IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120830

Docket: M110392

Registry:
Vancouver

Between:

Maria Anna Demarinis

Plaintiff

And

Wieslaw Skowronek

Defendant

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

[1]          
These reasons arise out of an application brought by the plaintiff, Ms. Demarinis,
under Rule 9-7(2). This action arises out of a motor vehicle accident involving
the parties which occurred at a four-way stop on January 29, 2009 (the
“Accident”).

[2]          
The parties agreed to sever the issue of liability from quantum and to
determine the issue of liability on a summary trial. The only issue which
arises on this application pertains to the responsibility, if any, of each
party for the Accident. Both parties agree that this matter can and should be
decided under Rule 9-7 and, to their credit, have worked diligently and
cooperatively to achieve that end.

[3]          
Having said this, I retain a residual discretion to determine whether
the matter can be justly determined in the manner proposed: Noramco Capital
Corp. v. Lee, (1998), 110 B.C.A.C. 229 at para. 4. In this case, my
review of the application record initially prevented me from addressing a
central issue – a matter which I will return to. Accordingly, I wrote to counsel
and thereafter arranged to have them lead evidence in relation to that
particular issue.

[4]          
The evidence before me, together with the brief viva voce
evidence I heard, takes various forms. The parties have:

i)          filed a Notice to
Admit and a Reply to that Notice;

ii)         agreed
that the evidence provided by each party at their respective Examinations for
Discovery may be treated as viva voce evidence at trial; and

ii)         filed
two expert reports. The defendant, Mr. Skowronek, served a collision
reconstruction report from Mr. Heinrich, an engineer, dated January 3,
2012. The plaintiff, in turn, filed a rebuttal report from Mr. Sdoutz, who
is also an engineer, dated February 8, 2012. The parties did not challenge the
expertise of either individual or the admissibility of their reports. By
consent, neither expert was cross examined.

[5]          
The evidence from these sources can be concisely summarized into three
categories.

A)        The Setting of the Accident

[6]          
At the time of the Accident, the plaintiff was driving eastbound on
Charles Street in her silver 1998 Honda CRV. The defendant was driving southbound
on Slocan Street in a blue 1996 GMC Safari van. The Accident occurred in a
residential neighborhood on asphalt roads.

[7]          
At the scene of the Accident, Slocan Street runs north-south with single
undivided lanes of travel in each direction. Charles Street runs east-west with
single undivided lanes of travel in each direction. Traffic at the intersection
was controlled by stop signs and stop lines in all four directions. The width
of Charles Street at the intersection was narrowed by curb extensions along its
north and south sides.

[8]          
Because of these curb extensions and the wide boulevards between the
sidewalks along Charles Street, the stop line and sign for southbound traffic
on Slocan Street was 10.7 meters north of Charles Street’s northern curbs at
the intersection.

[9]          
The stop line and sign for eastbound traffic was 5.4 meters west of
Slocan Street’s western curbs (almost exactly half the distance to the
intersection where the lateral curbs meet).

[10]       
What this means in simple terms is that a driver, in this case the
defendant, who was proceeding southbound on Slocan Street and who stopped at
the Charles Street intersection would have stopped a full 10.7 meters, or
almost 35 feet, away from the intersection. Conversely, the plaintiff’s stop
line was only 5.4 meters from the intersection.

B)        The Uncontradicted Engineering Evidence

[11]       
The two experts agree on the point at which the parties’ vehicles collided
and on where the vehicles came to rest. They agree on the acceleration rates of
the two vehicles and that the impact speed range of the plaintiff’s vehicle was
19 to 23 km/h and for the defendant’s vehicle was 22 to 25 km/h. Thus, the
vehicles were traveling at similar speeds when they collided.

[12]       
Importantly, the experts also agree that from its stop line the
defendant’s vehicle traveled for 4.3 to 4.8 seconds to reach the point of
impact and that from its stop line the plaintiff’s vehicle traveled for 2.7 to
3.3 seconds to reach the point of impact. Still further, the point of impact
for the defendant’s vehicle was 14.8 m south of the Slocan Street stop line and
for the plaintiff’s vehicle was 8.8 m east of the Clark Street stop line.

[13]       
These two pieces of information establish that the defendant’s vehicle
had left its stop line 1-2 seconds before the plaintiff’s vehicle began to move,
and that it had traveled some 6 meters further from its stop line than had the
plaintiff’s vehicle when the Accident occurred.

