IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Miles v. Kumar,

 

2013 BCSC 1688

Date: 20130912

Docket: M093900

Registry: Vancouver

Between:

Sky Miles

Plaintiff

And

Sapna Seema Kumar and

Phelps Leasing Ltd.

Defendants

 

Before: The Honourable Mr. Justice Bernard

 

Reasons for Judgment

Counsel for the Plaintiff:

V.J. LeBlanc, J.M. Naylor

Counsel for the Defendants:

S.J. Kovacs

Place and Date of Trial:

Vancouver, B.C.

March 4-8 and 11-15, 2013

Place and Date of Judgment:

Vancouver, B.C.

September 12, 2013


 

A. Overview

[1]             On the morning of October 20, 2007, Sapna Seema Kumar was the driver and lone occupant of a car travelling eastbound along Grandview Highway in Vancouver. As Ms Kumar neared Slocan Street she struck Sky Miles. Mr. Miles was riding a bicycle at the time, and just prior to the collision he had moved into Ms Kumar’s lane of travel in preparation for a left turn onto Slocan Street.

[2]             The collision knocked Mr. Miles off his bike. The damage to Ms Kumar’s car indicated that upon being struck, Mr. Miles bounced off the hood and windshield of Ms Kumar’s car before coming to rest on the roadway some distance ahead.

[3]             Not surprisingly, Mr. Miles sustained physical injuries in the collision, all of which have been categorized as “soft tissue”. Mr. Miles says that he continues to have pain from some of these injuries; principal among them is an alleged injury to his lower back for which he says he suffers chronic pain that has had a significantly negative impact upon his life, his work, and his psychological well-being.

[4]             Mr. Miles seeks damages from Ms Kumar to compensate him for pain, suffering, loss of enjoyment of life, and for various past and future pecuniary losses, all of which he says are attributable to Ms Kumar’s negligence.

[5]             Both Ms Kumar’s liability for the collision and the quantification of damages were matters very much in issue at the trial.

B. Background

[6]             Mr. Miles is a 42-year-old single man with no dependants. He was schooled in England, where he completed “fifth form” (the equivalent of grade 10 in Canada). In his early twenties, he obtained a welding ticket. Until his mid-thirties, he maintained steady employment in a wide variety of jobs, including that of bike courier, roofer, landscaper, truck driver, movie extra, and restaurant manager.

[7]             Mr. Miles presently lives alone in Vancouver, and is in the fourth year of a romantic relationship with a woman named Pauline Moshier. He is a public transit bus driver by occupation and has been so employed, on a full-time basis with Coast Mountain Bus Company, since early 2006. He describes this job as secure, with good pay and benefits; it is employment he hoped to maintain until his retirement from the workforce.

[8]             Mr. Miles does not own a car; bicycling has been his sole mode of personal transport for many years. At the time of the collision he was on his way to work a regular bus-driving shift.

[9]             Prior to the collision, Mr. Miles was very active and physically fit. He worked out with weights, and was a runner, swimmer and cyclist. His only physical complaint shortly before the accident was a pain in his right shoulder for which he had received some physiotherapy.

C. Evidentiary Synopsis

(i) The Collision

[10]         At the time of the collision, Mr. Miles was wearing a bike helmet and a bright yellow rain jacket, and he had a rear flashing red light in operation under his bicycle seat. It was approximately 10:30 a.m. and the road surface was wet from a recent rainfall. There were no adverse weather, visibility or traffic conditions.

[11]         Shortly before Mr. Miles was hit, he was riding his bicycle eastbound along Grandview Highway and nearing Slocan Street with the intention to turn north onto Slocan. For traffic turning left at Slocan, there is a dedicated lane at the intersection, and a concrete median which separates eastbound traffic from westbound traffic.

[12]         At this stretch of Grandview Highway, the road is relatively flat, the speed limit is 50 km/h, and there are two lanes for eastbound traffic, divided by a broken line. Adjacent to the outside (“right”) lane is a space for parked cars. As there were some parked cars, Mr. Miles was riding his bike in the space between the parked cars and the eastbound right lane.

[13]         Mr. Miles testified that he was travelling at an estimated speed of 20-25 km/h at the point when he decided to move over to the inside (“left”) lane in preparation for a left turn at Slocan. He said he did a “shoulder check” for eastbound traffic behind him and saw headlights “off in the distance” in the right eastbound lane. He said this vehicle (not further described) was “far enough back that it didn’t pose a threat”. He said he then immediately did a second shoulder check and saw the same vehicle lights in the distance, signalled (using his left arm) his intention to move leftward into traffic, and proceeded to move across the right lane and into the left lane, at approximately a 45 degree angle. He did not perform another shoulder check before entering the left eastbound lane.

[14]         Mr. Miles has no memory of what transpired in the period between his move towards the left lane and the collision. He also cannot recall the moment of impact, or landing on the roadway; however, he said he remembers spinning through the air. Mr. Miles said he believes that he was hit from behind.

