Garneau v. Izatt-Sill, 2013 BCSC 46

Erratum released on January 24, 2013. Original judgment has been corrected with text of erratum appended IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Garneau v. Izatt-Sill, 2013 BCSC 46 Date: 20130114 Docket: 08-3861 Registry: Victoria Between: Dustin Curtis Garneau Plaintiff And Estate of Magnus Izatt-Sill, Deceased and Estate of Benjamin Alexander Garneau, Deceased Defendants And Insurance Corporation of British Columbia Third Party Corrected Judgment: The text of the judgment was corrected on the front page on January 24, 2013 Before: The Honourable Mr.

Justice Weatherill Reasons for Judgment Counsel for Plaintiff: E. Y. Magraken Counsel for Defendants and Third Party: D. H. Pihl, Q.C. Place and Date of Trial: Kelowna, B.C. December 10 - 14, 2012 Place and Date of Judgment: Victoria, B.C. January 14, 2013 Introduction [ 1 ] Friday, October 13, 2006 was a tragic day. The plaintiff and the defendants were the occupants of a 2003 Chevrolet 1500 Silverado pick-up truck. They were driving along Highway 97C (the “Okanagan Connector”) early in the morning on their way to work at a gravel pit.

Approximately three kilometers east of Elkhart Road, their vehicle left the highway, at a high rate of speed, and crashed. No other vehicle was involved and there were no witnesses. [ 2 ] Two of the occupants, the defendants Magnus Izatt-Sill (“Magnus”) and Benjamin Alexander Garneau (“Benjamin”) were killed. The plaintiff, Benjamin’s brother, was severely injured. His injuries were such that he has no memory of the accident. [ 3 ] There are two issues for determination in this trial: (1) who was driving the vehicle at the time of the accident? (2) was the driver negligent? By Order of Mr.

Justice Blair made October 4, 2010, any issues relating to damages will be heard at a later date. [ 4 ] Benjamin, who owned the vehicle, could not have been the driver. He was found strapped to the front passenger seat by his seat belt. The plaintiff says that the circumstantial evidence demonstrates on a balance of probabilities that Magnus was the driver. The defendants say that the plaintiff was the driver and is the author of his own misfortune.

[ 5 ] Benjamin’s estate has been named as a defendant because, as owner of the vehicle, he is vicariously liable for the injuries suffered by any passengers. Evidence at trial [ 6 ] Shortly before 5:00 am on October 13, 2006, the vehicle was captured on a video surveillance camera at a Petro-Can gasoline station in downtown Kelowna. Benjamin, Magnus and the plaintiff can be seen purchasing various items from the convenience store and leaving. Benjamin was driving the vehicle when it arrived at the station.

The plaintiff was driving the vehicle when it left. [ 7 ] The vehicle and its various parts were disposed of by ICBC in March 2007 after inspection by its accident reconstruction expert but prior to the plaintiff having had an opportunity to perform a similar inspection. As events unfolded, the premature disposal of the vehicle proved to be very unfortunate indeed. A. The plaintiff’s case [ 8 ] The following witnesses gave evidence as part of the plaintiff’s case: Barry Backus [ 9 ] Mr.

Backus is a 47 year old truck driver who, on October 13, 2006 was driving a semi-trailer rig pulling a heavy load westbound along Highway 97C. He was the first at the scene of the accident, arriving at approximately 7:00 am, just as dawn was breaking. [ 10 ] He confirmed that the weather and road conditions at the time were fine. [ 11 ] His headlights caught the glitter of some debris in the ditch along the side of the highway. He then saw the wreck. As he passed, he saw a person swaying back and forth, in obvious need of help. He stopped, called 911 and went down into the ditch to assess the situation.

There was no steam emanating from the vehicle or dust in the air or any other indication that the accident had occurred only moments before. [ 12 ] The individual, who turned out to be the plaintiff, was several meters from the vehicle facing north close to a deer fence. He was in a sitting position with one leg twisted. He was in distress. Mr. Backus recalled that the plaintiff was not wearing shoes but agreed on cross examination that he could have been mistaken. [ 13 ] He went back to the highway and attempted to flag down other motorists. Incredibly, two vehicles passed without stopping.

After about 15 minutes, a third vehicle, driven by Kilian Jungen, stopped. [ 14 ] Mr. Backus testified that it took the first emergency responders approximately 50 to 60 minutes to arrive at the scene. Kilian Jungen [ 15 ] Mr. Jungen is a 68 year old retired construction manager who has had over 35 years of first aid training and has attended to many victims of trauma. [ 16 ] On October 13, 2006, he was with his wife driving westbound in the right hand lane along Highway 97C. He too testified that the road and weather conditions at the time were good. [ 17 ] The accident scene was immediately visible to him. Mr.

Backus flagged him down. He stopped to assist. [ 18 ] He and Mr. Backus first attended to one of the victims who they found in the vehicle strapped by a seat belt to the right front passenger seat (Benjamin). Benjamin was not breathing and Mr. Jungen found no pulse. He undid the seat belt and lowered Benjamin to the ground. He was about to administer CPR when Mr. Backus advised that another victim who was approximately 25 feet from the deer fence (the plaintiff) needed assistance. Mr. Jungen left Benjamin and attended to the plaintiff, who was disoriented, confused and had obvious signs of injury.

The plaintiff was yelling incomprehensibly and trying to stand. Mr. Jungen convinced him to lie quietly on his side until help arrived. He does not recall whether or not the plaintiff was wearing shoes. [ 19 ] Mr. Jungen later realized that there was a third victim (Magnus) who he assessed as not breathing or having a pulse. There was substantial discolouration in Magnus’ face, neck and hands. [ 20 ] Mr. Jungen confirmed that the drive from Kelowna to the accident scene would normally take approximately 45 to 60 minutes. Constable Richard Monson [ 21 ] Cst.

Monson is a member of the R.C.M.P. with over 20 years experience in the force. He has investigated hundreds of motor vehicle accidents during his career. [ 22 ] On October 13, 2006, he was stationed at the Merritt, British Columbia detachment. He was notified of the accident and arrived at the scene at approximately 10:00 am, 3 hours after it had been reported. He was the lead investigator for the R.C.M.P. [ 23 ] He testified that the weather conditions that morning were dry and clear and that the driving conditions were good. The highway at the scene of the accident was flat and straight.

