IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110208

Docket: M033899

Registry:
Vancouver

Between:

Shane Allen Byer

Plaintiff

And

Kenneth Mills,
deceased, Jesse John Way and

S-304 Holdings
Ltd. doing business as Jonker Nissan

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Harris

Reasons for Judgment

Introduction

[1]            
At about 10:42 p.m. on the evening of September 10, 2001, a collision
occurred between two vehicles at the intersection of Pinnacles Road and the
Nazko Highway some 10-12 kms northwest of Quesnel. The Nazko Highway is the
through road with the right-of-way over traffic joining it from Pinnacles Road.
There is a stop sign at the intersection on Pinnacles Road. The Nazko Highway
runs broadly east to west. Pinnacles Road joins it from the south.

[2]            
It was dark at the time of the accident. The intersection is not lit by
artificial lights. The road surface was dry.

[3]            
The collision involved a Ford F350 truck, driven by the defendant Mr. Way,
and a Chevrolet Blazer occupied by the defendant, Mr. Mills, and the
plaintiff, Mr. Byer. Mr. Way was driving in an easterly direction
along Nazko Highway. The Blazer was driving down Pinnacles Road towards the
Nazko Highway. It did not stop at the stop sign. It drove into the path of the
F350 truck which despite swerving to the left was unable to avoid it.

[4]            
The contact damage indicates the front left corner of the Blazer struck
the right front of the Ford. It appears likely that the Blazer cut the corner
at the intersection as it turned left onto Nazko Highway. Mr. Cliff, an
accident reconstruction expert, estimated that the Blazer would have been
angled about 50 to 60 degrees clockwise of being directly head-on to the Ford. This
is consistent with the Blazer being part way through a left turn at impact and
the Ford swerving left.

[5]            
The damage to both vehicles was extensive, more so to the Blazer. Both Mr. Mills
and Mr. Byer were injured. Mr. Byer was seen getting out of the
driver side of the Blazer. Mr. Mills was found inside its passenger
compartment. He was seriously injured and subsequently, but unexpectedly, died
of his injuries. Neither man was wearing his seatbelt at the time of the
accident. Both of them had been drinking before it occurred.

[6]            
Mr. Byer brings this action to claim compensation for the alleged
negligence of both Mr. Way and Mr. Mills in causing the accident. His
case is that he was the passenger in the Blazer. The accident was caused by the
negligence of Mr. Mills who failed to stop at the intersection and Mr. Way
who contributed to the accident by driving too fast as he approached it.
Mr. Byer says that his long-term injury is damage to his left knee which
limits his activities and compromises his ability to engage in heavy physical
work. His knee continues to deteriorate, threatening his longer-term employment
prospects.

[7]            
In closing argument, Mr. Byer abandoned his claim against Mr. Way
conceding, correctly in my view, that the evidence did not support a finding
that any alleged negligence by Mr. Way caused or contributed to the
accident. The action against the Way defendants is dismissed with costs.

[8]            
The remaining issue is the alleged liability of Mr. Mills. ICBC held
Mr. Mills in breach of his insurance policy because his licence to drive
had been suspended at the time of the accident. ICBC appeared as a third party
and defended the action on that basis.

[9]            
The defence position is that Mr. Byer was the driver of the Blazer
and is solely at fault for the accident and his own injuries. Moreover,
although injured in the accident, he did not injure his left knee in it. His
problem with his left knee derives from a pre-existing condition that has
become symptomatic for reasons unrelated to the accident. All of his injuries
attributable to the accident were resolved within approximately one month of
its occurrence.

[10]        
The first critical issue, therefore, is who was driving the Blazer?  The
answer to that question turns critically on one finding of fact I must make.
Ms. Burton, who is a paramedic, testified that she found Mr. Mills in
the Blazer with his feet, or at least one of his feet, trapped under the
crushed dashboard on the passenger side of the vehicle. Mr. Cliff, who is
an expert in accident reconstruction and who testified on behalf of Mr. Byer,
agreed that if Mr. Mill’s feet were pinned in that position, then Mr. Mills
could not have been the driver. Since only Mr. Byer and Mr. Mills were
in the vehicle, it necessarily follows that Mr. Byer was driving at the
time of the accident.

[11]        
I have concluded that Ms. Burton’s evidence should be accepted on
this critical issue. I also accept the evidence of Mr. Cliff that on that
assumption Mr. Mill’s could not have been the driver. Accordingly, I find
that Mr. Byer was driving at the time of the accident. He is solely at
fault for the accident. It is, therefore, not necessary for me to assess
damages.

[12]        
In what follows, I will first set out additional matters forming the
general factual background underlying this action. I will identify additional facts
that are not in dispute and the physical evidence that bears on the identity of
the driver. After setting out Mr. Byer’s theory attempting to prove that Mr. Mill’s
was the driver, I will explain my reasons for rejecting it.

Background

[13]        
Mr. Byer professes to have no memory of the accident or who was
driving. He recalls little if anything of the day of the accident, the events
leading up to it or its aftermath.

