IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Matheson v. Fichten,

 

2012 BCSC 565

Date: 20120423

Docket: M096264

Registry:
Vancouver

Between:

Suzanne Marie
Matheson

Plaintiff

And

Kenneth Fichten,
Harmandeep Singh Bahniwal

and BMW Canada
Inc.

Defendants

And

Insurance
Corporation Of British Columbia

Third
Party

Before: The Honourable Madam
Justice Smith

Reasons for Judgment

Counsel for Plaintiff:

J-M Hébert

Counsel for Defendants, Harmandeep Singh Bahniwal &
BMW Canada Inc.:

E. Lyszkiewicz

Counsel for the Third Party:

E. Lundberg

Place and Date of Trial:

Vancouver, B.C.

March 12-14,
2012

Place and Date of Judgment:

Vancouver, B.C.

April 23, 2012



 

INTRODUCTION

[1]            
The plaintiff Suzanne Matheson seeks damages for personal injuries sustained
in a motor vehicle collision on September 3, 2009.

[2]            
The issues of liability and damages were severed pursuant to an order of
Master Baker entered on February 10, 2012, and this trial addressed only liability.

[3]            
The collision occurred when Ms. Matheson was a passenger in her own
vehicle.  Her common-law partner, the defendant Kenneth Fichten, was the driver.
While Mr. Fichten was executing a left-hand turn at a busy intersection, the
Matheson vehicle was struck by a vehicle driven by the defendant Harmandeep Singh
Bahniwal that he leased from the defendant BMW Canada Inc.

[4]            
Ms. Matheson claims that, as a result of the accident, she suffered
significant orthopedic injuries.  Her vehicle, a white 1994 Pontiac Sunbird,
was demolished.  Mr. Bahniwal’s vehicle, a new black 2008 BMW 335, was seriously
damaged and required some $35,000.00-$40,000.00 in repairs.

[5]            
There is no allegation of contributory negligence against the plaintiff. 
A central issue in the trial was whether any liability should be apportioned to
the defendant Harmandeep Bahniwal, who had the green light to proceed through
the intersection.

EVIDENCE

[6]            
The accident occurred in Surrey, at the intersection of 152 Street
(which runs north-south) and 102A Avenue (which runs east-west).  The Guildford
Town Centre parking lot is to the northwest of the intersection.  There are
three lanes eastbound on 102A Avenue, one of which is a dedicated left-turn
lane for traffic turning onto 152 Street from the parking lot.

[7]            
There are three through lanes on 152 Street for southbound traffic
as well as a dedicated left-turn lane for southbound traffic to turn east onto 102A Avenue. 
In the northbound direction, 152 Street has two through lanes for traffic
heading north and one dedicated left-turn lane for traffic to turn west onto 102A Avenue
and into the Guildford Town Centre parking lot.

[8]            
The intersection is marked by traffic lights.  The parties agreed that
the traffic lights operate in the following manner for northbound traffic on 152 Street
intending to make a left turn at 102A Avenue:

1.       When
traffic lights for 152 Street southbound through traffic are red,
sufficient vehicles stopped in the northbound left-turn lane can trigger an
advanced green arrow;

2.       Once
triggered, the northbound advanced green arrow for left turns flashes for
7.0-7.8 seconds, depending on the volume of left-turning traffic;

3.       While
the advanced green arrow is engaged, traffic lights for 152 Street
southbound through traffic remain red;

4.       Once
the advanced green arrow for northbound left-turning traffic has flashed green
for 7.0-7.8 seconds, the light turns into a solid yellow light and remains
solid yellow for 4.0 seconds;

5.       While
the northbound left-turning light is solid yellow, the traffic lights for 152 Street
southbound through traffic remain red;

6.       After
the northbound solid yellow light has been on for 4.0 seconds it turns into a
solid green light; and

7.       At
the same time as the northbound left-turning light turns from solid yellow to
solid green, the traffic lights for 152 Street southbound through traffic
also turn to a solid green light.

[9]            
Mr. Fichten and Ms. Matheson, having been travelling north on 152 Street,
wished to turn left on 102A Avenue into the Guildford Town Centre parking
lot.  Mr. Fichten began the turn, and made it across the intersection as
far as the southbound curb lane on 152 Street adjacent to the Guildford Town
Centre parking lot.  The defendant’s BMW, which had been proceeding south along
the curb lane, struck the plaintiff’s Sunbird on its passenger side.  The right
front side of the BMW was damaged.

[10]        
The plaintiff did not testify.  It was admitted by the defendants as
fact that she has little recollection of the accident other than waiting to
make a left-hand turn, looking down and then seeing a dark shadow to her right
and blanking out.

[11]        
The plaintiff called Mr. Fichten as a witness.  He is 38 years old
and now lives in Saskatoon with the plaintiff and their daughter.  He has had a
driver’s license since he was 18 but that neither he nor the plaintiff had a
valid British Columbia driver’s license at the time of the accident.

[12]        
Mr. Fichten testified that he had been at the corner of 102A Avenue
and 152 Street and had made the left-turn into the Guildford Town Centre
from 152 Street many times, and was therefore quite familiar with the
intersection.

[13]        
He said the weather was not too bad, the traffic was moderate and they
were not in a particular hurry.  As he described it, after they came to the
light on 102A Avenue in the left-hand turning lane, he stopped and waited
for the arrow to indicate that the dedicated left-turn lane could proceed.  He
testified that there were cars ahead of him, in particular a van.  He testified
to seeing vehicles in both the center and middle lanes southbound, but no vehicles
in the curb lane.  He believed that there was one vehicle facing him in the
southbound dedicated turn lane.  He said that he saw that the cars in the
southbound lanes were stopped.  When he stopped, the light was red and then
changed to a green arrow.  He said that he went with the flow of traffic to make
the turn.

[14]        
Mr. Fichten said that when he arrived at the intersection following
the other left-turning vehicles he did not stop but just kept going.  Asked
when he first saw the light turn into a green arrow indicating an advanced left
turn, he testified that he was at the intersection, through the crosswalk.  He
could not remember ever looking up at the light again.  He could not remember at
what speed he was travelling.  He said he recalled almost crossing the curb
lane, that is, almost clearing the intersection and entering onto 102A Street
beside the mall, when they were hit.  He said that he had no notice or warning
of the accident and does not remember the collision at all.  He woke up on the
southwest corner of the intersection and was then taken away by ambulance, as
was Ms. Matheson.

[15]        
On cross-examination, Mr. Fichten testified that when he entered
the left-turn lane there were a few vehicles in front, but probably not as many
as five.  He said that he was familiar with how the lights in the intersection
worked.  He testified that after the northbound advanced green light flashes a green
arrow, it switches to a solid green light.  He agreed that when the southbound
traffic signal is solid green, southbound vehicles are allowed to proceed
though the intersection, and someone turning left such as himself would have to
yield.

[16]        
Mr. Fichten conceded on cross-examination that when vehicles were
stopped in the center and middle lanes southbound on 152 Street his view
of the curb lane southbound on 152 Street would be blocked or obstructed. 
He said that he believed at the time of the accident that the traffic
proceeding south in the curb lane of 152 Street was required to make a right
turn into the mall parking lot.

[17]        
He testified that as the van began to move forward in front of him he
followed it and was increasing his speed as he approached the intersection.  He
agreed that he was increasing his speed while making his left turn and
travelling through the intersection.  He first said that the front of his
vehicle was about two feet from the rear of the van, but then said that he
could not remember and agreed with the suggestion that there was a significant
distance between his car and the van in front of him.  He agreed that when he
made his left turn he did not come to a stop before making the turn and did not
make a 90 degree turn; rather, he entered the intersection and immediately
began to angle over to get to the mall parking lot entrance.

[18]        
He said that he did not remember the vehicles in the center and middle
southbound lanes on 152 Street moving into the intersection while he was
turning, although he said that it was possible.  He did not recall making eye
contact with the driver of the vehicle in one of those lanes, and he did not
recall the sound of a honking horn while he was turning.  He said that he did
not stop while he was crossing the on-coming lanes because he thought that he
still had the flashing green arrow.  He had no idea where the defendant’s
vehicle came from in the curb lane.

[19]        
Mr. Fichten also admitted on cross-examination that in
September 2009 he had a drug problem, as did Ms. Matheson.  He said
that he had been using crack-cocaine for about two years, and that he would
spend his earnings on it every payday.  He agreed that the use of “crack” can
lead to the following side effects: a sense of confidence, a sense of
aggressiveness, possibly paranoia, delusions and restlessness.  He testified
that he had in fact experienced the side-effects of a sense of confidence and
aggressiveness.

[20]        
In re-direct examination, he testified that he had last used “crack” two
weeks before the accident.

[21]        
Doris Bugden-Tapp was shopping in the mall with her daughter and her daughter’s
friend on September 3, 2009.  They were leaving the parking lot, heading
east on 102A Avenue.  Ms. Bugden-Tapp was driving the first vehicle
waiting at the light to turn left onto 152 Street.  She testified that she
noted that the light was taking a long time, then looked up and saw an amber
light above her to the right (not being her signal).  She said that she knew
that her turn to make her left turn was coming fairly soon and she looked into
the intersection.  She testified that she saw a white car waiting to complete a
turn into the Guildford Town Centre parking lot, which she described as waiting
to turn “when it was safe”.  She said that she does not recall if the white car
was stopped completely, but she had the impression that he was waiting to go
safely.

