Vandegriendt v. Sanford Estate

2016 BCSC 1716 Vandergriendt v. Sanford Estate

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Vandergriendt v. Sanford Estate, 2016 BCSC 1716 Date: 20160919 Docket: M9581 Registry: Campbell River Between: Jessy Bo Vandergriendt Plaintiff And The Estate of Shawn Sanford Defendant And Insurance Corporation of British Columbia Third Party Before: The Honourable Mr. Justice Schultes Reasons for Judgment Counsel for the Plaintiff: S. Gordon P.J. Field K. Andres Counsel for the Third Party: L.C. Boulton Place and Date of Trial: Courtenay, B.C. June 11,12,15,16 and 17, 2015 Place and Date of Judgment: Campbell River, B.C. September 19, 2016 1. INTRODUCTION [1] This trial deals with the liability for the serious consequences of a single-vehicle accident that occurred on Highway 19A just north of Courtenay in the early morning hours of April 2, 2010. [2] The plaintiff Jessy Vandergriendt claims that at the time of the accident his vehicle, a 1997 Ford Explorer, was being driven by his friend Shawn Sandford. When the Explorer went out of control Mr. Sanford was killed and Mr. Vandergriendt suffered serious injuries. [3] The Insurance Corporation of British Columbia ("ICBC"), which is defending the action as third party, contends that Mr. Vandergriendt was actually the driver, and that he is blaming Mr. Sanford in order to avoid responsibility for having caused the accident while intoxicated. [4] There is also some conflict in the

evidence of the bystanders who assisted in removing Mr. Vandergriendt from the Explorer, two of whom have gone on to become friends with him. [5] By consent, the liability portion of a claim pursuant to the Family Compensation Act, R.S.B.C. 1996, c. 126 that is being brought on behalf of Mr. Sanford's beneficiaries by his father Bruce Sanford was heard at the same time. It is the mirror image of Mr. Vandergriendt's claim, since its success depends on proving that he was the driver, rather than Mr. Sanford. [6] It is common ground that whoever was driving the Explorer at the time of the accident was negligent.

2. EVIDENCE a) Basic framework [7] Mr. Vandergriendt's Explorer was travelling north on Highway 19A (also referred to as the Old Island Highway) near the intersection with O'Brien Road, when it went out of control and came to rest on its roof, partially in a ditch next to a business on the north side of O'Brien Road. At some point it was consumed by fire, but the timing of the onset of that fire is disputed by the witnesses. [8] Mr. Sanford was ejected from the Explorer as it rolled over and he came to rest on the other side of the business's chain-link fence. He died shortly afterwards from massive head trauma. No autopsy was performed on him. [9] At the time of the accident Mr. Vandergriendt had a blood-alcohol level that was almost three times the legal limit. [10] Photos taken of the Explorer at the salvage yard show the roof on the driver's side crushed down to almost the level of the hood. The level of the roof then rises at a fairly sharp angle to almost its normal height at the outside edge of the passenger side. b) Mr. Vandergriendt's version of events and previous statements [11] He was 22 when the accident occurred. He is six feet, one inch tall and at that time he weighed 260 pounds. [12] He testified that he has "zero tolerance" for drinking and driving, which he regards as a needless risk, like not wearing a seatbelt. As a result he does not drink at all when he

is required to drive. His friend Amanda Haight, who did not drink much, often acted as his designated driver. Failing that his mother was always willing to pick him up. [13] He and Mr. Sanford both lived in Campbell River. On the night of the accident they were at a party in Courtenay. His plan was to stay over at the house where the party was held. While he was there he became "pretty intoxicated." [14] Mr. Sanford then told him that he needed to leave the party. He did not say why, but it was urgent. When Mr. Vandergriendt said that he could not leave because he had been drinking, Mr. Sanford offered to drive and he accepted. [15] As of that night they had known each other for eight or nine months. During that time Mr. Sanford had previously asked him if he could drive the Explorer about four times. Mr. Vandergriendt had refused on those occasions because Mr. Sanford had been drinking. [16] By that point in the evening he had only seen Mr. Sanford drink one beer, at the beginning of the party. He would not have agreed to let him drive if he had known that Mr. Sanford had been drinking more than this minor amount, or that (as his driving record indicates and Bruce Sanford testified) he did not have a valid driver's licence. Mr. Sanford had previously told him that he had a licence, and had said the same to their friend Ms. Haight and Mr. Sanford's brother. [17] He also

remembered asking Mr. Sanford if he was "OK" with respect to his alcohol consumption in the moments after they left the party and receiving the answer, "Fine". [18] Mr. Vandergriendt has limited memories surrounding the actual accident. Just before it happened he recalled that "a deer or something fell across the road", Mr. Sanford swerved and Mr. Vandergriendt yelled "what the hell are you doing?" [19] Next, he recalled hanging upside down and the vehicle's horn blaring. He was dragged out -- he believed up a hill -- and someone gave him encouragement about his condition. [20] He was removed from the scene by helicopter and next recalled being in hospital in Vancouver. He cannot recall being in the hospital in Courtenay before he was transferred, although he now knows that occurred. [21] According to Mr. Vandergriendt, he suffered a concussion in the accident and was "unconscious for a while." He broke his neck and back, with vertebrae having to be fused in each. He also had injuries to his ribs, hip and his right shoulder. He requires a brace on his right leg and has lost some feeling in his left. He has required numerous additional surgeries and other ongoing treatment since his initial hospitalization. [22] Because it relates to the circumstantial evidence of his position in the vehicle at the time of the accident, which I will discuss further, he was also asked during his

evidence if he had any injury to his left shoulder, to which he replied, "I don't think I had any." [23] In the initial two weeks after the accident he was receiving a lot of strong pain medication and was "completely out of it." The police spoke to him at the hospital and in the course of that told him that he had been the driver. [24] After "a couple of months" he started to have some memories of the accident and realized that he had actually been the passenger. [25] This fact was "confirmed" for him by Don Livingston, whom he understood to have participated in his rescue from the vehicle. He spoke to Mr. Livingston on the phone while he was recovering from his injuries. In that call, Mr. Livingston made a joking reference to an injury that he had received in the course of the rescue, telling Mr. Vandergriendt, "You owe me some new eyebrows". Mr. Vandergriendt later met Mr. Livingston in person and they became friends. [26] A few months after he met Mr. Livingston he met Jamie Bond, whom he also understood had played a part in rescuing him. [27] He drew a distinction between the level of friendship that he subsequently developed with these two rescuers -- ascribing a deeper level to his relationship with Mr. Livingston. [28] Mr. Vandergriendt also testified about a conversation that he had with Mr. Sanford's father at a celebration of Mr. Sanford's life. This celebration was

