IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130415

Docket: M100008

Registry: Vancouver

Between:

Sandra Radjenovic

Plaintiff

And

Parbhjot Bains,
Vancouver Taxi Ltd.,
Uros Budimac, Slavica Budimac,
Maynard Eugene Embree, and Susan Lee Embree

Defendants

And

Insurance
Corporation of British Columbia

Third Party

– and –

Docket: M105293

Registry: Vancouver

Between:

Uros Budimac

Plaintiff

And

Parbhjot Bains and
Vancouver Taxi Ltd.

Defendants

Before:
The Honourable Mr. Justice Melnick

Reasons for Judgment

[1]            
These actions arise out of a motor vehicle accident that occurred on
October 31, 2008 on West 11^th Avenue in Vancouver.  One vehicle,
exiting from a parking stall, was struck by another which was proceeding in the
same direction.  The only issue is liability.  Did the driver of the one
vehicle pull out into the travelled portion of the roadway when it was unsafe
to do so, or was the driver of the approaching vehicle driving too fast and
without due care and attention so that he failed to see the exiting vehicle?

I.                
BACKGROUND

[2]            
Uros Budimac (“Mr. Budimac”) and his fiancé (now wife) Sandra Radjenovic
decided to drive from North Vancouver to go to Vij’s, a restaurant on West 11^th
Avenue in Vancouver.  Mr. Budimac drove an orange 2007 Mitsubishi Eclipse
registered in the name of Slavica Budimac.  He parallel parked on the south
side of West 11^th Avenue, just past an alley on the east side of
Vij’s.  Mr. Budimac and Ms. Radjenovic decided that the length of
time they would have to wait to be seated at Vij’s was too long so they left,
intending to go elsewhere.  The time was just after 7:00 p.m.  It was dark, but
streetlights were on.  It had been raining earlier.

[3]            
According to Mr. Budimac, he put on his seatbelt, activated the
left-hand signal light, checked his rear view mirror and noticed a vehicle
waiting behind him in the entrance to the alley, apparently prepared to move
into his parking spot. He alleges he did a shoulder check, determined that it
was clear to exit, and began to do so slowly.  He proceeded part way out of his
parking place when, upon doing another shoulder check, he saw headlights
approaching in the eastbound lane from the direction of Granville Street at
what appeared to him to be a fast speed.  He came to a complete stop.  His
vehicle was then struck on the left front side and pushed forward and sideways into
a minivan that was parked ahead of the space from which he was exiting.

[4]            
Parbhjot Bains was on duty that evening driving a 2007 Toyota Sienna van
owned by Vancouver Taxi Ltd.  He had just dropped off a customer at Fir Street
and West 10^th Avenue when he received a call to pick up a customer
on Oak Street.  He decided to drive to Oak Street via West 11^th
Avenue.  He said he stopped before crossing Granville Street, then proceeded
past Vij’s, proceeding east on West 11^th.  He maintains that he was
going about 40 kph, the speed limit being 50 kph.  Mr. Bains said that as
soon as he crossed the alley behind Vij’s, a car suddenly pulled out so quickly
that he could not take evasive action.

[5]            
Just prior to the accident, Iolanda Millar was driving west on West 11^th
Avenue, heading in the direction of Granville Street.  She was driving her
Honda Civic at 20 to 30 kph, she said.  She said that she recalled a taxi van coming
around the corner, turning right on West 11^th from Granville
Street.  As the taxi was about to go by her, she said, lights came on in a
parked car and it started to pull out.  She recalled the driver of the taxi
pausing briefly, then continuing around the bumper of the protruding car when
suddenly the car came out really fast and hit the side of the taxi very hard. 
At the time the car pulled out, she said, the taxi was “two thirds up beside”
the car, measured from the back of the car.  The lighting conditions at the
time were between dusk and dark, she recalled.  She had her headlights on.  She
believed the car that pulled out was a four door sedan.

[6]            
Marek Buksowicz and his wife arrived on West 11^th Avenue just
as Mr. Budimac and Ms. Radjenovic were leaving.  Mr. Buksowicz
pulled his vehicle in behind that of Mr. Budimac, out of the east bound
driving lane, effectively blocking the alley, to wait for Mr. Budimac to
leave so he could take his parking spot.  Mr. Buksowicz said that the
orange car ahead of his vehicle pulled out into the east bound lane and shortly
afterward was hit by a taxi.  He recalled that the car left in what he
described as an “orderly controlled manner”; not excessively slow or fast; it
was normal.  His impression of the taxi was that it was going fast.  He said
that the car was one-half to two-thirds of the way out of the parking spot, at
an angle of 30 to 40 degrees, when it was hit.  When he saw the taxi, about
half of its width was in the west bound lane.  The collision was a couple of
seconds after the orange car pulled out, he said.  Both vehicles came to a stop
fairly quickly, he noted.