[22]        
Ms. Bugden-Tapp recalled that there was at least one vehicle
stopped in the middle lane on the southbound side of 152 Street.  She said
that while the white car seemed to be waiting to turn left she saw from her
peripheral vision a dark car in the curb lane coming at a fair speed, which then
banged into the white car.  She said that in her opinion the black car was not
travelling at a reasonable speed, but was going “excessively”.  She recalled
four occupants in the black vehicle, two in the front and two in the back, one
of them wearing a turban.  She said that the dark vehicle hit the white
vehicle, and pushed it right in front of her; she thought that her vehicle
would be hit as well.  Shattered glass came in through her open window.  She
said the accident was very traumatic.  She remembered that it took a long time
for police and ambulance to get the occupants out of the white vehicle.

[23]        
On cross-examination she testified that when she saw the white vehicle
it was already in the intersection, moving very slowly because vehicles travelling
southbound were going through.  She agreed that the traffic going south was
causing the white vehicle to stop or move very slowly.  She agreed that she saw
a vehicle in the middle lane southbound come to a stop while she was watching
the white vehicle and the intersection.  She said that she believed that when
the motor vehicle accident occurred any vehicle in the intersection heading
south must have entered the intersection on a red light.

[24]        
Ms. Bugden-Tapp testified that there were no vehicles in front of
the white vehicle in the intersection making a left turn, and she did not see
any van making a turn in front of that vehicle.

[25]        
Melissa Earl was also called by the plaintiff.  She was employed as an
assistant manager at the Red Robin restaurant in the Guildford Town Centre. 
She testified that the restaurant has big bay windows that look out onto the
intersection in question.  Ms. Earl said that she was taking an order from
a customer, looked up and saw a white car northbound in the intersection
waiting to make a left turn.  Her evidence was that the white car was stopped
in the intersection, not moving at all.  She said she looked down and then
heard an impact.

[26]        
On cross-examination she said that the colour of the light at the time
was solid green, and that both the northbound white car and southbound traffic
had a solid green light.

[27]        
The defendant Harmandeep Bahniwal testified.  He is now 23 years old,
and was 20 years old at the time of the accident.  He studies criminology at
Simon Fraser University.  He testified that on September 3, 2009, he was
driving south on 152 Street with one passenger in his vehicle, Randip
Kaler.  Mr. Bahniwal was not in a particular rush.  He had been through
the intersection many times and was familiar with it.  Neither
Mr. Bahniwal nor Mr. Kaler was wearing a turban.

[28]        
Mr. Bahniwal was driving in the far right curb lane heading south
as he approached the intersection, where the light was green.  There were no
vehicles immediately in front of his car and no traffic in the curb lane in
front of him.  He said that he was travelling at the speed limit or little
below and that he slowed down, probably two or three car lengths from the stop
line, in order to get a clear look around.  He said that there were a few
vehicles in the two other southbound through lanes, and that they were starting
to move when the light had been green for three or four seconds.  He said that
he observed those vehicles had slowed down, but that they started moving
through the green light so he did as well.

[29]        
He said he was heading into the intersection while the vehicles beside
him were moving when he observed the flash of a white car in front of him and
then the collision occurred.  He said the white car seemed to be travelling “pretty
fast”, maybe 50‑60 kilometers an hour.

[30]        
He said that he received a concussion in the accident and that the airbags
in his vehicle deployed.

[31]        
On cross-examination, Mr. Bahniwal said that at the time of the
accident he had had 3-1/2 years of driving experience.  He said that, as he
approached the intersection, he saw the light cycle from red to green when he
was two to three car lengths away from the intersection, and he gradually sped
up as the cars to his left were moving.  He said that he did not see the cars
to his left stop.  He said he did not remember whether there were other
vehicles backed up on the other (south) side of the intersection in the northbound
lanes.

[32]        
Asked whether a mistake had been made by the drivers in the two lanes to
his left who said they started to move into the intersection but then stopped
to let the white car make its left turn, Mr. Bahniwal said that his vision
was limited.  He testified that his view was obstructed due to the vehicles to
the left of him going southbound, but he had a clear view in front of him and
he had a green light.  He then testified, “I am not going to pay attention to
other vehicles stopping when I’m going through a green light; I’m not going to
look to my left when going straight”, and reiterated “I had a green light.”  He
testified that he did not clearly remember those other vehicles making a full
stop.  Later asked whether his sight line of the turning lane from the north
was obstructed, he said that he did not remember and did not agree that it was.

[33]        
Kuliman Singh was called by the defendant.  He is 44 years of age and is
a transit driver.  He was driving his personal vehicle south on 152 Street. 
He was driving in the middle lane.  He stopped at the red light and was the
first vehicle at the intersection;  there were some cars behind him.  He said
that there was traffic stopped in the center lane southbound, but there were no
cars in the southbound curb lane.

[34]        
Mr. Singh saw three or four northbound vehicles make left turns to
enter the mall.  Then the traffic light for southbound through traffic turned
green, he looked around, saw it was all clear, and went about one car length. 
He suddenly saw a northbound white vehicle in the left turn lane turning into
the mall.  Mr. Singh testified that the white vehicle was about 50 feet
from the stop line at the intersection between 152 Street and 102A Avenue
and it was not stopping.  Mr. Singh honked and stopped his vehicle, and,
he said, the driver to his immediate left also stopped right away.  Mr. Singh’s
vehicle was about one car length into the intersection when he stopped, he
testified.  He said that he made eye contact with the male driver of the white
car and figured out that driver was not going to stop.  He testified that the
eye contact occurred when the white vehicle was just at the stop line before
the intersection and Mr. Singh had already stopped.  He could not recall
the speed of the white vehicle that was turning left, although he said that it
increased its speed after the southbound vehicles stopped.  Mr. Singh said
that he was scared and that he hoped that there was no one coming in the curb
lane.

[35]        
After Mr. Singh stopped his vehicle, he said, the white vehicle
made a sharp turn towards the mall entrance and the next thing he saw was the
black car in the curb lane proceeding straight through the intersection on the
green light and hitting the white car.  He described the speed of the vehicle
coming in the curb lane as “normal”.  He said that about 30 seconds passed
between the light turning green and the impact.

[36]        
On cross-examination, Mr. Singh said that he made eye contact with
the driver of the white vehicle while he was honking and stopping, and the
white vehicle was still partly in the crosswalk.  He agreed that he might have
been 40 feet away.  He said that his interpretation was that the driver of the
white vehicle was telling him that he should stop, and he did.  He said he was
not aware of any vehicles in the curb lane to his right approaching the
intersection.  He said that he heard brakes and then the crash quickly
thereafter.

[37]        
The defendant also called as a witness Randip Kaler, who was the
passenger in the front seat of the Bahniwal vehicle.  He said that as they were
coming southbound up the curb lane of 152 Street the light was red and they “kind
of slowed down”.  Mr. Kaler said that they were some distance away when he
saw the red light, somewhere past 104 Avenue.  His evidence was that there were
no vehicles in front of them in the curb lane, and that the Bahniwal vehicle
was decelerating while the light had been red.  He could not say how fast they
were travelling.  It was a couple of seconds before the light turned green. 
When the light turned green, Mr. Bahniwal sped up a little.  When asked
how much Mr. Bahniwal increased his speed after the light turned green, Mr. Kaler
replied that he did not know because the impact happened very shortly
thereafter.  Mr. Kaler saw nothing until a white car came out of nowhere
very suddenly and the vehicles collided.  He described it as “a couple of
milliseconds” after the light turned green.  He said they were pretty close to
the intersection and they barely had time to react.

[38]        
Mr. Kaler’s evidence was that he saw vehicles in the two lanes to
the left of the Bahniwal vehicle.  There were at least two or three vehicles
that were stopped in those lanes.  When asked why they were stopped, he said
because the light was red earlier.  He said he did not notice what those
vehicles did when the light turned green.

[39]        
On cross-examination, Mr. Kaler confirmed that he believed that the
light turned green “milliseconds” before the impact.  He agreed that the impact
was violent and that the airbags on both sides of the BMW deployed.  He said
that Mr. Bahniwal seemed a bit disoriented after the collision; he seemed panicked,
or in shock.

[40]        
Mr. Kaler agreed that the Bahniwal vehicle passed some stopped vehicles
in the two lanes to its left when it entered the intersection, and that the
collision happened immediately after they entered the intersection.

[41]        
He estimated that Mr. Bahniwal was driving at average speed, close
to the speed limit, although he could not say for sure.

[42]        
Victoria Bowles is 20 years old.  She was employed part-time at a food
retailer and attended university.  Her vehicle, a pick-up truck, was heading
south on 152 Street, in the center lane immediately to the right of the
designated left turn lane.  She said that there were two vehicles in front of
her waiting at the red light.  She did not recall seeing any northbound vehicles
make the turn into the parking lot, but said that there must have been some, to
trigger the light.

[43]        
She did see some vehicles to her right in the middle southbound lane.

[44]        
Ms. Bowles said that when the light turned green, the cars in front
of her started to move but then stepped on their brakes so that she too had to
stop.  She said that she moved forward only a couple of feet.

