2008 BCCA 254 McPhee v. British Columbia

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*McPhee v. British Columbia,*
	2008 BCCA 254

Date: 20080617

Docket: CA035071

Between:

David George McPhee

Appellant

(Plaintiff)

And

Her Majesty The Queen in right of the Province of British Columbia as represented by the Ministry of Transportation and Highways and Mainroad Contracting Ltd.

Respondents

(Defendants)

Before:	The Honourable Chief Justice Finch
	The Honourable Madam Justice Levine
	The Honourable Mr. Justice Smith

R.D. Gibbens and C.M. Weiler	Counsel for the Appellant
A.A. Hobkirk and K.L. Weslowski	Counsel for Mainroad Contracting Ltd.
Place and Date of Hearing:	Vancouver, British Columbia
February 26 & 27, 2008
Place and Date of Judgment:	Vancouver, British Columbia
June 17, 2008

Written Reasons by:

The Honourable Madam Justice Levine

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Smith

Reasons for Judgment of the Honourable Madam Justice Levine:

Introduction

[1] The appellant, David George McPhee, appeals the dismissal of his claim for damages suffered in a single-vehicle accident on January 31, 1998. He claimed that his vehicle slipped on black ice on the highway, causing him to lose control, and alleged that Mainland Contracting Ltd. was negligent in failing to perform its maintenance duties on the highway to the required standard, causing his injuries.

[2] The trial judge held that the appellant had not met the burden on him to prove on the balance of probabilities that there was black ice on the highway at the time of the accident (2007 BCSC 568).

[3] The appellant claims that the trial judge misapprehended or misunderstood some of the evidence, failed to give adequate reasons for his conclusion, erred by deciding the case on the basis that the appellant had not met the burden of proof, and erred by failing to weigh the relative probability of two explanations for the accident. He suggests that this Court may draw different inferences from the physical facts observed after the accident.

[4] In my opinion, the trial judge made none of the errors alleged. His findings of fact were well-supported by the evidence. His reasons are adequate, as they explain the basis for his decision and allow for meaningful appellate review. He did not err by deciding the case on the basis that the appellant had not met the burden of proof, and he was under no obligation to compare the relative probability of the possible explanations for the accident. If the trial judge had made a legal or factual error, which in my view he did not, I would order a new trial as this Court does not generally engage in reweighing evidence and drawing different inferences. It follows that I would dismiss the appeal.

Background and Reasons for Judgment

[5] The appellant left his home in Tsawwassen at or around 7:45 a.m. on the morning of January 31, 1998, to drive to Vancouver. While driving north on Highway 17, about 150 metres north of the Deltaport overpass the appellant’s vehicle left the road and overturned in the adjacent field. The appellant was seriously and permanently injured, and has no recollection of the accident.

[6] There were no witnesses to the accident, and the evidence at trial was solely circumstantial, much of it consisting of expert evidence as to weather and road conditions at the date and location of the accident. The trial judge also considered the evidence of five lay witnesses who were at or near the scene of the accident close to the time it occurred.

[7] In lengthy reasons for judgment, the trial judge summarized in detail the evidence of the experts and lay witnesses, and outlined the positions of the parties and the issues arising in the action. The appellant’s position was that the accident was caused by black ice, while the defendant argued that the evidence relied on by the appellant fell short of establishing the likelihood of black ice at the accident scene. The question on which the case was decided was: “Was there black ice present at the site?”

[8] The trial judge began his analysis by setting out the onus to be met by the appellant (at para. 84):

In advancing this issue the plaintiff has the onus to prove that it is more probable than not that black ice formed on this area of Highway 17 on January 30/31, 1998. It is more than choosing between two reasonable possibilities. In assessing this question I have considered a number of matters.

[9] He then considered the evidence of the lay witnesses: Mr. Parsons, Mr. Burko, Ms. Fulton, Constable Maillette, and Constable Clapp (at paras. 86-90):

Mr. Parsons recalls the morning at a few minutes after 8:00 a.m. as being bright and brilliant. When he saw Mr. McPhee’s vehicle in the field, he braked his vehicle to pull off the road. He encountered no ice on the road. I consider his evidence to be a significant indication that black ice was not present on the road at the time of his arrival at the scene of the accident. In assessing this evidence I recognize that black ice by its nature may not be experienced, particularly if a vehicle proceeds over it without making any turns.

While Mr. Burko’s evidence supports the presence of dampness on the road, a pre-requisite for ice, he observed no ice on the road although he passed over Highway 17 at the accident site on two occasions between approximately 7:55 a.m. and 8:15 a.m.

