IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140422

Docket: M108219

Registry:
New Westminster

Between:

David Cameron
Biggs

Plaintiff

And

John
Doe, Richard Roe, and Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Bernard

Reasons for Judgment

A.       Overview

[1]            
On April 30, 2006, David Biggs was seriously injured in a motor vehicle
collision on Highway 3, just east of exit 173, near Hope, B.C. The collision
occurred when a motorcycle operated by Mr. Biggs collided with the pup
trailer of a dump truck driven by Kevin Dueck. The vehicles collided shortly
after Mr. Biggs entered the highway from an eastbound on-ramp, when he
came into contact with the right front portion of the pup trailer as Mr. Dueck
drove eastward in the far left lane (the “fast lane”) of three eastbound lanes.
At this point along the highway there are two “through” lanes and one merging
lane, several kilometres long, to the far right. This section of Highway 3 is
virtually straight with a very slight ascending grade for eastbound traffic.
The speed limit is 100 km/h. There were no adverse weather or road conditions
at the time of the collision.

[2]            
At the time of contact the dump truck was travelling at highway speed.
Not surprisingly, immediately upon contact Mr. Biggs and his motorcycle
went down and Mr. Biggs was separated from his motorcycle. The motorcycle
came to rest approximately 100 feet ahead. Mr. Biggs remained conscious in
the aftermath and was removed from the scene by ambulance. He sustained many
injuries; the most significant among them was severe damage to his left leg
which resulted in its surgical amputation above the knee.

[3]            
Mr. Biggs contends that the cause of the collision was an unknown
car driver who struck his motorcycle from behind, in the on-ramp lane. This
rear impact forced him into the rear of a vehicle directly ahead of him, and
that impact caused him to lose control of his motorcycle and cross the slow
lane into the wheel of the pup trailer of the dump truck travelling in the fast
lane.

[4]            
Mr. Biggs, personally, is able to say very little about the alleged
rear impact; thus, his case rests principally upon: (a) statements of an
alleged eye-witness whose identity remains unknown and who did not testify at
the trial; and, (b) accident reconstruction evidence. The defence challenges the
former as inadmissible hearsay, and the latter as bolstering a theory
unsupported by the real and testimonial evidence.

[5]            
The essence of the defendant’s position is that the plaintiff has failed
to establish that he was struck from behind by an unknown driver; rather, the
evidence shows that the likely cause of the collision was Mr. Biggs’
failure to see that the dump truck was towing a pup trailer when he moved in
behind the dump truck to pass a blue car directly ahead of him in the slow
lane.

[6]            
Proof of liability of the unknown driver is the central issue for
resolution.

B.       Evidentiary Synopsis

[7]            
David Biggs is a 59-year old, married man. He and his wife run a foster
home in Vancouver, B.C. He has a recreational property near Hope, B.C. where he
and his wife spent the April 29/30, 2006 weekend. Mr. Biggs has been a
motorcyclist for most of his adult life. In the morning of April 30, he decided
to take a solo ride on his 2005 Yamaha motorcycle.

[8]            
Mr. Biggs recalls fueling up at a gas station before riding eastbound
along the Hope-Princeton Highway. To access the highway he took an underpass
and stopped at an intersection controlled by a traffic light. He testified that
he cannot recall if there were vehicles ahead of, or behind, him at this stop. He
has a memory of riding along the on-ramp to the highway. The graphic synopsis
of the events thereafter, as he recalls them, is as follows:

All of a sudden I had a sensation
of being hit from behind and thrust forward and then out into the centre lane.
I was thinking ‘holy smokes, I think my bike’s had it but I’m okay’. The next
thing I recall is a big explosion, and then lying on the ground and looking
around. I was on my left side. The pain was so bad I felt that I was on fire. I
had a full face helmet on with the visor down. I felt I couldn’t breathe. I
asked someone to take my helmet off. I recall this person saying ‘I can’t take
your helmet off – you might have a neck injury’. I lifted my neck up and said I
think my neck is okay – get it off me, I feel like I’m on fire. My helmet was
removed but I couldn’t breathe. I kept trying to sit up. I said I still feel
like I’m on fire, so someone cut my jacket off. I was trying to assess how hurt
I was. I could see my foot hanging over my right shoulder. I couldn’t see anything
where my leg used to be. All I could see was blood pouring down the highway and
I thought ‘I’m not going to get out of here’. A woman asked my name. I was
hyperventilating. I asked her to phone my wife because I thought I wasn’t going
to live. The woman tried to call my wife two times but couldn’t reach her. I
said she must be vacuuming, so she can’t hear the phone. I was lying on the
road and all of a sudden the light from my peripheral vision started closing in
to a pinpoint and I could hear a noise decreasing in volume. I screamed just
before the light disappeared and then the light opened up, again. I think I did
this three-to-four times. I remember hearing sirens and I thought ‘thank god –
I can’t wait – get me out of here’. Hope Search and Rescue had already arrived
and one kept saying ‘look into my eyes’. I ask for morphine – the pain was
horrendous. He put a plastic mask over my mouth and told me to take deep
breaths, but I couldn’t take deep breaths. The ambulance attendants arrived and
stood nearby and I wondered why they weren’t taking me away. Then they brought
a stiff board and I breathed nitrous oxide and was loaded on to a board and
into the ambulance. I recall a siren on the way to hospital. I next remember
lying in bed with my foot still over my shoulder…

[9]            
Mr. Biggs said that he later learned that he was in an induced coma
from May 1 to May 22, 2006, and that he was in critical care thereafter
until May 26, 2006 when he was moved to a regular ward.

[10]        
On June 2, 2006, Mr. Biggs gave a statement to his lawyer. On June
25, 2006, he was discharged from hospital.

[11]        
In cross-examination, Mr. Biggs agreed that his first claimed
recollection of being hit from behind was not until the fall or early winter of
2006. He said that this memory was triggered by a conversation with a Mr. Lasser,
and that prior to it he could only recall that he had been forced into the side
of the truck.

[12]        
In relation to the period just prior to the collision, Mr. Biggs
agreed that he had no memory of: (a) stopping at the traffic light; (b) the
vehicles behind and ahead of him as he rode along the on-ramp; (c) his speed or
the speeds of other vehicles on the on-ramp; (d) the dump truck driven by Mr. Dueck;
and, (e) a truck with a “fifth wheel” ahead of him on the on-ramp.

