IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150310

Docket: M133649

Registry:
New Westminster

Between:

Helena Pirie

Plaintiff

And

Sidney William
Skantz and Cale A. Lovewind

Defendants

Before:
The Honourable Madam Justice Devlin

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff’s action arises from a motor vehicle accident that
occurred on April 6, 2010 in Maple Ridge, BC. The trial was with respect to
liability only.

[2]            
The position of the plaintiff, Helena Pirie (the “Plaintiff”), is that
the defendant, Sidney Skantz (the “Defendant”), is solely liable for the
accident because he negligently operated his vehicle by proceeding through the
intersection while the Plaintiff was turning left.

[3]            
The Defendant’s position is that the Plaintiff negligently made a left
turn without regard for the immediate hazard presented by the Defendant’s
vehicle, in breach of s.174 of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318 [MVA].

II.              
The Motor Vehicle Accident

[4]            
The collision occurred on the morning of April 6, 2010 around 7:50 am at
the intersection of Lougheed Highway and 232^nd Street/Haney
Bypass/Kanaka Way, in Maple Ridge, BC. It was a clear day, with normal lighting
conditions and good visibility. The roads were wet. Both the Plaintiff and the Defendant
had a clear view of the traffic and the intersection. The Plaintiff was driving
a 1989 Toyota Corolla while the Defendant was driving a 2000 Chevy Silverado
pick-up truck that was towing a trailer loaded with a car. Although it was
morning rush hour, the traffic was light. The collision occurred while the Plaintiff
was making a left turn from Lougheed Highway onto Kanaka Way. While the Plaintiff
was turning left, her car was struck by the truck driven by the Defendant, and
owned by the co-defendant, Cale Lovewind. As a result of the collision, both
vehicles ended up to the north of the intersection. The accident was severe and
both vehicles were damaged beyond repair.

[5]            
At the time of the accident, both directions on Lougheed Highway had
dedicated left turn and right turn lanes, as well as two through lanes for each
direction of travel. The intersection is governed by overhead traffic signal
lights. The light sequencing for Lougheed Highway is the same for both
directions. Once the light turns from green to yellow, the yellow is displayed
for 4.7 seconds, at which point it turns red for 1.5 seconds for all directions
of travel. After the 1.5 seconds of all red, the lights turn green for traffic
on Kanaka Way and Haney Bypass, and remain red for traffic on Lougheed Highway.

[6]            
There are also overhead “Prepare to Stop” advance warning flashing
lights (“AWF”) available for both directions on Lougheed Highway, which are located
103.5 meters from the stop line for both directions of travel. The AWF are equipped
with flashing yellow lights that illuminate before the overhead lights at the
intersection turn to yellow (from green) and to red (from yellow). At the time
of the accident, the AWF illuminated 6.2 seconds before the light at the
intersection turned from green to yellow.

[7]            
The posted speed limit on Lougheed Highway to the south of the
intersection was 80 km/hour (the Defendant’s direction of travel) and the
posted speed limit on the Lougheed Highway to the north of the intersection was
50 km/hour (the Plaintiff’s direction of travel).

III.            
The Evidence

[8]            
The witnesses called by the Plaintiff were the Plaintiff, Mr. Wade,
Mr. Morgan, who were both witnesses the accident and Mr. Araszewski,
an expert in accident reconstruction. The witnesses called by the Defendant
were the Defendant and Ms. Williams who also witnessed the accident.

[9]            
In cases of this kind, where events happen suddenly, and over a period
of a few seconds, all parties do their best to give detailed evidence about
things such as the position and movements of their vehicles, the colour of
traffic lights, distances and time estimates. When reviewing the evidence it
must be remembered that the witnesses are not waiting for the accident to
happen, and so may not capture every relevant detail years later when
testifying at trial.

A.             
The Plaintiff

[10]        
On the morning of April 6, 2010, the Plaintiff was on way her from her
home in Maple Ridge to a client’s home to pick up the client’s two boys and
drive them to school. In the course of her employment, the Plaintiff had been driving
this route two to three times per week for a couple of months. The Plaintiff
was driving a 1989 Toyota Camry and was in the process of making a left hand
turn from Lougheed Highway eastbound onto Kanaka Way, when her car was hit in
the middle of the passenger side by the front end of the Defendant’s truck as
he travelled westbound on Lougheed Highway.

