IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Vance v. Cartwright, |
| 2013 BCSC 2120 |
Date: 20131108
Docket: M122697
Registry:
Vancouver
Between:
William Marc Vance
Plaintiff
And:
Cristine
Cartwright
Defendant
Before:
The Honourable Mr. Justice A. Saunders
Oral Reasons for Judgment
Counsel for the Plaintiff: | B.A. Hambrook |
Counsel for the Defendant: | J.D. Morin |
Place and Date of Trial: | Vancouver, B.C. November 5-7, 2013 |
Place and Date of Judgment: | Vancouver, B.C. November 8, 2013 |
[1]
THE COURT: The plaintiff seeks a determination of liability for
injuries sustained in a vehicle collision which occurred on June 5, 2010 at the
intersection of 198th Street and 21st Avenue in Langley,
B.C. Liability was severed from damages by way of a consent order pronounced
by Master MacNaughton dated October 15, 2103.
[2]
The plaintiff and defendant both lived close to this intersection and
were very familiar with it.
[3]
When the accident occurred the plaintiff had been proceeding south on
198th Street. He was riding a 250 cc dirt bike. The defendant had
been travelling eastbound on 21st Avenue which intersects with 198th
in a T. She was emerging from 21st intending to turn left and
proceed north on 198th.
[4]
When the plaintiff saw the defendant emerging, he reacted by deciding to
go to his right behind her vehicle, believing that she was going to continue to
make her left-hand turn and that this would lead to a collision.
[5]
The defendant, instead, stopped and the plaintiff collided with the rear
of her vehicle. His body then flew over the trunk of the car and impacted the
stop sign post.
[6]
It is common ground that the plaintiff had the right of way.
[7]
The plaintiffs evidence is that he had taken the dirt bike out onto the
street to warm up the engine prior to taking his six-year-old son for a ride on
the trails at the back of his property. He lives just a short distance north
of the intersection. The dirt bike had been in storage since the previous
fall.
[8]
He took the dirt bike out on his driveway, applied the choke, started
the engine, and turned left to proceed south down 198th. His
intention was to proceed past the T-intersection at 21st, down to
where 198th dead-ends into 20th Avenue, to turn around
and then come back to his house.
[9]
He accelerated down 198th, shifting through first and second
gears. He was travelling in the right-hand portion of the southbound lane. He
was reluctant in his evidence to commit to a firm estimate, but said that it is
fair to say that he was within four feet of the gravel shoulder on the west
side.
[10]
He had just shifted into third gear when he saw a car coming out of 21st
from the right. He said the car was, in his words, creeping, not going very
fast.
[11]
As the car came into his peripheral vision, he let off the throttle and
began to brake. The car continued to move forward to a point where the front
end of the car was just slightly into his lane. He could not give an estimate
of how far the defendant was into his lane, just that if he kept going he would
have hit the cars front quarter panel.
[12]
He thought it would be safer to attempt to go behind the car, even if
that meant he would end up in the bushes; if she proceeded and did not stop, he
would collide with her. He said that it seemed she had committed herself.
[13]
The plaintiff did not give evidence as to his position on the roadway
relative to any landmarks or relative to the 21st Avenue
intersection, either at the point when he first saw the car, or at the point
when he began to brake and take his evasive manoeuvre. He also did not provide
an estimate of the distance between him and the car at either of those points
in time.
[14]
He applied his brake and began to turn, angling into 21st
Avenue. Rather than continuing forward, as he had anticipated, the car
stopped. He skidded, he thinks, the last 10 feet or so, and then he collided
with the cars rear end.
[15]
The plaintiffs evidence in chief as to his speed before he began to
brake was that he was probably going 50 to 60 kilometres an hour; possibly a
little slower than 50 km/h, possibly a little faster than 60 km/h.
[16]
There are three different medical forms in evidence from the emergency
department of Peace Arch Hospital where the plaintiff attended later that
afternoon. Each of those records record in the history portion the plaintiff
having been going 70 km/h. There is independent evidence from the two experts
that this type of dirt bike is certainly capable of going that speed in third
gear.
