IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110714

Docket: M075011

Registry:
Vancouver

Between:

Aaron William Rackstraw also known as Aaron William Peters and Simon
Peter Rackstraw, Infants by their Litigation Guardian, Gertie Rackstraw, Gertie
Rackstraw and Andrew Travis Rackstraw also known as Andrew Travis Peters

Plaintiffs

And

William J. Robertson, A.M. P.M. Landclearing & Demolition Ltd,
Matsqui-Sumas–Abbotsford
General Hospital, Fraser Health
Authority, Dr. John Doe #1, Dr. John Doe #2, Dr. John Doe #3, Dr. John
Doe #4, Dr. John Doe #5; Nurse Jane Doe #1, Nurse Jane Doe #2, Nurse Jane
Doe #3, Nurse Jane Doe #4, Nurse Jane Doe #5, Physiotherapist Jane Doe #1,
Physiotherapist Jane Doe #2, John Doe #1, John Doe #2, John Doe #3

Defendants

Before:
The Honourable Madam Justice Fisher

Reasons for Judgment

[1]            
On November 22, 2005, Peter Rackstraw was injured in a tragic motor
vehicle accident.  He subsequently died in hospital.  His wife and children
claim damages against the defendants William Robertson and A.M. P.M.
Landclearing & Demolition Ltd. under the Family Compensation Act,
R.S.B.C. 1996, c. 126, for negligence arising from the accident. 
These defendants seek a dismissal of the claim against them under Rule 9-7 of
the Supreme Court Civil Rules, B.C. Reg. 168/2009.  The plaintiffs have
discontinued the action against the remaining defendants.

[2]            
The plaintiffs do not dispute the suitability of a summary trial to
determine the issue of liability for the motor vehicle accident.  The essential
facts are not in dispute.

The action

[3]            
Section 2 of the Family Compensation Act provides:

If the death of a person is
caused by wrongful act, neglect or default, and the act, neglect or default is
such as would, if death had not resulted, have entitled the party injured to
maintain an action and recover damages for it, any person, partnership or
corporation which would have been liable if death had not resulted is liable in
an action for damages, despite the death of the person injured, and although
the death has been caused under circumstances that amount in law to an
indictable offence.

[4]            
The plaintiffs claim that the accident was caused in part by the
negligence of the defendant Robertson, who was driving a vehicle owned by the
defendant company.  These defendants say that the accident was caused solely by
the negligence of Mr. Rackstraw.

The evidence

[5]            
The accident occurred shortly before 7:00 am on November 22, 2005, at
the intersection of Mount Lehman Road and Sunset Crescent in Abbotsford, B.C.  Mount
Lehman Road and Sunset Crescent meet in a T-intersection.  Mount Lehman Road
runs north-south and Sunset Crescent, which runs east-west, meets Mount Lehman
on the west side.  There are no traffic lights at the intersection.  A stop
sign governs the eastbound traffic on Sunset Crescent.  The roads are straight
and flat.  Mount Lehman Road has one lane of travel in each direction,
separated by a single, broken line in the vicinity of the intersection.

[6]            
The speed limit on Mount Lehman Road was 60 kph[1],
except for a school zone that is south of Sunset Crescent, where the speed
limit was 50 kph at the time of day the accident occurred.

[7]            
Mr. Robertson was driving a large tractor-trailer, traveling north
on Mount Lehman Road.  He decided to pass a northbound vehicle ahead of him. 
He did so at the end of the school zone where the centre line was broken.  As
the cab of his truck was just about at Sunset Crescent, Mr. Robertson
first saw the vehicle driven by Mr. Rackstraw, about a car and a half
length from the stop sign on Sunset.  He said that he could only see the first
20 to 25 feet of Sunset because the view is obstructed by a house and a hedge. 
Mr. Robertson also saw the vehicle proceed around the corner to head south
on Mount Lehman, without stopping at the stop sign.  At that point, he had not
completed his pass and the trailer was still in the southbound lane.  He felt
the Rackstraw vehicle hit the driver’s side front axle of the trailer.  Mr. Robertson
estimated that he was traveling approximately 65 kph at the time of the
collision.  He said in discovery that did not honk his horn because he had “no
time to do anything.”

[8]            
Mr. Robertson pulled over and stopped his vehicle.  The other
northbound vehicle did the same.  Mr. Rackstraw’s vehicle was in a ditch
on the west side of Mount Lehman Road and Mr. Rackstraw had been thrown
out of the vehicle through the passenger side windshield.

