IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111109

Docket: M103893

Registry:
Vancouver

Between:

Cesar Paguio

Plaintiff

And

Brent Ray Fraser,
David Fraser,

VW Credit Canada
Inc.,

Insurance
Corporation of British Columbia,

John Doe and/or
Jane Doe

Defendants

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

Introduction

[1]            
This is an action arising from a collision between two motor vehicles.
The sole issue for determination in this trial is that of liability; the
plaintiff sustained a serious head injury in the accident.

[2]            
Initially, the owner and driver of the other vehicle that came into
contact with the plaintiff were named as defendants. However, the proceeding
has been discontinued against them and the focus of the action is on the
responsibility of the unknown driver of an automobile that the plaintiff says
actually caused the collision. That vehicle has not been located or identified.
In the result, the plaintiff asks this Court to find that the unknown driver
was the cause of the collision and to find liability against the Insurance
Corporation of British Columbia (ICBC).

The Circumstances

[3]            
Sometime shortly after 11:00 a.m. on February 28, 2010, the plaintiff
Cesar Paguio was riding his small motor scooter northbound on Knight Street in
Richmond. He was alone on the machine, heading to his workplace in south
Vancouver.

[4]            
Mr. Paguio had purchased the scooter only that morning. His wife
drove him to the seller’s home in Richmond. He arranged to purchase a licence
and insurance, and once that was done, set out on his trip.

[5]            
Although this was his first experience with this particular machine, he
was not entirely new to riding motorcycles. Years earlier, while living in the Philippines,
he had owned and operated a modestly-powered motorcycle – he said 125cc. He was
experienced as a rider, including in urban situations. That said, he really had
not ridden in any meaningful way in the preceding five years, so that when the
events of February 28 occurred, he was something of a new driver riding a
machine with which he was not especially familiar.

[6]            
One feature of the scooter in question is its limited power. It has a
small 50cc engine and its top speed, according to the plaintiff’s testimony, is
in the order of 55 or at most 60 kilometres per hour (kph).

[7]            
The plaintiff travelled east on Westminster Highway in Richmond until he
came to the point where that road intersects with Knight Street. Two lanes of
Westminster turn left to join Knight, which proceeds northbound to the Knight
Street bridge which crosses the Fraser River and then into Vancouver.

[8]            
Knight Street, from the Westminster Highway intersection to the point
where it approaches the bridge, is basically a four lane divided highway. There
are two lanes northbound and two lanes southbound. As well, there are sections
where more lanes, either exit ramps or ramps with traffic merging on to Knight
Street, are present.

[9]            
Dealing with the northbound side of the road, which is relevant to this
discussion, there are never less than two lanes and sometimes, at certain
points, three or four, plus a fairly substantial paved shoulder. Lanes one and
two (numbering from the centre concrete dividing median) are through lanes. They
carry on to the bridge to Vancouver.

[10]        
The general travel pattern on such a road is that faster traffic tends
to use the number 1 lane, while slower traffic uses the number 2 lane.

[11]        
On the day in question, the road and weather conditions were good. It
was dry, the day was bright if not sunny. Based on all of the evidence, I
conclude that traffic volume was moderate: it was not heavy or congested but
not notably light.

[12]        
The posted speed limit for this section of road is 80 kph, and my
conclusion is that the general flow of traffic was moving at about that speed.

[13]        
The collision in this case occurred at a point just a short distance
north of where Knight Street passes under the Cambie Road overpass, and south
of where an exit lane to Bridgeport Road bears off to the right. The road
surface at this point is three lanes wide, plus there is a broad paved shoulder.
The Bridgeport Road exit ramp flows from the number 3 lane.

