation of British Columbia
and John Doe

Defendants

Before:
The Honourable Mr. Justice Burnyeat

Reasons for Judgment
(from Trial)

POSITION OF THE PARTIES

[1]            
On September 24, 2007 Ms. Staaf was driving a motor vehicle in
an easterly direction on the Georgia Viaduct in Vancouver when she says the vehicle
she was driving was hit by a motor vehicle negligently driven by a person
unknown to her.  As a result of being hit and as a result of taking evasive
action, the vehicle driven by Ms. Staaf went out of control, resulting in a
collision between the vehicle and the barriers on either side of the Georgia
Viaduct.

[2]            
On behalf of the unknown driver, the Defendant, Insurance Corporation of
British Columbia (“ICBC”) denies that the accident occurred as a result of the
actions of an unidentified driver and states that the accident occurred solely
as a result of the negligence of Ms. Staaf.

[3]            
This portion of the Trial deals only with the question of liability. 
The issue is whether or not there was a second motor vehicle involved.

Background AND AVAILABLE EVIDENCE

[4]            
At approximately 11:24 p.m. on September 24, 2007, Ms. Staaf
was driving a 1994 Pontiac Firebird (“Firebird”) owned by the company of her
boyfriend, Igor Bradaric.  Ms. Staaf testified that she was in the middle
lane of the Georgia Viaduct heading east when she encountered an unknown
vehicle that came up behind her, aggressively tailgating the Firebird.  When
she became concerned for her safety, she began to move her vehicle into the
right lane on the Viaduct and, as she did so, she felt an impact to the back of
her vehicle.  As she attempted to avoid the other vehicle and as a result of
the collision, she states that she sped up and was switching lanes when her car
went out of control, collided with the concrete barrier which separates the
Viaduct from the sidewalk on the south side of the Viaduct, went across the
Viaduct and collided with the concrete barrier on the north side of the
Viaduct, and then went back across the Viaduct to collide with the concrete
barrier on the south side of the Viaduct again.  As a result of the various
impacts, the two airbags of the Firebird deployed and the Firebird was damaged
beyond repair.

[5]            
Under cross-examination at the Trial, Ms. Staaf was asked whether
she had any recollection of telling either the constable who attended the scene
or any other witnesses that she felt that she had been “hit by another vehicle”
and she answered:

I can’t answer that with
certainty.  I feel like I talked to the police officer and told him
what was going on.  I feel as though I would have mentioned that.  I don’t
know, with the state I was in and as I said before, I was very,
very fuzzy.

[6]            
It is clear that Ms. Staaf was shocked and stunned as a result of
the accident but it is not clear whether she lost consciousness.  The occupants
of two vehicles stopped and two witnesses to the accident got out of their vehicles
and went to the assistance of Ms. Staaf.  Emergency ambulance attendants
and a police officer attended the scene.  Ms. Staaf spoke with the
attending constable and provided details to emergency ambulance attendants and
to hospital attendants regarding what had occurred and her injuries.

[7]            
Constable Vander Hoek arrived at the scene at approximately 11:30 p.m.  In
the “Motor Vehicle Traffic Accident Police Investigation Report” he completed, Constable
Vander Hoek noted the following:  “SINGLE CAR ACCIDENT, DRIVER LOST CONTROL
WHEN CHANGING LANES & ACCELERATED TO AVOID OVERTAKING VEHICLE.  HIT NORTH
GUARDRAIL FIRST, THEN SOUTH GUARDRAIL.”  In this regard, a Notice to Admit was
provided with the following admitted by the Defendants:  “Reporting to the
investigating police officer, Constable Shane Vander Hoek, at the scene of the
crash, that an unknown driver was involved in the accident circumstances.”

[8]            
In the “General Occurrence Hardcopy” prepared by Constable Vander Hoek,
he recorded the following:

Driver STAAF attempted to change lanes, lost control and hit
both the north and then south guardrails causing extensive damage

No other vehicles involved, no alcohol involvement, no
enforcement action taken.

Driver STAAF wanted to move to
the northernmost lane and began to do so.  Driver STAAF was concerned about a
N/k vehicle rapidly overtaking her in that lane and accelerated to keep ahead
of it.  Unfortunately this caused STAAF to lose control of … [the vehicle] and
she struck the north cement guardrail hard, causing extensive damage to the
front end of … [the vehicle] … The[vehicle] then went across the 3 lanes
of traffic to hit the south guardrail and suffered extensive damage to the
passenger side rear of the vehicle and coming to rest there.  During the course
of the accident the airbags deployed.   Fortunately Driver STAAF struck no
other vehicles in the course of her accident.

[9]            
At Trial, I record
Constable Vander Hoek as stating this regarding what he was told by Ms. Staaf: 
with reference to “bright lights”, she stated that it was a vehicle “coming up
behind her rapidly” so that there was a “not known driver in vehicle” who was
not “identifiable”.  He confirmed that Ms. Staaf had never indicated to
him that her vehicle had been hit.  He also confirmed that Ms. Staaf did
not tell him why she was changing lanes:  “No, just because she wanted to”.

[10]        
Emergency paramedics arrived at approximately 11:47 p.m.  Mr. Aaron
Mahoney was the ambulance attendant and primary care paramedic who attended the
scene of the accident.  He made the following note on the “Crew Report”:  “PT STATES SPUN MIDSIZE CAR END FOR END
ON GEORGIA VIADUCT CAUSING ALL AIRBAG DEPLOYMENT. APPROX. SPEED 60-70 KM/H.”

