IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121109

Docket: M111101

Registry:
Vancouver

Between:

Leslie Sam

Plaintiff

And

Franco Corona and
GMAC Leasco Corporation/La Compagnie GMAC Location

Defendants

Before:
The Honourable Mr. Justice Schultes

Oral Reasons for Judgment

1.              
Introduction

[1]            
This personal injury trial dealt with the consequences of a collision
between vehicles driven by the plaintiff Leslie Sam and the defendant Franco
Corona at an intersection in Maple Ridge on July 26, 2009.

[2]            
The questions that need to be decided are:

1.     whether Mr. Corona
is liable to any extent for the collision; and if he is,

2.     the proper
amount of non-pecuniary damages that Mr. Sam should receive for his
injuries.

[3]            
It has already been agreed that if liability is found Mr. Sam is
entitled to specific agreed damages for past wage loss and special damages.

[4]            
The potential liability of the defendant GMAC Leaseco Corporation, the
lessor of Mr. Corona’s vehicle at the time of the accident, flows from
s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, which
imposes vicarious liability on all vehicle owners. It has been decided that a
lease does not exempt the owner from liability under s. 86(3) in the same
way as a contract of sale does: Yeung (Guardian ad litem of) v. Au, 2006
BCCA 217.

2.              
Evidence

[5]            
There is no dispute about the basic circumstances of the accident. It
occurred at about 2:30 on a sunny Sunday afternoon in the intersection of
Lougheed Highway and 203rd Street.

[6]            
There were no precise measurements of the scene available, and the
photographs did not always provide the most favourable views, but the basic
layout can be gleaned from the evidence.

[7]            
Lougheed Highway runs east and west in this area. At the intersection
there are in each direction two “through lanes” of travel, which I will call
the curb lane and the centre lane, plus left turn lanes. It appears from the
scene photographs that there is a white painted stop line at the entry to the
intersection in each direction on Lougheed, followed by another parallel line
about seven or eight feet further into the intersection. These lines form a
crosswalk for pedestrians.

[8]            
Traffic lights control the flow of traffic at the intersection. At the
time of the accident it appears that the cycle of the traffic lights included
an advanced flashing green arrow that permitted westbound traffic to turn left
on to 203rd.

[9]            
Mr. Sam was driving his compact vehicle from his home in Mission to
his workplace in Maple Ridge. Jamie Kelly, his cousin and co-worker, was his
front seat passenger. He had been heading west on the Lougheed Highway and was
planning to make a left turn, which would be to go south, on 203rd Street.

[10]        
Mr. Corona was driving his sports utility vehicle eastbound on the
Lougheed Highway in the centre lane, heading home from a charity event in
Vancouver.

[11]        
It is clear from the photographs that the middle front of Mr. Corona’s
SUV struck the front corner on the passenger side of Mr. Sam’s car. This
occurred within the intersection, in the centre lane. The impact rotated Mr. Sam’s
car about 90 degrees so that it ended up facing roughly southeast. Mr. Corona’s
SUV veered off to its right and mounted the sidewalk on the southeast corner
before coming to rest against a pile of paving debris.

[12]        
It is obvious from the physical evidence, before one even considers the
witness testimony, that the Sam car was struck while it was in the process of
carrying out a left turn across the path of the Corona SUV, which was
attempting to travel straight through on Lougheed.

[13]        
The questions in issue are the pre-collision actions of the two drivers,
the stage of the traffic lights for each of them when they engaged in those
actions, and the respective rights of way that arise as a result.

[14]        
Mr. Sam said that he pulled into the left-turn lane and that there
was one car ahead of him that was waiting for oncoming traffic to clear so that
it could turn left. That opportunity came and the car ahead completed its turn,
allowing Mr. Sam to pull ahead into the intersection to wait for his
opportunity. There had been a flashing advanced left turn green arrow
previously which by this point — and I infer also for the driver who turned
left ahead of him — had changed to a solid green light.

