IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130422

Docket: M110349

Registry:
Vancouver

Between:

William
John Hogstead, by his litigation
guardian, Denise MacPherson

Plaintiff

And

Robert
Wallace Spiers, 594009 B.C. Ltd., C. Keay Investments Ltd.,
C. Keay Investments Ltd. doing business as C. Keay Investments and/or Ocean
Trailer Rentals Ltd. and BA Holdings Ltd.

Defendants

Before:
The Honourable Mr. Justice Willcock

Oral Reasons for Judgment

[1]            
THE COURT:

Introduction

[2]            
William Hogstead was severely injured when a pickup truck he was driving
west on highway 16 sideswiped a tractor and trailer being driven east on the
highway by the defendant, Robert Spiers at about 7:15 pm on January 6, 2010.  The
left side wheels were torn off the plaintiff’s vehicle, leaving a gouge on the
road at about the point of impact.  The plaintiff’s pickup truck skidded and
spun along the road, coming to a stop in a snow bank on the north side of the
road west of the point of the collision, close to the intersection of Highway
16 and Isle Pierre Road.  The defendant’s truck also left the road, coming to a
stop at a point about 100 metres east of the point of impact, also in the snow
on the north side of the road.

[3]            
Accident reconstruction experts Messrs. Brown and Gough agree that a
crescent-shaped gouge and two other indentations in the road mark the point of
first significant impact between the vehicles, that which tore off the front
wheel of Mr. Hogstead’s pickup. The gouges suggest that at least part of
the impact occurred above the centre line of the highway.

[4]            
Mr. Brown says a crescent shaped  gouge on the centrelines of the highway
was probably caused by the rim of the pickup’s front wheel. If that is the case
the most significant contact occurred above the centreline and both vehicles
were over the centre of the road at impact and marginally into lane reserved
for travel in the opposite direction.

[5]            
Mr. Gough says the gouge on the centreline was probably not caused
by the rim of the front wheel. He says the left front wheel of the pickup was probably
further into the eastbound lane and the contact between the vehicle tires may
have occurred entirely within Mr. Spiers’ lane.  In coming to this
conclusion Mr. Gough relies principally upon:

(a)           
 the presence of gouges in the road south of the large crescent-shaped
gouge over the centreline, suggesting the pickup travelled well into the
eastbound lane;

(b)           
the absence of evidence of evidence on the wheel rim that it came into
contact with the asphalt as suggested by Mr. Brown, suggesting it did not
cause the crescent-shaped gouge on the centreline; and

(c)           
the fact damage to the outside of the tractor’s front wheel is limited
to its outside rim, suggesting there was little overlap between the wheels of
the two vehicles involved.

[6]            
The parties seek to address the question of liability for the accident before
assessment of the quantum of damages sustained by Mr. Hogstead.  The
liability assessment hinges primarily on the resolution of the question where
the principal impact occurred.  There is some evidence that as Mr. Spiers
approached the scene of the accident he was passing in a no-passing zone.  There
is evidence he had been working long days and was tired.  There is evidence that
as Mr. Hogstead approached the scene he moved from the shoulder of the
highway across his own lane and finally into the eastbound lane. There is
evidence he was driving while impaired by medication prescribed for him earlier
in the day at Prince George Regional Hospital.  The causative role of the
errors or omissions of the parties can only be assessed, however, once it is
determined where and how the collision occurred.  That determination must be
made in light of the physical evidence. The recollection of those present at
the scene is of some, but limited, value in making the determination because of
their restricted ability to make observations in a traumatic circumstances in
the dark, and because of frailties of their memories and the passage of time.

EVIDENCE

Admissions

[7]            
The following facts are admitted.

[8]            
On January 6, 2010, at approximately 7:15 pm, a
Chevrolet pick-up driven by the plaintiff westbound on Highway 16 and a 2003
Peterbilt tractor/trailer unit driven eastbound on Highway 16 collided.

[9]            
William John Hogstead was the owner and driver
of the 1988 Chevrolet pick-up.

[10]        
The 2003 Peterbilt tractor bore British Columbia
license plate number P95978, and the attached 2005 Utility Van trailer had a
British Columbia license plate number 32492B. 

[11]        
Robert Wallace Spiers was the driver of the tractor
at the time of the collision. 594009 BC Ltd was the owner of the tractor. Linda
Ann Spiers is the sole director of 594009 BC Ltd.  C. Keay and Ocean Trailer
were the owners and lessors of the trailer.  BA Holdings was the lessee of the trailer.

[12]        
Highway 16 travels east/west from Prince Rupert
to Prince George.  The collision occurred approximately 40 kilometers west of
Prince George.

[13]        
At the time of the collision, Hogstead was
driving west on Highway 16 toward his home in Endako, British Columbia.  Spiers
was driving east on Highway 16 towards Prince George, where he lived.

[14]        
Isle Pierre Road intersects with Highway 16
approximately 40 kilometers west of Prince George.  Isle Pierre Road starts at
Highway 16 and runs north of the highway, so the intersection of Isle Pierre
Road and Highway 16 is roughly a T‑shaped intersection.

[15]        
At the time and location of the collision, it
was dark, with some artificial lighting.  The ambient temperature was below
zero.  There were some patches of snow, but the road markings were generally
visible.  There was snow on the ground at the side of Highway 16.

[16]        
At the time of the collision, the plaintiff was
wearing a three-point seatbelt.

[17]        
Two painted solid yellow lines divide the lanes
of travel on Highway 16 at the collision location.  The posted speed limit there
was 100 kilometers per hour.

[18]        
The plaintiff sustained a brain injury in the
collision.  As a result of his injuries, he is unable to manage his financial
affairs and requires the assistance of a committee.  As a result of his
injuries, the plaintiff is unable to provide reliable evidence regarding the
events of January 6, 2010.  I understand that to mean that the plaintiff is
capable physically of terrifying, and he would do so, but his evidence is
unreliable as he is known to confabulate as a result of his injury.

