IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120705

Docket: M57229

Registry:
Nanaimo

Between:

Valerie Shaver

Plaintiff

And

Graeme Lymbery

Defendant

Before:
The Honourable Madam Justice J.A. Power

Reasons for Judgment

Introduction

[1]            
The plaintiff, Ms. Shaver was injured when the 2005 Ford Freestar van
she was driving was struck by the Defendant’s 1994 Nissan Truck. The accident
took place on July 31, 2007 on Highway 19 (the Island Highway), at the
Intersection of Ware Road, in Lantzville, British Columbia. This intersection
is controlled by traffic control signals for vehicle traffic in all directions.

[2]            
At issue is liability for the accident as well as quantum of damages
that should be awarded for the injuries. The liability issue is the more
significant one since the parties are not that far apart on quantum. The
liability issue is factually difficult since both the plaintiff and the defendant
allege that they had the green light at the time of the accident. Plaintiff’s
counsel argues that even if I were to find that the plaintiff entered the
intersection on a red light, then I should go on and consider the issue of
contributory negligence, since the defence was negligent in not seeing the plaintiff
in the intersection and not taking evasive action to avoid the collision.

[3]            
The trial took place in Nanaimo over three days. I heard three witnesses
for the plaintiff, the plaintiff herself who testified about the circumstances
of the accident, and the injuries she suffered and from her friend Marlene
Mounce who testified about the impact of the accident on the plaintiff. The plaintiff
also called her family doctor, Dr. Joan Scruton. The defence called two
witnesses and an expert. The defence witnesses were friends of the defendant
who observed the accident happen, since they were following behind the defendant
in separate vehicles at the time.

[4]            
The defendant himself did not testify. I understand that the defendant
suffered significant injuries in the accident, and it would be difficult for
him to testify. He does not have any independent recollection of the
circumstances of the accident. Plaintiff’s counsel fairly conceded that I
should draw no conclusions or adverse inference from the failure of the defendant
to testify.

Background Facts

The Plaintiff’s evidence

[5]            
The plaintiff Ms. Shaver is a respiratory therapist who was employed by
VitalAire Healthcare. Her employer is engaged in respiratory homecare and as a
registered therapist, Ms. Shaver set up home oxygen for clients.

[6]            
The accident occurred on July 31, 2007 at approximately 4:57 p.m. It
occurred shortly after the plaintiff left her work location in upper
Lantzville. Ms. Shaver was driving a white Ford VitalAire van at the time of
the accident. She was going to be doing a drop off of oxygen containers at an elderly
care home and then proceed home. The drop off was her last scheduled task for
the day. Since the intersection where the accident occurred was near her
worksite, the plaintiff was very familiar with the intersection.

[7]            
There was extensive evidence from the plaintiff about her cell phone
records and use of her cell phone since the defence theory is that the
plaintiff was distracted by using a cell phone at the time of the accident and
entered the intersection on a red light.

[8]            
The plaintiff testified that company policy required her to phone home
prior to departing for home and that she did so in her employer’s parking lot
which was located a short distance from the intersection where the accident
occurred. At 4:53:14, she phoned home and left a message and at 4:54:34 she
phoned her daughter and spoke to her daughter for less than 30 seconds. She
believes that she was wearing a headset at the time of the accident since
company policy required employees to wear a headset while answering a cell
phone. Company policy also required employees not to place a call while
driving. However as I have indicated Ms. Shaver’s evidence is that at the time
of the accident she had completed her calls and she was compliant with company
policy. The times are obtained from the company cell phone records which are
admitted at trial.

[9]            
The plaintiff was turning from Ware Road left, to travel north on the
Island Highway towards Parksville-Qualicum when the accident happened. She
testified that she was in a dedicated left hand turn lane from Ware Road and
she was stopped at the intersection. She believes there was a vehicle beside
her. She paid particular attention to a silver Mazda on the opposite side of
Ware Road in a left hand turn lane which on the turn would proceed on the
Island Highway south into Nanaimo.

