IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120920

Docket: M105104

Registry:
Vancouver

Between:

Erin Turner

Plaintiff

And

Walter Dos Santos,
Jr., Roadsters Auto Group Inc.
and Johal Wholesale Enterprises

Defendants

Before:
The Honourable Mr. Justice Goepel

Reasons for Judgment

[1]          
The plaintiff, Erin Turner, claims damages arising out of a motor
vehicle accident that took place on March 11, 2010 in Richmond, British
Columbia when the Honda Civic that she was driving was struck by a Mustang
driven by the defendant, Walter Dos Santos, Jr.

[2]          
This trial was limited to a determination of liability.

BACKGROUND

[3]          
Immediately prior to the accident, Ms. Turner, in the company of
her young daughter, went to the Urban Farm Market (the “Market”) to purchase
groceries. She testified that she shopped at the Market regularly and that she
was familiar with the location.

[4]          
The Market is located on the southwest corner of No. 5 Road and
Westminster Highway. No. 5 Road runs north-south, while Westminster
Highway runs east-west.

[5]          
After making her purchases, Ms. Turner got into her vehicle and at
approximately 5:30 p.m. she exited the parking lot of the Market on the west
side of No. 5 Road (the “No. 5 Exit”). The No. 5 Exit is
approximately 44 metres south of the intersection of No. 5 Road and
Westminster Highway.

[6]          
There are several lanes of traffic at the No. 5 Exit. Southbound
there are two through lanes and a merge lane, which ends just north of the No. 5
Exit. Northbound, there are two through lanes, a left turn lane, and a right
turn lane. A painted meridian separates north and southbound traffic. In
addition, there is a gas station on the southeast corner of No. 5 Road. There
is a lane adjacent to the gas station. Traffic from the gas station and the
lane exit onto the northbound lanes of No. 5 Road immediately across from
the No. 5 Exit. The speed limit is 50 km/h.

[7]          
 Ms. Turner intended to cross the southbound lanes and enter into
the left hand turning lane of No. 5 Road heading north. She would then
turn again at the intersection of No. 5 Road and Westminster Highway to
head towards her home.

[8]          
Ms. Turner testified that at the No. 5 Exit, she moved the
Honda forward and stopped the front of the Honda over the sidewalk to check
oncoming traffic prior to turning. She described the traffic as being moderate
which meant that there were some cars on the road, but it was not rush hour
traffic. She testified that when she checked traffic to the left, she could see
clearly to the intersection of No. 5 Road and Westminster Highway, and
beyond. She testified that there was no traffic coming from the left. She then
scanned ahead to check traffic at the gas station and the laneway on the east
side of No. 5 Road. When she checked traffic to the right she could see
vehicles far in the distance. She was looking straight ahead as she proceeded
to turn left.

[9]          
Ms. Turner testified that she commenced her left hand turn at a
“normal” speed. In her words, she was not dawdling but not darting out. She
pulled straight out and crossed the right and left southbound lanes. When she
crossed the first of two yellow lines separating north and southbound traffic,
she started to turn the Honda to the left. She says that as she prepared to
turn into the left hand turn lane a vehicle exited from the gas station, and
did a wide right hand turn, and then proceeded north on No. 5 Road. Because
she was concerned as to how the vehicle was going to proceed, she stopped her
vehicle.

[10]       
At the location that she stopped her vehicle, her vehicle was
approximately one-half way into the turning lane. The back portion of her car,
however, remained in the southbound lane.

[11]       
At the time that the accident occurred, Ms. Turner testified that
she had been stopped for a few seconds . She said that she saw the Mustang for
the first time a split second before the accident. She did not have any warning
that the collision was about to occur. She did not remember hearing a horn or the
screeching of tires. She testified that she did not have any opportunity to
avoid the collision with the Mustang.

[12]       
Mr. Dos Santos was taking the Mustang on a test drive from a motor
dealership which owned the vehicle. He was proceeding south on No. 5 Road.
When he entered the intersection of No. 5 Road and Westminster Highway the
light had turned amber. He said that he was at all times driving the speed
limit of 50 km/h. There were no vehicles immediately ahead, behind, or beside the
Mustang.

