IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100820

Docket: 17722

Registry:
Cranbrook

Between:

John Isaac Tierney

Plaintiff

And

GMAC Leaseco
Corporation, Ronald Becker and Christine Becker

Defendants

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

[1]          
This matter proceeded on the question of liability for a motor vehicle
accident that occurred on July 16, 2005 in Kimberley, British Columbia. The questions
of damages and contributory negligence were adjourned generally.

[2]          
The incident giving rise to this claim was a near-collision between a
motor vehicle operated by the defendant Christine Becker, and a motorcycle
operated by the plaintiff. It occurred at or near a curve on Jennings Avenue in
Kimberley, British Columbia. The plaintiff lost control of his motorcycle and
struck a building supply store located on the opposite side of the road from his
proper lane of travel. The plaintiff claims that the defendant cut into the
corner on his side of the road forcing him to take evasive action by turning
sharply around the front of her car and causing him to lose control when
he corrected. The defendant denies that she was in the plaintiff’s lane. She
said that she remained in her own lane and that as she came into the corner,
and looked to her left, she saw the plaintiff’s motorcycle and believed it was
going to strike her. She said the motorcycle avoided a collision by passing behind
her car and sliding into a building supply store which was parallel to her
lane of travel and to her right.

[3]          
Following a 911 call the ambulance service, and later, the RCMP,
attended. The plaintiff’s injuries were treated at the scene. The plaintiff
suffered a broken leg and other injuries it is not necessary to detail here.
The police attended and took a number of photographs that were useful in
showing the general layout of the street, buildings, and parked vehicles in and
about the scene. There was no evidence of skid marks to assist in any analysis
of what actually occurred. The court was therefore left to make what it could
of the parties’ versions of events and what the collateral witnesses had to
say.

[4]          
The plaintiff’s circumstances leading up to the incident were somewhat uncertain.
He had worked that day as a roofer, on a cash basis, near Creston. He worked
until about 4 p.m. then travelled back to Kimberley, a drive of about an hour
and a half. There is conflicting evidence about whether he drove straight home,
or whether and when he stopped, if he did not go straight home. If he stopped,
there is conflicting evidence as to whether he had a drink at a friends’ before
he went home, or stopped at a bocce pit and had a beer there. In his direct
evidence he said he went home and had about a quarter of a drink his wife had
poured for herself.

[5]          
There is conflicting evidence about who was at his home when he got
there. In his direct evidence the plaintiff said that the only person at home
was his wife Chelsea (then his girlfriend), while he had said, at the time he
was examined for discovery, that two friends had arrived by the time he got there.
The witnesses are not much clearer in their evidence as to when they arrived
relative to the plaintiff, or what people were doing at his home, beyond the
fact that they had come together to socialize. This was in connection with a
skateboarding event they were either participating in, or helping with, as part
of Kimberley’s annual July Fest.

[6]          
None of these details are important in and of themselves, but only as
they reflect on the reliability of the evidence the witnesses had to give as to
what occurred at the scene.

[7]          
The plaintiff said that when he got home his motorcycle had been knocked
over and that he picked it up. On discovery he had said that it was upright and
that his wife told him it had been damaged. He agreed in cross-examination that
his wife had told him about the damage. The plaintiff said he was upset about
the damage. At a point in the evening when at least Matt Shaw and Jeff Margerum
were present, he went out and examined the bike.

[8]          
The motorcycle was a 1983 Yamaha 750 that the plaintiff had only
recently acquired. He had only been licensed to operate a motorcycle for about
4 months, and he had qualified on a smaller, lighter 250 cc motorcycle. The
Yamaha 750 had been insured for about three weeks, during which time it appears
the plaintiff had had only a handful of opportunities to ride. He had very
little experience with a motorcycle that size, or in anything but dry weather.

[9]          
The plaintiff acknowledged that he may have been tired that evening.
Whatever his inability to recall what he drank, or where he drank, it is clear
that he was not legally impaired. The police administered an ASD test at the
scene which yielded a low reading consistent with any of the drinking patterns
the plaintiff had, on different occasions, described.

[10]       
When he looked his bike over, the plaintiff observed that oil had leaked
from it and he acknowledged that he was not very happy about that. He decided
to give it a ride to check it out.