[15]        
Mr. Sam continued to wait for oncoming traffic to clear to make his
turn. He was in the intersection for half a minute, he thought. He observed the
lights change from green to amber to red. A couple of oncoming vehicles cleared
the intersection while the lights were changing and behind them other vehicles
were slowing down. He saw the brake lights of one of them coming on and this
vehicle coming to a stop. This suggested to him that it was clear for him to
make his left turn and he began to do so. He was halfway through this turn when
he looked up and saw the vehicle that he thought might have been stopped speed
up and come through the intersection. It was in the centre lane of traffic in
its direction. He saw it a few seconds before the collision.

[16]        
Mr. Sam had been going very slowly, he said, and he hit his brakes
in an unsuccessful attempt to avoid being struck.

[17]        
In cross-examination he was unable to say how far back from the
intersection this oncoming vehicle had been when he saw it slow down. It
reached the stop line for eastbound traffic, he said, about a car length from
him. It went from this near stop or possibly a speed of 10 km/h to about 30 to
40 km/h over that distance. Whatever speed it was able to achieve before
impact, he agreed that it was enough to spin his car around and for the other
vehicle to travel a further 25 to 30 feet to its final resting place.

[18]        
When asked how long after the light went red he made his turn he said
that he went as soon as he saw it was clear to go. However, he agreed with the
subsequent suggestion in cross-examination that he was in the intersection for
30 seconds after the light was red. In re-examination he clarified that this
time period referred to the overall time between stopping at the turn area and
making his turn.

[19]        
I did not permit counsel for Mr. Corona to re-cross-examine Mr. Sam
on also having given the answer that he was in the intersection for 30 seconds
after the red light at his examination for discovery. I reasoned that since the
original cross-examination had in effect contradicted Mr. Sam’s answer in
direct about the timing of his left turn relative to the onset of the red light,
he should have been confronted with his discovery testimony during that cross-examination,
rather than counsel waiting until he had been re-examined on the point. I was
also concerned that later in cross-examination it had actually been put to Mr. Sam
that this answer was not true, making the value of establishing that it had
also been given at discovery questionable.

[20]        
Mr. Sam disagreed with the suggestion that Mr. Corona’s
vehicle had never slowed down or stopped, or that it maintained a constant
speed, and in response to the suggestion that the light had turned yellow, as Mr. Corona’s
SUV hit the stop line in its direction, Mr. Sam maintained that he was
pretty sure that it was a red light.

[21]        
Mr. Kelly described the accident in a slightly different way. According
to him there was one car ahead of them in the left-turn lane as the advance
left-turn arrow went yellow and then ended. The car ahead of them then waited
for a gap to turn left and when one appeared that driver made his turn.

[22]        
It was still a green light for them, so Mr. Sam pulled into the
intersection to await his gap to turn. They were stopped in the intersection
for 15 to 30 seconds, Mr. Kelly thought. When the light turned yellow they
were still stopped. Oncoming traffic in all lanes was slowing down. It seemed
safe to turn because of this. Mr. Sam took his turn, but one vehicle “just
kept going”, according to Mr. Kelly, which resulted in the collision. The
light was "late amber" at this point.

[23]        
Mr. Kelly said this vehicle had been slowing down. He saw its front
end drop and its taillights go red on the side. It seemed to Mr. Kelly
that the driver was going to stop and then decided to "blow the
light." He said that Mr. Sam had seen the vehicle stopping but that this
other vehicle stopped and then accelerated again.

[24]        
In cross-examination he clarified that he felt that the oncoming vehicle
had blown the red because it had slowed down to a stop and then gone through. It
was before the stop line when it slowed down. There were cars in all three
oncoming lanes and all were slowing to a stop. Mr. Corona’s SUV was almost
near or close to being stopped, he agreed, before it went through. He also said
it was slowing down with the other traffic, somewhat close to 10 km/h.

[25]        
There was no reason that Mr. Kelly could see for this vehicle to
speed up after slowing down to close to 10 km/h. Mr. Kelly assumed that
the driver would do as the other oncoming drivers had done.

[26]        
Mr. Sam and Mr. Kelly were both cross-examined extensively on
the closeness of their family, social and work relationships and contact, and on
the extent to which they had discussed their recollections of the accident
before the trial.

