IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150507

Docket: 71929

Registry:
Nanaimo

Between:

Larissa Edwards by
her litigation guardian

Lisa Mitchell

Plaintiff

And:

Arlee Stroink

Defendant

Before:
The Honourable Mr. Justice G.R.J. Gaul

Oral Reasons for Judgment

[1]            
THE COURT: These reasons are subject to editorial revisions
before their reproduction in final form. In no manner will the results of my
decision be changed.

Introduction

[2]            
Shortly after midnight on 8 August 2013, Larissa Edwards was struck
by a motor vehicle being driven by the defendant, Arlee Stroink. The
collision occurred in the curb lane of the southbound lanes of Highway #1,
just south of Minetown Road on the outskirts of Nanaimo, B.C. At that location,
the highway is divided into two lanes travelling south and two lanes travelling
north. There is a .8 metre high concrete median that divides the two
directions of travel and there is no artificial lighting. There were no clouds
in the sky, nor was there a moon. The roadway was clean and dry.

[3]            
Ms. Edwards is approximately 5 feet tall and on the day of the accident
she weighed about 140 pounds. That night, she and her boyfriend, Cordell McMullen,
were proceeding south on foot towards either Duncan or Victoria, using the western
shoulder of Highway #1. Both were heavily intoxicated by alcohol at the
time. At 12:54 a.m., approximately 50 minutes after the accident,
Ms. Edwards’ blood alcohol level was measured to be 180 milligrams of
alcohol in 100 millilitres of blood.

[4]            
As a result of the collision, Ms. Edwards suffered catastrophic
injuries, including a major traumatic brain injury and damage to her spine that
has left her a quadriplegic. Ms. Edwards remains in the hospital.

[5]            
Although he was emotionally traumatized by the accident,
Mr. McMullen avoided being struck or physically injured by
Ms. Stroink’s vehicle.

Position of the Parties

  The
Plaintiff

[6]            
Through her aunt and litigation guardian, Lisa Mitchell, Ms. Edwards
commenced this action alleging that Ms. Stroink was negligent in the
manner in which she operated her vehicle on the night in question. Specifically,
Ms. Edwards contends that Ms. Stroink breached her statutory duties under
sections 179 and 181 of the Motor Vehicle Act, R.S.B.C 1996, c. 318
(the “Act”), as well as her common law duty to “exercise due care with
respect to all other users” of the roadway (See: Lariviere v. Martins,
2013 BCSC 1751, citing Cook v. Teh (1990), 45 B.C.L.R. (2d) 194 at
203 (C.A.)).

[7]            
In the result, Ms. Edwards argues Ms. Stroink should shoulder
some responsibility for the accident and the resulting injuries and losses Ms. Edwards
has suffered. In pursuing her claim, Ms. Edwards acknowledges that she was
partially at fault for the accident and in his final argument, counsel for
Ms. Edwards candidly submitted that liability should be apportioned equally
between the parties.

  The Defendant

[8]            
Ms. Stroink denies that she breached any duty she owed to Ms. Edwards.
In doing so she maintains she did everything that could reasonably be expected
of her as she drove on Highway #1 on the night in question. She also submits
that if anyone breached a duty of care, whether statutory or common law, it was
Ms. Edwards. In this regard, Ms. Stroink points in particular to
section 180 of the Act.

[9]            
Although the consequences were tragic for Ms. Edwards, Ms. Stroink
argues the court should find Ms. Edwards wholly or principally responsible
for the accident.

Issue

[10]        
By consent order dated 19 March, 2015, Master Harper directed that
the trial of the question of liability occur before any trial relating to the
remaining issues such as causation and quantum of Ms. Edwards’ injuries. As
such, the only task I have at the moment is to determine who was responsible
for the collision and if there is shared responsibility, then what proportion
lies with each party.

[11]        
In my opinion the issue of liability in this case depends on whether
Ms. Edwards was on the roadway and visible to such an extent that
Ms. Stroink saw or should have seen her in sufficient time to react and
avoid the collision. In simple terms, the question is: was Ms. Edwards there
to be seen by Ms. Stroink?