[11]        
The Plaintiff testified that as she approached the intersection eastbound
on Lougheed Highway, she noticed that the AWF for travel in her direction were
activated as she passed under the sign. She knew that AWF meant that the lights
at the intersection were going to change. She entered the designated left turn
lane and then proceeded into the intersection on a green light. She stopped in the
intersection, waiting to make a left turn, and could see a white truck
traveling toward her which she described as “a ways off”. She testified that
while she was waiting the traffic light turned from yellow to red before she
started to make her turn. The Plaintiff testified that she believed that the
truck would stop because the light was red as she made her turn. While making
her left turn, the Plaintiff was looking forward towards Kanaka Way and noticed
out of the corner or her eye the Chevy emblem just as the Defendant’s vehicle
collided with the passenger side of her car. The Plaintiff testified that the Defendant
vehicle appeared to be travelling at a normal speed and that she made her turn
at a normal speed.

[12]        
On cross-examination, the Plaintiff somewhat hesitantly agreed that she
misjudged the distance of the truck. She maintained that in her view the truck
was “a long ways away”, but also agreed that the truck was too close to the
intersection to make the turn safely. When pressed why she did not turn on the
green light when she could see that the truck was still a “long ways away”, the
Plaintiff explained that she waited because she wanted to be safe. She also
stated that she was not certain of the speed or distance of the truck at the
time she made her turn. The Plaintiff was also questioned about the statement
she made to the insurer a week after the accident. The Plaintiff maintained
that her statement that “the light was turning from yellow to red as I made my
turn” meant the same thing as saying that she turned when the light was red. The
Plaintiff was injured in the accident and taken by ambulance to the hospital.
She has little to no memory of the accident itself.

B.             
Garth Wade

[13]        
Garth Wade witnessed the accident as he was stopped southbound in the
left turn lane of Kanaka Way at the intersection. Mr. Wade was driving a
white Ford Van belonging to his work. Mr. Wade described the traffic as
typical for that time of day; it was not exceptionally busy and the roads were
wet. He noticed that there was a car to his right on Kanaka Way. Mr. Wade
did not notice either party’s vehicles until the impact, and he did not notice
the colour of the lights on Lougheed Highway at that time.

[14]        
After the collision, Mr. Wade watched the movement of the two
vehicles until they came to a stop. After the vehicles stopped, he saw that his
light had turned green. Mr. Wade estimated that two to five seconds passed
from the moment of impact till he saw that his light was green. Mr. Wade
went to assist the Plaintiff until emergency vehicles arrived.

C.             
Christopher Morgan

[15]        
Christopher Morgan witnessed the accident from his Dodge Dakota pick-up
truck while stopped northbound in the through lane of Haney Bypass at the
intersection. He was the first vehicle stopped at the lights and was waiting to
travel through the intersection and onto Kanaka Way. Mr. Morgan saw the
Plaintiff’s car stopped in the intersection for “a period of time”, which he
estimated to be more than five seconds. He saw the Plaintiff’s car make what he
described as a typical left turn and then saw the Defendant’s truck hit the car.
Most importantly, immediately after the impact, Mr. Morgan looked at the
traffic light for Lougheed Highway and saw that it was yellow. Mr. Morgan
testified that he was “in awe” when he saw that the light was yellow because he
had assumed the truck ran a red light. Mr. Morgan also testified that he
saw the light turn from yellow to red at the end of the collision, and then saw
his light turn to green shortly afterwards. He described the entire sequence of
events from the moment of impact until his light turned green as “a very short
period of time”.

