IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110504

Docket: 81662

Registry:
Kelowna

Between:

Allena Fay
Chow-Hidasi

Plaintiff

And

Istvan Stephen
Hidasi

Defendant

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
Liability for a single-motor-vehicle accident is the issue on this
summary trial. On January 26, 2007 the parties were on route from their home in
Peachland to Vancouver by way of Highway 97C . As they approached the summit
the defendant, Mr. Hidasi, lost control of the car. The plaintiff, Mrs. Chow-Hidasi,
was in the front passenger seat. The vehicle collided with two separate
concrete no‑post barriers before coming to a stop. Mr. Hidasi was
not injured in the accident; Mrs. Chow-Hidasi was.

[2]            
The parties agree that this matter is suitable for resolution under Rule
9-7. In fact, the plaintiff also brought an application for a summary
determination of the issue of liability. During the hearing she abandoned her
application on the understanding that all of the evidence tendered in support of
or in response to it was admissible in the context of the defendant’s summary
trial application. I am satisfied, given the nature of the issues and the lack
of any significant conflict in the evidence, that this case is suitable for
determination by summary trial.

[3]            
By way of overview, the plaintiff argues that the defendant was
overdriving the road conditions. She also argues that the vehicle was equipped
with inadequate tires. The defendant denies that he was overdriving the road
conditions, and argues that the accident happened as a result of a sudden and
unexpected loss of both the steering and braking capacity of the vehicle. He
argues that he responded appropriately in the face of that emergency, but the
accident occurred in any event. The plaintiff does not accept that there was a
mechanical problem, but argues that even if there was it was the product of
inadequate or negligent maintenance of the vehicle by the defendant. In the
further alternative, she argues that the defendant’s response to the emergency
was itself negligent and liability should be found on that basis.

[4]            
In addition to the substantive issues, there is an evidentiary issue relating
to the admissibility of certain examination for discovery evidence of the
defendant and another relating to spoliation.

[5]            
I will deal first with the evidence and the admissibility issue and then
turn to the legal analysis.

The Facts

[6]            
The plaintiff objected to the admissibility of some of the examination
for discovery evidence of Mr. Hidasi, evidence that Mr. Hidasi points
to in support of his position. All of the impugned discovery evidence is
exhibited to an affidavit of the plaintiff’s counsel’s legal assistant. As I
understand the objection, it is that the questions in dispute were reproduced
and exhibited to the legal assistant’s affidavit because they appear on pages
of the transcript that contain other questions and answers which the plaintiff
wishes to rely on. I pause to note that while that may be so, the affidavit
itself does not contain a statement to that effect. On the first day of the
hearing the plaintiff’s counsel provided the defendant with a list of specific
discovery questions that he wished to rely on. The questions and answers to
which objection is taken are not on that list.

[7]            
I am satisfied that the questions and answers are admissible, and that
no prejudice inures to the plaintiff as a result. They are admissible because
the plaintiff put them in evidence. As to the notice of the specific questions
and answers the plaintiff wished to rely on, it does not alter of the
foregoing. If it was intended to be a notice as contemplated by Rule 9-7(9), it
was not filed within the time limited under Rule 8-1(8). It is therefore of no
moment. As to the question of prejudice, the only reasonable inference to be
drawn from the plaintiff’s notice of application is that the impugned evidence
formed part of the plaintiff’s case. The defendant could have addressed the matters
about which he gave evidence on discovery in his affidavit evidence. He may not
have, I infer, because he concluded it was unnecessary given that the plaintiff
had already put those matters into evidence. In any event, if the discovery
evidence is excluded, fairness would require an adjournment to allow the
defendant to supplement the evidence given the changed face of the evidentiary
record he had reasonably thought would form the basis for the hearing. All that
would have been accomplished in the result is that the evidence that is
contained in the discovery answers would be before the court in the form of an
affidavit.

