IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131008

Docket: M120145

Registry:
Vancouver

Between:

John Lee

Plaintiff

And

Man Ho Michael Tse

Defendant

Before:
The Honourable Madam Justice Fleming

Reasons for Judgment

Introduction

[1]            
The plaintiff’s action arises from a motor vehicle accident that
occurred on February 24, 2010 at the intersection of Canada Way and Kensington
Avenue in Burnaby, BC (the “accident”). The trial of this matter was regarding
liability only.

[2]            
The plaintiff’s position is the defendant is solely liable for the
accident because he proceeded through the intersection on a red light while the
plaintiff was turning left. The defendant’s position is the traffic light was
green when he entered the intersection and the plaintiff turned left in breach
of s. 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

Summary of the Evidence

[3]            
The evidence at trial included testimony from both parties, their
passengers, and two experts in accident reconstruction, as well as diagrams of
the accident site and photographs.

[4]            
Just prior to the accident, the plaintiff was driving eastbound along
Canada Way in a Toyota Camry. His nephew Bailey Wong was sitting in the front
passenger seat. The plaintiff was driving Mr. Wong home from a family dinner at
a restaurant. He was planning to turn left at Kensington Avenue and proceed
north. It was approximately 9:30 in the evening. The road conditions were wet
and it was drizzling. Visibility however was good.

[5]            
The intersection is controlled by traffic lights. Canada Way is a four
lane arterial road that travels in a northwest and southeast direction,
referred to here as north and east. The eastbound direction has two through
lanes and a dedicated left turn lane for northbound traffic at Kensington
Avenue. The westbound direction has two through lanes and a dedicated right
turn lane at Kensington Avenue. Kensington Avenue is a four lane arterial road
that runs in a north and south direction. It intersects on the north side of
Canada Way only forming a “T” intersection. There are left turning lanes and a
right turning lane for southbound traffic.

[6]            
As the plaintiff approached the intersection he merged into the left
turning lane on Canada Way at Kensington Avenue. The light was green. He then
proceeded about half way into the intersection and stopped to wait for oncoming
traffic to pass through. There were no vehicles ahead of him making a left
turn. He noted some southbound traffic stopped to his left.

[7]            
The plaintiff testified that his vehicle was stopped for quite a long
time at the green light. He could not recall how many westbound vehicles passed
through the intersection but he was waiting for traffic to clear. The plaintiff
also could not recall how long it was after the last car passed through before
he began his turn. He waited until the light turned amber. He noticed the
defendant’s vehicle approaching the intersection westbound a “good” four to
five car lengths back. Given the colour of the light, he assumed the car would
stop. After the light had been amber for between two to five seconds, he
commenced his turn. According to the plaintiff, the light was red when he made
the left turn. He recalled looking up and seeing that the light was red at that
point.

[8]            
The plaintiff did not observe the defendant’s vehicle again prior to
impact, although he saw what he described as a strong light approaching in a
rapid fashion and then the impact occurred. The accident happened in what the
plaintiff described as a split second. He could not estimate the defendant’s
speed but testified that it must have been excessive given how far away the
vehicle was when the plaintiff began his turn. The plaintiff testified that the
collision occurred in the middle of the intersection.

[9]            
The plaintiff was unsure if his foot was on the accelerator at the time
of the impact. He just recalled continuing to make his slow left turn.

[10]        
Very shortly after the accident, the plaintiff approached the defendant
and challenged him about speeding and driving through a red light. The
plaintiff recalled the defendant replying with words to the effect of it did
not matter if the light is green, amber or red; he had the right of way. The
plaintiff was surprised and upset by what he regarded as the defendant’s
arrogance.

[11]        
The plaintiff’s evidence regarding his exchange with the defendant vis-à-vis the colour of the traffic light was confirmed
by the passenger witnesses and the defendant.

