2008 BCCA 105 McIlvenna (litigation guardian of) v. Viebig

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*McIlvenna (litigation guardian of) v. Viebig,*
	2008 BCCA 105

Date: 20080312

Docket: CA034922

Between:

Connor Allen McIlvenna, an infant,

by his litigation guardian, Shawne McIlvenna

Appellant

(Plaintiff)

And

Gerd Julius Viebig

Respondent

(Defendant)

Before:	The Honourable Mr. Justice Hall
	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Tysoe

D.G. Cowper, Q.C. and K.L. Grant	Counsel for the Appellant
M-H. Wright and A.Y.P. Chan	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
December 7, 2007
Place and Date of Judgment:	Vancouver, British Columbia
March 12, 2008

Dissenting Reasons by:

The Honourable Mr. Justice Tysoe

Written Reasons by:

The Honourable Mr. Justice Hall (P. 13, para. 31)

Reasons Concurring in the Result by:

The Honourable Madam Justice Saunders (P. 18, para. 43)

Reasons for Judgment of the Honourable Mr. Justice Tysoe:

Introduction

[1] On September 14, 1995, a collision between the appellant’s bicycle and the respondent’s car occurred at or near a T-intersection located close to Tsawwassen Town Centre Mall in Delta, British Columbia. The appellant was injured as a result of the collision.

[2] In 2003, a negligence action was commenced against the respondent on behalf of the appellant by his mother, his litigation guardian. A five-day trial on the issue of liability took place in February 2007. On March 2, 2007, the trial judge issued reasons for judgment dismissing the action. The neutral citation of the reasons for judgment is 2007 BCSC 288.

[3] The appellant appeals from the order dismissing his action and requests this Court to find the respondent liable for the accident.

Background

[4] The accident took place near the western edge of Tsawwassen Town Centre Mall, where a municipal library is located. It was daylight, and the weather conditions were good.

[5] The appellant was following his brother and another boy, riding their bicycles downhill on the road which ended at the T-intersection in front of the library. The road, which had previously been a lane or an alley, was unnamed at the time of the accident but is now called Library Road. The appellant’s brother and the other boy had made a left-hand turn onto the through street and were headed in a northerly direction. The respondent’s vehicle was travelling on the through street in a southerly direction approaching the T-intersection.

[6] The T-intersection was uncontrolled in the sense that there were no traffic lights or signs to govern movement through the intersection. Section 173(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, provides that where two vehicles approach or enter such an intersection at approximately the same time, the driver of a vehicle must yield the right-of-way to the vehicle on the driver’s right. In this case, the appellant was to the right of the respondent. The other relevant provision of the Act is s. 183(2)(c), which provides that a cyclist must ride as near as practicable to the right side of the road.

[7] None of the witnesses who testified at trial actually saw or recalled the collision. The appellant was 6 1/2 years old at the time of the accident, and he was only able to recall riding down the road in question.

[8] The respondent’s health problems did not permit him to travel to Canada from his home in Europe for the purpose of testifying at the trial. Portions of the respondent’s examination for discovery were read in as evidence by the appellant’s counsel, and a diagram which the respondent drew of the scene was introduced into evidence. The diagram showed the collision to have taken place at a point where the front of the respondent’s car was level with the northern entrance of the intersection. The diagram showed the appellant’s bicycle to have come from the left side of Library Road.

[9] The appellant’s brother testified that he saw the respondent’s vehicle approaching the intersection. He kept going and looked back to make sure the appellant was coming, and saw that the appellant's bicycle and the vehicle were “sort of coming on a collision course”. He had to turn away in order to maintain his balance, and he then heard the noise of the collision. The appellant’s brother also testified that there were large bushes and trees on the left side of Library Road near the T-intersection and that “[y]ou couldn’t see traffic coming from that direction, not until you got towards the end of the street”.

[10] Ms. Nichols, the driver of the car travelling two vehicles behind the respondent’s car, testified that the line of cars was moving very slowly and that she braked when the car in front of her and the respondent’s car braked. She stopped her car, got out and went to the intersection, where she saw the appellant under the respondent’s car. She said that his car had come to a stop about one car length into the intersection (such that the back end of the car was level with the northern entrance of the intersection).

[11] At trial, Ms. Nichols adopted the following part of the statement she gave to an adjuster approximately two weeks after the accident:

Previous to the Mercedes braking, a young skateboarder had come from my left to my right in front of the Mercedes and then a young cyclist came from my right and rode into the front of the Mercedes.

The Mercedes to which she referred was the respondent’s vehicle.

[12] The trial judge dismissed the action on the basis that the appellant had not discharged the onus on him of showing that the respondent had failed to take reasonable care in the circumstances.