[11]       
The plaintiff set out without a helmet. He was wearing a tee shirt, shorts,
and sandals. He first crossed Jennings Avenue and rode into a gravel parking
lot a little south of his garage. He turned around in the parking lot and drove
back onto Jennings without stopping to check for traffic, and headed north. The
plaintiff acknowledged that he knew there would be an increased police presence
in Kimberly for the July Fest weekend.

[12]       
The curve on Jennings road where the incident occurred is an angled turn,
of less than 90°, to the right for traffic moving in the plaintiff’s direction.
Sight lines are poor as the corner is approached due to a 6’ fence that
obscures the view. A van parked beside the fence, shown in the police
photographs, further obscured the view around the corner. The road past the
corner proceeds a short distance, then intersects Highway 95A. Just inside that
intersection is the blocked end of Ross Street, the next street toward the
Highway after Jennings Avenue.

[13]       
The plaintiff acknowledged that he did not want to go near Ross Street
because of the possibility of encountering police. In discovery he had been
more explicit, saying that he had intended to go, “perhaps near the entrance of
the building supply store”.

[14]       
The plaintiff acknowledged that he was not expecting traffic and that
the building supply store was closed. He was “choked” (that is, upset) that his
motorcycle may have been damaged and was listening for knocks in the engine. He
was surprised by the presence of the defendant’s vehicle and said it “looked
like” she was cutting the corner. He said he steered left, then right, and
after the re-correction lost control on the damp road. He ended up at a point
almost directly on line with his original path of travel on the opposite side
of the road.

[15]       
The defendant was operating a beige Buick Century that she had had for
three years. She was familiar with the road and the area, and had travelled on Jennings
Avenue often to visit her father. She and her sister Jan Wallach had been to a
food store on highway 95A to purchase supplies for a booth they were operating
at the civic centre to raise money for Kimberley Minor Hockey. They were in no
particular hurry. Getting to the Arena required a right angle right turn off
the highway and, after a short straight stretch, a left turn on the curve where
the incident occurred. The defendant maintained that although the road was
unmarked, she had kept to her side and said that as she got to the “entrance
way” of the building supply store she saw the motorcycle. She said she was
travelling about 30 kilometres per hour.

[16]       
The defendant said the motorcycle was heading for her left front bumper
and she said, “Oh my God, he is going to hit us.” She said the plaintiff swerved
to the right and that he then slid behind her. She said she kept moving
straight and pulled ahead, still parallel to the building supply store. She
said she did not have to back up to get into that position, which would have
been the case had she already commenced her turn into the curve.

[17]       
The defendant says she got out immediately and ran down the street to
get someone to phone 911. She called to two people further down Jennings Avenue.
She then went back to the scene. She says her sister was with the plaintiff,
and that, in the meantime, the plaintiff’s girlfriend, Chelsea Krell, had
arrived. Ms. Krell knew the plaintiffs’ sister. The defendant says she told the
plaintiff that he was stupid and could have killed himself and that he twice said
he was sorry, and asked if she was “ok”. Neither the plaintiff, nor Chelsea,
accused her of doing anything wrong.

[18]       
She said an ambulance attendant arrived on foot within minutes of the
incident and about 15 minutes later an ambulance arrived. The defendant and her
sister had waited around but the plaintiff appeared to be in good hands and
they left the scene and proceeded to the arena.

[19]       
The defendant that agreed the motorcycle must have been visible for some
time before she saw him. She said she had no idea how fast he was going. She
said she did not call the police. She believed she had not done anything wrong.

[20]       
The plaintiff’s sister, Jan Wallach, confirms the outline of the
plaintiff’s story respecting how they came to be on Jennings Avenue at the time
of the incident and where they expected to go. She was preoccupied with some
receipts, and apart from hearing the defendant call out that the plaintiff was
going to hit them, she cannot contribute to the evidence as to what exactly
happened. She says that the plaintiff pulled straight ahead to the curb along
the side of the building supply store and that it was not necessary to stop or
reverse out of the turn to do so.

[21]       
Ms. Wallach got out of the vehicle immediately and went over to where
the plaintiff was lying. She recognized him, and Chelsea Krell. She said she
was chiding the plaintiff as if he were one of her own children and said he
said “I’m sorry, I’m sorry”. When Chelsea Krell arrived she held the plaintiff’s
head in her lap. Ms. Wallach said that there was an odour of leaking gas, and that,
for that reason, she asked a young man standing nearby to put out his
cigarette.