[19]        
There is an admission that RCMP Traffic Analyst,
Staff Sergeant Bill Hudyma (S/Sgt. Hudyma) attended the location of the
collision, made observations of the scene and the vehicles there and at the
towing yard.  His observation notes are marked as Exhibit 5 at trial.  They are
agreed to be true and accurate observations of the scene and of the vehicles
involved in the collision and the collision location. Similarly, the investigation
notes made by S/Sgt. Hudyma are admitted as true and accurate.  His collision
analysis measurement log is also admitted into evidence and agreed to be
accurate.

Topography

[20]        
The road at the location of the accident is well-travelled by and
familiar to both drivers.  Highway 16 is undulating as it approaches the T-intersection
of Isle Pierre Road from both directions.  The intersection is at the crest of
a rise in the road from which the road falls away at a slope of about two
degrees in each direction for about a kilometer.  As drivers approach, their
vision of oncoming vehicles is marginally restricted by the rise.  Passing by
approaching drivers in each direction is prohibited.  There are three
streetlights on the south side of the intersection, one at about the middle of
Isle Pierre Road and one 50 meters to each side of that light.  Mr. Spiers
knew the lights to cause some difficulty making out the presence of approaching
vehicles at night.

[21]        
The accident happened in mid-winter, but that does not appear to have
been a factor, except for snow covering the sides of the road and, apparently, from
the photographs, obscuring fog lines at the road edge.  The roads were clear
and dry, there was no ice, and no one complains of a lack of control or
traction.

William Hogstead

[22]        
Mr. Hogstead has no recollection of the accident and , as mentioned
previously, is incompetent to testify. His wife testified to what can be
reconstructed of his activities on the day of the accident.  Medical records
were entered as evidence of the treatment he received earlier in the day at Prince
George Regional Hospital.  The defendant relied on those medical records and
called Dr. James Kennedy, a pharmacologist and toxicologist, to establish
that at the time of the accident, Mr. Hogstead was probably impaired.

[23]        
The records indicate Mr. Hogstead had a CT arthrogram of his
shoulder at about 11:30 am on January 6, 2010. He was discharged soon
thereafter, but returned to the hospital at about 1:45 p.m. complaining of
chest pain.  He was given 2 mg of Ativan intravenously at about 2:00 p.m.  After
receiving the medication, Mr. Hogstead reported he felt better.  He slept
for some time.  He was dressed and reported that he felt much better at 4:00 p.m.
At 4:50 p.m., the records indicate he was discharged, and the records include
a note that he ought not to drive.  No one was called to say that specific warning
had been given to Mr. Hogstead, or in what terms it was given, if it was. 
He spoke to his wife on leaving the hospital, but did not mention if he had
been told not to drive.

[24]        
In the absence of any evidence of what occurred on discharge I cannot
find that the note “Ø driving” under the heading “Treatment” in an emergency
room record is sufficient to establish that Mr. Hogstead was warned specifically
not to drive or, if so, for how long.  The evidence of impairment was vague, and
there was no evidence of actual impairment.  Dr. Kennedy testified with
respect to the effects of Ativan.  He said that, on average, the effects last eight
to ten hours.  It usually causes cognitive impairment, defined in very
non-specific terms by Dr. Kennedy, lasting several hours.  The impairment
would be most significant in the hours after the administration of the
medication.  Dr. Kennedy did not specifically say what impairment might have
been expected in this case, at 7:00 p.m., five hours after the injection.  There
is some evidence Mr. Hogstead remained in Prince George shopping and
eating until leaving on the drive home.  He had driven only 40 km west at the
time the accident occurred at 7:15 p.m., suggesting he left Prince George at sometime
around 6:30 – 6:45 p.m., almost two hours after his discharge from hospital.  On
this evidence, I cannot find that Ativan in fact affected Mr. Hogstead’s
driving.

Robert Spiers

[25]        
Mr. Spiers testified.  He was driving a tractor trailer on the
night of the accident and is an experienced driver.  He began January 6, 2010
in Burns Lake, drove to Terrace, where he made a delivery and had lunch, and
was returning to his home in Prince George when the accident occurred.

[26]        
As he approached Bednesti, he came upon another vehicle on the road
driving slower than the speed at which his cruise control was set, about 100
kph.  He followed the vehicle for awhile then, as he neared a passing lane at Tamarac
Lake, about four kilometers west of the accident scene, he approached the rear
of that other vehicle, intending to signal his intention to pass.  He says he
passed the vehicle in a passing lane at Tamarac Lake and then continued on at
about 100 kph from there to the location of the accident, over about 3½ km of
bare, relatively straight highway, with some gradual changes in elevation.

[27]        
He says he first saw the Hogstead vehicle as it was about 100 yards east
of him, in the turn lane for Isle Pierre Road, travelling west at a speed that
he estimated at around 60 kph.  He says he did not see it earlier because of
the rise in the highway at Isle Pierre Road.  The oncoming vehicle gradually
moved over into the westbound lane of the highway and, when he was about 50
metres away, it moved into his lane.  He turned his wheel and believes he moved
over on the road by as much as six feet, but could not avoid a collision.  He
felt his truck jostled, tried to maintain control but could not, and his truck
moved across the road, coming to a stop in the snow on the north side of the
highway.  He knew he had hit a vehicle, but could not see what happened as it
passed him.

[28]        
When he got out of his truck he saw a car stopped on the south side of
the road behind him (as it turns out, the vehicle driven by a witness,
McKinley).  Seeing no other vehicle, he was uncertain what had occurred and
asked the occupants of that vehicle if he had hit something and what had happened.