Issues on Appeal

[13] The appellant asserts that the trial judge made the following three errors:

(a) he failed to embark on the proper legal analysis;

(b) he implicitly applied a “who hit whom” test of negligence; and

(c) he made a palpable and overriding error of fact in failing to find that the respondent had not yielded the right-of-way to the appellant.

Discussion

(a) Improper Legal Analysis

[14] The appellant says that the judge failed to embark on the proper legal analysis in two respects. First, the appellant argues that the trial judge effectively shifted the burden of proof by requiring the appellant to disprove the respondent’s theories of the case. Second, the appellant argues that the trial judge misconstrued the scope of facts needed to establish that it was more likely than not that the respondent was liable for the accident. Both of these alleged errors in legal analysis arise from the following comments by the trial judge:

[23] I conclude that it would be speculation to make [a finding of] liability on the part of the defendant. The car may have come to a stop before the collision. The bicycle may have been going fast down the hill. The car may have entered the intersection well before the bicycle reached the intersection. I simply cannot determine the facts necessary to a finding of liability on the evidence before me.

[15] Regarding the first aspect of the alleged error in legal analysis, it is my view that the trial judge did not require the appellant to disprove the respondent’s theories and that he applied the correct legal analysis. After reviewing the evidence and pointing out that he was not able to make various findings of fact due to the lack of evidence, the trial judge correctly stated at paragraph 26 that the onus was on the appellant to show that the respondent failed to use reasonable care in the circumstances and, in particular, that the respondent could reasonably have avoided the collision or that the respondent entered the intersection at approximately the same time as the appellant and failed to yield the right-of-way. He concluded at paragraph 27 that on the evidence before him, he was not satisfied that it was more likely than not that the respondent failed to yield the right-of-way or could have avoided the collision had he seen the appellant as soon as he reasonably should have seen him. The trial judge was not weighing the competing theories. Nor was he requiring the appellant to disprove the respondent’s theories of the case. In my view, the trial judge correctly referred to the onus of proof and held that the appellant had not discharged it.

[16] Unlike some of the authorities relied upon by the appellant, this was not a case involving conflicting evidence where the trial judge was required to resolve the conflicts. This was a case about a lack of evidence where no witness gave evidence regarding the collision itself, and the trial judge utilized the burden of proof in order to reach his decision. Also, unlike some of the authorities relied upon by the appellant, this is not a case involving a collision in the centre of the road where negligence on the part of each driver can be inferred in the absence of a satisfactory explanation.

[17] As a result of the lack of evidence about the details of the collision, the trial judge could not find whether the appellant’s bicycle or the respondent’s car approached or entered the intersection first. He could not make a finding as to the exact location of the collision. He could not find with any precision where the appellant’s bicycle had been travelling prior to the collision. The facts were obscure and the trial judge concluded that the appellant had not discharged the onus on him. This approach does not represent an incorrect legal analysis.

[18] Regarding the second aspect of the alleged error in legal analysis, the appellant maintains that the first two of the speculated facts in paragraph 23 (whether the respondent’s car stopped before the collision and whether the bicycle was going fast down the hill) say nothing about the respondent’s liability and that the third of the speculated facts (whether the car entered the intersection before the bicycle) was precluded by the evidence.

[19] The possibility that the respondent’s vehicle had come to a stop before the collision could have been relevant if the respondent had stopped his car to yield the right-of-way to the appellant as soon as he could reasonably have seen him. However, the evidence appears to indicate that the car did not come to a stop prior to the collision. The possibility that the appellant’s bicycle may have been going fast down the hill is not, by itself, determinative of the issue of the respondent’s liability, but it is related to the third speculated fact. If the bicycle was moving fast, it may have supported a finding that the respondent’s car had entered the intersection before the bicycle had approached the intersection. I disagree that the evidence precluded such a finding. If the respondent’s car had approached and entered the intersection well before the appellant’s bicycle, then the appellant would not have had the right-of-way.

(b) Incorrect Legal Test

[20] The second error alleged by the appellant is that the trial judge implicitly applied the “who hit whom” test to determine the issue of liability. The following was said about such a test in Scheving v. Scott (1960), 24 D.L.R. (2d) 354 at 359 (Man. C.A.):

Prior entry into an intersection does not mean priority by a matter of a few feet or by a fraction of a second ahead of another vehicle; it means entry into an intersection with the opportunity of clearing it without obstructing the path of another vehicle under normal circumstances. “Who hit whom” is not the test. The driver on the left, even though he may reach the intersection first, must yield the right-of-way to the driver on the right where they approach the intersection so nearly at the same time that there would be imminent hazard of collision if both continued the same course at the same speed.