[45]        
She said that she assumed that the vehicles in front of her in the
center lane stopped because they saw the white car turning left and they did
not want to hit it.  She said that she did not see the white car until it was
further into the intersection.  She testified that she saw, from the corner of
her eye, the collision between the white car and the black car.  She said that
the collision occurred in the intersection in front of the curb lane and the
through lane from 102A Avenue.  She was unable to say how fast either car
was going.

[46]        
By agreement, the evidence of another witness was provided by
deposition. Denise Laing, a 45-year-old education assistant, was driving south on
152 Street in the centre lane, in front of Ms. Bowles.  There was one
vehicle in front of her.  She said that there were also vehicles stopped in the
lane to the right of her.  She testified that when the light turned green the
vehicle in front of her began to move forward, as did the vehicles to her
right.  Then, after moving a couple of feet, the vehicles in front of and
beside her came to a stop.  At the same time, the vehicles to her right moved
forward.  Then the vehicles in front of and beside her came to a stop after
moving a couple of feet.  She said they stopped because of a white left-turning
vehicle.  Ms. Laing testified that she remembered thinking “this guy
turning left is never going to make it”.

[47]        
On cross-examination, Ms. Laing agreed that she had to bring her
vehicle to a stop almost immediately after beginning to move forward.  She
confirmed that she believes that she saw a vehicle in the curb lane as she
moved forward into the intersection, but she had no real sense of the speed of
that vehicle.  She also said that she believed there were vehicles to her
immediate left in the southbound left-turn lane.

[48]        
Ms. Laing said that she saw at least two other northbound vehicles
turn left, and that she could not say whether the white vehicle entered the
intersection from a stopped position or while already moving.  She also could
not give an estimate of its speed.

FINDINGS OF FACT

[49]        
I have concluded on the preponderance of the evidence that Mr. Fichten
entered the intersection to execute his left turn either very late in the
four-second amber light or immediately after the light for northbound traffic
had turned solid green.  I reach that conclusion because I accept the evidence
of the three independent witnesses – Mr. Singh, Ms. Laing and Ms. Bowles
– that the red light for southbound traffic had turned green when vehicles in
the southbound lanes advanced into the intersection.  The approach of Mr. Fichten’s
vehicle then caused those southbound vehicles to stop.  Given that the light
for southbound traffic was green, the light for northbound left-turning traffic
was also solid green, not amber or a flashing green arrow.  I find that Mr. Fichten
was mistaken in his belief that he had a flashing green arrow permitting an
advanced left turn when he entered the intersection.  I also find that he was
mistaken about being close behind a van.

[50]        
I accept Mr. Singh’s evidence that he concluded, from his
observations of the Fichten vehicle and its driver, that Mr. Fichten’s
vehicle was going to proceed through the intersection and that it was prudent
for Mr. Singh to stop.  I find, however, that he may have been mistaken as
to the precise location where he first saw the Fichten vehicle and obtained
that impression.  I find that it was likely moving and was already slightly
into the intersection.

[51]        
Counsel for the plaintiff challenged Mr. Singh’s evidence because
he differed from the other witnesses as to the location of the cars when they
collided.  Mr. Singh said that Mr. Fichten headed at an angle across
the intersection toward the eastbound lanes on 102A Avenue and that the
vehicles collided near the southwest corner of the intersection; other
witnesses said that the collision occurred at the northwest corner of the
intersection, close to where the eastbound lane on 102A Avenue intersected
with the southbound curb lane of 152 Street.

[52]        
I do not think that anything turns on the precise location where the
collision occurred.  I find that the collision occurred near the southwest
corner of the intersection, likely closer to the centre line of 102A Avenue. 
The Fichten vehicle was likely travelling at an angle in order to reach the
westbound lane of 102A Avenue and complete its turn.

[53]        
I find that the Fichten vehicle proceeded not at an unusual speed, but
with  some dispatch in order to make it through the intersection and execute
its left turn.

[54]        
I find that Ms. Bugden-Tapp was mistaken in her recollection
that the light for southbound vehicles was red when she saw the Fichten vehicle
and that the Fichten vehicle proceeded very slowly and stopped before crossing
the curb lane.  I find that she was also mistaken that the black vehicle she
saw had four occupants, one of them wearing a turban; it was the Bahniwal
vehicle she saw, with its two occupants.  I also do not place weight on the
recollection of Ms. Earl, who, from inside a building, glanced up and then
down again and formed the impression that the white vehicle was stopped.

[55]        
All other witnesses, including Mr. Fichten, testified that the
white vehicle went through the intersection without stopping to check for
traffic heading south in the curb lane.

[56]        
An explanation for Mr. Fichten’s failing to stop and look before he
crossed the southbound curb lane may be found in his belief that traffic in the
curb lane was required to turn right, rather than continue southbound.  If that
belief had been correct, there would have been little likelihood of other
vehicles crossing his path.  However, his belief was incorrect and vehicles in
the curb lane were free to proceed south through the intersection, as Mr. Bahniwal
did.

[57]        
I find that the Bahniwal vehicle was travelling at the speed limit of
50 kilometres per hour, or perhaps a bit less, as it proceeded up the southbound
curb lane.  I accept Mr. Kaler’s evidence that Mr. Bahniwal had
slowed when the light ahead was red, but then resumed speed after the light turned
green, two to three car lengths from the intersection.  I find that the
presence of vehicles in the two lanes to his left obscured Mr. Bahniwal’s
view of what was occurring in the intersection except for the portion
immediately in front of him.  The vehicles in the two lanes to Mr. Bahniwal’s
left began to move forward, but they stopped almost immediately.  Mr. Bahniwal
overtook those vehicles and passed them on the right, entering the intersection
on a green light but without noting that the vehicles to his left had stopped,
or taking any particular precaution before entering the intersection.

[58]        
Although I accept in general the evidence of Mr. Kaler regarding
the events, I find that he was likely mistaken about it being only “milliseconds”
between the time when the light facing the curb lane turned green and Mr. Bahniwal
entered the intersection.  I find that at least a second or two would have
passed, not milliseconds.  In short, Mr. Bahniwal passed the vehicles that
had just stopped, and entered the intersection at about 50 kilometres per
hour, shortly after the light turned green.

LAW

[59]        
The parties refer to the following sections of the Motor Vehicle Act,
R.S.B.C. 1996 c. 318:

Green light

127  (1) When a green light alone is exhibited at
an intersection by a traffic control signal,

(a) the driver of a vehicle
facing the green light

(i)  may cause the vehicle to
proceed straight through the intersection, or to turn left or right, subject to
a sign or signal prohibiting a left or right turn, or both, or designating the
turning movement permitted,

…

(iii)  must yield the right
of way to vehicles lawfully in the intersection at the time the green light
became exhibited, and

…

Arrows

130  (1) When a green arrow is exhibited at an
intersection by a traffic control signal,

(a) the driver of a vehicle
facing the green arrow may cause it to enter the intersection and to make only
the movement indicated by the green arrow, but must yield the right of way to
pedestrians lawfully in the intersection or in an adjacent crosswalk and to
other vehicles lawfully in the intersection, and

…

(2) When a yellow arrow is exhibited at an intersection
by a traffic control signal,

(a) the driver of a vehicle
approaching the intersection and facing a yellow arrow must cause the vehicle
to stop

(i)  before entering the
marked crosswalk on the near side of the intersection, or

(ii)  before entering the
intersection, if there is no marked crosswalk,

unless the stop cannot be made in
safety,

(b) the driver of a motor
vehicle approaching the intersection and facing the yellow arrow may, when a
stop cannot be made in safety, proceed with caution to make the only movement
indicated by the arrow but must yield the right of way to pedestrians lawfully
in the intersection or in an adjacent crosswalk, and to other vehicles lawfully
in the intersection,

…

Careless driving prohibited

144  (1) A person must not drive a motor vehicle on
a highway

(a) without due care and
attention,

(b) without reasonable
consideration for other persons using the highway, or

(c) at a speed that is
excessive relative to the road, traffic, visibility or weather conditions.

…

Driver on right

150  (1) The driver of a vehicle must confine the
course of the vehicle to the right hand half of the roadway if the roadway is
of sufficient width and it is practicable to do so, except

(a) when overtaking and
passing a vehicle proceeding in the same direction,

…

Duty when overtaking

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

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

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

(2) Except when overtaking and passing on the right is
permitted, a driver of an overtaken vehicle,

(a) on hearing an audible
signal given by the driver of the overtaking vehicle, must cause the vehicle to
give way to the right in favour of the overtaking vehicle, and

(b) must not increase the
speed of the vehicle until completely passed by the overtaking vehicle.

Yielding right of way on
left turn

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.

[60]        
I also note s. 158:

Passing on right

158  (1) The driver of a vehicle must not cause or permit the
vehicle to overtake and pass on the right of another vehicle, except

(a) when the vehicle overtaken is
making a left turn or its driver has signalled his or her intention to make a
left turn,

(b) when on a laned roadway there
is one or more than one unobstructed lane on the side of the roadway on which
the driver is permitted to drive, or

(c) on a one way street or a
highway on which traffic is restricted to one direction of movement, where the
roadway is free from obstructions and is of sufficient width for 2 or more
lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not
cause the vehicle to overtake and pass another vehicle on the right

(a) when the movement cannot be
made safely, or

(b) by driving the vehicle off the roadway.

ANALYSIS

[61]        
I have found as fact that Mr. Bahniwal proceeded through the
intersection on a green light.  Accordingly, he had the right of way.  His was
the dominant vehicle; Mr. Fichten’s vehicle was in the servient position.

