Wood v. Insurance Corporation of B.C. Date:, 2012 BCPC 107

Citation: Wood v. Insurance Corporation of B.C. Date: 20120301 2012 BCPC 0107 File No: 09-24987 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JAMES DALE WOOD CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Claimant: Aimee A. King Counsel for the Defendant: Jason Lattanzio Place of Hearing: Vancouver , B.C. Dates of Hearing: November 23, 24, 26, 30, December 1, 2010 Date of Judgment: March 1, 2012 INTRODUCTION [ 1 ] This case is about an indemnity dispute between the claimant, Mr.

Wood, and the defendant, Insurance Corporation of British Columbia (“ICBC”). Mr. Wood was insured through ICBC and now seeks indemnity for the loss of his motor vehicle. The loss of the motor vehicle arose out of a single vehicle accident that occurred on July 10, 2006 at approximately 3:30 a.m. in Langley, British Columbia. [ 2 ] ICBC denied indemnity to Mr. Wood for three reasons: 1. It alleged that Mr. Wood breached the contract of insurance because he was operating the motor vehicle while under the influence of intoxicating liquor to such an extent that he was incapable of proper control of the vehicle.

This was in contravention of the restriction or conditions imposed on Mr. Wood by s. 55(8) of the Regulations to the Insurance ( Motor Vehicle) Act , R.S.B.C. 1996, c. 231; 2. It alleged that Mr. Wood provided wilfully false statements contrary to s. 19 of the Insurance (Motor Vehicle) Act and that his claim under the contract of insurance was therefore invalid; and 3. It alleged that Mr. Wood failed to provide an accident report as required by s. 67 of the Motor Vehicle Act , R.S.B.C. 1996, c. 318. [ 3 ] ICBC counterclaims for damages against Mr.

Wood for payments it has made to third parties arising from the accident. However, the counterclaim will succeed or fail based on whether any one of the three breaches noted above is established or not. AGREED FACTS

[ 4 ] The parties agreed to the following facts: a. On July 10, 2006, Mr. Wood was driving a 2005 Ford F150 bearing VIN 1FTRX14WX5NA50437. (This will be referred to as “the vehicle” in these reasons.) He was involved in a single vehicle accident at the 6900 block of 264th Street, Langley, British Columbia; b. At all material times, Mr. Wood held an insurance policy with ICBC that provided for indemnity coverage in case of direct and accidental loss or damage to the vehicle (“the insurance contract”); c. Pursuant to the insurance contract, Mr.

Wood also had coverage for damage or loss suffered by third parties arising out of the accident; d. As a result of the accident, the vehicle was not repairable and was deemed to be a total loss by ICBC; e. The value of the vehicle at the time of the accident was $30,741.10; f. Mr. Wood has waived any claim regarding the vehicle over $25,000.00; g.

As a result of the accident, ICBC paid the following amounts to the following third parties: i. $542.50 to Fred Wein with respect to damage resulting to a fence located on his property at 5343 – 264 th Street in Aldergrove, B.C.; ii. $3,507.75 to British Columbia Hydro and Power Authority with respect to damage resulting to one of its hydro poles located in the vicinity of the accident; and iii. $270.86 to Clover Towing Ltd. for towing and storage of Mr. Wood’s vehicle following the accident. h.

Subject to the defences pleaded in the Amended Statement of Defence filed September 29, 2008, and the allegations in the Amended Reply filed November 9, 2010, ICBC is required to indemnify Mr. Wood for the loss of the vehicle and the payment of the above-noted expenses pursuant to the insurance contract. ISSUES [ 5 ] The issues raised in this case are: 1. Was Mr. Wood operating his vehicle while under the influence of intoxicating liquor to such an extent that he was incapable of proper control of his vehicle? In order to decide this issue the following questions must be answered: a. Did Mr.

Wood consume liquor? b. Was he under the influence of liquor when he operated the vehicle? c. Did Mr. Wood suffer a head injury as a result of the accident? d. Are the symptoms exhibited by Mr. Wood at the scene of the accident and at the hospital attributable to his head injury or to his alleged intoxication? e. Was Mr. Wood incapable of proper control of the vehicle? 2. Did Mr. Wood, make a wilfully false statement to ICBC with respect to his claim, particularly relating to: a. the times, places or locations Mr. Wood visited before the accident; b. Mr.

Wood’s denial regarding consuming alcohol before the accident and failing to tell ICBC about the correct amount of alcohol he had consumed before the accident; c. Mr. Wood’s assertion that he did not remember anything from the time he left his residence and on his way to get gas; d. Mr. Wood’s assertion that he was not charged with anything and that his licence was not taken away. 3. Did Mr. Wood breach s. 67 of the Motor Vehicle Act by failing to accurately report the accident to the police and by failing to furnish accurate information respecting the accident? DID MR.

WOOD OPERATE A VEHICLE WHILE INCAPABLE OF PROPER CONTROL? [ 6 ] As already noted, ICBC denied Mr. Wood’s indemnity claim , in part, because it concluded that Mr. Wood operated the vehicle while he was under the influence of liquor. ICBC also concluded that Mr. Wood’s intoxication was such that he was incapable of proper control of the vehicle. Mr. Wood’s position is that ICBC in unable to prove its conclusions on a balance of probabilities. He says that he sustained a head injury as a result of the accident which accounts for his behaviour and certain statements he made at the scene and at the

hospital. Mr. Wood also maintains that the head injury gave rise to memory problems. Therefore, he is unable to remember with precision some of the events leading to the accident. In particular he has no memory of what happened in the time period immediately leading up to the accident.

Summary of evidence presented at trial Events before accident [ 7 ] According to Mr. Wood, on July 9, 2006, he went to church in the morning and stayed there until approximately 1:00 p.m. He then went home, changed his clothes and left in his vehicle to go to Hemlock Valley. Mr. Wood testified that approximately 40 minutes to 1 hour into his drive to Hemlock Valley, he stopped for lunch at the Sasquatch Inn. He was at the Sasquatch Inn for about 35 to 40 minutes. While there he stopped at a beer store and bought a 4-pack of coolers. Mr.

Wood then drove to Hemlock Valley, which is about a 30 to 40 minute drive from the Sasquatch Inn. If those time estimates are correct, that would put Mr. Wood at Hemlock Valley at approximately 3:00 p.m. at the latest. [ 8 ] Mr. Wood recalled going to see his lot at Hemlock Valley. While in Hemlock Valley he recalled speaking to his neighbour, speaking to his realtor’s wife, and speaking to a few other people who were working at construction sites in the area. Mr.

Wood said he drank two coolers while at Hemlock Valley (one with a guy who was working on a foundation and one by himself on the way down the mountain). Mr. Wood did not know exactly how long he was at Hemlock Valley, but estimated he was there 2 to 3 hours. If this is correct, he would have left Hemlock Valley at approximately 6:00 p.m. at the latest. [ 9 ] Mr. Wood said he went from Hemlock Valley to Island 22, an area in Chilliwack where people fish and launch boats. He estimated the time he spent there as being 3 to 4 hours. According to that estimate he would have left Island 22 between 9 p.m. and 10 p.m.

He said he had a few conversations with people who were at Island 22. He recalled it was getting dark as he was leaving. Mr. Wood did not specifically recall leaving Island 22 and did not recall much of the drive home. What Mr. Wood described next is a particularly contentious issue between the parties. According to Mr. Wood, he does not have a continuous memory of what happened once he returned home from his drive to Hemlock Valley. His memories are fragments and not an unbroken chain of memory. Mr. Wood said he remembered arriving home and pulling up in front of his shed.

He did not go into the house because he thought he would not receive a warm reception from his wife because he had missed a BBQ dinner he was supposed to attend. Mr. Wood recalled sitting in front of his shed for a while. He did not know how long he was there. He thought he might have fallen asleep. Mr. Wood then recalled thinking he should get gas so he would not have to get it in the morning as the gas station is in the opposite direction from work. He recalled leaving his house and driving down 72 nd Avenue.

His last memory prior to the accident was stopping at a stop sign, which was about 1/4 to 1/2 a mile from the accident site. [ 10 ] Mrs. Wood also testified about that day. She did not recall that day very clearly. She did not recall going to church. Her recollection of that day began in the afternoon when she spoke to her husband on the telephone . Mrs. Wood believed she spoke to her husband maybe around 3:00 p.m. In cross-examination she said it may have been between 3:00 and 4:00 p.m., when she got out of a movie she had gone to see with her daughter.