[14]        
The actual mechanics of the collision are reasonably clear. The
plaintiff’s scooter moved left from its lane of travel and came into contact
with a Volkswagen automobile being driven by Mr. Fraser. The precise point
of impact seems to have been at the right front wheel well and tire of the
Fraser car. In fact, the photographic evidence shows what I understand to be
part of the left side of the scooter stuck into a gap between the Volkswagen’s
bumper and fender, just ahead of the wheel. As well, there is slash-type damage
to the right front tire of the car, apparently a result of the impact. Photos
of the plaintiff’s scooter show damage to the left side from the mid-point of
the machine back. There is nothing to indicate any other damage, and, more
specifically, no evidence of damage to the right side of the machine.

[15]        
What is not readily discernible is the sequence of events that led to
the collision. As well, there is controversy as to where (i.e., in which lanes)
the two vehicles were travelling shortly before and at the instance of impact.

[16]        
The plaintiff’s contention is that he was travelling northbound in lane
2; he says Mr. Fraser was driving to his left, in lane 1. The plaintiff
says that there was an unknown vehicle on his right, and that vehicle moved
left, either contacting his scooter and impelling it to the left, such that it
was forced into contact and collision with the Fraser vehicle, or
alternatively, forcing the plaintiff to take evasive action by moving left so
as to avoid being hit, and thereby causing the plaintiff to collide with the
Fraser car.

[17]        
The details of the unknown vehicle have never been determined. The
driver did not stop.

Positions of the Parties

[18]        
The position of the plaintiff is that the collision was caused by the
driver of the unknown vehicle, in effect driving him into the situation where
he came into contact with the Fraser Volkswagen. That conduct on the part of
the driver of the unknown vehicle is the negligence alleged.

[19]        
I should pause to note that one issue which was quite vigorously
disputed was the plaintiff’s claim that he was in lane 2 and that Mr. Fraser
was in lane 1. The defendant says that the preponderance of the evidence
indicates that Mr. Fraser was in lane 2, that the plaintiff was travelling
in lane 3, and that the collision occurred when the plaintiff’s motor scooter
veered from lane 3 to lane 2.

[20]        
As I understand the submissions of the plaintiff in that regard, there
is something of an alternative position advanced, namely that, even if the lane
location and configuration is ultimately found to be this latter arrangement,
that is, lanes 2 and 3, the outcome is not materially different: the essential
fact remains that the plaintiff’s injuries were the result of the negligent
actions of the driver of the unknown vehicle in forcing the scooter to the left
and into the collision.

[21]        
The defendant, in this case ICBC acting on behalf of the alleged unknown
motorist said to have caused the collision, disputes the plaintiff’s claim. ICBC
says that the totality of the evidence supports the conclusion that there was
in fact no other vehicle involved in this event; rather, the plaintiff was travelling
in lane 3 and made an unsafe and imprudent move into lane 2, resulting in the
collision.

Discussion

[22]        
As a starting point, I observe that, for the plaintiff to succeed in his
claim, he must prove – that is, satisfy the Court that it is more likely than
not – that the cause of this collision was the negligent operation of the
unknown motor vehicle. If I find, on that standard, that there was such a
vehicle involved in the event in approximately that way, liability will be made
out. If not, his claim must fail.

[23]        
In this case, five witnesses have been called. The plaintiff testified
and called his wife and Mr. Ingram, a motorist from the scene. The defence
called Mr. Fraser and another driver who was travelling on the roadway at
the relevant time. That person, Mr. Johnson, was also driving northbound
on Knight Street, just a short distance behind the Fraser vehicle.

[24]        
Some comment should be made about certain of the witnesses.

[25]        
The plaintiff described his recollection of events before the collision,
the actual event, and subsequent happenings. It is apparent that the accident
was a serious and traumatic occurrence, and also that the substantial head
injury he sustained has very materially impaired his ability to accurately
recall what happened and to describe it. Not unreasonably, he has tried to
figure out what took place, and to that end he has had numerous discussions
with his wife. Of course, she was not present at the accident, and so her
knowledge is based on what others have told her plus her own deductions. Now,
none of that is wrong, and in fact it is entirely understandable. However, with
respect to the task this Court must perform, it is a materially-complicating
factor.