[14]        
The only witnesses to the accident itself were the occupants of the
Blazer and of the F350. Mr. Way did not see who was driving the Blazer. All
that he could say was that when he approached the Blazer he saw someone who we
now know to be Mr. Byer get out of the driver side of the vehicle. His
passenger did not testify at trial. Mr. Mills died shortly after the
accident and obviously did not testify. He did, however, make a number of
statements while he was trapped in the Blazer and later that night in which he
denied that he was driving. One issue in this trial is whether I should admit
these statements for the truth of their contents.

[15]        
Immediately before the accident, Mr. Byer and Mr. Mills had
been drinking in the Hitchin Post Pub. The pub is located on Pinnacles Road
approximately 100-200 metres from the intersection with the Nazko Highway. They
left the pub together, apparently arguing about who would drive and where they
would go. Mr. Byer seems to have wanted to go to town to continue partying.
Mr. Mills wanted to go home. In turning left onto Nazko Highway, they
headed in the direction of Mr. Mill’s home, a fact that Mr. Byer
submits supports the inference that Mr. Mills won the argument about who
would drive.

[16]        
Only one eye witness at the pub could give any evidence about who drove
the Blazer when it left the pub. That witness says she recalled looking out of
the pub window and catching a glimpse of the shirt worn by Mr. Byer
through the driver’s window as the Blazer left the parking lot of the pub.

[17]        
Mr. Mills was found trapped in the Blazer. Mr. Chaplin, who
was possibly the first to the Blazer, said he found Mr. Mills “sitting” on
the driver’s seat with his upper body slumped over to the passenger side of the
compartment. Mr. Chaplin was concerned about Mr. Mills’ ability to
breathe and his injuries generally and got Mr. Mills’ “sat up” to
stabilise his spine. I refer to this evidence because part of Mr. Byer’s
case is that Mr. Mills was pinned by the steering wheel during the
collision. If Mr. Chaplin’s evidence is accepted, Mr. Mills was not
pinned by the steering wheel. The position of his upper body relative to the
steering wheel resulted from Mr. Chaplin sitting him up from a position in
which his upper body was slumped over towards the passenger seat.

[18]        
There is general agreement among the witnesses that Mr. Mills was
found with his buttocks on the driver’s seat. Mr. Chaplin testified that Mr. Mills’
right buttock was on the driver’s seat and the left was in the air. His
buttocks were “off from the driver’s side a ways. Like more towards the
middle….”  At least after being “sat up” by Mr. Chaplin, Mr. Mills’
upper body was in the area of the steering wheel.

[19]        
There is some conflict in the evidence about the direction Mr. Mills’
legs were pointing and where his feet were. I will return to this issue.

[20]        
The passenger compartment of the Blazer contains two bucket seats. A
transmission tunnel runs between the seats and through the compartment. The
transmission tunnel is raised. It divides the foot area for the occupants into
two wells; one for the driver and one for the passenger.

[21]        
It is not in dispute that neither occupant of the Blazer was wearing a
seat belt.

[22]        
The experts, Mr. Cliff and Mr. West, agree in general terms
about the nature and direction of the forces involved in the collision and the
movement of the occupants relative to the Blazer’s cab. When the Blazer ran the
stop sign it turned left into the path of the Ford F350. As a result of the
collision, the Blazer was deflected to the right and rotated clockwise until it
came to rest. In non-technical terms, the Blazer was angled relative to the
Ford at approximately 10 o’clock when it was hit and rotated clockwise until it
came to rest facing about 8 o’clock. As the Blazer rotated, the occupants, if
unrestrained, continued to move in the same direction as the Blazer had been
moving immediately before the impact. Relative to interior to the Blazer, both
occupants would move forward and to the left at some angle across the
compartment, until their movement was deflected or stopped by hitting something
solid. Given the angle of the vehicles when they collided, and making allowance
for the clockwise rotation of the Blazer, it seems clear that unrestrained
occupants would move forward more than leftward in each millisecond of travel. Both
experts agree that the driver would strike the driver’s door at a point forward
of his seated position. Both agree that the passenger would strike the centre
of the dashboard and the windshield in the centre near the location of the
rear-view mirror.

[23]        
The collision was violent. The F350 was a large and heavy truck.
Mr. Cliff estimated that the speed change of the Blazer resulting from the
collision to be in the range of 55-61 km/h. This gives some idea of the speed at
which the occupants, if unrestrained, would continue to move within the
passenger compartment of the Blazer, and their speed when striking objects
within the Blazer.

[24]        
After the accident the Blazer was inspected and some physical evidence
was observed, some of which was gathered.

[25]        
The driver’s door was deformed. It was bent out at a point consistent
with being struck by the left side of the driver as he moved on a trajectory
forward and to the left. The door may, however, have simply buckled as a result
of the forces in the collision.