[14]       
This engineering evidence is premised on both parties having come to a
full stop behind their stop lines. This premise is consistent with the evidence
given by each party.

[15]       
While agreeing on almost all matters of substance, the plaintiff’s
expert, Mr. Sdoutz, opines that Mr. Heinrich has incorrectly defined
the "borders" of the intersection as commencing at the respective
stop lines of each vehicle. Mr. Sdoutz, instead, employed the definition
of "intersection" found in s. 119 of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 (the "Act"), to ground his analysis.
That definition states:

“intersection” means the area
embraced within the prolongation or connection of the lateral curb lines, or if
none, then the lateral boundary lines of the roadways of the 2 highways that
join one another at or approximately at right angles, or the area within which
vehicles travelling on different highways joining at any other angle may come
in conflict;

[16]       
Mr. Sdoutz argues that ascertaining who entered the intersection
first requires using an extension of the connecting lateral curb lines, which
in this case means "the northern curbs of Charles Street on either side of
the intersection, and the western curbs of Slocan Street on either side of the
intersection".

[17]       
Using these terms of reference, Mr. Sdoutz then goes on to consider
not which vehicle left its respective stop line first, but rather which vehicle
entered the "intersection" first. Mr. Sdoutz concludes that both
vehicles entered the "intersection" at almost exactly the same time
(there is perhaps 0.6 to 0.7 seconds difference between the two vehicles) and
had traveled almost the same distance (there is about 0.7 meters in difference
between the two vehicles) within the intersection at the point of impact.

C)        The Relevant Evidence
of the Parties as to the Circumstances of the Accident

[18]       
The parties agree or admit:

a)         that the
Accident occurred between 6:30 p.m. and 7:30 p.m., the roads were wet, and it
was dark out though the street lights were on;

b)         on
the basic geography of the area, including the direction in which each of
Charles Street and Slocan Street run, and the fact that the intersection was
governed by a four-way stop;

c)         that
each was familiar with the intersection. In particular, the plaintiff, though
uncertain whether she could see the stop sign for southbound traffic, was aware
of the presence of that stop sign. At the same time, the defendant knew that
his stop sign and stop line were set back from the intersection; and

d)         there
were no witnesses to the Accident.

[19]       
The plaintiff’s discovery evidence established that:

a)         she
had been traveling eastbound on Charles Street for about three blocks. She did
not see any vehicles in front of her that were proceeding eastbound on Charles
Street prior to the impact. In particular, she did not see a red truck. Prior
to approaching the intersection at Slocan Street she did not see any other
vehicles go through the intersection;

b)         she
approached the intersection "slowly" and came to a complete stop at
the stop sign and stop line. She then looked left and right and, seeing no
vehicles, proceeded through the intersection by "slowly crossing” and
applying gas;

c)         while
stopped at the stop sign there was nothing obscuring her vision to the right,
left, or straight ahead; and

d)         as
she proceeded through the intersection she was looking straight ahead. She only
became aware of the defendant "after he hit me". She did not see the
defendant’s vehicle before impact.

[20]       
The defendant’s discovery evidence established that:

a)         he
was aware both that he had to be “extra cautious” as he came to a stop because
the stop line was set back some distance from the intersection and that
vehicles traveling east on Charles Street might have a difficult time seeing his
vehicle because the stop line was set back from the intersection;

b)         there
was nothing, from his stop line, which obstructed his view to the right of his
vehicle or to the corner of the intersection from where the plaintiff was
traveling;

c)         he
only saw the plaintiff’s vehicle a "split second" prior to the
Accident. He accepted that he never saw the plaintiff until she was past her
stop line and well into the intersection;

d)         his account of the circumstances prior to the
collision was:

137 Q  The night of the
accident, then, can you recall proceeding slowly away from that stop sign?

A  The
night of the accident, I stop. There was a red truck on intersection proceeding
towards east on Charles. I let it go. And I proceed through intersection.

138 Q  Did you check for any
vehicles behind the red truck?

A  Is a
truck. So I let go the truck. I look to the left, clear intersection, and I
proceed.

e)         his
description of the collision was:

163 Q  Okay. Can you — Can
you describe for me in your own words how the accident took place, how the
accident happened.

A  I stop
on intersection. I let a red truck go. I proceed to the intersec — or I look
left, straight.