[8]            
Turning to the circumstances of the accident, and by way of general
background, the plaintiff and the defendant are married to one another. Mrs. Chow-Hidasi
is 50 years old. Mr. Hidasi’s age is not disclosed in the evidence, but he
has been licensed to drive since at least 1960. On the day of the accident Mr. Hidasi
was driving a 1992 four-wheel drive Jeep Cherokee Limited Edition, a vehicle he
purchased second hand in 1995. It had 214,111 kilometres on it.

[9]            
The parties planned to take Highway 97C (sometimes referred to as the
Coquihalla connector) to Vancouver. It runs primarily between Peachland in the
east and Merritt in the west. Between those two communities it climbs over a
mountain pass. Mr. Hidasi was familiar with the highway. I infer he knew
it could be treacherous in the winter. As a result, on the day before the
accident, and in anticipation of their trip, he had a safety inspection carried
out on the vehicle from which he concluded that his vehicle was safe and
suitable to make the planned journey. In addition, Mr. Hidasi checked the
weather forecast and road conditions for the highway before they left. He
learned that at the summit they could expect winter driving conditions, but
there was no mention of ice on the road surface. Further, the parties could see
the eastern end of the highway from their kitchen window. They made a conscious
decision to delay their departure until about 9:00 a.m., by which point they
had seen a steady flow of westbound traffic and concluded that they would be
able to make the trip in relative safety. It was a clear day, and when they
departed there was some snow on the side of the road as well as intermittent
patches on the road itself. According to the thermometer in the vehicle, the
outside temperature when the accident happened was between 1 and 2 degrees
Celsius.

[10]        
There is no evidence that either Mr. Hidasi or Mrs. Chow-Hidasi
were distracted in any fashion prior to or at the time of the accident. They
were both sober, alert and well rested. There is some evidence that Mr. Hidasi
had some medical problems in 1999. There is no evidence that any of those
problems played a role in the events of January 26, 2007.

[11]        
The accident happened about 5 or 6 kilometres east of, and below, the
Brenda Mines turnoff. The Brenda Mines turnoff is itself east of and below the
summit of Highway 97C. At the site of the accident, the road is a divided
four-lane highway with a posted speed limit of 100 kilometres per hour. There
is a concrete no‑post barrier separating the east and westbound lanes and
another concrete no‑post barrier on the right edge of the paved portion
of the westbound lanes. According to Mr. Hidasi, just before the accident
he was travelling at approximately 100 kilometres per hour in the slow lane,
climbing up a “gentle” grade and in the midst of a “very gentle” left hand
curve. He had not experienced any slippage or loss of traction or control
during the trip. None of this is denied by Mrs. Chow-Hidasi. In fact, on
examination for discovery she said that until just before the accident, they were
chatting and “enjoying the ride”.

[12]        
As with their other evidence, the parties’ accounts of the moments just
before the collision are almost entirely consistent with one another. Mr. Hidasi
has deposed that the first indication he had of a problem was when he heard a
“clunking noise”, after which he experienced a loss of steering and braking
ability. Mrs. Chow-Hidasi recalls the events immediately before the loss
of control somewhat differently. Specifically, she did not hear any abnormal
mechanical sound. The first indication she had that there was a problem was
when the vehicle began “veering sharply from the right lane into the left”.
When that happened, she heard her husband exclaim “that he had no brakes”.

[13]        
On experiencing what he perceived to be a loss of steering and braking
ability, Mr. Hidasi, afraid of losing complete control of the vehicle,
applied the emergency brake. He said on discovery that he felt that because
they were in the midst of a gentle left hand curve, the vehicle would continue
in a straight path of travel and they would end up going off the right shoulder
unless he was able to stop. It was as a result of this concern that he engaged
the emergency brake. When he did that, the vehicle began to veer towards the
centre of the highway and the concrete no‑post barrier. As soon as that
happened, he disengaged the brake but the vehicle struck the barrier anyway. It
rotated 180 degrees, travelled back across the highway, and struck the no‑post
barrier that bounded the right hand edge of the westbound lanes. The vehicle
rotated again, and eventually came to rest, still on the travelled portion of
the highway.

