IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130930

Docket: M106110

Registry:
Vancouver

Between:

Jacob Theodore
Miller

Plaintiff

And

Emil Anderson
Maintenance Co. Ltd., John Doe
and Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Madam Justice Ballance

Oral Reasons for
Judgment

INTRODUCTION

[1]            
It was mid-morning on Christmas Eve, 2008, when the plaintiff, Jacob
Miller, accompanied by his two dogs, headed out from his home near Hope,
British Columbia to visit his daughter in White Rock.  He drove a Pathfinder
SUV that he had purchased about six months earlier.

[2]            
Mr. Miller’s route took him westbound along Highway 1.  He had
driven that roadway many times and knew it well.  As the highway approaches the
Herrling Island exit, the two westbound lanes gently start to wind in an S‑like
shape, curving first to the left and then to the right, with a slight uphill
grade.  It was in that area that Mr. Miller’s vehicle veered off the road
and collided with the side of a jagged rock face.

[3]            
Mr. Miller claims that a sanding truck owned and operated by an
employee of the defendant, Emil Anderson Maintenance Co. Ltd., or an unknown
vehicle driven by an unknown individual, struck his vehicle and caused him to
lose control and hit the rock face.

[4]            
The defendants say that this was a single‑car accident and that a
sheet of black ice or something other than contact with another vehicle caused Mr. Miller
to leave the roadway and crash.

BACKGROUND

[5]            
Mr. Miller was 73 years old at the time of the incident.  In the
1960s, he served overseas with distinction in both the army and the air force. 
Upon his return to civilian life and while still a young man, he held a number
of jobs where he drove a vehicle as part of his livelihood.  Mr. Miller later
moved from Ontario to British Columbia, where he enjoyed success as an
independent mining prospector, relocating to the Hope area in about 2006.

[6]            
On the morning of the accident, Mr. Miller loaded his Pathfinder
with Christmas presents for his daughter and her family.  The two back seats
were laid flat to provide an open area for his beloved dogs; they were not
tethered inside the vehicle.  The evidence establishes that Mr. Miller’s
Pathfinder was roadworthy and in excellent condition, and that its all‑terrain
tires were practically brand new.  The day was overcast and extremely cold, but
Mr. Miller had no reservations about making the trip based on the weather
or road conditions.  He set out along Highway 1 between approximately 10:30 and
11:00 a.m.

[7]            
Several kilometres before the Herrling Island exit, Mr. Miller
recalled encountering what he initially thought was an extreme sandstorm.  He
noticed that the sand covered the surface of the entire roadway and obscured his
sight line.  He was certain that the material was sand and not snow.  He was
not able to tell whether the sand was being blown into his path from across the
highway or from directly in front of him.  Given those conditions, he says he proceeded
with extreme caution at a speed of about 40 kilometres per hour.

[8]            
Eventually the stream of sand thinned out somewhat, and Mr. Miller
was able to make out the shape of a vehicle driving ahead of him which he determined
was the source of the blasting sand.  He had started off in the right‑hand
lane behind that vehicle and did not recall the left lane being covered in
packed snow.  Although the sand covered the entire highway, including the
pavement markings that divided the two lanes, Mr. Miller believed he was
still travelling in the right lane when the sand dissipated.

[9]            
While following the slow-moving vehicle that was still spewing sand, a
dark-coloured pickup truck roared past him in what Mr. Miller believes was
the left‑hand lane.  The truck was equipped with unusually large off-road
tires, raised suspension, and an extra set of front lights.

[10]        
After travelling “at least a couple of kilometres further”, the cloud of
sand suddenly cleared, enabling Mr. Miller to see the highway and “a big
dirty blob of a vehicle” ahead.  He believed it was a dump truck or something
like that.  Mr. Miller had been driving at a pace of 40 kilometres per
hour for a distance of roughly four kilometres and was eager to pass the truck
and, in his words, “get going”.

[11]        
Seeing no other vehicles around, he pulled out to his left and gradually
began to overtake the truck, now situated on his right, at a speed that he “guesstimated”
as approximately 60 kilometres per hour.  At this juncture, the highway was in
a gradual curve to the left.