[27]        
Mr. Sam agreed that they had talked about the accident, although
not much, and that both had said that the light had been red when they turned,
but he did not think they had discussed whether the Corona vehicle had slowed
down or stopped, or how long they were in the intersection before turning. They
still turn at that exit, Mr. Sam said, although they drive together to
work much less often than before, and when they do they mention that it is
where the accident happened.

[28]        
For his part Mr. Kelly agreed that they had talked a couple of
times about the accident, including about their injuries and that the other
driver "blew a red and hit us", and what the light was when they
turned and the SUV entered the intersection.

[29]        
Mr. Corona’s evidence began with a long recitation of the nature of
his involvement in the charitable event that he was coming home from at the
time of the accident. Evidence of good character being generally irrelevant to
the issues in a civil action, I will disregard this evidence.

[30]        
Turning to his relevant recollections, he testified that he had been
travelling southbound in the centre lane for about the previous three or four
miles before approaching the intersection with 203rd. He did not recall
specifically looking at his speedometer but believed that he was still going at
the same speed that he had been — 40 to 50 km/h. The light was green in his
direction as he approached and when he was 20 to 30 feet away he noticed a car,
which ultimately turned out to be Mr. Sam’s in the left-turn lane facing
him. The light was green for him and he entered the intersection accordingly. As
he crossed the stop line, he saw the light for him turn yellow and he continued
in an attempt to go through. He neither braked nor accelerated upon the light
changing. He thought he would go through the intersection, I infer based on the
position he was already in relative to it.

[31]        
The next thing he knew the impact had occurred. He was not able to avoid
it because he had not been expecting it. The collision took place at the speed at
which he had been travelling and he ended up in a resting position, which he
thought was 30 to 40 feet away.

[32]        
In cross-examination he denied that at the point he saw the light
changing to green it would no longer have been in his peripheral field of
vision and that he would have had to look up to see it, something that given his
version of events there would have been no reason to do at that point. He
maintained that the light was still in front of him. He also clarified that he
was three or four car lengths from the intersection when he saw the car ahead
of him waiting to turn left and that his SUV was eight or nine feet long.

3.              
Discussion

[33]        
The provisions governing the right-of-way of vehicles in this kind of
situation are ss. 128(1)(a) and 174 of the Motor Vehicle Act

[34]        
Applied to the circumstances of this case, s. 128(1)(a) requires a
driver to stop his vehicle before entering the crosswalk when a yellow light is
shown "unless the stop cannot be made safely."

[35]        
Section 174 requires a driver turning left to yield to oncoming traffic
that is in the intersection or so close as to constitute an "immediate
hazard." However, once the driver has yielded in this manner he may then
make his left turn, at which point further approaching traffic must yield to
him.

[36]        
It is well-known that an approaching vehicle is an immediate hazard if
it is so close to the intersection that its driver must take some sudden or
violent action to avoid the threat of a collision if the vehicle in front of it
attempts to make the left turn: Raie v. Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.).

[37]        
In addition, the driver who has the right-of-way, often described in the
cases as the dominant driver, is entitled to assume in general that servient
drivers will obey the rules of the road. He or she does not have to anticipate
every possible type of risk that might be posed by the other driver’s poor
driving: Kokkinis v. Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.).

[38]        
Only if the dominant driver had a sufficient opportunity to avoid such a
risk after it arose will he or she share any portion of liability: Walker
v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.).

[39]        
These provisions can be read together in the context of the present case
as meaning, first, that if there was no immediate hazard posed by oncoming
vehicles, because in his reasonable view they were all slowing down or stopping,
Mr. Sam was entitled to make his left turn. There being no immediate
hazard, Mr. Corona must necessarily have been able to stop in safety on
the yellow light before the intersection. A finding that Mr. Corona had
slowed down and then gone through the intersection anyway could also be seen as
a kind of bad driving behaviour beyond that which Mr. Sam was reasonably
required to anticipate.

[40]        
Conversely, if Mr. Corona was in or so close to the intersection
when the light went yellow that the stop could not be made in safety, which is
his version of the events, it follows that Mr. Sam would not have yielded
to an immediate hazard as required and should not have made his left turn. Again,
if he was in possession of the right of way on this version of events, Mr. Corona
would not be expected to prepare for an improper left turn taking place
directly in front of him.

