IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Knight v. Li, |
| 2011 BCSC 184 |
Date: 20110215
Docket: M083461
Registry:
Vancouver
Between:
Cameron Knight
Plaintiff
And
Jing Shu Li and Li
Hon Lu
Defendants
Before:
The Honourable Mr. Justice Harris
Reasons for Judgment
Counsel for the Plaintiff: | Joseph E. Murphy, Stanley J. Scott |
Counsel for the Defendants: | Robert F. Hungerford Tanya L. Martin |
Place and Date of Trial: | Vancouver, B.C. January 10-13, 2011 |
Place and Date of Judgment: | Vancouver, B.C. February 15, 2011 |
INTRODUCTION
[1]
This is a trial of liability for a motor vehicle accident that occurred
at about 9:45 p.m. on the evening of March 8, 2008 at the intersection of West 41st Avenue (41st Avenue) and Angus Drive in
Vancouver (the Accident). The plaintiff, Cameron Knight, was the operator of
a Volvo proceeding southbound on Angus Drive. The defendant, Jing Shu
Li, was driving a BMW 750i owned by his mother, the defendant, Li Hong Lu,
proceeding eastbound in the curb or slow lane on 41st Avenue. 41st
Avenue is a through street in excess of 18 metres wide with four lanes for
travel and additional room for parking on each side. Drivers entering 41st
Avenue from Angus Drive face a stop sign. The view to the right of 41st
Avenue from the stop sign is obscured by a hedge, requiring a driver to pull
forward to close to the curb edge of 41st Avenue to get a clear view
of traffic heading eastbound.
[2]
The collision happened within the intersection at a point in the eastbound
curb lane of 41st Avenue. The BMW struck the side of the Volvo as
the Volvo crossed in front of it.
[3]
Mr. Knight argues that the overwhelming
responsibility for the Accident should be borne by Mr. Li because he was
speeding through the intersection and failed to keep a proper look out for
vehicles crossing 41st Avenue. Mr. Knight has no memory of the Accident
and did not testify. Although he admits that he had been drinking before the Accident,
he says that this did not cause or contribute to it. His position is that the accident
reconstruction evidence proves that when he entered 41st Avenue in
his attempt to cross it, it was safe for him to do so and he therefore
established his right of way across the intersection. Mr. Knight
acknowledges, principally because he pled guilty to a charge of driving without
due care and attention, that he probably did not keep a proper look out as he
crossed through the intersection and did not take steps to avoid the collision.
He accepts that he should bear 10% of the fault for the Accident.
[4]
Mr. Lis position is that Mr. Knight
is solely at fault for the Accident. He says that Mr. Knight was
intoxicated and incapable of safely operating his car. There is no evidence
that he even stopped or slowed down before driving into the intersection. Mr. Knight
must simply have failed to recognise that Mr. Li, who had the right of
way, was approaching the intersection. Mr. Knight drove into the path of Mr. Li
who was driving at a speed that was not unsafe for the road conditions. He gave
Mr. Li no reasonable opportunity to avoid the Accident.
AGREED FACTS
[5]
The parties entered an Agreed Statement of Facts
as an exhibit. I set it out below in its entirety.
Background:
1.
As at March 8, 2008 the plaintiff, Cameron
Knight, was employed as a terrain park ranger at Grouse Mountain in North Vancouver.
2.
On March 8, 2008 he worked his shift at Grouse Mountain from 7:00 am to 2:30 pm.
3.
Following his work shift, the plaintiff began
drinking alcohol with work friends and acquaintances on Grouse Mountain at 3:00 p.m. on March 8, 2008.
4.
The plaintiff left Grouse Mountain at approximately 8:30 p.m. and drove his red 1994 Volvo 850 (the Volvo) from Grouse Mountain to the intersection where the collision occurred.
5.
The route the plaintiff used to drive from Grouse Mountain to his home, using Angus Drive, was the route he normally took to drive from Grouse Mountain to his home. This was also the route typically used by other members of the
plaintiff’s family who lived at the same residence.
6.
The collision occurred at approximately 9:45
p.m. on March 8 2008 at the intersection of West 41st Avenue and Angus Drive in Vancouver, B.C. (the Collision and the Intersection).
7.
The speed limit in this area is 50 km/h.
8.
41st Avenue
runs east-west and has two lanes of travel in each direction with the curb lane
being wide enough to also accommodate parked cars. At the Intersection, 41St Avenue is controlled by a flashing green light.
9.
The defendant, Jing Shu Simon Li, was driving
eastbound in the curb lane on West 41st Avenue.
10.
Simon Li was driving a black 2006 BMW 750i (the
BMW) with his brother, Steven Li, in the front passenger seat.
11.
The BMW was owned by Li Hong Lu and operated by
Simon Li with the consent of the owner, his mother.
12.
The plaintiff, Cameron Knight, was driving
southbound on Angus Drive.
13.
Cameron Knight was the driver and sole occupant
the Volvo.
14.
The Volvo was struck on the passenger side by
the front of the BMW in the Intersection (the Collision).
Facts Arising from Post-Accident Inspection of Vehicles:
15.
The BMWs front licence plate contacted the
Volvo on the seam between the front passenger side door and the front passenger
side fender.
16.
The crush to the Volvo was approximately 33 cm
on its longitudinal axis, 63 cm at the rocker panel, and 96 cm at the
mid-height of the door.
17.
The frontal crush to the BMW was approximately
15 cm at the left front and 55 cm at the right front. The frontal structures
were shifted to the right approximately 23 cm.
Facts Arising from Post-Accident Inspection of Accident Site:
18.
At the Intersection, West 41st runs
east-west with two lanes of travel in each direction, separated by a solid
centreline.
19.
Eastbound traffic on West 41st
approaches the Intersection with Angus Drive by travelling up a grade of
between 3 and 4 percent.
20.
Angus Drive is oriented
north-south with a single lane of travel in each direction.
21.
At the Intersection, there is a pedestrian
activated traffic light for traffic east-west on West 41st.
Southbound traffic on Angus Drive does not have a traffic light but does have a
stop sign.
22.
The stop line for southbound traffic at the
Intersection is located 3.5 metres to the north of the north side of West 41st.
23.
There was a laurel hedge on the northwest corner
of the Intersection. As of May 27, 2009, it extended to within 1.8 metres of
the north curb of West 41st Avenue.
Facts Arising from Information Collected by Investigating Police
Officers:
24.
Following the Collision, the Volvo came to rest
in the front yard of the single family home at 5726 Angus Drive on the
southeast corner of the Intersection.
25.
The Volvo travelled head-on into a tree and came
to rest facing southeast with its under-carriage lodged on a tree stump.
26.
The BMW followed the Volvo but collided with a
fire hydrant on the southeast corner of the intersection. The hydrant caused
the BMW to pivot. It came to rest directly behind the Volvo but facing the
opposite direction: northwest.
27.
