Link v. Clarke,


2008 BCSC 246

Date: 20080229
Docket: 37226
Registry: Kamloops


David Shane Link



Peter Clarke and Insurance Corporation of British Columbia


Before: The Honourable Mr. Justice Meiklem

Reasons for Judgment

Counsel for the Plaintiff

S.D. Dley, Q.C.

Counsel for the Defendant, Peter Clarke

G. Ginter

Counsel for the Defendant, Insurance Corporation of British Columbia

R.R. Cundari, Q.C.

Date and Place of Trial/Hearing:

December 3-7, 2007


Kamloops, B.C.


[1]                The issue in this trial is whether the plaintiff Mr. Link has proved that the negligence of Peter Clarke or an unknown driver, or both, caused a motor vehicle collision at approximately 7:40 p.m. on December 19, 2003 on Highway 97A, between Vernon and Armstrong.  Mr. Link suffered serious head injuries and has no recollection of how the accident occurred. 

[2]                The plaintiff’s theory is that he was one of several southbound motorists who were forced to swerve to avoid colliding head-on with an unknown northbound driver who was recklessly passing other cars.  Unlike the others who, by luck or extraordinary skill managed to avoid loss of control in avoiding a head-on collision, he theorizes that he was forced off the paved roadway onto an adjoining construction area and lost control or overcorrected and re-entered the southbound lane nearly perpendicular to oncoming traffic, where his car was immediately struck broadside on the driver’s side by a pickup truck driven by Mr. Clarke.  The plaintiff alleges Mr. Clarke was negligent in failing to see Mr. Link’s dilemma in time to avoid a collision, although his dilemma was apparent to most other witnesses. 

[3]                Counsel for the plaintiff acknowledges that some of the evidence is more confusing than helpful in reconstructing the accident. The court is faced with the task of trying to reconcile the conflicting testimony of several witnesses, including the defendant Peter Clarke, none of whom witnessed the entirety of the relevant events which took place on a dark winter night 4 years prior to trial. 

[4]                The defendant Mr. Clarke submits that the plaintiff has not proven any negligence on his part.  He was the dominant driver, travelling at or below the posted highway speed, when he was suddenly confronted by the plaintiff’s vehicle stopped or travelling slowly across his lane of travel in a manner that appeared to eye witnesses to be for the purposes of performing a U-turn.  He argues that the evidence suggests that the reckless unknown northbound driver had already passed through the straight stretch of highway visible to Mr. Clarke as he rounded a curve to the north of the accident scene, and it is unlikely that Mr. Clarke would have been able to see Mr. Link’s vehicle leave the road, because he was not yet around the curve when that happened.  As to Mr. Clarke not perceiving the plaintiff’s vehicle off in the construction zone prior to its return to the paved highway, the defendant Clarke relies on the evidence that Mr.  Link’s vehicle had stopped or was moving very slowly and pulled on to the highway perpendicularly.  Mr. Clarke also relies on expert evidence in respect of darkness, glare from oncoming headlights, and Mr. Clarke’s age.

[5]                The nominal defendant ICBC acknowledges that the unknown driver was driving negligently, but argues that the evidence does not establish that his driving was an effective cause of the accident, because Mr. Link was in a position of safety off the highway, perhaps even stopped as one witness said, and did not return to the highway while out of control.

[6]                I will summarize the evidence of the witnesses, not necessarily in the order that they testified at trial, and then move on to a discussion of the weight to be given to the testimony of various witnesses in the fact-finding analysis.

Patrick Kados

[7]                Patrick Kados, age 47, an experienced line-haul trucker, was driving a Mack truck northbound with a set of super B’s, hauling lumber from Lumby to Enderby, which is where he resided at the time.  He was driving at approximately 80 kilometres per hour, which was the posted speed.  He said that the road surface was dry and the traffic was quite steady in both directions, although not bumper to bumper.  On a fairly straight and level portion of the highway he observed a northbound car approximately 300 metres ahead of him that was pulling out and passing other northbound vehicles somewhat erratically. 

[8]                On the second or third such passing, he observed several oncoming southbound vehicles slow down and move over to the shoulder of the southbound lane to avoid the erratic northbound vehicle.  He thought at the time that the unknown driver was “crazy or impaired”.  He could not estimate how close the unknown driver came to the oncoming cars, but he said it was close enough that they were justified in swerving to avoid him.  He saw the unknown driver pull back in and carry on through the next curve.

[9]                Mr. Kados said that the lead vehicle of three southbound vehicles that had moved over to the shoulder came back onto the roadway at an angle nearly facing east and was struck, within a “split second”  by a southbound pick-up, later determined to be driven by the defendant, Peter Clarke.  The vehicle that was struck (the plaintiff’s vehicle) then came over into the northbound lane. 

[10]            Mr. Kados had lifted his foot from the fuel pedal when he saw the southbound vehicles swerving and then applied heavy breaking to avoid striking the plaintiff’s vehicle as it moved into the northbound lane in front of him.  He said that he braked before or at the same time as the plaintiff’s vehicle came back onto the road prior to being struck.  When asked how far off onto the shoulder of the road the plaintiff had travelled and for what distance, he estimated no more than the width of one lane and for a distance of perhaps 200 feet. He said that he could not recall any northbound vehicles between his and the plaintiff’s when it was struck and he was very close to it when he brought his vehicle to a stop.  In cross-examination he said that the plaintiff’s vehicle was struck nearly broadside, although it was pointing slightly south of due east.  He recalled thinking at the time that perhaps the plaintiff had been trying to make a u-turn.  He did not perceive the plaintiff’s vehicle to be out of control.

