IN THE SUPREME
COURT OF BRITISH COLUMBIA
Citation: | Lozinski v. Maple Ridge (District), |
| 2015 BCSC 1277 |
Date: 20150723
Docket: M120873
Registry:
Vancouver
Between:
Angela Roxanne
Lozinski
Plaintiff
And
Corporation of the
District of Maple Ridge
and Raymond Ward
Defendants
Before:
The Honourable Madam Justice Warren
Reasons for Judgment
Counsel for the Plaintiff: | Thomas N. Teed |
Counsel for the Defendants: | Charles D. Jago |
Place and Date of Trial/Hearing: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
Introduction
[1]
This action arises from a car accident that occurred at approximately
noon on August 15, 2011, at the intersection of Pitt River Road and Mary Hill
Road, in Port Coquitlam, British Columbia. Both liability and damages are in
issue but, on the second day of trial, I ordered that liability be tried and
determined first. This judgment relates to liability only.
[2]
Pitt River Road runs east and west. Mary Hill Road runs north and south.
Pitt River Road and Mary Hill Road both have one marked lane running in each
direction. However, as the eastbound lane of Pitt River Road approaches the
intersection at Mary Hill Road, it is wide enough to accommodate two eastbound
vehicles travelling side by side or to allow one vehicle to pass another on the
right if, for example, an eastbound vehicle stops to turn left onto Mary Hill
Road. There are traffic lights at the intersection for both the east/west
traffic on Pitt River Road and the north/south traffic on Mary Hill Road.
[3]
The plaintiff, Angela Lozinski, was driving a black SUV west on Pitt
River Road intending to turn left to proceed south on Mary Hill Road. The
defendant, Raymond Ward, was driving a smaller, white, four-door sedan owned by
his employer, the defendant, Corporation of the District of Maple Ridge. He was
travelling east on Pitt River Road intending to proceed straight through the
intersection with Mary Hill Road. He overtook and passed on the right of one or
more other eastbound vehicles and then entered the intersection. The accident
occurred in the intersection while Ms. Lozinski was in the process of
making her left turn.
[4]
Ms. Lozinskis position is that the defendants are solely liable
because Mr. Ward proceeded through the intersection on a red light and
passed on the right when it was unsafe to do so, contrary to ss. 129(1)
and 158 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, while she
was in the process of completing her turn. The defendants position is that Ms. Lozinski
is solely liable for the accident or, in the alternative, that she is at least
equally liable because, contrary to s. 174 of the Motor Vehicle Act,
in making her left turn she failed to yield the right of way to Mr. Wards
vehicle which was so close as to constitute an immediate hazard.
Summary of the Evidence
[5]
Ms. Lozinski lives about a half block south of the intersection in
question. She is very familiar with the intersection and travels through it
nearly every day. On the day of the accident she had been at work. She was
alone in her vehicle driving home for lunch. Pitt River Road slopes down as it
enters the intersection from the east and Mary Hill Road rises from the
intersection as it heads south. In other words, as Ms. Lozinski approached
the intersection she was going downhill and, after completing her turn, she
would have been going uphill on Mary Hill Road.
[6]
As Ms. Lozinski approached the intersection her traffic light was
green. She testified that she entered the intersection on the green light and
came to a full stop with her left turn signal on. She said it is possible that
one or more vehicles approaching from the opposite direction, travelling east
on Pitt River Road, went through the intersection and passed by her. The traffic
light changed to amber. She saw an eastbound car on Pitt River Road come to a
stop on the amber light, across from and facing her. She said it is possible
another eastbound car came to a stop behind that. She also saw one car and
possibly two cars to her right, southbound on Mary Hill Road, stopped at their
light. She does not recall seeing any cars to her left, northbound on Mary Hill
Road.
