IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | McCaffrey v. Kang, |
| 2014 BCSC 1266 |
Date: 20140710
Docket: M142282
Registry:
New Westminster
Between:
John Michael
McCaffrey
Plaintiff
And
Amandeep Singh
Kang and SSB Trucking Ltd.
Defendants
Before:
The Honourable Mr. Justice Crawford
Reasons for Judgment
Counsel for the Plaintiff: | R.B. McNeney |
Counsel for the Defendants: | A. Urquhart |
Place and Date of Trial: | New Westminster, B.C. April 14-17, 23, 24, |
Place and Date of Judgment: | New Westminster, B.C. July 10, 2014 |
Introduction
[1]
These reasons for judgment address the plaintiffs claim in a motor
vehicle accident that occurred on August 17, 2010.
[2]
Mr. McCaffrey, the plaintiff, claims damages for injuries he
sustained during the accident. At that time, he was riding his bicycle and
attempted to cross Timberland Road in Surrey, but he collided with a large tractor-trailer
unit driven by Mr. Kang, the defendant.
[3]
Mr. McCaffrey alleges Mr. Kang was negligent and seeks
monetary damages for the injuries he sustained that day.
[4]
Mr. Kang denies all liability. I find him right in his contention.
[5]
In sum, I am dismissing the plaintiffs claim as I find him 100% liable
for the accident.
[6]
For the purposes of the trial and this judgment Tannery Road is
described as running north-south, while Timberland Road is described as running
east-west.
Evidence
Mr. McCaffreys Evidence
[7]
On August 17, 2010, Mr. McCaffrey rode his bicycle to work. He was working
as a forklift driver for the Goodrich Company. He loaded and unloaded
containers and trucks at the Goodrich site, which serves Fraser Port.
[8]
It was early afternoon. He intended to go to see his insurance agent in
the Whalley district. His employer, Mr. Seikhon, was not on site.
[9]
He left the worksite and peddled east along Timberland Road towards the
Tannery Road intersection. He then saw his employer coming the other way in a
small red pick-up truck, and Mr. Seikhon pulled over to the south side of
Timberland Road, close to the Tannery Road intersection.
[10]
Mr. McCaffrey pulled his bicycle around beside Mr. Seikhons
drivers side window on a large dirt and gravel area near the intersection and
well away from the industrial traffic that uses the 28 foot asphalt roadway on
Timberland Road.
[11]
Mr. Seikhon said Mr. McCaffrey could borrow his truck to do
his errand, and Mr. Seikhon drove off in a westerly directions towards the
Goodrich site.
[12]
Mr. McCaffrey started to bicycle after him.
[13]
He said he cycled west some 40 feet across the gravel and then onto the
eastbound or oncoming traffic portion of the roadway. He travelled a further 35
or 40 feet in the eastbound lane. He estimated he was on the asphalt roadway
some three to four seconds before he turned to look over his right shoulder to
check that the westbound traffic lane was clear.
[14]
But it was not.
[15]
He said the chrome front of Mr. Kangs truck was immediately upon
him, so he flung up his arm and believed he hit the oncoming trucks side
mirror; then the lumber load started rubbing him in his ribs.
[16]
He was hit in the back and thrown off his bicycle. He rolled over and
landed hard on his back and buttocks. He slid on the asphalt roadway to a stop.
[17]
He said the point of impact was some four to six feet from the road edge
and approximately 100-120 feet from the middle of the Tannery Road intersection.
[18]
He said that he did not see other traffic, but he said the DNR Towing Company
had placed a large tow truck (Big Bertha) on the north side of Timberland Road;
it was about 100-120 feet from the Tannery Road intersection to the DNR Towing
entrance.
[19]
He said his bicycle speed was 20 km on the gravel and 30-35 km at
collision while Mr. Kangs truck was double that easily, 50 km minimum.
[20]
He said he was on the ground when Mr. Kang was first to him and
asked him if he was okay. Mr. McCaffrey said he responded, Didnt you see
me on the fing road?
[21]
He believed the ambulance was the first emergency unit to him. He walked
to a gurney and lay down, and he was put into the ambulance and taken to Surrey
Memorial Hospital.
[22]
He said he was not given much attention at the hospital; a doctor
pushed me on my belly, and then he was given extra strength Tylenol. He then
called his mother and a friend and then left the hospital.