It was not clear from her evidence who initiated the call but Mr. Wood’s cell phone records indicate a call at 3:10 p.m. to her cell phone number and a call at 3:41 p.m. to Mrs. Wood’s home phone number and at 3:42 p.m. to her cell number. She told Mr. Wood they would be eating between 5:30 and 6:00 p.m. and that her niece was going to be there for dinner. Mr. Wood told her he was going to be going up to Hemlock Valley. In cross-examination she confirmed that Mr. Wood told her he was going up to Hemlock Valley and not that he was in Hemlock Valley. [ 11 ] Mrs. Wood said Mr. Wood did not make it home for dinner.

She tried to get ahold of him but there was no answer. She went to bed between 11:00 p.m. and 12:00 a.m. Mr. Wood had not arrived home by the time she went to bed, neither had she spoken to him. She was awoken at some point because the dog was barking. She thought it might be her husband but no one came into the house. The accident [ 12 ] Mr. Wood testified he had no recollection of the accident itself. His next memory, which is also a fragment and not an unbroken chain of memory, was that he briefly spoke to a paramedic while in an ambulance on the Port Mann Bridge.

Accident Investigation [ 13 ] Constable Sallis was the investigating officer. He was at the scene of the accident and later accompanied Mr. Wood to hospital. At the time he investigated the accident he had been a police officer approximately 2 ½ years. The call about the accident came in at 3:30 a.m. and he arrived at the scene at approximately 3:50 a.m. He was the first police officer to arrive. The firefighters were already there and were assisting Mr. Wood up an embankment. Mr. Wood was staggering but Constable Sallis could not say if this was due to the accident or impairment. Mr.

Wood appeared to be injured and the firefighters were administering first aid. Constable Sallis did not speak to Mr. Wood at that point. He left the scene of the accident to search the area because Mr. Wood had told one of the firefighters there had been two men in the box of the truck. Mr. Wood repeated that statement in the presence of Constable Sallis. Mr. Wood said two friends of his were in the box of the truck at the time of the accident and had flown out. [ 14 ] Constable Sallis left the scene of the accident to patrol the area to try to locate the two men .

He called for additional police officers and a police dog team to assist in searching for the men. Another officer also left the scene of the accident with Constable Sallis to search for the two men. In total there were approximately 12 police officers, which included two dog teams, who searched the area to try to find the two men. No men were ever found. [ 15 ] Constable Sallis left the scene of the accident at 4:04 a.m. to accompany Mr. Wood to the hospital. He rode in the back of the ambulance with Mr. Wood. In addition, there was a paramedic who attended to Mr. Wood.

Constable Sallis said he was sitting 18 to 24 inches from Mr. Wood’s face. Initially Mr. Wood was wearing an oxygen mask. It was unclear what Mr. Wood was saying so the paramedic removed the mask.

[ 16 ] As Mr. Wood spoke to him and to the paramedic , Constable Sallis smelled a “strong, stale odour of alcohol” coming from Mr. Wood’s mouth. Constable Sallis said he also smelled the odour of alcohol from Mr. Wood’s clothing or body. Mr. Wood’s right eye was swollen shut. There was blood on both eyes ; one eye was red and watery. Mr. Wood’s speech was slurred. Mr. Wood made repeated comments, for example, he repeated several times that he had to go to church tomorrow. Constable Sallis read Mr. Wood his Charter rights. Mr. Wood said he understood. There was nothing to suggest he did not understand.

Constable Sallis asked Mr. Wood for a blood sample. Mr. Wood said he understood and refused to provide a blood sample. [ 17 ] Constable Sallis was present for and heard the conversation between Mr. Wood and the paramedic . Constable Sallis could not remember the questions that were asked by the paramedic but Mr. Wood was very clear in all his responses to the questions . The responses Mr. Wood provided were appropriate responses to the questions. [ 18 ] At approximately 4:25 a.m. the ambulance arrived at Royal Columbian Hospital. Mr. Wood was taken to the emergency department .

Constable Sallis was present and heard the discussion Mr. Wood had with the triage nurse. Mr. Wood kept telling the triage nurse to stitch him up and to let him go. He said that numerous times. The nurse asked Mr. Wood whether he had been drinking. Mr. Wood told the nurse he had consumed beer the day before and he had to shape up as he going to church in the morning. Mr. Wood told the nurse he drank “six beers”. He also told her that he had been in drug rehabilitation and was clean of drugs for the past 12 years. Mr.

Wood repeated that same comment to Constable Sallis. [ 19 ] In cross-examination Constable Sallis agreed there are animals in Langley but would not say there are many. He had not heard of any accident , near the scene of Mr. Wood’s accident , which involved animals and a car. He acknowledged there was a deer sign posted at the last S curve before the river. This, he said, was north of the 6900 block where the accident occurred. Constable Sallis said while he was investigating whether Mr. Wood was impaired he was also collecting evidence regarding the accident and the cause of the accident.

It has not been determined what caused the accident. He was asked whether it was possible that an animal caused the accident and he answered: “Yes”. [ 20 ] Constable Sallis was asked about the comments he overheard Mr. Wood make to the triage nurse. Constable Sallis agreed that , although Mr. Wood said he had been drinking beer , h e did not specify when he had been drinking it. Similarly, although he heard Mr. Wood say he had drank six beers, Mr. Wood did not say when he drank those beers. Those were the only two statements he heard Mr. Wood make regarding alcohol consumption.

Constable Sallis agreed he heard part of a conversation between the doctor at Royal Columbian Hospital and Mr. Wood. He acknowledged he heard Mr.

Wood say that he did not know what day of the week it was. [ 21 ] Constable Sallis was asked whether he agreed that the following symptoms are symptoms of a head injury: confusion, inability to recall what happened just before and after an injury, repetitive questioning, irritability, uncooperativeness and combativeness, incoherent speech, inability to answer questions or follow commands, headaches, balance problems, dizziness, fatigue, restlessness, and loss of consciousness.

Constable Sallis agreed all those symptoms are symptoms of a head injury. [ 22 ] Constable Sallis was questioned about his observation that Mr. Wood’s eyes were red. He said the right eye was swollen shut but the other eye was red and watery. He agreed an airbag had deployed in the vehicle and when an airbag deploys a powder is released. Constable Sallis could not comment on whether that powder causes irritation to the eyes. He is now on traffic duty. He has not heard of anyone complaining of irritation because of deployment of an airbag. Constable Sallis agreed he saw blood around both of Mr. Wood’s eyes.

He was asked whether this could make the eyes look red. Constable Sallis said it was possible. However, when he referred to Mr. Wood’s eyes being red, he was referring to the white of the eyes. He said the veins were sticking out and were more predominant. [ 23 ] Constable Sallis was asked about the difference between his testimony and what he wrote in the Report to Superintendent. In his testimony and in the report to Crown counsel, Constable Sallis said he noted the strong, stale odour of alcohol from Mr. Wood’s breath. However, in the Report to Superintendent, he checked a

section of a pre-printed form which indicated the odour on the breath was “faint”. Constable Sallis first smelled the odour on Mr. Wood’s breath when he was in the ambulance and there the smell was strong. However, at the time he filled in the Report to Superintendent, Mr. Wood had passed by him in the hospital and the odour at that point in time was faint, so he completed the form accordingly.

Constable Sallis agreed that even if a person had one or two beers, there would still be a smell of alcohol on the breath. [ 24 ] Constable Sallis also agreed that in the Report to Superintendent he wrote that the admission of alcohol consumption had been on “Sunday evening”. He acknowledged that Mr. Wood had not said when he had consumed alcohol. Constable Sallis said the admission of consumption was not made directly to him. However, he noted he could smell the strong, stale smell of alcohol on Mr. Wood’s breath. Given his training, Constable Sallis did not believe this was a mere assumption.

However, when pressed Constable Sallis agreed he could not say with certainty that Mr. Wood had consumed alcohol Sunday evening. [ 25 ] Mr. Potts, a firefighter with the Township of Langley, was one of the firefighters dispatched to the scene of the accident. On that call he was responsible for assisting the first aid attendant. When he arrived he did not believe a paramedic was at the scene. However, it was so long ago that he did not remember specifics. In particular, he was guessing at what had happened in his dealings with Mr. Wood. He did not get that close to Mr. Wood.

The closest he got was about three feet. He did not even recall if he had immobilised Mr. Wood’s neck or if his partner had done so. He did not recall if Mr. Wood smelled of alcohol. He did not recall the length of his interaction with Mr. Wood. He gave a statement to the police which was audio-recorded but he had not reviewed it since the previous year when he had been interviewed by a private investigator. He remembered Mr. Wood saying he had a twenty-sixer but he did not remember smelling anything on him. [ 26 ] Mr. Potts was asked to review a statement he provided at the time.

