IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100208

Docket:
M070752

Registry: Vancouver

Between:

Harvinder Singh Dhah

Plaintiff

And

Dustin Sidney Harris and Clarke
Donald Harris

Defendants

Before:
The Honourable Mr. Justice Nathan Smith

Reasons for Judgment

[1]            
The plaintiff was riding a motorcycle when he
collided with a pickup truck driven by one of the defendants. He claims damages
for personal injury, but by agreement of the parties this trial dealt only with
the issue of liability.

[2]            
The collision occurred on September 8, 2006, at
approximately 4:30 p.m. in the 3500 block of River Road in Delta. River
Road at that location runs in what I will for convenience refer to as a
north-south direction, although it is actually northeast to southwest. It
consists of one lane in each direction, separated by a double solid line. In
the area where the collision occurred, there is a gravel shoulder on the west
side of the road and a grassy area adjacent to the shoulder. On the east side,
there is no gravel shoulder and only a narrow grassy area that slopes down into
a ditch.

[3]            
The plaintiff was on his way home from work and
travelling in the northbound lane. The defendant, Dustin Harris, was driving a
pickup truck owned by his father, the other defendant. I will refer to the
driver Dustin Harris as “the defendant” for the balance of these reasons. The
defendant’s pickup truck had been parked on the west side of the road, facing
south, and he was turning around to enter the northbound lane.

[4]            
As the plaintiff approached the accident scene,
the road made an “S” curve, curving first to his right, straightening, and then
curving to his left. The collision occurred a short distance after the second
curve.

[5]            
The plaintiff testified that as he came around
the second curve, he suddenly saw a pickup truck in front of him moving from
his left to his right with its front wheels already across the centre line and
in the northbound lane. He said he immediately took his hand off the
accelerator and applied both the front and rear brakes. The plaintiff said that
he applied his brakes “pretty hard” because he considered the situation to be
an emergency. After the plaintiff applied his brakes, the motorcycle fell to its
side and both the plaintiff and the motorcycle slid some distance on the road before
hitting the side of the pickup truck.

[6]            
The plaintiff said that the pickup truck was
about 50 or 60 feet in front of him when he first saw it and, in
cross-examination, he estimated the speed of the truck at about ten kilometres
per hour (kph). Those estimates were obviously made on a very brief observation
in frightening circumstances and can be given little weight. As for his own
speed prior to seeing the truck, the plaintiff says he was travelling at
approximately the 50 kph speed limit.

[7]            
The defendant testified that his pickup truck
had been parked on the west side of the road, partly on the gravel shoulder and
partly on the grass. In order to turn around, he backed up onto the grassy area
until the pickup truck was perpendicular to the road, with a straight stretch
of road to his left and the “S” curve to his right. He said he then drove to
the edge of the road, saw no traffic to his left and two vehicles approaching
to his right. After waiting for those vehicles to pass, he said he checked
again to his left and right and, seeing no other traffic, began to make a left
turn across the southbound lane and across the centre line into the northbound lane.

[8]            
The defendant said he was making the turn slowly
because he was aware of the ditch on the east side of the road and wanted to be
sure of making the turn without driving into it. He said he did not see the
plaintiff before starting his turn and was not aware of the plaintiff’s
presence until impact.

[9]            
Shortly before reaching the S-curve, the
plaintiff passed a driveway where Suzanne Calnan was waiting to turn her car
onto River Road. After the motorcycle passed her, she turned onto the road,
travelling in the same direction. She testified that she lost sight of the
motorcycle as it entered the curve and that she came upon the scene of the
collision after it had already occurred.

[10]        
Ms. Calnan testified that she believed the
speed limit in the area was 50 or 60 kph and that the motorcycle appeared
to be travelling at a normal speed. The evidence of Ms. Calnan does not
permit me to make any specific finding of the plaintiff’s speed or to say
whether or not he was driving within the speed limit. However, I accept her
evidence as confirming that the plaintiff was not travelling at a noticeably
excessive or reckless speed.