[11]        
After examining Ms. Staaf,
emergency paramedics transported her by ambulance to St. Paul’s Hospital
where Ms. Staaf was attended by medical staff with their investigations
including a CT scan of her head.  Dr. Robert Stenstrom was the
attending emergency physician at St. Paul’s Hospital on September 25,
2007 although a different doctor filled out the “Emergency Physician Assessment”
form.  Under the heading “History
and Physical Exam” in that form, the following was noted:

MPL: Pt was in the small-to-mid
size vehicle on driver’s sit.  Was speeding (@ 60-70 km/h) trying to get ahead
another vehicle.  Did hit curb, car spun couple of times, has very significant
damage.  All airbags got deployed.  Pt doesn’t remember clearly whenever she
lost consciousness or not for a while.

[12]        
Ms. Staaf was released from St. Paul’s around 2:28 a.m. on September 25. 
Ms. Staaf was living with Mr. Bradaric at the time.  He came to
St. Paul’s and accompanied her to their apartment.  Mr. Bradaric monitored
her condition during the night and early morning.

[13]        
As the registered owner, Mr. Bradaric made a report by telephone to
ICBC on the morning of September 25, 2007 through the Dial-A-Claim service. 
Deena Foot was an adjuster for ICBC and she inputted the information she received
as a result of the conversation with Mr. Bradaric.  The following
information was inputted by Ms. Foot:

DETAILS
NOT CLEAR, SOMENE [sic] CAME UP ON INS LEFT, INS CHANGING LANES AND INS MIRROR
CLIPPED AND VEHICLE SPUN, BOUNCING OFF BARRIERS.

[14]        
Ms. Foot had no recollection of the call made to her.  Accordingly,
she could only refer to the records that were maintained by ICBC.  Ms. Foot
confirmed that a verbatim record was not kept as she only had three lines to
input information into the computer.  Ms. Foot confirmed that she had
written:  “Mirror clipped” in the September 26, 2007 “Claim File Report”. 
When it was put to her in cross-examination at the Trial that this could have
been a hit and run situation, Ms. Foot stated:  “Possibly but not likely.”
as she would usually use words such as “left scene” if she had been told that
it was a hit and run situation.

[15]        
On September 26, 2007, Ms. Staaf and Mr. Bradaric went to
an ICBC claim centre where Ms. Staaf made a statement to the adjuster
concerning the circumstances of the accident.  The statement was reduced to
writing but not signed by Ms. Staaf until March 20, 2008.  Vianne Bacchus
was the adjuster for ICBC.  After meeting with Ms. Staaf and Mr. Bradaric,
Ms. Bacchus prepared a one-page statement for the signature of Ms. Staaf
and made notes in the ICBC computer file relating to the accident.  The
statement signed by Ms. Staaf contained the following:

I WAS DRIVING HOME FROM
SHOPPING WHEN I WAS INVOLVED IN A HIT AND RUN ACCIDENT.  I WAS
DRIVING ALONG THE GEORGIA VIADUCT WHEN I WAS CLIPPED BY A LARGE SUV THAT
CAME UP BEHIND ME.  I WAS HIT IN THE REAR OF THE CAR AND THAT CAUSED ME TO
LOSE CONTROL OF THE CAR AND HIT THE BARRIER.  I AM NOT SURE OF THE ACTUAL DETAILS
BUT I WAS HIT AND SPUN AND THE AIRBAGS DEPLOYED.

[16]        
Ms. Bacchus provided the following input into the ICBC computer:

INS’D
ONLY REMEMBERS DRIVING HOME FROM GROCERY SHOPPING: GOING N/B ON GEORGIA
VIADUCT. RO REMEMBERS CHANGING FROM MIDDLE LANE IN LN 1/3 . INS’D STATES SHE
WAS NUDGED FROM BEHIND AFTER SHE HAD CHANGED LANES SHE STATES THE ONLY CAR
BEHIND HER PREVIOUSLY WAS IN THE MIDDLE LANE SHE HAD COME FROM … RO FELT THIS
CAR WAS A LARGE SUV.  RO FELT THAT UNKNOWN TP WAS AT LEAST 5-6 CAR LENGTHS
BEHIND HER AT TOL, AND FEELS TP MUST HAVE DELIBERATELY COME UP FAST TO TRY AND
PASS HER.  DRIVER REMEMBERS GETTING NUDGED ON L/R THEN CAR LOST CONTROL AND
SPUN INTO BARRIERS SEVERAL TIMES.

[17]        
ICBC did not accept the version of events as recounted by Ms. Staaf. 
A charge was laid under s. 42(1) of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231, as it was alleged that Ms. Staaf made a false statement
to ICBC on September 26, 2007.  After a two-day trial in July 2009, Ms. Staaf
was acquitted of the charge.  A transcript of parts of the Provincial Court
proceedings is in evidence.

[18]        
These proceedings were commenced on September 21, 2009 in the
Vancouver Registry of the Provincial Court (Small Claims Court).  On June 23,
2011, an order was made transferring the action of Ms. Staaf from Provincial
Court to this Court.

Evidence of WITNESSES at the Scene

[19]        
In addition to the testimony and evidence presented by Ms. Staaf,
two independent witnesses were available to testify regarding what they saw on
September 24, 2007.