[7]
Ms. Lozinski testified that she waited in the middle of the
intersection until her light turned red. She said she was aware that eastbound
cars on Pitt River Road could, and sometimes did, pass on the right of
eastbound cars stopped in front of the intersection. She said she could not see
into the space on Pitt River Road where eastbound cars might pass on the right
because her vision was impeded by the stopped eastbound car or cars sitting
opposite to her at the intersection. At trial, she said she paused for two or three
seconds after her light turned red, to make sure that no eastbound car on Pitt
River Road was passing on the right, and then slowly commenced her turn.
[8]
Ms. Lozinski testified that she inched slowly to the left and
looked to her right towards the space in the eastbound lane where Mr. Ward
was travelling, but she could not see into that space because the stopped
eastbound cars continued to block her view. She said she proceeded at a slow
crawl, concentrating on that space and, by the time she could see into that
space, it was too late. Mr. Wards vehicle was right there and the
collision ensued. She said she had no time to take evasive action. She
testified that, at the moment of impact, the front end of her vehicle was a few
feet into the portion of the road on which Mr. Wards car was travelling. She
estimated that the impact occurred as many as five seconds after her light
turned red.
[9]
Defence counsel suggested to Ms. Lozinski that, in fact, she
proceeded to turn immediately upon her light cycling to red. The suggestion was
that, rather than inching out slowly, while continuing to focus her attention
on the space adjacent to the stopped eastbound traffic, she quickly crossed
into that space blindly, as soon as her light turned red, relying on the red
light to guarantee her safe passage. At trial, she denied that
characterization.
[10]
Defence counsel submitted that Ms. Lozinskis answers given on
examination for discovery were more consistent with his characterization of the
manner in which she completed her turn than with the version she recounted at
trial. In discovery she was asked the following questions and gave the
following answers:
Q
So
what happened after the light turned amber? You were waiting for cars to stop
and then what?
A Yes.
So I was waiting –
for cars to stop. At that point the light had turned red
and the cars had stopped, so then I made my turn to take the left.
Q So cars
were going through eastbound even on the amber?
A No.
Not that I know of.
The car that was in front of me facing me
had stopped.
And I believe there was another car behind that that had stopped.
So I was
waiting to make sure that the intersection was clear before I could go but at
that point it was red, so to me it didnt matter, so I had to clear the
intersection.
Q Okay.
So the light goes to red. Youre in the middle of the intersection?
A Thats
correct.
Q At that
point you make your left hand turn?
A Thats
correct.
Q
You
were accelerating through that turn, correct?
A Correct.
Q Do you
know what speed your vehicle would have been traveling at the time of impact?
A I
dont really know because from a stopped position to exiting the intersection
it wouldnt be very fast.
Q Did you
make the left hand turn fast?
A I
guess that would mean – I dont know how anybody would exit an intersection
from a stop – from being idle.
Q Okay
A I
dont know.
Q So nothing
out of the ordinary. It wasnt like you felt like, oh, Im in the middle of the
intersection and the light has cycled to red, I have to gun it, hit the gas
hard and pull through this left hand turn quickly? That wasnt the case?
A It may
have been but I mean, its a residential area. I live a block from this
intersection, so theres children, people walking around. You dont want to
just hastily gun it, I – you would say.
Q Okay.
So you didnt –
A I knew
I needed to get out of the intersection so the cars could go through.
Q Did you
make the left-hand turn fast and hard or did you make it – make that turn more
slowly and in a more relaxed type of way?
A Perhaps
maybe both, cautious and quickly maybe.
Q Okay.
Youre not sure?
A No.
[11]
At trial, Ms. Lozinski denied any material inconsistency between
her testimony at trial and that at discovery. She said the questions asked of
her at discovery were different than the questions asked of her at trial.
During the discovery, she was not specifically asked whether she paused after
the light turned red or immediately proceeded into the turn. Nor was she
specifically asked if she kept her attention focused on the space adjacent to
the stopped eastbound traffic. She maintained, at trial, that while she knew traffic
was waiting to proceed south on Mary Hill Road, which gave rise to some urgency
for her to clear the intersection, she nevertheless proceeded slowly and
cautiously and that her light was red for between two and five seconds before
the impact.
