IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130315

Docket: M063365

Registry:
Vancouver

Between:

Stephen Jones

Plaintiff

And

Debra Lynn Treloar
and
Caduceus Physiotherapist Corporation

Defendants

Before:
The Honourable Madam Justice Kloegman

Reasons for Judgment

[1]            
While driving his Harley Davidson V-Rod motorcycle across the
intersection of Georgia Street and Broughton Street in Vancouver, the plaintiff
was struck by a Ford Windstar minivan driven by the defendant Debra Treloar and
owned by Caduceus Physiotherapist Corporation (collectively, the “defendants”).
The plaintiff’s right leg was severely injured and it took about nine months to
heal. He claims $115,000 for non-pecuniary damages and over $2 million for loss
of the opportunity to earn income, both in the past and in the future.

[2]            
Unfortunately for the plaintiff, and for the reasons that follow, I
cannot find the defendant to be negligent in any way. I find that the plaintiff
was the author of his own misfortune that fateful day, and is wholly liable for
the accident.

[3]            
The day of the accident, August 1, 2005, was a holiday Monday. The
weather was clear and warm. There were three lanes of traffic travelling west
on Georgia and three lanes travelling east. Broughton had one lane of traffic for
north travel and one lane for south travel. There was a stop sign and stop line
on Broughton at the southeast corner of the intersection. On the east side of
the intersection there was a pedestrian crosswalk across Georgia. This crosswalk
was controlled by a flashing light. The parties agree that throughout the
material time the light was flashing green and never changed.

[4]            
The traffic that day was congested, particularly in the westerly
direction. Cars were jutting over the crosswalk into the intersection, but
there was a corridor for travel from Broughton across Georgia.

[5]            
The plaintiff testified that he was stopped on his motorcycle at the
stop sign on Broughton, facing north. The traffic moving eastbound on Georgia was
held up at the light to the west, so the eastbound lanes were clear in front of
him. The westbound lanes on Georgia were “plugged,” but the gap in the intersection
was about four cars wide. He said he had a clear view of the intersection.

[6]            
The plaintiff says he eased out his clutch on the motorcycle, revved it
mildly, pulled in the clutch to give momentum, and started to cross the first
two eastbound lanes of Georgia. Then he crossed the first and second westbound
lanes of Georgia, but as he approached the third, or curb lane of Georgia, he
saw a motor vehicle which hit his leg and the rest of his motorcycle. He did
not slow down his motorcycle; he was going at a constant speed.

[7]            
He could not say what kind of motor vehicle hit him. All of a sudden it
was there and its bumper hit his right leg just above the ankle. He bounced
onto the hood of the vehicle and back off into the intersection. He came to
rest near a corner of the intersection facing Coal Harbour. He was still on
Georgia but close to the curb.

[8]            
On cross-examination he said he was somewhat familiar with the
intersection and had travelled it before. He knew there was a pedestrian cross
button at the crosswalk which, if he had pressed it, would have caused the
traffic light on Georgia to turn red. He did not press the button because he
did not consider himself to be a pedestrian, and his bike weighed about 600
pounds which made it difficult to move over to press the button.

[9]            
Also on cross-examination, he likened his position to a four-way stop
and said he decided to cross Georgia when he believed it was his turn. All the
cars had stopped in the other directions. The intersection was completely open
and free for him to go at that point. As he moved through the eastbound lanes
to the middle lane of Georgia, he looked left and right, then he just looked to
his right. When he looked to his right he had a 30 degree angle peripheral
vision. His vision of the westbound curb lane was obscured by cars in the
inside and middle lanes. He did not slow down before entering the curb lane. He
did not look to the right to look for vehicles. He did not expect a vehicle to
be coming through the curb lane. He did not crane his neck around to see if
anything was coming through the curb lane.

[10]        
On his examination for discovery he said he thought the westbound
traffic on Georgia condensed into two lanes and the curb lane was a parking
lane. At trial he denied believing that the curb lane was a parking lane. He
said he knew cars parked there but at the time of the accident he did not think
of whether the curb lane was a parking lane or not. He did not see any cars
parked or stopped in the curb lane. He just thought of going through the intersection.

[11]        
He estimated his speed as he crossed the intersection to be 10 or 15
kilometres per hour. He admitted he was not looking at the speedometer. He said
his speed remained constant after acceleration, i.e., the same as the peak of
his acceleration, whatever that was. He said from the time his bike entered the
westbound curb lane, the collision was instantaneous.

