IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130410

Docket: M114285

Registry:
Vancouver

Between:

Nada
Wattar

Plaintiff

And

Haoran
Lu and Nissan Canada Inc.

Defendants

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
The plaintiff’s and the defendant’s cars collided at the intersection of
First Avenue and Rupert Street in Vancouver on January 6, 2010. Both liability
and damages are in issue. The parties agree that they collided as the plaintiff
was driving through the intersection and the defendant was making a left turn. They
agree on very little else.

[2]            
First Avenue runs east to west. For eastbound traffic, the intersection
with Rupert Street is the last one before an entrance to Highway One. At
approximately 6:30 p.m., the plaintiff was driving east on First Avenue toward
the northbound highway entrance. The defendant had been going west on First
Avenue and was making a left turn to go south on Rupert Street.

[3]            
There were three eastbound lanes entering the intersection and a median
strip separating eastbound and westbound traffic. The plaintiff testified that
she was in the lane nearest the centre median and entered the intersection just
as the traffic light facing her turned from green to yellow. She said she was
aware that the defendant’s car was waiting to make a left turn, but as she went
through the intersection the defendant made the left turn and hit her car in
the front bumper, pushing it to the south side of the intersection near the
crosswalk on Rupert Street.

[4]            
The defendant believes that the plaintiff was in the curb lane and
entered the intersection on a red light. Although he didn’t see the plaintiff’s
car before the collision, he testified that he entered the intersection on a
green light but had to stop because of oncoming traffic. He said he then saw
the light turn red and saw other vehicles stopped in both the inner and middle
eastbound lanes. The defendant said he checked quickly over his left shoulder,
began his turn and had almost completed it–to the point that his car was
entering Rupert Street–when the collision occurred. He agrees with the
plaintiff that both vehicles were on the south side of the intersection after
the collision.

[5]            
The accident occurred at a major intersection at a time when one would
expect there to have been at least some other traffic, if not heavy traffic. It
is surprising that neither party was able to call independent witnesses.

[6]            
The plaintiff and the defendant have each honestly attempted to describe
the accident as they remember it, but their evidence must be approached with
caution. A motor vehicle accident, by its very nature, happens quickly and
without warning. In the moments leading up to it, drivers are not making
careful observations of speed, distances or the precise location of other
vehicles. Their evidence is likely to include at least some reconstruction
based on what they think happened, rather than what they actually saw.

[7]            
When the court must determine which of two conflicting accounts is more
likely to be accurate, the most reliable guide is consistency with what little
objective or undisputed evidence exists. The most important such evidence in
this case is the damage shown in photographs of the two vehicles. Those
photographs show extensive damage across the front of the plaintiff’s car and damage
to the defendant’s car on the right side, mostly ahead of the front wheel.

[8]            
That pattern of damage clearly indicates that the defendant’s vehicle
was facing south at the time of impact, indicating that it was well into the
left turn and was struck by the front of the plaintiff’s car. Both parties
testified that, after the collision, the vehicles were on the south side of the
intersection in the vicinity of the crosswalk on Rupert Street. There is no evidence
of any impact to the side of the plaintiff’s vehicle or of any impact likely to
have pushed it sideways.

[9]            
The vehicle damage and the position of the vehicles after the collision
is therefore not consistent with the plaintiff’s evidence that she entered the
intersection from the inner lane and is more consistent with the defendant’s
assertion that she was in the curb lane. I find, on a balance of probabilities that
she was in the curb lane.

[10]        
However, I cannot accept the defendant’s evidence that he had reached
the Rupert Street crosswalk by the time of the collision. If he had gone that
far, the damage would have been further back on his vehicle. If one notionally
extends the lane markings through the intersection, I find that the front of
the defendant’s vehicle had just entered the extension of the curb lane. In
other words, he had turned in front of two oncoming lanes and began to cross in
front of a third without seeing the car that was approaching in that lane.

[11]        
The defendant is unlikely to have completed even that much of his turn at
such a major intersection at that time of day if traffic in the first two lanes
that he crossed had not stopped. He testified that there were vehicles stopped
in those lanes and I find that his failure to see the plaintiff was consistent with
his view being blocked by those stopped vehicles.

[12]        
The fact that vehicles had stopped and the defendant was able to turn in
front of the first two lanes is inconsistent with the plaintiff’s assertion
that she entered the intersection on a green light. I find that when she
entered the intersection in the curb lane, it is more likely than not that the
light had at least turned yellow, if not red.

