IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140723

Docket: M121368

Registry:
Vancouver

Between:

Joseph Stalzer

Plaintiff

And

Craig B. Nagai

Defendant

Before:
The Honourable Mr. Justice Ball

Reasons for Judgment

Introduction

[1]            
This case involving a collision between a motor vehicle and a bicycle has
one primary issue: whether the plaintiff proved the defendant was actually
negligent and therefore liable.

[2]            
On September 21, 2010, around 6:00 a.m., a BMX style bicycle the
plaintiff was riding collided with a Dodge Durango vehicle the defendant was
driving.

[3]            
The plaintiff claims the defendant was negligent and the proximate cause
of his injuries. But the plaintiff also acknowledges that he contributed to the
damages and must share a percentage of the loss.

[4]            
The defendant submits that the plaintiff was the sole cause of the
collision and that the action should be dismissed.

[5]            
Because this case’s principal issue is the liability of one or both of
the parties for the collision, the parties consented to an order to divide the
issues in this case so that liability was dealt with first and separately from
damages.

[6]            
In short, I find that the plaintiff was the sole cause of the collision.
The action is dismissed for the reasons that follow.

The Collision

[7]            
On September 21, 2010, at a few minutes before 6:00 a.m., the plaintiff
left his apartment and rode his BMX style bicycle to the intersection of 227th
Street and Dewdney Trunk Road in Maple Ridge, BC. The plaintiff was heading to
work at the mill near the Albion ferry.

[8]            
227th Street runs north and south. Dewdney Trunk Road runs east and west
with two lanes of travel in either direction with an additional left turn lane
for eastbound vehicles intending to turn north from Dewdney Trunk Road onto 227th
Street.

[9]            
Mr. Stalzer testified that he arrived at the northeast corner of the
intersection of 227th Street and Dewdney Trunk Road after riding his bicycle on
the municipal sidewalk. He stopped and pushed the button for the pedestrian
walk signal.

[10]        
On a review of the photographs and diagrams attached to the expert
report of Timothy S. Leggett, an accident reconstruction engineer called by the
plaintiff (Exhibit 3), the button for the pedestrian walk signal is located on
a metal pole at the back edge of the municipal sidewalk, and at the top of the same
metal pole is a set of traffic control lights (red, yellow and green) under
which is a pedestrian control signal light. The intersection also has sets of
traffic control lights suspended above each of the highway’s vehicle travel
lanes.

[11]        
The intersection is not well-lit, and the area where the pedestrian
button is located is quite dark. None of the photographs submitted by the
plaintiff’s expert display a person wearing dark clothing standing adjacent to
the metal pole in that dark area.

[12]        
While giving evidence, Mr. Stalzer was asked where he stopped on the north
east corner of 227th Street and Dewdney Trunk Road and to mark the location
with his finger. But merely marking a location with a finger did not provide an
enduring or a precise record in his evidence.

[13]        
Mr. Stalzer testified that he looked to his left, or east, and he saw
two or three vehicles and their headlights approaching from some distance away.

[14]        
Mr. Stalzer then looked to his right and saw a Dodge Durango SUV
approaching the intersection from the West. It had its headlights illuminated and
left turning signal illuminated, and he saw it move into the left turning lane.

[15]        
At that point, Mr. Stalzer decided to cross Dewdney Trunk Road against
the traffic control signal notwithstanding that it was then illuminated “red”.

[16]        
Upon getting ready to cross and when actually crossing, Mr. Stalzer did
not look again to the West – i.e., in the Dodge Durango’s direction.

[17]        
Mr. Stalzer testified he travelled from the sidewalk into the marked
crosswalk. After pedaling for a few seconds, Mr. Stalzer testified that he
began “gliding” – or riding without pedaling – across the intersection inside
the crosswalk.

[18]        
While riding along the crosswalk, Mr. Stalzer testified he was
illuminated by the headlights of a vehicle approaching him. He also testified
that he heard the engine of the Durango.

[19]        
He did not look at the oncoming vehicle; rather, he scrunched his body
up “into a ball”, and the Durango struck the back half of his bicycle.

[20]        
Mr. Stalzer testified he was “knocked into the air” and “slid in circles”.
He said he went onto the Durango’s hood and that his face made contact with the
Durango’s windshield.

[21]        
Thereafter, Mr. Stalzer said he could not get up off the ground “because
the right leg would not allow me to rise”. Following the collision, he was in
shock and could not talk or otherwise communicate for a few minutes.