[26]        
Fibres from the shirt worn by Mr. Byer were found embedded in the
broken windshield. These fibres were located in the bottom left of the
windshield and fibres were also found low down on the right side of the left
windshield post, (the so-called “A column”).

[27]        
After the accident, a sample of DNA was taken from a damaged area of the
windscreen some 34 cm left of centre (more or less in front of the steering
wheel). I will refer to this as the “star fracture”. The DNA was collected from
short hairs the police investigators found embedded, together with flesh, in
the fractured windscreen. The DNA test identified the hairs to have come from Mr. Byer.

[28]        
A much larger hole was discovered in the middle of the windshield more
or less where the rear-view mirror would be. Hairs of 6-10 cm were found
embedded in the broken windscreen. The investigating police officer took
samples of the hair, but they were lost. No DNA analysis was done.

[29]        
Both experts accept that the damage to this part of the windshield
occurred when the passenger went through it.

[30]        
Both Mr. Byer and Mr. Mills were badly injured in the accident.
Both suffered facial lacerations and other injuries. There was much discussion
in argument about what the injuries to each proved or suggested about who was
driving. No expert evidence was led on this question. I will comment on my view
of what can be taken from the injuries suffered by the two men later in these
reasons.

[31]        
The DNA evidence establishes that Mr. Byer hit the windscreen 34 cm
to the left of centre, that is, at the star fracture. Mr. Cliff opined
that the head of neither occupant would hit the windscreen at the location of
the star fracture. Mr. Cliff’s report explained why the damage to the
centre of the windscreen most likely was caused by the head of the passenger
and not the driver. In Mr. Cliff’s opinion, the driver would not have hit
the windscreen at all. The hair found at the star fracture did not come from Mr. Byer’s
head. Mr. Cliff thought the best explanation of Mr. Byer’s hair being
found there was that it came from his left arm. If Mr. Byer were the
driver, he would not have deposited DNA on the front windscreen at the star
fracture. Only the passenger could have hit the windscreen at that point, but
not with his head.

[32]        
Mr. West proffered a different opinion. In his opinion the star
fracture was likely caused by the driver’s head. His view was the driver would
have hit the driver’s door with a glancing blow and his forward momentum would
have led him to rebound onto the windshield with his head causing the damage at
the star fracture and depositing flesh and hair there. Based on the DNA
evidence, Mr. West concluded that Mr. Byer must have been the driver.

[33]        
The rival opinions of occupant dynamics became the principal focus of
expert controversy at trial. To the extent necessary, I will assess this
controversy below.

Plaintiff’s Position

[34]        
The plaintiff submits that the preponderance of the evidence establishes
that Mr. Mills was the driver of the car. He argues that I should have
regard to all of the evidence and weigh each piece of evidence in light all of
the evidence to find the necessary facts. He points to lay evidence about the
position of Mr. Mills in the Blazer, evidence about the arguments about
who should drive and the turn towards Mr. Mills’ home, the nature of the
injuries suffered by both occupants and Mr. Cliff’s opinion evidence
reconciling the physical evidence, all as supporting the conclusion that Mr. Mills
was the driver.

[35]        
In particular, the plaintiff submits that I should reject the evidence
of Ms. Burton that Mr. Mills legs or feet were pinned by the
dashboard on the passenger side of the vehicle or in the passenger seat well. He
says in the light of the expert evidence from Mr. Cliff explaining
occupant dynamics and reconciling them with the physical evidence, the injuries
suffered by the occupants and the circumstances under which Ms. Burton
made her observations, I should conclude that Mr. Mills’ feet were not
pinned on the passenger side of the Blazer.

[36]        
I turn first to deal with Mr. Cliff’s opinion. The core of his
opinion is that the passenger would arrive in front of the windshield before
the driver could get there. The passenger’s body would block the driver’s body
and prevent it reaching the windshield at all. The physical evidence of the
star fracture and the location of the red fibres imply a body moving from the
passenger to the driver’s side of the vehicle and not in the other direction. Only
the passenger would be moving in that direction. The driver would be moving
right to left (having rebounded off the driver’s door) and could not therefore
have made the star fracture or deposited DNA or the red fibres in the
windshield.

[37]        
In Mr. Cliff’s opinion, the most likely explanation of the physical
evidence is that as the passenger was flung forward and to the left he threw
his left arm out in a protective gesture. He would have struck the dashboard
and his upper body and head would have continued forward until his head hit and
broke through the centre of the windshield. In the meantime his left arm and
hand hit the windshield making the star fracture. As his leftward momentum
continued his elbow would have slid down towards the bottom left of the
windshield depositing red fibres in the windshield and on the front driver’s
windshield column.

[38]        
In rationalising his opinion Mr. Cliff said:

[S]ince the left door deformed outward and the driver’s head
would extend beyond the window opening when the door cross broke, the drivers
head would likely have to rebound over 40 cm to the right to strike the
windshield at the left fracture location. Considering the angle of approach and
the location of the head contact with the left door, it is not possible for the
head to rebound and strike the windshield at the left fracture location.