[13]        
The defendant said that before completing his turn, he looked over his
left shoulder to see if there was any hazard. If, as he testified, the light
had already turned red, it would have been more reasonable for him to be
concerned about approaching southbound traffic from his right. In any case, he
was not focussing completely on oncoming traffic and I find that to be a
further reason, in addition to the stopped eastbound vehicles, that the
defendant did not see the plaintiff.

[14]        
The duty of a driver making a left turn is described in s. 174 of
the Motor Vehicle Act, R.S.B.C. 1996, c. 318, which states:

When a vehicle is in an
intersection and its driver intends to turn left, the driver must yield the
right of way to traffic approaching from the opposite direction that is in the
intersection or so close as to constitute an immediate hazard, but having
yielded and given a signal as required by sections 171 and 172, the driver
may turn the vehicle to the left, and traffic approaching the intersection from
the opposite direction must yield the right of way to the vehicle making the
left turn.

[15]        
The case law dealing with such situations frequently describes the
driver travelling straight through the intersection as the “dominant” driver
and the left turning driver as the “servient driver”. In Pacheco (Guardian
ad litem of) v. Robinson (1993), 75 B.C.LR. (2d) 273 (B.C.C.A.), the Court
of Appeal said at para. 15 that a driver making a left turn “has an
obligation not to proceed unless it can be done safely.” The Court added at
para. 18:

In my opinion, when a driver in a
servient position disregards his statutory duty to yield the right of way and a
collision results, then to fix any blame on the dominant driver, the servient
driver must establish that after the dominant driver became aware, or by the
exercise of reasonable care should have become aware, of the servient driver’s
own disregard of the law, the dominant driver had a sufficient opportunity to
avoid the accident of which a reasonably careful and skilful driver would have
availed himself. In such circumstance any doubt should be resolved in favour of
the dominant driver…

[16]        
The characterization of drivers as dominant or servient defines who has
the right of way, but is not necessarily conclusive in determining negligence. In
Nerval v. Khera, 2012 BCCA 436, the Court of Appeal said, at
paras. 33-35:

The principles laid down in Pacheco lead to the
conclusion that the starting point of the analysis is that when a left turning
driver is assessing making a left turn in an intersection he or she must yield
the right of way to oncoming traffic unless it is not an immediate hazard. Describing
a driver as dominant means no more than that driver has the right of way,
whereas the servient driver has the obligation to yield the right of way. The
obligation imposed by s. 174 on the left turning vehicle is that it “must yield
the right of way to traffic approaching from the opposite direction that is in
the intersection or so close as to constitute an immediate hazard”. A left turn
must not be commenced unless it is clearly safe to do so. If there are no
vehicles in the intersection or sufficiently close to be an imminent hazard,
the driver may turn left and approaching traffic must yield the right of way. In
other words, if a left turning driver complies with his or her obligation only
to start the left turn when no other vehicles are in the intersection or
constitute an immediate hazard, then the left turning driver assumes the
relationship of being the dominant vehicle and approaching vehicles become
servient and must yield the right of way.

As observed in Salaam v. Abramovic, 2010 BCCA 212 at
para. 33, the words “immediate hazard” are “used to determine when a vehicle
may lawfully enter an intersection. They determine who is the dominant driver,
but do not, by themselves, define the standard of care in a negligence action.”

The effect of s. 174 is to cast the burden of proving the
absence of an immediate hazard at the moment the left turn begins onto the left
turning driver. This result flows inevitably from the wording of the section
itself, given the nature of the absolute obligation the section creates. If a
left turning driver, in the face of this statutory obligation, asserts that he
or she started to turn left when it was safe to do so, then the burden of
proving that fact rests with them.

[17]        
The court added at para. 38 that the dominant driver may still be
in breach of his or her common law or statutory obligations and may be at even
greater fault than the servient driver.

[18]        
The other relevant sections of the Motor Vehicle Act are those
governing yellow and red lights. Section 128 (1) (a) says:

(1) When a yellow light alone is exhibited at an
intersection by a traffic control signal, following the exhibition of a green
light,

(a) the driver of a vehicle approaching the
intersection and facing the yellow light must cause it to stop before entering
the marked crosswalk on the near side of the intersection, or if there is no
marked crosswalk, before entering the intersection, unless the stop cannot be
made in safety.