held within a month of Mr. Vandergriendt's release from hospital, at Mr. Sanford's aunt's house. He was very careful about what he said during the conversation. He told Mr. Sanford's father he was sorry for their loss. The father responded that it was "OK" and that "they forgive him." He also said he had something to tell the father "when all of this is settled." However he "chickened out" and did not provide this information -- which I infer was that Mr. Sanford had been the driver. [29] In cross-examination ICBC's counsel raised previous statements and actions by Mr. Vandergriendt that were said to undermine the credibility and reliability of his evidence. The most significant of these were: · He suffered a brain injury in 2005 from an assault. His injury symptoms had improved by the time of this accident. However, he agreed at his examination for discovery that he was having "a great deal" of problems with memory and concentration "just from the brain injury", but added that the problems were also from the injury suffered in this accident. When pressed on the issue in cross-examination he said that it was getting better -- he has "a little bit" of memory problems now; · He initially resisted the suggestion that this injury constituted a disability, but then acknowledged having received support in finding employment and applying for a new position on that basis; · At the

discovery he had described his memory (of the night of the accident, I infer) as "very patchy" as a result of the level of his intoxication. He agreed with the suggestion that a lot of his recall of the circumstances comes from what Mr. Livingston told him. They had last socialized about two weeks before the trial began; · He has remembered the conversation after leaving the party (in which he confirmed that Mr. Sanford was all right to drive) since his March 2012 discovery. He explained that he "probably started to remember as time goes on." However he agreed that immediately after the accident he did not know that Mr. Sanford had been in his vehicle, which he attributed to the seriousness of what had just occurred; · His belief that Mr. Sanford was able to drive safely that night was based on the fact that he never saw Mr. Sanford with a beer in his hand again after the one that he had early on in the party. This had been two or three hours before they left; · When he was asked under what circumstances Mr. Sanford had previously asked to drive his vehicle he said, "Maybe when I had a drink and he didn't, or when we were 4x4ing." When asked if he ever let Mr. Sanford drive when he had not been drinking, Mr. Vandergriendt said, "It's my vehicle; I did not want to let him drive." (He clarified in re-examination that Mr. Sanford asked to drive his vehicle in situations when one

or the other of them had been drinking, and once when they both had); · At the discovery he had stated that Mr. Sanford did not have a car and that he could not recall him ever driving. When he was asked if he knew about Mr. Sanford's previous driving experience he said that Mr. Sanford had told him "crazy stuff" (in relation to his past motor vehicle infractions); · He responded to the suggestion that Mr. Sanford had a drinking problem with "I don't know - I think he did." When his discovery evidence that Mr. Sandford "drinks more then he should" was put to him, he said that he "thinks" he gave that answer. However, in reference to letting him drive the Explorer on the night of the accident he said that Mr. Sanford was trying to stop drinking at that time and that he did not drink every night; · As to his own drinking, he agreed that at the discovery he said that his health care professionals told him to slow down or be careful about it, that "maybe at one point" his family had suggested that he stop, and that one girlfriend had made the same suggestion. He had "slowed right down" in early 2010 after his girlfriend of that period broke up with him. As of that time he did not go to many parties and he was "in the mood" so he ended up drinking more. His usual pattern at that time was six to eight beers, twice a week. He ultimately agreed with the suggestion that he had a problem

with alcohol "in the past few years"; · At the time of the discovery he was on bail conditions prohibiting him from drinking. He had not stopped as a result of the accident itself. He resumed drinking once those conditions had expired, but has "slowed down a lot" since then -- drinking only once every couple of months; · At the discovery he explained that his statements that they swerved to miss a deer were made because people were "putting things in his head" after the accident, which he elaborated in cross-examination as being when the police told him he was the driver and his father questioned him about the accident using examples of what might have happened; · He did not contradict the police assertion that he was the driver because of the pain medication he was taking and the state he was in. At that point he was not aware if he was the driver or not. (In re-examination he was directed to a statement he had made during a driving test in June of 2010, by which time he was taking the position that he had been the passenger); · In response to the suggestion that he had told the emergency medical personnel about the deer, he said he remembered a deer on the right starting to come on the road. He was not "100% sure, but [he] believed it was a deer"; · He agreed that his medical records show injuries to his left chest and right flank, and that these are "possibly" consistent

with coming from the driver's seatbelt. He said that he also recalls an injury to his right shoulder but that it has "been recorded wrong" if that does not appear in his medical records. (In re-examination he was referred to emergency medical records in which the right shoulder area is indicated as an area of injury, although the text of the document from the hospital in Courtenay refers to an abrasion to the "left" anterior upper chest and the symbol used in the diagram in the Vancouver General Hospital records shows only "pain" in the right shoulder area. In her evidence Ms. Haight described seeing bruises to Mr. Vandergriendt's right shoulder within one-and-a-half to two weeks after the accident, when he was sent to a rehabilitation facility; however when pressed in cross-examination she said she could not remember the specific time frame); · Mr. Sanford's father saying that he "didn't blame" Mr. Vandergriendt for his son's death was because he might still have believed that Mr. Vandergriendt was the driver. He had not broken the news to the father about the true situation yet. c) Other evidence of the statement to Mr. Sanford's father i) Amanda Haight [30] Amanda Haight said that she drove Mr. Vandergriendt to the event at Shawn's aunt's house. Shawn's father was in the backyard. She testified that he "apologized - no not apologized, sympathized - that [the father] lost

