2005 BCSC 41 Holton v. MacKinnon et al

Before: The Honourable Mr. Justice Hood

Reasons for Judgment

Counsel for the Plaintiff	M. P. Ragona, Q.C. T. Jesperson
Counsel for the Defendant Bruson Holdings Ltd.	G.G. Hilliker, Q.C. H. Hayden
Counsel for the Defendant Garfinkel Whistler Enterprises Ltd.	D. Stuart C. McTavish
Counsel for the Third Party	L. Harris
Date and Place of Trial:	September 7 – 28, 2004
	Vancouver, B.C.

INTRODUCTION

[1] The thirty year old plaintiff brings an action for damages for injuries he suffered in a single motor vehicle accident which occurred on Highway 99, between Whistler and Pemberton, at approximately 2:05 a.m. on October 8, 2002. At the time of the accident, the vehicle was owned and driven by the plaintiff’s lifelong friend, the defendant, Barry MacKinnon ("MacKinnon"). The defendant Christopher Martineau ("Martineau"), another good friend, was a front seat passenger and the plaintiff, who I will refer to at times as "Holton", was a left-rear, backseat passenger.

[2] In the accident, the vehicle skidded backwards down the Highway entering a ditch and rolling over onto its roof, crushing the left rear portion thereof; resulting in the plaintiff suffering a fracture of the vertebrae at the C5-6 level and quadriplegia. Both Holton and Martineau testified; MacKinnon did not. Holton settled his action against MacKinnon and his insurer and no case was made out against Martineau.

[3] In the evening prior to the early morning accident, the three men had been in Whistler drinking alcoholic beverages at the Crab Shack, a lounge owned and operated by the defendant, Bruson Holdings Ltd. (the "Crab Shack"), and then at Garfinkel's, a nightclub owned and operated by the defendant, Garfinkel Whistler Enterprises Ltd. ("Garfinkel's").

[4] Before arrive at the Crab Shack some time after 9:00 p.m. on October 7, the three men shared a six-pack of beer at the plaintiff’s residence. After leaving Garfinkel's, shortly after 1:00 a.m. on October 8, the three men returned to the plaintiff’s home where they remained for a short period of time. They then decided to go to a party in Pemberton and were on their way there when the accident occurred.

THE ISSUES

[5] The outstanding claims against the two corporate defendants are founded on negligence in relation to the amount of alcoholic beverages they served to Holton and MacKinnon in their establishments, the effect of the alcohol on the two men, and breaches of their respective duties as commercial hosts in relation to Holton's safety, both as a patron who became intoxicated in their establishments and as a third party who could reasonably be expected to come into contact with another patron who became intoxicated in their establishments, namely MacKinnon. It will be seen that the lay evidence pertaining to these difficult issues in some areas was at times sparse, inconsistent and perhaps contradictory; therefore the crucial evidence in this case is the scientific evidence.

[6] Speaking broadly, the primary defences are: first, that any duties owed by the Crab Shack and Garfinkel’s to the plaintiff were discharged or ended when the plaintiff arrived home safely after leaving Garfinkel’s; and second, that the plaintiff has not proven that he and MacKinnon became intoxicated at the Crab Shack or at Garfinkel’s, or that either establishment owed him any duty in the circumstances.

[7] It will be seen that I have concluded that none of these defences should succeed. In my opinion the plaintiff has proven, on the balance of the probabilities, that he, MacKinnon and Martineau became intoxicated at the Crab Shack, and more intoxicated at Garfinkel’s; that they were unable to care for their own safety or for the safety of others. Further, the employees of both establishments knew, or ought to have known, of this state, and that one of the individuals might be driving the three of them, such that there was a risk that he might cause harm to a third party, including his companions, and should have made enquiries in this regard, and in the end taken steps to prevent this. Accordingly, the Crab Shack and Garfinkel’s both failed to meet the standard of care required of them and are liable to Holton for their breach of duty in accordance with the percentage of fault found against them.

[8] It is to be noted that the trial was taken up by the second line of defences. I therefore propose to deal with the facts pertaining to those issues or defences, before turning to the first defence referred to.

[9] By agreement, counsel have asked the Court to determine the degree of fault, if any, of Holton, MacKinnon, and the two corporate defendants, which caused or contributed to the cause of the accident and Holton's injuries. Also by agreement of counsel, only the issue of liability is before me.

THE EVIDENCE, OBSERVATIONS AND FINDINGS

The Evidence Of Mr. Holton

[10] Holton testified that he lived in Ottawa for many years. He vacationed in Whistler in 1995 liking it so much that he stayed. From 1995 to the date of the accident, he had numerous jobs. He started out with the Hard Rock Cafe for about two years in promotions and merchandising. He worked at the front desk for a number of hotels. He also worked in retail for Holy Shirts.

[11] About three years before the accident he was recruited by Summit Strata Management and was still working for them at the time of the accident. Summit manages and maintains the outer aspects of a number of different properties, mostly commercial, in Whistler. Holton was their assistant maintenance manager.

[12] During this time he also worked part-time at the Pemberton Community Centre doing maintenance work. He worked long hours, and additionally was on-call during his off hours. He was also very active in sports during his off hours. He skied, snowboarded, rode dirt bikes and so on. He owned a snowmobile, a dirt bike and an off-road truck.

[13] He was familiar with the Crab Shack, which consists of a restaurant and a lounge, and attended there frequently. He became acquainted with the manager of the Crab Shack, Mr. Kovacs, who he described as a "hands-on manager". He was drawn to the Crab Shack because he had friends who worked there, it had a casual atmosphere and the food was reasonable. When he dropped in at the Crab Shack he usually found some of his friends there. They, in effect, treated it like a Clubhouse. They would go to the lounge for breakfast before they went snowboarding in the winter and skateboarding in the summer. He would also drop in from time to time for a snack or some iced tea when he was working. They preferred the lounge because the food prices were cheaper, and usually the bartender was one of Holton's friends.