While Ms. Fulton was not present at the accident site, she did see a layer of ice on a puddle near her home at Boundary Bay. That evidence in my view offers little weight in determining the presence of black ice on Highway 17 at the accident site.

Cst. Clapp, while he did not arrive at the accident site until 9:10 a.m., did directly observe and inspect the tire marks on the edge of the pavement and therefore had more than a photograph of the marks from which to make his assessment that the marks were skid marks.

Cst. Maillette in attending at the accident drove under the Deltaport overpass on to Deltaport Way. Her evidence of this experience was regarded by Dr. Oke as “strengthening” his opinion. Cst. Maillette testified that twice on Deltaport Way her vehicle slid on what she believed to be black ice. The time was shortly after 8:00 a.m. Cst. Maillette was extensively cross-examined about this experience and other matters. There is good reason to be cautious in assessing the reliability of Cst. Maillette’s evidence in the trial, particularly in light of her concern that this is a file which is “haunting” her. The need for caution is increased by the manner and extent of her preparation to give evidence in this trial. I have concluded, however, that on the issue of whether Cst. Maillette experienced her vehicle sliding on what she considered to be black ice, that she did so, and that it probably was black ice that caused her vehicle to slide. I note, however, that Cst. Maillette’s experiencing of black ice was not on Highway 17 itself and was at a different elevation and location, near the underside of the overpass.

[10] The trial judge then turned to the evidence of the meteorological experts, Dr. Oke and Dr. Weaver, and the accident-reconstruction experts, Dr. Toor and Mr. Leggett (at paras. 91 and 92):

The difference between the opinions of Dr. Oke and Dr. Weaver, as Dr. Oke has noted, is a matter of degree. I recognize that the “matter of degree” is significant in that Dr. Oke’s opinion is that the presence of ice is more probable than not. Even if Dr. Oke’s opinion is preferred over that of Dr. Weaver, however, it is not determinative of the issue. It must be weighed along with all of the other evidence relating to the accident and the accident site on the morning of January 31, 1998.

The opinions of Dr. Toor and Mr. Leggett as they relate to this issue concern the existence of and the inferences that may be drawn from the tire marks at the accident site. In part, their difference of opinion has to do with whether the tire marks were skid marks or yaw marks, which in turn is relevant to the extent to which Mr. McPhee’s vehicle was sliding out of control. Based on his conclusion that the tire marks were skid marks, Mr. Leggett concluded that the McPhee vehicle was travelling in a straight line, an indication that the vehicle control was not lost on black ice. Cst. Clapp agreed that the marks were skid marks. Dr. Toor’s opinion is that the physical evidence is consistent with loss of control of the vehicle on black ice, but does not go further than that. There is also some basis for placing less confidence in Dr. Toor’s overall assessment of the accident in this case than in the assessment of Mr. Leggett, as a result of errors made in Dr. Toor’s report or in his testimony. In his evidence, Dr. Toor was unaware that the McPhee vehicle had ABS brakes. In addition, he wrongly relied in part on a diagram drawn by Cst. Clapp from a different and unrelated accident. Further, his report made reference to a “clockwise” rotation of the vehicle when it was intended to say “counterclockwise”, an error which Dr. Toor characterized as a “typo”.

[11] The trial judge referred to other circumstantial evidence of “modest evidential value” that neither Mainroad nor the RCMP received reports of black ice or accidents (at paras. 93, 94).

[12] The trial judge dealt with the possibility that an animal had been present on the road, saying (at para. 95): “[T]here is no evidence to take that possibility beyond the realm of speculation in this case.”

[13] He concluded (at paras. 96, 97):

Having regard to these matters and the whole of the evidence that I have referred to above, I conclude that the plaintiff has not proven that the presence of black ice on Highway 17 on the morning of January 31, 1998 is more probable than not. Absent that proof, the other issues set out above cannot succeed in this action.

There can be no doubt that the accident has had a devastating impact upon Mr. McPhee. I must conclude, however, that Mr. McPhee cannot succeed in this action against the defendants. The evidence does not support a conclusion that it is more probable than not that black ice was present on the road at the time of the January 31, 1998, accident. Absent that proof, the other issues cannot succeed. In the result the action is dismissed. If the parties cannot agree on the issue of costs they may make written submissions through the registry.

Issues on Appeal

[14] The appellant raises six grounds of appeal. He claims that the trial judge misunderstood two aspects of the evidence: the expert evidence regarding the tire mark left on the shoulder of the highway, and Mr. Parsons’ testimony. He argues that the trial judge erred in law by failing to explain how he inferred his conclusion from his findings of fact, by deciding the case on the basis of the burden of proof, and by failing to consider the probability of black ice as against an animal on the road as the explanation for the accident.

