IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101001

Docket: M091787

Registry:
Vancouver

Between:

Michael Hough

Plaintiff

And

Mark Wyatt

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]          
The trial of this action, on the issue of liability only, was heard at
the same time as the trial of action No. M082795, as ordered by Master Tokarek
on January 4, 2010.

[2]          
On March 3, 2009, the defendant, Mark Wyatt, was southbound on 168^th
Street in Surrey.  His friend Darlene Wells was a front seat passenger in his
Tracker sport-utility-vehicle.  Mr. Wyatt and Ms. Wells had been swimming at a
community centre and out for coffee and Mr. Wyatt was driving Ms. Wells to her
home.  To the north of the location where the collision between the vehicles
driven by Mr. Wyatt and Mr. Hough occurred, is the intersection of Fraser
Highway and 168^th Street; an intersection controlled by traffic
lights.  The next intersection to the south is at 80^th Avenue. 
There are no traffic lights at that intersection.

[3]          
Mr. Wyatt had recently purchased his Tracker.  At about the time Mr.
Wyatt’s vehicle passed the intersection of 168^th and 80^th,
Ms. Wells spotted a Tracker vehicle, similar to Mr. Wyatt’s vehicle, parked on
the east (opposite) side of 168th.  She drew Mr. Wyatt’s attention to the
vehicle.  Mr. Wyatt had friends who were interested in purchasing a Tracker,
and he instantly decided he wanted to take a closer look at the parked vehicle.

[4]          
At this point, 168^th Street slopes to the south.  There is
one lane of travel for southbound vehicles and another lane for northbound
vehicles.  There is a wide meridian in the centre of the road between the
southbound and northbound lanes, delineated by solid yellow lines, with broad
yellow lines traversing the meridian at an angle.

[5]          
To the right of the southbound lane at this point there is a bus
pull-out; an area designated for transit buses to pick up and drop off
passengers.  Mr. Wyatt pulled off the southbound lane of 168^th into
the bus stop pull-out and stopped, with his motor running.  He intended to make
a u-turn; to cross over the southbound lane and the meridian and then turn left
into the northbound lane in order to return to the location of the Tracker
spotted by Ms. Wells.

[6]          
Mr. Hough was also southbound on 168^th Street.  He had passed
the intersection with Fraser Highway where, he testified, he had stopped for a
red light.  He testified that he had almost immediately stopped again; at the
intersection of 168^th Street and 80^th Avenue, to allow
vehicles entering from 80^th Avenue to cross his path and head north
on 168^th.  His vehicle had a five-speed standard transmission. When
the vehicles entering from 80^th had cleared his path, Mr. Hough
resumed driving south on 168th.  He testified that he was either in second
gear, or had just shifted into third gear, but thought he might have
accelerated to 60 kph by the time of impact.

[7]          
Mr. Hough testified that he noticed a Tracker SUV parked on the right
side of the road.  He said that he did not see any tail lights or signal lights
illuminated on the Tracker.  Suddenly, Mr. Hough testified, the Tracker pulled
out and crossed the southbound lane in front of Mr. Hough’s vehicle.   Mr.
Hough testified that he had his hand on the gear shift and his foot on his
brake but had no opportunity to avoid the collision.  He could not recall if he
had applied his brake prior to impact.  He had the impression that the Tracker
had stopped or paused just prior to impact, perhaps because there was a vehicle
approaching from the south in the northbound lane.

[8]          
The front of Mr. Hough’s sedan collided with the rear driver’s side
wheel of the Tracker.  The impact caused the hood of Mr. Hough’s vehicle to pop
open.   He testified that he got out of his vehicle and the driver of the
Tracker got out and that the driver of the Tracker said he was sorry, and that
the accident was his fault.

[9]          
Mr. Wyatt testified that before beginning his u-turn he looked to the
right and left and shoulder-checked and that he did not see any traffic
approaching in the southbound lane.  He had no actual recall of having
activated his left signal light but said that it was his invariable practice to
use his signal light.  His passenger, Ms. Wells, testified that she heard
the signal light ticking.  She said she also looked to the left and did not see
any southbound vehicles approaching.