[23]
He did not mention speaking with the police officer who attended.
[24]
He said his bicycle was mangled and later scrapped.
Cross-examination of Mr. McCaffrey
[25]
In cross-examination, counsel suggested that a truck was approaching him
as he fell onto the asphalt. Mr. McCaffrey said it was far away.
[26]
When asked to compare the location of Mr. Kangs truck to a series
of pictures in Exhibit 6 Tab 1, he said Kangs truck was closer to the intersection,
and it had come to the middle of the road and was angled. It then came into
contact with him.
[27]
He was inferring that Mr. Kang was pulling wide of the stopped Big
Bertha said to be parked on the north side of Timberland Road. Counsel pointed
out that no DNR trucks were parked in the Googled pictures put in evidence.
[28]
Counsel put to Mr. McCaffrey that he was confused and that the
distance was some 230 feet to the DNR Towing entrance.
[29]
He agreed that he estimated the point of impact with the truck at some
115 feet from the intersection, but he disagreed the DNR Towing entrance was at
a different place.
[30]
He agreed he did not see Mr. Kangs truck make its turn and that he
was some 40 feet from the intersection when he said he met Mr. Seikhon.
[31]
Exhibit 6, Tab 7 is a series of pictures showing a tractor-trailer unit
with two trailers making the turn left from Tannery Road onto Timberland Road. Mr. McCaffrey
agrees they were fair representations of the intersection and a similar size
truck turning.
[32]
Tab 8 is pictures of Mr. Kangs truck and trailers with similar
loads to those being hauled at the time of the accident.
[33]
He agreed he did not see Mr. Kangs truck while he was talking to Mr. Seikhon
nor did he hear Mr. Kangs truck make the left hand turn.
[34]
He did not agree that the tractor would make a fair amount of noise as
that might depend on wind direction and the quality of the exhaust and the
tractor engine.
[35]
Nor would he agree that a tractor unit pulling two trailers would take a
longer time to start and make the turn compared to an automobile.
[36]
Counsel then asked if it would have made more sense for him to have put
his bicycle in the back of Mr. Seikhons pick-up truck and drive the 2 km
back to the Goodrich site with Mr. Seikhon. Mr. McCaffrey conceded maybe,
but Mr. Seikhon did not make such an offer, and in any event, he could
bicycle the 2 km quite quickly.
[37]
When counsel suggested he never conferenced with Mr. Seikhon, he said
that counsel was mistaken.
[38]
When asked for the time from Mr. Seikhon leaving to the time of the
collision, he estimated four to five seconds or a matter of seconds until he
was on the asphalt as it didnt take me long to get up to speed.
[39]
When counsel put to him that he did not look to his right when he
started cycling, he said he had peripheral vision and that he was not worried,
but only when he did his shoulder check and the bumper was there and he threw
up his right arm did he realize the truth of his situation.
[40]
He agreed he did not look right when he was still on the dirt and gravel
area.
[41]
When asked why he did not go on a right angle out onto the road, he said
he was pointing that way, but he cycled 35 to 40 feet on the gravel plus
another 40 feet on the pavement before the collision.
[42]
When counsel suggested he was 15 feet onto the asphalt (at impact), he disagreed
and said he was only 4-6 feet onto the asphalt.
[43]
Counsel put to him that he did not look until he was 15 feet onto the
pavement, and he disagreed.
[44]
Counsel then put his examination for discovery transcript at page 42, questions
277-282:
Q. Okay.
So when you leave the gravel and before you get onto the road surface, the
asphalt paved surface of Timberland, you do not look to your right; do you?
A. No.
Q. And you dont see the defendants vehicle coming
from your right?
A. No,
not until I looked to see if its safe to cross the other side of the road.
Q. Well, how wide is the road?
A. I dont know. Again I dont have a yardstick or a
measuring tape.
Q. So at
all before this — at no time before you contacted the defendants truck do you
look to your right; correct?
A. Yes, I did.
Q. When did you look to your right?
A. When I
was checking to see if it was safe to cross to the other side of the road to be
on the right side of the road for travel.
Q. Well,
youre only crossing what, about 15 feet of pavement by that time?
