IN THE SUPREME COURT OF BRITISH COLUMBIA
Bassi v. Bassi,
2010 BCSC 1896
Ravideep Singh Bassi, Jasmine Kaur Bassi and,
Jaskanwarpal Singh Bassi, by their Litigation Guardian,
Baljit Kaur Bassi, and the said Baljit Kaur Bassi
Talwinder Singh Bassi
Before: The Honourable Mr. Justice Cullen
Oral Reasons for Judgment
December 3, 2010
Counsel for the Plaintiffs
Counsel for the Defendant
Date and Place of Hearing:
November 25, 2010
Date and Place of Judgment:
 THE COURT: On July 17, 2005, at approximately 5:00 to 5:30 a.m., the defendant, Talwinder Bassi, while driving eastbound on Highway 3A between the villages of Keremeos and Olalla, swerved off the travelled portion of the roadway across the paved shoulder and onto the gravel shoulder to his right. He then swerved sharply to his left, crossed the eastbound and westbound lanes of the highway crossing the paved shoulder and ending up on the gravel shoulder of the westbound lane. As he sought to correct his vehicle's momentum, it rolled over one complete revolution ending up with its rear wheels in the westbound lane's ditch and his front wheels on the westbound lane's shoulder.
 At the time of the accident, the defendant had been up and not slept for nearly 24 hours. Earlier during the evening of July 16, he and his wife, Baljit, and their three children, Ravideep, Jasmine, and Jaskanwarpal, had attended a wedding in the Lower Mainland of British Columbia. At the end of the evening at about 1:00 a.m. on July 17, the defendant and his wife and children left for their home in Oliver, which in total is about a five-hour drive in their family vehicle, a Honda van. It was during that trip home, nearly five hours into the drive, that the accident occurred causing some degree of injury to each of the three children and to Ms. Bassi, all of whom are plaintiffs in this action. This is an application brought by the defendant, Mr. Bassi, to have the plaintiffs' action against him dismissed on the basis that the evidence falls short of proving that he was negligent in the manner in which he drove leading up to the accident.
 The evidence is that it was light at the time of the accident, although the sun was not up. The highway was dry and there was no other traffic on the road at the material time. The accident occurred just east of a slight curve in the highway as it skirts around a bluff or embankment on the left-hand side to eastbound traffic. The defendant provided an explanation for the accident in his examination for discovery conducted on August 5, 2008, and subsequently in an affidavit sworn July 20, 2009. In his examination for discovery, the defendant testified he was travelling at around 80 kilometres per hour, either a little under or a little over that speed, which he believed to be the speed limit. The curve in the road is not that sharp, but, "You can't see around it" because of the bluff or embankment to the left of the eastbound traffic. He was asked if he slowed his vehicle down when he was making his turn and he responded, "It's not that sharp a turn, but I have to -- there's no like -- no yellow signs to slow down or something. It's not that sharp." He was asked to describe what happened and he responded as follows:
120 Q Yes?
A And it was kind of little bit of blind spot, so you cannot see the whole highway on the other side.
121 Q Right.
A And when I start turning there, then I saw a deer jumping into the highway.
122 Q All right.
A And then I got a little nervous, so I tried to steer away from the deer.
123 Q Right.
A And as soon as I steer away from the deer, my vehicle was on the shoulder, which is very tight over there, like only three, four feet. And the vehicle, I start losing control, so I try to bring the vehicle back to the pavement, which I did, but the turn was so sharp it started going to the other way right away, on the other side of the highway. And then I went on the other shoulder within -- you know, without even noticing, you know, right on the left shoulder. And then I tried to steer back onto the highway again, to the main like pavement. And then there I start rolling around, 360, and went back onto the wheels of the vehicle. I was trying to avoid those ditches, but that's the best I could avoid.
