IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140813

Docket: 21365

Registry: Chilliwack

Between:

Toni-Lynn Michelle
Barber

Plaintiff

And

Rebekah Leigh
Jack, Daniel Aaron Jack,

Insurance
Corporation of British Columbia,

John Doe or Jane
Doe

Defendants

-and-

Docket: S21371

Registry: Chilliwack

Between:

Beth-Anne Simpson

Plaintiff

And:

Rebekah Leigh
Jack, Daniel Aaron Jack,

Insurance
Corporation of British Columbia,

John Doe or Jane
Doe

Defendants

Before:
The Honourable Mr. Justice A. Saunders

Oral Reasons for Judgment

[1]            
THE COURT: This trial concerns liability for a motor vehicle accident
that occurred on July 11, 2008.

[2]            
The plaintiffs were proceeding eastbound on Highway 1 to the east of
Chilliwack, at a location where the eastbound and westbound lanes are divided
by a narrow grassy median.  They collided with a vehicle operated by the
defendant Rebekah Jack, that had been westbound. Ms. Jack’s vehicle crossed the
median and impacted the plaintiffs’ vehicle.  The damage was horrific.  Both
vehicles ended up overturned, severely crumpled and deformed.  That no one was
killed is a testament to the strides that have been made by motor vehicle manufacturers
in safety design.

[3]            
Neither plaintiff saw the Jack vehicle until it was approaching them and
collision was imminent.  They can offer no evidence as to how the Jack vehicle
came to be crossing the median. Nevertheless, a prima facie finding of
negligence on the part of the defendant Ms. Jack is established by the
circumstances, and the burden lies on Ms. Jack to persuade the Court that
the accident likely happened through no fault on her part.

[4]            
Ms. Jack seeks to persuade the Court that the collision occurred
because she, through no fault on her own part, had been seeking to avoid a
collision with a car travelling beside her to the right, in the right-hand westbound
lane, that suddenly changed lanes, moving into her own lane of travel.  She
says that in an attempt to avoid colliding with that vehicle, she moved to the
left onto the paved shoulder (which is from the photographic evidence very
narrow). Her left tires crossed over into the grass of the median and she lost
control.

[5]            
The plaintiffs say that Ms. Jack’s evidence of there having been
what I will call a third vehicle, and her evidence of the circumstances of the
accident, are at least equally consistent with the loss of control having been
caused by inadvertence on Ms. Jack’s part.

[6]            
Furthermore, if I accept Ms. Jack’s evidence that there was a third
vehicle, and if I find fault on the part of the driver of that third vehicle, the
plaintiffs say that Ms. Jack should also be found liable.  They say I
should find some degree of fault on Ms. Jack’s part and make a finding of
joint and several liability between both Ms. Jack and an unidentified
driver, leading to joint and several tort liability on the part of Ms. Jack
and statutory liability on the part of the defendant Insurance Corporation of
British Columbia ("ICBC").

[7]            
Ms. Jack’s evidence is that to the east of the scene of the
collision, traffic had been in only one lane because of construction.  When
they were past that bottleneck, she moved out from behind a truck into the
passing lane where she remained.  She said the traffic was heavy.  At some
point, she was abreast of what I have referred to as the third vehicle.  They
were travelling at the speed limit of 100 kilometres an hour.  The third
vehicle, she testified, then moved very quickly into Ms. Jack’s lane.

[8]            
It was put to Ms. Jack on cross-examination that the third vehicle made
that manoeuvre "gradually," that it gradually forced her over to the
side, but Ms. Jack disagreed with the use of that word.  She said that the
front of the third vehicle was possibly slightly ahead of her, but not enough
for her to simply brake and get around behind it.  Ms. Jack testified that
she tried to avoid that vehicle by going over onto the left hand shoulder. 
When she did so, she found that there was only a narrow shoulder, not wide
enough to fit her car.  The third vehicle came to be entirely in her lane.  She
says that she then braked.  She acknowledges she did not “hammer down” on the
brake, and it is the case that there is no evidence of skid marks, but she says
her two left tires came to be in the grassy median and she lost control.