[13]        
Mr. Biggs agreed that at his Examination for Discovery in February
2009 he said that he thought some of his recall may have come from subsequent
dreams and nightmares about the collision. He stated that while it was possible
that his memories were influenced by dreams and nightmares, he was not
intentionally lying or fabricating. He denied that his memory had been
influenced by subsequent information from Mr. Lasser and other information
in the police file and reports.

[14]        
Kevin Dueck was the driver of the dump truck. He was travelling
eastbound in the slow lane at an estimated speed of 100 km/h as he approached
the area of the on-ramp. He made the following observations of the vehicles
entering the highway from the on-ramp:

a)    a pick-up truck
with a “fifth wheel” was moving along the on-ramp lane with a blue car
immediately behind it;

b)    the blue car
then moved into the slow lane and as it did so Mr. Dueck moved into the
fast lane to accommodate the blue car;

c)     as he
passed the blue car he checked his right side view mirror and noted that the
blue car was still in the slow lane;

d)    in this mirror
check he also observed, for the first time, a motorcycle in the centre of the
slow lane, directly behind the blue car;

e)    the motorcyclist
appeared to be in control and riding very close behind the blue car;

f)      he
looked ahead and then did a second mirror check to see where the blue car and
the motorcycle were;

g)    in the second
mirror check he saw the motorcycle move towards his trailer and strike the
front right trailer tire;

h)    he could not say
whether the motorcycle driver was in control of the motorcycle or not, as it
moved toward his trailer tire;

i)       at
the time of the collision the blue car was still in the slow lane close to the
rear tires of his truck (vs. trailer); and,

j)      he
saw no vehicles behind the motorcycle in his two earlier side-view mirror
checks or as he brought his truck to a stop.

[15]        
Mr. Dueck estimated his speed at 100 km/h and the blue car’s speed
at 60 to 80 km/h at the time of the collision.

[16]        
After the collision, Mr. Dueck immediately applied his brakes to
stop. He said he watched the motorcycle in his right side mirror as he did so,
to ensure that he did not run over it with his rear tires. He said he saw the
rider sliding along the road and the motorcycle “doing somersaults”.

[17]        
In cross-examination, when it was suggested that Mr. Dueck first
saw the motorcycle while it was on the on-ramp behind the blue car, Mr. Dueck
said “[n]o. I can honestly say I did not see it on the on-ramp.” He agreed
that in a May 10, 2006 statement to the police he said he had seen the
motorcycle on the on-ramp. He explained this inconsistency by saying he was in
“a lot of shock” at the time of the collision.

[18]        
Katherine Wunderlich was the driver of the blue car. She recalled that
at the entrance to the on-ramp a fifth wheel was directly in front of her, a
motorcycle was behind her, and a white or light blue sedan was behind the
motorcycle. At the point of the highway entrance Ms. Wunderlich moved into
the slow lane to pass the fifth wheel as it continued to travel slowly in the
on-ramp lane. As she picked up speed and reached the rear of the pick-up truck
hauling the fifth wheel she heard a bang and saw debris pass by on her left. In
her left side-view mirror she saw the motorcycle bounce off the pup trailer of
the dump truck which was on her left side in the fast lane.

[19]        
Ms. Wunderlich said that she had last seen the motorcycle as she
pulled out from the far right lane to pass the fifth wheel. At this point she
said the motorcycle was behind her and to her left in the merge lane. She said
she last saw the white or light blue car before she merged into the slow lane.
She said she concluded that it must have carried on eastbound without stopping
because she and her three passengers did not see it in the aftermath.

[20]        
Ms. Wunderlich estimated her speed as 50 to 80 km/h at the time of
the collision. After the collision, Ms. Wunderlich said she sped ahead of
the fifth wheel and pulled over to the highway shoulder in front of the fifth
wheel, which had also pulled over.

[21]        
In cross-examination Ms. Wunderlich agreed that prior to the “bang”
caused by the motorcycle colliding with the pup trailer, she did not hear or
see anything that suggested another collision had preceded it.

[22]        
Joe Booth was the driver of the pick-up truck towing the fifth wheel. As
he entered the highway he remained in the far right lane to permit others to
pass. He said he did not know if there was any traffic behind him. As he drove
along the far right lane he heard a “thump in the back” that caused him to
believe his vehicle had been hit. Upon hearing the thump he said he observed a
dump truck in the fast lane screech to a halt and a car pass to his left and
pull over to a stop in front of him as he, too, pulled over and stopped at the
shoulder.

[23]        
Mr. Booth said he inspected his vehicle and verified that it had
been hit “in the back”. In cross-examination Mr. Booth agreed that he
heard only one “thump” to the back of his trailer.

[24]        
Helen Blair was a backseat passenger in Katherine Wunderlich’s blue car.
She recalled hearing a bang to her left and Ms. Wunderlich saying that a
motorcycle had gone down. After Ms. Wunderlich pulled over, Ms. Blair
ran to where Mr. Biggs was lying on the road. She found Mr. Biggs
conscious and talkative. Ms. Blair introduced herself as Helen and Mr. Biggs
said his name was Dave. She said he asked, “[w]hy did I get hit?” or “[w]hy did
they hit me?” or, in her words, “something like that”. She recalled him saying,
“[w]ell, I’m pretty bad.” He asked her if she would remove his helmet and his
jacket.

[25]        
Ms. Blair said that as she was speaking with Mr. Biggs a young
woman “in her twenties” arrived, knelt down and asked if she could help. Mr. Biggs
asked this woman if she would call his wife, and he gave her the telephone
number. When the woman reported that there was no answer at that number, Mr. Biggs
said it was because she was vacuuming and unable to hear the ring. Ms. Blair
testified that Mr. Biggs continued to talk about wanting to speak to his
wife, and he asked questions about the accident which she was unable to answer.
Ms. Blair’s contact with Mr. Biggs ended when a paramedic arrived.

[26]        
Ms. Blair said she was “pretty sure” that the young woman who tried
to reach Mr. Biggs’ wife by telephone was driving a white car, although
she never saw the young woman in, enter, or exit a car. She said the white car
was no longer at the scene after the young woman left. She described the car as
average looking and about the size of a Honda.