[15] Finally, he seeks this Court’s intervention to draw new inferences from the facts. For the reasons stated above, I would not accede to this ground of appeal.

Skid Mark Evidence

[16] Whether the tire mark left on the shoulder of the road was a skid mark or a “yaw” mark was hotly contested at trial, based on the conflicting accident-reconstruction evidence of Dr. Toor (the appellant’s expert) and Mr. Leggatt (the respondent’s expert). On the appeal, the parties proceeded on the basis that the trial judge had concluded that the mark was a skid mark.

[17] The appellant argues that the trial judge misunderstood this expert evidence when he commented (at para. 92) that the skid mark was “an indication that the vehicle control was not lost on black ice”. He says that the skid mark only indicates that he made a hard right turn and applied the brakes as he was leaving the shoulder of the highway, which is consistent with his theory that his vehicle slid on black ice.

[18] The appellant relies on portions of Mr. Leggett's evidence. He points out, for example, that Mr. Leggett noted in his report dated January 31, 2006, that the physical evidence in this case (including photographs of the skid mark) is consistent with a scenario in which the appellant “over-corrected”, by “steering away from the circumstance”, left the lane, and braked hard in response.

[19] It is true that in this portion of his evidence, Mr. Leggett did not state an opinion as to whether the skid mark indicates that the appellant swerved in response to black ice or for some other reason. In other parts of his evidence, however, he clearly stated that the skid mark indicates that black ice was not present. Elsewhere in the January 31 report, he wrote: “[T]he fact that there was a thick, black skid mark on the roadside is a confirmation that the road surface must not have been wet or damp at this location. Thus, it follows that the road surface could not have been icy at this location”. In his report dated March 11, 2006, prepared in response to a report by Dr. Toor, Mr. Leggett wrote:

I agree with Mr. Toor, that as the evidence indicated that the McPhee vehicle was travelling straight ahead as it left the road surface, or at least travelling in the direction that it was pointed (i.e., 10˚ to the right), the vehicle must not have been out of control prior to leaving the road surface.

…

I disagree with Mr. Toor on his conclusions 1, 2 and 3. That is, from the photographs (augmented by the police measurements) I think the presence of black ice can be conclusively ruled out for the reasons previously discussed (skid marks are created on a dry surface, not a damp surface). I also disagree with conclusion 3, wherein Mr. Toor suggests that the physical evidence (photographs) is consistent with the McPhee vehicle losing control due to the presence of black ice. As alluded to previously, the photographs determine with fairly good precision, that this vehicle was first steered, then braked aggressively as it travelled off the road surface. This would not be the typical, or expected result of a driver encountering black ice. When a vehicle travels over black ice, and for some reason a driver attempts to steer, brake or accelerate on that surface, his vehicle may begin to rotate…. This was not observed in the police photographs, or the police measurements, which described a vehicle travelling off the right side of the road at a rather steep angle (likely as a result of swerving and braking by the driver).

[Emphasis added.]

[20] Mr. Leggett also opined that the skid mark is consistent with circumstances other than black ice. When he explained in his January 31 report that the evidence was consistent with the appellant having steered away from a “circumstance”, he was referring not to black ice but to driver distraction. He concluded this report with a list of some of the “numerous reasons” that a vehicle could leave a road as the appellant’s did, which included driver distraction, an unexpected medical event, avoidance of another vehicle, and avoidance of an animal, person, or object.

[21] The trial judge made no error in finding that the skid mark indicates that black ice was not present at the site of the accident. The finding was amply supported by Mr. Leggett’s evidence.

[22] I would not accede to this ground of appeal.

Mr. Parsons’ Evidence

[23] The appellant argues that the trial judge misunderstood Mr. Parsons’ evidence as to where he manoeuvred his vehicle in relation to the location of the accident. The trial judge summarized Mr. Parsons’ evidence (at para. 8):

As he was crossing the overpass he observed a vehicle ahead of him pulling off to the right hand side of the road on to the shoulder. He then saw another vehicle, which had gone off the road and was overturned with steam rising from it. He took his foot off the accelerator and upon reaching the other side of the overpass he braked his vehicle hard, pulled over on to the shoulder and backed his vehicle up close to a vehicle that had already parked on the shoulder. He had no difficulty in performing this manoeuvre.