A. Id say a little more than that.
[45]
He agreed he was asked those questions and gave those answers, but he disagreed
that he had only cycled 15 feet onto the asphalt roadway.
[46]
He did agree only three or four seconds passed from the time Mr. Seikhons
truck left to the time of the impact.
[47]
He agreed Mr. Kangs tractor was pulling two trailers and that
nothing obstructed his view; the truck was there to be seen. But he said he was
there to be seen too, and the tractor was behind him. So even if he had turned
his head 90 degrees when he started, he would not have seen the tractor.
[48]
Counsel then put his discovery transcript to him at page 43, questions
287-294, and he agreed those questions were asked and he gave those answers:
Q. Now, theres nothing obstructing your view of this
truck?
A. No.
Q. Its a big truck?
A. Yes.
Q. Its there to be seen?
A. Thats right. So was I.
Q. Its got two trailers on it full of lumber?
A. Thats right.
Q. Theres no obstructions of your view?
A. No. And theres no obstructions of his view
either.
Q. And
where you were on your bicycle stationary with Mr. Sekhon and just at the
instant you leave, you agree with me that had you from that point looked to
your right at that time you would have seen the defendants truck?
A. Possibly.
Q. It would be there to be seen?
A. Possibly.
Q. Do you have any problems with your vision?
A. No, I dont.
[49]
Counsel then suggested that Mr. Kang had barely straightened his
tractor and trailer load and was not doing 50 km. But he said he roared past
me, twice my speed. He disagreed that Mr. Kang leaving from a stop could
not get to 50 km an hour some 120 feet from the intersection.
[50]
He agreed that he had said at the examination for discovery he was some
50 feet from where he started cycling to the point of impact (see page 32, questions
217-218):
Q. Well,
from where you started on your bicycle how far had you travelled to the point
where you encountered the defendants truck?
A. Probably fifty feet.
Q. Fifty, five zero?
A. Yes.
[51]
When asked if he recalled the police officer attending and speaking to
him, he said he had a vague recollection.
[52]
Counsel referred to the police file where the officer noted Mr. McCaffrey
had decided to cross the road. He said the note was wrong.
[53]
The officers note of failed to look, rode into side of truck was put
to him and he denied saying that, and he denied saying he had failed to look
both ways.
[54]
Counsel put to him that his trial evidence of his arm hitting the truck
side mirror was the first mention of such contact.
[55]
Counsel then put his examination for discovery transcript at page 22, questions
170-178, and he agreed he had not mentioned the truck mirror clipping his elbow
nor did he tell the police officer about colliding with the mirror. He said did
not know why he failed to mention it, but he would have been in shock, pain and
agony.
[56]
Mr. McCaffrey denied his suggestion of contact with the mirror was a new
fabrication.
[57]
Counsel returned to the statement he made on examination for discovery
of being across the asphalt 15 feet, and Mr. McCaffrey said he travelled
15 feet, not at a right angle, but in the direction of travel (i.e. eastbound)
and said it was probably 40 feet.
[58]
When counsel questioned again about the distance of the DNR Towing
entrance from the intersection being 230 feet, he agreed his estimate of 120
feet was wrong.
[59]
Counsel put to him that the business at 10705 Timberland Road was 258
feet from the centre of the Tannery Road intersection, and the DNR Towing entrance
was much further along – i.e., by the Van Isle barge on Exhibit 2. Mr. McCaffrey
agreed.
[60]
Counsel then put to him that the point of impact could not be where the
Big Bertha truck was parked, and he agreed.
[61]
Mr. McCaffrey agreed he was an avid cyclist and knew his
responsibilities as a cyclist. He knew he had to drive his bicycle as if it was
a motor vehicle and keep to the right hand side of the road. He agreed he had
to cross the gravel and then the eastbound traffic lane to get to the proper
side of the road to go westbound on Timberland Road.
[62]
He agreed he gave no signal and that he should look first to see if
something was coming along behind him. He agreed Mr. Kangs truck was right
behind him, and he agreed, it was right on top of me.
[63]
When asked if he had been in a motor vehicle if he would have done the
same thing, Mr. McCaffrey said he would.
[64]
When counsel put to him that driving down the wrong side of the road would
be unlawful, he said if you say so.
[65]
He agreed he had not spoken to Mr. Seikhon about the accident, but
he had discussed returning to work.
