IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150813

Docket: 120490

Registry:
Victoria

Between:

Scott Wheeler

Plaintiff

And

James Douglas Lee

Defendant

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

INTRODUCTION

[1]            
This action arises from a motor vehicle accident which occurred on
February 22, 2010. This is an application by the plaintiff pursuant to Rule 9 –
7 of the Supreme Court Civil Rules for judgment against the defendant on
the issue of liability. In a ruling made on July 10, 2015, I held that this was
an appropriate case to sever the issue of liability from the issue of quantum
of damages.

[2]            
I have determined that I can make the necessary findings of fact to
render a decision under Rule 7. That is because there is essentially no dispute
as to what occurred.

FACTS

[3]            
The plaintiff was a passenger in the defendant’s vehicle, a Ford Excursion.
The parties were driving south on Interstate 5, a divided highway, a few
kilometres south of Bellingham, Washington.

[4]            
There is no issue of jurisdiction. Both parties live in the city of
Victoria.

[5]            
The defendant was towing a 28 foot trailer. The accident occurred when
the trailer began to sway or oscillate. It broke free from the trailer hitch
and caused the Excursion to strike the concrete barrier. Mr. Wheeler described
the accident in these terms:

14.       On the day of the Accident the weather was clear
and the roads were dry. Both of us were wearing our seatbelts prior to the Accident.

15.       The Accident occurred a few miles south of
Bellingham, Washington on the Interstate Highway.

16.       At all times leading up to the Accident, Mr. Lee
was driving in the right hand lane. The posted speed limit was 60 miles per
hour. I believe Mr. Lee was driving approximately 55 miles per hour prior to
the Accident.

17.       Just prior to the Accident I could feel the Trailer
starting to fishtail. I believe Mr. Lee tried to regain control by taking his
foot off the accelerator. I think I said, “This is going to be bad."

18.       The Trailer flipped
onto its right side and broke off from the Excursion. I heard the rear window
of the Excursion smash. The Excursion then did a 180 degree turn in a
counter-clockwise direction, hit the concrete median, and came to rest facing
the wrong direction of traffic.

[6]            
Mr. Lee’s description of the accident is not inconsistent with this:

10.       Before leaving Bellingham I conducted my standard
pre-trip inspection including checking tire pressure, and checking the hitch
and the sway bars and I found everything to be in good working order.

11.       On the day of the accident I had driven the rig
approximately 10 miles southbound on I-5 without encountering any difficulties.

12.       I was driving in the right-hand lane at not more
than 55 miles per hour; approaching the scene of the accident, the roadway was
slightly downhill; there was a lake to the right-hand side and to my left was a
very steep wooded hillside.

13.       Then the rig was hit
by a strong gust of wind from the right-hand side which caused the trailer to
start to sway and, despite my efforts to control this, the swaying back and
forth became progressively worse until the hitch snapped and the trailer tipped
over onto its right-hand side and the Ford Excursion skewed around,
anticlockwise viewed from above, about 180 degrees, coming to rest against the
concrete barrier at the left side of the roadway.

[7]            
There is no dispute that the wind was blowing. The plaintiff, in a
statement made to the insurer on February 26, 2010 said:

Suddenly, a gust of wind started
to fishtail our trailer and truck, such that we lost control and we hit
something, spun around, and struck the left concrete barrier.

[8]            
In November, 2009, Mr. Lee had commissioned the construction of an
aluminum storage box to be attached to the rear of the trailer.

[9]            
The cargo box is quite large.  It weighed 144 kilograms and was large
enough to carry bicycles and tools.  In addition, the defendant added
extensions to the rear of the frame of the trailer, which weighed 26
kilograms.  The fabricator installed the storage box using a fork lift vehicle
to lift the storage box onto the extended frame.  It was then bolted to the
trailer.

[10]        
The defendant had not used the trailer much since the installation of the
cargo box.  There had been one trip to Cowichan Bay and back to Victoria.  The
defendant had also driven it from Victoria to Port Moody.  The trip south to
Bellingham and beyond began in Port Moody.

[11]        
Jonathan Lawrence is an engineer who performs technical investigations
of motor vehicle accidents. He has performed some 2000 such investigations over
the last 20+ years. There is no dispute about his qualifications to give
evidence in this regard.