[24] The appellant says that Mr. Parsons’ evidence was that he was coasting from the top of the overpass until he passed the area where the appellant lost control, and then braked his vehicle. He maintains that the trial judge misstated the chronology of events, indicating that he understood Mr. Parsons’ evidence to be that he had his foot on the accelerator until he cleared the overpass and then braked hard where the appellant allegedly hit black ice and skidded. The significance of this alleged misunderstanding is, as the trial judge noted (at para. 86): “black ice may not be experienced, particularly if a vehicle proceeds over it without making any turns.”

[25] The appellant’s argument rests on an unwarranted assumption regarding the degree of precision in the trial judge’s description of Mr. Parsons’ evidence of the manoeuvres of his vehicle relative to the location where the appellant allegedly hit black ice and lost control of his vehicle. The trial judge clearly understood that if Mr. Parsons simply proceeded over black ice without manoeuvring his vehicle, he may not have experienced it. The evidence was, however, that Mr. Parsons braked his vehicle very close to the location where the appellant left the road, and did not experience black ice. That is clearly relevant evidence, and the trial judge, having heard all of the evidence, was entitled to take it into account and give it the weight he thought appropriate. He made no palpable and overriding error in doing so.

[26] I would not accede to this ground of appeal.

Adequacy of Reasons

[27] The appellant argues that the trial judge’s reasons for judgment are inadequate, according to the principles set out by the Supreme Court of Canada in R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, because he failed to provide the “explanatory path” from his primary factual findings to his conclusion.

[28] In assessing the adequacy of a trial judge’s reasons for judgment, the question is whether the reasons allow for meaningful appellate review and meet the parties’ “functional” need to know the basis for the decision: Sheppard at para. 55; Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129 at para. 100, 2007 SCC 41. Reasons are particularly important where, as here, the trial judge is called upon to “resolve confused and contradictory evidence on a key issue”: Sheppard at para. 55; Hill at para. 101.

[29] The appellant contends that the trial judge failed to explain how he arrived at his conclusion that black ice was not present after accepting the evidence of Constable Maillette and Dr. Oke, which is at odds with this conclusion.

[30] Constable Maillette testified that her vehicle slid on black ice as she drove to the site of the accident. The trial judge said of her evidence (at para. 90):

I have concluded, however, that on the issue of whether Cst. Maillette experienced her vehicle sliding on what she considered to be black ice, that she did so, and that it probably was black ice that caused her vehicle to slide. I note, however, that Cst. Maillette’s experiencing of black ice was not on Highway 17 itself and was at a different elevation and location, near the underside of the overpass.

[31] The trial judge did not simply accept the evidence of Constable Maillette. Rather, he explained how he was able to reach his conclusion despite having accepted her evidence. Though he did not expressly say so, it is clear from the above passage that he found her evidence to be of limited probative value in determining whether black ice was present at the site of the accident.

[32] Dr. Oke’s evidence was that ice was probably present at the site and time of the accident. Dr. Weaver said that the presence of ice was possible but unlikely. The trial judge said of this discrepancy (at para. 91):

[33] It is not entirely clear what the trial judge meant when he said that Dr. Oke’s opinion is “not determinative” of the issue even if it is preferred to Dr. Weaver’s. What is clear – from this passage, other portions of the reasons for judgment, and the trial judge’s conclusion – is that he did not wholly accept Dr. Oke’s opinion. Rather, he weighed it against the other evidence, including Mr. Parsons’ testimony that he did not encounter ice when he drove along the highway and stopped just past the site of the accident, and Mr. Leggett’s opinion that black ice was not present.

[34] The judge did not articulate every step in his reasoning process, but he did explain how he resolved the conflicts in the evidence and why he reached his conclusion. His reasons for judgment meet the parties’ need to know the basis for the decision and, evidently, they allow for appellate review. They are more than adequate.

[35] I would not accede to this ground of appeal.

Burden of Proof and Relative Probability

[36] The appellant makes two arguments based on English authorities. The first is that the trial judge erred by “resorting to the burden of proof”. He relies on the Court of Appeal decision in Stephens v. Cannon, [2005] EWCA Civ 222.

[37] In that case, a master had been confronted with conflicting expert evidence on the value of a dwelling which had not yet been built, and concluded (quoted at para. 31):

I have to say that at the end of the day I found it very difficult to satisfactorily resolve this conflict of evidence which is based upon a difference of professional opinion….

However, the conclusion which I have reluctantly reached is that I am unable to decide that I prefer one view over the other, and in those circumstances this case falls to be decided on the basis of the burden of proof. As the claimants bear the burden of proof to satisfy me on the balance of probabilities that their view is correct, and as they have failed to do this, I shall adopt the view put forward by the defendants.