[22]        
Regarding being knocked in the air, Mr. Stalzer testified he landed 20
feet from the crosswalk. Mr. Stalzer confirmed, however, that the 20 feet was
an estimate, and in cross-examination, he agreed the distance may have been
less than 20 feet. Both of these statements were disputed, and more will be
said about them below. No measurements were made at the scene by either of the
parties or by anyone in authority.

[23]        
Mr. Stalzer believed the collision took place “past” or south of the
middle of the intersection.

[24]        
At the time of the collision, Mr. Stalzer was wearing black and blue
work boots, black jeans, a black hoodie and a black backpack. His clothing had
no reflective elements (not “retro-reflective” clothing); he was not wearing a
helmet; and he had no warning lights on his bicycle or helmet.

[25]        
Mr. Stalzer’s BMX style bicycle had no gears; it was a single speed
bicycle.

[26]        
Late in the trial, counsel began to dispute what, if any, reflectors
were on the bicycle wheel spokes. After a review of the DARS recording of the
trial, it was noted Mr. Stalzer responded to a question during examination-in-chief
about this issue. He was asked if he had made any changes to the bicycle. He
testified that he had removed the “pegs” and changed the handlebars and brakes,
but he said “I do not remember removing the reflectors from the wheels and I
did not replace the pedals”. He did not confirm the presence of reflectors on
the spokes of the wheels at the time of the collision.

[27]        
Following the collision, Mr. Stalzer did not recover his bicycle and
therefore the exact state of the reflectors – which may or may not have been on
the bicycle at the date of the collision – is not entirely clear.

[28]        
In any event, the reflectors on the pedals, shown in the photo marked
Exhibit 1, would have been at right angles to any driver on Dewdney Trunk
Road, so they would have been of very little assistance in attracting a
driver’s attention.

[29]        
Mr. Nagai, the defendant, was the owner and driver of the Dodge Durango
involved in the collision. Mr. Nagai testified that he was on his way to pick
up a colleague to drive to work together.

[30]        
Mr. Nagai was driving eastbound on Dewdney Trunk Road. He turned on his
left signal light before 227th Street, moved his vehicle into the left turn
lane, and then moved into the intersection to make a left turn. He stopped and
waited in the intersection to allow westbound vehicles to pass. (Mr. Stalzer
denied any westbound vehicles were passing the location.)

[31]        
While waiting, Mr. Nagai realized that he should be turning left at 228th
Street. He shoulder-checked to his right and behind for other eastbound
vehicles. Then, when safe to move, he turned on his right turn signal.

[32]        
Mr. Nagai then moved his vehicle to the right and headed for the inside
eastbound lane of Dewdney Trunk Road on the other side of 227th Street. Mr.
Nagai testified that he was not aware of nor did he see Mr. Stalzer until just
before the Durango hit Mr. Stalzer and his bicycle.

[33]        
The Durango is a full-sized SUV. The dead stop position in the left turn
lane, approximately one-half of the way across the intersection, to the site of
the collision was not more than 15 m ahead.

[34]        
As Mr. Nagai accelerated from a stopped position to the point of impact,
I find the maximum speed achieved was significantly less than the 29 to 36
km/hr estimated by Mr. Leggett, the expert called by the plaintiff, and in any
event, the speed was well below the posted speed limit.

[35]        
Mr. Nagai testified that when the front passenger corner of the Durango
made contact with the rear of Mr. Stalzer’s bicycle, the bicycle and Mr.
Stalzer tipped over to the right. Mr. Nagai was clear in his evidence that Mr.
Stalzer and his bicycle did not rise into the air, and they did not make
contact with the hood or windshield of his vehicle; rather the bicycle simply
tipped on to the roadway.

[36]        
Mr. Nagai immediately stopped his vehicle at impact. He found Mr.
Stalzer four or five feet in front of the Durango and four or five feet from
the eastern edge of the crosswalk from which Mr. Stalzer had just transited.

Expert Reports

[37]        
Both parties filed expert reports.

[38]        
Facts relied on or assumed by an expert for the purpose of giving an
opinion must be proven in evidence: R. v. Abbey, [1982] 2 S.C.R.
24 [Abbey].

[39]        
In R. v. LaVallee, [1990] 1 S.C.R. 852 [Lavallee], the SCC
reviewed and endorsed Abbey. And in Abbey, the SCC said:

an expert opinion based on
second-hand evidence is admissible, if relevant. …If an expert is permitted to
give his opinion, he ought to be permitted to give the circumstances upon which
that opinion is based…Testimony as to the circumstances upon which the opinion
is based is not introduced, and cannot be introduced, in order to establish the
veracity of the second-hand evidence.

