IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121122

Docket: M130303

Registry:
New Westminster

Between:

Leah Christine
Stewart

Plaintiff

And

Daniel Dueck

Sumas Transport
Inc.

Defendants

Before:
The Honourable Madam Justice Dardi

Reasons for Judgment

INTRODUCTION

[1]            
The 31-year-old plaintiff, Leah Christine Stewart, seeks damages from
the defendants, Daniel Dueck and Sumas Transport Inc., arising from a motor
vehicle accident that occurred on June 2, 2010, at the intersection of 176^th
Street and 16^th Avenue in Surrey, British Columbia (the “Intersection”).

[2]            
Mr. Dueck was driving a highway tractor-trailer unit pulling two
trailers (the “Unit”).

[3]            
Both liability and the assessment of damages, potentially recoverable, are
in dispute.

LIABILITY

The Accident Scene – Uncontroversial Facts

[4]            
The following facts are not in contention. Some of the facts are
established through photographs tendered in evidence.

[5]            
16^th Avenue and 176^th Street, which is also known
as the Pacific Highway, is a major intersection which connects the Canadian-American
border to the south and the Trans Canada Highway to the north. At the Intersection,
in both the northbound and southbound direction, there are two through lanes, a
dedicated left turn lane, and a paved shoulder. On 16^th Avenue,
there is a through lane and a dedicated turn lane running in each direction. The
Intersection is controlled by traffic lights. The speed limit on this stretch of
176^th Street is 70 kph. It is a designated truck route.

[6]            
On the day of the accident, Ms. Stewart was driving from her home in White
Rock to Langley. She had no passengers in her vehicle.

[7]            
Mr. Dueck is a professional driver. For the past 20 years he has been
licenced and qualified to drive highway trucks that pull multiple trailers. For
the past seven years, he has been employed on a full-time basis by the
defendant Sumas Transport Inc., hauling shale between Sumas Mountain and
Richmond. On the day of the accident, Mr. Dueck was returning to Sumas
Mountain after having completed a shale delivery in Richmond.

[8]            
It is key to appreciate that the Unit is a very large commercial
vehicle; it is 72-feet in length. It is known as a Super-B train. The Unit
consisted of a tractor unit, a lead trailer and a rear trailer. The uncontroverted
evidence shows that this particular vehicle is the longest commercial vehicle
that can be operated legally on the roadways in British Columbia.

[9]            
There are a total of 14 signal lights on Mr. Dueck’s truck: seven
signals on each side. There is a set of signals located by the headlights and a
set on each side of the driver’s mirrors. The back of the tractor also has
signals. Both the lead trailer and the rear trailer are equipped with signals
on the rear bumper; there is another set located in the middle about four feet
above the ground.

[10]        
On June 2, 2010, the Unit was in good working order. As was his routine,
in the morning before starting his workday, Mr. Dueck had checked that the turn
signal indicators were operational. He also checked that the signal lights were
operational part-way through the day and again after the collision.

[11]        
Prior to the accident, both Ms. Stewart and Mr. Dueck were proceeding
northbound on 176^th Street, towards the Intersection. Mr. Dueck, who
had entered the Intersection on a green light, was executing a right-hand turn
when the collision occurred. The impact of Ms. Stewart’s vehicle and Mr.
Dueck’s truck occurred at or near the south side of the Intersection. The accident
occurred between 3:00 p.m. and 3:30 p.m. It was raining. The traffic was
moderate, in that there was some traffic, but it was not heavy.

[12]        
The damage to Ms. Stewart’s vehicle was largely to the driver’s side
door and front end.

[13]        
It is common ground that when Mr. Dueck was making his turn, his speed
was about 15 kph and that Ms. Stewart entered the Intersection travelling at a
speed of 30-40 kph.

[14]        
There was no evidence as to the dimensions of the pertinent roadways or
the Intersection. There was no accident reconstruction evidence tendered at
trial.