He indicated he had forgotten a lot. He noted that in his statement he wrote Mr. Wood had admitted to drinking two twenty-sixers of alcohol. In his statement to police, Mr. Potts said, there was no smell of alcohol, that he could smell, at the time. [ 27 ] In cross-examination Mr. Potts said his focus at the scene was safety and initial first aid. He was not there to investigate how the accident occurred. He confirmed the closest he got to Mr. Wood was about three feet. Mr. Potts did not recall a conversation with Mr.

Wood, although he did remember the mention of the twenty-sixer. Mr. Potts did not recall if Mr. Wood was making sense. However, he thought Mr. Wood was speaking fine. There was nothing that stuck in his memory. He said, if Mr. Wood was talking gobbledygook, he would remember that. He was not there to investigate if Mr. Wood had been drinking or how the accident occurred. [ 28 ] Mr. Thornburn is a full-time paramedic who attended at the accident scene on July 10, 2006. He is trained to look for indications of a head injury.

He is familiar with the indicia of a head injury and is also familiar with the indicia of impairment. He said there could be an overlap between the symptoms for intoxication and symptoms for a head injury. His duty is to look after patients. He does not make a diagnosis. Part of his duty is to gather information at the scene of the accident. In doing so he tries to be as detailed as possible. [ 29 ] Mr. Thornburn’s independent recollection of that evening was that he attended at the scene of a motor vehicle accident in the early morning. The vehicle, a truck, was in the ditch.

The patient was assessed and taken to Royal Columbian Hospital. The patient, Mr. Wood, had a suspected significant abdominal injury. The crew report he prepared indicates that Mr. Wood had pain in the abdomen and by the time they arrived at the hospital his abdomen was enlarged. This indicated to Mr. Thornburn that there was internal bleeding. Mr. Thornburn did not recall having a conversation with Mr. Wood. His crew report indicated that he arrived at the scene at 3:45 and left at 4:00 a.m. [ 30 ] Mr. Thornburn relied on what he had written in the crew report.

He did not recall the specifics of the accident or the accident scene. He prepared the crew report likely while in transit. It could not have been later than when he drove away from the hospital because a copy of the report must be left at the hospital. The crew report is a one page, pre-printed form. [ 31 ] Mr. Thornburn checked Mr. Wood for vital signs. He applied an oxygen mask, immobilized Mr. Wood’s neck, and treated lacerations. Mr. Thornburn was asked about specific entries he had made on the crew report.

Under “mechanism of injury” (Box 52) he noted that the patient was suspected of being the driver but the patient did not recall. This would have been what the patient told him. In relation to vital signs, he noted that Mr. Wood’s blood pressure was elevated. That could be an indication of a head injury, or stress or pain or high blood pressure. It could also be an indication of a cardiovascular event, for example, congestive heart failure. He was asked whether it could be an indication of intoxication. Mr. Thornburn replied he was not qualified to explain how intoxication would affect vital signs.

He did not feel he could give an accurate response to that question. [ 32 ] Part of the crew report referred to a “coma score” (Box 57). Mr. Thornburn said the coma score is a tool designed to determine severity of a head injury. He uses this routinely as a level-of-consciousness indicator. There are three aspects to that assessment: E for eye opening, V for verbal response, M for motor response. He assessed Mr. Wood as four out of four on the eye opening. His eyes spontaneously opened. This is a normal response. His assessment of Mr. Wood’s verbal response was four out of five. Five is normal.

The reason he assessed Mr. Wood as being four out of five on the verbal response was because Mr. Wood was confused. He was asked what Mr. Wood was confused about. Mr. Thornburn looked at the form and said Mr. Wood would have stated he did not recall being the driver. Mr. Thornburn could not say what else Mr. Wood might have said that caused him to reach that conclusion. He said the number he assigned was a judgment call. In this case, the fact Mr. Wood could not remember if he was driving was enough to give him a four out of five. On the motor response, he assessed Mr.

Wood as six out of six, which is a normal score. Mr. Thornburn was asked what the score 14 out of 15 means. He said 14 out of 15 is not normal. Mr. Thornburn said the score is not exclusive to head injuries. [ 33 ] Box 58 of the crew report deals with the examination conducted by the paramedic. In this case Mr. Thornburn wrote that the state of consciousness was confused. There were lacerations to the upper outside of each eye. He noted there was minimal blood loss. Mr.

Thornburn wrote than the patient was found standing at the roadside, unclear timeline, the patient stated that he was standing on the road for 30 minutes. Mr. Thornburn also noted that the patient had an unknown amount of liquor and beer and denied drug use. Mr. Thornburn testified his notation “unclear timeline” was a possible indication of confusion. However, in this case, he could not recall the particular information he received that lead to that conclusion. Mr. Thornburn said he was speculating a little because the timing did not make sense given what Mr. Wood had told him. Mr.

Thornburn did not recall if Mr. Wood smelled of liquor or not. If Mr. Thornburn had smelled liquor he would have written it down. He stood within several feet of Mr. Wood. He had put a collar on Mr. Wood’s neck but he does not get any closer to a patient than is necessary. [ 34 ] In cross-examination Mr. Thornburn said, if Mr. Wood had answered questions abnormally, he would have put that on the crew report. He acknowledged his impression was that Mr. Wood’s chief complaint was of abdominal injury and he so noted that in Box 51 of the crew report.

He acknowledged that some of the comments he wrote on the report were things he may have been told rather than things he had actually observed himself. [ 35 ] Mr. Thornburn was asked whether the information he received regarding Mr. Wood was that he had consumed an unknown amount of liquor and beer. He said: “Yes, it was”. He said Mr. Wood was not able to be clear about the amount. He did not recall if Mr. Wood had bloodshot eyes. Mr. Thornburn said he would have examined the head. He did a visual exam of the entire head looking for bumps, abnormalities and so on.

He would have recorded if there had been bumps or abnormalities. Mr. Thornburn said Mr. Wood’s eye laceration was not major. Mr. Thornburn agreed it was possible for a person who is intoxicated to have a lower than normal Glasgow Coma Scale score . It is also possible that intoxication would affect the verbal score. It could make a person seem confused. Mr. Thornburn was asked about the examination of Mr. Wood’s pupils. He said the examination showed they were normal. He agreed this is a diagnostic tool used in determining if a person has sustained a head injury. Mr.

Thornburn said, as a paramedic his role is not to do an investigation or to determine the cause of the accident. He is not able to declare if a person is intoxicated because he has no means of measuring that. Mr. Thornburn agreed that as part of his paramedic training he is taught to ask questions. He said if a person answered a question in a way that was not appropriate that would be recorded. Hospital Stay [ 36 ] Mr. Wood’s next memory after being in the ambulance was of a nurse or a female doctor stitching his eyes.

His next memory after that was being in the hospital while his wife, and her sister were visiting him. He recalled his daughter, Madisen Wood, visiting him as well. [ 37 ] Mr. Wood did not remember being discharged from the hospital. He testified that in the days after being discharged from the

hospital he felt disconnected from himself. He recalled going to visit his family physician, Dr. Waiz, in the days after the accident. He also recalled that Dr. Waiz advised him to take some time off work and prescribed some medication. Mr. Wood said he did not recall actually discussing the accident with Dr. Waiz. He recalled Mrs. Wood going to Dr. Waiz’s office with him and she did more talking than he did. Liquor consumed [ 38 ] Mr. Wood testified that the last time he drank alcohol, before the date of the accident, was one or two years previously.

He acknowledged that he had 4 drinking and driving convictions. The last one was in October 1988. He and his wife do not keep liquor in the house and he drinks rarely and infrequently. Mr. Wood said he went into a beer store at/near the Sasquatch Inn where he had lunch and bought a four-pack of coolers. He could not remember what brand of coolers he purchased. It was unusual for him to buy alcohol. It had been a long time since he had purchased alcohol. [ 39 ] Mr. Wood testified that while he was at Hemlock Valley, which he estimated was 2 or 3 hours, he drank two coolers.

One was with a man who was working on a foundation of a house being constructed at one of the lots in the area and the other was by himself on the way down the mountain. From there Mr. Wood went to Island 22. He said he did not have anything to drink while he was there. [ 40 ] The claimant’s wife, Mrs. Wood, testified that she was not aware of the fact that Mr. Wood had criminal convictions relating to alcohol. She said they keep absolutely no alcohol in the house. From time to time, when they go out, Mr. Wood might have a drink. However, it was not very often and few and far between. Mrs.

