IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160113

Docket: M123687

Registry:
Vancouver

Between:

Edward
Rawdon Havens

Plaintiff

And

Insurance
Corporation of British Columbia,
and John Doe and/or Jane Doe

Defendants

Before:
The Honourable Mr. Justice Myers

Reasons for Judgment

I.                
Introduction

[1]      On March 28, 2010 Mr. Havens was riding his
motorcycle on a round trip to Squamish from his home in Vancouver.  He was
accompanied by a friend, Gordon Austrom, who was on his own motorcycle.  On the
return trip to Vancouver Mr. Havens’ motorcycle went down near the on-ramp
to the Lions Gate Bridge from Marine Drive.  Mr. Havens was rendered
unconscious and sustained brain injury.  No vehicle stopped to acknowledge
involvement in the accident.

[2]      In August or September 2010, sometime after
regaining consciousness, Mr. Havens began to recall that he was struck by
a red pickup truck.  The recovered memory was that the truck was carrying
lumber, which was hanging off the back.  The truck cut into Mr. Havens’ lane
ahead of him and the lumber struck Mr. Havens in the head, causing him to
lose his balance.  The truck was never found.

[3]      Several witnesses saw Mr. Havens immediately
before or after the accident or when he was veering on the road.  None of them
recalled seeing a red truck or saw anything hit Mr. Havens.

[4]      The action is brought under s. 24 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231, which deals with accidents
caused by unidentified vehicles.  This section allows an action to be brought
against ICBC where the owner and, depending on the circumstances, the driver of
another vehicle alleged to have caused the accident are unknown.  A plaintiff
must, of course, prove that the accident was caused by the negligence of the
unknown driver.  ICBC says Mr. Havens has not proved that.  It alleges
that he suffered a stroke causing the accident; however, it is not necessary
for ICBC to prove a cause of the accident.  That burden remains on Mr. Havens.

[5]      Section 24(5) of the Act requires that the court be
satisfied that a plaintiff made reasonable efforts to ascertain the driver or
owner.  ICBC says that the efforts made Mr. Havens were not reasonable.

[6]      The trial was to determine liability only.  A key
issue in that determination is the reliability of Mr. Havens’ memory and
his credibility.

[7]      For the reasons that follow, I conclude that Mr. Havens’
recollection of the accident is not reliable or credible.  He has not proved
that the accident was caused or contributed to by another driver’s negligence.

II.              
The plaintiff’S evidence

[8]      Mr. Havens was born in 1961.  He graduated
grade 12 and worked as an engine mechanic, machinist and welder before becoming
a journeyman mechanic in 1998.  At the time of the accident he was 48 years
old.

[9]      When Mr. Havens was in high school he was
introduced to motorcycles by his father, who is a keen motorcyclist.  Mr. Havens
gave up motorcycling when he was in teenager, but took it up again about seven
years before the accident.

[10]    In his direct evidence, Mr. Havens testified to
the following version of the accident.  Around 4:00 p.m., he met up with his
riding partner, Mr. Austrom, for the planned ride to Squamish and back.  The
weather was clear and the ride was uneventful until the accident.

[11]    Mr. Havens recalls taking the exit at
Horseshoe Bay on the return journey and taking a side route through West
Vancouver and back onto Caulfeild continuing west on Highway 1.  He recalls
stopping southbound on Taylor Way at a light before Marine Drive and having a
brief conversation with Mr. Austrom.  Mr. Austrom made it through the
light at Marine Drive, turning left towards the Lions Gate Bridge.  Mr. Havens
did not make the light and waited for it to turn green.

[12]    The configuration of the three eastbound lanes
on Marine Drive at this location is that the right lane is dedicated for
traffic going onto the Lions Gate Bridge.  The left lane is dedicated for
eastbound traffic.  The middle lane is for vehicles either entering the bridge on-ramp
or proceeding east.  The middle of three lanes west of the on-ramp carries on
east.

[13]    When the light changed, Mr. Havens turned left
into the left lane of Marine Drive, heading east, and then shifted right.  After
about 100 feet he moved into the middle lane.

[14]    Mr. Havens continued in that lane with the
intention of entering the bridge on-ramp.  At the Capilano River Bridge, he
glanced in his mirror and noticed a red truck approaching in the left eastbound
lane.  He recalls no other traffic around him except a vehicle in front of the
red truck, which had passed him.