[14] When asked to describe the atmosphere in the Crab Shack lounge, Holton said that it was either very quiet or a “party atmosphere”. There was not much in between. Sunday was the busiest day. When it was party time, on occasion, Mr. Kovacs would put on a show by mixing up some exotic drinks containing a substantial amount of alcohol, such as a “Dr. Pepper” or “Dr. Joe”; although he had never seen any customer “chug-a-lug” one of these drinks down. Also, on the odd occasion, special drinks were available to buddies of the bartenders or regular customers which were not available to persons off the street; for example, a “good guy pint” which was a cheaper draft beer.

[15] It is common ground that on the evening of October 7, 2002, the Crab Shack had a V.I.P. party to celebrate its seventh anniversary of operations. Written invitations were delivered, or handed out, mainly to "good" or "local" patrons and to employees of other establishments in the industry. The invitation provided:

Please join us at the Crab Shack Lounge on Monday, October 7, 2002, for an unforgettable night.

9:00 p.m. - 10:00 p.m. Food and Beverage reception.

10:00 p.m. - close. Live Music with the Ultimate Tragically Hip Tribute. The Totally Hip.

(My emphasis added).

Holton said that they knew of the celebration at the Crab Shack as “the locals’ appreciation night”.

[16] Holton was asked what time they arrived at the Crab Shack on the evening in question. He said that they had planned to “get there in time for all the free beer and food”, and that “it would have been around 9:00 p.m.”

[17] I pause at this point to observe that on occasion I found Holton’s evidence to be somewhat vague. In some instances, for whatever reason, it appeared to amount to little more than a guess or agreement with a suggestion made by counsel. For this reason, I prefer that his favourable evidence have at least some support from other independent and probable evidence which I accept; although because of the conflicting evidence among the witnesses, and internally, where necessary I have accepted some of the evidence of a witness while discounting or rejecting the evidence of the witness in other areas.

[18] Mr. Holton could not recall whether or not MacKinnon brought a six-pack of beer with him when he arrived at his home. He believes that he had one beer at home before they went to the Crab Shack. He does not recall the three of them taking any soft drugs at that time. He said that if they did so, they would have shared a marijuana joint. He added that while he used marijuana from time to time, he did not use it when he was going out because it “makes you tired”.

[19] I am satisfied, on the evidence before me, that it is more likely than not that MacKinnon did bring a six-pack of beer with him to Holton's residence, and that before leaving for the Crab Shack Holton and his roommate each had one beer, while MacKinnon and Martineau each had two beers.

[20] The group travelled to the Crab Shack in MacKinnon’s older BMW vehicle, which he had just purchased. MacKinnon parked the vehicle in the parking lot under the Crab Shack, where they usually parked. The Crab Shack had an area in the lot designated for their patrons. At that time the three men were aware of the party in Pemberton, but did not have any plans to attend it.

[21] When asked what free beverages he could recall drinking during the reception from 9:00 p.m. to 10:00 p.m., Holton said that he thought that it was just draft beer “and that was it”. He did recall that when he arrived he had a stack of five or six invitations, each of which apparently could be converted to two tickets for two free drinks. However, he said that as a "regular" he was served at random without producing any type of ticket. Holton recalled that he was served by both the bartender and the server.

[22] He was then referred to his October 7, 2002 computerized tab of $28.25 which he ran that night at the Crab Shack and which corresponded to an item in the amount of $38.25 listed in his Royal Bank Visa statement, and which included a $10 tip. When asked why he tipped so much he said that it was pretty much to keep the bartender happy, and that on occasion, as locals, “we would be charged a little less than what we consumed”.

[23] This, and other evidence, was led on behalf of Holton to establish that the Crab Shack records do not reflect the actual number of drinks consumed by Holton that night; the specific suggestion being that in addition to the drinks recorded, both the free ticket-drinks and those for which they were charged, the three men were given a substantial number of free drinks at the Crab Shack. I am unable to reach this conclusion on the evidence, although it is obvious that if Holton paid cash for a drink, or if someone else bought him a drink, those drinks would not appear on any records that the Crab Shack had pertaining to him.

[24] The evidence appears to be that when a patron produced his invitation he was given two tickets entitling him to two free drinks. I have little doubt that each of the three men would have received his two free drinks at least. Again, given the nature of the celebration, their relationship with the Crab Shack and the fact that the celebration was not well attended, I would not be surprised if they were given an extra drink or two during the reception period, from 9:00 p.m. to 10:00 p.m. and even later on.

[25] Mr. Holton said that while at the Crab Shack they were just hanging out and chatting, that was pretty much it. He vaguely recalls arriving at Garfinkel's. He said that it would have been some time after 12:00 a.m. because he closed out his tab at the Crab Shack at 12:02 a.m., but he cannot remember. I am satisfied that it is likely that he signed off on his tab at the Crab Shack around 12:02 a.m., and that the three men left for Garfinkel's shortly thereafter.

[26] His evidence as to how much alcohol he consumed at the Crab Shack is unclear. He does acknowledge that they “had been doing a lot of drinking at the Crab Shack”, and that they were "doing shooters", probably "Jägermeisters", a German drink. He was unable to say how he was "feeling" when he left the Crab Shack. All he could say was that they were doing a lot of drinking at the Crab Shack and that the walk to Garfinkel's was a short one. The evidence was that it was a ten or fifteen minute walk from the Crab Shack to Garfinkel's. I also find that it is unlikely, in the circumstances, they would have arrived at Garfinkel's earlier than 12:25 a.m.

[27] He remembers the "first round of beer" at Garfinkel's, standing at the bar and having the beer with Martineau, who gave similar evidence. He could not specifically recall whether he had any shooters at Garfinkel's. He is not "big" on shooters. He is certain that he had more than one drink while he was at Garfinkel's and he believes that they were at Garfinkel's for about an hour. I am satisfied that they were at Garfinkel’s for no more than thirty to forty minutes.

[28] Holton recalled that while at Garfinkel's he received a telephone call from a person at the party in Pemberton. He does not recall walking back to MacKinnon's car, nor does he recall how they got back to his home. It is common ground that he and Martineau were driven there by MacKinnon. He remembers being at his house. He does not recall whether or not he consumed any alcoholic beverage when they were at his house. He recalls being in the vehicle with the other two men. His next clear recollection is one of squealing tires and a loud bang. His first recollection after that is of being in the Vancouver General Hospital on the way to his surgery.

