THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110920

Docket: M091794

Registry:
Vancouver

Between:

Stephen Henry

Plaintiff

And

Danielle Bennett

Defendant

Before: The Honourable Madam
Justice Ballance

Reasons for Judgment

INTRODUCTION

[1]          
Stephen Henry claims damages for injuries arising from a motor vehicle
accident that occurred around 5:00 p.m. on September 17, 2008 at the
intersection of King George Boulevard (“King George”) and 68^th
Avenue, in Surrey, B.C.

[2]          
Liability and quantum of damages are both in issue.

BACKGROUND

[3]          
At the time of the accident, Mr. Henry was 20 years old. He was
driving southbound on King George in a light-silver BMW that had been recently
acquired by his father. He intended to proceed straight through the controlled
intersection to White Rock, where he lived with his grandmother. It was rush
hour and the flow of traffic along King George was steady. It was not raining
and the roads were not wet.

[4]          
The subject intersection is relatively long and wide. King George has
two travel lanes in each direction, with dedicated left and right turn lanes. 68^th
Avenue has one through travel lane each way that branches off to form a
separate right turn lane just before it reaches the intersection. There is also
a left turn lane in each direction, with an advance turn signal activated by
the presence of left turning vehicles. At the time of the accident, there was
no left turn signal for traffic on King George. Mr. Henry was relatively
familiar with the intersection, having previously driven through it
approximately twenty times.

[5]          
The defendant, Danielle Bennett, was one day short of her 23^rd
birthday and five months pregnant when the accident occurred. She was driving
her dark-grey Honda Civic northbound along King George intending to turn left at
the intersection and then continue west on 68^th Avenue. She too was
familiar with the area and the intersection.

[6]          
The evidence establishes that as Ms. Bennett approached the
intersection, she pulled into the left turn lane on King George and entered
into the intersection on a green light. There were no vehicles ahead of or
behind her. Ms. Bennett testified, and I accept, that she sat stopped in
her vehicle, with her left turn signal on, watching the oncoming traffic
heading south along King George and waiting for a safe opportunity to negotiate
her left turn. I find that Ms. Bennett waited in that position for
approximately thirty seconds, at which point the signal for traffic on King
George turned amber.

[7]          
 Ms. Bennett explained that her automobile sits low to the ground.
She described the grade of King George as largely flat with a slight incline
that did not compromise her view of oncoming traffic. She testified that while
she remained stationary, a southbound SUV stopped across from her on King
George and partially obstructed her view of the flow of southbound traffic in
the through lanes. She placed the position of the stopped SUV in the most
easterly through lane, running alongside the southbound left turn lane on King
George. Ms. Bennett testified that Mr. Henry’s vehicle would have to
have been situated far down King George in order for her to have a view beyond
the SUV and to have seen his vehicle in its approach to the intersection.

[8]          
According to Ms. Bennett, she continued to wait after the traffic signal
turned amber. She stated that a “couple of seconds” or so thereafter she saw, directly
overhead, the traffic light controlling northbound traffic on King George, change
to red. At that time, she could see out of the corner of her eye that the left
turn arrow for traffic facing west along 68^th Avenue was blinking
green. Believing that the intersection was then clear, Ms. Bennett initiated
her turn. When she had moved “a couple of feet”, the front driver’s side of her
car collided with the driver’s door area of Mr. Henry’s vehicle, tearing
off her front bumper. Mr. Henry’s vehicle then skidded towards the
southwest corner of the intersection, where it struck a light standard and came
to rest. His vehicle was severely damaged.

[9]          
The impact caused Ms. Bennett’s vehicle to move only slightly. In order
to avoid impeding traffic, she completed her left turn and pulled over on 68^th
Avenue. She then returned to the scene and exchanged information with Mr. Henry.

[10]       
Ms. Bennett candidly testified that she had not noticed Mr. Henry’s
vehicle approaching the intersection or at any time before the impact.

[11]       
As I will elaborate below, Mr. Henry’s evidence pertaining to the material
events leading up to the accident is problematic. For example, referring in
direct evidence to one of the photographs of the intersection, he identified
his position as being in relatively close proximity to the intersection when
the controlling traffic light changed to amber. He testified along similar
lines to the effect that the light turned amber when he was “right before” the
intersection. In cross-examination, however, it was put to Mr. Henry that
he was actually in the range of 100 feet back from the intersection when
the traffic light changed from green to amber. At first, he allowed that he
could have been between 10 and 100 feet away. When confronted with his
discovery evidence where he had stated more than once that he had been about
100 feet away from the intersection when the colour of the light changed, Mr. Henry
significantly modified his evidence on this crucial point. Ultimately, he  adopted
his discovery evidence and agreed that he had been further back from the
intersection than he had initially indicated in his direct evidence. Mr. Henry
went on to agree that when he was approximately 100 feet away from the
intersection, he noticed Ms. Bennett’s vehicle stopped in the middle of
the intersection with her left turn signal activated. He knew at that time that
she intended to turn left across his path.