[10]        
The plaintiff testified that she only entered the intersection after she
saw a green light. She proceeded out into the center of the intersection and
was waiting for all traffic to clear including the silver Mazda turning left.
She testified that she was doing this because she was practising defensive
driving. She was paying attention to traffic entering the highway opposite her
on Ware Road but she did not look for any vehicles approaching the intersection
on the Island Highway. She was very close to the center of the intersection
when she was struck in the driver’s side door by a vehicle proceeding south on
the Island Highway. The impact was a significant one and the damage to the
vehicle was extensive including broken windows. Emergency vehicles attended and
the jaws of life were required in order to extract Ms. Shaver from the vehicle.

[11]        
Ms. Shaver suffered extensive bruising, and soft tissue injuries as a
result of the accident. She was off work from August 1, 2007 until February 26,
2008. She returned to work at VitalAire only briefly and resigned and started a
new position at the Nanaimo Sleep Clinic. She felt she was treated badly by her
employer after the accident and that is why she resigned.

[12]        
The Police Investigation Report indicates that the time of the accident
as 16:57 or 4:57 p.m. On October 30, 2007 Ms. Shaver was served a Traffic
Violation Ticket by the Royal Canadian Mounted Police (R.C.M.P.) for an offence
under section 144(l)(a) of the Motor Vehicle Act (Driving without due
care and attention). She disputed that violation ticket and the R.C.M.P.
officer responsible for prosecuting the ticketed offence did not attend at
court on the date set for hearing and the Violation Ticket was dismissed.

[13]        
In cross-examination, Ms. Shaver was certain that she did not suffer any
head injury in the accident. A letter from her doctor, Joan Scruton, MD dated
October 20, 2009, indicates that “Due to uncertainty of a head injury, she was
referred for a CT scan of the head to exclude any intracranial bleed – no
significant abnormality was found here.”

Marlene Mounce

[14]        
Ms. Mounce is a work colleague and friend of Ms. Shaver’s who observed
changes to her physical condition and abilities as a result of the accident.

The Defence Witnesses

[15]        
The defence called two witnesses, William Gordon Lehmann and Melissa
Susan Burke on the liability issue. Mr. Lehmann was the defendant Mr. Lymbery’s
best friend. At the time of the accident, Mr Lymbery was assisting Mr. Lehmann
in moving some items from his parent’s home in Lantzville to an apartment in
Nanaimo. Ms. Burke, Mr. Lehmann’s sister was also assisting with the move. All
three of them were driving separate vehicles. All three were familiar with the
intersection.

[16]        
The defendant, Mr. Lymbery was in the lead in the Nissan truck, followed
by Mr. Lehmann in a budget van, and Ms. Burke in a Chrysler Neon vehicle.

[17]        
Ms. Burke was travelling slightly faster than the posted speed limit
which she believed to be 80 km/h and she estimated her speed at 100 km/h. Ms.
Burke did not want to lose sight of her brother and the defendant’s vehicle
since she did not know the way to her brother’s new apartment. She also
estimated that they had made a couple of trips that day. Just prior to the
accident, Ms. Burke had closed the distance and there was only one vehicle
between her and her brother’s vehicle. Mr. Lymbery was ahead of her brother.

[18]        
In contrast, Mr. Lehmann testified that they made only one trip that day
and that his sister knew where the apartment was and that she could find it
without his help.

[19]        
Both Mr. Lehmann and Ms. Burke were clear in their evidence that the
advanced warning light on Highway 19 was not flashing as they approached the
intersection southbound into Nanaimo. They were in the middle lane of travel
just prior to the accident. Each of them proceeded towards the intersection
without adjusting their highway speed. Mr. Lehmann indicated that he estimated
his speed at between 80 – 90 km/h. Mr. Lehmann testified that the defendant Mr.
Lymbery approached the intersection at highway speed and without taking any
evasive action or sounding his horn.

[20]        
Mr. Lehmann testified that he saw a white van approach the intersection
on Ware Road. He saw the vehicle come to a complete stop momentarily and then
proceed to pull out into the intersection. It was at this point that Mr. Lymbery
drove right into that vehicle. Mr. Lehmann did not notice any other vehicles on
Ware Road at the time of the accident.

[21]        
Mr. Lehmann testified both in direct and cross examination that Mr.
Lymbery did not have enough time to avoid the collision or to take evasive
action. He testified that he would have hit Ms. Shaver as well if he were in
the same position as Mr. Lymbery.

[22]        
After the collision, Mr. Lehmann sharply braked and pulled over to the
right side of the highway prior to the intersection and called 911.

