IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120113

Docket: M103969

Registry:
New Westminster

Between:

Howard McPherson

Plaintiff

And

Bertha Lange

Defendant

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

Introduction

[1]            
This trial concerns a motor vehicle collision that occurred November 9,
2005 at the intersection of Canada Way and Burris Street (the “intersection”)
in Burnaby, B.C. Mr. McPherson is claiming damages for injuries suffered in the
accident. This trial was restricted to the determination of which party was
liable for his loss.

[2]            
The accident happened when Ms. Lange turned left from Canada Way,
intending to travel west onto Burris Street, as Mr. McPherson was travelling into
the intersection going southbound on Canada Way. Before Ms. Lange could clear
the path of Mr. McPherson’s van he collided with her car.

[3]            
There were five witnesses to the accident including the parties. The
conclusions I have reached do not substantially turn on the truthfulness of the
witnesses, but because of the passage of time and erosion of their
recollections the accuracy of the testimony of the witnesses is in issue.

The Evidence

Howard McPherson

[4]            
Mr. McPherson is a 55-year-old married man who was employed by a Burnaby
sign company on the day of the accident. The collision happened at about 9 a.m.
Before the accident he had attended a job site in Vancouver and was driving to New
Westminster. He recalls that it was an overcast day but was unable to say if
the roads were wet.

[5]            
He was proceeding southbound on Canada Way in light to medium traffic.
The intersection was familiar to Mr. McPherson as he drove from Boundary Road along
Canada Way. He noted that Canada Way had two through southbound lanes, a left-turn
lane and a right-turn lane. He could not recall what lane he was in as he
approached the intersection. He said that his speed was between 50 and 55 km/h
but, in giving that answer, he appeared to be in some doubt. He had no
recollection of traffic in front of him or in the lanes to his right or left.

[6]            
As he approached the intersection Mr. McPherson noticed a car in the
northbound left-turn lane. He observed the traffic control signal at the
intersection and said that he thought it was green or had just turned yellow.
The view ahead was unimpeded by any vehicles or other objects. He saw the
defendant’s car turn in front of him when he was between one-and-one-half and
two car lengths away from her. When he noticed the Lange car he thought to
himself that he was going to be in a collision. He  slammed on his brakes and
tried to veer to the right but could not recall if he had been successful in changing
his direction. He struck the back right side of the Lange vehicle and his
momentum carried him to the right side of Canada Way near the curb in the area
of a bus stop.

[7]            
When he first saw Ms. Lange’s car he could not say how fast she was travelling
but his impression was that she was not speeding. He could not remember clearly
if she had her left-turn signal on; it might have been operating. He did not
remember the colour of the traffic lights immediately prior to entering the
intersection. He said it was definitely not red but allowed that it might have
been green or yellow. Although he applied his brakes, this did not significantly
reduce his speed before impact.

[8]            
He was quite upset after the accident and got out of his car for fear of
fire.

[9]            
Mr. McPherson reported that that portion of Canada Way for at least 1/4
km north of the intersection is straight. He could not recall how far back from
the intersection he was when the traffic control signal turned from green to amber.
He denied that he had sufficient time to stop slowly and safely before entering
the intersection. He denied accelerating after he had seen the amber light and
denied that the light was red at the time of impact.

[10]        
After the impact, the air bags in his van deployed but he did not lose
consciousness.

[11]        
Mr. McPherson was examined for discovery on August 18, 2008. He was
cross-examined on answers given at the examination for discovery and admitted
those answers were true. These responses included the following:

·      
He had no recollection of the colour of the light when he
approached or entered the intersection.

·      
He did not remember seeing the traffic light at any time between travelling
through the curve and entering the intersection. He did not recall looking at
the traffic lights ( at trial he resiled from this evidence given at his  examination
for discovery;  he said that he had a clear recollection of looking at the
traffic light as he approached the intersection when the light was green).