D.             
The Defendant

[16]        
The Defendant testified that on the morning of the accident he had left
his house in De Roche, BC, to drive his wife to work and then to deliver a car
that he was towing on a trailer behind the truck. The Defendant’s wife was in
the front passenger seat of his pick-up truck. The Defendant was an experienced
driver and knew that a truck towing a trailer can be more unstable and requires
more time to stop. The Defendant was familiar with the route, as he had driven
it dozens of times in the previous three to four months. The Defendant was
driving 80 km/hour, on cruise control, as he approached the intersection. When
he was at least 100 feet from the intersection, the traffic light turned yellow.
At this point he pressed the brakes to slow down, but his intention was to
proceed through the yellow light. He could see the Plaintiff’s car in the
left-turn lane and he expected the car would stop. The car did not stop. The
Defendant pressed his brakes, but was unable to avoid hitting the car which was
directly in front of him.

[17]        
The truck-trailer driven by the Defendant had a total length of
approximately 40 feet and weighed approximately 10,000 pounds. The Defendant
was cognizant of the fact that the roads were wet that morning, that damp roads
can be hazardous and that it would take more time to stop a truck pulling a
loaded trailer. On cross-examination, the Defendant agreed that the speed at
which he was travelling was too fast and unsafe for the wet road conditions.

[18]        
The Defendant testified that as he approached the intersection in the
slow lane (right lane) of Lougheed Highway he observed the overhead AWF, and
knew that if the lights were flashing the lights at the intersection would be
changing from either green to yellow or yellow to red. Although the Defendant
maintained under cross-examination that the AWF were not flashing when he saw
them, he also acknowledged it was possible he did not notice that the lights
were activated.

[19]        
The Defendant first saw the Plaintiff’s vehicle as it approached the
intersection in the opposite direction approximately a quarter mile from the
intersection. He estimated this was 20 to 30 seconds before impact. The
Defendant was aware that the Plaintiff intended to turn left and that the light
ahead turned from green to yellow when he was at least 100 feet from the
intersection. The Defendant testified that after the light turned yellow he
decided not to stop because the roads were damp and he was concerned that his
trailer might go sideways. He was also aware there were cars stopped on either
side of the intersection. The Defendant testified that after the light turned
yellow he hoped the Plaintiff would stop so he could proceed through the
intersection. In his examination for discovery, the Defendant confirmed that the
Plaintiff did not turn until after the light turned yellow. The Defendant
estimated he was 50 feet away from the intersection when she made the left hand
turn in front of his truck. When he saw the car make the turn he pressed his
brakes as hard as he could, but he could not prevent the truck from hitting her
car. The Defendant took no other evasive maneuvers before impact. The Defendant
described the collision as “horrendous”, and once he got out of his truck he
went over to see how the Plaintiff was doing. Both he and his wife were
uninjured.

E.             
Erica Williams

[20]        
Erica Williams was called by the Defendant. At the time of the
accident, Ms. Williams was stopped southbound in the through lane of
Kanaka Way at the intersection. She was the first vehicle in line stopped at
the lights, and was waiting on a red light to travel through the intersection
onto Haney Bypass.

[21]        
Ms. Williams noticed the Defendant’s white pick-up truck and
trailer as it approached the intersection from her left. She also noticed that
the traffic light for Lougheed Highway was yellow as the Defendant’s truck
approached the intersection. Ms. Williams did not see the Plaintiff’s
vehicle until it was “suddenly” directly in front of the Defendant’s truck.
Ms. Williams testified that she was “surprised” by the car suddenly
appearing in the intersection and it was only a “fraction of a second” before
impact. Ms. Williams was certain the light was yellow as the Defendant’s
truck and trailer approached the intersection.

F.             
Expert Evidence – Michael Araszewski

[22]        
Michael Araszewski, a mechanical engineer with Intech Engineering Ltd.,
was called by the Plaintiff to provide expert evidence with respect to accident
reconstruction. Mr. Araszewski provided opinion evidence on the activation
of the AWF and the deceleration rate required for a truck to stop at the
intersection.