[12]        
Bailey Wong, the plaintiff’s passenger, also testified that the
plaintiff’s vehicle moved into the intersection when the light was green. He
added that when the light was yellow, they still had to wait to allow other
traffic to go through. It was after the light turned yellow that Mr. Wong first
saw the defendant’s vehicle. Mr. Wong testified to seeing other westbound
traffic slowing down in the right curb lane. This observation was not made by
any other witness. According to Mr. Wong, he also observed the defendant’s
vehicle slowing down before the intersection really late in the yellow. It was
after this that the plaintiff commenced his left turn. In cross examination he
testified to then seeing the defendant’s vehicle accelerate when it was already
past the line into the intersection and the light was red. Mr. Wong said he was
certain the light was red when the plaintiff started the left turn. After the
accident, he did not recall the plaintiff asking the defendant about speeding
but he did recall the defendant saying in a pretty loud voice that it did not matter
if the light was red, yellow or green; he was going straight and had the right
of way.

[13]        
The defendant testified that just prior to the accident, he was driving
westbound along Canada Way in a Dodge Caravan with his friend Gordon Soon
seated in the front passenger seat. Mr. Soon had a plastic bucket between his
legs that contained tropical fish in plastic bags. They were en route from New
Westminster to Mr. Soon’s home travelling in the inside or fast lane. The
defendant testified he was travelling at approximately 60 kilometers per hour although
he did not look at his speedometer. He first saw the intersection from over 100
metres away. He did not observe any other vehicles travelling ahead of him. The
light was green. He did not observe the plaintiff’s vehicle until he was much
closer to the intersection. His evidence as to when he first observed the
plaintiff’s vehicle was inconsistent. In direct examination he testified it was
from a distance of approximately 4 to 6 feet. In cross examination he changed
the estimate to 20 feet. He maintained, however, that he did not see the
vehicle earlier because his attention was focused on the light, which was
green.

[14]        
The defendant also gave evidence that he tapped his brakes at some point
before entering the intersection. He was also inconsistent as to when this
occurred. He testified that he tapped his brakes just before the line but also
before he saw the plaintiff’s vehicle. The light was green when the tap occurred.
The defendant said that he tapped the brakes because he always does so just
before entering an intersection. The tap did have the effect of slowing the
vehicle but he could not say by how much.

[15]        
According to the defendant when he first saw the plaintiff’s vehicle it
was stopped in the left turning lane behind the line at the entrance to the intersection.
He knew the plaintiff intended to turn left. He testified that from the moment
he saw the plaintiff’s vehicle, his attention remained focused on it.

[16]        
It is not surprising then that from this point on, his evidence about
the colour of the light and when and whether he checked it, varied somewhat. In
direct examination he testified the light was green when he entered the
intersection. But he also testified it turned yellow just when he passed the
line into the intersection. In cross examination he testified that he did not
look at the light as he crossed the plane of the intersection. When he was half
way into the intersection, he saw the plaintiff begin to move. He checked the
light and it was amber. At times the defendant’s responses were hesitant. He
seemed uncertain or perhaps confused. Further on in cross examination, he
repeated his earlier testimony that he had recollection of the light still
being green when he entered the intersection because he was pretty sure he
would have looked at the light at that point. The only basis for his
recollection appeared to be a reconstruction.

[17]        
The defendant was cross examined with respect to his evidence given at
discovery and an earlier written statement he provided to ICBC. In his
statement to ICBC, the defendant said that he had just reached the intersection
when the light changed from green to yellow. During his examination for
discovery, the defendant was asked about the colour of the light at a number of
points. The initial exchange was in part as follows:

Q  As you approached the intersection the light turned green
to yellow, correct?

A  Yes.

Q  How far away were you from the intersection when the light
changed colour?

A  Boy, can’t remember.

Q  Try.

A  Entered the intersection still
green. Just before I hit the other side of the lines turned yellow, so I was in
the middle and it turned yellow.

[18]        
Further on at discovery, the defendant was asked if he had entered the
intersection on a yellow or red light and he answered no to both questions. At
the conclusion of the examination for discovery, however, the question was
essentially put to him again after reviewing his conversation with the
plaintiff following the accident.

Q And you said it didn’t matter that you entered on a red
light, correct?

A Yes.

Q You said that because you, in fact, did enter on a red
light, didn’t you?

A Correct.

[19]        
The defendant testified at trial that he misheard this last question as,
“You said that because you, in fact, didn’t enter on a red light, didn’t you”.

