IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130613

Docket: M121560

Registry:
Vancouver

Between:

Marie Celine Elise
Lemay

Plaintiff

And

James Western Star
Sterling Ltd.
DCT Chambers Trucking Ltd.
Robert Paul Gorcak

Defendants

Before:
The Honourable Madam Justice Kloegman

Reasons for Judgment

[1]            
The plaintiff suffered the loss of three toes, a broken foot and ankle, a
detached calf and an injured knee when the defendants’ 75-foot tractor-trailer collided
into her motorcycle. The collision occurred on the west side of the
intersection of Sumas Way and Vye Road in Abbotsford, British Columbia, on
July 5, 2011, at approximately 9:00 a.m.

[2]            
Liability is in issue. The plaintiff says she was legally stopped beside
the defendants’ tractor-trailer unit at a red light, when the defendant driver
suddenly turned the unit right into her, throwing her and her motorcycle to the
ground. The defendants say the plaintiff was solely responsible for the
accident by attempting to pass on the right, in contravention of s. 158 of
the Motor Vehicle Act, R.S.B.C. 1996, c. 318, and positioning
herself in a dangerous place where she could not be perceived by the defendant
driver.

[3]            
The accident took place on a sunny, clear morning. The plaintiff was
riding a Sport Bike 500 Suzuki. She was travelling eastbound on Vye Road, which
crosses the north/south-running Sumas Way (the “Intersection”). West of the
Intersection, eastbound Vye Road is a single lane. According to Constable Fehr
it is wider than the average roadway, even at its narrowest point, but before
it reaches the Intersection the roadway widens to about twice its size, or 7.43 metres.
There is a gravel shoulder stretching alongside the paved roadway. Further to
the east, past the Intersection, Vye Road becomes a narrow country lane.

[4]            
The plaintiff testified that she was following the car ahead of her when
it started to slow down. She knew the roadway was widening as she neared the
Intersection so she pulled out to the right. She was going very slowly, maybe
10 kilometres per hour. There was traffic alongside and ahead of her. She
knew the traffic usually turned left at the Intersection because northbound
Sumas Way led to Highway #1. She planned to go straight through the
Intersection because she wanted to travel east on the country lane on the other
side of the Intersection.

[5]            
The plaintiff said that when she pulled out, there were at least two
vehicles to her left lined up behind the defendants’ unit. The light was red
and so she stopped about three to four feet from the side of the defendants’
unit, at the stop line, for about 20 to 30 seconds. The front of her
motorbike was adjacent to the defendants’ front bumper and the rest of the
motorbike was beside the passenger door. She had her left foot on the ground
and her motorbike was stationary.

[6]            
The plaintiff testified that she heard a noise and she was struck on her
left leg and foot by the defendants’ right wheel. She dropped the motorbike to
the ground, in pain.

[7]            
On cross-examination, the plaintiff admitted that she was aware tractor-trailer
units like the defendants’ could make wide left turns, and often needed to
swing right before turning left. She also admitted that she was obviously too
close to the side of the unit, but she denied being as close as two feet.

[8]            
The defendant driver testified that he had been driving this type of
unit for about13 years. He drove through that particular intersection once
every two weeks in 2011. He had left Kelowna the night before at
11:00 p.m. He had rested for half an hour between 3:00 and 3:30 a.m.
He continued on to Surrey, unloaded, then switched trailers about one kilometre
from the site of the accident.

[9]            
The defendant driver said that when he reached the Intersection, it was
busy and a train was crossing the tracks which are located west of the
Intersection. There were two cars ahead of him; the first one got through the
green light and the second one got through on the amber light. He debated
whether to run the light but decided against it and stopped about one foot back
from the stop line, waiting for the next green light. It was a hot day, so his
windows were closed and the air conditioner was on.

[10]        
He testified that he intended to turn left at the Intersection and his
left signal light had been on since the train tracks. He testified that a B-Train
Flat Deck facing northbound on Sumas Way entered the Intersection to turn left,
or westbound on Vye Road. When the defendant driver’s light turned green, he
said that he checked his mirrors and saw nothing. The B-Train Flat Deck was not
moving, so the defendant driver moved his unit about two feet to the right and
10 feet forward before he heard a “bump.” He checked his mirrors again and
saw a motorbike rider’s helmet in his convex mirror on the passenger side. He
applied his brakes and jumped out. He said that he was not 100% sure that he
had had room to make his left turn, but he had wanted to clear the Intersection
out of courtesy to the other driver turning left with the B-Train Flat Deck.