[23]        
Mr. Araszewski gave evidence regarding the light sequencing at the
intersection with reference to a Signal Display Schematic report provided by
the Ministry of Transportation and Infrastructure, which described the signal
operation at the relevant time on April 6, 2010. Based on the data, the AWF on
Lougheed Highway were active for 6.2 seconds before the signal changed from
green to yellow for both northbound and southbound directions on Lougheed Highway.
Both directions would have then had a yellow signal for 4.7 seconds prior to
the signal changing to red. Mr. Araszewski also stated that the AWF for
both directions of traffic were located 103.5 metres before the intersection.
Mr. Araszewski testified that a vehicle travelling at 80 km/hour travels
about 22 meters (72 feet) per second. Therefore, travelling at 80 km/hour, the
Defendant could have stopped his truck in a total distance of 70 meters, or
total time of 5.4 seconds, by applying aggressive braking. According to Mr. Araszewski’s
evidence, the Defendant would have come to a complete stop very near to the
point of impact and would have decelerated significantly over the 5.4 seconds
of stopping time, allowing the Plaintiff to clear his path and avoid the
collision. Further, it was Mr. Araszewski’s opinion, assuming that the
light turned yellow when the Defendant’s truck was 0 to 150 feet, or two to three
seconds, from the intersection that:

(1)      The
AWF activated when the Defendant was between 32 to 80 meters before the sign;

(2)      The
AWF sign was within the Defendant’s field of view as he approached the sign and
the intersection;

(3)      If the
Defendant had obeyed the AWF and responded to the “prepare to stop” warning, he
would have stopped before entering the intersection by applying normal braking
or less.

[24]        
Based on Mr. Araszewski’s opinion, if the light had turned yellow
as the Defendant approached the intersection, it would have been a late yellow
with between 1.7 and 2.7 seconds remaining in the 4.7 yellow light cycle by the
time his vehicle reached the intersection. Further, Mr. Araszewski was of
the opinion that if a vehicle traveling at or near a constant speed of 80 km/hour
passed under the northbound AWF at the instant the lights became activated,
then it would have reached the stop line 1.5 seconds prior to the green light
changing to amber. Therefore, the vehicle would have cleared the intersection
prior to the light changing from green to yellow.

IV.           
Findings of Fact

[25]        
The Court must carefully assess the credibility and reliability of the
evidence in order to find the facts. This involves a careful consideration of
the trustworthiness of the witnesses’ testimony, based on the veracity and
sincerity of the witnesses and the accuracy of the evidence they provide: Bradshaw
v. Stenner, 2010 BCSC 1398 [Bradshaw], aff’d 2012 BCCA 296. In Bradshaw,
at the trial level, Dillon J. stated the following at para. 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).

[26]        
The Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
also confirmed the careful assessment that must be made of credibility in
determining the facts of a case. More recently, in Gichuru v. Smith,
2013 BCSC 895, aff’d 2014 BCCA 414, Adair J. quoted Bradshaw and then
summarized as follows:

[130]    Moreover, the assessment of a witness’s credibility
must reasonably subject the witness’s story to an examination of its
consistency with the probabilities of the surrounding conditions or
circumstances. The real test of the truth of the story of a witness in such a
case must be its harmony with the preponderance of the probabilities which a
practical and informed person would readily recognize as reasonable in that
place and in those circumstances. See Faryna v. Chorny, [1952] 2 D.L.R.
354 (B.C.C.A.), at pp. 356-357.

[27]        
Applying these principles to the present case, I found both the Plaintiff
and Defendant to be honest and credible witnesses. They both experienced a
traumatic event and endeavoured to provide their best evidence given the
passage of time and, for the Plaintiff, the apparent lasting impact from the
collision. During her testimony, it was evident that the Plaintiff had some
difficulty expressing herself and at times struggled to provide answers. I
found the witnesses to be both credible and reliable. They each testified to the
best of their recollection and at no time engaged in speculation or
exaggeration. They were all testifying about unexpected events that took place
over a matter of seconds.

[28]        
Based on my review of all of the evidence, I cannot accept the
Plaintiff’s evidence that she commenced the left turn when the light facing her
turned red. In reaching this conclusion I have considered the evidence of both the
Defendant and Mr. Morgan, who were the two witnesses who testified about
the colour of the light at the time of the collision. In particular, I find
that Mr. Morgan’s testimony that he was in “awe of the yellow” light after
he witnessed the collision to be very significant. Mr. Morgan had a good
memory of the events. His evidence was detailed, reasonable and plausible. I
have also considered the evidence of Ms. Williams, who testified that the
light for traffic on Lougheed Highway was yellow as the Defendant’s truck was
approaching the intersection. I conclude that the Plaintiff’s memory regarding
the colour of the traffic light is not reliable, and I prefer the evidence of the
Defendant and Mr. Morgan. Accordingly, I find that when the Plaintiff
commenced the left turn, the light for Lougheed Highway was yellow.