[20]        
According to the defendant, it was after he entered the intersection
that the plaintiff started to turn left. In response, the defendant swerved
hard to the right and applied the brakes in an effort to avoid a collision. The
front of the plaintiff’s vehicle struck the left hand side of the defendant’s
vehicle and he was pushed toward Kensington Avenue.

[21]        
The defendant remembered cars stopped southbound on Kensington waiting
to go eastbound.

[22]        
The defendant recalled the plaintiff asking him why he ran a red light.
He testified that he denied doing so but admitted he also said words to the
effect that it did not matter what colour the light was because he had the
right of way. He was pressed about why he would make such a statement if he in
fact did not run a red light. His response made little sense. Although he did
not disagree that the point of his response was the colour of the light was
irrelevant, he said he would have stopped if the light was red.

[23]        
The defendant’s passenger Mr. Soon testified that he was looking out the
passenger window as they were approaching the intersection. He then heard the
defendant curse. In response he turned his head to look forward and saw the
plaintiff’s vehicle going into the intersection. He was not sure if it was
going to continue or stop. Mr. Soon could not be sure if the plaintiff’s
vehicle was still moving or not. He thought the defendant’s vehicle was in the
intersection at this point. He recalls glancing at the light and it was amber.
After that, the defendant’s car swerved sharply right and then the collision
occurred.

[24]        
Both parties relied on expert evidence. The plaintiff relied on the
opinion of engineer Robin Brown and the defendant on that of engineer James
Bowler. Both are experts in the field of accident reconstruction. Their reports
deal with the speed of the parties’ vehicles at impact and the ability of the
drivers to have avoided the collision.

[25]        
There is no dispute between Mr. Brown and Mr. Bowler about the likely
position of the two vehicles at the time of impact. The damage patterns suggest
the vehicles were approximately perpendicular when the plaintiff’s vehicle
struck the defendant’s. The likely impact location was the westbound curb or
slow lane about half way through the intersection. The experts also agree that
the defendant’s vehicle was travelling at 51 kilometers per hour and the
plaintiff’s at about 20 kilometers per hour when the collision occurred.

[26]        
Mr. Bowler also accepted Mr. Brown’s conclusion that the defendant’s vehicle
was likely 45.3 meters east of the impact area in the fast or inside lane,
rather than in the intersection, when the plaintiff began his left turn. In
addition, Mr. Bowler testified that it was physically impossible for the
defendant to have been in the intersection when he began his swerve manoeuvre
in an effort to avoid the plaintiff as he turned left.

[27]        
Mr. Brown concluded the defendant likely required a distance of about 27
to 38 metres to perceive, react and brake to a stop from a speed of 50 kilometers
per hour, based on a perception reaction time ranging from 0.7 to 1.5 seconds.
This estimate would place the defendant’s vehicle about 7.3 to 18.3 meters east
of the impact area, if he noticed the plaintiff when he started his left turn. In
addition, Mr. Brown concluded that if the defendant had remained in the fast
lane and braked rather than swerved right, the plaintiff would have had enough
time to clear the fast lane and collision would have been avoided. Mr. Brown’s
conclusions did not assume the defendant had anti-lock brakes but did assume
wet road conditions. It was Mr. Brown’s opinion that swerving right put the
defendant directly in harm’s way and was not a reasonable course of action.

[28]        
Mr. Bowler’s report sets out the results of his own simulation relying
on Mr. Brown’s acceleration rates for the plaintiff’s vehicle. In the
simulation, the defendant observed the movement of the plaintiff’s vehicle
early in the turn and had a short reaction time before initiating the right
swerve at 1.2 seconds. Mr. Bowler’s report at Figure 1 sets out that 3.2
seconds passed from when the plaintiff commenced his left turn and the impact,
based on Mr. Brown’s figures for acceleration rate and time to impact for the
plaintiff, as well as the assumption that the defendant travelled at a constant
speed of 50 kilometers per hour.

[29]        
In cross examination, Mr. Bowler agreed that if the defendant were
travelling faster than 50 kilometers per hour and then braked before the impact,
his vehicle would have been even further back from the intersection when the
plaintiff commenced the left turn.