[29] He was again asked about his October 7, 2002, tab with the Crab Shack in the amount of $24.30 and which in the end totalled $38.25 when GST, liquor tax and a $10 tip were added. He was asked from his experience what he would have received for these monies assuming that he was paying full price. He said “maybe four bottles of beer or four shooters, possibly five bottles of beer”.

[30] I observe at this point that the Crab Shack's computer printout of the $38.25 tab makes it clear that what was purchased was four bottles of beer and three shooters. I observe also that four bottles of beer, three shooters, and say two free beers, appear to be consistent with the quantity of alcoholic beverages which the expert, Mr. Wong, said Holton would have to have consumed and absorbed at the Crab Shack in order to have a blood alcohol concentration (BAC) of .176 by the time he departed the Crab Shack. I will refer to Mr. Wong’s evidence in this regard in a moment.

[31] He was asked a similar question about his October 8, 2002, $22 tab at Garfinkel's which is set out in his Royal Bank Visa statement immediately above the reference to his Crab Shack tab of $38.25; and for which Garfinkel’s has not produced a computer printout. He said that the $22 tab might reflect a round of four shooters. I observe here that the $22 tab would include GST, liquor tax and any tip; and that I have concluded that the tab probably reflects the purchase of two or three drinks, depending perhaps upon the size of the tip.

[32] He agreed that at times, when he went to the Crab Shack, he would have too much to drink. When asked how often this occurred, he said that if it occurred, it occurred pretty much on Sundays when he would “possibly overdo it”. On those times he stayed at a friend’s home nearby that is within walking distance, or he took a taxi home. He does not know how much either MacKinnon or Martineau had to drink at the time in question.

[33] Holton was asked about the method of purchasing alcoholic beverages while at the Crab Shack, and/or Garfinkel's. He said:

A. I do recall the Crab Shack, because we generally sit in the same area whenever we go and we would take turns getting rounds of drinks for each other.

Q. So you would get a round, Chris Martineau would get a round … ?

A. Certainly.

Q. Barry MacKinnon might get a round?

A. Yes.

Q. And I take it you would ask each other, assuming that you are sitting together at the time your glass came dry, and one or other would say yes or no?

A. Absolutely.

(My emphasis added).

Martineau gave similar evidence.

[34] It is not entirely clear whether the three men were buying rounds or only their own drinks on the night in question, although I do not believe that it matters. I will return to the point in a moment.

[35] It appears that Martineau was paying cash, while Holton and MacKinnon were using their Visa cards, at least at Garfinkel's. Holton charged $38.25 on his Visa at the Crab Shack and $22 at Garfinkel's. MacKinnon charged $20 on his Visa at Garfinkel's on October 8 and $11.20 on October 7 at a beer and wine store, which I believe refers to the six-pack of beer. There are no other records, in particular, no records evidencing the amount of drinks purchased or consumed by either MacKinnon or Martineau at the Crab Shack.

[36] Holton gave the following evidence when cross-examined by Mr. Hilliker for the Crab Shack: He believed that he worked that day, that is, October 7, 2002, on the day shift from 8:00 a.m. to 6:30 p.m.; that he likely had to work the following day, that is, October 8, on the same shift.

[37] Holton and MacKinnon had been friends for years. He had seen MacKinnon drunk before. They would go out drinking together, but no more than once or twice a week. He was asked whether MacKinnon was a seasoned drinker, and he said that it was difficult to answer the question because he had seen him hold his liquor, and he had seen him sloppy or drunk. He also said, referring to MacKinnon, that he drank no more than once or twice a week as well, “if that means seasoned". Holton is a beer drinker.

[38] He agreed that his recollection of the events immediately leading up to the accident is in some parts quite vague. I have already commented on this. His two friends, MacKinnon and Martineau, came to his home to pick him up. His roommate, Toby, was there. He believes that there may have been four bottles of beer in his fridge at the time and that each of them had a bottle of beer. Later he said that he would believe MacKinnon's evidence, which was put to him, that he, MacKinnon, had brought a six-pack of beer with him when he arrived at Holton's residence, and which was consumed. I have already noted my acceptance of the six-pack evidence, including its disposition.

[39] When they arrived at the Crab Shack Holton had some of the free appetizers, chicken wings, and drank some free beer. He used his credit card to purchase drinks that night; he could not recall paying any cash. When it was suggested to him that no one else had bought him any drinks that night, he said that he had no idea, adding that generally the three of them would take turns buying rounds. However, he did not remember anybody purchasing a round for him that night; and he did not remember purchasing any rounds himself. He did remember going up to the bar and getting beer earlier on in the evening.

[40] He was referred to the Crab Shack's internal document, or computer printout, Exhibit 8, pertaining to his Visa bill in the amount of $28.25, plus the $10 tip. The statement reflects the purchase by him of four bottles of beer and three shooters. He seemed to agree that he left the $10 tip because he had been served some free beer and had eaten free appetizers. He also recalled that when he was at the Crab Shack he saw and spoke with Mr. Kovacs whom he knew.

[41] I pause to observe at this point the general nature of his evidence about buying rounds. I am not entirely satisfied on the evidence that the three men were buying rounds for each other on the night in question as was their practice. Nor am I satisfied, as argued by Mr. Ragona, that the internal document, Exhibit 8, does not directly or indirectly reflect the approximate alcoholic drinks consumed by the plaintiff at the Crab Shack on the night in question, save for the free or promotional drinks.

[42] In this regard, the evidence of the analyst, Mr. Wong, yet to be referred to, is that in order for a 165 lb man, (Holton) to have entered the Crab Shack at approximately 9:00 p.m. on October 7, 2002, with a blood alcohol concentration (BAC) of 12 mg. (.012) being the one beer at his residence, and to have departed the Crab Shack at approximately 12:00 a.m. to 12:15 a.m. on October 8, 2002, with a BAC of 176 mg. (.176), he would need to have consumed and absorbed the following quantities of alcohol while at the Crab Shack:

(a) Approximately twelve - 1 oz shooters of hard liquor (40%); or

(b) Approximately eight regular 12 oz bottles of beer (5%); or

(c) One possible combination would also be six regular 12 oz bottles of beer (5%) and three - 1 oz shooters of hard liquor (40%).