Wood said, in the two years prior to the July 2006 accident, Mr. Wood had four to five drinks over two or three different occasions. She said neither she nor Mr. Wood is big on drinking. [ 41 ] Mr. Wood made statements about the consumption of alcohol at the scene of the accident and at the hospital. Those statements are already set out in the

summary of evidence regarding the accident. He also made a statement to Dr. Waiz on July 13, 2006 which is set out in the

summary of Dr. Waiz’s evidence. Other post accident events [ 42 ] Mr. Wood recalled being served with the Notice of Driving Prohibition and contesting the notice. He testified that he was not charged with impaired driving until about January 2007. He was found not guilty of impaired driving but pled guilty to driving without due care and attention and paid an $800 fine. [ 43 ] Documents entered as exhibits indicate that Mr. Wood was served with a Notice of Driving Prohibition on July 13, 2006. Mr. Wood filed an application to review the driving prohibition on or about July 19, 2006.

On or about August 28, 2006, Mr. Wood was advised that his driving prohibition was revoked because the notice of prohibition was not served on him as required by law. [ 44 ] Mr. Wood was charged with impaired driving. On June 26, 2007, he pled guilty not to impaired driving but to the included offence of driving without due care and attention. He was fined $800 for that offence.

Head injury [ 45 ] The claimant says he suffered a head injury as a result of the accident and his behaviour and any conflicting statements he made at the scene of the accident and at the hospital were the result of his head injury and were not related to alcohol consumption. [ 46 ] Mr. Wood’s doctor is Dr. Waiz who is practicing as a family physician. However, he also worked on the staff at the emergency department of Langley Memorial Hospital for 12 years. Since that time he has worked five after-hours emergency shifts per month at the same hospital. He has diagnosed and treated patients with brain injury.

He has been Mr. Wood’s family doctor since 2003. He had only seen Mr. Wood on one occasion in November 2003 and did not see him again until 2006. [ 47 ] Dr. Waiz testified that he saw Mr. Wood in the office on July 13, 2006. At that point he became aware Mr. Wood had been injured. Dr. Waiz diagnosed Mr. Wood with multiple abrasions and contusions and a closed head injury. Dr. Waiz said he reached the diagnosis of a closed head injury taking into account the following: a. Mr. Wood had described a serious motor vehicle accident (hitting a pole, rolling in a vehicle and the airbag deploying); b. Mr.

Wood had described a period of amnesia prior to the accident as well as afterwards; c. Mr. Wood’s memory was not good; d. There were lacerations to his upper eyelids which suggested he hit his head. Dr. Waiz recorded in his clinical notes that Mr. Wood had been drinking alcohol on July 9, evening. [ 48 ] Dr. Waiz acknowledged he did not conduct any tests to check Mr. Wood’s complaints about memory. The information came from Mr. Wood. Dr. Waiz acknowledged that in his medical-legal report he noted that Mr. Wood remembered being in Chilliwack hours before the accident. The next thing Mr.

Wood remembered was talking to the police after the accident. He asked Mr. Wood what was the last thing he remembered before the accident and what he remembered after. Dr. Waiz did not specifically ask Mr. Wood about fragmented memory and did not ask him about other continuous memories after leaving Chilliwack. During that first visit Dr. Waiz prescribed medication that is sold under the names Lorazepam or Ativan. It helps reduce anxiety. Dr. Waiz advised Mr. Wood to rest, not work and not drive. [ 49 ] Dr. Waiz next saw Mr. Wood on July 17, 2006. He removed the sutures on Mr. Wood’s upper eyelids.

At that time Mr. Wood complained of poor memory, confusion, dizziness and double vision. Dr. Waiz maintained his diagnosis as before. Dr. Waiz’s medical- legal report indicates he next saw Mr. Wood again on July 21, 2006. At that point Mr. Wood had stopped taking Ativan. He was less

confused and had a better memory and no double vision, although he tired easily. After that he saw Mr. Wood on August 4, 2006, by which time Mr. Wood was back driving and planning to return to work. He was doing fairly well. [ 50 ] Dr. Waiz reviewed Dr. Prout’s medical-legal report and it did not change his opinion that Mr. Wood had sustained a closed head injury. [ 51 ] In cross-examination Dr. Waiz said he did not review any documentation when preparing his medical-legal report, except he imagined, his own clinical records.

In particular, he did not review any hospital records from Royal Columbian Hospital, the police report or the ambulance crew report. [ 52 ] Dr. Waiz was cross-examined about his own clinical records regarding Mr. Wood. He agreed there was nothing in Mr. Wood’s medical history relevant to the accident. Dr. Waiz did not recall if Mr. Wood attended the July 13, 2006, appointment alone or with his wife. Mr. Wood did not say how he got to the appointment. Dr. Waiz confirmed that Mr. Wood did not have a specific recollection of hitting the pole. Dr. Waiz assumed this was what other people had told Mr. Wood.

In a letter dated July 24, 2006, written at Mr. Wood’s request, Dr. Waiz wrote that Mr. Wood suffered a long period of pre and post traumatic amnesia. He acknowledged, however, that it was not in the notes he took at the time that Mr. Wood told him he had amnesia. Dr. Waiz said the comment about amnesia was his assumption. He also agreed that the only information he had about what happened came from Mr. Wood. He agreed he had no independent information to confirm what Mr. Wood told him. He agreed that, if the information he was given by Mr. Wood came from Mr. Wood himself, then Mr.

Wood did not have pre-accident amnesia. He assumed Mr. Wood could not recall that information and that it had come from others. Dr. Waiz acknowledged that his assessment that Mr. Wood’s short term memory was poor was based on the subjective information Mr. Wood provided him. Dr. Waiz did not verify that information. He took Mr. Wood at his word. [ 53 ] Dr. Waiz was asked about a statement in one of his notes that Mr. Wood’s wife noticed repeated questions. He was asked whether it was Mr. Wood who provided that information. Dr. Waiz said he could not recall. Dr. Waiz said he was not questioning Mr.

Wood’s veracity. He did not ask Mr. Wood what conversation he had with the police after the accident. Dr. Waiz acknowledged that the totality of the information he had available to him on July 13 was the information provided to him by Mr. Wood and recorded in his notes of July 13, 2006. [ 54 ] Dr. Waiz agreed that in his notes of July 13, 2006, he wrote that Mr. Wood was drinking on the evening of July 9. He did not ask how much Mr. Wood had consumed. Dr. Waiz wrote in his notes that Mr. Wood was having anxiety attacks. He agreed it is unusual for a person with a head injury to suffer anxiety. Dr.

Waiz agreed that an important consideration in diagnosing a head injury is information about what happened after the event. He also agreed that on July 13, 2006, when he made his diagnosis , he did not have that information. Dr. Waiz agreed that the only notations regarding cognitive dysfunction are reports of short term memory loss and amnesia (which was assumed) and Mrs. Wood’s noticing repeated questions by Mr. Wood. Dr. Waiz acknowledged that as of July 13, 2006, there was no objective evidence to suggest a brain injury. He agreed it was his practice to take his patients at face value.

He expects them to be truthful. [ 55 ] Dr. Waiz agreed that the possible side effects of Ativan can be drowsiness, dizziness, poor concentration and confusion. He agreed these are some of the same symptoms as the symptoms of a brain injury. He agreed that the effects of Ativan could mimic a brain injury. Dr. Waiz agreed he next saw Mr. Wood was on July 17, 2006. At that time Mr. Wood mentioned confusion to Dr. Waiz for the first time. At that point Mr. Wood was having symptoms that indicated a bad reaction to Ativan. [ 56 ] Dr. Waiz agreed that a CAT scan was taken of Mr. Wood.

A CAT scan is one tool used to determine if a person has suffered a head injury. The results of the CAT scan came back as normal. There was no evidence of bleeding, no evidence of bruising or contusion and no evidence of any trauma. [ 57 ] Dr. Alister Prout provided a medical-legal report at ICBC’s request and also gave evidence at trial. Dr. Prout is a qualified physician licensed to practice the specialty of neurology in the province of British Columbia. He is currently practising as a neurologist and in that capacity sees patients with neurologic problems. He is an active member of the staff at St.