[22]       
When the ambulance attendant arrived Ms. Wallach said that she and the
defendant backed off and “let him do his thing”. She said after a few minutes
she and the plaintiff went on their way. She said she did not feel that the
defendant was responsible for the accident.

[23]       
Donald Erichsen, a police officer who attended, testified that he
responded to a call from about 2 – 3 minutes away on highway 95A. He saw the
plaintiff down near the concrete wall of the building centre, being treated by
an ambulance attendant. He asked the plaintiff if he had had anything to drink
and was advised that he had one beer about an hour before, “down at the bocce
pits”. He administered an ASD demand. The instrument detected alcohol but in an
amount lower than the threshold for either a roadside suspension or a charge of
impaired driving. He issued the plaintiff s ticket for failing to wear a
helmet.

[24]       
Officer Erichsen says that no one present suggested that anyone else was
involved and the matter was treated as a single motorcycle accident. He said that
if there had been any suggestion that another vehicle was involved, the police
would have regarded that as important. He spoke to one of the plaintiff’s
acquaintances, Matt Shaw, at the scene. Mr. Shaw did not suggest that another
vehicle was involved. He did not talk to any other witness, although he now
knows, as a result of reviewing the file, that another person was present.

[25]       
Chelsea Krell, now Chelsea Tierney, testified that she was at home alone
on the afternoon of July 16 when the plaintiff arrived after working in Creston.
She said Matt Shaw and Jason Margerum and some others came along later. She
said that after the plaintiff got cleaned up he went outside to check on his
motorcycle. She said the motorcycle was in front of their garage on the side of
the street (Jennings). She said he drank a quarter of a glass of rum and coke
she had been drinking. She said Matt Shaw and Jason Margerum arrived just
before 6 p.m. She did not see the plaintiff after he went out to look at the
motorcycle and she did not see the accident.

[26]       
Ms. Tierney was sitting on the steps outside the house when she heard
someone yell to call 911. Matt Shaw went down the street toward the scene.  Ms.
Tierney then went down herself. She supported the plaintiff’s neck, where he
had come to rest near the building supply store. She says she saw a car pulled
off on Jennings Avenue, parked not parallel to the building supply store but on
Jennings Avenue, past the start of the bend, near a telephone pole she
identified in a police photograph.  Ms. Tierney said that she recognized the
vehicle as belonging to one of the Wallach sisters, and she personally knew Jan
Wallach. She said there was no discussion with either of the sisters.

[27]       
Ms. Tierney thought it was about 10 minutes before the ambulance
attendants arrived. The Wallach sisters left after the ambulance came, but
before the police arrived.

[28]       
In cross examination Ms. Tierney did not recall a gas leak at the scene
or any conversation about putting out a cigarette. She denied making a “shushing”
sign when Ms. Wallach mentioned alcohol, or that the plaintiff’s consumption of
alcohol came up at all before the police arrived. She said that when she
arrived on the scene Jan Wallach was not there but that Matt Shaw was.

[29]       
Matt Shaw testified that he arrived at the Tierney house around 2 p.m.
He drank at least three beer and believes he had been at the house for 4 or 5
hours when the incident occurred. He said he was standing outside the garage in
the parking area next to Jennings Avenue. He watched the plaintiff cross the street
and turn the motorcycle around in the gravel parking lot on the other side of
the road, then proceed down Jennings Avenue to the scene. Mr. Shaw remembers
seeing car lights coming around the corner and seeing the motorcycle slide
straight into the building supply store. He said the plaintiff had made one or
two shifts as he accelerated down Jennings Avenue, but that his speed was
“nothing excessive”. He said the plaintiff made a move to go around the front
of the car. He said he saw the car, then the plaintiff’s evasive manoeuvre, and
that it was “very quick”. He said the car slammed on its brakes.

[30]       
Mr. Shaw said that he got to the scene before Chelsea. He said the
driver of the vehicle was still there when the ambulance crew arrived, and when
the ambulance took the plaintiff away. He said he did not speak to her.