[15]         In cross-examination, Mr. Miles agreed to the following: that the vehicle he noted in his shoulder check was likely travelling faster than was he; that he could have let this vehicle pass before crossing into traffic; that at the point when he entered the left lane, Ms Kumar’s car must have been there to be seen; and, that he was hit shortly after his shoulder check but could not say whether he was struck immediately upon entry into the left lane, or at some time thereafter.

[16]         As part of his case, the plaintiff “read in” selected excerpts of Ms Kumar’s testimony from her examination for discovery, which may be summarized as follows:

-        On October 20, 2007 Sapna Seema Kumar was 20 years of age and had a class N (“novice”) driver’s licence.

-        At approximately 10:30am she was driving eastbound on Grandview Highway, and approaching Slocan Street. She had turned east onto Grandview at Nanaimo Street.

-        She was familiar with this section of Grandview because it was a route she had been taking to work for the past four-to-five months. She believed that there were two lanes for eastbound traffic and that she was in the left lane as she approached the point where the collision occurred. As she drove along Grandview, she said she moved from the right lane to the left lane to pass a vehicle in front of her and because she planned to make a left turn a few blocks ahead, at Renfrew Street. She recalled that the car she passed had been travelling behind a very large white “semi” truck, with a long rectangular box.

-        Ms Kumar recalled driving in the left lane, beside the truck to her right. Ms Kumar agreed that, at this point in time, the truck would have obscured her vision of “things” such as a bicycle if such were immediately ahead-and-to-the-right of her. She agreed it was possible that she had not passed the truck when the cyclist “appeared”. She said she was not aware of the cyclist until he entered her lane of travel.

-        Ms Kumar said she did not “swerve or manoeuvre or change her direction of travel” between the time she first saw the cyclist and the collision. She said she did not do so because “it didn’t seem safe – there were other vehicles around me”.

-        Ms Kumar said that her recollection was that it was the “left part” of her vehicle which struck the cyclist. She said the cyclist hit the area of her windshield directly in front of her, and she agreed that by the time of impact the cyclist had entered the left lane and “moved over half of the lane”.

-        Ms Kumar said the speed limit was 50 km/h. She could not recall “exactly” how fast she was travelling but she said “it must have been maximum 60”. When asked if it was possible she could have been travelling more than 60 km/h Ms Kumar said “I don’t know”. When asked what the basis was for her speed estimate at the point of collision, she said it was the relatively short distance she had traveled from the turn she had made onto Grandview from Nanaimo.

-        Ms Kumar said she cannot recall anything about the bicycle she struck, including whether it had a tail-light. She recalled that the road surface was wet and agreed that such would affect her ability to “come to a stop”.

[17]         If there were independent eyewitnesses to the collision then none testified at the trial, and the defendants did not present a case. The speed of the truck which apparently obscured Ms Kumar’s car from Mr. Miles’ view at the time he performed his shoulder checks is not known.

[18]         Post-collision photographs of Ms Kumar’s car show damage to the left front area, including a large dent to the hood and damage to the windshield, consistent with Mr. Miles’ body landing on the hood and his head hitting the windshield. Mr. Miles’ bicycle sustained considerable damage.  No accident reconstruction evidence based upon the collision damage was tendered.

(ii) The Injuries

[19]         Mr. Miles was removed from the collision scene by ambulance. Skin abrasions to his right knee, right shoulder and right elbow indicated that he hit the pavement on his right side. He suffered acute trauma to his right knee, which caused considerable pain and swelling, and had him in a leg brace and on crutches for a few months. Mr. Miles saw his family physician, Dr. Norrie, two days after the collision. Dr. Norrie said:

When I saw Sky on October 22, he was in obvious pain and walking with difficulty. His right knee was obviously swollen and was too tender to examine fully. He had multiple abrasions, especially on his right elbow and right knee. As well, his neck and shoulders were very stiff and painful to move.

I organized an urgent orthopedic referral to Vancouver General Hospital and recommended that Mr. Miles undertake physiotherapy when his injuries subsided to the point where therapy was possible. He was obviously not going to return to his job as a bus driver for many weeks.

[20]         Mr. Miles’ post-collision complaints are as follows:

1.       Back: Initially, he said his pain was in the lower back. It was a very deep ache which moved up from his lower back to his head, causing headaches.

2.       Shoulders: He said his right shoulder aches if he lifts something such as a jug of milk. The shoulder pain wakes him from sleep and causes him to avoid activities that may cause pain or aggravation. His right shoulder feels as if it has gotten worse over time, rather than better. Both shoulders “consistently” ache without having done anything to aggravate them. For temporary relief he uses heat/ice packs and massage. Mr. Miles believes his left shoulder pain is from favouring it after his right shoulder injury in the collision.

3.       Right knee: Mr. Miles said that over a three-year period his knee healed reasonably well; however, he is now unable to run because 15 minutes into a run he gets a deep ache and must stop.