[21] I agree that the “who hit whom” test is not the proper test. However, I disagree that such a test was employed by the trial judge. While he was reviewing the evidence, the judge did make reference to the portion of Ms. Nichols’ statement adopted at trial to the effect that the appellant rode his bicycle into the front of the respondent’s car. But he did not rely upon the statement for the purpose of concluding that the appellant was responsible for the accident. Rather, his conclusion was that there was a lack of proven facts to establish negligence on the part of the respondent. It cannot be concluded that the trial judge implicitly utilized the “who hit whom” test merely because he referred to Ms. Nichols’ statement while reviewing the evidence.

(c) Palpable and Overriding Error

[22] In order to succeed on the contention that the trial judge made a palpable and overriding error of fact in failing to find that the respondent did not yield the right-of-way, the appellant must show that the only reasonable inference to be drawn from the facts proven at trial was that the respondent was required to yield the right-of-way and failed to do so.

[23] The main difficulty facing the appellant was that there were very few proven facts as a result of the paucity of testimony regarding the collision itself. Counsel for the appellant places great reliance on the evidence that the appellant ended up beneath the respondent’s vehicle and that the vehicle came to a stop in the middle of the intersection. Counsel says that the respondent’s car ran over the appellant after the collision. Both of these points were disputed at trial, and the trial judge did not make any definitive findings on these points. However, even if these facts are assumed to be true, they do not necessarily lead to the inference that the respondent was negligent.

[24] In my view, the inference urged upon the Court on behalf of the appellant is not the only reasonable inference to be drawn from the proven facts. In discussing the facts that he was not able to determine, the trial judge commented on the possibility that the respondent’s car could have entered the intersection well before the appellant’s bicycle. Rather than the respondent’s car running over the appellant, it is possible that the appellant slid under the front of the car if, for example, he tried to avoid the collision by “laying” his bicycle down on the road surface.

[25] Another possibility is that the respondent could not have reasonably seen the appellant until reaching the northern entrance of the intersection and that the collision took place at that point because the appellant, in violation of s. 183(2)(c) of the Motor Vehicle Act, was either travelling on the left side of Library Road or cutting the corner in making the left-hand turn. The respondent’s vehicle could have travelled a short distance after the collision so that it came to rest in the position described by Ms. Nichols.

[26] These are potential inferences which were reasonably available on the proven facts that do not involve a failure by the respondent to yield the right-of-way when required to do so. Liability on the part of the respondent is not the only reasonable inference to be inferred from the proven facts. The trial judge did not make a palpable and overriding error in this regard.

[27] I have had the benefit of reviewing in draft the reasons of Madam Justice Saunders, who would allow the appeal on the basis that the trial judge failed to address the question of whether there was an imminent hazard of collision if both the appellant and the respondent continued at the same speed on the same course. With respect, I cannot agree. The trial judge directed his mind to the issue of whether the appellant had proven that he had the right-of-way. In doing so, the trial judge must be taken to have considered whether there was an imminent hazard of collision because trial judges are presumed to know the law in the absence of manifest error. The fact that the trial judge expressed his conclusion in terms of the appellant not proving that the respondent failed to yield the right-of-way, rather than in terms of the existence or non-existence of an imminent hazard of collision, does not, in my respectful view, constitute reversible error.

[28] I have also had the benefit of reviewing in draft the reasons of Mr. Justice Hall, who would allow the appeal on the basis that the trial judge failed to address the question of whether the collision occurred inside or outside the intersection. With respect, I am unable to agree for reasons similar to those that prevent me from agreeing with Madam Justice Saunders. In paragraph 26 of his reasons, the trial judge directed his mind to the correct legal principles for establishing liability, and, absent manifest error, he must be taken to have considered the evidence relevant to the question of where the collision occurred. He was not required to articulate and deal with every possible scenario as to the location of the collision.

[29] In addition, even if the collision did occur in the intersection, it would not necessarily follow, in my view, that the respondent was negligent. If the collision occurred because the appellant was travelling on the left side of Library Road or cutting the corner in making the left-hand turn, and the trees and bushes prevented the respondent from seeing the appellant before it was too late to avoid the collision even though the respondent may have been driving at a sufficiently slow speed to have allowed the appellant to make the left-hand turn in front of his car had the appellant entered the intersection from the right side of Library Road, the respondent might not have been negligent despite the fact that the collision occurred within the confines of the intersection.

Conclusion

[30] It is my opinion that the appellant has not demonstrated any error by the trial judge. I would dismiss the appeal.