[43] I have already observed that estimate (c) is consistent with the internal document referred to, if two free bottles of beer are taken into consideration or added to it. The total alcohol consumed then would be six bottles of beer and three shooters. On the other hand, if each man bought a round of three bottles of beer and three shooters, and each received three free bottles of beer, the total for each of them would have been six bottles of beer and three shooters. Finally, as I have pointed out, it would seem that it really does not matter whether the men were buying rounds, or only their own drinks. I believe it is reasonable to assume that if they were buying rounds, the others would have purchased approximately as many drinks as Holton did, with the result that they would have consumed approximately the same amount of drinks. However, and in any event, I am prepared to find that the three men probably bought rounds, at both establishments, as was their practice.

[44] It is to be noted also that it is Mr. Wong's opinion that a person having consumed and absorbed this amount of alcohol at the Crab Shack would have been in a state of moderate intoxication, which he defines, when he departed from the Crab Shack.

[45] Holton was asked whether he left the Crab Shack for any reason, for any brief period of time, while he was there. He said:

A. Not that I'm aware of, no. Or, actually, we might have gone - the Crab Shack parking has stairs that go right up to the Crab Shack entrance, and we would sometimes go up and down to check out - I'm sure people would have been going to look at Barry's new car. So, we're often sort of up and down those stairs but not actually leaving the premises. No.

Q. But you're leaving the lounge to go down to the parkade to show off the new car?

A. Yeah. Yes.

[46] He does not recall how much he had to drink at Garfinkel's, although he says that it was definitely more than two drinks. He does occasionally smoke marijuana, and it is possible that he smoked some on October 7 or 8, 2002. If he did smoke marijuana, then it would most likely have been at the end of the night.

[47] Holton agreed that his recollection as to what he was doing at his home immediately before getting into the vehicle to go to Pemberton was extremely vague. Specifically, he does not recall whether he provided MacKinnon or Martineau with any alcohol, or drank any himself, before they departed for Pemberton. He does not even recall leaving his home to go to Pemberton.

[48] He said again that they had a pretty large group of friends that they met regularly at the Crab Shack; that on the night in question "everybody that I would have considered my close group of friends would have been there, absolutely. It was a much anticipated event". At least fifteen to twenty close friends of his were at the Crab Shack on the night in question, including the witness, Chris Pope, as well as his roommate, Toby Matkowski.

[49] The evidence given by Holton on cross-examination by Mr. Stuart is as follows: He cannot recall how many beers MacKinnon had at his home before they went to the Crab Shack. He was told again that MacKinnon was going to give evidence, which he had given at discovery, that he had brought a six-pack of beer to the plaintiff's house, before they went to the Crab Shack, and that he, MacKinnon, had drank two bottles of beer. He was asked whether he would have any reason to doubt what MacKinnon had said and he replied: "I would believe that".

[50] With regard to the telephone call Holton said he received while he was in Garfinkel's, he said that it was either a pager voice mail, or a telephone call; that it was either from his roommate, Toby, who had gone to the Pemberton party, or from the girl whose house the party was at. When it was suggested that he had gone outside to respond to the message, he said that he either did so, or he received the message as they were leaving Garfinkel's. He does not remember the conversation he had on the telephone.

[51] He does not recall how much beer he consumed at the Crab Shack. He definitely did not recall "being falling-down drunk or anything like that". He agreed that in fact he ran a tab at Garfinkel's with his Visa card as well. He was not a regular at Garfinkel’s, but he “had certainly been there a few times”.

[52] At this point the following exchange took place:

Q. You recall using your credit card and talking to the bartender; is that correct?

A. Not that I recall speaking to the bartender, but I used my credit card.

[53] He then had his following discovery evidence put to him:

Q. You don't remember being cold sober; you don't remember being falling down drunk. You just don't have any recollection at all?

A. Oh, I know I was definitely not falling down or anything like that, because I know that I ran a tab at Garfinkel's with my Visa card.

Q. How does that assist you with the answer to my question?

A. Well, just that I was making ... like, using my credit card and talking to the bartender and ...

[54] In effect he was asked to explain his discovery evidence about talking to the bartender, and he said:

A. No, what I meant was that I'm sure I didn't – was that I was able to use my Visa card, and I'm sure I was speaking with the bartender to do so. I'm sure that I was, you know, talking to him.

Q. All right. You don't recall other people buying you drinks at the Crab Shack?

A. Not specifically.

Q. Okay. And if I suggest to you, sir, that you have absolutely no idea how much you consumed at Garfinkel's would you agree with me?

A. I would agree with you.

Q. You do, however, recall mingling and chatting with people at Garfinkel's; is that correct?

A. Yeah, yeah, I do.

Q. And you do recall standing at the bar at Garfinkel's with Chris Martineau and other people?

A. Yes.

Q. Okay. And I believe you said you don't recall what time you left Garfinkel's, is that right?

A. That's correct.

(My emphasis added).

[55] Holton does not recall making any decisions with regard to MacKinnon's state of sobriety at any time during the evening, nor does he recall whether Martineau was drunk or sober. He agrees that they probably left the Crab Shack between 12:00 and 12:15 a.m. because his tab was closed out at 12:02 a.m.

[56] He has no idea how much MacKinnon had to drink at the Crab Shack. He does not recall MacKinnon slurring his words or walking with an unsteady gait when they left the Crab Shack. He has no idea how much MacKinnon had to drink at Garfinkel's. He does not recall talking to any employees of Garfinkel's that night. He spent most of his time standing up at Garfinkel's because there was nowhere to sit, and he "circulated".

[57] At one point Holton said that he could not remember what time it was when they left Garfinkel's. Later he acknowledged his discovery evidence, that they were in Garfinkel's "somewhere between 12:30-ish and 1:15, 1:30-ish". I have concluded on the evidence, that the three men probably arrived at Garfinkel's no earlier than 12:25 a.m. and left Garfinkel’s around 1:00 a.m., or very shortly thereafter.

[58] Holton said that he could not recall drinking beer at his place when they returned from Garfinkel's. He then agreed with his discovery evidence on the subject matter as follows:

Q. So now, what happened when you got to your place? Do you have a recollection of drinking anything at your place at all?