[29]        
There is no question that the parties to the collision saw each other’s
vehicles before the collision. Although it was rush hour, the traffic was not
heavy. The Plaintiff testified that she noticed the truck when it was “a ways
away” and waited to turn left at the intersection in order to be safe. I find
that the Plaintiff misjudged the distance of the Defendant’s vehicle at the
time she commenced her left turn and failed to recognize the Defendant vehicle
as an immediate hazard.

[30]        
I also find that the Defendant was cognizant of the potentially
treacherous road conditions on the morning of the accident and that more care
and attention was needed, as he was driving a truck and trailer which would
require more time to stop safely. By his own admission on cross-examination, the
Defendant acknowledged that driving the truck and trailer on cruise control at
80 km/hour on wet roads in morning rush hour, while not in excess of the posted
speed limit, was too fast and unsafe.

[31]        
The Defendant also testified that he was familiar with the purpose of
the AWF and acknowledged in cross-examination that he may not have noticed that
the AWF had been activated. While the Defendant may not have noticed the AWF, I
am satisfied, based on the expert evidence and signal display schematic report
regarding the sequencing of lights, that the AWF were activated before the
Defendant passed directly under the overhead sign, and he failed to notice or
take heed of the flashing lights.

V.             
The Law

[32]        
I now turn to the relevant legal framework. This case requires me to
consider the interplay between the following sections of the MVA:

125      Unless otherwise directed by a peace officer or a
person authorized by a peace officer to direct traffic, every driver of a
vehicle and every pedestrian must obey the instructions of an applicable
traffic control device.

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.

…

144(1)  A person must not drive a motor vehicle on a highway

(a)        without due care and
attention,

(b)        without
reasonable consideration for other persons using the highway, or

(c)        at a
speed that is excessive relative to the road, traffic, visibility or weather
conditions.

…

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.

[33]        
Counsel for the parties referred to various authorities that have
judicially considered these statutory requirements for drivers. Though counsel
rely strongly on the MVA provisions, I note that while the statutory
provisions provide guidelines for assessing fault in motor vehicle accident
cases, they do not, alone, provide a complete legal framework: Salaam v.
Abramovic, 2010 BCCA 212 [Salaam] at para. 18. One must
acknowledge the realistic exigencies involved in making what are usually
split-second decisions by drivers in circumstances where traffic factors have
to be assessed quickly: Henry v. Bennett, 2011 BCSC 1254. The standard
of care of a driver is not perfection, but is that of an ordinary prudent
person: Hadden v. Lynch, 2008 BCSC 295 at para. 69; Uyeyama
(Guardian ad litem of) v. Wittenberg, [1985] B.C.J. 1883 (C.A.).

VI.           
Analysis

[34]        
Having found that the Plaintiff made her left hand turn when the traffic
light was yellow, I must consider the statutory obligation imposed on a driver
intending to turn left at an intersection as set out in s. 174 of the MVA.

[35]        
The effect of s. 174 is to cast the burden on the left turning
driver to prove the absence of an immediate hazard at the moment the left turn
begins. 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: Nerval v. Khehra, 2012 BCCA 436 [Nerval] at paras. 33-35.

[36]        
In Nerval, at paras. 36-37, Harris J.A. outlined the
two-part burden placed upon a left turning driver under s. 174, summarized
as follows:

(1)      to
demonstrate that when the left turning driver commenced his or her turn, there
was no immediate hazard; and

(2)      if
the through driver is found to be the dominant driver, to show that the through
driver nonetheless was negligent and at fault for contributing to the accident.

[37]        
An "immediate hazard" has been defined in these terms: if an
approaching vehicle 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 vehicle
(the through driver), then the approaching vehicle 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: Raie v. Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.)
at p. 410; Vukelich v. Vliegenthart, 2013 BCSC 879 [Vukelich]
at para. 36.