The impact caused the fire hydrant to dislodge
and release a large volume of water at the scene of the Collision.
28.
A tire mark left by the BMW is visible in the
painted stop line for eastbound traffic on West 41st. The tire mark
is 6.8m from the point of impact.
29.
The Volvo travelled 18m from the north edge of West 41st Avenue to the point of impact.
30.
The Volvo and/or the BMW left the following
tire marks at the Intersection:
a. a curved tire mark starting on the stop line on the west side of
the intersection which continued to the east, curving in a clockwise direction
and deflected to the south within the Intersection;
b. a second tire mark, approximately parallel to a portion of the first
as noted in paragraph 30(a) above; and
c. six separate tire marks at the southeast corner of the intersection
and which were generally aligned in a south eastern direction toward the rest
position of the BMW and Volvo.
31.
As a result of the Collision, the plaintiff
sustained a traumatic brain injury which caused amnesia such that he has no
recollection of the Collision.
Facts
Arising from plaintiffs Blood Alcohol Testing:
32.
The plaintiff was unconscious at the scene of
the Collision.
33.
The plaintiff was transported via ambulance to Vancouver General Hospital (VGH) and arrived at VGH at approximately 10:22 pm.
34.
Medical staff at VGH collected samples of the plaintiffs
blood and urine for medical purposes in the course of treating the plaintiff
for the injuries sustained in the Collision.
35.
The plaintiffs blood sample was tested at the
VGH Laboratory and showed 45 millimoles of alcohol.
36.
The plaintiffs urine sample was tested at the
VGH Laboratory and showed metabolites of cannabis marijuana.
37.
PC Baxter obtained a search warrant for the plaintiffs
blood sample stored at VGH Laboratory and the warrant was executed on April 9,
2008.
38.
Pursuant to the search warrant, PC Baxter took
four vials of the plaintiffs blood from VGH Laboratory to the RCMP main
Toxicology Laboratory.
39.
The plaintiffs blood sample was labeled RCMP
Lab File No. 20080-1692 and was analyzed at the RCMP Toxicology Laboratory
on July 30, 2008. The results of the RCMP testing, as recorded in the
Toxicology Report of Jacqueline J. Mack, showed 168 mg of ethyl alcohol in
100ml of blood.
Facts Arising from Police Investigation
40.
By Information date September 5, 2008, the plaintiff
was charged with contravening section 253(a), 253(b) and 249(1)(a) of the
Criminal Code in relation to the Collision.
41.
The plaintiff pleaded not guilty of the charges
on the Information but guilty of section 144(1)(a) of the Motor Vehicle Act:
driving without due care and attention.
42.
The plaintiff was sentenced to a fine of $500 and a
driving prohibition for 6 months.
LEGAL FRAMEWORK
[6]
To assess liability in the present case I must consider the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 (the Act), the Negligence
Act, R.S.B.C. 1996, c. 333 and the common law.
A Drivers Right of Way
[7]
Section 186 of the Act places a duty on drivers to stop at stop
signs:
186 Except when a peace officer directs otherwise, if
there is a stop sign at an intersection, a driver of a vehicle must stop
(a) at the marked stop line, if
any,
(b) before entering the marked
crosswalk on the near side of the intersection, or
(c) when there is neither a marked crosswalk nor a stop
line, before entering the intersection, at the point nearest the intersecting
highway from which the driver has a view of approaching traffic on the
intersecting highway.
[8]
Section 175 of the Act determines a drivers right of way
following the stop required by s. 186:
175 (1) If a vehicle that is
about to enter a through highway has stopped in compliance with
section 186,
(a) the driver of the vehicle
must yield the right of way to traffic that has entered the intersection on the
through highway or is approaching so closely on it that it constitutes an
immediate hazard, and
(b) having yielded, the driver
may proceed with caution.
(2) If a vehicle is entering
a through highway in compliance with subsection (1), traffic approaching
the intersection on the highway must yield the right of way to the entering
vehicle while it is proceeding into or across the highway.
[9]
The driver with the right of way is termed dominant; the driver who must
yield is termed servient.
[10]
Therefore a driver is required to stop at a stop sign and is servient to
a vehicle which is either in the intersection or which is travelling on the
through way and is close enough to constitute an immediate hazard.
[11]
In his concurring reasons in Keen v. Stene, 44 D.L.R. (2d) 350 at
359, 1964 CarswellBC 223 (C.A.), Mr. Justice Davey adopted the following
definition of immediate hazard:
[A]n approaching car is an
immediate hazard if the circumstances are such as to require the driver of that
car to take some sudden or violent action to avoid threat of a collision if the
servient driver fails to yield the right-of-way. …
[12]
Note that it is the action required of the servient driver to avoid the threat
of collision and not to avoid the collision itself which is relevant to
assessing whether the dominant driver constituted an immediate hazard.
[13]
Davey J.A. continued at 359:
…"Speed and distance generally determine what
constitutes an immediate hazard", or as it was put by Cannon[ ] J.,
in Swartz Bros. Ltd. v. Wills, [1935] 3 D.L.R. 277 at 279, [1935] S.C.R.
628 at p. 632 [sic]: "Distance must be translated into time in
order to determine what are the rights of the parties."
But having said that, I must add that in most automobile
collision cases estimates of time, speed and distance do not lend themselves to
exact mathematical analysis, because the estimates are by their very nature
uncertain…
In my opinion s. 165 [now
s. 175], dealing with rights-of-way of drivers proceeding along through
streets, and stopped at stop signs on intersecting streets, is to be applied
broadly from the point of view of the motorist sitting in the driver’s seat,
and not meticulously by a Judge with the benefit of afterthought. The situation
confronting a motorist, even one waiting at a stop sign, is not a static, but a
fluid one, calling for quick appreciation and judgment. A driver waiting at a
stop sign ought not to enter a through street unless it is clear that oncoming
traffic does not constitute an immediate hazard. Excessive refinement of what
traffic is an immediate hazard will defeat the purpose of the right-of-way
regulations contained in s. 165 [now s. 175], and make them an
inadequate and confusing method of regulating traffic at intersections on
through streets.
[14]
Therefore to the extent possible, courts must assess evidence of speed,
distance and time to assess which vehicle had the right of way at the time the otherwise
servient driver entered the intersection. However the law does not require that
the measurement be overly precise. This is particularly the case given that a
determination of whether the dominant driver was an immediate hazard is only one
factor in assessing whether each driver met the requisite standard of care.
This is discussed in more detail below.
Additional Obligations
Reasonableness
[15]
The dominant driver must use reasonable care in exercising his right of
way. He must act to avoid a reasonably foreseeable collision: Walker v.
Brownlee and Harmon, [1952] 2 S.C.R. iv (note), 2 D.L.R. 450 at 460.