The Evidence

[12]        
Given the nature of her injuries and the fact that she remains in the hospital,
Ms. Edwards was unable to testify at trial. Consequently, only two witnesses
gave first-hand evidence about what happened on the highway: Mr. McMullen
and Ms. Stroink.

  Mr. McMullen

[13]        
Mr. McMullen is 35 years old. Notwithstanding the difficulties he had
in school, he was able to complete his grade 12 education and take some post‑secondary
courses in college.

[14]        
In October 2012 Mr. McMullen met Ms. Edwards at the Nanaimo
Public Library. Within a couple of days of their meeting, they began dating. Ms. Edwards
was 18 years old at the time. The relationship was a volatile and unstable one
with both Mr. McMullen and Ms. Edwards resorting on occasion to
physical violence. At the time of the accident there was a court order
prohibiting Mr. McMullen from having contact with Ms. Edwards. Notwithstanding
that order, they were back together on the day of the accident. I accept that notwithstanding
the tumultuous history of their relationship, the no‑contact order and
all that has happened since the accident, Mr. McMullen continues to care
for Ms. Edwards.

[15]        
Ever since he was a child Mr. McMullen has had to deal with a
number of serious and challenging health conditions. He has been diagnosed with
attention deficit disorder, attention deficit hyperactivity disorder, and fetal
alcohol effects. Recently he has been diagnosed with post‑traumatic
stress disorder.

[16]        
In his testimony, Mr. McMullen explained how he and
Ms. Edwards had consumed alcohol over the course of the evening of 7 – 8
August and how they eventually got into a heated argument. He explained that
Ms. Edwards was quite intoxicated and acting irrationally at the time. He
described how, at one point, he had to chase after her as she ran south along
the eastern shoulder of Highway #1. He described her running so fast that
he had trouble catching her. He said he had never seen her run so fast and was
surprised how fast she was running. This was particularly memorable for Mr. McMullen
because, according to him, Ms. Edwards was not wearing any footwear at the
time. On one occasion when he caught up to her, he had to put his arms around
her and restrain her to calm her down. He said he did so because he wanted to
stop her from running away from him. His efforts were unsuccessful as Ms. Edwards
did again run away. As he gave chase, she dashed across the southbound lanes of
Highway #1, over the concrete median and into the northbound lanes. Mr. McMullen
called out to her, pleading for her to return to the median. She did so, but remained
on the north side of the median. According to Mr. McMullen, he then crossed
the southbound lanes and met her at the median. She climbed over the median and
he returned her shoes to her, which she put on. While they were standing at the
median, a number of cars went past them. According to Mr. McMullen, he was
still trying to calm Ms. Edwards, even though he says she was saying
nothing to him at the time. Mr. McMullen testified that Ms. Edwards started
to cross the southbound lanes and he followed her. He did not see or hear the
defendant’s vehicle coming. Suddenly he heard the screech of tires and then the
collision.

[17]        
Mr. McMullen acknowledged in his evidence that he “freaked” when he
realized what had happened to Ms. Edwards. He described how he was traumatized
by what had occurred and could not remember all the details of what he did or
said around the time of the accident. Mr. McMullen also agreed that he was
hysterical immediately after the accident and began acting irrationally. Although
he remembered speaking with the police at some point that night, his
recollection of that conversation was vague. When a transcript of an audio-recorded
conversation he had with an RCMP officer was shown to him in cross‑examination,
he agreed that he had spoken with the officer but could not remember everything
or exactly what he had said. While he denied saying some of the things about
Ms. Edwards that were attributed to him in the statement, he acknowledged what
he had said to the officer about what had occurred on the highway. With regard
to how the accident occurred, Mr. McMullen told the officer:

We went up in the underpass, sat
there, listened to some music, had a few and then she just got upset again and
staggered down, took off running. So I chased her running. I’m like, ‘Larissa, Larissa,
stop.’ No ahh … I’m like ‘Larissa, please.’ Okay. So she stopped, stopped. And
then (indecipherable) then she would act up again, run to the middle. I’m like ‘get
back here.’ I’m like ‘get back here.’ And then ‘boom, boom,’ she got hit

[18]        
When asked by the officer if he thought Ms. Edwards could be seen
on the highway, Mr. McMullen replied:

No…Her hair is black…She was
wearing, yeah, yeah, she was totally ‑‑ it was totally her
fault. I kept telling, get in…she literally on the line like this…cars were
like literally voo, voo, like pull her, I would pull her like… ‘honey, come
over here.’