A. I was thinking about that.

Q. Yes?

A. And we may have had a beer in my house after.

Q. Okay. By "we" meaning you and Barry and Chris?

A. Yes.

Q. Is it possible that you had more than one beer or Barry had more than one beer at your house?

A. Its possible. I don't recall. I don't think so, ....

Q. You just don't recall?

A. Yep.

(My emphasis added).

[59] On re-direct when questioned about his evidence that he had no idea how much he drank at Garfinkel's, he said:

Well, I don't know exactly how many drinks that I had, I know that I was there and mingling around, and I recall not specifics but talking ... I mean, absolutely everybody was there. It was busy as well, and I just ... I just know that I was definitely having more than two drinks.

(My emphasis added).

[60] I observe that while counsel said that MacKinnon would be testifying, and put his supposed evidence to witnesses, no one called him. MacKinnon’s supposed evidence, therefore, is not before me. The only evidence before me with regard to whether the three men were drinking at Holton's residence after they left Garfinkel's, is Holton's evidence just referred to, that is, "we may have had a beer in my house after”. Martineau gave similar evidence, that is, that he could not recall the beer drinking at Holton’s residence, but it was possible that it happened. I am not prepared to find on the acknowledged vague recollections of the two men alone that the three of them were drinking beer at Holton’s residence before they left for Pemberton.

[61] Further, on the whole of the evidence, in my view, it does not really matter whether they had a beer during their brief stay at Holton's residence. In this regard, assuming that the three men left Garfinkel's at, or shortly after, 1:00 a.m., and taking into consideration the time it would have taken them to walk back to MacKinnon's car which was parked in the lot underneath the Crab Shack, at least fifteen minutes, and to then drive to Holton's residence, another ten minutes, and later to drive to the accident scene, at least another ten minutes, it seems to me that they could not have been at Holton's residence for any more than about twenty minutes.

[62] It will also be seen that I have concluded that most of their drinking was done at the Crab Shack and that it is more likely than not that Holton and MacKinnon had at least two drinks at Garfinkel's during the shorter period they were there, which probably was about thirty to forty minutes. MacKinnon’s Visa account or tab in the amount of $20 and Holton’s similar account in the amount of $22 lend some support to this conclusion. It would be three drinks each if Martineau’s and Holton’s recollection of Martineau buying a round at Garfinkel’s on their arrival is accepted. In the circumstances I am prepared to accept this evidence on the basis of the scientific evidence and the fact that the three men were buying rounds that night; and find that in fact each of them had three drinks at Garfinkel’s.

THE ACCIDENT EVIDENCE

[63] It may be convenient to deal with the accident evidence before turning to the evidence of Mr. Martineau, whose evidence I will consider in more detail.

The Evidence of C. Pyne and L. Harris

[64] Mr. Pyne lived in Pemberton and worked in Whistler as the general manager of a restaurant at the time of the accident. Shortly before the accident, he was driving his vehicle in a northerly direction on Highway 99, in the vicinity of the Helipad, at a point approximately fifteen kilometres north of Whistler. It was about 2:00 a.m. and he was on his way home from work. He estimates the speed of his vehicle at that time to be about ninety kilometres per hour. The speed limit in the area was eighty kilometres per hour.

[65] He testified that at that point he saw some lights behind his vehicle and that suddenly a vehicle passed him, "rather quickly and I was taken aback by how fast they passed me". He estimates that the vehicle was travelling between 130 and 140 kilometres per hour. Approximately five minutes further along the road he came upon the MacKinnon vehicle upside down in a ditch on the east, or right hand, side of the Highway, and he identified it as the vehicle that had just passed him.

[66] He went to the vehicle and found the driver "kind of dazed", but who he reported, eventually climbed out through the driver's side window and then appeared to be more alert. He did not notice if the driver was bleeding anywhere. Holton was "sprawled out" in the back seat area. Martineau was outside the car talking to Holton, and apparently trying to assist him in some fashion.

[67] On cross-examination, the witness said that at the time of the passing there was a "corner coming up" and the road was downhill slightly; that he could clearly see that the MacKinnon vehicle was going fast, "and had a hard time making that corner". He was surprised at how fast the MacKinnon vehicle was travelling. The vehicle "made the corner" but was "not in his lane" when doing so.

[68] Ms. Harris, a passenger in the Pyne vehicle, gave similar evidence about the speed of the MacKinnon vehicle. She talked to MacKinnon at the scene of the accident. She said that he reeked of alcohol but did not say anything. She felt that he was in shock.

The Evidence Of Constable C.C. Palmquist

[69] Constable Palmquist had been with the R.C.M.P. approximately two weeks prior to October 8, 2002, when he attended the scene of the accident. At that time he spoke to MacKinnon who initially denied that he was even an occupant in the vehicle. When he spoke to MacKinnon, he observed that he had a small amount of blood on his forehead, he could smell alcohol coming from him, and his speech was slurred. He immediately drew the “impression” that he was impaired. The investigation was then taken over by Constable Bayda.

[70] Constable Palmquist also spoke to Martineau who denied being in the vehicle. His story was that he was in another passing vehicle and was dropped off at the scene by a friend.

[71] On cross-examination, Cst. Palmquist acknowledged that his training included the investigation of suspected drinking and driving offences, how to make observations of signs of alcohol impairment and the documenting of his observations. He said that he was quite close to MacKinnon when he was talking to him because he was “examining his injuries”, and the blood on his forehead.

[72] He did not make a note that MacKinnon’s eyes appeared glassy or bloodshot. At trial, he was not able to say whether or not such was the case. However, he said that MacKinnon was responsive to his questions, and that he was polite, but evasive.

[73] Cst. Palmquist also said that he was not aware that MacKinnon had been knocked out in the accident. He saw blood on his forehead, but did not know whose blood it was. It did not occur to him at the time that MacKinnon had a head injury. He did not see MacKinnon staggering. He understood what MacKinnon was saying to him. He asked MacKinnon whether he had been injured and MacKinnon told him that his back and neck were pretty sore.

