Godbout v Notter, 2018 BCSC 1043 (CanLII)

Date: 2018-06-25

Facts

On April 26, 2013 Mr. Cole Kenneth Notter (the defendant) was driving at night in his black Kia vehicle westbound on Highway 1, east of Chilliwack in British Columbia. Mr. Notter lost control of his Kia, struck the center cable barrier and ended up stopped and blocking part of the left lane. Mr. Notter left the Kia as it was without any lights on and made no efforts to warn oncoming traffic of the stopped vehicle hazard. There were no streetlights in the area of the stopped Kia.

Mr. Edward Godbout (the plaintiff) was seriously injured when his tractor-trailer then collided with the stopped Kia.

The judge concluded that Mr. Notter was totally responsible for the collision and that Mr. Godbout was not contributorily negligent.

Plaintiff’s Human Factors Position

Mr. Kurt Ising, qualified as an expert mechanical engineer engaged in collision reconstruction and human factors, focused his opinion on whether or not it would have been possible for Mr. Godbout to have avoided the collision. Mr. Ising made an estimate of the perception-response time an attentive driver would have needed to avoid a collision. Mr. Ising estimated that the distance a driver would have needed to perceive the Kia to avoid a collision was greater than the distance available to a typical driver. Based upon the literature, Mr. Ising concluded that Mr. Godbout would have been unlikely to have perceived the Kia early enough to avoid the collision.

Mr. Notter had been waiting on the right shoulder with another vehicle with its flashers on that had stopped to lend aid. Mr. Notter opined that the vehicle on the shoulder with the lights on would have drawn attention away from the stopped Kia, and thus further reducing the probability of a driver detecting the hazard.

Defendant’s Human Factors Position

Dr. Amrik S. Toor, qualified as an expert mechanical engineer engaged in collision reconstruction, focused his opinion on critiquing Mr. Ising’s opinion. Dr. Toor argued that Mr. Ising’s opinion overestimated the distance required to avoid a collision and misinterpreted/misapplied the findings from the literature. Dr. Toor opined that the side profile of the Kia would have included some reflective components such as the side profile of the vehicle head lamps, marker lamps, or tail lamps.

Judge’s Rational

The judge felt the calculations of distances available to drivers on the night of the collision were “fraught with assumptions and uncertainties”. The judge also stated that the expert opinion reports were “inconclusive”. In the judge’s words “. Reconstruction of an accident which occurred years before the reports, the circumstances of which would have lasted a mere matter of seconds is bound to be speculative and based upon assumptions that could very well be questioned.” The judge stated that estimates of distances and speed from witnesses were simply estimates, and to apply them to mathematical formulas would result in too many assumptions regarding visibility, reaction time, and maneuverability to be able to provide an opinion with any degree of certainty.

The judge felt it was significant that the witnesses testified that other vehicles who avoided hitting the Kia only did so only with difficulty. The judge pointed out that if three automobiles could barely avoid the collision, then a tractor-trailer weighing 102,000 pounds traveling at 100 km/h would not have been able to avoid the collision.

Overall, while the judge did not believe that either expert was able to provide conclusions with a sufficient degree of certainty, the judge preferred the conclusions of Mr. Ising over the opinions of Dr. Toor. The judge also pointed out that Dr. Toor 1) failed to provide any alternative analysis of his own, 2) referred to an impact location not consistent with that of a witness, and 3) referred to reflective parts of the car that were not consistent with that of a witness.

The judge found Mr. Notter negligent in causing the initial single vehicle collision, which Mr. Notter then compounded by leaving the Kia within a busy lane of traffic with no lights on or to take any other steps which may have warned traffic. The judge stated that Mr. Godbout could not have anticipated that he would encounter at night a vehicle across the fast lane on a major freeway, especially since his attention would have been diverted to the stopped vehicle on the right shoulder.

As part of the liability discussion, the judge referenced Ziemer v. Wheeler in order to come to a decision.