[19]        
At trial, Mr. McMullen explained that the story he told the officer
was a disjointed one that had parts left out.

[20]        
Mr. McMullen acknowledged that because of his erratic behaviour and
certain things he had said to the police that night, he was admitted to the
hospital’s psychiatric ward. Apparently the police and hospital staff had grave
concerns about Mr. McMullen harming himself.

[21]        
On more than one occasion whilst testifying, Mr. McMullen indicated
that he did not know or remember details of what he and Ms. Edwards did in
the few hours leading up to the accident. Moreover, he was not confident or
clear about certain aspects of how the accident happened. Often during his
testimony he relied upon the fact that he was so intoxicated or that time did
not matter to him to explain why he could not remember certain events or
details. When asked about the nature of the highway and the traffic on it, Mr. McMullen
replied that he did not know because he was not paying attention. When asked if
he and Ms. Edwards had walked by or through an area known as Chase River,
he replied he could not recall because he was so intoxicated. When asked to
describe what he and Ms. Edwards had done in the hour or so before the
accident, his response was simply “unknown”; which I took to mean he could not
remember because he was so intoxicated at the time or that time did not matter
to him.

  Ms. Stroink

[22]        
On the date of the accident, Ms. Stroink was 59 years old. She has
had a driver’s licence since she was 16.

[23]        
On the evening in question Ms. Stroink was driving home after
having completed her regular work shift at a call-centre in Nanaimo. She was
familiar with Highway #1, having travelled it many times before. She was aware
that deer or other wildlife could suddenly appear on the highway, so she was
paying particular attention to the road. She had her vehicle’s high beam
headlights activated and her speed set by cruise-control at 90 kilometres an hour,
the highway’s speed limit.

[24]        
With the high beams of her vehicle activated, Ms. Stroink estimated
that the road was illuminated to approximately 100 metres in front of her.

[25]        
Ms. Stroink testified that she first saw Ms. Edwards when Ms. Edwards
suddenly appeared to jump over the median, stumble and begin running across the
centre southbound lane. She said she immediately slammed on her vehicle’s brakes.
According to Ms. Stroink, Ms. Edwards ran into the curb lane,
Ms. Stroink’s lane of travel, and turned towards Ms. Stroink’s vehicle
with her hands in the air just prior to the collision.

[26]        
In cross‑examination Ms. Stroink acknowledged that on various
occasions prior to trial she had described Ms. Edwards “hurdling”, “jumping”
or “hopping” over the median. Ms. Stroink explained that, to her, those
terms basically meant the same thing, and that what she saw was one of
Ms. Edwards’ legs come over the median first, followed by the other. She agreed
it was possible that Ms. Edwards may have been sitting on the median and then
put one leg over it and then the other. Ms. Stroink noted that it all
happened so fast. She was, however, steadfast in her evidence that she saw one
leg come over the median first, followed by the other. Ms. Stroink maintained
that she reacted as quickly as she could, as soon as she saw Ms. Edwards,
but that there was insufficient time to avoid the collision.

[27]        
The uncontested forensic evidence from the accident scene indicates that
Ms. Stroink’s vehicle skidded approximately 37.6 metres before coming to a
stop. The point of impact occurred approximately 12 metres into that skid mark.
The forensic evidence also indicates that Ms. Stroink’s vehicle was
travelling approximately 72 kilometres an hour when the collision occurred. The
force of the collision propelled Ms. Edwards 34.8 metres down the roadway
before she came to a rest.