The Evidence Of Constable C. Bayda

[74] Constable Bayda had been an RCMP officer for two years at the time of the accident. He was stationed at the Whistler detachment. When he arrived there were a number of people standing around, including the witnesses Pyne and MacKinnon.

[75] He immediately went to the rear of the vehicle to speak to the rear seat passenger, Holton. He asked him if he was okay and Holton told him that he could not feel his legs. Holton seemed distraught or unsure of what to do. He tried to calm Holton down, knowing that the ambulance and the fire department were right behind him.

[76] He then spoke to MacKinnon who told him that he had not been in the vehicle at the time of the accident. The witness Pyne told the officer that MacKinnon was in fact the driver of the vehicle.

[77] When he first spoke to MacKinnon, he “figured” that he was impaired. He could smell alcohol on him, he was dishevelled and staggering a little bit. He said that having worked in Whistler for a couple of years, during which time he dealt with a lot of people that had been drinking quite a bit, he knew that MacKinnon had been drinking and was possibly over the limit. He was in the ambulance when he heard MacKinnon say to the ambulance attendant that he had had about ten beers.

[78] The Constable was questioned further with regard to the state of MacKinnon’s sobriety, as to which he had no doubt. He said again that MacKinnon was unsteady on his feet, that his speech was slow and a little bit slurred. He described MacKinnon as keeping his words to a minimum. He charged MacKinnon with impaired driving causing bodily harm; and MacKinnon pleaded guilty.

[79] When cross-examined by Mr. Hilliker, Cst. Bayda acknowledged that there is nothing in his notes about the odour of alcohol or that MacKinnon’s speech was slurred. At trial, he could not remember whether MacKinnon’s eyes were glassy or bloodshot. He did remember that he could smell alcohol on him and that his speech was slurred.

[80] MacKinnon told him about his sore back and neck, and he understood that MacKinnon may have been injured in the accident. He had been told, as part of his training, that some people who are injured in motor vehicle accidents have symptoms such as loss of balance, loss of co-ordination and slurred speech. I observe at this point that there is no evidence before me that MacKinnon suffered an appreciable head injury, other than the suggestion by Martineau that he may have been unconscious for a brief period of time; also that he never complained of any head injury, his complaints being in relation to his neck and back. Finally, the ambulance attendant, Ms. Bracewell, examined MacKinnon at the accident scene for head injury, and her examination was negative.

[81] I pause to observe that I find the evidence of Mr. Pyne and Ms. Harris to be probable and credible. I would place the evidence of the ambulance attendant, Ms. Bracewell, and that of the two police officers, in the same category. To the eyes and ears of these trained observers, MacKinnon displayed some slurring of his speech and unsteadiness on his feet. These and other symptoms caused the officers to conclude that he was probably “over the limit”. He was, in fact, well over the limit at the time.

[82] I pause to observe at this point as well, that given the outward effects or symptoms of the alcohol displayed by MacKinnon at the scene of the accident, it is more likely than not that he would have been displaying similar symptoms to some degree, in addition to those observed by the lay witnesses, by the time he left the Crab Shack two hours earlier, and even more so, at the time he left Garfinkel’s one hour earlier. I am also of the opinion that it is more likely than not that Holton, who drank more than MacKinnon, was basically in the same state when he departed the two establishments. In this regard I note that the witness, Mr. Crowley, whose evidence is yet to be reviewed, said that at Garfinkel’s Holton was walking around looking intoxicated; that he was walking in a “comical” manner indicating a balance problem.

[83] It will be seen then that I have concluded that it is more likely than not that when the three men left the Crab Shack, particularly Holton and MacKinnon, they were displaying some signs that the alcohol they had consumed was affecting them. These signs should have been evident to the trained eyes and ears of the Crab Shack employees at the time. This is particularly so when the bartender gave Holton his Visa bill, and when Holton signed it. At this time Holton would have had some interaction with the bartender, Turner or McLean.

[84] I have come to the same conclusion with regard to Garfinkel’s and its employees when the men arrived, were served and, in particular, when they departed, and were even more intoxicated. Again, when Holton and MacKinnon left Garfinkel’s, they would have received and signed their Visa bills and they would have interacted with the bartender, surely displaying symptoms which the experienced bartender would recognize as the product of intoxication.

[85] These conclusions are supported by the scientific evidence, which is yet to be reviewed.

[86] I do not believe that the negligence on the part of MacKinnon which caused or contributed to the cause of the accident is disputed. In any event, I find that he was grossly negligent in the erratic driving of his vehicle, including its speed. I am also satisfied that at the time of the accident MacKinnon was intoxicated as a result of the alcoholic beverages he was served at the Crab Shack and the alcoholic beverages he was served at Garfinkel’s, and that his ability to operate his motor vehicle was impaired. Finally, I am satisfied that his intoxication played a substantial role in his negligence and in the cause of the accident. I am not persuaded to the contrary by the suggestion that MacKinnon was driving normally prior to the accident, such that the accident was caused by some water on the surface of the highway, a post-accident suggestion made by Martineau, or that MacKinnon did not know how to handle his new vehicle, again a suggestion by Martineau.

The Evidence Of C.B. Martineau

[87] Martineau, who is thirty years of age, was cross-examined by Mr. Ragona as an adverse witness. He met the plaintiff in late 1989. He came to live in Whistler in 1995. He, the plaintiff and MacKinnon became good friends.

[88] His first job at Whistler was at the Hard Rock Cafe working with the plaintiff in the merchandise department. After that, he worked in various restaurants in town as a server. At the time in question he was MacKinnon's roommate.

[89] Martineau agreed that they and their friends treated the Crab Shack as if it was a social clubhouse. He felt very much at home there. He got to know the manager of the Crab Shack, Mr. Kovacs, over the years.

[90] When it was suggested to Martineau that MacKinnon would testify that on the evening in question he purchased a six-pack of beer, picked him up and they then went to the plaintiff’s residence, he said that he vaguely remembered that, thus seemingly adopting MacKinnon's purported evidence. In similar fashion, he agreed with the evidence as to the disbursement of the six bottles of beer.