[38]        
However, the duty on a left turning driver under s. 174 of the MVA
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: Kokkinis v.
Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.) at para. 10.

[39]        
If the court determines that the through driver was an immediate hazard
when the left turning driver commenced his or her turn, the left turning driver
is considered the servient driver and the oncoming driver is considered the
dominant driver. Any doubt is resolved in favour of the dominant driver. The
relevant authorities for this proposition are: O’Ruairc et al v. Pelletier
et al, 2002 BCSC 601 at para. 28; Walker v. Brownlee and
Harmon, [1952] 2 D.L.R. 450 (S.C.C.); Pacheco (Guardian ad litem of) v.
Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) [Pacheco]; McCowan
v. Arjune et al, 2002 BCCA 267 at para. 20.

[40]        
Since I have found that the traffic light was yellow when the Plaintiff
commenced turning left, I find that by the time she commenced the left turn
from the stop position in the intersection she knew or ought to have known that
the Defendant’s vehicle was approaching from the opposite direction in close
proximity to the intersection and at such a speed that his vehicle was an immediate
hazard.  At that moment she failed to determine if it was safe for her to
proceed.  Unlike the situation in Nerval, there were no vehicles
blocking the Plaintiff’s view. Nor is this similar to the situation in Lee v.
Tse, 2013 BCSC 1740, where Fleming J. found that the defendant through
driver entered the intersection on a red light, and was thus not an immediate
hazard at the time the plaintiff commenced the left turn. Accordingly, I find
that the Plaintiff was the servient driver when she commenced the left turn,
and as such she was obliged to yield to the right of way of the dominant
driver, the Defendant.

[41]        
I am also satisfied that once the Plaintiff commenced her left hand
turn, the Defendant had no opportunity to avoid the accident. The Defendant was
entitled to assume the Plaintiff would follow the rules of the road. He was not
required to anticipate the Plaintiff would turn into his lane of travel: Bissky
v. Trottier (1984), 54 B.C.L.R. 288 (S.C.); aff’d (1986), 38 A.C.W.S. (2d)
274 (C.A.); Etter v. Trent, [1991] B.C.J. No. 237 (C.A.). As stated
in Pacheco, the presence of a left turning vehicle does not impose a
duty of extra care upon an oncoming vehicle.

[42]        
In Nerval, the Court of Appeal explained that dominance
identifies who must yield to the right of way. One consequence of this analysis
is that negligence on the part of the through driver does not disqualify that
driver as the dominant driver. The through driver remains dominant, even though
their conduct may be negligent. The correct analysis is to recognize that the
through driver is breaching his or her common law and/or statutory obligations,
and to address the issue as one of apportioning fault, rather than reclassifying
the through driver as servient based on the degree to which the through driver
is in breach of his obligations.

[43]        
I must now turn to consider the Defendant’s other statutory obligations
arising in this case in order to determine whether the Defendant, as the
dominant driver, is nonetheless at fault for contributing to the accident. With
respect to the obligations under s. 128(1)(a) of the MVA, the onus
of proving that the stop cannot be made in safety is on the driver facing the
yellow light, in this case, the Defendant: Ziani v. Thede, 2011 BCSC 895
at para. 26.

[44]        
As stated earlier, I find that when the Plaintiff was waiting in the
intersection to make her left turn, the traffic light for southbound and
northbound traffic was yellow and had likely been yellow for several seconds. I
find that the Defendant then entered the intersection on a "stale"
yellow, at which point his vehicle and the Plaintiff’s vehicle collided.
Accordingly, the Defendant’s duty was to stop before entering the intersection,
unless the stop could not be made in safety.

[45]        
I find that the Defendant did not breach his statutory obligation under
s.128(1)(a) of the MVA, as when the light turned yellow he was
travelling at such a speed and was so close to the intersection that he could
not safely bring his vehicle to a stop. As noted above, the Defendant was
cognizant of the risks associated with driving his truck and trailer on the wet
roads of a busy highway with frequent intersections. I accept the Defendant’s evidence
that based on his considerable experience, he determined it was not possible
for him to stop safely or avoid the collision when he saw the Plaintiff’s car
in front of him in his lane of the intersection, despite immediately braking
after he saw her car turn left into his lane. I conclude, on a balance of
probabilities, that the Defendant’s decision to proceed into the intersection
was reasonable given the immediate situation.

