IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140129

Docket:  M113323

Registry:
Vancouver

Between:

Kyriakoula Vapheas

Plaintiff

And

Connor Noel Madden
and George Madden

Defendants

Before:
The Honourable Madam Justice Adair

Reasons for Judgment

Introduction

[1]            
The plaintiff’s action arises out of a motor vehicle accident that
occurred on September 20, 2010 at the intersection of King George Boulevard and
68th Avenue in Surrey, B.C.  The trial was with respect to liability only.

[2]            
The defendant Connor Madden was driving a white Volvo belonging to his
father, the defendant George Madden.  Connor Madden was making a left turn from
King George Boulevard northbound, intending to travel westbound on 68th
Avenue.  The plaintiff, Ms. Kyriakoula Vapheas, was travelling southbound on
King George Boulevard.  The two vehicles collided with one another in the
intersection.

[3]            
Ms. Vapheas says that she had the right of way, and Mr. Madden, as the
left-turning vehicle, was obliged to yield.  She says that Mr. Madden’s breach
of duty caused the collision.

[4]            
Mr. Madden says that when he was in the intersection waiting to turn
left, the traffic light for southbound and northbound traffic on King George
Boulevard was yellow, and Ms. Vapheas breached her obligation to obey the
traffic signal and stop before entering the intersection.  Mr. Madden says that
Ms. Vapheas’s breach of duty caused the collision.

Background

[5]            
The collision occurred in the morning on September 20, 2010, sometime
before 10:00 a.m.  It was a rainy day, with heavy rain at times, and the roads
were wet.  There was no evidence that either Ms. Vapheas’s or Mr. Madden’s view
of the traffic or the intersection was obstructed.

[6]            
As one approaches the intersection with 68th Avenue, King George
Boulevard has two through lanes northbound and southbound, and dedicated
left-turn and right-turn lanes.  68th Avenue has one through lane eastbound and
westbound, and dedicated left-turn and right-turn lanes.  The intersection is
controlled by traffic signals.  For northbound and southbound traffic the
minimum green is 20 seconds and the maximum green is 55 seconds.  The
“intergreen” period – the length of time between the end of green for one
movement and the beginning of green for a conflicting movement – is 4 seconds
for the yellow light for northbound and southbound traffic, and then 1 second
when the traffic lights for all directions are red, resulting in a total
“intergreen” period of 5 seconds.

[7]            
On September 20, Ms. Vapheas picked up a friend, Ms. Beverly Reilly, at
about 9:30 a.m. to go out for coffee.  Ms. Vapheas was driving a green 1995
Intrepid.  She and Ms. Reilly were headed south to White Rock, on King George
Boulevard.  She believed that she was travelling in the right through lane, and
that, as she approached 68th Avenue, there was a car to her left.  As far as
she could recall, there were no cars in front of her.  Ms. Vapheas believed
that she was travelling about 50 kilometres per hour, although she thought that
the speed limit was 60 kilometres.  Her practice is to take her foot off the
gas as she approaches an intersection, and as far as Ms. Vapheas recalled, she
did that as she approached the intersection of King George Boulevard and 68th
Avenue.  As Ms. Vapheas recalled, when she was about 100 ft. north of the
intersection, the traffic light was green.  She did not recall ever seeing
either a yellow or red light.  As Ms. Vapheas recalled, all of a sudden, she
saw a white car – Mr. Madden’s car – in the intersection, and it was
accelerating.  She says that she tried to brake, and called out to Ms. Reilly,
“he’s going to hit us.”  Mr. Madden’s car hit Ms. Vapheas’s car on the driver’s
door.  Ms. Vapheas’s car continued moving and then struck a lamp post on the
southwest corner of the intersection.  One of the wheels from Ms. Vapheas’s
car flew off and hit the front bumper of a northbound vehicle driven by Ms.
Karamajit Sekhon.

[8]            
Ms. Reilly, who now lives in Manitoba, was not available to attend and
give evidence at the trial as a result of ill-health.  Accordingly, I ruled
that excerpts from her examination for discovery taken in a separate action be
read into the record as her evidence for this trial.