[27]        
Barbara Williams was the front-seat passenger in Ms. Wunderlich’s
car. She recalled the presence of three other vehicles as they approached the
highway along the on-ramp: a fifth wheel in front of them, a motorcycle directly
behind, and a white or light-coloured older model car behind the motorcycle.
She said that as Ms. Wunderlich moved to pass the fifth wheel, Ms. Williams
looked into the right side-view mirror to see if the motorcycle was merging to
the left as well, and she noted that it was clear for Ms. Wunderlich to
merge to the left. Ms. Williams said she did not see the motorcycle,
again, until after the collision. When she heard a bang she looked to her left.
She saw debris fly by and heard Ms. Wunderlich say that the motorcyclist
was down.

[28]        
After Ms. Wunderlich had pulled over, Ms. Williams ran to the
aid of Mr. Biggs, with Ms. Blair. She recalled Mr. Biggs saying
“I’m really fucked, aren’t I?” and that he wanted to call his wife. She left Mr. Biggs’
side to get a blanket, at Ms. Blair’s request.

[29]        
Ms. Williams said the white car she had seen on the on-ramp behind
the motorcycle must have carried on without stopping because she did not see it
at the scene after the collision.

[30]        
James Lasser is a volunteer member of the Hope Search and Rescue Team.
When he arrived at the collision scene, members of his team and the RCMP were
already present. He was directed to put flares on the road. As he was doing so,
he said a woman who was sitting on a road barrier approached him and asked if
the motorcyclist was “going to make it”. Mr. Lasser’s testimony of what
this woman said to him was heard within a voir dire declared to
determine the admissibility of it as hearsay.

[31]        
In the voir dire, Mr. Lasser said that the woman told him:
that she had seen the accident and was shaken up by it; that the motorcycle had
been pushed over towards the dump truck by a car which was changing lanes; that
the motorcyclist tried to get away from this car by moving forward and over,
but the fifth wheel ahead was blocking him; and, that the motorcycle hit the
back of the fifth wheel and then got run over by the dump truck. He said the
woman pointed to the back of the trailer where there was a black smudge and
said “that’s where it hit”. Mr. Lasser said the woman told him that she
“saw it all from behind” and that the car did not stop and remain at the scene.
Mr. Lasser said that the woman repeated some of what she said several
times.

[32]        
Mr. Lasser said he told the woman to speak to the RCMP at the scene
but he did not see her do so. Mr. Lasser said that he informed one of the
RCMP members of what the woman had told him.

[33]        
In cross-examination within the voir dire, Mr. Lasser
estimated that there were three RCMP members at the scene when he arrived, and
several more by the time he departed. Mr. Lasser said he was interested in
what the woman was telling him; however, it was not his function to take a
statement and he made no notes of what she was saying. He agreed: that he could
not recall her exact words; that he did not ask her to repeat or clarify
anything she said; that he did not ask her name; and, that he did not advise
her of the importance of being precise in describing what she had observed. He
said his recollection is the “gist”, or in other words, “my understanding of what
she meant”, but he believed she used the exact words “I saw it from behind” a
few times.

[34]        
In his testimony outside the voir dire Mr. Lasser said that
he met Mr. Biggs for the first time when Mr. Biggs came to Hope in
September 2006 to thank the rescue team for its help at the collision scene. He
said it was “a little while after” this visit that he told Mr. Biggs about
the woman who had spoken to him at the scene, because he “thought it was an
interesting point”. At a later date, Mr. Lasser was contacted by Mr. Biggs’
solicitors and he gave a witness statement to them.

[35]        
In cross-examination, Mr. Lasser said that after the unidentified
woman had spoken to him he saw her within earshot of RCMP members at the scene.
He said that at some point the RCMP asked people who were not involved in the
event to leave, at which point “everyone who had stopped got back in their cars
and left”.

[36]        
Amrit Toor is a mechanical engineer with an expertise in accident
reconstruction. He prepared two reports in relation to the collision, both of
which were tendered into evidence by the plaintiff. In the first report Mr. Toor
provided opinions of: (a) the speed of the dump truck; (b) the speed of the
fifth wheel; and (c) the damage to the motorcycle and the contact required to
cause it. His second report is a rebuttal to the second report of Duane
MacInnis, the defendant’s expert, specifically on the question of whether the
motorcycle was struck at the rear.

[37]        
The conclusions in Mr. Toor’s first report were as follows:

1)         The
unique characteristics of the damage to the rear wheel of the Biggs motorcycle
indicate that the motorcycle was likely impacted from the rear prior to its contact
with the Dueck dump truck/trailer.

a)   The
motorcycle likely travelled a short distance with the rear tire deflated.

b)   The Biggs
motorcycle was likely upright at the time of contact with the tire of the Dueck
dump truck.

2)         The
speed of the Biggs motorcycle after contact with the Dueck dump truck was
assessed to be about 71 to 88 km/h. It should be noted that the motorcycle
would have undergone two prior impacts, each resulting in a speed gain. Thus,
the pre-incident speed of the Biggs motorcycle would have been less than 71 to 88
km/h.

3)         The impact speed of the Dueck
dump truck/trailer unit was assessed to be about 98 to 116 km/h.

[38]        
The “unique characteristics” of damage to the rear wheel of the
motorcycle indicating a rear impact are described by Mr. Toor as follows:

The notable damage features of
the rear tire of the Biggs motorcycle suggest the wheel snagged on a
“horizontal object”, terminating with the deposits of whitish material on the
tire surface. At the point of whitish material deposits, the maximum engagement
between the “horizontal   object” likely took place as evident from the
localized deformation of the rim… Further physical evidence of a longitudinal
force on the rear rim of the motorcycle can be seen in the form of scoring
marks on the brake disk; it is again noted that these scoring marks are
horizontal in the longitudinal direction. It is also noteworthy that strands of
the tire material are notable in the area of the white material deposit.

[39]        
Mr. Toor explained that the snagging marks suggested that the
motorcycle tire’s forward rotation was obstructed by a horizontal object. He
said that the onset of the marks suggest that the horizontal object was
travelling faster than the motorcycle. Although he found no physical evidence
to identify the horizontal object, he said a “reasonable explanation would be a
bumper of an automobile”.