Paul’s Hospital and has been since 1993. He is also on the consulting medical staff of the BC Women’s Hospital and has been since 1995. Dr. Prout also lectures medical students at the University of British Columbia and is involved in the coordination of undergraduate and post graduate teaching at St. Paul’s Hospital. [ 58 ] Dr. Prout reviewed a number of documents before preparing his medical-legal report. Those documents included: police records regarding the July 10, 2006 , accident, Dr. Waiz’s clinical records for Mr.

Wood, the BC Ambulance Service reports, MSP printouts, Pharmanet printouts, and the Royal Columbian Hospital clinical records for July 10, 2006, to July 31, 2006. Dr. Prout testified that his review of the Royal Columbian Hospital records showed that when Mr. Wood was seen by the emergency physician at Royal Columbian he was asked to remember some information and later asked to repeat it. This is a test done to determine whether or not the patient is capable of laying down new memories.

If the patient is able to lay down new memories that means the patient is no longer in the state of “anterograde” amnesia, (this refers to a loss of memory for the period following impact). Anterograde amnesia is also called post- traumatic amnesia. The test helps to define the length of post-traumatic amnesia after an injury. The clinical records from Royal Columbian Hospital indicated that Mr. Wood had a 3 out of 3 score on that short term memory test. Dr. Prout said that would indicate the bed side memory testing was “grossly normal”. [ 59 ] Dr.

Prout also noted that the Royal Columbian Hospital clinical records did not contain any mention of Mr. Wood raising concerns relating to a traumatic brain injury. He said if a patient has a significant traumatic brain injury, and especially if the patient is still symptomatic, that will be picked up by the emergency physicians or the triage nurses. If there is no mention in the clinical notes about a traumatic brain injury, it makes it less likely that there was a traumatic brain injury. Dr. Prout noted this did not exclude the possibility there was a brain injury but it made it less likely. [ 60 ] Dr.

Prout summarized what a doctor would typically look for in diagnosing a brain injury. He said a doctor would look for: the clinical history surrounding the actual accident, and in particular the history obtained from the patient; observations made of the patient at the scene of the accident by ambulance attendants or others; determining whether the patient had been seen to lose consciousness and

whether the person had been found to be abnormally conscious; and whether the patient goes on to develop symptoms that are consistent with post-concussion syndrome. [ 61 ] Dr. Prout testified that in circumstances where there is a brain injury the brain’s ability to lay down new memories is disrupted. The disruption occurs from the moment of impact until the patient recovers by laying down new memories. That period is the period of post-traumatic amnesia. Dr. Prout used the analogy of a computer hard drive.

An injury could affect the ability to write information to a hard drive but it would not necessarily disrupt what was already on the hard drive. In other words, the memories that are already in the brain up to point of impact would remain, whereas new memories would be susceptible to the effects of a brain injury. Dr. Prout said that post-traumatic amnesia is usually significantly longer than any retrograde amnesia ( loss of memory of events before the accident ). Dr. Prout testified that if the brain is disrupted badly enough a person could loose memories from before the incident.

However, that usually takes quite a significant traumatic brain injury. Dr. Prout testified that in his experience, in the absence of extenuating circumstances, he has never had a case where a person’s pre-accident memory loss is greater than his post-accident memory loss. [ 62 ] In Dr. Prout’s medical-legal report dated July 15, 2010 , Dr. Prout wrote that, it was possible Mr. Wood sustained some form of brain injury in the accident. However, it was far from certain. On balance, it was Dr. Prout’s conclusion, that it was possible Mr.

Wood sustained some degree of traumatic brain injury although the percentage likelihood was no more than 50 percent. At trial, it became clear that Dr. Prout’s opinion had been based on a much longer period of retrograde amnesia than the period testified to at trial by Mr. Wood. Dr. Prout was asked whether his opinion about the likelihood that Mr. Wood sustained any brain injury as a result of the accident would change if the pre-accident memory loss was only a matter of minutes. Dr. Prout said that did not change his opinion about the effects of a brain injury on pre and post accident memory.

A situation where the loss of memory before the accident was for a period of minutes is, according to Dr. Prout, more consistent with the effects of a brain injury than the prolonged loss of memory he had assumed when he wrote his report. Dr. Prout said the 4 minutes of retrograde amnesia he was told about as new evidence would be a little bit unusual if the post-traumatic amnesia was only in the order of minutes or less than an hour. If a person has post-accident amnesia of less than an hour, usually, there would be no significant pre-accident amnesia.

In other words, a person would usually recall the accident and would often also recall the moment of impact. [ 63 ] Dr. Prout was asked whether the assumption of a period of retrograde amnesia in the matter of minutes would affect his opinion as stated in his medical-legal report. Dr. Prout said: (

a) if the loss of memory for a matter of minutes is taken as true and, (

b) if there are no other extenuating circumstances such as discussed in his report (signs of intoxication, evidence of prior consumption of alcohol, loss of consciousness, and hospital records indicating indicia of traumatic brain injury) he believed it was more probable than not that Mr. Wood did suffer a mild traumatic brain injury. Dr. Prout confirmed, as noted in his report, that if there was a brain injury it would fall into the category of a mild traumatic brain injury.

He reached this conclusion based on: the assumption there was no loss of consciousness, the length of the post-traumatic amnesia, and the score on the Glasgow Coma Scale at the scene. Dr. Prout said, even if the description of the length of memory loss was altered, it was his view that the brain injury sustained, if any, would fall in the mild category. [ 64 ] Dr. Prout was asked his opinion about the scale of brain injury a patient would have to sustain in order to account for the symptoms being alleged by Mr. Wood, including significant memory loss and unusual behaviour at the scene of an accident.

In his report Dr. Prout wrote that the scale of brain injury one would need to sustain in order to account for significant memory loss, particularly memory loss prior to the accident as alleged by Mr. Wood, would need to be a moderate to severe brain injury. In regard to unusual behaviour, Dr. Prout wrote that unusual behaviour at the scene of an accident could be explained by a mild-traumatic brain injury but that would be unusual. At trial Dr. Prout was asked whether a mild-traumatic brain injury would cause a person to make a statement that he drank alcohol. Dr. Prout said that would be very unusual.

He was asked whether mild-traumatic brain injury would cause a person to make a statement that there were people in the back of the truck. He said it would not. [ 65 ] In his medical-legal report Dr. Prout commented on whether there was any other medical basis to explain Mr. Wood’s memory loss and/or unusual behaviour at the scene of the accident. Dr. Prout wrote that his answer to that question was based on a significant period of loss of memory before the accident. He wrote that alternative explanations for Mr.

Wood’s apparent memory loss and behaviour at the scene would primarily be the effects of drugs , alcohol or psychoactive medications. He noted there was no evidence that Mr. Wood had been using drugs or taking psychoactive medications. However, there was information in the records that suggested Mr. Wood had consumed alcohol before the accident. Dr. Prout wrote that a significant amount of alcohol consumption would result in abnormal behaviour at the scene of the accident and could also potentially result in a significant loss of memory for the period of time before the accident.

He wrote that the effects of alcohol, with respect to obliterating memories before an event, would be expected to be significantly more dramatic than the effects of mild brain trauma. He further wrote that a patient who is significantly intoxicated by alcohol will frequently loose significant periods of memory even in the order of hours. Such prolonged periods of memory loss would be most atypical during the period of time before impact in the case of traumatic brain injury, particularly where the traumatic brain injury is in the mild to moderate range. [ 66 ] Dr.

Prout was asked whether his opinion would change if there was not a significant period of loss of memory right before the accident. He responded that if there was not a significant period of loss of memory before the accident then the part of his report addressing that marked loss of memory before the accident and how that could be caused was by other factors, particularly alcohol, would not apply. [ 67 ] During cross-examination Dr. Prout was asked about loss of consciousness and the Glasgow Coma Scale.

He agreed that because it was not know how long it took for witness’ to arrive at the scene of the accident it could not be definitively ruled out that Mr. Wood did not loose consciousness. He also agreed it was possible that Mr. Wood’s Glasgow Coma Score was worse immediately after the accident than when he was assessed by the paramedic more than 15 minutes later. Dr. Prout said it was not likely that the Glasgow Coma Score would have been better immediately after the accident. However, Dr. Prout said that the Glasgow Coma Score taken immediately after impact is not the score used to classify a brain injury.

