IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110202

Docket: M082360

Registry:
Vancouver

Between:

Pang Chu Tang

Plaintiff

And

Daniel Allan
Rodgers and
Ashleigh-Ann Dionne McLean

Defendants

Before:
The Honourable Madam Justice B.J. Brown

Reasons for Judgment

[1]            
This claim arises from a motor vehicle accident which occurred on August
16, 2006 near the intersection of 33^rd Avenue and Commercial Drive
in Vancouver.

[2]            
I am to determine only liability with respect to the accident.

POSITION OF THE PARTIES

[3]            
The plaintiff, Mr. Tang, says that he was driving westbound on 33^rd
Avenue intending to turn right into the driveway of his residence.  33^rd
Avenue, at the location where the accident occurred, has one travel lane going
each direction.  It is a wide road with enough space to allow vehicles to park to
the right of the travel lane.  The plaintiff slowed and turned into his
driveway.  As he did so, his vehicle was struck on the passenger side by the
defendant vehicle.  The defendant driver was attempting to pass the plaintiff
on the right.  The defendant driver did not honk or issue any other warning to
indicate that he intended to pass to the right.  The plaintiff says that the
defendants are 100% at fault.

[4]            
The defendants, Mr. Rodgers and Ms. McLean, argue that the plaintiff is
entirely to blame for the accident.  They say that he slowed down, signalled
left and moved left in the travel lane.  This gave the defendant driver, Mr.
Rodgers, the right to move to the right and pass, which he attempted to do. 
The plaintiff suddenly turned right, colliding with the defendant vehicle.

THE EVIDENCE OF THE WITNESSES

[5]            
Mr. Tang testified that on August 16, 2006 at 7:00 a.m. he had just finished
his shift at work and was driving home.  It was a fine day.  His house faces onto
33^rd Avenue; the entrance to the driveway is from 33^rd
Avenue.  He had lived in that residence for approximately three months.  He
drove north along Victoria Drive to 33^rd Avenue and turned left (or
west) onto 33^rd Avenue.  Just after he crossed Beatrice Street, he
turned his right signal on.  He looked to his rear view mirror and saw a
vehicle coming down 33^rd Avenue from Victoria Drive.  He started
slowing down and passed the last vehicle parked in the parking lane on the
right side of the road. He looked to his right side mirror to check for
bicycles.  He also looked at the sidewalk.  He saw no pedestrians, bicycles or
vehicles. He passed the alley and slowly turned towards his driveway.  He was
travelling at approximately 15 kilometres per hour.  As the front of his vehicle
entered onto the sidewalk, his vehicle was struck on the passenger side.  Mr.
Tang was adamant that his left turn signal had turned off automatically after
he completed his turn from Victoria Drive onto 33^rd Avenue.  He said
that his right turn signal was on from the time just after he passed Beatrice
Street until the time he turned right to enter his driveway.  He said that he had
been driving approximately three feet from the centre line and approximately
four feet from the cars parked to his right before he started his right turn.

[6]            
Gerald Korec was driving a Pontiac minivan, four cars back from Mr.
Tang’s vehicle on 33^rd Avenue.  There was a grade downhill from
Victoria Drive heading west on 33^rd Avenue, which permitted him to
see the cars ahead of him clearly.  He said that Mr. Tang’s vehicle slowed down
and that Mr. Tang put on his left turn signal.  He considered that strange and
started paying attention because there was no place for Mr. Tang to turn to the
left.  Mr. Tang moved over, hugging the yellow line and slowed and
increased his speed in spurts.  He came to a near stop and all of the vehicles behind
Mr. Tang pulled to the right to go around him.  Then Mr. Tang put on his right
turn signal, immediately before turning right.  He did not shoulder check
before doing so.  The Rodgers vehicle was almost beside the Tang vehicle when Mr.
Tang turned.  Mr. Rodgers had no time to stop.  The two cars between the Rodgers
vehicle and Mr. Korec’s vehicle were not involved and left the scene.

[7]            
In cross-examination, Mr. Korec conceded that he was upset with
Mr. Tang at the scene.  He acknowledged that it was possible that he
raised his voice at Mr. Tang.  He conceded that he spoke with someone at
ICBC and told them that they should “yank” Mr. Tang’s license.  Mr. Korec
acknowledged that it was possible that he had not seen a left turn signal on
the Tang vehicle.  He was adamant that he did not see Mr. Tang shoulder check
to the right before turning to the right.  Mr. Korec was of the view that
the right turn signal was on for possibly one click before Mr. Tang turned to
the right.  He thought that the speed of the Rodgers vehicle was 20 – 30
kilometres per hour, possibly a little faster, when Mr. Tang turned his vehicle
to the right.