I let the red truck
go. I look left. I check. And I proceed intersection, yeah. And when I was like
right in the intersection, yeah, I see car going right into me, so I tried to
swerve to the left. It was too late to stop, yeah. And that’s what happen. And
then I stop.

f)          he accepted
that he could not recall if he ever looked right, the direction from which the
plaintiff’s vehicle entered the intersection, before he left his stop line.
This is an issue of some significance and I will return to it.

Analysis

i)          The Plaintiff’s Position

[21]       
Each party asserts, for different reasons, that the other is wholly at
fault for the Accident. Alternatively, each argues that, at worst, they are
only partly to blame for the Accident. The central issue before me is which
party arrived at his or her respective stop line and came to a full stop first.
This issue determines which of the two vehicles was dominant and which servient,
and consequently which had the right of way. That determination, in turn, gives
rise to several legal consequences.

i)          The Plaintiff’s Position

[22]       
The plaintiff argues that the liability of the parties should be
determined by considering which party entered the "intersection"
first rather than by considering which left its stop line first.

[23]       
The plaintiff relies on the definition of "intersection" that I
have referred to and further relies on ss. 173 and 175 of the Act, which
provide:

Yield signs

173(1) Except as provided in section 175, if 2 vehicles
approach or enter an intersection from different highways at approximately the
same time and there are no yield sign the driver of a vehicle must yield the
right of way to the vehicle that is on the right of the vehicle that he or she
is driving.

(2) Except as provided in section 175, if 2 vehicles approach
or enter an intersection from different highways at approximately the same time
and there is a yield sign, the driver of a vehicle facing the sign must yield
the right of way to all other traffic.

…

Entering through highway

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.

(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.

[emphasis added]

[24]       
Section 186 of the Act is also relevant, and provides:

Stopping at intersections

186 Except when a peace officer directs otherwise, if there
is a stop sign at an intersection, a driver of a vehicle must stop

(a)        at the marked stop line,
if any,

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

(c)        when there is neither a marked crosswalk nor a
stop line, before entering the intersection, at the point nearest the
intersecting highway from which the driver has a view of approaching traffic on
the intersecting highway.

[25]       
Finally, at s. 119 of the Act, a “through highway” is defined as “a
highway or part of a highway at the entrances to which stop signs are erected
under this Act”.

[26]       
The plaintiff argues that since both parties entered the
"intersection" almost simultaneously, because the plaintiff was to
the right of the defendant, she had the right-of-way. Accordingly, the
defendant had a corresponding obligation to yield the right-of-way to her.

[27]       
Surprisingly, neither party was able to identify any case law which
arose from circumstances similar to those in this case. The plaintiff argues,
however, that the excerpts from the ICBC publication "Road Sense for
Drivers, British Columbia Driving Guide", which includes the following
guidance for "four-way stops", is of assistance:

four-way stops — when there are stop signs at all
corners:

• The first vehicle to arrive at the intersection and come to
a complete stop should go first.

• If two vehicles arrive at the
same time, the one on the right should go first.

[28]       
In doing so, the plaintiff accepts that the Road Sense Guide does not
contain "rules of law", but submits that the Guide, in combination
with other considerations, can inform the standard of care which is relevant in
particular circumstances.

[29]       
I do not consider that the Guide advances the proposition that the
plaintiff advocates. The foregoing language from the Guide, and in particular
the words, "the first vehicle to arrive at the intersection and come to a
complete stop should go first", presupposes that the four stop signs at an
intersection will be placed at the same distance from the intersection at
issue. The excerpt from the Guide also treats the words
"intersection" and “stop sign” synonymously. Were it otherwise, there
would be no need for a vehicle to stop at the intersection. Instead, more
properly or more precisely, the vehicle would be required to stop at the stop line.

[30]       
Similarly, I do not accept the premise which underlies the plaintiffs
interpretation of ss. 173 and 175 of the Act. That interpretation suggests
that the operative or governing consideration in weighing which of two parties
has the right-of-way is which party arrives at the "intersection" in
question first, rather than which party or vehicle had arrived at the stop line
in advance of the "intersection", fully stopped, and then proceeded
to move forward first. In most instances, these two considerations or factors
will overlap, as the vast majority of stop signs at a four-way stop are be placed
equidistantly from the intersection, or so near so that the difference does not
matter.