[9]            
Sander Ketellapper was the driver of the other northbound vehicle.  He
deposed that the tractor-trailer pulled into the southbound lane to pass him
before he reached Sunset Crescent and was almost back into the northbound lane
when it collided with the other car. He estimated that he was driving
approximately 45 kph and the tractor-trailer accelerated to a speed over 60 kph
when passing.

[10]        
There is some inconsistency in the evidence about the weather and road
conditions.  Mr. Robertson deposed that the weather was clear, the roads
dry and it was dark out with the temperature close to freezing.  In discovery, Mr. Robertson
described the condition as “early light” with good visibility. Mr. Ketellapper
deposed that it was dark and foggy and the road was damp but not icy.  Given
the evidence that Mr. Robertson was only able to see 20 to 25 feet down
Sunset and that he saw the Rackstraw vehicle as it was approaching the
intersection, I do not think that much turns on whether it was foggy or clear. The
accident occurred before 7:00 am in November, so it would not have been completely
dark.

[11]        
Police attended at the scene very shortly after the collision. Constable
Leisa Shea was the principal investigating officer.  She deposed that she
observed the windows of the Rackstraw vehicle to be icy and non-transparent.
The driver’s side windshield had a 12 by 24 inch area where the ice had been
scraped and there was one patch on the driver’s side window, approximately 12
inches high, which had also been scraped. The passenger side window had not
been scraped. It was not possible to determine the state of the passenger side
windshield, as it had broken away when Mr. Rackstraw was ejected from the
vehicle.

The positions of the parties

[12]        
The plaintiffs admit that Mr. Rackstraw had a duty to stop at the
stop sign on Sunset Crescent and failed to do so, and consequently he shares
liability for the accident.  They say that Mr. Robertson also shares
liability because he was negligent in attempting to pass another vehicle in the
southbound lane of Mount Lehman Road when it was not safe to do so.

[13]        
These defendants say that the accident was caused solely by the
negligence of Mr. Rackstraw in failing to stop at the stop sign, failing
to clear the windows of his vehicle, failing to keep a proper lookout and
failing to yield to through traffic on the highway that was so close as to
constitute an immediate hazard.

Legal principles

1.       The Motor Vehicle Act – rules of the road

(a)      Dominant and servient drivers

[14]        
Mr. Rackstraw, in approaching the intersection of Sunset Crescent
and Mount Lehman Road against a stop sign, was the driver of the vehicle in the
servient position and as such had the obligation to yield to vehicles
travelling on Mount Lehman Road.  Section 186 of the Motor Vehicle Act,
R.S.B.C., c. 318 [the Act] requires a driver to stop at a marked
stop line, or if there is no stop line at the point nearest the intersecting
highway from which the driver has a view of approaching traffic.  Section 175
requires a driver who has stopped at a stop sign to yield the right of way to
traffic on the through highway:

(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.

[15]        
It is only where the driver has complied with s. 175(1) that the
servient position moves to a driver in the position of Mr. Robertson.
Subsection (2) provides:

(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.

[16]         
In this case, Mr. Rackstraw did not comply with s. 186
or s. 175(2), so the Robertson vehicle maintained the dominant position.

[17]        
While the servient driver has the
obligation to yield, the dominant driver has a duty to act so as to avoid a collision
if reasonable care on his part will prevent it.  In Walker v. Brownlee,
[1952] 2 D.L.R. 450 (S.C.C.) Cartwright J. adopted the principle that the
dominant driver ought not to exercise his right of way if the circumstances are
such that the result of his doing so will be a collision which he reasonably
should have foreseen and avoided.

[18]        
Cartwright J. went on to
discuss at p. 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.

[19]        
This has not been interpreted to mean that the dominant driver is
required to take extraordinary steps to avoid the collision.  In Salaam
v. Abramovic, 2010 BCCA 212, the court stated at para. 25:

A driver like the defendant,
who is in a dominant position, will not typically be found to be liable for an
accident.  Drivers are generally entitled to assume that others will obey
the rules of the road.  Further, though defensive driving and courteous
operation of motor vehicles are to be encouraged, they do not necessarily
represent the standard of care for the purposes of a negligence action.  A
driver will not be held to
have breached the standard of care simply because he or she failed to take
extraordinary steps to avoid an accident or to show exceptional proficiency in
the operation of a motor vehicle.

(b)      Overtaking vehicles

[20]        
Rules with respect to overtaking vehicles in circumstances
similar to this case are set out in ss. 157(1), 159 and 160 of the Act:

157  (1) Except as provided in section 158, the driver of
a vehicle overtaking another vehicle

(a) must cause the vehicle to
pass to the left of the other vehicle at a safe distance, and

(b) must not cause or permit
the vehicle to return to the right side of the highway until safely clear of
the overtaken vehicle.