Constable Patrick Pyper

[11]            Constable Pyper is a 27 year member of the RCMP who had been stationed at Armstrong for over five years at the time of the accident and was very familiar with the area where the accident occurred.  He said that he travelled it three to five times in a ten hour shift.  The accident occurred on a straight stretch of the highway approximately 300 metres south of a slight turn to the left for southbound traffic.  Vision from the curve to the site of the motor vehicle accident would be unimpeded for southbound traffic.  On Constable Pyper’s arrival he found Mr. Clarke’s pickup parked in the southbound lane and the plaintiff’s car askew in the northbound lane at approximately 45 degrees facing north, with the rear corner of the vehicle just touching the centre line.  He did not take photographs or measurements at the time of the accident, but he described the construction area adjacent to the southbound lane as recently graded hardpan clay with large rocks and clumps of clay.  This construction area was 40 to 50 feet wide, level, and approximately four to eight inches below the level of the paved surface of the highway.  He said that it was driveable at slow speeds, although a vehicle would strike rocks and possibly be damaged.  He observed visible tire marks extend at an angle to a point 16 to 20 feet off the highway, and then turn perpendicular to the highway. He thought these may have been made by the plaintiff’s vehicle.  Constable Pyper said that Mr. Link was of no assistance as to what happened but Mr. Clarke told him that the plaintiff’s vehicle drove in front of him and he collided with it (I do not recall Mr. Clarke being cross-examined about this alleged statement.  His testimony at trial was that the vehicle was stationary and at an examination for discovery he had said that he could not tell if it was moving.)

[12]            Constable Pyper said that a couple of witnesses described a small dark vehicle passing erratically and forcing others off the road.  Constable Pyper was not able to see any skid marks behind the Clarke vehicle.  Constable Pyper’s evidence was that he believed that the roadway was wet, and he completed the police investigation report using code 02, for “wet”, to describe the roadway surface condition at the time.

[13]            In cross-examination by Mr. Cundari, Constable Pyper said that the tire tracks he observed in the construction area, which may possibly have been made by the plaintiff’s vehicle, came off the highway at about 30 degrees and came back onto the highway approximately where the plaintiff’s vehicle was.  He said that he observed nothing that would indicate that the plaintiff’s vehicle was out of control.  He completed the Traffic Accident Report with coding indicating contributing factors as driving without due care, inexperience and failing to yield right of way, all on the part of Mr. Link. 

[14]            Constable Pyper was present when Mr. Sdoutz, the plaintiff’s expert, attended the scene on January 30, 2004 and took photographs with the officer’s assistance from and about the location of the accident. 

Jane Clarke

[15]            Jane Clarke, age 84 at the time of trial, suffered a broken neck in the accident, from which she has fortunately recovered.  Her observations at the time of the accident were very limited.  She did not see where the plaintiff’s car came from and she did not see it lose control.  She first saw the plaintiff’s vehicle when it was broadside in the road in front of them, either stationary or moving very slowly, and she knew that they would have to crash because there was not enough time to stop.  She remembers watching as they approached, but she said that she did not know if she closed her eyes before impact.  She remembers hearing a crash and thinks that she may have blacked out briefly. 

The issue of the admissibility of Mrs. Clarke’s alleged description of the accident to Doctor Ballauf.

[16]            Mrs. Clarke was transported from the accident scene to Vernon Jubilee Hospital by ambulance where she was attended by Dr. Ballauf.  Dr. Ballauf’s emergency room assessment contains the following, under the heading of “History of Present Illness”:

This 80 year old female was a front seat passenger with the seat belt on in a vehicle that was travelling between 75 and 80 km/hr.  The vehicle ahead of it travelling in the same direction swerved to miss oncoming vehicle.  This vehicle lost control on rocks, swung in front of Mrs. Clarke’s vehicle causing them to T-bone the same vehicle on the driver’s side.  The patient did not lose consciousness and was brought by paramedics with C-spine precautions.  She is complaining of neck pain and pain in the distribution of her seat belt particular on the right neck and shoulder region.  She notes that it is uncomfortable to take a deep breath.  She did not lose any consciousness and denies hitting her head.  She notes that she has no numbness, no tingling and has normal strength to all four extremities.  She denies any abdominal pain or back pain. 

[17]            The plaintiff sought to have this evidence admitted as evidence of Mrs. Clarke’s description of the accident under the principled exception to the hearsay rule on the basis of its threshold reliability and the necessity of receiving it.  Mrs. Clarke’s evidence at trial was that she did not remember talking to an emergency room physician as she was lapsing in and out of consciousness.  She asserted that the ambulance attendants did not ask her how the motor vehicle accident took place or how fast their vehicle was going.  She asserted that she did not tell anyone the details of the motor vehicle accident that are set out in the excerpt from Dr. Ballauf’s emergency room assessment.

[18]            Dr. Ballauf testified that he had very little recall of dealing with Mrs. Clarke, although he remembered dealing with Mr. Clarke.  His regular habit is to obtain as much information as possible from the patient, but he also obtains information from other witnesses and sources.  He testified that portions of the reported paragraph that are sentences commencing with “She” are likely to be what Mrs. Clarke said, but that it is possible that the description of the accident did not come from her.

[19]            On all of this evidence I have no doubt that Mrs. Clarke spoke to Dr. Ballauf, but I am not able to find on a balance of probabilities that Dr. Ballauf’s summary of the accident emanated from Mrs. Clarke’s words.  In my view it is unlikely that the description contained in that paragraph emanated from Mrs. Clarke.  If I had been able to form the view that she had provided the description of the accident contained in the summary, I would agree with the plaintiff that the threshold test for admissibility based on the criteria of necessity and reliability would probably have been satisfied.