[31]       
In this case, it is the unusual or aberrant nature of the placement of
the stop sign on the north side of Slocan Street that gives rise to the peculiar
circumstances that are present. The unusual degree to which that stop sign was
set back from the intersection allowed the defendant to leave his stop line
well before the plaintiff left hers, but for the two vehicles to arrive at the
"intersection" almost simultaneously.

[32]       
The pre-eminence which the plaintiff ascribes to the question of which
vehicle arrives at an “intersection" first, would enable a party who had
failed to properly stop at a stop sign and who by virtue of that failure
arrived in an "intersection" in advance of another party to argue
that they had the right-of-way. The plaintiff’s analysis ignores the question
of whether the plaintiff arrived at her stop sign first, whether she stopped
fully, and whether she left that stop sign before the defendant left his stop
sign. It, incorrectly, shifts the critical point in time away from what
occurred at each parties’ stop sign or stop line to the point in time a few
seconds later when each party entered the "intersection".

ii)         The Defendant’s Position

[33]       
The simple thesis advanced by the defendant is that he was the dominant
driver and had the right of way. If the facts in support of this thesis are
made out, various legal consequences flow. The defendant’s position is premised
on two key claims:

a)         that
the defendant had stopped at his stop sign to allow a red truck, which was
going east on Charles Street, to go through the intersection. This red truck,
of necessity, would have been in front of and would have preceded the plaintiff’s
vehicle through the intersection; and

b)         that the
defendant left his stop line, as I have said, one to two seconds before the
plaintiff’s vehicle began to move forward.

[34]       
Various factual difficulties arose from the first of these assertions.
The plaintiff unequivocally denies that there was a red truck in front of her,
or anywhere else for that matter.

[35]       
I initially believed that this factual conflict might be less
significant than it appeared. This belief stemmed from a lack of clarity in the
defendant’s discovery evidence about the positioning of the red truck that he
said he saw. A careful review of the defendant’s responses to questions 137,
138, and 163 of his discovery and referred to earlier at paras. 20(d) and 20(e)
of these Reasons, leaves some uncertainty about whether the red truck he says
he saw was already in the intersection as he approached Charles Street or,
alternatively, whether it was still stopped behind its own stop line as the
defendant pulled up.

[36]       
If the former were true, it would leave open the possibility that the
plaintiff’s car was already stopped behind its stop line before the defendant
stopped and would also leave open the possibility that the defendant, after he
had stopped, started through the intersection improperly and without allowing
the plaintiff to proceed first. It would accordingly make the presence or
absence of the red truck and the conflict in the evidence of the parties less
relevant or, at minimum, lead to a different analysis.

[37]       
If the latter interpretation of the defendant’s evidence is correct then,
indeed, it would have been he who had the right-of-way to proceed through the
intersection first.

[38]       
In order to address this ambiguity, I asked that each of the parties
provide viva voce evidence and describe what transpired from the point
they approached their respective stop signs to the point when the collision
occurred. The defendant testified that the red truck was still behind its stop
line after he had pulled to a stop. The plaintiff, conversely, again
unequivocally denied the presence or existence of a red truck.

[39]       
I have said that both parties agreed that this action should be resolved
by way of summary trial. Neither party asserted that the other was not honest.
Instead the matter really turns on the accuracy of the parties’ respective
recollections. I am satisfied, on the balance of probabilities, that the
defendant’s recollection is accurate, for three reasons.

[40]       
First, the plaintiff, in addition to asserting that there was no red
truck in front of her, said that after she stopped she looked both left and
right before moving forward again. She said this on discovery. She repeated
this before me. She simply has to be mistaken in this recollection. The
engineering evidence establishes that the defendant left his stop line first.
Other evidence establishes that the plaintiff’s view of the direction from
which the defendant moved forward was not obstructed. Had the plaintiff in fact
looked to her left, she would have seen the defendant. The frailty and
unreliability of her evidence on this issue cast some doubt on her memory as it
relates to the red truck.

[41]       
Second, the defendant’s evidence went beyond simply seeing the red truck
first stop and then move forward through the intersection. He testified that
after the collision, and after he had gotten out of his vehicle, he observed
that the red truck had stopped. He further testified that he waved to the driver
of the red truck to come back. He said that he then went to the plaintiff to
see if she required assistance and that, in the interim, the red truck left the
scene.

