IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121106

Docket: 43831

Registry:
Kamloops

Between:

Mechthild Maria
Spiering

Plaintiff

And

Francelia Lynn
Trevor

Defendant

– and –

Docket: 43841

Registry:
Kamloops

Between:

Michael Spiering

Plaintiff

And

Francelia Lynn Trevor

Defendant

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

[1]            
The plaintiffs, Michael Spiering and Mechthild Maria Spiering
(collectively, “the Spierings”), who are husband and wife, each commenced an
action seeking damages for injuries that they suffered when they were injured
in a motor vehicle accident. The accident occurred at about noon on September
17, 2008, on Highway 19 near the Zeballos junction turn off, near the Town of
Port McNeill, British Columbia.

[2]            
Mr. and Mrs. Spiering seek to have the liability issue determined by
summary trial pursuant to Rule 9-7 of the Supreme Court Civil Rules (the
“Civil Rules”).

[3]            
The plaintiffs’ actions are to be tried before a judge and jury in June
of 2013. Examinations for discovery have taken place for both of the Spierings
and the defendant, Francelia Lynn Trevor. Both Mr. and Mrs. Spiering have been
examined by a medical doctor chosen by the defendant.

[4]            
The plaintiff in each action alleges that the accident occurred as a
result of the negligence of the defendant when the vehicle driven by the
defendant crossed the centre line and collided with a motor vehicle driven by
Mrs. Spiering in which Mr. Spiering was a passenger. Both vehicles were
rendered a total loss and the Spiering vehicle, a recreational vehicle, caught
fire and burned to the ground.

[5]            
At the time of the accident, the Spierings, residents of Germany, were
holidaying in British Columbia.

[6]            
The defendant pleads in these actions that there was no negligence on
the part of the defendant and that Mrs. Spiering was negligent, or, in the
alternative, it was an inevitable accident.

[7]            
The injuries alleged, as suffered by Mrs. Spiering, are a comminuted
fracture of the right calcaneous, bruising to the left shin and foot, soft
tissue injuries to the knees, neck and back, post-traumatic stress disorder,
and psychological injury. Injuries alleged to have been suffered by Mr.
Spiering are second degree burns to the right hand resulting in numbness, soft
tissue injury to the neck and back, headaches and psychological injury.

[8]            
This application raises several issues. They are whether:

1)    the issue of
liability and assessment of damages ought to be severed in each of these actions;

2)    the matter of
liability is suitable to be determined by summary trial;

3)    assuming the
plaintiffs are successful on issues 1 and 2, whether the plaintiff in each case
meets the burden of proof and proves that it was the negligence of the
defendant that caused the accident;

4)    Mrs. Spiering
was negligent or contributorily negligent.

Severance

[9]            
The Civil Rules 12-5(67) permit the issue of liability to
determine in advance the assessment of damages in appropriate circumstances:

(67) The court may order that one
or more questions of fact or law arising in an action be tried and determined
before the others.

Position of the Plaintiffs

[10]        
The plaintiffs argue that there are extraordinary, exceptional or
compelling reasons for ordering severance of liability from damages. In the
alternative there are compelling reasons to order the severance.

[11]        
The plaintiffs acknowledge that they bear the burden of proving
negligence. They argue that they have made out a prima facie case of
negligence thus shifting the burden to the defendant. In Michel (Litigation
guardian of) v. John Doe, 2009 BCCA 225, Madam Justice Rowles stated:

Further, in Lemaire v. Ashabi et al, this Court upheld
the trial judge’s decision finding negligence, a decision which referenced
Fontaine, stating with respect to the trial judge’s finding of prima facie
negligence that:

[7] She first considered whether
the prima facie inference of negligence could be drawn. She cited (at para. 56)
United Motors Service Inc. v. Hutson et al, [1937] S.C.R. 294, for the
principle that:

… the fact that an operation is under the control of the
defendant coupled with the fact that the accident is such that in the ordinary
course of things it would not happen if those having the management use proper
care, is sufficient to establish a prima facie case of negligence.

[12]        
The defendant opposes severance on the basis that:

a)       there
is no evidence that there will be a significant saving of time and expense;

b)       there
is no evidence that severance will put an end to the action;

c)       the
issues of liability and damages are intertwined or inter-related;

d)       based
on the facts of the case, there are no compelling reasons to permit severance;
and

e)       severance
is most appropriate when the trial is by judge alone.

The Law

[13]        
When considering the severance rule, it must also be read with Rule 1-3:

Object

(1) The object of these Supreme
Court Civil Rules is to secure the just, speedy and inexpensive determination
of every proceeding on its merits.