(a)           
Statements Made and Evidence of Ms. Staaf.

[20]        
While there had been a number of inconsistencies in what Ms. Staaf
has stated since the time of the accident, her version of the events has
remained somewhat consistent.  At Trial, she stated that she was “going to McDonald’s
and also to get some groceries” whereas in the statement made to ICBC on September 26,
2007, she stated that she was “driving home from shopping”.

[21]        
She described the speed of her vehicle as being “just normal” (50 kph)
at her Examination for Discovery, as 60 kph at her criminal trial, and as
follows at Trial – “I tried to go 50 kph although it could have been 60 kph”,
“60 to 70 to try to get ahead of the car” (referring to the vehicle that came
up behind her).

[22]        
Regarding the vehicle behind her, at her Examination for Discovery, Ms. Staaf
stated: “… and then all of a sudden I noticed really bright lights, like
an aggressive tailgater on the back of me, on the back of my vehicle, and so
I felt very uncomfortable”.  At Trial, I record her as stating that 15 seconds
after she went on to the Georgia Viaduct, “I noticed bright lights”, that “I started
to get worried”, “what was going on?”, “I’m being tailgated”, “felt very unsafe”. 
She indicated that the other vehicle was about five car lengths behind her when
she first noticed it and that she estimated that the tailgating went on for between
7 and 10 seconds, but that “I’m guessing”.

[23]        
Ms. Staaf made the decision to move her vehicle from the middle
lane to the right lane.  At Trial, I record her as stating, “I tried
to get out of the way and “I decided to change to the right lane, looked in
mirror, and looked and it was clear, remember there was a car on right about
one car lane back”.  Regarding her decision to change lanes, Ms. Staaf
stated that it took her a couple of seconds while she “shoulder checked and
rear view mirror checked and checked the left and right mirrors” in order to
ascertain “it was clear”.

[24]        
In the September 26, 2007’s statement to ICBC, Ms. Staaf stated,
she was “clipped” by the large SUV, whereas, at the criminal trial, she stated that
she sped up to get away and was switching lanes when, “I was hit – felt hit, a
jerk.”  At Trial, I record her as stating:  “just as going over the lane
I felt a big bump from behind”.

[25]        
At Trial, Ms. Staaf described the vehicle that was tailgating her
as being a large truck or a SUV, like an Escalade.  She had no sense of the
colour other than it was “dark”.

[26]        
Ms. Staaf was asked whether she recalls what happened to the SUV
after it “clipped” her vehicle, and she stated:  “I do not know where the SUV,
whether it followed me into the lane or whether it kept going.  I can’t
answer that with certainty.”

[27]        
Regarding whether it was her speed, the fact that the SUV “clipped” her
vehicle, or whether it was a combination of both of those factors which caused
her to lose control of her vehicle, Ms. Staaf was asked the following
question and gave the following answer while under cross-examination at Trial:

Q         And it was not the actual hit that caused you
to lose control but rather was your acceleration, correct?

A          No, I would not agree with that.  … I
would say it was a combination of both.

[28]        
At the criminal trial, Ms. Staaf stated that being hit “from behind”
caused her to accelerate and lose control, “I had somebody hit me and I was
trying to get away from them so I accelerated”.  At the Trial, I record
her as stating that “grabbed the steering wheel”, “tried to straighten up”, “rear-end
drive so I didn’t want to brake”, “lost control”, but that she did not
lose control because of the acceleration.  Under cross-examination, Ms. Staaf
stated that was a “combination of both accelerating and being hit”.  “I feel
like it was a mixture being hit and – and trying to gain control of the vehicle
and escaping the other vehicle that made me lose control.”  Ms. Staaf was
then asked whether it was not the case that pressing the accelerator caused her
to lose control and she stated:  “I can’t say with certainty that that’s
totally what made me lose control.”

[29]        
Under cross-examination, Ms. Staaf stated that she was halfway into
the right lane when she felt the impact, that “I cannot recall where in the
rear end of the vehicle I felt the hit”, that her car then struck the
right barrier, then “careened all three lanes”, hit the left barrier, turned around
360 degrees and careened across the road and hit the right barrier.

[30]        
When she was asked whether the car went straight for a while after it
was hit or just immediately shot across two lanes, she stated “can’t say for
certain”, “think I went straight for a couple of seconds before going
across three lanes to left barrier”.  She indicated that she did not apply the
brakes after accelerating.

[31]        
Under cross-examination, Ms. Staaf stated that her vehicle hit the
right barrier first, careened across three lanes and then hit the left barrier,
turned around 360 degrees and then careened across the road to hit the right
barrier again.  When asked to confirm that, from the beginning, she always
thought she had hit the south side of the barrier first, she stated “yes”, but
when asked why she did not say that in the criminal trial, Ms. Staaf
stated “it was a long time ago”.

[32]        
At Trial, Ms. Staaf was asked whether she remembered seeing a white
Mazda in the area of where the accident occurred and she replied: “no, I did
not”.  As well, she stated that she did not recall noticing any other vehicles
in the vicinity.  Under cross-examination, Ms. Staaf was asked:  “You don’t
recall seeing any other vehicle that you may have come close to being in
contact with, or even taking note of any other vehicles?” and she responded:  “I
just thought I was going over the barrier and it all happened so fast
I didn’t have time to see any other – anything.”