[13]       
 Mr. Dos Santos testified that he was halfway through the
intersection when he saw the Honda for the first time. The Honda was then in
the right southbound lane, and he was in the left southbound lane. He said that
as Ms. Turner pulled out of the parking lot, her headlights and left turn
signal were on. He braked lightly when he first saw the Honda. He thought that it
was going to remain in the right southbound lane until he passed.

[14]       
When the Honda moved across his path, Mr. Dos Santos honked his
horn, but did not attempt to change lanes or reduce his speed. When the Honda
stopped in his lane of traffic, Mr. Dos Santos braked hard and tried to
change lanes into the right southbound lane, but was not able to avoid the
collision. He could not say how much time elapsed between when the Honda stopped
in his path and the collision. He could only say that it happened very fast.

[15]       
Mr. Dos Santos’ vehicle struck Ms. Turner’s vehicle in the
rear driver’s side. His vehicle sustained impact damage to the left front
corner. The impact caused the Honda to move into the left turn lane, facing
northbound. The Mustang came to a rest in the left southbound lane, facing
southbound.

EXPERT EVIDENCE

[16]       
Both parties called expert evidence. The plaintiff called William E.
Cliff while the defence called Craig Allan Luker. Mr. Cliff prepared a
collision investigation report dated May 18, 2012. He was instructed to assess Mr. Dos
Santos’ pre-braking speed, the location of the Mustang when Ms. Turner started
her left turn and whether Mr. Dos Santos had sufficient opportunity to
avoid the collision. Mr. Luker prepared a crash reconstruction report
dated June 18, 2012. He was instructed to perform a technical review of Mr. Cliff’s
report.

[17]       
Both experts agreed that the impact speed of the Mustang was between 26
to 33 km/h. They could not agree on the pre-braking speed of the Mustang.
Mr. Cliff opined that the pre-braking speed of the Mustang would have been
in the 57 to 79 km/h range. Mr. Luker suggested that the Mustang’s
pre-braking speed was between 7.1 to 12.7 km/hr less than that.

[18]       
Fundamental to both experts’ pre-braking speed calculations was Mr. Dos
Santos’ perception-response time (“PRT”). Mr. Cliff used a PRT of 1.5
seconds which in prior studies reflected the 50^th percentile.
Mr. Luker suggested that Mr. Cliff’s assumed PRT of 1.5 seconds was
likely too short. He suggested a more accurate range, accounting for the fact
that the collision occurred at dusk and for the viewing angle between the
vehicles, was 1.9 to 2.1 seconds. Both experts agreed that the longer PRT, the
slower the pre-braking speed.

[19]       
There was no evidence of Mr. Dos Santos’ actual PRT. Absent such
evidence, both expert reports are of limited assistance and their evidence of
pre-braking speed cannot be relied on. I cannot conclude, based on the expert
evidence, that Mr. Dos. Santos was speeding prior to the accident.

POSITION OF THE PARTIES

[20]       
Ms. Turner submits that Mr. Dos Santos was driving in a
negligent manner. She submits that Mr. Dos Santos accelerated through the
intersection in order to avoid being caught in the intersection on a red light
and was likely travelling at a speed exceeding 50 km/h. She submits that Mr. Dos
Santos recognized the Honda as a hazard when he first saw it, and that a
reasonably skilled driver, who was not speeding, would have had adequate time
to change lanes and avoid a collision. She submits that Mr. Dos Santos was
not keeping a proper lookout and therefore was unaware of Ms. Turner’s
movements. She submits Mr. Dos Santos did not change lanes because he was
travelling too fast and made inappropriate assumptions about Ms. Turner’s
actions.

[21]       
 Ms. Turner concedes that by stopping her vehicle in the middle of
the north and southbound lanes on No. 5 Road she contributed to the
accident. She submits  that the determination of liability should, however, be
heavily weighted against the defendant. In her submission, she is no more than
25 to 45% at fault for the accident.

[22]       
Mr. Dos Santos denies the particulars of negligence alleged. Although
he admits that he had an onus to take reasonable precautions to avoid the
accident once the plaintiff put herself in harm’s way, he submits that he
exercised all reasonable care, caution, and skill in the operation of the Mustang
and there were no reasonable steps that he could have taken to avoid the
accident. He notes that he touched his brakes lightly when he first saw the
plaintiff and then braked fully when she unexpectedly stopped her vehicle in
his lane. He was not speeding. He submits that the accident was caused solely
by Ms. Turner’s negligence.