[8]            
Ashleigh-Ann McLean was the front seat passenger in the defendant
vehicle.  She was the registered owner of the vehicle.  Her boyfriend, Daniel
Rodgers, was driving the vehicle.  As they crossed Victoria Drive on 33^rd Avenue,
the car in front of them signalled a left turn, then slowed, then continued
on.  He stopped with his left signal on, as if he were confused, for approximately
two minutes.  She said that the cars behind Mr. Tang were honking and that she
and her boyfriend decided to go around Mr. Tang’s vehicle to the right.  They
were about mid-point along Mr. Tang’s vehicle when suddenly Mr. Tang
pulled in front of them.  Mr. Rodgers hit the brakes and honked.  They were
stopped when Mr. Tang’s vehicle collided with the front of her vehicle and
dragged her vehicle to the curb.

[9]            
In cross-examination she said that she believed that Mr. Tang’s left
turn signal was on for approximately four minutes, including during the time
that they spent waiting behind Mr. Tang after he brought his vehicle to a
full stop.  She said that it came on at Beatrice Street and that she did not
see it go off until the right turn signal came on.

[10]        
She was asked if she made a statement to ICBC.  She did not remember
doing so, but acknowledged her signature on the written statement when put to
her.  She said that she would have read the statement before signing it.

[11]        
Mr. Rodgers testified that he was driving Ms. McLean’s car.  At around
Beatrice Street he saw the car in front of him put on its left turn signal and
slow down, intermittently tapping the brakes.  The traffic behind Mr. Rodgers
was crawling and Mr. Rodgers wondered what the vehicle in front of him was
doing.  That vehicle was quite far to the left and there was nowhere for it to turn
to the left.  He wondered if the driver intended to complete a u-turn.  They
were travelling at approximately 10 kilometres per hour.  Mr. Rodgers concluded
that the other driver did not know what he was doing, so Mr. Rodgers started to
go around the car, passing on the right.  The cars behind started to follow. 
Mr. Rodgers accelerated to pass.  When Mr. Rodgers was approximately
mid-span of the other vehicle, it suddenly turned to the right.  Mr. Rodgers
screeched to a stop and Mr. Tang’s vehicle collided with the Rodgers
vehicle.  Mr. Tang’s vehicle continued on and pushed the Rodgers vehicle until
it struck the curb.  Mr. Rodgers estimated the speed of Mr. Tang’s right turn
at approximately 10 kilometres per hour.  He thought that he was travelling at approximately
20 kilometres per hour as he passed on the right.

[12]        
In cross-examination, Mr. Rodgers acknowledged the statement that he had
given to ICBC.  He said that he “sort of reviewed it” at the time.  He did not
review it thoroughly before signing it.  Mr. Rodgers said that the Tang vehicle
was travelling at about 10 kilometres per hour when Mr. Rodgers pulled to the
right to pass it.  The Tang vehicle was not stopped and had not been stopped
before he moved to go around.  He said that the left turn signal had been on
since Beatrice Street.  Mr. Rodgers said that he did not honk before he
moved to pass on the right.

[13]        
Leslie Synhurst also gave evidence.  She has been a bodily injury
adjuster at ICBC for 21 years. She took a statement from the defendants and
spoke by telephone with Mr. Korec.  She said that her practice is to first ask
people to describe the events of the accident.  She then takes a statement from
them and walks them through it line by line.  She makes the individuals read it
and then makes any changes to it before they sign.  She has no recollection of
the statement that she took from Mr. Rodgers and Ms. McLean, but she
signed the statement and there is no reason for her to think that she did not
follow her usual practice.

[14]        
In their statement, Mr. Rodgers and Ms. McLean say nothing about Mr. Tang
signalling left before the collision. They say:

Suddenly, without warning the vehicle in front slammed on his
brakes. I had only enough time to slam on my brakes and swerve to the right. I
knew the fellow behind me was quite close and I did not want to get hit. It
seemed the best thing to do to avoid an accident….The vehicle in front had
not signalled a turn nor gave me any indication he was turning. He just stopped
very suddenly.

[15]        
Ms. Synhurst said that she received a call from Mr. Korec.  They
discussed the motor vehicle accident and she took notes of their conversation. 
He did not say that Mr. Tang had been signalling left before the collision.

DISCUSSION

[16]        
33^rd Avenue west of Victoria Drive is initially a two-lane
street on the westbound portion.  After a laneway mid-way along the block to
the west, 33^rd Avenue becomes a one lane roadway westbound.  It
remains a wide street with sufficient room to the right for parking.  There are
concrete barriers dividing the westbound and eastbound lanes on 33^rd
Avenue until mid-way past Beatrice Street, which is the first street west of
Victoria Drive.  The concrete barriers end shortly before the next laneway,
which is approximately 24 feet before the driveway to Mr. Tang’s
residence.  After the concrete barriers end, there is a solid yellow line
dividing the westbound and eastbound traffic on 33^rd Avenue.  To the
south on 33^rd Avenue, the block is solid, without streets or
laneways after the concrete barriers end.  Accordingly, for a vehicle
travelling westbound, there is no place to turn left to and no way to turn left
legally.