Proportionality

(2) Securing the just, speedy and
inexpensive determination of a proceeding on its merits includes, so far as is
practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the
proceeding,

(b) the importance of the issues in
dispute, and

(c) the complexity of the proceeding.

[14]        
The onus is on the party to the litigation who seeks severance to
demonstrate that severance of the issues is appropriate. It must be something
more than just and convenient: Emtwo Properties Inc. v. Cineplex (Western
Canada) Inc., 2009 BCSC 1592.

[15]        
In Element v. Del Mar, 2012 BCSC 868, Justice Punnett stated the
principles that should be considered when deciding whether liability and
damages should be determined separately and whether the case is fit to be heard
by summary trial:

[98] Splitting of the issues of liability and damages should
be governed by the following principles:

a) The court should lean against splitting issues of
liability and damages where issues of general credibility may arise.

b) A judge’s discretion to sever an issue is restricted to
"extraordinary, exceptional or compelling reasons, and not merely that it
would be just and convenient to order severance …" (Bramwell v.
Greater Vancouver Transportation Authority, 2008 BCSC 1180. A genuine
likelihood of significant savings in time and expense may constitute a
"compelling reason" to order severance.

c) Only after a determination is made pursuant to Rule
12-5(67) for severance is the assessment made respecting whether the discrete
issue is fit for summary trial using the factors set out by Macaulay J in Marine
Masters Holdings Ltd. v. Greater Victoria Harbour Authority, 2009 BCSC 953
(taken, in part, from Dahl v. Royal Bank, 2006 BCCA 369). Those factors
are articulated in para. 5 of Macaulay J.’s judgment as follows:

* the amount involved;

* the complexity of the matter;

* the complexity of the matter;

* the cost of a conventional trial in relation to the amount
involved;

* the course of the proceedings;

* the time required for summary trial; and

* whether the application will really save time and
complexity.

d) The practice of litigating in slices should generally be
avoided. Only when piecemeal litigation will result in a just, speedy and
inexpensive procedure should it be pursued.

[16]        
In Element, Punnett J. was unable to permit a summary trial to
resolve the issues, given the conflicting evidence and the need for resolution
of the main issues, prior to resolution of the counterclaim.

[17]        
In Emtwo, the plaintiff alleged that the defendants had breached
a term in a contract for which it was seeking damages. Severance was denied on
the basis that no time or money would be saved, a finding of liability in that
case would not present a basis for agreeing as to damages and, issues of
liability and damages were intertwined. Finally, a compelling reason which the
court found the defendants’ strongest argument was the protection of
confidential and sensitive financial information. The court found that this
information was not that of any of the parties to the litigation. The court
refused severance.

[18]        
In Biggs v. Doe, 2008 BCSC 1343, Madam Justice Holmes stated:

[16] Even if a case need
not be exceptional to support an order for severance, it must disclose some
compelling reason for such an order. Compelling reasons must arise from the
circumstances of the particular case. …

[19]        
In Chun v. Smit, 2011 BCSC 412, a summary trial was sought to
determine liability in two motor vehicle accidents. Mr. Justice McEwan said:

[15] … Where the question of damages does not
fundamentally turn on credibility, as is the case in many serious injury cases,
it may make sense to settle the question of liability in aid of settlement
discussions on the damages case.

…

[24] An assessment of
whether there are exceptional circumstances justifying severance may turn in
part on whether the credibility of the parties is an integral part of both the
liability and quantum sides of the case, or whether, on the material placed
before the court, liability may be determined on the basis of the available
evidence, apart from the conflict in the parties’ evidence. …

[20]        
In Chun, the court declined to order severance as credibility was
very much in issue as there was conflict in the evidence relating to the
location of the accident, other traffic being at the intersection, no eye
witnesses, and the engineering report presented to the court was based on
assumptions that the plaintiff’s evidence was correct.

Analysis

[21]        
The motor vehicle accident happened September 17, 2008; a little over
four years ago. The facts on how the accident happened and where the accident
happened are not disputed based on the evidence of the Spierings and the defendant
who were the only witnesses to the accident.

[22]        
At the time of the accident, both the recreational vehicle driven by Mrs.
Spiering and the 2004 Ford Focus driven by the defendant, were in good
mechanical repair. At the time of the accident, the road was dry and the
weather conditions were good. The road, Highway 19, on which the vehicles were
travelling and where the accident happened, consisted of two lanes separated by
double solid lines going in opposite directions in a northerly and southerly
direction. The Ford Focus was southbound when the accident happened and the recreational
vehicle was northbound. In the area of the accident there were curves in the
road. The accident happened in the plaintiffs’ lane of traffic.