[66]
He agreed the only eye witnesses would be Mr. Kang, himself, Mr. Seikhon
and the oncoming truck driver.
[67]
He agreed that the ambulance attendants, the police, and Mr. Seikhon,
as well as the other truck driver were all close by.
Mr. Kangs Evidence
[68]
Mr. Kang has been a licenced Class 1 truck driver since 1998, and he
detailed his experience.
[69]
He was driving a 1998 Western Star 4900A tractor with a sleeping cab and
pulling two trailer loads of raw cut lumber. He agreed his tractor is 20 feet long
and the trailers were 32 feet and 28 feet long, and together with two feet gaps
between the trailers their total length is 84 feet.
[70]
He had measured from the ground to the bottom of the small mirror under
his large side mirrors, and the distance was 6 foot 4 inches, and the height to
the top of a three high stack of lumber was 13 foot 6 inches.
[71]
On August 17, 2010, he was bringing his second lumber load from CN Rail
to the Goodrich transition load site. He followed the South Fraser Perimeter
Road turning off at Tannery Road and making a left turn on Timberland Road. He
has driven that route hundreds of times.
[72]
He had been to the Goodrich site many times and knew Mr. McCaffrey
as the forklift driver who unloaded his trucks. He had made one previous trip
that day.
[73]
Counsel showed him Exhibit 2, Tab 2, pictures of a truck making a left
turn from Tannery Road onto Timberland Road, and he said he would have made a
wider turn to allow for the two trailers behind him.
[74]
He said he had to watch the traffic on Timberland Road for several
minutes, and he saw Mr. McCaffrey on the left hand side of the roadway on
the dirt/gravel portion.
[75]
Given the truck load, he made a slow and wide left turn in first gear
and then started to move into second, third, and fourth gear.
[76]
He said the asphalt road carries two lanes of traffic, but the middle of
the road has no white markings.
[77]
He completed his left hand turn and could see Mr. McCaffrey cycling
on the dirt beside the roadway and passed him; he believed he was in fourth or
fifth gear doing 20-30 km. He placed Mr. McCaffrey by the light pole shown
in the picture near the intersection.
[78]
He said he had first seen him earlier when Mr. McCaffrey was
between the corner and the first lamppost, and having made his turn, he was
between the curb and the lamppost but pedaling in the same direction on the
dirt/gravel.
[79]
He did not recall seeing anyone else with Mr. McCaffrey or a red
pick-up truck.
[80]
He then saw the oncoming driver pointing to him, and he estimated he was
about some 60 plus feet from the oncoming driver. He believed he was losing his
load of unfinished timber and looked into his side mirror only to see Mr. McCaffrey
coming from the left hand side of his truck. He saw Mr. McCaffrey hit the
trailer tires and fall from his bike onto the road.
[81]
He believed that Mr. McCaffrey would have collided with the tires
on the first trailer.
[82]
He banged on his brakes and stopped right away.
[83]
He said he jumped down from his cab, ran back to him and asked if
McCaffrey was ok. Mr. McCaffrey replied yeah and got up. He could see
scratch marks on Mr. McCaffreys low back.
[84]
He said he called 911 and the ambulance and police came. Mr. Seikhon
and the other driver also came. He said the ambulance was there within five
minutes.
[85]
He said he saw Mr. McCaffrey pedaling on the dirt but had not seen
him cycling on the pavement at any stage. He denied ever seeing Mr. McCaffrey
in front or beside his cab. When asked if he saw Mr. McCaffrey near his
side mirror, he said no, and he did not think Mr. McCaffrey got near the
front of his truck.
[86]
He did not personally know Mr. Seikhon, the owner of the Goodrich site.
He said Mr. Seikhon was on the accident site right away.
[87]
When asked if he if talked to Mr. McCaffrey, he said he asked Mr. McCaffrey
how it had happened and how he did not see him. Mr. McCaffrey replied he
was in a rush, and he could not see Mr. Kang.
[88]
He said Mr. McCaffrey said the same thing to the police officer.
[89]
He asserted he was in his correct west side position on the right side of
the road close to the asphalt edge.
[90]
He thought the bicycle was okay, and after the policeman spoke to him,
he was told he was good to go.
[91]
When asked about how loud the tractor is, he said it was a big noisy
diesel truck, too noisy to take home.