[12]        
Mr. Miller was curious about why the truck ahead had been
travelling so slowly and dumping what he considered to be an excessive amount
of sand along the highway, so when he was parallel with the cab of the truck,
he glanced over at it.  He was able to see the driver, who looked young and
somewhat slumped in his seat, looking forward.  He could see that it was an
older vehicle with a dated paint job and rust spots.  He also noticed what
appeared to be an upside down letter “V” on the door of the cab.  Mr. Miller
had seen the same “V” emblem on the local highway maintenance vehicles over the
years.  He testified that when he had cleared past the truck by a distance of
two car lengths at most, he checked his rear-view mirror and saw the truck’s
headlights.  That was the last time he saw the truck.

[13]        
In cross-examination, Mr. Miller was reminded that at his
examination for discovery held some three months earlier, he had answered that
when he saw the truck in his rear-view mirror, he was a distance of “…about two
and a bit, two and a half vehicles.  Two and a half times the length of my
vehicle roughly”.  Mr. Miller said he stood by his estimation of a maximum
of two car lengths.  However, later in his cross-examination and without
further explanation, he described the distance as being two to two and a half
car lengths, which was consistent with his discovery evidence and which I find
was the case.

[14]        
Nearly immediately after seeing the truck in his rear-view mirror, Mr. Miller
noted the presence of sheer black ice covering the entire surface of the road
like a sheet of glass.  He took his foot off the gas which slowed down his
vehicle, but did not apply his brakes, as he understood that would be a
foolhardy manoeuvre on black ice.

[15]        
Mr. Miller gave inconsistent evidence about the position of his
Pathfinder when he encountered the black ice, both in terms of the lane he was
driving in and the distance he was from the truck he had passed.

[16]        
At one point in his direct evidence, Mr. Miller testified that he was in
the right lane, but at another time he said he was only partly in the right
lane, and further still at yet a different time, testified that he had returned
to the left lane when he came upon the black ice and decelerated.  In
cross-examination, Mr. Miller testified that he was in the right lane at
that time.

[17]        
Mr. Miller also claimed that when he removed his foot from the gas, he
was only one and a half to two car lengths in front of the truck.  That
evidence was at odds with the preponderance of Mr. Miller’s other testimony that
I accept to the effect that when he last saw that truck, which was when he
looked at it through his rear-view mirror, he was a distance of two and a half
car lengths ahead of it.

[18]        
In addition to decelerating, Mr. Miller altered his course.  Rather
than following the left curve of his lane, he drove straight ahead, expecting
that because of the leftward curve in the highway, he would end up on the
shoulder of the right lane.  However, things did not unfold as Mr. Miller
had anticipated.  His testimony is that within two or three seconds after
decelerating, and while still on the ice, he felt what he variously characterized
as a “shunt”, “bunt”, or “bump” to his vehicle.  He did not see anything hit
him or hear the sound of an impact, and said he could only “guess why” he felt
the bump.  One of his dogs banged into the back of his seat and the other slid
through the opening between the two front seats and into the dashboard.  Mr. Miller
was not able to control his vehicle as it changed direction and began to move
to the left.  He saw the mountain wall coming upon him fast to his left.

[19]        
The next thing Mr. Miller remembered was being “crumpled up” under his
vehicle’s dashboard.  He believes that he had lost consciousness.  He had to
reach up, not down, to the dashboard to turn off the radio because his vehicle
was upside down.  He recalled little about the goings-on at the scene.  He was
transported by ambulance to the Chilliwack General Hospital and his vehicle was
towed from the site and impounded.

[20]        
In evidence was a copy of the corporate logo of the first named
defendant.  It is comprised of the capital letters “EAM”, depicted in a three‑dimensional
block‑letter style.  The “A” has the most prominent font and sits on a
raised horizontal slab inscribed with the name “Emil Anderson”.  The “A” stands
out from the two other letters and could quite reasonably be described as an
inverted letter “V”.

[21]        
I will turn now to the evidence of Constable Jim Moir about the
accident.  Constable Moir explained that there were icy roads and a lot of snow
in the area that Christmas Eve day.  He had been called from “crash to crash”
because of the weather.  The entry in his notebook described the weather as
cloudy and snowy.