[15]    Mr. Havens neared the point where he
intended to turn right onto the on-ramp when he suddenly heard and felt a bang
against his head.  He took his left hand from the handle bar to feel his head. 
He recalls feeling "starry", "feeling like I just got hit in the
head by a boxer".  His last memory was that he lifted his head and saw the
red truck immediately in front of him accelerating away directly in front of
him in his lane, emitting a cloud of black smoke, and lumber hanging out the
back of the truck.

[16]    Mr. Havens said that after being hit he
tried to focus on getting the bike around the corner.  His next memory was
waking up in the hospital.

[17]    Mr. Havens said that the time from being
struck to his last memory was two or three seconds at most.  He estimated that
when he first saw the red truck coming up in the lane to his left, it was about
10 car lengths away.  When struck, the plaintiff says he was going 60 km/hr and
slowing.  The beginning of the on-ramp was about 50 feet away.

[18]    Mr. Havens said that he recalled seeing the
truck earlier on Highway 1 between Caufeild and Taylor Way eastbound as he
merged onto Highway 1.  The plaintiff was interested in vehicles and thought
the truck was unusual.  It was a 4×4 style truck with a roll bar in the back.  It
was "lifted way up" and had big mud tires.  It was covered in dirt and
he had noticed the lumber hanging out of the tail.  It had black smoke coming
out of it so he pulled in front of the truck to get ahead of the fumes.

[19]    Mr. Havens acknowledges that the memory of the
accident did not come back to him fully until sometime after the accident.  When
he recalled which details is not clear.  He was released from the hospital on
August 6, 2010 and Mr. Havens said that he partially remembered only the
last few days of his hospital stay.  Sometime after his release he went to his
father’s house where his motorcycle had been brought.  He said he sat on it and
tried to recreate in his mind what happened.  At that point things started to "click
into place".  He was asked what he had remembered before that time and he
said, "The wood and the black smoke and seeing the truck in front of me
pulling away; the blow to the head and trying to focus on keeping the bike
upright."  He said what came back to him when on the bike was having seen
the truck earlier on the return ride and seeing it again in his rear-view
mirror immediately before being hit.

[20]    From his own evidence and other surrounding
evidence, the first time he mentioned the red truck to anybody is around August
25, 2010.

III.            
Is the plaintiff’s memory of the
accident reliable?

[21]    The only evidence of the red truck hitting Mr. Havens
is his own recollection.  In this section I will address the reliability of his
evidence and deal with two types of evidence.  The first is medical evidence
with respect to Mr. Havens being able to recall the event given his brain
injury.  The second is inconsistencies within Mr. Havens’ evidence and
between his evidence and that of others.

A.             
Medical evidence

[22]    ICBC obtained a report from a psychiatrist, Dr. Roy
O’Shaughnessy, to address the likelihood of the plaintiff being able to recall
the accident reliably after receiving the blow to the head.  He referred to the
plaintiff’s memory as being "recovered memory", which is memory that
occurs much later after the fact.  Dr. O’Shaughnessy opined that Mr. Havens’
reported memory is not consistent with the physiology of memory in two ways.  The
first was that:

…he states he has developed a
memory of being struck in the head by lumber extending out the rear of a
pick-up truck that he states was in the lane beside him and crossed into his
lane. He then recalls seeing the pick-up truck passing by him in his lane
before becoming unconscious. This is physiologically impossible. If he were to
have received a blow to the helmet or head that would have rendered him
unconscious, it would have occurred immediately with impact and not some time
later. He would not have been able to recall seeing the red pick-up truck pass
by him and enter into his lane as he believes he recalled. Invariably any blow
to the head of such a nature to cause unconsciousness does so immediately post
blow. Were he to have actually been struck in the head, he would not have
recalled anything post impact and would certainly not have recalled seeing the
red pick-up truck accelerate away from him.

[23]    The second is that when he was admitted to the
hospital, Mr. Havens had an impaired Glasgow Coma Scale of 7 out of 15.  Given
that, it would have been impossible for him to have laid down long-term memory
after the blow to the head:

…If there is a disruption in the
person’s abilities to attend, focus, or concentrate, they will not be able to
lay down memory or recall it at a later date. Individuals who have suffered a
head injury of this magnitude will invariably experience impairment in their
capacity to attend or concentrate such that the memory will never have been
laid down in the first place and it is not "recoverable" at a later
date.