[40]        
Before an expert’s opinion is of any assistance to the Court, the facts
upon which the opinion is based upon must be proven in evidence. In other
words, admissible expert evidence cannot be given any weight without a proper
factual foundation. The lack of such proof will have a direct effect on the
weight to be given to the opinion, and if such proof is lacking, the opinion will
be given little, if any, weight.

[41]        
Further support for the above principles is contained in Lavallee
at paras. 66 and 84; R. v. Gibson, 2008 SCC 16 at para. 58; R. v.
Paszczenko; R. v. Lima, 2010 ONCA 615 at para. 21; R. v. Davey, 2010
ONCA 818 at para. 14.

[42]        
In Lavallee, the majority held that the mix of proven and
unproven evidence should go to weight. But Sopinka J., for the minority, stated
a distinction between information known and widely accepted in a field of
expert opinion and facts coming from the party’s mouth:

84        Where, however, the information upon which an
expert forms his or her opinion comes from the mouth of a party to the
litigation, or from any other source that is inherently suspect, a court ought
to require independent proof of that information. The lack of such proof will,
consistent with Abbey, have a direct effect on the weight to be given to the
opinion, perhaps to the vanishing point. But it must be recognized that it will
only be very rarely that an expert’s opinion is entirely based upon such
information, with no independent proof of any of it. Where an expert’s opinion
is based in part upon suspect information and in part upon either admitted
facts or facts sought to be proved, the matter is purely one of weight. In this
respect, I agree with the statement of Wilson J. at p. 896, as applied to
circumstances such as those in the present case:

… as long as there is some admissible evidence to
establish the foundation for the expert’s opinion, the trial judge cannot
subsequently instruct the jury to completely ignore the testimony. The judge
must, of course, warn the jury that the more the expert relies on facts not
proved in evidence the less weight the jury may attribute to the opinion.”

[43]        
The foregoing principles of law were adopted by Watt J. in R. v.
Worrall, [2004] O.J. No. 3463 at para. 83 (Ont. Sup. Ct.).

[44]        
An expert “Vehicle Incident Report” dated 31 January 2014 was prepared
by Timothy Leggett. Apart from some technical issues the defendant raised, one
of the facts and assumptions regarding the accident scene that Mr. Leggett
relied upon was: “After being struck by the Durango, Mr. Stalzer came to rest
approximately 20 feet east of the intersection.”

[45]        
Mr. Leggett also assumed that Mr. Stalzer was riding his bicycle in the
center of the crosswalk, so he added five feet or half of the crosswalk width to
his calculation of Mr. Stalzer’s “overall post-impact travel distance of 7.6 m”
or 25 feet. Using that distance Mr. Leggett then calculated the speed using an average
deceleration rate of 0.66 G’s. In sum, he calculated that the Dodge Durango was
traveling at 29 to 36 km/h at impact. That speed would have had to have been
achieved from a stopped position in the intersection, (Mr. Leggett assumed this
stopped position to be one to two car lengths into the intersection) to the
assumed position of impact, the middle of the crosswalk or, at a minimum, 11.6
metres.

[46]        
As noted in the case law discussed above, the facts and assumptions used
by an expert are of little significance unless those facts and assumptions are proven
in the evidence.

[47]        
For the following reasons I am unable to conclude that:

a)    Mr.
Stalzer was struck in the center of the crosswalk;

b)    after
being struck, Mr. Stalzer came to rest 20 feet east of the crosswalk; or

c)     his
“overall post-impact travel distance” was 7.6 m.

[48]        
Mr. Stalzer did not testify the collision occurred in the center of the
crosswalk, and he testified that his 20 foot estimate could have been less than
20 feet.

[49]        
Mr. Nagai’s evidence was that Mr. Stalzer’s bicycle tipped over and that
he found Mr. Stalzer four or five feet from the east side of the crosswalk. He
repeated this evidence in cross examination, and that assertion was not
challenged.

[50]        
In both his statement to the ICBC, which was put to Mr. Nagai by
plaintiff’s counsel in cross examination [Exhibit 6], and in the diagram
[Exhibit 10] that he marked while giving evidence, Mr. Nagai placed Mr.
Stalzer’s post-collision location as very near the eastern most edge of the
North South crosswalk on Dewdney Trunk Road. While Mr. Nagai acknowledged that
location was his estimate and that no formal measurement was taken, the
difference between 1.524 meters (5 feet) and 7.6 (25 feet) meters is substantial.
Mr. Nagai was not challenged in cross-examination about the location where he
found Mr. Stalzer after the collision.