(b)           
Evidence of Mr. Roberto Biagi

[33]        
Mr. Biagi was a passenger in a vehicle driven by his wife.  At
Trial, I record him as stating that it had just begun to rain, that the
vehicle driven by his wife was in the left lane on the Georgia Viaduct, that a
white vehicle was beside them in the centre lane and, that, when the light
turned green, his vehicle picked up speed and he believes that they “hit”
50 kph.  He stated that the vehicle driven by Ms. Staaf approached in
the center lane to the right of their vehicle and behind the white vehicle.  When
asked when he first took notice of the vehicle driven by Ms. Staaf, he
stated, “I heard it before I saw it”, “heard the acceleration”, he said that
he said to his wife “here we go”, “which is what I would say when I thought
something would happen”, that the car was “over the speed limit”, that he did
not see the vehicle being driven by Ms. Staaf “until she started to speed
up” and that, when he first saw her vehicle, it was passing beside their
vehicle and in the centre lane.  He agreed that he did not see “her change
lanes” but he did agree with the statement:  “I just saw her speed up into the
right lane and tried to pass and that’s where she lost control”.  He stated: “still
accelerating, began to make a lane change [back into the centre lane],
well-controlled change in front of white vehicle, began fishtailing, he thought
‘no problem’, but then it lost control, spun, hit the south guard rail,
ricocheted and then back and hit the north guard rail.  It was a miracle that
the white vehicle ‘avoided it’”, “it made it barely past the Firebird –
continued as if oblivious”, “the white vehicle kept going”.  He thought that
the vehicle of Ms. Staaf was going 60 or 70 kph when it passed their
vehicle.  He thought that the white vehicle was maybe 60 feet in front of
the hood of their vehicle in the middle lane when he first saw the Firebird.

[34]        
When asked where the location of the Firebird was when it had its top
speed, Mr. Biagi stated, “top speed when made the lane change and began to
lose control”.  Regarding the vehicle of Ms. Staaf, he stated, “made lane
change, back end began to fishtail, lose control in back end, began to gain
control but, at that point, it spun out”.

[35]        
Under cross-examination, Mr. Biagi confirmed that he initially had
said that the car went into the north barricade first.  He said that this was “a
bone of contention” between himself and his wife as to which barricade the Firebird
hit first.  Mr. Biagi did not testify that he saw a black SUV-type vehicle
that evening to the right of them in the centre lane.  Unfortunately, he was
not asked that question specifically.

(c)           
Evidence of Mr. Jenson Vaughan

[36]        
Mr. Vaughan stated that he was in the middle lane on the Georgia
Viaduct.  I record him as stating at Trial:  that he was on his way home
to Surrey from downtown Vancouver, that it “was raining very hard”, that he was
driving a black Honda Civic, that, because it was raining very heavily, he was
mindful of the speed limit – “probably 50 kph”, that he was in the middle
lane, that a black Trans Am came up behind him “very closely”, that the vehicle
“passed on right [in the right lane], accelerated very quickly”, then went “back
into the centre lane and then lost control”.  He described the loss of control
as follows:  “back end of car swerved to left and then went back into the south
barrier”.

[37]        
He was asked how far the Firebird was behind him when it changed lanes,
and he stated:   “two metres”, “right behind me”.  He stated:  “I thought about
moving out of the way but then I thought there were other lanes” and “given
the conditions, I didn’t want to move out of the way”.  He described the
driving of Ms. Staaf as “somewhat aggressive”.  He described the speed of
the Firebird when it passed him as “considerably faster considering the revving”
[engine sound].  While he could not be accurate, he guessed that there was a “very
brief spurt” “guess at 70 kph”.  “Just very fast forward.”  He indicated
that the Firebird started to fishtail in the far right lane, approximately five
or six car lengths ahead of him, and that his “perception” was that the vehicle
was then going to the left when it began to fishtail.  He does not recall
whether there were other vehicles around them.

[38]        
Under cross-examination at Trial, he was asked whether he noticed
bright lights coming within two or three car lengths and striking the Firebird,
and he stated, “I didn’t see any of that occur.  I guess someone
behind her could have hit her but she was in control when she passed me.”  He
was asked whether he saw that, when she was beside him in the right lane, she
accelerated, her car clipped the right barrier of the Viaduct and then she went
out of control.  He stated, “not what I saw”, “I didn’t see any impact or
the right side before she lost control.”  “I remember the night and what
happened clearly.”  “No doubt in my mind on the night.”

[39]        
Mr. Vaughan made a 9‑1‑1 call which was played in
evidence.  The transcript of that call includes the following:

Witness:  Ah, well, right in nestled in between, I don’t
know what street it is, but right between GM Place and BC Place and you are
going east towards Main Street and Prior so we’re kind of up on this ramp right
here but a car just lost control and smashed into the side and girl’s ok but the
car is totalled and people flying around this corner right now so could be
another accident.

9‑1‑1 Operator:  Ok, so the Georgia Viaduct
then.

Witness:  That’s must be what it is.  I don’t know
what it’s called (laugh)

9‑1‑1 Operator:  And are you with her or did
you drive by?

Witness:  Ah, I was, she was passing me and wiped
out, lost control.  And she is standing here right now, she seems to be ok.