[92]
When asked the distance from the intersection to the accident, he agreed
he had said in a previous statement that the distance was some 200-250 yards.
He agreed it looked like it was much less.
Cross-Examination of Mr. Kang
[93]
He agreed he had initially said the distance was 60 feet from the
intersection to the collision, and the distance between him and the oncoming
truck was 30 feet. But when questioned, he increased his estimates.
[94]
He agreed that at his examination for discovery on September 9, 2013, he
said the collision occurred some 200-250 yards from the Tannery Road
intersection.
[95]
He denied he used an alternate route – i.e., he denied he came along
Timberland Road from the east side of Tannery Road.
[96]
He denied that DNR Towing left a Big Bertha truck on the north side of Timberland
Road or that the Big Bertha truck was parked on Timberland Road the day of the
accident.
[97]
And he denied that any truck was parked on the north side of
Timberland Road and that he had had to maneuver past it and edged to his left –
i.e., towards Mr. McCaffrey coming from his left side.
[98]
He agreed that on his examination for discovery, he had said Mr. McCaffrey
collided with his first trailer, but at trial, he was unable to say precisely
where the collision occurred on the trailers.
[99]
At examination for discovery, Mr. Kang had forgotten the name of
the oncoming driver (Mr. Dhaliwal).
[100] He also
said that the police arrived not too far, a half hour after the accident. And
he agreed Mr. Seikhon was at the accident scene after the accident.
[101] He agreed Mr. McCaffrey
said his back hurt, and he said he could see it was scratched like Mr. McCaffrey
had road rash, but it was not bleeding.
[102] He agreed
he said in his statement that Mr. McCaffrey said he was okay but his back
hurt.
[103] He denied
making up his conversation with Mr. McCaffrey and that Mr. McCaffrey said
to him didnt you f***ing see me?, and he asserted that he had asked Mr. McCaffrey
if he saw him, and Mr. McCaffrey had said no.
[104] He denied
his truck was doing 40 km at the time of the collision, but he did agree that
his truck could get up to 40 km in fifth gear.
[105] He said Mr. McCaffrey
did not come at a right angle into the side of his truck; rather he was cycling
in the same direction – i.e., west.
[106] As to the
point of impact marked by the blue cross on Exhibit 2, he said the collision
was before that (I note the blue cross on Exhibit 2 is some 60 metres from the
west edge of Tannery Road).
[107] In further
testimony, he agreed Mr. Dhaliwal had stopped in time to avoid running
over Mr. McCaffrey, i.e. they were cab to cab. Then Mr. Dhaliwal
pulled his truck out to the side of the road, and he and Mr. McCaffrey
moved to the side of the road so as not to block the traffic.
[108] In sum, Mr. Kang
said he was stopped at the stop sign on Tannery Road for several minutes before
turning, that he did note Mr. McCaffrey off to the side of the road while
he was waiting, that he drove his truck through first, second and third gears
as he straightened up his cab on Timberland Road and that he would have changed
into fourth and fifth gear by the time his two trailers were straightened out
on Timberland Road. He said he came to a stop before the DNR Towing entrance on
Timberland Road, but he was unable to specify where that location was.
Constable Douglas
[109] On August
17, 2010, Cst. Douglas was on general duties.
[110] His
recollection of that day was slim, but he had made notes at the roadside, and
he completed an occurrence report on his laptop shortly after the event in his
police car.
[111] He
recalled the collision, that the injuries were not severe, that an ambulance
was already there when he arrived, and that the truck had a load of timber.
[112] The
accident was reported at 2:18 p.m.; he was on site at 2:28 p.m.; and, he
completed his occurrence report at 2:51 p.m. He typed a synopsis at 3:35 p.m.
into his computer and later provided the standard police investigation report.
[113]
Cst. Douglass occurrence report read in part (Exhibit 9):
Upon attendance Cst. DOUGLAS observed EHS with a Mike MCCAFFREY.
MCCAFFREY advised Cst. DOUGLAS that he was standing road side on TANNERY RD and
decided to cross the street upon his bicycle. MCCAFFREY said he failed to look
both ways and rode into the side of a North bound truck as it passed by. MCCAFFREY
struck the truck halfway down its length making it impossible for the driver to
have known MCCAFFREY was going to attempt to cross the street. MCCAFFREY advised
he ran into the load of the truck, (wooden planks) and was spun in the air and
scraped his elbows and knees. MCCAFFREY was not located at a pedestrian
crossing when he made the decision to cross.