4.       Right ankle: Mr. Miles said in the first year or so, he had a chronic throb in his ankle. It has been sporadic since then. It still bothers him when he presses on the bus accelerator, walks and cycles; however, he would not categorize it as a major complaint. He saw a podiatrist about it and now wears prescribed orthotics.

5.       Neck: Mr. Miles complains of chronic neck pain. He said he has flare-ups which give him a “huge amount of grief” for a couple of weeks at a time before he returns to his “new normal”: a state of neck discomfort not known to him prior to the collision.

6.       Lower back: Mr. Miles said that he suffers from chronic and constant lower back pain, with occasional flare-ups which are disabling. He said in the first few months after the collision he felt very sore and tender all over; an achiness that went to his core. He described the flare-ups as searing pain which drops him to his knees. He said he does not mention it to his doctor on every visit because it is chronic and “he knows it”.

7.       Depression: Mr. Miles said that since the collision he constantly feels like he is “battling the blues”. He said he has gone from “happy-go-lucky” to someone with a flat affect and limited range of emotion. He is taking anti-depressant medication which he believes helps with his mood, but not his energy or happiness.

8.       Sleeplessness: Mr. Miles said he hasn’t slept well since the collision. His discomfort causes him to wake up and he doesn’t feel refreshed in the morning.

[21]         At Mr. Miles’ first post-collision appointment with his family physician, Dr. Norrie, he was referred to Dr. Blachut, an orthopaedic surgeon who recommended massage and physiotherapy.

[22]         Dr. Norrie saw Mr. Miles many times thereafter. In his medico-legal report dated August 16, 2011, he wrote:

Mr. Miles obviously suffered a significant accident in October 2007. He has experienced substantial pain and disability, as a result, as detailed above. Thankfully, most of his symptoms have improved to a great extent; however, he still experiences ongoing symptoms. While I believe that Sky’s long term overall prognosis is good, I also believe that he is predisposed to recurrent pains in his right knee, his shoulders, his neck, and his low back as a direct result of the accident. He may also be at increased risk in the future of arthritis, especially in his right knee and right shoulder. As a result of the depression and anxiety that he suffered over the past several years, this also makes him more predisposed to future episodes of the[se] condition[s].

[23]         In Dr. Norrie’s pre-accident history (commencing February 16, 2005) with Mr. Miles as a patient, Dr. Norrie said that he saw Mr. Miles for, inter alia, right shoulder pain.

[24]         Steven Helper is a physiatrist who examined Mr. Miles on November 30, 2012. On the controversial question of whether the collision was the cause of Mr. Miles’ complaints of low back pain and shoulder pain, Dr. Helper reported as follows:

In my opinion, the motor vehicle collision of October 20, 2007, is directly related to Mr. Miles’ low back pain complaints. [The factors upon which I base this opinion are]: (i) No history of pre-existing lumbar pain; (ii) Likely pre-existing history of degenerative disc changes from the L5-S1 segment; asymptomatic; (iii) The mechanism of the motor vehicle-bicycle collision is unknown; (iv) Mr. Miles had consistent low back pain complaints along his clinical course; (v) Mr. Miles current presentation is most in keeping with discogenic low back pain from the L5-S1 segment. It is most likely he had pre-existing degenerative changes that were aggravated by the MVC of October 20, 2007, converting him from an asymptomatic state to symptomatic; and, (vi) Despite the existence of L5-S1 degenerative changes, the development of discogenic mechanical low back pain was not inevitable. These findings are common on imaging studies in asymptomatic individuals.

… In my opinion the patients current shoulder pain complaints are partially related to the motor vehicle collision in question … it appears as though he had a pre-existing history of right-sided bicipital tendinopathy that was responding well to therapy and nearly resolved. The motor vehicle collision resulted in a fall on his right hand side. He likely experienced a direct aggravation of his pre-existing condition … Mr. Miles demonstrates bilateral mild impingement syndrome of the rotator cuff … it is unlikely that the mechanics of the motor vehicle collision in question resulted in a direct injury to the rotator cuff tear bilaterally. More likely, the patient’s maladaptive mechanics from his low back pain, neck pain, and ankle pain resulted in suboptimal postures and maladaptive biomechanics, uncovering a predisposition to impingement syndrome. If Mr. Miles had not been involved in the motor vehicle collision, it is unlikely that he would be experiencing his current shoulder symptoms …

[25]         Dr. Helper assessed Mr. Miles’ prognoses for recovery from his complaints as follows:

(a)        Low back pain: “Poor” for full recovery, and “good” for partial. He could not quantify these terms.

(b)        Bilateral shoulder pain: With physiotherapy, 50% likelihood of full recovery, and 75% for partial.

(c)        Neck pain: “Poor” for full recovery, and “fair” for partial, with physiotherapy.

(d)        Right knee pain: “Good” for “near full resolution” with physiotherapy.

(e)        Right ankle pain: “Good” for near full, or full recovery, with physiotherapy.

