IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120927

Docket: M121203

Registry:
Vancouver

Between:

My Hoang Vo and
Phan Thi Ta

Plaintiffs

And

Robert
Michl

Defendant

Before:
The Honourable Mr. Justice Savage

Reasons for Judgment

[1]            
This action arises out of a rear end collision that occurred on February
26, 2011, on Kingsway at the intersection of Sidney Street in Vancouver,
B.C. The only issue before me is liability.

[2]            
The plaintiff, My Hoang Vo (“Mr. Vo”), was parked in a Toyota Corolla on
Kingsway. It was approximately 6 p.m. and snowing lightly. The Defendant,
Robert Michl (“Mr. Michl”) was driving his Toyota Forerunner at about 40 kph in
the left westbound lane on Kingsway.

[3]            
Mr. Vo says he checked the traffic on Kingsway and saw vehicle lights
but they were some considerable distance away. He turned onto Kingsway and then
pulled into the left westbound lane. According to his evidence, his left turn
signal was on, he braked, came to a stop and waited to make a left turn at the
intersection of Sidney and Kingsway. While stopped and waiting to make a left
turn he was rear-ended by the vehicle driven by Mr. Michl.

[4]            
The intersection at Kingsway and Sidney is not a controlled intersection,
but left turns are permitted from the westbound lane.

[5]            
Mr. Michl says he saw Mr. Vo pull onto Kingsway from a parked position
into the left westbound lane. He said the vehicle did not have on a turn signal
at that time. Mr. Michl was aware the roads were icy. He was travelling at
about 40 kph. He saw the brake lights on Mr. Vo’s vehicle in front of him while
he was in the westbound left lane. He does not recall if the left turn signal
was on at that point.

[6]            
Mr. Michl agreed that Mr. Vo’s vehicle was established in the westbound
lane on Kingsway. He saw its brake lights, applied his own brakes, and it was
four or five seconds before his Forerunner hit the back of the Corolla. He was
travelling about 40 kph when he applied his brakes but on the icy roads his
vehicle did not slow appreciably.

[7]            
After the impact Mr, Michl got out of his vehicle. At some point he took
a photograph with his cell phone of the back window of the Corolla. It had a
thin covering of snow. There is some dispute on when the photograph was
actually taken, within a couple of minutes of impact or some longer period
which would have allowed snow accumulation.

[8]            
In Cue v. Breitkreuz, 2010 BCSC 617, Smith J. described briefly
the law relating to rear-end collisions as follows:

[15]  Where there has been a
rear-end collision, the onus shifts to the following driver to show that he or
she was not at fault: Robbie v. King, 2003 BCSC 1553 at para. 13. It is
also the case that the driver of a following vehicle must allow a sufficient
distance to stop safely in the event of a sudden or unanticipated stop by the
vehicles ahead: Pryndik v. Manju, 2001 BCSC 502 at para. 21, aff’d 2002
BCCA 639; and Rai v. Fowler, 2007 BCSC 1678 at para. 30.

[9]            
In Cue the court agreed with an independent witness’s version of
events, that “…the plaintiff’s car accelerated, moved in front of the truck,
then “slammed on the brakes””. The defendant met the onus and the plaintiff was
wholly to blame for the accident.

[10]        
The Defendant also relies on the decision in Ayers v. Singh, 1995
CanLII 2314. In that case, the defendant also met the onus, but it was proven
that the plaintiff in traffic made “a sudden and abrupt stop” on a green light
“without lawful justification”.

[11]        
The court was also referred to Bathgate v. Korolek, 2010 BCSC 37.
In that case the court found the plaintiff’s version of events “makes no
sense”, that her vehicle was not hit from behind, but rather the plaintiff
turned her vehicle into the defendants vehicle.

[12]        
In Stanikzai v. Bola, 2012 BCSC 846, the defendant was found 75%
at fault where the defendant moved “suddenly into the plaintiff’s lane in
circumstances where the plaintiff did not have time to stop”.

[13]        
In Canadian Pacific Ltd. v. Gill et. al., [1973] S.C.R. 654, the
defendant was driving the speed limit at night when he encountered a stopped
vehicle which “for all practical purposes, was unlit” in circumstances where he
“could not possibly stop”.

[14]        
Of course, I accept the proposition that when one encounters unexpected
and unforeseeable conditions and an accident occurs, the fact of the accident
does not establish negligence on the part of the driver who rear-ends another
vehicle. In my view, however, this is not such a case.

[15]        
In my opinion, the snow on Mr. Vo’s rear windshield, if there was any
before the collision, was not a factor in the accident, as he would not see the
oncoming vehicles through the back window as he turned onto Kingsway. Nor, in
my view, was it a factor whether he turned on his left turn signal before
initially pulling onto Kingsway. Mr. Michl’s evidence was that he saw Mr. Vo’s
vehicle as it pulled out onto Kingsway. Mr. Vo established his vehicle in the
left westbound lane, braked, and Mr. Michl saw it in such position, with the
brake lights on, for 4 or 5 seconds before collision.

[16]        
I accept that Mr. Vo had his left turn signal on at that point which was
his evidence and is not contradicted by Mr. Michl. Mr. Michl applied the brakes
but because of the road conditions did not slow appreciably before impact. The
road conditions were apparent to him as he had been driving in those conditions.
He knew it was icy. This is not a case, for example, of their being a patch of
“black ice” in otherwise deceptively benign conditions, as was the case in Borthwick
v. Campa (1989), 67 Alta. L.R. (2d) 123 (Q.B.).

[17]        
Mr. Michl was negligent in driving too quickly for the road conditions
in traffic on Kingsway. There is no suggestion here that Mr. Vo’s actions in
turning onto Kingsway were sudden and precipitous, as in some of the other
cases referenced by the defence.

[18]        
The defendant raises s. 151(a), and 170 of the Motor Vehicle Act,
R.S.B.C. 1996, c.318, and s. 7.05(1) of the Motor Vehicle Act Regulations,
B.C. Regulation 26/58. I accept the evidence of Mr. Vo that he checked the
position of the westbound traffic before he made this turn from the parked
position onto Kingsway, and the westbound vehicles were well back at that point.
The defence has said all that could be said to support their position, however,
in my opinion Mr. Michl is 100% to blame for the accident.

[19]        
In the circumstances, unless there are matters of which I am not aware,
the plaintiff is entitled to his costs, at scale B.

 “The Honourable Mr.
Justice Savage”