[30]        
Mr. Bowler went on to conclude that although braking would have been a
better choice for the defendant than swerving to avoid the collision, the
decision between braking and swerving was made when the plaintiff had only
moved partly into its turn and the defendant did not know that the plaintiff
was going to continue turning.

[31]        
Where the two experts disagreed was regarding the plaintiff’s ability to
avoid the collision. Mr. Brown offered the opinion that the plaintiff could
only have stopped his vehicle and avoided the collision if, as soon as he
started the left turn, he perceived and reacted to the defendant. Mr. Bowler
was of the view that if the plaintiff started his perception reaction phase one
second after he started his turn the collision could have been avoided.

[32]        
Neither expert made any assumptions about the colour of the traffic
lights when the plaintiff began his left turn, or the defendant entered the
intersection.

[33]        
There was no evidence provided regarding the timing of the light
sequencing for the traffic lights at Canada Way and Kensington Avenue.

Findings of Fact

[34]        
The factors to be considered when assessing credibility are well
established and uncontested. They were summarized by Dillon J. in Bradshaw v.
Stenner, 2010 BCSC 1398 at para. 186 [Bradshaw], aff’d 2012
BCCA 296, as follows:

[186] Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Farnya at para. 356)

[35]        
Applying the factors summarized by Dillon J. in Bradshaw to the
instant case, I find the defendant to be a less than credible witness. There
were inconsistencies in the defendant’s evidence at trial about when and what
he observed about the colour of the traffic light. His evidence on these points
was also vague and uncertain at times. I agree with the plaintiff’s submission
that the defendant’s evidence was sometimes based on reconstructions, the most
glaring of which was his denial that the light was red when he entered the
intersection because he would have stopped for a red light. There is the
additional inconsistency between his testimony at discovery where he eventually
admitted to entering the intersection on a red light and his denial of this at
trial. His explanation for his answer at discovery was not convincing. I do not
accept that he simply misunderstood the question. His credibility was further
compromised by the contradiction between the undisputed evidence regarding his
comments after the accident that he had the right of way regardless of the
colour of the light, and his testimony that that the light was green when he
entered the intersection.

[36]        
The defendant’s testimony about where he was located when he first observed
the plaintiff attempting to turn left was also not credible and entirely
inconsistent with the expert evidence.

[37]        
The expert evidence, which I accept, is that the defendant’s vehicle was
45.3 metres east of the intersection when the plaintiff started his left turn
if the defendant was travelling at approximately 50 kilometers per hour. I also
accept Mr. Brown’s evidence that the defendant likely required a distance of
about 27 to 38 metres to perceive, react and brake to a stop from a speed of 50
kilometers per hour placing the defendant’s vehicle about 7.3 to 18.3 meters
east of the impact area, if he noticed the plaintiff when he started his left
turn. Given the defendant’s testimony that he noticed the plaintiff before he
started to turn left, which I do accept because he was not inconsistent on this
point and it accords with other evidence regarding visibility and the
plaintiff’s location prior to commencing his turn, I find the defendant could
have stopped as described by Mr. Brown. I further accept Mr. Brown’s opinion
that if the defendant had remained in the fast lane and braked rather than
swerved right, the plaintiff would have had enough time to clear the fast lane
and collision would have been avoided.

[38]        
Under cross examination the defendant demonstrated considerable
confusion about where his vehicle was located when he commenced his swerve.
Although he refused to acknowledge that he could not have been in the
intersection, he was unable to explain how the collision could have happened as
it did if he was there when he first saw the plaintiff begin to turn left. Accordingly,
I firmly reject the defendant’s testimony that he was in the intersection when
the plaintiff began his left turn.

[39]        
I also do not accept the defendant’s evidence that he braked at the time
he swerved to the right in an effort to avoid the collision. Although, I do
accept that he tapped his brakes sometime prior to the collision, causing his
vehicle to slow to a speed of 51 kilometers per hour at the time of the
collision.

