IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Yacub v. Chipman, |
| 2010 BCSC 1215 |
Date: 20100830
Docket: M122053
Registry:
New Westminster
Between:
Shera Yacub
Plaintiff
And
Larry Chipman
Defendant
Before:
The Honourable Mr. Justice Truscott
Reasons for Judgment
Counsel for the Plaintiff: | C. Ho |
Counsel for the Defendant: | A.R. Ayliffe |
Place and Date of Trial: | New Westminster, B.C. July 15 and 16, 2010 |
Place and Date of Judgment: | New Westminster, B.C. August 30, 2010 |
[1]
On September 5, 2007 the plaintiff Ms. Yacub was operating her
Honda Civic motor vehicle south on King George Highway at the intersection of
76th Avenue in Surrey, British Columbia when her vehicle was struck
from behind by the defendants three-quarter ton Chevrolet pick-up truck that
had been travelling in the same direction behind her.
[2]
The plaintiff claims for injuries that she says she sustained in the
accident, but the issue of liability was severed from the issue of damages by
Court order of July 5, 2010 and the trial before me proceeded only on
the issue of liability.
[3]
The issues for determination are the liability of either or both
parties, and if both parties the appropriate apportionment of liability between
them.
[4]
Ms. Yacub was working at Surrey Memorial Hospital at King George
Highway and 96th Avenue until 3:00 p.m. on September 5, 2007. She
finished her shift at that time and left shortly thereafter in her car
travelling by herself south on King George Highway, intending to pass through
the intersection of 76th Avenue on her way home.
[5]
The road conditions on King George Highway at the time were good and the
weather dry and visibility was good as well.
[6]
King George Highway at 76th Avenue has two lanes running
south, two lanes running north and dedicated left-turn lanes for both north and
southbound traffic intending to turn east and west.
[7]
Ms. Yacub says she was travelling in the left through lane or lane
nearest the centre line as she proceeded south towards the intersection of 76th
Avenue. She says she was going approximately the speed limit of 50 kilometres
per hour and the flow of traffic was normal.
[8]
She says as she approached the intersection she noticed the traffic light
in the intersection turn amber for her so she stopped and then felt an impact
from behind.
[9]
She says her vehicle stopped a little over the centre of the stop line
at the north end of the intersection and she still had her foot on the brake at
the time of the impact.
[10]
She says she did not slam on her brakes but when the light turned amber
she did put her brakes on as hard as she could to stop before the stop line. She
says she had enough time to stop before the intersection when the light turned
amber.
[11]
She says her vehicle was pushed forward by the impact about
three-quarters of the way through the intersection and when it came to a stop
she then drove it further to the south stop line to clear the intersection.
[12]
The impact to the rear of her vehicle was quite substantial as her trunk
was pushed almost into the back seat of her vehicle.
[13]
She denies stopping approximately one-half way through the intersection because
she thought that a vehicle might turn left in front of her.
[14]
Ms. Sihota, a co-worker of the plaintiff at Surrey Memorial
Hospital, was also travelling behind the plaintiffs vehicle, also going home
from work.
[15]
She says as she approached the intersection of 76th Avenue
she was also in the left through lane immediately behind the plaintiff, in
heavy traffic.
[16]
About one-half block before the intersection she says a truck proceeding
in the right through lane beside her cut in front of her vehicle travelling
fast requiring her to apply her brakes.
[17]
She says she had to put her brakes on hard to avoid hitting the truck
that was now in front of her.
[18]
A couple of seconds later she heard the loud noise of a crash. She
couldnt see the plaintiffs vehicle at that time however, because the truck in
front of her blocked her view.
[19]
Ms. Hallett was a passenger in the defendants vehicle at the time.
She says they were on their way south on King George Highway to about 71st
Avenue and the defendants vehicle was in the left through lane for quite a
while before the intersection of 76th Avenue – at least five or six
blocks before.
[20]
She says the defendant was proceeding with the flow of traffic at
50 kilometres per hour and no less than two car lengths behind a smaller
vehicle, the plaintiffs vehicle, directly in front as they approached 76th
Avenue.