[12]
Ms. Lozinski testified that the force of the impact was significant
and spun her SUV in the opposite direction. Both vehicles ended up in the south-east
portion of the intersection. Mr. Wards vehicle was pointed south east. Its
front end was up on the sidewalk at the south-east corner, and its back end was
in the crosswalk. Ms. Lozinskis SUV was positioned in the intersection
slightly north of Mr. Wards vehicle, pointed south, but on an angle to
the east.
[13]
Ms. Lozinski said she thought Mr. Wards vehicle struck her
vehicle on the front passenger-side corner. Photographs of the vehicles taken
at the scene of the accident show damage to the front end of Ms. Lozinskis
vehicle. There is some damage on the front passenger-side corner close to the
headlight. The front bumper, grill and hood are damaged. The drivers side
headlight is smashed, and there is extensive damage to the front, drivers-side
corner around the headlight. The photographs show most of the damage to Mr. Wards
vehicle on the drivers-side fender area, in front of and above the front
wheel.
[14]
Mr. Ward has been employed by Maple Ridge for more than 20 years. He
was working on the day of the accident. His co-worker, George Veltin, had just
dropped another vehicle off somewhere else and Mr. Ward was driving Mr. Veltin
back to the Maple Ridge works yard. Mr. Ward was familiar with the car he
was driving and had driven it before.
[15]
Mr. Ward testified that as he approached the intersection with Mary
Hill Road, he observed that a small white car in front of him was slowing down.
He could not say whether that car came to a full stop but, because it was
slowing down, he thought it was going to turn left on Mary Hill Road. He did
not say that he saw a left-turn signal engaged on that car, but he said it was
situated in the left portion of the eastbound lane. He said he passed it on the
right and proceeded into the intersection. He testified that, although the
eastbound portion of Pitt River Road is not marked as two lanes, it is wide
enough for two cars to travel side by side in the same direction.
[16]
Mr. Ward testified that, at some point, as he approached the
intersection, he looked at the light and saw that it was green. However, he
could not say how far away from the intersection he was when he saw the green
light; he could not say what colour the light was when he passed the slowing or
stopped car on the right; and he could not say what colour the light was when
he entered the intersection.
[17]
Mr. Ward testified that when he was midway into the intersection,
his car was hit by Ms. Lozinskis SUV. He said he did not see her SUV
before the impact. He said he was blindsided. He testified that the first
point of impact on his vehicle was around the front drivers-side wheel, and
that his car was then hit again towards the back of the drivers side.
[18]
Mr. Ward testified that he was travelling close to the speed limit,
at approximately 50 km/h, when he entered the intersection. He testified that
he did not accelerate as he passed the stopped car on the right but, rather,
maintained a constant speed throughout.
[19]
The accident was witnessed from each direction. Four independent
witnesses testified, each of whom was sitting in a vehicle facing the
intersection on one of its four arms. In addition, Mr. Veltin testified.
[20]
Tessa Armstrong witnessed the accident from the west. She was driving a
Volkswagen Golf, travelling east on Pitt River Road. She intended to proceed
straight through the intersection at Mary Hill Road. Ms. Armstrong
testified that her light was red as she approached the intersection. She came
to a full stop at the red light and saw Ms. Lozinskis vehicle stopped in
front of her in the intersection and pointed south. Ms. Armstrong testified
that she was looking at the passenger side of Ms. Lozinskis vehicle. She
said she also saw Mr. Wards vehicle come up behind her and slowly pass
her on the right. She said she was situated in the middle of the eastbound
lane, and not up against the centre line as one would position themselves if
they were intending to turn left. She said Mr. Ward had barely enough room
to squeeze by her on the right and she was concerned he was going to hit her
mirror. She testified that after squeezing past her, Mr. Ward booted it,
turned to the right as if he was going to proceed south on Mary Hill Road, and
then looped back into the intersection to continue east on Pitt River Road at
which point the collision occurred. She estimated that Mr. Ward was travelling
30 km/h at the time of the impact.
