IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Haynes v. Haynes,

 

2016 BCSC 416

Date: 20160310

Docket: 49507

Registry:
Kamloops

Between:

Buddy
Haynes

Plaintiff

And

Arthur
Brian Haynes

Defendant

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

Counsel for the Plaintiff:

J.A. Zak
T.J. Decker

Counsel for the Defendant:

J.A. Horne, Q.C.
A. Reynolds

Place and Date of Trial/Hearing:

Kamloops, B.C.

February 1, 2 &
4, 2016

Place and Date of Judgment:

Kamloops, B.C.

March 10, 2016



 

INTRODUCTION

[1]            
On September 21, 2012, the plaintiff, Buddy Haynes, was riding as a
passenger in a 1994 Chevrolet half-ton four-wheel drive pickup truck. It was
owned and driven by his father, the defendant, Arthur Brian Haynes.

[2]            
The truck was hauling a flat deck tandem trailer owned by the defendant.
Located on the trailer was a Bronco motor vehicle. In the back of the Bronco,
or in its cargo, was an engine block, including its transmission. This engine
block was not related to the Bronco being hauled.

[3]            
The truck and trailer travelled south on Highway No. 5 (the “Yellowhead”)
in Kamloops, British Columbia. The truck and trailer left the highway and
travelled down an embankment. The truck rolled over, landing upside down. The
cab was crushed. The trailer remained upright with the Bronco partially on the
trailer and attached to the trailer by one strap.

[4]            
The plaintiff alleges that the defendant was negligent when he was
driving the truck and trailer. As a result of the defendant’s negligence, the plaintiff
alleges he was injured in the accident for which he seeks damages. This trial
is about liability only.

ISSUE

[5]            
Was the defendant negligent and did the negligence cause the truck and
trailer to leave the highway and go over the embankment?

BACKGROUND

[6]            
The plaintiff is a professional truck driver and has been for about 11
years. Included in his truck driving duties is the hitching up of trailers and
securing their loads. He drives tractor-trailers on the highway.

[7]            
At the time of trial, the plaintiff was age 41.

[8]            
The defendant is a retired city worker who, when he worked for the City
of Kamloops, drove trucks and other equipment. He holds a Class 1 driver’s
license.

[9]            
At the time of trial, the defendant was age 71.

[10]        
On September 21, 2012, the plaintiff, his wife and his daughter went to
visit his parents’ home in the Rayleigh area of Kamloops. The plaintiff was to
assist the defendant to move the old Bronco and engine block to the scrapyard
located on the Tk’emlups Indian Reserve.

[11]        
The plaintiff had assisted the defendant on about two or three occasions
to move scrap using the truck and flat deck trailer. On one occasion he and his
father moved an old vehicle from his property.

[12]        
When the plaintiff arrived at his parents’ home, the Bronco was on the
trailer and the engine block was in the back of the Bronco. The plaintiff and
defendant had loaded the engine block onto the Bronco and loaded the Bronco
onto the trailer some time before September 21, 2012.

[13]        
The plaintiff assisted the defendant with the removal of the wheels and
tires from the Bronco. The plaintiff strapped the Bronco onto the trailer with
straps. The defendant attached the trailer to the truck. The plaintiff guided the
defendant while the defendant drove the truck and trailer out of the yard at
his home where the trailer was kept.

[14]        
The defendant testified that prior to driving the trailer out of his
yard he inspected the trailer.

THE ACCIDENT

[15]        
It was a little after 4:00 p.m. when the plaintiff and defendant left
the defendant’s home located in the Rayleigh area, in the truck, hauling the
trailer. The defendant entered the Yellowhead and travelled south in the slow
lane or curb lane

[16]        
The Yellowhead has four lanes, two lanes going north and two lanes going
south. September 21, 2012, was a beautiful day; the sun was out and the highway
was dry and smooth. The posted speed limit is 100 kilometres per hour.

[17]        
The defendant described the flat deck trailer as a “u-built” trailer. He
used the trailer to haul vehicle parts, his two antique cars, and refuse. The
defendant testified that over the years the trailer had been driven to
Edmonton, Vancouver, Salmon Arm and Vernon, returning each time to Kamloops
without encountering any difficulties.

The Defendant’s Evidence

[18]        
The defendant estimated his speed to be “85 kilometres per hour or 90
kilometres per hour”. In his cross-examination at trial, he was asked the
following questions and gave the following answers:

Q         So is it fair to say that you could have been
doing 90 to 95?

A          I could have been up to 90.

Q         All right.

A          But 85, I’m — in
that neighbourhood.

