IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121102

Docket: 44049

Registry:
Kamloops

Between:

David James Perrin

Plaintiff

And

Brian Lefebvre

Defendant

– and –

Docket: 45189

Registry:
Kamloops

Between:

Brian P. Lefebvre

Plaintiff

And

David James Perrin

Defendant

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
Each party has sued the other alleging that the other caused the
collision between their vehicles. They have agreed that the issue of liability
in both actions be tried first and at the same time. The central question is
whether one or both parties were negligent when one made a highway u-turn in
front of the other. The credibility and reliability of the parties is very much
in issue.

The Facts

[2]            
The collision happened at about noon on June 4, 2009 at a point on
Highway 3 about five kilometres west of the Kootenay Pass Summit. In that area
the road runs generally east – west; the single westbound lane is on a downward
grade; the two eastbound lanes are on an uphill grade. The westbound lane is
bordered by a white fog line, a narrow paved shoulder about 1.3 meters wide, a
narrow gravel shoulder, a ditch, and a steep rocky bluff rising overhead. The
eastbound lanes are bordered by a fog line, a narrow paved shoulder, a somewhat
wider gravel shoulder, and a long and very steep rock-strewn hillside falling away
to the valley bottom below.

[3]            
Before the collision, Mr. Lefebvre had been travelling east. He was
alone in his 2008 Ford F150 crew cab truck. As he rounded a corner on the
uphill grade he noticed a car pulled over on the side of the eastbound lane
ahead of him. He saw smoke rising out of the car’s open hood and two people
outside of the car apparently trying to deal with the car’s distress. As he
passed by the stopped car he considered whether to stop and offer assistance.
He checked his watch. He concluded that he had time to make a stop. By that
time, Mr. Lefebvre had driven past the disabled vehicle. Mr. Lefebvre
felt that it was too late for him to stop in front of the stalled car, so he
decided to carry on up the highway for about a kilometre. He frequented that
highway, and he knew that there was a pullout there at which he could turn
around and re-enter the highway to go back down to the stalled car. Mr. Lefebvre
did just that; he drove east at highway speed to the pull out, drove off the
highway, turned his truck, and drove back onto the highway going westbound
downhill.

[4]            
Mr. Lefebvre traversed the distance back to the disabled car at
something less than highway speed. He was going approximately 60 kilometres per
hour. As he went downhill, he kept speed off his truck by intermittently
applying his brakes. Mr. Lefebvre rounded a curve on the highway and the
disabled car came into his view. He debated whether to pull in front of or
behind the car. As he was drawing abreast the car but still somewhat east of
it, he decided that he would pull in behind the car so that his hazard lights
would warn eastbound traffic of the situation. As he drew abreast of the car he
noticed that one person was still standing outside of the car, and that he had
lost sight of the other person he had seen by the car as he passed it the first
time. Then Mr. Lefebvre looked in his interior mirror for traffic
approaching from behind. He saw none. He looked in his driver’s side outboard
mirror for traffic approaching from behind. He saw none. He checked over his
shoulder for traffic coming from behind. He saw none. As he was making these
checks, his truck had continued west down the highway. He steered it over to
his right. Mr. Lefebvre testified that he was sure that his right side
tires did not cross over the fog line. According to Mr. Lefebvre, his right
side tires came as close to the fog line as 10 centimetres but they did not go
over the fog line onto the paved shoulder.

[5]            
Mr. Lefebvre was, by then, some distance west of the disabled car
and travelling on the order of 10 kilometres per hour or less. Mr. Lefebvre
testified that at that point he applied his left turn signal and he cranked his
steering wheel to the left as far as it would go. His intention was to make as
sharp a u-turn across the highway as possible. His truck, which had slowed but had
not stopped before the u-turn, responded immediately and turned across the westbound
lane. As the front wheels of the truck were just about to cross the divided
line between the two eastbound lanes of the highway, the left front corner of Mr. Lefebvre’s
truck was violently struck by something. Mr. Lefebvre had no idea what had
hit him – he had not seen any traffic approaching from behind or ahead of him.
The impact was severe. Mr. Lefebvre’s truck was knocked on its side, spun
around, and then bounced back onto its wheels. Mr. Lefebvre suffered a
concussion and several other injuries as a result of the collision. He
testified that he has had problems with his memory since the accident.