[21]
She says the light was green at all times for southbound traffic as the
small car in front entered the intersection and the defendants vehicle
followed it into the intersection. The light turned amber and the plaintiffs
vehicle stopped dead in the middle of the intersection.
[22]
As the plaintiffs vehicle entered the intersection she said the defendants
vehicle was about one car length behind as the gap of two to three car lengths
that had existed before had closed. She says the defendant did not speed up but
the plaintiff appeared to have slowed down.
[23]
When the plaintiffs vehicle braked in the intersection she says the
defendants vehicle had just crossed the north crosswalk on King George Highway
and the light had just turned amber.
[24]
She saw the plaintiffs brake lights come on and looked at the defendant
to see if he saw this as well. He looked in his side-view mirror to the right
lane to see if it was available and she did as well, and she saw a small car in
that lane.
[25]
The defendant then hit his brakes and impacted the rear of the
plaintiffs vehicle substantially enough to push the trunk into the back seat.
[26]
Afterwards she heard the defendant ask the plaintiff why she had stopped
in the middle of the intersection and she heard the plaintiff tell him that she
thought a vehicle in the left turn lane going north was going to make a left
turn in front of her, so she stopped.
[27]
Mr. Chipman confirms he was travelling in the lane nearest the
centre lane at least from 88th Avenue and was doing 50 kilometres
per hour with the general traffic. As he approached 76th Avenue the
plaintiffs vehicle was immediately in front of his.
[28]
He says he was travelling two to three car lengths behind the
plaintiffs vehicle but by the time the plaintiffs vehicle entered the
intersection he was a lot closer to her as he assumed she had slowed down.
[29]
In cross-examination he explained further that a lot closer meant he was
still about two car lengths behind her.
[30]
When his vehicle was at the north crosswalk he says he saw the light
turn from green to amber and the plaintiffs vehicle stop in the middle of the
intersection – an abrupt stop very fast.
[31]
At the 50 kilometres per hour he was travelling he thought it would take
him until the middle of the intersection to stop so he took a quick look to his
right and then applied his brakes. He skidded and hit the rear of the
plaintiffs vehicle and pushed it to the far side of the intersection.
[32]
When he approached the plaintiff afterwards he asked her why she had
stopped in the middle of the intersection and she said she thought that a
vehicle in the left turn lane proceeding northbound was going to turn in front
of her.
[33]
He did see a vehicle in that left turn lane as he approached the
intersection but he did not see it make any movement into the intersection.
[34]
He agrees however that left turn vehicles do sometimes turn in front of
oncoming vehicles and this is a possibility that can be foreseen by drivers.
[35]
He denies he was travelling in the right through lane at any relevant
time and then cut into the left through lane in front of Ms. Sihotas
vehicle.
[36]
He doesnt think he moved his vehicle from its resting position until
after the attending police officer told him to do so. He says his truck was in
the middle of the intersection where it impacted the plaintiffs vehicle and
not back at the beginning of the intersection where the officer says it was although
he says he may have moved it after the impact but he cannot recall now.
[37]
Corporal Neuman was the officer who attended the scene approximately
15 minutes after the collision.
[38]
He found the plaintiffs vehicle at the south end of the intersection,
with heavy rear end damage. He also found debris in the middle of the
intersection right in front of two parallel skid marks of approximately five
feet in length starting approximately three metres south of the north crosswalk.
This debris consisted of glass and plastic, obviously from a car.
[39]
He says the plaintiffs pick-up was at the north end of the intersection
and the skid marks were in front of the parked pick-up. To his knowledge
neither vehicle had been moved before he arrived.
Analysis and Decision
[40]
There are four provisions of the Motor Vehicle Act, RSBC 1996, c.