[40]        
Although the defendant’s passenger Mr. Soon presented as a sincere and
honest witness, I do not find that much of his evidence was reliable and
accurate. Mr. Soon’s attention was focussed outside the passenger window until
immediately before he heard the defendant curse. Therefore, he had far less
opportunity to observe the circumstances leading to the accident than either of
the parties or Mr. Wong. I do accept that when Mr. Soon glanced forward he
noticed an amber light.

[41]        
I find the plaintiff to be a credible witness. He testified in a
straight forward manner. He acknowledged particular circumstances leading to
the accident that he could not remember or never observed in the first place,
such as the number and timing of the vehicles that passed through the intersection
before he began his left turn, and the location of damage to the vehicles
caused by the collision. He was also willing to admit when his evidence was
based on assumptions, such as his conclusion that the defendant must have been
travelling at an excessive speed immediately prior to impact.

[42]        
He gave careful answers to the questions he was asked. His evidence did
not change in any significant way between direct and cross examination.

[43]        
I accept the plaintiff’s evidence that the light turned yellow before he
started the left turn. I also accept that he then waited some further amount of
time and observed the defendant’s vehicle a safe distance away before beginning
his turn. I accept the light was red when he made the left turn. His evidence
about the colour of the light is consistent with the observations of Mr. Soon
who, after hearing the defendant curse, looked forward and at a glance saw the
light was already yellow. It was not until after this point that the sharp
swerve to the right occurred. Mr. Soon was not sure at this point if the
plaintiff was going to go or stop, indicating the plaintiff was about to start
or in the very initial phase of the left turn.

[44]        
Mr. Wong presented as an honest, sincere witness. While I accept some of
his evidence was also accurate and reliable, I believe his observation of a
westbound vehicle stopped in the curb lane was inaccurate. It is not something
that was observed by any other witness including the plaintiff. Although I
accept the light was red when the plaintiff made his left turn, I am not
convinced that Mr. Wong made this observation. While he testified in
cross-examination that he observed a red light when the plaintiff commenced his
left turn, in direct examination he was only certain it was really late in the
yellow before the turn commenced and he could not remember what colour the
light was when the turn actually started. His focus at this point was on the
defendant’s vehicle, which he thought was slowing down. I accept that Mr. Wong
likely observed the defendant’s vehicle as he tapped the brakes.

[45]        
 Based on the opinion evidence of Mr. Brown and Mr. Bowler regarding the
location of the defendant’s vehicle at the time the plaintiff commenced his
left turn, and the testimony of the plaintiff, all of which I accept, I find
the defendant was at least 45.3 metres back from the intersection after the
light had turned yellow and just before the left turn commenced. Given the
evidence of the plaintiff that he waited for some seconds after the light
turned yellow before commencing his turn, I find the defendant was even further
back when the light first turned yellow. It was at this point, and not the
point at which the plaintiff commenced his turn, that the defendant ought to
have applied his brakes and stopped for the light. The evidence of Mr. Brown
and Mr. Bowler is that 3.2 seconds passed between the time the plaintiff
started his turn and the collision. It being really late in the yellow before
the plaintiff started his turn, I find the light was red while the plaintiff
was turning left and at the time the defendant passed into the intersection. In
reaching this conclusion I have also relied upon the undisputed evidence
regarding the defendant’s comments to the plaintiff shortly after the accident
to the effect that he had the right of way, whether the light was red, yellow
or green. I infer from this evidence the defendant knew he entered the
intersection on a red light or at the very least he was uncertain about having
done so.

Legal Framework: Liability under the Motor Vehicle Act

[46]        
The statutory obligation of a motorist intending to turn left at an
intersection is set out in s. 174 of the Motor Vehicle Act, RSBC 1996, c
318 [MVA] which provides:

174 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.

[47]        
Sections 128 and 129 set out the statutory obligations of motorists
faced with yellow and red traffic lights respectively:

Yellow Light

128 (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

Red light

129 (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.

[48]        
In summary then, the MVA requires a left turning driver to yield
to oncoming traffic that is in the intersection or so close as to constitute an
“immediate hazard”. A driver facing a yellow light must stop before entering an
intersection unless the stop cannot be made in safety. A driver must not enter
an intersection on a red light.