[31]       
In cross examination Mr. Shaw agreed that he had never mentioned
headlights before although he had given a statement about a month after the
accident. He agreed that he cannot really say the defendant’s car was in the
plaintiff’s lane. He said she was not travelling very fast and that she stopped
right away. He said she had to move for the ambulance, which was on the scene
very quickly. He thought there was one occupant of the car and thought it was
silver blue or blue. He said it moved off to the side of the road in about the
same location Chelsea Tierney suggested, “near the van”, in the police
photographs. He did not see when the defendant’s vehicle left the scene. He
said he spoke to the police, but did not blame the defendant for the accident
in that discussion.

[32]       
Jason Margerum has been a resident of Kimberley for some years. He often
saw the plaintiff in the period of time before the accident but sees less of
him now.

[33]       
Mr. Margerum recalled that when he arrived at the Tierney house both the
plaintiff and Chelsea were there. He thought it was around 5 p.m. He said there
were quite a few people milling around, but that he had nothing to drink.

[34]       
Mr. Margerum said that the plaintiff was concerned about moving his
motorcycle from the yard into the garage so that it would not be knocked over.
He said the plaintiff started the motorcycle, then took it across the street to
a gravel parking lot before heading down Jennings Avenue toward the scene. Mr.
Margerum was standing on Jennings Avenue in the area for parked cars on the
other side of the road from the Tierney’s residence (the other side of the
street from Matt Shaw’s vantage). He was at the rear of his Mazda getting something
out of it, although he is now not sure what that was. He had his back to the
plaintiff while he turned around in the parking lot but heard him ride past. He
then heard an abrupt change in the engine sound of the motorcycle, looked up,
and saw the plaintiff swerving to avoid a collision.

[35]       
Mr. Margerum said that the defendant’s vehicle looked like it had
entered the turn. He said the plaintiff’s motorcycle passed in front of the
defendant’s vehicle. He said the vehicle stopped abruptly. He said the
motorcycle made either a clutch or a brake sound, following which the sound
went up again.

[36]       
Mr. Margerum was the person who called 911. He hesitated before going to
the scene to let others tell him how bad it was.

[37]       
Mr. Margerum’s impression was that the motorcycle was travelling at a
“normal” rate of speed, “not excessive”.

[38]       
Mr. Margerum said that the occupants of the defendant’s vehicle were
sitting in the vehicle when he arrived. He did not see them get out of the
vehicle and did not know when they drove away. He did not speak to the police
who were at the scene and did not blame the other driver. About a month later
he gave a statement to counsel in which he had said he saw an oncoming car
“clearly encroaching”.

[39]       
An issue arose in respect of statements given by the witnesses to the
solicitor for the plaintiff. Certain similarities in the phrasing used by the
witnesses give rise, in the defendant’s submission, to an issue respecting
either collaboration or tailoring, that should give rise to an inference that
they may not be reliable. The statements are not evidence in themselves, and in
this context are only available to contradict the witness. Their preparation by
a lawyer means that they may not be precisely in the witnesses’ own words,
although it remains the responsibility of any witness who signifies agreement
with the contents to be sure he is making an accurate statement. To the extent
the statements are relevant they may be used to test the direct evidence of the
witness in the box. Their provenance may be put to the witness, but any enquiry
beyond that is collateral and impermissible.

[40]       
Counsel for the defence has said that he was not inviting an adverse inference
respecting the firm that prepared the statement. Because this caused some
concern to the plaintiff’s lawyer, I will simply say that no such inference
could be invited in the circumstances, or drawn by the court. The statements
were marked in this proceeding because of the issue the defendant wished to
make of them, but they form no part of the evidence and have only the conventional
use that I have described.

[41]       
The court had the benefit of photographs of the scene prepared by the
RCMP and subsequently by defence counsel. These were introduced without
objection and without calling the makers of the photographs to give evidence
about them. The RCMP photographs show the weather and road conditions on the
evening in question. The road appears damp. They show that at the time there
was no marked centre line. There is a rough seam near the centre on Jennings
Avenue. One must, of course, be careful of the inferences drawn from
photographs, particularly where depth perception is important. Having heard all
the evidence and reviewed the photographs, I am of the view that it would be
very hard to tell from the vantage of the witnesses, Shaw and Margerum whether
a vehicle coming from the left side of the curve on Jennings Avenue was over
the rough center of the road or not. It is a relatively flat plane and a
difference of a few feet horizontally at the distance of 60 metres or so would be
difficult to discern. Secondly, given the open angle of the curve (˂ 90°)
it is difficult to draw any inference from the sight of headlights as to the
specific position of the defendant’s vehicle in the curve, if indeed she got
that far.