[26]         Dr. Helper specifically recommended a graduated four-month course of physiotherapy with an athletic therapist named Thomas Tran.

[27]         In cross-examination, Dr. Helper agreed that he did not discuss with Mr. Miles an apparent one-year hiatus (January 2008 to January 2009) in back complaints (as disclosed by Dr. Norrie’s clinical records), and he agreed that such is not consistent with Mr. Miles having “consistent lower back pain since the collision”. He said it “casts some doubt on the causal relationship” between the collision and the complaint of lower back pain in July 2010. He added: “Although there is a hiatus there is still a moderate suspicion of causation; but, doubt about a hard assertion”.

[28]         Dr. Helper agreed that Mr. Miles likely had age-related disc degeneration prior to the collision, and that such could be the cause of Mr. Miles’ low back pain. In relation to Mr. Miles’ extensive use of massage therapy, Dr. Helper said such is usually not useful for chronic pain, and has diminishing returns. Regarding the onset of symptoms, Dr. Helper said he would expect to see such within approximately three months if they are related to the trauma.

[29]         William Craig is a physiatrist who examined Mr. Miles on June 10, 2011. For the purposes of preparing his report, Dr. Craig assumed that Mr. Miles had no pre-collision issues with his left shoulder, neck, back and lower limbs; and that an issue with his right shoulder had mostly resolved prior to the collision. In his examination, Dr. Craig found, inter alia: (a) some limited range of neck motion, tightness and tenderness in the cervical paraspinals; (b) impingement of the rotator cuffs, bilaterally, consistent with rotator cuff injury, and tenderness over the tendons of the long head of the biceps; (c) low back pain and tenderness suggesting a moderate soft tissue injury to the low back and a “possible” lumbar facet joint injury; (d) tightness in the hip girdle, bilaterally; (e) tenderness and crepitus in right knee; and, (f) tenderness along the medial tendon of the right ankle.

[30]         In relation to causation, Dr. Craig opined that the collision: (a) aggravated a pre-existing right biceps tendinopathy; and (b) caused the right knee, right ankle, neck and low back injuries. He said that the left shoulder symptoms probably developed as compensation for ongoing right shoulder issues.

[31]         As for the prognosis, Dr. Craig used the term “guarded” for the neck, back and right shoulder, and “more favourable” for the left shoulder. He opined that Mr. Miles will continue to be susceptible to recurrent episodes of back pain, and at a slightly increased risk of premature degenerative changes in his neck and back, all arising from the collision. He believed that Mr. Miles will continue to improve, and will be able to continue working as a bus driver for the “long term” and perform activities of daily living, including cycling and jogging. He thought he would have some difficulty with household maintenance and yard work.

[32]         William Koch is a registered psychologist who assessed Mr. Miles on June 21, 2011, and November 29, 2012. For the purposes of his reports, he assumed, inter alia, that Mr. Miles did not have a history of ongoing psychological distress. Dr. Koch diagnosed Mr. Miles as suffering from a major depressive disorder (“MDD”), chronic pain disorder (“CPD”), and post-traumatic stress disorder (“PTSD”). Dr. Koch said that it is a rare patient who has PTSD occurring alone.

[33]         In relation to the prognoses for these disorders, Dr. Koch was “guardedly optimistic, with appropriate treatment”. He recommended a minimum of three years of psychotherapy, with 50 sessions in the first two years and a reduced number thereafter. He also strongly recommended that Mr. Miles attend a multidisciplinary pain management clinic.

[34]         In cross-examination on whether or not Mr. Miles met the mandatory Criterion A (a “traumatic stressor”) for PTSD, Dr. Koch said: “At the end of the interview, I still had some concerns; but, the interview suggested some serious symptomology, which is the bottom line.” In his report, Dr. Koch set out the DSM rules for an event to qualify as a traumatic stressor:

Both of the following (must be) present: 1. the person experienced, or witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity or self or others; 2. the person’s response involved intense fear, helplessness, or horror.

[35]         Edgar Emnacen is an occupational therapist who evaluated Mr. Miles’ “functional capacity” on July 21, 2011. Following a battery of tests, Mr. Emnacen formed the following opinion:

Mr. Miles presents with limited neck postural tolerances (flexion, extension, and rotation); sitting tolerance; and sustained low level positioning (crouching and kneeling) tolerances, especially in combination with trunk twisting/bending. He also presents with pain mannerisms that may also eventually limit his standing tolerance. Such postures elicit reports of neck, shoulder, and back pain and headache onset.

Overall, I am of the opinion that Mr. Miles is capable of gainful employment, so long as the functional demands of such work are within the guidelines and limitation as noted in this report …

… Mr. Miles has the physical capacity to perform the job duties of a bus driver, however, his symptom reactivity to sustained sitting postures and exposure to neck rotation movements throughout the shift will likely limit his ability to perform this work on a continual, full-time basis …

With [split shifts allowing for postural breaks and driver’s position and movement adjustments] in place to assist with managing his symptoms, it is my opinion that Mr. Miles can continue working as a bus driver. However, Mr. Miles has indicated working split shifts makes for a longer working day overall, starting early and ending quite late in the day (e.g. he wakes up at 4:30am to get ready for his first shift, and his work day does not end until 6:30pm), compared to if he were working one continual eight hour shift.