[15]        
There were no witnesses to the accident who were called at trial.

Ms. Stewart’s version of events

[16]        
Ms. Stewart travelled from 8^th Avenue to 16^th
Avenue on 176^th Street in the fast lane. She was travelling at between
70 and 80 kph. According to Ms. Stewart, she observed Mr. Dueck’s Unit travelling
in the fast lane when she was about a block and a half from the Intersection.
She never saw his Unit travelling in the slow lane. She testified that when she
was approximately two car lengths behind his Unit, she observed Mr. Dueck
activate his left signal light and move the entire length of his Unit from the
fast lane into the left turn lane. As she was approaching the Intersection, she
was travelling beside his Unit. She assumed that Mr. Dueck was making a left
turn.

[17]        
Ms. Stewart maintains that as she was approaching the Intersection, she
was looking at the traffic around and ahead of her.

[18]        
Ms. Stewart first observed the Unit making a right turn when her vehicle
was one car-length from the southern white line in the Intersection; her vehicle
was beside the rear trailer of the Unit. She slammed on her brakes to avoid the
collision. The impact occurred just as she was “crossing the white lines” of
the Intersection. She skidded to a stop on the north side of the crosswalk. Her
vehicle was not pushed out of the fast lane but it did move closer to the
centre line. She stated at trial that the driver’s side of her vehicle collided
with the rear tires of the lead trailer of Mr. Dueck’s Unit.

[19]        
Ms. Stewart never observed any four-way flashers or a right-turn signal having
been activated on the Unit.

[20]        
Within a minute of the first impact, the Unit pushed her vehicle
backwards, behind the most southern white line in the Intersection. According
to Ms. Stewart, the first impact was more severe than the second.

[21]        
The airbags in her vehicle did not deploy but the driver’s window
shattered in the collision.

[22]        
Emergency health personnel attended to her at the scene and she was
taken to the hospital by ambulance.

Mr. Dueck’s version of events

[23]        
Mr. Dueck estimates that he negotiates the right turn at this Intersection
on average between 10 and 12 times per week. He is therefore very familiar with
the right–hand turn manoeuvre that is the subject of this dispute. From a
trucker’s perspective, he explained that this particular turn is “a very tight
corner” to negotiate.

[24]        
Mr. Dueck’s account of the accident differs significantly from that
of Ms. Stewart. He maintains that he travelled in the curb lane – as was
his usual routine – until he began his manoeuvre to make his turn onto 16^th
Avenue. He was travelling at 70 kph. He denies that he was travelling in the
fast lane of traffic as is alleged by Ms. Stewart.

[25]        
Prior to initiating his turn, Mr. Dueck described that he first checked
the traffic. He was satisfied that he could safely initiate his manoeuvre, as
the traffic was a safe distance behind him. He then signaled a left turn and moved
from the slow or curb lane into the fast lane. He blocked the lanes by crossing
the dotted dividing line. He then turned his Unit into and through the left
turn lane to make his turn. He says he never had his Unit entirely in the left
turn lane but rather, he turned his Unit through the lane in “an arc”. He
described his turning manoeuvre, which he says he executes routinely, as being designed
to discourage other drivers from passing him on either side while he is executing
his turn.

[26]        
Once he moved from the curb lane, Mr. Dueck continued to reduce his
speed and by the time he entered the Intersection he was travelling at
approximately 15 kph.

[27]        
His manoeuvre included the execution of a continuous fluid signal
sequence: first his left turn signal, then his four-way flashers or hazard
lights, then his right turn signal. According to Mr. Dueck, he activated his
left turn signal before he moved his Unit over from the slow lane and he
activated his four-way flashers before he moved his Unit into the left turn
lane. As I understood his evidence, the four-way flashers or hazard lights activate
both the right and left signals at the same time. He explained that when these
four-way flashers are activated all 14 signal lights on the Unit are flashing. Before
he initiated the right turn, he turned on his right turn signal.