·      
He was asked how far back from the intersection he was when the
light turned yellow. He said he was not far enough that he gave it any
consideration. He said he had plenty of time.

·      
He was asked if, when the light turned yellow, he could have
stopped before entering the intersection. He said, “I can’t say”.

·      
He said he could not recall what speed he was travelling at when
he first saw the Lange vehicle.

·      
He did not recall seeing the Lange vehicle approaching the
intersection in the left-hand turn lane.

·      
He did not recall the Lange vehicle moving through the
intersection at least until it started making its turn to cross the front of
his path.

·      
He did not remember what speed she was travelling at.

·      
He did not remember if she had her left-turn signal on.

·      
He was not able to slow his vehicle between the point of entering
the intersection and the collision nor did he swerve.

·      
His vehicle struck the right-rear quarter panel of the Lange vehicle.

Mary Astoria

[12]        
Ms. Astoria is a 75-year-old realtor who was at the intersection at the
time of the accident. She was eastbound on Burris Street and was stopped,
waiting for a change in the light at Canada Way; she was intending to turn
northbound. She said that when the plaintiff’s vehicle hit the defendant’s
vehicle, the defendant’s vehicle was pushed into her car. At the time of impact
the traffic light governing east-west traffic on Burris Street remained red.
She thought that the Canada Way traffic lights had turned amber. She believed
her traffic light had not turned green because she had her foot on the brake
and would have touched the accelerator if the light had become green. In
cross-examination she acknowledged that at the time of impact it was possible
her light had turned green.

Clifford Melin

[13]        
Mr. Melin is a resident of 100 Mile House and was also travelling on
Canada Way at the time of the accident. He had travelled this roadway many
times before, having worked in the area before retiring to the Caribou. He was
driving southbound towards New Westminster and as he approached the
intersection he was in the right-hand through lane. He said his speed may have
been between 50 and 60 km per hour and as he looked at the intersection ahead he
noticed the traffic signal turn amber while he was some distance back. He
estimated that he was 10 car lengths from the intersection when the light
turned yellow. He then indicated that he had stopped his vehicle some 81 feet
from the intersection (by the arrow on the road). When the traffic signal
turned to amber he noticed someone passing him on his left and heard an engine
accelerating; this was a reference to the McPherson vehicle. He was not sure if
the McPherson vehicle was accelerating but was surprised to see someone passing
on the left. He could not estimate the plaintiff’s speed but his perception was
that the Mr. McPherson was travelling over the speed limit as he travelled on
toward the intersection.

[14]        
Mr. Melin did not see Ms. Lange’s vehicle until it had almost completed
its turn; he saw the impact and the Lange vehicle spinning around and off to
the curb side of Canada Way. He did not explain what he meant by the phrase
“completed its turn”; I conclude that the Lange vehicle had reached a point
where it was perpendicular to Canada Way when the collision occurred. He did
not recall the colour of the traffic light as he was distracted by the
collision.

Robert Enns

[15]        
Mr. Enns is a 56-year-old Burnaby resident. He was stopped on Burris
Street at the intersection at a red light when observed Ms. Lange stopped in
the intersection. He explained she was approximately in the area of a yellow
car show on photograph number 35 of Exhibit 1.

[16]        
He said that the light controlling the traffic on Burris Street turned
green and he was about to proceed when the collision happened. The clear
impression conveyed by Mr. Enns was that the collision occurred virtually at
the same time or within a millisecond of the Burris Street light changing to
green. He acknowledged that he was not watching the McPherson vehicle or the Lange
vehicle prior to the impact but recalled the impact happening almost at the
time his light turned green.

Bertha Lange

[17]        
Ms. Lange is a retired 79-year-old who lives in New Westminster. She
explained the circumstances of the accident this way. She was driving
northbound down Canada Way intending to turn left at Burris Street. She was
driving a Toyota Echo, a small compact.