[12]       
Mr. Henry was cross-examined about the state of the surrounding
traffic immediately before the accident. At first, he would not agree with the
suggestion that there had been no traffic in front of him. Instead, he claimed
that there had been vehicles ahead of him, although not directly in front. That
testimony was at odds with Mr. Henry’s discovery evidence, where he had
agreed that there was no car in front of him when he was 100 feet away
from the intersection. At trial, he adopted that discovery evidence without
explaining his inconsistency.

[13]       
At trial, Mr. Henry testified that there were no cars in the lane
beside him as he approached the intersection and was “sure” that there were no
southbound vehicles stopped at the intersection when he entered it. Yet, when
questioned about that matter at his examination for discovery, Mr. Henry
had not been quite so unequivocal. After initially denying at his discovery the
existence of any stopped southbound vehicles, Mr. Henry qualified his
answer saying that he could simply not recall and did not remember whether
there were any stopped vehicles. He adopted his discovery evidence as true.

[14]       
Additionally, Mr. Henry was cross-examined about the opportunity to
stop his vehicle after the light changed to amber. In response to
cross-examination about whether the brakes on the vehicle were in brand-new
condition, he replied that he was “not sure”. At his discovery, Mr. Henry had
testified that, as far as he knew, the brakes were brand new. He went on to
clarify that he had accompanied his father to the car dealership to purchase
the vehicle and from that had understood that the brakes were brand new. He adopted
that evidence at trial.

[15]       
Mr. Henry confirmed that the brakes on his vehicle were in working
condition at the time of the accident. He was asked whether before the accident
he had ever tested the brakes by performing a “hard brake” or was otherwise
knowledgeable about their capability. He answered “no”. He also denied having
driven the vehicle “quite a bit” prior to the accident. Once again, however, Mr. Henry’s
testimony at trial did not fit with his evidence on discovery. There, he had
stated that he had driven the vehicle “quite a bit” and was “sure” that he had
performed a hard brake at some point before the accident. When confronted with
these inconsistencies in his evidence, Mr. Henry agreed that his discovery
evidence on these matters was accurate.

[16]       
The evidence indicates that the governing speed limit along King George is
either 50 or 60 kilometres per hour. Mr. Henry testified that he was
driving the posted speed limit as he approached the intersection. One of the
independent witnesses, Kevin McCartney, testified that Mr. Henry was
probably doing the speed limit, “if not more”. Mr. Henry’s short and
tarnished driving history was brought out in cross-examination. He admitted
that before the accident he had a propensity to speed and had been issued approximately
ten speeding tickets and had had his driver’s licence suspended several times. That
pattern continued more or less unabated after the accident.

[17]       
In closing argument, defence counsel did not suggest that evidence of Mr. Henry’s
driving record supported an inference that he had sped as he neared the
intersection or proceeded through it. Indeed, the preponderance of the evidence
favours the opposite conclusion. I find that Mr. Henry was likely not speeding and
was travelling at the applicable speed limit at the material time.

[18]       
Mr. Henry also adopted his discovery evidence to the effect that
when the light turned amber, he “just kept going” and took no steps to slow
down, explaining that he had the right-of-way. In response to questioning about
his obligations in approaching an intersection on an amber light, Mr. Henry
agreed that he ought to be readying himself for a red light and should be
preparing to stop.

[19]       
Three independent witnesses to the accident testified.

[20]       
Keri Johnson was stopped at the red light on 68^th Avenue
facing east. Her 14-year-old son, Marco, was in the front passenger seat and
her little girl was seated in the rear. The Johnson family was en route to
dinner. They had lived in the neighbourhood for years and Ms. Johnson had
driven through the intersection countless times. As they sat at the red light
they amused themselves by chatting, singing songs and “looking around”. Ms. Johnson
described herself as multi-tasking, which included keeping an eye on the
traffic lights for 68^th Avenue.

[21]       
Ms. Johnson testified that Mr. Henry’s vehicle was at the end,
but not straggling behind, the flow of southbound traffic on King George. She
recalled that those southbound cars were not forming a single file pattern; rather,
they moved as a group variously occupying both through lanes, and that Mr. Henry’s
vehicle was less than two car lengths behind the flow. She was “100% positive”
that the light facing Mr. Henry was green and not amber when he entered
the intersection and when the accident happened. Although Mr. Henry was
approaching the intersection at her left, Ms. Johnson had been looking at
the King George traffic light to her right at the time of the collision.

[22]       
Ms. Johnson recalled that the light facing her was still red when
the accident occurred. In response to questioning about the sequence of the
signal changes at the intersection, she agreed that if the advance left turn
signal for traffic on 68^th Avenue had been green, then her light
would remain red for that interval. She further agreed that in that situation, the
light for southbound traffic on King George would also be red.

[23]       
Ms. Johnson had a distinct recollection that there were no
southbound vehicles stopped on King George at the intersection when Mr. Henry
came through it. Although her view of the intersection was somewhat impeded by
the flow of southbound traffic, she was “pretty sure” that the northbound left turning
vehicle (that is, Ms. Bennett’s vehicle) had been a van.