Peter Clarke

[20]            The defendant Peter Clarke, age 79 and retired, a resident of Oyama, was the driver of the three-quarter ton pickup that struck the plaintiff’s vehicle.  Mr. Clarke and his wife were returning from an overnight trip to Salmon Arm.  He said that as he approached the left-hand curve to the north of the straight stretch where the accident occurred he did not see any traffic in front of him and he does not remember traffic behind him.  There was no northbound traffic approaching until he turned the corner.  He said that that the road surface appeared very dark.  As he turned the corner he noticed the headlights of traffic approaching and as he continued, his headlights “became focused” on the plaintiff’s vehicle sitting stationary directly in his path.  The vehicle was crossways in the highway, with the driver’s side facing him and he observed the driving looking straight ahead.  He saw no lights visible on the plaintiff’s vehicle and he had seen no brake lights activated or turn signals activated as he approached the site of the collision. 

[21]            Mr. Clarke recalls applying his brakes, the front of his vehicle going down and the rear coming up and his wife exclaiming that they were going to hit.  He said that upon impact the front of his vehicle followed the plaintiff’s vehicle a short distance and then the vehicles separated and ended up four or five feet apart.  He later said that the plaintiff’s vehicle came to rest in the northbound lane, some 15 feet distance from his vehicle.  Shortly after the impact he said that other southbound vehicles went around his stationary vehicle by travelling on to the shoulder of the southbound lane. 

[22]            On cross-examination by counsel for the Insurance Corporation of British Columbia (“ICBC”) Mr. Clarke estimated that his vehicle travelled approximately three feet after the point of impact.  He clarified that he would estimate 15 feet from the front of his truck to the closest point of the plaintiff’s vehicle as the latter came to rest in the northbound lane. 

[23]            On cross-examination by counsel for the plaintiff, Mr. Clarke said that he would estimate the drop from the level of the paved shoulder to the excavated construction area adjacent to the shoulder was 18 to 22 inches.  When reminded of his examination for discovery evidence from February 2007 he adopted his answer then, which estimated a three foot drop.  He agreed that the location of the accident was approximately one kilometre from a road, which at the time of the examinations for discovery, he had estimated was two hundred metres away.  When asked about the distance from his vehicle and the plaintiff’s vehicle when he first saw it, he responded that it was the distance of his low beam headlights illuminating the highway, which is 120 to 150 feet.  When reminded that he had estimated 50 to 60 feet at the examination for discovery, he said that he had re-evaluated his estimate based on some experimentation that he had subsequently done at home.

[24]            Mr. Clarke was also cross-examined about his February 10, 2004 statement to ICBC about the accident.  He acknowledged that he had been wrong at that time in saying that he had met the vehicle across his lane “partway through the curve”, and when he had said in that statement that a rock face on the left meant you could not see through the curve, he did not intend to say that his vision ahead was obstructed. On details that he had no present recollection on, he asserted that his earlier statements, even those given at the examination for discovery in February, 2007, are probably accurate.

[25]            One of Mr. Clarke’s responses on examination for discovery was that Constable Pyper had told him at the scene that he could see his tire skid marks.  Mr. Clarke testified that he had no recollection of that but that his memory at the time of the examination in February 2007 was better than at trial. I am not sure whether or not he was impliedly adopting his earlier response.  His recollection at trial was that he had in fact skidded after braking, and if he said in his February 2004 statement that the length of his skid was 30 feet, he agreed with that.

[26]            One of the issues on the trial relevant to the reliability of certain factual matters contained in a doctor’s note was whether Mr. Clarke was present at all times when the doctor was speaking to his injured wife at the hospital.  Mr. Clarke asserted at trial that he was present when his wife was speaking to the doctor and he disagreed with his statement to the contrary at the examination for discovery.

[27]            The plaintiff raised the issue of the quality of Mr. Clarke’s eyesight.  Mr. Clarke had attended his ophthalmologist, Dr. Ruthnum, on December 11, 2003, approximately two weeks prior to the accident.  He said that he had asked the doctor to check the left eye because it did not seem as sharp as his right eye when he was reading or working in the shop.  It was recommended that he have a cataract removed and the operation to remove the cataract occurred in April 2004.  Mr. Clarke said that he did not believe that the cataract affected his ability to drive on the date of the accident.

[28]            When questioned about the possibility that plaintiff’s vehicle had re-entered the highway after being on the construction area off the shoulder, Mr. Clarke disagreed with that possibility on the basis that the plaintiff’s vehicle would have become high centred on the edge of the shoulder.  When questioned about his examination for discovery response that the vehicles behind him had passed his vehicle by “going down in the ditch”,  he said that it depends what you call the ditch, but they would have rolled or become stuck if they actually had gone off the edge of the shoulder into the construction area.

Dr.  Ruthnum

[29]            Dr. Ruthnum testified that he examines Mr. Clarke every six months for management of glaucoma.  Dr. Ruthnum recalled Mr. Clarke reporting on December 11, 2003 that the vision in his left eye was getting more blurry, but did not recall him relating it to reading.  Dr. Ruthnum did not recommend a change in Mr. Clarke’s existing prescription to correct far-sightedness in view of the pending cataract surgery, and did not give him any advice in respect of driving. 

[30]            Obviously the cataract that existed at the time of the accident would have reduced the acuity of Mr. Clarke’s night-time vision to some extent, but I am satisfied that it was not a significant factor in the accident, and certainly is not a component of any negligence on his part.

Steven Bond

[31]            Steven Bond, age 53, a resident of Kelowna was driving southbound immediately behind the defendant Clarke’s vehicle.  He describes the distance between them as the distance their vehicles would travel in two seconds.  He said that they were not driving over the posted 80 kilometer per hour speed limit.  He observed the brake lights on Mr. Clarke’s vehicle illuminate at about the same time he saw the plaintiff’s vehicle come from the side of the road and onto the road sideways.  He said that he first saw the vehicle coming off the shoulder of the road.  He was not able to recall whether he saw any headlights.  He said that he could only guess as to the distance between the Clarke vehicle and the plaintiff’s vehicle, that it was not enough distance for the Clarke vehicle to stop and he estimated that there was less than one second between the break lights illuminating and the impact occurring.