[11]        
On cross-examination, the defendant driver admitted that he had his left
turn signal on, but at the time of the accident he was moving to the right. He
said he did not “set up” for a wide left turn earlier because the Intersection
was wide enough to make the turn from a straight position. He admitted that in
hindsight it would have been safer to properly set up the turn so that his unit
was already angled to the right, preventing other vehicles, cyclists or
pedestrians from passing alongside him. He admitted that in his full length and
convex side mirrors he could only see from his doors back. In front of the
doors was a total blind spot. He admitted that the unit had two holes drilled
for a device to be installed that would have allowed him to see the back fender
straight to the ground, thereby eliminating the blind spot. He said that such a
device had not been installed because they did not hold up well at high speeds.
He admitted that he had a little convex window on the lower passenger door that
would have allowed him to see the ground, but said it was blackened out with
dirt. He had tried to clean it before leaving Kelowna but the dirt was ground
into the glass. He would have had to take the door apart and he wanted to get
going. He admitted that he had not noted this deficiency on his inspection
sheet.

[12]        
He further admitted that he never put on his right turn signal before he
moved to the right. He admitted that there was enough room for other travellers
to come up along his right side and turn right, in fact he presumed it was a
right-turning lane beside him. He admitted that he could have honked his horn
in warning of his manoeuvre, but he did not.

[13]        
Both the plaintiff and the defendant driver were credible witnesses and
did not really contradict each other. The defendant driver never saw the
plaintiff approach or stop alongside him, so he could not comment on how many
cars she had passed on the right, or how close she was to the stop line, or how
close she was to the side of his unit. The plaintiff never saw any B-Train Flat
Deck turning left on Sumas Way, so she could not comment on whether it was
necessary for the defendant to reposition his unit to clear the Intersection.

[14]        
The evidence of the three other eye witnesses was illuminating. Mr. Pierce
and his co-worker, Mr. Steiner, were driving a pickup truck eastbound on
Vye Road, at least two passenger vehicles behind the defendants’ unit. The
traffic in front of them stopped. As they sat waiting, the defendants’ unit was
positioned straight along the centre line and a small motorcycle passed slowly
by their right side at walking speed. About 40 seconds later, Mr. Steiner
observed that the motorcyclist had fallen.

[15]        
Mr. Pierce noticed that the defendant driver had pulled forward to
the right and then stopped. Mr. Steiner said the motorbike was about
one-and-a-half to two feet from the side of the defendants’ unit for about
10 seconds, then the unit moved to the right in first gear and the
motorcyclist was swept to the ground. Mr. Steiner said the plaintiff was
stopped alongside the passenger side door of the unit, just under the mirror.
The move to the right and the collision with the plaintiff appeared
simultaneous.

[16]        
Mr. Steiner said there was enough room on the roadway for the plaintiff
to pass alongside the traffic without leaving the roadway. Mr. Pierce
believed he saw the plaintiff travelling on the paved part of the roadway.

[17]        
Neither Mr. Pierce nor Mr. Steiner saw any B-Train Flat Deck
trying to turn left onto Vye Road. Mr. Steiner did see a southbound Stinger
truck signalling his intention to turn right onto Vye Road.

[18]        
Mr. Candy, an experienced truck driver, was filling his vehicle at the
Chevron station on the southwest corner of the Intersection. He noticed the
defendants’ unit because it was unique in the trucking world. It had stopped at
the lights for about five seconds when the plaintiff came into Mr. Candy’s
view. She was going slow enough for Mr. Candy to identify her as an “attractive
female rider.” When she passed from view, Mr. Candy returned his attention
to filling up his vehicle. He heard the accelerating whine of the defendants’
unit and then a crunch-crunch sound. He looked up and saw a southbound Stinger
truck trying to turn right from Sumas Way onto Vye Road. At first he assumed it
was the Stinger that hit the defendants’ unit, not realizing that the plaintiff
had been struck.

[19]        
Mr. Candy explained in detail the proper way to set up a left turn such
as the defendant driver was proposing to do. He said every trained truck driver
knew that with that Intersection one needed to angle out to prevent traffic
from passing so that when your turn came you could take it as wide as possible
because there may be southbound traffic turning east onto Vye Road from Sumas
Way.

[20]        
Mr. Candy testified that to set up properly, a driver would begin just
east of the driveway to the gas station. He would signal left, and get as close
to the center line as he could. He would look in all mirrors and then signal
right. He would make a small turn to the right, then signal and move left
again, aiming to get the cab over as far to the right as possible to keep other
traffic from moving past either side. In other words, a driver should angle the
truck so he is effectively “hogging the road” at that point.

[21]        
Mr. Candy also testified that he uses a mirror on the right corner of
his fender. He referred to it as the “third eye” which eliminates the blind
spot from the door down to the ground.

[22]        
The testimony of the witnesses raised several issues of fact, such as
where on the roadway the plaintiff was travelling, where she was positioned
when she was hit, whether she was stationary or moving, and whether the
defendant could have avoided swinging to the right.