Amandeep KANG was driving [
], TRACT COMMERCIAL BROWN, on TIMBERLAND
rd when he saw MCCAFFREY in his rear view mirror being tossed through the air
from his truck. KANG immediately stopped his truck and pulled over road side.
Seikhon, SUCHA advised he was on the East side of TIMBERLAND
south of TANNERY Rd. SEIKHON advised he had seen MCCAFFREY spontaneously get
upon his bicycle and run into KANGS truck mid-way across the length of its
trailer.
EHS attendants advised that MCCAFFREYS injuries were minimal
but he was to be transported to SMH for ex rays.
[114]
Cst. Douglas agreed that his comment that Mr. McCaffrey struck the
truck half-way down its length making it impossible for the driver to have
known McCaffrey was going to attempt to cross the street was his opinion and
not what the parties said.
[115] He
reiterated that Mr. McCaffrey said he failed to look both ways and rode
into the side of the truck.
[116] He agreed
that in his initial standard report, he initially noted Mr. Kang felt the
impact, but he realized Mr. Kang could not have felt the impact and
deleted that.
[117] He agreed
his conversation was with Mr. McCaffrey when he was in the back of the
bus being tended to by the emergency medical personal. He agreed that interaction
would not be a time of contemplation and reflection, and it would include a
high degree of distraction.
[118] He agreed
he separated the various witnesses from each other.
[119] When asked
if he saw any blood on the side of the truck, he said he recalled looking at
the wood and it had no blood on it.
[120] When asked
about his narrative, he said his comments were not direct quotes of those
present as he had not put them in quote marks. He agreed nothing was a direct
quote, but he had recorded his recollection of the conversations.
[121] He was
unable to specify where DNR Towing was located or the distance from the Tannery
Road intersection.
Mr. Seikhon
[122] Mr. Seikhon
owns Goodrich terminals and related companies. The company was Mr. McCaffreys
employer at the time of the accident in August 2010.
[123] He said he
was driving west on Timberland Road and was east of the Tannery Road
intersection and noted a super B in front of him, some 200 to 250 feet. He
saw a cyclist come out and hit the rear trailer of the timber load.
[124] He stopped
and pulled over to help and found out the cyclist was Mr. McCaffrey. He
said it was only a few seconds from seeing the cyclist until the cyclists
impact with the trailer.
[125] He said Mr. Kangs
truck had kept to its side of Timberland Road and did not drive into the
eastbound lane.
[126] He called
911, and ambulance, police, and fire trucks came to the scene. The paramedics
looked after Mr. McCaffrey, and Mr. Seikhon gave a report to the
police officer.
[127] He denied
pulling over to the side of Timberland Road and discussing with Mr. McCaffrey
the use of his truck to run an errand to Whalley before the accident.
[128] He also
denied seeing any vehicles parked on the side of the road at the scene of the
accident.
[129] He did not
recall there being an oncoming truck at the scene of the accident.
[130] He said Mr. Kangs
truck had kept to its side of Timberland Road and did not drive into the
eastbound lane.
[131] In terms
of the collision location, he placed the cyclist hitting the tires of the rear
tire.
Cross-Examination of Mr. Seikhon
[132] In
cross-examination, Mr. Seikhon agreed Mr. McCaffrey was an employee
of the company. He agreed the payment cheques to Mr. McCaffrey listed in
Exhibit 3, page 87 were correct and reflected income for 2009 and 2010.
[133] However, Human
Resources and Skills Development Canada made requests for Mr. McCaffreys
record of employment that eventually led to a further record of employment
being provided and evidently tax consequences for the company.
[134] Counsel
then turned to the relationship with Mr. Kang. Mr. Seikhon said he
did not do business with Mr. Kang, but he did haul loads for other
companies. Mr. Kang is not involved in billing his company.
[135] Counsel then
put to him that he gave a statement to the plaintiffs investigator on August
20, 2013 where he indicated he knew the truck driver as he had done business
with my company. Mr. Seikhon said that quote was not exact, and he
reiterated that he did not have any business relationship with Mr. Kang.