…

159  A driver of a vehicle must not drive to the left side of
the roadway in overtaking and passing another vehicle unless the driver can do
so in safety.

160  A driver of a vehicle must
not drive to or on the left side of the roadway, other than on a one way
highway, unless the driver has a clear view of the roadway for a safe distance,
having regard for all the circumstances.

2.       Common law duty of care

[21]        
The provisions of the Act do not provide a complete legal
framework but are to be regarded as guidelines for assessing fault in motor
vehicle accident cases.  In Salaam at para. 21, the court
held:

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.

[22]        
More particularly, the court said this about s. 175 of the Act,
at para. 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, in themselves, define the
standard of care in a negligence action.

3.       Apportionment of liability

[23]        
Finally, if I determine that the damage or loss was caused by the fault
of both Mr. Rackstraw and Mr. Robertson, I must apportion liability
between them.  Section 1 of the Negligence Act, R.S.B.C. 1996,
c. 333, provides:

(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.

[24]        
There are a number of factors that may be considered in assessing the
relative degrees of fault.  These are summarized in Cavezza Estate v.
Seifred, 2009 BCSC 447, aff’d 2010 BCCA 404. Counsel for the plaintiffs
relied on these factors as a basis for establishing liability.  This is not
correct. In the context of apportionment, the court assesses degrees of fault,
or blameworthiness.  Blameworthiness is not the degree to which each
party’s fault has caused the loss but rather the degree to which each party is
at fault.

Findings and analysis

[25]        
Mr. Rackstraw owed a duty of care to other drivers travelling on
Mount Lehman Road, in particular Mr. Robertson.  He breached that duty by
failing to stop at the stop sign, failing to keep a proper lookout and failing
to yield to the Robertson vehicle when he entered the roadway on Mount Lehman
Road.  Mr. Rackstraw was the servient driver at all times.

[26]        
Mr. Robertson also owed a duty of care to other drivers travelling
on Mount Lehman Road when he decided to pass the vehicle in front of him and
enter the southbound lane.  The plaintiffs say that Robertson breached his duty
by failing to ensure that he had a clear view of the roadway for a safe
distance, including eastbound traffic on Sunset Crescent.  With respect, I
disagree.

[27]        
Mr. Robertson complied with ss. 157(1), 159 and 160 of the Act.
He had a clear view of Mount Lehman Road for a safe distance ahead before he
started his pass.  He did not look for traffic approaching from Sunset
Crescent.  The law imposes a duty on him to keep a lookout for what was ahead
of him: see Samograd v. Collison (1995), 17 B.C.L.R. (3d) 51 (C.A.).  It
does not impose a duty to keep a lookout for traffic on intersecting roads; to
do so would indeed be dangerous.  Mr. Robertson was entitled to assume
that other drivers would observe the rules of the road, particularly those in
the position of Mr. Rackstraw, who was governed by a stop sign and an
obligation to yield: Salaam; Pacheco (Guardian ad litem) v.
Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.).

[28]        
Mr. Robertson was at all times the dominant driver.  However, in
accordance with Walker, he had a duty to act so as to avoid a collision
if reasonable care on his part would have prevented it.  In order to ground any
liability on Robertson, the plaintiffs have to establish that after he became
aware, or should have become aware, that Rackstraw was proceeding on to the
roadway without stopping, he had a sufficient opportunity to avoid the
accident.

[29]        
The plaintiffs point to three things: Robertson’s speed, his failure to
sound his horn and the size of his vehicle.

[30]        
Robertson was travelling at approximately 65 kph in a 60 kph zone. The
plaintiffs say that he started his pass when he was still in the school zone, where
the speed limit was 50 kph at that time of day.  However, the evidence does not
establish precisely where the school zone stopped and the 60 kph speed limit
resumed.  While there is a posted 60 kph limit on Mount Lehman Road just south
of Sunset Crescent, s.147(1) of the Act provides:

A person driving a vehicle on a
regular school day and on a highway where signs are displayed stating a speed
limit of 30 km/h, or on which the numerals "30" are prominently
shown, must drive at a rate of speed not exceeding 30 km/h while
approaching or passing the school building and school grounds to which the
signs relate, between 8 a.m. and 5 p.m., or subject to
subsection (1.1), between any extended times that are stated on the signs.
[Emphasis added.]

[31]        
The evidence shows that Robertson began his pass when the centre line
became a broken line, which appears to be after he had passed the school
grounds.