[29]        
On cross-examination, Mr. Spiers was forthright and honest.  He
acknowledged he was tired and did not sleep well on the road.  He admitted he
had worked long days and there was economic pressure to do so.  He admitted
inaccuracies in his earlier testimony and statements.  In my view, he was attempting
to testify honestly, but was mistaken or confused about some of the particulars
to which he testified.

[30]        
He acknowledged that he gave a statement to an ICBC adjuster on January
7, 2010, the day after the accident, in which he said that when he first saw
Hogstead’s vehicle moving toward the centre of the road, he thought Hogstead
was changing lanes because one of the two westbound lanes ended.  He says that
to his surprise, Hogstead simply continued to move across the road into his
lane.

[31]        
In cross-examination, he agreed there were not two westbound lanes at
the location of the collision.  The accident did not happen at a point where
two westbound lanes existed, or at a point where they merged or ended.  In fact,
it happened at a point where a turn lane was emerging from the one westbound
lane and the road was widening as it approached Isle Pierre Road.

[32]        
At trial, Mr. Spiers said the snowploughs had extended the length
of the turn lane, however, and although there was no marked or paved lane, that
he thought the Hogstead vehicle had been travelling on the shoulder when he
first saw it.

[33]        
He acknowledged he had spoken to an RCMP officer, Constable Eggen, ten
days after the accident on January 16, 2010, and said the Hogstead vehicle had
“veered” or “swerved” toward him before the collision, but admitted at trial those
were inaccurate words to describe events, and that there was never a sudden or
dramatic change in the direction of travel of the Hogstead vehicle.  It slowly
and steadily moved over into his lane from the moment he first observed it.  He
attributed the error in that statement to limited vocabulary and a bad choice
of words.  He acknowledged he told Cst. Eggen he had passed another vehicle
about ten miles west of the accident scene and admitted that was a mistake on
his part.  He is now certain, having revisited the scene, that the pass
occurred at Tamarac Lake, about four kilometers from the scene.

[34]        
He acknowledged he spoke to an ICBC adjuster on February 17, 2010.  The
adjuster’s notes of that conversation read, in part:

-said he thought he had his cruise control set & didn’t
think he was travelling over 105 kph;

-says the posted speed limit there is 100 kph, not 110 kph;
-says he never moved out of his lane of travel as he approached the crest of
the hill;

-he said the witnesses were travelling in the curb lane
beside him, and near the crest of the hill the 2 lanes merge into one. the
witnesses’ lane merges into the def’s centre lane;  …

-Def. said the witnesses could
not have seen Hogstead because Hogstead was on the other side of the hill;

[35]        
Mr. Spiers does not believe he told the adjuster the witnesses were
traveling in the curb lane beside him as he approached the crest of the hill at
Isle Pierre Road, despite the note made by the adjuster.  He acknowledges he
told the adjuster, as reported, that the witnesses could not have seen
Hogstead’s vehicle approaching because of the rise in the road.  He maintains that
is the case.  He maintains that he passed the witnesses’ vehicle in a passing
lane on a hill.  The adjuster’s notes are consistent with that evidence and
only inconsistent with Speirs’ evidence insofar as they suggest the passing
lane was on the hill leading up to the crest of the highway at Isle Pierre Road.

[36]        
Either Mr. Spiers’ evidence is inconsistent or inaccurate, or the
adjuster confounded the two hills, the hill at which Mr. Spiers says he
passed the McKinley vehicle at Tamarac Lake, and the hill at Isle Pierre Road.  The
adjuster was not called to testify.

[37]        
On the whole, Mr. Spiers evidence is relatively consistent.  It is,
however, at odds with some of the physical evidence.  It is unlikely Mr. Spiers
first saw the Hogstead vehicle when it was only 100 yards away, unless he was
not paying attention.  The sightlines, as measured by engineers, provide a much
longer opportunity to see approaching vehicles over the crest at Isle Pierre Road.
Further, the evidence suggests Mr. Spiers did not move his truck
significantly to the right on seeing the Hogstead vehicle before the collision.
Last, for reasons set out below, I find it unlikely the collision occurred
while the Spiers vehicle was travelling entirely within the eastbound lane of Highway
16.

Denise McKinley

[38]        
Two independent witnesses, Denise McKinley and Nathan Peters, were
travelling east on Highway 16 in a vehicle driven by Ms. McKinley behind
the Spiers truck at the time of the collision.  Both witnesses were
disinterested and, in my view, were also honest witnesses doing their best to
assist the court.  They were both unhappy with Mr. Spiers’ conduct; Ms. McKinley
because she thought Mr. Spiers had been tailgating her before passing her;
and Mr. Peters because he thought Mr. Spiers callous and
disinterested in the injuries suffered by Mr. Hogstead after the accident.

[39]        
While I do not believe their testimony was affected by animus, there are
frailties in their testimony that cause me to place relatively little weight
upon what they say with respect to the most critical issue they address: the
position of the Spiers vehicle on the road at the time of impact.

[40]        
Ms. McKinley says she first became aware of the truck driven by Mr. Spiers
at about Bednesti, about ten kilometers west of the accident scene.  It
approached her too closely and she accelerated, but still felt uncomfortable as
she could not put distance between her car and the truck.  It was her evidence
at trial that as she was on the hill approaching Isle Pierre Road, the truck
that had been following her pulled out into the oncoming westbound lane to pass
her.  When it was two or three car lengths in front of her, she saw sparks and
a cloud of dust ahead of her.  She estimated that up to ten seconds passed
between the passing of her vehicle and the accident.  She is uncertain whether
the truck had returned to the eastbound lane when that occurred.

[41]        
She pulled over immediately and was then at a point just east of the
intersection of Highway 16 and Isle Pierre Road.  She looked back and across
the road and saw the wreck of Mr. Hogstead’s vehicle.  The driver of the
tractor trailer approached her vehicle and asked her and her passenger: what
had happened, what had he hit.  She was frightened and angry that Mr. Spiers
appeared to be unaware of what had happened.