[40]        
Mr. Toor further explained that it was the grinding marks on the
rear rim bead of the motorcycle which suggested that the motorcycle was “likely
predominantly upright when these grinding marks were deposited” and the
motorcycle “likely travelled for a short distance on the deflated tire after
the rear tire damage occurred”. He said that the rim deformation suggested that
the deflation of the rear tire occurred at the time of impact with the
horizontal object, after which the motorcycle remained upright, with the rider
experiencing a sudden and rapid acceleration.

[41]        
In cross-examination, Mr. Toor agreed: that his opinions were based
upon police photographs of the motorcycle and the accident scene rather than a
personal inspection, and he acknowledged that a personal inspection would have
been preferable; that the motorcycle would have arced to the right on a
deflated tire if there were no other forces on the motorcycle; that if the
motorcycle had traveled upright on its rim then a corresponding grinding mark
on the roadway should exist; and, that the white speckles (depicted in photo
97) do not resemble a paint transfer from a plastic vehicle bumper. (In
redirect on this point, Mr. Toor said this would not alter his
conclusions.)

[42]        
Mr. Toor said he did not look into the theory that the motorcycle
was first hit from behind and projected forward into the fifth wheel before it
collided with the wheel of the pup trailer, without leaving debris prior to
this collision. He said “I can’t give you an opinion that happened – all I can
say is that Mr. MacInnis’s photographs support that proposition to some
degree”.

[43]        
Duane MacInnis is a mechanical engineer with an expertise in accident
reconstruction, with a sub-specialty in relation to motorcycles. He is also an
experienced motorcyclist. He prepared two reports which were tendered into
evidence by the defendant. In his investigation, he personally examined Mr. Biggs’
motorcycle at the Insurance Corporation of British Columbia (“ICBC”) Salvage
Yard on August 15, 2006, and Mr. Booth’s fifth wheel at the Booth
residence on Vancouver Island, on June 30, 2006.

[44]        
In his first report, Mr. MacInnis reached the following
conclusions:

With the data available and the assumptions drawn, I can
conclude:

1.              
The motorcycle struck the right front wheel of the pup when still
upright, and was partially run over by the forward right pup tire. This impact
crushed the rear wheel and the side of the motorcycle, resulting in the wheel
being fractured, the shift lever and footpeg being broken away and stopped, and
likely caused some injury to the rider.

2.              
The motorcycle fell onto its right side immediately after separating
from pup.

3.              
The rider separated from the motorcycle when they hit the pup. The
rider, as defined by the debris, flesh deposits and bodily fluids, then
followed an essentially straight path to rest, to the north of the motorcycle.

4.              
While sliding on its right side, the left side of the motorcycle engine
case went partially under and hit the rear bumper on the Booth 5^th
-wheel trailer. The disabled rear motorcycle tire slapped against the side of
the trailer body.

5.              
The approximate pre-braking speed of the truck and pup would range from
111 to120 km/h (avg 116) if braked for 80 m, or about 123 to 133 km/h (avg 128)
if braked for 97 m.

6.              
The approximate speed of the motorcycle when it fell and began sliding
was 77 to 102 km/h (avg 90).

7.              
The approximate speed of the motorcycle when it hit the pup was 87 to
122 km/h (avg 105 km/h).

8.              
The motorcycle would leave the collision with the Booth 5^th-wheel
trailer still traveling about 38 to 44 km/h (avg 41).

9.              
The Booth 5^th-wheel trailer would have been traveling
slightly faster than 38 to 44 km/h (avg 41) at impact, due to elasticity of the
collision.

10.           
The right forward wheel of the pup was in the fast lane and about one
meter to the left of the lane divider line when it was struck by the
motorcycle.

11.           
The motorcycle was in the on ramp and about one meter to the right of the
lane divider line when it struck the rear bumper of the 5^th-wheel
trailer.

[45]        
Mr. MacInnis’s other conclusions, found within the body of the
report, include the following:

…[I]t is practically certain that the motorcycle and rider
were struck and partially run over by the forward right pup tire. This impact
crushed the rear wheel and the side of the motorcycle, resulting in the wheel
being fractured, the shift lever and footpeg being broken away and stopped, and
causing some injury to the rider.

There were beige paint flakes on the [crankcase of] the
motorcycle, likely coming from [contact with] the trailer bumper.

[Examination of the fifth wheel bumper showed] extensive
paint flaking of the damaged area.

There was arc of scratching on the… side of the 5^th-wheel
that had a circular radius … similar to of the radius of the widest part of the
sidewall of the rear tire on the motorcycle, indicating that the left side of
the disabled rear tire probably slapped against the side of the 5^th-wheel
as the motorcycle engine hit the bumper.

There were blobs of organic debris remaining on the bumper… likely
transferred from the crankshaft area of the motorcycle.

Mr. Biggs was not on the motorcycle when it hit the
fifth wheel bumper.

In summary, while sliding on its right side, the left side of
the motorcycle crankcase hit the rear bumper of the fifth wheel, and the
disabled rear tire slapped against the side of the trailer body.

The motorcycle would have sustained a speed change when it
hit the fifth wheel. There is no way to assess this, but for certain there was
a significant speed change to the motorcycle that resulted in the bumper
deformation on the fifth wheel trailer. Assuming this speed change varied from
20 to 40 km/h, the speed of the motorcycle when it hit the fifth wheel was
about 58.1 to 83.6 km/h (avg 70.9).

[46]        
On the question of what caused the collision between the motorcycle and
the pup trailer, Mr. MacInnis said the following:

We know (or can conclude) the following technical facts about
the engagement between the motorcycle/rider and the pup tire.

1.         The
motorcycle (according to Mr. Dueck) was in the left portion of the slow
lane closely following the Wunderlich car. I assume this position would be
about 1 m to the right of the lane divider line.

2.         The
motorcycle and rider hit the right front pup tire in the fast lane when about 1
m to the left of the lane divider line.

3.         The
motorcycle was upright and the rider astride the motorcycle when it hit the pup
tire.

4.         The
calculations and evidence of interaction indicate that the motorcycle was
likely traveling slower than the pup at impact.