[12]        
The defendant testified that she was heading out with her daughter to
catch either one of two Langdale ferries from Horseshoe Bay and she was not in
a hurry. She had planned to go through Stanley Park or the causeway, depending
on the traffic. She said initially the traffic on Georgia was not bad. She had
to stop at the light at Jervis. She was in the middle lane westbound. The light
turned green and she crossed Jervis and saw more traffic in the westbound
lanes. Two cars were parked on the curb lane past the Jervis intersection, but
the HOV lane was clear past that so she made a decision to take it. She moved
into the HOV, or curb lane, halfway down the block between Jervis and
Broughton. No cars were immediately in front of her. Two cars were stopped
further ahead at the lights at the intersection of Nicola and Georgia. The
middle lane beside her was backed up and the center lane beside it even more
so. She had the impression that cars were rolling forward one at a time.

[13]        
She said she was not in a rush approaching Broughton, which had a
pedestrian light flashing green. She was not looking at her speedometer, but
she was looking about and was very aware that it was busy. She did not increase
her speed as she moved from the middle lane to the curb lane. As she came
towards Broughton, a car in the middle lane beside her was stopped, poking
through the intersection. She had a clear memory of looking at the north side
of the intersection and seeing no pedestrians at the crosswalk. She said she
could have stopped if the flashing green light had turned amber. At no time was
she going so fast that she did not have control of her vehicle with the
information she was processing about her environment.

[14]        
The car beside her in the middle lane was encroaching into the
intersection about two feet. When she had passed slightly in front of this car,
the plaintiff’s motorcycle suddenly appeared in her path. She had not seen it
before. The moment she saw the motorcycle she braked, but they crashed. At
first she was not sure what she had hit; later she learned it was a motorcycle.
Something hit the windshield, she did not know what. Later she learned it was the
plaintiff. Her minivan hit the motorcycle dead on center.

[15]        
On cross-examination she testified that she felt she was going
relatively slowly, under the speed limit. She said she was aware that cars could
cross the intersection from Broughton. On discovery she said she was aware of
the possibility of vehicles crossing the intersection when the light was red.
At trial she admitted she knew cars might cross even if the light had not
turned red.

[16]        
She said she felt established in the curb lane, she was not driving
quickly and she felt sure she had proceeded safely.

[17]        
The best evidence came from an independent eye witness to the accident,
Mr. Cornelius Zandbergen. He was driving on Georgia, returning home to
West Vancouver. He was standing still in traffic, westbound, waiting to get
across the Broughton intersection. It was very busy westbound, but not
eastbound.

[18]        
Mr. Zandbergen was driving a Ford F350. It was a raised, large truck. He
was in the center westbound lane behind one other car. There were vehicles to
his left but the right lane was empty. His lane and the lane to his left were
plugged, that is, they had a green flashing light and were allowed to proceed,
but could not because traffic was congested on the other side of the
intersection. There were cars jutting into the intersection with maybe two
wheels over the crosswalk line, but there was a corridor north and south.
Westbound cars were moving car by car through the intersection.

[19]        
Mr. Zandbergen testified that to his left there was a vehicle indicating
a desire to make a left turn onto Broughton, which he eventually did. At the
same moment as the vehicle turned left, the plaintiff’s motorcycle revved up
and went across the intersection. Mr. Zandbergen thought if the motorcycle
was going to cross all the lanes he better be careful. Mr. Zandbergen glanced
over his right shoulder to see if the curb lane was still empty when he saw the
minivan “going not all that fast” through the intersection. Instantly
thereafter the accident happened.

[20]        
Mr. Zandbergen said he was under the impression that when the plaintiff
made his turn, the plaintiff made eye contact with the person driving the
left-turning vehicle. The left-turning vehicle cut the corner a bit short to
give the plaintiff more room to enter the intersection, and the plaintiff
“bowed” round the vehicle.

[21]        
Mr. Zandbergen said the defendant was “just gently driving through the
intersection,” but he expected trouble because of when the motorcycle went
across.

[22]        
With regard to speed, Mr. Zandbergen testified that the motorcycle was
in a stopped position when he first saw it. The motorcycle’s speed increased
from the time it left the stopped position right up until the point of impact
with the defendant’s car. It did not slow down as it approached the westbound
lanes; it was in constant motion. He gave a statement at the time of the
accident estimating the speed of the motorcycle as 40 kilometres per hour. On
his deposition he said it might have been only 30 kilometres per hour, but the
motorcycle was definitely going faster than the minivan. Mr. Zandbergen
estimated the speed of the defendant’s minivan as 20 kilometres per hour.