[42]       
This evidence is both more detailed and of a different ilk than the
plaintiff’s evidence. It involves not only an observation, but also some
positive conduct on the part of the defendant which supports his recollection.
In Wiltshire v. Anger, [1992] B.C.J. No. 1834, also a four-way stop
case, Mr. Justice Oliver referred to the post-impact conduct of the
plaintiff in concluding that the defendant was solely responsible for the
accident as follows:

… In weighing the evidence of
the Plaintiff, I am impressed by the fact that it was the Plaintiff who
insisted (after hearing a suggestion at the scene that he had himself proceeded
across the intersection without stopping), that the vehicles not be moved from
their post-collision locations, and that the police should be called to attend
at the scene. It was also the Plaintiff who insisted that the ICBC adjuster
should attend at the scene to examine thephysical evidence. I believe the
Plaintiffs conduct in that regard to be more consistent with that of an
innocent traffic accident victim then with that of one who has caused or
materially contributed to the collision in the manner suggested by the defence.

[43]       
Third, and somewhat less importantly, the plaintiff did not really
address this issue or the accuracy of her recollection and her case was argued,
to some extent, as though her recollection was incorrect.

[44]       
The determination that the defendant saw the red truck stop and allowed it
to proceed through the intersection before him, while he was stopped, of
necessity means that he then became the dominant driver. The plaintiff, as the
servient driver, was required to yield the right-of-way. This flows from and is
consistent with the language of s. 175(1)(a) of the Act.

[45]       
Counsel for the defendant addressed, at some length, the concept of
"immediate hazard", which is found in the language of s. 175(1)(a)
of the Act. In Rothenbusch v. Van Boeyen, 2010 BCSC 1518  at paras. 136-152,
Madam Justice Ker, thoroughly and with reference to numerous authorities, dealt
both with what constitutes an “immediate hazard” and with when that
determination is to be made. The following passages are particularly helpful:

[139]    At 413-14, Tysoe J.A. clarified that the point in
time, or punctum temporis, to assess whether the through driver poses an
immediate hazard, is the moment before the left-turning driver commences to
make the turn. By analogy, the same punctum temporis applies to the
circumstances covered by s. 175; that is, the moment immediately before
the driver intending to enter a through highway proceeds to do so: Hynna v.
Peck, 2009 BCSC 1057 at para. 56 [Hynna].

…

[146]    The question of
immediate hazard and right of way, however, is to be assessed temporally in the
moment before the driver proposing to make the left hand turn at issue
commences to make it: Raie, pp. 413-414. If an approaching car does
not present an immediate hazard when the manoeuvre is commenced but later
creates one by unreasonable conduct such as speeding, the approaching driver
will be held responsible for the ensuing collision: Devidi v. Lam, [1998]
B.C.J. No. 912 (S.C.); Rollins v. Lovely, 2007 BCSC 1752, at para. 35.

[46]       
A similar and equally thorough discussion is found in Hynna v. Peck,
2009 BCSC 1057, in particular, at para. 60. Recently, in Salaam v.
Abramovic, 2010 BCCA 212 at para. 33, Mr. Justice Groberman, for
the court, said: “[t]he words ‘immediate hazard’ appear in both ss. 174 –
175 of the Motor Vehicle Act and are used to determine when the vehicle
may lawfully enter an intersection”.

[47]       
Based on the foregoing analysis, the defendant was free to enter the
intersection after he let the red truck pass. He had the right-of-way. The
plaintiff’s vehicle did not and could not have posed an immediate hazard. The
engineering evidence clearly establishes that the plaintiff’s car was still
stopped when the defendant began to move forward and enter the intersection.

[48]       
The defendant also says that his having the lawful right to enter the
intersection under s. 175(1) of the Act ends the analysis. This claim is
premised on the well-settled proposition that drivers are entitled to assume
that other drivers will obey and observe the law unless there is reason to
believe otherwise: Brucks v. Caslavsky (1994), 45 B.C.A.C. 62, 4 M.V.R.
(3d) 278 at para. 10; Kokkinis v. Hall (1996), 71 B.C.A.C. 97, 19
B.C.L.R. (3d) 273 at para. 10; Salaam, at para. 25.