[18]        
Ms. Lange had approached the intersection while the traffic light for
Canada Way was green. She drove up to the stop line and noted that the road in
front of her looked clear except there there was a car in the distance coming
towards her. She said she thought this was the McPherson vehicle and that it
was far enough away to allow her to get through the intersection. She was not
able to estimate his speed or his distance from the intersection. Curiously she
commented that she did not know if the McPherson vehicle was actually coming
towards her or was sitting “stopped” on the road because he was quite away back
from the intersection.

[19]        
Ms. Lange started to make her left turn but did not look down the road
in the direction of the plaintiff’s oncoming car when she started to move. She
knew she had to make her turn quickly but failed to clear the path of the
McPherson vehicle; her car was struck the back rear passenger side of her
vehicle. She could not remember which of the southbound lanes she was occupying
when struck by the plaintiff’s car. She does not know the colour of the light
at the time of impact.

[20]        
She could not recall the colour of the traffic light on impact although
she thought it was amber. She believed the plaintiff was a sufficient distance
from the intersection that she had time to make her turn.She also thought that
the light was green when she entered the intersection but she was not certain.
Later, she testified she did not see any other cars coming towards her at the
time but then recalled two cars stopped in the southbound lanes of Canada Way
and waiting at the light. She said that these two cars were stopped in the
through lanes on Canada Way; this could not be true because the plaintiff
occupied the left through lane at the time.

[21]        
Ms. Lange was referred to a statement given by her on November 21, 2005 to
the Insurance Corporation of B.C. In that statement she said, “I saw a break in
the oncoming traffic that I thought would give me enough time to make my left
turn.” This remark is inconsistent with her evidence at trial.

Applicable Law

[22]        
The statutory duties of motorists approaching signal controlled intersections
are set out in section 128 of the Motor Vehicle Act, R.S.B.C. 1996, c.
318 [MVA] which states, in part, as follows:

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
market crosswalk, before entering the intersection, unless the stop cannot be
made in safety,

[23]        
Section 174 of the MVA also applies to the evidence in this
action. That section says:

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.

[24]        
The starting point for this analysis is the Court of Appeal decision in Kokkinis
v Hall, [1996] B.C.J. No. 1560, (C.A.). Newbury J.A. said:

8.         Mr. Johnson on behalf of the defendant sought in
his factum to distinguish Uyeyama on the basis that the defendant there
was travelling at an excess speed and had run a red light. He says there is no
evidence of that in this case. With respect, although the trial judge did not
make express findings of the issue of Mr. Hall’s speed (due perhaps to the
admission of liability on his part), the record does contain evidence that
supports an inference that he was travelling in excess of the speed limit when
he entered the intersection. Here I am thinking in particular of the
testimony of Mr. Chan, who was like the defendant heading north on
Granville,but in the middle lane. He saw the yellow light and slowed to a stop
at the intersection; but as he did so, Mr. Hall went by him – in fact, Mr. Chan
says, Mr. Hall "sped" by him. As well, there was the testimony of Mr.
Farquar, who was stopped heading westbound on King Edward, preparing to turn
south, or left, onto Granville. He testified that as he waited for the
plaintiff’s car to clear his front end he saw his own light, that is east-west,
turn green. Then he heard the collision. If his testimony is correct,
then Mr. Hall entered the crossing when his light was either red or in the late
stage of amber. Thus both grounds on which Mr. Johnson seeks to distinguish
the cases I have mentioned may not apply.

9.         This discussion, however, detracts from the more
important question of law, which is whether Mrs. Kokkinis was on one
hand entitled reasonably to assume that Mr. Hall would stop before entering the
intersection or on the other hand, whether she can be faulted for failing to
see his van "until it was on top of her", i.e. constituted an
immediate hazard. In this regard, Mr. Johnson cites Feng v. Graham,
[1988] 5 W.W.R. 137 (B.C.C.A.) (not a left turn case), for the principle that
the plaintiff’s entitlement to assume that other traffic will obey the law, is
"subject to the proviso" (in counsel’s phrase) that where it is
apparent or should be apparent that an oncoming driver is not going to yield
the right-of-way, then at that point the other driver must act reasonably and
cannot simply proceed into the collision, as it were. At the least, Mr.
Johnson says, it was open to the trial judge to find that in the circumstances,
Ms. Kokkinis failed to exercise reasonable care for her own safety and the
safety of others, and that she must therefore bear some responsibility for the
accident.