[9]            
Ms. Reilly’s recollection of the accident was quite sketchy.  She
admitted that, at the time, when she was a passenger, she did not really notice
or focus on what was going on around her.  She believed that Ms. Vapheas was
travelling in the left (rather than the right) through lane.  Her evidence
about the colour of the traffic light is equivocal, although she believed it
was green.  She conceded she only noticed the traffic light once.  She did not
remember noticing Mr. Madden’s vehicle until she and Ms. Vapheas were in the
intersection.  Ms. Reilly recalled that Mr. Madden hit the driver’s side
of Ms. Vapheas’s car, but otherwise the collision was all a blur.  According to
Ms. Reilly, after Ms. Vapheas’s car hit the pole, Ms. Reilly blacked out. 
Her memory of her stay in the hospital after the accident was patchy, and as of
her examination for discovery in August 2011, she was continuing to experience
problems with memory.

[10]        
Both Ms. Sekhon and her husband, Mr. Kuldeep Sekhon, were travelling
northbound on King George Boulevard, approaching the intersection of 68th
Avenue.  Ms. Sekhon was driving Mr. Sekhon to work before going on to a
doctor’s appointment.  They were called as witnesses in the plaintiff’s case.

[11]        
Both Mr. Sekhon and Ms. Sekhon testified that, at about the area where
the left-turn lane begins on northbound King George Boulevard, they heard a
noise.  Ms. Sekhon described it as a big bang.  Mr. Sekhon looked in the
direction of the sound and saw Ms. Vapheas’s car hit the lamp pole.  Both Mr.
Sekhon and Ms. Sekhon described how they then saw the wheel from Ms. Vapheas’s
car come flying toward their car.  According to Ms. Sekhon, she was very
frightened, and both Ms. Sekhon and Mr. Sekhon recalled that everything
happened very fast.  The wheel hit the front bumper of the Sekhons’ car and
ended up under it.  As Ms. Sekhon recalled, she stopped her car about six car
lengths or so south of the intersection.

[12]        
As far as Mr. Sekhon could recall, just before he heard the noise from
the collision, and when the Sekhons’ car was about six or seven car lengths
from the intersection, the traffic light for northbound traffic on King George
Boulevard was green, although he also recalled that people were braking.  He
had not noticed Mr. Madden’s car in the left-turn lane.

[13]        
Ms. Kimberly Lang, a registered nurse, was also called as a witness in
the plaintiff’s case.  On September 20, she was travelling westbound on 68th
Avenue, on her way home from grocery shopping.  Ms. Lang used to live in the
area, and is familiar with the intersection of King George Boulevard and 68th
Avenue.  She was stopped on the east side of the intersection for a red light
on 68th Avenue, about three cars back.  As she recalled, as she waited for the
light to change, the red light seemed to last “forever.”  However, although she
could not see the colour of the traffic lights for traffic on King George
Boulevard, eventually she noticed northbound traffic slowing down, and,
thinking that the red light on 68th Avenue was about to change to green, she
then focussed on what was in front of her.  She saw a white car – Connor
Madden’s car – in the intersection waiting to turn left.  She recalled seeing a
car go through, southbound, then the intersection was clear.  Then, according
to Ms. Lang, when the white car started to go, she saw a large green car  – Ms.
Vapheas’s car – come into the intersection southbound.  Ms. Lang did not recall
seeing any other southbound traffic.  As Ms. Lang recalled, a “split second”
after she saw the green car, there was a crash.  The first crash did not look
bad.  But Ms. Vapheas’s car veered off to the right and collided with the lamp
pole, and that crash looked bad.

[14]        
According to Ms. Lang, when she looked up after the two crashes, the
traffic light for traffic on 68th Avenue was green.  Ms. Lang estimated that it
was about three seconds between the time she first saw Ms. Vapheas’s car to
when she looked at the traffic light on 68th Avenue, and saw it was green.  She
described the sequence as red light (for her), then the first impact, followed
quickly by the second impact when Ms. Vapheas hit the pole, and then seeing the
light for her had turned green.  She also described the sequence as “boom,
boom, look up,” to see she now had the green light.