[24]       
The accident happened so quickly that Ms. Johnson was not able to
recall whether she had actually seen the collision, or had merely heard it. However,
she did remember seeing Mr. Henry’s automobile skid into the light
standard near to her car after the impact and was grateful that his vehicle had
not hit hers.

[25]       
Joanne Ciapelletti, the adjuster for the Insurance Corporation of
British Columbia (“ICBC”), testified that she interviewed Ms. Johnson over
the telephone one week after the accident. Ms. Ciapelletti had made file notes
of her interview, which were not in evidence, and says that she recalls the
matter independently of those notes because throughout September and October Mr. Henry’s
mother had regularly telephoned her inquiring as to the status of the claim. I
accept Ms. Ciapelletti’s testimony that she eventually handed off the file
to an independent adjuster due to Mrs. Henry’s criticisms of her treatment
of the liability matter. I am satisfied that this was not a typical claim file
from Ms. Ciapelletti’s standpoint and  that she has an independent
recollection of it, including the contents of her interview of Ms. Johnson.

[26]       
Ms. Ciapelletti claims that during that interview, Ms. Johnson
told her that she did not know the colour of the light for southbound traffic
on King George when the accident occurred. At trial, Ms. Johnson agreed
that she could have had a telephone discussion with Ms. Ciapelletti or
another insurance adjuster, but was not able to recall the specifics of any such
discussion. She did recollect that after the accident Mr. Henry contacted
her at least once and likely twice, and believes that he probably asked whether
ICBC had been in touch with her. She thought that it was possible that she may
have even telephoned Mr. Henry to thank him for not striking her car. I
find that Mr. Henry’s mother also telephoned Ms. Johnson to discuss
the accident; however, Ms. Johnson was not able to recollect that call.

[27]       
Marco Johnson testified that as Mr. Henry entered the intersection
there were vehicles ahead of him at a distance equivalent to approximately
three or more car lengths. In his evidence in chief, Marco testified that the
traffic light was in the midst of changing from green to amber as Mr. Henry
entered the intersection. When pressed on that point in cross-examination, he
agreed that he “did not fully remember” where Mr. Henry was positioned in
relation to the intersection when the traffic signal turned amber. Marco
explained that he had been looking at the lights governing northbound traffic
on King George situated to his left in the direction of Mr. Henry, but had
also glanced to his right at times.

[28]       
Marco was not able to say whether Ms. Bennett’s vehicle was a car,
truck or van. Yet, he testified that her vehicle had proceeded into a left turn
without slowing down or stopping in the intersection. Later in his evidence, he
testified that he was unsure whether he had even seen Ms. Bennett’s
vehicle prior to the crash.

[29]       
Kevin McCartney had driven through the intersection to and from work on
nearly a daily basis. He was stopped at the red light facing east on 68^th
Avenue directly behind the Johnson vehicle. He was alone in his car. Mr. McCartney
testified that there were two stopped vehicles next to him in the left turn
lane. He stated that his view of the intersection was impeded “a bit” by the
presence of those two vehicles but maintained that he was able to see the
traffic. I accept that.

[30]       
Mr. McCartney has held a commercial driver’s licence for many years
and for a time had been an independent truck driver. From his days in that line
of work, he developed a habit of observing the traffic lights, as well as the progression
of the traffic itself, while stopped at a light. As was his custom, he kept himself
aware of the traffic lights controlling the flow along King George as he sat at
the red light.

[31]       
Mr. McCartney saw Ms. Bennett’s vehicle move into the
intersection on a green light and come to a complete stop, with the left turn
signal activated. He supported Ms. Bennett’s testimony that she had
remained stationary in the intersection for roughly thirty seconds before the
light changed to amber. He noticed that her car continued motionless for a time
after the light turned amber.

[32]       
Mr. McCartney confirmed that all southbound traffic along King
George had cleared through the intersection before the accident occurred. He explained
that the last of that traffic flow had passed through about two to three
seconds before Mr. Henry’s vehicle arrived at the intersection. Mr. McCartney
further recalled that before Mr. Henry entered the intersection, two
southbound vehicles had stopped in the lanes flanking Mr. Henry’s lane,
namely in the left turn lane and in the most westerly southbound through lane. He
stated that the vehicle which was stopped in the through lane to the west of Mr. Henry’s
path of travel had been stopped for “a couple of seconds” before the accident.

[33]       
Mr. McCartney testified that he observed the signal governing
Mr. Henry change from amber to red and when that occurred, he cast his eye
back to the intersection. According to him, it was only after the light had turned
red that Ms. Bennett started into her left turn. He noticed that the green
arrow in the left turn lane adjacent to him started to blink immediately before
Mr. Henry entered the intersection. Mr. McCartney says that given Ms. Bennett’s
position, which he described as being effectively in the middle of the
intersection, she was in the path of the left-turning vehicles.