Shawn." She quoted him as saying, "Sorry for the loss of Shawn". She could not recall the father's exact response but "they shook hands on good terms." [31] During the course of the conversation Mr. Vandergriendt explained to the father that a deer had run onto the road, which she subsequently refined to the statement by him that "Shawn had swerved for a deer." In cross-examination she confirmed that Mr. Vandergriendt told the father that his son had been driving, but that the father did not react to receiving that information. ii) Bruce Sanford [32] Bruce Sanford's recollection of this conversation was quite different. He was able to pinpoint the date on which he spoke to Mr. Vandergriendt as July 23, 2010. He disagreed that the get-together was a celebration of Shawn's life -- it was simply that he and the rest of his family, who live in Alberta, had planned on being in Campbell River that month. He agreed that the meeting took place at the home of Shawn's aunt, on the Quinsam reserve. [33] He had heard that Mr. Vandergriendt was struggling with the accident and its results. He wanted him to know that the family forgave him for what had happened. Shawn's aunt had invited Mr. Vandergriendt after he indicated to her that he wanted to tell Mr. Vandergriendt that. [34] Mr. Vandergriendt arrived with Ms. Haight. She kept back while he approached to speak to Mr. Sanford, who was in

the backyard of the home. Mr. Vandergriendt said "I'm really sorry for killing your son." Mr. Sanford responded that he forgave him. He explained that he had swerved to miss a deer. Mr. Sanford asked "where were you guys going [that is, on that night]?" to which Mr. Vandergriendt replied, "I'll tell you one day." [35] Mr. Sanford initially agreed with the suggestion on cross-examination that he had not been asked to remember this conversation until his examination for discovery two years later, but when he was asked the question again he recalled being contacted by an ICBC adjuster and speaking about it sometime before the discovery. He also denied the suggestion that his memory of it was "somewhat sketchy." d) Post-accident witnesses to Mr. Vandergriendt's position in the Explorer i) Overview [36] Before the accident occurred, Mr. Livingston, Mr. Bond and two other friends, Neil MacDonald and Dave Thompson, had all been drinking alcohol (and according to some of them, smoking marihuana) and socializing at Mr. Bond's house, which is on the other side of O'Brien Road, a short distance from where the Explorer ended up. At the time Mr. Livingston and Mr. Bond were brothers-in-law, although that is no longer the case. [37] After they became aware of the accident, they participated to various extents in assisting Mr. Vandergriendt and made observations about his position in the

vehicle. ii) Dan Livingston [38] According to Mr. Livingston, his first awareness that something had happened outside was when Mr. Bond heard a noise. After that he could hear a horn blaring himself. [39] When they went to the top of the driveway he could see flames coming from the vehicle. He ripped off some of his clothing to smother the flames but they "blew through" the clothing. He "jumped" into the vehicle. At first he thought he had entered the Explorer through its door but it later "came back" to him that he had gone in through the window. He entered up to his waist, far enough in to see the centre of the front seat area. [40] Mr. Vandergriendt was hanging upside down in what Mr. Livingston testified he was "100% sure" was the passenger seat. The steering wheel was in the opposite seat but he was "not really worried about it though" (I infer that he meant at that particular moment, when he was attempting to assist Mr. Vandergriendt). In his view "no one would have lived" if they had been on the driver's side. He also popped his head around Mr. Vandergriendt's body to see if there were any back seat passengers. [41] He attempted to cut the lap belt with scissors but they broke. He was then able to cut off most of it using a knife. He tried to pull Mr. Vandergriendt out but he was stuck. He then cut the chest strap of the belt and Mr. Vandergriendt fell down a few inches.

There was not much room in the vehicle to move him around. He got Mr. Vandergriendt out as far as his waist and then had to call on Dave Thompson to fully extract him from the vehicle. During this rescue process "a bit of flame licked" his head and he suffered minor burns to his face. [42] He laid Mr. Vandergriendt down in a position to prevent further injuries to his spine and noted that his toes were moving. An unidentified woman arrived and held Mr. Vandergriendt in that position. [43] Mr. Livingston said that at this point he realized he should leave. He was then on bail with a condition that he maintain a curfew, and the time at which he was required to be in his residence had passed. [44] As he was leaving he heard moaning and groaning on the other side of the fence. He ran to the fence to assist and was told by a police officer to stay back. He told the officer that he had Level 3 first aid but the officer then signalled that the person, who he now understands to have been Mr. Sanford "was no longer with us." [45] He then went into Mr. Bond's house and remained there until 5:00 a.m., when he walked home. He did not give any statement to the police that night about his involvement. His statement was not given until July 2011. [46] He eventually received two awards for his bravery in the incident, one from the Governor-General and the other from a foundation in the United

States. There was a monetary award included with one of them. He does not know who nominated him for the awards. [47] He described his relationship with Mr. Vandergriendt by saying that he is a friend "of course." He elaborated that "if you save someone's life it's a given that you develop a relationship." [48] In cross-examination he clarified that although he had said in his police statement, given 15 months after the accident, that his hair was "literally starting to melt" while he was in the Explorer, it was "nothing major - flame licked my hair" and "there was bit of singeing". He also clarified that he left the scene before police arrival both to avoid being apprehended for a curfew breach and because he was shaken up with what he had just experienced. Mr. Bond actually told him to go inside. [49] He emphasized that Mr. Thompson's only role that he was aware of was helping to pull Mr. Vandergriendt out after he had freed him from the seatbelt, while a portion of Mr. Vandergriendt's body was still inside, and that Mr. Thompson was never inside the Explorer. He agreed that in his statement he said that "the only two people who took action were me and Jamie Bond." [50] He maintained that the Explorer exploded almost immediately after he removed Mr. Vandergriendt. [51] He acknowledged having been mistaken in his statement about pulling Mr. Vandergriendt out of an open door of

the Explorer, based on his recent review of the photos of it. He described the weather as "fine" in his statement (the common view of all other witnesses is that it was raining hard) because he had more important memories of the incident and had not made a point of remembering the weather. [52] Mr. Livingston agreed that sometime after the accident Mr. Vandergriendt's father came to his house to thank him for his role in saving his son. They then went to see the wreck of the Explorer and spent 20 minutes to half an hour there. He told the father what he recalled about his involvement. He said that they "both knew" that Mr. Vandergriendt had been the passenger, (He did not mention Ms. Haight being there but in her evidence she described visiting the Explorer within a week and a half to two weeks after the accident with Mr. Vandergriendt's father, Mr. Livingston and Mr. Bond. She agreed with the suggestion on cross-examination that the father wanted see the vehicle with them to "reconstruct the incident" to see if he could put his son in the passenger seat, rather than the driver's seat.) [53] He agreed that when he gave his police statement he had asked for a letter of commendation from the RCMP (like one that Mr. Bond had already received). iii) Jamie Bond [54] He is the person who brought the knife and scissors to the accident scene -- he has had past experience with people