OTHER EVIDENCE

(a)           
Barry Mah

[40]        
Mr. Mah is an estimator for ICBC.  He took the photographs of the
damaged Firebird.  Some of the damage was to the driver’s side rear quarter
panel in the area of the gas cap (“Damage”).  Mr. Mah was examined for
discovery as a representative of ICBC.  Regarding the Damage, Mr. Mah
agreed that, to his observation, the Damage “was fairly fresh”.  Regarding the
accumulation of dirt which was described by him as being an accumulation “of
dust and weather”, Mr. Mah confirmed that this accumulation was “in the
area of the gas cap”.  He was also asked whether he was able to say “… if the
damage to the driver’s side rear quarter panel in the area of the gas cap was
caused through contact with another vehicle” and stated that “it appears to be”. 
At Trial, he confirmed that there was “no old damage”.

[41]        
The photographs that Mr. Mah took were in evidence.  The
photographs taken on September 26, 2007 show the Damage extending from
just below the gas cap on the rear left to the rear wheel well on the left side
of the vehicle.  The marks are white and appear to extend, by my estimate,
about a foot and a half to two feet.  There is no evidence as to whether the
white markings relate to paint transfer from another surface or whether the
white is merely the undercoating underneath the black colour of the Firebird.

(b)           
Trevor Dinn

[42]        
Trevor Dinn is a forensic engineer who was qualified to provide an
expert opinion regarding accident reconstruction.  Mr. Dinn was not in a
position to inspect the Firebird but was able to review the 28 photographs
taken by Mr. Mah.  In his expert report, Mr. Dinn stated that the “striations
in the scuff were oriented horizontally” and that a “small localized dent
occurred within the scuff near the wheel well”.  Mr. Dinn examined a
different Firebird and was able to draw the conclusion that the scuff occurred
at a height of approximately 61 cm to 70 cm.

[43]        
Mr. Dinn ascertained that the height of the barrier on the Georgia
Viaduct was 74 cm so he then came to the conclusion that:

…It is unlikely the concrete barrier made the contact mark
to the Pontiac, furthermore the scuff was not homogeneous across its width
since an undamaged portion occurred within the center of the scuff.  The
undamaged portion indicates that the object which made this contact was likely
flexible allowing the force of the contact to vary resulting in a
non-homogeneous contact scuff mark.

The scuff however could have been
caused by another vehicle as the vehicles passed each other.  The tapered
design of the Pontiac’s quarter panel and rear bumper would have allowed for a
short contact patch to occur between the contacting vehicles.

[44]        
To attempt to ascertain whether the “scuff mark” had been made when
another vehicle made contact, Mr. Dinn positioned and aligned a 1999
Chevrolet Silverado 4×4 with a different Firebird.  In this regard, Mr. Dinn
came to the conclusion: “it was determined from this exercise that the front
bumper corner of the Chevrolet lined up with the damaged scuff located on the
Pontiac”.  Mr. Dinn came to the following further conclusions:

(a)        The contact to the Pontiac’s left rear corner is
more likely to have occurred from contact with another vehicle rather than with
a concrete barrier.  The Pontiac scuff is consistent with having been caused by
a vehicle causing a glancing contact.

(b)        An encroachment and
glancing contact by another vehicle approaching from the left rear of the
Pontiac would not likely have caused a direct loss of control, however, a loss
of control may have occurred as the Pontiac driver responded by aggressively
steering away from the contact and the encroachment of the other vehicle.

[45]        
At Trial, Mr. Dinn indicated that, to support his theory of what
occurred, the angle of the vehicles would have to be less than 5-10 degrees or “about
5 degrees – less than 10 degrees”, and that “at some point, front panel will
have more contact with the front of the other vehicle”.

(c)           
Darren Richards

[46]        
Mr. Richards of Synaptic Analysis Consulting Group was asked to
conduct an accident reconstruction of the collision.  Mr. Richards was
qualified to provide an expert opinion regarding accident reconstruction.  Regarding
the scuff marks on the vehicle, Mr. Richards made the following
observations:

The height of the scuffs marks is consistent with the height
of a typical SUV bumper.  In order to evaluate possible scenarios under which
contact from an SUV could result in the scuff marks to the left quarter panel,
the geometry of the Pontiac was examined.  The rear quarter panels of the
Pontiac taper inwards.  If the scuff marks were the result of contact from an
SUV, the direction of motion of the vehicles would have to be nearly parallel
with the SUV offset to the left, or in other words, a direction of motion of
the SUV relative to the Pontiac of slightly more than zero degrees or slightly
more than 180 degrees.  Any other orientation of the SUV relative to the
Pontiac would preclude this particular side-swipe damage pattern.  It is noted
that during a sharp lane change maneuver at 50 km/h the vehicle could be
angled as much as 13 degrees relative to the lane of travel.  If the
Pontiac was angled to the right at 13 degrees, contact from an SUV
travelling parallel to the lane of travel would not likely result in the damage
observed to the left quarter panel of the subject Pontiac and would likely
result in further crush and scuff damage to the rear of the vehicle.

The centre lane on the eastbound
Georgia Viaduct is approximately 3 meters wide.  To put this into
perspective, the 1994 Pontiac Firebird has an overall width of 1.9 meters,
and the 2007 Cadillac Escalade has an overall width of 2.0 meters.  These
dimensions indicate the Pontiac would have to be 3/4 into the right lane if the
Cadillac was travelling in the middle of the centre lane for contact to occur
to the Pontiac’s left quarter panel.