The distance required for the
driver to travel to the left windshield fracture [including rebound] is greater
than the distance required for the passenger to reach it. Considering this and
the occupant speeds with respect to the interior, the driver could not arrive
there before the left side of the passenger did. In other words, the passenger
would likely be in a position to prevent driver contact with this area of the
windshield.

[39]        
Mr. Cliff supported his theory that the passenger had to arrive at
a location within the vehicle before the driver could strike the windshield. Both
passengers, if unrestrained, would begin their trajectories at the same speed. Not
only is the distance the driver must travel to hit the star fracture greater than
the distance for the passenger to block the driver’s path to that spot,
allowance must be made for the effect on the driver’s speed and path of travel
of hitting the driver’s door. The extent and speed of rebound off the door is
affected by the amount of energy the door absorbs when it is struck. This is
measured by the coefficient of restitution. As was explained to me, "this
is the post impact rebound speed divided by the pre-impact approach speed. For
example, a golf ball bouncing off a hard surface would have a coefficient of
restitution of around 0.9. A lump of wet clay striking the ground would have a
coefficient of restitution very close to zero".

[40]        
In this case the door was deformed consistent with being struck by the
driver. As a result of absorbing some of the energy from the driver, the speed
of the driver’s rebound forward would be reduced.

[41]        
Also affecting the speed and direction of travel of the driver is the
fact that the head and the torso of the driver would not move in strict tandem.
When the driver’s body struck the door, and its movement was slowed and its sideways
movement arrested, his head would continue to move sideways, extending the
distance to the left that his head would travel before it would begin to
rebound forward. There is evidence that the driver’s window was broken. This
suggests that the driver’s head broke through the glass and traveled outside
the dimensions of the passenger compartment. Mr. Cliff opined that "a
human striking a window that breaks away and a door that deforms would produce
a coefficient of restitution that is very low, because of the glass breakaway
and the energy absorbed by the deformation of both the door and the human.” 
The effect is that it takes longer for the driver to hit the windshield,
increasing the opportunity of the passenger to block the path. Moreover, the
extension of the head through the window increases the distance it must travel
to strike the star fracture.

[42]        
In explaining the relationship between the physical evidence and the
occupant movement Mr. Cliff stated:

when an object strikes the
interior of a windshield the initial contact will be at the top of the fracture
site because of the slope of the windshield. Subsequent contact will be lower,
as the object continues to move forward. In this case the lower portion of the
fracture, where the windshield is pierced, is left of the upper portion. This
indicates the motion was right to left, rather than left to right, which in
turn indicates it was not made by the driver’s head rebounding from the left
side.

[43]        
The plaintiff also submits that I should place no weight on the opinion
of Mr. West. He argues that Mr. West reached his conclusion that Mr. Byer
was the driver without undertaking any proper analysis of occupant dynamics. He
says that Mr. West simply reached a conclusion because Mr. Byer’s DNA
was found at the "star fracture" located in front of the steering
wheel. He just assumed that the two major fracture sites in the windshield were
caused by the heads of the occupants. Nowhere in Mr. West’s initial report
prepared to support criminal proceedings against Mr. Byer is there any
suggestion that the driver would rebound off the driver door and then strike
the windshield. The plaintiff says that Mr. West developed his rebound
theory as a result of being confronted with the opinion of Mr. Cliff. Ever
since being confronted by that opinion, Mr. West has been rationalizing
his original conclusion and attempting to support it. The plaintiff argues that
Mr. West has not provided me with a properly reasoned or supported opinion
and that I should reject his evidence.

[44]        
Next the plaintiff points to the injuries that were suffered by Mr. Mills.
He points to the injuries on the left side of Mr. Mills’ body that he
argues are consistent with Mr. Mills striking the driver’s door. His other
injuries are consistent with being wedged behind the steering wheel. The
plaintiff argues that Mr. Mills did not suffer the kind of injuries to his
feet or ankles one would expect if he were pinned by the dashboard. By contrast,
the injuries suffered by Mr. Byer are said to be more consistent with him
being the passenger and striking the windshield in the area of the star
fracture with his left arm in the manner suggested by Mr. Cliff.

[45]        
Mr. Byer also points to some of the lay evidence to support his
case that he was the passenger. There is evidence that before leaving the pub
the two men were arguing about who would drive and where they would go.
Mr. Mills wanted the keys and wanted to go home. When the Blazer turned
left it turned towards Mr. Mills’ home, suggesting that he won the
argument about who would drive. Certain lay witnesses gave evidence of their
observations of Mr. Mills’ position in the Blazer when they came on the
accident scene. Generally, that evidence was consistent that Mr. Mills’
buttocks were on the driver’s seat, and some said his upper body appeared to
have been pinned by the steering wheel and column. One witness said she
recalled his left leg pointing down to the gas pedal. Mr. Byer says I
should give weight to this kind of evidence about Mr. Mills’ position in
the Blazer because it is consistent with what one would expect, given Mr. Cliff’s
opinions.