[62]        
The question in the end is whether either Mr. Fichten or
Mr. Bahniwal  or both, was in breach of the duty of care he owed to the
plaintiff.  I take into account the Motor Vehicle Act provisions as
informing the requisite standard of care (Ryan v. Victoria, [1999] 1
S.C.R. 201 at para. 29).

[63]        
It is clear that Mr. Fichten was negligent in making his left turn
when it was unsafe to do so after the light had changed, and in particular by
crossing the curb lane of southbound traffic without checking that it was free
of oncoming vehicles.

[64]        
Turning to Mr. Bahniwal, what is the duty of a driver who enters an
intersection in the circumstances that faced him?  He was in the curb lane, his
view of the intersection was blocked by other vehicles, and those vehicles,
having entered the intersection, had subsequently stopped.

[65]        
The governing principles are set out in Pacheco v. Robinson
(1993), 75 B.C.L.R. (2d) 273, 22 B.C.A.C. 185 (C.A.).  In that case, the
plaintiff cyclist went through an intersection on an amber light.  The
defendant was making a left-hand turn on a green light.  Neither party saw the
other until a fraction of a second prior to impact.  The trial judge referred
to s. 176 of the Motor Vehicle Act R.S.B.C. 1979, c. 228,
which is in identical terms to the existing s. 174.  He stated (quoted at
para. 7 of the Court of Appeal decision):

The failure to see something or someone that is there to be
seen applies to both parties on the facts of this case. Certainly the mere fact
that one is part of the through traffic does not relieve a driver from the
obligation to keep a proper look-out, because the question of right of way can
evolve, as for example, prescribed by s. 176 of the Motor Vehicle Act.

I am unable to conclude however
that the left turning defendant ever became a dominant driver with the right of
way under the terms of s. 176, because for that to be the case, she would
have had to commence her turn at a time when approaching traffic was not so
close as to constitute an immediate hazard.  I find that at the moment the
defendant commenced her turn the plaintiff cyclist was in the intersection.  Thus
in my view the plaintiff was also obviously and clearly so close as to
constitute an immediate hazard. Further, the wording of the latter portion of s. 76
envisages only a driver who is, “approaching” rather than “in” the intersection
as becoming a servient driver to the left turn.  In other words, one cannot
become servient if one is in the intersection.

[66]        
The trial judge concluded that the accident was contributed to by the
negligence of both parties, and apportioned liability 25% to the cyclist
plaintiff and 75% to the defendant driver.

[67]        
On appeal in Pacheco, Mr. Justice Legg, for the Court, held
that the finding of contributory negligence against the plaintiff was in error,
stating at para. 15:

In my opinion, a driver who
wishes to make a left hand turn at an intersection has an obligation not to
proceed unless it can be done safely. Where each party’s vision of the other is
blocked by traffic, the dominant driver who is proceeding through the
intersection is generally entitled to continue and the servient left-turning
driver must yield the right of way. The existence 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. Where the defendant, as here,
has totally failed to determine whether a turn can be made safely, the
defendant should be held 100 percent at fault for a collision which occurs.

[68]        
He further wrote at para. 18:

In my opinion, when a driver in a servient position
disregards his statutory duty to yield the right of way and a collision
results, then to fix any blame on the dominant driver, the servient driver must
establish that after the dominant driver became aware, or by the exercise of
reasonable care should have become aware, of the servient driver’s own
disregard of the law, the dominant driver had a sufficient opportunity to avoid
the accident of which a reasonably careful and skilful driver would have
availed himself. In such circumstance any doubt should be resolved in favour of
the dominant driver. As stated by Cartwright, J. in Walker v.
Brownlee (1952), 2 D.L.R. 450 (S.C.C.) at 461:

While the decision of every motor
vehicle collision case must depend on its particular facts, I am of opinion
that when A, the driver in the servient position, proceeds through an
intersection in complete disregard of his statutory duty to yield the
right-of-way and a collision results, if he seeks to cast any portion of the
blame upon B, the driver having the right-of-way, A must establish that after B
became aware, or by the exercise of reasonable care should have become aware,
of A’s disregard of the law B had in fact a sufficient opportunity to avoid the
accident of which a reasonably careful and skilful driver would have availed
himself; and I do not think that in such circumstances any doubts should be
resolved in favour of A, whose unlawful conduct was fons et origo mali.

[Emphasis added.]

[69]        
In McCowan v. Arjune et al., 2002 BCCA 627, Mr. Justice
Braidwood further elaborated on the principle enounced in Pacheco as
follows at para. 20:

Such duty was confirmed by this
Court in Melgarejo-Gomez v. Sidhu (2002), 97 B.C.L.R. (3d) 154. In order
to fix any blame on the dominant driver, the servient driver (McCowan) must
establish that after the dominant driver (Arjune) became aware of his disregard
of the law, the dominant driver had sufficient opportunity to avoid the
accident, opportunity of which a reasonable careful and skilful driver would
have availed herself. Any doubt is to be resolved in favour of the dominant
driver: Pacheco (Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R.
(2) 273 at para. 18 (B.C.C.A.); Walker v. Brownlee and Harmon, [1952]
2 D.L.R. 450 at 461 (S.C.C.).

[70]        
The facts in Robinson v. Wong, 2007 BCSC 708, are fairly similar
to those in the case before me.  In that case, the plaintiff was executing a
left turn which required her to cross three oncoming southbound lanes.  She was
in a dedicated left-turn lane; the intersection was controlled by a stoplight,
but there does not appear to have been an advanced left-turn signal.  Southbound
traffic was backed up and the plaintiff was waved on by drivers in the opposite
facing lanes.  She did not stop before crossing into the curb lane.  If she had
done so, she would have seen the defendant’s vehicle approaching her in that
lane.  The defendant did not observe that the vehicles to his left were stopped
as he proceeded into the intersection at 40-50 kilometres per hour.

[71]        
The trial judge found that the plaintiff totally failed to determine
whether her turn could be made safely and that she was clearly negligent.  Observing
that liability could only be found against the defendant if he had a sufficient
opportunity to avoid the accident of which a reasonably careful and skillful
driver would have availed himself, Goepel J. referred to Sandhu v. Gill
(1999), 49 M.V.R. (3d) 32 (B.C.S.C.).  He then concluded that the plaintiff did
not have sufficient time to gauge the defendant’s speed accurately.  The
defendant was proceeding at or near the speed limit and his lane was clear of
traffic.

[72]        
Mr. Justice Goepel stated at para. 22:

Mr. Wong was not required to
slow down or come to a stop because traffic in the adjoining southbound lanes
was backing up.  Nothing about the situation would alert him that Ms. Robinson
would disregard her statutory duty and fail to yield the right of way.

[73]        
He found that the plaintiff was the sole cause of the accident.

[74]        
Mr. Hébert, counsel for the plaintiff, argues that Mr. Fichten
is responsible “to a degree” for causing the accident because he failed to
yield the right of way on a left turn.  However, Mr. Hébert says that Mr. Bahniwal
also bore some responsibility because he entered the intersection at an
excessive and unsafe speed in the circumstances, given that his view of the
intersection was obstructed by vehicles in the lanes to his left.

[75]        
Mr. Hébert submits that the timing and speed with which Mr. Bahniwal
entered the intersection, at about 50 kilometres per hour, shortly after the
light turned green, suggests a lack of caution.  He submits that Mr. Bahniwal
had a sufficient opportunity to avoid the accident because he should have
perceived a possible risk, and that a reasonably careful and skillful driver
would have availed himself of that opportunity.

[76]        
Mr. Hébert referred me to some authorities, a number of which
pre-date the Pacheco case.  He also cited a more recent case, Kelly
v. Yuen, 2010 BCSC 1794.  The facts in that case are distinguishable from the
ones presented here because the defendant driver was wrongly in the curb lane
(a bus lane) and was travelling at an excessive speed.

[77]        
Mr. Lyszkiewicz, on the other hand, relies on Pacheco and Robinson
v. Wong.  He submits that 100% of the responsibility for the collision
belongs to Mr. Fichten, since Mr. Bahniwal did not have sufficient
opportunity to avoid the accident and his vehicle was in the dominant position.

[78]        
In my opinion, when the light facing Mr. Bahniwal turned green and
the vehicles on his left proceeded forward and then stopped, Mr. Bahniwal
had the opportunity to recognize, and should have recognized, that something
had caused them to stop.  His approach into the intersection should then have
been tempered with caution, even though he had the light in his favour and had
built up some momentum.  He did not take that approach but, instead, proceeded
at the speed limit into the intersection.  His vehicle was in the dominant
position, but he was not entitled to overlook a clear indication of a possible
hazard in the fact that the vehicles to his left had stopped very soon after
having begun to move.  The traffic was not backed up in the southbound lanes,
as it was in Robinson v. Wong, and the timing of the vehicles stopping
was inexplicable from his vantage point.  A careful driver would have reacted
to the possibility that a left-turning vehicle, a pedestrian, or some other
hazard was still in the intersection.

[79]        
I find that Mr. Bahniwal was in breach of his duty of care, and
allocate liability 10% to him and 90% to Mr. Fichten.

[80]        
The plaintiff will have her costs unless it is necessary to speak to
costs.  If so, the parties may do so at a time to be arranged through Trial Scheduling.

“Lynn Smith J.”