Analysis

[14]        
The plaintiff bears the onus of proving negligence. She argues that the
fact that the defendant lost control on a highway in daylight is a circumstance
from which the court may infer a want of reasonable care and find negligence.

[15]        
The defendant casts this submission as an attempt by the plaintiff to
engage the maximum res ipsa loquitur, a doctrine that might now be only
of historical interest (see Fontaine v. British Columbia (Official
Administrator), [1998] 1 S.C.R. 424 at para. 26). I do not agree. As
Newbury J.A. pointed out in Nason v. Nunes, 2008 BCCA 203, if, and
to the extent, the doctrine mandates that as a matter of law an inference of
negligence be drawn whenever a motor vehicle leaves the roadway in a single-car
accident, it is no longer valid. What remains permissible is drawing a factual
inference arising from a loss of control by a driver of the vehicle in a
single-car accident. The court may, not must, infer a want of reasonable care
in such circumstances. Whether it is appropriate to do so will depend on all
the circumstances. If the inference is drawn, it may be rebutted. The strength
of the inference, and hence the strength of the evidence necessary to rebut it,
will also depend on the circumstances. Absent some non-tortious explanation for
the loss of control by the defendant in this case, I would be inclined to infer
negligence on his part in these circumstances.

[16]        
The defendant argues that there is evidence from which the court should
find that the accident may have happened as a result of events for which the
defendant was not legally responsible, mainly a mechanical failure. The real
issue is whether there was such a failure, and if so whether it was something that
could have been avoided by the exercise of reasonable care. Finally, there is
the issue of whether, assuming there is a non-tortious explanation for the
accident, the defendant responded to that situation with appropriate care.

[17]        
Before turning to those issues, I will address what the plaintiff argues
is positive or affirmative evidence of negligence. Those matters are the speed
the defendant was travelling and the condition of the tires on the vehicle.

[18]        
The defendant’s vehicle was equipped with all-season Michelin tires
which he described as “practically brand-new”. He had the tires checked as part
of the 16-point safety inspection he commissioned the day before the accident. Mr. Hidasi
referred to the tires as “year-round” tires on his examination for discovery.
The plaintiff argued that I should conclude that “year-round” tires are
different than, and presumably less effective than, “all-season” tires. I am
satisfied that the vehicle was equipped with Michelin all-season tires that
were practically brand new. Mr. Hidasi deposed to as much, and this aspect
of his affidavit evidence is not denied by Ms. Hidasi. Further, his
reference to “year-round” tires is not particularly significant given that it
is apparent that English is not Mr. Hidasi’s first language.

[19]        
The temperature on the day of the accident was at or just above
freezing. The road was primarily bare, although it had some patches of snow.
The defendant has deposed that prior to the accident he did not experience any
loss of traction. In fact, he did not experience a loss of traction even after
he lost steering and braking capacity. Mr. Hidasi deposed that when he
recognized he could not steer or brake the vehicle, he engaged the parking
brake and the vehicle began to “slowly…drift from the slow…lane towards
the…centre lane”. On discovery he said much the same thing. As earlier noted, the
plaintiff’s recollection is somewhat different. Her first indication that there
was a problem was when the vehicle started “veering sharply” from one lane to the
other. Even on the plaintiff’s account I am not persuaded that the condition of
the tires played any legally significant causative role in the accident. I
recognize that after the vehicle struck the centre no‑post it rotated 180
degrees. The tires had by that point obviously stopped tracking properly. I am
not prepared to infer that the loss of traction at that point was due to the
condition of the tires. It seems to me that it is more likely than not, that it
was caused by the collision with the no-post barrier.