[32]            Mr. Bond was travelling in an informal convoy with two other motorists, Mr. Ross and Mr. Obst, who also testified.  

Norman Ross

[33]            Norman Ross, age 68, a resident of Kelowna, was travelling southbound from Armstrong.  He was directly ahead of Mr. Obst and they were both some undetermined distance in front of the Clarke and Bond vehicles.  He testified that he saw a set of headlights veering out of the oncoming traffic and into his lane at a distance of approximately 100 feet causing him to swerve to the right, to the extent that his vehicle was off the paved portion of the road by approximately one foot.  He believes that the oncoming, unknown vehicle was passing another northbound vehicle and he had just a “split second” to avoid a head-on collision, but he did not lose control of his vehicle.  He estimated that this manoeuvre took place approximately mid-way along the straight stretch south of the slight left turn.

Ernie Obst

[34]            Ernie Obst, age 74, also resident in Kelowna, confirmed he was driving directly behind Mr. Ross.  He is not sure how far ahead of Mr. Bond they were.  Whereas Mr. Bond and Mr. Ross described the roadway as wet, Mr. Obst described it as reasonably dry.  His recollection also differed from that of Mr. Ross in that he believed the unknown driver that swerved into the wrong lane was not passing another vehicle.  In fact, Mr. Obst said that he observed this driver in his rear view mirror and saw the tail lights disappear around the curve and over the crest of the hill and there were no other northbound vehicles to be confused with it.  Mr. Obst also observed another vehicle behind him veer, but pass safely.  Mr. Obst said that he was travelling approximately three or four seconds behind the Ross vehicle.  He did not have to violently swerve, although he certainly felt an adrenaline rush afterwards.  He said that there was no noticeable drop-off of the pavement to the construction area and when he veered to the right he was off the road with both his left side and right side wheels.  He estimated this manoeuvre was made approximately 200 metres south of the left hand curve.

Brad Hinz

[35]            Brad Hinz, age 39, a resident of Enderby, was driving northbound with his wife and daughter.  He was approximately 100 yards behind the truck driven by Mr. Kados and there was a car between his car and the Kados truck.  His observations were triggered by the truck braking about 100 yards in front of him.  He described the traffic as slow that night.  He observed a southbound vehicle pull off onto the shoulder, appear to stop for a couple of seconds, and then pull on to the highway perpendicular to the southbound traffic where it was immediately struck.  The location of the accident was about one quarter mile north of the highway’s intersection with L&A Cross Road.

[36]            Mr. Hinz has Level 3 first aid training and he stopped and approached the plaintiff’s car, observing the plaintiff to be slumped with his belt on and unconscious.  He then went to the pick-up driver, Mr. Clarke, who said that he was not injured, but his wife was “not good”.  He left Mr. Clarke with a note of his name and address and Mr. Hinz’s opinion that he thought the driver of the car that pulled on in front of Mr. Clarke was at fault.  On cross-examination Mr. Hinz stated that the traffic flow northbound was steady but there was a gap in the southbound traffic.  He clarified that he had seen the car as well as the headlights and that it appeared to have stopped parallel to the road and that he thought that it was making a u-turn.  He did not see any other southbound vehicles on the shoulder or veering and he thought that there was five to six seconds between the last prior southbound cars passing and the plaintiff’s car coming on to the highway.


Gerald Sdoutz

[37]            Mr. Sdoutz, a mechanical engineer, inspected both of the damaged vehicles one month following the accident and attended the scene of the accident on January 30, 2004, accompanied by Constable Pyper.  Based on various assumptions, which I will refer to in due course, Mr. Sdoutz came to the following conclusions:

1.         If the Clarke Chevrolet pickup was directly southbound at impact, then based on the damage profiles of the vehicles, the Link Oldsmobile was at an angle of about 20 degrees to the south of a directly eastbound heading at the time of the collision.

2.         Due to the collision, the Chevrolet pickup experienced a 31 km/h speed change and the Link Oldsmobile experienced a 44 km/h speed change.

3.         Based on the above vehicle impact orientations, speed changes and relative rest positions as per Cst. Pyper, it is estimated that the Chevrolet pickup was travelling at 76 km/h at impact and the Oldsmobile was travelling at 23 km/h at impact.

4.         If Mr. Clarke had perceived the Oldsmobile going out of control on the shoulder, and had initiated emergency braking at that time, he could have stopped his pickup prior to reaching the point of impact.  

[38]            Mr. Sdoutz’s assumptions included the following, amongst others:

(a)        The asphalt roadway of Highway 97A was dry at the time;

(b)        Immediately prior to the collision, Mr. Link was forced to swerve onto the gravel shoulder by an oncoming northbound motorist in his lane of traffic.  Due to this manoeuvre, Mr. Link apparently lost control of his vehicle and did not regain control of his vehicle prior to being struck by the Clark Chevrolet pickup.

[39]            Mr. Sdoutz’s report said the following about the stopping distance required by the Clarke vehicle, (page 6 of his report):

Assuming that the Chevrolet pickup was travelling at 75 to 80 km/h prior to the incident, the pickup could have been stopped on the dry asphalt roadway, utilizing a friction of 0.7, in 32 to 36 metres.  The driver of the pickup is assumed to have required time of 1.1 seconds in which to perceive that the Oldsmobile had gone out of control on the shoulder.  During that time, at a speed of 75 to 80 km/h, the pickup would have travelled a further 23 to 24 metres.  In total then, the pickup could have been brought to a halt in a space of about 55 to 60 metres.