[17]        
I find that after Mr. Tang turned left from Victoria Drive onto 33^rd
Avenue, his left turn signal turned off automatically.  As he drove along 33^rd
Avenue, he drove slowly, tapping his brakes from time to time.  He crossed
Beatrice Street and passed the laneway immediately before his residence.  I
find that he was close to the centre line and immediately before starting his
right turn, turned on his right turn signal.  He then turned without checking
over his shoulder to see what traffic was behind him or to see what was to his
right side.  I find that he continued to drive forward even after his vehicle
collided with the vehicle driven by Mr. Rodgers.  I do not accept Mr. Tang’s
evidence that he had his right turn signal on the entire time after Beatrice
Street.  Had he done so, Mr. Rodgers would not have been confused as to Mr. Tang’s
intentions and Mr. Rodgers would not have been passing to the right.  I accept
the evidence of Mr. Rodgers, Ms. McLean and Mr. Korec, that the right turn
signal came on immediately before Mr. Tang turned to the right.  Had Mr. Tang
been as attentive as he said he was, checking his rear view mirror, checking
his right passenger mirror and shoulder checking, he would not have turned to
the right as he did.  He would have been aware of the traffic backed up behind
him and would have seen Mr. Rodgers moving to the right to pass on his
right.

[18]        
I also accept the evidence of Mr. Rodgers and Ms. McLean that
Mr. Tang continued to drive forward even after their vehicles collided.  I
accept their evidence that the Tang vehicle pushed theirs to the curb and
caused the right front passenger tire to flatten.

[19]        
I do not accept the evidence of Mr. Rodgers, Ms. McLean and Mr. Korec
that Mr. Tang was signalling left after he crossed Beatrice Street. 
First, as I have indicated, there was nowhere to turn left.  Second, Mr.
Rodgers and Ms. McLean do not mention the left turn signal in the statement
that they provided to ICBC on August 21, 2006.  That the left turn signal was
on would have been remarkable and an important factor to tell ICBC.  I do not
accept their evidence that they simply failed to advise ICBC of this point. 
Third, Mr. Korec acknowledged on cross-examination that he may not have been
correct when he thought that the left turn signal was on.  He did not mention a
left turn signal when he spoke with ICBC on August 24, 2006.

[20]        
I do not accept Ms. McLean’s evidence that Mr. Tang was stopped for some
time before he turned right and that the cars behind them were honking. I
accept the evidence of Mr. Tang, Mr. Korec and Mr. Rodgers that Mr. Tang did
not stop his vehicle.

[21]        
Section 158 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, prohibits
passing to the right in most circumstances.  Mr. Rodgers was negligent in
passing on the right without ensuring that it was safe to do so.  Mr. Tang was
moving slowly in the travel lane when Mr. Rodgers decided to pass.  Mr.
Rodgers did not know what Mr. Tang was doing and thought he was confused. 
Mr. Rodgers took a significant risk.

[22]        
Mr. Tang was also negligent.  Section 167 of the Motor Vehicle Act provides
that a driver of a vehicle must not turn the vehicle to the right from a
highway at a place other than an intersection unless the driver causes the
vehicle to approach the place as closely as practicable to the right hand curb
or edge of the roadway.  Mr. Tang did not do so.  Rather, as some drivers
do, he placed his vehicle to the left before turning right.  His vehicle was
not as close as practicable to the right hand curb or edge of the roadway. 
Second, Mr. Tang did not shoulder check or look to his right before
turning right.  Finally, Mr. Tang only turned his right turn signal on immediately
before the accident, which was too late to give warning to those behind him.

[23]        
The circumstances of this case are very similar to the circumstances that
were before Mr. Justice Curtis in Boyes v. Mistal, [1990] B.C.J. No.
1755, 1990 CanLII 528 (SC), aff’d 1992 CanLII 1954 (BCCA).  There Mr. Justice
Curtis said:

Mrs. Boyes did not give sufficient warning when she
signalled.  Like many drivers she signalled and turned almost simultaneously,
too late to warn Mr. Mistal.  Nor did Mrs. Boyes turn from as close as
practicable to the right hand edge of the roadway, she turned when there was
more than a car width to her right – thereby risking the sort of collision that
did occur.  Mrs. Boyes is at fault in the collision for these reasons.

I find Mr. Mistal’s fault to be
the greater.  Mrs. Boyes was occupying the only lane of travel, she never left
her lane, and had a right to be there.  Mr. Mistal chose to pass Mrs. Boyes
when she slowed down on the basis of what he assumed was happening.  She had
not signalled and Mr. Mistal should have known that in choosing to pass a
vehicle which was obviously intending some maneuver not yet signalled, in its
own lane, he was taking a significant risk.  I find Mr. Mistal to be 75% at
fault and Mrs. Boyes 25%.

[24]        
I, too, conclude that Mr. Rodgers’ fault was the greater.  I find
Mr. Rodgers 75% at fault and Mr. Tang 25% at fault.

“B.J. Brown J.”
The Honourable Madam Justice B.J. Brown