IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130515

Docket: 11-1346

Registry:
Victoria

Between:

Treena Joy White

Plaintiff

And

Ian William
Craigon and Claire Ardele Craigon

Defendants

Before:
The Honourable Mr. Justice Bowden

Reasons for Judgment

[1]            
The plaintiff seeks damages for personal
injuries suffered by her in a motor vehicle accident that occurred on December
4, 2009, on a bright sunny day in Courtenay, British Columbia.

[2]            
The only issue in this trial is liability.

[3]            
Each party submits that the other party was
entirely responsible for the accident.

[4]            
The accident occurred at the intersection of Rye
Road and Old Island Highway (the “Highway”). A drawing of that intersection may
be found in the expert’s report, which is Exhibit 2 in these proceedings.

[5]            
Just before the collision, the defendant’s
vehicle was facing south on the Highway waiting to turn left and proceed
westbound on Rye Road. The defendant was planning to make a sharp left turn
onto Rye Road and waited for a break in the northbound traffic before turning. He
came to a complete stop, signaled his intention to turn and waited for about 15
seconds. He looked down Rye Road and south down the Highway.

[6]            
The defendant said that he had a clear line of
sight looking south and a clear line of sight up Rye Road and there were a
number of northbound cars on the Highway. When there was a break in the traffic
he turned left and that is when the collision occurred. He said that he did not
expect a car to be coming out of the parking lot from the 7-Eleven. He does not
recall his vision being impaired in any way. He said that he did not take note
of cars in the area around the 7-Eleven and his primary focus was on cars
coming towards him on the Highway. He did not see the plaintiff’s vehicle until
the collision. The evidence suggests that he could have seen the plaintiff’s
vehicle had he looked towards the 7-Eleven. This is somewhat confirmed by the
photograph at page 1 of Tab 4 in Exhibit 1.

[7]            
The plaintiff’s vehicle was facing northwest and
proceeding from the laneway beside the 7-Eleven towards the Highway. She had
pulled out of the parking lot on the northeast side of the 7-Eleven and
proceeded along the side of the building, as shown in photo 1 of Tab 4 in Exhibit
1, to a point near Rye Road with the intention of merging northbound onto the
Highway. A blue dumpster and hedges to the south of her vehicle, depicted in
that photo, obscured her vision to the south on the Highway so that she had to
travel close to Rye Road in order to observe the northbound traffic on the
Highway.

[8]            
The plaintiff had just entered Rye Road and was
looking to the south for northbound traffic while she was intending to merge
onto the Highway. It is not clear, but the plaintiff said she believed that she
stopped before proceeding to the Highway from Rye Road. At the time of the
collision she had not yet looked forward nor had she looked north which was to
her right. Prior to the collision she had not seen the defendant’s car or how
fast he was going, nor did she see how long the defendant had waited before
making a left turn.

[9]            
The engineer’s drawing in Exhibit 2 is to scale
and shows the location of the defendant’s vehicle as box number “2,” both as it
was stopped before the defendant proceeded with a left turn, and then at the
point his vehicle first made contact with the plaintiff’s vehicle. The
plaintiff’s vehicle is shown as box number “1”.

[10]        
The location of the collision is also marked by
the parties on the photograph at page 5 of Tab 4 in Exhibit 1. The defendant
marked the point of the collision to be slightly south of where it was marked
by the plaintiff with a “W”. Both parties agree that the plaintiff’s vehicle
was not on the travelled portion of the Old Island Highway when the collision
occurred.

I.                
Submissions

[11]        
The plaintiff submits that, while proceeding
towards the Highway, she was driving lawfully and prudently on a laneway with
the intent of looking to the south before merging on to the Highway.

[12]        
The plaintiff says that it does not matter that
she did not see the defendant’s vehicle until the collision because she had
established her line of travel while travelling lawfully. Had she seen the
defendant, she could assume that the defendant would let her proceed and not
turn because the plaintiff was in the same position as a vehicle travelling
northbound on the Highway. She argues that the defendant’s vehicle was in the
servient position.