  Expert Evidence

[28]        
The plaintiff presented the expert engineering evidence of
Mr. Tim Leggett of Forensic Dynamics Inc. The defence presented the expert
evidence of Mr. Kurt Ising of MEA Forensics.

[29]        
Mr. Leggett testified that a typical pedestrian would or should be
observed at approximately 114 metres by the driver of a vehicle that has
its high beam headlights operating. With regard to the present case, Mr. Leggett
opined that Ms. Stroink should have seen Ms. Edwards from approximately
92 metres, a sufficient enough distance to allow Ms. Stroink to react
appropriately to avoid the collision. Mr. Leggett also concluded that
Ms. Edwards likely did not run across the highway and must have been
walking at a very slow rate, if not stopped, when she was struck by
Ms. Stroink’s vehicle.

[30]        
Mr. Ising did not take issue with Mr. Leggett’s evidence about
the distance and area high beam headlights would illuminate. He did not, however,
agree that Ms. Edwards was a “typical pedestrian”, given what appears to
have been her irrational actions and demeanour that evening. Nor, more
importantly, did he agree that Ms. Edwards was likely observable or
identifiable from 90 or 100 metres away. Based upon his assessment of the circumstances
of the accident and the available forensic evidence, Mr. Ising opined that
Ms. Edwards likely came over the median and began crossing the southbound
lanes of Highway #1 when Ms. Stroink’s vehicle was approximately 55 metres
away.

Discussion

[31]        
In my opinion, this case does not turn on expert evidence. One reason
for that is the frailty of the expert opinions. Those frailties are based upon,
amongst other things, a lack of a factual foundation to provide the opinions. This
is particularly so for the opinions of Mr. Leggett. For example, there is
no evidence that Ms. Edwards walked across the highway. Mr. McMullen
had nothing to say about the manner in which Ms. Edwards crossed the roadway.
The only evidence on this point is that of Ms. Stroink, and she says Ms. Edwards
was running until the last moment when she turned towards Ms. Stroink’s
vehicle and put her hands in the air.

[32]        
While Mr. Leggett and Mr. Ising are both experts in the field
of forensic accident reconstruction, I find Mr. Ising has greater and more
relevant expertise than Mr. Leggett when it comes to reconstructing an accident
that has occurred at night on a dry road with the only lighting being that emanating
from the headlights of a vehicle. Consequently, where I have had to rely on the
expert evidence, I have placed greater weight on Mr. Ising’s opinions.

[33]        
In my view, this case turns on the evidence of Mr. McMullen and
Ms. Stroink. Their versions of events clash and cannot be reconciled on
the important points. On Mr. McMullen’s evidence, he and Ms. Edwards were
at the median for at least a minute prior to the collision. If I accept this
evidence, then both he and Ms. Edwards were there to be seen by
Ms. Stroink with plenty of time for her to react and avoid the collision. On
Ms. Stroink’s evidence, Ms. Edwards appeared suddenly and moved
quickly across her path of travel at a distance from her vehicle that did not
allow her sufficient time to react. If I accept Ms. Stroink’s evidence, then
Ms. Edwards was not visible from such a distance that allowed Ms. Stroink
to avoid the accident.

  Credibility and
Reliability

[34]        
The determination of this case comes down to whose evidence I find more
persuasive: Mr. McMullen’s or Ms. Stroink’s.

[35]        
Counsel for Ms. Edwards argues I should prefer Mr. McMullen’s
evidence over that of Ms. Stroink. He says Mr. McMullen was honest
and candid with the court, especially about the difficulties he has had in his
life and the tumultuous nature of his relationship with Ms. Edwards. Counsel
contends that Mr. McMullen exhibited the hallmarks of a credible and
reliable witness.

[36]        
As for Ms. Stroink, Ms. Edwards’ counsel does not suggest she
was dishonest with the court. He does, however, point out that by her own
admission she has replayed in her head, many times, only the important parts of
what occurred on the night in question. Counsel submits that having done so, it
is likely that Ms. Stroink has become confused about what she was doing
and what happened just prior to the collision.

