IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20130802

Docket: 1139855

Registry:
Prince George

Between:

Vanessa Harris

Plaintiff

And

Mario Niro and
Myrna Niro

Defendants

Before:
The Honourable Mr. Justice R.S. Tindale

Reasons for Judgment

INTRODUCTION

[1]            
The issue in this trial is the assessment of liability for a motor
vehicle accident which occurred on March 11, 2011 on Bellamy Road in the City
of Prince George.

[2]            
The circumstances of this accident are quite simple. At the time of the
collision the plaintiff was driving her 2005 Dodge SX vehicle southbound on
Bellamy Road and the defendant Myrna Niro was driving her 2003 Dodge Ram 3500
SLT long bed pickup truck with extended cab and dual rear tires northbound on
Bellamy Road. This was a low speed collision where the roadway was completely
covered in snow and ice. The front driver’s side of the plaintiff’s vehicle
came into contact with the rear driver’s side wheel of the defendants’ vehicle.

THE EVIDENCE

[3]            
 The plaintiff, Vanessa Harris, testified that on March 11, 2011 she was
driving her car on Bellamy Road at approximately 5:45 p.m. At the time she had
a valid driver’s license with no restrictions and had been driving for
approximately eight years. She testified that her vehicle was in good condition
and had studded winter tires.

[4]            
The plaintiff testified that at the time of the accident it was
overcast, not dark but not daylight. The road surface was snow-covered and
somewhat icy. There were snow banks that were 8 to 10 feet high on the sides of
the road.

[5]            
The plaintiff testified that she had driven approximately ½ km on
Bellamy Road before the accident occurred. She described the accident site as
being a straight stretch of road followed by a right hand corner. The accident
occurred in the corner.

[6]            
She said that she was driving at 20 km/h when she saw the defendants’
pickup truck driving towards her in her lane. She said that she moved over to
the right and fully compressed her brakes. She said that as she was stopping
the defendants’ truck collided with the front of her car. She later clarified
her evidence to say that she slowed to about 10 or 15 km/h then came to a stop
before the collision.

[7]            
The plaintiff testified that she was approximately one foot or less away
from the snow bank on her right hand side.

[8]            
The plaintiff said that when she saw the defendants’ truck they were
driving slowly; probably about the same speed as she was driving. She also said
that she could tell the defendants were trying to move their truck over to the
right.

[9]            
The plaintiff testified that when she got out of the vehicle she was accused
by the defendants of being reckless and driving too fast for road conditions.
She called the police and a tow truck driver from her cell phone.

[10]        
The next witness called for the plaintiff was Chris Cherry. He was the
tow truck driver that attended the accident scene. He was driving an F-450 dual
wheel tow truck.

[11]        
Mr. Cherry said that the plaintiff’s car was in her lane. He noted that
the defendants’ truck was a bit farther up, perhaps two to three car lengths
from the plaintiff’s car on the right-hand side of the road.

[12]        
Mr. Cherry testified that he drove in the northbound lane past the
plaintiff’s car to get into position to tow her car. He said that his tow truck
was longer than the defendants’ pickup truck though they were the same width.

[13]        
Mr. Cherry, during cross-examination, said that the plaintiff’s car was
not snug up against the snow bank on her passenger side. He said that he could
definitely walk around her car on the passenger side and that it was more than
a foot from the snow bank.

[14]        
The plaintiff also called an expert witness by the name of Gerald
Sdoutz. I qualified him as an expert in accident reconstruction. His expert
report was marked as Exhibit 5 in these proceedings. Mr. Sdoutz, in his report,
concluded the following:

1.         The Dodge SX was most probably moving extremely
slowly or stopped, within the southbound travelled portion of the roadway when
the collision occurred.

2.         The Dodge pickup was
proceeding northbound at a slight angle to the east from partially within the
southbound lane into the northbound travelled portion of the roadway when the
collision occurred.

[15]        
Mr. Sdoutz, in coming to his conclusions, relied on three photographs of
the scene showing the vehicles at their rest positions and the associated
damage to the vehicles. He also relied on 8 digital photographs of the scene
which were taken sometime after the collision showing the roadway at the scene.
Finally, he relied on an aerial photograph of the City of Prince George showing
the overall roadway geometry at the scene.

[16]        
 Mr. Sdoutz, in part, based his conclusions on his observations of
debris seen behind the defendants’ pickup truck in figure B-2 of his report. He
opined that if the truck was stationary at the time of the collision there was
no way for the debris to travel around and behind the back tire.