[36]         Pauline Moshier has been in a romantic relationship with Mr. Miles since September 2009. She said she loves Mr. Miles and expects the relationship to continue. She and Mr. Miles “lived together” from December 2011 to May 2012. In spending time with Mr. Miles, Ms Mosher has observed difficulties Mr. Miles has with sleeping – constantly shifting positions and waking up in apparent pain. She has also observed “pain behaviour” during their shared meals and while watching movies together. She said Mr. Miles is uncharacteristically short-tempered and non-communicative when he is in pain.

[37]         In 2009, prior to the start of her relationship with Mr. Miles, Ms Moshier wrote an article about Mr. Miles as a bus driver. (She was employed by Coast Mountain Bus Company at the time.) She said she chose to write about Mr. Miles because he had an unusually high number of commendations from passengers.

[38]         Rhianne Williams is the sister of Mr. Miles. She saw Mr. Miles often before and after the collision. She described Mr. Miles, pre-collision, as very physically active, fit and strong. She said he was upbeat, social, and liked to help friends with various projects. In the period immediately after the collision, she saw that he was in a severe amount of pain. From January 2008 to March 2009, Ms Williams cooked, cleaned, and took Mr. Miles to various appointments. She noted “huge” changes in Mr. Miles – he was not socially active and was “emotionally unavailable”.

[39]         After March 2009, Ms Williams began full-time employment outside Vancouver, but maintained contact with Mr. Miles. She continues to help him in the winter when her work schedule permits it. She said, currently, Mr. Miles continues to be “very flat” emotionally, and non-social. She said he moves slowly and appears to be dealing daily with pain.

[40]         Delia Envoldson is a registered massage therapist. She first treated Mr. Miles in 2004. Prior to the collision, the massages were for relaxation rather than treatment for injury. In the post-collision period, Ms Envoldson first saw Mr. Miles in November 2007. She said she treated him for low back pain, hips, upper back, shoulders and neck. She said he also had a swollen knee which she could not treat.

[41]         Ms Envoldson said she has treated Mr. Miles on a frequent and consistent basis since the collision. She said she understood that her treatments gave Mr. Miles temporary relief so that he could sleep.

C. Discussion

[42]          In relation to the allegation of negligence, the essence of the plaintiff’s position is: (a) that Mr. Miles was struck from behind by Ms Kumar after he had lawfully executed his lane change; (b) that Mr. Miles was the dominant driver vis a vis Ms Kumar at the point of collision; and, (c) that Ms Kumar’s car struck Mr. Miles’ bicycle from behind because she was driving without due care and attention, travelling at an unsafe speed for the conditions, and/or exceeding the speed limit.

[43]         The plaintiff also says that as Ms Kumar travelled in the left lane beside the large truck to her right, she failed to recognize that vehicles ahead of the truck and out of her view might move into her lane for the purpose of executing a left-hand turn at Slocan Street.

[44]         In support of the plaintiff’s position that Mr. Miles had completed his lane change and was travelling eastbound in the left lane when he was struck, the plaintiff relies upon the location of the damage to Ms Kumar’s car as evidence that Mr. Miles was “well over on the left side of the [left] lane when he was struck”.

[45]         The defendants’ position is that the plaintiff was solely at fault for the collision; that it was caused by his negligent act of changing lanes in front of Ms Kumar when it was unsafe to do so; that Ms Kumar’s vehicle was “there to be seen” if the plaintiff had performed a proper lane check; and, that the plaintiff has not shown that Ms Kumar could not have avoided the collision with the exercise of reasonable care and skill. The defendants cite Lowe v. Greyhound Canada Transportation Corp., 2008 BCSC 64, and McStravick v. Metzler, 2012 BCSC 1685, in support of their position.

[46]         The applicable provisions of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “MV Act”) are as follows:

141(1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for other persons using the highway, or

(c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions.

151(1) A driver who is driving a vehicle on a laned roadway

(a) must not drive it from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that movement can be made with safety and will in no way affect the travel of another vehicle.

(c) must not drive it from one lane to another without first signalling his or her intention to do so by hand or arm or approved mechanical device in the matter prescribed by sections 171 and 172.

183(1) In addition to the duties imposed by this section, a person operating a cycle on a highway has the same rights and duties as a driver of a motor vehicle.

183(2) A person operating a cycle …

(c) must … ride as near as practicable to the right side of the highway.

[47]         It is well settled that the provisions of the MV Act provide guidelines, rather than a complete legal framework, for assessing fault in motor vehicle accident cases. Users of the road are expected to exercise reasonable care, even when others have failed in respect of their statutory duties (see Salaam v. Abramovic, 2010 BCCA 212).