[21]
Ms. Armstrong could not say precisely where, in the intersection,
the collision occurred or which part of each vehicle was involved in the
initial impact. She was also uncertain as to Ms. Lozinskis intended
direction of travel. She said that Ms. Lozinski could have been headed
south on Mary Hill Road and could have been attempting to turn left on to Pitt
River Road. However, Ms. Armstrong was firm in recounting that, as she
approached the intersection, her light was red and Ms. Lozinskis vehicle
was stopped in the intersection and pointed south.
[22]
Kathy Feller witnessed the accident from the north. She was driving
south on Mary Hill Road and intended to proceed straight through the
intersection. She testified that as she approached the intersection her light
was green, but she stopped because she saw Ms. Lozinskis vehicle stopped
in the intersection in front of her, pointed south, with its left turn signal
on. She could not recall whether there was any northbound traffic on Mary Hill
Road at the time. She said she thought Ms. Lozinski was waiting to turn
left onto Pitt River Road. Ms. Feller testified that she believes Ms. Lozinskis
vehicle had passed the centre line on Pitt River Road by the time Ms. Feller
noticed her sitting in the intersection. This would place Ms. Lozinskis
vehicle in front of, and perpendicular to, Ms. Armstrongs vehicle, which
is consistent with Ms. Armstrongs evidence.
[23]
Ms. Feller testified that she saw Mr. Wards car commence a
right turn onto Mary Hill Road but, instead of continuing south on Mary Hill
Road, Mr. Ward accelerated and swerved back, eastbound, onto Pitt River
Road. She said she saw Mr. Wards car strike Ms. Lozinskis SUV. She
estimated that Mr. Ward was travelling between 20 km/h and 30 km/h at the
point of impact. She said that just before the impact, she was focused on Mr. Wards
car and she did not see Ms. Lozinskis car start to move.
[24]
Ms. Feller testified that she did not see Mr. Wards car until
he started to turn onto Mary Hill Road because her vision was obstructed by an
eastbound car that was stopped at the intersection. Ms. Feller testified
that there is room in the eastbound lane of Pitt River Road for cars to pass on
the right and she said cars often do so.
[25]
Randall Browning witnessed the accident from the east. He was in his
Ford Taurus westbound on Pitt River Road behind Ms. Lozinski. He said
there was another car between them, but he had a good view of Ms. Lozinskis
vehicle because Pitt River Road slopes down towards the intersection and he was
elevated above it.
[26]
Mr. Browning testified that his light was green as he approached
the intersection, but he had to stop because Ms. Lozinskis SUV was
stopped in the intersection with its left-turn signal on, pointed west, waiting
to turn left. He saw four eastbound vehicles come to a stop facing him and Ms. Lozinski.
He also saw the roof of Mr. Wards vehicle eastbound on Pitt River Road as
it passed the stopped vehicles on the right. He said he could see the roof of Mr. Wards
car because of his vantage point elevated above the intersection. He said Mr. Wards
vehicle came up behind the four eastbound vehicles, bolted to the right,
passed those four vehicles, and entered the intersection.
[27]
Mr. Browning testified that Ms. Lozinski waited through the
amber light and commenced her turn when the light turned red. In cross-examination,
he agreed that her turn was a one-point turn; that she did not make a partial
turn, stop, and then complete the turn but, rather, that her turn proceeded in
a single motion. He said it was a normal turn and he saw nothing unusual about
it.
[28]
Mr. Browning said Mr. Wards car entered the intersection just
after the light turned red and struck Ms. Lozinskis vehicle at the front
corner on the passenger side. Mr. Browning expressed some uncertainty
about the colour of the traffic light as Mr. Ward approached the
intersection, but he testified that he was confident the light had turned red
before Mr. Ward entered the intersection. He agreed that the light turned
red and, almost simultaneously, Ms. Lozinski started her turn and Mr. Ward
entered the intersection.