[23]        
Ms. Burke did not see the collision, but she heard it and she pulled
over to the right as well. Ms. Burke tires squealed on braking in order to slow
to a stop. On braking, she immediately looked at the colour of the light for
southbound traffic and confirmed that it was green. She did this because she
knew that the colour of the light would be important.

[24]        
Mr. Lehmann was clear in his evidence that the light for his lane of
travel was green the entire time.

The Parties’ Positions

[25]        
Both parties acknowledge that there is no evidence to suggest that the
traffic signals were malfunctioning, so that one party must be mistaken about
having a green light.

[26]        
Plaintiff’s counsel fairly acknowledges that all of the witnesses
presented as upstanding citizens who presented in a forthright and credible
manner. He also noted that none of the witnesses are truly objective or
independent witnesses.

[27]        
He submits that I should accept the plaintiff’s version of the accident
since she had to make a positive change in her driving from an outside event,
the change in the traffic light facing her from red to green. For the plaintiff
to have entered while facing a red light she would have had to be more than
inattentive, she would have had to be fundamentally mistaken about the traffic
light. It is also submitted that the discrepancy between Mr. Lehmann and Ms.
Burke about the number of trips to the new apartment that day was important
since it could explain why Mr. Lehmann and Ms. Burke did not see the traffic
light change from green to red. Mr. Lehmann would have been paying some
attention to Ms. Burke since she needed some guidance, and his attention would
have been split between the road and Ms. Burke.

[28]        
The defence argues that Ms. Shaver has not provided any witnesses to
substantiate her evidence, either with respect to the colour of the light or
with respect to her conversation on the cell phone with her daughter prior to
the accident. The defence argues that the preponderance of the evidence does
not support Ms. Shaver’s version of the accident and in fact the cell phone
logs corroborate the defendant’s version of events and that Ms. Shaver was distracted
by the cell phone. The defence points to possible head trauma suffered by the plaintiff
as possibly explaining her recollection of the accident.

Analysis

[29]        
Both counsel asked the court to consider Hou v. McMath 2012 BCSC
257 which is a similar case to this one where both parties diverged in their
evidence regarding the colour of the traffic lights facing them when they
entered the intersection. In that case, the trial judge, Kloegman, J. found all
witnesses to be credible and forthright (para 24). The court acknowledged that
the plaintiff bears the onus of proof, and then said at para 27:

When all witnesses appear
credible, and it is difficult to choose between two possible scenarios, it is
not enough to say the plaintiff has not made out her case. As the trial judge,
I must go on to consider from an objective basis, which scenario is more in
harmony with the preponderance of probabilities: Faryna v. Chorny
(1951), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171. See also Gariepy v.
Ritchie, [1993] B.C.J. No. 2304, 1993 CarswellBC 2058 (S.C.)

[30]        
In that case, the court found for the plaintiff by considering the plaintiff’s
evidence, her husband who supported her evidence, and some scientific or
technical evidence from an engineer which supported the plaintiff’s evidence.

[31]        
In this case, instructing myself accordingly, I find all witnesses
presented credibly and in a forthright manner. Mr. Lehmann and Ms. Burke,
although not truly independent witnesses since they are friends with the
defendant, presented as balanced witnesses who were trying to assist the court.
Similarly, the plaintiff did not appear at any point to be lying or misleading
the court.

[32]        
Since I cannot state that any one of the witnesses is deliberately
misleading this court, one of the parties is mistaken about the colour of the
light entering the intersection. In my view that kind of mistake is not
surprising considering the traumatic nature of the accident and the fact that
each party must by necessity reconstruct some of the accident in order to make
sense of the event.

[33]        
Having considered all of the evidence, it is my view that the objective
evidence and common sense supports the defence version of the accident. I
conclude that it is not possible that three separate drivers, the defendant,
Mr. Lehmann and Ms. Burke were all mistaken about the colour of the light
entering the intersection and were therefore entering the intersection at
highway speed.

