IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101202

Docket: M064776

Registry:
Vancouver

Between:

John
Luvera

Plaintiff

And:

Lenore
Helmine Benedict

Defendant

Before:
The Honourable Mr. Justice Wong

Oral Reasons for Judgment

Introduction

[1]            
THE COURT: This is a motor vehicle accident case involving a
collision between the plaintiff motorcyclist striking the defendant negotiating
a left turn in a controlled traffic light intersection.  At issue is the
appropriate apportionment of liability.  I have concluded that liability should
be apportioned equally.  These are my reasons.

The Background

[2]            
On August 28, 2005, at approximately 5:00 p.m., the plaintiff, John
Luvera, with his then wife Joanne seated behind him, was driving a motorcycle
southbound on the left travelling lane of the Trans-Canada Highway in Duncan. 
Approaching the intersection of Beverly Street, the weather was misty and the
roadway perhaps damp.  Traffic was moderate and somewhat congested in the right
adjoining travelling lane.  Mr. Luvera was accompanied by his friend, Martin Hudak,
on another motorcycle travelling in the same lane in a staggered formation two
motorcycle lengths ahead and to the right of Mr. Luvera.

[3]            
There is an advance amber overhead warning light mechanism north of the
intersection of Beverly Street for southbound Trans-Canada Highway traffic
which triggers to amber when the traffic lights are about to change from green
to amber.  The defendant, Lenore Benedict, driving a minivan, was travelling
northbound on the Trans-Canada Highway.  She entered the intersection on the
green-light phase and stopped mid-section in order to attempt a left turn to
proceed westbound on Beverly Street.  Two independent witnesses on vehicles
situated at the intersection, one stopped at the right travelling lane of the
Trans-Canada Highway southbound, and the other stopped on the westbound lane on
Beverly Street, observed Ms. Benedict making her left turn at the same time as
Mr. Hudak on the lead motorcycle enter and successfully leave the intersection
during the amber phase of the traffic light.  Mr. Luvera’s motorcycle followed
and entered probably in the late amber phase and collided with Ms. Benedict’s
vehicle in the right rear quarter panel shearing off the rear bumper. 
Unfortunately, Mr. Luvera’s right foot was momentarily wedged in the impact and
he was thrown off the motorcycle.  His wife, Joanne, still on the motorcycle,
slid to the right, fortunately suffering only soft tissue strain injuries.

[4]            
Ms. Benedict candidly admitted she attempted her left turn only when the
light turned from green to amber and the right-southbound-travelling-lane
traffic facing her had stopped.  She did not see the oncoming two motorcycles
until Mr. Hudak successfully evaded her by somehow going around her, followed
by Mr. Luvera’s motorcycle which struck her in the final phase of her turn. 
Messrs. Hudak and Luvera both say they entered the intersection either in the
green or start of the amber phase.  They said Ms. Benedict simply turned in
front of them.  Mr. Hudak was able to evade Ms. Benedict.  Mr. Luvera was not
able to do so.  Both the Hudak and Luvera vehicles were there to be seen
approaching the intersection at normal speed without slowing down had Ms.
Benedict paid attention to them.

The Law and Analysis

[5]            
In the March 2006 issue of the Verdict magazine, a publication of
the B.C. Trial Lawyers Association, at page 40, there is a useful discussion of
the jurisprudence in the article entitled, "Intersection/Right-of-Way
Cases – Making Sense of the Law" authored by Barbara J. Flewelling.  At
page 44, the author states:

There is a conflict in the cases about whether or not a
left-turning driver must wait until all other vehicles have nearly or actually
come to a stop before proceeding to make their turn.  Whereas the British
Columbia Court of Appeal in Kokkinis v. Hall, [1996] B.C.J. No. 1560,
has indicated that it is not necessary, in Mitchell v. ICBC, [2004] B.C.J. No. 1600, on a Rule 18A application, Mr. Justice Edwards was of the view
that the interpretation of the obligations of a left-turning driver as set out
in Kokkinis would invite left-turning drivers to assume rather than
determine that oncoming through drivers will stop as the light turns yellow and
requires through drivers to conduct themselves on the basis left-turning
drivers will do so.  Edwards J. felt that due to the fact that many drivers
regard an amber light as a signal to accelerate through an intersection, the Kokkinis
principle seems to endorse a hazardous assumption of the part of the
left-turning drivers.

In the Mitchell case, the
left-turning plaintiff turned left on an amber light.  Mr. Justice Edwards
found that the dominant through driver entered the intersection on an amber
light, the collision occurred when the light was red, and that he was
speeding.  Even though the judge said he could infer that the dominant driver
would have had time to stop after the light turned yellow or could but was
unable to stop due to speed, he still found that the left-turning servient
driver had a duty to take account of manifest hazards and, by failing to see or
react to the fact the van was approaching fast and not stopping, was
negligent.  He apportioned liability equally relying on s. 1(2) of the Negligence
Act as he was unable to determine different degrees of fault.

[6]            
The author concludes in her summary at page 45 as follows:

Summary

Intersection/right-of-way cases are very fact dependent and
it can be very difficult to assess liability with any precision.  However,
there are some general principles that can be gleaned from the case law:

Although a driver
who enjoys the right of way is entitled to assume that others will obey the law
and the rules of the road, this is not absolute and if she is aware or ought to
have been aware of the other driver’s disregard of the law and fails to take
reasonable care to avoid a collision, she may be found partially or even wholly
liable.

In determining if
a dominant driver ought to have been aware of another’s disregard of the law,
the courts seem to be taking a realistic approach to the exigencies of making
rapid decisions in circumstances where a reasonable driver also has to check
for cross-traffic and pedestrians.  The courts generally have recognized that
at very busy intersections, there are times when the only way a driver can
execute a left turn is on an amber light and a dominant driver may be found
liable for failing to stop at an amber light.

The onus is on
the servient driver to prove that the dominant driver was also negligent in
that his or her negligence was a cause of the accident.

There is some
conflict in the case law about whether a left-turning driver is obligated to
wait until the oncoming traffic is nearly or completely stopped.  Some cases
stand for the proposition that it is not necessary while others state that it
is prudent to do so and that a left-turning driver who fails to do so will be
found partially liable.

A servient left-turning driver has an
obligation to take reasonable steps to determine if the dominant driver poses
an immediate hazard.  The time this is determined is at the moment just before
the turn is commenced.  There is some conflict in the law about whether that
requires a servient driver to determine if the dominant driver is speeding and
may not stop at the light.

[7]            
Like my late colleague, Mr. Justice Edwards, factually I have also
concluded that both parties were equally at fault.  Mr. Luvera should have
approached the intersection with more caution in order to be able to stop
safely.  Ms. Benedict failed to take into account the manifest hazards in this
case of approaching motorcycles speeding towards her.

Conclusion

[8]            
The plaintiff is entitled to judgment of liability reduced to one-half.

“Wong
J.”