[47]        
Mr. Richards came to his conclusions “to a reasonable degree of
scientific certainty”, including the following:

The scuff and dent to the left
quarter panel of the Pontiac Firebird were likely the result of a contact with
a protruding surface.  The damage is not consistent with having resulted from
contact with the concrete barriers on the Georgia Viaduct.  If the scuff and
dent were the result of vehicle contact, the direction of motion of the
vehicles would have to be parallel or nearly parallel.  It is unclear whether
the scuffs and dent are related to the subject incident.

[48]        
In a further opinion dated March 14, 2014, Mr. Richards dealt
with additional research and analysis pertaining to bumper heights and the
location of the scuff marks.  He came to the following conclusions in that
regard:

… it can be seen that the
height of the scuff marks is higher than most LTV bumpers.  It should be noted
that the shape and design of the bumper components (e.g. bumper covers,
decorative trim, air deflectors, valances) will affect the nature and location
of the contact marks left during a side-swipe impact.  These bumper components
frequently extend both above and below the height of the reinforcement bar
itself.  However, evaluation of the IIHS data indicates that contact by the
vast majority of light trucks, vans, and SUVs on the road would be expected to
leave some scuff marks below the level observed on the subject vehicle (i.e.:
below 60 cm).  In the context of the damage to the 1994 Firebird it is
apparent that the vast majority of vehicle bumpers would leave a different
pattern of damage than observed on the subject vehicle.

[49]        
I record Mr. Richards stating at Trial that approximately 10% of
the vehicles on the road have an average bumper height which could possibly be
expected to leave some scuff marks at the level observed on the Firebird.

(d)           
Igor Bradaric

[50]        
I record Mr. Bradaric as testifying at Trial that he was advised by
Ms. Staaf that there were “lights in back”, “she tried to change lanes”,
the “lights were real close”, “she felt a tap and then she lost control”.  I
record him has confirming under cross-examination that he relied upon “only
what she told me” but he could not recall her having said that the SUV had “clipper
her mirror”.

[51]        
Mr. Bradaric confirmed that he had a ten-year driver reduction of
rates and he confirmed that it was one of the conditions of his insurance that
he would lose coverage if he was living with someone who was using the vehicle
and if they had less than ten years’ driving experience.  He did not recall
being advised in this regard by Ms. Bacchus.  However, he did confirm that
he and Ms. Staaf were living together at the time of the accident.

[52]        
Unfortunately, Mr. Bradaric was not asked by either counsel whether
the Damage was there prior to the date of the accident.

(e)           
Ms. Staaf’s Observations of the Car before the Accident

[53]        
Regarding the Damage, Ms. Staaf was asked about her observations of
the vehicle prior to the accident and, regarding the Damage, Ms. Staaf stated
under cross-examination:

A          Well, when I took it out of the parking
garage underground, I approached it from the – it was always backed in to
the stall.  So I saw the front of it and then the whole driver’s side when
I approached the driver’s door.  And I didn’t see anything on it. 
And it’s light down there and as far as, you know, if there was something on
it, Iggy would have mentioned that.  Also saw it the day before, I wasn’t
driving it but I saw it at Iggy’s shop.

Q         All right.

A          And, which I had
walked around it and saw no marks.

Discussion

[54]        
I cannot reach the conclusion that Ms. Staaf has shown on a balance
of probabilities that the accident on September 24, 2007 was caused in
whole or in part by the actions of an unknown driver.  After reviewing the
evidence at Trial, it is impossible to reconcile the version of events provided
by Ms. Staaf with the version of events provided by two independent
witnesses and three other witnesses who provided evidence at the Trial.  I have
concluded that the accident occurred solely as a result of the negligence of
Ms. Staaf.  I find that the evidence provided by Messrs. Biagi and
Vaughan should be accepted as representing what occurred that evening.  First,
they were in the best position to recount what was occurring in front and to
the side of them.  Second, their evidence is consistent – the Firebird moved
into the right lane before Ms. Staaf lost control of it.  Third, they had
no vested interest in the outcome, whereas Ms. Staaf does.

[55]        
I have concluded that there was no large dark coloured SUV-type vehicle
which might have caused the accident.  First, if such a vehicle was in the
middle lane rapidly approaching the Firebird such that it caused Ms. Staaf
to move into the right lane, that vehicle would then have moved beside and
beyond the Biagi vehicle in the middle lane.  No such observation was made by Mr. Biagi. 
In fact, Mr. Biagi testified that what was beyond the Biagi vehicle in the
middle lane was a white vehicle that was almost hit by the Firebird when the
Firebird went out of control and passed through the middle lane before hitting
the barrier on the north side of the Viaduct.

[56]        
Second, Messrs. Biagi and Vaughan both stated that the Firebird went
into the right lane and then was coming back into the centre lane when
Ms. Staaf lost control of it.  I accept the evidence of
Mr. Biagi that Ms. Staaf had already made a lane change before the
Firebird began to fishtail.  As I find that Ms. Staaf had the
Firebird under control when she moved into the right lane and only lost control
when she moved back into the centre lane, it is not credible that she lost
control moving into the right lane after she states that the Firebird was hit
by the SUV-type vehicle.

[57]        
Third, Mr. Vaughan did not see any SUV-type vehicle even though he
was driving in the middle lane and would have been behind the SUV-type vehicle
as it approached the Firebird if it had also been in the middle lane.  I find
it highly unlikely that he would not have noticed such a vehicle in front of
him in the middle lane but would still have been able to see the movement of the
Firebird.