[23]       
Mr. Dos Santos submits that the plaintiff had a high onus to keep a
sharp lookout in order to avoid a collision, which she failed to do. She did
not see the Mustang  approaching despite the fact that it was there to be seen.
He submits that the plaintiff stopped her vehicle in the middle of the roadway,
straddling north and southbound traffic, when it was unsafe to do so. In his
submission, if the Court is inclined to divide negligence, it should be
weighted heavily against Ms. Turner. He submits his liability should not
exceed 10%.

FINDINGS OF FACT

[24]       
The plaintiff submits that Mr. Dos Santos is not a reliable
witness, and as such, where his evidence conflicts with the plaintiff’s
evidence, his evidence should be rejected, and Ms. Turner’s evidence
preferred. While the plaintiff does not impute an intent to deceive, she
submits that Mr. Dos Santos is a poor historian. Mr. DosSantos’
passengers were not called to testify, and the plaintiff submits that Mr. Dos Santos
provided no explanation for the absence of these key witnesses. In my view, the
defendant provided a satisfactory explanation for the absence of these
witnesses, which was that they no longer live in B.C. The defendant submits
that the plaintiff and the defendant both did their best to recall events, but
that the plaintiff’s memory was not particularly good. However, he does not
suggest that this Court should make a finding that one party was trying to
deceive the Court.

[25]       
I have difficulty with Ms. Turner’s evidence that when she pulled
out from the No. 5 Exit and she checked traffic to the left, that she
could not see any vehicles. In the Speed Scene photos taken of the accident
scene looking north it is possible to see beyond the intersection to the crest
of the overpass of No. 5 Road and Highway 99. The Mustang was clearly
there to be seen. Either Ms. Turner did not look, or if she did, she did
not see the Mustang which I find was clearly present.

[26]       
I accept Mr. Dos Santos’ evidence that he was travelling at or near
the speed limit when he first observed Ms. Turner’s vehicle. As noted I
cannot accept Mr. Cliff’s evidence that Mr. Dos Santos was travelling
in excess of the speed limit. There is no other evidence of Mr. Dos
Santos’ speed.

LEGISLATIVE FRAMEWORK

[27]       
The rules of the road are set out in the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 (the “MVA”). In Salaam v. Abramovic,
2010 BCCA 212, 4 B.C.L.R. (5th) 117, Mr. Justice Groberman at paras.18-21
explained the role that the statutory provisions play in assessing fault in
motor vehicle accident cases:

[18]      While the statutory provisions provide
guidelines for assessing fault in motor vehicle accident cases, they do not,
alone, provide a complete legal framework.

[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.

[28]       
In this case, the relevant sections of the MVA are ss. 144
and 176. Those sections are as follows:

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.

176 (1) The driver of a vehicle in a business or
residence district and emerging from an alley, driveway, building or private
road must stop the vehicle immediately before driving onto the sidewalk or the
sidewalk area extending across an alleyway or private driveway, and must yield
the right of way to a pedestrian on the sidewalk or sidewalk area.

(2) The driver of a vehicle about to enter or cross a
highway from an alley, lane, driveway, building or private road must yield the
right of way to traffic approaching on the highway so closely that it
constitutes an immediate hazard.

DISCUSSION

A. Ms. Turner’s
Negligence

i. Immediate Hazard

[29]       
Ms. Turner crossed a highway from a driveway. Pursuant to s. 176(2)
of the MVA, she was required to yield the right of way to traffic that
constituted an immediate hazard. She submits that when she entered the highway
the Dos Santos’ vehicle was not an “immediate hazard”.

[30]       
In Rollins v. Lovely, 2007 BCSC 1752 [Rollins],
Dickson J. at paras. 34-38, concisely summarized the law interpreting the
meaning of the phrase “immediate hazard”:

[34]      When does an approaching vehicle constitute
an “immediate hazard”?  This question was considered by the British Columbia
Court of Appeal in Raie v. Thorpe (1963), 43 W.W.R. 405, a left turn
case. In Raie, Tysoe J.A. stated at p. 410:

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

[35]      The question of immediate hazard and right
of way is to be assessed temporally in the moment before the driver proposing
to make the manoeuvre 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 an ensuring collision: Devidi
v. Filatow (1998) CanLII 6405 (BCSC).