[20]        
I note in passing the opinion of Dr. Amrit Toor, an engineer with
expertise in accident reconstruction, who prepared a report on behalf of the
plaintiff. He was asked to assume that Mr. Hidasi had “year-round tires in
average condition (30-79% tread)”. In his opinion the “snow or icy conditions”
(a description the defendant argues is not borne out on the evidence) likely
resulted in “radically reduced friction”. In spite of that Dr. Toor wrote
that:

If prior to loss of control the
Hidasi vehicle was travelling an uphill incline and was following a curved
path, then it is likely that there was enough traction for the travel speed to
negotiate the road curvature.

In short, Dr. Toor does not attribute either the
initial collision or the post-initial collision movements of the vehicle to the
condition of the tires. To the contrary, he concludes that the vehicle had
sufficient traction to negotiate the roadway. In summary, I am not persuaded
that the condition of the tires played any role in the events in question.

[21]        
As to Mr. Hidasi’s speed, the uncontradicted evidence is that he
was travelling 100 kilometres per hour just before he experienced the loss of
steering and braking ability. He said on discovery that at the point of the
first impact with the concrete no‑post barrier he glanced at his
speedometer and was travelling at 97 kilometres per hour. The posted speed on
that section of the Coquihalla connector is 100 kilometres per hour. I
recognize that posted speed is a maximum speed and not necessarily a reasonable
speed in winter conditions. I note also that Mrs. Chow-Hidasi did not,
either before or after the accident, express any concern for her safety due to
the speed that her husband was driving. Finally, as with the tire condition, I
am not persuaded that Mr. Hidasi’s speed played any legally significant
causative role in the accident. The plaintiff argues that:

Had the defendant been travelling
at a more appropriate rate of speed, he would most likely have had less
difficulty in bringing the Vehicle under control, or would at least have
subjected the Plaintiff to a reduced risk of injury and lessened the severity
of any impact that might have still ensued.

[22]        
It may be that if the plaintiff had been travelling at, say, 50 or even
60 kilometres per hour, he may have been able to stop the vehicle before
colliding with the concrete no‑post barrier. It does not follow, however,
that driving at a rate of speed in excess of that was unreasonable. I am not
persuaded that the speed that the defendant was travelling amounted to a lack
of reasonable care or that it was a legally significant cause of the collision.

[23]        
There remain two issues. They engage what are sometimes referred to as the
notions of “inevitable accident” and the “agony of the moment”. Although these
concepts often arise together, they are distinct. The former posits a
non-tortious explanation for an accident. In the matter at hand that
explanation is, according to the defendant, the sudden loss of steering and
braking ability. Such a mechanical failure is only non-tortious if it could not
have been prevented by the exercise of reasonable care. If the exercise of
reasonable care could or would have revealed the mechanical problem, then a
driver is not absolved of responsibility when the problem becomes manifest. His
or her negligence remains a cause of the accident, albeit the negligence rests,
at least in part, on a different footing, namely a failure to exercise
reasonable care in inspecting and maintaining the vehicle as opposed to
negligence in the manner of driving.

[24]        
Even if a defendant experiences a sudden mechanical failure which
occurred in spite of the exercise of reasonable care in maintaining and
servicing a vehicle, that is not necessarily an end of the matter. The issue
that remains is whether the defendant exercised reasonable care in responding
to the emergency. It is in this way that the concepts of inevitable accident
and the agony of collision often arise in the same circumstances. The doctrine
of agony of collision does not deal with the cause of or explanation for an
accident; rather, it is a summary way of expressing the standard of reasonable
care required of a driver faced with an emergency. In Lloyd v. Fox
(1991), 57 B.C.L.R. (2d) 332 (C.A.), the essence of the doctrine was succinctly
captured by Hinds J.A. who wrote that:

…when considering circumstances
which could give rise to the application of the doctrine of agony of the
collision, attention should be focused on whether the actions taken by the
driver who seeks to raise the doctrine were the actions of a reasonably
competent driver. If so, he or she may be absolved of fault; if not, the
driver’s fault…(at p. 336).