[42]        
In cross-examination, she acknowledged she had spoken with an ICBC
adjuster on January 7, 2010, the day after the accident.  She agrees that she
told the adjuster that Mr. Spiers passed her “right by where the little
lake is”, and that she was not sure if there were two lanes travelling east
when he started to pass her.  At trial, she agreed the reference to the little
lake must have been a reference to what we now know to be Tamarac Lake, where
the passing lane is, in fact, located, but she was adamant that her current
recollection is correct and that the passing occurred immediately before the
accident and not at Tamarac Lake.  She would not concede that her current
recollection of events is likely to be less reliable than her immediate
post-accident recollection.

Nathan Peters

[43]        
Mr. Peters, her passenger, was adamant in his recollection that the
passing occurred immediately before the collision.  He says the Spiers vehicle
came upon the McKinley vehicle as they were coming up on Isle Pierre Road and
began to pass as they were very close to the T-intersection.  He says the
Spiers truck pulled fully into the westbound lane and remained in that lane and
was about six car lengths ahead of them when the collision occurred.  He is
insistent the accident happened when the truck was on the left side of the
road.

[44]        
Like Ms. McKinley, he says Spiers asked what had happened after the
accident.  He says that even after Spiers was told he had hit another vehicle,
Spiers walked back to his own truck and appeared to be unconcerned about the
welfare of the other driver.  That angered Mr. Peters, who had himself
lost his mother in a tragic accident.

[45]        
In cross-examination, Mr. Peters disagreed with the suggestion the
truck had been behind them since Bednesti.  He did not recall a passing lane at
Tamarac Lake.  He repeated the evidence the truck was on the westbound lane and
denied the suggestion the Hogstead pick up was near the centre line.  He put it
at the middle of its lane of travel.

[46]        
Weighing all of this evidence, I find the Spiers vehicle to have passed
the McKinley vehicle in the passing lane at Tamarac Lake.  The evidence
supports the conclusion the Spiers vehicle had been following the McKinley
vehicle for some distance before coming upon the passing lane at Tamarac Lake.  Both
McKinley and Spiers say Spiers’ intention to pass was apparent by that point.  There
is no reason, in my view, why an experienced driver would not have used the
passing lane at Tamarac Lake when he came upon it.  I accept Mr. Spiers’
testimony that he did so.  I am not troubled by his earlier overestimate of the
distance between the passing lane and the scene of the accident.  He apparently
remembered the pass preceded the accident by some kilometers.  His evidence is
consistent with some of what McKinley acknowledges she told investigators
immediately after the accident, namely, that the pass happened by the little
lake.  It is likely, in my view, that some details were lost in the adjuster’s
point-form notes of Mr. Spiers’ telephone conversation following the
accident.

[47]        
McKinley’s evidence at trial is not only inconsistent with her earlier
statement that the pass occurred at the little lake, but it is also
inconsistent with her earlier uncertainty whether the pass began at a point
where there were two eastbound lanes (i.e. in a passing lane).

[48]        
Mr. Peter’s evidence must be inaccurate, given the physical
evidence of where the impact occurred and the path of travel of the Hogstead
vehicle thereafter.  He could not have been in a position to see the initial
point of impact and, therefore, could not say where the Hogstead vehicle was
before collision.

[49]        
I find, for the reasons set out below, the collision did not occur
wholly in the westbound lane, as Mr. Peters recollects.  I accept the
evidence of McKinley and Spiers that the Spiers vehicle had been following the
McKinley vehicle since Bednesti.  I find Mr. Peter’s recollection of the
appearance and path of travel of the Spiers vehicle to be unreliable.  Finding
that evidence unreliable, I am unable to place much weight upon it to describe
the path of travel of the Spiers vehicle as it approached or at the accident
scene.  I accept Mr. Spiers’ version of events as he approached the
McKinley vehicle and passed it at Tamarac Lake.  Thereafter, I rely primarily
upon the reconstruction of events from the physical evidence.

Craig Brown

[50]        
Mr. Brown, an engineer retained by the plaintiff, initially said
the vehicles were travelling in almost precisely opposite directions at impact,
but varied his opinion to accept the more specific opinion of Mr. Gough
that they collided at an angle of about one to three degrees from head-on.  He
says while there was incidental contact before the main collision, the
principal impact occurred when the left front wheel of the pickup hit the front
drive wheel of the tractor.  At that point, he says it is probable that the
wheel rim of the pickup was driven forcibly down into the pavement, leaving a
crescent-shaped gouge on the asphalt.  He says the damage to both vehicles is
consistent with there being some overlap between the wheel rims of the pickup
and the tractor, the extent of which he cannot estimate.  He puts the wheels of
both the tractor and the pickup over the centre line of the road at the time of
impact.  Given the size of the trailer relative to the tractor, he says it is
probable that the left side of the trailer was over the top of the centre lines
and possibly into the westbound lane at the time of impact.

[51]        
Mr. Brown was examined at length on the extent of intrusion into
the southbound lane of components of the pickup other than the wheel: the
bumper and fender and other parts that extend outside the wheel well and beyond
the wheel’s diameter.  That examination was intended to establish that in order
for the pickup’s front wheel to be over the centre line, other components
crossed further into the lane of opposite travel.  To a certain extent, the
same may be said of the tractor trailer.  Some components of the tractor also
extend beyond the width of the front drive wheel.  The tractor’s dented front
fender extends beyond the wheel.  Further, the trailer is 3.5 inches wider than
the tractor on the driver’s side.  In order for the tractor trailer combination
to be entirely within its lane of travel, even the edge of the lead tractor
wheel cannot have been over the centre line.

