In THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140408

Docket: 12‑2847

Registry:
Victoria

Between:

Grant
Watt Graham

Plaintiff

And

Primrose
M. Carson and Victoria Ford Alliance Ltd.

Defendants

Before:
The Honourable Mr. Justice Macintosh
(appearing via teleconference)

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff, Grant Graham, is an experienced
cyclist.  On the morning of October 22, 2010, he was driving his bicycle to
work, travelling south on Blanshard Street in Victoria.  Mr. Graham brings
this action because, just after he crossed Fort Street that morning, he
suffered injury which he attributes to the defendants.

[2]            
The trial held before me in Victoria on April 1 and 2 addressed the
question of liability only and, in particular, whether the defendant Primrose
Carson or the plaintiff or both should be found liable for the injuries Mr. Graham
sustained.

[3]            
Ms. Carson was also on her way to work that morning.  She, too, was
travelling southward on Blanshard, but prior to the accident she had stopped
her car in a commercial loading zone on the west side of Blanshard, immediately
south of Fort Street.  Ms. Carson stopped there to drop off her husband.

[4]            
The liability question in this case turns on what happened in the few
seconds when Ms. Carson pulled her car out into traffic on Blanshard to
carry on heading south on her way to work.  I have concluded that
Ms. Carson pulled out into traffic too quickly, and that she did not have
her turn signal on to indicate that she was about to do so.  She recalls that she
did put her turn signal on.

[5]            
The plaintiff and an independent witness, Mr. Nathan Enns, who was
driving his car south on Blanshard just behind the plaintiff, were both clear
in recalling that Ms. Carson did not activate her turn signal before re‑entering
the Blanshard traffic.

[6]            
When I conclude, as I have, that Ms. Carson did not activate her
turn signal, I add that Ms. Carson appeared to be a truthful witness
giving her testimony in a forthright manner.  One’s memory of what would have
been a small event, such as, in this case, whether a turn signal was activated,
can easily be imperfect.  It is difficult to always recall accurately whether
an often‑repeated action in fact occurred on any single occasion.

[7]            
By contrast, the plaintiff and Mr. Enns were seeing the defendant’s
car at a 45‑degree angle to the traffic in what was, for both of them, a
difficult situation when their attention had become fully engaged.  The absence
of a turn signal was clearly etched in their recollections.

[8]            
Having found as I have regarding the turn signal, I add that the failure
to signal is not the central concern in this case.  If Ms. Carson had
signalled at about the same moment she pulled out and drove into the traffic,
the signal would have been of little or no assistance to anyone.  The main
problem was that Ms. Carson’s car darted out into traffic too quickly.  The
traffic was proceeding south on Blanshard immediately behind or beside her car
when her car had been stopped in the commercial zone moments before that.  She
should have waited for a safe opening in the traffic, which might have entailed
waiting where she was until the light changed so as to stop the southerly flow
on Blanshard before cars started south onto Blanshard from Fort Street.

[9]            
As it happened, Ms. Carson pulled out into the southbound traffic
too quickly, and the driver of the vehicle immediately behind her had to stop
his SUV very quickly.  Fortunately, he was able to do so without colliding with
the defendant’s car.

[10]        
Incidentally, neither side called that driver as a witness.  The facts
found in these reasons are based on the testimony of the plaintiff, the
defendant driver, and Mr. Enns, the driver of the following car who was
referenced above.

[11]        
Proceeding through the green light southward on Blanshard were, first,
the SUV, second, the plaintiff on his bicycle, and third, Mr. Enns in his
car.  The SUV, the plaintiff’s bicycle and the Enns car were thrown into
disarray by the defendant driver pulling out too suddenly, immediately in front
of the SUV.

[12]        
I noted above that the SUV stopped before hitting the defendant’s car,
but avoiding that collision was a near thing.  The SUV had to stop very
quickly.  Mr. Enns veered his car toward the left; that is, toward the
centremost of the southbound lanes on Blanshard, in order to avoid a
collision.  Meanwhile, the plaintiff on his bike had a matter of seconds to
decide what to do.  He was conscious from past experience that he risked being
rear‑ended by the Enns vehicle if he stayed his course and simply braked,
hoping to stop in time to avoid hitting the SUV.  Instead, he steered his bike,
to the right, into what appeared as a metre‑wide opening between the
stopped SUV and a car parked on Blanshard, just south of the commercial zone.

[13]        
As I noted above, Mr. Graham is an experienced cyclist, and hoping
to avoid injury by driving into the space between the SUV and the parked car was
not unreasonable in that dire circumstance, when there was no time and little
opportunity to do anything else.

[14]        
Unfortunately, that escape route did not save the plaintiff.  His elbow
hit the mirror of the parked car, breaking off the mirror.  That impact drove
him from his bike and injured him, thus giving rise to this claim.

[15]        
Meanwhile, the defendant driver did not witness any of these events,
having pulled out into traffic in front of the SUV.  Her first awareness of the
accident behind her came from her looking in her rear-view mirror when she was
nearly at the intersection with Broughton Street.