[28]        
In order to ensure he could safely execute his turn, Mr. Dueck checked
his mirrors and performed a shoulder check before moving from the slow lane
into the fast lane. Prior to moving from the fast lane to the left turn lane,
he double checked both his side mirrors to make sure there was no traffic to
the left or right of his Unit. He specifically recalls double checking his
mirrors on the day of the accident because of the rainy conditions.

[29]        
Mr. Dueck saw Ms. Stewart’s vehicle both times he checked his mirrors.
When he first saw her vehicle, he estimated that she was travelling
approximately half a block behind him. He proceeded with the turn because, in
his judgment, she was a safe distance behind him and he could safely execute
his turn.

[30]        
Once he was in the turn, due to the trajectory of his Unit, he could
only see his trailers out of his mirrors. However, he confirmed that he had
checked his mirrors immediately prior to this point.

[31]        
Mr. Dueck first became aware that there had been a collision when the
cab of his Unit was facing down 16^th Avenue in the curb lane and he
was close to the sidewalk. He checked his mirror, looked out his side
window, and observed that there was a car “right up tight” to the rear most set
of axles of his Unit. He then disembarked from his cab and stood between the
cab and the lead trailer. He observed that there had been a collision. His tractor
and lead trailer were blocking all north and eastbound traffic in the Intersection.
At that point, he backed up his Unit to clear the Intersection so that traffic
could proceed in a northbound direction. He then drove straight ahead and
parked his Unit along the curb lane, north of the Intersection.

[32]        
There was no damage to the Unit- only a scuff mark on the lead tire of
the rear trailer.

[33]        
Mr. Dueck flagged down an ambulance and walked over to speak to
Ms. Stewart, whose vehicle was located at the south end of the
Intersection. He was present when the ambulance attendants approached Ms. Stewart.
Mr. Dueck also spoke to the police officer who attended the scene.

POSITION OF THE PARTIES

[34]        
It is Ms. Stewart’s position that because he was driving in a negligent
manner Mr. Dueck should be found entirely at fault or, in the alternative, primarily
at fault for the accident.

[35]        
Ms. Stewart does not take issue with Mr. Dueck’s assertion that the
turning manoeuvre he undertook was appropriate for executing a right-turn at
this particular Intersection. Rather, Ms. Stewart’s essential contention is
that Mr. Dueck should have slowed down or stopped before initiating his right
turn so that he could have first ascertained Ms. Stewart’s position. Her
counsel disputes that Mr. Dueck activated his four-way flashers.  In any case,
if it is found that Mr. Dueck did activate his four-way flashers Ms. Stewart
argues that this did not constitute sufficient warning of his manoeuvre.

[36]        
The defendants deny that Mr. Dueck was negligent and submit that
Ms. Stewart bears the entire responsibility for the accident. Their
primary contention is that the accident can only be explained by Ms. Stewart’s lack
of due care and attention. The defence vigorously challenges the reliability of
Ms. Stewart’s evidence.

LEGAL FRAMEWORK

[37]        
The legal principles which govern this dispute are uncontroversial.

[38]        
The authorities establish that all motorists have an overarching common
law duty to exercise what constitutes, in all the circumstances, reasonable and
due care. All motorists have a general duty to keep a proper look-out and
to take reasonable precautions in response to apparent potential hazards: Hmaied
v. Wilkinson, 2010 BCSC 1074 at para. 23.

[39]        
It is a well-settled proposition that drivers in this province are
entitled to assume, within reason, that the other users of the roads in British
Columbia will obey the law: Mills v. Siefred, 2010 BCCA 404 at para. 26.

[40]        
The Court’s task is to determine whether each of the parties in an
accident met their common law duties of care. The analysis of the standard of
care, which is relevant to the particular circumstances, is informed by both
the reasonableness of the parties’ actions and by the rules of the road; Salaam
v. Abramovic, 2010 BCCA 212 at para. 21; Kilian v. Valentin, 2012
BCSC 1434 at para. 28.