[34]       
 Mr. McCartney witnessed the crash which he says occurred slightly
to the west of the centre of the intersection. He testified that the vehicles
collided when the traffic light facing Mr. Henry was red and just as the left
turn arrow for 68^th Avenue was activated.

[35]       
Mr. McCartney recalls that Ms. Bennett’s vehicle was mostly
orientated north- south at the time of impact. That is consistent with Ms. Bennett’s
testimony as well as the physical evidence of the damage to her vehicle which
is concentrated around the front bumper region on the driver’s side, indicating
that she had hardly executed her left turn manoeuvre when the crash occurred.

[36]       
After the accident, Mr. McCartney saw the two vehicles that had
been next to him in the left turn lane negotiate their turns through the
intersection.

[37]       
On October 2, 2008, Mr. McCartney provided ICBC with a written
statement regarding the accident. His statement does not mention the existence
of any stopped vehicles southbound on King George. Nor does the cryptic sketch
accompanying his statement identify any such vehicles.

[38]       
When questioned about those omissions from his statement and the sketch,
Mr. McCartney explained that his statement had been composed by the insurance
adjuster based on his answers to the specific questions that she posed. He had
not been asked about the position of any southbound vehicles along King George
and had not thought to mention them. He clarified that he had not prepared the sketch
either.

[39]       
I find Mr. McCartney’s explanation to be credible. I am satisfied
that the lack of reference to the stopped southbound vehicles in his statement
and the sketch was nothing more than the by-product of the less-than-thorough
interview conducted by the adjuster. I would add that the sketch is so lacking
in useful detail in any event that it is of no concrete assistance to the Court.

[40]       
I am satisfied that Ms. Johnson and her son each gave an honest
account of the events leading up to the accident as best they were able to recall
them. At the same time, however, I conclude that they were somewhat distracted while
waiting at the red light by their interactions with each other and the young family
member in the back seat. Those distractions interfered with their ability to
obtain an accurate picture of the sequence of events.

[41]       
Most concerning with regard to Ms. Johnson’s evidence is that she says
the accident occurred on a green light. That key piece of evidence is contradicted
by all of the other witnesses, including Mr. Henry himself. Moreover, I
accept Ms. Ciapelletti’s credible testimony that during her interview of Ms. Johnson,
Ms. Johnson said she did not know the colour of the light at the time of
the accident. I have no confidence that Ms. Johnson’s testimony about the colour
of the traffic light facing Mr. Henry as he entered the intersection is
reliable.

[42]       
Difficulties of significance were also present in Marco Johnson’s
testimony, including inconsistent evidence about whether he had noticed Ms. Bennett’s
vehicle in the intersection prior to the accident. To the extent that he had seen
her enter the intersection, his testimony to the effect that she had not
stopped before she launched into her left turn was incompatible with the
evidence of Ms. Bennett and Mr. McCartney, as well as Mr. Henry.

[43]       
In the end, I am not satisfied that either Ms. Johnson or her son
have a sound recollection of the crucial events surrounding the accident. I contrast
their undependable testimony with the detailed and persuasive account of the
accident given by Mr. McCartney. I find that he carefully watched the scene,
including the traffic lights, without distraction and accept that his
recollection of the pertinent events leading up to the accident is accurate

[44]       
I also found Ms. Bennett to be a credible witness. Her testimony of
the vital events was reliable, with one exception. I find that she was mistaken
that the SUV was stopped in the most eastern through lane southbound on King
George. The evidence is clear that Mr. Henry occupied that lane. I am
satisfied that the stopped SUV recalled by Ms. Bennett was situated in the
southbound left turn lane across from her as remembered by Mr. McCartney. In
my view, Ms. Bennett’s inaccurate recollection on this matter did not
reveal a concerning level of inattentiveness to the events surrounding the
accident on her part as urged by plaintiff’s counsel, nor does it detract in
any meaningful way from her otherwise reliable account of the manner in which
the accident unfolded.

[45]       
The inconsistencies between Mr. Henry’s evidence at trial and his
testimony at discovery relative to material events were significant and not
adequately explained or otherwise ameliorated by his proffered explanations. Their
cumulative effect reflected negatively on his credibility. I would add that his
evidence explaining his purported basis for applying for private disability
insurance after the accident, and his claim of alleged attempts to re-establish
employment with Richmond Elevators were fraught with difficulty and served to
compound his compromised credibility. Ultimately, I consider it unsafe to
accept Mr. Henry’s evidence of the events leading up to the accident where
it differs from the testimony of Mr. McCartney. I make the same
observation with respect to rejecting Mr. Henry’s evidence to the extent
that it is at odds with the testimony of Ms. Bennett.