The score that is used is the score taken after the patient is stabilized. Dr. Prout noted that at the hospital Mr. Wood had a normal score, which by definition meant he was oriented. [ 68 ] During cross-examination Dr. Prout acknowledged the importance of history provided by family members about a patient’s symptoms after trauma. He agreed that, after emergency personnel, family are the one’s who see the patient after the trauma. Dr. Prout

was asked whether he agreed that if family members saw: confusion, memory problems, repetition, and other odd behavior in the days after the accident, that this would be consistent with a brain injury. He did not agree with that conclusion if those indicia were not present right after the brain injury. In other words, Dr. Prout said if Mr. Wood didn’t have those memory problems in emergency, if he wasn’t confused in emergency, the fact these symptoms were exhibited later on would not be consistent with the usual effects of a brain injury. Dr.

Prout said the fact that family members noted such symptoms did not mean the patient had a traumatic brain injury, if those symptoms were not present early on. [ 69 ] In cross-examination Dr. Prout was asked a series of questions about whether Mr. Wood would be considered “oriented” in certain circumstances. Dr. Prout said if Mr. Wood did not know what day of the week it was when he was in the emergency room he would not say that Mr. Wood was oriented. Further, if Mr. Wood though he had to go to church when he had already been to church, Dr. Prout said that Mr.

Wood could have been oriented but could have forgotten, so that could have been a memory issue. [ 70 ] Dr. Prout agreed that the test taken at the hospital, where Mr. Wood was asked to remember three members and then recite them, is a rudimentary test and that there are more sophisticated tests that give greater accuracy. Those tests were not carried out on Mr. Wood in the emergency room. [ 71 ] Dr.

Prout acknowledged what he wrote in his report regarding mild-traumatic brain injury, namely, that symptoms would typically be more significant during the first days after a mild traumatic brain injury and would decrease with the passage of time, usually lasting for a period of several weeks or, in more resistant cases, 3 to 6 months. In cross-examination he was asked whether a person would experience confusion for those weeks if that was one of the symptoms. He responded it would be less common to experience actual confusion for those weeks.

It would be more common to experience the subjective symptoms, particularly dizziness, lightheadedness, headaches, ringing in the ears, and concentration. He said that “frank confusion” would be very unusual in a concussion. Dr. Prout agreed that if a person was suffering from memory problems and if their symptoms lasted for several weeks, those memory problems could also last for the duration of those weeks. [ 72 ] In cross-examination Dr. Prout was asked about the statement in his medical-legal report that it was possible Mr.

Wood sustained some degree of traumatic brain injury but that the percentage likelihood was no more than 50 percent. He was asked whether he was saying that the possibility of Mr. Wood having suffered a brain injury was 50 percent. He said he was saying there was a 50 percent chance that Mr. Wood had suffered a brain injury. However, he was not saying that it was more likely than that. It was “equal odds”. He was not of the opinion that it was more likely than not that Mr. Wood had suffered a traumatic brain injury. Dr. Prout was asked whether or not he would agree that other factors may have caused Mr.

Wood’s symptoms and that the likelihood of that was also 50 percent. Dr. Prout responded by saying that if counsel was to turn that question around and say that Mr. Wood’s symptoms must be caused by something else he could say yes to that. He was asked whether it was his opinion there was a 50 percent chance that “It is due to a brain injury and a 50 percent chance that it is because of something else?” He asked counsel to clarify what “It” was. Counsel referred to the symptoms of confusion, the Glasgow Coma Score of 14/15, memory problems, repetition, forgetfulness, and the fact Mr. Wood had a blow to the head.

Dr. Prout said there is a big difference between the symptoms Mr. Wood subsequently had and the findings that were present at the accident – the reduced the Glasgow Coma Scale Score, the blow to the head, the lack of memory surrounding that. Those symptoms were explained on the basis of a traumatic brain injury, 50 percent, or possibly now, with the new evidence of Mr. Wood’s memory more than 50 percent. However, Dr. Prout was not saying that all Mr. Wood’s other problems can be attributed to the traumatic brain injury for the reasons he set out in his report.

Position of the Parties - Operating a vehicle while incapable of proper control [ 73 ] Mr. Wood submits that ICBC has failed to discharge its burden of proving, on a balance of probabilities, that he was under the influence of alcohol to such an extent as to be incapable of operating a motor vehicle. Mr. Wood also submits that he suffered a head injury arising from the accident and relies on the diagnoses of Dr. Waiz and the evidence of Constable Sallis, Mr. Thornburn, Mrs. Wood, and Ms. Wood. Mr. Wood acknowledges that he took Ativan as prescribed by Dr. Waiz.

He further acknowledges that it may be possible the Ativan exacerbated and created additional symptoms for him. However, Mr. Wood argues the evidence is clear that he suffered from memory loss and confusion before and after he discontinued the use of Ativan. Further, Mr. Wood submits that the evidence of the brain injury is supported by his symptoms in the days and weeks after the accident. This was long after the effects of any alcohol or Ativan would have continued to affect his cognitive functioning. [ 74 ] Mr. Wood additionally relies on the report prepared by Dr. Prout dated July 15, 2011. In that report Dr.

Prout stated that it is possible Mr. Wood sustained some degree of traumatic brain injury although the percentage likelihood of that having occurred was no more than 50 percent. Mr. Wood argues that because there is a 50 percent chance that he suffered a brain injury, the other 50 percent is attributable to other factors, such as intoxication. Accordingly, Mr. Wood submits that ICBC has failed to discharge its burden on a balance of probabilities which requires more than 50 percent. [ 75 ] Mr.

Wood submits that each of the symptoms of impairment relied on by ICBC to prove its case is equally explained by the injuries he sustained from the accident. Further, with respect to the confusion, speech problems and balance problems several witnesses, including Dr. Waiz and Dr. Prout, agreed these are also symptoms of a head injury. [ 76 ] Mr. Wood submits that the statements attributed to him to the effect that he had consumed: two – twenty sixers, six beer, only serve to highlight the confusion as a result of his head injury. Mr. Wood notes Dr. Waiz testified that if Mr.

Wood had drunk two – twenty sixers he would be dead. Moreover, Mr. Wood argues he made a number of statements that also did not make sense in the circumstance. He argues those statements suggest genuine confusion as opposed to an intentional attempt to hide the true amount of consumption. [ 77 ] With respect to the smell of alcohol testified to by Constable Sallis, Mr. Wood submits that evidence is not reliable. There is a clear contradiction in Constable Sallis’ evidence with respect to the strength of the alcohol he smelled. Constable Sallis’ explanation does not make sense. Moreover, Mr.

Wood points out , other witnesses at the scene did not smell alcohol on him. [ 78 ] Last but not least, Mr. Wood submits, aside from ICBC failing to discharge the burden on it regarding incapacity, he has shown

there was another possible cause of the accident, namely, animals on the roadway. Accordingly, Mr. Wood submits ICBC has not established that his negligence in causing the accident was solely caused by his alcohol consumption. [ 79 ] ICBC submits that Mr. Wood’s veracity with respect to this matter is in serious doubt. ICBC says Mr. Wood misled and failed to inform his family in regard to his consumption of alcohol and he has not been truthful with respect to his state of amnesia. Moreover, ICBC submits Mr.

Wood’s evidence, mainly his denial of drinking on the evening before the accident, was contradicted by his own expert, Dr. Waiz. ICBC points to Dr. Waiz’s testimony, records and notes which show that Mr. Wood’s assertion with regard to his alcohol consumption is not supported by Dr. Waiz. [ 80 ] ICBC submits Mr. Wood’s testimony that his memory has gotten better over time defies common sense. ICBC submits Mr.

Wood is not a credible witness and his evidence should be given little weight, especially his evidence with respect to his claim that he sustained a head injury. [ 81 ] ICBC submits there is ample evidence before the court to demonstrate that Mr. Wood was under the influence of alcohol at the time of the accident. Further ICBC submits there is also sufficient evidence to prove, on a balance of probabilities, that the accident would not have occurred but for Mr. Wood’s consumption of alcohol.

ICBC submits the factors which point to the consumption of alcohol should be considered in their totality and not individually. A consideration of the totality of factors establishes, on a balance of probabilities, that the accident occurred due to the consumption of alcohol and/or the impairment of Mr. Wood. ICBC argues no other plausible or logical reason has been provided to explain the single vehicle collision that Mr. Wood does not recall. ICBC acknowledges that Mr. Wood alleges his behaviour was due to a head injury. However, ICBC argues , a head injury does not explain how Mr.

Wood ended up in the ditch when he was driving a new vehicle, down a straight stretch of road, on a route that was familiar to him. With respect to the head injury alleged by Mr. Wood ICBC submits that there is no clear evidence to support Mr. Wood’s assertion that he sustained a head injury. [ 82 ] In the alternative ICBC argues, even if Mr. Wood sustained a head injury in the accident, this would not explain why he admitted to consuming alcohol unless it was true. ICBC points to Mr. Wood’s own evidence that he is not the type of person who would tell people he was drinking if it was not true.