[7]            
Robin Brown, a professional engineer, gave opinion evidence in the area
of motor vehicle accident reconstruction.  He was retained by the defendants last
year and authored a report dated November 16, 2012.  He examined the accident
site on October 31, 2012 as well as photographs of the vehicles damaged in the
collision.  He relied upon assumed events provided by then counsel for the
defence.  He was able to provide aerial photographs of the area taken in 2008. 
It was his opinion that the right front corner of the taxi struck the front
half of the left door and fender of the Mitsubishi.  This caused the Mitsubishi
to rotate clockwise.  It was his opinion that the right front corner of the
Mitsubishi must have been just left of the left rear corner of the minivan
parked ahead of it, and moving forward, to produce the damage he observed to
the vehicles.  He concluded that the taxi had been steered to the left to
travel around the Mitsubishi as there had not been continuous contact down the
taxi’s right side.  He said that the taxi and the Mitsubishi which it struck
both moved to the left after the Mitsubishi had been pushed into the minivan. 
He estimated that the taxi had likely been travelling at a speed in the range
of 40 to 50 kph on initial impact.  In cross-examination, he agreed that the evidence
he observed was consistent with the taxi’s speed being as high as 60 kph on
contact, but not more.

[8]            
A photograph taken by Mr. Budimac, from behind the accident scene
looking east, showed the position of the vehicles at rest being such that the Mitsubishi
was virtually opposite and parallel to the minivan with a space between those
two vehicles sufficient for a person to comfortably walk between them.  The
taxi was at an angle pointing east south east, facing in a direction from the westbound
lane toward the eastbound lane.  The rear of the taxi was at rest at the front
portion of the driver’s door of the Mitsubishi.

II.              
DISCUSSION

[9]            
Cases such as this are dependent on their particular facts.

[10]        
The applicable sections of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318 in this situation are:

144(1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable
consideration for other persons using the highway, or

(c) at a speed that is excessive
relative to the road, traffic, visibility or weather conditions.

…

169  A person must not move a vehicle that is stopped,
standing or parked unless the movement can be made with reasonable safety and
he or she first gives the appropriate signal under section 171 or 172.

…

171(1) Subject to subsection (2), if a signal is required a
driver must give it by means of

(a) his or her hand and arm,

(b) a signal lamp of a type
approved by the director, or

(c) a mechanical device of a type
approved by the director.

…

[11]        
I place no reliance on the evidence of Ms. Millar.  I find her
version of the events inconsistent with the physical evidence of where each of
the three vehicles involved was damaged.  Between her and Mr. Buksowicz,
the latter had the best opportunity to view the impact and the movement of the
Mitsubishi in the seconds leading up to the collision.  He did not have an
opportunity to see the approach of the taxi, but did see it move past him with
his peripheral vision.  His evidence best accords with the evidence of the
expert, Mr. Brown.

[12]        
I accept the evidence of Mr. Budimac that he signalled mechanically
to turn left and mirror and shoulder checked before he began to slowly exit his
parking spot.  I accept that the taxi driven by Mr. Bains was not evident
to him because it probably still had not approached the area of West 11^th
east of Granville to be evident to anyone considering moving out of a parking position
just east of the alleyway behind Vij’s.  Mr. Budimac commenced leaving his
parking spot because, as he did so, there was no apparent reason to be
concerned about oncoming traffic.

[13]        
I conclude that Mr. Bains was driving faster than the 30 to 40 kph
he estimated at trial.  He was probably driving in the range of 50 kph, a speed
that was legal for that street, but imprudent for the nature of the
surroundings, the time of day and light conditions.  He was going too fast to
come to a stop behind the Mitsubishi once he saw it and tried unsuccessfully to
drive around it.

[14]        
This was a case of Mr. Bains failing to yield to a vehicle that had
lawfully assumed a dominant position in the eastbound lane notwithstanding that
it had not yet pulled out fully into that lane.  When Mr. Bains came upon
the scene, Mr. Budimac had, exercising appropriate caution, already moved
his vehicle substantially into the eastbound lane.  He did not, I conclude,
suddenly and without warning, pull into the path of Mr. Bains’ taxi.  Mr.
Bains is at fault for the accident, not Mr. Bucimac.

III.            
CONCLUSION

[15]        
I find Mr. Bains 100% at fault for the damages flowing from the
accident.

[16]        
Thus, in the action brought by Ms. Radjenovic, I find Mr. Bains
and Vancouver Taxi Ltd. liable to compensate her for the damages which, I am
advised, have been agreed.  That action is dismissed as against Mr. Budimac
and Slavica Budimac.  Ms. Radjenovic, Mr. Budimac, and Slavica
Budimac are entitled to their costs on Scale “B” to be taxed.

[17]        
In the action brought by Mr. Budimac, I find Mr. Bains and
Vancouver Taxi Ltd. liable to compensate Mr. Budimac for all his damages
that have been agreed.  He is entitled to his costs on Scale B to be taxed.

“Melnick J.”