IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120201

Docket: M103768

Registry:
Vancouver

Between:

Sonia Kaur Johel

Plaintiff

And

John Doe #1, John
Doe #2, and

Insurance
Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Bernard

Reasons for Judgment

A. Overview

[1]            
The parties seek a determination of liability in relation to a motor
vehicle collision for which the plaintiff claims damages for personal injury.
The parties agree that the issue is suitable for resolution by summary trial.

[2]            
The collision occurred on August 13, 2008, at the “t” intersection of
Kartner Road and Westminster Highway, in Richmond, B.C. Kartner Road
intersects Westminster Highway on the north side, and there is a stop sign for
southbound Kartner Road traffic. The plaintiff, Sonja Johel, was driving a
Volkswagen Jetta. The unknown defendants were in a white car, make and
model unknown.

[3]            
Just prior to the collision, the plaintiff had stopped on Kartner Road
at Westminster Highway, to check for traffic before turning left to travel east
on Westminster Highway. There was no traffic approaching to her right, and to
her left Ms Johel saw one approaching vehicle. She recognized this vehicle
as that of her neighbour Mr. Lam and saw that he was slowing and
signalling his intention to turn right onto Kartner Road. Based upon these
observations Ms Johel entered onto Westminster Highway to execute her
turn; however, when she did so her vehicle was struck on the driver’s side by
the front of a white westbound car she did not see until the instant before the
collision. The white car continued westbound without stopping or returning to
the scene of the collision. Ms Johel later learned that the white car had
been travelling behind Mr. Lam and had entered the eastbound lane to
overtake Mr. Lam when Mr. Lam slowed and activated his turn signal.

[4]            
The essence of the plaintiff’s position is that she entered the
intersection when it was safe to do so; that at the point of collision she was
the dominant driver vis-à-vis the white car; that the white car was
obliged to yield the right of way to her; that there was nothing she could do
to avoid the collision; and, that the driver of the white car is, thus,
entirely at fault for the collision.

[5]            
The essence of the defendants’ position is that at the point in time
that Ms Johel entered the intersection, the white car had overtaken Mr. Lam’s
vehicle and returned to the westbound lane east of Kartner Road; that through
lack of proper attention Ms Johel failed to observe the white car and
yield to it as westbound traffic so near to the intersection that it posed an
immediate hazard; that Ms Johel was the servient driver vis-à-vis the
defendants; that given the white car’s proximity and speed there was nothing
the white car could reasonably do to avoid colliding with Ms Johel’s car;
and, that Ms Johel is, thus, entirely at fault for the collision.

B. Evidentiary Synopsis

[6]            
At Kartner Road, Westminster Highway is a two-lane highway divided by a
single solid yellow line for east/west travel. The roads are flat and straight.
A crosswalk crosses Westminster Highway on the east side of Kartner Road. The
collision occurred at approximately 6:15 p.m. on a clear summer’s day. At the
time of the collision the road conditions were good and the roads were
obstruction-free. It is common ground that Ms Johel had a valid driver’s
licence; that neither her attention nor perception was compromised by drugs,
alcohol, or the use of a handheld communications device; and, that Ms Johel
had come to a full stop at the stop sign on Kartner Road prior to entering onto
Westminster Highway.

[7]            
In her affidavit, Ms Johel said she checked to her right and left
while stopped at the intersection. She said she saw no cars to her right, and
one car to her left, travelling westbound on Westminster Highway. She said she
recognized this lone car as that of a neighbour, Harvey Lam. The car had its
right-turn signal on and was slowing down. She believed the driver intended to
turn at Kartner Road. Ms Johel said Mr. Lam’s car was “between the
second and third house on the north side of Westminster Highway” when she
decided it was safe to make her left turn onto Westminster Highway. She said
she did not see the defendants’ white car until just prior to the collision,
when it was too late to take any evasive action.

[8]            
Ms Johel said that she was partially into the eastbound lane (that
more than half of her car had crossed the centre line) and had almost completed
her turn at the time of impact; that the white car was straddling the centre
line at the time of impact; that the front of the white car struck the left
side of her car behind the driver’s door “in a t-bone fashion”; and that the
white car was travelling “quite fast” at the time.

[9]            
Harvey Lam saw the collision from his car. Just prior to the collision he
had been driving westbound on Westminster Highway and had signalled his
intention to turn right onto Kartner Road. In his affidavit, Mr. Lam said
he began slowing down when he was approximately four houses from the
intersection. He said when he saw Ms Johel’s car at Kartner Road he
“slowed down further” to allow Ms Johel to make her turn onto Westminster Highway. He said he checked his rear-view mirror when he was approximately “one
house” away from Kartner Road. In it he said he saw a white car approximately
one car-length behind him. When he saw, in his side-view mirror, the white car
pull out to the left in order to pass him, he said he noted that Ms Johel
was beginning to make her turn onto Westminster Highway. He said the white car
accelerated past him “at a fast speed” and then swerved back into his lane just
prior to hitting Ms Johel’s car. He said the white car took no evasive action,
and Ms Johel made a hard turn to the left to try to avoid the white car.
He said the white car struck the Jetta behind the driver’s door and carried on
down Westminster Highway without stopping.