[42]       
It is obvious that much of the direct evidence is contradictory and
somewhat confusing. I am satisfied on a balance of probabilities that the
defendant must be wrong about the motorcycle passing behind her. This makes it
difficult to be sure about her evidence respecting whether she was cutting the
corner. On this issue there is a straight credibility conflict.

[43]       
This really only matters if, on a balance of probabilities, it is
established that the plaintiff was intending to turn right at the corner and to
proceed on Jennings Avenue past the curve. In that case, if the defendant were
encroaching, she might have foreclosed the plaintiff’s ability to proceed in
his own lane, and forced him to take evasive action, or, in the moment, to
believe he had to take evasive action. It is a different scenario if the
plaintiff was intending to proceed to the building supply store and turn
around. This was the version he gave on discovery. When this was put to him,
along with a number of other inconsistencies – most notably his clearly incorrect
assertion that the defendant drove away in haste – it is clear that the
plaintiff has modified his case over time.

[44]       
If one looks to the surrounding circumstances it is clear that the
plaintiff was somewhat tired, somewhat upset and somewhat pre-occupied with his
motorcycle as he proceeded up Jennings Avenue. What happened next is consistent
with the sort of event where the person in the plaintiff’s position has the
right of way and is suddenly surprised by the incursion of a vehicle into his
path. The difficulty here is that the defendant’s vehicle had a right to enter
the curve and it was continuing in a straight line that was the servient use.
If the plaintiff was simply driving straight to the building supply store,
preoccupied by his motorcycle, there is very little significance to where,
exactly, relative to the centre line the defendant was, because the defendant’s
presence would be a surprise wherever he encountered her. That is a more
probable version, given what is known of the scene and the circumstances
leading up to his loss of control of the motorcycle. The trial version of the
plaintiff’s evidence is undermined by his acknowledged past statements under
oath. As he said earlier, there was reason to avoid turning towards the highway
because he was not wearing a helmet, and he knew there was an enhanced police
presence in that direction because of the July Fest celebrations.

[45]       
In this case there is no reliable physical evidence. The parties have
each given versions that cannot be completely accurate. The witnesses are
unhelpful, in that they are all wrong in some particulars, and given that the
photographs do not appear to support what they suggest about the scene. They do
point up the difficulty of drawing inferences from what they think they saw on
the curve at a shallow angle, from a considerable distance, on a flat plane.

[46]       
There is often little use one can make of post-event conduct. People
often apologize, for example, for things that are not their fault. It is
remarkable however, that if this was, in fact, an incident in which the defendant
was at fault or shares some fault, no one at the scene saw it that way, or was
concerned enough to insist the defendant await the police, or to report her involvement
to the police when they appeared.

[47]       
The defendant clearly did not flee, but attended the scene aware that
she and her sister were known to the plaintiff and to Chelsea Tierney, and left
only after it was clear there was nothing more for them to do. The defendant
was never questioned or investigated.

[48]       
The absence of physical evidence, and the unreliability of the various
witnesses, including irreconcilable contradictions in the evidence, leaves the
court to weigh what it has. This is not a case where both parties are
implicated and it is not possible to discern the degree to which each is
responsible, leading to an equal split in liability. For the plaintiff to
succeed, the court must accept his evidence that, first, he intended to turn
right at the curve and second, that the defendant was in his lane at that point.
His own evidence and the surrounding evidence and circumstances suggest it is
unlikely that his intention at the time was to go up to the highway.

[49]       
The defendant on the other hand, gives a straightforward story of
proceeding from the highway to the curve on Jennings Avenue, having made a
recent right turn. She had had little opportunity to accelerate as she
approached the curve. She was not preoccupied or distracted. Her evidence is
unreliable in the aftermath of the realization that her vehicle was in danger
of colliding with the plaintiff’s motorcycle, but not in respect to the details
leading up to the event..

[50]       
I do not think it is possible to say what happened with complete
confidence, although I think the defendant’s version of events more likely.
What that means for the plaintiff is that he has failed to carry the burden of
proof that, on a balance of probabilities, the defendant’s negligence was the
cause of the accident. This means, accordingly, that the plaintiff’s action is
dismissed.

[51]       
Costs will follow this result unless further submissions are required.

 __”T.M.
McEwan”_______________________       The Honourable Mr. Justice McEwan