being trapped in a vehicle by their seatbelts following an accident. [55] He looked into the passenger side of the Explorer, and saw Mr. Vandergriendt hanging upside down in it. Mr. Livingston was "struggling to get Bo out" and was in and out of the vehicle trying to figure out how to get him out of his seatbelt. In his view Mr. Livingston was the "primary rescuer" in terms of being "hands on" inside the Explorer. [56] Meanwhile Mr. Bond and Dave Thompson were swatting at the fire in the vehicle with their clothes. Neil MacDonald, who was on the phone with 911, remained farther back. [57] Mr. Bond also checked the other side of the Explorer to see if anyone else was inside, before returning and providing the knife and scissors to Mr. Livingston, who was still having difficulty with the seatbelt. He left the scene briefly twice -- once to retrieve a fire extinguisher, which failed to operate, and then to get blankets from his own vehicle to smother the flames. [58] During the time that Mr. Livingston was cutting the seatbelt, Mr. Bond described a serious concern that the Explorer was going to blow up -- the flames were licking through the firewall and starting to affect the area where Mr. Livingston was. Mr. Livingston and Mr. Thompson ultimately pulled Mr. Vandergriendt free, each dragging him by one arm. By the time they dragged him to the road the flames had doubled in size.

He was out of the Explorer within five to ten seconds of it being engulfed by flames. Before that the tires had been popping. [59] Once they got Mr. Vandergriendt to safety they did a "rapid body search" of him and found that he was able to move his toes. Mr. Thompson said "I think you just killed your friend, if you're the driver" to him, presumably in reference to Mr. Sanford. [60] After the emergency services had arrived Mr. Bond gave an interview to a police officer in the back of an ambulance. He acknowledged he told the officer that Mr. Vandergriendt had been the driver, rather than the passenger as in his trial testimony. His explanation for telling the officer that was that after Mr. Thompson said that Mr. Vandergriendt had probably just killed his friend, "I immediately thought Holy Crap, what if he did that." He did not contradict Mr. Thompson's statement because he was "in shock." [61] He also omitted any reference to Mr. Livingston's presence at the accident scene in that initial statement, because of the conditions requiring Mr. Livingston to be inside his home by that point. He explained on cross-examination that he lied because he did not want his friend to go to jail. He was not concerned that as a result Mr. Livingston would not get credit for his role in the rescue. He denied that Mr. Livingston played the main role, and said that he, Mr. Livingston and Mr.

Thompson were equally involved. He did not recall Mr. Thompson actually entering the Explorer, but he and Mr. Livingston were pulling Mr. Vandergriendt out. [62] He denied the suggestion that Mr. Livingston had been burned during the rescue. He saw him in the house afterwards. [63] When he was contacted by the police by phone several months later for a follow up, he had a detailed conversation in which he "took the time to reply what [he] remembered." He also took a toy car and "replayed" the position of the Explorer. Based on the officer's detailed questions and his use of the toy car, he "decided" that Mr. Vandergriendt had been a passenger. He also recalled seeing the steering wheel on the other side of the vehicle from Mr. Vandergriendt, who was "squished in" his position. He explained this process in re-examination as "I came to the conclusion, with a bit of thinking and [the officer] replaying it, that [Mr. Vandergriendt] was the passenger." [64] This statement also included a description of Mr. Livingston's involvement, which Mr. Bond provided with the agreement of Mr. Livingston, who said it did not matter by then. He agreed that in the statement he minimized the role of Mr. Thompson, who had said "he didn't give a crap" (about receiving credit, I infer), but that he would have mentioned him if the police officer had asked. [65] He met Mr. Vandergriendt after the

accident. He picked him up and attended a beach fire with him and his friends. They talk once in a while and he has seen him in person about two or three times since the accident. Each one makes sure that the other is "doing OK". iv) Neil MacDonald [66] Mr. MacDonald's role, after seeing the Explorer in its resting position, was to call 911 on his cell phone, while his three friends went to the vehicle. There was too much noise for him to communicate so he backed away, in the area of a street sign. At times he was not looking directly at the Explorer. [67] He said that Mr. Livingston had his head in the window of the Explorer and was having some difficulty with the occupant's seat belt. According to Mr. MacDonald, no more than Mr. Livingston's shoulders entered the Explorer. The occupant was then taken out of the passenger side window. He agreed in cross-examination that it was not just Mr. Livingston involved in removing the vehicle occupant, but that Mr. Livingston, Mr. Bond and Mr. Thompson had been working together. [68] The Explorer's horn had been blaring but it stopped because of the progressing fire. His friends had to hurry to get Mr. Vandergriendt out. Mr. MacDonald and another person made some initial efforts to put the fire out but it eventually engulfed the vehicle. He said that it "took a while" for this to occur. [69] He did not become friends with Mr.