5.         The motorcycle and rider were
partially run over by the pup tire.

6.         The
motorcycle and rider were redirected separately to the right as result of the impact
with the pup tire.

There is no technical explanation for the
movement of the motorcycle about 2 m laterally from its position near the
left side of the slow lane to impact near the right side of the fast lane.

[47]        
Mr. MacInnis explained that “no technical explanation” meant that
there were neither road markings nor damage to the motorcycle to indicate that
something had struck the motorcycle prior to the collision with the pup
trailer.

[48]        
In Mr. MacInnis’s second report, he was asked to: (a) assess “whether
the damage at the rear of the Biggs’ motorcycle and its subsequent behaviour
before it hit the pup were consistent with the motorcycle first being
forcefully hit at the rear by a passenger car”; and, (b) to review the opinions
in the report of Mr. Toor. Mr. MacInnis’s conclusions were as
follows:

1.         For
the reasons set out in this report, it is evident that the motorcycle was not
likely struck at the rear forcefully by a passenger car (or any other vehicle)
before it hit the pup trailer.

2.         Mr. Toor’s opinion that
“…the motorcycle was likely impacted from the rear prior to its contact with
the Dueck dump truck/trailer” is technically unsupportable.

[49]        
In support of these conclusions, Mr. MacInnis’ report included, inter
alia, the following passages:

When a motorcycle is struck at the rear by a passenger car
traveling in the same direction, the bumper rides up over the wheel height,
squashing the tire downwards and arresting tire rotation as the bumper rides up
over the motorcycle wheel. The wheel may be radially distorted, and if still
moving the motorcycle rear tire will leave broad dark marks on the asphalt as
it is pushed forward while squashed and jammed at impact, then dark skid marks
as it is pushed forward with the tire locked and the motorcycle still upright.
The rear wheel rim may leave scratch marks on the road at impact. There is a
distortion of the seat structure and rear fender forwards and upwards.

When I examined the Biggs motorcycle I found no damage or
markings on the seat structure, the rear fender or the muffler that would have
been related to contact at the rear by another vehicle.

The left side of the rear [motorcycle] wheel was not
distorted radially or broken, whereas two large pieces of wheel rim were broken
away from the right side. The wheel is evidently fairly brittle and breaks
rather than bending, thus one would expect symmetrical damage to the two sides
of the rim from the vehicle bumper impact if it was struck from the rear.
Therefore the damage is not consistent with the motorcycle being struck by a
car aligned behind it.

If the motorcycle was hit at the rear by a car, the rider
would have likely crashed rearward into the windshield and be projected
forward, whereas the rider was astride the motorcycle when it hit the pup tire.

…If struck at the rear forcefully, the motorcycle would be
projected ahead, as would the rider, not two meters to the left into the
adjacent lane while remaining upright.

In summary, the two crash tests,
my experience with real-world cases, and the physical data indicate that the
Biggs motorcycle was not hit at the rear by a passenger car before it was
directed left into the tire of the pup.

[50]        
In relation to the five elements of damage Mr. Toor relied upon to
support his opinion that there was a rear impact, Mr. MacInnis’s opinion
is that four are technically incorrect. Among these, Mr. MacInnis said
that in his actual (vs. photographic) examination of the motorcycle, he did not
see the tire snagging marks relied upon by Mr. Toor. He also said that the
grinding marks on the rear wheel rim are on its side (vs. on the face parallel
to the road surface when the motorcycle is upright), and are typically created
when a motorcycle slides a significant distance on its side. He noted that
similar marks existed on the front wheel rim. In relation to the whitish
deposit on the tires which Mr. Toor attributed to paint transfer from a
car bumper, Mr. MacInnis said these marks existed on both the tread face
and the side, and could have been caused when the motorcycle slid over two
white painted highway lines and/or when the rear tire slapped against the fifth
wheel after colliding with the pup trailer.

[51]        
Mr. Toor prepared a rebuttal to Mr. MacInnis’s second report. His
ultimate conclusion was that he stood by the opinions expressed in his earlier
report. In maintaining his initial opinion, he questioned the value of the
staged rear impact tests relied upon by Mr. MacInnis, and he noted that
the bumper profile of the alleged rear-ending car is not known. He remained of
the view that there were a series of snagging marks on the rear tire (described
as “clearly visible” in the police photographs) indicating a rotating wheel and
added, “there is no definitive evidence to link the snagging marks with the
road surface, the pup trailer, or the fifth wheel trailer”. He noted that the
speed differential between the unknown car and the motorcycle cannot be
determined, and said that a motorcycle can be knocked out of balance/control
with a relatively small force and may deviate from its path of travel while the
motorcyclist attempts to regain control. He noted that without knowing the
angle of the alleged blow from behind, Mr. MacInnis’s “symmetrical damage
to the wheel” comments are “totally unfounded”. He disagreed that the rear
wheel rim grinding marks were on the side (vs. the top) and said that white
road paint does not transfer onto tires as they slide across road lines, “thus,
it is not likely that the white deposits on the motorcycle rear tire were
deposited by the white road markings”.

[52]        
Mr. MacInnis was subjected to an extensive cross-examination on the
contents of his reports. When asked if he was aware of a “fourth vehicle” (that
is, the white/light blue car behind Mr. Biggs on the on-ramp) when he
prepared his report he said, “[y]es, but I didn’t put it in the diagram [I
prepared it to show the positions of the vehicles] because there was no
physical information to show a fourth vehicle. Without detectable contact I
wouldn’t see any physical evidence [of it]”.

[53]        
In relation to the cause of the damage to the bumper of the fifth wheel,
Mr. MacInnis said the evidence is “pretty compelling – the substance
transfers, the paint chips, the shape, the force”. He said the damage will
reflect the cause, “like a fist into dough”. He agreed that the shape of the
dent to the bumper was consistent with a wheel running into it, but added that
a wheel tire would not cause this damage. He said he could not say what
the orientation of the motorcycle was as it slid along the road, but he could
say what it was upon impact with the fifth wheel. He said it was “leading with
the engine case” when it hit the fifth wheel. He said the marks on the road
show that the motorcycle snagged on the rear bumper of the fifth wheel. He
described the contact with the rear bumper of the fifth wheel as “major”, and
said it was immediately followed by a tire slap on the side of the fifth wheel
from the rear tire which had separated from the rim and was, thus, free to
flop.