 He testified he knew the area had wildlife including deer. He was in the middle of the curve when he saw the deer. He steered to the right "to avoid the deer." When his right wheels hit the gravel shoulder, he turned to the left to avoid the ditch. He agreed he veered across the highway going very sharply to the other shoulder and then corrected again to bring the vehicle back on the highway, at which point, the vehicle rolled over. Earlier in the trip, he saw some wildlife standing right beside the road and "slowed down and went by them."
 In his affidavit, he deposed that during the trip, he stopped briefly two times to refresh himself. At Princeton, his wife offered to drive, but he told her he was okay and kept driving. In his affidavit, he described the events leading to the accident as follows, and here I am quoting from paragraphs 20 to 26:
20. I started to drive around the curve in the highway, when all of a sudden I saw a deer jumping onto the highway. The deer was going from my left to my right side. I got a little nervous so I tried to steer away from the deer.
21. As I steered to the right and my vehicle went onto the right shoulder, which was very tight. There was only about 3 or 4 feet of space on the right shoulder, There are ditches on either side of that portion of the highway.
22. I started to lose control on the right gravel shoulder, so I tried to bring the vehicle back to the pavement, which I did, but the turn in the highway was so sharp, the van started to go right across the highway and onto the left shoulder.
23. I tried to steer the van back onto the highway again, to the main pavement. I was trying to avoid the ditches. At this point, the van started to roll over onto its roof.
24. The van rolled, just once as I recall. The van came to rest on the left side of the highway with the front wheels on the shoulder and the back wheels hanging into the ditch.
25. My van never did make contact with the deer.
26. The whole thing, from the time I saw the deer to the time the van stopped, took only a few seconds.
 None of the passengers in the vehicle saw the deer as they were asleep or close to asleep at the time the accident occurred. Ms. Bassi deposed in an affidavit sworn August 6, 2009, that she thought her husband told her that he braked as he swerved, but the defendant does not adopt that in his evidence asserting only that he swerved and made no mention of braking or attempting to brake. Ms. Bassi also deposed that she thought the defendant told her he was going about 90 kilometres per hour which she believed was the speed limit. His evidence was that he was going about 80 kilometres which he believed was the speed limit.
 There are some photographs depicting the area where the accident took place attached to Ms. Bassi's third affidavit dated September 30, 2009. The photographs show the curve in the road as appearing very gradual. The view of the road ahead is partly impeded by the bluff on the left side to eastbound traffic which the road curves around. The road straightens out after the curve for a significant distance. According to the photos in Ms. Bassi's September 30th affidavit, the point at which the vehicle went onto the gravel shoulder on the right-hand side is some distance beyond the end of the curve in a straight section of the road. The area where it rolled over is similarly some distance beyond the point where it went onto the right shoulder and, again, on the straight portion of the road.
 The applicant's position on the evidence is set out in his outline of argument in paragraphs 15 to 22 which read as follows:
15. The Defendant believes that the speed limit at that portion of Highway 3A was 80 k/ph, and he believes that he was either driving a little over or a little under the speed limit.
16. As the Defendant started to drive around the left curve, he suddenly saw a deer jump onto the left side of the highway. He became nervous and tried to steer away from the deer.
17. The Defendant steered to the right and his Van went onto the right shoulder. The Defendant says the shoulders are only 3 or 4 feet wide.
18. The Defendant started to lose control in the gravel on the right side shoulder, so he tried to bring the Van back onto the pavement. The Defendant says that the curve in the highway was so sharp that his Van went across the highway and onto the shoulder on the left side of the road.
19. The Defendant tried to steer the Van to the right and back onto the highway to avoid going into the ditch on the side. At this point, the Van started to roll over onto its roof.
20. The Van rolled over once and came to rest on the left side of the highway with its wheels on the ground. The front wheels on the shoulder and the back wheels were hanging into the ditch.
21. The Defendant's Van did not make contact with the deer.
22. The Defendant says that the time from when he first saw the deer to his Van coming to a stop after rolling took only a few seconds.