[36]      When a driver concludes, reasonably, that no
immediate hazard is posed by oncoming traffic and commences to cross a
multi-lane highway care must be taken to keep a proper lookout as each lane is
crossed: Carich v. Cook [1992] 90 D.L.R. (4th) 322 (BCCA) p. 326. In
the words of Lambert J.A. in Carich, another left turn case that applies
by analogy:

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 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.

[37]      Drivers are generally entitled to assume
others will observe the rules of the road, except where they know or should
know otherwise: Kamoschinski v. Hein [1989] B.C.J. No. 909. As
noted by Drossos, Co.Ct.J. in Kamoschinski, however, this general rule
is limited to the extent described by Lord Dunedin in Fardon v. Harcourt-Rivington
(1932), 48 T.L.R. 215 as follows:

The root of this liability is negligence, and what is
negligence depends on the facts with which you have to deal. If the possibility
of the danger emerging is reasonably apparent, then to take no precautions is
negligence; but if the possibility of danger emerging is only a mere
possibility which would never occur to the mind of a reasonable man, then there
is no negligence in not having taken extraordinary precautions.

[38]      All drivers, whether dominant or servient,
have a common law duty of care to avoid a collision which can reasonably be
foreseen and avoided: Atchison v. Kummetz (1995), 14 M.V.R. (3d) 271
(BCCA). Where a dominant driver poses an immediate hazard, the burden of proof
on the servient driver to cast a portion of the blame on the dominant driver is
significant. In the words of Cartwright J. in Walker v. Brownlee [1952]
2 D.L.R. 450 (SCC):

While the
decision of every motor vehicle collision case must depend on its particular
facts, I am of the 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.

[31]       
In the circumstances of this case, I find that at the time Ms. Turner
entered the highway the Dos Santos’ vehicle was not an immediate hazard. Had Ms. Turner
not stopped in the middle of the road, she had ample time to complete her turn
in safety. Ms. Turner’s decision to leave the driveway and commence across
No. 5 Road was not negligent.

ii. Keeping a Proper
Lookout

[32]       
Regardless of whether the Dos Santos vehicle was an immediate hazard
when Ms. Turner commenced to cross No. 5 Road, she had a duty of care
to keep a proper lookout as she crossed each lane: Carich v. Cook (1992),
90 D.L.R. (4th) 322 at 326, 9 B.C.A.C. 112 (C.A.).

[33]       
In Dickie Estate v. Dickie (1991), 11 W.A.C. 37, 5 B.C.A.C. 37
(C.A.) the plaintiff, Dickie, was making a U-turn across a double solid line
when he was broadsided by the defendant, De Sousa. The defendant was travelling
137 km/h in an 80 km/h zone. The trial judge concluded that the grossly
excessive speed was the sole cause of the accident and found the defendant 100%
at fault. The Court of Appeal held the trial judge erred in principle in
failing to assess any degree of negligence against the plaintiff on the issue
of lookout. The Court noted the heavy onus put on a driver crossing a double
solid line:

[11]      Dickie was engaging in
a manoeuvre that was fraught with danger. He placed himself and the oncoming drivers
in a position of risk. That being so, in my opinion, the law required of him a
very high degree of care which would manifest itself in a sharp look-out before
he crossed over the solid double line into the northbound lanes on the
causeway. There was nothing to prohibit Dickie from seeing the oncoming De
Sousa vehicle before his vehicle entered the northbound lanes of travel. The
trial judge found as a fact, and this is not challenged on this appeal, that
the De Sousa vehicle was going at least 137 k.p.h. In my opinion, on these
facts the only possible inference is that Dickie failed to keep a look-out
which the law required of him in these circumstances. If he had been keeping
such a look-out I think the inference is irresistible that as a reasonable driver
he would have become aware that the De Sousa vehicle was exceeding the speed
limit by a margin such as to make it dangerous for him to proceed into the
northbound lanes.