[54]        
In relation to the plaintiff’s theory of force from a car bumper to the
rear of the motorcycle, he said if the impact were midpoint to the height of
the rear tire and at a differential speed above three km/h then the bumper
would roll upwards over the tire and push it down. He said he did not see any
shavings of rubber consistent with the lower edge of a car bumper snagging on
the motorcycle’s rear tire. When it was suggested that the rear force from the
bumper caused the motorcycle’s rear wheel adjustment bolt to shift forward,
thus loosening the chain and causing it to fall off, Mr. MacInnis
responded incredulously, “[b]oy, that’s quite a hypothetical”. In this regard,
when he was referred to photographs showing the rear wheel adjustment bolt, he
said they show that the bolt is at one end of the range of travel. He said he
could not say this was not the position before the accident. He said that the
two jack screws appear to be in their intended positions and noted that their
threads are not stripped. He said any shift caused by a rear impact would require
the impact to be extremely forceful. He said he did not believe that it would
be possible to cause movement in the adjustment bolt from a rear impact without
causing “a lot of other structural damage” including the sort of wheel damage
“that didn’t occur here”. Mr. MacInnis also said that a rear collision
with enough force to cause this damage would almost certainly cause the rider
to be pitched backward off the motorcycle.

[55]        
In relation to the paint flakes on the crankcase of the motorcycle, Mr. MacInnis
said his assumption was that these were from the fifth wheel bumper. He was
unable to agree that the flakes could have been from a white undercoat on the
faring of the motorcycle, rather than the bumper of the fifth wheel.

C.       Discussion

[56]        
The central question for resolution is whether the plaintiff has proved
on a balance of probabilities that the collision between his motorcycle and the
right front wheel of the pup trailer towed by Mr. Dueck was caused by an
unknown driver who rear-ended Mr. Biggs’ motorcycle. The plaintiff’s
position is that the evidence establishes: that he was rear-ended by a white or
light blue vehicle while in the far right (on-ramp) lane; that upon being
rear-ended, his motorcycle was forced forward into the rear bumper of Mr. Booth’s
fifth wheel ahead of him in the same lane; that this impact with the fifth
wheel’s rear bumper and the motorcycle’s front tire caused him to lose control
of his motorcycle; that upon losing control, the motorcycle traversed the slow
lane and then collided with the pup trailer of the dump truck travelling in the
fast lane; that the driver of the white or light blue vehicle left the scene;
and, that the names of the owner and the driver of that vehicle are not
ascertainable.

[57]        
In relation to the foregoing, Mr. Biggs, as eye-witness, has very
little evidence to offer despite being conscious throughout the period in
question. He says he has no recollection of the vehicles in front of him or
behind him on the on-ramp or on the highway. He does not recall being forced
into the rear bumper of Mr. Booth’s fifth wheel with his motorcycle after
being rear-ended by a car. He does not recall losing control of his motorcycle
and then crossing into the path of the pup trailer. For the first four months
after the accident, Mr. Biggs apparently held the belief that the accident
occurred because something had forced him into the side of the dump truck, but
he had no specific recollection to support that belief. It was not until after Mr. Biggs’
visit with Mr. Lasser that Mr. Biggs first claimed to have recovered
a memory of something striking him from behind shortly before his collision
with the dump truck.

[58]        
Given Mr. Biggs’ inability to say much about the events immediately
preceding his collision with the pup trailer, it is not surprising that he seeks
to rely upon the hearsay statements of an unknown woman who claimed to have witnessed
the events leading to the collision, and who spoke to Mr. Lasser at the
accident scene.

[59]        
Mr. Lasser says that “the gist” of what this woman said was that
she saw the motorcycle strike the rear of the fifth wheel, lose control, and
collide with the dump truck. She said a car behind the motorcyclist was changing
lanes into the motorcyclist’s path. In order to avoid this car the motorcyclist
sped ahead and in doing so, struck the rear of the fifth wheel. This blow caused
him to lose control and collide with the pup trailer.

[60]        
Notably, the unknown woman’s account does not include the motorcycle
being struck from behind as the explanation for hitting the rear of the fifth
wheel; nonetheless, Mr. Biggs relies upon it in support of his theory that
it was the actions of another driver that forced him into the fifth wheel
bumper which, in turn, caused him to lose control, cross over the slow lane behind
Ms. Wunderlich’s blue car, and collide with the pup trailer.

[61]        
Mr. Biggs seeks to tender the unknown woman’s statements to Mr. Lasser
for their truth, pursuant to the well-established “principled exception” to the
rule against hearsay. The principled exception permits the admissibility of a
hearsay statement for its truth if it is shown, by the party seeking to adduce
it, to be both necessary and reliable. In relation to the latter, it is
threshold (vs. ultimate) reliability that is the evidentiary standard that must
be met for admissibility.

[62]        
In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, Charron J.,
delivering the judgment of the court, made the following apposite remarks:

61.       Since
the central underlying concern is the inability to test hearsay evidence, it
follows that under the principled approach the reliability requirement is aimed
at identifying those cases where this difficulty is sufficiently overcome to
justify receiving the evidence as an exception to the general exclusionary
rule. As some courts and commentators have expressly noted, the reliability
requirement is usually met in two different ways [citations omitted].

62.       One way
is to show that there is no real concern about whether the statement is true or
not because of the circumstances in which it came about. Common sense dictates
that if we can put sufficient trust in the truth and accuracy of the statement,
it should be considered by the fact finder regardless of its hearsay form.
Wigmore explained it this way:

There are many situations in which
it can be easily seen that such a required test [i.e., cross-examination] would
add little as a security, because its purposes had been already substantially
accomplished. If a statement has been made under such circumstances that even a
sceptical caution would look upon it as trustworthy (in the ordinary instance),
in a high degree of probability, it would be pedantic to insist on a test whose
chief object is already secured. [s. 1420, p. 154]

63.       Another
way of fulfilling the reliability requirement is to show that no real concern
arises from the fact that the statement is presented in hearsay form because,
in the circumstances, its truth and accuracy can nonetheless be sufficiently
tested. Recall that the optimal way of testing evidence adopted by our
adversarial system is to have the declarant state the evidence in court, under
oath, and under the scrutiny of contemporaneous cross-examination. This
preferred method is not just a vestige of past traditions. It remains a tried
and true method, particularly when credibility issues must be resolved. It is
one thing for a person to make a damaging statement about another in a context
where it may not really matter. It is quite another for that person to repeat
the statement in the course of formal proceedings where he or she must commit
to its truth and accuracy, be observed and heard, and be called upon to explain
or defend it. The latter situation, in addition to providing an accurate record
of what was actually said by the witness, gives us a much higher degree of
comfort in the statement’s trustworthiness. However, in some cases it is not
possible to put the evidence to the optimal test, but the circumstances are
such that the trier of fact will nonetheless be able to sufficiently test its
truth and accuracy. Again, common sense tells us that we should not lose the
benefit of the evidence when there are adequate substitutes for testing the
evidence.