10.       I must say this argument has given me pause; but
ultimately I resolve it by asking whether in law Mrs. Kokkinis 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 Mr. Hall would stop, and because she
checked cross-traffic, would in my view subvert the duty on Mr. Hall 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 25th
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.

[Emphasis
added]

[25]        
This passage is a helpful statement of the principles to be applied in
left-turn cases. It addresses the legal question as to when a left-turning
driver is entitled to commence a left turn in the face of oncoming through
traffic.

[26]        
A motor vehicle is an immediate hazard if its driver must take a sudden
or violent action to avoid the threat of collision if a servient vehicle is
about to make a left turn entering or crossing the highway in the path of the
approaching vehicle: Raie v. Thorpe, 43 W.W.R. 405 at 410, [1963] B.C.J.
No. 14 (C.A.). The time to assess the question of an immediate hazard is when
the left-turning vehicle commences the turn: Raie at 414.

[27]        
The issue is whether Ms. Lange, on commencing her turn, was entitled to proceed
without regard to Mr. McPherson’s presence in or near the intersection. Further
is Ms. Lange to be found at fault for failing to see the McPherson vehicle
which was so close to the intersection that it constituted an immediate hazard
when she began her left turn?

Plaintiff’s Argument

[28]        
The plaintiff argues that his vehicle was approaching the intersection
and clearly visible to Ms. Lange. He argues that as he approached the
intersection he constituted an immediate hazard and that the burden rested with
Ms. Lange to yield the right-of-way to him or exercise greater care before
moving into his path of travel. She proceeded with her turn at a time when it should
have been obvious to her that a collision was going to happen because Mr.
McPherson was so close to the intersection, or in it, when she made her decision
to turn that I should conclude she he was manifest hazard and she failed to
exercise due care when she began her turnt. He argues she breached her duty of
care to him and her negligence contributed to the accident. He argues that
liability should be apportioned equally.

Defendant’s Argument

[29]        
Ms. Lange argues that she should not be faulted for proceeding with her
left turn at a point in time when the traffic signal was a stale yellow or red.
She says that the amber light gave Mr. McPherson sufficient warning to bring
his vehicle to a stop before entering into the intersection. Mr. Melin was able
to stop his vehicle and Mr. McPherson was unable to explain why he had not been
able to stop safely.

[30]        
The defendant argues the evidence of the independent witnesses is
sufficient for me to conclude that Mr. McPherson intended to run the red light
and entered the intersection on a red light. She argues that the collision
occurred simultaneously with, or just after, the light for Burris traffic had
turned green. As a consequence Mr. McPherson is wholly to liable for the
collision.

Analysis

[31]        
The tension between the parties’ positions is illustrated in this Court’s
decisions in Tejani v. Greenan, 2001 BCSC 803 and Henry v. Bennett,
2011 BCSC 1254. In both decisions this Court reviewed the discussion in Kokkinis
of the obligations of drivers travelling through intersections when facing
changing traffic signal.

[32]        
InTejani McEwan J. concluded at para. 29:

Here I have really no evidence as to the defendant Peerbhoy’s
specific exercise of care. This is not a case where, for instance, there were
several lines of traffic to cross, and the exigencies of traffic must be
weighed. I am of the view that the Greenan vehicle must have been visible, and
the fact that it was not slowing down should have been apparent to a person in
the Peerbhoy’s position. While a left turning driver does not have an
obligation to ensure all traffic has stopped before proceeding on a
yellow light, he or she must take account of manifest hazards. I do not think
that the right to assume other drivers will obey the law negates the duty to
react to what is there to be seen. Accordingly, I am of the view that in the
circumstances of this case liability ought to be divided.