There was a long debris field leading from the right side of the highway to the

vehicle, which was badly damaged and had come to rest in an upright position in a shallow swale alongside and in close proximity to the highway. [ 24 ] Cst. Monson testified that the vehicle was readily visible to him and that it would have been to westbound drivers. [ 25 ] He examined the scene. There were tire marks in the gravel shoulder indicating that the vehicle had gradually left the travelled portion of the highway.

There was no indication of any sudden manoeuvre prior to the first marks in the gravel. [ 26 ] The seating in the vehicle was comprised of two front bucket-type seats with a large console in between. There was a bench seat in the rear. A homemade “boom box” was found in the rear passenger area which had probably been located under the rear bench seat prior to the accident. The rear doors were “suicide” doors that opened toward the rear of the vehicle.

There was no structural support between the front and rear doors. [ 27 ] A black and white running shoe (subsequently identified as belonging to the plaintiff) was found in the rear passenger area. Its mate was found in the debris field. [ 28 ] One of the observations that “stood out” to Cst. Monson was that the driver’s seat was positioned “well forward” in relation to the console and the front passenger seat. He saw no indication that the seat had come loose or had been moved during the course of the accident. [ 29 ] Magnus’ body was found close to where the vehicle had left the highway.

He was not wearing any shoes. Cst. Monson explained that he has investigated many serious car crashes where victim’s shoes have been “blown off” by the force of the accident. [ 30 ] On March 10, 2007, Cst. Monson was advised by ICBC that it had been unsuccessful in determining who had been driving the vehicle at the time of the accident. [ 31 ] Cst. Monson testified that he has a lot of experience driving along Highway 97C. He estimates that the driving time from downtown Kelowna to the Elkhart area is approximately one hour at normal driving speeds. Sgt. Brian Nightingale [ 32 ] Sgt.

Nightingale has been a member of the R.C.M.P. for the past 31 years. He has taken some 25 to 30 advanced collision reconstruction training courses. For the past 18 years, he has been assigned full time to the Integrated Collision Analysis Reconstruction Services branch of the R.C.M.P. Since October 2006, he has investigated over 400 collisions in the South East District (Okanagan Valley). I have no difficulty accepting him as an expert capable of giving opinions on collision analysis, accident reconstruction and occupant dynamics. [ 33 ] Sgt.

Nightingale arrived at the scene of the accident at approximately 10:00 am on October 13, 2006. The crash site was 85 km. west of downtown Kelowna and 60 km east of Merritt. He described the road conditions as bare and dry. There was very little grade or curvature in the road at the accident site. The posted speed limit was 110 kph. The weather was partly overcast. Sunrise that morning at the GPS coordinates for the accident scene was at 6:11 am.

At 7:09 am, the time the accident was first reported to the R.C.M.P., the sun was 6.78 degrees above the horizon at the accident scene. [ 34 ] The tire prints in the gravel shoulder (which showed the pattern of the tire treads of the vehicle) were at a slight angle to the direction of travel. There was no indication of a sudden swerve prior to the tires entering the gravel shoulder.

Part way into the gravel shoulder there was an obvious indication of the driver reacting to the tires being off the highway and attempting to steer the vehicle back to the highway, as the tire marks dug deep into the gravel at an angle that one would expect to see if the front wheels were suddenly turned to the left. In Sgt. Nightingale’s opinion, it was at this point that the vehicle began to “trip” or roll. Based upon the number of contact points (gouges) in the ground, Sgt.

Nightingale determined that the vehicle rolled laterally (sideways to the direction of travel) at least four or five times before coming to rest 89 meters west of where it had left the highway. [ 35 ] In Sgt. Nightingale’s opinion, the vehicle would have experienced the highest g-forces at the moment it began to roll. At that moment, unrestrained occupants would have begun moving forward and to the right side of the vehicle. The first gouge he observed in the ground was in the shape of the roof of the vehicle.

It is at this point that the roof would have been subjected to substantial compression, although he agreed on cross examination that the roof compression would have continued with each successive roll of the vehicle. [ 36 ] Magnus’s body was found 14 meters beyond the first gouge (approximately 1 ½ rolls). The vehicles right passenger doors were found at the third gouge. The lower latch pin on the right rear door had been sheared off. Sgt.

Nightingale agreed on cross examination that it is possible these doors were still attached to the vehicle at the time Magnus was ejected, but he also pointed out that the doors remaining attached does not mean they were not open. Although the opening at the driver’s window was large enough for an occupant to have been ejected through it, based upon his analysis, Sgt. Nightingale is of the opinion that both the plaintiff and Magnus were ejected out of the right side passenger doors as the vehicle rolled. [ 37 ] Sgt.

Nightingale observed that the driver’s seat was well forward on its rails and had been compressed in a downwards direction. Although he did not attempt to open the driver’s door and examine the driver’s seat in detail, he was of the opinion based upon his observations that the driver’s seat did not move during the roll-over event. [ 38 ] The front passenger seat was found reclined towards the back. Sgt. Nightingale took no steps to determine whether the seat was in this reclined position before the accident event. [ 39 ] Sgt.

Nightingale used various accident reconstruction techniques and sophisticated formulae to calculate the velocity of the vehicle at the time it left the highway. He calculated a speed of 130 kph. The vehicle was equipped with a Vetronix Crash Data Retrieval System. The data generated by that system indicated that the vehicle’s speed was 141 kph during the crash event. Such data is

known to be accurate within 5 % (i.e. a speed of between 134 kph and 147 kph). [ 40 ] In Sgt. Nighingale’s opinion, the start of the crash event was “non-cognitive”, meaning the driver was either distracted or inattentive. In his opinion, the driver had fallen asleep. Dustin Garneau (the “plaintiff”) [ 41 ] The plaintiff was 22 years of age at the time of the accident. He remembers nothing of the accident or, for that matter, nothing of October 13, 2006. His first recollection is of waking up in the hospital. He was told that he had been in an induced coma for 22 days.

His testimony was primarily focused on his usual habits regarding commuting to work at the gravel pit, as well as the habits of Benjamin and Magnus as he observed them. [ 42 ] The plaintiff is 5’ 10” tall. Magnus was 5’ 4” tall. [ 43 ] At the time of the accident the plaintiff owned and he continues to own a 2002 GMC 1500 Silverado pick up, the interior of which he described as being identical to Benjamin’s except that it was one year older. [ 44 ] At the time, the plaintiff smoked at least 1 package of cigarettes every day. Magnus smoked as well.