[15]        
On re-examination by Mr. Spieker, Ms. Lang said that there was maybe a
second or two between when the car passed through the intersection southbound
and when Mr. Madden’s car started to go to make the turn, and that she thought
the traffic lights for King George Boulevard were probably yellow, although she
could not see them.

[16]        
Ms. Marie Laboucan, a home support worker, was also called as a witness
in the plaintiff’s case.  Ms. Laboucan was travelling westbound on 68th Avenue,
intending to turn left onto King George Boulevard southbound.  As she came to
the intersection, the traffic light for vehicles on 68th Avenue was red.  As
she recalled, there was a car in front of her.  Ms. Laboucan testified that she
did not in fact see the collision between Ms. Vapheas’s and Mr. Madden’s
vehicles, although she remembered seeing the wheel flying through the air.  However,
she recalled seeing Mr. Madden’s car, prior to the collision, in the
intersection waiting to turn left.

[17]        
In September 2010, Connor Madden was 17 years old.  He had received his
“N” (or novice) licence in early August.  On the morning of September 20, he
was on his way to school, Kwantlen College, on 72nd Avenue.  He had an English
class at 10:00 a.m., although he did not recall thinking he was going to be
late.  He was travelling northbound on King George Boulevard, intending to turn
left at 68th Avenue.

[18]        
Mr. Madden recalled that, just before the collision, he was in the
middle of the intersection, waiting to turn left.  He recalled that the traffic
light on King George Boulevard was yellow.  Although Mr. Madden was unsure
about, or unable to remember, many things, he was definite about the colour of
the light.  He could not recall if he brought his vehicle to a complete stop. 
He recalled seeing some cars travelling southbound on King George Boulevard to
the north of the intersection, and noticing that they were starting to slow
down on the yellow light, although Mr. Madden could not recall noticing Ms. Vapheas’s
green car.  Nevertheless, Mr. Madden explained that when he saw that southbound
vehicles were slowing down, he assessed that they were an appropriate distance
away, made sure the turn was safe and continued on.  As he recalled, he did not
accelerate quickly to make the turn.  According to Mr. Madden, he was waiting
in the intersection a few seconds before the collision with Ms. Vapheas’s
vehicle.  The front of his car collided with Ms. Vapheas’s car.

[19]        
Mr. Madden received a traffic ticket in which the offence was described
as failing to yield.  Mr. Madden decided that he did not want to challenge the
ticket, and did not, although it was not because he thought he had in fact
failed to yield.

[20]        
R.C.M.P. Constable Eric Wall, who issued the ticket to Mr. Madden,
explained his reasons for doing so.  The main reason was that Mr. Madden was
making a left turn.  Although Constable Wall talked to witnesses, he explained
that he had no information about such things as speed or the colour of traffic
lights, and as of trial, he could not recall what any witness said.  In the
circumstances, I place no weight on the fact Mr. Madden was given a ticket or
on the contents of the ticket.  Rather, I base my findings and conclusions on
what the parties and the witnesses to the accident said at trial.

Discussion and Analysis

[21]        
In cases of this kind, witnesses (including parties) do their best, in
response to questions from counsel, to give detailed evidence about such things
as positions and movement of vehicles, the colour of traffic lights, distances
and the length of time of events.  However, witnesses are attempting to describe
events that happened suddenly, and over what is often only a few seconds. 
Witnesses are not waiting for an accident to happen, ready to capture and
recall every relevant detail years later in a trial.  There is, therefore, a
great deal of room for error and reconstruction, even though a witness is doing
his or her best to recall and describe accurately what happened.

[22]        
I have concluded that Mr. and Ms. Sekhon remember mainly what was
happening to them personally – the wheel coming flying through the air at them
and their actions and reactions as a result – and that otherwise, their
memories of events are not very reliable.  Neither of them actually saw the
collision between Ms. Vapheas and Mr. Madden.  Mr. Sekhon could not recall even
seeing Mr. Madden’s car waiting to turn left.  Their recollections of what
northbound traffic was doing and the colour of the traffic lights are too
fragile to make it safe to place much weight on their recollection of relevant
events.  On those points, I prefer the evidence of Ms. Lang in particular.