[46]        
However, that finding does not end the analysis. I must also consider the
Defendant’s manner of driving as he approached the intersection with regard to
s. 125 and s. 144 of the MVA. The Plaintiff argues that the
Defendant was in breach of the duty under s. 125 to "obey the
instructions of an applicable traffic control device”, as he did not take heed
of the AWF or "prepare to stop" as required by the warning device.

[47]        
The Defendant acknowledged that he may have simply not noticed that the
AWF was activated as he approached and proceeded under the sign. Based on the
expert evidence, if the AWF had not been activated by the time the Defendant
went under the sign then he would have approached the intersection on a green
light. The evidence before me leaves no doubt that the Defendant entered the
intersection on a yellow light. Accordingly, I find that the Defendant ought to
have seen the AWF and prepared to stop, rather than continuing towards the
intersection on cruise control at the maximum speed limit.

[48]        
A similar conclusion was reached in the case of Vukelich, where Butler
J. found that the through driver did not pay proper heed to the circumstances
facing her as she approached the intersection with reference to the AWF. Butler
J. concluded that the failure of the through driver to “obey the AWF, to slow
down and prepare to stop at the time of an impending light change was
negligent”. In finding that the through driver was in breach of the duty under
s. 125 to obey the instructions of an applicable traffic control device,
the court took into account the comments of Esson J.A. in Morgan v. Hauck (1988),
27 B.C.L.R. (2d) 118 (C.A.), at p. 122-23, about the importance of AWF
signals in intersection safety:

… I think it is time, therefore, to emphasize the heavy
onus which rests upon drivers approaching signals of this kind to make due
allowance for the possibility that there will be a vehicle seeking to make a
turn such as the plaintiff was making on this day. Their clear duty is to
comply with the warning lights; and to not "run the red".

[49]        
Accordingly, I find the Defendant drove negligently, as he breached his
duty under s. 125 of the MVA, by failing to heed to the AWF by
preparing to stop as he approached the intersection.

[50]        
With respect to s. 144 of the MVA, it is important to
consider that the Defendant knew that the roads were wet that morning, damp
roads can be hazardous, it would take more time to stop the truck pulling a
loaded trailer and there were frequent intersections on the Lougheed Highway. On
cross-examination, the Defendant agreed that the speed at which he was
travelling was too fast and unsafe for the wet road conditions. I find that the
Defendant did not pay proper heed to the circumstances facing him on the day in
question. Despite being cognizant of all the risks, the Defendant deliberately
drove his 40 foot long, 10,000 pound truck, with a fully loaded trailer in tow,
in automatic cruise control set at the maximum speed limit of 80 km/hour on the
Lougheed Highway. Accordingly, I find that the Defendant drove negligently in
that he drove at an excessive speed given the wet road conditions, contrary to
s. 144 of the MVA.

VII.          
Apportionment of Liability

[51]        
Neither establishing who had the right-of-way nor considering who
violated provisions of the MVA is sufficient to assess liability for a
motor vehicle accident. In Salaam, Groberman J.A. stated the following for
the Court of Appeal:

[18]      While the statutory provisions provide guidelines
for assessing fault in motor vehicle accident cases, they do not, alone,
provide a complete legal framework.

[21]      In the end, a court must determine whether, and to
what extent, each of the players in an accident met their common law duties of
care to other users of the road. In making that determination, a court will be
informed by the rules of the road, but those rules do not eliminate the need to
consider the reasonableness of the actions of the parties. This is both because
the rules of the road cannot comprehensively cover all possible scenarios, and
because users of the road are expected to exercise reasonable care, even when
others have failed to respect their right of way. While s. 175 of the Motor
Vehicle Act and other rules of the road are important in determining
whether the standard of care was met, they are not the exclusive measures of
that standard.