[13]        
The plaintiff relies on Brooks v. Ward,
[1956] S.C.R. 683 [Brooks], for the proposition that the failure by the
defendant to take evasive action when he could and should have seen the
plaintiff’s vehicle amounted to negligence and caused the collision.

[14]        
The plaintiff says that the defendant did not observe
the plaintiff’s vehicle prior to the collision even though he had ample time
and an unobstructed view of the scene. The defendant acknowledged that had he
seen the plaintiff’s vehicle before he turned, he would not have made the turn
or he would have taken evasive action.

[15]        
The plaintiff says that, if the Court finds that
her failure to see the defendant amounts to some degree of negligence, the
plaintiff’s negligence is far less than that of the defendant.

[16]        
The defendant submits that he acted reasonably
and carefully and did not anticipate that the plaintiff would disregard her
statutory duty of yielding the right of way. The defendant points out that,
according to the expert evidence, the plaintiff was travelling 23 kilometres
per hour, when she entered Rye Road, and two to four seconds before the
collision. The expert also confirmed that she did not stop on entering Rye
Road. The expert said that it was most likely that the plaintiff’s vehicle was
moving when the collision occurred. She did not look forward or to her right
but only to the left as she was attempting to merge onto the Highway.

[17]        
The defendant argues that s. 176(2) of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 [Act], provides that a vehicle
entering a highway from an alley, lane, driveway or private road must yield the
right of way to traffic approaching on a highway so closely that it constitutes
an immediate hazard. Although the definition of “highway” in the Act
includes a lane or alley, they are included in s. 176(2) because they are a
particular kind of highway.

[18]        
The defendant says that the plaintiff was
required to yield to vehicles on a highway such as the defendant’s vehicle. The
defendant’s vehicle turning from onto a highway was the dominant vehicle and,
based on Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) [Walker],
he had the right to assume that the plaintiff would obey the highway laws
before entering the Highway and yield to him.

[19]        
The defendant submits that the plaintiff was the
servient driver and the defendant’s vehicle turning onto Rye Road posed an
immediate hazard.

[20]        
The plaintiff’s vehicle was 12 metres back in
the laneway and the defendant had the right to assume that she would stop and
allow him to pass as the dominant driver.

[21]        
The defendant argues that, at the time he began
his turn, the plaintiff was well back in the lane near the 7-Eleven and the
defendant’s vehicle was there to be seen, but the plaintiff was looking left
and not forward or to the right. It was negligence on the part of the plaintiff
not to see the defendant’s vehicle. The defendant had no opportunity to react
after carefully assessing northbound traffic, and the plaintiff disregarded her
statutory obligation to yield the right of way. The defendant refers to Salaam
v. Abramovic, 2010 BCCA 212 [Salaam].

II.              
Analysis

[22]        
The onus in this case is on the plaintiff to
prove on a balance of probabilities that the defendant’s negligence caused or
contributed to the collision.

[23]        
The plaintiff must establish that the operation
by the defendant of his automobile fell below the standard of care of a
reasonably careful driver.

[24]        
In the case at bar neither driver observed the
other driver’s vehicle until the collision occurred. This necessitates a
consideration of whether either driver had a statutory right-of-way before
entering the intersection of the Highway and Rye Road.

[25]        
Section 176(2) of the Act provides:

s.176 (2)  The
driver of a vehicle about to enter or cross a highway from an alley, lane,
driveway, building or private road must yield the right of way to traffic
approaching on the highway so closely that it constitutes an immediate hazard.

[26]        
Section 2 of the Act defines “highway” to
include:

s. 2(b) every
road, street, lane or right of way designed or intended for or used by the
general public for the passage of vehicles

[27]        
It is not disputed that the plaintiff was
travelling on an alley or lane beside the 7-Eleven before she attempted to
merge onto the Highway. In my view the plaintiff was required by s. 176(2)
to yield the right of way to traffic approaching on the highway so closely that
it constituted an immediate hazard. While a lane is included in the definition
of the term highway, by virtue of s. 176(2), a vehicle about to enter another
highway from a lane or alley must yield the right of way to traffic approaching
on the highway that constitutes an immediate hazard.