[6]            
Mr. Lefebvre testified that after the accident the owner of the
stalled vehicle came to his truck, took some motor oil out of it, put the oil
in his car, and moved the car about 20 yards further up the highway. He also
testified that the outboard mirrors on his truck were equipped with turn signal
lights. When illuminated, those lights shone back at vehicles to the rear.

[7]            
The stalled vehicle was owned by Mr. Faminoff. He and his wife had
been travelling east on the highway. Their car, a Volvo station wagon, began to
have engine trouble. As they climbed the eastbound grade smoke began to pour
out the back. Mr. Faminoff pulled over to the side of the highway and
opened the hood. Smoke boiled out of the engine compartment and there were
flames by the firewall. Mr. Faminoff went to the back of the car to get a
blanket to smother the flames. His wife, in the meantime, poured water over the
fire and managed to extinguish it. Mr. Faminoff testified that the driver
of a tractor trailer rig then stopped to offer assistance. The driver gave him
some oil to replace what had leaked out of the engine. Mr. Faminoff
testified that he put the oil in the engine and tried to get under way again. He
immediately found that the engine was running so roughly that it was no good –
he managed to get the car a few yards away uphill from where it had initially
stopped, but then it would not go any farther. There he stopped, with the car
on the gravel shoulder and well off the travelled portion of the highway’s eastbound
lanes.

[8]            
Mr. Faminoff then noticed a black pickup truck coming slowly down
the hill toward him. He guessed that the driver of the pickup truck was going
to offer him some help. Mr. Faminoff watched the pickup truck go by his
car, still traveling slowly. The truck moved over to its right somewhat, but Mr. Faminoff
could not say whether it crossed over the westbound fog line. Then he saw the
truck start a u-turn. The front of the truck got into the first eastbound lane
when another vehicle collided with its left front corner. Mr. Faminoff did
not see the colliding vehicle before the impact. The colliding vehicle, a van,
careered across the eastbound lanes and disappeared down over the edge of the
highway.

[9]            
Mr. Perrin was driving that van. According to his testimony, he was
driving west at about 100 kilometres per hour and as he rounded a curve he saw
a car stopped on the shoulder of the eastbound lanes. The car’s hood was up. He
did not see any people outside of the car. He also saw a black pickup truck
ahead of him. Its brake lights were on. As Mr. Perrin drew abreast of the
stalled car, he saw that the black pickup truck was going quite slowly, that
its brake lights were on, and that it was pulling over to its right. As he was
roughly parallel to the stalled car, Mr. Perrin surmised that the driver
of the pickup truck intended to pull onto the shoulder of the westbound lane,
stop, get out and go back to assist with the stalled vehicle. Having reached
that conclusion, and seeing that there was no eastbound traffic coming up the
hill, Mr. Perrin decided to overtake the pickup truck by steering his van
across the double-solid line dividing the west and eastbound lanes, enter the
closest eastbound lane, and carry on by the truck. Mr. Perrin elected to
cross the double-solid line and go into the closest eastbound lane so that the
driver of the pickup truck would not be in danger if he elected to get out of
the truck before Mr. Perrin passed by. Mr. Perrin was about 40 yards
behind the pickup truck when he started to cross over into the eastbound lane.

[10]        
Mr. Perrin never saw the truck show a turn signal. He slowed his
van somewhat as he approached and went by the stalled car.

[11]        
When he was in the eastbound lane, and as he drew abreast of the rear of
the pickup truck, the truck made a sudden turn to its left. The truck crossed
over the westbound lane and entered the eastbound lane directly across Mr. Perrin’s
path of travel. Mr. Perrin testified that he had no time to react by
braking or steering to avoid or lessen the impact between the two vehicles. The
right front corner of his van collided with the left front corner of the truck.
After the impact Mr. Perrin’s van carried on across the highway’s
eastbound lanes and dropped over the embankment. It came to rest several
hundred meters below the highway’s edge.

[12]        
At all material times before the accident both drivers were in good
health. Neither suffered from any diseases or disabilities that affected their
ability to drive. They were awake and alert. The weather was clear; the road
surface was bare and dry. Both the Perrin and Lefebvre vehicles were in good
operating condition.

[13]        
The speed limit in the area was 100 kilometres per hour.