[Emphasis
in original]

[33]        
Tejani was a left-turning case in which McEwen J. concluded the collision
and the through traffic light change to red occurred almost simultaneously. The
through-travelling driver had a four-second amber light and did not react. McEwen
J. concluded that he was not the dominant vehicle.

[34]        
In Mitchell v. Insurance Corp. of British Columbia, 2004 BCSC 983,
Edwards J. referred to Tejani and also apportioned liability. He said:

[39] Tejani (Guardian ad litem) v. Greenham ,
2001 BCSC 803, is a case similar to the case at bar. In that case, the trial
judge found the left turning driver’s evidence “rather unhelpful” and found on
the basis of Kokkinis that while the left turning driver did not, under
s. 174 of the Motor Vehicle Act, “have an obligation to ensure all
traffic has stopped before proceeding on a yellow light, he or she must still
take into account manifest hazards”. Liability was apportioned equally between
the left turning and through driver (both defendants as the plaintiff was an
occupant of one of the vehicles).

[40]      The apportionment in Tejani was based on
findings that the collision occurred at the instant the light turned red, the
yellow light lasted 4 seconds and the through driver was traveling at 60 kph
and therefore must have been 67 meters from the point of impact when the light
turned yellow. The court in Tejani found the through driver had time to
stop safely, on the basis of speed and distance “tables” in evidence in that
case.

[41]      I find on the evidence of Mr. Chang that the
collision here occurred at the instant the light turned red. I find on the
evidence that the unidentified van driver’s speed was speeding that its speed
was, more likely than not, over 50 kph. I infer that the unidentified van
driver had time to stop after the light turned yellow, but did not stop, or was
speeding so excessively that he or she could not stop safely. In either event,
he or she was negligent.

[42]      As did the judge in Tejani,
I find the left turning driver (here the plaintiff) had a duty to take account
of “manifest hazards” and failed to see or react to the fact the van was
approaching fast and not stopping. I find the plaintiff was negligent.

[35]        
This approach contrasts with that taken by Ballance J. in Henry.
In Henry, the defendant had pulled into an intersection on a green
light, stopped her vehicle with her left signal on, and waited for
approximately 30 seconds at which point the traffic signal turned to amber. She
waited through the amber signal and saw the traffic control light turn to red.
At that time she could see the green arrow for traffic on the perpendicular
road. She believed the intersection was clear and initiated her turn; she acknowledged
she had not seen the plaintiff’s vehicle approaching at any time before impact.
The Court said:

[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.

[Emphasis
added]

[36]        
Ms. Lange also relied on the Court of Appeal’s decision in Morgan v.
Hauck, [1988] B.C.J. No. 535. In Morgan the defendant, instead of
slowing as he approached an intersection showing a yellow light, accelerated.
The trial judge assumed that the defendant had seen an advanced warning and
accelerated toward the intersection. When that vehicle reached the intersection
the traffic light facing him was red. The plaintiff had entered the left turn
lane at the intersection and had proceeded slowly into the turn when it was hit
by the defendant’s car as it went through the red light. The trial judge
divided liability for the accident on a 90/10 basis in favor of the
left-turning vehicle. McFarlane J.A. said:

I agree with him [the trial
judge] that the plaintiff was guilty of some negligence in failing to keep a
proper look-out before proceeding with his left turn.

[37]        
Both Mr. McPherson and Ms. Lange appeared thoughtful and candid in their
answers but both lacked a reliable memory on many points. Ms. Lange seemed more
confused, uncertain and imprecise in her recollections.