[10]        
Ms Johel had three passengers in her car at the time of the
collision. Her adult brother, Justin Johel, was in the rear centre seat at
the time of the collision. In his affidavit, Mr. Johel said he saw
his sister check for traffic along Westminster Highway. He said that he, too,
checked for traffic and saw only one car on Westminster Highway while Ms Johel
was at the stop sign: Mr. Lam’s vehicle which was traveling westward
towards Kartner Road. He saw this car with its right turn signal activated and
noted that it had slowed down. He said Ms Johel began her left turn when Mr. Lam’s
car was between the second and third house from the intersection. He said Ms Johel
was “into her left-hand turn” when the white car struck her car. He surmised
that the white car “must have been behind [Mr. Lam’s] car” and said that
it was speeding as it overtook Mr. Lam’s car.

[11]        
Photographs depicting the collision damage to the Jetta show dents and
scrapes along the two doors on the driver’s side. The damage suggests a
glancing blow rather than a direct “t-bone” hit as described by Ms Johel.
The photographs reveal that the initial contact from the white car was to the
area below the handle of the driver’s door of the Jetta and that the contact
continued in a scraping motion along the rear door to the left rear fender as
the white car continued westbound.

C. The Law

[12]        
The Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “Act”),
sets forth the “rules of the road” for drivers. These rules are regarded as
guidelines for assessing fault in motor vehicle collisions. In Salaam v. Abramovic,
2010 BCCA 212, the Court said:

[21]      In the end, a court
must determine whether, and to what extent, each of the players in an accident
met their common law duties of care to other users of the road. In making that
determination, a court will be informed by the rules of the road, but those
rules do not eliminate the need to consider the reasonableness of the actions
of the parties. This is both because the rules of the road cannot
comprehensively cover all possible scenarios, and because users of the road are
expected to exercise reasonable care, even when others have failed to respect
their right of way. While s. 175 of the Motor Vehicle Act and other
rules of the road are important in determining whether the standard of care was
met, they are not the exclusive measures of that standard.

[13]        
In the circumstances of the case at bar, the obligations of the
plaintiff under the Act are found in ss. 165(2), 186, and 175(1).

[14]        
Section 165(2) applies to drivers making left turns at intersections
where traffic is permitted to move in both directions on each highway entering
the intersection. The provision sets out the obligations of a driver in such a
situation. Section 186 obliges a driver approaching a stop sign to stop at the
marked stop line. There is no evidence or suggestion that Ms Johel failed
to comply with these rules of the road.

[15]        
Section 175(1) sets forth the obligations of a driver entering a through
highway from a stop sign. The defendants say the plaintiff failed to yield, as
required by this provision. Section 175(1) reads as follows:

175(1). If a vehicle that is about to enter a through highway
has stopped in compliance with section 186,

(a) the driver of the vehicle must
yield the right of way to traffic that has entered the intersection on the through
highway or is approaching so closely on it that it constitutes an immediate
hazard, and

(b) having yielded, the driver may proceed with caution.

[16]        
The statutory obligations of the defendants are found in ss. 155(1)(c),
157(1), 159, 160, and 175(2) of the Act.

[17]        
Section 155(1)(c) obliges a driver to drive to the right of a single
line, broken or solid, except only when passing an overtaken vehicle. There is
no evidence or suggestion that the defendant driver drove to the left of the
solid yellow line except for the purpose of overtaking Mr. Lam.

[18]        
Section 157(1) sets forth the obligations of the overtaking vehicle vis-à-vis
the overtaken vehicle. There is, again, no evidence or suggestion that the
defendant driver did not comply with this rule.

[19]        
Sections 159 and 160 set forth the obligations of drivers passing on the
left. They state as follows:

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.

[20]        
Section 175(2) obliges a driver on a through highway to yield to a
vehicle which has entered the highway in compliance with s. 175(1). The
plaintiff says the defendant driver of the white car failed to yield, as
required by this provision. Section 175(2) states as follows:

175(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.

D. Discussion

[21]        
I will begin with those matters which are not contentious. When Ms Johel
approached the intersection she faced a stop sign and she was, thus, in the
servient position vis-à-vis vehicles travelling along Westminster
Highway. Ms Johel was obliged to stop at the sign and did, in fact, do so.
There is no suggestion that Ms Johel saw the defendants’ white car at any
time prior to the instant before the cars collided.