 The applicant submits and the respondents concede that this is an appropriate case in which to sever off the issues of liability and quantum of damages as the evidence relative to liability is unrelated to the evidence required to determine the nature and extent of the plaintiff's injuries. The applicant also submits and the respondents concede that the issue of liability is amenable to resolution by way of what was Rule 18A and is now Rule 9-7. The respondent/applicant submits that although the evidence is to some extent scant, it does not involve any issues of credibility as only the defendant can describe what happened and there is no other cogent evidence to consider.
 I have considered the matter and conclude that this is an appropriate case to consider the issue of liability separately from that of damages and that it is appropriate for resolution by way of Rule 9-7 as I am satisfied that despite the relatively scant evidence to be considered on the issue of liability, I am able to find the facts necessary to determine the issue and it would not be unjust to do so on this application. I consider that, as well, a determination under Rule 9-7 will assist in the efficient resolution of this matter.
 On the issue of liability, the applicant contends that in the circumstances the plaintiffs have not met the evidentiary burden of proving his negligence on a balance of probabilities. The defendant says this is a case in which the evidence is equally consistent with an explanation of no negligence as it is with negligence and given that the burden of proof lies on the plaintiffs, their action stands to be dismissed.
 The defendant/applicant submits this is not one of those cases where the defendant is relying on the defence of inevitable accident arising from some factor under his exclusive control or wholly within himself as in the case of Perry v. Banno,  B.C.J. No. 59, where the defendant claimed a sudden unanticipated loss of consciousness in which case the burden shifts to the defendant. The defendant contends this is a case where there is an external cause of the accident - the deer running into the road - and in light of that explanation which renders the accident as consistent with no-negligence as negligence, the plaintiffs have failed to prove their case.
 The defendant/applicant relies on a number of decisions notably Pitts Enterprises Ltd. v. Farkes et al, 2004 BCSC 1493, where the defendant was confronted by a moose which suddenly appeared in the road in front of him in circumstances where he had no opportunity to take any evasive action. He struck the moose and went into oncoming traffic. In that case, Mr. Justice Powers analysed the issue raised by the evidence before him in paragraphs 12 to 16 of his judgment as follows:
 In circumstances where a vehicle leaves a travelled portion of the road, or moves into an oncoming lane of traffic, the presumption of negligence on the driver’s part arises, which the driver must rebut by explaining how the accident occurred without negligence on his part. The explanation must be based on evidence not speculation (Lee v. Chan 1997 CanLII 4201 (BC S.C.), (1997), 29 B.C.L.R. (3d) 27 (B.C.S.C.)).
 If the driver can show how the accident occurred without negligence, and such explanation is a reasonable one, then the burden is again on the plaintiff to prove negligence. If the explanation is equally consistent with negligence and with no negligence, then the burden to establish negligence still remains upon the plaintiff. (Ballard v. North BB.R.Co. (1923), 60 Sc.L.R. 441 at p.5).
 In the present case, the defendant must provide an explanation for how he came to be on the wrong side of the road. The explanation must be reasonable and equally consistent with negligence and with no negligence before the burden of proof shifts back to the plaintiff.
 The defendant has provided an explanation for how he came to be on the wrong side of the road. He lost control of his vehicle because the steering was damaged when he struck the moose standing in his lane. This explanation is equally consistent with negligence and with no negligence and therefore, the burden to establish negligence remains upon the plaintiff.
 The issue then is whether the plaintiff has proven on the balance of probabilities that the defendant was negligent in operating his vehicle when it struck the moose.
In the result, Justice Powers found that the defendant in that case "was not negligent in failing to see the moose earlier than he did," and that he:
… was not driving at an excess rate of speed given the road, lighting conditions, and condition of the vehicle for that amount of wildlife where the accident happened.
 In that case, of course, the defendant actually struck the wildlife on the road and what happened thereafter could not be attributed to the fault of the defendant as he had lost control over the steering of his vehicle and hence the vehicle itself. In the present case, the defendant did not strike the deer he described seeing and the issue remains whether the driving that ensued from his reaction to seeing the deer was as consistent with non-negligence and with negligence.