Vandergriendt following the accident and had not seen him again until the trial. v) Dave Thompson [70] Mr. Thompson was called as a witness by the third party. His narrative of events was strikingly different from Mr. Livingston's and Mr. Bond's on several key points. [71] He had drunk about three beers by the time the accident occurred. Unlike some of his companions, he did not smoke any marihuana. [72] In Mr. Thompson's description, Mr. Livingston went into the Explorer to cut Mr. Vandergriendt's seatbelt but could not get him out, so he went in to do it himself. Mr. Vandergriendt was in the driver's seat. Mr. Thompson knows this because when he went into the vehicle he was in up to his knees and Mr. Vandergriendt was not directly above him on the passenger side. In cross-examination he said that as a result it was impossible for him to have been in the passenger seat. Had he actually been in the passenger seat it would have been easier to remove him. And, if he had fallen to the ceiling as Mr. Livingston described Mr. Thompson would have been able to get him out by his legs. As it was, his feet were on the driver's side and he came out "like a worm" -- head first. [73] It was very difficult to get Mr. Vandergriendt out -- Mr. Thompson said that he "almost pulled his arms off." One of Mr. Thompson's friends had to hold onto his knees from outside the vehicle so he could move

him. Once he got Mr. Vandergriendt down onto the "roof" of the Explorer (by which I infer he meant the interior ceiling) he had to brace his legs against the outside of the vehicle in order to pull him out. No one assisted him at that stage but he may have had help with Mr. Vandergriendt once he was outside. [74] According to Mr. Thompson, Mr. Bond's role was that he "ran and grabbed scissors and a knife" and was then "by [his] side lots." [75] Mr. Livingston did not remain at the scene after cutting the seatbelt, because he either had a warrant out for him or he had a curfew. When Mr. Thompson saw him again in the house the only injuries were "maybe a few little hair burns on his hand." [76] Mr. Thompson's hoodie was burned from the fire that he said was "dripping" on the passenger side, but he said that there was no fire in the occupant's area when Mr. Livingston was inside. He was worried about being burned however. The Explorer never actually exploded -- the tires popped and a big ball of flame developed. [77] They dragged Mr. Vandergriendt 30-40 feet from the Explorer. He could still feel the heat from that distance. Mr. Thompson held Mr. Vandergriendt's head for a long time, even after the police arrived. He disagreed with Mr. Livingston that a woman took over holding Mr. Vandergriendt in that position. [78] When Mr. Thompson first arrived at the vehicle he heard what

sounded like moans, although the horn was blaring and the fire was making noise. When the fire got bigger he saw on the other side of the fence "a guy slumped over, who looked like he was staring at us", whom I infer was Mr. Sanford. As a result he told Mr. Vandergriendt, "If you were drinking, you just killed your buddy." [79] When it was suggested in cross-examination that he had omitted Mr. Livingston's presence in his statement to the police he said that he did not know. [80] After the accident, he moved to Alberta, so he never met Mr. Vandergriendt again or became friends with him. Mr. Bond also moved away and Mr. Thompson has only had dinner with him once since then. e) Police and Ambulance attendees [81] These witnesses -- RCMP Cst. Michael Robinson and paramedics Robin Earp and Brian Lungul -- were also called by the third party. [82] The main significance of Cst. Robinson's evidence seemed to be to provide a more objective description of the progress of the fire in the Explorer, the danger of which figured prominently in the evidence of the witnesses who participated in Mr. Vandergriendt's extraction. [83] According to Cst. Robinson, when he arrived, just slightly ahead of the ambulance, he saw three or four people standing around Mr. Vandergriendt, who was about 10 feet from the overturned vehicle. At that point, fire had broken out in the wheel well in the front

engine compartment. It was not in the occupant area. It subsided and then flared back up again. Within three to five minutes after his arrival the Explorer was "fully involved" with fire. The fire grew in intensity and at one point the tires started to pop. [84] His partner saw Mr. Sanford on the other side of the fence and as the two of them climbed over the fence the fire grew in intensity and three to five minutes after their arrival the vehicle was "fully involved." While it initially appeared that Mr. Sanford had a pulse, a closer examination of the severity of his head injury confirmed that he was deceased. Cst. Robinson was not sure about having made a signal to that effect to anyone on the other side of the fence, as Mr. Livingston recalled. [85] He had no direct contact with Mr. Vandergriendt. [86] Mr. Earp was the first paramedic to attend Mr. Vandergriendt, whom he believed was being held by a male when he arrived. He first put Mr. Vandergriendt on a spine board and then in a clamshell stretcher in order to slide him further away from the vehicle, which they feared would explode. They then placed him in the ambulance. [87] He described Mr. Vandergriendt as "conscious, but a little disoriented", meaning that he had to repeat some questions to get a response. He proceeded on the assumption that Mr. Vandergriendt was the driver because a witness had identified him in

that role. When he asked him what happened, Mr. Vandergriendt responded that a deer had jumped out in front of him and he had swerved to miss it. This occurred while the ambulance was still on the scene, within the first 25 minutes after their arrival. [88] He agreed that in a will-say statement provided to his manager in preparation for this trial, he had quoted Mr. Vandergriendt as telling him that "they" swerved to miss a deer. He maintained that what he had written down in his original ambulance crew report, which he did not see until the day he testified, was what Mr. Vandergriendt had told him -- that "he" swerved rather than "they". He confirmed that he was relying on the form to refresh his memory. [89] Mr. Lungul assisted in immobilizing Mr. Vandergriendt safely and loading him into the ambulance. He then went to Mr. Sanford, whose resting place was 30 metres from the vehicle, and confirmed that he was dead. He drove Mr. Vandergriendt back to the hospital in the ambulance and had no further conversation with him. Mr. Earp was attending to him in the back. [90] Mr. Vandergriendt's counsel also relied on Mr. Lungul to confirm in cross-examination that the fire department used both firehoses and the application of some type of foam to attempt to suppress the fire in the Explorer -- actions that counsel considered relevant to the integrity of the interior of the vehicle as

it was later examined by ICBC's accident reconstruction expert. f) Accident Reconstruction Expert [91] Bradley Heinrichs is a professional engineer who was called by the third party. He was qualified to give opinion evidence about accident reconstruction. [92] He provided two reports, an original comprehensive report in March 2011 and an addendum in April 2014. The original report offers the opinion that Mr. Vandergriendt was probably the driver of the Explorer at the time of the accident. The addendum refutes the suggestion that he could have been cut free from the passenger seat. (It contains other conclusions about his ability to exit without the belt having been cut, but these have since been rendered irrelevant by the evidence of the witnesses who assisted him.) [93] Mr. Heinrichs's opinion is based on conclusions drawn from physical evidence that he found in the burned-out wreck of the Explorer when he examined it in a salvage yard in Nanaimo in November of 2010. [94] To grasp his conclusions it is important to understand the terminology that he uses to describe the seatbelt components of the vehicle. A latch plate is the piece of metal on the seatbelt that fits into the buckle. The webbing is the material that forms the actual "belt" portion of the seatbelt. [95] It was clear from his examination of the Explorer that during the post-accident fire in the upside-down