[19]        
At his examination for discovery, the defendant was asked the following
questions and gave the following answers:

Q         And you figure you’re doing about 85
kilometres an hour?

A          Somewhere in that
neighbourhood. Let’s put it this way: I wasn’t doing a hundred, and I wasn’t
going over a hundred.

[20]        
When the truck and trailer was about six to eight kilometres from where it
entered the highway, and having been on the road for less than five minutes,
the trailer began to whip from side to side. The truck and trailer left the
travelled portion of the highway striking an asphalt barrier along the far
right boundary of the highway which was the limit of the shoulder of the
highway. The defendant testified that prior to the trailer whipping from side
to side, he felt a gentle wobble. The defendant stated that it was the trailer
that started to sway and that the whipping motion transmitted this motion to
the truck. The defendant testified that the whipping motion moved both the
truck and trailer at the same time. This whipping motion caused the truck and
trailer to:

…nosing off into the other lane,
and I didn’t want that to happen, so I pulled it — turned it back into the —
my lane, I guess you’d call it, the curb lane. and then the next thing I know
“phewt” over we go.

[21]        
The defendant testified that when he first felt the motion of the
trailer on the highway, the truck and trailer were in the right-hand curve on
the highway. In describing the action of the truck and trailer, the defendant testified
that there was oncoming traffic travelling in the opposite direction, but the
truck did not go into the oncoming lane. The defendant did concede that the
nose of the truck could have travelled into the fast lane as it was pointed in
that direction. However, he steered the truck back into his lane.

[22]        
The defendant testified that he moved back into the slow lane by turning
the steering wheel, managing to straighten out the truck and trailer, but that
he still felt the wobble. He testified that either the truck or trailer hit the
curb and then it went over the embankment.

[23]        
The defendant testified that at some point in time, he slowly applied
his brakes. He was not sure if it slowed things down, but the trailer was still
whipping. He was of the view that their application had no effect. The
defendant did not know how fast he was travelling when he went off the road as
he testified that he was not looking at the speedometer.

[24]        
The defendant estimated that he had travelled a maximum of 200 yards
from the time he first experienced the swaying until the truck and trailer left
the road.

The Plaintiff’s Evidence

[25]        
The plaintiff testified that he was not paying attention to the way the
defendant was driving as he was playing with his cell phone. However, on being
cross-examined and being confronted with questions and answers from his
examination for discovery, the plaintiff stated that he did not notice anything
unusual in the defendant’s operation of the truck. He testified that he had no
complaints as to how the defendant was driving the truck. Based on how fast
other vehicles were going as they passed the truck and trailer, the plaintiff guessed
that the speed the truck was travelling was 80 kilometres per hour.

[26]        
The plaintiff testified that he felt it was within six to eight
kilometres from where they entered the highway, when he “felt a wobble” which
caused his body to move from left to right in the cab of the truck. This made
it difficult for him to look at his telephone, and that is what got his
attention. He looked up to see what was happening. The plaintiff testified that
they were headed at an angle toward the centre of the highway and toward
oncoming lanes. His next recollection is that he was pulled forward towards the
defendant or the steering wheel. He had the sensation that they were slowing
down and heading to the right. He acknowledged that the sequence of events were
hard to recall, but he testified that impact was hard and the collision
violent.

[27]        
The plaintiff’s evidence as to what happened to him upon impact of the
curb is summarized in the plaintiff’s written closing argument:

12.       … Later, on viewing the photographs that had been
taken by the RCMP, he believed that it was the asphalt curb that bordered the
paved shoulder that they hit. On impact with the curb, his right arm went
through the closed passenger window. His immediate fear [was] that his arm was
going to be ripped off under the truck. He recalled the momentum and forces
involved made it feel as though “an invisible hand” was pulling his right arm
out the window.

13.       The plaintiff then
recalled hearing “a real loud noise”, something then hit him hard on the head
“and then blackness”.

[28]        
The plaintiff testified that driving a tractor and trailer as he does,
is not like hauling the trailer that the defendant was hauling on the date of
the accident. I accept this. The plaintiff testified that when driving a
tractor and trailer he checks the load and it must be to his liking and he
makes sure that the straps are tight. There are specific areas on the trailer,
equally spaced, where the straps are secured.

[29]        
On the day of the accident, he did not check the load on the defendant’s
trailer, but he did secure the straps and made sure that they were tight. He
did not observe his father checking the trailer.