[17]
Some of these medical records are of a type where it is possible that
what was recorded was not the patients own words, but, rather, a hearsay
report of the patients history as relayed to the notemaker by another member
of the treatment team. However, I find that is unlikely in this case. There
are enough dissimilarities between the three reports accounts that they appear
to have been created independently, and some of them at least were most likely
based on the plaintiffs own words.
[18]
The plaintiff does not so much deny having given that speed estimate to
the hospital staff as he calls into question the accuracy of any estimate he
would have made at that time. He says that he was in shock and not thinking
clearly. Reflecting later that his dirt bike did not have a speedometer, and
reflecting on the fact that the choke was on and the engine was not yet warmed
up, the plaintiff wondered if he could have been going as fast as 70 km/h.
Still, there was no evidence presented that the bike, in that condition, would
not have been capable of reaching that speed.
[19]
I find that the plaintiff had been travelling at a speed of at least 60 km/h,
probably in the range of 60 to 70 km/h.
[20]
The dirt bike was not street legal. It had no headlights, turn signals,
or brake lights of any kind. It had no daytime running light, reducing its
visibility to other drivers. It was equipped with dirt bike tires; by the
plaintiffs admission, not meant for the road. The knobby treads would have
decreased the amount of contact with the road and to some extent adversely
impacted the brakes handling characteristics.
[21]
The plaintiff did not testify to having had any experience operating a
motorcycle of any type on the streets, nor to have had any safety training in
the operation of a motorcycle in traffic. His experience, it appears, was
limited to dirt track riding. He did not have a motorcycle operators
licence. He was also not wearing a helmet.
[22]
The defendants evidence is that she approached the intersection and
came to a stop at the stop line. She looked right and looked left and
proceeded to go forward. She had not advanced very far, maybe about three
feet, when she saw the plaintiffs motorcycle approaching from her left.
[23]
Her impression was he was going very fast. She estimates that at the
time she first saw him he was about four car lengths away from her. She
stopped. She says she stopped short of entering the travelled portion of 198th.
She says that it seemed to her like the plaintiff thought she was going to go.
He slowed down and it looked to her like he was losing control, with the front
end of the bike wobbling. He veered into 21st and struck the back
of her car.
[24]
The defendants evidence that she had stopped the car at the stop line
is uncontradicted, and I accept it.
[25]
It appears to be common ground that sight lines from the 21st
Avenue stop line to the north up 198th were restricted due to
vegetation. The plaintiffs own expert, Mr. Jean-François Goulet of MEA Forensic,
determined that a motorcycle travelling about one metre from the western edge
of the southbound lane, i.e., within the four-foot zone the plaintiff agreed
was likely, would only become visible when 60 metres away from a vehicle
stopped at the stop line.
[26]
Judging from photographs of the intersection in evidence, the view to
the south would likely have been restricted also. This meant that any vehicle
that lawfully came to a stop at the stop line would have to move forward from
the stop line before the driver could get a full view up and down the street.
[27]
The significance of the sight lines is apparent when one considers the
plaintiffs speed. The 60-metre figure given by Mr. Goulet was measured
at an angle, not straight down 198th from the motorcycle to the
intersection, but at an angle towards the driver of the stopped car. The
distance from the motorcycle to the intersection itself straight ahead at that
point would have been, therefore, slightly less than 60 metres. A motorcycle
travelling at a speed of 60 km/h would close that gap in about three-and-a-half
seconds.
[28]
The defendant did not see the plaintiff when she was stopped at the stop
sign. If we assumed that this was because he was not visible, he would have
been no less than about 60 metres away.
[29]
The defendant did not see the plaintiff until he was, she says, about
four car lengths away. In my experience, such estimates of distance and time
have to be treated with some caution, but this is the only evidence we have.