 In pursuing that analysis, counsel for the defendant submits that the seminal case of Fontaine v. British Columbia (Official Administrator),  S.C.J. No. 100, which attenuates the value of those cases referring to a "presumption of negligence" arising from the incontestable fact of a vehicle leaving its lane of travel or the roadway altogether, is an important consideration. In Fontaine, two hunters, Leowen and Fontaine, went on a hunting trip on November 9, 1990. They were expected to return on November 12, 1990, but never returned. They were found in their vehicle apparently driven by Leowen several months later in a creek off the highway. There were no witnesses to the accident and no one knew precisely when, how, or why the accident occurred. There was evidence of heavy rains and washouts in the area around the time the two went missing.
 In the course of giving judgment for the court, Mr. Justice Major reviewed the development of the "so-called maxim of res ipsa loquitur" which "has been referred to in negligence cases for more than a century." He concluded at paragraphs 26 and 27 as follows:
26 Whatever value res ipsa loquitur may have once provided is gone. Various attempts to apply the so-called doctrine have been more confusing than helpful. Its use has been restricted to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident. Given its limited use it is somewhat meaningless to refer to that use as a doctrine of law.
27 It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.
In relation to the circumstantial case before the court, he concluded that the allegation of negligence was not made out noting as follows as paragraph 31:
There are a number of reasons why the circumstantial evidence in this case does not discharge the plaintiff’s onus. Many of the circumstances of the accident, including the date, time and precise location, are not known. Although this case has proceeded on the basis that the accident likely occurred during the weekend of November 9, 1990, that is only an assumption. There are minimal if any evidentiary foundations from which any inference of negligence could be drawn.
In a passage the applicant in the present case relies on, Justice Major noted as follows:
The appellant submitted that an inference of negligence should be drawn whenever a vehicle leaves the roadway in a single-vehicle accident. This bald proposition ignores the fact that whether an inference of negligence can be drawn is highly dependent upon the circumstances of each case …
 The applicant in the present case also relied on the recent case of Singleton v. Morris,  B.C.J. No. 185. In that case, the defendant drove her vehicle into the rear of the plaintiff's vehicle while it was stopped at a stop sign at an intersection. The defendant provided an explanation corroborated by others that there was an oily substance on the road surface that prevented her from stopping in time. The trial judge in that case found there was a prima facie case of negligence, but found that the defendant provided an explanation of how the accident could have happened without negligence on her part, that the onus remained on the plaintiff, and that she failed to discharge that onus.
 The Court of Appeal agreed with the trial judge's analysis dismissing the appeal. In its reasons, the court relied on the judgment of Justice Major in Fontaine explaining its effect as follows in paragraphs 33 and 34:
 Mr. Justice Major’s statement sets out the general approach in negligence cases. That is, the trier of fact should weigh both the circumstantial evidence and the direct evidence, where available, in determining whether the plaintiff has established a prima facie case of negligence. In cases involving both direct and circumstantial evidence, the circumstantial evidence, and any inferences that may be drawn from it, is but one component of the case. Where, however, there is no direct evidence, circumstantial evidence and the inferences that may arise from it may form the entire basis of the plaintiff’s case.
 Importantly, as stated by this court in Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318 at para. 10:
10 ... The legal burden of proof, of course, remains on the plaintiff throughout.
 The court noted, however, that whether an explanation will neutralize an inference of negligence is highly dependent on the facts, citing Nason v. Nunes, 2008 BCCA 2003, and that the issue is whether the explanation is "adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn,' relying on Fontaine at paragraph 33 where Major J. described the inference of negligence in the particular circumstances of that case as "modest."