[23]        
The Spierings state that by severing liability from damages, two or
three days out of this 25-day trial is saved. I did not receive from the
plaintiffs the specifics of the savings. However, the plaintiffs gave an
example of the tremendous cost to the parties for this trial. The defendant
wrote a cheque to the Spierings for $15,280.70 so they could travel to Canada,
stay here in British Columbia for purposes of the examinations for discovery,
and medical examinations arranged by the defendant. An additional two or three
days trial would require additional living expenses for the Spierings, whose
home is in Germany, counsel fees for both the Spierings and the defendant, and
jury and daily court fees. This would provide a large amount of savings, but
probably not a significant amount when compared to the cost of another 22 to 23
days that would be taken up with the matter of damages.

[24]        
Although the determination of liability may not put an end to the actions,
it then becomes a matter of assessing before the jury each of the Spierings’
injuries. By severing liability, this gives the litigants an opportunity to
settle the actions.

[25]        
The defendant, in her written submissions, states the following:

14.       Further,
Mr. Spiering’s claim of personal injury is contentious and causation is hotly contested.
Accordingly, there is very little prospect of settlement even if liability is
determined separately.

15.       The
defendant submits that the issues of liability and quantum are intertwined in
that there will be a duplication of evidence if severance is ordered. While
credibility is often the focus of the court in determining whether liability
and damages are interwoven, it is the overlapping and duplication of evidence
which is the real nexus the court is required to examine.

16.       In this
case, the plaintiffs and the defendant will testify at a damages only trial
regarding the circumstances leading up to and surrounding the accident.
Plaintiff’s counsel will want the jury to have a sense of the significance of
the impact and the resulting wreckage in order to persuade it to award
significant damages. Further, Ms. Spiering is claiming psychological injury in
addition to physical injuries, and will be cross-examined on what she observed
before, during and after the accident to address the issue of causation.

17.       Mr.
Spiering is claiming he sustained a herniated disc in his spine as a result of
the accident. This is strictly denied by the defendant. Causation is in
dispute. Mr. Spiering will undoubtedly provide evidence at trial regarding the
impact forces to prove his case and accordingly, his evidence will be
duplicated.

18.       The
defendant may retain an engineer to defend the issue of causation and again,
the accident details will be recited to the trier of fact.

19.       It is
unjust to order severance as the jury will have the benefit of hearing evidence
from the plaintiffs regarding the significance of the impact, they will see
photographs of the wreckage on the highway and they will hear what the
plaintiffs saw leading up to the collision while they are assessing the damages
of the plaintiffs. At the same time, the defendant will be deprived of the
benefit of the same trier of fact to determine whether she was in fact liable and/or
if the plaintiff was contributory negligent.

20.       There is an emotional aspect to
this accident that will undoubtedly have an impact on a jury in assessing
damages. That component may also exist in a determination of liability and
contributory negligence. Counsel for the plaintiff has attempted to simplify
the issue of liability in order to avoid an assessment of credibility regarding
contributory negligence while at the same time, asking that a jury award
significant damages. The defendant submits this is unjust in the circumstances.

[26]        
The significance of the plaintiffs’ damages does not relate to who is
responsible for the accident. Both counsel confirm there are no engineer
reports reconstructing how the accident occurred, and the defendant acknowledged
that no engineers are retained. There are no other witnesses to the accident,
so the evidence as to liability is that of the plaintiffs and the defendant.

[27]        
Credibility is not interwoven as between the liability and damages as
the plaintiffs and the defendant agree as to how the accident occurred. The
defendant has not demonstrated how liability and damages are intertwined and
inter-related. As to having the jury having a sense as to how the accident
occurred, counsel can tell the jury. Juries do assess damages when liability is
admitted.

[28]        
As to Mr. Spiering’s herniated disc, which the defendant says is “hotly
contested” and the psychological injuries of Mrs. Spiering, it is each of the
plaintiff’s obligation to prove that these injuries were caused by the accident.
The medical reports, as a result of the medical examination of the plaintiffs
at the request of the defendant, may provide evidence that these injuries were
not caused by the accident. Plaintiffs’ counsel stated that these reports have
not yet been delivered.

[29]        
The defendant states that she may hire an engineer to defend the issue
of causation of the injuries suffered by the plaintiffs. The defendant has not
done so and the accident is four years old. In any event, this evidence goes to
whether this injury could have occurred in this accident.

[30]        
As to the claim of a loss associated with a potential third business,
that is a claim that the plaintiffs must prove. It has nothing to do with fault
in the accident.

[31]        
As to policy limits, that is a matter between the defendant and her
insurer.