[34]       
Ms. Turner testified that she checked to the left when she began to
cross the southbound lanes of No. 5 Road but she did not do so again until
a split second before the accident. It was incumbent upon Ms. Turner to
take greater care than she did as she crossed the southbound lanes. The
situation should have been assessed on a continuous basis as each new lane was
crossed. Had Ms. Turner glanced repeatedly to her left as she crossed the
southbound lanes of No. 5 Road she would have seen Mr. Dos Santos’
vehicle proceeding in the left toward her and known that she could not safely
stop her car in the middle of the road. I find that Ms. Turner was
negligent in not keeping a proper lookout.

iii. Stopping

[35]       
I find that the cause of the accident was Ms. Turner unexpectedly
stopping mid-roadway in a position which infringed on Mr. Dos Santos’ lane.
In Saffari v. Lopez, 2009 BCSC 699, Harvey J. at paras. 40-42 found
that stopping or suddenly slowing one’s vehicle on the roadway may constitute
negligence:

[40]      That, however, does not end the matter as it
relates to the responsibility of Mr. Lopez. He acknowledged that the area
where he applied the brakes was not an area of the road where a following
vehicle would expect him to slow down or stop. Further, he agreed that his
actions were "sudden".

[41] Section 144(1)(b) prohibits drivers from driving
without reasonable consideration for other persons using the highway.

[42]      Such would include, in my opinion,
consideration of the circumstances of stopping or suddenly slowing one’s
vehicle in the flow of traffic where other viable options, such as exiting the
roadway, existed. The emergency resulting in the deceleration of the Lopez
vehicle was self-created. In any event, there is no suggestion that the
cigarette had fallen onto the driver’s lap or otherwise onto his person.
Mr. Lopez’s reaction, that is to suddenly slow or stop his vehicle, was
but one of several choices he had. He acknowledged these included signalling an
intention to change lanes to reach a point of safety where he could stop his
vehicle without impeding traffic or putting on four-way flashers to alert
following vehicles and other users of the road to an emergency.

[43]      I find Mr. Lopez was negligent in
suddenly stopping or slowing his vehicle   on the roadway approaching the Lions
Gate Bridge

[36]       
In the case at bar, Ms. Turner submits she stopped out of an
abundance of caution in an effort to avoid an unidentified vehicle which was
coming out quickly from the gas station parking lot. She was unsure of that
vehicle’s intended manoeuvre. While that may explain why she stopped, I find
she stopped in an unsafe location and without reasonable consideration for
other persons using the highway. If she had kept a proper lookout she would
have well recognized that stopping the vehicle where she did was fraught with
danger. I find Ms. Turner’s decision to abort her turn and suddenly stop
her vehicle in the middle of the road was negligent.

B. Mr. Dos Santos’
Negligence

[37]       
I must also consider the actions of the defendant Mr. Dos Santos and
what, if any, responsibility he has for the accident. He admits that he had an
onus to take reasonable precautions to avoid the collision once the plaintiff
put herself in harm’s way. As noted by Dickson J. in Rollins at para. 38,
where the defendant poses an immediate hazard, the burden of proof on the
plaintiff to cast a portion of the blame on the defendant is significant. In
this case, Ms. Turner must establish that after Mr. Dos Santos became
aware, or by the exercise of reasonable care should have become aware, that Ms. Turner’s
vehicle had stopped, he had, in fact, a sufficient opportunity to avoid the
accident.

[38]       
Mr. Dos Santos was within the intersection of No. 5 Road and
Westminster Highway when he first saw Ms. Turner’s Honda. He was not
speeding. He braked lightly when he first saw the Honda. As the Honda moved
across his path, Mr. Dos Santos honked his horn, but did not reduce his
speed or attempt to change lanes. Only after the Honda stopped in his lane of
traffic did Mr. Dos Santos brake hard and attempt to change lanes into the
right southbound lane.

[39]       
I find that if Mr. Dos Santos had kept a proper lookout he could have
taken steps to avoid the accident. He had the Honda in his sight from the time
he was in the intersection. While he apparently tapped his brake once when he
first saw the Honda, he did not reduce his speed when he observed that the
Honda was going to pass in front of him. Rather than reduce his speed, he chose
instead to honk his horn. If he had reduced his speed or, alternatively, not
distracted himself by honking his horn, I find that he would have perceived the
danger of the stopped car sooner and had time to avoid the collision.

[40]       
 In the circumstances, I find both drivers at fault.

C. Apportionment of
Liability

[41]       
Having found both parties were negligent and combined to cause the
accident I must apportion fault under s. 1 of the Negligence Act,
R.S.B.C. 1996 c. 333 which provides:

1(1) If by the fault of 2 or more persons damage or loss is
caused to one or more of them, the liability to make good the damage or loss is
in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.