[49]       
Notwithstanding the accuracy of this proposition in the abstract, a more
searching analysis is required. This is so for two reasons. First, a driver
must comply with not only those statutory provisions which guide the assessment
of fault in a particular case, but also with their common law duty of care. In Salaam,
Groberman J.A. said:

[19]      In Carich v. Cook (1992), 90 D.L.R. (4th)
322 at 326, 9 B.C.A.C. 112, this Court considered liability for an accident
that occurred when a vehicle turning left on a four-lane road was in collision
with a vehicle proceeding in the opposite direction, in the outside lane. While
the Court was considering what is now s. 174 of the Motor Vehicle Act
rather than s. 175, it is my view that the opinion expressed by Lambert
J.A. has some relevance to this case:

The question as a driver turns left
is whether there is any vehicle in any approaching lanes that constitutes an
immediate hazard. If there is, the turn should not be made. If there is not,
then the turn can be made and of course, care should be taken throughout the
turn and as each new lane is entered to make sure that the situation as it was
assessed when the turn started has not changed in the meantime. But that care
is more a matter of the ordinary duty of a reasonably careful driver and not a
duty, in my view, imposed specifically by s. 176 [now s. 174] which,
in my view, states the situation when the turn is commenced. Once the turn is
commenced both of the drivers in that situation, the one who is doing a left
turn and the ones that are approaching straight ahead in a situation where a
vehicle could turn in front of them, all must keep a proper look-out.

[20]      To the extent that there is a need to refer to a
section of the Motor Vehicle Act for this proposition, one can turn to
s. 144, which requires drivers to drive with “due care and attention” and
to have “reasonable consideration for other persons using the highway”.

[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.

[50]       
In this case the evidence suggests, and I find, that after the red truck
passed through the intersection the defendant never looked to his right or in
the direction of the plaintiff’s car. In his responses to questions 138 and 163
of his discovery, the defendant clearly indicates that he only looked to his
left and forward. Elsewhere in the transcript, and in his evidence before me,
he either said that he could not recall looking to his right or that it was his
"habit" to do so. I consider that the earlier and more precise
answers in his transcript are correct. I am reinforced in this conclusion by
the fact that he never saw or observed the plaintiff’s vehicle until just
before it struck his car.

[51]       
I accept, as the plaintiff argues, that the defendant ought to have looked
in both directions before he left his stop line even if he was the dominant
driver and even if he had the right-of-way. I consider that this would reflect the
standard expected of a reasonably careful driver. I do not accept that the
general entitlement to assume that other drivers will obey the rules of the
road extends so far as to have obviated the need for the defendant to simply
look to his right before he entered the intersection. I am fortified in this
conclusion by the particular circumstances that were present. The defendant
admitted that the unusual configuration of the intersection meant that he had
to be "extra cautious". It was dark. The road was wet. All of this
would speak to the need for a reasonable, and likely enhanced, level of
caution.

[52]       
Thus, I would be prepared to accept and find that the defendant fell
short of the standard of care required of him. But to what end? If the
defendant had looked to his right, as he ought to have, he would have observed
the plaintiff’s car stopped behind its stop line. His lack of care, prior to
his leaving his stop line and entering the intersection, did not in any way
contribute to the Accident. For the defendant to incur some liability there
would have to have been an ongoing obligation on him to continue to observe or
monitor the plaintiff’s vehicle as he entered the intersection so as to ensure
that the plaintiff did not enter the intersection before she was permitted to.
I consider that this goes too far. It effectively removes any content from the
right of a driver to presume that others will obey the law. It is also
inconsistent with the level of care expected of a driver. In Salaam,
Groberman J.A. observed, at para. 25:

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

[53]       
This leads to a second and related issue that arises from the well-known
and often referred to case of Walker v. Brownlee, [1952] 2 D.L.R. 450 at
461 (S.C.C.), where Mr. Justice Cartwright said:

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.

[54]       
There was no evidence before me which established that the defendant had
sufficient opportunity to avoid the Accident had he exercised reasonable care.
I have said there was no obligation on him to continue to observe or monitor
the plaintiff’s vehicle as he moved forward from his stop line. He first
observed or noticed the plaintiff’s vehicle when it was too late for him to
take any evasive step. It is worth observing that the plaintiff never observed the
defendant’s vehicle until the two cars had collided.

[55]       
Based on the foregoing considerations and circumstances, I have
concluded that the plaintiff is 100% responsible for the Accident.

[56]       
Unless the parties wish to make further submissions on costs I would
award the defendant the costs of this application and of the action.

“Voith J.”