[32]        
The defendant alleges that Mrs. Spiering was contributorily negligent in
the accident. Counsel for the defendant referred me to Dudek v. Li,
[1996] B.C.J. No. 3171 and Legrand v. Canning, 2000 BCSC 1633, which are
examples of how contributory negligence can affect the matter of severance. In
both of these cases, the court refused severance, but only after reviewing some
of the evidence that might cause a finder of fact to find contributory
negligence. The defendant did not demonstrate how Mrs. Spiering might be
contributorily negligent, other than point to evidence of Mrs. Spiering in her
examination for discovery to suggest that she did not try to avoid the accident
or take any evasive action. I will deal with this later in my reasons.

[33]        
In Dudek, the defendant pointed out to the court that the
defendant was stopped in the intersection after which the plaintiff struck the
defendant. In Legrand, Justice Scarth stated in para. 7:

The driver in front attempted,
apparently without signalling, to turn left on West Georgia Street but was
momentarily prevented from doing so by west bound vehicles in the middle and
centre lanes. As a result Mr. Canning was unable to complete his movement
across West Georgia Street before the flashing green light for west bound
traffic came on. As he entered the HOV lane in which Mrs. Legrand was
travelling his car was struck on the right side by her car.

[34]        
The defendant argues that because this is a jury trial sought by both
parties, this is a factor “mitigating against severance.” In support, the
defendant relies on Anderson v. University of British Columbia, [1990]
B.C.J. No. 2507. Anderson was a medical malpractice action in which the
plaintiff sought severance. The plaintiff was severely disabled, and limited
financially in seeking the services and retaining consultants to prove damages.
Mr. Justice Finch permitted severance, but only if it would not proceed before
a jury. Anderson was far more complicated on the issue of liability. In Anderson,
Mr. Justice Finch, when considering evidence that overlapped liability and
damages, stated:

… But here causation is very
much a part of the case on liability which the plaintiff must establish.
Causation appears to have little to do with the matters upon which the array of
damage consultants (detailed in paragraph 15 of Mr. McAlpine’s affidavit) would
be required. The risk of overlapping evidence in severed trials weighs in the
defendants’ favour on this motion, but in my view it has not been shown to be a
significant consideration.

[35]        
It is my view that it is compelling that I permit severance. The
compelling reason is that the parties agree on how the accident occurred, and
based on those facts, there is no defence for the defendant. It was an accident
where the defendant rounded a curve at an estimated speed of 110 kilometres per
hour (the posted speed was 100 kilometres per hour), and steered her vehicle
onto a rocky or sandy shoulder of the road. Upon easing her vehicle back onto
the road, her vehicle fishtailed across her lane of traffic and into the lane
of traffic of the Spiering vehicle, striking the Spiering vehicle. The accident
happened within very few seconds, and both the plaintiffs and the defendant
agree that Mrs. Spiering confined her vehicle to her lane of traffic. The
plaintiffs and the defendant agree that there was nothing that Mrs. Spiering
could do to avoid the collision.

Whether this Accident is Suitable for Summary Trial

[36]        
The test as to whether a summary trial is suitable to dispose of
liability was stated by Mr. Justice Melnick in Charest v. Poch, 2011
BCSC 1165:

[51] Madam Justice Ker in McVeigh v. Boeriu, 2011 BCSC
400, summarized the procedure for determining whether a matter is suitable to
be tried summarily at paras. 42-44:

[42] Whether a matter is suitable
for disposition by means of the summary trial procedure has generated a
significant amount of jurisprudence over the years. The proper approach on a
summary trial under the former Rule 18A was set out in Inspiration Management
Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) [Inspiration
Management]. This test remains the same under the new Rule 9-7 of the Supreme
Court Civil Rules, and whether a matter is suitable for disposition can be
distilled to consideration of two critical factors:

i. Are there sufficient facts
before the Court in which to make the necessary findings of fact?

ii. Is it unjust to decide the case on a summary trial
application?

[43] Where the court is able to
find the facts necessary to decide the issues before it, and it is not
otherwise unjust to decide the matter summarily, the court should give
judgment. At para. 7 of his decision in Mariotto v. Waterman (1996), 32
B.C.L.R. (3d) 125 (C.A.), McEachern C.J.B.C. stated the following with respect
to Rule 18A applications: "Where possible it is always to be hoped that
judges will give judgment and I repeat that admonition here."

[44] Rule 18A(11) of the former Supreme
Court Rules provided that judgment may be granted generally or on an issue
unless the Court is unable to find the necessary facts to decide the issues of
fact or law or it would be unjust to decide the issues summarily. Rule 9-7(15)
contains identical language to the former Rule 18A(11).

[52] Inspiration Management Ltd., the Court of Appeal
offered additional factors for consideration at 214-215:

In deciding whether it will be
unjust to give judgment the chambers judge is entitled to consider, inter alia,
the amount involved, the complexity of the matter, its urgency, any prejudice
likely to arise by reason of delay, the cost of taking the case forward to a
conventional trial in relation to the amount involved, the course of the
proceedings and any other matters which arise for consideration on this
important question.