[9]            
Asked on cross-examination how long it took from the time she saw this
third vehicle until she went off the road, all she could say in terms of a
specific time period was "less than 30 seconds."  Asked to offer her
best estimate, she could only say, "very quickly."  She said that her
sense of time would probably be a bit warped.

[10]        
She did not sound her horn when the other vehicle began to change
lanes.  She testified to feeling that if she took her hand off the wheel she
would not be able to control the car.  She described her situation as
"precarious."  She says that she felt panicked.

[11]        
The accident was investigated by Constable Small, now a retired member
of the RCMP Traffic Services Division.  He testified at trial.  He testified
that a driver in the position of Ms. Jack would not have been able to
safely pull onto the shoulder.  He explained that the grade of the median is
steep, that the grass is soft and that it tends to pull vehicles into the
centre of the median.  He testified to his knowledge of that having been a
common problem and of other accidents having occurred in this vicinity as a
consequence.  He said this was regarded as a high frequency collision area. 
The median has since been altered with the installation of a wire safety
barrier.

[12]        
Ms. Jack ended up upside down with her head protruding through the
windshield, cuts to her scalp, and blood in her eyes.  Her neck was fractured. 
Her two young children were in the back seat of her car.  She testified that it
took some time for a crew to arrive with the equipment needed to cut her out. 
She was eventually airlifted to Royal Columbian Hospital.

[13]        
Ms. Jack says that there was a male paramedic whom she was with for
about 45 minutes when she was still in the vehicle.  She testified that most of
the discussion she had with him was about her injuries, but that she did ask
him if the other vehicle had stopped.  This witness was not produced.

[14]        
If any inference could be drawn from any delay on the part of the
plaintiff in having made a claim that another driver was at fault, I do not
have the testimony of this paramedic to rebut that inference.  Nevertheless, it
is conceded that by 3:43 p.m., with the accident having happened just after
12:00 noon, Ms. Jack did tell a police officer who was interviewing her in
the hospital that she had been cut off by another driver.  She reiterated that
claim some days later when she was formally interviewed by Constable Small.

[15]        
The plaintiff testified as to the steps taken after the accident to
locate witnesses.  ICBC did not defend this claim on the grounds of a failure
to have taken any such steps or adequate steps in that regard.  There was a
plea that the unidentified driver’s identity was ascertainable, but that plea
was withdrawn.

[16]        
Constable Small did issue the plaintiff with a moving violation ticket. 
He does not remember when he did so.  The ticket was for having failed to keep
right on a divided highway and the ticket itself references s. 164(1) of
the Motor Vehicle Act, R.S.B.C. 1996, c. 318.  Ms. Jack did
not contest the ticket and is therefore deemed by law to have entered a guilty
plea.

[17]        
As for the rule in Hollington v. F. Hewthorn and Co. Ltd., [1943]
1 KB 587 (Eng. C.A.), and the cases that follow from it, the evidence of
conviction is admissible and can raise a presumption of negligence.  However,
as counsel for the plaintiffs rightly pointed out, the applicable section for
failing to keep to the right is s. 150 of the Motor Vehicle Act. Section
164(1), which was cited on the ticket, deals with something different: controlled
access to a highway.

[18]        
I do not have evidence of what Ms. Jack was formally convicted of
so I cannot draw any conclusions at all with respect to the formality of her
having been deemed to have been found guilty or having entered a guilty plea.

[19]        
It is also the case generally that evidence of an accused’s failure to
dispute a charge may be taken as evidence of a guilty mind.  Ms. Jack
however did offer an explanation.  She says that it did not seem to her that
there was any point in disputing the ticket because, regardless of the reasons,
it was a fact that her car did not keep to the right.