[23]        
At I noted above, Ms. Lang was called as a witness in the plaintiff’s
case.  Neither her credibility nor her reliability was challenged by either
side, and I found her to be both a credible and reliable witness.  Her evidence
was appropriately detailed, reasonable and plausible.  She described what
seemed like a very long wait for the light on 68th Avenue to change, giving her
a good opportunity to observe what was going on.  She described noticing the
northbound traffic to her left on King George Boulevard slowing down, and
getting herself ready for her light to change.  She described seeing Mr.
Madden’s car in the intersection waiting to turn left.  This is consistent with
Mr. Madden’s evidence that he waited in the intersection on a yellow light
before starting to make his turn, and is consistent with what would be
reasonable in the circumstances.  Based on Ms. Lang’s evidence, southbound
traffic had cleared as Mr. Madden waited to make his left turn, before Ms. Vapheas’s
car came into the intersection.

[24]        
Ms. Laboucan was also called as a witness in the plaintiff’s case,
although in argument Mr. Spieker at least implied that her evidence was
probably not very reliable.  Her evidence suggested that the light for traffic
on 68th Avenue had in fact turned green for 15 seconds, while Mr. Madden was
still waiting in the intersection to make his left turn.  Ms. Laboucan must be
wrong, and her evidence on this point indicates that she is probably not very
good at providing accurate estimates of time.  However, her evidence that, as
she was waiting to make a left turn from 68th Avenue, she saw Mr. Madden’s car
in the intersection waiting to make his turn, is consistent with both Ms.
Lang’s and Mr. Madden’s evidence.

[25]        
Ms. Reilly’s evidence concerning the colour of the traffic light immediately
before the collision is inconsistent with Mr. Madden’s, and not supported by
the evidence of Ms. Lang or Ms. Laboucan.  Given Ms. Reilly’s admitted lack of
focus on such details when she was a passenger, and her admitted memory
problems since, I conclude she is simply mistaken about what she recalls.  I prefer
the evidence of Mr. Madden, Ms. Lang and Ms. Laboucan.

[26]        
Mr. Madden, generally, seemed to have a poor memory about many things,
from how long he had had his N licence as of the date of the accident, to the
route he was taking to school that day, to questions he was asked and answers
he gave on his examination for discovery.  During his testimony, he conceded a
number of times that he could not remember, explaining that it had been “such a
long time” since the accident.  However, the important details that he does
remember – the location of his car in the intersection before the collision and
the colour of the traffic light – are supported by the evidence of Ms. Lang and
are consistent with the probabilities of the surrounding circumstances.  Having
said that, I have concluded I must be cautious about placing too much weight on
his evidence concerning the assessment he made (before he started his turn)
about the distance of the southbound traffic from the intersection, and on his
conclusion that it was safe for him to make his turn.

[27]        
Ms. Vapheas’s evidence is that she entered the intersection on a green
light.  However, her evidence in this regard is inconsistent with Mr. Madden’s,
and it is also inconsistent with Ms. Lang’s.  In addition, Ms. Laboucan’s
evidence relevant to the colour of the traffic lights, although not without
problems, is also more consistent with that of Mr. Madden and Ms. Lang, and
inconsistent with Ms. Vapheas’s evidence.  I conclude that Ms. Vapheas’s
memory on the question of the colour of the traffic light is not reliable, and
I prefer the evidence of Ms. Lang and Mr. Madden.

[28]        
I turn next to the legal framework.

[29]        
This case requires me to consider the interplay between two sections of
the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

[30]        
The statutory obligation imposed on a driver intending to turn left at
an intersection is set out in s. 174 of the Act:

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.

[31]        
An “immediate hazard” has been defined in these terms:  if an
approaching car is so close to the intersection when a driver attempts to make
a left turn that a collision threatens unless there is some violent or sudden
avoiding action on the part of the driver of the approaching car, then the
approaching car is an immediate hazard.  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.  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.  Thus, if a left-turning
driver asserts that he or she started to turn when it was safe to do so, then
the burden of proving that fact rests with him or her.  See Raie v.
Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.), at p. 410, and Nerval v.
Khera, 2012 BCCA 436, at paras. 33-35.