[30]
If we accept this estimate, and we treat a car length as being about
five metres, that means that in the gap in time between the defendant first
looking left and seeing nothing, and then seeing the plaintiff as she was
moving forward, the plaintiff could have covered two-thirds the distance to the
intersection, 40 metres. At a speed of 60 km/h this would have taken only
about two-and-a-half seconds.
[31]
Accelerating slowly creeping from a dead stop within that
two-and-a-half seconds, the defendant could not have gone far past the stop
line. The defendants evidence, in other words, of having only suddenly seen
the plaintiff when she was a distance of four car lengths from him, seems to
accord with his evidence of his speed, his visibility, and with her having
stopped, checked traffic in both directions, crept forward, and then seen the
plaintiff again when she next looked to the left.
[32]
There is a conflict between the parties as to the position of the
defendants vehicle when she finally came to a stop immediately prior to the
collision. Both the defendant and her father, who came to the scene shortly
afterwards, are adamant that her car was positioned with its door over the stop
line. This means she would have driven forward, as far as I can tell from the
evidence, about two metres from the stop line before coming to a stop. The
front end of her car in this position would have been short of the travelled
southbound portion of 198th.
[33]
I did hear evidence from a friend of the plaintiff who went to the scene
afterwards. He recalls having seen a very small amount of small bits of
plastic debris on the road some distance to the east of the stop line, the same
colour as the defendants vehicle. If this was debris from the accident its
position might suggest that the collision occurred at a point where the
defendants car was clear of the stop line and protruding slightly into the
edge of the southbound lane, but this evidence was not strong enough to
convince me of that.
[34]
Remarkably, in this age of smartphones, no one took a picture of the
accident scene. I accept the defendants evidence that she felt there was no
apparent need to do so as the plaintiff was admitting at the scene that the accident
was his fault, and was offering to pay for the damage. In fact, later that
afternoon he gave the defendants father $1,000 cash towards the repair of her
car.
[35]
I accept that the plaintiff was in shock, loosely speaking, at the time,
that he was not thinking clearly, that he was overwhelmed at having put his
life in jeopardy by breaking his familys rule of wearing a helmet, and that he
was afraid of the consequences of having been riding on the street without a
licence, and, therefore, wished to settle things privately. Even so, his
behaviour was remarkable and is not consistent with the behaviour of someone
whose life has been put in jeopardy by the conduct of another motorist.
[36]
There is some expert evidence on either side from experts in accident
reconstruction. Remarkably, there is no accident reconstruction evidence from
the plaintiff of what likely happened. The plaintiffs expert report does not
contain the sort of analysis of distance, time, speed, and reaction times that
we normally see in an accident reconstruction. I do not say this as a
criticism of the expert, Mr. Goulet. It may very well have been the case
that the number of unknown variables would have made such an analysis
meaningless.
[37]
Instead, Mr. Goulet was given two scenarios: Scenario One, in
which the collision occurred with the front of the car on the stop line; and
Scenario Two, in which the collision occurred with the rear of the car past the
stop line and the nose of the defendants car just into the southbound lane.
[38]
Mr. Goulets opinion is that Scenario Two is more likely than Scenario
One, given that the plaintiffs body flew after impact and hit the stop sign
post, the position of which was known.
[39]
This analysis, such as it was, was confirmed by some computer
modelling. However, two of the inputs used in the model the motorcycle speed
and the angle of approach were unknown and were selected arbitrarily by Mr. Goulet.
[40]
This report, I find, is of no assistance in establishing liability on
the part of the defendant. Scenario One does not reflect anyones evidence.
It is a strawman. There was a whole range of possible positions of the car
between that used for Scenario One and that used for Scenario Two which may
have produced a more likely result than Scenario Two, but none of those
alternatives were considered.
[41]
If anything, my interpretation of Scenario Two is that it possibly casts
doubt on the plaintiffs evidence that the car was protruding into his path and
continuing to creep forward when he made his decision to go around the car. If
that had been the case, it seems probable to me that for the defendant to have
then reacted and brought the car to a stop, she would have had to have advanced
significantly further into the intersection before the collision than shown in
Scenario Two, and yet there is no evidence given by Mr. Goulet that it
would have been possible for the plaintiffs body to make contact with the stop
sign post if the car had been any further to the east.