…

In deciding whether the case is an
appropriate one for judgment under R. 18A [now Rule 9-7] the chambers judge
will always give full consideration to all of the evidence which counsel place
before him but he will also consider whether the evidence is sufficient for
adjudication. For example, the absence of an affidavit from a principal player
in the piece, unless its absence is adequately explained, may cause the judge
to conclude either that he cannot find the facts necessary to decide the
issues, or that it would be unjust to do so. But even then, as the process is
adversarial, the judge may be able fairly and justly to find the facts
necessary to decide the issue.

…

[56] It follows that the mere
fact of conflicting affidavits is not an automatic bar to summary trial: Salem
v. Priority Building Services Ltd., 2005 BCCA 617 at para. 20.

[37]        
In 2011, plaintiffs’ counsel told defendant’s counsel that they intended
to have the issue of liability resolved by summary trial. For over a period of
one year, the defendant delayed the plaintiff’s application. The defendant
filed a response in the application record which is undated. Plaintiffs’
counsel states that it was dated February 8, 2012. It is signed by counsel for
the defendant, the same counsel that appeared before me in this application. In
that response, there are ten numbered points under “Part 4: FACTUAL BASIS”.
They start out by stating that the defendant denies liability on the basis of
“inevitable accident or no negligence.” That is what the defendant pled in both
actions. The defendant states that it is not possible to determine the
necessary facts with respect to the issue of liability as the plaintiffs had
not been examined for discovery. The defendant then states that she is “not
attempting to frustrate the litigation process” and “it is not practical or
cost effective to conduct the discovery in Germany until the medical and income
loss evidence has been exchanged.” The defendant continues in her response to
state that she has been attempting to coordinate a discovery of the plaintiffs
in Canada while at the same time arranging for the plaintiffs to attend a
medical examination. The defendant opines that there is no point in pursuing
the issue of liability at this stage given that the discovery is scheduled for
July of 2012 and the trial is scheduled for June of 2013. Examinations for
discovery of the plaintiffs and the defendant have been held here in British
Columbia, and a medical examination was conducted on Mr. and Mrs. Spiering at
the request of the defendant. All the excuses that the defendant makes for not participating
in the summary trial have been overcome.

[38]        
The defendant’s final points in her response are as follows:

9.         The
Defendant also submits that it is not appropriate in this case to decide the
issue of liability given that Plaintiff’s counsel has advised that there may be
significant damages being claimed by the Plaintiff for loss of business income,
which would potentially exceed the available policy limits to the Defendant.

10.       The Defendant submits that it is
in the best interests of the Defendant and in the interests of justice to
either have the issue of liability be determined at trial, or to adjourn the
Plaintiff’s Application to a date after an Examination for Discovery has been
conducted.

[39]        
Number 9 is between the defendant and her insurer and has nothing to do
with liability.

[40]        
The defendant stated in her response, under “Part 6: MATERIAL TO BE
RELIED ON”, that she was relying on her examination for discovery which was
held in July of 2011, and attached the affidavit of Kailey Hummer, sworn
November 23, 2011 and the affidavits of each of Mr. and Mrs. Spiering, each
sworn on November 11, 2011.

[41]        
Both Mr. and Mrs. Spiering filed affidavits in which they state the road
conditions were good, the recreational vehicle, as far as they know, was in
good mechanical order, and at no time prior to the accident did Mrs. Spiering
have any difficulty driving or controlling the recreational vehicle. They state
that Mrs. Spiering was driving approximately at the speed limit and confirmed
that the travel in either direction was separated by a double solid line. As
Mrs. Spiering approached the accident scene, Mrs. Spiering was driving slightly
below the speed limit. Their evidence goes on to state that other vehicles were
not out of control or fishtailing.

[42]        
As the Spiering vehicle rounded a curve in the highway, the defendant’s
vehicle swerved directly in front of the Spiering vehicle and into their lane
of travel.

[43]        
Portions of the examination for discovery of the defendant were relied
upon by the plaintiffs. In that discovery, the defendant confirms that she was
the driver of the 2004 Ford Focus and that the accident happened on September
17, 2008. She agrees that she was driving southbound and the recreational
vehicle was driving northbound, and at the site of the accident there was a
double solid line, separating the northbound and southbound lanes.

[44]        
In her affidavit, Mrs. Spiering swears to the following:

7.         At all
times leading up to the accident, the motor home that I was driving stayed in
its proper lane.

8.         As I
drove around a curve in the road, I saw the defendant’s southbound vehicle
fishtail briefly and then cross the centre lines directly in front of me to block
my lane of travel. I tried my best to brake and steer away from the defendant’s
vehicle, but it happened so fast that I was not able to avoid impact.