[29]
Mr. Browning estimated the speed of Mr. Wards car at between
50 km/h and 60 km/h at the time of impact. He estimated Ms. Lozinskis
speed at a couple kilometers per hour at the time of impact.
[30]
Mr. Browning testified that he is very familiar with the
intersection. He agreed that it is not uncommon for vehicles travelling east on
Pitt River Road to pass on the right, but he said that the road is barely wide
enough to do so. He said that Pitt River Road was narrower, at the time of the
accident, than it looks in photographs of the intersection that were admitted
into evidence. He said that, since the accident, there has been a water-main
repair in the area and the road was re-worked.
[31]
Mr. Browning testified that he did not see any cars situated on
Mary Hill Road heading either north or south. He also did not see Mr. Wards
car turn right towards Mary Hill Road and then loop back into the intersection,
as described by Ms. Armstrong and Ms. Feller.
[32]
Marcia Jeanes witnessed the accident from the south. She was driving her
truck, a 2002 Ford Lightning, and was headed north on Mary Hill Road. She
testified that, as she approached the intersection from the south, she saw her
light turn amber and, as she pulled up to the intersection and stopped, her
light turned red. She said that, as she was sitting at the red light, she saw Ms. Lozinskis
vehicle proceed west on Pitt River Road, into the intersection, and turn left
in a single movement without hesitating. She testified that Ms. Lozinski
did not stop at all.
[33]
Ms. Jeanes also testified that she saw Mr. Wards vehicle as
it approached the intersection from the west. She said he entered the
intersection on a green light and was hit by Ms. Lozinskis vehicle.
[34]
It was not clear from Ms. Jeanes evidence whether she could
actually see the lights for east/west traffic on Pitt River Road from her
vantage point south of the intersection. However; she testified that she was sure
her own light was red at the moment of impact because, if it had turned green,
she would have proceeded on her way. She also testified that the accident
occurred soon after she came to a stop at the intersection and her light turned
red just as she stopped. Thus, she inferred that the light for east/west
traffic must have been green.
[35]
At the scene of the accident, Ms. Jeanes and another witness argued
about how the accident had occurred. Ms. Jeanes acknowledged, at trial,
that other witnesses said they had seen the accident unfold differently. She
agreed that she initially doubted her own recollection of the accident because
the other witnesses were so convincing. However, she said that she later
spoke to an employee from ICBC on the phone and he told her that her version
was correct.
[36]
Mr. Veltin was in the front passenger seat of Mr. Wards
vehicle. He testified that as he and Mr. Ward were approaching the
intersection they came up behind a stopped eastbound vehicle. He said Mr. Ward
manoeuvered around that vehicle on the right and entered the intersection. He
could not recall whether this stopped vehicle was the first eastbound vehicle
stopped at the intersection or whether there were other vehicles stopped in
front of it. He could not say whether it had its left-turn signal on. He said Mr. Ward
did not accelerate as he passed but, rather, maintained his speed into the
intersection. He said that, as they entered the intersection, he looked to the
left and saw a grill coming towards them. He only had time to say watch it
and the collision occurred. He said the initial point of contact on Mr. Wards
vehicle was just above the front drivers-side wheel.
Findings of Fact
[37]
There were some inconsistencies in the testimony of the witnesses. However,
I did not find any of them to be dishonest or to have a tendency towards
embellishment or exaggeration. My perception was that each of the witnesses
attempted to describe the accident as they remembered it to the best of their abilities.
However, as with much eyewitness testimony, it is likely their recollections
include some reconstruction and, as such, their evidence must be approached
with caution. As explained by Justice Smith in Wattar v. Lu, 2013 BCSC
603 at paras. 6 and 7:
A motor vehicle accident, by its very nature, happens quickly
and without warning. In the moments leading up to it, drivers are not making
careful observations of speed, distances or the precise location of other
vehicles. Their evidence is likely to include at least some reconstruction
based on what they think happened, rather than what they actually saw.