Section 129 (1) says:

(1) Subject to subsection
(2), when a red light alone is exhibited at an intersection by a traffic
control signal, the driver of a vehicle approaching the intersection and facing
the red light must cause it to stop before entering the marked crosswalk on the
near side of the intersection, or if there is no marked crosswalk, before
entering the intersection, and subject to the provisions of
subsection (3), must not cause the vehicle to proceed until a traffic
control signal instructs the driver that he or she is permitted to do so.

[19]        
I have found that the plaintiff entered the intersection on either the
yellow or the red light. In either case, her duty was to stop before entering
the intersection unless the light was yellow and she could not have stopped
safely.

[20]        
A driver who enters an intersection on a yellow light has the onus of
proving that he or she was unable to stop safely in all the circumstances: Ziani
v. Thede, 2011 BCSC 895 at para. 26. The plaintiff in this case has
made no attempt to discharge that onus. She asserted that she entered the
intersection on a green light and I have not accepted that evidence.

[21]        
Therefore, the plaintiff can no longer claim to have been the dominant
driver. She was obliged to stop and yield the right of way to the left-turning
vehicle. But the fact that the defendant became the dominant driver does not
end the matter. His obligation under s. 174 of the Motor Vehicle Act to
make the turn only if he could do so safely remained in force, and he clearly
attempted to complete the turn before he determined whether there was
approaching traffic in the curb lane or whether any such traffic had stopped.

[22]        
I therefore conclude that accident was caused by the failure of both the
plaintiff and the defendant to meet the standard of care required of reasonable
drivers in the circumstance. I cannot, in the circumstances, say that the
negligence of one was any greater than that of the other and I apportion
liability 50 per cent to the defendant and 50 per cent to the plaintiff.

Damages

[23]        
At the time of the accident, the plaintiff was a 17-year old, grade 12
student. Following the accident, she said she suffered from pain in her neck
and low and mid back, along with headaches.

[24]        
The plaintiff saw her family physician, Dr. Schwarz, the day after the
accident. He noted bruising in the chest and shoulders as well as reduced range
of motion in the neck and diagnosed a whiplash injury. She saw Dr. Schwarz on
two further occasions in January. On the second of these, on January 28, Dr.
Schwarz recorded a complaint of back pain.

[25]        
The plaintiff testified that her pain continued and she was unable to do
household chores. She also said she was depressed and lacked motivation, that
she stopped socializing with friends and wanted to be in her bedroom all the
time.

[26]        
She did not see Dr. Schwarz again until April 26. On that date, as well
as on May 17, she complained of low back pain, stress, flashbacks of the
accident and difficulty sleeping. Dr. Schwarz thought she had post-traumatic
stress disorder as a result of the accident and recommended counseling, which
the plaintiff did not seek.

[27]        
The plaintiff testified that her school work suffered and she was only
barely able to graduate from high school in June 2010. She said there was
little change in her physical or mental state through the fall of 2010. Although
she enrolled at Capilano University in September 2010, she was unable to focus
on or take any interest in her studies and she never even bothered to find out
if she passed her courses during that fall term.

[28]        
The plaintiff’s evidence of her condition during 2010 is supported by
the evidence of her older sister, Jeda Wattar, who described her as unmotivated
and apathetic–a marked change from her pre-accident personality. At that time,
the family was under stress because of issues relating to the mental health of
their mother, who was also involved in her own personal injury litigation at
the time, but Jeda Wattar said she generally protected the plaintiff from
exposure to those matters.

[29]        
In January 2011, at her sister’s insistence, the plaintiff went to stay
with relatives in Syria and remained there for a year, except for one two-week
period. The plaintiff testified that, while in Syria, she had some medical and
physiotherapy treatment but, more importantly, began an intensive exercise
program that resulted in her losing 55 pounds and gradually improved her
depression. While in Syria she also became engaged to her current husband, who
she had met on a previous visit to that country. They were married in January
2012, a few days before the plaintiff returned to Canada.

[30]        
By the time she returned to Canada, the plaintiff said there had been
some improvement in her back pain, probably due to improved fitness and weight
loss, but she still had pain and stiffness in her neck. She took a job at a
commercial children’s play area, where she worked until September 2012. Her
duties included cleaning, and she testified that sweeping and cleaning caused
pain in her low back and that looking or reaching up caused pain in her neck. These
difficulties were not apparent to her employer, who was called by the
defendant.