[26]        
It would be impermissible for the Court to consider any evidence Ms. Paguio
might offer concerning the actual collision; it would necessarily be hearsay. As
well, I am driven to conclude that the plaintiff’s testimony as to what
occurred from the point he turned his scooter northbound onto Knight Street
from Westminster Highway is of negligible value. He does not have any
significant recollection of those events, and what he does purport to recall is
undoubtedly informed to a substantial degree by the conversations he has had
with his wife.

[27]        
It must be understood that these are not criticisms. They are simply
observations of factors which are a necessary part of the process of weighing
and assessing evidence.

[28]        
As well, mention must be made concerning the evidence of Mr. Ingram.
As noted, he was driving northbound on Knight Street that morning and was an
eye witness to certain of the events. To his credit, he stopped and rendered
assistance. He also made himself available as a witness.

[29]        
Regrettably, not many months after the event, he became ill with cancer,
a condition for which he received a terminal diagnosis. Because his prospects
for survival to the date of trial were poor, he agreed, just nine weeks before
the scheduled trial date, to provide a video-taped deposition. He was examined
by plaintiff’s counsel and cross-examined by defence counsel for very nearly
one hour. Although obviously in considerable pain, he nevertheless quite
valiantly answered each question carefully and responsively. Sadly he passed
away shortly after doing so.

[30]        
I will touch briefly upon the evidence of the four witnesses from the
scene, that is, the plaintiff, Mr. Ingram, Mr. Fraser and Mr. Johnson.
I have made mention of the approach that I have concluded must be taken with
respect to the plaintiff. For the other three, counsel for each respective side
have made spirited submissions as to why they say the evidence of certain
witnesses should be accepted or rejected. I have paid close attention to
those submissions in my assessment of the evidence, along with the evidence of
all the surrounding circumstances. Although I may not provide detailed
commentaries for each, I have given the matter careful reflection. My view of
all of the witnesses is consonant with that of counsel: there is no reason to
believe that any of them are anything other than sincerely trying their best to
be truthful and accurate. There is no plausible suggestion that anyone has
attempted to do otherwise.

[31]        
This case demonstrates the proposition that when ordinary men and women
are witnesses to a surprise event that explodes into the routine of an
otherwise ordinary and unremarkable moment, the powers to observe, and then
later recall and recount are often less than perfectly accurate. People are not
video-recorders.

[32]        
Significant variations in the description of observations are normal. One
consequent effect is to make the court’s fact-finding process more challenging.

The plaintiff

[33]        
The plaintiff testified as to his recollection of events that day. He
described the fact that he was not familiar with the scooter he was riding. He
described its speed capability. He also described travelling northbound on
Knight Street, indicating what he would have done. The essence of his evidence
is that he believes he was struck by a vehicle on his right. That is not borne
out by the damage which was sustained by the scooter; there was no apparent
right-side damage. However that in itself is not determinative. If he had been
forced to move left without contact, so as to avoid being struck, that would be
a matter that could be considered as constituting the requisite negligence by
the driver of the unknown automobile which caused him to have to move.

[34]        
As I indicated earlier, I am unable to find that Mr. Paguio has a
reliable memory of the events immediately surrounding the collision. There was
some focus in the evidence on his recovery of short-term memory and long-term
memory. While it may be that his memory function is to some degree rehabilitated,
I reject the suggestion that today he has regained his own actual memory of
exactly what has happened, other than that he was riding northbound on Knight
Street and later awoke in hospital. He knows that there was a collision but
cannot reliably describe what happened.

Mr. Fraser

[35]        
This witness testified that he was proceeding to Vancouver where he
intended to watch an Olympic event on television with his friends. Up to the
point of the collision, the drive was an unremarkable event.