As well, ICBC points to the evidence of Dr. Prout that there is not a significant possibility a mild traumatic brain injury would lead a person to make spontaneous utterances such as statements related to consumption of alcohol following a motor vehicle accident. [ 83 ] In

summary, ICBC submits there are serious credibility issues with Mr. Wood’s evidence. The testimony of the other witnesses and the medical evidence establish that Mr. Wood drove while under the influence of alcohol. Further ICBC submits there is sufficient evidence to demonstrate, on a balance of probabilities, that the accident would not have happened but for the consumption of alcohol. Applicable legal principles [ 84 ] Section 55(8)(

a) of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act , B.C. Reg. 447/83 provides that an insured shall be deemed to have breached a condition of s. 49,

Part 6 and

Part 9 where he is operating a vehicle while he is under the influence of intoxicating liquor or a drug or other intoxicating substance to such an extent that he is incapable of proper control of the vehicle. In these reasons I have used the term “liquor” and “alcohol” interchangeably. [ 85 ] There is no dispute between the parties about the applicable legal principles. I have summarized them below in point form: a.

The defendant, ICBC bears the onus of proving, on a balance of probabilities, that at the time of the accident, the claimant was under the influence of intoxicating liquor (or other substance set out in the regulations) to such an extent that he was incapable of proper control of his vehicle. b. Proof of impairment is not enough. ICBC must prove that the claimant’s state went beyond impairment to the point where he was incapable of driving properly. c. Proof of drinking and negligence by itself is not enough. d.

ICBC must establish, on a balance of probabilities, that the negligent acts were of such a nature and degree to be explainable only by the compelling inference that the influence of alcohol caused the negligent acts and that the effect of the alcohol was to render the defendant incapable of proper control. e.

In order to prove incapacity on a balance of probabilities ICBC may rely on a number of factors, including, but not limited to: i. observations of the impaired person by police officers or other parties; ii. evidence relating to interactions or conversations with the impaired person by medical personnel, police, etc.; iii. admissions regarding the amount of alcohol consumption; iv. evidence relating to the cause of the accident; and v. the impaired person’s ability to recall certain events or actions.

Analysis - Operating a vehicle while incapable of proper control [ 86 ] In analyzing this aspect of the case I will address the issues identified earlier in these reasons. Did Mr. Wood consume alcohol?

[ 87 ] In Mr. Wood’s evidence at trial and in his August 1 st statement to ICBC Mr. Wood acknowledges that he drank alcoholic beverages in the daytime the day before the early morning accident on July 10, 2006. In his August 1 st statement Mr. Wood stated that: “during the daytime I did have two beers, the evening I did not consume any alcohol at all.” [ 88 ] In his testimony at trial, Mr. Wood testified that on July 9, 2006, he left home at approximately 1:15 p.m. or so and drove to Hemlock Valley.

Before arriving at Hemlock Valley he stopped to have lunch at the Sasquatch Inn which was approximately a 40 minute to one hour drive from his home in Langley. He testified that he was at the Sasquatch Inn having lunch for about 35 to 40 minutes. Before proceeding to drive to Hemlock Valley, Mr. Wood stopped at a beer and wine store at or near the Sasquatch Inn and bought a four pack of coolers. Mr. Wood then drove to Hemlock Valley. The drive there was approximately 30 to 40 minutes from the Sasquatch Inn. If Mr. Wood’s recollection of time is correct that would put him at Hemlock Valley at 3:00 p.m. [ 89 ] Mr.

Wood testified that he drove around Hemlock Valley checking on a lot he owns there, speaking to a neighbour, speaking to his realtor’s wife and speaking to several other persons in the vicinity who were working on construction sites. Mr. Wood said that he had two coolers while at Hemlock Valley, the first one at a construction site; the second cooler on his way down the mountain. Mr. Wood said he didn’t know how long he was at Hemlock Valley but he estimated it was two or three hours.

As noted in the review of his evidence, if his estimate of time is correct he would have left Hemlock Valley at approximately 6:00 p.m. Mr. Wood denies drinking anything after leaving Hemlock Valley. [ 90 ] Before assessing the reliability of Mr. Wood’s recollection about what he consumed that day and how much he consumed, I will turn to other evidence led at trial that has a bearing on the determination of what Mr. Wood drank. Constable Sallis was the first police officer on the accident scene. He saw Mr. Wood staggering while a firefighter was trying to assist him up an embankment.

However, Constable Sallis could not say if this was due to the accident or impairment. Constable Sallis left the scene to search for two men who Mr. Wood said had been thrown from the box of his truck. When Constable Sallis returned, he accompanied Mr. Wood to the hospital and rode in the back of the ambulance. [ 91 ] Constable Sallis’ observations with respect to Mr. Wood’s condition were as follows: - There was a strong, stale odour of alcohol coming from Mr. Wood’s mouth; - He smelled the odour or liquor coming from Mr. Wood’s clothing or body; - One of Mr.

Wood’s eyes was swollen shut, the other eye was red and watery; - Mr. Wood’s speech was slurred; - Mr. Wood repeated comments, for example he said several times that he had to go to church tomorrow; - Mr. Wood’s answers to the paramedic were clear and the responses provided were appropriate responses to the questions asked; - At Royal Columbian Hospital Constable Sallis heard the nurse asking Mr. Wood whether he had been drinking. He also heard Mr. Wood tell the nurse that he had consumed beer the day before. Mr. Wood told the nurse told the nurse he drank six beer. [ 92 ] Mr.

Potts, a firefighter who was at the scene testified that he remembered Mr. Woods saying he had a twenty-sixer but he did not remember smelling anything on him. After reviewing the statement he provided at the time Mr. Potts testified that in that report he wrote that Mr. Wood had admitted drinking two twenty-sixers of alcohol. Mr. Potts said, to his recollection, Mr. Wood was speaking fine. He said he was not there to investigate if Mr. Wood was drinking or how the accident occurred. [ 93 ] Mr.

Thornburn, a full-time paramedic relied on what he had written in the ambulance crew report he prepared at the time he attended at the scene of the accident or close thereto. In that report he wrote that Mr. Wood’s state of consciousness was confused. He also noted that the patient had an unknown amount of liquor and beer and denied drug use. Mr. Thornburn did not recall if Mr. Wood smelled of alcohol or not. He said that if Mr. Wood had smelled of liquor he would have written it down. Mr. Thornburn testified that as a paramedic his role is not to do an investigation or to determine the cause of the accident.

He was not able to declare if a person is intoxicated because he has no means of measuring that. [ 94 ] Mr. Wood saw his family doctor, Dr. Waiz, on July 13 , 2006. Dr. Waiz’s clinical notes of that visit record that Mr. Wood was drinking “July 9 th evening” and he denied problems with alcohol. [ 95 ] The above-noted evidence makes it clear that Mr. Wood did consume alcohol at some point before the accident. The questions that remain are: when he consumed the alcohol and the amount of alcohol consumed. Before I address those questions I must determine whether Mr.

Wood suffered a head injury as a result of the accident and whether the symptoms exhibited by Mr. Wood at the scene of the accident and at the hospital could be attributed to his head injury. Did Mr. Wood suffer a head injury as a result of the accident? [ 96 ] The assessment of the credibility of Mr. Wood is a key issue in this case. The diagnosis of a head injury depends in large measure on the truthfulness, accuracy and reliability of Mr.

Wood’s description of his symptoms, in particular his description of the nature and timing of memory loss both pre and post-accident. [ 97 ] The initial diagnosis of a head injury was made by Dr. Waiz, Mr. Wood’s family doctor. He relied exclusively on Mr. Wood’s subjective accounts of the accident and his symptoms not only in reaching a diagnosis but also in the preparation of his medical-legal report. Additionally, Dr. Prout, albeit to a lesser degree, also relied on information provided by Mr. Wood. Accordingly, my findings

about the truthfulness, accuracy, and reliability of Mr. Wood’s evidence regarding his symptoms and his memory loss may well affectthe weight I place on the medical evidence I heard at trial. [98] In undertaking an assessment of Mr. Wood’s credibility I am mindful of the comments made in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) that the court must consider the truth of the story of a witness in the context of thesurrounding circumstances and “the preponderance of probabilities that rationally emerge out of all the evidence in the case”. As notedin Gilbert v. Bottle 2011 BCSC 1389 , [2011] B.C.J.