[17]        
On cross-examination Mr. Sdoutz conceded that debris might be held up
alongside the defendants’ pickup truck’s tire and then released as the
plaintiff’s car went by. He did not agree in these circumstances that debris
would only be spread behind the truck tire and not alongside it.

[18]        
The next witness for the plaintiff was her mother, Bonnie Harris. She
testified that she came to the accident scene after the collision had occurred.
She said that the plaintiff’s vehicle was on the left-hand side of the road
closest to the snow bank. She also testified that when she arrived the
defendants’ truck was closer to the middle of the road.

[19]        
Mrs. Harris also testified that she spoke with the defendants at the
accident scene. She denied having any discussion with the defendants about
paying for the damage to their vehicle.

[20]        
On cross-examination Mrs. Harris denied that the defendants’ truck was
up against the snow bank. She also stated on cross-examination that she did not
see anyone move the defendants’ truck.

[21]        
That was the case for the plaintiff.

[22]        
The defendant, Myrna Niro, testified that she drove the Dodge pickup
truck involved in the accident on a regular basis. On March 11, 2011 she was
driving the pickup truck with her husband in the passenger seat. They were
going to her daughter Crystal Niro’s house on Bellamy Road for dinner.

[23]        
She testified that she did not drive over 20 km/h on Bellamy Road and
that she kept in her right hand lane. She testified that as they drove around
the first corner on Bellamy Road she noticed a light-colored car that took a
wide turn and the car was in her lane. She felt the car was coming fast for the
road conditions.

[24]        
She testified that she then turned to the right and headed for the snow
bank and that she was going very slowly. She said that her truck went two feet
into the snow bank and that she was stopped when the collision occurred.

[25]        
She testified that her husband tried to get out of the passenger side of
the vehicle but it was very difficult because his door was wedged up against
the snow bank.  He eventually made his way out of the vehicle on the passenger
side and had to walk through the snow to the road.

[26]        
Myrna Niro testified that the driver of the car was emotionally upset
when she exited the vehicle. She said that the plaintiff was laying over top of
her car and crying and said ‘sorry’ three or four times.

[27]        
Myrna Niro testified that her daughter and son-in-law came to the
accident scene for a brief period of time. She says that she had a discussion
with the plaintiff’s mother in which the plaintiff’s mother proposed that they
would pay for the damage to keep her daughter’s driving record clean.

[28]        
On cross-examination it became clear that Myrna Niro was adamant that
this accident was not her fault and she was prepared to do anything to try to
prove this.

[29]        
The defendant, Mario Niro, testified that he was in the passenger seat
of the vehicle at the time of the collision.

[30]        
He said that prior to the accident on Bellamy Road they were traveling
at 12 km/h. He said that when he noticed the plaintiff’s car it was about two
feet into their lane and was gradually sliding over. He also testified that they
were in the snow bank for five to six seconds before the collision occurred.

[31]        
Mr. Niro also testified that during the collision the plaintiff’s
vehicle was four feet into their lane.

[32]        
He also testified that after he exited the vehicle the plaintiff told
him that she was sorry and that she could not help it as she could not move her
car over in time to avoid the collision.

[33]        
The next witness for the defendants was John MacDonald. He testified
that at the time of the accident he lived at 3282 Bellamy Road. He testified
that on March 11, 2011 at about 5:30 p.m. he was driving home and he was about
to turn into his driveway when he saw an accident approximately two houses down
from his house.

[34]        
Mr. MacDonald noted a gray car in the middle of the road and a truck in
the snow bank. He also testified that there was enough room for another smaller
vehicle to pass by the gray car on the passenger side of that car.

[35]        
The next witness for the defendants was Glen Dresen. On March 11, 2011
he resided at 3316 Bellamy Rd. He said that he was watching television and
heard a loud crash in front of his house. Approximately one minute after he
heard the noise he looked out of his front window and saw a small Dodge car
which was facing south and a full-size Dodge pickup truck which was facing north.

[36]        
Mr. Dresen testified that the car was sitting in the middle of the road
facing south. On cross-examination he said that the car was very close to the
middle of the road.

[37]        
He testified that the pickup truck was actually blocking part of his
driveway.

[38]        
He also testified that he did not see a young woman lying on the roof of
her vehicle crying when he looked out of his window.

[39]        
The next witness called for the defendants was Crystal Niro, the
defendants’ daughter. She testified that the plaintiff’s car appeared to be
well over the center of the road. She estimated that there were four or five
feet between the passenger side of the plaintiff’s car and the snow bank.