[41]        
While these general propositions are endorsed by the authorities,
ultimately, the determination of liability turns on the particular facts of
each case.

ANALYSIS AND FINDINGS

[42]        
Ms. Stewart bears the burden of proving on a balance of probabilities
that Mr. Dueck was negligent. Thus, the essential question is this: did Mr.
Dueck fail to exercise the standard of care required by a reasonably careful
driver in the circumstances?

[43]        
At trial, the testimony of the parties diverged significantly in
relation to important facts, and it is appropriate therefore, as a starting
point in the analysis, to comment on the evidence of the two principal
witnesses: Ms. Stewart and Mr. Dueck.

[44]        
For the reasons that follow, I have concluded that Ms. Stewart’s
evidence must be rejected as being unreliable where it conflicts with Mr.
Dueck’s evidence.

[45]        
Overall, I found Ms. Stewart testified in a rambling manner. Her
evidence on occasion was inconsistent and difficult to follow; she left the Court
with the impression that, to a large measure, she was reconstructing her
evidence. For example, when challenged in cross-examination on her testimony
regarding where Mr. Dueck’s Unit came to a stop after the accident, she conceded
that in her prior testimony, she had made a deduction as to its location and in
fact she had no actual recollection. She also admitted in cross-examination
that although she had testified in chief as to the location of her vehicle after
the collision, she had no actual recollection.

[46]        
On occasion, Ms. Stewart’s testimony at trial was inconsistent with her
evidence from her examination for discovery without any satisfactory
explanation. The following examples are illustrative:

(i)        
She testified in her examination in chief that she first observed
Mr. Dueck’s Unit when it was a block and a half away. At her examination
for discovery, she testified that she first became aware of the Unit when it
was two car lengths ahead of her in the fast lane.

(ii)       
At trial, she asserted that she collided with the lead trailer of the Unit
but at her examination for discovery she stated that it was the rear trailer.

(iii)       At
trial, she maintained that she was one car length from the Intersection when
she first noticed the Unit turning right but at her examination for discovery
she testified that she was just passing the stop line at the Intersection.

[47]        
My assessment of Ms. Stewart’s evidence as a whole compels the
conclusion that her evidence is unreliable. I make my assessment of her
evidence keeping in mind that she was recalling the details of what was a
sudden and traumatic event for her.

[48]        
In contrast to the deficiencies of Ms. Stewart’s evidence, I found Mr.
Dueck’s evidence to be credible and reliable. His evidence was clear and straightforward.
He testified in a forthright and responsive manner and endeavoured to carefully
give an accurate account of the material events. In my view, the substance of his
evidence was not shaken in cross-examination.

[49]        
Ms. Stewart’s counsel points to what he alleges is an inconsistency in
Mr. Dueck’s evidence with respect to the timing of the activation of his
right-turn signal. Mr. Dueck emphasized in his evidence that the manoeuvre
included a signal sequence. He operates the signal lights with one lever in a continuous
motion. I accept his explanation at trial that after activating his left
turn signal, he activated his four-way flashers and then activated his right
turn signal before initiating his right turn. I am not persuaded that his
evidence at his examination for discovery on this point can properly be
characterized as being inconsistent. Even if it were found to be inconsistent,
I do not find the alleged inconsistency significant in the context of Mr. Dueck’s
evidence as a whole.

[50]        
In my view, the preponderance of the probabilities supports Mr. Dueck’s
version of how the accident happened; I accept his evidence regarding the
circumstances of the accident.

[51]        
Common sense would suggest that Mr. Dueck was required to act reasonably
in alerting other drivers on the road of his intention to turn right. He had a
responsibility to ensure that his right turn manoeuvre did not endanger other
users of the road. It is important to keep in mind, however, that the standard
of care is not one of perfection but whether Mr. Dueck acted in a manner in
which an ordinarily prudent driver would act: Haddon v. Lynch, 2008
BCSC 295 at para. 69.