[33]      The words “immediate hazard” appear in both
ss. 174 and 175 of the Motor Vehicle Act and are used to determine
when a vehicle may lawfully enter an intersection. They determine who is the
dominant driver, but do not, by themselves, define the standard of care in a
negligence action.

[52]        
As noted above, I conclude that the collision was caused by the failure
of both the Plaintiff and the Defendant to meet the common law duty of care to
other users of the road in addition to their failure to adhere to their
statutory obligations.

[53]        
As explained in Nerval, once a court concludes that both drivers
are negligent the issue becomes one of apportionment of fault. The court must
not reclassify the through driver as servient based on the degree to which the
through driver is in breach of his or her obligation: Carich v. Cook
(1992), 90 D.L.R. (4^th) 322 (B.C.C.A.); Rothenbusch v. Van Boeyen,
2010 BCSC 1518; Hynna v. Peck, 2009 BCSC 1057.

[54]        
The facts in Vukelich are particularly relevant to the case at
bar. In Vukelich, Butler J. determined that both the left turning driver
and the through driver were negligent. The left turning driver, Ms. Vliegenthart,
followed other vehicles into the left turn lane and continued to follow the
left turning vehicles, without looking or seeing the through driver. Since Ms. Vliegenthart
failed to see the approaching vehicle, which the court found to be an immediate
hazard, she assumed she could turn left because the light had turned yellow. The
through driver, Ms. Young, was found to have driven negligently as she
approached the intersection by failing to heed to the AWF. In finding that the
obligation imposed by s. 174 of the MVA had priority over the
obligation created by s. 125, Butler J. stated “Ms. Young’s proximity
to the intersection and her speed should have been evident to Ms. Vliegenthart.”
In determining that liability should be apportioned 75% to Ms. Vliegenthart
and 25% to Ms. Young, Butler J. stated:

[52]      When I compare the degree of fault of the through
drivers in those cases with that of Ms. Young, I conclude that her degree
of blameworthiness is somewhat less. Unlike those drivers, she could not have
stopped safely when the light turned yellow and was not travelling at an
excessive speed relative to the speed limit. Nevertheless, her failure to
notice and obey the AWF was a significant breach of duty falling well short of
the standard of care.

[53]      I conclude that liability should be apportioned 75%
to Ms. Vliegenthart and 25% to Ms. Young. Such an apportionment
fairly reflects the extent to which their respective breaches of duty fell
short of the standard of care required in the circumstances.

[Emphasis added.]

[55]        
In the present case, the Defendant’s actions are similar to those of Ms. Young
in that he could not have stopped safely once he had approached the
intersection. Although he was not driving in excess of the speed limit, his
speed was in excess of what was prudent relative to the road conditions. Both
the Defendant and Ms. Young also significantly breached their duty of care
by failing to notice and obey the AWF.

[56]        
Having concluded that both the Plaintiff and the Defendant were
negligent, I must apportion fault between them in accordance with the
provisions of s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333.
The leading decision in British Columbia regarding apportionment of liability
is Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d)
219 (C.A.). At para. 19, Lambert J.A. notes that apportionment is to be
determined based on "the degree to which each person was at fault",
not the degree to which the fault of each caused the damage. Fault requires a
consideration of blameworthiness, which is "a gauge of the amount by which
each proximate and effective causative agent fell short of the standard of care
that was required…in all the circumstances."

[57]        
The Plaintiff’s turn into the path of the oncoming vehicle driven by the
Defendant made the accident unavoidable. The day was clear and there was
nothing impeding the Plaintiff’s view of the oncoming traffic. Given that the
light was yellow, the Plaintiff had no reason to expect the vehicle directly in
front of her would come to a stop at the intersection. The actions of the
Defendant are also negligent, as he fell short of the standard of care by failing
to heed the AWF, and drove at a speed that was excessive relative to the road
conditions. However, I find the Plaintiff to be more at fault than the
Defendant. I find the Plaintiff to be 60% liable for the collision and the
Defendant to be 40% liable.

[58]        
If the parties are unable to come to an agreement as to costs they may
contact Supreme Court Scheduling to arrange a time to come back before me to
make submissions in that regard.

“The
Honourable Madam Justice Devlin”