[40]            I note that the only witness who testified that the road surface was dry was Mr. Kados.  Constable Pyper reported the roadway surface condition as wet in his traffic accident report and testified to that effect at trial.  Mr. Bond and Mr. Ross both testified that the road was wet.  Mr. Obst said that the road was bare and “reasonably dry” and Mr. Hinz had no recollection.  Mr. Clarke said that it had not been raining or snowing, but there was moisture on the road.  Thus, it cannot be said that the preponderance of evidence supports Mr. Sdoutz’s assumption of a dry asphalt surface.

[41]            Mr. Sdoutz’s assumption that Mr. Link lost control after swerving onto the gravel shoulder, and did not regain control, assumes an answer in the plaintiff’s favour on the most crucial factual question in this trial.  It is a question on which there is no direct evidence.

Kurt Ising

[42]            The nominal defendant ICBC retained Mr. Kurt W. Ising, professional engineer to prepare a collision reconstruction report in rebuttal of Mr. Sdoutz’s report.  Mr. Ising agreed with Mr. Sdoutz’s description of the impact engagement angles based on the assumptions used by Mr. Sdoutz but pointed out that he had no evidence that the Clarke vehicle was directly southbound at impact and Mr. Clarke may actually have attempted a steering evasion.  Mr. Ising calculated speed changes slightly lower than those presented by Mr. Sdoutz and rendered the opinion that given the uncertainty and impact conditions and arrest positions there is no unique solution which will match the calculated speed changes and impact speeds.  Impact speeds of 69 kilometres per hour for the Clarke pickup and 11 kilometres per hour for the Link Oldsmobile are also in the range of possibilities.  Finally, Mr. Ising opined that “Mr. Sdoutz’s assumption that the Oldsmobile was perceptible ‘going out of control on the shoulder’ is not likely given the dark conditions, the oncoming glare and Mr. Clarke’s age.  It is more likely that detection would not have been completed with sufficient distance available for avoidance.”

[43]            Mr. Ising’s rebuttal of Mr. Sdoutz’s report contained the following comments, at page 9-10:

As Mr. Sdoutz continued his avoidance analysis, he assumed that the Clarke vehicle was following two seconds behind the Link Oldsmobile.  Again, there is no technical guidance for this assumption.  Mr. Sdoutz has used it to show that there was sufficient space between the vehicles for Mr. Clarke to avoid impact.  However, if the timing between the vehicles was greater, there may have been no opportunity for Mr. Clarke to have seen the Link vehicle leave the road.  In their statements, neither Mr. Clarke nor the driver of the vehicle behind him note that they observed the phantom northbound vehicle whose passing manoeuvre lead Mr. Link off the road.  Thus, they were sufficiently behind Mr. Link to have allowed the phantom vehicle back into its own lane.

In summary, Mr. Sdoutz’s avoidance analysis has been completed as though this event occurred during the daytime with a clear hazard.  He has made numerous assumptions to define scenarios for which there is no information to guide us.

[44]            Mr. Ising also addressed Mr. Sdoutz’s calculations of stopping distance required.  If the friction coefficient for a wet surface is used and an allowance for brake lag is made, as required, Mr. Ising provides a braking distance of 40 to 52 metres where Mr. Sdoutz provides 32 to 36 metres.  Mr. Ising also provides the opinion that a perception time of 1.1 seconds is completely inappropriate in this case because that number is the 50th percentile of a range of .8 seconds to 1.7 seconds that applies to the perception/response time of 95% of drivers in respect of a clear central hazard during daytime.  Mr. Clarke’s age and the night time lighting conditions are significant factors according to Mr. Ising, at page 9 of his report:

In low light conditions, it is not possible to quantify the length of the detection phase of the PRT.  For example, a dark object may be within the driver’s field of view for a significant time before it exceeds the threshold required for detection.  Thus, Olson (1996) suggests removing this interval from the total PRT and considering the analysis once detection is complete.  We are then left with the problem of determining where detection could have been complete.  Unfortunately, in this case, it is not clear what the target would be.  If the rear of the Oldsmobile was directed toward Mr. Clarke, then its taillights may have been visible following a strange path on the side of the road.  If the Oldsmobile was sliding sideways, it may have had no lights facing Mr. Clarke.  In addition, it is unclear how far off the road the Oldsmobile went.

At night, our primary visual detection cue is luminance contrast, that is, how bright an object appears compared to its immediate surroundings.  Contrast is affected by the light level of the background (itself primarily affected by ambient light for far backgrounds, though near backgrounds such as the road surface in front of a target can be affected by headlights) and the light level of the target (affected by the ambient and vehicle lighting as well as the reflectivity of the target).

The amount of luminance contrast needed for detection by an individual depends on a number of factors: the target size, driver age, viewing time, driver expectation, oncoming glare, target motion, weather conditions, and the light level to which the driver’s eyes are adapted.  There will also be variation within the population of drivers as for any human performance characteristic.  Mr. Clarke’s age puts him at a disadvantage to younger drivers in terms of contrast sensitivity as this is reduced with age.

For general guidance, the distances at which older drivers (older than 65 years) detected white clad pedestrians on the right side of the road under various conditions can be considered (Olson and Sivak, 1983); these values have been corrected for expectation (Roper and Howard, 1938).  With no glare, the average detection distance was 30 metres.  With an oncoming headlight glare source 300 feet behind the pedestrian, the average detection distance was 18 metres.  The Link Oldsmobile would have presented a larger target but there were more oncoming glare sources and the Oldsmobile was likely further to the side than the pedestrian targets.  Thus, the possible detection distance in this case is unclear.  However, it is likely that the detection distance was shorter than the distance required to stop the vehicle.

The decision phase of the PRT could also be lengthened under this scenario.  I do not believe that emergency braking would be an immediately obvious response to a vehicle which may appear to be simply slowing on the shoulder (if it was detectable at all).