[41]        
Of course the statutory duties assist me in identifying the existence
and potential breach of a duty of care, but they are not conclusive in themselves
of a finding in that regard.

[42]        
I should say at the outset that I could not find that any of the
discussions about the accident that took place between Mr. Sam and Mr. Kelly
have influenced the content of either one’s evidence in any way. Obviously the relationship
between a party and a witness called in support of his case must always be
looked at with care, but there is no presumption that a friend or relative will
not testify truthfully or that the two must inevitably have cooperated with
each other in giving their evidence. It all depends on an analysis of the
content and quality of the evidence that each gives, including the presence of
any implausible degree of similarity between their evidence.

[43]        
Here, both witnesses admitted freely to some limited conversation about
the facts of the case, including the live issues of what the light was, but
none of it seemed to me to go beyond what would normally be expected in view of
their relationship and the experience they had had together in sustaining the
accident. I found their complete lack of defensiveness on this point quite
telling. Indeed, I would have been more suspicious if they claimed that the
topic had never been broached between them.

[44]        
Perhaps the strongest refutation of any suggestion of collusion is that
their direct evidence differed on a critical point (whether the Corona SUV came
to a stop or just slowed down before accelerating through) in a way that tends
to undermine Mr. Sam’s version of events somewhat. It was only in
cross-examination that Mr. Kelly was induced to downgrade the speed of the
Corona vehicle as being approaching a stop, or in the neighbourhood of 10 km/h,
which was closer to Mr. Sam’s account. More crucially, Mr. Kelly has
the left turn being made on a stale yellow light, something that contradicts Mr. Sam’s
description of turning after the red, and tends to make Mr. Sam’s legal
position more vulnerable. Put simply, if they are supposed to have cooked up
their evidence together to benefit Mr. Sam’s case because of their close
connections, they did an extremely poor job of it and ended up assisting Mr. Corona.
As a result, I reject that suggestion.

[45]        
Although Mr. Sam gave his evidence in a completely straightforward
way, certain critical parts of it struck me as implausible. It did not make
sense to me that the Corona SUV would come to, or virtually to, a stop and then
accelerate into the intersection from a point only a short distance from Mr. Sam’s
car. This would be inconsistent with anything in the range of poor driving
judgment that forms the usual work of these courts, in ordinary human
experience. It would be suggestive instead of a kind of bizarre and highly
dangerous behaviour. Hesitation by a driver, even slowing, followed by a
decision to proceed through an intersection, is quite a familiar phenomenon,
but that is not what Mr. Sam described.

[46]        
I could also see nothing about the configuration of the rear portion of
the Corona SUV in the photos that would have made his brake lights visible to Mr. Sam,
as he claimed they were when it was approaching him, head on and in broad
daylight.

[47]        
However, in the absence of any evidence of how quickly a vehicle can
accelerate in the distance between the two vehicles that he described, or the
ability of a collision at such a speed to inflict the damage observed and move
the vehicles to their resting places, I do not feel comfortable rejecting his
version of events on the basis of its supposed inconsistency with the damage
and the resting positions, as suggested by counsel for Mr. Corona.

[48]        
Taken as a whole, despite what I found was a sincere attempt to describe
the events accurately, I did not consider Mr. Sam’s evidence in itself to
provide a sufficiently reliable basis for finding that there was no immediate
hazard posed by Mr. Corona’s SUV when he turned. I accept that Mr. Sam
had the general perception that it was safe to make his turn and that the
Corona SUV did something that he did not anticipate. Beyond that it does not
appear to me that he observed or can describe matters accurately enough to do
anything more than work backwards from that perception and try to piece
together what occurred, as best as he now recalls it.