Relief from legal
responsibility may result because as Paperny J. explained In Moseley v.
Spray Lakes Sawmills (1980) Ltd. (1997), 47 Alta. L.R. (3d) 217 at para. 53:

…The doctrine relieves a driver
from having to exercise extraordinary skill, presence of mind, poise or self
control when an emergency situation is created by another driver and that means
errors of judgment on the part of the plaintiff driver may be excused

There are limitations on availability of the doctrine.
It is unlikely to prevail if the person seeking to invoke it caused or
contributed to the emergency situation. In the context of this case, that may
arise if the manner in which Mr. Hidasi maintained or serviced his vehicle
was itself negligent or if his speed or the condition of his tires were
contributory causes of the accident. I have concluded that neither speed nor
the condition of his tires were contributory causes of the accident, but there
remains the issue of the manner in which he maintained his vehicle, and his
driving subsequent to the failure of his breaks and steering.

[25]        
A defendant who advances what is sometimes referred to as a defence of
explanation, of which the notion of inevitable accident is an instance, bears
the onus of explaining how the motor vehicle accident may have happened without
negligence. The defendant does not have to explain how the accident in fact happened;
rather, he or she will avoid liability if a non-tortious explanation is, on the
evidence, an equally probable explanation for the accident. When that is so, the
plaintiff cannot succeed because he or she will not have discharged the burden
of proving that the accident occurred as a result of the defendant’s negligence
(see generally Singleton v. Morris, 2010 BCCA 48 at para. 38 and Hackman
v. Vecchio (1969), 4 D.L.R. (3d) 444 at 446 (B.C.C.A.)).

[26]        
On the facts of this case, there are three issues to be resolved. The
first is whether Mr. Hidasi experienced a mechanical failure. I am
satisfied that he did experience a sudden and unexplained loss of steering and
braking ability. He deposed to as much, and Mrs. Chow-Hidasi deposed to
hearing him utter a contemporaneous and seemingly excited exclamation to that
affect.

[27]        
In reaching this conclusion I have considered the two aspects of the
evidence that the plaintiff argues militate against it. The first is what the
plaintiff argues are prior inconsistent statements made by the defendant when
speaking to employees of the Insurance Corporation of British Columbia, and the
second relates to spoliation. I will deal with each of these issues separately.

[28]        
The prior inconsistent statements are contained in two documents. The
first is a claims report completed by an Insurance Corporation employee,
presumably on the basis of information obtained from Mr. Hidasi. In the
section dealing with the description of the accident, the employee wrote the
following:

INS  NW  ON  97C  WHEN
LEFT FRONT WHEEL LOCKED UP, CROSSED FAST LANE, HIT CONCRETE MEDIAN, SPUN AROUND
AND HIT L/R, STOPPED IN CTR RESTING AGAINST CTR MEDIAN.

The plaintiff points out
that there is no reference in this description of the accident to either a loss
of steering or brake failure; rather, the explanation given by the defendant
was that his left front wheel “locked up”. The second reference is found in the
running records kept by employees of the Insurance Corporation. On January 26,
2007 the following note appears:

INS CALLED TO CORRECT
MISUNDERSTANDING, SAYS HIS VEHICLE DID NOT ACTUALLY SPIN AROUND. HIS LEFT FRONT
WHEEL LOCKED UP AND VEH SLID, HIT LEFT FRONT WHEEL AGAINST CENTRE DIVIDER, THEN
IT TURNED AND SLID BACKWARDS TOWARD ORIGINAL TRAVEL DIRECTION AND LEFT REAR
BUMPER AGAINST MERIDIAN. HE’S VERY CONCERNED THAT THIS BE RECORDED ACCURATELY.
CAME TO REST IN CENTRE FAST LANE AGAINST CONCRETE DIVIDER.