[46]       
Based on the totality of the evidence that I accept, I conclude that Ms. Bennett
proceeded lawfully into the intersection on a green light and came to a
complete stop with her left turn signal on. She sat motionless for approximately
thirty seconds observing the oncoming traffic and periodically casting her eye
to the light governing King George traffic. As the light she faced turned
amber, Ms. Bennett remained stationary for a few seconds longer until the signal
changed to red. I also conclude that at least three seconds before Mr. Henry
entered the intersection, the flow of southbound traffic on King George ahead
of him had ended. I conclude further that before Mr. Henry arrived at the
intersection, a southbound vehicle had stopped in the left turn lane, and
another in the most westerly through lane to Mr. Henry’s right. There is
no evidence that the SUV stopped across from Ms. Bennett constituted merely a minor
impediment to her view, as suggested by plaintiff’s counsel in his closing submissions.
I find that her view of Mr. Henry’s path of travel from her low to the ground
vehicle was critically impeded by the SUV.

[47]       
Travelling at the posted speed limit, Mr. Henry saw his green light
turn to amber when he was a distance of not less than 100 feet from the start
of the intersection. More or less contemporaneously, he turned his attention to
the goings-on in the intersection and saw Ms. Bennett’s stopped vehicle
intending to turn left. With the mindset that he had the right-of-way,
Mr. Henry decided to keep going and to proceed straight through the
intersection, making no attempt to brake or slow down.

[48]       
I find that by the time Mr. Henry reached the near side of the
intersection the light was an extremely stale amber, about to turn red, and
that it changed to red as his vehicle passed into the intersection. After the
light governing traffic on King George had turned red and the left turn arrow for
eastbound traffic on 68^th Avenue began to blink green, Ms. Bennett
started into her left turn and the collision ensued.

LEGAL FRAMEWORK AND ANALYSIS

[49]       
In support of his argument that Ms. Bennett is completely at fault
for the accident, Mr. Henry relies on s. 174 of the Motor Vehicle
Act, R.S.B.C. 1996, c. 318 (the “Act”), which reads, in
relevant part, as follows:

174. When a vehicle is in an
intersection and its driver intends to turn left, the driver must yield the right
of way to traffic approaching from the opposite direction that is in the
intersection or so close as to constitute an immediate hazard, but having yielded
and given a signal as required by sections 171 and 172, the driver may turn the
vehicle to the left, and traffic approaching the intersection from the opposite
direction must yield the right of way to the vehicle making the left turn.

[50]       
Mr. Henry contends that, as the left turning driver, Ms. Bennett
had a duty to yield the right-of-way to him because he posed an immediate
hazard which she failed to appreciate due to her careless inattentiveness and inadequate
look-out. He argues that Ms. Bennett’s complaint that the parked SUV compromised
her full view of the oncoming traffic is less an answer as to why she did not
see Mr. Henry’s approach, than it is reinforcement of his assertion that
she failed to determine whether she could safely execute her turn and launched
into that manoeuvre without knowing the oncoming traffic situation one way or
the other. Mr. Henry contends that had Ms. Bennett maintained a
proper lookout she would have been aware of his vehicle approaching the
intersection. He asserts that she should have taken more care, even if it is
determined that he should not have proceeded through at the time, and had she
done so, the accident would have been averted.

[51]       
Mr. Henry’s companion line of argument is to the effect that he was
the dominant driver and enjoyed the right-of-way, and that Ms. Bennett was
servient. Formulating the analysis within the dominant-servient driver
framework laid out by Cartwright J. in Walker v. Brownlee and Harmon,
[1952] 2 D.L.R. 450 (S.C.C.) [Walker], Mr. Henry says that in order
to fix him with any liability, Ms. Bennett must establish that after Mr. Henry
became aware or reasonably ought to have become aware of her disregard of the
law, he had a sufficient opportunity to avoid the accident of which a reasonably
careful and skilful driver would have availed himself. It is Mr. Henry’s contention
that Ms. Bennett has not met her burden.

[52]       
Ms. Bennett’s position is that Mr. Henry is completely at
fault for the collision and should be held fully liable for it. Her argument
starts with reference to ss. 128 and 129 of the Act, which set out
the obligations of a driver approaching an intersection facing an amber light
and a red light, respectively. The relevant statutory extracts are reproduced
below.

128  (1) When a yellow light alone is exhibited at an
intersection by a traffic control signal, following the exhibition of a green
light,

(a) the driver of a vehicle
approaching the intersection and facing the yellow light must cause it to stop
before entering the marked crosswalk on the near side of the intersection, or
if there is no marked crosswalk, before entering the intersection, unless the
stop cannot be made in safety, …

129  (1) Subject to subsection
(2), when a red light alone is exhibited at an intersection by a traffic
control signal, the driver of a vehicle approaching the intersection and facing
the red light must cause it to stop before entering the marked crosswalk on the
near side of the intersection, or if there is no marked crosswalk, before entering
the intersection, and subject to the provisions of subsection (3), must not
cause the vehicle to proceed until a traffic control signal instructs the
driver that he or she is permitted to do so.

[53]       
As I have concluded that Mr. Henry began to cross the near side of the
intersection on the final phase of the amber light and that the signal changed
to red as his car passed into the intersection, I will address the
submissions on that factual premise.