[37]        
The credibility of a witness is not the same as the reliability of a
witness. Credibility has to do with a person’s veracity or truthfulness,
whereas reliability deals with the accuracy of the witness’s testimony. Accuracy
involves consideration of the witness’s ability to accurately observe, recall
and recount events in issue. Any witness whose evidence on an issue is not
creditable cannot give reliable evidence on the same point. On the other hand,
a finding that a witness is credible does not translate automatically into a
finding that what that witness says about an event is accurate and reliable. That
is, a credible witness may very well give unreliable evidence.

[38]        
I found Mr. McMullen to be a credible witness when it came to most
of what he testified about. However, he was not a particularly reliable witness,
in that his recollection of the salient events was often unclear and lacking in
details. For example, when it came to describing the manner in which
Ms. Edwards crossed the highway just prior to being struck by Ms. Stroink’s
vehicle, Mr. McMullen had surprisingly little to say and what he did say
was imprecise. I attribute his unreliable memory to a number of factors. He was
intoxicated on the evening in question. He had been arguing with Ms. Edwards,
and the atmosphere between them was tense and emotional. He was also seriously traumatized
by the accident itself. Overall, it was a chaotic and surreal time for him. I
find all of these factors have contributed to his inability to accurately recall
and recount what occurred that night.

[39]        
I should also add that at times I found Mr. McMullen’s evidence to
be internally inconsistent or contradictory. He said that when he was standing
at the median with Ms. Edwards, he needed to calm her; yet he also said
she was silent and not talking to him. This evidence left me to wonder how it
was he concluded she was in need of calming. He suggested that Ms. Edwards
was a "happy person who was always smiling”; yet he also described how
despondent, unhappy and frustrated she often was with many aspects of her life.
Moreover, he explained how Ms. Edwards could become aggressive and violent
towards him, including breaking bones in his hands and giving him a black eye. These
behavioural traits do not suggest Ms. Edwards was always a happy and
smiling person. In my opinion, Mr. McMullen undermined his credibility and
reliability by colouring his evidence in an attempt to place Ms. Edwards, his
relationship with her, her behaviour on the night in question, and her current
situation in the best possible light.

[40]        
As for Ms. Stroink, on the whole I found her to be a credible and reliable
witness who was able to accurately remember and describe what she observed and
what she did on the night in question. Although she too was traumatized by the accident,
her recollection of the events was stronger than Mr. McMullen’s. While it
is true that Ms. Stroink used various descriptors to explain or describe
how she saw Ms. Edwards get over the median; in her evidence at trial she
was consistent in the general description of what she saw. More importantly,
she was able to explain in a convincing manner what she meant by the various
terms she had previously used to describe Ms. Edward’s actions.

[41]        
Although counsel for Ms. Edwards has argued that the trauma of the
accident and the passage of time have caused Ms. Stroink to become
mixed-up about what actually happened, I find it is more likely that it is
Mr. McMullen and not Ms. Stroink who has become confused. The accident
was upsetting for Ms. Stroink but it was much more so for
Mr. McMullen. The passage of time has quite possibly affected each of them
in similar ways. Given Mr. McMullen’s physical and emotional condition on
the night of the accident and his ongoing personal health issues, I have
concluded his ability to accurately recall the events of that night is less
reliable than Ms. Stroink’s. For all of these reasons, I find the evidence
of Ms. Stroink preferable and more persuasive than that of Mr. McMullen.
In particular, I accept Ms. Stroink’s evidence that Ms. Edwards came
over the median suddenly and unexpectedly and then proceeded quickly across the
highway directly into the path of Ms. Stroink’s oncoming vehicle. In my
opinion, Ms. Edwards was not there to be seen by Ms. Stroink from a
distance of 90 to 100 metres. At that distance from Ms. Stroink’s vehicle,
Ms. Edwards was still on the other side of the median and out of
Ms. Stroink’s field of view. I am not persuaded that the headlights of
Ms. Stroink’s vehicle, even on high beams, would have illuminated
Ms. Edwards while she was on that side of the highway.