318 that are potentially relevant on the issue of liability in this case. They
are:
128 (1) When a yellow light alone is exhibited at an
intersection by a traffic control signal, following the exhibition of a green
light,
(a) the driver of a vehicle
approaching the intersection and facing the yellow light must cause it to stop
before entering the marked crosswalk on the near side of the intersection, or
if there is no marked crosswalk, before entering the intersection, unless the
stop cannot be made in safety,
…
144 (1) A person must not drive a motor vehicle on a highway
(a) without due care and attention,
(b) without reasonable
consideration for other persons using the highway,
…
162 (1) A driver of a vehicle must not cause or permit the
vehicle to follow another vehicle more closely than is reasonable and prudent,
having due regard for the speed of the vehicles and the amount and nature of
traffic on and the condition of the highway.
…
189 (1) Except when necessary to avoid conflict with traffic
or to comply with the law or the directions of a peace officer or traffic
control device, a person must not stop, stand or park a vehicle as follows:
(c) in an intersection, except as permitted by a sign;
[41]
I reject the evidence of the plaintiff that she stopped her vehicle at
the north end of the intersection of 96th Avenue in response to a
yellow light, before she was struck from behind.
[42]
I accept the evidence of Corporal Neuman that he found debris from her
vehicle in the middle of the intersection and skid marks leading up to that
debris from the north, indicating that the impact to the rear of her vehicle
occurred at the intersection of the skid marks and the debris in the middle of
the intersection.
[43]
This objective evidence on the roadway supports the evidence of Mr. Chipman
and Ms. Hallett that the plaintiff had stopped in the middle of the
intersection and not at the beginning of the intersection.
[44]
I accept the evidence of these same two witnesses as well that the
plaintiff told Mr. Chipman she had stopped in the middle of the
intersection out of concern that a vehicle about to left turn was going to do
so in front of her.
[45]
Unfortunately the plaintiff herself does not give this as a reason for
her stopping in the middle of the intersection and there is no evidence of any
vehicle proposing to turn left making any movement to do so that would support
any concern that she might have had in that regard.
[46]
In the absence of any such evidence she is not able to meet the
requirement of s. 189(1) of the Motor Vehicle Act that she did so to
avoid conflict with traffic and I must conclude that she violated s.
189(1)(c) in stopping in the middle of the intersection for no apparent reason.
[47]
This breach also puts her in violation of s. 144(1)(a) and (b) in
driving without due care and attention and without reasonable consideration for
Mr. Chipman using the highway behind her.
[48]
I accept the evidence of Ms. Hallett that Mr. Chipman was only
about one car length behind the plaintiffs vehicle as the plaintiffs vehicle
entered the intersection.
[49]
Mr. Chipmans first evidence on this issue was that he got a lot
closer to the plaintiffs vehicle than two to three car lengths by the time the
plaintiffs vehicle entered the intersection. This evidence would equate with
him closing the gap to about one car length as Ms. Hallett says.
[50]
It was only in cross-examination that Mr. Chipman sought to qualify
this evidence by saying that he only meant closing the gap down to two car
lengths. I reject this qualification in his evidence as it does not fit
with his earlier description of a lot closer than two to three car lengths.
[51]
Accordingly I conclude that as Mr. Chipman entered the intersection
he was following more closely than was reasonable and prudent having regard to
the speed of the two vehicles contrary to s. 162(1) of the Motor Vehicle Act.
[52]
This also put him in breach of s. 144(1)(a) and (b) for the same
reasons.
[53]
In my view the fair conclusion from these findings is that liability
should be apportioned against the plaintiff 75% and against the defendant 25%
and an order will go to that effect. The plaintiffs liability is greater
because Mr. Chipman would have no reason to think she would stop in the
middle of the intersection while the plaintiff had to know that this would be
unexpected to following traffic.
[54]
Corporal Neuman found Mr. Chipmans vehicle at the north end of the
intersection although Mr. Chipman doesnt think he moved it after impact
and Corporal Neuman didnt think it had been moved after impact. It obviously
was because the impact occurred in the middle of the intersection and so Mr. Chipman
must have backed it up to the north end of the intersection.
[55]
The parties will bear their own costs in the same proportion as their
liability.
The
Honourable Mr. Justice Truscott