[12]        
Mr. Lawrence described "sway" in the context of a travel trailer:

Sway is an increasing severe
back and forth swinging of a trailer and can be initiated by a gust of wind if
the tow vehicle and trailer are travelling near a certain speed.

[13]        
Mr. Lawrence said that this vehicle and trailer combination had a number
of features that would reduce the tendency to sway: dual trailer axles, load
levelers and an anti-sway damper.

[14]        
Mr. Lawrence also defined “critical speed":

Every tow vehicle and trailer
combination will have a speed at which increasing sway can occur. This speed is
called the critical speed. A safe tow vehicle and trailer combination will have
a critical speed that is high enough to be essentially unattainable. However,
there are a number of factors that can reduce the critical speed to a typical
highway speed. When travelling at this critical speed, a gust of wind can start
sway which will increase in severity.

[15]        
He went on to say that the amount of weight carried by a trailer hitch
is a “primary factor" affecting the critical speed:

Reducing the amount of weight
carried by the trailer hitch decreases the critical speed. The cargo box
attached to the rear of the trailer would have reduced the weight carried by
the trailer hitch.

[16]        
He calculated that the weight on the hitch probably dropped to
approximately 10% of the trailer weight when the aluminum box was added to the
trailer weight. He said that when cargo was added to the box it would further
reduce the weight carried by the hitch. He calculated that if there were cargo
weight of 100 pounds, the trailer weight percent on the hitch would be 9.4%. At
200 pounds it would be 8.6%. At 300 pounds it would be 7.9%.

[17]        
Mr. Lawrence did not see the cargo box when it was full. However from
photographs he could make out a bicycle, concrete blocks, two carjacks, metal
columns and assemblies, hoses, wooden boxes and chairs as well as a ladder on
top of the box. He estimated the cargo weighed at least 200 pounds.

[18]        
According to his calculations then, the percent of trailer weight on the
hitch was 8.6%.

[19]        
He said that the specifications for new travel trailers by this
manufacturer suggest hitch weights between 9% and 13% of the trailer weight.
The weight carried by the hitch was probably below this recommended range.

[20]        
From that he concluded that the presence of the cargo box at the rear of
the trailer was probably was “probably" a contributing cause of the
trailer sway that led to the accident. He reached these conclusions:

Based on the assumptions and analysis described in this
report, I have arrived in the following conclusions:

·       
the drawbar fractured as a result of the sway and subsequent roll
over and did not cause the loss of control.

·       
the truck and trailer had a number of features (dual trailer
axles, load levelers and an anti-sway damper) that, if adjusted properly, would
reduce the tendency of the trailer to sway.

·       
without the cargo box, the trailer hitch was carrying about 12%
of the trailer weight.

·       
with the empty cargo box at the rear of the trailer the hitch was
probably carrying about 10% of the trailer weight.

·       
adding 200 pounds of cargo to the cargo box would probably drop
the weight carried by the hitch to a level below the recommended range.

·       
adding the cargo box to the rear of the trailer decreased the
critical speed of the tow vehicle and trailer combination.

·       
the presence of the cargo box at the rear of the trailer was
probably a contributing cause of the trailer sway that led to the accident

[21]        
The plaintiff’s case is that one of the causes of the accident was the
fact that there was weight on the trailer hitch that was below the
manufacturer’s specifications. The defendant is responsible for the condition
of the vehicle. The defendant’s negligence need not be the sole cause of the
accident. Based on the circumstances the defendant is liable.

[22]        
The defendant’s position is that there is no evidence the defendant’s
response as a driver was in any way inadequate. There is no suggestion that the
hitch and braking systems for the trailer and towing vehicle were in any way
inadequate. It is the defendant’s submission that it is equally reasonable to
infer negligence or no negligence. The plaintiff loses since it is he who bears
the legal burden on the issue: Michelle v. Doe, 2009 BCCA 225.

[23]        
The Owner Manual for the vehicle contains the following:

It is very important for you to
be aware of the effects placed upon your trailer and tow vehicle in regards to
not only the weight you have loaded, but also the manner in which it was
distributed….

[24]        
The manual contains directions on how to calculate the hitch weight and
states that hitch weight should be between 9% and 15% of the gross vehicle
weight rating.