“The Honourable Mr. Justice Tysoe”

Reasons for Judgment of the Honourable Mr. Justice Hall:

[31] The background facts of this case are set out in the reasons of Tysoe J.A. This case presents unusual difficulty, in part, I am sure, because of the long interval of upwards of eleven years between the time of the accident and the time of trial. Both the defendant driver and an important witness to the accident are now elderly and suffer from memory problems. The plaintiff cyclist was a young child at the time and appears to have no recollection of the circumstances of what occurred at the time of the accident.

[32] The facts of the case may engage the provisions of s. 173(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, which provides that a vehicle must yield to traffic approaching from the right at an uncontrolled intersection. I use the terminology "may" because it is by no means clear this accident occurred in the confines of an intersection.

[33] A case in which this Court dealt with liability issues arising from a collision at an uncontrolled intersection is Pemberton v. Schreiber (1997), 32 B.C.L.R. (3d) 187. The facts are set out in the headnote which reads as follows:

The defendant, travelling northbound, struck the right rear corner of the plaintiff’s vehicle, which had been travelling eastbound. The accident occurred at an intersection that was not controlled by lights or signs. The plaintiff brought an action claiming damages for negligence arising out of injuries he allegedly suffered in the accident. He argued that he had had the right of way as the dominant driver, because he had made substantial entry into the intersection before the defendant entered it. The plaintiff’s claim was dismissed. The trial judge found that both vehicles entered the intersection at about the same time. Section 175 of the Motor Vehicle Act (B.C.) placed a duty on the plaintiff in such circumstances to yield to the defendant as the driver on his right. The plaintiff failed to prove that the defendant was negligent in the circumstances.

[34] The appellant plaintiff, who was the servient driver, argued that he should be found entitled to damages for injuries he sustained in the accident, but he failed at trial on the issue of liability. He had argued that because his vehicle had entered the intersection first, the other vehicle should be found liable for striking his vehicle.

[35] This Court sustained the decision of the trial judge denying liability. This Court concluded that the trial judge had not been shown to be in error in concluding that since the motor vehicles approached the intersection at approximately the same time, the vehicle of the plaintiff had an obligation to yield to the other vehicle approaching from its right. Huddart J.A. at p. 191 cited this well-known passage from the case of Scheving v. Scott (1960), 24 D.L.R. (2d) 354 at 359, 32 W.W.R. 234, a decision of the Manitoba Court of Appeal:

[36] That passage is consistent with the reasoning of the majority of the Supreme Court of Canada in the oft-cited case of Walker v. Brownlee, [1952] 2 D.L.R. 450. In that case, construing a similar provision of the Highway Traffic Act, R.S.O. 1950, c. 167, the court held that it is the obligation of the driver entering an intersection to yield to the driver on the right.

[37] The principles applicable to intersection collision cases are well known and well established but, as Huddart J.A. observed in Pemberton at p. 192, each case will fall to be decided having regard to its particular facts. That is where this case throws up a situation of particular difficulty because of evidentiary problems. The above-cited cases differ factually from the present case because in each of these cases the facts were reasonably clear and it was simply a matter of applying applicable legal principles to the established facts. In all of those cases it appears the collision occurred in the confines of an intersection.

[38] In my opinion, the trial judge in the present case does not appear to ever have reached the question I consider vital to the resolution of the case, namely, the question as to where the collision between the automobile and the bicycle occurred. There is some basis in the evidence to suggest the collision occurred in the uncontrolled intersection, but there is also evidence suggestive of the proposition that it occurred outside the intersection, when the bicycle being ridden by the young cyclist turned left from the street on which he had been travelling into the other street and collided with the front portion of the vehicle being driven by the defendant. It seems on the available evidence that the cyclist was ultimately found under the automobile in the intersection, but, of course, this does not necessarily demonstrate that the actual collision occurred within the confines of the intersection. If the collision occurred outside the intersection, by the cyclist turning and colliding with the vehicle as it was travelling along the street prior to entry into the intersection, it is difficult to see a sound basis for liability on the part of the driver of the automobile. On the other hand, if the collision occurred in the intersection, the question of right-of-way would be in issue and the trier of fact would be required to analyze the situation to determine responsibility or respective degrees of fault for the collision as between the cyclist and the driver.

[39] It may be the situation that it was not and will not be possible for a judge on all the evidence to determine where this collision occurred. There are indications in the reasons of the learned judge that he was having difficulty finding necessary facts having regard to the state of the evidentiary record. The judge said at para. 23 of his reasons:

I conclude that it would be speculation to … find liability on the part of the defendant. The car may have come to a stop before the collision. The bicycle may have been going fast down the hill. The car may have entered the intersection well before the bicycle reached the intersection. I simply cannot determine the facts necessary to a finding of liability on the evidence before me.