[34]        
Ms. Burke was within one car of Mr. Lehmann just prior to the accident,
so I do not accept the plaintiff’s contention that Mr. Lehmann’s attention was
divided between the colour of the light ahead and his sister who was behind, so
that he was mistaken about the colour of the light. Further, there is not
necessarily an inconsistency between Mr. Lehmann and Ms. Burke on this point,
since Mr. Lehmann may not have known that his sister needed assistance in
locating the new apartment. In my view, the inconsistency between Mr. Lehmann
and Ms. Burke about the number of trips they had made to the apartment that day
is not an important inconsistency. I accept Mr. Lehmann’s evidence that he had
a full view of the intersection and his attention was not diverted so that he
was not mistaken about the colour of the light. In any event, the plaintiff’s
argument about Mr. Lehman and and Ms. Burke’s divided attention does not
explain how Mr. Lymbery could have also been mistaken about the colour of the
light.

[35]        
Although the plaintiff adamantly denies this, the cell phone records
provide some objective evidence that the plaintiff was on the cell phone at the
time of the accident and she was distracted entering the intersection. I agree
with the defendant that the time of the accident at 4:57 likely reflects the
911 call which would be made after the accident. Therefore that time benefits
the plaintiff, and the accident may have occurred earlier.

[36]        
Even considering the accident time as reported, the time frame between
the second cell phone call to her daughter and the time of the accident as
reported is so tight (two minutes and twenty six seconds) that it would have
been difficult for the plaintiff to complete her thirty second call, drive to
the service road leading to Ware Road, turn onto the service road, turn left
onto Ware Road and travel to the intersection with the Island Highway, wait for
a light and turn onto the Island Highway as she testified that she did.

[37]        
Further, the plaintiff did not call her daughter as a witness at trial,
or provide any further evidence to support her version of the events. Although
the plaintiff recalled a vehicle beside her as she was stopped at the light,
she could not recall where that vehicle went.

[38]        
Ms. Shaver recalled a silver Mazda across from her on Ware Road which
she allowed to clear the intersection as she waited in the middle of the
intersection to make the turn. However, no independent witnesses came forward,
even after a police canvass for witnesses. In contrast, Mr. Lehmann indicates
that he did not see anybody else at the intersection as he approached it, which
would explain why no witnesses came forward.

[39]        
Ms. Shaver’s evidence that she was waiting for the silver Mazda to clear
the intersection as a defensive driving measure does not make sense since that
vehicle had a designated left turn lane and she did not need to wait. In any
event, if she was practising defensive driving, she would have checked for
vehicle traffic on the Island Highway which she testified she did not do.

[40]        
In all of the circumstances, I conclude that the plaintiff has not
succeeded in proving her case on the balance of probabilities, and that the
objective evidence supports that the defendant had a green light entering the
intersection and the light for the plaintiff was red. It is my view that the
plaintiff’s recollection of the accident does not accord with the objective
evidence and with common sense and her recollection of the accident may have
been impacted by possible head injury or other trauma related to the accident.

[41]        
The plaintiff urges me to attribute some contributory negligence to the
defendant if I find, as I have, that the plaintiff entered the intersection on
a red light. In my view it would not be appropriate for me to do so since there
is no evidence to support any contributory negligence on the part of Mr. Lymbery.
Mr. Lehmann stated both in direct and cross examination that he could not have
stopped for Ms. Shaver if he were in the defendant’s position on the highway.
That makes sense, since both Mr. Lehmann and Ms. Burke had to brake sharply
even from their position, and they were behind Mr. Lymbery.

[42]        
There is no scientific evidence, or engineering evidence, to support the
proposition that Mr. Lymbery could have stopped or was negligent in some manner
by failing to take evasive action or sounding his horn. The fact that no action
was taken by Mr. Lymbery supports Mr. Lehmann’s evidence that such action was
not possible.

[43]        
The calculations that the plaintiff referenced in argument about the
speed the plaintiff was travelling as she entered the intersection and the
length of time she would have been in the intersection (4 seconds), were not in
the evidence, and have no scientific basis to them. It is my view that I cannot
consider those calculations in apportioning liability.

[44]        
Accordingly, this is an unfortunate case where although the plaintiff
suffered significant soft tissue injuries, she has not succeeded in proving
liability and the action must be dismissed.

[45]        
Both counsel agreed in argument that in the event that liability was not
found,  the court should not consider quantum,  and therefore, I will not do
so.

[46]        
Costs may be spoken to if they cannot be agreed to by the parties.

  
“Madam Justice J.A. Power”