[48]         It is evident that the collision in question occurred very shortly after Mr. Miles moved into Ms Kumar’s lane of travel, and it is not contentious that prior to Mr. Miles’ entry into the left lane, Ms Kumar enjoyed the right of way within that lane; accordingly, before Mr. Miles entered the left lane he was obliged to: (a) ascertain that the lane change could be made in safety and not affect Ms Kumar’s travel (MV Act s. 151(1)(a)); and, (b) alert Ms Kumar by signalling his intention to move in front of her (MV Act s. 151(1)(c)).

[49]         In order to effectively execute these statutory duties, Mr. Miles was obliged to be in a position where he could see and be seen. In other words, Mr. Miles’ lane check was only meaningful if he had the lane he intended to enter in clear view, and his signal was only of use as a warning device if it was within the range of vision of its intended recipient(s).

[50]         The evidence establishes that Mr. Miles was not in such a position when he performed his lane check and signal; rather, it shows that he was at the far right side of the right lane of travel. It is apparent that from this vantage point he was neither well-positioned to see, nor did he see, Ms Kumar’s vehicle travelling in the left lane because Ms Kumar was beside or slightly behind a large eastbound truck travelling in the right lane. Similarly, in these circumstances Ms Kumar’s view of Mr. Miles as he rode eastbound at the right side of the right lane would have been obscured, as would any signal made by Mr. Miles from this position.

[51]          It is clear from Mr. Miles’ testimony that his two lane checks and his arm signal were each executed from the right side of the right lane before he began his lane-change manoeuvre. He was unquestionably in a position of disadvantage from this point and was, thus, obliged to perform a further lane check and signal at a point where: (a) he had a clear view of the left lane; and, (b) any approaching traffic in the left lane had a clear view of him and was able to read his intentions. As Mr. Miles reasonably conceded, Ms Kumar’s approaching vehicle was “there to be seen” by him before he entered the left lane.

[52]         Although the MV Act obliges cyclists to ride as near as practicable to the right side of the highway, on multi-lane highways it does not logically follow that this means that it is only from this position that a cyclist’s statutory duties pursuant to ss. 151(1)(a) and 151(1)(c) of the MV Act are to be fulfilled. If a cyclist travelling on the far right of a multi-lane highway does not have a clear view of each lane of travel he or she intends to enter or cross, then a lane check and signal from this position is, quite obviously, not sufficient either to determine that the manoeuvre is safe or to warn approaching traffic of his or her intention. A cyclist in the position of Mr. Miles, whose view of the lane of travel he intends to enter is obstructed by a large truck, must either wait until he has a clear view before commencing his lane change or perform a further lane check and signal from a position where he is able to see approaching vehicles and be seen by them.

[53]         For the foregoing reasons, I am satisfied that when Mr. Miles rode his bicycle from the far right of Grandview Highway directly into the left lane occupied by Ms Kumar, he did so in breach of his statutory duties to: (a) ascertain that it was safe to do so; (b) ensure that it would not affect Ms Kumar’s travel; and, (c) signal his intention to do so. In all the circumstances, including the traffic and speed at the time in question, the lane checks and signal performed by Mr. Miles at the far right of the highway did not satisfy these duties.

[54]         Notwithstanding the foregoing, Mr. Miles’ position is that he had successfully executed his lane change and was travelling eastbound on the left side of the left lane when he was struck; that the collision was caused by Ms Kumar’s carelessness and excessive speed, and not by his moving into her path when it was unsafe to do so. In support of his position Mr. Miles relies upon: (a) the damage to the left front of Ms Kumar’s vehicle; (b) Ms Kumar’s estimate of her speed as “not more than 60 km/h”; (c) the wet road surface; (d) Ms Kumar’s partially obscured view due to the truck to her right; (e) Ms Kumar’s knowledge that eastbound vehicles which were in the right lane but intending to turn north at Slocan would have to move to the left lane prior to reaching the intersection; (f) the absence of evidence that Ms Kumar sounded her horn or applied her brakes prior to the collision; and, (g) Ms Kumar’s failure to swerve to avoid impacting with Mr. Miles.

[55]         For the reasons which follow, I am not satisfied that the evidence establishes that Mr. Miles had, prior to the collision, successfully executed his lane change and that he was travelling eastbound at the left side of the left lane when he was struck. Significantly, Mr. Miles did not testify to such; moreover, if such was, indeed, the case then no explanation was given for why Mr. Miles would have no memory of it.

[56]         It is noteworthy that Mr. Miles purports to have a good recollection of everything preceding the moment of his entry into the left lane and no memory loss in the immediate aftermath of the collision; thus, if there is a memory gap then it is limited to the very brief period between the alleged successful entry into the left lane and the collision. This is a very specific, isolated and critical memory loss for which no explanatory evidence was tendered.