[36]        
With respect to the matter of time (he was quite certain that it was
after noon when the collision occurred; it is reasonably clear that the time
was about an hour earlier), I don’t attach as much significance to this
specific issue – that is, both his error and his insistence that he was correct
– as defence counsel urges. Generally, I found no reason to conclude that
he was an unreliable witness.

[37]        
It is obvious that Mr. Fraser did not notice the scooter until
virtually the moment of collision. All in all, there was nothing unusual about
the manner in which he was driving; he had shortly before been westbound on
Highway 91 and was now heading northbound. I am also satisfied that he was travelling
at approximately the posted speed limit of 80 kph.

[38]        
He testified that he was in lane 2; as I will explain, it is my
conclusion that he was driving in that lane when the collision occurred.

Mr. Ingram

[39]        
In my estimation, Mr. Ingram was, for the most part, a sincere and
earnest witness to the events. Because of the very critical role that his
testimony plays in the plaintiff’s case, I have examined the transcript of his
evidence with great care.

[40]        
He has said he was travelling northbound in lane 2; he estimates that he
and the others in the traffic flow were moving at approximately 80 kph, he
recalled the volume of traffic at the time to be fairly heavy. Initially he
stated, quite confidently and straightforwardly, that:

. . . suddenly there was a
scooter . . .and it was hitting the right front side of a Volkswagen. My memory
is that . . . something liker a Cavalier, Saturn, Camries (sic), something like
that, had moved over from the right-hand lane into the middle lane and pushed
the motorcycle into the car.

[41]        
In his evidence, he described that unknown vehicle as being maroon in
color.

[42]        
Over the entire course of the testimony, both examination in chief and
the cross-examination, there are clarifications and inconsistencies that, when
all taken together, leave me with some real uncertainty as to what can be
safely concluded from his evidence. These include his statement that,
immediately prior to seeing the scooter cross to the lane to its left, he was
looking behind him in his rear-view mirror, and when he first saw the scooter
(he had not noticed it before), it was colliding with the Volkswagen.
Presumably it was at that point (that is, after bringing his attention back to
the roadway from the rear-view mirror) that he saw the maroon car change lanes
to the left. However, at one point in his evidence, referring to that car, he said
“And maybe it moved over.”, which suggests to me that he did not see it make
the lane change.

[43]        
Mr. Ingram was also referred to two statements he had provided with
reference to the incident. He adopted each of them in his testimony. In one of
them, an unsigned statement given (apparently by telephone) to a representative
of ICBC a few days after the event, he said “I am 99% sure that a maroon
Cavalier or Saturn tried to merge into the cyclist and the cyclist swerved to
avoid the maroon car, hitting the Volkswagen.” He also agreed that he had made
a statement to the RCMP at the scene immediately after the collision, and in it
he said, “My impression was that another car changed lanes pushing the
motorcyclist to the left into the VW. But I cannot guarantee that is what
happened.”

[44]        
As for lane placement, Mr. Ingram was very sure that he had been in
the number 2 lane and that the Fraser car had been in the left lane, number 1. He
based that on the fact that, if Mr. Fraser had been in the number 2 lane,
he would have been travelling directly ahead of Mr. Ingram and so he (Mr. Ingram)
would not have had a line of vision that would have enabled him to see the
collision. Because of his recollection of how he saw the collision, he
maintained his certainty that Mr. Fraser was in lane number 1 and the
plaintiff was in lane number 2.

Mr. Johnson

[45]        
The plaintiff has mounted a quite vigorous attack upon this witness,
with respect to reliability and also his attitude. The plaintiff says that Mr. Johnson’s
evidence that the Fraser Volkswagen was ahead of him and that both vehicles
were in lane 2 should be rejected. Counsel has pointed to a number of what he
says are significant discrepancies and to what he describes as an “astonishing
display of defensiveness that looked like advocacy”.