[30]        
The plaintiff was able to describe, by marking the pictures in the
notice to admit, at tab 1, photograph 12, with two arrows as to where the front
of the Bronco was secured and where the Bronco extended past the rear tandem
wheels of the trailer with another arrow. He circled on photograph 12 where the
spare engine block was positioned above in the cargo box of the Bronco.

The Defendant’s Evidence as to the History of the Truck and Trailer

[31]        
The defendant’s evidence as to the truck and trailer’s history at his
examination for discovery and at this trial, impacts his credibility.

[32]        
The defendant did not know the maximum weight the trailer could hall;
the type of hitch or its towing capacity; and he had no idea as to how the
braking system located on the hitch of the trailer worked, or for that matter
whether it was working. He did not know the towing capacity of his truck,
whether the suspension system had been modified after leaving the factory,
whether the truck was equipped with a towing package, or whether the hitch came
from General Motors or was an aftermarket hitch. He did not know the weight
capacity for the ball on the hitch.

[33]        
I appreciate that the truck and trailer were not purchased new by the
defendant. He was not certain about how long he had owned the truck and
trailer, but he did know the name of the person from whom he had purchased the
trailer. After some consideration, the defendant said he had owned the truck
for quite some time and had owned the trailer for about ten years. The
defendant acknowledged that the tires on the trailer had not been changed. The
defendant did not know whether the tires on the trailer had been balanced, nor
whether the bearings had been checked and packed. The defendant did not know
the weight of the Bronco and the additional weight of the block engine which he
estimated weighed several hundred pounds.

[34]        
In cross-examination, however, the defendant was aware that a trailer’s
instability can be caused by tires or the weight on the trailer shifting. He
knew the Bronco had to be at the front of the trailer and that a certain amount
of weight had to be on the tongue of the trailer.

[35]        
There was no expert evidence given at this trial. However, the defendant
works on vehicles, he has had the truck and trailer probably for at least ten
years, and he has used the trailer not only to haul items to the scrapyard, but
also to transport his antique cars and car parts to various locations outside
of Kamloops and back. Yet, he had no knowledge as to his truck and trailer’s
capacity nor their maintenance history.

The Evidence of Constable Dunn

[36]        
Constable Dunn of the Kamloops detachment of the RCMP was dispatched to
the scene of the accident at 4:07 p.m. and reached the scene of the accident at
4:14 p.m.

[37]        
Constable Dunn, at the time he attended the scene of the accident, was a
general duty officer with the RCMP. In October of 2012, he was transferred to
the traffic section of the RCMP. Constable Dunn had prior to the accident,
taken a number of courses in the investigation of motor vehicle accidents.
Constable Dunn testified that his training taught him how to decipher skid
marks.

[38]        
Upon reaching the accident scene, Constable Dunn spoke to the defendant
who was located in the ambulance. His conversation with the defendant was brief.
The defendant told Constable Dunn he had been driving southbound from Rayleigh
in the right-hand lane, closest to the shoulder. The defendant told Constable
Dunn that he started to lose control of his trailer and that it swayed back and
forth and the next thing he knew, it went down the embankment and the vehicle
rolled over.

[39]        
Constable Dunn went down to the truck and trailer. He found and
inspected the truck. He found no evidence of alcohol or drugs. He inspected the
seat belts and the seat belts looked to him to be in proper order. He checked
the speedometer to determine if it had been locked in at a certain speed; it
was at 0. He found three straps – two were broken and one strap was still
attached to the Bronco which was partially on the trailer. He found a tire on
the trailer had lost its bead and was flat. Constable Dunn took photographs
which were entered as exhibits at this trial. The roadway that the truck and
trailer would had to have travelled had a “light sweeping right-hand turn”.

[40]        
Constable Dunn checked the roadway. It was clear of debris and gravel.
There were no significant holes in the road and the road was smooth.

[41]        
Constable Dunn located a fresh skid mark from a wheel or a tire. He
concluded, as a result of what the defendant told him and looking at the
roadway and the curve in it, that the defendant may have lost control of his
trailer. Constable Dunn testified that he was not sure whether the skid mark
came from the truck or the trailer. Constable Dunn stated:

A          The way the skid mark is displayed on the
roadway indicates that the vehicles may have been coming in the southbound, um,
curbside lane, and were close to the centre line of the roadway — or, sorry,
the centre passing line of the roadway, of the two lanes, and had come maybe
from the outside — the middle of the lane and started to come in, which would
be consistent with trying to kind of recover from possibly a sway of a vehicle
or losing control of a vehicle. To me it looked like they weren’t in their lane
properly, when they were trying to — when the skid war — skid mark occurred.
[Indiscernible/rapid speech] they weren’t properly in the lane, that they were coming
from possibly the centre of the two lanes.