[10]       
Mr. Wyatt testified that when he started into his u-turn he “gunned” his
vehicle and pulled across the southbound lane.  I believe Ms. Wells said that
Mr. Wyatt “booted it”.  Photographs taken by Mr. Wyatt’s sister two days after
the collision reveal tire marks across the southbound lane that Mr. Wyatt
agreed had been made by his vehicle when he “gunned it”.  The front portion of
Mr. Wyatt’s vehicle was on the painted meridian area when the rear of the
Tracker was struck by Mr. Hough’s vehicle.  I conclude, however, that the rear
of his vehicle − the portion struck by Mr. Hough’s vehicle −
was in the southbound lane when the collision occurred.  In other words, when
the collision occurred, Mr. Hough was in the southbound lane of travel, not on
the meridian.

[11]       
This is evidenced by the location of sand that Mr. Wyatt testified had
been placed on the roadway to absorb liquid that had leaked from the radiator
of Mr. Hough’s vehicle after the collision.  The sand demonstrates clearly
that the collision occurred in the southbound lane.

[12]       
Both Mr. Wyatt and Ms. Wells testified that they did not see Mr. Hough’s
vehicle before the collision happened.  The position of the defendant, however,
is that Mr. Hough was negligent in driving at an excessive rate of speed and
that it was his speed that caused or contributed to the accident.

[13]       
Mr. Hough testified that he was driving 60 kph or less immediately prior
to the impact, having stopped to allow cars from 80^th Avenue to
cross his lane.  His estimate of speed is supported by his testimony that he
had only had time to shift into second or third gear prior to the impact with
Mr. Wyatt’s vehicle.

[14]       
The only evidence suggesting that Mr. Hough was driving at an excessive
rate of speed is that of the independent witness, Ms. Marnie Kozar.  Ms. Kozar
testified that she was northbound on 168^th, having just left work. 
She was heading up hill – she described it as a steep hill- when she saw a
vehicle parked on the west shoulder of the road start to make a u-turn.  She
applied her brakes because she realized the vehicle was going to enter her
lane.  She saw a southbound vehicle − Mr. Hough’s sedan − collide
with the vehicle that was making the u-turn.

[15]       
Ms. Kozar testified she saw the roof of the Wyatt vehicle − the
Tracker − fly into the air and land on the north-east shoulder of the
road.  She stopped her vehicle on the meridian, just south of the Tracker.

[16]       
Ms. Kozar testified that the speed limit for northbound vehicles in that
section of 168^th is 50 kph.  She was not sure, but assumed that the
speed limit for southbound vehicles was the same.  No evidence was led by
either the plaintiff or the defendant about the actual speed limit for
southbound vehicles.

[17]       
Ms. Kozar testified that she spoke to both drivers at the scene of the
accident.  She said that when she spoke to Mr. Hough she said “You were going a
bit quick there” and that he replied that he was late for a job interview. 
This statement, if made, is not an admission by Mr. Hough that he was driving
at an excessive rate of speed.

[18]       
I note also that Ms. Kozar’s testimony was not put to Mr. Hough in
cross-examination, as it should have been.  Defence counsel did not even
suggest to Mr. Hough that he had spoken with Ms. Kozar at the scene of the
accident.  Mr. Hough’s testimony in direct examination was that he was en
route from a place where he had been sent to work by an agency that assigned
him jobs as an industrial safety officer; and that after the accident his
mother picked him up and drove him to a friend’s home.  This was not challenged
in cross-examination.

[19]       
Ms. Kozar’s testimony was that she saw Mr. Hough’s sedan before the
collision − perhaps a few car lengths from the point of impact −
and thought that it was going to collide with the Tracker.  She said she
perceived the sedan to be going quite quickly.  Defendant’s counsel asked her a
leading question “Do you mean speeding?” to which Ms. Kozar replied “Yes”.  She
was not asked to explain the basis of her perception, or to provide an estimate
of the speed of Mr. Hough’s vehicle.