[52]        
I find on the totality of the evidence, that Mr. Dueck met the standard
of care of a reasonably careful driver in the circumstances that were pertinent
at the relevant time. In my view, he exercised a reasonable level of caution.

[53]        
I find, contrary to Ms. Stewart’s assertions, that Mr. Dueck’s entire
Unit was never fully in the left turn lane at the same time. He explained that
by travelling in an arc, his express objective was to prevent drivers from
passing him while he was making his turn.

[54]        
When it was safe to do so, Mr. Dueck moved his Unit from the right lane
into the fast lane and arced through the left lane. He initiated his signal
sequence – left turn signal, flashing hazards, right turn signal. He
acknowledged seeing Ms. Stewart behind him but testified that, in his judgment,
she was a sufficient distance away that it was safe to make his turn. At 15
kilometres per hour, Mr. Dueck would have been travelling 13.67 feet per second.
At this speed, Mr. Dueck’s Unit would have successfully cleared Ms. Stewart’s
line of travel after another second. Taking into account the fact that
he had almost cleared the turn and avoided a collision, I am not persuaded that
he was negligent. Ms. Stewart was a sufficient distance behind him that,
had she been looking ahead, she would have seen the Unit and his turn would
have been safely executed. He was entitled to assume that other drivers would
be paying attention to his signal lights and would proceed with the requisite
degree of caution.

[55]        
In my view, the preponderance of the evidence supports a finding that
Ms. Stewart failed to exercise due care in all of the circumstances. A reasonable
driver in her position would have been put on notice that she should proceed
with caution. Mr. Dueck’s 72-foot Unit with 14 flashing lights proceeding at 15
kph was clearly there to be seen. Contrary to the assertions of Ms. Stewart’s
counsel, such a large vehicle “does not turn suddenly.” Ms. Stewart did not testify
that she was watching the Unit and that Mr. Dueck failed to activate his
four-way flashers or the right turn signal. She merely says that she did not observe
his four-way flashers or the right turn signal. Had she been paying due care
and attention to the roadway ahead of her, the operational flashing signals of
his Unit – seven signal lights located at intervals down the length of each
side of the Unit – would have been clearly visible to her. The four-way
flashers and right turn signal would have been fully visible from the rear and
passenger side of the Unit.

[56]        
The Supreme Court of Canada in Swartz Bros. Limited v. Wills,
[1935] S.C.R. 628 at 634, endorsed the notion that: ^“[W]here there
is nothing to obstruct the vision and there is a duty to look, it is negligence
not to see what is clearly visible.” See also Millot Estate v. Reinhard,
2001 ABQB 1100 at para. 46. This principle has application to this case.

[57]        
At the moment of impact, Ms. Stewart was travelling in a northerly
direction on 176^th Street. I find that the
front of Ms. Stewart’s vehicle collided with the front wheels of the rear
trailer of the Unit. The rear trailer of the Unit was moving across her
direction of travel in a north-easterly direction.  When Mr. Dueck stopped
after the collision, his Unit had already crossed the Intersection and had
reached the 16^th Avenue crosswalk; the tractor and lead trailer of
the Unit were well through the right turn. Based upon the photographs of the
Unit, it can reasonably be inferred that, prior to the collision with the rear
trailer, approximately 60 feet of Mr. Dueck’s 72-foot Unit would have had to
have passed right in front of Ms. Stewart from left to right. On her own
evidence, Ms. Stewart did not notice the Unit turning right until she was a car
length from the Intersection. By that time, Mr. Dueck had been executing
the turn for several seconds and she was too late to avoid a collision. She
suddenly saw what she should have seen earlier and it was too late to take any
evasive steps.