[31]        
On July 4, 2012, Dr. Schwarz saw the plaintiff for the first time in
more than two years. She was still reporting pain in her mid and low back and
shoulders. Dr. Schwarz found that she had good range of motion, with some
tenderness, and made a diagnosis of chronic whiplash injury, with a 90 per cent
likelihood of full recovery. He believed counseling for mental trauma was still
necessary.

[32]        
On September 19, 2012, the plaintiff was assessed by an orthopedic
surgeon, Dr. McKenzie, at the request of her counsel. His diagnosis was chronic
myofascial pain in the neck, caused by the motor vehicle accident. He said the
prognosis for full resolution of that pain is “guarded at best.” Dr. McKenzie
recommended an MRI to assess the low back pain.

[33]        
The MRI was obtained in October 2012 and showed a disc protrusion in the
plaintiff’s low back. In a subsequent report, Dr. McKenzie said this was likely
a significant contributor to her low back pain and was likely caused by the
accident.

[34]        
Another orthopedic surgeon, Dr. Sovio, reviewed records at the request
of the defendant, but did not examine the plaintiff. He does not believe the
disc protrusion has anything to do with the accident or with the plaintiff’s
symptoms because most people have disc protrusions that are not symptomatic. Dr.
McKenzie responds that such abnormalities are very uncommon in individuals as
young as the plaintiff and repeats that "the overwhelming probability is
that the L5/S1 disc protrusion on her MRI is traumatic in nature and likely
responsible for some [or even all] of her ongoing symptoms of low back
pain."

[35]        
In considering the conflicting medical opinions, I prefer the evidence
of Dr. McKenzie, who had the opportunity to examine the plaintiff, over that of
Dr. Sovio, who merely reviewed records.

[36]        
The plaintiff said she still experiences intermittent low back pain,
caused by lifting, extended sitting or, sometimes, parts of her exercise
routine. She said she still has neck pain on looking up or down or on turning
her head to look over her shoulder.

[37]        
One basis on which the defendant calls into question the plaintiff’s
credibility is an income tax return signed by the plaintiff reporting income
she did not have. She testified she signed that document at the request of her
father and understood it was necessary to facilitate her husband’s entry into
Canada. The fact that the plaintiff signed such a false document is troubling
and did cause me to consider her credibility very carefully. However, her
evidence as to her physical and emotional symptoms is supported by the evidence
of her sister and by the medical records, as limited as those records may be.

[38]        
I therefore find that for approximately one year after the accident, the
plaintiff suffered pain and an emotional reaction that were, in combination,
significantly disabling. These symptoms resolved substantially over the
following year, but the plaintiff continues to suffer neck and low back pain at
times, although that pain does not prevent her from engaging in most activities.
While she may yet become symptom-free, such complete recovery is not a
certainty.

[39]        
In assessing non-pecuniary damages, each case must be decided on its own
facts and previous authorities are not determinative. However, to the extent
the authorities cited by both counsel can provide guidance, I find that the physical
injuries in this case are comparable to, although somewhat less serious than those
that were before the court in Edmondson v. Payer, 2011 BCSC 118, Rezeai
v. Piedade, 2012 BCSC 1782 and Williams v. Loverock, 2013 BCSC 153. The
impact of the physical injuries was aggravated in this case by the severe
emotional reaction that hampered the plaintiff at a crucial stage in her life.

[40]        
Considering those factors, as well as the uncertainty of full recovery,
I assess non-pecuniary damages at $50,000.

[41]        
The plaintiff does not claim any past income loss, but claims a loss of
income earning capacity. In order to succeed in such a claim, the plaintiff
must prove that there is “a real and substantial possibility” that a loss will
occur in the future. In my view, there is no evidence establishing such a real
and substantial possibility. Although the injury interrupted the plaintiff’s
education, there is no evidence that she would be precluded from pursuing it if
she chose to do so. At the time of trial, she was working in retail sales and
had plans to continue in that area. There is no evidence that her injuries will
impair her ability to do that or similar kinds of work.

[42]        
I do accept that the plaintiff’s ongoing neck and back pain makes
certain kinds of housework uncomfortable and there is a real and substantial
possibility that she will need to acquire some limited replacement services in
the future. A modest award of $2,000 would be appropriate.

[43]        
In summary, I assess the plaintiff’s damages at $50,000 for
non-pecuniary damages and $2,000 for cost of future care. She is awarded half
of those amounts to reflect the division of liability. The plaintiff will have 50
per cent of her costs, unless counsel need to make submissions arising from
matters I am not aware of. If such submissions are necessary, counsel have
leave to make them in writing.

“N. Smith J.”