[45]            In response to questions from the court, Mr. Ising provided a calculation that, assuming the accuracy of Mr. Kados’ evidence that he applied heavy braking as soon as he saw the Link vehicle come back pointing eastward onto the road, it would have taken him 50 metres and 4.5 seconds to come to a stop.

Photographic and Physical Evidence

[46]            As I mentioned earlier, Mr. Sdoutz took photographs approximately five weeks after the accident at the location he was directed to by Constable Pyper.  The value of these photographs is limited to an extent because they depict the drop off to the construction area as much greater than it was on December 19, 2003, and they depict considerably more snow on the ground than there was on December 19, 2003.  They are useful however in depicting the sight lines that exist northward and southward from the location of the accident, as well as the width of the shoulder of the highway (depicted as wide enough to accommodate a car).

[47]            It is to be noted that Mr. Sdoutz’s report records Constable Pyper’s direction that the accident site was approximately 300 metres north of an intersection of the highway and L&A Cross Road.  Unfortunately, no one has ever measured the distance from the site he identified to Mr. Sdoutz to either point of reference. Constable Pyper’s testimony in cross-examination at trial repeated that the site was approximately 300 metres north of that intersection as well as approximately 300 metres south of the curve as he had said in-chief.  Constable Pyper’s estimation in this regard is a source of one of the apparent conflicts in the evidence, because Mr. Obst and Mr. Ross both spoke of encountering the erratic driver about the mid-point of the same straight stretch, and yet that obviously was some moments prior to the accident.  Mr. Ising’s report includes an aerial photograph of the relevant portion of the highway which depicts the intersection of the L&A Cross Road very near the southern end of the straight stretch or just slightly north of the southern end.  Mr. Ising determined that the straight stretch of highway in question was approximately 450 metres long, by reference to Ministry of Highways’ as-built drawings.  (This measurement is of the actual straight portion without considering sight lines through the circular portion of the curve.) 

[48]            (Mr. Ising also reports that whereas Constable Pyper reported a level highway, there was actually a 2.3% downgrade for southbound traffic.)

[49]            It is clearly not possible for the accident site to be 300 metres from the curve and also 300 metres from the L&A Cross Road intersection or the southern end of the straight stretch. If it was 300 metres from the latter it would only be 150 metres from the start of the curve.  It is readily apparent from the photographs as well as Mr. Sdoutz’s observations set out in his report that while straight, the highway grade is somewhat crested at the site of the accident. From my review, the cresting continues more markedly between the site and the curve to the north, than it does southward, and from the photographs.  

[50]            It appears from the photographs that the accident site was some distance north of the mid-point of the straight stretch.  This conclusion would be consistent with the testimony of Mr. Ross and Mr. Obst as to where they made their avoidance manoeuvres, as well as that of Mr. Hinz as to where the accident occurred, and not inconsistent with any other witness than Constable Pyper.  This would be significant in considering what opportunity Mr. Clarke had to observe either the erratic driver or Mr. Link’s reaction to him. 

Discussion of Conflicts in the Testimony of Various Witnesses and Certain Findings of Fact.

[51]            On its face, and in isolation from the other evidence, Mr. Kados’ version of the movement of the vehicles presents a plausible narrative of the accident that, absent his speculation about a U-turn, would suggest that Mr. Clarke was not keeping a proper lookout, or else he could have stopped or swerved to the right as did the other vehicles following Mr. Link, rather than plough into him as he came back onto the road.  If one inferred that Mr. Link came back onto the road in front of another vehicle in the throes of being out of control after being forced off the road, then the prospect would be an apportionment of liability between the two defendants.  Not surprisingly, the plaintiff urges that Mr. Kados had the best view of events, notwithstanding that the plaintiff disputes his interpretation of Mr. Link’s intention at the time.

[52]            One of the main concerns that I have in accepting his evidence on its face, or assigning it the greatest weight, however, is his memory that the plaintiff’s vehicle was the lead vehicle of three vehicles that were forced to swerve, and that it came out first.  He could not say what had happened to the other two following Mr. Link, who obviously should have witnessed the collision, unless they had passed him while they were all off the road, which seems highly unlikely, given that Mr. Kados also said that the Link vehicle did not travel more than one lane width off the road while travelling about 200 feet before being the first to re-enter the highway. 

[53]            Mr. Kados’ evidence that the Link vehicle was not off the highway more than the width of one lane, is inconsistent with his own observation that it entered the highway pointing east, broadside to the direction of traffic, which we know from the undisputable physical evidence is correct.  I think that Mr. Kados is wrong in saying the Link vehicle was no more than one lane width off the highway.

[54]            Mr. Hinz’s evidence is quite different from that of Mr. Kados in respect of the Link vehicle’s movements.  He said the car and its headlights were obvious to him and he saw it stopped parallel to the road for a couple of seconds.  He did not see any other southbound cars stopped or veering, or going around the accident scene after the collision, and his recollection is that there was a 5 to 6 second interval before the last southbound cars passing and the Link vehicle coming out. 

[55]            Mr. Hinz’s evidence is also not free of internal inconsistencies.  He said that his attention was drawn to the car when the Kados truck started to brake and he was about 100 yards behind the truck, but he also said that he first saw the car at a distance of about 100 yards.  One of these estimates must be incorrect, because we know that the Kados vehicle was not at the site of Link’s re-entry before Link came onto the highway, but was at least 50 metres south of that point at the time of Link’s re-entry and therefore even further away when the Link vehicle was off the road. Notwithstanding that inconsistency, Hinz was unshaken in his evidence of an apparent brief stop by the Link vehicle.  Mr. Hinz was not cross-examined about his estimate of “a second or two”, but there is obviously an inherent lack of reliability in accurate perceptions of distance and relative movement of oncoming vehicles in hours of darkness.  Mr. Kados said that he could not say whether the Link vehicle stopped while off the road, but agreed it at least slowed. 