No. 1931 (BCSC) I am also mindful that truthfulness and reliability are notnecessarily synonymous. A witness may sincerely attempt to be truthful, but lack the perceptive, recall or narrative capacity to providereliable testimony. [99] In Faryna v. Chorny Mr. Justice O’ Halloran observed that; The credibility of interested witness’, particularly in cases of conflict evidence, cannot be gauged solely by the test of whether thepersonal demeanor of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. (see page 357) [100] The factors to be considered when assessing credibility were recently summarized by Dillon J. in Bradshaw v.

Stenner, 2010BCSC 1398 at para. 186 as follows: Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R. 452,50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity to observeevents, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidenceharmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and thedemeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont.H.C.); Farnya v.

Chorny, (BC CA),[1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; [sic] R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as awhole and shown to be in existence at the time. (Farnya at para. 356) [sic] [101] Generally I have grave reservations about the accuracy and reliability of Mr. Wood’s evidence at trial. He was not a particularlycareful witness. At times it appeared he was being evasive.

In numerous instances, particularly in cross-examination, he convenientlyrelied on loss of memory to avoid answering questions that might be damaging to his case. However, his memory improvedconsiderably when it came to details that might assist his case. As well he purported not to understand questions that were notparticularly complicated. His evidence in regard to certain questions and answers at trial was different from the evidence he had given atdiscovery. [102] Mr.

Wood also maintained that his memory and recollection of the events leading to the accident and post-accident is better nowthan it was at the time of the accident. That assertion defies common sense and his own evidence regarding the nature and extent of hismemory loss. As discussed below, it is also contrary to medical evidence I have accepted regarding the effect of a head injury onmemory. Moreover, it was clear that to the extent there was any “improvement” in Mr.

Wood’s recollection it was the result of Mr.Wood being provided with additional information from other people and from documents received in the course of this litigation andfrom his participation in pre-trial proceedings including discoveries. [103] Mr. Wood’s evidence about his drive to Hemlock Valley and what he did that afternoon and evening is fraught with difficulties. a. There is no reasonable explanation about why he bought coolers on the way to Hemlock Valley. The last time he claims to haveconsumed alcohol was one or two years before the accident. He and his wife also maintain that he rarely drinks.

Yet he would have thiscourt believe that, out of the blue, while out alone on a Sunday drive he decided to buy alcohol. b. Why did he drink when he knew he would be driving? Mr. Wood had 4 dated convictions related to drinking and driving so heobviously knew first hand the serious consequences that can flow from drinking and driving. His wife’s and daughter’s testimony wasthat his actions were apparently completely out of character. His daughter said Mr. Wood almost never drinks. She had never seen himconsume alcohol. He did not condone drinking.

His own evidence in cross-examination is that he attempted to limit alcohol because hedid not like the effects alcohol had on him. Accordingly his stated behaviour that day is not consistent with the picture he and his familypaint of him. c. His estimate of time frames is not reliable. It appeared he was guessing. He gave evidence about what he did at Hemlock for 3hours. However, his evidence regarding the 3 to 4 hours he said he spent at Island 22 is unconvincing.

More important is the absence ofany reasonable explanation regarding what he did between 9 or 10 p.m., when he says he left Island 22, and the time of the accident atapproximately 3:30 a.m. d. His wife and daughter both testified there was going to be a barbeque dinner with the family and a niece. Mr. Wood testified thathe parked in front of the shed when he returned home in the early morning hours. He did not go in because he would not receive a warmreception as a result of missing the barbeque. Mr. Wood was described as a devoted father who spent time with his family.

Theevidence suggests the actions he described that day, particularly after leaving Hemlock Valley, simply don’t accord with common sense. The circumstantial evidence suggests something more was going on than Mr. Wood simply taking a Sunday drive. The evidencesuggests there was something amiss. e. My conclusion in this regard is supported by Mrs. Wood’s reaction to the situation. Her evidence is that she last spoke to Mr.Wood between 3 p.m. and 4 p.m. on July 9. She also tried to get hold of him later but there was no answer. Mrs. Wood also testified itwas unusual for Mr.

Wood to be out past midnight on a Saturday night. Yet before going to bed she made no effort to contact him.

Even more telling is the fact that when she go up on Monday morning and found her husband was not home she did nothing. The significance of the above noted points is that they lead to the inference that neither Mr. Wood nor Mrs. Wood was candid aboutwhat happened that day. This lack of candour raises doubts about the reliability of their testimony. I want to emphasize that the abovenoted points are merely examples of some of the aspects of Mr. Wood’s testimony which made me question his version of events.

Myconclusion about his credibility and reliability, however, is based on the cumulative effect of his testimony and a consideration of howhis testimony fits into the general picture revealed by a consideration of the case as a whole, see: R. v. Beland, (SCC),[1987] 2 S.C.R. 398. [104] I now turn to the medical evidence. Dr. Waiz, Mr. Wood’s family doctor, provided a medical-legal opinion and also testified atthe trial. He first saw Mr. Wood in his office on July 13, 2006. At that time, based on information he received during that visit hediagnosed Mr. Wood with a closed head injury. Dr.

Waiz said he reached that conclusion because Mr. Wood had described a seriousmotor vehicle accident, Mr. Wood had described a period of amnesia before the accident as well as afterwards, Mr. Wood reported hismemory was not good, and there were lacerations to his upper eyelids which suggested he hit his head. It is clear from Dr. Waiz’sevidence that Dr. Waiz did not review any documentation relating to the accident or treatment received by Mr. Wood post-accident whenpreparing his medical-legal report. He relied on his own clinical records. Moreover, Dr.

Waiz acknowledged the only information hehad about what happened at the time of the accident came from Mr. Wood. He also acknowledged his assessment that Mr. Wood’s shortterm memory was poor was based on subjective information provided by Mr. Wood. Dr. Waiz said he did not verify that information buttook Mr. Wood at his word. Dr. Waiz acknowledged that the totality of the information he had available to him on July 13, 2006, wasthe information provided by Mr. Wood and recorded in his notes of July 13, 2006. [105] Dr. Waiz wrote in his notes of July 13, 2006, that Mr. Wood was having anxiety attacks.

He agreed it was unusual for a personwith a head injury to suffer anxiety. Dr. Waiz also agreed that an important consideration in diagnosing a head injury is informationabout what happened after the event. He agreed that when he made his diagnosis on July 13, 2006, he did not have that information. Dr.Waiz acknowledged the only notations he had regarding cognitive dysfunction were reports of short term memory loss and amnesia,which he assumed, and the fact that Mrs. Wood had noticed Mr. Wood repeating questions. Dr.

Waiz acknowledged that as of July 13,2006, there was no objective evidence to suggest a brain injury. [106] One of the issues that arose regarding the visit to Dr. Waiz on July 13 was who provided the information to Dr. Waiz. Mr.Wood testified he did not remember discussing his injuries with Dr. Waiz when he went to see him after he had been discharged fromhospital. He thought his wife did most of the talking. Mr. Wood did not remember telling Dr. Waiz that he was the driver of a vehiclewhich hit a pole head on and then rolled. He did not recall telling Dr.

Waiz he was in Chilliwack hours before the accident and that thenext thing he remembered was talking to the police afterwards. Mr. Wood did not recall admitting to Dr. Waiz that he was drinkingalcohol on the evening of July 9, 2006. Mr. Wood was asked whether he denied that he could have said any of these things. Mr. Woodsaid he did deny it. But then modified his answer by saying he didn’t deny that he is capable of saying that but that he doesn’t rememberhaving any of that type of conversation with his doctor. [107] Mrs. Wood was asked about the visit to Dr. Waiz. She was at the first appointment with Mr.

Wood but did not recall the date. She was asked to review a

section of Dr. Waiz’s medical-legal report where Dr. Waiz set out information regarding the firstappointment. She was asked whether any of the information had come from her. She said no, it had not. She was asked whether all thatinformation would have come from her husband, she agreed it had. [108] In cross-examination Dr. Waiz was asked whether he agreed that if the information he was given on July 13, 2006, came fromMr. Wood then Mr. Wood did not have pre-accident amnesia. Dr. Waiz agreed. [109] Dr. Prout provided a medical-legal report and also testified at trial.

His medical-legal report was based on information that Mr.Wood asserted he had sustained a long period of retrograde amnesia. At trial, he was asked to review his opinion in light of newevidence given by Mr. Wood which suggested that the experience of retrograde amnesia was for a much shorter period of time thanoriginally stated. Dr. Prout sa

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