Benjamin did not. [ 45 ] The plaintiff was employed as a heavy equipment operator by Emil Anderson Construction at its “Homestead Pit”, which is located along Highway 97C approximately half-way between Kelowna and Merritt. The gravel pit operated 24 hours per day, 7 days per week. Benjamin and Magnus worked with him, as did a truck driver, as part of the crusher crew. They all worked the same shifts. They had only been employed by Emil Anderson Construction for approximately one month prior to the accident, although the plaintiff agreed on cross examination that it could have been a little longer.

They worked a 12 hour shift, from 7:00 am to 7:00 pm, seven days a week. The average commute time from the plaintiff’s home in downtown Kelowna to the gravel pit was approximately 45 to 60 minutes. They typically arrived at the pit at between 6:30 am and 6:45 am. Arriving any earlier would have meant that they would have had to sit around doing nothing waiting for their shift to start at 7:00 am. Despite aggressive cross-examination, the plaintiff was adamant that his day shifts began at 7 am and at no other time. However he later agreed it was possible that earlier shifts could have been scheduled.

He agreed that he had recorded his shift times in a “shift book” but no longer had the book in his possession. [ 46 ] On cross-examination the plaintiff denied that his employer required workers to arrive in sufficient time before the shift to check out and warm up the equipment such that it was ready to run at the start of the shift.

The plaintiff testified that preparation work was part of what they were paid to do and that they would start that work at the beginning of their shift. [ 47 ] The plaintiff agreed that, if his shift on October 13, 2006 was scheduled to begin at 6:00 am, a departure from the Kelowna Petro-Can station at the intersection of Richter Street and Harvey Avenue at approximately 5:00 am would have resulted in the correct arrival time, but for the accident. [ 48 ] The plaintiff was asked on cross examination whether he typically arrived at the pit before the truck driver.

He testified that the truck driver usually arrived before he did. He did not recall whether they passed the truck driver’s vehicle on the highway on the day of the accident. [ 49 ] The plaintiff commuted to work by either driving alone in his vehicle or by carpooling with Benjamin and Magnus in Benjamin’s vehicle. In the latter case, the plaintiff was the last to be picked up. It was typical that Benjamin, Magnus and the plaintiff would each take turns driving.

To the best of the plaintiff’s recollection, Magnus had driven at least six times. [ 50 ] Benjamin was particular about his vehicle and he had rules regarding passenger behaviour: there was to be no eating, drinking or smoking. Moreover, neither Magnus nor the plaintiff was permitted to wear work boots in the vehicle. [ 51 ] Benjamin, Magnus and the plaintiff usually stopped at a Kelowna gas station to purchase sandwiches and drinks for lunch. They also typically stopped at a Tim Horton’s restaurant in Westbank for breakfast and coffee when they had allowed themselves enough time to do so.

The plaintiff testified that he drank coffee every morning. As they were not allowed to eat or smoke in Benjamin’s vehicle, they would consume their breakfast and coffee and have a cigarette at Tim Horton’s before departing for Highway 97C. [ 52 ] The three of them quite often changed drivers. When Benjamin wasn’t driving, he always occupied the front passenger seat, often with the back of the seat reclined. When the plaintiff drove Benjamin’s vehicle, he moved the driver’s seat well back and the driver’s headrest up several notches.

He observed that, when Magnus drove, Magnus had the driver’s seat moved well forward. The plaintiff would sit behind Magnus because, with the driver’s seat moved forward and Benjamin’s passenger seat reclined, there was more leg room on the left side of the rear seat. The plaintiff would also adjust the rear headrest upwards, otherwise his head would be against the rear window. [ 53 ] The plaintiff testified the driver’s seat adjustment in Benjamin’s truck was electrically operated (i.e. a power seat).

He maintained this evidence despite aggressive cross-examination suggesting that it was a manually adjusted seat. [ 54 ] The plaintiff’s examination for discovery transcript was put to him in which the following questions were asked and answered: Q. Yeah, okay. Now, it is my understanding that Magnus in fact did not drive the truck back and forth to work because he didn’t have his licence, what can you tell me about that? A. Not too much. I don’t have any memory. Q. You don’t remember Magnus driving the truck to work, do you?

A. Yes, I do. Q. When was it that you recall that happening, tell me about that? A. I don’t recall that. Q. You don’t recall when it was? A. No. Q. Now, do you even know the job site that you are referring to that you said he drove to? A. Yes Q. Which job site is that? A. The Argo yard. Q. And really, so you do have a memory of him driving to the Argo yard? A. Yes. Q. Did Benjamin drive most of the time? A. Yes. Q. And the other one who drove most of the time would be you? A. Yes. Q. But you are telling me you have one memory of Magnus driving on one occasion? A. Yes. Q.

But you don’t recall really when that was, do you? A. No. [ 55 ] The plaintiff explained this prior evidence by stating that he has had several years to think it over and that he believes he remembers Magnus droving more than once.

He denied any knowledge of Magnus’ driver’s licence having been suspended despite it being suggested to him that it was common knowledge around the gravel pit. [ 56 ] The plaintiff agreed that, when the vehicle left the Kelowna Petro-Can station at approximately 5:00 am on October 13, 2006, Benjamin was in the front passenger seat, Magnus was in the back seat, and he was in the driver’s seat. [ 57 ] The plaintiff was shown photographs of the driver’s seat and the headrest locations as found on the vehicle immediately after the accident.

He testified that he never drove the vehicle with the driver’s seat and headrest in those positions. Rather, they reflected Magnus’ driving preferences. He also testified that the position of the left rear headrest after the accident was as he typically positioned it when he was riding in the rear seat. [ 58 ] The plaintiff introduced into evidence photographs he took of himself sitting in his 2002 Silverado pickup truck with the driver’s seat positioned with 1 cm of the left track exposed at the front and 3.7 cm of the right track exposed at the back.