[58]        
Fourth, I find that it would not have been possible for both the SUV and
the Firebird to be in the centre lane at the same time without that situation
being noted either by Mr. Biagi or by Mr. Vaughan.  Ms. Staaf
testified that she was “half-way into the right lane when she felt the
impact”.  This would require the Firebird to be half-way into the right lane
but still remaining parallel to the SUV.  If she was moving her vehicle into
the right lane, I cannot conclude that the Firebird would be virtually parallel
to a SUV.  If Ms. Staaf was already directing her vehicle into the right
lane to avoid the SUV, I find that the angle of her vehicle would not be
virtually parallel to the SUV.  In this regard, both experts were of the view
that the vehicles would have had to be virtually parallel in order for the
Damage to have been produced.

[59]        
Fifth, I also find the statements made by Ms. Staaf or on behalf of
Ms. Staaf on the night of the accident and in the few days following
accident to be inconsistent with the version of events now being advanced by
Ms. Staaf.  Any knowledge that Mr. Bradaric would have about the
accident would have been obtained from Ms. Staaf.  When he reported it to
the Dial-A-Claim service on September 25, 2007, Mr. Bradaric
indicated that the mirror of the Firebird had been “clipped”.  Despite that, it
was the testimony of Ms. Staaf that the Firebird was hit from behind. 
There is such a vast difference between a vehicle being hit from behind and a
vehicle having its side view mirror “clipped” that I am able to conclude that
the testimony of Ms. Staaf is not believable.  It is impossible for me to
conclude that Ms. Staaf would not be able to distinguish between the
Firebird being hit from behind and the Firebird driver’s mirror being clipped
from the side as this would occasion both vehicles being in the same middle
lane.  That was not what was viewed by either Mr. Biagi or
Mr. Vaughan.  I am also not in a position to find that there was
enough space in the middle lane for both the Firebird and the SUV-type vehicle
to be virtually parallel.  For part of the SUV to clip the mirror, it would
have to be almost beside the Firebird and readily observable by
Ms. Staaf.  That was not her testimony.  I also take into account that
there was no mention in the September 25, 2007 Dial-A-Claim report of a
dark-coloured SUV and there is no mention in the September 26, 2007
statement signed by Ms. Staaf on March 20, 2008 of the “large SUV”
being dark coloured.

[60]        
Sixth, the two expert reports do not support the version of events
advanced by Ms. Staaf.  Both experts conclude that the Damage markings on
the Firebird could only have been made by a vehicle such as a SUV or by a
vehicle representing only 10% of all vehicles on the road at the time.  Both
experts were of the view that the Damage could not have been caused by the
barriers on the Georgia Viaduct.  I find that the Damage was caused by the
Firebird coming into contact with either another vehicle or a surface high enough
to have left the Damage.  While I take into account the evidence of
Ms. Staaf that she did not observe the Damage on either the night of the
accident or the previous day, I also take into account that the owner of
the vehicle was not asked by counsel for Ms. Staaf about whether there was
pre-existing damage.  While I do not draw an adverse inference as a result
of the failure of counsel for Ms. Staaf to deal with this question when
Mr. Bradaric was testifying, I am satisfied that it would be more
likely that Mr. Bradaric would have better knowledge about existing damage
than Ms. Staaf as Ms. Staaf described the Firebird as “his baby”. 
Accordingly, the best evidence was not available to the Court.  I also take
into account that the ability of Ms. Staaf to view the Damage that night
prior to the accident may have been masked by the accumulation of “dust and
weather” as observed by Mr. Mah the next day.

[61]        
Seventh, I take into account the photographs in evidence and the
testimony of Mr. Mah of ICBC.  The photographs indicate white striations. 
I think it more than likely that Mr. Mah would have noted that there
were dark paint transfers on the Firebird if the scrapes on the Firebird have
been caused by contact with a black SUV and if some paint transfer had occurred.

[62]        
I find Mr. Biagi to be a believable witness.  An attempt was made
to lessen the credibility of Mr. Biagi on the basis that he had consumed
liquor before the accident and that he could only observe the Firebird after it
began to pass the vehicle driven by his wife.  I am satisfied that the amount
of alcohol that Mr. Biagi stated that he had consumed would not impair his
ability to recount what occurred.  While I accept that he could only observe
the Firebird once it began to pass the vehicle driven by his wife, I accept
his testimony that he could hear the vehicle before he could see it and that
the Firebird was under control when it passed their vehicle.

[63]        
The evidence of Mr. Vaughan is also to be believed.  His evidence
is that the Firebird came up behind his vehicle and then moved into the right
lane before Ms. Staaf lost control.  I accept the evidence of Mr. Vaughan
that the Firebird was under control when it moved out of the centre lane and
moved into the right lane.  That evidence is consistent with what was observed
by Mr. Biagi.  Mr. Vaughan was in the best position to observe what
was happening in the middle lane in front of him.  The fact that he did not observe
a dark SUV approaching the Firebird ahead of him is determinative in my mind as
to whether there was such a vehicle present.  He had no reason to be
untruthful.

[64]        
An attempt was made to attack the credibility of Mr. Vaughan on the
basis that he left the scene of the accident before providing a statement to
Constable Vander Hoek, he had an August 16, 2011 conviction for excessive
speed and failure to yield the right-of-way, he did not provide many details
about what caused the accident during his 9‑1‑1 call, and he had
not cooperated with an agent for counsel for Ms. Staaf who had attempted
to contact him.