Expert Evidence

[14]        
Mr. Sdoutz, an expert in accident reconstruction, tendered a report
and gave evidence at trial. He relied upon measurements and other data that had
been collected by the RCMP and upon his own examination and analysis of the
vehicles involved and the accident scene. The parties agreed that the RCMP data
were admissible into evidence and were reliable as business records. No party
challenged Mr. Sdoutz’s expertise or his methodology.

[15]        
Mr. Sdoutz’s evidence was useful in three respects: the position of
Mr. Lefebvre’s truck before it started its turn; the speed of Mr. Perrin’s
van at certain points in time before the collision; and the time it takes an
average motorist to apprehend and react to a hazard.

[16]        
Using tire marks left by the pickup truck, Mr. Sdoutz was able to
orient the truck relative to the highway at the moment of impact. The truck was
angled across the double-solid line between the west and eastbound lanes. Its
left rear tire was very close to but not over the double lines. Its right front
tire was very close to but not over the dotted line dividing the eastbound
lanes. Relative to the double lines, if the western end of the double line
points to 12:00, then the truck was angled such that its front was pointing to
about 4:30. Given that orientation, and knowing that the truck’s minimum
turning radius is 14.6 metres, and giving Mr. Lefebvre the benefit of
assuming that the truck was stopped when Mr. Lefebvre started his u-turn, Mr. Sdoutz
determined that the pickup must have been .5 metres over the westbound fog
line, i.e.: it was straddling the line, when it started its u-turn. Mr. Sdoutz
testified that if the truck had been moving when it started its turn then,
because of its physical dimensions and turning radius, when it started its
u-turn the truck had to have been even further over the westbound fog line and
further east of the point of impact.

[17]        
Mr. Sdoutz confirmed the speed data that the RCMP obtained from Mr. Perrin’s
vehicle. He refined our understanding of the collection of those data and
explained that the time stamps for the collection points are approximate. They
could be as much as one second earlier or later than indicated in the RCMP
documents. The time stamps are, therefore, approximate. Mr. Sdoutz opined
that the speed data are, however, reliable. According to those data, in the
approximately one second intervals starting approximately five seconds before
the collision, Mr. Perrin’s van was traveling at 125, 122, 120, 114, and
106 kilometres per hour. The van’s throttle position was fully closed (i.e.: Mr. Perrin’s
foot was not pressing down on the van’s accelerator pedal) throughout that
period.

[18]        
Finally, in his testimony Mr. Sdoutz adopted as accurate the
proposition that the average motorist requires about 1.5 seconds to react to a
hazard on the road. Assuming that Mr. Lefebvre executed his u-turn from a
standing start and at an average speed of 17 kilometres per hour, Mr. Stoutz
testified that it would have taken about 1.3 seconds for him to get to the
point on the road where the collision occurred. That is to say, on those
assumptions, Mr. Lefebvre gave Mr. Perrin only 1.3 seconds of
warning. Mr. Sdoutz opined that if the truck had executed its u-turn in
1.3 seconds, Mr. Perrin would not have time to even react to the hazard,
much less do anything to avoid it. Mr. Sdoutz went on to say that if Mr. Perrin
had been travelling at 100 kilometres per hour instead of 125 kilometres per
hour, in 1.3 seconds he would have covered only nine meters less roadway and
still would not have had a realistic opportunity to avoid the collision.

Parties’ Positions

[19]        
Mr. Perrin says that the collision was entirely Mr. Lefebvre’s
fault. He argues that Mr. Lefebvre gave him no useful warning of Mr. Lefebvre’s
intention to make a u-turn, and that Mr. Lefebvre made that turn when he
was so close as to have had no realistic opportunity to avoid the accident. Mr. Perrin
points out Mr. Lefebvre’s obvious negligence in not seeing his van
approaching from behind.

[20]        
In his submissions, Mr. Lefebvre did not address his own
negligence. While not admitted, that he was negligent was taken as a given. He
says, however, that Mr. Perrin was at fault as well. Mr. Lefebvre
maintains that the situation on the highway that day ought to have put Mr. Perrin
on notice that something unusual was happening. He says that Mr. Perrin
ought to have reduced his speed such that, in the event that Mr. Lefebvre
did something unexpected, Mr. Perrin could have brought his van to an
emergency stop and thus avoided the collision. Mr. Lefebvre goes on to say
that Mr. Perrin ought to have sounded his van’s horn before he started
passing Mr. Lefebvre and that he was negligent in not having given Mr. Lefebvre
this additional warning of his presence on the road.