[52]        
Mr. Brown estimates the pre-accident speed of the Hogstead pickup
at 57‑74 kph, but given the variables present in this case, he says
the vehicle’s speedometer may accurately reflect speed at the time of collision. 
It is stopped at 82 kph.

[53]        
The speed estimates for the pickup in this case are very uncertain.  The
estimate of speed is derived by estimating the force necessary to cause the
visible impact damage to the pickup, itself a very rough estimate; by estimating
the speed of the Spiers vehicle at impact; by taking into account the reduction
in speed caused by the initial minor contact; by considering the subsequent
sliding contact on the road and the long skid produced by that contact; and by
considering the loss of speed as the truck ran through snow before it came to a
halt.

[54]        
The most that can be said, in my view, is that the pickup was probably
not exceeding the speed limit and was, in fact, probably substantially below it,
but was travelling at least 60 kph.

Jonathan Gough

[55]        
There is no serious dispute between the experts with respect to vehicle
speeds or sightlines at the accident scene.  Vehicles approaching each other at
the speeds estimated by the experts could see each other for about seven seconds
and from a distance of about 350 metres.  Nor is there any dispute that the
angle of the vehicles at impact in relation to each other was very small.

[56]        
The defence expert engineer, Mr. Gough, also agrees there was minor
initial impact, followed by a substantial collision at the point where the
front drive wheel of the tractor and the front wheel of the pickup came into
contact or, in Mr. Brown’s words, “snagged each other”.

[57]        
Mr. Gough agrees the drive wheel of the tractor drove the front
wheel of the pickup into the ground.  This was not a glancing collision, but
one which was sufficient to exert significant force on the front wheel of the
pickup and downward force.  He also agrees there was continuing minor contact
between the vehicles as they passed each other in a fraction of a second.  He
argues, however, that the pickup truck was significantly over the centreline at
the time of impact, for the following reasons:

(a)           
gouges in the road to the south of the crescent shaped gouge suggest
that crescent-shaped gouge does not mark the furthest point of travel of the
pickup into the eastbound lane;

(b)           
the pickup was deflected back into the westbound lanes on impact and was,
therefore, probably further into the eastbound lane before the gouges were
made; and

(c)           
the crescent-shaped gouge was probably not caused by the front wheel
rim.

[58]        
There are distinct gouges to the road surface beside the crescent-shaped
gouge, but further into the eastbound lane.  Mr. Gough does not hazard a
guess as to what caused these marks, other than to say they were probably
caused by the lowest component then still attached to the suspension or wheel
assembly of the pickup when they were made.  The presence of these gouges
suggests greater intrusion into the eastbound lanes than evidenced by the gouge
on the centre line.

[59]        
Mr. Gough says that as a result of the relative weights of the
vehicles involved, contact between them would have deflected the pickup north
on the road.  He says that is proven by the lack of significant impact to the
truck to the rear of the front drive wheel.  That deflection cannot have
occurred before the destruction of the pickup’s front wheel, as all the
evidence points to increasing contact until that major collision between the
wheels.  Mr. Gough acknowledged the deflection would have been small in
the instant between that major impact and the impression of the gouges on the
road.

[60]        
Mr. Gough says striations in the gouge on the road surface suggest
the object that made the mark was travelling northeast from the eastbound lane
into the westbound lane (in the direction of travel of the tractor but slightly
more northward).  He says:

Since the mark started within the
eastbound lane and was moving back toward the westbound lane, there is no doubt
that when the contact occurred, the Hogstead pickup was partially on the wrong
side of the centre line.  The distance that the pickup was into the eastbound
lane would depend on how far it was moved to its right before its first contact
to the road surface occurred.

[61]        
However, there is some evidence the striations in the gouge reflect the
direction of rotation of the colliding wheels, and Mr. Gough does not
suggest there was significant deflection in the instant between impact and the
impression of gouges on the road surface.  I conclude from this evidence that
the gouges mark very closely the point of furthest intrusion into the eastbound
lane of the components that made the marks in the road surface.

[62]        
While he cannot say what made each gouge, Mr. Gough says the gouge over
the centre line was probably not caused by the pickup’s front wheel rim
because:

(a)           
there are other marks further into the eastbound lane; and

(b)           
 the rim “did not exhibit any abrasions consistent with contact to the
road surface”.

[63]        
Given his conclusion that the extent of the intrusion into the eastbound
lane was marked by the southern-most gouges in the road surface, and his
assessment of the damage to the Spiers tractor, Mr. Gough believes the
tractor may have been wholly within its own eastbound lane at the time of the
collision.

[64]        
His first report contains the bald conclusion, without obvious
substantiation, and before Mr. Gouge knew anything about the condition of
the pickup’s front drive wheel, that: “[t]he Spiers tractor was on its own side
of the centre line when contact occurred”.

[65]        
In his second report Mr. Gough appears to retreat from that bald
assertion that the tractor was on its own side of the centreline, saying:

The tractor-trailer was certainly
close to the centreline, but the available evidence indicates that its drive
axle tires were probably on the correct (ie eastbound) side of the centreline
when the wheel to wheel engagement occurred.  The precise positioning of the
tractor is dependent on the extent of the overlap between the tires and what
component of the left front suspension of the pickup caused the gouges in the
road surface.

[66]        
His conclusion with respect to the position of the tractor-trailer is,
therefore, founded upon:

(a)           
the conclusion that a component of the suspension other than the tire
rim may have caused the crescent-shaped gouge; and

(b)           
the view there was minimal overlap (based on the view the pickup wheel
struck the outside edge only of the tractor’s front drive wheel).