ANALYSIS AND REASONS

[20]       
For the reasons that follow, I conclude that Mr. Hough has demonstrated
on a balance of probabilities that Mr. Wyatt failed to meet the standard of
care expected of a reasonably prudent driver when he attempted to make a u-turn
at the location where he did.  He failed to see Mr. Hough’s vehicle, although
it was there to be seen.

[21]       
The location where Mr. Wyatt attempted his u-turn was at the crest of a
hill.  It was not an intersection and a u-turn was not permitted at this
location.  To complete the u-turn Mr. Wyatt had to drive across a wide painted
meridian area.   The meridian is marked on both sides by solid yellow lines,
indicating that vehicles should not pass.  Mr. Wyatt knew it was a risky
manoeuvre, as evidenced by his testimony that he “gunned” his vehicle, leaving
tire marks on the roadway as a result.

[22]       
Enlarged photographs taken at the scene by Mr. Wyatt’s sister indicate
that to the north of where the collision occurred, 168^th Street
curves to the west, and that Mr. Wyatt’s view of vehicles turning south onto
168^th from 80^th Avenue is partially obstructed by that
curve.  His view of northbound vehicles is also impacted by the steep hill
immediately to the south of where he commenced his turn.

[23]       
That Mr. Wyatt’s manoeuvre was unsafe is also confirmed by Ms. Kozar’s
testimony that she applied her brake once she realized that Mr. Wyatt was going
to pull across her path.  She agreed that she braked because she thought she
would otherwise collide with Mr. Wyatt’s vehicle when it entered the northbound
lane of travel.

[24]       
Having initiated an inherently dangerous manoeuvre, Mr. Wyatt failed to
keep a look-out for traffic approaching from the north.  I conclude that he was
focusing on traffic approaching from the south and failed to see Mr. Hough’s
vehicle.  Mr. Wyatt was negligent and his negligence caused the collision.

[25]       
The defendant has failed to prove on a balance of probabilities that any
negligent act or omission on the part of Mr. Hough contributed to the
collision.  The evidence of Ms. Kozar that she perceived Mr. Hough to be
speeding, or driving at a speed that was excessive in the circumstances, is
insufficient to establish negligence, or that the speed caused or contributed
to the accident.

[26]       
I accept Mr. Hough’s testimony that he had stopped for a red light at
the Fraser Highway intersection, and had stopped again at the intersection with
80^th Avenue to allow cars to cross his path.  He recalled having his
hand on the gear shift, and that he was either in second gear or had just
shifted into third gear when the collision occurred.  If the speed limit in the
area is 50 kph, and Mr. Hough was driving 60 kph, then he was exceeding the
speed limit.  I note, however, that driving 60 kph in a 50 kph zone is not
unusual.  There is no evidence from which I could conclude that the collision
would not have happened if Mr. Hough had been driving 50 kph.

[27]       
I am also not persuaded that Mr. Hough should have anticipated Mr.
Wyatt’s illegal manoeuvre or that if he had done so, he could have taken
effective steps to avoid the collision.  Mr. Hough said he did not see an
illuminated signal light on the rear of Mr. Wyatt’s vehicle.  An activated
signal light might indicate an intention to pull into the southbound driving
lane and drive south, when it was safe to enter the lane.  It would be entirely
unreasonable, in my view, to expect a driver observing the signal light to
anticipate that Mr. Wyatt would pull across the lane as a prelude to a
prohibited u-turn.

[28]       
I find the defendant’s negligence to be the sole cause of the accident.

COSTS

[29]       
Counsel made no submissions about costs.  It may be that they wish to
defer doing so until after the issue of damages has been settled or decided. 
If not, counsel should file written submissions about costs, no later than
October 31, 2010 and I will issue a decision about costs in writing.

“W.G. Baker J.”