The plaintiff points out that this is amounts to
substantially the same explanation of the accident, namely that Mr. Hidasi’s
“left front wheel locked up”. Mr. Watts notes that there is no mention of
a loss of steering or braking ability.

[29]        
I am unable to place any weight on these seeming inconsistencies for
several reasons. First, the accounts on their face do not purport to be
verbatim reproductions of the words spoken by the defendant; rather, they are
summaries, and brief summaries at that. Second, as earlier noted, English is
not the defendant’s first language. Third, the summary in the claim file report
is based on a conversation that occurred about two and one-half hours after the
accident; the reference in the running records is to a conversation later that
same day. As to the latter conversation, the defendant said on examination for
discovery that he was “very upset” when he was dealing with the Insurance
Corporation in part, no doubt, because of the accident itself, and in part
because he had difficulty conveying the dynamics of the collision. Finally, and
most significantly, I am satisfied that the defendant lost braking power
because he said so at the moment he realized that was the case. The plaintiff
acknowledges as much. It is clear, as a result, that the summary interpretation
by an employee of the Insurance Corporation of what the defendant said about
the accident is either incomplete or that defendant did not mention some all of
the circumstances of the accident.

[30]        
The second aspect of the evidence to which the plaintiff points is what Mr. Watts
describes as the spoliation issue. This issue arises from, and rests on, Mr. Hidasi’s
examination for discovery evidence. He testified that after the accident he
wanted his own mechanic and a mechanic from Chrysler, the manufacturer of the
vehicle, to inspect the vehicle. He testified that the Insurance Corporation
refused his request and the vehicle was later destroyed without having been
inspected by anyone. The plaintiff argues that in these circumstances the
doctrine of spoliation applies and the court should draw the inference that
there was no mechanical defect in the vehicle. It should be noted that there is
no suggestion that the defendant, in seeking a mechanical inspection, was doing
so in support of the plaintiff’s claim. In fact there is no evidence that the
Insurance Corporation was even aware there would be a claim by the plaintiff.

[31]        
As illustrated in Dawes v. Jajcaj, 1999 BCCA 237, the notion of spoliation
has been used to support at least three distinct legal theories. The first is
that of a separate and independent intentional tort. That was the assertion in Endean
v. Canadian Red Cross Society (1998), 48 B.C.L.R. (3d) 90. The Court of
Appeal rejected it. The second is to support the exclusion of evidence. That
was the argument advanced in Dawes. The basis for seeking exclusion was
the negligent destruction of evidence that the opposing party wished to have
examined. The court rejected that proposition as well (see para. 68). The
third and only recognized role of the notion of spoliation is that when
established it may give rise to a rebuttable evidentiary presumption. The
presumption is captured in the latin maxim from which the doctrine derives its
name: omnia praesumuntur contra spoliatorem which means “all things are
presumed against the wrongdoer” (see para. 61 of Dawes).

[32]        
The plaintiff’s argument is that because the Insurance Corporation
permitted the motor vehicle to be destroyed in the face of a request by the
defendant to have it examined by a mechanic, a presumption arises that the
examination would have shown no mechanical defect. The problem with this
argument, in my view, is that it runs contrary to the rationale on which the
presumption ordinarily rests. As between the defendant and the plaintiff, the
result would be an inference drawn on the basis of an assumption (namely, that
the defendant wished to hide the condition of the car) when in fact he was not
seeking to hide it, rather he was urging its investigation. Further he sought
to have it investigated not because he thought it was mechanically sound, but
because he was convinced it was not and wanted to establish that for his own
reasons. As a result, I place no significance on the fact that the Insurance Corporation
destroyed the vehicle. It may have been otherwise if the plaintiff, as opposed
to the defendant, had sought to preserve the motor vehicle even if she did that
through her husband, the defendant. That is not, however, what happened.

[33]        
As earlier noted, I am satisfied that the defendant experienced a loss
of steering and braking ability.