He testified that he never drove either his or Benjamin’s vehicle with the driver’s seat in either of these positions. He described these positions as uncomfortable and cramped for his 5’ 10” body. The photographs appear to confirm this description. [ 59 ] The plaintiff also introduced photographs of himself sitting in his pickup truck with the seat adjusted as he normally positioned it, approximately 7 centimeters further back from the 1 cm position described above. [ 60 ] The plaintiff identified the black and red running shoe found in the back passenger compartment as belonging to him. Lawrence Adie [ 61 ] Mr.

Adie was the Emil Anderson Construction project superintendent for the Highway 97C four-lane construction project that took place in the fall of 2006. He was the immediate supervisor of Benjamin, Magnus and the plaintiff’s. The three of them worked on Mr. Adie’s “crushing crew” and reported to him. [ 62 ] Mr. Adie was a helpful witness. He confirmed that Benjamin, Magnus and the plaintiff were to begin their shifts at 7:00 am on October 13, 2006. He also confirmed that they usually arrived at the gravel pit between 6:30 am and 6:40 am.

They would warm up the equipment at approximately 6:45 am in order to begin work at 7:00 am. Timothy Leggett [ 63 ] Mr. Leggett is a mechanical engineer who has been involved in the reconstruction of traffic accidents, including many high speed rollovers, for over 27 years. He too was qualified as an expert to give opinion evidence on accident reconstruction, unrestrained vehicle occupant dynamics and driver identification.

[ 64 ] Mr. Leggett provided helpful expert evidence regarding how unrestrained occupants move inside a vehicle during high speed rollovers. He testified that, based upon his experience and crash testing performed by General Motors, such occupants will move randomly during these events and can change positions within vehicles before being ejected from them.

Occupants can be centrifuged in one position and then, when the airborne vehicle touches down, will be “slammed” further in that position or thrown to the other side of the vehicle, depending upon how and where the vehicle touchdown occurs. [ 65 ] He did not examine the vehicle because it had been disposed of by ICBC before he had been retained. He agreed with the defendant’s expert, Mr. Bowler, that the driver’s seat had twisted during the crash event.

He said that it would likely have been possible to determine the pre-crash position of the driver’s seat had it been preserved. [ 66 ] Because the subject vehicle was not available to him, Mr. Leggett used a 2004 Silverado pick-up truck as an exemplar for testing purposes. All of the field work and measurements performed on that exemplar vehicle were performed, not by Mr. Leggett, but on his instructions by an engineer-in-training from his office. He did not attend the field work or witness any of it. He simply assumed that his instructions had been carried out. [ 67 ] On cross-examination, Mr.

Leggett agreed that there was a cosmetic change in seat structure between the 2002 and 2003 Silverado model years and that he could not say whether or not the driver’s seat and tracks on the 2004 exemplar used by his office was identical to the vehicle in question. [ 68 ] Mr. Leggett relied in part on the injury profiles of Magnus and the plaintiff as determined by Dr. Rice, a forensic pathologist called by the defendants, when forming his opinion on where the plaintiff and Magnus were located when they sustained their injuries.

In his opinion, both Magnus and the large metal tool box which was likely bolted to the rear cargo box of the vehicle (although there was no evidence on how the tool box had been affixed to the box) were ejected from the vehicle when its roof hit the ground for the first time. In his opinion, only the first contact would have created sufficient force to have done so. Both Magnus and the tool box skidded for many meters before coming to their respective final resting positions.

Examination for Discovery Evidence [ 69 ] The plaintiff read in evidence from the examinations for discovery conducted of Vivian Garneau, Benjamin’s mother, as a representative of Benjamin’s estate and Gloria Eglin, Magnus’ mother, as a representative of Magnus’ estate. I have summarized that evidence as follows:

a) Benjamin and Magnus were close friends. Benjamin used to date Magnus’ sister;

b) Benjamin’s height was 2” taller than the plaintiff and Magnus was appreciably shorter than the plaintiff. Magnus was 5’ 4” tall and weighed 72 kilograms;

c) Magnus drove Benjamin’s 2003 Silverado vehicle and positioned the seat close to the steering wheel, whereas Benjamin moved the seat back when he drove;

d) the position of the driver’s seat after the accident was consistent with how it was adjusted when Magnus drove. Mrs. Garneau never saw the plaintiff drive Benjamin’s vehicle with the seat in that position;

e) Benjamin’s vehicle was “well kept”;

f) ICBC disposed of the vehicle;

g) Shortly before the accident Benjamin had complained to his mother that he was tired from the long work shifts and was concerned that it might be dangerous for him to drive. He told his mother that he planned to have the plaintiff and Magnus do more of the driving;

h) the evening before the accident Magnus spoke to his mother and told her he was tired from the long work hours;

i) the drive time between downtown Kelowna and the scene of the accident was approximately 45 minutes;

j) when Benjamin wasn’t driving he usually sat in the front passenger seat and had a habit of reclining the seat back;

k) on the occasions when Magnus drove, the plaintiff usually sat in the left rear position behind the driver’s seat, because with the driver’s seat moved forward and the passenger seat back reclined, there was more leg room in that location B. The defendants’/third party’s case [ 70 ] The following witnesses gave evidence as part of the defendants’ and third party’s case: Al Cooper [ 71 ] In October 2006, Mr. Cooper worked as a truck driver at the gravel pit on the same shifts as Benjamin, Magnus and the plaintiff.

He testified that Benjamin, Magnus and the plaintiff had been working at the pit for one to two months at the time of the accident. The foreman of the pit and the person to whom they all reported was Mr. Adie. [ 72 ] While Mr. Cooper was “pretty sure” that their shifts began at 6:00 am, on cross examination he agreed that he wasn’t certain and that the shifts could have started at 7:00 am. He said the he would defer to Mr. Adie’s recollection on shift start times.

He also agreed that Benjamin, Magnus and the plaintiff usually arrived at the pit before he did and he believed they generally arrived approximately 30 minutes before their shifts began.

[ 73 ] He testified that Benjamin, Magnus and the plaintiff usually drove Benjamin’s vehicle to work. They would usually pass him on one of the long hills on Highway 97C. He noticed that Benjamin was often the driver. He testified that he did not see Benjamin’s vehicle pass him on the morning of October 13, 2006. [ 74 ] The general routine was that the four of them would start the machines approximately 15 minutes before the start of their shifts so that they would be ready to roll when the shift began. James Bowler [ 75 ] Mr.