9.         I am not aware of anything else
I could have done to avoid or lessen the severity of the accident.

[45]        
Mr. Spiering, in his affidavit, swears to the following:

5.         Mechthild
was driving northbound at approximately the speed limit. There was one lane of
travel in either direction separated by a double solid line.

6.         Approaching
the accident scene, Mechthild continued to drive at, or slightly below, the
speed limit.

…

8.         As
Mechthild drove around a curve in the highway, I saw the defendant’s vehicle
swerve across the centre lines directly in front of us and into our lane of
travel.

9.         Mechthild applied her brakes
hard but could not avoid impact. At all times leading up to the point of
impact, Mechthild stayed in her proper lane of travel …

[46]        
At Mrs. Spiering’s examination for discovery she was asked the following
questions and gave the following answers:

Q         And, now, if you could just describe in your
own words what you recall about the events leading up to the accident and what
I mean – –

A          We drove, we took a few pictures, and then
there was a bend in the road, and I saw the other vehicle and I said to my husband,
“Look how he is driving, look how he is driving” then there was a bang.

Q         Do you recall, are you able to tell me how
fast you were driving at the time of the accident?

A          Maybe 70, 80.

Q         And I assume that is kilometers per hour, is
that correct?

A          Well, I can’t really, I am not very good at
calculating, it said 100 on the road and I was going 80, I believe it also
shows miles per hour.

Q         Right, I just want to confirm that when you
said you were driving 80, that was 80 kilometers per hour?

A          I don’t know what you mean.

Q         Sorry, I think that is fine, I think we are on
the same page.

…

Q         Now, leading up to the accident, you indicated
there was a bend in the road, is that correct?

A          Well, within the bend she came from this
side, she came from this side and was sort of swerving and that is when the
accident happened.

Q         So the accident occurred on the bend?

A          Okay, if you say in the bend, it sounds like
it is a square, it was a long drawn curve and that’s where it occurred.

…

Q         And I am not suggesting it was a complete
corner so we will say it was a long drawn curve to the right then, is that
correct?

A          Yes.

Q         And, now, where the accident occurred do you
recall if there was, how many lanes of traffic there were going in each
direction?

A          Two, one for us and one for the other side.

Q         And do you recall as best you can
approximately how far away the vehicle was when you first saw it that ended up
in the collision?

A          In meters?

Q         I am sorry, how many?

A          In meters?

Q         Sure that’s fine.

A          No idea, no idea, if it is 80 meters, I don’t
know, I didn’t measure it.

Q         And —

A          100 meters, 80 meters, I have no idea.

Q         When you spoke earlier about noticing the way
the vehicle was driving, can you describe what you meant by that when you said
you noticed the way the vehicle was driving coming towards you?

A          It looked like she was swerving to the left,
to the right, to the left, to the right.

Q         And when you first saw them swerving to the
left and to the right, did you take any action with your driving to change how
you were driving?

A          Yes, I slowed down, and I was waiting to what
was going to happen, I didn’t know if she was going to hit us or not.

Q         And are you able to tell me know much you
slowed down, to what speed you were?

A          No, I didn’t look.

Q         And did you move your vehicle at all, for
example, onto the shoulder or —

A          No, there were rocks and trees, I wouldn’t
have dared to drive there —

Q         So you didn’t —

A          To the side.

Q         You didn’t move left or right at all from
within the lane, is that correct?

A          No.

Q         and other than the slowing down that you
described did you take any other actions between when you saw the vehicle
swerving and when there was a collision other than the slowing down, for
example, honking your horn or anything like that?

A          No.

Q         And now, are you able to tell me even just in
seconds how long it was between when you first noticed the vehicle starting to
swerve up to the time of the collision?

A          I think maybe three seconds at the most, no
idea.

Q         And —

A          I just said,
“Look here, look here” and then she was there already.

[47]        
At Mr. Spiering’s examination for discovery, he was asked the following
question and gave the following answer:

Q         Could you just describe to me in your own
words the sequence of events leading up to the accident?

A          Yes, we were on
the highway, in the direction of Fort McNeil and the road was almost empty and
then at a bend in the road, from our point of view it was a right turn bend, a
small vehicle approached us, but somehow it seemed that it had lost control in
the bend and Mickey just said to me, “Oh, look what is he doing? and then
moments later the vehicle crashed into us in the front right-hand side of the
motorhome and he came across the median.

[48]        
The defendant gives the following answers to the following questions
posed to her at her examination for discovery:

Q         And I understand that in this accident your
vehicle crossed a double solid line and collided with an RV?

A          Yes.

Q         I understand that Highway 19 at the site of
the accident is one lane in either direction, one [lane] goes south, one goes
north?