[34]        
The next issue is whether the mechanical failure could have been
prevented by the exercise of reasonable care. The onus is on the defendant to
establish this proposition. That is so because unless the mechanical failure
occurred without negligence on his part, it cannot operate to absolve him of
responsibility. In short, the explanation is only significant if it is
non-tortious.

[35]        
The defendant argues that the court cannot conclude that he failed to
exercise reasonable care, in part, because the plaintiff did not call expert
evidence on the maintenance and servicing that might reasonably be required on
this vehicle. In my view it is for the defendant to call evidence of that kind
if it wishes to rest its case on that footing. It may be that expert evidence
is necessary or at least helpful in some cases. Whether that is so, however,
will depend to a significant degree on the facts. For example, a very old motor
vehicle with very high kilometres may give rise to maintenance issues about
which reasonable people may be unaware. On the other hand, expert evidence as
to what may be reasonable maintenance will not usually be necessary in the case
of an accident involving a nearly new vehicle.

[36]        
In this case the motor vehicle was 15 years old and had 214,111
kilometres on it. It was far from new, but it cannot be said that it was at or
near the end of its safe useful life. In my view expert evidence is not
necessary to resolve the issue of whether Mr. Hadasi acted reasonably in
the manner in which he maintained his vehicle.

[37]        
The defendant was both proactive and reactive in having his vehicle
serviced and maintained. He was reactive in the sense that whenever he experienced
problems, he had the vehicle examined by a mechanic. On his examination for
discovery he said:

…If there was anything
unsatisfactory for my standards, yeah, I took it to the mechanic to do it, to
check it out. Any time I noticed something unusual, yes, I took it and he look
after it. It is my life and my wife’s life.

As to preventative or proactive servicing,
the best example is what he did the day before this trip. He took the vehicle
to Lube World for the express purpose of having them complete a “full safety
check”. On his examination for discovery he said:

They checked all the fluids and
they checked the steering belt, power steering belt and the fan belt. They said
all belts are okay. They asked me to step on the brake and how much brake I
had, and they checked the back lights, if the brake lights are working; the
index lights, everything was checked, whatever concerns safety.

He deposed that the staff at
Lube World told him they did not find any safety issues. The invoice for that
service shows that they conducted a “16 point safety check” and included within
those 16 points was a check of the brake fluid, power steering fluid, and tire
condition.

[38]        
In terms of other routine maintenance, Mr. Hidasi frequently used a
Midas dealership in Westbank. Documents from that enterprise reveal that in
November 2001 the brakes were serviced. The service included the installation
of brake shoes and brake pads, machining the brake drums, the installation of
rotors, and flushing and replacing the brake fluid. It was carried out when the
vehicle had 169,000 kilometres on the odometer. In January 2003 the same Midas
dealership did a further brake service which included brake shoes and brake
fluid. The vehicle had 181,911 kilometres on it when that service was done.

[39]        
Mrs. Chow-Hidasi deposed that basic lubrication and oil services
were routinely carried out on the vehicle, but mechanical repairs were only
performed when they became necessary. She also deposed that other than checking
fluid levels and replacing fluids as necessary, no maintenance had been
performed on the vehicle’s power steering system or brakes. She is in error in
this latter regard, given the service records from Midas. More significantly
however, she said on discovery that she had ridden as a passenger in her
husband’s Jeep on a number of occasions prior to the accident and had no
concerns about its mechanical condition. In fact, she testified that he was
“very meticulous” in the manner that he maintained the vehicle; that he “often”
took it in for routine maintenance, and had done so on the day before they left
on this trip.

[40]        
I am satisfied that the manner in which Mr. Hidasi maintained his
vehicle was reasonable. I am satisfied that the brake and steering failure he
experienced was unexpected and was not discoverable through the exercise of
reasonable care.