Bowler is a mechanical engineer with experience and expertise in accident reconstruction, driver identification, seat belt use and effectiveness, speed of vehicles and vehicle dynamics during collision events, occupant ejection analysis and the collection of DNA samples. He was qualified as an expert in these fields. [ 76 ] The primary focus of Mr.

Bowler’s retainer was to investigate the available evidence, including the vehicle and its damaged parts/components and various police photographs that were provided to him, and provide an opinion regarding who had likely been driving the vehicle at the time of the accident. [ 77 ] He examined the police photographs. He also examined the vehicle itself (and some of the debris that was found with it) in a Merritt tow yard. He was specifically requested by ICBC to document the driver’s seat position.

He found that there was 1 cm of track exposed at the front of the left track and 3.7 cm of track exposed at the rear of the right track. He did not note or observe any twisting of the driver’s seat and he did not perform any analysis of whether or not the seat rails had twisted. [ 78 ] Several years later, when it came time to prepare his expert report, he was unable to replicate the measurements he had taken on Benjamin’s vehicle on an exemplar vehicle (another 2003 Silverado pick-up). Since Benjamin’s vehicle had been disposed of, he was unable to perform any further analysis of it.

He agreed that he could have done so had the vehicle been preserved. Notwithstanding, he concluded that the driver’s seat of the vehicle had twisted counter clockwise, probably as a result of the driver’s side of the roof crushing the back of the seat downward and to the right during the crash event. Based upon measurements taken on the exemplar vehicle, he determined that the twisting had resulted in either the left track moving back 6 cm or the right track moving forward 6 cm.

He was unable to determine which. [ 79 ] He was also unable to provide an opinion on which setting was more likely immediately prior to the accident: the 1 cm setting on the left track or the 3.7 cm setting on the right track. He nevertheless opined that it had to have been one or the other. He agreed during cross examination that the manner in which the driver’s seat had twisted was pertinent to the pre-crash seat adjustment and thus the identity of the driver. He agreed that this determination ought to have been made by him. [ 80 ] Mr.

Bowler testified that the driver’s seat of Benjamin’s vehicle had a manual adjustment, not a power adjustment. He also confirmed that the steering wheel was adjustable, up and down. However he made no measurement of the steering wheel adjustment despite knowing that different people drive with different steering wheel adjustments, another fact that is pertinent to determining the identity of the driver. [ 81 ] Mr. Bowler arranged for two surrogates to sit in the driver’s seat of the exemplar vehicle.

The seat was adjusted with 1 cm of the left track exposed at the front and with 3.7 cm of the right track exposed at the back, along with various adjustments to the tilt of the seat back. The surrogates were a man 5’ 10” tall and a woman 5’ 5” tall. These surrogates did not actually drive the exemplar vehicle. The 3.7 cm position of the right seat track was apparently a good driving position for the 5’5” surrogate, although she would have preferred having the seat moved back a little. Apparently the 3.7 cm position was too close for the 5” 10” surrogate for him to drive comfortably.

When the seat was moved to the 1 cm left track position (which results in the seat moving further from the steering wheel), the 5’ 5” surrogate reported that the position felt comfortable for her. The 5’ 10” surrogate indicated that, while he could drive the vehicle in that position, he would have preferred to move the seat back further. When the seat back was reclined, the 1 cm position was more comfortable for him. [ 82 ] Mr. Bowler agreed on cross examination that a male 5’ 4” tall would likely have been comfortable driving in either the 1 cm or the 3.7 cm position. [ 83 ] Mr.

Bowler obtained several samples of blood, hair and other material that he sent to a laboratory for DNA analysis. That analysis revealed that a hair sample found in the roof liner above the driver’s seat belonged to the plaintiff and that a single long blond hair in the roof liner above the right front head restraint could not be identified. A short single dark brown hair in the roof liner above the right rear seat was identified as having probably belonged to Benjamin. He found blood belonging to Benjamin in the same vicinity.

He could not be certain whether Benjamin’s hair and blood were deposited at the same time. No DNA samples matched to Magnus were found. [ 84 ] One black fibre sample was found on the left rear grab handle. DNA testing found that it was made of polypropylene. No matches to known clothing were made. Mr. Bowler did not have access to the black toque that the plaintiff was shown in the Petro-Can store surveillance video to have been wearing. Mr. Bowler did have access to the camouflage jacket that the plaintiff had been wearing but he did not test it, although he agreed he should have done so. [ 85 ] Mr.

Bowler formed the opinion that the vehicle left the highway, initially rotated counter clockwise, then tripped and rolled clockwise 5 or 6 times with its right side leading. Neither the plaintiff nor Magnus was wearing a seatbelt. [ 86 ] Mr. Bowler observed a small outward deformation in the middle of the top mounting of the rear window, indicating to him that an occupant had been ejected out of the rear window. He testified that, in his opinion, both that occupant and the tool box located in the rear cargo box of the vehicle were probably ejected from the vehicle at the same time.

Since the final resting position of the tool box lid and Magnus’ body were in close proximity, he surmised that Magnus was the occupant of the vehicle that had been ejected through the rear window. He testified that the rear passenger was more likely to have been ejected out of the rear window than the driver because

the driver’s seat back would have been in the way. He agreed on cross examination that the final resting locations of the tool box and Magnus would depend upon their respective weight and size. He did not measure the weight of the tool box. He explained that the deformation found in the lid of the tool box could have been from the tool box having rolled over Magnus’ body.

He also agreed that, given the left to right lateral forces that the driver would have experienced, it is possible that the driver was ejected through the rear window. [ 87 ] He agreed that the passenger in the rear seat would have been exposed to downward and lateral forces to the right, similar to those evidenced by twisting of the rear head rests. [ 88 ] He was not able to opine on where the plaintiff was ejected from the vehicle except that it must have occurred early in the crash event because, in his opinion, the right passenger doors of the vehicle did not open or separate from the vehicle until approximately two- thirds of the way through the crash event.

He based this opinion on the fact that the doors had three separate sets of scrapes on them, meaning they were likely rolled on a few times prior to opening and separating. [ 89 ] He agreed on cross examination that it is possible the plaintiff remained in the vehicle until it came to rest and then crawled out. [ 90 ] Mr. Bowler conceded that, in a violent high speed rollover event such as this one, there are many different forces at play and often too many variables to allow for an accurate determination of how unrestrained occupants in a vehicle move during the course of the event.