[16]        
My view of the evidence and my resulting findings of fact lead to my conclusion
that the defendant driver is fully liable for the plaintiff’s injuries.  The
plaintiff was not contributorily negligent.  He acted promptly and not
unreasonably in a desperate situation, which was brought about entirely by
Ms. Carson’s re‑entering traffic when her car should have stayed
where it was until there was a safe opportunity to proceed.

[17]        
The case was well-argued by the defence.  I am not sure that anything
more could have been said, but in my view, the defence theory of the case
places unreasonable responsibilities on the shoulders of the plaintiff.  The
defence invites the Court to conclude that Mr. Graham should have brought
his bike to a stop behind the suddenly‑stopped SUV, and that he was
negligent for not attempting that.  No one can be certain of what would have
happened with that course of events, but as I have found above, the evasive
action which Mr. Graham did undertake was not unreasonable in the
circumstance, particularly when the decision to act had to be formulated probably
within one or two seconds, all because of a change of events authored by the
defendant driver alone.  To fully succeed here, the plaintiff must show, on the
balance of probabilities, that his injuries were the result of the defendant
driver’s negligence, and not his negligence.

[18]        
I have found above the facts which would support findings that
Ms. Carson violated provisions of the Motor Vehicle Act, R.S.B.C.
1996, c. 316, by driving without paying due care and attention and turning into
traffic without signalling.  The probable violations of those statutory
provisions are informative but not determinative of negligent conduct, and my
finding of Ms. Carson’s negligence is not based on the statutory
provisions; it is based on the facts as set out earlier in these reasons.

[19]        
The plaintiff cited our Court of Appeal’s decision in Skinner v. Fu,
2010 BCCA 321, at para. 21, where Garson J.A. said:

The judgment in Resurfice
Corp. v. Hanke refines the test of causation and reminds us that the
defendant’s breach of the standard of care need only be a cause of the
plaintiff’s injury and not the sole cause (see also Athey v. Leonati,
[1996] 3 S.C.R. 458).  There may exist other causes that materially contributed
to the injury, but that does not relieve the defendant of liability.  In such
circumstances, relief from liability follows only if the defendant’s breach of
his standard of care did not materially contribute to the plaintiff’s injury. 
The analysis should be focused on the question: “but for” the defendant’s
breach of the standard of care, would the plaintiff have suffered damage?

[20]        
The defendants responded by noting para. 23 in Skinner,
which reminds us that, generally speaking, the law remains that following
drivers will usually be at fault for failing to avoid a collision with a
vehicle which has stopped quickly in front.  But of course, the analysis of who
is responsible for an accident will depend on a close examination of the
particular facts of that particular accident.  Precedents are of substantial
value, of course, for determining the guiding legal principles, but are of more
limited value for assisting in finding the facts in a case at bar.

[21]        
I do not find from the facts stated above that Mr. Graham was
contributorily negligent.  A person is guilty of contributory negligence if he
ought reasonably to have foreseen that if he did not act as a reasonable,
prudent man he might be hurt himself.  That was the reasoning of Denning L.J.
in Jones v. Livox Quarries, [1952] Q.B. 608 (C.A.), at page 615, which
was adopted by the Supreme Court of Canada in Bow Valley Husky (Bermuda)
Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, at paragraph
76.

[22]        
Acting in the emergency caused by the defendant driver’s negligence, as
Mr. Graham was compelled to do, he cannot be expected to have exercised
his judgment perfectly.

[23]        
Freedman C.J.M. said in Neufeld v. Landry (1974), 55 D.L.R. (3d)
296 at page 298:

The conduct of the plaintiff
driver must be assessed in the light of the crisis that was looming up before
her.  If in the "agony of the moment" the evasive action she took may
not have been as good as some other course of action she might have taken — a
doubtful matter at best — we would not characterize her conduct as amounting
to contributory negligence.  It was the defendant who created the emergency
which led to the accident.  It does not lie in his mouth to be minutely
critical of the reactive conduct of the plaintiff whose safety he has
imperilled by his negligence.

Of course, the gender references in that quotation are to be
reversed for the case at bar, but the reasoning has direct application here.

[24]        
I was shown the reasons of K.J. Smith J.A., in Chambers v. Goertz,
2009 BCCA 358, at para. 56(c), where he set out factors for apportioning
fault where contributory negligence is at issue.  I do not address those
factors here individually, because they are, I believe, subsumed by findings of
fact earlier in these reasons, which support my conclusion that Mr. Graham
has no contributory fault from trying to protect himself as he did.

[25]        
In conclusion, I find the defendants wholly liable.  Counsel drew no
distinction between the responsibility as between the two defendants, and I
therefore do not address that point.

[26]        
Costs will go to the plaintiff, unless there are relevant facts
affecting that issue of which I am unaware, in which case costs can be spoken
to either in writing or in whatever other manner is convenient.

[27]        
As I said during the trial, I wish to thank counsel for presenting their
cases well, so as to readily assist the Court.

[28]        
Thank you, Madam Registrar.

"MACINTOSH
J."