[38] The Court of Appeal, summarizing the authorities on this issue, said (at para. 46) that a court may “despatch a disputed issue by resort to the burden of proof” only when the court “cannot reasonably make a finding” on the issue, “notwithstanding that it has striven to do so”.

[39] Unlike the master in Stephens, the trial judge did not find himself unable to resolve the conflicts in the evidence and did not rely on the burden of proof. Rather, he resolved the conflicts, weighed the evidence, and concluded that the appellant had not proven, on the balance of probabilities, the presence of black ice. In other words, he did not resort to the burden of proof, but applied it, as he was required to do. Thus, even if the principle articulated in Stephens is reflected in the common law of this province, which I assume without deciding, the trial judge made no error.

[40] The appellant’s second argument based on English authorities is that the trial judge erred by failing to consider the relative probability of the two possible explanations for the accident, black ice and an animal on the highway. He relies on Eyres v. Atkinsons Kitchens and Bedrooms Ltd., [2007] EWCA Civ 365, and Datec Electronics Holdings Ltd. v. United Parcels Service Ltd., [2007] UKHL 23.

[41] At issue in Eyres was whether a single-vehicle accident was caused by the driver falling asleep or using his mobile phone. The Court of Appeal found that the judge had failed to “balance one possibility against the other”, which is “an essential analysis” (at para. 51). In Datec, the House of Lords quoted with approval the Court of Appeal’s analysis of the probability of various explanations for the disappearance of three packages (at paras. 49-50).

[42] The appellant says that if the trial judge had considered the relative probabilities of the possible explanations for the accident, he would have found that black ice was probable, given that he dismissed as speculation the suggestion that an animal was on the highway, that the only plausible explanation for the accident is black ice, and thus that he would have found black ice to be more likely than an animal on the highway.

[43] I do not agree. Even assuming that the trial judge considered the presence of black ice to be “plausible” and would have found that black ice was more probable than an animal, it does not follow that he would have gone on to find that black ice was probably present. Actual probability follows from relative probability only where there are but two possible alternatives. As Mr. Leggett pointed out, there are a number of possible explanations for an accident such as the appellant’s. The trial judge was aware of this. He noted (at para. 96): “It is more than choosing between two reasonable possibilities. In assessing this question [of whether black ice was probably present], I have considered a number of matters.”

[44] Moreover, the approach taken by the Court of Appeal in Eyres is not part of the common law of this province. The question before the trial judge in a case such as this is whether the plaintiff has proven, on the balance of probabilities, the facts necessary to establish the claim, not whether the defendant has established a plausible alternative theory. In Benoit v. Farrell Estate, 2004 BCCA 348, 27 B.C.L.R. (4th) 226, another case involving black ice, Smith J.A., for the Court, said (at para. 65):

The claimants in both proceedings bore the burden at trial of proving on a balance of probabilities that the ice on the road caused the collision. It was open to the defendants to suggest other possible causes for the collision that involved no breach of duty on their part. However, they did not have to prove the likelihood of one or other of these suggested causes. At the conclusion of the evidence, the burden remained, as it had throughout, on the plaintiffs to establish ice as a cause to the requisite standard. If, after considering all of the evidence, including the evidence of the other suggested causes, the trial judge remained in doubt as to whether ice was a cause of the collision, it would have been open to him to dismiss the claims on the ground that they had not been proven….

[Emphasis added]

[45] A trial judge may well find it useful to analyze the relative probability of various theories. However, a requirement that such an analysis be undertaken would invite an emphasis on the relative probability of the parties’ theories, as opposed to the actual probability of the plaintiff’s theory, which is the ultimate question. This could result in undue weight being placed on a defendant’s failure to establish an alternative theory.

[46] The trial judge made no error by failing to compare the relative probability of black ice and an animal on the highway, or other circumstances, as explanations for the accident. He considered the evidence for and against the appellant’s theory and determined that he had not proven, on the balance of probabilities, the essential fact that black ice was present on the highway, and therefore could not prove causation. The trial judge was under no obligation to compare the relative probabilities of the theories, and his conclusion would not have differed had he done so.

[47] I would not accede to these grounds of appeal.

Conclusion

[48] The appellant has not demonstrated that the trial judge made any error of law or fact in assessing the evidence, explaining his reasoning, or concluding that the appellant had not met the burden of proof.

[49] I would dismiss the appeal.

“The Honourable Madam Justice Levine”

I AGREE:

“The Honourable Chief Justice Finch”

I AGREE:

“The Honourable Mr. Justice Smiih”