[11]       A business that made large industrial containers was located on the
west side of the road at the S-curve. Some of those containers were typically
placed near the side of the road. In addition, some of that business’ employees
including, on the day in question, the defendant, parked their vehicles at the
side of the road. These containers and vehicles were to the plaintiff’s left as
he approached the portion of the road curving to his left. He said they
obstructed his view of the road around the curve.

[12]       The containers and parked vehicles were located to the defendant’s
right as he began his left turn. He testified that he could see the road for
approximately 300 feet to his right before the point at which the containers
obstructed his view. His distance estimate is based on measurements the
defendant made approximately two years after the accident. Photographs taken by
the defendant when he made the measurements in 2008 show containers in a
position similar to what is shown in earlier photographs that the defendant took
approximately two hours after the accident.

[13]       However, the defendant also testified that there were a number of
vehicles—he believes about six—parked between him and the containers. He took
the first set of photographs at a time when there was only one parked car—the
later photographs show only two.

[14]       The defendant says that the other parked vehicles did not obstruct
his view of the road as far as the containers. Of course, the defendant was
seated in the cab of a pickup truck, giving him a different vantage point than
what the plaintiff had while seated on a motorcycle. The fact that parked
vehicles did not block the defendant’s view says nothing about what the
plaintiff could or could not see coming from the opposite direction.

[15]        
The plaintiff also took photographs of the
accident scene. Because, as he says, they were taken “a few days” after the
accident, they are no more reliable as an exact reconstruction of the scene
than those photographs taken by the defendant. However, the plaintiff’s
photographs show more parked vehicles than do the defendant’s; they illustrate
that such vehicles were at least capable of creating additional view obstruction,
depending on their precise location and size.

[16]        
Both parties called expert witnesses in accident
reconstruction. The opinion of the defendant’s expert included an analysis of
sight lines and suggested that the plaintiff would have been able to see the
pickup truck in the centre of the road from at least 93 metres away, which would
have been more than adequate stopping distance at any speed below 100 kph.
The plaintiff’s expert criticized the defence expert’s analysis on a number of
points, including the fact that his measurement of sightlines considered only
the effect of the large containers and not the potential effect of other parked
vehicles. I do not find either expert’s opinion to be particularly helpful
because neither had the information necessary for a complete analysis.

[17]        
The defendant identified and photographed a skid
mark on the road which I accept was likely left by the plaintiff’s motorcycle. However,
there was no evidence of the length of that skid mark or the distance between
the end of the skid mark and the point of impact. There is no evidence of the
position of the two vehicles immediately after the collision and, as I have
said, no evidence showing the position of other parked vehicles. Much of this
evidence is missing because the police officer who attended a few minutes after
the accident did not consider it serious enough to warrant a detailed
investigation.

[18]        
There are photographs of the defendant’s pickup
truck showing a dent near the bottom of the truck box just behind the passenger
door. That dent is believed to have been caused by the impact with the
plaintiff. There is a repair estimate indicating what portions of the
plaintiff’s motorcycle were damaged, but no photographs of that damage.

[19]        
Lacking the data necessary to form a complete scientific
opinion, both experts have filled in the gaps with conjecture and argument. Neither
expert opinion provides a reliable basis on which to make any significant
findings of fact.

[20]        
As a result, my findings of fact must be based
on the evidence of the parties and the only independent witness, Ms. Calnan.
I have already said that, while I can make no finding of the plaintiff’s
precise speed, I accept Ms. Calnan’s evidence to the effect that the speed
did not appear to be unreasonable. I also accept the plaintiff’s evidence that
he did not see the defendant’s pickup truck until it was already in front of
him and that, at least as the plaintiff perceived the situation, he was too close
to stop safely.

[21]        
I also accept the defendant’s evidence that he
did not see the plaintiff before he began his left turn, but that in itself
does not answer the question of whether the plaintiff was there to be seen. The
defendant says that he could see approximately 300 feet to his right and did
not see the plaintiff. If the plaintiff was not within that 300-foot area when
the defendant began his turn, the collision could not have occurred unless the
plaintiff travelled at least 300 feet in the time it took the defendant to
cross one lane and part of another—a distance of less than ten metres. Simple
arithmetic indicates that if the plaintiff was travelling at, for example,
60 kph, it would have taken him more than five seconds to reach the point
of impact.