A.         Yes.

Q         And then there is, like I said, the double
solid line in the centre of the highway?

A          Yes.

Q         And you were southbound at the time?

A          Yes.

Q         And the RV that you collided with was
northbound?

A          Yes

Q         And it was essentially a head-on collision,
the vehicles collided front end to front end?

A          No.

Q         Okay, how can you describe the impact?

A          I, at the last minute, turned my car to the
left and this took the front end of my car off, the engine.

…

Q         Okay. So you told me before that you were
going southbound and you said the speed limit is a hundred and I understand
from notes in the RCMP file that you told the RCMP, or it looks like the notes
say that you were going about a hundred and ten kilometres at the time?

A          Roughly. I didn’t know for sure.

Q         Okay. And then you said for some reason your
vehicle drifted to the right onto the shoulder?

A          Mm-hmm, yes.

…

Q         Okay. I’m just trying to figure out where this
happened. So you’re in a straightaway and then you say there was a — was it a
right curve for the direction that you were going southbound? Is it a curve to
the left or a curve to the right?

A          To the left.

Q         So you go into a slight left curve?

A          Mm-hmm.

Q         Yes?

A          Yes

Q         And you’re going a hundred and ten, approximately?

A          Yes.

…

Q         So when you’re approaching that first curve
and your car drifts to the right, at that point you’re unable to see the
highway beyond that?

A          Yes.

Q         Correct?

A          Correct.

…

Q         Okay. So your vehicle, your southbound vehicle
quickly slides to the right and your passenger wheels touch the sand on the
shoulder, the sand or gravel or whatever it is on the shoulder?

A          Correct.

Q         And then you sharply turn to the left, I take
it?

A          No, I just ease my car back onto the highway,
like.

Q         Okay. So it’s a gradual easing your car back
and you go to the — you go into the [middle] of the southbound lane again?

A          That’s when it started. As soon as I came
back onto the highway, it started fishtailing.

Q         Okay. And that’s when you started to brake?

A          Pump my brakes and try to correct my vehicle
into the southbound lane, yes.

Q         Okay. So when — I thought that it fishtailed
in the southbound lane. You’re saying by that time it was fishtailing?

A          The road isn’t that big, so it’s — I mean, I
pulled onto the road, it started fishtailing and I was either close to or on
the centre line and the car was out of control at that point.

Q         Okay. And then do you remember seeing the RV
come around the corner?

A          Not until just moments before the impact
itself.

Q         So essentially it just — you were
fishtailing, there was a corner, you couldn’t see it and then, boom, it’s —
the RV is there?

A          The sign is there, the RV was there. I saw
it. All I could see was the grill. I cranked it left and then the impact.

Q         So what kind of time frame are we talking from
the time you went to the right and hit the shoulder in the southbound lane to
the impact? Are we talking about a couple of seconds, just like that?

A          I don’t know how else to describe it. I don’t
have an actual time frame.

Q         But it was as fast as —

A          It was as fast as —

Q         So we’re not talking that you were fishtailing
for half a mile or anything like that?

A          No, no.

Q         Do you have any sense of how many fishtails
before you were in the northbound lane?

A          No.

Q         Just a few of them?

A          Uhm, it was — all happened quite quickly.

Q         Okay. Did you get any sense of how fast the RV
was travelling?

A          No.

Q         So it happened too quick to even get an idea
of how fast he was going?

A          Definitely, yes.

Q         And so when you first saw the RV, I take it
your vehicle was in the northbound lane and you’re thinking, “I got to get out
…”

A          Partially, yes.

Q         You said partially. Do you remember how much?
About half?

A          I think mostly at that point that’s — uhm, I
don’t know, because I couldn’t see, you know. Like I was trying to get my
vehicle in the right-hand lane —

Q         Why —

A          — so I wasn’t looking around me to see where
on the road I was.

Q         Okay, but you have the sense that you were
definitely blocking the northbound lane and that’s why you needed to get out?

A          Yes.

Q         Okay. Now, you said the road itself is not
very wide, including the northbound and southbound, so I take it there was no
way that the RV could have driven around you at that point, it is too narrow a
road?

A          I think coming around the corner, it’s
reaction time, size of vehicle. They would have come around the corner and I
was there.

Q         So just not enough time for them to do
anything?

A          That would be my guess.

Q         Okay. Now, looking back on what happened now
— and I know it’s difficult for you and you were injured and obviously it was
traumatic — is there anything, in your mind — are you able to form the
impression that the driver could have or should have done something different
to avoid your car?

A          No.

Q         There was just nothing? It was just an
accident that was going to happen?