[22]        
Constable Moir was dispatched to the crash site at 12:03 that afternoon
and arrived at some point within the next 42 minutes.  He testified that the
roads approaching the scene were covered with relatively fresh snow.  When he
arrived, he saw Mr. Miller’s vehicle off the road in a ditch or drainage
area that lay between the cliff face and the shoulder of the westbound left
lane of the highway.  He recalled that the vehicle was upside down, pinned
against the rock wall, and facing eastward, back towards the way it had come. 
He confirmed that the incident had occurred where Highway 1 curves to the left
before the Herrling Island exit.

[23]        
Because the ambulance crew was already there, Constable Moir focussed on
public safety concerns and spoke to “many people” at the scene.  He wrote the
names and contact particulars of three of them in his notebook.  In particular,
he made a notation that Dennis Voyer had witnessed the accident and at
approximately 12:45 p.m. recorded Mr. Voyer’s full name, date of birth,
and telephone number.  He recalled speaking with Mr. Voyer at the scene
but did not document and could not recall the specifics of their discussion. 
He did not take any formal statements.

[24]        
One of the individuals Constable Moir spoke to was trying to collect Mr. Miller’s
dogs, and he understood that another person, whom I find was Dennis Voyer,
was supervising traffic.  Based on the information he gathered from the
individuals at the site, including Mr. Voyer, Constable Moir concluded
that the incident was a single-vehicle crash and that no other vehicle had been
involved, which he reported in his traffic report and a separate narrative of
the incident.

[25]        
Dennis Voyer was travelling alone in his pickup truck from his home in
Westbank en route to Vancouver along Highway 1.  His truck was a factory
version equipped with normal tires, was not “lifted” and did not have an extra
set of lights.  The tires were effectively brand new.

[26]        
Mr. Voyer had used the cruise control feature on his truck earlier
in his journey, but disengaged it when he connected onto Highway 1 and noticed
the presence of shiny black ice in the westbound, right-hand lane.  He credibly
recalled that the westbound left lane was covered in snow, and that he elected
to drive in that lane because he considered it safer to do so.

[27]        
His recollection is that there were “not a lot” of vehicles on the
highway between Hope and the accident site.

[28]        
As Mr. Voyer approached the S-curve in the highway, he noticed two
vehicles ahead of him, traveling in the right lane.  One of them was a dark
blue “Jimmy or Jeep‑type” SUV; the other was a white sedan with the body
style of a Crown Victoria.  He testified that he was traveling at a speed of
approximately 100 kilometres per hour and guessed that the speed of the two
vehicles in the right lane was “maybe, give or take” 80 or 90 kilometres per
hour.  He did not recall seeing any blowing sand or snow as he approached the
two vehicles, and believed it was “clear sailing” as he overtook them, while
remaining in the left lane.

[29]        
According to Mr. Voyer, within one to two minutes and while he was
still in the left lane, an SUV that appeared to be the same SUV he had just
overtaken, passed by him in the right lane.  He believes that by that stage his
speed and that of the two other vehicles was approximately 90 kilometres per
hour.

[30]        
He testified that very shortly after the SUV had overtaken him in the
adjacent lane, and when its rear was only half a car length or so ahead, which
corresponded in Mr. Voyer’s mind to about ten or so feet, it began to slide
to the left.  Immediately, Mr. Voyer removed his foot from the gas, which
caused his truck to slow enough to avoid colliding with the left‑veering
SUV.  He watched the SUV slide leftward and in front of his vehicle by a mere
10 feet or less and, when it appeared to be perpendicular to the cliff face
seemed to plow right into it.  According to Mr. Voyer, the SUV then turned
180 degrees and landed on its roof.  In cross-examination, he recalled that he
saw the SUV flip when it was approximately 45 degrees to his left, which he
clarified meant slightly to his front and left.  He further recalled that by
the time the SUV landed on its roof, it was pretty much parallel to his
vehicle.

[31]        
After the accident, Mr. Voyer pulled over onto the right shoulder,
backed up and parked a short distance from the collision.  He said he did not
have to avoid any oncoming traffic in order to do so.  The white sedan pulled
onto the right shoulder behind him.