[28]        
This interpretation of s. 176(2) accords with
common sense, which suggests that someone entering onto a busy highway from a
lane or alley should be required to yield to traffic on the highway.

[29]        
In Walker, the Supreme Court of Canada
said at para. 50:

While the
decision of every motor vehicle collision case must depend on its particular
facts, I am of (sic) opinion that when A, the driver in the servent (sic)
position, proceeds through an intersection in complete disregard of his
statutory duty to yield the right-of-way and a collision results, if he seeks
to cast any portion of the blame upon B, the driver having the right-of-way, A
must establish that after B became aware, or by the exercise of reasonable care
should have become aware, of A’s disregard of the law, B had in fact a
sufficient opportunity to avoid the accident of which a reasonably careful and
skilful driver would have availed himself; and I do not think that in such
circumstances any doubts should be resolved in favour of A, whose unlawful
conduct was fons et origo mali.

[30]        
In my view, even if I assume that the defendant,
by the exercise of reasonable care, should have become aware of the plaintiff’s
disregard of the law, based on the speed of the plaintiff’s vehicle determined
by the expert, the defendant did not have a sufficient opportunity to avoid the
collision.

[31]        
Our Court of Appeal in Salaam states at
para. 25:

A driver like
the defendant, who is in a dominant position, will not typically be found to be
liable for an accident. Drivers are generally entitled to assume that others
will obey the rules of the road. Further, though defensive driving and
courteous operation of motor vehicles are to be encouraged, they do not
necessarily represent the standard of care for the purposes of a negligence
action. A driver will not be held to have breached the standard of care simply
because he or she failed to take extraordinary steps to avoid an accident or to
show exceptional proficiency in the operation of a motor vehicle.

[32]        
The facts in Brooks are distinguishable
because the evidence in that case established that the respondent driver had
plenty of opportunity to avoid the collision. In the case at bar, the plaintiff
was travelling at 23 kilometres per hour, three seconds before the collision. In
my view, the defendant did not breach the standard of care because he did not
take extraordinary steps to avoid the accident. I think that the defendant’s counsel
properly characterized the plaintiff’s vehicle as “shooting out” to the point
of contact with the defendant’s vehicle.

[33]        
This Court considered similar facts in Aymont
v. Capp, 2010 BCSC 1011 [Aymont]. In Aymont, the accident
occurred on a highway at the driveway to a Petro-Canada service station. The
plaintiff was in the process of exiting the service station when her vehicle
collided with the defendant’s vehicle which was travelling on the highway. Madam
Justice Gropper considered s. 176(2) of the Act and held that the
plaintiff was the servient driver. She found that the plaintiff did not yield
to the defendant’s vehicle which was approaching on the highway and that the
defendant was entitled to assume that the plaintiff would obey the rules of the
road. Also, by the time that the defendant observed the plaintiff’s vehicle
there was not enough time for him to avoid the collision.

[34]        
In my view the same may be said of the
plaintiff’s operation of her vehicle. She was not looking forward or to the
right on her path of travel and had accelerated to 23 kilometres per hour, just
three or four seconds before the point of impact, which was the first time she
observed the defendant’s car. Clearly the plaintiff did not yield the right of
way to the defendant as she was required to do under s. 176(2) of the Act.
At the same time, even if the defendant, by exercising reasonable care, should
have seen the plaintiff, in my view he did not have sufficient opportunity to
avoid the collision. If there is any doubt about that conclusion, as stated in Walker,
it should be resolved in the defendant’s favour.

[35]        
The plaintiff has not established that by the
exercise of reasonable care the defendant should have become aware of the
plaintiff’s disregard of the law namely, the requirement that she yield the
right of way to the defendant’s vehicle, or that the defendant had a sufficient
opportunity to avoid the collision.

[36]        
In the end result and considering the
circumstances of this case I find that the plaintiff is 100% at fault for the
collision.

“Bowden J.”