[22]        
I find it highly unlikely that the defendant was
moving at the extremely slow speed that that would imply. I find it more likely
that the defendant was focussed on the tightness of the turn and the need to
avoid the ditch across the road and that he failed to pay sufficient attention
to situation to his right. Either he allowed more time than he now recalls to
elapse between looking right and beginning his turn or he simply failed to
notice the plaintiff who was there to be seen.

[23]        
Even if the defendant was turning at an
extremely slow speed and the plaintiff was not there to be seen when the
defendant began his turn, the plaintiff obviously would have come into view at
some point before the collision. On the defendant’s own evidence, he did not
look to his right again before he crossed the double solid centre line.

[24]        
It is a matter of common knowledge that roads
are typically marked with a double solid line at locations where drivers will
have reduced visibility of the road ahead. Sections 155 (1)(a) and 156 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318, read as follows:

155  (1) Despite anything in this Part, if a
highway is marked with

(a) a solid double
line, the driver of a vehicle must drive it to the right of the line only,

156  If the
driver of a vehicle is causing the vehicle to enter or leave a highway and the
driver has ascertained that he or she might do so with safety and does so
without unreasonably affecting the travel of another vehicle, the provisions of
sections 151 and 155 are suspended with respect to the driver while the vehicle
is entering or leaving the highway.

[25]        
Counsel for the defendant argues that the
defendant reasonably concluded that he could safely enter the roadway and was
leaving enough distance for oncoming vehicles to adjust to his presence. He argues
that the effect of s. 156, in those circumstances, is that once the
defendant entered the roadway, other drivers including the plaintiff were
required to “accommodate” his position. In effect, counsel argues that if the
defendant determined on reasonable grounds that he could safely cross the
centre line, he acquired the right of way from the moment he entered the
roadway.

[26]        
I cannot accept that submission. Section
155(1)(a), standing alone, contains an outright prohibition against crossing a
double solid line. Section 156 does no more than provide limited exceptions to
that absolute prohibition. It does not, in my view, diminish the duty to
proceed with caution and it does not remove the right of way from another
driver who is approaching in his or her proper lane.

[27]        
In any event, the question of whether or not the
defendant was in violation of the statutory provision is not determinative. The
question is whether the defendant kept a proper lookout and took appropriate
care in the circumstances: Dickie Estate v. Dickie and De Sousa (1991),
5 B.C.A.C. 37 (C.A.).

[28]        
In Dickie, the plaintiff was in the
process of making a u-turn across a double solid line when he was struck by the
defendant who was approaching at an excessively high speed. The Court of Appeal
said at para. 12:

[The plaintiff]
was engaging in a manoeuvre that was fraught with danger. He placed himself and
the oncoming drivers in a position of risk. That being so, in my opinion, the
law required of him a very high degree of care which would manifest itself in a
sharp lookout before he crossed over the solid double line into the northbound
lanes on the causeway. There was nothing to prohibit Dickie from seeing the
oncoming De Sousa vehicle before his vehicle entered the northbound lanes of
travel.

[29]        
I find that the defendant in this case was
similarly “engaging in a manoeuvre that was fraught with danger”. He was making
a left turn across a double solid line at a point where there was no
intersection or driveway—at a point where oncoming drivers would have no reason
to anticipate vehicles entering the roadway. He knew there was a curve to his
right and knew or ought to have known that oncoming drivers might have limited
visibility. The location and the nature of his manoeuvre required him to pay
particular attention to the ditch across the road and I have found that he did
so at the expense of being attentive to oncoming traffic.