[136] In
reference to the constables notes of Mr. Seikhon saying he was east of
the intersection, he agreed that summary was not what he said to the officer.
Asked to compare that to Exhibit 2, he agreed that did not seem correct. (I
note the compass directions varied with the witnesses, and Mr. Seikhon in
my opinion was driving westerly towards the Goodrich terminal and viewed the
accident from behind Mr. Kangs truck.
[137] He denied
having spoken to Mr. Kang about how the accident happened. When asked if
he had discussed the accident with Mr. Kang after Mr. Kang delivered
his load to the Goodrich site, he said he did not recall, nor did he recall
having discussed the accident with Mr. Kang since.
[138] Counsel then
put to Mr. Seikhon the events as described by Mr. McCaffrey, i.e., he
saw Mr. McCaffrey cycling towards Whalley and pulled over to the side of
the road and discussed letting Mr. McCaffrey use his truck to attend his
errand in Whalley, and he then drove away and did not see the accident.
[139] Mr. Seikhon
denied that occurred, and he denied he had made up his evidence.
[140] Mr. Seikhon
further denied he was mad at Mr. McCaffrey because he had to pay the taxes
withheld from his income.
[141] Mr. Seikhons
statement given to the plaintiffs investigator, together with a sketch, shows
the truck proceeding east and the cyclist hitting the right side. But Mr. Seikhons
statement and the sketch is opposite of what occurred and has him coming
towards the scene of the accident rather than behind it.
[142] He agreed
the sketch plan was wrong, and he was mistaken. He agreed that his initials were
on the sketch, but he denied he made up any evidence before the Court.
[143] In
re-examination, he said he had not seen the transcript of the discussion with
the investigator nor was he provided a copy of the audio recording or asked to
verify it. The statement was marked Exhibit 11.
Plaintiffs Argument
[144] I
summarize the plaintiffs argument in three parts: (1) that a motor vehicle
cannot pass on the right hand side of another motor vehicle: s. 151(2) of
the Motor Vehicle Act; (2) that a commercial truck driver is subject to
a standard of care of a reasonably prudent professional truck driver having
regard to all the circumstances; and (3) that the plaintiff is more credible
than the defendant in terms of the description of the accident.
[145] Regarding
the first argument, I do not understand the right hand passage law as relied
upon by counsel. That law deals with someone passing on the right hand side of
a vehicle in its proper lane as exemplified in the plaintiffs reference to R
v. Dickson, 2003 BCSC 437.
[146] In the
present case, the cyclist appeared to try to cross the road from the left hand
side across a lane of oncoming traffic and drove into the left hand side of the
defendants truck.
[147] Regarding
the second argument, in MacEachern v. Rennie, 2010 BCSC 625 Ehrcke J.
dealt with a cyclist proceeding southbound on the King George Highway, facing
the stream of traffic, and being struck by the tail end of the defendants
oncoming commercial truck. The cyclist was forced into a narrow gap between the
back end of a parked pick-up truck and the oncoming traffic. And the Court
heard expert evidence about the standard of care. But that cases circumstances
are quite different from the present case.
[148] In Nelson
v. Lafarge Canada Inc., 2013 BCSC 1552, Dickson J. referred to the standard
of care of a professional truck driver with respect to a cyclist who collided
with a large right turning truck. Mr. Nelson was a cyclist in the right
hand lane proceeding east on Hastings Street while the defendant driver was
also proceeding east, but the driver signaled and turned right at Nanaimo from
the centre lane. Again, that cases circumstances are very different from the
present case.
[149] I do not disagree
with the general proposition that a commercial truck driver in a cab some six
or seven feet off the ground has a better view of the traffic, and as a
professional driver, with a large tractor and trailer, the driver must always
be aware of the potential problems created by pedestrians, cyclists, etc.
[150] Regarding
the third argument, plaintiffs counsel did not deal with the patent difficulties
of his own clients credibility.
Discussion
[151] On the
balance of the evidence, I am satisfied that Mr. McCaffrey drove into the
side of the trailer load of timber that Mr. Kang was towing.
[152] I am
further satisfied that it was wholly Mr. McCaffreys own fault.