[16]
In Walker, Cartwright J. went on to discuss, at 461, what the
servient driver must prove in order to place any fault on the dominant driver:
… when A, the driver in the
servient position, proceeds through an intersection in complete disregard of
his statutory duty to yield the right-of-way and a collision results, if he
seeks to cast any portion of the blame upon B, the driver having the right-of-way,
A must establish that after B became aware, or by the exercise of reasonable
care should have become aware, of A’s disregard of the law B had in fact a
sufficient opportunity to avoid the accident of which a reasonably careful and
skilful driver would have availed himself; and I do not think that in such
circumstances any doubts should be resolved in favour of A, whose unlawful
conduct was fons et origo mali. [Emphasis added.]
[17]
Therefore the dominant driver is at fault if he had a reasonable opportunity
to avoid the accident but failed to do so. Note the standard is reasonableness;
the dominant driver is not required to take extraordinary steps to avoid the
collision: Salaam v. Abramovic, 2010 BCCA 212 at para. 25. Doubts are
to be resolved in favour of the dominant driver.
[18]
The provisions of the Act are guidelines for assessing fault in
motor vehicle cases. In Salaam at para. 21 the Court said:
[21] In the end, a court
must determine whether, and to what extent, each of the players in an accident
met their common law duties of care to other users of the road. In making that
determination, a court will be informed by the rules of the road, but those
rules do not eliminate the need to consider the reasonableness of the actions
of the parties. This is both because the rules of the road cannot
comprehensively cover all possible scenarios, and because users of the road are
expected to exercise reasonable care, even when others have failed to respect
their right of way. While s. 175 of the Motor Vehicle Act and other
rules of the road are important in determining whether the standard of care was
met, they are not the exclusive measures of that standard.
[19]
The Court continued at para. 33:
[33] The words immediate
hazard appear in both ss. 174 and 175 of the Motor Vehicle Act and
are used to determine when a vehicle may lawfully enter an intersection. They
determine who is the dominant driver, but do not, by themselves, define the
standard of care in a negligence action.
[20]
In assessing the standard of care, drivers are generally entitled to
assume that others will obey the rules of the road: Salaam at para. 25;
Walker at 460-61.
Approaching a Flashing Green Light
[21]
Section 131(5) places a duty on a driver approaching a flashing green
traffic signal to proceed with caution:
131 (5) When rapid intermittent flashes of green light
are exhibited at an intersection or at a place other than an intersection by a
traffic control signal,
(a) the driver of a vehicle approaching the intersection or
signal and facing the signal must cause it to approach the intersection or
signal in such a manner that he or she is able to cause the vehicle to stop
before reaching the signal or any crosswalk in the vicinity of the signal if a
stop should become necessary, and must yield the right of way to
pedestrians lawfully in a crosswalk in the vicinity of the signal or in the
intersection… [Emphasis added.]
[22]
Therefore the presence of a green flashing light at an intersection may
affect the liability of the dominant driver involved in a collision: Gautreau
v. Hollige, 2000 BCCA 390 at para. 15.
Speed Limit
[23]
In keeping with the legislation and the dominant drivers common law
duty to take reasonable care, [t]ravelling over the speed limit will only
constitute negligence if the speed prevented the driver from taking reasonable
measure[s] to avoid the collision: Cooper v. Garrett, 2009 BCSC 35 at para. 42.
Apportionment of Liability
[24]
If I determine that both parties are at fault, s. 1 of the Negligence
Act requires that I apportion liability. It provides:
1 (1) If by the fault of 2 or more persons damage or
loss is caused to one or more of them, the liability to make good the damage or
loss is in proportion to the degree to which each person was at fault.
(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.
(3) Nothing in this section
operates to make a person liable for damage or loss to which the person’s fault
has not contributed.
[25]
The case law defining fault in this context was summarized by Madam
Justice Fisher in Nonis v. Granata, 2010 BCSC 1570 at paras. 18-20:
[18] In this context, fault means blameworthiness. As
Ballance J. explained in [Hynna v. Peck, 2009 BCSC 1057] at para. 88,
blameworthiness is the degree to which each party is at fault and not the
degree to which each partys fault has caused the loss. In Alberta
Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505, the court stated
at para. 46:
Fault or blameworthiness evaluates
the parties conduct in the circumstances, and the extent or degree to which it
may be said to depart from the standard of reasonable care.
[19] In assessing the
relative degrees of fault, a number of factors may be considered. These factors
were summarized by Groves J. in Aberdeen v. Langley (Township), 2007
BCSC 993 at paras. 62-63, citing Heller v. Martens, 2002 ABCA 122
at para. 34 and David Cheifetz, Apportionment of Fault in Tort
(Aurora, Ont.: Canada Law Book, 1981), at 102-104:
1. The
nature of the duty owed by the tortfeasor to the injured person.
2. The
number of acts of fault or negligence committed by a person at fault.
3. The
timing of the various negligent acts. For example, the party who first commits
a negligent act will usually be more at fault than the party whose negligence
comes as a result of the initial fault.
4. The
nature of the conduct held to amount to fault. For example, indifference to the
results of the conduct may be more blameworthy.
Similarly, a deliberate
departure from safety rules may be more blameworthy than an imperfect reaction
to a crisis.
5. The
extent to which the conduct breaches statutory requirements. For example, in a
motor vehicle collision, the driver of the vehicle with the right of way may be
less blameworthy.
6. The
gravity of the risk created.
7. The
extent of the opportunity to avoid or prevent the accident or the damage.
8. Whether
the conduct in question was deliberate, or unusual or unexpected.
9. The
knowledge one person had or should have had of the conduct of another person at
fault.
[20] In most motor vehicle
cases, the driver in the servient position will bear a greater degree of
responsibility: see Gautreau at para. 18.
ISSUES
1. Who was
the dominant driver at the time of the Accident?
a. Was the
BMW an immediate hazard when the Volvo entered the intersection such that the Mr. Knight
should not have entered the intersection?
i. How
fast were the Volvo and BMW travelling at the time of impact?
ii. How
fast was the BMW travelling before Mr. Li saw the Volvo?
iii. How
far from the intersection was the BMW when the Volvo entered it?
2. Did the
dominant driver act reasonably in the circumstances?
3. If both
drivers were at fault, how should liability be apportioned?
APPLICATION OF THE LAW TO THE FACTS
1. Who was the Dominant Driver at the time of the Accident?
[26]
Mr. Knight was the servient driver when he was on Angus Drive at 41st
Avenue. Pursuant to ss. 175 and 186 of the Act, because he faced a
stop sign, it was his responsibility to yield the right of way to any traffic
on 41st Avenue and to proceed to cross the intersection only if the
intersection was clear and there was no immediate hazard. In addition, the
common law placed an obligation on him to ensure that it was reasonably safe to
proceed.
[27]
Mr. Knight asks that I find that he became the dominant driver by
operation of s. 175(2) of the Act. Mr. Knight is the plaintiff
in this action. He has the onus of proving his case. As the servient driver he
has the onus of proving that it was clearly safe for him to enter into the
intersection and in doing so he breached no duties to Mr. Li. He also has the
onus of establishing that he gained the right of way over Mr. Li and thereby
became the dominant driver.