When the court must determine
which of two conflicting accounts is more likely to be accurate, the most
reliable guide is consistency with what little objective or undisputed evidence
exists.
[38]
Regrettably, I do not have the benefit of expert accident-reconstruction
evidence to assist with matters such as speed analysis, perception response
time, evasion potential, the precise location in the intersection where the
collision occurred, or how far south in relation to Ms. Armstrongs car Ms. Lozinski
would have to have been before it would have been possible for her to see down
the space adjacent to the passenger side of Ms. Armstrongs car. Nor was
there any evidence as to the length of each cycle in the light sequences and,
in particular, the length of any overlap in the red cycle in each direction.
[39]
It is undisputed that Ms. Lozinski was westbound on Pitt River Road
intending to turn left and head south on Mary Hill Road. Although Ms. Armstrong
and Ms. Feller testified that they thought she may have been southbound on
Mary Hill Road, intending to turn left on to Pitt River Road, that was an
inference they drew from the fact that they saw her stopped in the intersection
pointed south. Neither of them said they actually saw her travelling south on
Mary Hill Road.
[40]
It is undisputed that Ms. Lozinski reached the intersection before Mr. Ward
and entered on a green light.
[41]
It is undisputed that Mr. Ward was eastbound on Pitt River Road
intending to proceed through the intersection, and that he passed on the right
of at least one slowing or stopped eastbound vehicle just prior to entering the
intersection. The weight of the evidence supports the conclusion that, while
the eastbound lane is wide enough to accommodate two eastbound vehicles
travelling side by side, it is just barely so. Nevertheless, the weight of the
evidence also supports the conclusion that passing on the right is commonplace
at that location.
[42]
It is undisputed that Ms. Armstrong reached the intersection before
Mr. Ward and that she was not intending to turn left. There is no evidence
that her left-turn signal was engaged.
[43]
It is undisputed that Ms. Lozinskis view of the portion of Pitt
River Road on which Mr. Ward was travelling was impeded by Ms. Armstrongs
car. In other words, it is undisputed that Ms. Lozinski could not see Mr. Wards
vehicle approaching when she commenced her turn. It is also undisputed that she
knew she could not see into the space on the road on which he was travelling
and she was aware that cars often passed on the right in that intersection.
[44]
While the evidence does not permit me to make findings as to the
specific speed of each of the vehicles at the moment of impact, it is
undisputed that Mr. Ward was travelling significantly faster than was Ms. Lozinski.
The witnesses gauged his speed at between 30 km/h and 60 km/h. He himself
testified he was travelling close to the speed limit. I find he was travelling
approximately 50 km/h.
[45]
Ms. Armstrong and Ms. Feller both said they saw Mr. Wards
vehicle turn slightly as if he was going to proceed south on Mary Hill Road and
then loop back onto Pitt River Road. Neither Ms. Jeanes nor Mr. Browning
saw that manoeuver, but Mr. Browning saw Mr. Ward bolt to the right
prior to entering the intersection. In my view, these are the kind of
variations one would expect from witnesses observing an intersection from
different perspectives. Ultimately, nothing turns on whether Mr. Ward
proceeded straight through the intersection or whether he first swerved to the
right.
[46]
The pattern of damage, as reflected in the photographs, indicates that
the vehicles were, more or less, perpendicular to each other at the moment of
impact. Given Mr. Ward was travelling east and Ms. Lozinski intended
to proceed south, the pattern of damage suggests that Ms. Lozinskis
vehicle was facing almost directly south at the time of impact. This indicates
that she had fully completed her turn and was heading out of the intersection
by the time the collision occurred.
[47]
The primary disputed facts are:
(a) the colour of the east/west light
at the time Mr. Ward entered the intersection;
(b) the colour of the east/west light
at the time Ms. Lozinski commenced her left turn;
(c) whether Mr. Ward was already
in the intersection at the time Ms. Lozinski commenced her turn; and
(c) the manner in which Ms. Lozinski
executed her turn and, in particular, whether she kept a proper lookout as she
made the turn.