[91] He also agreed that they likely got to the Crab Shack close to 9:00 p.m., because they wanted to take advantage of the free food and beer between 9:00 p.m. and 10:00 p.m.; but he does not recall how he got to the Crab Shack, whether he went with MacKinnon, or with Toby. When they arrived at the Crab Shack there was a crowd there, although it was not as busy as they thought it would be. He agreed that Mr. Kovacs expressed disappointment with the number of patrons who attended the event.

[92] He does not believe that he had an invitation, however, he "partook" of the free beer between the hours of 9:00 p.m. and 10:00 p.m. He does not know how many free beers he had. He was feeling good when they left the Crab Shack.

[93] Martineau agreed that he does not have a distinct recollection of everything that occurred that evening, save and except the accident itself. Like the plaintiff, at times his evidence seemed somewhat vague, including his recollections after suggestions made to him by counsel. The evidence was:

Q. The rest of it is - you're trying to go back and figure out what happened, and could I suggest to you that much of that had to be with the amount of liquor you consumed?

A. Partially. It was more of a regular routine for us to do - well, not a regular routine, but we had been out drinking before, so I'm trying to remember - I'm trying to break down that day in my head, and I can't remember everything that happened.

(My emphasis added).

[94] He agreed with the suggestion, that it is likely that they left the Crab Shack shortly after 12:00 a.m. and arrived at Garfinkel's between 12:20 a.m. and 12:30 a.m. He does not recall MacKinnon parking the car in the underground parking area beneath the Crab Shack, although they normally park there. He vaguely remembers the walk from the Crab Shack to Garfinkel's, which he agreed was a leisurely walk and probably took about fifteen minutes.

[95] He does not know how much he drank from 9:00 p.m. to 12:00 a.m. He agreed that unlike the other two men, he did not have a tab going but paid cash. He is unable to say whether he received any free drinks in addition to those that he paid for between 10:00 p.m. and 12:00 a.m. on October 7.

[96] He acknowledged as true his discovery evidence, when examined by Mr. Ragona on April 19, 2004, that both he and Holton were drunk when they left the Crab Shack; that while he did not know how much MacKinnon had to drink, if he was drunk he was "the least drunk of the three". He seemed adamant that MacKinnon had not drank as much as he and Holton had. He repeated this when he was told that MacKinnon had pleaded guilty.

[97] Martineau does not recall whether there was any drinking at Holton’s place before they left for Pemberton. He does recall just hanging out and chatting; and that at that time a decision was made among the three of them to go to the party in Pemberton. He also recalled that all three of them were wearing their seatbelts as they departed for Pemberton; and I find on the evidence, including the expert evidence, that this is the case.

[98] He has a good recollection of the drive between the plaintiff's residence and the place where the accident occurred. When asked why this was so he said:

Why is that? From the time we were at Tom's house - and I'm not exactly sure of the time we were there, but it was roughly around a half-hour or so - I probably had a bit of time to sober up. I was - that point of the evening is more memorable. We were heading to this party, so its sticking out in my head more than just driving from the Village to Tom's house, which is something I've done many times.

(My emphasis added).

[99] He went on to recall expressing some concern to MacKinnon about the speed of the vehicle when it was going into "a slight curve". It was at this point that MacKinnon lost control of the vehicle. This was his only complaint about the manner in which MacKinnon was driving.

[100] The witness then agreed with counsel’s “understanding” that at the Crab Shack the three of them took turns buying a round of drinks. The reason he surmises that MacKinnon was drinking less than himself or Holton was because on more than one occasion when he or Holton went to buy their round MacKinnon declined to participate; while neither he nor Holton ever declined when a round was bought. He said that another factor was that MacKinnon did not want to go out that evening to begin with. He just was not drinking as much as they were. He and the plaintiff were more “buddied up” that evening.

[101] When cross-examined by Mr. Hayden, Martineau gave the following evidence: He agreed that essentially he and Holton were "drinking drink for drink during the evening"; also that the three of them "would go out every other night, maybe for dinner or drinks". They "drank" two or three times a week. They were not alcoholics or problem drinkers. When it was suggested that they were "at least regular and experienced consumers of alcohol", he said: "a mild amount of alcohol", meaning that they were not “heavy drinkers”. They also smoked marijuana on occasion.

[102] He is familiar with the expression "a man who could hold his liquor" which he said referred to a man who did not show signs of intoxication “on moderate consumption of alcohol". He agreed that that was a fair description of himself. He was not sure about Holton or MacKinnon. On October 7, 2002, he was fully aware of the dangers of a person drinking to excess and driving, and that the legal limit was .08. At the time of the incident, he was familiar with the "Serving It Right" training program as contained in the Government's Server Program Manual which deals with the responsible service of alcohol. He had been "trained by the brochure" and by experience, to know the indicators of a person who is visibly intoxicated. He agreed that in many cases it is very easy to determine if a person is visibly intoxicated.

[103] At this point I will observe that I have concluded that at the material time the three men were frequent drinkers or consumers of alcohol such that they had developed a higher tolerance to it than the normal or average drinker, with the result that they did not show the more classic signs of their intoxication to the extent that one might expect them to. It is seen that I have also concluded that it is more likely than not that all three men were intoxicated when they left the Crab Shack and even more so when they left Garfinkel’s and that on those occasions they were displaying sufficient signs of intoxication to be noticed by the respective employees. They probably were not showing, however, what I would call the more extreme signs of intoxication, such as falling down and incoherent speech.

[104] It was then suggested to the witness that counsel might be calling a number of the staff of the Crab Shack to give evidence, including Mr. Kovacs. Martineau acknowledged that he had known Mr. Kovacs for years and considered him to be a friend. He was also told that the bar manager, Mike Turner, would be testifying that he had spoken to the three men that evening. The gist of his evidence was that he did not recall seeing Mr. Turner and that he was not even sure that he knew Mr. Turner at the time. He acknowledged that the bartender that night was Ms. MacLean, that she was a "close acquaintance" of his, and that she spoke with him that night.

[105] Martineau also acknowledged spending some time with Mr. Kovacs and chatting with him that evening. Mr. Kovacs was greeting guests as they arrived. He was told that Mr. Kovacs would testify that he recalled giving each of them two free drink tickets. Martineau did not recall this, but would not deny that it happened. He was told that Mr. Kovacs would also say that he recalled spending some time with him in the area of the couch, and he said that this was correct; that he recalled that. The couch was situated at one end of the bar.