(3) Nothing in this section
operates to make a person liable for damage or loss to which the person’s fault
has not contributed.

[42]       
In Hynna v. Peck, 2009 BCSC 1057, 99 B.C.L.R. (4th) 357, Ballance
J., at paras. 88-93, concisely summarized the law:

[88]      In assessing apportionment, the Court examines the
extent of blameworthiness, that is, the degree to which each party is at fault,
and not the degree to which each party’s fault has caused the loss. Stated
another way, the Court does not assess degrees of causation, it assesses
degrees of fault: Cempel v. Harrison Hot Springs Hotel Ltd., [1997] 43
B.C.L.R. (3d) 219, 100            B.C.A.C. 212; Aberdeen v. Langley
(Township), 2007 BCSC 993 [Aberdeen]; reversed in part, Aberdeen
v. Zanatta, 2008 BCCA 420.

[89]      In Alberta Wheat Pool v. Northwest Pile Driving
Ltd., 2000 BCCA 505, [2000] 80 B.C.L.R. (3d) 153, Finch, J.A. (now the
Chief Justice), for the majority of the Court of Appeal, explained this
important principle at paras.45-47:

In my view, the test to be applied here is that
expressed by Lambert, J.A. in Cempel, supra, and the Court’s task
is to assess the respective blameworthiness of the parties, rather than the
extent to which the loss may be said to have been caused by the conduct of
each.

Fault or blameworthiness evaluates the parties’
conduct in the circumstances, and the extent or degree to which it may be said
to depart from the standard of reasonable care. Fault may vary from extremely
careless conduct, by which the party shows a reckless indifference or disregard
for the safety of person or property, whether his own or others, down to a
momentary or minor lapse of care in conduct which, nevertheless, carries with
it the risk of foreseeable harm.

[90]      In Aberdeen, Groves J. provided
insight into the difficulty that the Court faces in quantifying the concept of
blameworthiness under the Negligence Act. At para. 62 he endorsed
the factors in assessing relative degrees of fault set out by the Alberta Court
of Appeal in Heller v. Martens, as follows:

1. The nature of the duty owed by the tortfeasor to
the injured person…

2. The number of acts of fault or negligence committed
by a person at fault…

3. The timing of the various negligent acts. For
example, the party who first commits a negligent act will usually be more at
fault than the party whose negligence comes as a result of the initial fault…

4. The nature of the conduct held to amount to fault.
For example, indifference to the results of the conduct may be more blameworthy…
Similarly, a deliberate departure from safety rules may be more blameworthy
than an imperfect reaction to a crisis…

5. The extent to which the conduct breaches statutory
requirements. For example, in a motor vehicle collision, the driver of the vehicle
with the right of way may be less blameworthy…

[Authorities omitted.]

[91]      To the foregoing factors, Groves J. added
the following at para. 67:

6. the gravity of the risk created;

7. the extent of the opportunity to avoid or prevent
the accident or the damage;

8. whether the conduct in question was deliberate, or
unusual orunexpected; and

9. the knowledge one person had or should have had of
the conduct of another person at fault.

[92]      After surveying the authorities, Groves J.
summarized at para. 67 the approach to be taken in assessing the relative
degree of blameworthiness of the parties:

Thus, the key inquiry in assessing comparative
blameworthiness is the relative degree by which each of the parties departed
from the standard of care to be expected in all of the circumstances. This
inquiry is informed by numerous factors, including the nature of the departure
from that standard of care, its magnitude, and the gravity of the risk thereby
created.

[93]      On
appeal, the decision in Aberdeen in relation to the issue of
contributory negligence was remitted for retrial. However, the Court of Appeal
did not criticize Groves J.’s careful summation of the governing legal
principles on apportionment.

[43]       
In this case, Ms. Turner failed to keep a proper lookout as she
crossed the street. She then suddenly stopped when it was unsafe to do so. She
created a substantial level of risk for herself and others. Mr. Dos Santos
failed to take reasonable precautions to avoid the accident. His reaction to a
crisis that Ms. Turner caused was imperfect.

[44]       
 I find that Ms. Turner is primarily to blame for the accident. I
apportion liability 75% against Ms. Turner and 25% against Mr. Dos
Santos.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice
Richard B.T. Goepel