[25]        
The Owner Manual also states:

CAUTION: Do not attach
such items as motorcycles, spare tires, fuel or water containers etc. on the
rear of your trailer.

[26]        
Mr. Lee deposed that he followed the following procedure:

7.         Before installing the box I verified the gross
vehicle weight and the tongue weight [which I take to mean hitch weight] of the
trailer by measuring same at the Elk Lake weight station in Saanich.

8.         After the
installation of the box, and with the box loaded much the same as it was at the
time of the accident, I again verified the gross vehicle weight and tongue
weight of the trailer at the Saanich weigh station and satisfied myself that
the results were within the standards set by the manufacturer of the trailer.

[27]        
When weighing the vehicle, Mr. Lee did not have in mind the 9% to 15%
range.  Other than weighing the tongue weight and the vehicle itself, he did
not take any other steps to determine how adding the box might affect the
overall safety of the vehicle.  He was not aware that the loaded hitch weight
was to be between 9% and 15% of the weight of the trailer.

Analysis

[28]        
The wind may well have been a factor in causing the mishap.  But the
evidence establishes that the percentage of the trailer’s weight that was on
the coupling system fell below the manufacturer’s specifications.  This in turn
increased the likelihood of trailer sway.

[29]        
The defendant ought to have known that altering the trailer in this
manner would compromise the way in which the trailer operated and in
particular, could cause trailer sway.  The owner manual makes express reference
to this.

[30]        
The principles surrounding causation are clear.  This is a case for the
application of the “but for” causation test.  In Clements v. Clements [2012]
2 S.C.R. 181, the Supreme Court of Canada said this about the “but for” test:

[9]        The “but for”
causation test must be applied in a robust common sense fashion.  There is no
need for scientific evidence of the precise contribution the defendant’s
negligence made to the injury.  See Wilsher v. Essex Area Health Authority, [188]
A.C. 1074 (H.L.), at p. 1090, per Lord Bridge; Snell v. Farrell, [1990]
2 S.C.R. 31].

[31]        
The defendant’s negligence need only be one of the causes leading to the
accident: Dhillon v. Jaffer, 2014 BCCA 215 at para. 27:

[27] …[T]he defendant is not
excused from liability merely because other “causal factors” for which he or
she is not responsible also helped produce the harm. It is sufficient if the
defendant’s negligence was a cause of the harm.

[32]        
This concept is discussed further by the Court of Appeal in Chambers
v. Goertz, 2009 BCCA 358.  There the court refers to Athey v. Leonati,
[1996] 3 S.C.R. 458, paras. 17 and 18:

17 It is not now necessary, nor has it ever
been, for the plaintiff to establish that the defendant’s negligence was the sole
cause of the injury. There will frequently be a myriad of other background
events which were necessary preconditions to the injury occurring. To borrow an
example from Professor Fleming (The Law of Torts (8th ed. 1992) at p.
193), a “fire ignited in a wastepaper basket is . . . caused not only by the
dropping of a lighted match, but also by the presence of combustible material
and oxygen, a failure of the cleaner to empty the basket and so forth”. As long
as a defendant is part of the cause of an injury, the defendant is
liable, even though his act alone was not enough to create the injury. There is
no basis for a reduction of liability because of the existence of other
preconditions: defendants remain liable for all injuries caused or contributed
to by their negligence.

18 This proposition has long been established
in the jurisprudence. Lord Reid stated in McGhee v. National Coal Board,
supra, at p. 1010:

It has always been the law that a pursuer
succeeds if he can shew that fault of the defender caused or materially
contributed to his injury. There may have been two separate causes but it is
enough if one of the causes arose from fault of the defender. The pursuer does
not have to prove that this cause would of itself have been enough to cause him
injury.

[33]        
I am satisfied that the defendant’s negligence was a contributing cause
of the accident.  There is no suggestion that the plaintiff had any role in causing
the accident.

[34]        
The evidence establishes that the defendant’s decision to affix a large
box to the rear of the accident and to load it with equipment decreased the
tongue weight of the trailer and reduced the ratio to an unsafe extent.  The
defendant ought reasonably to have known that.

[35]        
For these reasons the defendant is liable for the injuries caused to the
plaintiff.

“The
Honourable Mr. Justice Kelleher”