[56]            This apparent stop or slowing and direction change on the excavated construction area that was littered with rocks and lumps of clay that, according to Constable Pyper, could damage a vehicle and was only drivable at slow speeds, is a weak foundation to support an inference of an intention to perform a U-turn, but  combined with travelling along in the excavated area for approximately two hundred feet, the evidence could suggest that there should have been sufficient time for Mr. Link to collect his composure and regaining any control that might have been initially lost.  I will return to that question later.

[57]            Assuming, as all the parties appear to do, that Mr. Ross and Mr. Obst encountered the erratic driver on the same stretch of road, I have to weigh Mr. Obst’s evidence that he observed the erratic driver in his rear view mirror until that driver disappeared around the curve to the north of the accident site while seeing only one other vehicle following him swerve successfully.  I am sure Mr. Obst was not constantly looking in his rear view mirror as he drove, and he may have missed some portion of the events occurring in his wake, but if his observations were accurate he must have still been on the southerly portion of the straight stretch when Mr. Link encountered the erratic vehicle, as observed by Mr. Kados and it is a reasonable inference that it was the Link vehicle that Mr. Obst saw veer to avoid the unknown driver.  Mr. Obst estimated that he made his own evasive move about 200 yards south of the curve to the north.  This is very close to the accurate mid-point of the straight stretch, and is consistent with Mr. Link encountering the unknown driver north of the mid-point. 

[58]            Of course Mr. Obst’s observations themselves do not rule out the possibility that Mr. Clarke had entered the straight stretch in time to see the Link vehicle leave the road if Mr. Clarke had been looking far enough ahead.  On my analysis, however, the further north and closer to the corner that the accident happened, the more unlikely it is that Mr. Clarke was on the straight stretch in time to see Mr. Link forced off the road by the unknown driver.  On one of Mr. Sdoutz’s scenarios, Mr. Link could have been out of control off the road for 5 to 8 seconds.  If one assumes, based on one of Constable Pyper’s estimates discussed above, that the collision occurred approximately 150 metres south of the curve, it would only have taken Mr. Clarke 6.7 seconds to cover that distance at his speed of 80 kph.  In other words, at the front end of the hypothesized 8 second interval, when Mr. Link left the road, Mr. Clarke would not yet have been around the curve.   As I commented, the curve is not the only factor; there is also a cresting of the highway grade that clearly affects the sight line. 

[59]            Another consideration is that even if the Link vehicle was within Mr. Clarke’s theoretical line of sight when it left the road, if he could not also see the oncoming vehicle’s aberrant behaviour, which would obviously have occurred further away from him, and could not see the road surface under the Link vehicles taillights, a simple movement to the right would not be a signal that the Link vehicle was leaving the road.

[60]            In short, I am not persuaded on a balance of probabilities that Mr. Clarke was in a position where he ought to have seen Mr. Link leave the road after being forced to do so by the unknown driver.

[61]            Turning to the facts relevant to the further question of whether Mr. Clarke ought to have nevertheless seen Mr. Link re-entering the road, or travelling on the area beside the road that was under construction sooner than he did, I will resort again to analyzing the time and distance elements presented in the evidence for available inferences. 

[62]            I must state at this point, with all due respect, that I accord very little weight to most of Mr. Clarke’s evidence.  I do not impugn his honesty at all, but as will be apparent from my earlier summary, he has changed his evidence on many matters since his examination for discovery and his statements, and his evidence is plainly wrong on matters that I have other reliable evidence on, such as the height of the drop off to the construction area at the time. This is a significant error on his part because he was adamant that the Link vehicle could not come out of that area without becoming high-centred, and a vehicle would roll or get stuck if it left the highway in that manner.  One could infer from those convictions that he was driving along with complete disregard for the possibility of vehicles emerging from that direction.    

[63]            One of the matters that Mr. Clarke is demonstrably wrong about is his assertion that the Link vehicle was stationary in his lane when his headlights first focussed on it at the distance of 120 to 150 feet, (corrected from the 50 to 60 feet he had estimated at discovery).  The physical evidence reported on by the two experts demonstrates Mr. Clarke’s error in that regard.

[64]            The experts differ on the reconstructed speed of the Link vehicle at the time of impact.  Mr. Sdoutz estimates 23 km/h, whereas Mr. Ising says it could be as low as 11 km/h.  Lacking any reason to prefer one over the other, but accepting some of Mr. Ising’s criticism of Mr. Sdoutz’s assumptions, including the dry road surface condition, and braking of the Link vehicle from impact to rest, and accepting that certainty must allude both experts for lack of adequate information, I will use the mid-point of these speeds and assume for my analysis that the Link vehicle was travelling across Mr. Clarke’s lane of travel at approximately 17 km/h.  This is equivalent to 4.72 m/sec.  Mr. Ising’s report indicates that the southbound lane was measured at 4.3 metres, so although Mr. and Mrs. Clarke say they first perceived the Link vehicle immediately in front of them and either stationary or moving slowly, a mere one second before impact the front of the Link vehicle would have been approximately level with or outside the fog line of the southbound lane.  (It would have been further away if the assumed deceleration was still occurring.)  At the same moment, assuming an average speed on the part of the Clarke vehicle of 76 km/h during that last second before impact, the Clarke vehicle would have been approximately 21 metres from the point of impact.