[49]        
The duty on a left turning driver pursuant to section 174 of the MVA is
not absolute. It is well established that left turning drivers are entitled to
rely on the assumption that other drivers will obey the rules of the road,
absent any reasonable indication to the contrary. In particular, a left turning
driver is not required to wait until he or she sees that all approaching
drivers have stopped: see Kokkinis v. Hall, [1996] BCJ No 1560 (CA)
[Kokkinis]; Uyeyama (Guardian ad litem of) v. Wittenberg, [1985]
BCJ No 1883 (CA).

[50]        
The defendant relies on the authority of Nerval v. Khehra, 2012
BCCA 436 [Nerval]. At issue in that case, however, were the relative
obligations of a left hand driver pursuant to s. 174 of the MVA and a
straight through driver passing a stationary left turning vehicle on the right
pursuant to s. 158(1) of the MVA. The trial judge accepted the
plaintiff’s evidence that she could not see the defendant’s vehicle when she
started to turn left, but concluded she ought to have seen the oncoming
defendant. Upon nearing the intersection at a high rate of speed, the defendant
swerved to the right to pass another vehicle that was waiting to turn left.
When the defendant did so, her visibility was obscured by the vehicle in front
of her.

[51]        
The Court of Appeal in Nerval upheld the trial judge’s conclusion
that the obligation of left turning drivers under s. 174 takes priority over
the obligation created by s. 158 where each party’s vision of the other is
blocked by traffic. The facts did not involve a yellow or red traffic light.
The Court of Appeal expressly distinguished the application of cases involving
a left turning driver and a through driver in breach of his or her obligation
to obey traffic signals.

[52]        
The defendant also relies upon the decision of Stromberg-Stein J. (as
she then was) in Dawes v. Valadas, 2005 BCSC 1319 [Dawes]. Dawes
is of limited assistance here because of its very different facts. In Dawes, the
defendant was turning left on a green light. He was impaired by alcohol at the
time when he made the turn without signaling, into the path of the plaintiff.

[53]        
The plaintiff in the instant case relies on a number of authorities
including Kokkinis where the defendant proceeded into an intersection on
a yellow light although he could have safely stopped. One of the issues in Kokkinis
was whether it was negligent for the plaintiff to take her eyes off of
oncoming traffic to check cross traffic as she prepared to start her left turn.
Because of this, she failed to see the defendant prior to the collision. At
trial, the plaintiff was found 50 % responsible for the accident. This finding
was overturned on appeal and fault was reapportioned 100% to the defendant.
Newbury J.A. concluded the trial judge had imposed too high a burden on the
plaintiff. She said this at para. 10, in part:

To say that the plaintiff can be
found at fault because she relied on the assumption that Mr. Hall would stop,
and because she checked cross-traffic, would in my view subvert the duty on Mr.
Hall to bring his vehicle to a safe stop at the amber light as the other
traffic did. An amber light is not, as the current witticism suggests, a signal
to accelerate or to pass traffic that is slowing to a stop.

[54]        
In Henry v. Bennett, 2011 BCSC 1254 [Henry], Ballance J.
reached the same conclusion in similar circumstances, after carefully
considering a range of authorities including Kokkinis. The facts in Henry
involved a left turning defendant who entered the intersection on a green
light and was at a stop when the light turned amber. A vehicle then stopped
across from the defendant and partially obscured her view of oncoming traffic.
When the light turned red, the defendant made her turn. Her vehicle was then
struck by the plaintiff’s. The plaintiff was found to be solely at fault. In
concluding that the defendant was entitled to proceed on the assumption that
oncoming traffic would act in the accordance with the law and come to a stop on
the late amber, absent any reasonable indication to the contrary, the court
questioned the merits of the dominant-subservient driver analysis which carries
with it a presumptive right of way for the through driver. Ballance J. held
this analysis should be confined to cases where the dominant driver has
proceeded lawfully and is not in breach of a statutory duty.

[55]        
The weight of the authorities dealing with left turning drivers who
commence their turn on a stale yellow or red light is to find the straight
through driver entirely at fault.