[23]        
I am satisfied, on a balance of probabilities, from the totality of the
evidence that:

1)    The plaintiff
was likely riding her motorcycle on the paved roadway when she passed along the
vehicles to her right. There is no evidence to suggest that she was riding on
the gravel shoulder but there is sufficient evidence from the plaintiff, Mr. Pierce
and the dimensions of the paved roadway to establish that she was likely riding
on the paved portion.

2)    The plaintiff
was travelling slowly and had likely come to a complete stop on the paved
roadway beside the defendants’ unit before she was hit.

3)    The plaintiff
was likely about two feet from the side of the unit when she was hit. There was
more room on the paved roadway to her right.

4)    The plaintiff
was in the blind spot of the defendant driver’s two mirrors on the passenger
door. The plaintiff likely would have been visible in the small lower window in
the passenger door but the view through the window was either obscured, or the
defendant driver did not look through it.

5)    The defendant
driver was likely distracted by the traffic. I do not think it matters whether
the distraction was a B-Train Flat Deck turning left that only he testified
about, or a Stinger truck turning right that Mr. Steiner and Mr. Candy
testified about.

6)    The defendant
did not have to manoeuvre his unit to clear the Intersection. It was his own
choice, as was his decision not to set up the wide left turn in the prudent
manner described by Mr. Candy.

[24]        
I am also satisfied that the plaintiff has proved, on a balance of
probabilities, that the defendants were negligent and therefore liable for her
injuries. The basis of this negligence is two-fold. Firstly, there were means
available to the defendants to eliminate the dangerous blind spot of the unit.
A mirror of the type described by Mr. Candy as a “third eye” could have
been installed, but was not installed. Clear visibility should have been
maintained in the small window in the passenger door, but the view through the
window was obscured by dirt.

[25]        
Secondly, the defendant driver did not exercise the standard of care of
a reasonably prudent truck driver in the circumstances. He did not set up his
wide left turn in accordance with standard practice, he did not use his right
indicator, he did not attempt to check his blind spot through the small window
in the passenger door, and he was unduly focused on another vehicle blocking
the Intersection.

[26]        
The defendants submit that I should find the plaintiff wholly at fault
for the accident, or at least contributorily negligent. The defendants rely on
s. 158 of the Motor Vehicle Act to argue that the plaintiff was in
breach of her statutory duty. This section states:

Passing on right

158 (1) The driver of a vehicle must not cause or
permit the vehicle to overtake and pass on the right of another vehicle, except

(a) when the vehicle overtaken is making a left turn or its
driver has signalled his or her intention to make a left turn,

(b) when on a laned roadway there is one or more than one
unobstructed lane on the side of the roadway on which the driver is permitted
to drive, or

(c) on a one way street or a highway on which traffic is
restricted to one direction of movement, where the roadway is free from
obstructions and is of sufficient width for 2 or more lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not
cause the vehicle to overtake and pass another vehicle on the right

(a) when the movement cannot be made safely, or

(b) by driving the vehicle off the roadway.

[27]        
Firstly, the defendants argue that the plaintiff went off the roadway in
contravention to s. 158(2)(b). I have found that it is more likely than
not that the plaintiff was travelling on, not off the roadway, so this argument
fails.

[28]        
Secondly, the defendants argue that the plaintiff did not know if all
drivers to the right of her were signalling left, therefore her movement was
unsafe. I disagree. The defendant driver was turning left, Mr. Pierce’s
vehicle was turning left, and there was plenty of room at that point to
accommodate the plaintiff along the right side of the roadway. Therefore I do
not find that the plaintiff breached any provisions of the Motor Vehicle Act.

[29]        
The remaining question is whether the plaintiff was contributorily
negligent for some other reason. The defendants say she was negligent in
positioning herself in a dangerous place where she could not be perceived. I
would not find the plaintiff contributorily negligent for being in the
defendant’s blind spot. She was not to know whether there was a blind spot or
where it was located. However, the plaintiff was aware of the defendants’
unit’s large and cumbersome size, and that large vehicles such as the
defendants’ make wide left turns. In hindsight she admitted that she was
situated too close to the unit. Given the dimensions of the roadway, the
plaintiff could easily have stopped her motorcycle much further to the right
and perhaps out of harm’s way. It is this excessively close positioning of her
motorcycle next to the defendants’ unit that results in some negligence being
attributed to the plaintiff.

[30]        
It is trite law that plaintiff drivers have a common law duty to take
reasonable care in the circumstances, even when they are driving lawfully and
in accordance with the rules of the road. Plaintiff drivers and cyclists have
been found contributorily liable for driving too close to a defendant’s vehicle
(Janzen v. Heather, 2008 BCSC 229), or exercising poor judgment in other
ways (Ormiston v. I.C.B.C., 2012 BCSC 665). In the circumstances of the
case before me, I find the plaintiff contributed to the accident and that liability
should be apportioned 80% to the defendants and 20% to the plaintiff.

“Kloegman
J.”