[24]    Mr. Havens argues that Dr. O’Shaughnessy’s
opinion was based on the incorrect assumption that Mr. Havens was
concussed as a result of being hit by the wood.  Instead, Mr. Havens
argues the hit to his head caused him to lose control, and it was when he went
down that he suffered the concussion.  That second scenario was put to Dr. O’Shaughnessy
in his direct evidence.  He noted the severity of Mr. Havens’ brain injury
and said:

However, in individuals with that degree of brain injury ‑‑
so let me put it [indiscernible], if it had been a mild traumatic brain injury,
say the Glasgow Coma Scale fully impaired, you get a blow to the head,
thereafter is memory impairment.  But, generally, their memory before that is
pretty good.

But in severe brain injuries
where you get a much more serious consequence and you’ve got both retrograde
and anterograde dense amnesia, that doesn’t apply.  You still have that
physiological problem that I raised; the two points that I made in ‑‑
in — in my opinion.  You still have the issue where you physiologically can’t
recall because there’s a disruption of the brain function of the abilities to
have the hippocampus lay down the memories into short-term and later long-term
storage.  It’s disrupted; it’s not going to happen.

[25]    Mr. Havens filed a rebuttal report from another
psychiatrist, Dr. Christopher Robertson, to address the second possible
scenario of no initial concussion from the hit by the wood.  In his report he
said that Mr. Havens’ brain injury would be classified as severe.  With
respect to the second scenario he said:

…However, using the overlooked
mechanism that he was injured after he was hit by the lumber, not when he was
hit by the lumber, Mr. Havens could have been able to store these
memories.  However, it is important to note that in cases of severe brain
injury, the events leading up to a brain injury may not be successfully encoded
in long-term memory because the process of transferring the memory from working
memory to long-term memory can be interrupted.

[26]    In cross-examination Dr. Robertson testified:

Q         And so
it would not be surprising, regardless of whether or not Mr. Havens was
laying down some memory between the truck incident, if it happened, and the
crash of the motorcycle, there is a good chance that memory would be lost
entirely because of the severity of his injuries?

A          That’s correct.

[27]    In his report, Dr. O’Shaughnessy opined that "recovered
memory" is easily influenced.  Dr. Robertson agreed with this in his
report:

However, it is important to note
that even though Mr. Havens’ reported recovery of memories is consistent
with the literature, there could still be the influence of external factors,
and he could also have been putting some of the memory together based on information
he learned after recovering from the brain injury.  As well, the ultimate
credibility of any witness is up to the trier of fact to determine.  I would
suggest therefore that Mr. Havens’ report of the accident be assessed in
the context of all of the available evidence of what happened at the time (with
the caveat that some of the information could have been added to his memory
after the fact) and not dismissed out of hand as being unreliable.  Having
better information from soon after the accident would further improve the
opinion on the quality of Mr. Havens’ recollection of the events of the
accident.

[28]    In Dr. Robertson’s cross-examination there was
the following exchange:

Q         So memory gets contaminated by things people
say?

A          It can be, or reinforced.

Q         Or reinforced.  Another potential external
factor is if on August 20 a person is told   if the accident wasn’t caused by
some other vehicle you have no recovery, and then five days later they remember
another vehicle, as a forensic expert that would alert you to be very careful
that that vehicle is the creation of a need to find someone that is going to
have to pay for the damages?

A          Yes.  That would
certainly be a consideration.

[29]    In essence, there was no difference between the
opinions of the two psychiatrists.

B.             
Evidentiary
inconsistencies

1.              
The Helmet

[30]    The helmet featured prominently in Mr. Havens’
evidence and that of his family.  This was because he alleged it had pieces of
wood fibre on its exterior and that ICBC or its experts removed them.  In his
argument, Mr. Havens does not rely on the wood pieces and acknowledged
that they could have been caused by road debris where the helmet struck the
ground or "they were simply fibres that were initially visible from the
crack on the helmet which was initially described as off-set."  Nevertheless,
the issue is significant from the point of view of the reliability of Mr. Havens’
evidence.