[67]        
In my view, Mr. Gough places undue reliance upon the absence of
specific abrasions, with a smearing of asphalt on the wheel rim as proof the
rim did not cause the crescent-shaped gouge over the centre line of the
highway.   Mr. Gough did not examine the rim, nor did anyone else
expressly look for abrasions or asphalt on the rim itself, as opposed to
examining the limited evidence in post-accident photographs.  Abrasions may
have been present, but be difficult to identify on the photographs; the rim is
severely deformed.

[68]        
In his testimony at trial, Mr. Gough placed some weight on the fact
the police did not find any abrasions on  the front wheel rim, but acknowledged
in cross-examination that they did not appear to have obtained or examined the
rim.

[69]        
Further, there were no abrasions or asphalt smears consistent with the
crescent-shaped gouge on other components depicted in the photographs.  Mr. Gough
could not point to damage to any other component, such as the outer flange of
the wheel or the lower suspension arm of the pickup, as evidence that component
caused the gouge on the centre line.  The absence of evident abrasions on other
components is not weighed in his assessment of the probability that those
components, as opposed to the wheel rim, caused the gouge in question.

[70]        
There is some evidence the rim caused the gouge on the centre line.   Mr. Gough
acknowledged the striations on the crescent shaped gouge were evidence it was
made by a component travelling northeast and, therefore, ripped from the
pickup, no longer travelling with it.  The mark was not, therefore, made by
components later found attached to the pickup.

[71]        
The wheel and steering knuckle were ripped from the pickup.  Mr. Gough
agreed at trial that the crescent-shaped gouge was probably caused by contact
between a round or curved surface and the road.  The rim of the wheel is, if
course, such a surface.  Further, it stands to reason that the first major
impact would drive the wheel and rim down into the road surface before the
suspension or other components.

[72]        
Turning to the evidence of the extent of overlap, Mr. Gough acknowledged
that photographs of the drive wheel of the tractor depicted marks across the
width of the tractor’s front drive wheel rim, but attributed those marks to
damage that occurred after the wheel mounted to that rim deflated on impact and
was crushed rearward against the rim.

[73]        
It is clear that damage was most extensive to the outside edge of the
front drive wheel and that there was no damage to the other wheels of the
tractor, but the extent of the overlap between the front drive wheel of the
tractor and the pickup’s front wheel cannot be determined.

[74]        
The evidence relied upon most strongly by Mr. Gough in rejecting Mr. Brown’s
theory of the accident is the appearance of gouges south of the centre line in
the eastbound lanes.  He expressly says at page 3 of his second report:

Based on this I disagree with Mr. Brown’s
conclusion that “the pickup’s left front wheel and the tractor’s drive wheel
were directly above the road’s centreline when the wheel to wheel impact
occurred”.

Responsive Opinion of Mr. Brown

[75]        
In response to Mr. Gough’s second opinion, Mr. Brown says the
evidence of continuing contact between the pickup and the tractor suggests the
pickup was not deflected significantly to the north by impact.  His description
of the course of travel of the pickup, as evidenced by marks on the road is
persuasive on this issue.

[76]        
Mr. Brown says because there was evidently wheel-to-wheel contact
the tractor drive wheel must have been above the centrelines at the time of
impact.  He says there is evident damage to the wheel rim consistent with it
having been driven into the asphalt, a folding of the wheel flange.  The other
gouges in the road surface to the south of the crescent-shaped gouge on the
centreline may have been caused by the separating steering knuckle that would
have been rotating counter-clockwise (viewed from above), in a manner that
would have moved it into the eastbound lane from the point of impact.

Assessment of Expert Opinions

[77]        
I accept Mr. Brown’s view that the continuing contact between the
vehicles (and the later movement of the pickup to the south) suggests there was
no significant deflection of the pickup northward on the highway after impact.

[78]        
Mr. Gough does not suggest that the pickup moved a significant
distance to the north between the time of impact and the impression of the
gouge on the highway.  As I have said, I find the gouges on the road surface
mark very closely the point of furthest intrusion into the eastbound lane of
the components that made the marks in the road surface.

[79]        
I accept Mr. Brown’s conclusion with respect to the probable cause
of the crescent shaped gouge, given the dynamics of the accident, the shape of
the gouge and the damage to the rim. That gouge was made by the rim of the
pickup’s front tire and marks the position of the pickup’s front wheel, over
the centreline at the time of impact with the tractor.

[80]        
The collision was violent. There is difficulty accounting for the
movement of components in the accident, particularly those detached from the
pickup.  I accept Mr. Brown’s opinion that the presence of marks to the
south of the crescent-shaped gouge in the road are consistent with the crescent
shaped gouge being created by the pickup’s tire rim on impact, and were
probably caused by other parts detached from the pickup.

[81]        
I therefore accept Mr. Brown’s view that the significant contact
between the wheels of the colliding vehicles occurred over the centreline.

[82]        
By implication the edge of the tractor was at least over the centrelines
of the road and the trailer was probably intruding into the westbound lane at
the time of collision.

[83]        
It is in light of those findings of fact:  that Mr. Spiers passed
the McKinley vehicle on the hill at Tamarac Lake and completed the pass before
the accident; and that both vehicles crossed the centreline at the time of the
collision that I must address the allegations of negligence.

Applicable Law

Liability

[84]        
The plaintiff says the defendant was speeding or driving too fast for
the prevailing road conditions and that he passed the McKinley vehicle when it
was unsafe to do so.  There is no evidence the defendant was speeding and no
basis to find he was driving at a speed that was unsafe in the circumstances.  I
have found as a fact he did not pass when it was unsafe to do so.

[85]        
The fundamental case against the plaintiff in negligence and the basis
for the allegation of contributory negligence is that each driver ought to have
kept his vehicle on the right side of the road and/ or to control it in such a
manner as to avoid an impending collision.  Driving while fatigued or impaired is
only causative of damages if it can be said that fatigue or impairment caused a
driver to fail to keep his vehicle under control and where it ought to be, or
to fail to react in a timely manner to other traffic.