[42]        
I find it is more likely that Mr. Ising is correct and that
Ms. Edwards suddenly appeared from Ms. Stroink’s left‑hand side
at a distance of approximately 55 metres. The skid mark on the road was
approximately 37 metres long. The point of impact was at the 12 metre mark
of the skid. The brakes of Ms. Stroink’s vehicle were activated prior to
the start of the skid. Both experts agree that Ms. Stroink likely started
applying the brakes of her vehicle approximately .94 of a second before impact.
Mr. Leggett says Ms. Stroink’s perception response time would be
about 1.1 seconds. Mr. Ising has opined that the response time would
be approximately 1.5 seconds. On cross‑examination, Mr. Leggett
agreed that the perception response time could be as much as 1.25 seconds. Given
the distance covered by Ms. Edwards, at what I find was a running speed as
opposed to a walk, and the perception response time necessary for Ms. Stroink
to identify Ms. Edwards as a potential hazard and begin applying her
brakes, in my respectful opinion Ms. Stroink was left with insufficient
time to avoid the collision.

[43]        
In my view, counsel for Ms. Stroink is correct when he submits that
Ms. Stroink did everything that was reasonably expected of her in the
circumstances and did not breach any of her statutory or common law duties as a
driver on the highway. She was driving carefully at the speed limit with the
high beams of her vehicle activated. She was being vigilant for unexpected
developments on the roadway, such as the sudden appearance of deer or other
hazards. Whether she applied the brakes of her vehicle immediately upon seeing
Ms. Edward’s first leg come over the median, or upon seeing Ms. Edwards
stumble and start running across the southbound lanes shortly thereafter, is
inconsequential in my opinion. In my view, Ms. Stroink reacted quickly and
appropriately when she observed and realized there was a hazard on the roadway.
Tragically, there was simply insufficient warning or time for her to avoid
colliding with Ms. Edwards.

Conclusion

[44]        
I have considered the statutory as well as common law duties that both
parties had in this case. I have also considered the principles articulated in
jurisprudence that counsel have cited in support of their respective positions
(See: Townsend v. Kroppmanns, [1998] B.C.J. No. 897 (C.A.); Christensen
v. Gerber, 2007 BCSC 1397; Wong-Lai v. Ong, 2011 BCSC 1260; Mawani
v. Pitcairn, 2012 BCSC 1288; Lariviere, supra.)

[45]        
The consequences for Ms. Edwards of what happened on the night of
8 August 2013 have been devastating and life altering. It is a tragedy for
her and her family. The same events have also deeply affected Ms. Stroink.
I have no doubt the same can be said about Mr. McMullen. I must
nevertheless approach my task of determining who was legally responsible for
the accident based solely on the evidence presented at trial and without any
sympathy for any of the parties.

[46]        
The burden of proof is on the plaintiff. That is, she must prove on a
balance of probabilities whether it was more likely than not that the accident
occurred as she alleges it did. I am not satisfied the plaintiff has met that
burden.

[47]        
In my opinion Ms. Edwards is 100 percent responsible for the
accident and no fault lies at the feet of Ms. Stroink. In the result,
Ms. Edwards’ action is dismissed.

[48]        
I thank counsel for their work on this case.

[DISCUSSION WITH COUNSEL]

[49]        
THE COURT:  All right, I thank you for those additional submissions and
clarifications.

[50]        
MR. TURNHAM:  Would your lordship pronounce an order that there be no
costs, then?

[51]        
MR. JORDAN:  Yes, we had an agreement with regard to costs, my lord.

Order

[52]        
THE COURT:  The defendant  does not seek her costs of this litigation. In
light of that fact, Ms. Edwards’ action is dismissed with each side
bearing its own costs.

[53]        
MR. TURNHAM:  Right. Thank you, my lord.

[54]        
THE COURT:  Very good. Thank you.

“G.R.J.
Gaul J.”