[28]
In order to show that he was entitled to cross the intersection, Mr. Knight
must show that the BMW was not an immediate hazard at the moment he drove into
the intersection. To show that it is necessary for him to show, and for me to
conclude, that Mr. Li was not put in a position where he had to make a
sudden or violent manoeuvre to avoid the threat of collision.
[29]
To reach this conclusion, I must determine how fast both the Volvo and
the BMW were travelling at the relevant time, where the BMW was on 41st
Avenue relative to the intersection with Angus Drive when Mr. Knight
entered the intersection and how much time Mr. Li had to react to the
situation as it unfolded.
[30]
The only eye witness who testified was Mr. Li who
acknowledged that he saw Mr. Knights Volvo only when it was already in
the intersection, at about the 11 oclock position in his range of vision.
[31]
Resolution of these liability issues turns, therefore,
principally on the engineering evidence. Mr. Gough testified on behalf of Mr. Knight.
Mr.Leggett provided expert evidence for the defendants.
Mr. Goughs Expert Evidence
[32]
During the trial the defendants objected to the admissibility of the
expert report prepared by Mr. Gough on behalf of the plaintiff. They
submitted that the report was unreliable and given the extent to which its
conclusions depended on unproven assumptions of fact about the behaviour of the
drivers, did not meet the necessity test for admission into evidence.
[33]
I ruled the report admissible, since without it I considered that it
would be impossible to assess the relative speeds and locations of the two
vehicles and thus assess fault for the Accident.
[34]
In final argument, the defendants submitted that Mr. Goughs evidence
was of very limited utility. They said it was one-sided and biased. Mr. Gough,
they submitted, had demonstrated that he was simply an advocate for the
plaintiff and had not discharged his duty to assist the Court by providing
impartial and objective evidence on material issues.
[35]
I find that Mr. Gough gave his oral evidence objectively. He
readily agreed to propositions put to him in cross-examination. I have no doubt
that he fulfilled his obligations as an expert in giving his oral evidence. I
also reach the same conclusion insofar as Mr. Goughs report considered
the speeds of the vehicles involved in the collision at the moment of impact. I
do, however, have reservations about other aspects of the report.
[36]
Mr. Gough stated that the scope of his analysis was to determine
the speeds of the two vehicles prior to impact. If his analysis revealed that
the BMW was travelling in excess of the speed limit, he was to assess the
effect of speed on Mr. Lis ability to avoid the collision. But Mr. Gough
did not undertake that latter task in a proper manner. His analysis and the
conclusions he reached were critically shaped by assumptions he was instructed
to make, but which were not explicitly and clearly stated in the report. In
particular, he assumed that Mr. Knight stopped at the stop sign or at the
curb of 41st Avenue. If Mr. Knight did not stop, then Mr. Goughs
analysis of the time available for Mr. Li to avoid the Accident is
materially affected.
[37]
I accept that a careful reading of the report would reveal that the
analysis is based on certain assumptions about Mr. Knights driving and
that the conclusion he reaches about Mr. Lis apparent perception-reaction
time being so much greater than the average driver depends critically on those
assumptions. But in my view it should not be necessary to have to tease out the
implications of such limiting assumptions or for a trier of fact to depend on
skilful cross-examination to draw out and make clear how limiting assumptions
affect the opinions proffered.
[38]
Our new Supreme Court Civil Rules codify the obligations of experts
testifying in our Court. In my view, they restate obligations our law has long
recognised. The Civil Rules require a clear statement of the facts and
assumptions on which a report is based. It was incumbent on Mr. Gough to
state clearly the assumptions on which his report was based. He did not do so. He
did not provide me with an opinion of the effect of Mr. Lis excessive
speed on his ability to avoid the collision as he claimed. He gave me an
opinion of Mr. Lis ability to avoid the collision if certain assumptions
favourable to Mr. Knight were made. He said nothing about being instructed
to make those assumptions and nothing about the effect on Mr. Lis ability
to avoid the Accident if those assumptions did not hold.
[39]
It must be remembered that Mr. Goughs report is his evidence. In
my view, the report as written did not comply with the requirements in the
Civil Rules to state the facts and assumptions on which it is based. There is
nothing improper in an expert accepting assumptions of fact that affect the
opinions the expert provides, but they must be clearly stated. If they are not,
there is a real risk that the trier of fact could be misled. In this case it
required cross-examination to demonstrate the implications of the assumptions
for the conclusions reached about Mr. Lis ability to avoid the Accident. In
my view, in this case, given the opinion being offered, the report should have
clarified the effect of the assumptions about Mr. Knights driving on the
conclusions about Mr. Lis ability to avoid the Accident. By failing to do
so, this aspect of the report descended into little more than a piece of
advocacy.
a)
Was the BMW an Immediate Hazard when the Volvo Entered the Intersection?
[40]
To assess who the dominant driver was at the relevant time, I must
determine whether the BMW was an immediate hazard when the Volvo entered the
intersection.
[41]
Mr. Knight has no memory of the Accident. He did not testify. Mr. Li
did not see the Volvo until it was moving in the intersection. There is no
evidence about how Mr. Knight entered the intersection with 41st
Avenue. There is no way to know if Mr. Knight stopped at the stop sign or
in advance of the stop sign before entering 41st Avenue at a point
that would have given him a view of oncoming traffic on 41st Avenue.
Equally, it cannot be known if he simply drove straight through the stop sign
or whether he slowed, rolled into the intersection and then accelerated across
41st Avenue. The accident reconstruction evidence does not support
any inferences about whether Mr. Knight did or did not stop or what his
speed may have been when he entered the intersection.
[42]
There is also no eye witness evidence estimating how far the BMW was
from the intersection when the Volvo arrived there. Mr. Li did not give an
estimate, not having seen the Volvo until it had already entered the
intersection.
[43]
This gap in the evidence is important for the following reason: whether
the BMW was an immediate hazard is a function both of its distance from the
intersection with Angus Drive when the Volvo arrived there and the speed of the
BMW as it approached the intersection. As I have said, in the absence of
reliable eye witness evidence, the only way to attempt to find the necessary
facts is to rely on the accident reconstruction evidence. It is clear from Mr. Goughs
report that the position of the BMW when the Volvo entered the intersection
requires a calculation depending on two input variables. The calculation
involves multiplying the number of seconds the Volvo took to travel through the
intersection to the point of impact by the speed of the BMW in metres per
second.
[44]
The plaintiff submitted that the location of the BMW could be determined
without considering whether the Volvo stopped or not. I reject that submission.
Mr. Gough is correct that the location of the BMW at the moment the Volvo
entered the intersection is calculated in part by how long it took the Volvo to
travel from that point to the point of impact. In turn, the amount of time the
Volvo was in the intersection before impact is affected by whether it stopped
or not. If it did not stop, the time spent travelling across the intersection
is reduced, thereby reducing the distance of the BMW from the intersection at
any given speed.