A          Mm-hmm, yes

…

Q         Okay. And I think I’ve hammered on this, but I
want to just make sure that you didn’t — in terms of distance, I know that you
have said the RV came around the corner and it was right there and you were
right there and the accident happened?

A          Yes.

[49]        
There are no creditability issues. There is no dispute as to the facts
as to how the accident occurred.

[50]        
I conclude that the determination of liability is suitable for summary
trial.

Liability

[51]        
The plaintiffs argue that based on the evidence, the evidence supports
the finding of negligence against the defendant.

[52]        
The plaintiffs further argue that there is “no reliable” evidence that
the plaintiff “had any opportunity to avoid or lessen the severity of the
collision”. The plaintiff points to the fact that the defendant’s evidence is
that the impact between the two vehicles occurred in the plaintiff’s lane and
shortly after the plaintiff’s vehicle came into the defendant’s view from
around the curve in the highway.

[53]        
The defendant argues that the defendant is not liable and that the
defendant “inexplicably lost control of their vehicle notwithstanding the
exercise of reasonable care”.

[54]        
The defendant argues that Mrs. Spiering is contributorily negligent.

[55]        
The plaintiff, Mrs. Spiering was driving the recreational vehicle
northbound on Highway 19. There is no dispute as to where the accident on
Highway 19 occurred. I find that as the plaintiff’s recreational vehicle
travelled around the curve, the plaintiff observed the defendant’s vehicle
swerving from left to right and left to right, or fishtailing in Mrs.
Spiering’s lane of traffic. Mr. Spiering described the defendant’s vehicle as
losing control. Mrs. Spiering stated that within three seconds, at the most, the
collision occurred between the Spiering vehicle and the defendant’s vehicle in
the Spierings’ northbound lane.

[56]        
The defendant’s evidence at her examination for discovery confirms the
events with more particulars than that of the Spierings. Some of those
particulars are only known to the defendant. Those particulars are that the
passenger side of the vehicle of the defendant drove onto the shoulder of the
southbound lane while the defendant’s vehicle was travelling at approximately
at 110 kilometres per hour. When she started to move her vehicle back into her
lane, her vehicle started to fishtail, and fishtailed into the northbound lane
of traffic. As she was driving on the curve, she could not see the Spiering
vehicle in the northbound lane of traffic. While in the northbound lane of
traffic the defendant observed the Spiering vehicle. All the defendant could
see of the recreational vehicle was its grill. The defendant’s vehicle was blocking
the northbound lane. The collision occurred after the defendant cranked her
steering wheel to the left trying to get out of the northbound lane.

[57]        
The plaintiff has established a prima facie case of negligence on
the part of the defendant, casting on the defendant an onus to provide an
explanation: Gauthier & Co. v. The King, [1945] 2 D.L.R. 48. The
defendant provided no explanation as to why her vehicle’s passenger side went
onto the southbound shoulder causing the defendant to correct her vehicle, which
fishtailed into the northbound lane, causing the impact with the Spiering
vehicle. There is no reasonable explanation for this accident, other than the
defendant’s negligence.

[58]        
The defendant argues that the plaintiff, Mrs. Spiering, was
contributorily negligent. In the defendant’s submissions, the defendant points
to Mrs. Spiering in her examination for discovery noticing the defendant’s
vehicle fishtailing; she commented on this to her husband and slowed down and
waited to see what would happen, and that she had made no attempt to avoid the
accident or take evasive action.

[59]        
Mrs. Spiering swears in her affidavit that she put on her brakes, as
does Mr. Spiering. Mrs. Spiering does not state in her examination for
discovery that she put on her brakes when asked this question:

Q         And other than the slowing down that you
described did you take any other actions between when you saw the vehicle
swerving and when there was a collision  other than the slowing down, for
example, honking your horn or anything like that?

A          No.

[60]        
Mrs. Spiering was not specifically asked if she had applied her brakes.

[61]        
The northbound and southbound lanes were narrow, Mrs. Spiering’s vehicle
had nowhere to go and the defendant unequivocally states that Mrs. Spiering
could do nothing to avoid the accident. The entire accident, from the time the
defendant corrected her vehicle from the shoulder of the road to impact, happened
quickly. In Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273, Mr. Justice
Tysoe stated:

[10] As I understand the law,
there is no obligation on a driver to keep himself specially prepared for
action in an unforeseen emergency and it is only where the possibility of
danger emerging is reasonably apparent that special precautions must be taken.

[62]        
I find that the defendant is solely responsible for the accident and she
was negligent when she drove her car onto the shoulder of the highway and when
she attempted to correct her vehicle, she fishtailed into the path of the
Spiering vehicle.

[63]        
The plaintiffs will have their costs in this proceeding at Appendix B,
Scale B of the Civil Rules.

“H.C. Hyslop J.”

HYSLOP J.