[54]       
Ms. Bennett submits that given that Mr. Henry was driving at
the posted speed limit and was a distance of not less than 100 feet from the
intersection when the signal turned amber, he had plenty of time to stop safely
before the intersection and should have done so. She says that the fact that
drivers to his left and his right had come to an uneventful stop before he reached
the intersection bolsters her submission. Building on this, Ms. Bennett
contends that Mr. Henry therefore entered the intersection in breach of his
duty to stop imposed by s. 128 of the Act. Relying mainly on the
decision of the Court of Appeal in Kokkinis v. Hall (1996), 19 B.C.L.R.
(3d) 273, 71 B.C.A.C. 97 [Kokkinis], discussed below, Ms. Bennett asserts
that Mr. Henry was negligent and must shoulder the entire blame for the
accident.

[55]       
Resolving the issue of liability in respect of the inherently hazardous
left turn scenario is a predominantly fact-driven exercise. Even so, several
decisions have distilled the animating legal principles and are of precedential
value.

[56]       
In assessing liability, considerable judicial attention has been paid to
the meaning of “immediate hazard” under the provisions of the Act,
including in s. 174. The leading cases on the question of when through
traffic amounts to an immediate hazard are the decisions of our Court of Appeal
in Raie v. Thorpe (1963), 43 W.W.R. 405 [Raie] and Keen v.
Stene (1964), 44 D.L.R. (2d) 350 [Keen].

[57]       
Tysoe J.A., speaking for the majority in Raie, made these
instructive remarks at 410:

I do not propose to attempt an
exhaustive definition of “immediate hazard.”  For the purposes of this appeal
it is sufficient for me to say that, in my opinion, if an approaching car is so
close to the intersection when a driver attempts to make a left turn that a
collision threatens unless there be some violent or sudden avoiding action on
the part of the driver of the approaching car, the approaching car is an “immediate
hazard” within the meaning of sec. 164.

[58]       
Tysoe J.A. went on to clarify at 413-14 that the point in time to
assess whether the through driver poses an immediate hazard is the moment
before the left turning driver commences to make the turn.

[59]       
In Keen, the court considered the meaning of “immediate hazard”
in the context of a driver who had stopped at a stop sign before attempting to
cross a four-lane through highway. The court emphasized that it is the hazard
or the threat of the collision, as distinct from the collision itself, which
must be immediate such that the hazard will be considered to be immediate if
reasonable danger of the future collision may be apprehended at the time of the
proposed entry into the intersection (at 365).

[60]       
The duty placed on a left turning driver pursuant to s. 174 is not
absolute. It is well-established that drivers are entitled to rely on the
assumption that other drivers will obey the rules of the road, unless there is
reason to know otherwise: Kokkinis; Brucks v. Caslavsky (1994),
4 M.V.R. (3d) 278, 45 B.C.A.C. 62; Rollins v. Lovely, 2007 BCSC 1752,
60 M.V.R. (5th) 40. The
Court of Appeal in particular has acknowledged the realistic exigencies
involved in making what are usually split-second decisions by drivers in
circumstances where traffic factors have to be assessed quickly. The standard
of perfection on the part of a left turning driver is not expected, and such
drivers will not necessarily be faulted if they fail to precisely gauge the
distance and speed of oncoming traffic: Uyeyama (Guardian ad litem of)
v. Wittenberg, [1985] B.C.J. No. 1883 (C.A.). It is also settled law that
the mere presence of a left turning vehicle does not raise a presumption that
something unexpected might happen and cast a duty on the dominant driver to
take extra care: Pacheco (Guardian ad litem) v. Robinson (1993), 75
B.C.L.R. (2d) 273 (C.A.) at para. 15, 43 M.V.R. (2d) 44 (C.A.).

[61]       
In Morgan v. Hauck (1988), 27 B.C.L.R. (2d) 118 (C.A.) [Morgan],
the trial judge found that the defendant had accelerated into the intersection
on a red light, and that the plaintiff had entered the left turn lane without
coming to a stop and then proceeded slowly into his turn. The trial judge
concluded that while the defendant was primarily at fault for the accident, the
plaintiff was guilty of some negligence for failing to keep a proper lookout
before moving into his left turn. Liability was apportioned 10% to the
plaintiff and 90% to the defendant. The Court of Appeal declined to alter apportionment
and dismissed the defendant’s appeal. In doing so, Esson J.A. expressed a
degree of reluctance, although not in the defendant’s favour. He reasoned that
the serious and flagrant fault belonged to the defendant who, upon seeing the
amber warning lights, sped up and entered the intersection against a red light.
While acknowledging the heavy duty to be shouldered by a driver manoeuvring
left across a major highway, his Lordship also remarked at pages 122-123 on the
concomitant burden that falls to drivers proceeding through the intersection:

… I think it is time,
therefore, to emphasize the heavy onus which rests upon drivers approaching
signals of this kind to make due allowance for the possibility that there will
be a vehicle seeking to make a turn such as the plaintiff was making on this
day. Their clear duty is to comply with the warning lights and to not run the
red. I would note one additional fact, and that is that it was found that the
plaintiff’s left-turn signal was flashing. On these facts, I see no reason to
disturb the apportionment of liability. It might even be open to doubt, in view
of the decision of this court in Uyeyama v. Wittenberg, referred to by Mr. Justice
Macfarlane, that any portion of the liability should have been placed upon the
plaintiff. But the circumstances were different in some respects and, in any
event, that issue is not before us. I agree that the appeal should be
dismissed.