He agreed that, during this roll over event, the forces on unrestrained occupants of the vehicle would have been generally outward and to the right. [ 91 ] He also agreed that, ideally, he would have inspected the scene before anything had been moved. In this case, he was not given the opportunity to do so. Dr. Jennifer Rice [ 92 ] Dr. Rice is an experienced forensic pathologist who was qualified to give opinion evidence on injury causation and analysis, classification and type of injury, cause of injury and how an injury occurred.

She is not an engineer or bio-medical expert and agreed that she would defer to the opinions of engineers on matters relating to physics. However, she is qualified to and did opine on how the mechanisms of the injuries to Magnus and the plaintiff, as reported to her, occurred. [ 93 ] She saw no medical evidence indicating that either the plaintiff or Magnus was wearing a seatbelt at the time of the accident. The plaintiff’s injuries were caused by high energy impact, which she concluded had come from the crushing of the driver’s side roof.

The plaintiff also sustained “secondary impact injuries” which she concluded were from contact with the ground after being ejected from the vehicle. She was of the opinion that the plaintiff’s injuries were not consistent with the vehicle having rolled over him. Rather, the plaintiff’s injuries were consistent with him having occupied the driver’s seat, primarily because the left roof of the cab had been damaged with downward and lateral forces.

On cross-examination she agreed that, if the “B” pillar on the left side of the vehicle’s cab was crushed in a direction down and to the right, the plaintiff’s injuries were also consistent with him having occupied the left rear seat. [ 94 ] She opined that Magnus’ injuries were caused by impact with the either a door post or window frame as he was ejected from the vehicle. He also sustained secondary injuries to his head and brain caused by him landing on the ground after ejection.

He suffered tertiary injuries caused by the vehicle partially rolling over the right side of his body after he landed on the ground, causing injuries to his chest and abdomen. [ 95 ] Dr. Rice did not visit the crash site or have any first hand information of her own. She relied for her opinion entirely upon information obtained by others. The information she relied on included:

a) Total Loss Pre-Damage Inspection Sheet dated July 23, 2007;

b) Ministry of Transportation Post-Crash Vehicle Inspection Report dated October 18, 2006;

c) Motor Vehicle Traffic Accident Police Investigation Report dated October 13, 2006;

d) Police Continuation Report of Cst. M.E. Plilion dated October 13, 2006;

e) Police Continuation Report of Cst. C.A.B. Van Doren dated October 15, 2006;

f) Police Continuation Report of Cst. Bob Moon, undated;

g) Statement of Barry Backus dated October 13, 2006;

h) Statement of Jeff Giesbrecht dated October 13, 2006;

i) Report to Coroner by Cst. R.A. Monson;

j) Hand-written notes (unsigned) from MEA Forensics engineer dated October 24, 2006;

k) BC Coroner’s Judgment of Inquiry signed by Janice Riley, dated April 28, 2008;

l) Autopsy report of Magnus signed by Dr. T. Bruce, dated April 5, 2007;

m) Provincial Toxicology Report re: blood and urine analysis collected during autopsy of Magnus, signed by Dr. Stewart Huckin, dated October 30, 2006;

n) Amended Coroner’s Report related to the death of Magnus signed by Janice Riley, dated April 23, 2010;

o) Driver’s License abstract of Benjamin Garneau;

p) BC Coroner’s Judgment of Inquiry signed by Janice Riley, dated April 17, 2008;

q) Amended Coroner’s Report into the death of Benjamin signed by Janice Riley, dated April 23, 2010;

r) Ambulance crew report dated October 13, 2006 re: the plaintiff;

s) Selected Kelowna General Hospital medical records pertaining to the admission, treatment and discharge of the plaintiff fromOctober 13, 2006 to November 5, 2006;

t) video of CHBC evening news report on the crash;

u) photographs of the plaintiff taken while he was in the hospital. [96] Some of these documents, most importantly the autopsy reports and the hospital medical records, Dr. Rice relied on heavily andher opinions rely entirely upon their truth and accuracy. Others she reviewed for context but she did not analyze in detail. [97] None of these documents were introduced into evidence or were the subject of a Notice to Admit. [98] On cross-examination, Dr.

Rice agreed that whether or not the driver’s seat was twisted, the adjustment of the steering wheeland whether or not the head rests were moved during the crash were part of the proper information gathering process and things that shewould have expected to have been determined and recorded by those who inspected the vehicle, all of which would have been useful indetermining the identity of the driver. [99] She agreed that there was nothing in the medical reports indicating Magnus had suffered a medical event immediately prior tothe accident.

Analysis [100] The evidence leads overwhelmingly to the conclusion that the driver of the vehicle was negligent and that his negligence causedthe crash. The posted speed limit was 110 kph. The vehicle was travelling in excess of 130 kph at the time of the accident. As Sgt.Nightingale put it, the crash was caused by speed and the driver’s inattentiveness. I accept this evidence. Mr.

Bowler agreed that therewas no indication of anything mechanically wrong with the vehicle that would have caused or contributed to the crash and that the crashwas consistent with driver inattention. [101] In such circumstances, negligence can be inferred: Nason v. Nunes, 2008 BCCA 203 at para. 8. The defendants led no evidenceto the contrary. Indeed, the defendants did not contest that the driver was negligent. [102] The only remaining question is: who was driving at the time of the accident? This issue was vigorously contested. The onlysurvivor of the accident has no memory of the event.

There were no independent witnesses. The plaintiff has the onus of demonstratingthat it is more probable than not that Magnus, not he, was the driver. [103] I find that all of the witnesses were credible. [104] Although there were some inconsistencies in the plaintiff’s evidence, I find that, overall, he was a straightforward witness whodid his best to tell the truth, six years after the event and after having suffered a brain injury.

Counsel for the plaintiff persuasivelypointed out that when the plaintiff woke up in the hospital some 22 days after the accident and learned that both his brother and Magnushad been killed, he could easily have stated from the outset that Magnus, not he, had been driving. Instead, he said that he couldn’tremember who had been driving. He left it open that he could have been the driver. That speaks volumes for the plaintiff’s credibility. Destruction of the vehicle [105] The vehicle was disposed of by ICBC in March, 2007 without any determination having been made as to the identity of thedriver.