vehicle the interior contents had fallen down to the ceiling, where they became stuck in the melted material there when it cooled. This included latch plates and buckles from the seatbelts. The webbing was consumed in the fire. [96] What is important in this case is that two buckles were found on the ceiling between the two front seats. They were from the driver's seat and the front passenger seat. One had a latch plate inserted into it and one was empty. In Mr. Heinrichs's view this means that one of these seatbelts was buckled when the vehicle burned and one was not. The latch plate that was not buckled was found on the ceiling on the passenger side, near the door. This indicates to him that it was the front passenger seatbelt that was not buckled at the time of the fire. [97] If, as Mr. Heinrichs assumed for the purposes of his opinion, Mr. Sanford was ejected from the vehicle (probably thrown from the top as it was rolling) and Mr. Vandergriendt remained contained within it, then it is probable that Mr. Sanford was the unbuckled passenger and Mr. Vandergriendt was the belted driver. [98] Further, if Mr. Vandergriendt had been cut out of the passenger side seatbelt, as he contends, then given the orientation of the vehicle the driver's side latch plate would have been found on the ceiling at the driver's window, or would have been ejected from the vehicle. [99] The

cross-examination of Mr. Heinrichs focused on avenues of investigation that he had not pursued and facts that he had not taken into account. For example: · He confirmed that the burned condition of the Explorer's interior precluded any examination of the possible movements of the occupants within it; · He felt it would not have been that useful to analyze how many times the vehicle had rolled or whether Mr. Vandergriendt's injuries matched up with the damage to it. In the case of the latter issue, this was despite having access to Mr. Vandergriendt's hospital records; · Transporting the Explorer from the accident scene would have involved flipping it over, dislodging items inside and leaving other debris in the front seat area; · The transportation process would also have provided plenty of opportunity for the driver's side latch plate to fall out of the vehicle, if the driver's seatbelt had been unbuckled; · The latch plate for the rear passenger side could not be found. Mr. Heinrichs suggested that because there was a lot of clothing and construction gear in the area, that latch plate may not have had the opportunity to become stuck to the ceiling; · In theory that missing latch plate could be the one that was found on the ceiling on the passenger side, near the door. However, he could not think of anything that would have made it fall that far forward; · He does not know

what fire suppression measures were used or exactly what the rescuers did within the Explorer, other than that Mr. Vandergriendt's seat belt was cut; · This latch plate was located more towards the rear of the vehicle on the ceiling than directly below its pre-fire position. However he pointed out that the unbuckled latch plate was closer to where the front passenger latch plate would have been than to the rear passenger seat and that "it makes more sense for me for something to fall 10 centimetres aft than 90 centimetres forward." [100] Mr. Heinrichs's general position in response was that the seatbelt evidence that he has identified stands independent of those various other considerations and potential investigations and is not affected by them.

3. POSITIONS [101] Mr. Vandergriendt's counsel submits that the evidence that was provided on his behalf in the trial is essentially believable, and that it makes logical sense to conclude that he was the passenger at the time of the accident. [102] Mr. Vandergriendt stood up well to what was characterized as a dismissive cross-examination, and frankly acknowledged his personal difficulties with alcohol. [103] Since he was in a severe state of intoxication, he would obviously have had no intention of leaving the party until Mr. Sanford requested it. While he had previously refused Mr. Sanford's requests to drive the Explorer, in this case it was reasonable for him to conclude that it was safe to allow it. [104] There is certainly conflict in the evidence of the rescuers about their respective roles and Mr. Vandergriendt's position within the Explorer but it is only Mr. Thompson who continues to maintain that he was removed from the driver's seat. Counsel submits that this can be reconciled by considering the position of the vehicle -- on its roof with the driver's side severely crushed, causing it to lean towards the driver's side, with gravity causing Mr. Vandergriendt to fall towards it once his seat belt had been cut. This would have required Mr. Thompson to insert himself well into the Explorer to reach Mr. Vandergriendt, as he described, but would not necessarily mean that

Mr. Vandergriendt was in the driver's seat originally. [105] Mr. Heinrichs's expert evidence offers no certainty on this issue. He calls the unlatched buckle the passenger's but acknowledges that there is a latch plate missing from the back seat, and that the driver's side latch plate could have fallen out during the process of moving the Explorer. In general counsel submits that there is too much uncertainty about this evidence to give it more weight than the eyewitnesses who put Mr. Vandergriendt in the passenger seat. [106] To the extent that his left shoulder and right flank injuries are relied on by ICBC to support his position as the driver, counsel points out that Mr. Vandergriendt's claim to have had a right shoulder injury as well was supported by Amanda Haight, who saw him during the rehabilitation process. [107] In the plaintiff's theory, Mr. Vandergriendt was mis-identified as the driver based on initial statements at the scene and this error followed him through the medical treatment process and his involvement with the police. It was not until he recovered sufficiently to access memories of the events and spoke to Mr. Livingston that he was able to begin to correct that error and take his current position. [108] In that regard, it is not believable that Mr. Vandergriendt would confess to Bruce Sanford that he had "killed" his son in July of 2010 when a month

before that he was already taking that current position that he was the passenger in his dealings with a driving instructor. Moreover, Ms. Haight supports his description of only expressing sympathy to Mr. Sanford for his loss, not confession to responsibility for his son's death. [109] Counsel for the third party says that Mr. Vandergriendt's evidence is unreliable and that his position that he was not driving is motivated by his need to preserve his claim in relation to his injuries. [110] It makes no sense that he would forget that he was the driver for so many months, only to recover the correct knowledge through some unknown process, aided by what Mr. Livingston and others have told him. He has provided no medical evidence of the kind of head injury that could account for this process. [111] It also makes no sense that Mr. Sanford, who had a long-standing alcohol problem, would be preserving his ability to drive by restraining his alcohol intake at this party, or that Mr. Vandergriendt would suddenly abandon his long-standing refusal to allow him to drive the Explorer. Counsel submits that I should also reject his supposed recollection of confirming that Mr. Sanford was in a condition to drive after they left, something that has only occurred to him since his examination for discovery. [112] The evidence from witnesses at the accident scene that Mr. Vandergriendt was the