Discussion

[21]        
Both parties assert and acknowledge that making a u-turn on a highway is
an inherently dangerous manoeuvre.

[22]        
Mr. Sdoutz’s evidence clearly established that the physical parameters
of Mr. Lefebvre’s pickup truck dictate that he must have been straddling
the westbound fog line as he started his u-turn. He was, therefore, pulled over
to his right and his truck was at least partly off the travelled portion of the
highway. For that reason I find that I cannot accept Mr. Lefebvre’s
evidence that his truck did not straddle the fog line before he started his
u-turn. I find that he did straddle the fog line by at least .5 meters. Given
that he started his u-turn while he was in motion, Mr. Lefebvre must have
been more than .5 meters over the fog line. I find that Mr. Lefebvre had,
in fact and contrary to his testimony, steered considerably to his right before
he turned across the highway.

[23]        
I also find that I cannot accept Mr. Lefebvre’s evidence that Mr. Faminoff
took some oil out of his truck after the accident and then moved his car up the
highway some distance away from the collision scene. There are several reasons
I have decided that I cannot rely on Mr. Lefebvre’s evidence on this point.
One is that it makes no sense for Mr. Faminoff to do such a thing – the
Lefebvre truck was an obvious wreck and the two drivers involved had been
injured. It would have been rather ghoulish for Mr. Faminoff to have
rummaged around in the pickup truck in order to find and take some motor oil
for his own purposes. Mr. Faminoff impressed me as a straight forward
sensible person. He did not seem the kind to act so oddly. Another reason I
cannot accept Mr. Lefebvre’s evidence on this point is that Mr. Lefebvre
did not trouble himself to confront Mr. Faminoff with his version of the
motor oil story. That failure goes to diminish the weight that I give to Mr. Lefebvre’s
evidence on this point.

[24]        
The motor oil incident is, I appreciate, peripheral to the critical
elements of this case, but it does reflect upon Mr. Lefebvre’s
reliability. It is a relevant factor in my consideration of his evidence.

[25]        
Mr. Sdoutz’s evidence also clearly established that Mr. Perrin
was going faster than Mr. Perrin’s estimate of 100 kilometres per hour
when he first came upon the scene. I accept the data that the RCMP collected
from Mr. Perrin’s van. I find that approximately 5 seconds before the
collision Mr. Perrin was going 125 kilometres per hour. That is 25 kilometres
per hour over the speed limit. By the time he entered the eastbound lane and
was about to overtake Mr. Lefebvre’s truck, Mr. Perrin had slowed his
van down to 106 kilometres per hour.

[26]        
I accept Mr. Perrin’s evidence that he did not see a left turn
signal activated on Mr. Lefebvre’s truck. At the same time, I accept Mr. Lefebvre’s
evidence that he did put on his left turn signal.

[27]        
I find that Mr. Perrin did not see the turn signal because by the
time Mr. Lefebvre activated it, Mr. Perrin was almost overtaking him.
Mr. Perrin’s attention was quite properly focussed on the road ahead; he
had no reason to suspect or anticipate that Mr. Lefebvre would put on his
signal and he was not obliged to look for it given his position on the highway.

[28]        
Further, I find that Mr. Lefebvre put his signal on much too late. Mr. Perrin
was almost overtaking him when he used his turn signal and by then Mr. Perrin
was so close to the rear of his truck that Mr. Lefebvre’s use of the
signal could not have gained him the right of way. Mr. Lefebvre testified
that he was still uphill of the Faminoff car when he decided to make his
u-turn. He ought to have applied his turn signal then. Had he done so, Mr. Perrin
would have had meaningful warning of Mr. Lefebvre’s intentions.

[29]        
Finally, I find that Mr. Lefebvre applied his turn signal at
virtually the same moment that he cranked his steering wheel hard to the left.
His use of the turn signal was therefore a mere formality; it was activated,
but because he turned at the same time, it could not do him any good at all. Mr. Lefebvre
simply did not give Mr. Perrin adequate warning of his intention to make
his u-turn.