64.       These
two principal ways of satisfying the reliability requirement can also be
discerned in respect of the traditional exceptions to the hearsay rule.
Iacobucci J. notes this distinction in Starr, stating as follows:

For example, testimony in former
proceedings is admitted, at least in part, because many of the traditional
dangers associated with hearsay are not present. As pointed out in Sopinka,
Lederman and Bryant, supra, at pp. 278-79:

… a statement which was earlier
made under oath, subjected to cross-examination and admitted as testimony at a
former proceeding is received in a subsequent trial because the dangers
underlying hearsay evidence are absent.

Other exceptions are based not on
negating traditional hearsay dangers, but on the fact that the statement
provides circumstantial guarantees of reliability. This approach is embodied in
recognized exceptions such as dying declarations, spontaneous utterances, and
statements against pecuniary interest. [Emphasis in original by Iacobucci J.; para. 212.]

[63]        
In relation to the trial judge’s role in determining admissibility,
Charron J. said:

93.       As I
trust it has become apparent from the preceding discussion, whether certain
factors will go only to ultimate reliability will depend on the context. Hence,
some of the comments at paras. 215 and 217 in Starr should no
longer be followed. Relevant factors should not be categorized in terms of
threshold and ultimate reliability. Rather, the court should adopt a more
functional approach as discussed above and focus on the particular dangers
raised by the hearsay evidence sought to be introduced and on those attributes
or circumstances relied upon by the proponent to overcome those dangers. In
addition, the trial judge must remain mindful of the limited role that he or
she plays in determining admissibility – it is crucial to the integrity of the
fact-finding process that the question of ultimate reliability not be
pre-determined on the admissibility voir dire.

[64]        
Having due regard for the foregoing legal principles, for the reasons
which follow I am not persuaded that the plaintiff has established that there
is threshold reliability to the evidence in question; accordingly, the claimed
observations of the unknown witness cannot be admitted into evidence for their
truth. In short, the plaintiff has not established either that the statements
were made in circumstances in which there is no compelling concern about their
reliability, or that sufficient means for assessing their reliability exists.

[65]        
In this regard, virtually nothing is known about the woman to whom the
statements are attributed other than she was present at the scene of the
accident, claimed to have seen it, was upset by it, and chose not speak to the
police or even identify herself to them in circumstances which cried out for
doing so. Her failure to act responsibly is very troubling. It raises concerns
about her motives and, thus, the reliability of any words attributed to her.

[66]        
 Significantly, this woman cannot be linked to a specific vehicle, and
there is no evidence of where she was and, thus, what her perspective was at
the time of her observations. In the absence of such evidence, no reasonable
inferences can be drawn about her ability to make accurate observations and
relate them to others.

[67]        
The nature of the event the unknown woman witnessed is an important
factor. In the instant case, the event was a dynamic one involving multiple
motor vehicles moving at relatively high speeds in relation to one another and
at the time of the collision with the pup trailer. Even witnesses who are
well-positioned, focused, and have clear and unobstructed views are prone to
misperceiving or misconstruing such highly dynamic events.

[68]        
The circumstances in which the statements were made and the absence of
any recording of relatively complex assertions at a time reasonably proximate
to the utterances, raise significant concerns about Mr. Lasser’s ability
to restate them with accuracy. In this regard, it is noteworthy that Mr. Lasser
was not an investigator and that his focus was on the task of setting out road
flares. The unknown witness was in an agitated state and Mr. Lasser
neither questioned anything she said nor sought any clarification. Testifying
to the gist of what an eyewitness said is troubling when the statements venture
well beyond a simple and clear assertion that can be repeated with confidence
as to its accuracy. For example, at trial Mr. Lasser remained uncertain as
to whether the unknown woman said the events unfolded ahead of her or from
behind, as observed through a rear-view mirror.

[69]        
Finally, it is of some significance that the unknown witness described
events which are inconsistent with other reliable evidence. For example, it is
not a matter of controversy that Mr. Booth’s fifth wheel was in the far
right lane at all relevant times. This evidence is difficult to reconcile with
the unknown woman’s version of events which apparently has the motorcyclist in
the same lane as the fifth wheel when it accelerated into the bumper of the
fifth wheel to avoid a car merging from his right side. There is no lane to the
right of the merge lane; moreover, the unknown witness does not describe a rear
impact to the motorcycle.

[70]        
For all the foregoing reasons, I am not persuaded that the evidence in
question meets the standard of threshold reliability; indeed, in my assessment
it falls very far short of it. In the absence of threshold reliability,
admissibility under the “principled exception” to the rule against hearsay must
fail and, thus, there is no need to determine whether the “necessity” prong of
the two-part test has been satisfied.

[71]        
Turning, then, to the known eye-witnesses who testified at the trial, it
is clear that the evidence of these witnesses does not support the plaintiff’s
theory that at the time he collided with the pup trailer he had lost control of
his motorcycle as a result of being forced into the rear of the fifth wheel by
a vehicle which had struck him from behind. None of these witnesses saw or heard
either of the two pre-collision impacts the plaintiff’s case rests upon;
moreover, no one saw Mr. Biggs apparently out of control of his motorcycle
– something that ought to have been plain to see given the nature of the alleged
damage to the motorcycle – at any time prior to the collision with the pup
trailer.