[45]
The second variable determining the location of the BMW at the moment
the Volvo entered the intersection is the speed of the BMW as it approached the
intersection. Clearly, the faster the BMW was going, the further it was away
from the intersection; the slower, the nearer to it.
i. How fast were the
Volvo and BMW travelling at the time of Impact?
[46]
There are two classes of evidence bearing on the question of how fast Mr. Li
was driving the BMW. First, Mr. Li has estimated his speed variously at
somewhere between 60 and 70 km/h or more specifically 65 km/h. He also
described his perception of seeing the Volvo, the time that elapsed from his perception
of the risk to the Accident itself and his behaviour in the collision, namely,
braking and steering.
[47]
Secondly, the engineers have attempted to reconstruct the Accident using
input data gathered principally by the police. For practical purposes it is
common ground that at the point of collision there is a 95% probability that
the BMW was travelling at between 64 and 75 km/h and the Volvo was travelling between
23 and 34 km/h. These speeds were calculated using the principles of
conservation of energy and momentum. In brief form, Mr. Gough examined the
crush damage to both vehicles, their paths of travel from impact to resting
point and made a variety of assumptions about co-efficient of friction and the
absence of post-impact braking from which he then calculated the speeds of the
vehicles.
[48]
Mr. Goughs opinion states a fairly wide range of probable speeds for
the two vehicles. It is not clear to me from the evidence that the analysis
produces conclusions of probable speed for each vehicle which are independent
of the other or whether the conclusions are interdependent. In other words, if
the Volvo was travelling at 34 km/h does the probability increase that the BMW
was travelling at the lower end of the estimated range and vice versa?
[49]
Mr. Goughs analysis of the probable speed ranges of the two
vehicles was not challenged by Mr. Leggett on the instructions of counsel.
Nonetheless, it is necessary to repeat that the calculated speeds of the
vehicles depend on assumptions. Certain of those assumptions were conservative
and likely underestimate the speed of the BMW at impact. Others, such as the
co-efficient of friction at various points in the travel of the vehicle may
lead to an overestimate of its speed. In my view, the sophistication of complex
mathematical calculations can be beguiling and it is wise to maintain a healthy
scepticism about the reliability of any conclusions derived from assumptions
that may well not accord with the facts of a particular incident, especially
where both experts have had to rely on sparse first hand data derived from the Accident
scene. Estimates are inherently uncertain. Having said this, I accept the
estimates offered by Mr. Gough of the speed ranges of the two vehicles at
the point of impact as the best estimates available.
ii. How fast was the
BMW travelling before Mr. Li saw the Volvo?
[50]
The speed of the BMW at impact does not determine its speed as it
approached the intersection. This is so because the BMW may have slowed down in
reaction to Mr. Li appreciating the risk of a collision. Most likely any
slowing down was caused by Mr. Li braking prior to impact. In Mr. Goughs
opinion, Mr. Li probably did so. On the basis of photographs of tire marks
on the road before the collision he estimates that Mr. Lis pre-braking
speed was 74-85 km/h. That speed estimate depends on the assumption that Mr. Li
began to brake at the point where the first tire mark begins. If he began to
brake before laying down a tire mark, the pre-braking speed would rise, perhaps
to in excess of 110 km/h depending on how long Mr. Li braked before his
tires left a mark on the road.
[51]
Mr. Gough expressed the opinion that the tire marks shown in the
photographs were typical of those created as the result of the operation of the
automatic braking system (ABS) with which the BMW was equipped. In his opinion
they were not characteristic of yaw skid marks caused by the skidding of the
tires as the BMW was steered to the right in an effort to avoid the collision. He
supported his conclusion that Mr. Li did brake before impact by referring
to Mr. Lis statements that he hit the brakes and a study that found that
under certain test conditions, 99% of drivers reacted to the threat of an
imminent collision by braking at some point during the event.
[52]
Whether or not Mr. Li braked is critical to estimating his speed as
he approached the intersection before he recognised the imminent risk of a
collision and reacted to it. For the reasons already stated this is an issue
along the path to deciding where the BMW was when the Volvo entered the
intersection and whether at that place and speed it constituted an immediate
hazard to Mr. Knight.
[53]
Mr. Leggetts opinion contradicts Mr. Goughs on this primary
question. In Mr. Leggetts opinion the tire marks are classic yaw marks
(i.e. caused by skidding induced by steering to avoid the Accident). Their
character is inconsistent with the operation of the ABS. Therefore the physical
evidence is not probative of any braking. No inference can be drawn from the
marks themselves that any braking occurred. The marks do not rule out the
possibility that there was some braking. The only proper inference is that if
there was some braking, it had not engaged the ABS to leave those tire marks.
[54]
Mr. Leggett was not prepared to rely on Mr. Lis statement to
conclude that he had braked. He said that traumatic accidents like this occur
so fast that the human mind can barely assimilate the events. Witness
recollections tend to be unreliable. He gave the example of a driver saying
that he only saw a pedestrian when the pedestrian hit the front of his car,
even though there were thirty feet of brake marks leading up to the point of
contact. As a result, he thought that as an engineer it fell within his
expertise only to rely on objective data from which an analysis could be
conducted and not reach conclusions on unreliable subjective information.
[55]
Although he accepted that one study did produce the result that at some
time during an imminent collision 99% of drivers braked, something less than
50% will steer first then brake and an equal number will brake then steer.
[56]
Resolving the question whether Mr. Li did apply his brakes before the
impact is a difficult question. First, in my opinion, Mr. Lis
recollection that he braked may be probative of the fact that he did brake, but
not of the question whether the tire marks on the road are evidence that the
ABS was engaged. That conclusion turns on the question whether the marks are
characteristic ABS marks or not. As observed, the experts offer conflicting
opinions on this question. Mr. Gough says the marks are typical ABS brake
marks and uncharacteristic of yaw marks. Mr. Leggett says precisely the
opposite.
[57]
Mr. Gough says that the photographs show five tire marks left by
the BMW that begin on the white paint on the stop line at the west side of the
intersection on 41st Avenue. The stop line is for vehicles stopping
to allow pedestrians to cross the street. He says that the marks are
discontinuous and that this is typical of ABS brake marks, resulting from the
pulsing of the ABS as it maintains the vehicle at the threshold of braking
while allowing the vehicle to be steered. The first tire marks are narrow and
from the driver-side tires as a result of the greatest loading being on their
outside leading edge. In his view, if the marks had been left by only
aggressive steering, there would likely be continuous marks from more than one
tire not discontinuous marks. In his view the angle of steering alone would not
create enough sideways force to leave a mark. In cross-examination he agreed
that he was not certain that the marks were ABS marks and they could be tire
yaw, though if they were he would expect the marks to be continuous.