I understand that it was subsequently destroyed in May 2007. [106] ICBC is an experienced and sophisticated insurer in this province. At the time the vehicle was disposed of, it had to have beenobvious to ICBC that there was likely to be a claim arising from the accident and that the identity of the driver would be a major issue inany such claim. Preservation of the vehicle may well have provided highly probative evidence on the driver’s identity.

It is nowimpossible to know what additional information the vehicle would have revealed. [107] Spoliation of evidence gives rise to a rebuttable evidentiary presumption: Endean v. Canadian Red Cross Society (1998), (BC CA), 48 B.C.L.R. (3d) 90 (C..A.) at para. 13; Dawes v. Jajcaj, 1999 BCCA 237 at paras. 62 - 64 (application for leaveto appeal dismissed [1999] S.C.C.A. No. 347. Shift start time [108] The plaintiff was adamant that his shifts began at 7:00 am. Mr. Cooper was unsure as to whether or not the start time was 6:00am or 7:00 am and said that he would defer to Mr. Adie. Mr.

Adie testified that the shifts began at 7:00 am. If anyone would know, he

would. [109] The defendants rely on Magnus’ “shift book” as evidence that Benjamin, Magnus and the plaintiff were scheduled to commencework on October 13, 2006 at 6:00 am rather than at 7:00 am. Magnus’ shift book was found by his mother at the scene of the accident. Iwas advised by counsel that she was unable to identify the handwriting or any other entries contained in it. Even though the shift bookdoes indicate shifts prior to October 13, 2006 started at 6:00 am (or at various other times), I place little probative value on the shiftbook.

There are simply too many unanswered questions raised by it for me to do otherwise. [110] I find on the balance of probabilities that Benjamin, Magnus and the plaintiff were to begin their shifts on October 13, 2006 at7:00 am. DNA analysis [111] In my view, the DNA analysis that was done of the various samples found in the vehicle is of little probative value todetermining who was sitting where immediately prior to the crash. The samples could have been deposited at any time prior to or duringthe accident. They could have been deposited the previous day or the previous week.

It is clear from the evidence that at least one hairsample, the long blond hair, was deposited in the roof line before the accident. Mr. Bowler agreed that it is not unusual for a strand ofhair to be deposited in the roof liner above the driver’s seat while a person is driving. The various samples of blood that were foundcould easily have been the result of blood being spattered during this violent rollover event. Mr.

Bowler could not be certain as towhether the hair and blood were deposited at the same time. [112] Moreover, the evidence is that, at least at the time he was in the Petro-Can station, the plaintiff was wearing a toque. Obviously, if he was wearing a toque at the time of the accident, no hair sample would have been left in the roof liner. There is no wayof determining whether he was wearing the toque at the time of the accident or not. [113] Finally, Mr.

Leggett testified that unrestrained occupants move randomly during high speed vehicle roll-overs and can evenchange positions within the interior of the vehicle before being ejected. I accept this evidence. It makes sense. Manual vs. power seat [114] There is no clear photograph in evidence of the left side of the driver’s seat. Had there been a photograph, there would not havebeen this controversy. The plaintiff was certain that the driver’s seat was power adjusted. However, based upon the less than perfectphotographic evidence that is available, as well as the testimony of Mr. Bowler and Mr.

Leggett, I find that it is more probable than notthat the seat adjustment was manual. That is what Mr. Bowler’s notes dated October 24, 2006 indicated and there is no reason tosuggest that he would have made an erroneous entry in his field notes. As well, it appears that the 2003 Silverado power seat optionused a panel containing switches embedded within the left side fabric of the driver’s seat. The photographic evidence available,although not entirely clear, shows no evidence of the existence of any such panel or switches.

Although I find that the plaintiff wasincorrect when he testified that the driver’s seat was power operated, his confusion is understandable given that memories fade with timeand given the injuries he suffered. Ejection of occupants from the vehicle [115] Sgt. Nightingale was of the opinion that both Magnus and the plaintiff were ejected out of the right passenger doors. Mr.Bowler read but did not critique Sgt. Nightingale’s opinion.

He maintained that neither occupant was ejected in that way because, in hisopinion, both Magnus and the plaintiff were ejected early in the crash event before the passenger doors opened. [116] Dr. Rice, too, formed opinions regarding this topic. Regrettably, through no fault of Dr. Rice, I am unable to give any weight toher opinions in this regard because she relied on documents that were not introduced in evidence, in particular the autopsy and hospitalrecords. These documents could easily have been proven by way of a document agreement or a Notice to Admit.

If a fact fundamentalto an expert’s opinion is not proven, the opinion cannot be relied on: R. v. Abbey, (SCC), [1982] 2 S.C.R. 24 at 46; R. v.Lavallée, (SCC), [1990] 1 S.C.R. 852 at para. 74 commenting on Abbey; R. v. K.W., 2002 BCCA 131 at paras. 47 - 53. [117] Mr. Leggett opined, based upon the physics, dynamics and forces of this high speed rollover event, that Magnus was likelyejected from the driver’s side of the vehicle at the moment the roof of the vehicle first impacted the ground. In his opinion, this firstimpact would have been the only impact imparting sufficient force to do so.

While his opinion regarding consistency of injuries reliesupon Dr. Rice’s report, which I have found is of no probative value in this regard, his opinions regarding accident reconstruction andunrestrained occupant dynamics do not. Mr. Leggett was not cross-examined on this aspect of his opinion. [118] Sgt.

Nightingale was also of the opinion that the vehicle would have experienced the highest “g-forces” at the moment it beganto roll. [119] In the result, one accident reconstruction expert has the unrestrained occupants being ejected out of the right passenger doors,another has one being ejected out of the rear window and still a third has them being ejected out of the driver’s window. All areexperienced and knowledgeable experts in the field. Yet each has come to a different conclusion. [120] In Byer v. Mills, 2011 BCSC 158, Mr.