[30]        
I also note that the Court in Dickie
referred to the need for a sharp lookout before the driver crossed the centre
line and before he entered the northbound lanes. In the circumstances of this
case, it was not sufficient for the defendant to form an opinion about the
safety of his manoeuvre before he entered the roadway. He says that he looked right
at that point, but, in my view, his duty to keep a sharp lookout continued
beyond that. He gave no evidence of having looked again before crossing the
centre line; in my view, reasonable prudence required that he should have done
so.

[31]        
Therefore, I find that the collision at issue
was caused by the negligence of the defendant. The question then becomes
whether there was any contributory negligence on the part of the plaintiff.

[32]        
The defendant argues that the plaintiff was
clearly not keeping a proper lookout because he only saw the defendant’s pickup
truck when it was already crossing the centre line and that he should have seen
it as it entered the roadway. The plaintiff also knew or should have known from
his motorcycle training that a sudden application of brakes is to be avoided
because it causes the front wheel to lock, resulting in a loss of stability and
control. The defendant argues that the plaintiff could have avoided the
collision simply by slowing down.

[33]        
I agree that the plaintiff might have seen the
defendant’s pickup truck an instant earlier. However, there is no evidence that
seeing it an instant earlier would have made enough difference to avoid the
collision. Further, the plaintiff was travelling in his proper lane and had no
reason to expect anything other than a clear lane of travel ahead of him.

[34]        
Similarly, the plaintiff may, in hindsight, have
had alternate courses of action open to him, although there is no evidence that
they would have made a difference. However, he did not have the luxury of
carefully considering all his options. He reacted to the sudden appearance of a
dangerous situation in front of him.

[35]        
In Pacheco (Guardian ad litem of) v. Robinson
(1993), 75 B.C.L.R. (2d) 273 (C.A.), the defendant was turning left at an
intersection when she collided with the plaintiff’s bicycle. Neither saw the
other until just before the collision. The Court of Appeal reversed the trial
judge’s finding of contributory negligence, saying at para. 11:

[11]      The
plaintiff was not bound to guard against every conceivable eventuality but only
against such eventualities as a reasonable person ought to have foreseen as
being within the ordinary range of human experience. The plaintiff was entitled
to proceed on the assumption that all other vehicles will do what it is their
duty to do, namely observe the rules regulating traffic.

[36]        
In Zarifeh v. Narcisse, 2006 BCSC 969,
the plaintiff was attempting to make a “shallow u-turn” across a street and was
struck broadside by the defendant’s vehicle. The plaintiff admitted that he was
partially at fault, but argued that some liability should be attributed to the
defendant because she failed to see his vehicle as it began the u-turn. The
Court rejected that argument, saying at paras. 31-32:

[31]      In Ouellet v. Cloutier,
[1947] S.C.R. 521, the Court said:

The fact that an accident might occur is
not the criteria which should be used to determine whether there has been
negligence or not.  The law does not require a prudent man to foresee
everything possible that might happen.  Caution must be exercised against a
danger if such danger is sufficiently probable so that it would be included
into the category of contingencies normally to be foreseen.  To require more
and contend that a prudent man must foresee any possibility, however vague it
might be, would render impossible any practical activity.

As I understand the law, there is no
obligation on a driver to keep himself specially prepared for action in an
unforeseen emergency and it is only where the possibility of danger emerging is
reasonably apparent that special precautions must be taken. 

[32]      In Coulter (Guardian ad litem)
v. Leduc, 2005 BCCA 199, the Court said, at paragraph 37:

No duty will arise for the dominant driver unless
it is clear that he perceived the danger and had an opportunity to avoid the
accident.

Accordingly, Constable Leduc, as the
dominant driver, was entitled to proceed with reasonable caution based upon an
assumption that other drivers would obey the law and yield him the
right-of-way.

[37]        
In my view the same reasoning applies to the
position of the plaintiff in this case and I find that the negligence of the
defendant was the sole cause of the collision.

[38]        
The plaintiff will have his costs of the action
as ordinary costs at Scale B of the Rules of Court subject to any
matters either party wishes to bring to my attention with respect to costs. If
this is the case, the parties can apply for a different order for costs within
30 days of these reasons for judgment.

“N. Smith J.”