[32]        
Mr. Voyer credibly testified that, at that time, his pickup, the
SUV and the white sedan were the only vehicles on that part of the highway.  He
did not recall seeing a vehicle come into contact with the SUV at any time
prior to the accident and was particularly adamant that a sanding truck had not
hit it.  Indeed, he testified that he did not recall seeing a sanding truck on
the highway at all that day although, when pressed in cross-examination, he “guessed”
it was possible.

[33]        
Mr. Voyer noticed a dog near the crashed SUV and was concerned that
if it remained on the loose, it might cause another accident.  Despite his
efforts, he was unable to catch it.  Mr. Voyer also saw a person, whom he
believed to be the driver of the white car head to the site to check on the
occupant of the upside‑down SUV.  Other vehicles were now appearing on
the road, and he felt he would be most useful directing traffic.

[34]        
Mr. Voyer recalled speaking to an RCMP officer at the scene, whom
I find was Constable Moir.  He explained what he had seen in relation to
the crash and the officer told him he was free to go.  In all, Mr. Voyer
has spoken about the incident to two RCMP officers, at least two
representatives from the Insurance Corporation of British Columbia, and two or
three lawyers.

[35]        
One of the persons who subsequently questioned Mr. Voyer about the
accident was Chris Drinovz, who was then a summer articled student with the law
firm representing Mr. Miller.  Approximately five months after the
accident, he spoke with Mr. Voyer over the telephone and prepared a
memorandum recording aspects of their conversation.  It was one of the first
times Mr. Drinovz had ever interviewed a witness in a legal proceeding.  The
memorandum was not sent to Mr. Voyer to review.

[36]        
At trial, Mr. Drinovz agreed that his memorandum was not a verbatim
transcript of what Mr. Voyer said and agreed it was difficult at this late
date to parse out the statements that were direct quotations from those that
were not.

[37]        
In closing submissions, Mr. Miller’s counsel contended that there
were striking dissimilarities between Mr. Voyer’s trial testimony and the
contents of the memorandum on key matters.  In my view, Mr. Voyer did not
give dissimilar evidence on the issues identified by Mr. Miller’s counsel
or on any central issues at trial.  In any case, Mr. Voyer was not
cross-examined about what he may have said to the articling student, including
any alleged inconsistencies.  In the end, this evidence did not impugn Mr. Voyer’s
credibility or the reliability of his evidence, nor did it advance Mr. Miller’s
case.

[38]        
The tenor of the cross-examination of Mr. Voyer suggested that
perhaps he had witnessed another accident that happened at a different time and
different place along the highway that day.  Not only did Mr. Voyer’s
testimony persuasively refute that suggestion, Constable Moir’s notes put it
beyond doubt that the incident Mr. Voyer witnessed was the crash involving
Mr. Miller.

[39]        
Mr. Miller’s counsel also questioned Mr. Voyer about whether
it had in fact been his vehicle that bumped into Mr. Miller’s Pathfinder
and caused him to crash.  Mr. Voyer persuasively denied that suggestion.  There
is no cogent evidentiary foundation to support Mr. Miller’s feeble assertion.

[40]        
I will next summarize the events at the Chilliwack General Hospital on
the day of the accident.

[41]        
Dr. Tammy Paulgaard-McKnight was the emergency room physician on
duty at the Chilliwack General Hospital at the time of Mr. Miller’s admission. 
It was a busy day in the E.R.  Dr. Paulgaard-McKnight attended to Mr. Miller’s
intake in emergency.  Under her direction, Mr. Miller underwent a number of
investigations, including an EKG, X-rays, and a CT scan.  She had several
encounters with him and reassessed him a number of times throughout her shift
on December 24^th that ended at 9:00 p.m. that evening.

[42]        
Although the doctor could not independently recall the medical aspects
of Mr. Miller’s case, she did have an independent recollection of him in a
general way, including that the hospital staff had made efforts to find him a
ride home on December 24th, but were not able to do so, as she noticed he
was still there when she returned for her shift on Christmas Day.