[40]        
On cross-examination she could not say how far across the centerline the
plaintiff’s car was, however, she did say it was obvious that the plaintiff’s
car was on the wrong side of the road.

[41]        
The defendants called Jonathan Gough an expert in accident
reconstruction. His report was marked as Exhibit 6 in this trial. Mr. Gough
opined to the following:

. . . there is insufficient
physical evidence to determine whether one of the two vehicles or possibly both
were in motion at the point of impact or where the collision occurred relative
to the road centre.

[42]        
Mr. Gough says the following with regard to Mr. Sdoutz’ assumption that
the Dodge SX was oriented within the travelled south bound portion of the
snow-covered roadway:

The photographs clearly show that
the Harris Dodge SX was on the travelled portion of the roadway, however, since
the roadway is covered in snow, no conclusion can be reached with respect to
whether the vehicle was on the northbound or southbound side of the roadway or
whether it was straddling the road centre. The post collision photographs
reveal that there was no centerline on the subject roadway. One of the scene
photographs clearly shows that there was open space on the right side of the
Harris Dodge SX, but the field of view of the photograph is not sufficient to
reveal where the Dodge SX was relative to the west side of the roadway.

[43]        
Mr. Gough also opined that the damage to the vehicles, in particular the
Harris Dodge SX, could have occurred when the vehicles separated. Mr. Gough
further opines that the nature of the damage to the vehicles does not
necessarily indicate that the defendants’ Dodge pickup was moving laterally
with respect to the plaintiff’s vehicle.

[44]        
Finally, Mr. Gough opined that there is nothing to indicate whether the
collision was nearer one end of the debris path or the other.

[45]        
That was the case for the defendants.

POSITION OF THE PARTIES

[46]        
The plaintiff argues that the defendant Myrna Niro’s testimony was not
credible or reliable. In addition, she argues that her evidence should be
accepted.

[47]        
The plaintiff argues that she stopped her vehicle in her own lane and
the defendants thereafter struck her with their vehicle. In particular, the
plaintiff argues that her evidence "harmonizes with the independent
evidence".

[48]        
The plaintiff also argues that the expert evidence of Mr. Sdoutz should
be accepted over that of the defendants’ expert Mr. Gough.

[49]        
Finally, the plaintiff argues that the defendant Myrna Niro failed to
exercise the standard of care required by a reasonably careful driver in the
circumstances and that Mario Niro is vicariously liable by virtue of section 86
of the Motor Vehicle Act, RSBC 1996, c. 318 (the Act). The
plaintiff says that the defendants are 100% liable for the motor vehicle
accident of March 11, 2011.

[50]        
The defendants argue that their evidence and the evidence of their
witnesses should be preferred over the evidence of the plaintiff.

[51]        
The defendants also argues that the expert evidence of Mr. Gough should
be accepted as there is insufficient physical evidence to determine if one or
both vehicles were in motion at the time of impact and where the collision
occurred relative to the road center.

[52]        
The defendants argue that Myrna Niro acted reasonably in all the
circumstances by slowing her vehicle and driving it into the snow bank. The
defendants say that the plaintiff’s action against them should be dismissed.

ANALYSIS

[53]        
The applicable sections of the Act are 144 and 150.

[54]        
Section 144 of the Act states:

(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.

[55]        
Section 150 of the Act states:

(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 practical to do so,…

(2)        The driver of a vehicle
proceeding at less than normal speed of traffic at the time and place and under
the conditions then existing must drive the vehicle in the right hand lane then
available for traffic, or as closely as practicable to the right-hand curb or
edge of the roadway, except when overtaking and passing a vehicle proceeding in
the same direction, or when preparing for a left hand turn at an intersection
or into a private road or driveway.

[56]        
Driving in winter conditions can be challenging and dangerous. In this
case the evidence is clear that the roadway was covered in compact snow and
ice. An examination of the pictures related to this case reveals that there
were large snow banks on the right-hand side of the northbound lane of Bellamy
Road. These snow banks appear to be encroaching into the northbound lane. The
pictures do not give a view of the right-hand side of the southbound lane of
Bellamy Road.

[57]        
The street lines are not visible on Bellamy Road because of the snow.
The pictures only show the damage to the two vehicles involved in the collision
and their positions relative to one another. The pictures do not give a
perspective as to where the vehicles were located on Bellamy Road.