[57]         In the absence of a memory of where he was within the left lane and how he was positioned within it at the time of impact, Mr. Miles relies upon the location of the damage to Ms Kumar’s car as some evidence that he was eastbound at the left side of the left lane when he was struck. I am not persuaded, however, that much can reasonably be drawn from this damage in the absence of accident reconstruction evidence from a qualified expert. To the untrained eye, the damage does nothing more than establish or corroborate that which is not contentious: i.e., that the front of Ms Kumar’s vehicle struck Mr. Miles while he was riding his bicycle; that the force of the blow separated Mr. Miles from his bike; and, that Mr. Miles hit the left side of the hood and windshield of Ms Kumar’s car before he was thrown forward onto the pavement. The damage, per se, does not permit more nuanced inferences regarding the relative positions of the bicycle and the car at the point of impact of these two moving objects. The existence of damage to the driver’s side of the front of the car is simply not enough, particularly in the context of this dynamic event. I cannot reasonably conclude, for example, that the physical damage to Ms Kumar’s car and/or Mr. Miles’ path of travel after he was separated from his bicycle is inconsistent with Mr. Miles’ being struck shortly after he entered the left lane and as he crossed Ms Kumar’s path to take his position at the left side of the left lane; that is, while he was in the process of executing his lane-change rather than after it. In this regard, it is noteworthy that if the collision occurred virtually upon entry into the left lane as Mr. Miles moved across the front of Ms Kumar’s vehicle then this would account for Mr. Miles’ lack of any memory of riding eastbound in the left lane.

[58]          Similarly, I am not satisfied that the evidence establishes that Ms Kumar drove without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive relative to the road, traffic, visibility or weather conditions. There is virtually no evidence in relation to any of the foregoing. The mere fact of collision with Mr. Miles is neither evidence of a breach of any of these statutory duties nor is it support for a finding of negligence at common law.

[59]         Ms Kumar candidly acknowledged that she does not know her speed of travel; however, she was able to set an outside limit of 60 km/h.  There is no contrary evidence on this point. Ms Kumar passed a truck travelling to her right; however, there is no evidence that this truck was speeding. In this regard, it is noteworthy that Mr. Miles did not perceive this approaching truck as a threat to him when he crossed into its path.

[60]         Even if Ms Kumar was driving at her maximum estimated speed, I am not persuaded that such would reasonably support a finding that her speed was excessive for the conditions. The road was essentially flat and straight, the visibility was good, there was nothing notable about the vehicular or pedestrian traffic, and the weather was benign. In these circumstances, simply a wet road surface from recent rainfall - common for Vancouver - would not demand extra caution. It is also noteworthy that Mr. Miles was very familiar with this section of Grandview Highway, and was well aware that motor vehicles typically traveled at, or over, the 50 km/h speed limit.

[61]         Finally, I do not agree with the plaintiff’s submission that Ms. Kumar’s partially obscured view, caused by the truck to her right, obliged her to “pay extra attention” for drivers or cyclists who might move into her lane of travel for the purpose of turning left at Slocan Street. On multi-lane highways large vehicles frequently, and without warning, partially block the views of drivers of smaller vehicles travelling in the same direction. Such occurrences do not oblige the drivers of the smaller vehicle to immediately reduce speed so as to be able to avoid collisions with non-visible vehicles which might move into their path. Here, Ms Kumar had the right of way within her lane of travel and such was not abrogated by a truck in an adjacent lane which happened to limit her view to the right as she passed it. She was entitled to assume that other drivers and cyclists would obey the rules of the road and not move into her lane of travel when it was unsafe to do so. The oft quoted passage from Walker v. Brownlee, [1952] 2 D.L.R. 450 is apposite:

49.       In applying this principle it is necessary to bear in mind the statement of Lord Atkinson in Toronto R.W. Co. v. King, 7 C.R.C. 408 at p. 417 [1908] A.C. 260 at p. 269: “Traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less upon the assumption that the drivers of all the other vehicle will do what is their duty to do, namely, observe the rules regulating the traffic of the streets.”

[62]         In summary, with due regard for all the foregoing, I make the following determinations: (a) that as Ms Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b) that the evidence does not reasonably support a finding that Ms Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c) that when Mr. Miles entered the left lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car; and, (d) that when Mr. Miles entered the left lane he did so in breach of his statutory duties pursuant to ss. 151(a) and 151(c) of the MV Act.

[63]         In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).