[46]        
No doubt there were points upon which the witness may well have been
mistaken, but they were not, in my view, especially significant. As well, while
in his demeanour and language he communicated a sense of certainty that might
be characterized as somewhat excessive, it was not by any means to the extent
that I would consider that the Court should disregard his evidence.

[47]        
Like Mr. Fraser, he was driving along in a fairly routine,
uneventful way. Quite suddenly, he saw a scooter move to its left and collide
with the Fraser vehicle. That was undoubtedly a shocking and alarming event. Mr. Johnston
had to take immediate action.

[48]        
If there is, for example, some reason to think that he may be to some
degree mistaken in his description of the movement of the plaintiff after the
collision, and there may be, I am not prepared to conclude that is a basis to
reject his evidence.

Analysis and Conclusions

[49]        
I find it is most likely that Mr. Fraser was travelling in lane 2. That
is his testimony. In addition, Mr. Johnston testified to the same effect. I
have found each of them essentially reliable witnesses. In the circumstances,
and for reasons that will follow, I am driven to conclude that Mr. Ingram’s
recollection was mistaken.

[50]        
On a careful assessment of the evidence, speaking generally, there are
aspects of Mr. Ingram’s testimony that leave me with reservations as to
his accuracy of recall. I have no doubt as to his sincerity, and I do not for
one moment believe that he had any conscious intention to be anything other
than completely correct in his description of the events. As for the issue of
lane placement, both Mr. Fraser and Mr. Johnson testified that they
were travelling in the number 2 lane. The details of what they recall were
essentially sound and not materially demonstrated in cross-examination to be wrong.
On balance, I accept their recollection of the matter over that of Mr. Ingram.

[51]        
My conclusion on this point is supported quite substantially by what I
consider to be an important fact in this case. While the three witnesses (Mr. Fraser.
Mr. Johnson and Mr. Ingram) may have their differences on some
matters, all of them agree that the volume of traffic at the time was moderate
or maybe slightly more, and they similarly agree that the traffic was moving
along at approximately 80 kph. Accepting that to be so, it is significant
indeed that the plaintiff was riding a newly-acquired scooter with which he was
not familiar; it was underpowered for the situation and was not capable of travelling
at the speed of traffic. The traffic flow was moving at least 20 kph (or
possibly more than that) faster than he was able to attain. It is logical to
expect that, to be safe, he would have kept to the right of the road. I have
no doubt that he very much had his hands full in the circumstances. It is not reasonable
to believe that he would have been able to ride and keep up with the traffic
flow in lane number 2.

[52]        
If I have a serious reservation as to the plaintiff being in the number
2 lane, as I do, it puts Mr. Ingram’s scenario in real doubt.

[53]        
As for the issue of whether there was the unknown vehicle on the road
and any role it may have played in the causation of the collision (as Mr. Ingram
claimed), the fact that Mr. Fraser and Mr. Johnston do not recall
seeing the unknown vehicle is not determinative of whether or not it was
present or a factor. That neither man recalls seeing such a car does not mean
it was not there. At the relevant time, that vehicle would presumably have been
either even with or somewhat behind and to the right of Mr. Fraser. The
same can be said with respect to Mr. Johnston. There is no reason that
either one of those men would have seen such an automobile. Although only Mr. Ingram
claims to have seen that car, I have no basis to say that he did not see it,
and I accept that it is more likely than not that there was such a vehicle in
the general vicinity and driving northbound at the time. However, as to what
the activities of that vehicle might have been, particularly in relation to the
plaintiff’s scooter and having some role in the causation of the collision, I
am quite uncertain what, if any, part it may have played.

[54]        
To summarize, it follows that I find the plaintiff was travelling in
lane 3 and he made a fairly abrupt shift from that lane to lane 2. The issue
which I have to decide is whether it can be properly concluded that, on the
evidence and an application of logic and common sense, it is more likely than
not that the actions of the driver of the unknown vehicle caused Mr. Paguio
to move and are thus a contributing factor to the collision.