[41]        
It is appropriate to address the nature of the mechanical failure
because it has some bearing on the issue of Mr. Hidasi’s response to it.
The expert mechanical evidence called by the plaintiff is that the power
steering and power brakes in this vehicle operated using the engine. In the
case of the brakes, the engine created a vacuum which was used to assist in
braking; in the case of the steering, the engine powered a pump which created
hydraulic pressure. To lose both systems at the same time is highly suggestive
of a loss of power as opposed to independent failures of some other part of
each system. According to the same expert, in the event of a loss of power a
driver will still be able to both steer and brake, however both would be
significantly more difficult in that they would be reliant entirely on the
physical force generated by the driver. The evidence is also that the loss of
power steering and power brakes would have no affect on the path of the
vehicle’s travel. As to the emergency brake, it operated mechanically and
applied braking to the rear wheels only.

[42]        
 Mr. Hidasi’s evidence is that from his perspective there was a
complete loss of ability to steer and brake – that is, no matter how hard he
tried he was unable to turn the steering wheel and unable to move the brake
pedal. As he put it in his affidavit evidence:

…no matter how hard I tried, my
steering wheel would not turn and I could not move my brake pedal.

On examination for discovery
he denied that the brake pedal was merely stiff. He said that he could not
depress it at all. Specifically he said “It did not have any movement
whatsoever”. So too with the steering wheel, he was
specifically asked if it was stiff, and said:

 It was not stiff, it just did not move. It was
stationary.

[43]        
The plaintiff argues that, given the expert mechanical evidence, it is
likely that the brake pedal could have been depressed and the steering wheel
could have been turned notwithstanding the loss of power. The plaintiff argues
that had the defendant simply tried harder, the vehicle would have responded to
both his steering and braking input.

[44]        
Moreover, if the defendant had simply done nothing, it is likely the
vehicle would have continued to track around the gentle curve it was in and
come to rest without incident. She argues that applying the emergency brake,
particularly with the force that the defendant applied it, was negligent and
caused the accident. Finally, she argues that Mr. Hidasi should have
geared down using the automatic transmission to slow the vehicle down.

[45]        
I am not satisfied the defendant’s reaction to the circumstances he
unexpectedly faced was unreasonable. First, there is no suggestion that Mr. Hidasi
was in some fashion shocked into inaction and delayed responding to what he
reasonably perceived as an emergency. To the contrary, all of the evidence
suggests that he responded immediately. Second, it may well have been that if Mr. Hidasi
was a stronger individual or simply redoubled his efforts at attempting to
manually steer and manually brake the vehicle he would have been successful. I
do not accept that he knew that, or should have known that. Rather, I find that
he tried his level best to steer and brake. He perceived that both of these
options were ineffective and he needed to adopt an alternative course and do
that quickly. From his perspective he had two options: either do nothing or
engage the emergency brake. Choosing the latter was not an unreasonable course
of action. When it gave rise to unexpected consequences and in effect created a
further danger, Mr. Hidasi responded to that. He immediately disengaged
the emergency brake. By that point, however, he was unable to alter the path of
travel of the vehicle and the collision occurred. It may be that the vehicle
would have tracked around the curve it was on without difficulty if Mr. Hidasi
had done nothing. It may also be that had he geared down using the automatic
transmission he would have been able to stop the vehicle without incident. It
may be that adopting either or both of those courses of action would have been
better than adopting the course that Mr. Hidasi did. This issue is not
whether he took the best course of action, but whether he responded reasonably,
bearing in mind the tolerance the law affords to what might be described as
errors in judgment committed by a driver faced with an emergency situation.

Conclusion

[46]        
In conclusion, I am not satisfied the plaintiff has proven the defendant
was negligent and the action is accordingly dismissed.

[47]        
Unless there is something relevant to the question of costs about which
I am unaware, the defendant is entitled to costs at Scale B.

“G.M. Barrow J.”
The Honourable Mr. Justice Barrow