[43]        
The evidence establishes that, adhering to her customary practice, Dr. Paulgaard-McKnight
made notes of her discussions and observations with Mr. Miller throughout
the course of her interaction with him and then dictated her notes at about
9:35 p.m. that evening.  Her dictated notes were admitted into evidence for a
non‑hearsay purpose, and she was cross-examined about the source of
certain of its contents.  She clarified that some of the information she
recorded would have come from Mr. Miller, other pieces would likely have come
from the ambulance crew, and that she could not be sure of the source of other
entries.

[44]        
In Mr. Miller’s hospital chart, Dr. Paulgaard-McKnight
recorded that he was alert and oriented as to person, place, time and events of
the day.  She also noted that he scored 15 on the Glasgow Coma Scale administered
to assess his level of consciousness, and testified it remained at that level
throughout his stay.  Dr. Paulgaard‑McKnight could not be sure
whether she had assessed Mr. Miller’s orientation and consciousness or a
paramedic had done so at the scene and relayed the findings to her.

[45]        
Dr. Paulgaard‑McKnight explained that her usual practice is
to ask a conscious patient about the mechanics of the injury upon presentation
at the hospital.  She expanded that she would typically ask simple questions
such as “what happened?”; “how fast were you going?”; “did your airbags deploy?”;
and “were you wearing your seat belt?”  Her reasons for doing so are twofold; first,
to assess the nature and seriousness of the impact; and second, to determine whether
the patient lost consciousness and assess for pre and/or post-traumatic amnesia. 
I am satisfied Dr. Paulgaard-McKnight followed this protocol with
Mr. Miller that day.  That said, in her role as an emergency physician the
details of the accident are, understandably, not among her chief interests.

[46]        
Dr. Paulgaard-McKnight summarized the incident in Mr. Miller’s
hospital chart as follows:

HISTORY OF PRESENT ILLNESS

[Mr. Miller] presented to the emergency room following a
single vehicle rollover accident.  Currently, according to [Mr. Miller],
he lost control while going 50 to 60 kilometers an hour.  He hit an embankment
of snow and rolled what [emergency medical services] estimated to be 2 times.  The
vehicle then ended up on its roof.  He was restrained at the time of the
accident and there were no airbags that were deployed.  The patient denies any
loss of consciousness.  He remembers the accident from start to finish.

Following the accident, he was
hanging upside down in the vehicle by his seatbelt and he released himself from
the seatbelt.  He was found lying on what would be the roof of the vehicle and
was extricated by [emergency medical services].

[47]        
Based on my assessment of Dr. Paulgaard-McKnight’s testimony,
I find that the only statements comprising the above extract that can be
reliably attributed to Mr. Miller are these ones:

(1)         
he lost control while going 50 to 60 kilometres an hour;

(2)         
he was restrained by his seatbelt at the time of the accident;

(3)         
he denied any loss of consciousness and said he remembered the accident
from start to finish; and

(4)         
he was hanging upside down in the vehicle by his seat belt and released
himself from the seat belt.

[48]        
Dr. Paulgaard-McKnight does not recall asking Mr. Miller what had
happened that caused him to lose control of his vehicle.  I accept her
evidence that Mr. Miller did not mention to her the involvement of another
vehicle.  Even so, the evidence does not satisfy me that Mr. Miller was
the one who described the incident to Dr. Paulgaard-McKnight as a “single vehicle
rollover” as reflected in the hospital chart.

[49]        
Constable Moir saw Mr. Miller at the hospital on Christmas Day and
provided an update on the recovery of his dogs and gave him a copy of the
accident report.  At that time, Mr. Miller told him that he thought that
an Emil Anderson truck had come into contact with his vehicle and had caused
him to go off the road.  Mr. Miller says he was in excruciating pain and
receiving pain medication and was essentially “out of it” before his discharge
from the hospital.  He claims to remember little of his conversation with
Constable Moir beyond speaking to him about his dogs.  I find that is likely.

[50]        
 No one else whom Constable Moir had interviewed about the accident had
mentioned the involvement of another vehicle.  Because Mr. Miller’s
version was inconsistent with the information the constable had gathered from
others at the scene, including, I find, the information from Mr. Voyer,
Constable Moir decided not to investigate the incident any further.