[106] He was told that Mr. Kovacs would say that he said goodbye to the three of them as they left the Crab Shack. He does not recall this, but he has no reason to disagree with it. It was suggested to him that he told the bartender, Ms. MacLean, that he might walk to Buffalo Bills, the bar next door. He said that he did not recall this, but it may have happened.

[107] He was asked to agree with counsel that when he left the Crab Shack he was not drunk. He said that he could not recall any of them being visibly intoxicated. He does not recall stumbling or slurring his words when he was at the Crab Shack. He agreed that he could drink a good number of drinks before he would be visibly intoxicated.

[108] After acknowledging that he did not know how much MacKinnon or Holton had to drink, Martineau was asked how he was feeling by the time he left the Crab Shack. His evidence was:

A. Well, probably pretty happy. I doubt we were - well, I'm not sure. Good. I'm - I don't know the state we were in, to be honest with you. I wouldn't say - we weren't drunk, if that's what you're trying to get at.

(My emphasis added).

This evidence, if he is in fact saying that they were not drunk, rather than that he would not say that they were not drunk, (I believe he was saying that they were drunk) should be contrasted with his earlier evidence. At discovery Martineau stated that he could not honestly say that he was not drunk or whether he, Holton or MacKinnon were visibly intoxicated. He also said that he did not recall. His earlier trial evidence was that he agreed with his discovery evidence, given on April 19, 2004, that both he and Holton were drunk when they left the Crab Shack. I am satisfied that this was the case.

[109] I pause at this point to observe that I have carefully considered Martineau’s evidence, in light of all the evidence, with particular regard to the amount of alcohol consumed by the three men on the night in question and its effect on each of them, and including the scientific evidence. Indeed, I have gone through this same process with Holton’s evidence. The recollections of both men require careful scrutiny because in my view they were both intoxicated at the material times, and the need should be self-evident. I accept Martineau’s evidence that he and Holton were drunk when they left the Crab Shack, because this evidence is consistent with the preponderance of the probabilities that emerge out of all the evidence. See the classic decisions of O’Halloran, J.A. in the Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 356 & 7; and in Rex v.Pressley (1948), 94 C.C.C. 29, particularly at p.34.

[110] The witness went on to say that on October 7 he must have had dinner; and therefore probably would have had to have drank quite a few beers for him to stumble, "I'd have to go with at least a dozen". Without dinner he would cut the number in half. Martineau agreed that he had consumed a few drinks at Garfinkel's, by which he meant more than one. He recalled having a beer and a shooter when they first arrived. After that he has no recollection.

[111] He remembered being at Holton's home, after they left Garfinkel's. He remembered Holton receiving a telephone call while they were at Garfinkel's, or while they were leaving. He does not recall the conversation. It was after they were at Holton's home that they decided to go to the party. He put it this way:

Well, we weren’t 100% sure we were going to the party. I guess from – we weren’t – sorry, when we got to Tom’s house, that’s when we decided on going to the party. We did receive phone calls about the party when we were in town. We weren’t sure if we were going to go. We went back to Tom’s house, and then it was decided there that we were going to go. Tom’s house wasn’t a stop-off on the way to; it’s where we stopped and then we decided from there to go on.

(My emphasis added).

[112] He was told that MacKinnon would testify that he had a couple of beers at Holton's house before they left to go to the party. He said that he could not recall the beer. When he was asked whether he denied that it happened, he said that he did not recall it. When it was suggested that he, the witness, may have consumed some beer at Holton's home, he agreed that it might have happened. He had suggested earlier that he was probably a bit more sober at Holton’s residence and that he had a good recollection of the drive from the residence to the accident site.

[113] When cross-examined by Mr. Stuart, Martineau said that he does not recall much of what went on when they were in Garfinkel's that evening, other than being there. Yet he agreed that if at the time they decided to go to the party he had felt that MacKinnon was not sober enough to drive, he either would have made the decision to take a cab to Pemberton or not gone at all. This answer, like a number of his other answers, must be considered in light of the state of his sobriety at the time.

[114] Martineau said again that he thought that they were at Garfinkel's for approximately one hour. He then recalled buying a beer and a shooter for himself and the same for Holton, on their arrival. At discovery, he had said that it was a single drink, although he could not recall whether it was a beer or a shooter. He volunteered that when he says “drinks” he is “not including shooters into that”. He said that personally he would not call a shooter a drink. When asked why, he said “Because I don’t drink it; I shoot it”.

[115] He was then referred to his discovery evidence where he had acknowledged that the three of them went out drinking regularly and the following exchange occurred:

Q. And there were times when one of you might have had more to drink than the other –

A. Yeah.

Q. - during the course of going out? And I take it there were times that you saw Barry MacKinnon have a lot more to drink than he had that evening?

A. Sure.

Q. And there were times when you saw Mr. MacKinnon drunk to the extent - to the extent that you could tell that he may have been slurring his words or stumbling a bit? I'm not talking this night; just generally speaking.

A. Yeah.

Q. There were times?

A. Yeah.

Q. And I take it your recollection of this evening was that this wasn't one of those times?

A. That's right.

(My emphasis added).

[116] He went on to agree that because of his experience as a server, and the Serving It Right program, he could recognize some of the conditions of a person who has had too much to drink, such as slurring words, stumbling or being glassy eyed and so on. He agreed that when he walked to Garfinkel's he certainly did not recall either Holton or MacKinnon stumbling or slurring their words. On one occasion at least, he said that he did not recall the walk to Garfinkel’s at all.

[117] He had no concerns about MacKinnon's driving. He was only concerned about the speed of the vehicle shortly before the accident occurred, and he told MacKinnon so. However, apart from the speed, there was nothing else erratic about his driving as far as he was aware. For example, he does not recall him "weaving all over the road". He vaguely recalls passing a vehicle without any problem. His evidence in this regard may be contrasted with that of Mr. Pyne, the driver of the vehicle that was passed, and who, of course, was sober at the time.

[118] On re-direct Martineau confirmed that he does not recall leaving Garfinkel's,

Citation:	*Holton v. MacKinnon et al,*
	2005 BCSC 41