Q         All right, and is that consistent with what
Mr.  Haynes relayed to you in the ambulance?

A          That’s correct. He
said he had lost — started to — the trailer started to sway, and he started
to lose control, which would be consistent with kind of the areas where he said
it may have happened.

[42]        
Constable Dunn located between the fog line and the curb, debris right
next to the curb. In addition, he located a fresh scuff mark near the debris.
The debris was glass consistent with vehicle glass and that the vehicle with the
front or back tire, struck the right curb and that the truck went back out at
an angle and then the truck rolled, taking the trailer with it.

[43]        
Constable Dunn was able to locate, in the photographs he took, where the
truck hit the curb and where the truck and trailer went down the embankment
disturbing the grass and ground.

[44]        
I find that the defendant’s version of the accident and to some extent
the plaintiff’s version of the accident are in agreement with Constable Dunn’s
findings, which were based on speaking to the defendant, inspecting the
highway, the observation of the skid and scuff marks, and the debris located
near the scuff mark.

PLEADINGS

[45]        
The plaintiff, in his notice of civil claim, alleges negligence stating
“Arthur negligently lost control of the Chevrolet causing it to fishtail and
roll repeatedly”. The plaintiff then alleges that the collision was caused by
the negligence of the defendant. The particulars of the negligence are
described under Part 3: LEGAL BASIS and they are:

(a)        in
failing to keep a proper or any lookout;

(b)        in
driving without due care and attention and without reasonable consideration for
other persons using the highway, contrary to s. 144 of the Motor Vehicle Act;

(c)        in
failing to drive the motor vehicle in a careful and prudent manner having
regard to all of the circumstances, including rate of speed, the condition of
visibility pertaining at the time, the nature and condition of the highway, and
the traffic thereon, or which might reasonably be expected to be thereon;

(d)        in
driving at an excessive or improper rate of speed;

(e)        in
operating a motor vehicle on the highway without any, or any effective brakes,
or, alternatively, in failing to apply the brakes in time to avoid a collision;

(f)         in
driving a motor vehicle in a defective mechanical condition or alternatively,
in a condition that was hazardous to others;

(g)        in
failing to observe and/or comply with regulatory or warning signs posted along
the highway;

(h)        by habitual reliance upon
unsafe driving patterns and practices;

[46]        
The defendant, in his response to civil claim, states at Division 2:

…the Plaintiff was negligent with
respect to his own safety by failing to ensure the trailer being towed by the
motor vehicle in which he was a passenger was securely fastened.

[47]        
The defendant, in its written submissions, states that “the accident was
inevitable”. He further claims that he was “in the agony of the collision, and
he did everything he could to maintain control of the vehicle”.

[48]        
The defendant did not plead “inevitable accident” or “agony of
collision”. Further, the plaintiff did not attach the trailer to the truck. It
was the defendant who attached the trailer to the truck.

POSITIONS

The Plaintiff

[49]        
The plaintiff’s position is that he has established more than a prima
facie
case of negligence. He states that the defendant was negligent as he
was a direct breach of s. 7.07(3) of the Motor Vehicle Regulations, B.C.
Reg. 116/2015 and amendments thereto:

(3) No person shall drive or
operate on a highway any combination of vehicles if any vehicle being towed
whips or swerves unreasonably or otherwise fails substantially to follow the
path of the towing vehicle.

The Defendant

[50]        
The defendant argues that the plaintiff has not proved negligence. The defendant
argues that the plaintiff has not proved any evidence of any act or omission on
the part of the defendant, that would lead to the conclusion of negligence.

[51]        
The defendant argues that if the plaintiff has established a prima
facie
case of negligence, the defendant rebutted that presumption by
providing an explanation, that the accident was inevitable, that once the
wobble occurred the defendant had no time to correct the situation and that he
was in the agony of the collision and he had done everything to control the
vehicle. I will not deal with this argument as I have already stated it was not
pleaded.

THE LAW

[52]        
There is no presumption of negligence just because a vehicle drives off
the road. This has been dealt with by the Supreme Court of Canada in Fontaine
v. British Columbia (Official Administrator)
, [1998] 1 S.C.R. 424, when the
court decided that res ipsa loquitur is “expired” and is “no longer used
as a separate component in negligence actions” [para. 27]. In Fontaine,
at para. 27, Major J. concluded that res ipsa loquitur was:

…nothing more than an attempt to
deal with circumstantial evidence. That evidence is more sensibly dealt with by
the trier of fact, who should weigh the circumstantial evidence with the direct
evidence, if any, to determine whether the plaintiff has established on a
balance of probabilities a prima facie case of negligence against the
defendant. Once the plaintiff has done so, the defendant must present evidence
negating that of the plaintiff or necessarily the plaintiff will succeed.