[86]        
There is a statutory obligation to drive with care and with due
consideration for other drivers, set out in s. 144 of the Motor Vehicle
Act:

144 (1) A person must not drive a motor
vehicle on a highway

(a) without due
care and attention,

(b) without
reasonable consideration for other persons using the highway, or

(c) at a speed that is excessive relative
to the road, traffic, visibility or weather conditions.

[87]        
Of course, there is a statutory obligation to drive on the right side of
the road and, in particular on the right side of a double line on a highway, as
set out in the following sections of the Act:

150 (1) The driver
of a vehicle must confine the course of the vehicle to the right hand half of
the roadway if the roadway is of sufficient width and it is practicable to do
so, except

(a) when
overtaking and passing a vehicle proceeding in the same direction

154 (1) The driver
of a vehicle must drive the vehicle on the right hand side of the roadway when
meeting another vehicle that is moving.

155 (1) Despite
anything in this Part, if a highway is marked with

(a) a solid
double line, the driver of a vehicle must drive it to the right of the line
only,

[88]        
Drivers must move their vehicles as far right as is safe within their
respective portions of the traveled portion of the highway when approaching
other vehicles.  As this court held in Wellington v. Hopkins, 2000 BCSC
1072 at para 38:

 … the obligation which was imposed
on both Mr. Wellington and Mr. Hopkins was to remain on the right
half of the travelled portion of Highway 97 that day and to move their vehicles
as far right as was safe within their respective portions of the travelled
portion of the highway when they were approaching other vehicles.

[89]        
The driver of a vehicle meeting another vehicle on a highway has a
statutory and common law duty to allow to the other driver one half of the road
free:  As Hunter J. of this court held in Dagneault v. Interior Roads Ltd.,
[1993] B.C.J. No. 1112 (S.C.) at para. 26:

The driver of a vehicle meeting
another vehicle on a highway has a duty under s. 156(1) of the Motor
Vehicle Act R.S.B.C. 1979, c. 288 and there is a similar duty at
common law, to allow to the other driver one half of the road free; and a
breach of that duty, occasioning damage, will establish a prima facie
case of negligence against such driver, casting upon him the onus of explaining
how the accident may have occurred without negligence. (see Gauthier &
Co. v. R., [1945] S.C.R. 14[3] (S.C.C.)). …

[90]        
The presence of a vehicle in an oncoming traffic lane is prima facie evidence
of negligence.  Consequently, an onus is placed on the operator of that vehicle
to produce an explanation equally consistent with the absence of negligence. 
Here, both parties rely on Gauthier.  The plaintiff also relies on Wagstaff v. Johnston, 2001 BCSC 1375,
and Buksh v. Franco, [1995] B.C.J. No. 1331 (S.C.).

[91]        
A driver who cannot explain his presence on the wrong side of the centre
line is “presumptively at fault”:  See Fuller v. Schaff, 2009 YKSC 23 at
para. 12; Doucet v. Parente (1988), 26 B.C.L.R. (2d) 153 (S.C.).

[92]        
The plaintiff cites Watson v. Monfils, 1999 BCCA 312 as
authority for the proposition that even without crossing the line, a driver may
be at fault for hugging the line in circumstances where that is courting
danger.  In that case, the court  adopted the view expressed by the Supreme Court of Canada in Lotholz v. Charlton, [1969] S.C.R.
692, that:

…it is not reasonable or prudent to hug
the solid line with knowledge that the rig was approaching and might fail in
its duty to stay entirely on its side of the line.

Apportionment

[93]        
The plaintiff says if he is found to have crossed the centre line of the
highway, fault must be apportioned equally pursuant to s. 1(2) of the Negligence
Act, R.S.B.C. 1996, c. 333:

1(1) If by the fault of 2 or more persons
damage or loss is caused to one or more of them, the liability to make good the
damage or loss is in proportion to the degree to which each person was at
fault.

(2) Despite subsection (1), if, having
regard to all the circumstances of the case, it is not possible to establish
different degrees of fault, the liability must be apportioned equally.

(3) Nothing in
this section operates to make a person liable for damage or loss to which the
person’s fault has not contributed.

[94]        
The plaintiff cites Cicuto v. Gardiner, 2007 BCSC 255, as an
instructive example of the application of the rule in a similar case.  A
head-on collision had occurred on a gravel road and the issue was the location
of the impact relative to the centre line.  Mr. Justice Parrett applied
s. 1(2) of the Negligence Act in the following terms, at paras. 60-61:

There is no shortage in the authorities of
these types of accidents on somewhat remote gravel roads where the contest
often centres around who was on which side of an imaginary centre line.  One of
the leading decisions in this area is that of Lord Denning in Baker v.
Market Barborough Industrial Cooperative Society Limited, [1953] 1 W.L.R.
1472.  In his decision Lord Denning drew a distinction between cases in which
the absence of evidence prevented the court from determining fault and that
where the evidence allowed such a finding to be made, noting that:

It is very different from a case where one
or other only is to blame, but clearly not both.  Then the judge ought to make
up his mind between them, as this court said recently in Bray v. Palmer
[1953] 2 All E.R. 1449.  But when both may be to blame, the judge is under no
such compulsion and can cast the blame equally on each.