[46]        
Mr. Byer recognises, however, that Ms. Burton gave evidence
that Mr. Mills’ feet were pinned under the dashboard on the passenger side
of the vehicle. He says I should assess the reliability of those observations
against all of the other evidence. He says her observations are not
corroborated by other evidence. They are not recorded in the ambulance report. Her
recollection of the difficulty of extracting Mr. Mills from the vehicle
actually related to the fact that he was wedged in place by the steering wheel.
He submits that Ms. Burton was focused on Mr. Mills’ injuries and
distracted by concerns about how her partner was coping with Mr. Byer’s
belligerent behaviour. She was, therefore, distracted. It was dark. She could
not see well and did not get into the Blazer. Most fundamentally her evidence
is inconsistent with the opinion evidence of Mr. Cliff and is inconsistent
with his explanation of the physical evidence. Most particularly, the
implication of her evidence, accepted by Mr. Cliff, that Mr. Byer was
the driver is inconsistent with the occupant dynamics involved in the accident
and that the DNA at the star fracture and the red fibres were deposited by an
occupant moving right to left, the opposite direction to the one the driver
would have been moving.

The Defendants’ Position

[47]        
I will not set out the defendants’ position in detail since many of the
issues raised by them are commented on in my analysis. Given the submission
that I should place no weight on Mr. West’s report, a brief comment is in
order.

[48]        
Mr. West explained that the forces involved in the collision were
so significant that there was little to be gained by sophisticated calculations.
Similarly, the general principles relating to occupant dynamics were
straightforward. His view that the driver would hit the door and rebound to the
windshield was implicit in his conclusion. In fact, there is no dispute between
him and Mr. Cliff that the driver would hit the door.

[49]        
Even though the report was conclusionary and offered little by way of
rationale for the opinions expressed, taking the evidence of Mr. West as a
whole, I am satisfied that I may give it weight. Indeed, it was Mr. West
who pointed out that Mr. Cliff in his original report had provided
incorrect dimensions of the interior of the Blazer. In fact, the distance from
the driver’s left shoulder to the door was some 10 cm less than calculated by Mr. Cliff.
This has an effect on how far to the left the driver must move before
rebounding forward off the door, how far the head would travel to the left
before changing direction to the right and where the driver would strike the door.
All of this affects the occupant dynamics. Mr. Cliff accepted that he had
made an error in the dimensions of the Blazer, but maintained his opinion
notwithstanding.

Analysis

[50]        
Mr. Cliff candidly admitted that if Mr. Mills’ feet were
pinned under the dashboard on the passenger side, he could not have been the
driver. When he made that acknowledgment, he also said that he was aware of the
evidence suggesting that Mr. Mills’ feet were pinned. I take Mr. Cliff’s
acknowledgment that in those circumstances Mr. Mills could not be the
driver to be a considered opinion. In making the concession, Mr. Cliff was
aware of all of the physical evidence and his opinions about occupant dynamics.
In my view, Mr. Cliff must be taken to have accepted that, if Mr. Mills’
feet were pinned, his theory of occupant dynamics would no longer explain and
account for the physical evidence of the impacts by the vehicle occupants in
the interior of the passenger compartment. Some other explanation would be
necessary.

[51]        
Mr. Cliff did not express the opinion either in cross-examination
or in re-examination that the physical evidence he analysed made it impossible
or improbable that Mr. Mills’ feet were pinned, as Ms. Burton
testified.

[52]        
In my view, the explanatory and predictive power of the theory of
occupant dynamics put forward by Mr. Cliff vanishes once certain
assumptions are modified. At the very least, I was not provided with any
explanation of its continuing relevance in explaining the physical evidence.

[53]        
Mr. Cliff’s theory of occupant dynamics assumed that both occupants
were unrestrained and would therefore move freely within the passenger
compartment until their bodies began to strike the interior of it. This
assumption is, in my opinion, critical to Mr. Cliff’s conclusion that the
passenger’s body would prevent the driver’s body striking the windshield. If
the passenger’s feet were pinned by the dashboard, then the movement of the
passenger’s body and its speed would be affected. I was offered no opinion
about how it would be affected and whether in those circumstances it would
prevent the driver’s body or head striking the windshield.

[54]        
The principles of occupant dynamics are helpful up to a point. Certainly,
they assist in identifying the principal direction of force exerted on occupants.
They are also helpful in identifying the point at which an occupant might be
expected to make initial contact with the interior of the passenger compartment.
In my view, in the circumstances of this collision, the predictive value of
principles of occupant dynamics rapidly diminishes once the movement of the
passengers is affected by contact with the interior of the compartment and with
each other. At that point the situation becomes inherently dynamic and fluid. There
are far too many variables involved to make accurate predictions of how the
occupants and parts of their bodies would move once they start hitting each
other. It must be remembered that if unrestrained an occupant would be
traveling within the compartment at a speed of about 55 km/h. I am sceptical
that any reliable prediction of how the occupants would interact with each
other, with the interior of the passenger compartment and move within it can be
undertaken.