[58]        
I have reviewed the cases relied upon by  Ms. Stewart’s counsel,
including Millot Estate and Conklin v. Smith and Phil Hall Ltd.
(1977), 4 B.C.L.R 302 (C.A.) (var’d on other grounds, [1978] 2 S.C.R. 1107). The
cases involved collisions with trucks making wide right hand turns and
motorcycles travelling in the curb lane. In my view, however, there is a
distinction of some significance: those collisions occurred with the front end
of the trucks, not the rear of the truck as in this case. In the result I find the
analysis in those cases distinguishable.

[59]        
It must be kept in mind that Ms. Stewart professed familiarity with the Intersection
which is a designated truck route which requires large trucks to make
particularly wide turns. She was aware that large trucks often make wide right
turns at this Intersection. The tenor of her own evidence was that, had she seen
Mr. Dueck’s four-way flashers, this would have alerted her to proceed with
caution.

[60]        
I note, parenthetically, that I am not persuaded that this case
turns on the precise timing of the transition from the four-way flashers to the
right turn signals. Ms. Stewart failed to observe the activation of either
the four-way flashers or the right turn signal on the Unit. Had Mr. Dueck
turned on the right turn signal earlier, Ms. Stewart would not have seen it in
any event. It cannot be said that there is any nexus between this faulty
conduct as alleged and the accident.

[61]        
I have concluded that a reasonably careful driver in Ms. Stewart’s
circumstances would have seen the four-way flashers and right turn signal on
the Unit and been alerted to Mr. Dueck’s manoeuvre . It follows that a
reasonably prudent driver would have seen the Unit ahead of her in the Intersection
in sufficient time to avoid a collision.

[62]        
I am fortified in my conclusions by defence counsel’s postulations on
the dynamics of the collision which he has based upon the relative speeds of
each of the parties’ vehicles. This is factual information of which I am
entitled to take judicial notice. I find the following analysis compelling.

[63]        
As I mentioned earlier, at 15 kilometres per hour, Mr. Dueck would have
been travelling 13.67 feet per second. Ms. Stewart was travelling between 30
and 40 kilometres per hour – from 27.3 to 36.4 feet per second, immediately
before the Intersection, when she first observed Mr. Dueck turning right. As I
mentioned earlier, approximately 60 feet of his 72-foot Unit had crossed
through the Intersection prior to the collision. At his speed of 15 kilometres
per hour, 60 feet would have taken him approximately four and a half seconds,
during which time, even at 30 kilometres per hour, Ms. Stewart would have
travelled approximately 122 feet.

[64]        
As defence counsel states in his submissions:

His tractor began its turn across
in front of her, when she was 122 feet from the point of impact, yet she does
not notice him until she was about a dozen feet from that point.

[65]        
The only reasonable inference is that Ms. Stewart was not paying due
care and attention as she was approaching the Intersection.

[66]        
I find that Ms. Stewart bears the onus of proving negligence. In my
view, she has failed to discharge her burden of proof. I am not persuaded on a
balance of probabilities that the accident was attributable to any want of care
on Mr. Dueck’s part. I find Ms. Stewart entirely at fault for the accident. Moreover,
Ms. Stewart has failed to prove any negligence on Mr. Dueck’s part for the
second impact she says occurred as Mr. Dueck backed up his Unit to clear the
Intersection. I find that Mr. Dueck acted reasonably in the circumstances.
In reaching my conclusions, I have considered the entire body of evidence and,
in my view, it best harmonizes with the preponderance of the probabilities.

[67]        
In view of my findings, it is not necessary to address the assessment of
damages.

CONCLUSION

[68]        
In conclusion, I am not satisfied that Ms. Stewart has proven that Mr.
Dueck was negligent. The action is accordingly dismissed.

[69]        
The defendants are entitled to the costs of their action unless there
are any pertinent circumstances that should be brought to the Court’s
attention.

“Dardi, J.”