[58]
Mr. Leggett says that ABS marks are typically continuous and leave
highly characteristic marks as the ABS pulses at a very high frequency. ABS
brake marks display alternating darker and lighter shading every couple of
inches as the brake pulses on and off. That kind of shading is absent in the
photographs of the marks. Mr. Leggett enlarged the photographs to enhance
the view of them. On his interpretation, the marks were scallop-like in shape,
typical of yaw marks at an early stage in a steering manoeuvre before there is
sufficient friction to leave a broader mark. Mr. Leggett examined the
enlarged photographs of the first five tire marks. In his opinion, those
photographs showed the presence of tire marks in only three of the five
photographs, namely those of marks on the white lines. The two photographs on
asphalt within the intersection did not, he thought, show tire marks, although
I note that the police log does identify them as photographs of tire marks. Mr. Leggett
said that he would expect to see the tire marks on the white lines before they
were evident on the asphalt because they show up more clearly on the paint. As
noted above, Mr. Leggett said that the type of marks ruled out the
possibility that they had been left by the operation of the ABS. They did not
rule out the possibility that the steering manoeuvre that had left them was
associated with braking but the markings themselves were not evidence that
there had been braking.
[59]
Both Mr. Gough and Mr. Leggett are experts in the field. It is
surprising that radically conflicting views of the characteristics of yaw or
ABS marks would be offered. Mr. Gough was not asked specifically whether
he accepted that scallop-like marks are characteristic of yaw or whether typical
ABS brake marks alternate every couple of inches between lighter and darker
shading. He did not base his opinion of the shapes within the marks themselves,
though he did refer to their width.
[60]
Mr. Leggetts opinion about the appearance of ABS brake marks was
not directly challenged in cross-examination. His opinion on alternating
shading and the scallop-like shape of the marks was not challenged. Mr. Gough
did not give evidence in reply to contradict those opinions. Mr. Leggett
said that the literature, which he had with him in the courtroom, was clear in
supporting his opinion on these matters. I was not shown that literature, but Mr. Leggetts
statement was not challenged.
[61]
On the question whether the tire marks were ABS brake marks I prefer the
evidence of Mr. Leggett to that of Mr. Gough. The detailed basis of his
opinion was not effectively challenged. Mr. Leggett took the trouble to
enlarge the photographs to view the marks more clearly and thereby more
securely derive conclusions from them. If there were a basis to challenge the
foundation of Mr. Leggetts opinion, I would have expected Mr. Leggett
to have been challenged.
[62]
This conclusion does not, however, answer the question whether Mr. Li
did apply his brakes as he said he did. Although I am aware that a witness
recollection of what he did in an event that occurred in a very short time is often
not reliable, Mr. Li has consistently maintained that he braked. When that
evidence is assessed in light of the study that found that 99% of drivers braked
at some point in reaction to an imminent collision, I find it more likely than
not that at some point between recognising the risk of collision and the
Accident occurring Mr. Li applied his brakes, but prior to impact did not
engage the ABS.
[63]
The effect of this finding is that on the engineering evidence, Mr. Li
was travelling faster before he reacted to the threat of collision than at the
point of impact. The question is, how much faster?
[64]
Mr. Li says he was travelling about 65 km/h. He had checked his
speed by looking at his speedometer shortly after turning onto 41st Avenue
from Arbutus Street several blocks before the Accident scene. At other times he
estimated his speed at between 60 and 70 km/h.
[65]
I have no doubt that Mr. Li gave an honest estimate of his speed,
but it must be remembered that he was an inexperienced driver driving
unsupervised for the first or second time. The BMW is powerful and quiet. Accurately
estimating speed requires experienced judgment. It is likely that if the BMWs
speed crept up as he drove Mr. Li would not appreciate the extent to which
it had done so. But equally I would expect that if the car accelerated by 20 or
30 km/h, he would have been aware that he was driving significantly faster than
when he had previously checked his speed.
[66]
The engineering evidence also does not provide unequivocal assistance to
estimate the speed of the BMW. If there were some braking of uncertain force
for an uncertain time, the increase in pre-braking speed could be up to the
additional 10 km/h suggested by Mr. Gough as the adjustment he made for
ABS braking or possibly more if Mr. Li began to brake before the first tire
mark left on the road.
[67]
The impact speed range calculated by Mr. Gough produces a range of
possible speeds for the BMW and assigns a probability to each particular speed
within the range. The range is calculated with a 95% probability, i.e. it is
95% probable that Mr. Li was travelling at between 64 to 75 km/h, although
depending on how uncertainties are handled the absolute range consistent with
the calculations is 57.8 to 80.95 km/h. Unsurprisingly, the median speed is
approximately 70 km/h and the highest probability speeds cluster around a 68-72
km/h range.
[68]
Taking into account all of the above, I consider it unlikely that Mr. Lis
pre-braking speed was as low as 65 km/h but equally unlikely it was as high as
80 km/h. Mr. Li would have recognised that he had accelerated if he was
driving that quickly. Making some allowance for the effect of braking on his
speed and for the estimate of Mr. Leggett that Mr. Li had begun to
manoeuvre his car some distance before laying down the first tire mark, it is
probable that Mr. Li was driving at about 75 km/h before he braked and I
so find.
iii. How far from the Intersection
was the BMW when the Volvo entered it?
[69]
The next step in determining whether Mr. Li was an immediate hazard
to Mr. Knight is to determine how far the BMW was from the intersection
when the Volvo entered it. I repeat that the behaviour of the Volvo is one
variable involved in the analysis but the facts about its behaviour are
unknown.
[70]
Calculating the distance of the BMW from the intersection is
approximated by calculating how far it was from the point of impact when the
Volvo entered the intersection. The calculation requires an analysis of how far
the BMW travelled from the moment the Volvo entered the intersection. This is a
function of the time the Volvo was in the intersection as it travelled to the
point of impact and the speed of the BMW. For current purposes and ease of
analysis I assume the BMW travelled at a constant speed to the point of impact.
It is necessary to make an adjustment to reflect the fact that the point of
impact was some seven metres within the intersection.
[71]
Mr. Gough estimated at page 7 of his report that if the Volvo
entered the intersection from a stop at the north curb edge of 41st
Avenue, it would take it between 3.8 and 5.7 seconds to reach the point of
impact. If the BMW was travelling at 75 km/h, it would therefore have been
between 80 and 118 metres from the point of impact when the Volvo entered the
intersection.
[72]
Mr. Gough also estimated at page 9 of his report that if the Volvo
started from a stop at the stop sign (at which point the view west along 41st
Avenue is obscured by the hedge) and accelerated to the point of impact it
would take the Volvo between 2.7 and 4.1 seconds to reach the point of impact
from the time it entered the intersection itself. Travelling at 75 km/h, the
BMW would have been between 56 and 85 metres from the point of impact when the
Volvo entered the intersection.