[55]        
Here, if Mr. Mills’ feet were pinned, it is unclear how his
movement would be affected by that fact. Certainly, if he were the passenger,
there is evidence that he struck the dashboard and his head broke the
windshield. It is impossible to say whether, with his feet pinned, his body
would have pivoted or twisted as his upper body tended to move forward and to
the left. With his feet pinned, it is unclear how quickly his body would move
forward and whether he would have blocked the ability of the driver to strike
the windshield. It is unclear once the bodies of the driver and the passenger
began to hit each other how the respective movement of the two bodies would be
affected. The driver’s body may have been deflected by the passenger’s body, or
may have ridden up over it and been deflected off its path of rebounding off
the door from left to right, so that it began to move instead from right to
left. If that happened, and accepting solely for the purpose of argument Mr. Cliff’s
view that the occupant who deposited that evidence was moving from right to
left, the deposit of DNA at the star fracture and the red fibres would readily
be accounted for.

[56]        
In my view, it is most probable that occupant movement within the
passenger compartment after initial contact with the driver’s door and the
dashboard became inherently dynamic, fluid and unpredictable. Although it may
be possible to use the principles of occupant dynamics to account for the
physical evidence if both passengers are unrestrained, I do not think those
principles offer any assistance in explaining the physical evidence if Mr. Mills’
feet were indeed pinned under the dashboard, as observed by Ms. Burton.

[57]        
In my view, Mr. Cliff’s acknowledgment that Mr. Mills could
not have been the driver if his feet were pinned on the passenger side of the vehicle
is more than a common sense admission; it involves accepting that the physical
evidence within the passenger compartment as well as the injuries suffered by Mr. Mills
are consistent with Mr. Mills being the passenger.

[58]        
In the result, I cannot conclude that the opinion evidence provides a
cogent basis to conclude that Ms. Burton’s evidence is unreliable.
Mr. Cliff’s evidence assumes the passenger was able to move freely within
the compartment. It offers no basis to conclude that it was improbable or impossible
that the passenger’s feet were pinned under the dashboard. In these
circumstances, I must test the reliability of Ms. Burton’s evidence by
other means.

[59]        
Ms. Burton arrived at the accident scene within about 15 minutes of
the accident happening. She took responsibility for assessing Mr. Mills’
injuries. She was anxious to get Mr. Mills out of the vehicle and to
hospital. She wanted to “load and go”. One difficulty she faced was that Mr. Mills’
feet were stuck under the dashboard on the passenger side. Ms. Burton said
that it took a long time to get Mr. Mills’ feet unpinned from the
passenger dashboard side. She testified:

His feet –his –ankles and feet
were pinned on the passenger side under the dashboard. The dashboard has been
–had been pushed in by the impact of the accident, and his body was basically
mostly on the driver’s side….

[60]        
Ms. Burton testified that Mr. Mills’ head was more on the
driver’s side as were his hips. When examined further about the location of Mr. Mills’
feet relative to the transmission tunnel and the gear shift, she reiterated
that his feet “were definitely on the passenger side, under –stuck under the
dashboard.”

[61]        
It took quite a while to get Mr. Mills’ feet free and to get the
steering wheel out of the way because it was impeding the effort to remove Mr. Mills
from the Blazer.

[62]        
Several times in her evidence, Ms. Burton returned to the issue
that the principal problem with freeing Mr. Mills from the vehicle was that
his feet were stuck under the dash on the passenger side. She referred to the
efforts she and others made to tear away the damage to free his feet. Ms. Burton
was categorical about the fact that Mr. Mills’ feet were pinned by the
dashboard on the passenger side.

[63]        
Ms. Burton’s evidence was not effectively challenged in
cross-examination. The nearest to any inconsistency in her evidence that could
be identified was an earlier statement in which she had said that “at least one
of his feet were pinned on the passenger side”. I do not consider that
discrepancy to be material to the reliability of her evidence.

[64]        
Ms. Burton gave graphic and detailed evidence of Mr. Mills’
injuries, behaviour and the difficulties she faced in extracting Mr. Mills
from the Blazer. In my view, her evidence was internally consistent and compelling.
She had every reason to recall those events vividly. Her principal focus was on
assessing Mr. Mills. She wanted to “load and go”, but there were problems
about extracting him from the vehicle. She had initially assumed that Mr. Mills
had been driving. This was based on her observation that he was sitting in the
driver’s seat. When she asked Mr. Mills if he had been driving he denied
it using colourful language. Later Ms. Burton puzzled about whether he was
the driver given that his feet had been pinned on the passenger side. No doubt
this speculation further cemented her memory of the events and what she saw. Moreover,
the events of that night stayed with her as a result of learning that Mr. Mills
had later died.