[42]
I find that the accident happened through no fault on the part of the
defendant. She did what was reasonably expected of her. She stopped at the
line, checked for traffic, moved forward slowly giving her improved sight
lines, and when she saw the oncoming motorcycle stopped again. She cannot be
held responsible for his decision to veer to the right.
[43]
The plaintiff says that the defendant was moving into his lane and that
he felt she was committed to making her left turn. That evidence struck me as
a post hoc rationalization of the plaintiffs actions. There was nothing in
the defendants actions to indicate she was doing anything other than
proceeding forward slowly before committing to a turn.
[44]
I find this accident happened solely due to the plaintiffs fault. He
approached an intersection which he ought to have known had limited visibility,
travelling not out towards the centre line where he would have been more easily
seen, but far to the right, making him less visible to the defendant. He was
speeding which cut his reaction time and would have cut the reaction time of
other drivers as well.
[45]
The evidence of how he reacted when he saw the defendants car is, at
least, equally consistent with him having panicked when he saw the defendants
car or with him having made a poor reactive choice reflecting his lack of
training and experience.
[46]
The action is, therefore, dismissed.
[47]
THE COURT: Anything else, counsel?
[48]
MR. MORIN: My Lord, would you like to hear submissions on costs?
[49]
MR. HAMBROOK: My Lord, we would like to delay submissions on costs
because the financial circumstances of our client is is absolutely terrible,
so we want to get some affidavit evidence to discuss that and search the law
first
[50]
THE COURT: All right. I think that would be that would be in order
to hear some evidence if I am going to have to take into account factors under
the Rules. Now, was there an offer made?
[51]
MR. MORIN: Yes, My Lord.
[52]
THE COURT: Of how much?
[53]
MR. MORIN: Twenty-six per cent liability. The defendant offered
to accept 26 per cent liability.
[54]
THE COURT: All right. Well, I will leave that in your hands, Mr. Hambrook,
as to what kind of evidence you want to present then.
[55]
MR. HAMBROOK: Okay.
[56]
THE COURT: All right. I will so we will —
[57]
MR. HAMBROOK: My Lord, just on that, would you like to set a time
now?
[58]
THE COURT: What we will do is setting a time really is not going to
work very well since I am not a Vancouver judge. I think what we better do is
exchange written arguments and have those submitted to me. When can you have
your material to me by, Mr. Hambrook?
[59]
MR. HAMBROOK: Just cause theres some stuff coming up right now
with holidays and that I assume were going to be able to figure it out maybe
between us, but if we could have maybe 30 to 60 days or something, but I think
we will probably be able to get it figured out between us.
[60]
THE COURT: Can you well, okay. But in the event that submissions are
going to have to be made can you have material to me by the first business day
of the court then is Monday, January 6th. If you could have your
affidavit materials and a written argument to your friend by that time, Monday,
January 6th. How much time then, Mr. Morin, would you need
in reply?
[61]
MR. MORIN: Just a week a week later.
[62]
THE COURT: A week. Okay. So a week later, January 13th, or
within a week of that. Thats no later than January 13th for the
defendants reply. Any sur-reply you are going to make, Mr. Hambrook, by
no later than seven days after that, so it is no later than the 20th.
And then when please, as you are as you are delivering the materials to each
other, please submit a copy electronically to Vancouver trial scheduling by
e-mail attachment and they will see that it gets to me. And, please, if you
settle the matter of costs yourselves without the need for my intervention,
please also remember to let me know. Okay. I will return these briefs of
authorities on the liability issue to you both. Good.
[63]
MR. HAMBROOK: Thank you, My Lord.
[64]
MR. MORIN: Thank you, My Lord.
[65]
THE COURT: Thank you.
A. Saunders J.