[58]        
I have had an opportunity to closely examine the photographs of the
accident scene which were used by both experts in coming to their conclusions.
Upon review of the photographs there is no evidence as to where the road
markings were. There is also no way to determine where the travelled portion of
the road was given the road conditions that existed at the time of the
accident.

[59]        
I agree with Mr. Gough that there is insufficient physical evidence to
determine where the collision occurred relative to the road centre.

[60]        
Also because of the poor quality of the photographs it is not clear
whether the two items of frozen debris that Mr. Sdoutz concluded came from the
plaintiff’s vehicle were in fact from that vehicle or had already been on the
road prior to the collision.

[61]        
Mr. Sdoutz also concludes that the plaintiff vehicle was probably moving
extremely slowly or stopped when the collision occurred. He bases this
conclusion on skid marks leading to the plaintiff’s rear tires. From that he
concludes that the plaintiff must have applied her brakes maximally prior to
the collision. Again there is disagreement between the experts as to whose skid
marks these were; that is to say, were they there prior to the collision. Upon
examination of the photographs it is not clear to me which vehicle created the skid
marks or even where the skid marks appear on the photographs.

[62]        
I agree with the conclusion of Mr. Gough that it cannot be determined on
the physical evidence whether one of the two vehicles or possibly both was in
motion at the point of impact.

[63]        
The expert evidence in this case is of little assistance in determining
liability for this accident.

[64]        
I will now turn to the evidence of the lay witnesses and parties in this
matter.

[65]        
I have considerable difficulty in accepting the evidence of the
defendant Myrna Niro because she contradicted herself on statements she gave
after the accident, at her examination for discovery and at trial. She was also
very clear in agreeing that she would do anything to prove that she was not at
fault for this accident and in my view was very "sloppy" in her
evidence. She did not seem to appreciate the need to be concise with regard to
the details of the collision.

[66]        
 I do not accept either of the defendants’ evidence that the plaintiff
admitted liability for this accident after it occurred and that the plaintiff
threw herself on her vehicle and was emotionally distraught. I do not accept
their evidence because I prefer the evidence of the plaintiff and her mother
Bonnie Harris as well as the evidence of the independent witness Mr. Dresen on
that point.

[67]        
Despite the fact that I have considerable difficulty in accepting the
evidence of the defendants as to what occurred after the collision I do not
have the same difficulty with regard to the defendants’ version of the
collision itself. This is because there are independent witnesses who
corroborate their version of events.

[68]        
The defendants’ evidence that their vehicle was in the snow bank at the
time of the collision was corroborated by Mr. Mac Donald, who testified that he
saw a truck in the snow bank near his driveway and by Mr. Dresen who said that
the truck was actually blocking part of his driveway.

[69]        
The plaintiff is clearly mistaken with regard to where her vehicle was
located on the roadway. She testified that there was approximately one foot or
less between the passenger side of her vehicle and the edge of the road. This
is inconsistent with the evidence of her own witness Mr. Cherry as well as the
evidence of Mr. MacDonald. Mr. MacDonald was clear that there was enough room
on the plaintiff’s passenger side for another small car to pass by.

[70]        
I find that the plaintiff had room to move her vehicle to the right in
order to avoid this collision. I also find, based on the evidence, that she was
partially in the northbound travelled portion of Bellamy Road when the
collision occurred.

[71]        
I find that the defendants’ vehicle at the time of the collision was as
far to the right in the travelled portion of the road as it could go, which
included driving their vehicle into the snow bank. There is not sufficient
evidence in this case to come to any conclusion as to whether the defendants
could have stopped their truck in an effort to avoid the collision.

[72]        
Based on the evidence as a whole the only conclusion I can come to with
regard to the plaintiff’s speed at the time of the collision is that she slowed
her vehicle prior to the collision.

CONCLUSION

[73]        
The plaintiff did not confine her vehicle to the right-hand side of the travelled
portion of the roadway as required by section 150 of the Act and thereby
created a hazard on the road. She was also driving without due care and
attention as required by section 144 of the Act as she did not perceive
the hazard that she created by driving partially in the northbound travelled
portion of Bellamy Road.

[74]        
The onus is on the plaintiff to establish fault with regard to the
actions of the defendants. In this case there is independent evidence to
corroborate the fact that the defendants’ vehicle took evasive action to try to
avoid the collision. There is not sufficient evidence to find any fault on the
part of the defendants.

[75]        
The plaintiff’s claim against the defendants is dismissed.

[76]        
The parties are at liberty to address me with regard to costs.

“R. S. Tindale, J.”