[38]        
Specifcally, Ms. Lange was confused about the traffic coming towards her
immediately prior to the accident. She described two vehicles in the southbound
through lanes; this would appear to have been impossible given that Mr.
McPherson was travelling in the left through lane proceeding directly toward
her; he collided with her vehicle while the vehicle’s rear driver’s side was
still in the left through lane. Ms. Lange could not estimate the speed or
location of Mr. McPherson’s vehicle when she last saw it. Nor did she clearly
recall the colour of the light of the light before or during her left-turn
maneuver.

[39]        
Ms. Lange did not recall stopping in the intersection before making her
left turn. She described moving from the stop line (behind the crosswalk) and
being struck by the plaintiff. The plaintiff argued that, if Ms. Lange had
moved into the intersection after the signal turned to amber, she was in breach
of s. 128 of the MVA. On this point, I accept the evidence of Mr. Enns
to the contrary; Ms. Lange was stopped in the intersection  before commencing
her turn and before her traffic signal turned to amber.

[40]        
Based on Ms. Lange’s and Mr. Enns’ description of the events leading up
to the accident, I have concluded that she stopped before entering the
intersection, entered the intersection and stopped again. She proceeded on the amber
light, and erroneoulsy believed that she had sufficient time to complete her
turn without contributing to a risk of collision with the oncoming McPherson vehicle.
She did not see the McPherson van before making her decision to proceed with
her left turn and did not look again or see him as she started to travel through
the balance of the intersection.

[41]        
It also appears to me that when she first saw the McPherson van some
distance from the intersection, she misjudged the speed and/or distance of the
vehicle. She did not express any expectation that Mr. McPherson would be able
to stop or would stop before colliding with her.

[42]        
Mr. Enns’ evidence suggests that his light turned to green a millisecond
after the collision. I am not sure how a person looking up at a traffic light
could distinguish between a second and a millisecond in the circumstances of
this accident. I accept his effort at estimating times but, based on the exigencies
at the moment of the collision, and that his attention was not focused on the
defendant’s car, I cannot conclude, with any confidence, that the time that
elapsed after the Canada Way light became red and the collision occurred was
measureable. I conclude that the collision happened between the time the Canada
Way light turned red and the Burris signal turned to green.

[43]        
If the McPherson vehicle was travelling at a speed of 55 km/h then it
was moving at 15.27 meters per second. The distance between the crosswalk and
the point of impact is approximately 15 metres for the McPherson vehicle.
Therefore, Mr. McPherson entered the intersection about one second before
impact which confirms that he entered the intersection at about the moment his
light turned red. He was near or in the intersection when Ms. Lange commenced
her turn. I found Ms. Astoria’s testimony inconclusive, but also not
inconsistent with this version of events. Mr. Enns described Ms. Lange stopped
in the intersection at a point that appears to have been about 7 metres from
the point of impact (based on the diagram and photographs in Exhibit 1).

[44]        
Regrettably, there was no engineering evidence to assist in analyzing
perception response times or stopping times. It is agreed that the amber light
governing north-south traffic on Canada Way at Burris was illuminated for 4.5
seconds before turning to red. There was also a 1.5 second interlude when the
red lights for traffic in both directions were red.  Therefore, assuming the
McPherson vehicle continued at a constant or increasing speed when the light
turned yellow, his car would have traveled a minimum of 93 metres from the
commencement of the amber light facing him and the light for Burris Street traffic
changing to green. There was no estimate of the time that elapsed as Ms. Lange
travelled approximately 7 metres to the point of impact. From the time she
decided to commence her turn, I conclude that Mr. McPherson was likely within
30 metres of the intersection (45 metres from the point of impact) or less. He
was there to be seen. It is clear to me that she began her turn just prior to
her light turning from amber to red. The impact appears to have been about one
second after the Canada Way light changed to red and Ms. Lange simply did not
see Mr. McPherson’s van when she began her turn.