[22]        
Section 175(1) of the Act required Ms Johel to yield the
right of way to traffic that had entered the intersection on the through
highway or that was approaching so closely on it that it constituted an
immediate hazard. If no such traffic existed, then Ms Johel was permitted
to proceed into the intersection with caution and traffic travelling along
Westminster Highway was obliged to yield to her as the dominant driver,
pursuant to s. 175(2) of the Act.

[23]        
The common law imposes a corollary duty on dominant drivers not to
exercise their right of way if the result will be a collision which was
reasonably foreseeable and reasonably avoidable (see Walker v. Brownlee,
[1952] D.L.R. 450 (S.C.C.)).

[24]        
The issue, as defined by the parties, is relatively narrow. It is: Who
was the dominant driver at the time of the collision? The answer to this
question turns on where the parties were, in relation to one another, at the
time Ms Johel proceeded into the intersection, and at the time of the
collision.

[25]        
The defendants’ position is that when Ms Johel proceeded into the
intersection the white car had completed its pass of Mr. Lam, and was in
the westbound lane of Westminster Highway in front of Mr. Lam and just
east of the intersection. At the time of collision, Ms Johel was
traversing the westbound lane and blocking the defendants’ right of way.

[26]        
In support of this position the defendants rely principally upon some
aspects of the evidence of Mr. Lam and Ms Johel; in particular:
(a) Mr. Lam’s evidence that the white car had swerved back into the
westbound lane prior to the collision; and, (b) Ms Johel’s evidence
that her car was “t-boned” by the white car.

[27]        
The plaintiff’s position is that when Ms Johel proceeded into the
intersection the white car was overtaking Mr. Lam to his left and, thus, was
not visible to Ms Johel. When the white car struck Ms Johel’s car, it
was straddling the centre line and Ms Johel was crossing it and her car
was facing slightly eastward in the direction of her intended travel.

[28]        
In support of this position, the plaintiff relies upon the evidence of Ms Johel,
Mr. Johel, and Mr. Lam; in particular: (a) Ms Johel’s and Mr. Johel’s
evidence that when Ms Johel proceeded into the intersection the only
westbound traffic they saw was Mr. Lam’s car; and, (b) that when the
collision occurred the white car was straddling the centre line and Ms Johel’s
car was crossing it.

[29]        
Having regard to all the evidence and the positions of the parties, I
find: (a) that Ms Johel was attentive and observant while stopped at
the stop sign; (b) that Ms Johel proceeded with caution into the
intersection and, at the time, the only traffic in her view was the car of Mr. Lam;
(c) that the defendants’ white car was, at the time, to the left of Mr. Lam
and, thus, hidden from Ms Johel’s view; and, (d) that at the time of
collision, the white car was straddling the centre line and Ms Johel’s car
was crossing it and heading slightly eastward.

[30]        
In making these findings, I take into account that Ms Johel’s
observations of Mr. Lam’s vehicle and her evidence of her cautious entry
into the intersection are supported by the evidence of other witnesses. It is
clear that Ms Johel correctly identified the westbound vehicle as that of Mr. Lam,
and correctly observed that it was slowing and signalling a right turn.
Ms Johel correctly assessed that Mr. Lam’s vehicle did not pose an
immediate hazard to her. Given these accurate observations, I am satisfied that
if the white car had overtaken Mr. Lam and returned to the westbound lane
prior to reaching the intersection, then Ms Johel would have seen it and
yielded to it.

[31]        
I also take into account the evidence of Mr. Lam in relation to
where the white car was when he saw Ms Johel proceed into the
intersection. Mr. Lam said the white car was in his left side-view mirror;
thus the car was slightly behind and to the left of him. The significance of
this evidence is twofold: (a) it explains why Ms Johel would not have
seen the white car; and, (b) it suggests that it is most unlikely that the
white car had completed its pass and returned to the westbound lane while Ms Johel
was still crossing the westbound lane.

[32]        
I conclude that Mr. Lam misperceived that the white car had
“swerved back” into and fully re-entered his lane prior to the collision. I
consider it significant that this was a rapidly transpiring event involving
moving vehicles and that this observation does not accord with other evidence.
I am satisfied it is more likely than not that Mr. Lam saw the white car
moving back to the westbound lane at the time of the collision. This is
consistent with the evidence of Ms Johel, Mr. Johel, and with Mr. Lam’s
own observations of the position of the white vehicle when Ms Johel
commenced her turn.