[65]        
Plaintiff’s counsel tried to undermine the reliability of Ms. Burton’s
evidence. I find his efforts were unsuccessful. He attempted to diminish the
effect of her evidence by suggesting that she was not well placed to see where Mr. Mills’
feet were, because she had not gone far enough into the vehicle to see where
his feet were pinned and it was dark. Ms. Burton’s responded that she had
leaned as far as she could into the vehicle and could see where his feet were. The
scene was lit with halogen lights from the ambulance. Moreover, Ms. Burton
had reached into the vehicle to help release Mr. Mills’ feet. When the
rescuers tried to move Mr. Mills’ feet, it caused him acute pain and he
“screamed bloody murder”.

[66]        
Ms. Burton was an impressive witness who gave her evidence in a
careful, direct and straightforward manner. She has no interest in the outcome
of this litigation. She had every reason to remember where Mr. Mills’ feet
were located. I am satisfied that Ms Burton could see where Mr. Mill’s
feet were from her vantage point and that she got far enough into the vehicle
to assist in releasing his feet. I consider Ms. Burton’s memory of where Mr. Mills’
feet were to be reliable, even though the accident scene was chaotic and she
was occasionally distracted by her concern for her colleague who was having
difficulties dealing with Mr. Byer.

[67]        
I find as a fact that Mr. Mills’ feet were pinned under the
dashboard on the passenger side of the Blazer. I find also that his feet were
pinned by the front part of the Blazer and the dashboard collapsing in on his
feet at the moment of the collision. As a matter of common sense, Mr. Mills’
feet could not have been pinned in that place if he had been driving the
Blazer.

[68]        
I am supported in my view that I should accept Ms. Burton’s
evidence on this critical fact by other evidence, though this evidence is not
necessary to my conclusion. First, Mr. Chaplin testified that he sat Mr. Mills
up from a position where his upper body was slumped over the passenger seat. This
evidence was not challenged and I accept it. One implication of this evidence
is that Mr. Mills was not pinned in the driver’s seat by the steering
wheel at the moment of impact. Mr. Chaplin also testified about the
location of Mr. Mills’ feet. When he got to the Blazer, it was dark. The
first responders and paramedics had not yet arrived. He said that Mr. Mills’
legs were close to the middle of the vehicle, under the dashboard. He could not
say exactly where, because that was not his main concern at that moment.
Mr. Chaplin had said this;

“(w)hen…I first got there I
thought it was Ken….was probably the driver…because …he was more behind
the driver’s seat. But the more I thought about it…just the force of the
impact…could have blown him across…the seat. Because his legs were down
underneath the passenger side so I don’t know. [Emphasis added]

[69]        
He also confirmed a prior statement to the police in which he said that
he thought that maybe Mr. Mills’ legs might actually have been pinned
under the dashboard. In my view this lends some modest support to the
credibility of Ms. Burton’s evidence. I rely on Mr. Chaplin’s observation,
not his opinion.

[70]        
As well, the post mortem report on Mr. Mills described large areas
of bruising on the medial and lateral side of his left ankle. This is
consistent with at least one ankle being pinned by the dashboard. The ambulance
report also referred to the length of time it took to extract Mr. Mills
from the vehicle, although it did not refer specifically to his feet having to
be freed.

[71]        
Of the other eye witnesses, only Ms. Murray gave any evidence that
bears on whether Mr. Mills’ feet were pinned under the dash. She was shown
some earlier evidence in which she had said that Mr. Mills’ left foot was
pointing down at the gas pedal. I found her evidence on this point unclear. She
qualified it by saying that it appeared as if someone had tried to drag Mr. Mills
out of the vehicle. In the result, I prefer the evidence of Ms. Burton to Ms. Murray
on this point. Ms Burton had a far better vantage point to see where Mr. Mills’
legs were, tried to free them and had the benefit of the ambulance lights
illuminating the scene.

[72]        
Finally, and independently of Ms. Burton’s evidence, I reject the
argument that the injuries to the occupants support the inference that Mr. Mills
must have been driving. His injuries to his torso appear to me to be entirely
consistent with striking the centre of the dashboard. I note that the post
mortem report does not identify an injury to his left shoulder as might have
been sustained in striking the driver’s door, whereas Mr. Byer did suffer
such an injury. Both men suffered facial lacerations consistent with striking
the windshield. The star fracture had short hairs and flesh deposited in it. It
is common ground that they were deposited by Mr. Byer. The photographs of Mr. Byer’s
facial injury show that he lost part of his eyebrow in the accident, including
both flesh and hairs. This is consistent with his head hitting the windshield
at the site of the star fracture. The photographs do not show evidence of another
part of his body, such as his hand or arm, that was injured in a way that might
have left flesh and short hairs behind in the manner suggested by Mr. Cliff.
The length of hair (6-10 cm) found in the centre fracture is consistent with
the length of Mr. Mills’ hair, though the hair length alone does not rule
out the possibility that the hair could have come from Mr. Byer’s head,
notwithstanding defence counsel’s able submission about the length of hair
associated with the mullet hairstyle sported by Mr. Byer at the time of
the accident.