[32]        
The duty on a left-turning driver under s. 174 is not absolute.  Left-turning
drivers are entitled to assume 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),
19 B.C.L.R. (3d) 273, 1996 CanLII 2404 (C.A.), at para. 10.

[33]        
The statutory obligation on a motorist faced with a yellow traffic light
is set out in s. 128(1) of the Act:

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 [.]

[34]        
The onus of proving that the stop cannot be made in safety is on the
driver facing the yellow light, in this case, Ms. Vapheas.  See Ziani v.
Thede, 2011 BCSC 895, at para. 26.

[35]        
In argument, Mr. Perry urged me to find that Ms. Vapheas entered the
intersection on a red light, in which case she had an absolute obligation to
stop.  However, I do not think that the evidence supports that conclusion.  Mr.
Madden, for example, never testified the light was red.  Rather, he was clear that
the light was yellow.  Moreover, the proposition that she in fact was facing a
red light when she entered the intersection was never put to Ms. Vapheas.  I
cannot therefore accept Mr. Perry’s argument on this point.

[36]        
I find that, when Mr. Madden was waiting in the intersection to make his
left turn, the traffic light for southbound and northbound traffic was yellow
and had likely been yellow for several seconds.  I find that Ms. Vapheas then entered
the intersection on a “stale” yellow, at which point, her vehicle and Mr.
Madden’s vehicle collided.  Ms. Vapheas’s duty was to stop before entering the
intersection, unless the stop could not be made in safety.

[37]        
Ms. Vapheas has the onus of proving that she was unable to stop safely. 
Although I heard evidence that it had been raining and the roads were wet, in
my opinion, Ms. Vapheas did not satisfy the evidentiary burden on her to show
that she was unable to stop safely on the yellow light.  Rather, she asserted
that she entered the intersection on a green light.  Since, as I have found,
Ms. Vapheas entered the intersection on a yellow light, Ms. Vapheas cannot
claim to have been the dominant driver.  Rather, she was obliged to stop and
yield the right of way to the left-turning driver, Mr. Madden.

[38]        
However, as Nerval demonstrates, the fact that Mr. Madden
was the dominant driver is not the end of the matter, because the obligation
under s. 174 – to make the left turn only if he could do so in safety – applies
to him.  Did he breach that obligation?

[39]        
Mr. Madden bears the burden of proving the absence of an immediate
hazard at the moment he began his left turn.  Mr. Madden described how he
assessed the southbound traffic before he began his left turn, and his evidence
that he assessed southbound traffic to be slowing has some support in Ms. Vapheas’s
evidence about taking her foot off the gas pedal.  Mr. Madden is entitled to
assume that others will obey the rules of the road, and to rely on that
assumption in deciding whether or not an oncoming vehicle constitutes an immediate
hazard.

[40]        
However, in my opinion, Mr. Madden’s memory of the critical events at
the point he began his left turn is too fragile and unreliable for me to find
that he has satisfied his burden of proof.  Moreover, in my opinion, the
evidence concerning where the vehicles collided – that the front of Mr.
Madden’s car hit the driver’s door of Ms. Vapheas’s car – is more consistent
with Ms. Vapheas’s vehicle being an immediate hazard.

[41]        
I find, therefore, that Mr. Madden failed to comply with the duty on him
under s. 174 of the Motor Vehicle Act.

[42]        
I conclude therefore that the collision was caused by the failure of
both Ms. Vapheas and Mr. Madden to meet the standard of care required of
reasonable drivers in the circumstances.  In my opinion, because of Ms. Vapheas’s
breach of s. 128(1)(a), she bears the greater fault, and I apportion
liability 75% to Ms. Vapheas and 25% to Mr. Madden.

[43]        
Unless counsel wish to make submissions on costs, costs will follow the
event.  If counsel wish to make submissions on costs, they have leave to do so in
writing, but the submissions must be filed within 30 days of the date of this
judgment.

“Adair
J.”