Tags:


 

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Matheson v. Fichten,

 

2012 BCSC 565

Date: 20120423

Docket: M096264

Registry:
Vancouver

Between:

Suzanne Marie
Matheson

Plaintiff

And

Kenneth Fichten,
Harmandeep Singh Bahniwal

and BMW Canada
Inc.

Defendants

And

Insurance
Corporation Of British Columbia

Third
Party

Before: The Honourable Madam
Justice Smith

Reasons for Judgment

Counsel for Plaintiff:

J-M Hébert

Counsel for Defendants, Harmandeep Singh Bahniwal &
BMW Canada Inc.:

E. Lyszkiewicz

Counsel for the Third Party:

E. Lundberg

Place and Date of Trial:

Vancouver, B.C.

March 12-14,
2012

Place and Date of Judgment:

Vancouver, B.C.

April 23, 2012


 

INTRODUCTION

[1]            
The plaintiff Suzanne Matheson seeks damages for personal injuries sustained
in a motor vehicle collision on September 3, 2009.

[2]            
The issues of liability and damages were severed pursuant to an order of
Master Baker entered on February 10, 2012, and this trial addressed only liability.

[3]            
The collision occurred when Ms. Matheson was a passenger in her own
vehicle.  Her common-law partner, the defendant Kenneth Fichten, was the driver.
While Mr. Fichten was executing a left-hand turn at a busy intersection, the
Matheson vehicle was struck by a vehicle driven by the defendant Harmandeep Singh
Bahniwal that he leased from the defendant BMW Canada Inc.

[4]            
Ms. Matheson claims that, as a result of the accident, she suffered
significant orthopedic injuries.  Her vehicle, a white 1994 Pontiac Sunbird,
was demolished.  Mr. Bahniwal’s vehicle, a new black 2008 BMW 335, was seriously
damaged and required some $35,000.00-$40,000.00 in repairs.

[5]            
There is no allegation of contributory negligence against the plaintiff. 
A central issue in the trial was whether any liability should be apportioned to
the defendant Harmandeep Bahniwal, who had the green light to proceed through
the intersection.

EVIDENCE

[6]            
The accident occurred in Surrey, at the intersection of 152 Street
(which runs north-south) and 102A Avenue (which runs east-west).  The Guildford
Town Centre parking lot is to the northwest of the intersection.  There are
three lanes eastbound on 102A Avenue, one of which is a dedicated left-turn
lane for traffic turning onto 152 Street from the parking lot.

[7]            
There are three through lanes on 152 Street for southbound traffic
as well as a dedicated left-turn lane for southbound traffic to turn east onto 102A Avenue. 
In the northbound direction, 152 Street has two through lanes for traffic
heading north and one dedicated left-turn lane for traffic to turn west onto 102A Avenue
and into the Guildford Town Centre parking lot.

[8]            
The intersection is marked by traffic lights.  The parties agreed that
the traffic lights operate in the following manner for northbound traffic on 152 Street
intending to make a left turn at 102A Avenue:

1.       When
traffic lights for 152 Street southbound through traffic are red,
sufficient vehicles stopped in the northbound left-turn lane can trigger an
advanced green arrow;

2.       Once
triggered, the northbound advanced green arrow for left turns flashes for
7.0-7.8 seconds, depending on the volume of left-turning traffic;

3.       While
the advanced green arrow is engaged, traffic lights for 152 Street
southbound through traffic remain red;

4.       Once
the advanced green arrow for northbound left-turning traffic has flashed green
for 7.0-7.8 seconds, the light turns into a solid yellow light and remains
solid yellow for 4.0 seconds;

5.       While
the northbound left-turning light is solid yellow, the traffic lights for 152 Street
southbound through traffic remain red;

6.       After
the northbound solid yellow light has been on for 4.0 seconds it turns into a
solid green light; and

7.       At
the same time as the northbound left-turning light turns from solid yellow to
solid green, the traffic lights for 152 Street southbound through traffic
also turn to a solid green light.

[9]            
Mr. Fichten and Ms. Matheson, having been travelling north on 152 Street,
wished to turn left on 102A Avenue into the Guildford Town Centre parking
lot.  Mr. Fichten began the turn, and made it across the intersection as
far as the southbound curb lane on 152 Street adjacent to the Guildford Town
Centre parking lot.  The defendant’s BMW, which had been proceeding south along
the curb lane, struck the plaintiff’s Sunbird on its passenger side.  The right
front side of the BMW was damaged.

[10]        
The plaintiff did not testify.  It was admitted by the defendants as
fact that she has little recollection of the accident other than waiting to
make a left-hand turn, looking down and then seeing a dark shadow to her right
and blanking out.

[11]        
The plaintiff called Mr. Fichten as a witness.  He is 38 years old
and now lives in Saskatoon with the plaintiff and their daughter.  He has had a
driver’s license since he was 18 but that neither he nor the plaintiff had a
valid British Columbia driver’s license at the time of the accident.

[12]        
Mr. Fichten testified that he had been at the corner of 102A Avenue
and 152 Street and had made the left-turn into the Guildford Town Centre
from 152 Street many times, and was therefore quite familiar with the
intersection.

[13]        
He said the weather was not too bad, the traffic was moderate and they
were not in a particular hurry.  As he described it, after they came to the
light on 102A Avenue in the left-hand turning lane, he stopped and waited
for the arrow to indicate that the dedicated left-turn lane could proceed.  He
testified that there were cars ahead of him, in particular a van.  He testified
to seeing vehicles in both the center and middle lanes southbound, but no vehicles
in the curb lane.  He believed that there was one vehicle facing him in the
southbound dedicated turn lane.  He said that he saw that the cars in the
southbound lanes were stopped.  When he stopped, the light was red and then
changed to a green arrow.  He said that he went with the flow of traffic to make
the turn.

[14]        
Mr. Fichten said that when he arrived at the intersection following
the other left-turning vehicles he did not stop but just kept going.  Asked
when he first saw the light turn into a green arrow indicating an advanced left
turn, he testified that he was at the intersection, through the crosswalk.  He
could not remember ever looking up at the light again.  He could not remember at
what speed he was travelling.  He said he recalled almost crossing the curb
lane, that is, almost clearing the intersection and entering onto 102A Street
beside the mall, when they were hit.  He said that he had no notice or warning
of the accident and does not remember the collision at all.  He woke up on the
southwest corner of the intersection and was then taken away by ambulance, as
was Ms. Matheson.

[15]        
On cross-examination, Mr. Fichten testified that when he entered
the left-turn lane there were a few vehicles in front, but probably not as many
as five.  He said that he was familiar with how the lights in the intersection
worked.  He testified that after the northbound advanced green light flashes a green
arrow, it switches to a solid green light.  He agreed that when the southbound
traffic signal is solid green, southbound vehicles are allowed to proceed
though the intersection, and someone turning left such as himself would have to
yield.

[16]        
Mr. Fichten conceded on cross-examination that when vehicles were
stopped in the center and middle lanes southbound on 152 Street his view
of the curb lane southbound on 152 Street would be blocked or obstructed. 
He said that he believed at the time of the accident that the traffic
proceeding south in the curb lane of 152 Street was required to make a right
turn into the mall parking lot.

[17]        
He testified that as the van began to move forward in front of him he
followed it and was increasing his speed as he approached the intersection.  He
agreed that he was increasing his speed while making his left turn and
travelling through the intersection.  He first said that the front of his
vehicle was about two feet from the rear of the van, but then said that he
could not remember and agreed with the suggestion that there was a significant
distance between his car and the van in front of him.  He agreed that when he
made his left turn he did not come to a stop before making the turn and did not
make a 90 degree turn; rather, he entered the intersection and immediately
began to angle over to get to the mall parking lot entrance.

[18]        
He said that he did not remember the vehicles in the center and middle
southbound lanes on 152 Street moving into the intersection while he was
turning, although he said that it was possible.  He did not recall making eye
contact with the driver of the vehicle in one of those lanes, and he did not
recall the sound of a honking horn while he was turning.  He said that he did
not stop while he was crossing the on-coming lanes because he thought that he
still had the flashing green arrow.  He had no idea where the defendant’s
vehicle came from in the curb lane.

[19]        
Mr. Fichten also admitted on cross-examination that in
September 2009 he had a drug problem, as did Ms. Matheson.  He said
that he had been using crack-cocaine for about two years, and that he would
spend his earnings on it every payday.  He agreed that the use of “crack” can
lead to the following side effects: a sense of confidence, a sense of
aggressiveness, possibly paranoia, delusions and restlessness.  He testified
that he had in fact experienced the side-effects of a sense of confidence and
aggressiveness.

[20]        
In re-direct examination, he testified that he had last used “crack” two
weeks before the accident.

[21]        
Doris Bugden-Tapp was shopping in the mall with her daughter and her daughter’s
friend on September 3, 2009.  They were leaving the parking lot, heading
east on 102A Avenue.  Ms. Bugden-Tapp was driving the first vehicle
waiting at the light to turn left onto 152 Street.  She testified that she
noted that the light was taking a long time, then looked up and saw an amber
light above her to the right (not being her signal).  She said that she knew
that her turn to make her left turn was coming fairly soon and she looked into
the intersection.  She testified that she saw a white car waiting to complete a
turn into the Guildford Town Centre parking lot, which she described as waiting
to turn “when it was safe”.  She said that she does not recall if the white car
was stopped completely, but she had the impression that he was waiting to go
safely.