[64]         The evidence establishes that Ms Kumar’s view of Mr. Miles was obscured by the truck to her right. There is no evidence that Ms Kumar saw Mr. Miles at any time prior to entering the left lane in front of her, and no evidence from which it might reasonably be inferred that with the exercise of due care and attention she would have seen Mr. Miles; accordingly, there is no sound basis to find that Ms Kumar ought to have: (a) anticipated that Mr. Miles would disregard her right of way; and, (b) taken reasonable steps to avoid colliding with him. When Mr. Miles entered the left eastbound lane, Ms Kumar had virtually no warning and no reasonable opportunity to avoid the collision. Ms Kumar was a new driver but there is no reasonable basis to conclude that inadequate skill or care was a factor in the collision; moreover, the absence of a reasonable opportunity to avoid the collision accords with Mr. Miles’ unexplained lack of memory of successfully changing lanes before he was struck. The evidence suggests that Mr. Miles moved into the left lane at a distance so close to Ms Kumar’s approaching car that it is highly improbable that a skilled and careful driver in the position of Ms Kumar would have been able to avoid the collision by taking reasonable evasive action.

[65]         In light of all the foregoing, I am not persuaded that the plaintiff has established that Ms Kumar was negligent to any degree; thus, there is no basis to apportion to the defendants any liability for Mr. Miles’ injuries and losses.

[66]         The plaintiff has submitted that the Court should draw an inference adverse to the defendants because Ms Kumar - “the only person who could have provided evidence as to her position, speed, attentiveness, driving experience, familiarity with the road, as to when she first saw Mr. Miles, and as to why she made no attempt to avoid a collision” - who had been scheduled to testify, did not do so, and without explanation. In support of this position, the plaintiff cites Bronson v. Hewitt, 2010 BCSC 169. In Bronson, the court drew an adverse inference against the defendants because one of the defendants did not testify. The court found that this defence decision deprived the court of the best evidence of conversations critical to deciding the case.

[67]         The defendants submits that Bronson is distinguishable from the case at bar. In Bronson, a positive defence was advanced; one which required proof of the content of critical conversations between the two defendants. The court observed that evaluating the defence advanced obliged the court to consider the credibility of both defendants, and the failure to call one defendant deprived the court of the best evidence of the conversations and the opportunity to assess credibility - a matter very much in issue.

[68]         In the case at bar, the defendants note that a positive defence has not been advanced. Here, the defendants simply rely upon the onus the plaintiff bears to prove its case. The defendants’ position is that the plaintiff has failed to prove the negligence alleged. In support they cite McIlvenna v. Viebig, [2012] B.C.J. No. 292, 2012 BCSC 218. In reviewing the law on adverse inferences, the court in McIlvenna stated:

[70]      The law with respect to adverse inferences in civil cases when witnesses are not called is summarized in Halsbury's Laws of Canada [Civil Procedure II, 1st ed (Markham: LexisNexis, 2008) at para 228; Evidence, 1st ed (Markham: LexisNexis 2010), at para 14] under both Civil Procedure, and Evidence headings, respectively, as follows:

It is highly unusual for a party not to testify in a civil trial. The court may draw an adverse inference from the fact that a party fails to testify, provided that it is reasonable in the circumstances to do so. In order for an adverse inference to be drawn, there must be a dispute as to those facts concerning which the party would be competent to testify. Furthermore, if the plaintiff has failed to establish a prima facie case against the defendant, no adverse inference will be drawn should the defendant not testify. Nor is a party required to testify to rebut allegations that are plainly absurd. More generally, an adverse inference will not be drawn where the effect of drawing such an inference is to reverse the onus of proof.

...

There is no obligation on any party to call any particular witnesses. However, the trier of fact may draw an adverse inference from a party's failure to call a witness whose testimony would be expected to assist the party's case.

[69]         Having regard to the foregoing, I agree with the defendants that the effect of drawing an adverse inference against Ms Kumar would be to reverse the onus of proof; moreover, Ms Kumar was extensively cross-examined at her Examination for Discovery and the plaintiff chose to “read in” many of Ms Kumar’s answers as evidence in the plaintiff’s case.

[70]          I am satisfied that there is a critical distinction between the case at bar and that in Bronson. Here, the defendants have not advanced a positive defence and then elected not to testify in support of it. In such circumstances, the defendants are entitled to rest upon the plaintiff’s failure to prove his case. Drawing an adverse inference against the defendants for the failure to present a case with Ms Kumar as a witness would undermine the fundamental legal premise that it is the party alleging the wrongdoing who bears the onus of proof.

E. Conclusions

[71]         Mr. Miles has failed to prove on a balance of probabilities that the collision in question was caused by the negligence of the defendants; instead, the evidence strongly suggests that Mr. Miles was, in the words of counsel for the defendants, “the author of his own misfortune”. Regrettably, it is, indeed, misfortune for Mr. Miles.  He continues to suffer the negative impact of a momentary lapse of good judgment as an experienced, yet vulnerable, cyclist; however, it was his lapse and not that of Ms Kumar. It would be unjust to apportion any blame to the defendants in these circumstances.

[72]         In the absence of proof of any liability on the part of the defendants, no useful purpose would be served by engaging in a comprehensive quantification of Mr. Miles’ damages; accordingly, I do not intend to do so.

F. Disposition

[73]         The plaintiff’s claim is dismissed.

[74]         The parties may make written submissions as to costs if such is necessary given the result.

“The Honourable Mr. Justice Bernard”