[40] I do not perceive in the reasons of the judge any clear indication that he sought to determine just where the collision between the cyclist and the car occurred. In my judgment, this is an essential issue to be considered and, if possible, resolved by the trier of fact in a case of this sort. As I observed above, it may not ever be possible for this issue to be determined on the available evidence in this case. The reasons of the judge do suggest he was having great difficulty in making factual findings due to the paucity of the evidence before him. If the trier of fact were to conclude that it could not be established whether the collision occurred in or out of the intersection, any liability on the part of the defendant driver would seem to be problematic.

[41] Since, in my judgment, a central issue in the case was not clearly addressed or resolved by the trier of fact, it is necessary to order a new trial. The appellant is entitled to costs in this court. I would leave the decision concerning responsibility for costs of the first trial to be decided by the judge presiding at the new trial.

[42] I would allow this appeal and order a new trial.

“The Honourable Mr. Justice Hall”

Reasons for Judgment of the Honourable Madam Justice Saunders:

[43] I have had the benefit of reading the reasons for judgment of Mr. Justice Tysoe, who has set out the background of the case, and the reasons for judgment of Mr. Justice Hall. I respectfully come to a different conclusion than does Mr. Justice Tysoe, and while I agree with the disposition of the appeal proposed by Mr. Justice Hall, I do so for a different reason.

[44] While there is no express statement in the reasons for judgment that the collision occurred in the intersection, in para. 23 the trial judge said this:

I conclude that it would be speculation to ... find liability on the part of the defendant. The car may have come to a stop before the collision. The bicycle may have been going fast down the hill. The car may have entered the intersection well before the bicycle reached the intersection. I simply cannot determine the facts necessary to a finding of liability on the evidence before me.

[45] On my reading of that paragraph, the trial judge accepted the location of the collision as the intersection, and concerned himself with its cause. However, in my respectful view, he failed to address the essential question posed by the case: whether there was an imminent hazard of collision if both the plaintiff cyclist and the defendant continued at the same speed on the same course.

[46] Section 173(1) of the Motor Vehicle Act, R.S.B.C 1996, c. 318, provides:

173 (1) Except as provided in section 175, if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield signs, the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.

[47] The test as to the application of that section is set out in Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.). In discussing a collision at an uncontrolled intersection and the position of the servient driver in litigation, Cartwright J. said at 460-61:

It was the appellant's primary duty as he approached Hugel Ave. to keep a look-out for drivers approaching upon the right upon that highway and to make way for them; see Swartz Bros. v. Wills, [1935] 3 D.L.R. 277, S.C.R. 628.

[…]

While the decision of every motor vehicle collision case must depend on its particular facts, I am of [the] opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A's disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[48] This approach to the duty of the servient driver was well expressed in Scheving v. Scott (1960), 24 D.L.R. (2d) 354 at 359, 32 W.W.R. 234 (Man. C.A.):

Prior entry into an intersection does not mean priority by a matter of a few feet or by a fraction of a second ahead of another vehicle; it means entry into an intersection with the opportunity of clearing it without obstructing the path of another vehicle under normal circumstances. "Who hit whom" is not the test. The driver on the left, even though he may reach the intersection first, must yield the right-of-way to the driver on the right where they approach the intersection so nearly at the same time that there would be imminent hazard of collision if both continued the same course at the same speed.

[Underlining added.]

[49] Whether the bicycle was travelling fast or whether the respondent’s vehicle entered the intersection well before the bicycle reached the intersection, as speculated by the trial judge in para. 23 above, are not the questions to be addressed. Further, it appears from the record the third speculation, that the respondent’s vehicle was stopped at the time of collision, was unsupported by any evidence and was, in fact, contradicted by the evidence of Ms. Nichols (that he was travelling slowly) and of the cyclist’s brother (that the bicycle and the car were on a collision course).

[50] I consider that the trial judge should have asked himself, and did not, whether there was an imminent hazard of collision if both the cyclist and driver continued at the same speed on the same course, applying fully the spirit of Walker.

[51] Whether there was an imminent hazard, whether the defendant was the servient driver and whether he had an obligation to yield the right of way, are questions intimately tied together, but unresolved in this case. As the trial judge failed to advert to these questions, I consider that the order should be set aside. However, it is the trial court, and not this Court, that is best situated to answer these questions, and thus I do not consider that we should substitute a finding of negligence.

[52] For these reasons, I agree with the disposition proposed by Mr. Justice Hall.

“The Honourable Madam Justice Saunders”