[55]        
Accepting that the plaintiff was riding in lane 3 and made that abrupt
turn to the left, then there are two possible scenarios; one involves another
vehicle, the other does not.

[56]        
If another vehicle was part of the dynamic, one possibility is that it
would have been travelling in the same lane, behind the plaintiff, coming up
behind him and forcing him to get out of the way by moving to the left and into
Mr. Fraser’s car. Alternatively, the vehicle would have come up the shoulder
from behind the plaintiff, overtaking him and then moving into his path of
travel so as to force him to move left, again with the same outcome.

[57]        
It seems to me that if the first of these alternative possibilities had
occurred, the plaintiff would more likely have moved to the right and onto the
shoulder rather than into a lane of travel where other vehicles were moving
along at a pace substantially greater than he was travelling.

[58]        
The second alternative course of events that I have suggested is within
the realm of possibility, although it doesn’t seem especially probable, nor is
there anything in the evidence to provide it with some anchor of likelihood.

[59]        
There is also a scenario that does not entail the involvement of another
vehicle. It is that the plaintiff, travelling in lane 3, recognized that he
should move out of that lane because it would lead him off Knight Street and
onto Bridgeport Road. That was not where he wanted to go. Based upon the
photographic evidence, there was nothing to indicate that there would have been
an imminent problem for him by remaining in lane 3, but there is no doubt that
he would have had to get into lane 2 shortly in order to be able to continue on
over the bridge, and he knew that. If he was not sufficiently careful in making
that lane change, that would account for the collision.

[60]        
In examining these alternatives and making assessments of whether the
plaintiff has met the onus of proving that it is more likely than not that the
action of the driver of an unknown vehicle caused or contributed to the
collision between himself and the Fraser car, it is important to recognize that
the evidence bearing on the issue is circumstantial; having reached the
conclusions that I have with respect to the testimony of Mr. Ingram, there
is no direct evidence of such a vehicle having caused the collision. Accordingly,
I must be guided by certain basic concepts that govern the approach that must
be taken to the proof of a plaintiff’s case where it rests on a base of
circumstantial evidence. In Tweedie v. ICBC, 2002 BCSC 1937, Mr. Justice
Wilson provided a helpful discussion of the approach that must be taken to the
proof of a plaintiff’s case where it rests on a base of circumstantial evidence
and provided reference to the applicable authorities.

[61]        
The principles as I understand are these:

(a)      Where a
case is not proved by direct evidence, the court will carefully examine and
consider the relevant circumstantial evidence.

(b)      Circumstantial
evidence derives its effect through the process of the trier of fact drawing
reasonable inferences. That is a cognitive process whereby, once certain facts
are established or proven, then a logical conclusion is considered. It is the
process of reasoning from a proven fact or facts to a reasonable, rational and
logically legitimate conclusion.

(c)      The
drawing of an inference is different than mere conjecture or a guess, no matter
how shrewd or plausible that guess might be.

(d)      An
inference, once properly drawn, must give rise to a reasonable conviction in
the mind of the trier of fact that the element of which proof is necessary is
at least more likely than not, or to some greater degree of certainty.

(e)      The
plaintiff can succeed in proving his case on the strength of a reasonable
inference which gives rise to a conclusion that the element has been proven on
a balance of probabilities. If the inference does not support the conclusion to
that standard, then the proof is not made out.

[62]        
In the final analysis, applying these guiding principles, and having
examined the evidence carefully, I have concluded that the circumstantial
evidence proffered by the plaintiff does not enable me to find that the case
has been proven to the necessary standard. The plaintiff has not met the onus
of proof he bears to establish his claim and it must therefore stand dismissed.

[63]        
There were no submissions made concerning costs. If the parties are not
able to agree upon that matter, they may arrange to appear before me or,
alternatively, provide written submissions.

“The Honourable Mr. Justice
Williams”