passenger is completely compromised, counsel argues. Mr. Livingston takes all the credit for the recue, including receiving awards. He seems to exaggerate the extent of his burns and just how imminent the risk of the fire was. He is also wrong about obvious details such as the weather that night and how he entered the Explorer. Counsel characterized his evidence as "melodrama for the purposes of recognition". Most fundamentally, counsel questions how Mr. Livingston could have been in the Explorer up to his waist to carry out the rescue if a person of Mr. Vandergriendt's girth was in the passenger seat. If he had been on the passenger's side Mr. Livingston would not have been able to enter. [113] Similarly, Mr. Bond clearly told the truth -- that Mr. Vandergriendt was the driver -- to the officer at the accident scene and his evidence was a transparent attempt to retreat from that to support his friend's position in the litigation. [114] In contrast, Mr. Thompson came to court with no personal relationships on the line and no axe to grind, and counsel submits that he gave intricate and plausible details of his involvement, which I should rely on. [115] Mr. Vandergriendt's indirect admission of driving to Mr. Earp in the minutes following the accident is not something that can be evaded and counsel argues that I should also prefer Bruce Sanford's version of what Mr. Vandergriendt

told him in relation to his son's death. In reaching that conclusion I am asked to reject Ms. Haight's support for Mr. Vandergriendt's version. If he was telling Mr. Sanford that in effect his son caused the accident it is unlikely that he would have shaken hands amicably with Mr. Vandergriendt at the conclusion, as she described. And in any event her partiality to his cause is demonstrated by her vague claim to have seen a right shoulder injury on some unspecified date during his rehabilitation.

4. DISCUSSION [116] My first conclusion is that Mr. Vandergriendt's evidence is not reliable. He did not explain in any believable way how he came to recover his current memory of having been the passenger at the time of the accident over the following months and no medical evidence has been provided that would account for its return. As he readily conceded, his conversations with Mr. Livingston about what happened played a pivotal role in confirming these supposed memories, and that raises a further concern about their integrity. [117] I also find it implausible that Mr. Vandergriendt would, in his intoxicated state, have tracked Mr. Sanford's alcohol consumption at the party to an extent that he could be satisfied of his sobriety, or that he would even have been in a condition to assess it reliably. In addition it seems highly unlikely that he would yield to Mr. Sanford's request to drive his vehicle after having refused so regularly in a variety of situations involving their respective consumption of alcohol. Most importantly, I reject Mr. Vandergriendt's claim that he confirmed Mr. Sanford's ability to drive after they left the party. Aside from the late date, relative to the commencement of this action and the examination for discovery, on which this additional memory has come to him, it is unbelievable that he would feel the need to confirm this fact if, as he also

claimed, he had previously been observing Mr. Sanford's consumption. [118] Although it is not capable of being conclusive on the issue, Mr. Heinrichs's opinion provides a helpful piece of circumstantial evidence in support of the conclusion that Mr. Vandergriendt was the driver. Despite the suggestions in cross-examination about additional kinds of forensic investigation that could have been carried out, it is speculative what if any contradictory evidence they could have yielded, and I agree with Mr. Heinrichs that his analysis of the use of seatbelts by the driver and passenger based on their post-fire conditions and the ejection of one occupant has a stand-alone quality that would not be affected by those other investigations in any event. I also think he has convincingly explained the absence of the rear latch plate and the unlikelihood of it falling to the place where the one that he believes belonged to the front passenger was found. [119] There are reasons to be cautious about Mr. Livingston's evidence. [120] He gave himself a prominence in the narrative of the rescue and conveyed a sense of the looming danger of fire and explosion that, on all the other evidence, was somewhat exaggerated. For example, while he modified the seriousness of his fire-related injuries somewhat from what he had claimed in his police statement, his version of the extent of the burning to his

hair during his time in the vehicle is still not borne out by the other evidence, including Mr. Bond's. And even Mr. Bond denied the primary role in the rescue that he claimed for himself. [121] He was mistaken about details of the events (the bad weather and the point of entry to the Explorer) that I would have thought were quite central to it. [122] He has been rewarded for his bravery and may be assumed to have an interest in preserving the version of events that led to it. [123] While the degree of moral blameworthiness involved in his fleeing the scene to avoid a bail breach is not determinative of his credibility, it is still relevant to an assessment of it that he put his own situational interests ahead of accurately informing the police of his role in the aftermath of a fatal accident, and that he did not give his version of events until long after his supportive position relative to Mr. Vandergriendt had solidified. [124] He has become good friends with Mr. Vandergriendt and participated in a post-accident examination of the vehicle with Mr. Vandergriendt's father that was based on their mutual belief that he was the passenger. [125] However, I do not know enough about the configuration and space within the Explorer to accept the further point made by counsel for the third party that Mr. Livingston certainly could not have entered up to the waist if a person of Mr.

Vandergriendt's girth had been on the passenger side, any more than I could be satisfied that the crushed ceiling would have caused him inevitably to fall towards the driver's side from the passenger's, as Mr. Vandergriendt's counsel argued. [126] Mr. Bond's evidence at trial was saddled with the impossible task of retreating plausibly from his contemporaneous statement to the police that Mr. Vandergriendt had been in the driver's seat. [127] I do not believe his claim that he gave that information out of uncertainty following Mr. Thompson's statement that Mr. Vandergriendt had "killed his buddy", or shock after experiencing the rescue. Whatever one thinks of Mr. Livingston's flight from the scene to avoid arrest, Mr. Bond accepted the suggestion that he had "lied" to protect him, which seems to me to represent a comfort level with active deception to suit his needs of the moment. [128] His account of remembering Mr. Vandergriendt's true position using a toy car and with the help of the interviewing officer "replaying" the incident, along with "with a bit of thinking" sounds to me like a wholesale re-creation of the incident, with the benefit of his subsequent friendship with Mr. Vandergriendt as a motivation, and the results are certainly not reliable. I am satisfied that his actual observations of Mr. Vandergriendt's position were those that he provided to the police on the