[22]        
Ms. Bugden-Tapp recalled that there was at least one vehicle
stopped in the middle lane on the southbound side of 152 Street.  She said
that while the white car seemed to be waiting to turn left she saw from her
peripheral vision a dark car in the curb lane coming at a fair speed, which then
banged into the white car.  She said that in her opinion the black car was not
travelling at a reasonable speed, but was going “excessively”.  She recalled
four occupants in the black vehicle, two in the front and two in the back, one
of them wearing a turban.  She said that the dark vehicle hit the white
vehicle, and pushed it right in front of her; she thought that her vehicle
would be hit as well.  Shattered glass came in through her open window.  She
said the accident was very traumatic.  She remembered that it took a long time
for police and ambulance to get the occupants out of the white vehicle.

[23]        
On cross-examination she testified that when she saw the white vehicle
it was already in the intersection, moving very slowly because vehicles travelling
southbound were going through.  She agreed that the traffic going south was
causing the white vehicle to stop or move very slowly.  She agreed that she saw
a vehicle in the middle lane southbound come to a stop while she was watching
the white vehicle and the intersection.  She said that she believed that when
the motor vehicle accident occurred any vehicle in the intersection heading
south must have entered the intersection on a red light.

[24]        
Ms. Bugden-Tapp testified that there were no vehicles in front of
the white vehicle in the intersection making a left turn, and she did not see
any van making a turn in front of that vehicle.

[25]        
Melissa Earl was also called by the plaintiff.  She was employed as an
assistant manager at the Red Robin restaurant in the Guildford Town Centre. 
She testified that the restaurant has big bay windows that look out onto the
intersection in question.  Ms. Earl said that she was taking an order from
a customer, looked up and saw a white car northbound in the intersection
waiting to make a left turn.  Her evidence was that the white car was stopped
in the intersection, not moving at all.  She said she looked down and then
heard an impact.

[26]        
On cross-examination she said that the colour of the light at the time
was solid green, and that both the northbound white car and southbound traffic
had a solid green light.

[27]        
The defendant Harmandeep Bahniwal testified.  He is now 23 years old,
and was 20 years old at the time of the accident.  He studies criminology at
Simon Fraser University.  He testified that on September 3, 2009, he was
driving south on 152 Street with one passenger in his vehicle, Randip
Kaler.  Mr. Bahniwal was not in a particular rush.  He had been through
the intersection many times and was familiar with it.  Neither
Mr. Bahniwal nor Mr. Kaler was wearing a turban.

[28]        
Mr. Bahniwal was driving in the far right curb lane heading south
as he approached the intersection, where the light was green.  There were no
vehicles immediately in front of his car and no traffic in the curb lane in
front of him.  He said that he was travelling at the speed limit or little
below and that he slowed down, probably two or three car lengths from the stop
line, in order to get a clear look around.  He said that there were a few
vehicles in the two other southbound through lanes, and that they were starting
to move when the light had been green for three or four seconds.  He said that
he observed those vehicles had slowed down, but that they started moving
through the green light so he did as well.

[29]        
He said he was heading into the intersection while the vehicles beside
him were moving when he observed the flash of a white car in front of him and
then the collision occurred.  He said the white car seemed to be travelling “pretty
fast”, maybe 50‑60 kilometers an hour.

[30]        
He said that he received a concussion in the accident and that the airbags
in his vehicle deployed.

[31]        
On cross-examination, Mr. Bahniwal said that at the time of the
accident he had had 3-1/2 years of driving experience.  He said that, as he
approached the intersection, he saw the light cycle from red to green when he
was two to three car lengths away from the intersection, and he gradually sped
up as the cars to his left were moving.  He said that he did not see the cars
to his left stop.  He said he did not remember whether there were other
vehicles backed up on the other (south) side of the intersection in the northbound
lanes.

[32]        
Asked whether a mistake had been made by the drivers in the two lanes to
his left who said they started to move into the intersection but then stopped
to let the white car make its left turn, Mr. Bahniwal said that his vision
was limited.  He testified that his view was obstructed due to the vehicles to
the left of him going southbound, but he had a clear view in front of him and
he had a green light.  He then testified, “I am not going to pay attention to
other vehicles stopping when I’m going through a green light; I’m not going to
look to my left when going straight”, and reiterated “I had a green light.”  He
testified that he did not clearly remember those other vehicles making a full
stop.  Later asked whether his sight line of the turning lane from the north
was obstructed, he said that he did not remember and did not agree that it was.

[33]        
Kuliman Singh was called by the defendant.  He is 44 years of age and is
a transit driver.  He was driving his personal vehicle south on 152 Street. 
He was driving in the middle lane.  He stopped at the red light and was the
first vehicle at the intersection;  there were some cars behind him.  He said
that there was traffic stopped in the center lane southbound, but there were no
cars in the southbound curb lane.

[34]        
Mr. Singh saw three or four northbound vehicles make left turns to
enter the mall.  Then the traffic light for southbound through traffic turned
green, he looked around, saw it was all clear, and went about one car length. 
He suddenly saw a northbound white vehicle in the left turn lane turning into
the mall.  Mr. Singh testified that the white vehicle was about 50 feet
from the stop line at the intersection between 152 Street and 102A Avenue
and it was not stopping.  Mr. Singh honked and stopped his vehicle, and,
he said, the driver to his immediate left also stopped right away.  Mr. Singh’s
vehicle was about one car length into the intersection when he stopped, he
testified.  He said that he made eye contact with the male driver of the white
car and figured out that driver was not going to stop.  He testified that the
eye contact occurred when the white vehicle was just at the stop line before
the intersection and Mr. Singh had already stopped.  He could not recall
the speed of the white vehicle that was turning left, although he said that it
increased its speed after the southbound vehicles stopped.  Mr. Singh said
that he was scared and that he hoped that there was no one coming in the curb
lane.

[35]        
After Mr. Singh stopped his vehicle, he said, the white vehicle
made a sharp turn towards the mall entrance and the next thing he saw was the
black car in the curb lane proceeding straight through the intersection on the
green light and hitting the white car.  He described the speed of the vehicle
coming in the curb lane as “normal”.  He said that about 30 seconds passed
between the light turning green and the impact.

[36]        
On cross-examination, Mr. Singh said that he made eye contact with
the driver of the white vehicle while he was honking and stopping, and the
white vehicle was still partly in the crosswalk.  He agreed that he might have
been 40 feet away.  He said that his interpretation was that the driver of the
white vehicle was telling him that he should stop, and he did.  He said he was
not aware of any vehicles in the curb lane to his right approaching the
intersection.  He said that he heard brakes and then the crash quickly
thereafter.

[37]        
The defendant also called as a witness Randip Kaler, who was the
passenger in the front seat of the Bahniwal vehicle.  He said that as they were
coming southbound up the curb lane of 152 Street the light was red and they “kind
of slowed down”.  Mr. Kaler said that they were some distance away when he
saw the red light, somewhere past 104 Avenue.  His evidence was that there were
no vehicles in front of them in the curb lane, and that the Bahniwal vehicle
was decelerating while the light had been red.  He could not say how fast they
were travelling.  It was a couple of seconds before the light turned green. 
When the light turned green, Mr. Bahniwal sped up a little.  When asked
how much Mr. Bahniwal increased his speed after the light turned green, Mr. Kaler
replied that he did not know because the impact happened very shortly
thereafter.  Mr. Kaler saw nothing until a white car came out of nowhere
very suddenly and the vehicles collided.  He described it as “a couple of
milliseconds” after the light turned green.  He said they were pretty close to
the intersection and they barely had time to react.

[38]        
Mr. Kaler’s evidence was that he saw vehicles in the two lanes to
the left of the Bahniwal vehicle.  There were at least two or three vehicles
that were stopped in those lanes.  When asked why they were stopped, he said
because the light was red earlier.  He said he did not notice what those
vehicles did when the light turned green.

[39]        
On cross-examination, Mr. Kaler confirmed that he believed that the
light turned green “milliseconds” before the impact.  He agreed that the impact
was violent and that the airbags on both sides of the BMW deployed.  He said
that Mr. Bahniwal seemed a bit disoriented after the collision; he seemed panicked,
or in shock.

[40]        
Mr. Kaler agreed that the Bahniwal vehicle passed some stopped vehicles
in the two lanes to its left when it entered the intersection, and that the
collision happened immediately after they entered the intersection.

[41]        
He estimated that Mr. Bahniwal was driving at average speed, close
to the speed limit, although he could not say for sure.

[42]        
Victoria Bowles is 20 years old.  She was employed part-time at a food
retailer and attended university.  Her vehicle, a pick-up truck, was heading
south on 152 Street, in the center lane immediately to the right of the
designated left turn lane.  She said that there were two vehicles in front of
her waiting at the red light.  She did not recall seeing any northbound vehicles
make the turn into the parking lot, but said that there must have been some, to
trigger the light.

[43]        
She did see some vehicles to her right in the middle southbound lane.

[44]        
Ms. Bowles said that when the light turned green, the cars in front
of her started to move but then stepped on their brakes so that she too had to
stop.  She said that she moved forward only a couple of feet.