 As I see it, the issue in the present case is whether the defendant's explanation of the accident, involving as it does the mechanism of a deer running onto the highway from his left, neutralizes the inference that by leaving his lane of travel onto the right gravel shoulder, then crossing both lanes of the highway to the opposite gravel shoulder, and ultimately losing control of his vehicle and causing it to roll over involved negligent driving on his part. In my view, it does not. Although the deer running onto the highway presents a basis for an explanation that the accident could have happened without negligence, the explanation actually advanced by the defendant is inadequate to offset the inference that his negligence had a significant role in the accident.
 In the first place, there is no clear evidence where the deer was in relation to the defendant's vehicle when he saw it or whether the action he took was the only or most effective way to evade the deer. The defendant said he swerved because he "got a little nervous." It is unclear whether he was simply startled and overreacted or whether he took the only evasive manoeuvre open to him in the circumstances. There is simply no evidence of what actual crisis the defendant was confronted with or how imminent it was.
 Secondly, although the defendant asserts the deer came from his left from behind the bluff and he noticed it partway through the curve, it appears from the plaintiff Ms. Bassi's uncontradicted pictures - and explanation that the defendant's vehicle did not swerve off the road to the right until some distance past the corner down the straightaway which cast some doubt in the absence of the clearer evidence as to the nature and duration of the defendant's reaction to seeing the deer or where he was when he reacted or where the deer was when he first saw it.
 Third, the defendant asserts, at least in his affidavit, that the reason he went across the highway to the left gravel shoulder was because "the turn in the highway was so sharp." It is evident, however, from the defendant's evidence on discovery and the photographs that the curve in the highway is not sharp, but is, in fact, quite gradual. Moreover, based on the uncontradicted photographs and affidavit of the defendant, Ms. Bassi, at the point where the van turned back onto the highway from the right gravel shoulder, it was well out of the curve and on the straightaway. There was no turn in the highway at all to cause the defendant to go "right across the highway and onto the left shoulder."
 In his discovery, the defendant testified that when he tried to bring the van back onto the highway, "The turn was so sharp, it started going the other way right away on the other side of the highway." It is not clear in that passage whether he was referencing the turn in the road or his own turn of the van in trying to bring the vehicle back onto the highway. Although he clarified that in his affidavit, his explanation appears quite at odds with the nature of the highway where he is said to have lost control and that significantly attenuates the value of his explanation because it fails to answer why he veered back across the highway to the opposite side.
 The defendant's explanation also lacks any indication that he considered or attempted any other means of avoiding the accident such as by braking either when he first saw the deer or as he veered off the road to the right. There is no evidence of any skid marks, brake marks, distances, or reaction times that would aid in understanding how the accident took place or whether the defendant's explanation could adequately account for what occurred.
 In my view, this is a case in which the plaintiffs have established a prima facie case of negligence and, while the defendant has offered an explanation of what occurred, it lacks cogent detail and is not sufficiently full, complete, or consistent with the existing conditions to neutralize the inference of negligence arising from the circumstances of the accident. In short, the defendant's explanation does not adequately ground a non-negligence version of how and why he came to lose control of his vehicle.
 I conclude that all the circumstances, including the evidence that the defendant had not slept for nearly 24 hours and had driven for about four-and-a-half hours through the night before the accident occurred, establishes on a balance of balance of probabilities that the accident was a product of his negligence notwithstanding the explanation he advanced involving his reaction to seeing a deer coming onto the highway from his left. I, therefore, find liability in favour of the plaintiffs.
 Are there any other orders that you are seeking at this point, Mr. Welsh, or is this matter simply to be adjourned so that the issue of damages can be addressed?
[SUBMISSIONS RE COSTS]
 THE COURT: I am satisfied that this should be costs in any event of the cause.
 MS. GARTNER: And that is on this application?
 THE COURT: On this application, yes, not of the action as a whole.
 MR. WELSH: Of this application and preparation for it?
 THE COURT: Yes.
 MR. WELSH: Yes, and that is on Scale?
 THE COURT: Scale B.