night of the accident. [129] He also confirmed that Mr. Thompson's role was given short shrift in his follow-up statements because, in effect, Mr. Thompson was not seeking any credit for his actions. This also suggested a result-oriented view of the facts. [130] In contrast I found Mr. Thompson's evidence had a straightforward and plainspoken quality, refreshingly free of friendships to uphold or axes to grind. [131] His account of the rescue had idiosyncratic detail about his actions and his observations within the vehicle that sounded like a natural recollection of actual events, and notably he fully credited the roles played by Mr. Livingston and Mr. Bond. His basis for asserting Mr. Vandergriendt's position within the vehicle is based on a logical and coherent description of how he was initially situated and ultimately removed. [132] While the role he describes himself playing ends up being an important one, he did not describe it in the self-aggrandizing manner that marred some of Mr. Livingston's testimony. He allowed that Mr. Livingston may have been mildly burned and that he himself was afraid of the fire spreading, but his manner of describing these issues had matter-of-fact quality that did not play upon these circumstances to make the situation seem more dramatic or make himself look better. [133] He has received no recognition for his efforts, is not friends with

Mr. Vandergriendt and has not been able to keep up with his relationship with Mr. Livingston and Mr. Bond because of his move to Alberta. [134] If, as was suggested in cross-examination, he also omitted Mr. Livingston from his initial police statement, something that was not definitively established, the other factors I have described would still leave me with a positive overall impression of his evidence. [135] As a result, I find Mr. Thompson to be a careful and disinterested witness and feel comfortable giving weight to his version of events[1]. [136] Mr. MacDonald was not as critical a witness, but his observations that Mr. Livingston entered the Explorer only up to his shoulder and that all three of his friends worked on the vehicle during the rescue tend to offer greater support to Mr. Thompson's account. Like Mr. Thompson, he has no personal relationship with Mr. Vandergriendt to influence his perspective. Of course he did not keep a continuous view of those events, so his descriptions cannot be conclusive of his friends' various roles. [137] While I am satisfied that Mr. Earp accurately recorded Mr. Vandergriendt's explanation for the accident and that this amounts to an indirect admission that he was driving, I think I should be cautious about giving it too much weight, in view of Mr. Vandergriendt's degree of intoxication, his level of responsiveness to questions and

the extent of the trauma that he had recently suffered. [138] Likewise while it is tempting as a matter of common sense to use the location of Mr. Vandergriendt's injuries as further circumstantial evidence of his position as the driver, I was struck by Mr. Heinrichs's comment that matching injuries to vehicle positions and dynamics is a specialized area of accident reconstruction and I do not feel comfortable weighing into it with only some hospital records of the locations of Mr. Vandergriendt's injuries and a vehicle in which the restraints in question have been completely destroyed by fire. Had it been appropriate to rely on this evidence however, I would have said that the medical evidence provided at trial, when properly scrutinized, does not support a corresponding abrasion on his right shoulder to the one on Mr. Vandergriendt's left shoulder, and that Ms. Haight's purported description of what would at that time have been a minor injury that had no legal significance as far as she knew (especially in contrast to the serious ones from which he was then recovering), coupled with her vagueness about when she actually observed it, is not reliable. [139] Finally, there is the alleged admission by Mr. Vandergriendt to Bruce Sanford in the form of an apology for killing his son. [140] First of all, I agree that Mr. Vandergriendt's statement the previous month to a driving

instructor that he was the passenger is admissible on his behalf, either as an exception to the prohibition against prior consistent statements or as a piece of original circumstantial evidence, because it tends to render it less likely that he would have gone on to confess the exact opposite to Mr. Sanford. [141] It is also true that Mr. Sanford has an interest in the outcome of this litigation, albeit on behalf of his grandchildren, and a reason to bear some hostility to Mr. Vandergriendt for his role in his son's death. Nevertheless I found him a low-key and thoughtful witness, and his account of how their meeting came about and his desire to assist Mr. Vandergriendt in his struggle, sounded realistic in human terms. [142] In contrast, Mr. Vandergriendt's and Ms. Haight's versions of this interaction had some shortcomings. It is not clear to me why Mr. Sanford would say he forgave Mr. Vandergriendt if, as Mr. Vandergriendt claimed, he had offered only an expression of sympathy for the loss. While it is possible, as Mr. Vandergriendt testified, that Mr. Sanford already believed that he was the driver, the statement of forgiveness that Mr. Vandergriendt describes is not responsive to what he claims to have said to Mr. Sanford. [143] For her part, Ms. Haight made what may have been a Freudian slip by initially characterizing Mr. Vandergriendt's statement as an apology, before

rapidly correcting herself. More importantly, it seems highly unrealistic that Mr. Sanford would not have reacted to being told that his son had essentially caused his own death, as she maintained in cross-examination. [144] Even after giving the earlier statement to the driving instructor its maximum potential weight I think it is more likely than not that the conversation occurred as Mr. Sanford described it. In particular I am satisfied that taking the public position that he was the passenger would not inevitably have precluded Mr. Vandergriendt from expressing remorse for his actual role to a close family member of his deceased friend, in a one-on-one conversation.

5. CONCLUSION [145] Balancing these various matters and giving them the weight that I have described, I conclude on a balance of probabilities that Mr. Vandergriendt was the driver of the Explorer at the time of the accident. There being no suggested contribution to the accident by Mr. Sanford if I find that he was the passenger, Mr. Vandergriendt's action against Mr. Sanford's estate must be dismissed. Correspondingly, I make a finding of liability against Mr. Vandergriendt in the Family Compensation Act action. [146] The third party is entitled to its costs against Mr. Vandergriendt at Scale B. I am not inclined to award costs to Bruce Sanford in his action because, to the very limited extent that the evidence in support of it did not duplicate the defence of Mr. Vandergriendt's action by the third party, the trial was conducted on his part entirely by the third party's counsel. If there is some reason why I should revisit that conclusion, then the parties may make written submissions. The Honourable Mr. Justice T.A. Schultes [1] Mr. Vandergriendt's counsel suggested in his reply submissions that the critical portions of Mr. Thompson's evidence were not put to Mr. Livingston in cross-examination. I do not agree. I think that Mr. Livingston was fairly confronted with the core proposition that Mr. Thompson had played a more important role in the rescue that Mr. Livingston was describing.