[45]        
She said that she assumed that the vehicles in front of her in the
center lane stopped because they saw the white car turning left and they did
not want to hit it.  She said that she did not see the white car until it was
further into the intersection.  She testified that she saw, from the corner of
her eye, the collision between the white car and the black car.  She said that
the collision occurred in the intersection in front of the curb lane and the
through lane from 102A Avenue.  She was unable to say how fast either car
was going.

[46]        
By agreement, the evidence of another witness was provided by
deposition. Denise Laing, a 45-year-old education assistant, was driving south on
152 Street in the centre lane, in front of Ms. Bowles.  There was one
vehicle in front of her.  She said that there were also vehicles stopped in the
lane to the right of her.  She testified that when the light turned green the
vehicle in front of her began to move forward, as did the vehicles to her
right.  Then, after moving a couple of feet, the vehicles in front of and
beside her came to a stop.  At the same time, the vehicles to her right moved
forward.  Then the vehicles in front of and beside her came to a stop after
moving a couple of feet.  She said they stopped because of a white left-turning
vehicle.  Ms. Laing testified that she remembered thinking “this guy
turning left is never going to make it”.

[47]        
On cross-examination, Ms. Laing agreed that she had to bring her
vehicle to a stop almost immediately after beginning to move forward.  She
confirmed that she believes that she saw a vehicle in the curb lane as she
moved forward into the intersection, but she had no real sense of the speed of
that vehicle.  She also said that she believed there were vehicles to her
immediate left in the southbound left-turn lane.

[48]        
Ms. Laing said that she saw at least two other northbound vehicles
turn left, and that she could not say whether the white vehicle entered the
intersection from a stopped position or while already moving.  She also could
not give an estimate of its speed.

FINDINGS OF FACT

[49]        
I have concluded on the preponderance of the evidence that Mr. Fichten
entered the intersection to execute his left turn either very late in the
four-second amber light or immediately after the light for northbound traffic
had turned solid green.  I reach that conclusion because I accept the evidence
of the three independent witnesses – Mr. Singh, Ms. Laing and Ms. Bowles
– that the red light for southbound traffic had turned green when vehicles in
the southbound lanes advanced into the intersection.  The approach of Mr. Fichten’s
vehicle then caused those southbound vehicles to stop.  Given that the light
for southbound traffic was green, the light for northbound left-turning traffic
was also solid green, not amber or a flashing green arrow.  I find that Mr. Fichten
was mistaken in his belief that he had a flashing green arrow permitting an
advanced left turn when he entered the intersection.  I also find that he was
mistaken about being close behind a van.

[50]        
I accept Mr. Singh’s evidence that he concluded, from his
observations of the Fichten vehicle and its driver, that Mr. Fichten’s
vehicle was going to proceed through the intersection and that it was prudent
for Mr. Singh to stop.  I find, however, that he may have been mistaken as
to the precise location where he first saw the Fichten vehicle and obtained
that impression.  I find that it was likely moving and was already slightly
into the intersection.

[51]        
Counsel for the plaintiff challenged Mr. Singh’s evidence because
he differed from the other witnesses as to the location of the cars when they
collided.  Mr. Singh said that Mr. Fichten headed at an angle across
the intersection toward the eastbound lanes on 102A Avenue and that the
vehicles collided near the southwest corner of the intersection; other
witnesses said that the collision occurred at the northwest corner of the
intersection, close to where the eastbound lane on 102A Avenue intersected
with the southbound curb lane of 152 Street.

[52]        
I do not think that anything turns on the precise location where the
collision occurred.  I find that the collision occurred near the southwest
corner of the intersection, likely closer to the centre line of 102A Avenue. 
The Fichten vehicle was likely travelling at an angle in order to reach the
westbound lane of 102A Avenue and complete its turn.

[53]        
I find that the Fichten vehicle proceeded not at an unusual speed, but
with  some dispatch in order to make it through the intersection and execute
its left turn.

[54]        
I find that Ms. Bugden-Tapp was mistaken in her recollection
that the light for southbound vehicles was red when she saw the Fichten vehicle
and that the Fichten vehicle proceeded very slowly and stopped before crossing
the curb lane.  I find that she was also mistaken that the black vehicle she
saw had four occupants, one of them wearing a turban; it was the Bahniwal
vehicle she saw, with its two occupants.  I also do not place weight on the
recollection of Ms. Earl, who, from inside a building, glanced up and then
down again and formed the impression that the white vehicle was stopped.

[55]        
All other witnesses, including Mr. Fichten, testified that the
white vehicle went through the intersection without stopping to check for
traffic heading south in the curb lane.

[56]        
An explanation for Mr. Fichten’s failing to stop and look before he
crossed the southbound curb lane may be found in his belief that traffic in the
curb lane was required to turn right, rather than continue southbound.  If that
belief had been correct, there would have been little likelihood of other
vehicles crossing his path.  However, his belief was incorrect and vehicles in
the curb lane were free to proceed south through the intersection, as Mr. Bahniwal
did.

[57]        
I find that the Bahniwal vehicle was travelling at the speed limit of
50 kilometres per hour, or perhaps a bit less, as it proceeded up the southbound
curb lane.  I accept Mr. Kaler’s evidence that Mr. Bahniwal had
slowed when the light ahead was red, but then resumed speed after the light turned
green, two to three car lengths from the intersection.  I find that the
presence of vehicles in the two lanes to his left obscured Mr. Bahniwal’s
view of what was occurring in the intersection except for the portion
immediately in front of him.  The vehicles in the two lanes to Mr. Bahniwal’s
left began to move forward, but they stopped almost immediately.  Mr. Bahniwal
overtook those vehicles and passed them on the right, entering the intersection
on a green light but without noting that the vehicles to his left had stopped,
or taking any particular precaution before entering the intersection.

[58]        
Although I accept in general the evidence of Mr. Kaler regarding
the events, I find that he was likely mistaken about it being only “milliseconds”
between the time when the light facing the curb lane turned green and Mr. Bahniwal
entered the intersection.  I find that at least a second or two would have
passed, not milliseconds.  In short, Mr. Bahniwal passed the vehicles that
had just stopped, and entered the intersection at about 50 kilometres per
hour, shortly after the light turned green.

LAW

[59]        
The parties refer to the following sections of the Motor Vehicle Act,
R.S.B.C. 1996 c. 318:

Green light

127  (1) When a green light alone is exhibited at
an intersection by a traffic control signal,

(a) the driver of a vehicle
facing the green light

(i)  may cause the vehicle to
proceed straight through the intersection, or to turn left or right, subject to
a sign or signal prohibiting a left or right turn, or both, or designating the
turning movement permitted,

…

(iii)  must yield the right
of way to vehicles lawfully in the intersection at the time the green light
became exhibited, and

…

Arrows

130  (1) When a green arrow is exhibited at an
intersection by a traffic control signal,

(a) the driver of a vehicle
facing the green arrow may cause it to enter the intersection and to make only
the movement indicated by the green arrow, but must yield the right of way to
pedestrians lawfully in the intersection or in an adjacent crosswalk and to
other vehicles lawfully in the intersection, and

…

(2) When a yellow arrow is exhibited at an intersection
by a traffic control signal,

(a) the driver of a vehicle
approaching the intersection and facing a yellow arrow must cause the vehicle
to stop

(i)  before entering the
marked crosswalk on the near side of the intersection, or

(ii)  before entering the
intersection, if there is no marked crosswalk,

unless the stop cannot be made in
safety,

(b) the driver of a motor
vehicle approaching the intersection and facing the yellow arrow may, when a
stop cannot be made in safety, proceed with caution to make the only movement
indicated by the arrow but must yield the right of way to pedestrians lawfully
in the intersection or in an adjacent crosswalk, and to other vehicles lawfully
in the intersection,

…

Careless driving prohibited

144  (1) A person must not drive a motor vehicle on
a highway

(a) without due care and
attention,

(b) without reasonable
consideration for other persons using the highway, or

(c) at a speed that is
excessive relative to the road, traffic, visibility or weather conditions.

…

Driver on right

150  (1) The driver of a vehicle must confine the
course of the vehicle to the right hand half of the roadway if the roadway is
of sufficient width and it is practicable to do so, except

(a) when overtaking and
passing a vehicle proceeding in the same direction,

…

Duty when overtaking

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

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

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

(2) Except when overtaking and passing on the right is
permitted, a driver of an overtaken vehicle,

(a) on hearing an audible
signal given by the driver of the overtaking vehicle, must cause the vehicle to
give way to the right in favour of the overtaking vehicle, and

(b) must not increase the
speed of the vehicle until completely passed by the overtaking vehicle.

Yielding right of way on
left turn

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.

[60]        
I also note s. 158:

Passing on right

158  (1) The driver of a vehicle must not cause or permit the
vehicle to overtake and pass on the right of another vehicle, except

(a) when the vehicle overtaken is
making a left turn or its driver has signalled his or her intention to make a
left turn,

(b) when on a laned roadway there
is one or more than one unobstructed lane on the side of the roadway on which
the driver is permitted to drive, or

(c) on a one way street or a
highway on which traffic is restricted to one direction of movement, where the
roadway is free from obstructions and is of sufficient width for 2 or more
lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not
cause the vehicle to overtake and pass another vehicle on the right

(a) when the movement cannot be
made safely, or

(b) by driving the vehicle off the roadway.

ANALYSIS

[61]        
I have found as fact that Mr. Bahniwal proceeded through the
intersection on a green light.  Accordingly, he had the right of way.  His was
the dominant vehicle; Mr. Fichten’s vehicle was in the servient position.