[56]        
Ziani v. Thede, 2011 BCSC 895, provides an example of a case where
the court specifically considered the competing duties described in ss. 174 and
128 of the MVA. The court found the plaintiff who was driving straight
through had entered the intersection on a yellow light and therefore did not
have the right of way. After finding the plaintiff had increased his speed and
“run” the yellow light contrary to s. 128, Bruce J. turned to consider the
defendant’s actions. She found the defendant had failed to assess whether the
plaintiff was an “immediate hazard” or not as required by s. 178 of the MVA,
because the defendant had wrongly assumed he had the right of way due to an
advance green signal. Accordingly both parties were found equally responsible
for the accident.

[57]        
The courts have often considered the meaning of “immediate hazard” for
left turning drivers. It is well established that an approaching vehicle is an “immediate
hazard” if it is so close to the intersection that its driver must take some
sudden or violent action to avoid the threat of a collision with the vehicle
that is attempting a left turn: Raie v. Thorpe, [1963] BCJ No 14 (CA) [Raie].
The point in time to assess whether the through driver is an “immediate hazard”
is the moment before the driver who proposes to turn left actually starts to
make the turn: see Raie at para. 25; Nerval at para. 35.

Analysis

[58]        
Here the combined evidence of the plaintiff and Mr. Brown and Mr. Bowler
establishes that prior to the plaintiff commencing his left hand turn, the
light turned amber and the defendant was more than 45.3 metres away from the
intersection. Being far enough away to safely come to a stop, the defendant was
under a statutory obligation to do so. The plaintiff was entitled to act on the
assumption that the defendant would obey the rules of the road and stop for the
traffic light, and therefore proceed to turn left. At the time the plaintiff
commenced his left turn, there was no indication that the defendant would do
what he proceeded to do –
that is, swerve sharply to the right and carry on into the intersection. I
conclude therefore that at the moment immediately prior to the plaintiff
commencing his turn, he properly determined that the defendant was not an “immediate
hazard”. Further the traffic light was amber at that point in time and the
defendant proceeded in breach of his statutory obligation to come to a stop
prior to entering the intersection.

[59]        
Having found the defendant negligent for failing to stop at the traffic
light and the plaintiff not in breach of his obligation pursuant to s. 174 of
the MVA, the only remaining question then is whether the plaintiff was
negligent for failing to observe the defendant changing lanes and proceeding
toward him despite the red traffic light. The defendant argues that the
plaintiff failed to keep a proper lookout.

[60]        
Although the plaintiff was entitled to rely on the defendant’s
obligation to obey the rules of the road, he continued to have a concurrent
obligation to act reasonably as circumstances dictate. In Kokinnis and Henry
both left turning drivers were found to not be in breach of this obligation. In
both cases, the left turning drivers were not able to see the straight through
driver because of other traffic.

[61]        
The plaintiff’s evidence in essence was that after he observed the
defendant approaching the intersection from a safe distance away, he commenced
his left turn and the impact occurred all of a sudden. He did not see the
defendant swerve to the right and enter the intersection. The defendant argued
that rather than focusing on oncoming traffic and any potential hazards the
plaintiff was looking at the traffic light. The expert evidence of Mr. Bowler
is helpful in this regard. His opinion was that the plaintiff could have
avoided the collision if he started his perception reaction phase one second
after starting his left turn. However, Mr. Brown’s report also included
evidence that the defendant started to swerve right 1.2 seconds after the
plaintiff started to turn left which Mr. Bowler also assumes. Taken together
this evidence leads to the conclusion that one second after the plaintiff
started to turn, the defendant had not yet swerved sharply to the right. There
was no reason then for the plaintiff to attempt to stop his left turn at that
point. None of the evidence before me suggests that it was possible for the
plaintiff to observe the defendant and avoid the collision after the defendant
commenced his swerve to the right, and therefore I conclude the plaintiff was
not negligent by failing to keep a proper lookout.

Conclusion

[62]        
The defendant is entirely at fault for the accident. The plaintiff’s
claim as to liability is allowed and the plaintiff shall have costs in
accordance with Appendix B at Scale B.

“Fleming J.”