[45]        
Section 128 of the MVA required Mr. McPherson to stop his vehicle
unless the stop could not be made safely. He could not suggest or explain why
he could not have stopped his vehicle safely in the time between the appearance
of the amber light and the impact. He did not say he was too close to the
intersection to bring his vehicle to a stop or that there were any other
circumstances that would have prevented him from stopping his van. It is clear
that his light was amber for 4.5 seconds and that he entered the intersection
towards the end of that 4.5 second time. I conclude the McPherson vehicle had
time to stop safely without entering the intersection. This is corroborated by
the testimony of Mr. Melin who was in the lane to Mr. McPherson’s right. Mr.
Melin said that he had ample time to stop and was surprised that Mr. McPherson
sped past him after the light turned amber. I also find on the evidence that
Mr. McPherson did have enough time to stop before the light turned to red, and
in choosing not to do so, he created a significant danger.

[46]        
In my view Mr. McPherson did not drive prudently and his failure to stop
his vehicle before entering the intersection was a breach of his duty to Ms.
Lange. Mr. McPherson admits that his negligence contributed to the accident but
he argues that Ms. Lange is also contributorily negligent.

[47]        
McEwan J. was clear in deciding that, if the through travelling vehicle
is or should be visible to the left-turning driver, she was not entitled to
proceed with her turn if the through travelling car was a manifest hazard before
she proceeded. He concluded that the impact in that case occurred as the
light turned red for the through travelling driver.

[48]        
In contrast, Ballance J. concluded in Henry that Ms. Bennett was
entitled to proceed with her left turn, after the through traffic signal
turned red and the green arrow appeared for traffic travelling across her
path. In those circumstances Ms. Bennett was entitled to assume that the Henry
vehicle would stop absent any explanation from Mr. Henry as to why he could not
have stopped safely. The Court held that Ms. Bennett had no reasonable
indication that Mr. Henry would proceed through the intersection in violation
of the rules of the road. Ballance J. did confirm that her decision did not
eliminate the obligation of the left-turning vehicle to act reasonably as the
circumstances dictate.

[49]        
The tension between the obligations of the left-turning driver and the
through driver are difficult to resolve. It is clear from Morgan, Mitchell and
Tejani that the left-turning driver has an obligation to keep a lookout for
a vehicle obviously headed into the intersection in disregard for the traffic
signal.

[50]        
The differences between the Tejani, Mitchell and Henry cases
can be reconciled on the basis that, in Henry the left-turning driver
saw the oncoming car 100 feet from the intersection, and waited until her light
turned red and the cross traffic light was green before starting her turn. In Tejani,
the collision occurred at the instant the light turned red.

[51]        
This is not a case where Ms. Lange had mistakenly assumed that Mr.
McPherson was intending to stop before starting her turn. She did not know
where he was positioned when she started her turn and before the light had
turned red. He was quite obviously not stopping when she made her decision to
turn. She had not exercised the same care and caution as Ms. Bennett who was
found not liable for the collision in Henry.

[52]        
Given the shortcomings in the eyewitness testimony the question of
apportioning liability is a difficult one. There is no evidence of the specific
exercise of care taken by Ms. Lange in commencing her turn when Mr. McPherson
was so close to the intersection. In the circumstances I conclude that Ms.
Lange made her decision to start the turn and commenced her travel without
adequately assessing the location, distance and speed of the McPherson vehicle
prior to starting her left turn in front of the McPherson vehicle. He was an
immediate hazard and she simply did not see him. I have concluded that if Ms.
Lange had kept a proper lookout she would not have proceeded into the path of
the oncoming McPherson van and the accident would have been avoided.

[53]        
The circumstances of this case are closely aligned with those in Tejani
and Mitchell in which decisions the Court divided liability equally. Edwards
J. in Mitchell could not establish different degrees of fault and relied
on s. 1(2) of the Negligence Act, R.S.B.C. 1996, c. 333 to apportion
liability equally.

[54]        
I cannot measure the differing degrees of fault between both the plaintiff
and defendant and accordingly, I apportion liability at 50% against Mr.
McPherson and 50% against Ms. Lange.

[55]        
Costs may be spoken to if the parties are unable to agree.

“Armstrong J.”