[73]
This calculation is close to one of Mr. Leggetts calculations. He
estimated that if Mr. Knight slowed to 5 km/h at the stop sign and began
to accelerate, then it would take the Volvo between 2.8 to 4.1 seconds to reach
the point of impact from the point at which it was discernible as a hazard to
the BMW (a point I take to be close to the curb edge). On these assumptions,
the BMW would have been between 56 and 85 metres from the point of impact when
the Volvo entered the intersection.
[74]
Finally, Mr. Leggett estimated that if the Volvo did not slow down
at all before entering the intersection, it would have been discernible as a
hazard (again I take it that it became discernible close to the curb edge) for
between 1.9 to 2.9 seconds. At a speed of 75 km/h, the BMW would have been
between approximately 40 and 60 metres from the point of impact when the Volvo
entered the intersection.
[75]
Each of these estimates of distance must be adjusted by about 7 metres
to allow for the difference between the point of impact and the beginning of
the intersection.
[76]
Taking all this into account and making allowance for the uncertainties
of estimates, I find that the BMW was no more than 80 to 90 metres from the
point of impact if the Volvo started from a stop at the curb edge or 55 to 65 metres
if the Volvo did not stop at the curb edge but slowed down before entering the
intersection. On a balance of probabilities, I find that the BMW was likely
60-70 metres from the point of impact when Mr. Knight entered the intersection.
In other words, the BMW was likely 53 to 63 metres from the beginning of the
intersection.
Conclusion
on the BMW as an Imminent Hazard to the Volvo
[77]
In my view, it is clear as a matter of common sense that, where the
servient driver must cross a street as wide as 41st Avenue, even if a
car is no more than 80 to 90 metres from a potential collision within the
intersection it is an immediate hazard. A car which is as close as about 60 metres
is even more so. I find that, based on my assessment of the probable distance
of the BMW from the intersection, it was an immediate hazard when the Volvo
entered it. The driver of the BMW was placed in a position where he would be
required to take a sudden action to avoid the threat of a collision.
[78]
Mr. Knight ought not to have entered the intersection unless it
was clearly safe to do so. It is not appropriate for the court to approach this
issue with excessive refinement. It must do so broadly from the point of view
of the drivers. On that basis, as the BMW was an immediate hazard to the Volvo,
the Volvo ought not to have entered the intersection. Mr. Knight has not
established he had the right of way. Assessing whether a vehicle is an
immediate hazard is not a matter of fine calculation. The benefit of any doubt
should go to the otherwise dominant driver, in this case, Mr. Li.
[79]
I am reinforced in my view that the BMW was an immediate hazard by a
consideration of the time available to Mr. Li to react to the threat of a
collision without being required to make some sudden or violent manoeuvre to
avoid it. It must be remembered that again estimates are inherently uncertain.
The analysis should not be approached by way of fine mathematical calculation. Having
said that, Mr. Knight was required to assess the effect of his entering the
intersection on Mr. Lis driving options. If he, Mr. Knight, entered the
intersection, would he force Mr. Li to make a sudden manoeuvre to avoid the
risk of a collision? In making this assessment some allowance must be made for
the time that it reasonably would take for the driver of the BMW to perceive
that the Volvo was a potential hazard. Although, Mr. Li was approaching an
intersection with a flashing green light and he ought to have been paying
attention to the possibility that a pedestrian would activate the light, he
cannot be faulted if it took him some short time before he could be expected to
perceive the risk posed by the encroaching Volvo.
[80]
Allowance must be made for Mr. Lis perception-reaction time. As
defined by Mr. Gough, this is the time that elapses from when a risk
becomes discernible to reacting to it. I was told that the average day time
perception-reaction time, based on one study, is 1.5 seconds, but the standard
deviation is from 0.7 to 2.3 seconds. In other words, any time within that
range is a normal perception-reaction time. Mr. Knight was not entitled to
act as if Mr. Li had an average perception-reaction time. Drivers cannot
be expected to know the statistical averages of perception-reaction times, but
they can be expected to know that it takes time to perceive and react to events
and that the time it takes drivers to do so varies considerably. In my opinion,
a reasonable driver would assess whether it was safe to cross the intersection
making due allowance for the variability in an oncoming drivers reaction time
while leaving a safe distance between the two passing vehicles. In this case, I
find that, if Mr. Knight saw the BMW as it approached the intersection, he did
not allow a sufficient opportunity for Mr. Li to perceive and react to the
situation he created by crossing 41st Avenue.
[81]
Thirdly, there is some evidence from which a rough estimate can be made
of how much time elapsed in Mr. Li actually reacting to the threat of
collision. In an estimate, which I accept, Mr. Leggett calculated that Mr. Li
was steering to avoid the collision for between 0.9 and 1.2 seconds before
impact. This time needs to be deducted from the time available to Mr. Li
to discern the hazard and react to it.
[82]
Even if the BMW were 85 metres from the point of impact, allowing for
the time actually reacting to the threat, Mr. Li only had a total of about
three seconds to discern the risk and react to it. In my view, given the speed
that I have found Mr. Li was driving, that was insufficient time for the
Volvo safely to enter the intersection without requiring the BMW to undertake a
sudden or violent manoeuvre to avoid the threat of the collision. If the BMW was
closer to the point of impact, as I have found it was, the time available to Mr. Li
was correspondingly less. Even if the BMW had been travelling at 60 km/h, Mr. Li
would have had only an additional second if he were 85 metres from the point of
impact and less if he were closer. The BMW would still have been an immediate
hazard. In my view, there was not sufficient time available to Mr. Li to
avoid the threat of collision without being required to take some sudden or
violent action.
[83]
In my view, a driver in the position of Mr. Knight had an
obligation to assess whether it was safe for him to enter the intersection. Mr. Lis
BMW was there to be seen. Mr. Knight had to draw forward to a point where
his view along 41st Avenue was sufficiently unobstructed that he
could assess whether the BMW was an immediate hazard. Given the obstruction
posed by the hedge, that required him to draw forward to close to the curb
edge. Only then could he see properly.
[84]
Mr. Knight was required to stop before entering the intersection. There
is no evidence that he did so. In my view, given that he was the servient
driver, I should not speculate that he did stop. To assess whether it was safe
to enter and cross the intersection, Mr. Knight needed to decide, as I
have said, that he could safely cross in front of the BMW without requiring it
to take a sudden or violent step to avoid the risk of a collision. Mr. Knight
was familiar with the route. A driver familiar with driving in Vancouver and with
that route would know that typically drivers on main streets will drive some
10-15 km/h faster than the speed limit as the evidence disclosed is common. A
driver would know that there was a reasonable likelihood that the BMW was
exceeding the 50 km/h speed limit, especially on a wide street, in dry
conditions with light traffic. Although there are occasions when it may be
appropriate for a driver to assume that others will strictly obey the rules of
the road, it is not open to a driver to disregard the actual conditions he or
she confronts. It should have been apparent to a driver in Mr. Knights
position that Mr. Li was driving somewhat in excess of the speed limit,
even if he could not have been expected to make a finely calibrated estimate of
his speed.