[53]        
The burden of proving negligence lies with the plaintiff: Singleton
v. Morris
, 2010 BCCA 48.

[54]        
Singleton, at para. 38, states that once there is a prima
facie
case of negligence placed before the court:

The defence, however, may attempt
to rebut such inferences through the defence of explanation. A defence of
explanation, as stated in Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444
at 446 (B.C.C.A.) is an explanation of how an accident may have
occurred without the defendant’s negligence. The defendant does not bear the
onus of proving how the accident did happen. The trial judge drew
an inference of negligence in this case. She said, "In this case, given
that this was a rear-end collision in which the truck was properly stopped and
was there to be seen, there is a prima facie case of negligence."
Further, the trial judge correctly noted that Mrs. Morris "has to advance
an explanation as to how the collision may have occurred without negligence on
her part."

[55]        
Nason v. Nunes, 2008 BCCA 203 is a case where there were slippery
road conditions. The trial judge found that the plaintiff had failed to prove
that the defendant had driven in a negligent manner and the defendant’s
explanation, which was accepted by the trial judge, was based on the evidence
of both the plaintiff and the defendant.

ANALYSIS

[56]        
I do not find the defendant a credible witness. It starts with his
inability to recall the maintenance history of the truck and trailer; its
weight and load; its capacity and how the brakes work, if in fact the brakes on
the trailer were working on the day of the accident. He did not know the
ratings or capacity of the truck, or any of the changes to the truck since its
manufacture. I find this incredible particularly since the defendant has an
interest in antique cars and his “rods” (hot rods). He testified he works on
cars as a hobby and has done so since age 16.

[57]        
The defendant stated that he inspected the trailer when it was attached
to the truck. That maybe so, but what was he looking at and what was his
measurement and standard when he was looking at the truck and trailer to
determine that everything was fine?

[58]        
The plaintiff was assessed by Dr. O’Bresail, who is a psychiatrist. In
Dr. O’Bresail’s report, he states that the plaintiff told him, amongst other
comments regarding the accident, that the plaintiff did not hold his father
responsible for the accident. The plaintiff did not adopt Dr. O’Bresail’s
statement about what he is alleged to have told Dr. O’Bresail.

[59]        
The plaintiff has advanced a prima facie case of negligence
against the defendant. Firstly, the defendant is, by Regulation 7.07(3) under
the Motor Vehicle Act Regulations, B.C. Reg. 26/58, obliged not to drive
a vehicle when the vehicle being towed “whips” or “swerves unreasonably”. That
is exactly what the trailer did. The defendant’s evidence is that the swaying
of the trailer transmitted the swaying to the truck. This caused the truck to
go out of control. Despite the defendant’s evidence, the truck and trailer
never got back into the slow lane and under control. The truck went out of
control, onto the shoulder, hitting the curb, and then went over the
embankment.

[60]        
The defendant was uncertain as to the speed that he was travelling. I
conclude that the original wobble started in the curve that was described and
seen in the photographs. The truck was equipped with side mirrors. At no time
did the defendant look at the mirrors to see what was occurring. At no time did
the defendant testify that he reduced his speed when he first felt the wobble. The
defendant, despite the posted speed limit, is to drive at a speed suitable
given that he was hauling a trailer.

[61]        
The accident did not occur due to weather conditions, a faulty roadway,
the driving of any other motorists, nor any health condition of the defendant
that caused the vehicle to go off the road. This is also supported by some of
the evidence of the plaintiff when he first felt the wobble.

[62]        
I also conclude that the defendant’s negligent driving started before
the curb and I infer it was the speed of the truck that caused the start of the
wobble in the curb, thus resulting in what was described by the defendant and
what was found by Constable Dunn when he looked at the scene of the accident.

[63]        
The defendant speculated that a tire could have blown, but there was no
evidence of this other than the trailer, when it finally landed, it had a
deflated tire. This is speculation on the part of the defendant. The defendant
has not provided an explanation of how the accident may have occurred without
his negligence.

[64]        
I find that the defendant was negligent and that this negligence caused
the truck and trailer to go over the embankment.

[65]        
The plaintiff will have his costs pursuant to Appendix B at Scale B of
the Supreme Court Civil Rules, B.C. Reg. 168/2009.

“H.C.
Hyslop J.”

HYSLOP J.