[51]        
At various times after the accident, Mr. Miller returned to the
scene to take photographs of the area and, for reasons he did not completely
understand himself, to mark with spray paint the date of the incident on the
rock face near where it had occurred.

[52]        
Exhibited at trial was a collection of photographs of Mr. Miller’s
vehicle taken after the accident.  Some were taken at the impound yard where
his vehicle had been towed, and others after it was released from those
premises and returned to his home.

[53]        
The photographs taken at the impound yard show the badly crumpled hood
of Mr. Miller’s Pathfinder and extensive damage to substantially all of the
front area of the driver’s side.  They also document a significant indentation
on the rear tailgate, damage to the rear bumper and a missing back window.

[54]        
Constable Moir did not take photographs at the scene and did not form an
impression about where the main point of impact may have occurred when the
Pathfinder struck the sheer rock.  He was shown certain of the photographs in
evidence, including the one that showed an indentation on the Pathfinder’s back
tailgate.  He remembered that the back window of the vehicle had been “punched
out” at the scene, but was not able to recall whether the rear indentation as shown
in the photograph was present at that time.  Because he concluded it had been a
single-car accident, Constable Moir had not examined the rear of the Pathfinder
to determine how the accident might have happened.

[55]        
I accept Mr. Miller’s evidence that the damage to the body of
his Pathfinder depicted in the photographs taken while it was impounded was not
present before the accident.  Even so, the photographs in evidence had little probative
value relative to the determination of the central issue, namely whether
another vehicle was involved in the accident.  The damage to the rear of Mr.
Miller’s vehicle could have been sustained by contact by another vehicle or as
a result of the violent collision with the rock face and vehicle roll-over.

[56]        
 Mr. Miller testified that not long after the accident, he by
chance, passed the very truck that had struck him.  It was parked on the
highway near a turn off close to his home.  Although the truck was much cleaner
than it had been at the time of the accident, Mr. Miller says that he
recognized it in part by the rust spots covering it, and its age.  At the time,
Mr. Miller had not recuperated from his injuries and was being driven by a
friend.  He wanted to take a photograph of the truck, but felt too weak to lift
the camera by himself.  He claims that his friend refused to take him back to
the place where he had seen the truck or assist him otherwise.  Mr. Miller
took no steps thereafter to follow up on his own or enlist the help of anyone
else.  His evidence on this point strikes me as highly implausible and I do not
accept it.

ANALYSIS

[57]        
Mr. Miller’s primary submissions are that given the existence of
the slippery conditions and the left-turning curve in the highway where his
Pathfinder lost control, his vehicle could not have left the roadway and been propelled
into the rock face without the external forces of another vehicle.  He submits
that a vehicle in a left corner with minimal friction that is losing control on
ice will move to the right.  In other words, says Mr. Miller’s counsel, as
the Pathfinder was in a left corner, the only thing preventing it from moving
to the right was the friction of its tires on the road surface.  He theorizes
that as the friction is lost due to the ice, the vehicle will move toward the
right and cannot move to the left without something causing it to do so i.e. an
external force altering its path.  Although Mr. Miller’s counsel
acknowledged that an adjustment of the steering input could have caused the
Pathfinder to move to the left, he contends that the evidence points to the
right lane being covered in black ice.

[58]        
Mr. Miller called no expert evidence to support the foregoing
submissions of his counsel.  In my view, the findings urged by Mr. Miller
in this regard are not a matter of common sense.  They fall well outside
ordinary knowledge and experience, and are within the realm of the specialized
knowledge of an expert.  In my opinion, the Court cannot endorse the hypothesis
advocated by Mr. Miller in the absence of expert evidence in the field of
engineering and/or accident reconstruction.  None was adduced.

[59]        
Mr. Miller’s credibility and reliability are pivotal in determining
whether another vehicle was involved in this accident.  The assessment is not a
purely intellectual exercise, and is more an art than it is a science, and the
factors can be challenging to verbalize: R. v. R.E.M., 2008 SCC 51
at para. 49.

