IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120625

Docket: M085715

Registry:
Vancouver

Between:

Philip
Waters

Plaintiff

And

Neil
Paul Mariash, Mainroad Lower Mainland Contracting Ltd. formerly known as Mainroad
Contracting Ltd. and Her Majesty the Queen in Right of the Province of British
Columbia

Defendants

Before:
The Honourable Madam Justice Humphries

Reasons for Judgment

INTRODUCTION

[1]            
This is an application for summary judgment by the defendant Mariash to
dismiss the claim against him.  The defendants Mainland Contracting and Her
Majesty the Queen take no position on this application, except to say that its
determination has no effect on the claim against them.

BACKGROUND

[2]            
This action involves a motor vehicle collision which occurred about 1:00
p.m. on January 9, 2007 near Vancouver, B.C.

[3]            
The plaintiff was travelling eastbound on Highway #1 in the right lane. 
The defendant Mariash was driving a semi-trailer truck pulling an empty
low-bed, and was also travelling eastbound, slightly behind the plaintiff, in
the left lane.

[4]            
It was a rainy windy day.  There was a sudden downpour and a gust of
wind as the vehicles drove over the Port Mann Bridge.  The accident occurred a
few kilometers past the bridge when a cottonwood tree suddenly fell across the
highway, cutting off both lanes.  The plaintiff braked sharply and stopped,
hitting the tree, but remaining straight in his lane.  Mariash also braked
sharply. He did not have anti- lock brakes.  As he slowed, his low-bed trailer
jackknifed to the left, then straightened, and jackknifed to the right.  He hit
the tree, and the jackknifed trailer struck the back of the plaintiff’s
vehicle.  The plaintiff deposes that he had been stopped 5 – 8 seconds before
being hit.

[5]            
The location of the accident was in dispute at the time of the hearing,
which had a bearing on what the posted speed limit was.  The parties have since
agreed that it took place on Highway #1 east of the 176^th Street
exit in Surrey, B.C., and the posted speed at that location was 100 km/h.

[6]            
The evidence before me is that the plaintiff saw the tree about to fall
when he was about 200 feet away from it, and when it fell he was about 100 feet
away.  He was going about 80-85 kph.  He had seen the defendant in his rear
view mirrors and estimates he was about 300 feet behind him.

[7]            
The defendant said on discovery that he was about 100-150 feet away from
the tree when he started to brake.  He said he had switched into the fast lane
to avoid the merging traffic from 176^th Street, and had been
travelling about 100 kph in a zone posted at that speed.  He reduced his speed
to about 90 – 95 kph when the downpour started.  He was travelling 8 – 10 car
lengths behind the plaintiff’s Bronco.  When he saw the tree begin to fall, he
put on his engine brake and downshifted, breaking and beginning to slide a
little on the wet pavement.  His tires were brand new Michelins.

POSITIONS OF THE PARTIES

[8]            
The defendant Mariash says the plaintiff has not established that he was
negligent.

[9]            
The defendant relies on Caldwell v. Ignas, 2007 BCSC 1228, to say
the onus is on the plaintiff to establish negligence, and that the doctrine of res
ipsa loquitur has expired.  The law does not demand a standard of
perfection for a driver faced with a sudden emergency (Gill Estate v.
Canadian Pacific Ltd., [1973] S.C.R. 654).  In addition, even in cases
where the defendant’s vehicle is in the oncoming lane (which is not the case
here), that is not proof of negligence if there is an explanation that is
equally consistent with negligence and no negligence (Pitt Enterprises Ltd.
v. Farkes, 2005 BCCA 511).

[10]        
The plaintiff says he has proven a prima facie case, since this
was a rear end collision, and the defendant, raising the defence of inevitable
accident, bears the burden of proof (see Hearn v. Rowland (1988), 33 B.C.L.R.
(2d)67 (CA)).

[11]        
The plaintiff relies on Redlack v. Vekved (1996), 82 B.C.A.C.
313, a case in which the defendant hit a patch of black ice on a cold morning. 
The Court of Appeal said:

A prudent driver in such
circumstances must always bear in mind the possibility of icy patches and drive
within his or her own competence, and the capacity of her vehicle, to cope with
such patches….To drive in such circumstances as if it were summer is not the
conduct of prudent driver.

[12]        
The plaintiff says the defendant had been driving for hours, knew the
day was wet and windy, and should have taken extra precautions when driving a
semi-trailer on wet roads.  He should have been travelling at a reduced speed,
in the anticipation of obstructions – fallen branches, debris, etc.

[13]        
In addition, he had other reasonable options:  he should have either
driven over into the median, or should have driven straight over the tree.

[14]        
In reply to these suggestions, the defendant says the median is sloping
grass and would have been muddy and dangerous to drive into.  He would have
been in danger of rolling his vehicle.  He says it did not occur to him to
drive right over the tree.  If he had considered it he would have been
concerned about his safety and damage to the steering on his vehicle, which
would cause him to lose control.

DISCUSSION

[15]        
The accident occurred on a heavily travelled freeway near between
Vancouver and Surrey.  While there is always the possibility of obstructions on
such a highway, such as an animal or a child dashing out, it would be a very
remote possibility in such a location.

[16]        
The accident was not the result of an obstruction such as branches or
debris that one might expect in a wind storm and that would be there to be seen
if one were travelling at a reasonable speed.  This accident occurred because a
tree fell suddenly in front of both vehicles, blocking both lanes.  Both
vehicles hit the tree.

[17]        
This is not similar to a situation where a driver is travelling in the
winter and is expected to cope with unexpected icy patches (according to the
Court of Appeal in Redlack v. Vekved, supra, but perhaps not in Hearn
v. Rowland, supra).  There is no evidence from which an inference could be
drawn that the defendant in this case was driving beyond his own competence or
that of his vehicle.  He was travelling below the speed limit.  He was faced
with an unexpected event that could not be anticipated and he reacted
reasonably.  The other options suggested by the plaintiff are not reasonable in
these exigent circumstances, and may have been even more dangerous.

[18]        
According to Hearn v. Rowland, the defendant does bear a heavier
onus if he asserts a defence of inevitable accident, but not if he seeks to
show, as in this case, that the accident happened without any negligence on his
part.  The onus is therefore on the plaintiff to show that the accident
occurred as a result of the defendant’s negligence.  I am not persuaded that he
has done so.

[19]        
The action against the defendant Mariash is dismissed, with costs at
Scale B.

“M.A. Humphries J.”
The Honourable Madam Justice M.A. Humphries