[65]        
I find Mr. Vaughan no less credible as a result of those
submissions.  When he went to the assistance of Ms. Staaf and when he made
the 9‑1‑1 call, Mr. Vaughan fulfilled his obligations as a
citizen.  I do not consider the fact that he had a conviction for excess of
speed and failure to yield the right of way diminishes his veracity.  There
would be far fewer credible witnesses if the Court was to give lesser
credibility to any witnesses who had been convicted of such infractions.  The absence
of providing a number of details about the accident in the 9‑1‑1
call is understandable.  The purpose of the call was to get assistance on the scene
and not to give a statement of exactly what had happened and what he observed. 
In this regard, I agree with the statement I record him making at Trial:  “My intention
was to get help, not to give every detail.”  Mr. Vaughan presented himself
as being a very busy individual.  I am satisfied that this was the reason
he did not return the calls of the agent of counsel.  I am satisfied that
nothing turns on the question of whether a witness does or does not cooperate
with counsel for one of the parties when dealing with whether lesser weight
should be given to their testimony.

[66]        
It was suggested that the vehicle being driven by Mr. Vaughan may
well have been the vehicle which caused the Damage and resulted in
Ms. Staaf losing control of the Firebird.  I am prepared to take judicial
notice of the fact that a Honda Civic would be considerably lower than a SUV so
that the Damage on the Firebird would have been considerably higher than what
could have been caused by a Honda Civic.  Therefore, the vehicle driven by
Mr. Vaughan could not have caused the accident.  Any contact between the
vehicle driven by Ms. Staaf and the vehicle driven by Mr. Vaughan
would have caused damage below the Damage.  As well, it was Ms. Staaf’s
testimony that a dark coloured SUV-type vehicle was approaching her and not
that she was passing it.  I find that the vehicle driven by Mr. Vaughan
was a white vehicle, not a “dark coloured SUV-type vehicle”.

[67]        
Regarding the notes recorded by Aaron Mahoney and the emergency
physicians attending to Ms. Staaf at St. Paul’s Hospital, I am
satisfied that the primary purpose of those records was to document the
injuries of Ms. Staaf and the “mechanics” of the accident relevant to the
injuries of Ms. Staaf rather than to attempt to reconstruct the cause of
the accident.  I give no weight to the fact that those notes do not
indicate that the accident was alleged by Ms. Staaf to have been caused by
the collision with an unknown driver.

[68]        
In this regard, I adopt the reasoning set out in the decision in Adderly
v. Bremner, [1968] 1 O.R. 621, where a question arose about whether
all of what had been recorded in hospital records would be admissible pursuant
to the provisions of the Evidence Act, R.S.O. 1960, c. 125.  The
question was whether the history of events preceding the admission to the
hospital as opposed to the particulars of admission and treatment would be
admissible.  Brooke J. concluded that the section of that Act was limited
to particulars of the admission of the patient and could not be extended to
the:

… reported chronology of events which preceded the patient’s
admission to hospital.  The section is restricted by its closing line to a
writing or record made at the time of such act, transaction, occurrence or
event.  In my opinion, the effect of the concluding line of this section is
conclusive and the objection must succeed.

(at para. 4)

[69]        
While s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124,
is not identical to s. 35 of the Ontario Evidence Act, I am
satisfied that the same considerations prevail.  In British Columbia, it is in
the usual and ordinary course of the “business” of a hospital to record:  “…
a statement of a fact at the time it occurred or within a reasonable time after
that”.  Unless the treatment requires the “mechanics” of an accident to be
recorded so that the nature of any injuries can be better understood, it will
not be in the usual and ordinary course of the business of a hospital to record
what may have occurred prior to a patient being admitted.

[70]        
What is set out in the St. Paul’s Hospital records relating to what
may have occurred prior to the admission of Ms. Staaf to the Hospital is
outside the records that must be kept in the usual and ordinary course of
business of the Hospital and, accordingly, it is hearsay and inadmissible.  It
is not made admissible by virtue of s. 42(2) of the Evidence Act.

[71]        
Regarding the notes taken by Constable Vander Hoek, I am satisfied that
he was under an obligation to record whether this was a single car accident or
whether another vehicle was involved.  On the scene after discussing the
situation with Ms. Staaf, Constable Vander Hoek noted that it was “A
SINGLE CAR ACCIDENT, DRIVER LOST CONTROL WHEN CHANGING LANES & ACCELERATED
TO AVOID OVERTAKING VEHICLE”.  While the desire of Ms. Staaf to change
lanes as a result of an overtaking vehicle may be consistent with her testimony
and even though Ms. Staaf was dazed as a result of the accident, it is
inexplicable that Ms. Staaf would not have advised Constable Vander Hoek that
her vehicle had been hit by the overtaking vehicle when she had the presence of
mind to apparently advise Constable Vander Hoek that she had “accelerated to
avoid overtaking a vehicle”.  I concur with the assessment of Constable Vander
Hoek that “NO OTHER VEHICLES INVOLVED”.

[72]        
Regarding the testimony of Ms. Staaf, I did not find her to be a believable
witness.  First, I find that what she stated on the night of the accident cannot
be reconciled with her later version of events.  Second, the events could not
have occurred as she recounted them.

Conclusion

[73]        
The claim of the plaintiff is dismissed.  The parties will be in a
position to speak to the question of costs.

___________
“Burnyeat J.”____________
Burnyeat J.