[33]        
Finally, I find that the evidence of damage to Ms Johel’s car is
consistent with the plaintiff’s version of events, albeit not with Ms Johel’s
statement that she was “t‑boned”. Ms Johel’s statement is an
understandable misapprehension of the precise angle of impact, given that her
car was struck on the left side and that the collision took her completely by
surprise. The dents and scrapes suggest that Ms Johel’s car was facing
slightly eastward when it was struck. The photographs depict damage caused by a
rearwards scraping motion, and it is common ground that the white car continued
westbound after the collision without stopping. These are not the hallmarks of
a t‑bone collision; particularly, one at a relatively high speed.

[34]        
In summary, I am satisfied the evidence establishes the following facts:

(a) that when Ms Johel first
observed Mr. Lam’s car approaching Kartner Road from the east, the white
car was travelling very closely behind Mr. Lam’s car and was, from Ms Johel’s
perspective, obscured by it;

(b) that when Mr. Lam slowed
and signalled his intention to turn right at Kartner Road, his vehicle posed no
immediate hazard to Ms Johel;

(c) that when the driver of the
white car saw that Mr. Lam had slowed and signalled a right turn, he or
she decided to overtake Mr. Lam by entering the eastbound lane, rather
than to slow down and wait for Mr. Lam to turn and clear the path of
travel;

(d) that when Ms Johel
commenced her turn, the white car had just started to move into the eastbound
lane to pass Mr. Lam;

(e) that when the white car was
passing to the left of Mr. Lam, the Lam vehicle obscured Ms Johel’s
view of the white car;

(f) that the white car accelerated
as it overtook Mr. Lam;

(g) that Ms Johel did not see
the white car until the instant before the collision and, thus, could not take
reasonable steps to avoid the collision;

(h) that at the time of impact the
front of Ms Johel’s vehicle had crossed the centre line and was heading in a
south-easterly direction;

(i) that at the time of impact, the
white car had overtaken Mr. Lam’s vehicle and was in the process of
crossing the centre line to return to the westbound lane of travel; and,

(j) that Ms Johel’s vehicle
suffered a glancing blow that caused dents and scrapes along the driver’s side
and permitted the white car to continue westbound on Westminster Highway
without stopping.

[35]        
Based upon the foregoing findings, I conclude that at the time of the
collision: (a) Ms Johel was the dominant driver and the defendants
failed to yield to her, as required by s. 175(2) of the Act; and,
(b) the collision was not one that Ms Johel ought to have foreseen
and taken reasonable steps to prevent.

[36]        
In relation to the latter conclusion, Ms Johel neither saw the
defendants’ car nor should she have foreseen it; in other words, it was not
reasonably foreseeable that there would be a car overtaking Mr. Lam to the
left of his vehicle and hidden by it. Ms Johel had the right of way in the
eastbound lane, and the obligation was on the defendant driver, as the driver
who has entered the left side of the roadway to overtake another vehicle, to do
so only when it was safe, as determined by a clear view (see ss. 159 and
160 of the Act).

[37]        
When the white car initiated its pass of Mr. Lam, it entered the
left side of the roadway and accelerated past Mr. Lam when it was not safe
to do so. This was a clear failure to meet the standard of care arising from
the defendants’ duties to other users of the road, including Ms Johel. The
circumstances known to the defendant driver at the time included two salient
facts: the vehicle ahead was slowing, and it was signalling an intention to
turn right. An overtaking driver entering the left side of the roadway in such
circumstances must do so only with the utmost caution, preceded by a careful
assessment of what lies ahead. Such caution is particularly important when one
is approaching an intersection. Mr. Lam’s right turn signal and slowing
speed were two clear indications to the defendant driver that an intersection
may lie ahead. An appropriately cautious overtaking driver must also consider
that the vehicle ahead may be slowing for reasons other than, or in addition
to, preparation for a turn. Here, the need for caution by the overtaking driver
was accentuated by the fact that the intersection is marked with a crossing for
pedestrians.

[38]        
In Ferguson v. All-Can Express Ltd. et al, 2001 BCCA 57, as the
plaintiff attempted 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 then approaching. The plaintiff had no
opportunity to see the other vehicle until it entered the highway and by that
time neither party was able to take any steps to avoid the collision. The trial
judge found the plaintiff to be partially at fault. This finding was reversed
on appeal. After referring to Walker v. Brownlee, supra,
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 skillful 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 maneuver 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.

[39]        
Having regard to all the foregoing, I conclude: (a) that when the
defendant driver overtook Mr. Lam he or she did so in breach of ss. 159
and 160 of the Act; (b) that the defendant driver failed to meet
the requisite standard of care; and (c) that the defendants are
solely at fault for the collision.

E. Disposition

[40]        
The plaintiff’s application for summary judgment in her favour is
granted.

[41]        
If the parties are unable to agree upon costs, then they may address
this issue by written submissions.

“The
Honourable Mr. Justice Bernard”