[73]        
I find as a fact that Mr. Byer was the driver of the Blazer when
the accident occurred. That conclusion is based on, first, my finding that Mr. Mills’
feet were pinned under the dashboard on the passenger side of the vehicle and,
second, my agreement with Mr. Cliff that if Mr. Mills’ feet were so
pinned, he could not have been the driver. It is not, therefore, necessary for
me to rule on whether to admit for the truth of their contents a series of
statements made by Mr. Mills at the accident scene and later in the
hospital, in which he denied being the driver and identified Mr. Byer as
the driver.

[74]        
The action is dismissed with costs.

[75]        
I add as an Appendix some comments about the use of deposition evidence
in this trial.

“Harris
J.”

Appendix A

a)    The majority of
the defence evidence of fact was taken by deposition before trial began. This
was done by consent as the Civil Rules permit. I presume it was done to
convenience the witnesses, most of whom live in or near Quesnel and to save the
expense of bringing witnesses to testify “live” before the court in Vancouver.

b)    During the
course of one deposition, I expressed some reservations about using depositions
in this way. What follows are some reflections triggered by the use of this
practice, and are not comments directly arising from the way counsel in the
case before me conducted the depositions. They are also not complete, but
merely illustrative of the kind of problems that arise by taking evidence by
deposition.

c)     It is well
settled in our trial practice that the basic rule is that witnesses should
testify live before the court. This proposition is reflected in Civil Rule12-5
(27) and in the many cases in which our courts have considered the basis on
which to exercise their discretion to make an order that evidence be taken by
deposition.

d)    In this case,
the defence evidence was taken before trial and therefore before the plaintiff
had led any evidence at all. In my view, there are good reasons why in a
conventional trial a plaintiff is required to lead evidence first on matters on
which he or she bears the burden of proof. The defence is then required to
respond to the plaintiff’s case, including leading evidence on any matters on
which it carries the burden. This provides an orderly framework for the receipt
of evidence by the court. It helps keep the relevance of evidence in focus.

e)    Taking defence
evidence first carries with it risks and potential inefficiencies. First, there
is the risk that a defendant may not correctly anticipate what the plaintiff’s
evidence turns out to be at trial. The defence evidence may not be properly
responsive to the plaintiff’s case. Evidence may be taken that is unnecessary. Issues
may not be adequately addressed in the defence case, creating the risk that a
party may need to apply to have a witness who has been deposed supplement his
or her evidence. It seems to me to be generally undesirable to take trial
evidence out of the normal order.

f)      There
are further difficulties inherent in taking evidence by deposition. The
evidence is not taken live and its receipt as trial evidence is not controlled
by the trial judge as the evidence is being given. Objections may be made, as
occurred in this case. Inevitably, the objection is made and left on the record.
The witness then provides the evidence to which there is an objection, subject
to a later ruling.

g)    This seems to me
to be unsatisfactory. It is preferable that objections be ruled on before the
evidence is given for a number of reasons. First, if the objection is upheld, a
witness does not spend time answering improper questions. Where several
witnesses are testifying about the same matter, a ruling at the outset will
limit the scope of the evidence of all the subsequent witnesses. Secondly, it
is not uncommon for counsel to frame questions in an objectionable manner, even
though there are ways properly to elicit the evidence counsel is seeking. It is
far better for the court to have the opportunity to ensure that questions are
properly framed and evidence properly received than to try to “unscramble an
omelette” after the fact. This is not just a practical issue. Often the way in
which evidence is elicited can affect the weight it is entitled to receive. There
is a risk of substantive prejudice to the parties if the trial judge is denied
the opportunity at the time it is given to ensure that evidence is properly
received.

h)    Finally, the
trial judge has an important additional role to play in controlling the trial
process. It is not uncommon for a trial judge to be called on during
cross-examination, either at the request of counsel or on his or her own
initiative, to control the conduct of the cross-examination. For example, it
may be necessary to decide how much of a prior allegedly inconsistent statement
ought properly to be put to a witness. That is a decision that should be made
at the time the witness is confronted with the statement. Taking evidence by
deposition necessarily deprives the trial judge of an essential judicial
function. Doing so is fraught with risks to the trial process and risks
substantive prejudice to the parties.

i)       I
appreciate the Civil Rules permit depositions to be taken by consent. In my
view, the purpose of allowing this to occur by consent is to obviate the need
for an order where it is clear that the circumstances exist that would lead a
court to make an order. Generally, the party applying to take evidence by
deposition has a burden to meet to justify departing from the general rule that
evidence be given live. I will not rehearse the law on this point. But I do not
think the drafters of the Civil Rules intended to encourage a practice that is
inconsistent with conventional trial practice.

j)      It
follows from my comments above that I would discourage counsel from electing to
resort to taking depositions by consent unless there are pressing reasons to do
so. If there are legitimate concerns about cost and convenience, there are
provisions permitting taking evidence by video conference. At least then the
evidence is taken live.