[62]       
Mr. Justice Macfarlane concurred with Esson J.A.’s
observations.

[63]       
The sentiment expressed by Esson J.A. in Morgan was referred
to by the Court of Appeal in Kokkinis. There, the defendant travelling
along Granville Street failed to stop on an amber light in circumstances where
he could have safely done so. Instead, he continued driving through the amber
light and into the intersection, where he collided with the plaintiff’s vehicle
as it attempted to turn left. The left turning plaintiff was unaware of the
defendant’s vehicle “until it was on top of her”. The defendant conceded that
he had been negligent. Left for the Court’s determination was whether the
plaintiff was contributorily negligent.

[64]       
The trial judge in Kokkinis reasoned that the plaintiff had taken
her eyes off the oncoming traffic in order to check whether any stopped
eastbound cross traffic had jumped the light and hence failed to maintain a
proper lookout. In the alternative, the trial judge found that the plaintiff’s
failure to focus on the oncoming traffic had deprived her of an opportunity to
see that the defendant constituted an immediate hazard and to yield to him. He
concluded that the plaintiff was negligent on both bases and allocated fault
equally by application of s. 1 of the Negligence Act, R.S.B.C. 1979,
c. 298, then in effect.

[65]       
On appeal, Newbury J.A. framed the pertinent question of law as
whether the plaintiff was entitled to reasonably assume that the defendant
would stop before entering the intersection or, on the other hand, whether she
ought to be faulted for failing to see the defendant’s van which constituted an
immediate hazard.

[66]       
The chief argument advanced by the defendant on appeal was that the
plaintiff’s entitlement to assume that other traffic (i.e. the defendant) would
obey the law did not relieve her of the obligation to act reasonably and not
proceed into the collision where it is apparent, or should be, that the other
driver is not going to yield the right-of-way. Newbury J.A. confronted
that difficult issue at para. 10 in the following terms:

I must say this argument has
given me pause; but ultimately I resolve it by asking whether in law [the
plaintiff] should be faulted for diverting her attention momentarily from
oncoming traffic to check cross traffic at the point in time in question, i.e.,
as she prepared to start her turn – to see if any of those cars had jumped the
light or were going to pose a threat to her turn. Was this an unreasonable or
careless thing to do?  I think not, given both the realities of the situation
(which of course occurred over only a few seconds) and past decisions of this
Court that have imposed on left-turning drivers the duty to be aware not only
of oncoming traffic, but also of cross traffic, pedestrians, and whatever else
may be present in the intersection. To say that the plaintiff can be found at
fault because she relied on the assumption that [the defendant] would stop, and
because she checked cross-traffic, would in my view subvert the duty on [the
defendant] to bring his vehicle to a safe stop at the amber light as the other
traffic did. An amber light is not, as the current witticism suggests, a signal
to accelerate or to pass traffic that is slowing to a stop. Indeed, as Mr. Justice
Esson noted in Uyeyama, in a busy city like Vancouver and at a busy
intersection like 25^th and Granville, an amber is likely the only
time one can complete a left turn. Drivers approaching intersections must
expect that this will be occurring. Putting a burden on a left-turning driver
to wait until he or she sees that all approaching drivers have stopped would,
in my view, bring traffic to a standstill. We should not endorse such a result.

[67]       
Concluding that the trial judge had imposed too high a standard on the
plaintiff and that he had not considered assumptions about the conduct of the
oncoming traffic that the plaintiff was entitled to make, Newbury J.A.
reapportioned fault 100% to the defendant.

[68]       
Turning to the case at hand, I have found that Mr. Henry entered
the intersection at the very end of the amber light phase, just as it was
turning red. He knew that the brakes on his vehicle were in good working
condition. There was no expert evidence relative to the dynamics of the
accident, including whether Mr. Henry had sufficient time to safely come
to a stop when he first saw that the controlling signal had turned amber. He
did not testify that he had determined that he could not stop safely at that
juncture. Moreover, there was no evidence of any condition or factor that would
have made it unsafe or impossible for him to bring his car to a stop at or
before the intersection. At best, Mr. Henry could do little more than guess
about whether he might have been able to stop at the intersection had he
applied his brakes at the time he saw the light change to amber. In my view,
the probabilities of the situation weigh in favour of finding that
Mr. Henry, proceeding at the speed limit and in the prevailing conditions,
had an ample opportunity to safely bring his vehicle to a stop at or before the
intersection and thereby avoid the accident altogether. However, he chose not
to proceed in that fashion.