[72]        
Mr. Dueck gave compelling testimony of observations entirely
inconsistent with the plaintiff’s theory. He observed Mr. Biggs in the
slow lane directly behind Ms. Wunderlich’s blue car as he passed to the
left of Ms. Wunderlich in the fast lane. He noted that Mr. Biggs was
in control of his motorcycle and he saw no vehicles close behind him. As Mr. Dueck’s
truck continued to move past Ms. Wunderlich’s car he saw Mr. Biggs move
into his lane and collide with the front right wheel of his pup trailer at the
end of the towing boom. Although Mr. Dueck quite reasonably agreed that he
could not say whether Mr. Biggs was in control of his motorcycle in the
split second before the collision, it is clear he saw nothing that suggested
otherwise. In this regard, it is significant that on the plaintiff’s theory the
loss of control was not slight; at this point the motorcycle was seriously
damaged, its chain had fallen off, and it was travelling on the rim of its rear
wheel. Assuming it would even be possible for the motorcycle and rider to
remain upright and continue to travel forward, I am satisfied that Mr. Dueck
would not have failed to notice such a devastating loss of control.

[73]        
Mr. Dueck was an observant and careful witness. As one might expect
from a professional driver, he was paying close attention to the vehicles
around him; in particular, to those he was in close proximity to as he passed
to the left of those vehicles. He had a clear recollection of events, a
disinclination to speculate or confabulate, and an absence of bias; moreover,
his testimony is consistent with the findings, opinions and conclusions of Mr. MacInnis
and not inconsistent with the evidence of other witnesses at the scene. It must
be noted that neither of the causation theories suggests any fault on the part
of Mr. Dueck; thus, there is no apparent motive for him to attempt to
support one over the other.

[74]        
In assessing the collective evidence of the eye-witnesses, it is
important to bear in mind that none were passive observers. They were in moving
vehicles with unique and shifting perspectives, and the events in question
unfolded quickly and within a very short time frame. In these circumstances, it
is unsurprising that not every witness made precisely the same observations.
For example, I would not conclude that Ms. Wunderlich’s evidence that she
last saw Mr. Biggs in the merge lane is inconsistent with Mr. Dueck’s
evidence that Mr. Biggs was following closely behind her in the same lane
just prior to the collision. It is entirely plausible that Mr. Biggs,
while in control of his motorcycle, moved in close behind Ms. Wunderlich
without her knowledge for a matter of seconds before he moved further left into
the pup trailer.

[75]        
The plaintiff submits that in the absence of the loss of control
alleged, there is no rational explanation for the collision with the pup
trailer; more specifically, counsel for Mr. Biggs submits that “a happily
married middle-aged man in a position of responsibility vis a vis foster
children” would not “drive his motorcycle into the four-foot tires of a pup
trailer for no reason.” He describes the defence theory – that the collision
occurred because Mr. Biggs failed to see the pup trailer – as “magical”.

[76]        
If there is any rational connection between one’s status as a happily
married, responsible, middle-aged man and one’s fault in motor vehicle
accidents then it is a tenuous one, indeed. It has not been suggested that Mr. Biggs
intentionally, or even recklessly, drove into the side of the pup trailer. I
think it is rather far-fetched to suggest that Mr. Biggs was unlikely to
make a driving error because of his marital status, age, and responsibilities. In
this regard, the defence theory is not that Mr. Biggs was suicidal or was
taking foolish risks; rather, it is that he believed his manoeuvre was safe
because he did not see the pup trailer behind the dump truck.

D.       Conclusions

[77]        
The plaintiff’s theory that the collision in question was caused by an
unknown driver who struck him from behind remains just that: a theory. To the
extent that it is supported in some respects by the findings, opinions and
conclusions of Mr. Toor, I prefer the findings, opinions and conclusions
of Mr. MacInnis. I find the plaintiff’s theory to be inherently weak. It
has, as essential components, two significantly damaging blows to the
motorcycle; yet, neither of these felled the bike or rider. It includes the most
remarkable coincidence of the motorcycle striking the rear of the fifth wheel
twice in virtually the same spot – once while Mr. Biggs is astride it, and
once after it tumbled and slid down the highway after the collision with the
pup trailer. It requires that the motorcycle travelled at least the width of
one lane on the rim of the rear wheel, without there being corresponding damage
to the rim or the road. It rests upon the existence of snag marks that Mr. MacInnis
did not find during his thorough inspection of the motorcycle. Finally, it does
not explain why a sentient Mr. Biggs – still conscious and with a specific
and accurate recollection of trying to contact his wife as he lay injured on
the roadway – would have no memory of striking the fifth wheel’s bumper as he
struggled to maintain control of a motorcycle seriously compromised by a blow
from behind.

[78]        
I am satisfied that the evidence establishes that Mr. Biggs was
riding eastbound in the slow lane of Highway 3 and in control of his motorcycle
just prior to the collision. The findings of fact from the admissible evidence do
not establish a subsequent loss of control of the motorcycle prior to collision
with the pup trailer, caused by striking the rear bumper of the fifth wheel due
to an impact from behind or otherwise.

[79]        
Mr. Biggs has endeavoured to reconstruct the events leading to the
collision; however, this reconstruction is based upon a very shaky evidentiary
foundation. The evidence strongly supports the conclusion that Mr. Biggs
was in control of his motorcycle at the time he came into contact with the
right wheel of the pup trailer; that he was executing a lane change into the
fast lane to pass Ms. Wunderlich’s relatively slow-moving car immediately
ahead of him; that he began executing his lane change immediately after the
dump truck passed by him to his left; and, that he failed to see that the fast
moving dump truck he intended to move in behind was pulling a pup trailer on a
long tow-bar. The blow to Mr. Biggs’ motorcycle was instant and
devastating. Not surprisingly, Mr. Biggs did not know what hit him. It is
similarly unsurprising that Mr. Biggs has been unable to accept that he
could have made such a critical and costly mistake.

[80]        
Finally, I am satisfied that even if the hearsay evidence of the unknown
woman met the test for admissibility, it would not have altered the result. The
statements attributed to her neither accord with accepted facts nor with the
evidence of reliable eye-witnesses whose testimonies were subjected to rigorous
cross-examination. In such circumstances, little weight could be assigned to
this hearsay evidence.

E.       Disposition

[81]        
The plaintiff’s claim is dismissed.

[82]        
If the parties are unable to reach an agreement regarding costs, then
they may make written submissions.

“The Honourable Mr. Justice Bernard”