[85]
I find that the BMW was an immediate hazard when Mr. Knight entered
the intersection. There was insufficient time for Mr. Knight to clear the
intersection without creating the risk of a collision if the BMW was between 55
and 65 or 80 and 90 metres from the point of impact when Mr. Knight entered it.
There was certainly insufficient time to clear the intersection if the BMW were
60-70 metres from the point of impact. As a result, it is not necessary for me
to base my finding that the BMW was an immediate hazard on a finding that Mr. Knight
did not stop at the curb side, which was practically the only safe point for
him to stop. Whether he stopped or not, the BMW was an immediate hazard.
[86]
If my conclusion that the BMW was an immediate hazard turned on whether Mr. Knight
stopped, I would be obliged to conclude that, having failed to prove that he
did stop, Mr. Li as the dominant driver at the moment the Volvo entered
the intersection is entitled to the benefit of the doubt. In other words, I
would be required to make my findings on the assumption that the Volvo did not
stop. The consequence of that finding would be that the BMW was likely well within
60 metres of the intersection when Mr. Knight entered it and Mr. Li would
have had correspondingly less time to avoid the threat of collision.
Conclusion
on the Dominant Driver
[87]
In my view, Mr. Li was the dominant driver at the time of the
Accident. Mr. Knight remained the servient driver throughout. Mr. Knights
breach of the standard of care caused or contributed to the Accident. Without
his breach the Accident would not have happened. Indeed, on the evidence, had Mr. Knight
kept a proper look out he could easily have stopped his car before the
collision.
2. Did the Dominant Driver act reasonably in
the Circumstances?
[88]
Having found that the Accident would not have happened but for Mr. Knights
breach of the standard of care, I must turn to consider whether Mr. Li
also breached the standard of care and, if he did so, whether that breach
caused or contributed to the Accident.
[89]
As I have previously observed, driving in excess of the speed limit is
not necessarily a breach of the standard of care. The question is what speed is
safe in the circumstances. Here, Mr. Li was driving on a wide street in
dry, light traffic conditions. He was approaching a flashing green light which
requires a driver to use caution in the event that a pedestrian might activate
it. I have found that he was driving at about 75 km/h.
[90]
In my view, Mr. Li was driving too fast for the conditions whether
or not he also faced a flashing green light. Given the presence of the flashing
light he was certainly driving too quickly.
[91]
It is common ground that the Volvo would have cleared the path of the
BMW if another 0.4 to 0.6 of a second passed before the BMW reached the point
where the impact occurred. Had Mr. Li driven 85 metres at 60 km/h it would
have taken another second to reach the point of impact and the collision would
not have occurred. If he drove 60 metres at that speed he would have taken an
additional 0.7 seconds to reach that point. The margins are fine, but the
collision probably would not have happened without any evasive action being
taken by him. Certainly, if he had driven those distances at 50 km/h, the Volvo
would have passed the point of impact with a margin of something in the order
of a couple of seconds.
[92]
Had Mr. Li been driving at 50 or even 60 km/h, not only would the Accident
not have occurred, but he would have had more time to react to avoid the Accident
by steering or braking. I find that by driving at an excessive and unsafe speed
Mr Li deprived himself of a sufficient opportunity to avoid the Accident which
a reasonably careful and skilful driver would have taken. The Accident would
not have happened but for Mr. Lis breach of the standard of care.
3. How should Liability be Apportioned?
[93]
Having concluded that the breach of the standard of care by both drivers
caused or contributed to the Accident, both are at fault. I turn, therefore, to
apportion liability which is a matter of assessing fault, not causation.
[94]
In my view, Mr. Knight is primarily at fault for the Accident. He
was the servient driver. As noted in the cases, where an accident occurs
partially because of the fault of the servient driver, that driver will typically
bear the majority of the fault. That principle applies here.
[95]
As the expert evidence demonstrated, Mr. Knight was intoxicated at
the time of the Accident. In other words, he was in a severe state of
impairment. His blood alcohol reading was 176 to 183 mg%. Impairment slows
reaction times and impairs vision, typically inducing a tunnel vision in which
an impaired individual focuses on one thing to the exclusion of others. It also
hampers control and coordination and undermines the ability to make correct and
appropriate decisions. An impaired drivers judgment is likely to be
compromised. Mr. Knight had a blood alcohol reading that suggests he was
severely impaired.
[96]
Of course, not all impaired drivers are involved in accidents; the
evidence suggests that most are not. Mr. Knight submits that his
impairment was not a contributing cause of the Accident. He says that his fault
lies in not keeping a proper look out as he crossed the intersection. The
suggestion is that his impairment has not been demonstrated to have caused or
contributed to that admitted fault.
[97]
I reject this submission. In my view, there is little doubt that Mr. Knights
ability to drive safely was compromised by his impairment. I have found that he
entered the intersection when he should not have. He also failed to see Mr. Lis
vehicle as he ought to have. Had he seen the BMW as he was driving in the
intersection he could, as the evidence established, readily have braked,
stopped and avoided the collision. In my view, the overwhelming probability is
that his impairment contributed to both these failures. Likely, he did not see
the BMW at all; if he did his capacity to assess the safety of entering the
intersection was undermined. There is no evidence that he saw the approaching
vehicle except for Mr. Lis observation that he thought that the Volvo
tried to accelerate out of the path of the oncoming BMW. If Mr. Li was in
any position to make a reliable observation on this matter, at best it
demonstrates that Mr. Knight saw the BMW far too late and later than he
ought.
[98]
I also do not place any weight on the argument that I should infer that
Mr. Knight was capable of and did drive carefully on his way home from Grouse
Mountain that evening. The suggestion that was made was that Mr. Knight had
successfully negotiated a complex route home and had driven without incident
through downtown traffic. In fact nothing is known about how Mr. Knight drove
home that night. While he may not have been involved in other accidents, it is
pure speculation to conclude that he drove well and safely rather than that he
was lucky not to have had an earlier accident. What is relevant here is whether
his impairment caused or contributed to this particular accident. I find that
it did.
[99]
Both the fact that Mr. Knight was the servient driver and that he
was driving impaired support my conclusion that Mr. Knight is primarily at
fault for the Accident.
[100] Mr. Li
was the dominant driver. He had no reason to expect that a driver at Angus
Drive would create the risk of a collision. He was nonetheless driving too
quickly in the conditions and given his experience. Moreover, he was
approaching an intersection controlled by a pedestrian-activated flashing green
light. His responsibility was to be able to stop if the light was activated. Although
he testified that he did not see a pedestrian at the cross-walk, in my view he
did not approach the intersection with sufficient caution.
[101]
Taking all of these factors into account, I find Mr. Knight 75% and
Mr. Li 25% at fault for the Accident. Counsel may make any submissions on
costs in writing.
Harris J.