[31]    After the accident, the helmet was in Mr. Havens’
hospital room.  He said that after he was released from hospital he gave it to
the independent adjuster for ICBC, Ms. McAuley.  That is not correct.  In
fact, an engineer from MEA Engineering, Mr. Goulet, picked it up from Mr. Havens
on December 21, 2010.

[32]    Mr. Havens said he asked Ms. McAuley to
return the helmet and that she said she was not supposed to return it to him,
but she would put it in the alley behind her building and he could pick it up
there, which he did.  Ms. McAuley testified that at Mr. Havens’
request she retrieved the helmet from MEA and gave it to Mr. Havens who
signed a receipt for it, which was put into evidence.  Mr. Havens’ version
is clearly implausible.

[33]    When Mr. Havens met with Mr. Goulet to
give him the helmet, he mentioned that there were wood remnants in the lining,
which Mr. Goulet noted and photographed.  On December 21, 2010 Mr. Havens
provided a signed statement to Ms. McAuley in which he stated there were wood
splinters inside the helmet that he attributed to the hit from the wood.

[34]    The plaintiff prepared an undated document
explaining the accident.  Initially he suggested he had created the document at
the request of Ms. McAuley, but later admitted that he prepared it for his
lawyer.  In the statement he said he picked up the helmet behind Ms. McAuley’s
office, and refers to the wood remnants inside the helmet:

But she returned it to me sealed
in a box. After I looked at the helmet when I got back to my dad’s place I
looked it over and it looked the same except the liner was vacuumed out to
remove the wood fibers that were in there.

[35]    At trial, Mr. Havens said there were wood
remnants on the outside of the helmet.  Mr. Havens’ father and
stepfather said the same thing.  However, the latter two took photos of the
helmet, which they said they gave to Mr. Havens.  Mr. Havens adduced
photos of the helmet.  They did not show wood splinters on the outside of the
helmet.

[36]    The RCMP constable who investigated said he did not
notice wood remnants in the helmet and had he done so he would have made a note.

[37]    Another engineer from MEA – Mr. Heinrich – said
that wood chips from the alleged impact would not have got inside the helmet.  A
third engineer at MEA – Ms. DeMarco – disassembled the helmet and said
there was nothing to indicate that wood pierced through into the energy
absorbing foam liner.

[38]    Mr. Heinrich also said that the crack in the
helmet was consistent with it being caused by contact with the roadway.

[39]    I do not accept there were wood remnants on the
exterior of the helmet.  This is something that was concocted, intentionally or
unintentionally by Mr. Havens and his family assisted him.  I also do not
accept that the wood remnants inside the helmet were due to the accident.  They
were either there previously or were somehow ended up there afterwards.

2.              
The lane in which
the accident happened

[40]    Mr. Havens gave several versions of which lane
he turned onto on Marine Drive from Taylor Way.  He has also given different
versions of which lane he was hit in.  He acknowledged that he changed from one
version to another after he went back to the scene of the accident.  In his
cross-examination on this topic he said he was confused.  The plaintiff’s
evidence was also inconsistent with respect to the speed he was travelling.

3.              
Inconsistency
with the evidence of Mr. Austrom

[41]    In his direct evidence, Mr. Havens said
that on the return journey from Squamish, Mr. Austrom sped ahead of him as
they reached the Upper Levels Highway and that Mr. Austrom was entirely
out of sight as they travelled east on the Upper Levels Highway.  It is during
the travel along the Upper Levels Highway that Mr. Havens said he saw the
red pickup truck several times.  Mr. Austrom directly contradicts the plaintiff’s
evidence in this regard.  Mr. Austrom said that they would never separate
more than a hundred feet and that he maintained visual contact with the plaintiff
as they travelled along the Upper Levels Highway.  Mr. Austrom says he did
not see the red pickup truck at any time during the journey.

[42]    Mr. Havens testified that Mr. Austrom
had gone through the light at the intersection of Taylor Way and Marine Drive
ahead of him and that he had missed the light.  He disagreed that Mr. Austrom
would have been able to see in his rear-view mirror that something had happened
to Mr. Havens before Mr. Austrom had reached of the bridge deck on
the Lions Gate Bridge.