[49]        
I found Mr. Kelly’s evidence to be more reliable. It had a matter-of-fact
and natural quality that suggested a person recalling actual events. By this I
do not mean according to his demeanour alone, which counsel for Mr. Corona
correctly emphasizes should always be considered with caution, but mainly in
the substance of his narrative. His description of the Corona vehicle slowing
and then accelerating captures a kind of driver indecisiveness in the face of a
changing light, when the driver considers himself to be in no man’s land, that
one can envision actually occurring. This contrasts to Mr. Sam’s description
which, as I have said, is difficult to envision.

[50]        
Mr. Kelly’s description of them turning on a stale amber light also
made sense in this context, because it accords with the perception that he
attributes to Mr. Sam that it was safe to turn at that point, rather than
having to wait for the red light to clear the intersection.

[51]        
There were also shortcomings in his evidence. Like Mr. Sam he
claimed to have seen the brake lights of the Corona SUV go "on the
side" when, as I have said, it is difficult to see how this could have
been seen from his vantage point.

[52]        
His claim also to have seen the front end of the SUV go down, which I
infer was another indication to him that it was slowing, was not challenged,
but I am unable to assess its plausibility as an indicator based on ordinary
human experience because such vehicle dynamics are not universally known and
accepted, although I accept that for a knowledgeable person it may be correct.

[53]        
I was also not able to understand his explanation that Mr. Corona’s
actions should be described as blowing the red light, which he described as
meaning slowing down and then going through, given his earlier evidence about
the turn taking place on a stale amber.

[54]        
Lastly, as I have already said, he gave quite a bit of ground on
cross-examination and ended up accepting suggestions about the speed of the
Corona SUV and how close it came to stopping before accelerating. It brought
him a lot closer to Mr. Sam’s less plausible description than he seemed to
be in his direct evidence.

[55]        
Mr. Corona’s version of events was quite basic and did not contain
any obvious logical gaps or inconsistencies. He was somewhat defensive in
cross-examination, tending simply to assert that the questioner was wrong
without giving any explanation of what the accurate alternative to the
suggestion being made would have been. I could not tell whether this reflected
any lack of confidence in his story or it was simply a personal characteristic.
His basic assertion that he had approached the intersection at a consistent and
unvarying speed was not undermined. The strongest attack on his evidence was
the suggestion that by the time he reached the stop line he could not have seen
what colour the light was without looking up, and that he would have had no
reason to do look up if it had still been green.

[56]        
Once again, Mr. Corona’s flat denial was not very informative and
the suggestion initially struck me as a possible major flaw in his testimony.

[57]        
On reflection however, there is simply no evidence about the configuration
of Mr. Corona’s vehicle and the resulting driver’s position and view ahead
as one approaches this intersection, of a kind that would allow me to conclude
that the light would have stopped being visible to a straight-ahead view at any
particular point. Of course, as a matter of common sense, the angle obviously
becomes too acute at some point for any such view of the light, but we do not
know when that point would have been reached.

[58]        
Absent any implausibility arising from that point, I am left with no basis
on which to reject Mr. Corona’s evidence of what occurred or to prefer
another version.

[59]        
Of course, as we remind civil juries, it is not the number of witnesses
who testify on behalf of each party that determines the outcome of a case, but rather
the weight that the trier of fact ultimately is able to attach to the evidence
of each witness. As I have said earlier, I cannot base a finding of liability
on Mr. Sam’s evidence alone. I would be inclined to accept Mr. Kelly’s
description of events, but when I set it against Mr. Corona’s I cannot
identify any intellectually honest basis to prefer one to the other on the
critical point on which they differ — whether the Corona SUV slowed and
accelerated again, or proceeded through at a constant speed.

[60]        
On the state of the light at the collision they are not far apart at all.
Obviously one or both of the drivers here misjudged how safe it was to proceed
as they did. But I lack the baseline reliable facts from which to have assigned
legal responsibility to either party without engaging in impermissible
speculation.

[61]        
It is true that judges must not shirk from difficult factual findings,
but there are also cases of inconclusive evidence that end up resolving on
which party bears the burden. The burden on Mr. Sam here is to prove
liability on a balance of probabilities and since I am unable conclusively to
resolve that issue in his favour, he has not met his burden and the action must
be dismissed, with costs to the defendant.

The
Honourable Mr. Justice T.A. Schultes