Justice Harris (as he then was) wrote: [54] The principles of occupant dynamics are helpful up to a point. Certainly, they assist in indentifying the principal direction of forceexerted on occupants. They are also helpful in identifying the point at which an occupant might be expected to make initial contact withthe interior of the passenger compartment. In my view, in the circumstances of this collision, the predictive value of principles ofoccupant dynamics rapidly diminishes once the movement of the passengers if affected by contact with the interior of the compartment

and with each other. At that point the situation becomes inherently dynamic and fluid. There are far too many variables involved to make accurate predictions of how the occupants and parts of their bodies would move once they start hitting each other . It must be remembered that if unrestrained an occupant would be traveling within the compartment at a speed of about 55 km/h. I am sceptical that any reliable prediction of how the occupants would interact with each other, with the interior of the passenger compartment and move within it can be undertaken. [Emphasis added] [ 121 ] I agree with those observations.

I also agree with Mr. Leggett that the forces and dynamics of violent rollover events are such that unrestrained occupants will move and be ejected randomly. I accept the opinion of Mr.

Leggett that the centrifugal and other forces imparted on the occupants from a vehicle leaving the highway at upwards of 140 kph, suddenly moving counter clockwise as a result of a sudden evasive manoeuvre, then “tripping” and launching into the air, rolling and landing on its roof, as this vehicle did, likely resulted in both the plaintiff and Magnus being ejected from the vehicle before the vehicle continued to roll and reach its final rest position. The plaintiff was conscious and seen moving by Mr. Backus when he first arrived at the scene. Mr. Jungen had to restrain him.

I find that, in the time between the accident and Mr. Backus arriving at the scene, the plaintiff likely moved from where he landed after being ejected to the location where Mr. Backus found him. Positioning of the driver’s seat [ 122 ] I agree with counsel for the plaintiff that, in accidents such as this where the driver’s identity is in issue, the position of the driver’s seat can tell a story about who the last occupant was.

The fact that each of the experts focused on the position of the driver’s seat is telling of its importance to driver identification. [ 123 ] The positioning of the driver’s seat, being in a “well forward” position stood out to Cst. Monson. [ 124 ] While I accept the evidence of both Mr. Bowler and Mr. Leggett that the driver’s seat was likely twisted during the crash event, I have no evidentiary basis upon which I can find that the twisting was such that the driver’s seat position was significantly changed during the event. It may have been twisted, but it was still well forward.

Who was driving? [ 125 ] The use of surrogates by both Mr. Leggett and Mr. Bowler in an attempt to demonstrate that a 5’ 10” tall person would have been able to comfortably drive regardless of whether the driver’s seat was set at 1 cm left rail exposure or 3.7” right rail exposure was of little probative value. First, none of the surrogates testified. Hence their comments are inadmissible hearsay. Second, what may be a comfortable driving position for one person may not be for another.

Third, two individuals of the same height may have different leg lengths and while one may be able to comfortably reach the pedals the other might not. Fourth, no attempt was made to determine the steering wheel adjustment and how that may or may not have affected driving comfort. Fifth, I agree with Dr. Rice that anthropometric measurements differ between men and women and, therefore, the use of a female surrogate was inappropriate. Sixth, no allowance was made for posture or other variations in driving positions. Mr. Bowler and Dr.

Rice agreed that, ideally, the best way to determine an individual’s comfortable driving position is to ask that individual. Here, the plaintiff was asked and he provided the court with uncontroverted evidence in that regard. I find that the exemplar “testing” done by Mr. Bowler and Mr. Leggett to be of no assistance and have given it no weight. [ 126 ] Despite the best efforts of accident reconstruction experts, the violence of this crash was such that there remain many unknowns. Sgt. Nightingale opinion was that the passenger doors opened early in the crash event. Mr.

Bowler’s opinion was that they had stayed closed during two-thirds of the event. The DNA samples taken were not determinative of who was where in the vehicle. The dynamics of the crash were such that no one knows who was ejected from the vehicle, how they were ejected or when. Mr. Bowler is confident, and I accept, that Magnus and the plaintiff were ejected from the vehicle relatively early on in the crash event. However, it is speculation to suggest that, because Magnus’ body was found in close proximity to the tool box lid, he was the person who had been sitting in the rear prior to the accident. Sgt.

Nightingale confirmed that the relative locations of the tool box lid and Magnus’ body could very well have been mere coincidence. [ 127 ] Given the length of the commute that was made on October 13, 2006, I find that whoever was driving would have positioned the driver’s seat such that it would have provided a comfortable driving position for him. I find that, for Magnus, that position was “well forward”.

For the plaintiff, it was further back. [ 128 ] Both the plaintiff and his mother provided evidence, based upon the photographs, that the position of the driver’s seat after the accident was not where the plaintiff would have positioned it if he had been driving. They both stated it was positioned closer to where it would have been had Magnus been driving. Although this evidence is self-serving, no contradictory evidence from other friends or acquaintances of the plaintiff or Magnus was led, which easily could have been. [ 129 ] I find the following evidence to be telling:

a) all three of the men drove Benjamin’s vehicle to work;

b) prior to the crash, the driver’s seat was positioned such that either 1 cm of the left track was exposed at the front or 3.7cm of the right track was exposed at the back. Either position would likely have been a comfortable driving position for a person who was 5’ 4” tall but uncomfortable for a person who was 5” 10” tall;

c) the driver’s seat head rest was positioned fully down whereas the rear head rests were positioned quite high;

d) Benjamin, Magnus and the plaintiff were to begin their shifts at 7:00 am on October 13, 2006. They left the Petro-Can station in

Kelowna at approximately 5:00 am. The driving time from downtown Kelowna to the gravel pit at that time of day was approximately 45 - 60 minutes. Had they driven directly to the pit, they would have arrived almost one hour early for their shift; and

e) Benjamin, Magnus and the plaintiff had a habit of stopping at the Tim Horton’s restaurant in Westbank for breakfast when they had time to do so. Benjamin did not allow eating, drinking or smoking in his vehicle so breakfast was consumed at the restaurant. [ 130 ] The events material to this action took place early in the morning. Benjamin, Magnus and the plaintiff did not eat at the Petro- Can station. They got back in the vehicle before consuming anything. They could not eat in the vehicle because Benjamin would not allow it.

I find that it is more probable than not that the men stopped at least once between the Petro-Can station in Kelowna and the accident site, most likely for coffee and/or breakfast. When they resumed their trip, Magnus became the driver and moved the driver’s seat forward into a comfortable driving position for him. [ 131 ] Magnus was driving the vehicle at the time of the accident. [ 132 ] The plaintiff is entitled to his costs at Scale B. “The Honourable Mr. Justice Weatherill”