[65]            If the experts are correct in reconstructing forward speed to the Link vehicle, Mr. Clarke’s recollection/reconstruction of the accident is clearly mistaken.  That is not to say, however, that the plaintiff’s case is thereby made stronger.  The expert evidence from Mr. Sdoutz utilized a perception/response time (PRT) of 1.1 seconds and Mr. Ising said that that is the 50th percentile achieved in an experiment regarding a clear central hazard in daylight, which is inappropriate for the situation facing Mr. Clarke.  Even at that, the range for 95% of drivers is a PRT of .8 to 1.7 seconds.  The PRT is the measured delay between the appearance of an object and the touching of the brake pedal.  Mr. Ising describes the concept at page 8 of his report as follows:

Perception/response time (PRT) is the time required for a driver to react to a hazard.  It is normally composed of four steps.  The first step, detection, begins when the object enters the driver’s field of vision and ends when the driver has an awareness that something is present. In the second step, identification, the driver acquires enough information about the object to decide on what action should be taken.  In the third step, decision, the driver decides on the appropriate action. Finally, in the response phase, the brain issues orders to the necessary muscle groups which complete an action.

[66]            Considering Mr. Ising’s previously quoted opinions based on the lighting conditions and Mr. Clarke’s age, I infer that Mr. Clarke’s PRT in the circumstances was probably a minimum of 1.7 seconds and probably higher.

[67]            There is no physical evidence to corroborate or to contradict Mr. Clarke’s evidence that he applied his brakes and skidded before and after impact.  The wet road surface showed no signs of a skid, and the impact speed of 76 km/h calculated by Mr. Sdoutz suggests little reduction from the speed of 80km/h that Mr. Clarke says he was driving.  The 69 km/h stated by Mr. Ising to also be in the range of possibilities is still a relatively minimal speed reduction. Mrs. Clarke confirms the brakes were applied, but she is not really an independent source.  Although Mr. Clarke said he recalled the front of his vehicle dipping and the rear rising, this is not necessarily compelling because common sense tells me that this would have occurred in the high speed impact as well.  Mr. Bond said he saw the Clarke vehicle’s brake lights activated at about the same time that he saw the Link vehicle come onto the highway, which confirms that at least Mr. Clarke depressed the brake pedal to some extent.

[68]            Assuming that there was forward momentum to the Link vehicle of approximately 17 km/h, and assuming even an unrealistically short PRT for the circumstances of 1.1 seconds, then if Mr. Clarke’s brakes were actually applied, the irresistible inference is that Mr. Clarke did in fact perceive and react to the Link vehicle before it entered his lane of travel, notwithstanding his evidence to the contrary. 

[69]            Lengthening the PRT, as suggested by Mr. Ising in the passage from his report quoted above, lengthens the distance from the roadway that Mr. Clarke must have seen and reacted to the hazard posed by the Link vehicle.  During a PRT of 1.7 seconds, the Link vehicle, assuming a speed of 17 km/h, would have moved 1.7 x 4.72m = 8.02 metres.

[70]            In addition to the perception/response time, there would be an interval of time consumed by brake lag, which Mr. Ising says is .28 seconds plus or minus .09 seconds, and if Mr. Clarke skidded briefly before impact, as he stated, some time consumed by that action. 

[71]            The plaintiff’s case would be somewhat stronger if I could find on a balance of probabilities that Mr. Clarke did not initiate braking, but on the evidence I am unable to find the balance tipped in favour of that inference on the factual question of whether or not Mr. Clarke managed to commence braking before impact.  If braking was initiated, and effected at all, then, on my analysis, he must have detected the Link vehicle when it was at least 9 metres from the point of impact.  In that case, considering the obviously reliable evidence from Mr. Kados and Mr. Hinz about the nearly perpendicular approach of the Link vehicle as it re-entered the highway, and Hinz’s evidence of an apparent temporary stop of a couple of seconds, and considering the darkness and glare of lights from oncoming traffic, I could not find that Mr. Clarke’s diligence fell below the standard of care of a reasonably prudent driver in all the circumstances.  In saying that I take into consideration that while the Link vehicle was in a position roughly perpendicular to the highway, its headlights and taillights (which were not a “wrap-around” style) would not have been visible to Mr. Clarke.  The small plastic reflector near the rear left side of the vehicle, shown partially obscured by dirt even one month following the accident, would probably not have signalled any recognizable hazard at any distance, if it could have been detected at all in the circumstances.

[72]            In conclusion, I am unable to find negligence proved against the defendant Clarke and dismiss the case against him.

[73]            Turning the issue of apportionment of causation between the admittedly negligent unknown driver and Mr. Link, I find that the unknown driver was 100% responsible for the accident.  There is no reliable inference of negligence on the part of Mr. Link founded in the evidence.  I do not accept the nominal defendant’s argument for an inference that Mr. Link voluntarily re-entered the highway from an area of safety after being forced off the road, probably intending to make a U-turn to chase the unknown driver. 

[74]            The only aspect of the evidence that would apparently support that inference is Mr. Hinz’s testimony that the Link vehicle appeared to stop for a couple of seconds before it came back onto the highway nearly perpendicularly.  The test that is applied to Mr. Link in these circumstances does not require him to have extraordinary perception and driving skills.  I find as a fact that he was forced off the highway by the unknown driver.  In part this may have been because the abrupt drop-off to the construction zone was more severe than it was in the area where Mr. Obst was able to get all four wheels off the road without difficulty.  The area he was forced onto at a highway speed was, according to Constable Pyper, traversable only at slow speed without damaging a car with rocks and lumps of clay.  From the fact that he re-entered directly in the path of  Mr. Clarke’s vehicle I infer that he did not regain his own composure or the full control of his vehicle before he re-entered, notwithstanding the apparent momentary stop.  In my view, that is more likely than the inference that during the momentary stop he made a decision to chase the offending vehicle and started to do that without regard to the traffic, which posed an obvious hazard from both directions.  In my view, that scenario is purely speculative, unsupported on the evidence as a whole, and defies common sense.

[75]            In the result, I find the nominal defendant 100% at fault for Mr. Link’s injuries. 

[76]            The plaintiff is entitled to costs from the nominal defendant and the nominal defendant shall pay Mr. Clarke’s costs directly.  

Meiklem J.