[69]       
As Mr. Henry approached his entry into the intersection, he passed
by vehicles on either side that had come to a stop. There had been an ebb in
the flow of southbound through traffic along King George and Mr. Henry was
well behind the last car that had gone through the intersection. He was aware
that Ms. Bennett was sitting in the intersection waiting for an
opportunity to turn left and that the amber light was about to turn red. Influenced
by the misguided notion that he nonetheless had the right-of-way, Mr. Henry
made no attempt to slow down or to come to a stop, even though he could have done
so safely. I conclude that Mr. Henry entered the intersection in violation of
his duty under s. 128 of the Act.

[70]       
In the meantime, Ms. Bennett sat in the intersection observing the
oncoming traffic with care and a reasonable level of attentiveness, waiting for
an opportune window to execute her turn. When Mr. Henry’s light changed to
amber, she was entitled to act on the assumption that approaching vehicles
which could stop safely would do so unless the contrary was apparent. The
contrary was not apparent, but still she waited because her view of the
critical area was impeded by the stopped SUV and she was exercising extra
caution. I accept that Ms. Bennett glanced to check cross traffic, as she
ought to, and could see that the arrow for the left turning traffic eastward on
68^th Avenue was green, leaving her in the path of that traffic. Had she
remained there, she likely would have herself been at risk. Ms. Bennett
waited until the traffic light was red before moving into her turn, and even
then she did not overly accelerate through her turn; she nosed left cautiously
to accommodate the fact that her view was somewhat compromised. Very early into
her turn, the collision occurred. Ms. Bennett did not strike Mr. Henry’s
car; rather, he ploughed into hers.

[71]       
The decisions of Salaam v. Abramovic, 2010 BCCA 212, 4 B.C.L.R.
(5^th) 117 Najdychor v. Swartz, 2009 BCSC 801, and Bain v.
Shafron, 2009 BCSC 543, relied on by Mr. Henry are readily
distinguishable on their facts and ultimately are of no assistance to him.

[72]       
Ms. Bennett was in a position remarkably similar to that of the
plaintiff in Kokkinis. Although she did not see Mr. Henry prior to
the collision, Kokkinis indicates that it does not necessarily follow
that she was in any way negligent. Having said that, I wish to clarify that I do
not read Kokkinis as standing for the proposition that left-turning
drivers are entitled to proceed blindly on the assumption that oncoming drivers
will obey the rules of the road, without regard to their concurrent obligation
to act reasonably as the circumstances dictate. In my view, Ms. Bennett was
entitled to proceed on the assumption that oncoming traffic, including Mr. Henry,
would act in accordance with the law and come to a stop on the late amber,
absent any reasonable indication to the contrary and provided she comported
herself with reasonable care. Here, there was no contrary indication from Ms.
Bennett’s standpoint. Indeed, she could see that the SUV across from her had complied
with the rules and she was aware as well that the flow of straight through
traffic had ceased some seconds earlier. She had no reasonable indication that oncoming
traffic in the form of Mr. Henry would proceed through the intersection in
clear violation of the rules of the road. Moreover, I find that in all the
circumstances she conducted herself prudently and with reasonable care in
negotiating her left turn. In contrast, Mr. Henry knew or reasonably ought
to have known that in all likelihood Ms. Bennett would have carried
through with her left turn at the final stage of the amber light, and most
assuredly when the signal turned red. He created an extremely unsafe situation
in failing to come to a stop.

[73]       
 I endorse the case authorities that cast doubt over the legitimacy of
portraying a driver in Mr. Henry’s shoes as having the presumptive
right-of-way or otherwise qualifying as the dominant driver for the purposes of
assessing liability using the Walker paradigm: see, for example, Snow
v. Toth, [1994] B.C.J. No. 563 (S.C.); Shahidi v. Oppersma, [1998]
B.C.J. No. 2017 (S.C.); Ziani v. Thede, 2011 BCSC 895. The
dominant/servient driver analysis in Walker is predicated on the footing
that the dominant driver has proceeded lawfully and, it seems to me, is of
utility in that circumstance only. I, therefore, question whether that
framework is of any assistance to a driver like Mr. Henry, who has acted
in breach of his statutory duty. In any case, it cannot be said that Ms. Bennett
attempted to execute her turn in complete disregard of her statutory duty to
yield, which is an integral component of the Walker analysis. Indeed, it
is my view that Ms. Bennett can be validly characterized as the dominant
driver in the circumstances. There is no cogent evidence to remotely suggest
that she could have avoided Mr. Henry by the exercise of reasonable care. To
formulate it in the terms of s. 174, Ms. Bennett posed an immediate
hazard to Mr. Henry, which he should have appreciated, and it is he who
ought to have yielded the right-of-way.

[74]       
Based on the foregoing, I am satisfied that the accident was caused
solely by the negligent driving of Mr. Henry. As he is entirely at fault for
the accident, his claim is dismissed.

[75]       
If the parties are unable to agree as to costs, they may file written
submissions implementing a time table of their choosing that incorporates a
final deadline of November 30, 2011.

___________________________________
“Madam Justice Ballance”