[23]        
When asked if he could estimate how much time elapsed between the time
the motorcycle moved away from its stopped position to the time of the accident,
Mr. Zandbergen said, “He revved up. He did not look at the traffic
anymore. He went across all the lanes until he got hit.” The plaintiff did not
signal his horn, or flash any lights, he just went straight through. Mr.
Zandbergen estimated that the accident occurred within two seconds of the
plaintiff entering the intersection.

[24]        
The plaintiff conceded that he was negligent in failing to ascertain
that his movement into the curb lane on Georgia could be made in safety.
However, he submits that the defendant was also negligent for failing to slow
her vehicle so as to be able to stop and avoid an accident. The plaintiff
relies on ss. 131(5), 186 and 195(1)(b) of the Motor Vehicle Act, R.S.B.C.
1996, c. 318, and the common law prohibition against driving at a speed that is
excessive in the circumstances.

[25]        
The speed of both vehicles is an important consideration in determining
whether the defendant was in breach of ss. 131(5) or 186 of the Motor
Vehicle Act, and ultimately whether she breached the standard of care of a
reasonably prudent driver in the circumstances.

[26]        
I accept the defendant’s evidence that she was travelling relatively
slowly, had full control of her vehicle and could have stopped if the flashing
green light had changed colour, or if she had seen a pedestrian at the
crosswalk. I found the defendant to be a straightforward, reliable witness
whose evidence was relatively uncontradicted. The pertinent aspects of her
testimony were corroborated by Mr. Zandbergen, also a reliable witness. I
accept his estimate of the defendant’s speed as 20 kilometres per hour.

[27]        
I found the plaintiff’s evidence to be less reliable, and where it
contradicts that of Mr. Zandbergen or the defendant, I prefer the evidence of
the latter two witnesses.

[28]        
The plaintiff made a significant previous inconsistent statement. On
discovery, he stated under oath that:

Q         As you were stopped then what observations did
you make of the westbound traffic on Georgia?

A          It was very
dense. I guess somewhat with my familiarity they were condensed into two lanes
of traffic because the third lane is parking, so because there were cars
actually parked in the far lane so you know that the traffic is condensed into
the two lanes.

At trial, he said he was “surprised” that he had said
that on discovery; at the time of the accident he did not think he thought of
whether the curb lane was for parking or not.

[29]        
When testifying, the plaintiff omitted to disclose or failed to remember
the left-turning driver, whom he acknowledged and around whose vehicle he traversed
as he crossed the intersection.

[30]        
The plaintiff’s initial evidence with regard to the time he spent in
Toronto and Vancouver during the first six months of his recuperation was
hopelessly inaccurate, as shown by his own receipts submitted for special damages.
His evidence with regard to his physical rehabilitation changed during the
course of trial, leaving an unsatisfactory impression of vagueness. Similarly
his evidence on income loss changed according to his theory of damages, and was
difficult to pin down.

[31]        
In drawing the above observations, I am not finding that the plaintiff
was deliberately misleading the court. The difficulty with his evidence appears
to stem from the analysis and reconstruction he imposed on any actual
recollection he may have stored.

[32]        
Therefore, I do not accept the plaintiff’s evidence that he was
travelling no more than 10 or 15 kilometres per hour across the intersection. I
accept Mr. Zandbergen’s estimate of the plaintiff’s speed as being in the
range of 30 or 40 kilometres per hour. I also accept Mr. Zandbergen’s
evidence that only a couple of seconds had passed between the time the
plaintiff left the stop sign and the collision.

[33]        
In my view, the evidence established on a balance of probabilities that
the defendant was the dominant driver in the circumstances, and enjoyed the
right of way as she entered the intersection.

[34]        
The plaintiff was entering in the intersection from a side road with a
stop sign. By virtue of ss. 186 and 175 of the Motor Vehicle Act, he had
a duty to yield the right of way to traffic on Georgia and cross the
intersection only if the intersection was clear of immediate hazards.

[35]        
An “immediate hazard”, in this context, has been defined in Keen v.
Stene, 44 D.L.R. (2d) 350 at 359 (B.C.C.A.):

An approaching car is an
immediate hazard if the circumstances are such as to require the driver of that
car to take some sudden or violent action to avoid threat of a collision if the
serviant driver fails to yield the right of way.