[30]        
To state the obvious: Mr. Perrin’s vehicle did not fall out of the
sky or appear on the highway from some different dimension. It was there to be
seen for at least several seconds before he pulled out to overtake Mr. Lefebvre,
and it was in the overtaking lane for some appreciable period of time before Mr. Lefebvre
started his u-turn. I accept that Mr. Lefebvre made the mirror and
shoulder checks he described in his testimony, and I accept that he did not
apprehend Mr. Perrin’s van approaching from the rear. Mr. Lefebvre
offered no excuse for his failing to see the van that was there to be seen. Had
he seen it, Mr. Lefebvre would not have turned across its path. Instead, Mr. Lefebvre
would have either stopped on the right shoulder of the westbound lane to wait
for the van to go by, or he would have continued on down the highway to a pull
out that he knew was close by.

[31]        
I have no hesitation in concluding that Mr. Lefebvre was negligent
and that his negligence was a causal factor in the collision.

[32]        
I find that Mr. Perrin’s speed was too high for the circumstances.
Upon rounding the curve and upon seeing the disabled car and the slow moving
pickup truck, Mr. Perrin ought to have slowed his van down more than he
did. Doing the best that I can with the evidence before me, I find that Mr. Perrin’s
van was travelling between 100 and 106 kilometres per hour at the critical
point when Mr. Lefebvre created the hazard of starting his u-turn. I find
that it took between 1.3 and 2 seconds for Mr. Lefebvre’s truck to go from
travelling safely west in its lane to blocking Mr. Perrin’s path. Even if Mr. Perrin
had slowed to 50 kilometres per hour by the time he reached the critical point,
he would still have required 1.5 seconds to react to the hazard, leaving him .7
of a second to brake or steer to avoid. I agree with Mr. Sdoutz that Mr. Perrin
would not have been able to accomplish anything meaningful in so short a period
of time.

[33]        
Mr. Lefebvre argued that Mr. Perrin ought to have been going
at a speed that would have allowed him to make an emergency stop in the event
that Mr. Lefebvre did something unexpected. That is, I think, the counsel
of perfection and goes beyond what can be expected of a reasonable motorist in
those particular circumstances. To give it effect, Mr. Perrin would have
to have decelerated so much that, when he was 1.5 to 2 seconds from the rear of
Mr. Lefebvre’s truck, he would have been able to react, which would take
1.3 to 1.5 seconds and bring his van to a stop in the remaining .2 to .5
seconds. He would have to have been literally creeping down the highway,
guarding against a manoeuvre that Mr. Lefebvre had no business executing.
That is not, in my opinion, a reasonable proposition and I cannot give effect
to it.

[34]        
There was no traffic coming up the hill to interfere with passing by the
Lefebvre truck on its left and, given the narrowness of the westbound shoulder,
a reasonable motorist would, under those circumstances, have steered to his
left to give the Lefebvre truck a safe berth. Mr. Perrin’s decision to
cross the double line as he passed the pickup truck was, in the circumstances,
not negligent. It was, in fact, the prudent thing to do.

[35]        
Mr. Perrin was entitled to assume that Mr. Lefebvre would
behave like a responsible motorist. A responsible motorist would not make a
u-turn simultaneously with activating his turn signal. There was nothing about Mr. Lefebvre’s
behaviour before he made his u-turn to indicate to Mr. Perrin that Mr. Lefebvre
was going to do something dangerous. Further, Mr. Perrin was entitled to
assume, absent behaviour indicating the contrary, that Mr. Lefebvre had
seen Mr. Perrin’s van approaching from the rear and would behave
accordingly.

[36]        
In the result, I find that no negligence on Mr. Perrin’s part
caused or contributed to the collision.

Conclusion

[37]        
Mr. Lefebvre is entirely at fault for the collision. His proceeding
as claimant must be dismissed with costs to Mr. Perrin.

[38]        
Mr. Perrin is entitled to a declaratory judgment that he is
entitled to judgment against Mr. Lefebvre for damages and costs to be
assessed.

[39]        
I have made no significant findings of fact relating to Mr. Perrin’s
credibility or reliability. Although it is unusual and generally undesirable
for liability to be assessed by one trier of fact and quantum by another, in
this particular case in the interests for efficiency and the parties’
convenience I will not declare myself seized of the quantum aspect of the
Perrin-as-claimant proceeding.

“P.J.
Rogers J.”
The Honourable Mr. Justice Rogers