[62]        
The question in the end is whether either Mr. Fichten or
Mr. Bahniwal  or both, was in breach of the duty of care he owed to the
plaintiff.  I take into account the Motor Vehicle Act provisions as
informing the requisite standard of care (Ryan v. Victoria, [1999] 1
S.C.R. 201 at para. 29).

[63]        
It is clear that Mr. Fichten was negligent in making his left turn
when it was unsafe to do so after the light had changed, and in particular by
crossing the curb lane of southbound traffic without checking that it was free
of oncoming vehicles.

[64]        
Turning to Mr. Bahniwal, what is the duty of a driver who enters an
intersection in the circumstances that faced him?  He was in the curb lane, his
view of the intersection was blocked by other vehicles, and those vehicles,
having entered the intersection, had subsequently stopped.

[65]        
The governing principles are set out in Pacheco v. Robinson
(1993), 75 B.C.L.R. (2d) 273, 22 B.C.A.C. 185 (C.A.).  In that case, the
plaintiff cyclist went through an intersection on an amber light.  The
defendant was making a left-hand turn on a green light.  Neither party saw the
other until a fraction of a second prior to impact.  The trial judge referred
to s. 176 of the Motor Vehicle Act R.S.B.C. 1979, c. 228,
which is in identical terms to the existing s. 174.  He stated (quoted at
para. 7 of the Court of Appeal decision):

The failure to see something or someone that is there to be
seen applies to both parties on the facts of this case. Certainly the mere fact
that one is part of the through traffic does not relieve a driver from the
obligation to keep a proper look-out, because the question of right of way can
evolve, as for example, prescribed by s. 176 of the Motor Vehicle Act.

I am unable to conclude however
that the left turning defendant ever became a dominant driver with the right of
way under the terms of s. 176, because for that to be the case, she would
have had to commence her turn at a time when approaching traffic was not so
close as to constitute an immediate hazard.  I find that at the moment the
defendant commenced her turn the plaintiff cyclist was in the intersection.  Thus
in my view the plaintiff was also obviously and clearly so close as to
constitute an immediate hazard. Further, the wording of the latter portion of s. 76
envisages only a driver who is, “approaching” rather than “in” the intersection
as becoming a servient driver to the left turn.  In other words, one cannot
become servient if one is in the intersection.

[66]        
The trial judge concluded that the accident was contributed to by the
negligence of both parties, and apportioned liability 25% to the cyclist
plaintiff and 75% to the defendant driver.

[67]        
On appeal in Pacheco, Mr. Justice Legg, for the Court, held
that the finding of contributory negligence against the plaintiff was in error,
stating at para. 15:

In my opinion, a driver who
wishes to make a left hand turn at an intersection has an obligation not to
proceed unless it can be done safely. Where each party’s vision of the other is
blocked by traffic, the dominant driver who is proceeding through the
intersection is generally entitled to continue and the servient left-turning
driver must yield the right of way. The existence 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. Where the defendant, as here,
has totally failed to determine whether a turn can be made safely, the
defendant should be held 100 percent at fault for a collision which occurs.

[68]        
He further wrote at para. 18:

In my opinion, when a driver in a servient position
disregards his statutory duty to yield the right of way and a collision
results, then to fix any blame on the dominant driver, the servient driver must
establish that after the dominant driver became aware, or by the exercise of
reasonable care should have become aware, of the servient driver’s own
disregard of the law, the dominant driver had a sufficient opportunity to avoid
the accident of which a reasonably careful and skilful driver would have
availed himself. In such circumstance any doubt should be resolved in favour of
the dominant driver. As stated by Cartwright, J. in Walker v.
Brownlee (1952), 2 D.L.R. 450 (S.C.C.) at 461:

While the decision of every motor
vehicle collision case must depend on its particular facts, I am of opinion
that when A, the driver in the servient position, proceeds through an
intersection in complete disregard of his statutory duty to yield the
right-of-way and a collision results, if he seeks to cast any portion of the
blame upon B, the driver having the right-of-way, A must establish that after B
became aware, or by the exercise of reasonable care should have become aware,
of A’s disregard of the law B had in fact a sufficient opportunity to avoid the
accident of which a reasonably careful and skilful driver would have availed
himself; and I do not think that in such circumstances any doubts should be
resolved in favour of A, whose unlawful conduct was fons et origo mali.

[Emphasis added.]

[69]        
In McCowan v. Arjune et al., 2002 BCCA 627, Mr. Justice
Braidwood further elaborated on the principle enounced in Pacheco as
follows at para. 20:

Such duty was confirmed by this
Court in Melgarejo-Gomez v. Sidhu (2002), 97 B.C.L.R. (3d) 154. In order
to fix any blame on the dominant driver, the servient driver (McCowan) must
establish that after the dominant driver (Arjune) became aware of his disregard
of the law, the dominant driver had sufficient opportunity to avoid the
accident, opportunity of which a reasonable careful and skilful driver would
have availed herself. Any doubt is to be resolved in favour of the dominant
driver: Pacheco (Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R.
(2) 273 at para. 18 (B.C.C.A.); Walker v. Brownlee and Harmon, [1952]
2 D.L.R. 450 at 461 (S.C.C.).

[70]        
The facts in Robinson v. Wong, 2007 BCSC 708, are fairly similar
to those in the case before me.  In that case, the plaintiff was executing a
left turn which required her to cross three oncoming southbound lanes.  She was
in a dedicated left-turn lane; the intersection was controlled by a stoplight,
but there does not appear to have been an advanced left-turn signal.  Southbound
traffic was backed up and the plaintiff was waved on by drivers in the opposite
facing lanes.  She did not stop before crossing into the curb lane.  If she had
done so, she would have seen the defendant’s vehicle approaching her in that
lane.  The defendant did not observe that the vehicles to his left were stopped
as he proceeded into the intersection at 40-50 kilometres per hour.

[71]        
The trial judge found that the plaintiff totally failed to determine
whether her turn could be made safely and that she was clearly negligent.  Observing
that liability could only be found against the defendant if he had a sufficient
opportunity to avoid the accident of which a reasonably careful and skillful
driver would have availed himself, Goepel J. referred to Sandhu v. Gill
(1999), 49 M.V.R. (3d) 32 (B.C.S.C.).  He then concluded that the plaintiff did
not have sufficient time to gauge the defendant’s speed accurately.  The
defendant was proceeding at or near the speed limit and his lane was clear of
traffic.

[72]        
Mr. Justice Goepel stated at para. 22:

Mr. Wong was not required to
slow down or come to a stop because traffic in the adjoining southbound lanes
was backing up.  Nothing about the situation would alert him that Ms. Robinson
would disregard her statutory duty and fail to yield the right of way.

[73]        
He found that the plaintiff was the sole cause of the accident.

[74]        
Mr. Hébert, counsel for the plaintiff, argues that Mr. Fichten
is responsible “to a degree” for causing the accident because he failed to
yield the right of way on a left turn.  However, Mr. Hébert says that Mr. Bahniwal
also bore some responsibility because he entered the intersection at an
excessive and unsafe speed in the circumstances, given that his view of the
intersection was obstructed by vehicles in the lanes to his left.

[75]        
Mr. Hébert submits that the timing and speed with which Mr. Bahniwal
entered the intersection, at about 50 kilometres per hour, shortly after the
light turned green, suggests a lack of caution.  He submits that Mr. Bahniwal
had a sufficient opportunity to avoid the accident because he should have
perceived a possible risk, and that a reasonably careful and skillful driver
would have availed himself of that opportunity.

[76]        
Mr. Hébert referred me to some authorities, a number of which
pre-date the Pacheco case.  He also cited a more recent case, Kelly
v. Yuen, 2010 BCSC 1794.  The facts in that case are distinguishable from the
ones presented here because the defendant driver was wrongly in the curb lane
(a bus lane) and was travelling at an excessive speed.

[77]        
Mr. Lyszkiewicz, on the other hand, relies on Pacheco and Robinson
v. Wong.  He submits that 100% of the responsibility for the collision
belongs to Mr. Fichten, since Mr. Bahniwal did not have sufficient
opportunity to avoid the accident and his vehicle was in the dominant position.

[78]        
In my opinion, when the light facing Mr. Bahniwal turned green and
the vehicles on his left proceeded forward and then stopped, Mr. Bahniwal
had the opportunity to recognize, and should have recognized, that something
had caused them to stop.  His approach into the intersection should then have
been tempered with caution, even though he had the light in his favour and had
built up some momentum.  He did not take that approach but, instead, proceeded
at the speed limit into the intersection.  His vehicle was in the dominant
position, but he was not entitled to overlook a clear indication of a possible
hazard in the fact that the vehicles to his left had stopped very soon after
having begun to move.  The traffic was not backed up in the southbound lanes,
as it was in Robinson v. Wong, and the timing of the vehicles stopping
was inexplicable from his vantage point.  A careful driver would have reacted
to the possibility that a left-turning vehicle, a pedestrian, or some other
hazard was still in the intersection.

[79]        
I find that Mr. Bahniwal was in breach of his duty of care, and
allocate liability 10% to him and 90% to Mr. Fichten.

[80]        
The plaintiff will have her costs unless it is necessary to speak to
costs.  If so, the parties may do so at a time to be arranged through Trial Scheduling.

“Lynn Smith J.”