[153] From the
outset, Mr. McCaffrey conceded that he failed to look to his right as he
left the south side gravel area and entered the eastbound lane of Timberland
Road. And he concedes he did not look until he became aware of the truck that
he was riding into.
[154] In other
words, he conceded he did not keep any lookout. The attending police officer corroborated
that evidence.
[155] I find
that Mr. McCaffrey rode his bicycle from the dirt area beside the asphalt
roadway in somewhat parallel fashion to the direction of Mr. Kangs truck.
[156] Mr. McCaffrey
did not enter the roadway at a right angle; that mode of entry would at least
have given him a view of traffic each way.
[157] Instead, Mr. McCaffrey
rode on an angle across the gravel, onto the eastbound lane and, eventually, as
he was entering the westbound lane, he turned to look back over his shoulder to
see what traffic was coming. But at that moment, the lookout was too late, and
he collided with Mr. Kangs trailer.
[158] Mr. Kang
said he saw Mr. McCaffrey riding along the dirt beside the asphalt road, and
he passed him. He only saw Mr. McCaffrey striking the side of his timber
load because the oncoming driver waved at him and he looked in his rear-view
mirror to see the collision.
[159] Mr. McCaffreys
comment to the police officer and the evidence of Mr. Seikhon leads me to
conclude the plaintiff appeared to strike somewhere in the middle of the
trailers, but I note Mr. Kang says he struck somewhere on the first
trailer. In any event, where exactly he struck the trailer does not affect my
liability determination.
[160] Mr. McCaffrey
failed to mention at any time before the trial that he collided with the
tractors side mirror. I take it that he was inferring that he got ahead of the
trucks cab, and Mr. Kang was increasing his speed from the corner and
should have had him in his sight. But the suggestion that Mr. McCaffrey
hit the trucks side mirror is belated, and implausible on the evidence.
[161] I reject
that argument.
[162] Indeed, no
evidence suggests that as Mr. McCaffrey entered onto the asphalt roadway –
at any time – in front of Mr. Kang so that Mr. Kang might perceive
the potential danger that Mr. McCaffrey was riding into.
[163] Additionally,
at no stage before the trial did Mr. McCaffrey suggest that Mr. Kang
was not driving in his own lane of traffic westbound on Timberland Road.
[164] And the
suggestion that a stationary truck, which was on the north side of the road, caused
Mr. Kang to veer to his left is without substance. In fact, no evidence
demonstrates a truck being parked on the north side of the road such that Mr. Kang
had to swerve to miss it.
[165] I reject
that argument.
[166] A good
deal of the plaintiffs case sought to diminish the evidence of Mr. Kang,
the police officer and Mr. Seikhon.
[167] Regarding Mr. Seikhons
credibility, while Mr. Seikhon may well have been subsequently upset about
failing to pay Mr. McCaffreys taxes and the financial consequences that
arose out of the record for employment, his statement to the police officer is
consistent with the other evidence about how the accident happened.
[168] His later
statement and sketch given to the plaintiffs investigator is so much at odds
with the rest of the evidence that I can only describe the later statement as
nonsense.
[169] Much was
made of Mr. Kangs inability to estimate distances, but the evidence on
the whole satisfies me that the point of impact occurred somewhere as Mr. McCaffrey
estimated, some 110 to 120 feet to some 180 feet from the intersection of
Tannery Road. The impact was nowhere near the location of DNR Towing where the
alleged vehicle was meant to be affecting Mr. Kangs passage.
[170] Moreover,
the primary and sole cause of the accident is Mr. McCaffreys failure to
keep a proper lookout.
[171] Some
suggestion was made that Mr. McCaffrey did have some hearing disability,
but Mr. McCaffrey denied he had a hearing disability. Thus I have no
explanation as to why he would not hear an coming large diesel tractor truck.
[172] I am
satisfied that the notes Cst. Douglas made are the notes of an independent
investigator on the scene soon after the incident, and they can only point to Mr. McCaffrey
being the author of his own misfortune.
[173] Therefore,
the primary cause of the accident was Mr. McCaffreys failure to keep a
proper lookout, the failure to obey the rules of the road, and failure to give
way to a truck with the right of way.
Conclusion
[174] In sum, I
find Mr. McCaffrey 100% at fault. He is wholly liable for the accident.
[175] The
defendant is entitled to his costs.
The
Honourable Mr. Justice Crawford