This decision was considered by Lysyk J. in Quock
v. Merkel, [1987] B.C.J. No. 132.  After quoting from Lord Denning’s
decision, Lysyk J. went on to observe, at p. 5, that:

The Baker decision has been followed and
the above quoted passage from the reasons of Denning L.J. approved in Canada:
see, e.g., Leaman v. Rea (1954) 35 M.P.R. 125 (N.B.S.C., App. Div.) and Wood
v. Thompson (1957) 23 W.W.R. 14 (Man. Q.B.).  Other authority suggests that
the formulation of Denning L.J. may be cast in terms which are too broad but it
is nonetheless recognized that where a collision between two vehicles
travelling in opposite directions on an otherwise empty road is shown to have
occurred in the centre of the road, then in the absence of some satisfactory
explanation it is reasonable to infer that both drivers were to blame: see,
e.g. Vaughan v. Isenor [1955] 2 D.L.R. 403 (N.S.S.C.); Stamp v. The
Queen in the Right of Ontario (1984) 47 O.R. (2d) 214 (Ont. C.A.); and Nesterczuk
v. Mortimore [1965] 115 C.L.R. 140, esp. at 158 (H.C. of Australia).

[95]        
The plaintiff says if the collision was not caused by the action of Mr. Spiers
passing the McKinley vehicle, then both parties must have been traveling close
or at the centre line.  In these circumstances, it is submitted that a greater
degree of fault should not be assigned to one party over another.

Evasive Measures

[96]        
The defendant cites a number of cases describing the duty of care to
take evasive measures.  The defendant says he is asked to answer the allegation
he did not take prompt or effective evasive measures.  In assessing that claim
he asks the court to consider British Columbia (Public Trustee) v. Asleson
(1993), 78 B.C.L.R. (2d) 173 (C.A.), where the Court of Appeal restated the
long established rule that drivers are entitled to assume that other drivers
will obey the rules of the road, and are required to anticipate “only those
follies which according to the teachings of experience commonly occur”.

[97]        
The defendant says the plaintiff created a risk and the defendant was
not obliged to be prepared for an unforeseen emergency.  It is only where the
possibility of danger emerging is sufficiently probable that it is
included in the category of contingencies normally foreseen that caution is
required to be exercised.

Discussion

[98]        
Mr. Spiers caused his tractor-trailer to cross the centreline.  He
is “presumptively at fault”.  The accident in this case happened at night in
the winter on a road with worn markings.  It happened where lighting was
apparently capable of making the lights of oncoming vehicles somewhat difficult
to discern.  There was some snow on the edges of the road making it unclear
where the fog lines marking the outside edge of the marked lanes were.

[99]        
Mr. Spiers’ own evidence makes it clear he was uncertain where the oncoming
lanes were.  He appears to have been mistaken with respect to whether Mr. Hogstead
was approaching the end of a travelled lane on the highway or not.

[100]     Mr. Brown
on cross-examination agreed with the suggestion put to him by defence counsel
that that in the dark, with the faded centre line and some snow, it would be difficult
to tell where an oncoming vehicle was in relation to the centre line.  That is
borne out in the photographs and must have been true for both drivers.

[101]     The witnesses
said that at the accident scene Mr. Spiers stated that he did not know
what he had hit.  I accept that evidence — it is not really disputed by Mr. Spiers
— and find that he did not clearly see and try to avoid the Hogstead vehicle
before impact.  He did not recognize that his vehicle was over the centre line.
That suggests inattention on his part.  Mr. Spiers has failed to
discharge the burden of disproving fault.  He is not faulted for failing to
take evasive measures but, rather, for contributing to the accident that could
have been avoided if either driver had given the other a wide berth.  The
nature of the damage to the vehicles, long and very oblique contact between the
vehicles, is inconsistent with Mr. Spiers’ evidence that the Hogstead
vehicle came into his lane with little warning.  Mr. Spiers himself does
not suggest the angle of its travel was sudden or acute.

[102]     On the
other hand, there is clear evidence Mr. Hogstead’s vehicle also crossed
the centre line, and it was not possible for Mr. Hogstead to offer any
explanation for the failure to keep his vehicle to the right of the centre
line.

[103]     The
defendant rightly says there is no need to establish impairment in this case,
the presumption of fault will do.

[104]     In
allocating degrees of blameworthiness, however, some weight might be attributed
to the plaintiff’s driving contrary to medical advice if I could find that it
was negligent for the plaintiff to drive hours after being told not to do so
and if, and only if, that negligence contributed to the accident.  It has not
been established on a balance of probabilities that Mr. Hogstead was
warned not to drive or that impairment caused or contributed to Mr. Hogstead’s
apparent error.  The blameworthiness of errors that do not contribute to
accidents is not factored into the apportionment analysis.  There being no
other basis upon which to apportion fault I find the liability for the accident
giving rise to this claim should be apportioned equally between the respective
drivers.

[105]     There will
be judgment against the owner of the Spiers vehicle, the numbered company, in
relation to its vicarious liability for the negligence of the driver.

[106]     There are
a number of admissions with respect to the status of the other defendants, but
I have not specifically addressed the liability of parties other than Mr. Spiers
and the owner of the tractor being driven by Mr. Spiers at the time of the
accident.

[SUBMISSIONS]

[107]     With respect
to the question of the liability of other named defendants; with respect to
costs; and with respect to any other matters arising out of the judgment
relating to offers or payments made under insurance plans, or any other matters
that may arise after judgment, you have leave to make further submissions.

[SUBMISSIONS]

[108]     At the
outset of the trial, counsel advised the court it was agreed there would be an
assessment of liability before damages.  I did not take that to mean that the
court assessing liability would be seized with the assessment of the quantum of
damages.  It strikes me as there was no necessity in this to assess the
credibility of Mr. Hogstead or Ms. MacPherson, his committee.  There is
no particular necessity to seize myself of the assessment of the quantum of
damages.  I do not intend to do so unless counsel collectively agree that I
should do so.  If I were to do so, it may affect the timing of the trial.  I am
not certain when I would be available to hear the trial.  If I am not available
to hear it when it is presently set, seizing myself may cause the parties
significant and unnecessary delay.

[109]     If you
wish to make submissions with a view toward having me seize myself of the
assessment of damages, I will consider your submissions.

“P. Willcock J.”

The
Honourable Mr. Justice P. Willcock