[32]        
In any event, the fact that Robertson was travelling over the speed
limit will only constitute negligence if his speed is what prevented him from
taking reasonable evasive action: see Cooper v. Garrett, 2009 BCSC 35 at
para. 42.  In my view, there is no evidence which establishes that
Robertson’s speed prevented him from doing so. His truck was just about at the
intersection when he first saw Rackstraw’s vehicle, and only his trailer, or
part of it, was still in the southbound lane when the impact occurred. 
Robertson’s evidence about this was consistent with that of the only other
witness, Mr. Ketellapper, who placed Robertson’s truck and trailer almost
back into the northbound lane when the collision occurred.

[33]        
Robertson did not sound his horn.  While he acknowledged that it would
normally take him a second to do so, he said that he had no time to do
anything.  While it may have been prudent for Robertson to have sounded his
horn as a warning, there is again no evidence that he had sufficient reaction
time or that a warning would have made any difference.  The circumstances here
are quite different from those in Pipe v. Dusome, 2007 BCSC 1066, and Eccleston
v. Dresen, 2009 BCSC 332, cited by the plaintiffs.  In each of those cases,
the defendant attempted to pass the plaintiff’s vehicle when there was some
uncertainty about what the plaintiff was going to do and there was no
suggestion that the defendant had insufficient time to sound a warning.

[34]        
The plaintiffs say that Robertson’s conduct in attempting to pass on an
urban, residential road in a large tractor-trailer created a serious risk of
injury to Mr. Rackstraw and other motorists. They submitted that because
the vehicle was much longer than a conventional one, Robertson knew or ought to
have known that any pass should have been carried out only where all traffic –
oncoming, eastbound and westbound – could be seen.  They also submitted that in
these circumstances, Robertson should have completed his pass before he reached
the intersection.

[35]        
I have already concluded that Robertson did not have a duty to keep a
lookout for traffic on intersecting roads. I cannot accept the plaintiff’s
submission that Robertson created a serious risk of injury by passing another
vehicle while driving a large tractor-trailer. The rules of the road apply to
all vehicles.  While the nature of a vehicle may have a bearing on what is
reasonable conduct, in the circumstances of this case, I cannot conclude that
Robertson breached his duty of care.  There is no basis to find that he ought
to have completed his pass before he reached Sunset Crescent.

[36]        
The circumstances of this case are similar to those in Ferguson v.
All-Can Express Ltd. et al, 2001 BCCA 57, where the plaintiff was in a
similar position as Mr. Robertson.  While the plaintiff was attempting to
pass a large truck and trailer, the defendant entered the highway from a
driveway on the left side of the road and turned right, into the lane in which
the plaintiff was approaching.  The plaintiff had no opportunity to see the
other vehicle until it entered the highway and neither party was able to take
any steps to avoid the collision.  The trial judge found the plaintiff to be
partially at fault, but this was reversed on appeal.  After referring to Walker,
McEachern, C.J.B.C. held for a unanimous court:

[23] As I see it in this case, the plaintiff was clearly in
the position of the dominant driver. The defendant was the serviant driver. The
plaintiff could only be found to have not used reasonable care if he should
have become aware of the defendant’s failure to comply with the obligation cast
by law upon him and if the plaintiff had sufficient opportunity to avoid the
accident of which a reasonable, careful and skilful driver would have availed
himself.

[24] As I see it there was no opportunity for the plaintiff
to avoid this accident. As he was engaged in a lawful manoeuvre I cannot agree
with the learned trial judge, with respect, when she found an apportionment of
liability should be made against the plaintiff.

[25] In my judgment this accident
was caused solely by the failure of the defendant to comply with the statutory
requirements and with the common law that imposed upon him an obligation not to
put him in the position where an accident of this kind would be inevitable once
he entered upon the highway without making sure he could do so without safety.

[37]        
Similarly, it is my opinion that the accident in the case at bar was
caused solely by the failure of Mr. Rackstraw to stop at the stop sign, to
keep a proper lookout and to yield to the Robertson vehicle when he entered the
roadway on Mount Lehman Road.  When Robertson started his pass, there was no
reason for him to believe that he could not do so safely or that he would
interfere with the travel of another vehicle.  As in Ferguson, he was
engaged in a lawful manoeuvre.  He did not see, and could not reasonably have
seen, the Rackstraw vehicle until he was just about at the intersection and he
had no reasonable opportunity to avoid the collision.

[38]        
In these circumstances, the plaintiffs’ claim in negligence against William
Robertson and A.M. P.M. Landclearing & Demolition Ltd. must be dismissed,
with costs to the defendants.

“Fisher J.”