[36]        
Speed and distance generally determine what constitutes an immediate
hazard: Peek v. S. Cunard & Co. (1958), 40 M.P.R. 236 at 241
(N.S.C.A.). Distance must be translated into time in order to determine what
are the rights of the parties: Swartz Bros. Ltd. v. Wills, [1935] S.C.R.
628 at 632.

[37]        
It is important to note that it is the “threat” of accident which is
relevant to determining whether a dominant driver is an immediate hazard: Knight
v. Li, 2011 BCSC 184.

[38]        
The defendant was so close to the intersection that she entered it
within two seconds of the plaintiff leaving the stop sign. Mr. Zandbergen
thought the plaintiff better be careful going around the left-turning driver
and trying to cross all lanes of traffic, because when Mr. Zandbergen looked to
the lane beside him, the defendant’s minivan was entering the intersection.

[39]        
The plaintiff argued that he had a significant prior entry into the
intersection and the curb lane on Georgia before the collision. Therefore, he
submitted, he had gained the right of way and the defendant was negligent in
failing to yield to him.

[40]        
The difficulty with this submission is that the plaintiff’s entry into
the intersection, prior or not, was made imprudently without care and attention
and at a time when the defendant and her vehicle constituted a threat of
collision. It appeared that the plaintiff did not appreciate the immediate
hazard of the defendant’s vehicle. His focus was on going around the
left-turning vehicle. His view of the curb lane was obscured and he accelerated
rapidly across the intersection without slowing down.

[41]        
Notwithstanding that the Motor Vehicle Act gives the defendant the
right of way as dominant driver, there is still a duty on her to avail herself
of any sufficient opportunity to avoid an accident if she was aware, or should
have been aware, of the serviant driver’s own disregard of the law. Any doubt
is to be decided in favour of the defendant: Walker v. Brownlee, [1952]
2 D.L.R. 450 (S.C.C.). Drivers are generally entitled to assume that others
will obey the rules of the road. A dominant driver is not obliged to take
extraordinary steps to avoid an accident or to show exceptional proficiency in
the operation of a motor vehicle: Salaam v. Abramovic, 2010 BCCA 212.

[42]        
I find that the defendant was not afforded a reasonable opportunity to
see, perceive or react to the sudden appearance of the plaintiff in her path.
Although she was able to see the crosswalk and any potential change to the
flashing green light, her view of the plaintiff’s motorcycle was obstructed by
other traffic. In Pacheco v. Robinson (1993), 75 B.C.L.R. (2d) 273
(C.A.), Legg J.A. said when each party’s vision of the other is blocked by
traffic, the dominant driver who is proceeding through the intersection is
generally entitled to continue and the serviant driver must yield the right of
way. Pacheco was a left-turning case, but I see no reason why the
principle should not apply here.

[43]        
Similarly, the Supreme Court of Canada in Mathieson v. Thompson,
[1953] 2 D.L.R. 604 at 614, citing Scott L.J. in Joseph Eva Ltd. v. Reeves (1938),
2 K.B. 393 at 405, stated:

…all traffic regulation has two
main purposes, the first to insure safety and the second to promote the free
circulation of traffic. To hold that the driver of the vehicle on a through
highway who is proceeding on the right-hand side of the centre line of the road
and at a reasonable rate of speed must, on approaching an intersection where
his view to the left is obstructed, proceed on the theory that a driver may
emerge from his left into his path in total disregard of the statutory rule
would tend towards the paralysis of traffic rather than to the promotion of its
free circulation.

[44]        
The duty on the defendant was to exercise due care and attention in the
circumstances. The plaintiff says, in circular fashion, that the defendant failed
to do so because she failed to slow down enough to avoid an accident.

[45]        
I find that the defendant was travelling at a reasonable speed and
certainly slow enough to stop in ordinary circumstances. However, she was not
able to avoid the extraordinary circumstance of the plaintiff’s obscured
motorcycle bolting across the intersection at excessive speed from a stop sign
where it was supposed to have rested until safe to enter the intersection.

[46]        
The cases upon which the plaintiff relies to establish shared liability
of the defendant are cases where either the driver in the situation of the
defendant here did not constitute an immediate hazard, or was travelling at
excessive speed, or was impaired. None of these factors exist in the case
before me.

[47]        
In my view, the defendant had the right of way, she did nothing to
forfeit that right of way, she was driving reasonably and prudently in the
circumstances and could not reasonably avoid hitting the plaintiff.

[48]        
Thus I dismiss the plaintiff’s claim with costs.

“Kloegman
J.”