[60]        
I accept the evidence of Constable Moir and Mr. Voyer to the effect
that the left‑hand westbound lane was covered in snow along its approach
from the east to the place of the accident.  The fact that Mr. Miller does
not recall that is a small point, but is not irrelevant.  It is one of a number
of frailties in his evidence that cumulatively served to diminish its reliability. 
Far more damaging to Mr. Miller’s reliability are the contradictions in
his testimony about the lane he was travelling in after he passed what he believed
was a sanding truck, and the distance between his Pathfinder and the sanding
truck at the time he encountered the black ice, decelerated and felt a “bump”.  I have
already detailed those.  They are not minor matters.  Rather, they are discrepancies
of significance on central issues and call into question the degree of
confidence the Court can safely place on Mr. Miller’s testimony as it concerns
the pivotal events leading up to his loss of control of his vehicle that day.

[61]        
In cross-examination, Mr. Miller was asked whether he has always
recalled how the accident happened or whether he had pieced it together afterwards. 
He replied that the basics of what happened have always been clear in his mind,
but “guessed” that more details “came back later”.  He was not asked to and did
not elaborate on what he considered to be the basics of the accident in
comparison to its details.

[62]        
Based on this evidence and in light of the internal inconsistencies in
his own testimony on key points, I have concluded that Mr. Miller’s
recounting of the material circumstances in play just before the accident are
faulty and are probably based in part on his actual memory and in part on his
subsequent reconstruction of what happened, in a way that makes sense to him, but
does not necessarily accord with reality.  In my opinion, Mr. Miller’s
memory and perception of the key events preceding his loss of control on the highway
are simply not reliable.

[63]        
Moreover and in any event, I accept Mr. Voyer’s version of the
circumstances surrounding Mr. Miller’s loss of control of his Pathfinder
and the manner in which it left the highway.  Mr. Voyer was an independent
witness to the incident.  He gave his evidence in a straightforward manner
without a tendency to embellish or exaggerate, and I consider him to be a
thoroughly credible witness.

[64]        
That said, his evidence did suffer from some shortcomings.  For example,
he was not able to pinpoint the exact spot along the highway the accident had
occurred, other than to say it was where the highway curved to the left, nor
could he say the precise time of day it had taken place.  Recalling that stopping
after the accident had caused him to be very late to arrive at his planned
destination, he believed the accident may have taken place in the early evening. 
He was clearly mistaken about that.  Nothing, however, turns on his lack of
recall on those points.  Nor am I confident in the accuracy of his
testimony about where the Pathfinder was in relation to his vehicle when it
smashed into the rock face and turned upside down.  The positioning of the two
vehicles in relation to one another as recalled by Mr. Voyer seems
unlikely.  The probabilities of the situation make it far more likely that, by
the time Mr. Miller’s vehicle had slid off the road and crashed at Mr. Voyer’s
left, Mr. Voyer had driven past the point of impact, and had observed the
collision by looking behind him on his left or through the driver’s side
mirror.

[65]        
Again, those deficiencies in Mr. Voyer’s evidence do not detract
from his testimony on the key issues.  Nor do any of the noted shortcomings have
the effect of tainting his credibility as a witness at large or weakening the
reliability of his evidence on the central matters that persuasively support
the finding there was simply no other vehicle involved in this incident.

[66]        
Contrary to the submissions made by Mr. Miller’s counsel, Mr. Voyer
was unshaken on cross-examination on the material issues, and I prefer his
evidence over Mr. Miller’s on every point of divergence.

[67]        
It is not necessary for me to decide what it was that might have caused Mr. Miller
to slide across the highway and collide with the rock face.  I have
concluded that what it was not was contact with another vehicle.  That
said, the probabilities of the whole of the evidence support the inference that
the black ice on that curved stretch of highway was the likely culprit.

[68]        
During his testimony, Mr. Miller repeatedly made mention of the
injuries and the pain he has suffered as a result of the accident.  While
I cannot help but have sympathy for his plight, the onus is on him to
prove his case on a balance of probabilities and he has failed to do so.

[69]        
Accordingly, Mr. Miller’s claim is dismissed.

[Discussion among counsel and the Court regarding
the filing of submissions on costs].

“Ballance J.”