[51]        
The ambulance crew report (attached to Exhibit 8) was put to Mr. Stalzer
during cross-examination. He agreed, very reluctantly, he told the ambulance
crew what had happened in the collision. Precisely, he said “I told the
ambulance crew what had happened. I told the ambulance crew that I had been
knocked over.” The ambulance crew report said the plaintiff said he was “knocked
over causing right ankle break and lower back abrasions. Patient states front
end of vehicle struck his right ankle.”

[52]        
A question was then put to him in cross-examination, “Did you not tell
them [the ambulance attendants] that you were carried up on to the hood of the
car?” His answer was “I did not tell them but it did happen. I felt
I was knocked into the air and landed on the ground. I ended up on the curb
lane on Dewdney Trunk Toad” [Emphasis added].

[53]        
Notably, Mr. Stalzer did not say he was actually knocked in the
air. He said he felt he was knocked in the air.

[54]        
Moreover, even if Mr. Stalzer said he was actually knocked in the
air, given the actual answers given to the ambulance crew, Mr. Stalzer has
demonstrated an external inconsistency in his evidence. The statement recorded by
the ambulance crew, i.e., that Mr. Stalzer was knocked over, was consistent
with Mr. Nagai’s evidence and inconsistent with Mr. Stalzer’s evidence at trial.

[55]        
In these circumstances, I prefer Mr. Nagai’s evidence about the
mechanism and result of the accident, and I reject the Mr. Stalzer’s evidence
where the two conflict. Simply put, Mr. Nagai’s evidence does not succumb to
the same external inconsistency.

[56]        
Mr. Stalzer, based on his own evidence, immediately following the
collision was significantly disoriented, in shock, and in significant pain. Mr.
Nagai said he was shaken by the experience, but he nonetheless was readily able
to communicate with and other first responders. I do not find that Mr.
Stalzer’s shock or pain explains the inconsistency.

[57]        
Based on my review of the evidence and finding against the plaintiff’s credibility
on the mechanism of the accident, the plaintiff has not proved, on the balance
of probabilities, the facts and assumptions that Mr. Leggett used in his report,
including where the bike was actually struck, the location where Mr. Stalzer’s
body came to rest after the collision, the speed of Mr. Nagai’s vehicle, the
time-distance analysis, and the potential for collision avoidance.

[58]        
Therefore, I am unable to place any weight on the accident
reconstruction report offered by the plaintiff.

Analysis

[59]        
The plaintiff acknowledges that his negligence contributed to the
accident.

[60]        
The plaintiff’s negligence included: operating a bicycle in the dark
without a light; riding his bicycle in a cross-walk; and wearing dark clothes that
were not marked by reflective material.

[61]        
Moreover, the plaintiff’s conduct breached multiple sections of the Motor
Vehicle Act. First, he rode his bicycle on a sidewalk contrary to s. 200 of
the Motor Vehicle Act. Second, he did not obey traffic control lights
(s. 125), a red light (s. 129), or pedestrian control (s. 132). Third, he
rode his bicycle in a crosswalk on the left side of a roadway (ss. 183(2)(b)
and (c)) without lights, front or rear (s. 183(6)(c)) or mandated
reflectors on his bicycle (s. 183(6)(b)). This behaviour is not expected
behaviour to be anticipated by other motorists who are otherwise driving with
care.

[62]        
The only evidence about the defendant’s conduct is that he stopped in
the intersection intending to make a left turn, and he remained stopped to
allow westbound traffic to pass his position. Mr. Stalzer denied that he saw
westbound traffic. Mr. Nagai’s evidence that he waited for westbound vehicles was
not challenged, and it is consistent with the balance of his evidence. I prefer
Mr. Nagai’s evidence on this point and reject Mr. Stalzer’s evidence on this
point.

[63]        
Mr. Nagai then realized he was at the wrong intersection. He changed his
signal to the right and checked to make sure it was safe for him to move his
vehicle back into the intersection.

[64]        
After it was safe, he then proceeded eastbound on Dewdney Trunk Road. He
was driving eastbound well below the speed limit from “launch” to collision
without any evidence of “aggressive acceleration” as Mr. Leggett assumed in his
report.

[65]        
Absolutely nowhere in that record of driving is there any breach of the Motor
Vehicle Act or duty of care.

[66]        
The plaintiff admits that he was negligent, but his counsel submits that
his liability accounts for only 15% of the damages.

[67]        
When the plaintiff entered the intersection in violation of many Motor
Vehicle Act provisions, he accepted an elevated duty of care in favour of
others using the highway. Moreover, the plaintiff failed, on his own evidence,
to keep any look out at all, and he did not look to the west to see the Durango
then moving towards him.