[20]        
The inference I drew from Ms. Jack’s testimony was that she had understood
this to be a situation involving what a lawyer would classify as strict
liability.  I accept the explanation she gave; I do not infer civil liability
or her belief as to her civil liability from her having failed to dispute the
ticket and from being deemed to have pleaded guilty.

[21]        
Overall, I was struck by the sincerity of Ms. Jack’s evidence.  She
gave her testimony in a calm, understated, thoughtful manner.  It was put to her
in cross-examination that her story of a third vehicle being involved was
concocted.  Her denial was emphatic and in my view compelling.

[22]        
In cases where there is no corroborating evidence of the involvement of
an unidentified driver, it is not enough to decide a case solely on the basis
of a party’s demeanour.  As Justice O’Halloran famously said in Faryna v.
Chorny (1952), 2 D.L.R. 354, the evidence must be tested against the
preponderance of probabilities which would be recognized as reasonable in a specific
place and specific conditions.  In that respect, I have had regard to the
factors enumerated by the Court of Appeal in Vanderbyl v. ICBC (1993),
79 B.C.L.R. (2d) 156.

[23]        
With respect to those circumstances, the plaintiffs point most
emphatically to Ms. Jack’s failure to have called evidence from the
attendant who spoke to Ms. Jack at the scene.  I do not attach any weight
to this.  In the emergent circumstances described by Ms. Jack, I would
tend to think it unlikely that the attendant would have been keeping a thorough
record of every utterance made by Ms. Jack.  The emphasis would naturally
have been on her physical well-being and any testimony from an attendant that
no such statement was made by her would have to be regarded with a great deal
of skepticism given that some six years have gone by.

[24]        
Ms. Jack did make a statement that afternoon at the hospital that
there had been a third vehicle involved, and inasmuch as Vanderbyl might
be considered as laying out a series of criteria, I regard that as sufficient
on the part of Ms. Jack, sufficient that is to negate any inference or
suggestion that her story has changed or that the involvement of a third
vehicle was a concoction on her part after the fact.

[25]        
Looking at the preponderance of the evidence as to the circumstances,
there is no apparent explanation as to how this accident could have occurred
without the fault of a third unidentified driver other than through inadvertence
on Ms. Jack’s part. The plaintiffs emphasize that it was a bright, sunny
day.  The evidence is that the driving conditions were good.

[26]        
It seems to me that a mother of two young children who is an experienced
driver and familiar with the roadway, and who is travelling at highway speed
with two young children strapped in the back, in the circumstances of this case
is more likely to end up driving along the shoulder and being caught by the
grass as a result of an evasive manoeuvre rather than through no reason other
than her own inadvertence or inattentiveness.  I accept that Ms. Jack was conducting
an emergency evasive manoeuvre and that she did so as a result of negligence on
the part of an unidentified driver.

[27]        
I reject the submission that the collision was contributed to by any
fault on Ms. Jack’s part.  I accept her explanation for not sounding the
horn.  I have no basis on the evidence for concluding that Ms. Jack ought
to have applied the brakes more forcefully.  In the limited amount of room she
had, it seems to me that her choice of avoidance and controlled or more gradual
braking was more likely to keep her car under safe control given her speed and
given the traffic.

[28]        
Some submissions were made and some authorities were cited in respect of
the concept of the agony of collision.  In my view, that body of law is better
applied to situations where a driver engages in conduct that would otherwise be
found to fall below the standard of care, but where the normal standard of care
is relaxed in view of the emergent circumstances and in view of a driver having
to act more of an instant than through the process of more deliberate reasoned
judgment.

[29]        
I am not satisfied on the evidence that Ms. Jack failed to act as
any reasonable driver would have in the circumstances.  Alternatively, if there
were what would normally be regarded as negligence on her part, I would find
her to be relieved of liability in view of the agony of collision.  I find that
in the emergent circumstances that confronted her, Ms. Jack’s conduct is
not subject to being second-guessed.  I find no liability on her part.

[30]        
Judgment will go against ICBC in respect of the liability of the
unidentified driver.

“A. Saunders J.”