[43]    Mr. Austrom said he and Mr. Havens
both stopped at the light at Taylor Way and Marine Drive and had a brief
conversation.  When the light changed, Mr. Austrom turned left onto Marine
and went through the corner leading onto the Lions Gate Bridge.  He was
probably going a bit quicker than Mr. Havens at that point.  When merging
to go up the bridge deck he saw in his rear-view mirror that something was
wrong:

Normally I would see a headlight
behind me in my mirrors and that’s where I would focus on.  Riding motorcycles
in pairs, a motorcycle typically your focus is shifting everywhere all the
time: looking at the road, looking in your mirrors, scanning continuously.  So
I don’t spend a lot of time looking in the mirror, but I would expect to see a
headlight there.  So further on, after I was on the bridge deck, then I turned
my whole body and looked behind me, and I saw that Rawd and the bike were
laying on the ground.

[44]    Mr. Austrom did not see any vehicles in the
vicinity of Mr. Havens and there were no vehicles between him and Mr. Havens.

[45]    There is no reason to doubt Mr. Austrom’s
evidence.  He is a friend of Mr. Havens.  There is no motive for him not
be forthright.  Moreover, had Mr. Austrom made the light, but Mr. Havens
waited for it to cycle back to green, Mr. Austrom would have been too far
ahead to see Mr. Havens’ accident through his mirror.

4.              
Other witnesses

[46]    The most significant witness at the scene of the
accident was Ms. Bahrami.  She testified that she had been driving
approximately two car lengths behind Mr. Havens as he proceeded up the on-ramp
onto the Lions Gate Bridge, with no cars between them.  There was one car in
front of him.  She could not describe the vehicle.  It was in a different lane
and "mildly ahead".  Nothing struck Ms. Bahrami as odd when she
first noticed Mr. Havens.  Then she looked to her right to speak to her
passenger and saw Mr. Havens sliding on the ground.  She pulled over to
her right and comforted Mr. Havens.

[47]    It is almost impossible to conceive that the
accident would have happened as described by Mr. Havens without Ms. Bahrami
having noticed the impact or the red truck.

[48]    Earl Jenkins was driving north on the Lions Gate
Bridge heading to Horseshoe Bay.  He was coming down from the bridge to where
the lanes were splitting and saw what he thought to be something unusual at an
11:00 angle: a motorcyclist (Mr. Havens) who "was not going too fast"
looked like he got caught on the pylon and it was clear he was going to go over
the handlebars.  Mr. Jenkins said that the handlebars were turned and that
Mr. Havens definitely had both hands on the bars.  When Mr. Jenkins
first saw Mr. Havens there may have been other traffic but no vehicles
within a car length of him; he saw nothing unusual.  Mr. Jenkins stopped
and went to Mr. Havens’ assistance.

[49]    The West Vancouver Police investigated the
accident.  After investigating the accident scene, including skid marks left by
the motorcycle, they found no indication of any other vehicle’s involvement.

IV.           
Conclusion

[50]    I accept the evidence of Dr. O’Shaughnessy
that it would have been impossible for Mr. Havens to be able to recall the
accident.

[51]    That would be sufficient to dismiss the action, but
the other inconsistencies in Mr. Havens’ evidence and the evidence of the
other witnesses confirm that conclusion.  There were significant differences in
the versions of the accident and surrounding events that Mr. Havens gave
to experts, in discovery and at trial.  His counsel acknowledged that Mr. Havens
was a "poor historian".  It is acknowledged that Mr. Havens
recalled details that may not have been accurate.  However, it is argued that
the simple details of the accident were consistent and should be accepted.  I
cannot accept that Mr. Havens’ memory was selectively accurate.

[52]    Mr. Havens described a truck that was quite
distinctive and creating black smoke.  It is difficult to conceive that the
other witnesses would not have noticed the red truck had it been there.

[53]    I do not find Mr. Havens’ recollection of
the accident to be reliable or credible.  There is no evidence of another
vehicle being involved.

[54]    I will therefore not deal with the other issues
of whether the accident was caused by a stroke, or whether Mr. Havens made
sufficient efforts to locate the unidentified driver.

[55]    The action is therefore dismissed.  If there are
any issues regarding costs, submissions should be made in writing.

"E.M. MYERS, J."