[68]        
The standard of care expected of a driver is not perfection, but the
standard is whether the driver acted as an ordinarily prudent driver would act:
Hadden v. Lynch, 2008 BCSC 295. Clearly, a bicyclist shares the same
rights and duties as the driver of a motor vehicle: see s. 183 of the Motor
Vehicle Act; Friedrich v. Shea, 2008 BCSC 1243.

[69]        
I have put my mind to Salaam v. Abramovic, 2010 BCCA 212 at
paras. 18 and 21 for the proposition that statutory provisions provide
guidelines for assessing fault in motor vehicle cases. I recognize that
statutory breaches are not a complete legal framework for determining when a
party is negligent. Indeed, I still need to consider the reasonableness of the
parties’ actions.

[70]        
But as the Court of Appeal very recently said in Ormiston v.
Insurance Corporation of British Columbia, 2014 BCCA 276 at para. 14: “Generally
a breach of the provisions of the Motor Vehicle Act will constitute a
breach of the standard of care borne by the reasonable motorist…”

[71]        
In this case, the plaintiff repeatedly breached the Motor Vehicle Act.
He took a significant risk in choosing to leave a place of safety and ride
unlawfully against a traffic signal light. The greater the risk a party takes
the greater the need to for care. It is also trite law that the defendant does
not have to anticipate unlawful and dangerous behaviours.

[72]        
The plaintiff’s counsel relied on both Niitanmo v. ICBC, 2003 BCSC
608 [Niitamo] and Dobre v. Langley, 2011 BCSC 1315 [Dobre].

[73]        
In Dobre, the cyclist pressed a pedestrian activated signal that
immediately activated visible, flashing lights, and the Court found that action
to be a step to make his presence known to the defendant and to insure his own
safety.

[74]        
The contrary happened in this case: Mr. Stalzer rode directly against
the red traffic signal light in circumstances where his presence was made
difficult to perceive by his dark attire, lack of reflective clothes, and lack
of bike lights. He entered the intersection while also violating many Motor
Vehicle Act sections.

[75]        
In Dobre at para. 34, Brown J. notes that s. 183(2)(b) obligates
a bicyclist intending to cross a highway to dismount and walk their bicycle
across the highway. And Brown J. said, the defendant “still owed Mr. Dobre a
general legal duty of care, through proving he was a recognizable hazard than
that his actions had left the defendant with enough time and distance to see
and avoid striking him.”

[76]        
In this case, I find Mr. Stalzer has not proven that he made himself a
recognizable hazard or that he left enough time for the defendant to avoid
striking him.

[77]        
In Niitamo, the plaintiff bicyclist rode through a well-lit
intersection where there was no issue of a careful motorist being able to see
the presence of the bicycle.

[78]        
The present case is distinguishable because Mr. Stalzer would not have
been readily visible given the lack of any warning light (such as that used by
Mr. Niitamo) or reflective clothes and the fact that Mr. Stalzer was dressed
entirely in dark clothing.

[79]        
In Niitamo, Justice Ballance noted the expectation of a driver
approaching a marked cross walk at para. 22 of her reasons.

[80]        
I find the defendant has not breached the standard Ballance J. noted.

[81]        
The plaintiff’s expert witness agreed during cross-examination that the
scenario of the plaintiff’s numerous breaches of the Motor Vehicle Act
in this case would not be anticipated by the normal prudent driver.

[82]        
In every one of the authorities counsel cited, the Courts remarked on
the need of users of the road – including cyclists – to take reasonable care to
avoid collisions with other drivers.

[83]        
In this case, Mr. Stalzer completely failed in his duty to act with
reasonable care.

[84]        
A driver on Dewdney Trunk Road would not expect or be duty bound to
expect a cyclist would cross a busy highway in the dark of night against a
traffic control signal light, in a poorly lit intersection and without any
warning lights or significant reflectors on the bicycle moving on the highway
in a crosswalk.

[85]        
In this case, Mr. Stalzer’s movement in the marked crosswalk was
controlled by a traffic light with pedestrian signals. The plaintiff ignored
all of those signals, and by ignoring these signals as well as all of his other
reckless, unreasonable conduct, he was 100% liable for his own misfortune.

[86]        
Taking into account all of the evidence and the submissions of counsel,
this Court is not satisfied that the plaintiff has proven any breach of duty or
negligent act by the defendant.

[87]        
Therefore, I dismiss this action with costs.

“Ball J.”