[48]
Neither Mr. Ward nor Mr. Veltin could say what colour the
light was when Mr. Ward entered the intersection.
[49]
Ms. Armstrong, Ms. Feller and Mr. Browning all testified
that Mr. Wards light had turned red before Mr. Ward entered the
intersection. Ms. Armstrong testified that she came to a stop on the red
light and Mr. Ward passed by her on the right after she stopped. Given
their positions in the intersection, the light for east/west traffic was
directly in the line of sight of Ms. Armstrong and Mr. Browning. They
both had a good opportunity to observe that light.
[50]
The only witness who testified differently was Ms. Jeanes. She said
that Mr. Wards light was green but, given her position in the
intersection, it is unlikely that she could actually see the lights for
east/west traffic. It appears that she assumed Mr. Wards light was green
because her light was red. However, even though there was no evidence as to the
light sequences, common sense dictates that there must have been some overlap
in the red lights such that Ms. Jeanes light would have remained red for
some period of time after Mr. Wards light turned red. Further, of all the
eyewitnesses, Ms. Jeanes had the best view of Mr. Wards car as it
approached the intersection and she would have seen him travelling up beside
the curb. His failure to slow down as he approached the intersection likely
created the impression that he was approaching a green light. Finally, although
I have no doubt that Ms. Jeanes recounted the events leading up to the
collision as best she could, she acknowledged that she initially doubted her
recollection until she was reassured by an ICBC employee that her recollection
was correct. The basis upon which an ICBC employee could have made such a
reassurance is unknown. However, it had the effect of shoring up Ms. Jeanes
originally uncertain recollection and, in the circumstances, it affects the
weight I am prepared to give to her evidence. Where her evidence departs from
that of the other witnesses, I find the evidence of the others to be more
reliable.
[51]
The preponderance of the evidence supports the conclusion that Mr. Wards
light had turned red before he entered the intersection. Further, Mr. Ward
was travelling approximately 50 km/h, which is 45 feet per second. The weight
of the evidence is that Ms. Lozinski was travelling very slowly. If the
impact occurred at least two seconds after the light turned red which, for
reasons explained below, I find it did, then Mr. Wards vehicle would have
been at least 90 feet, or more than about four car lengths, in front of the
intersection at the time the light turned red.
[52]
The next question is the colour of Ms. Lozinskis light at the time
she commenced her turn. She testified that she waited for two or three seconds
after her light had turned red because she knew there could be a car passing on
the right of Ms. Armstrongs car. Mr. Brownings evidence was that she
came to a stop in the intersection, waited through the amber light and
commenced her turn after the light turned red. Ms. Armstrong testified
that when she stopped at her red light, she saw Ms. Lozinskis vehicle
stopped in the intersection pointing south. Ms. Feller testified that when
she first noticed Ms. Lozinskis vehicle, her own light was green and Ms. Lozinski
was stopped in the intersection pointed south. This evidence is not inconsistent
with Ms. Lozinski commencing her turn after her light turned red.
[53]
Again, the only evidence to the contrary was Ms. Jeanes testimony.
She said that Ms. Lozinski entered the intersection on a green light and
proceeded into her turn without stopping, still on a green light. I have
already found that Ms. Jeanes was mistaken about the colour of the light
as Mr. Ward entered the intersection. I have already found that his light
was red before he entered the intersection. If Ms. Lozinski had commenced
her turn on the green light, it is likely that she would have cleared the
intersection before Mr. Ward entered it. Further, for the reasons already
expressed, where Ms. Jeanes evidence departs from that of the other
witnesses, I prefer the evidence of the others.
[54]
I find that after entering the intersection on a green light, Ms. Lozinski
came to a stop, waited through the green and amber lights, and commenced her
turn after her light had turned red.
[55]
Given the respective speeds of the vehicles, the only rational
conclusion is that Mr. Ward entered the intersection after Ms. Lozinski
commenced her turn.
[56]
The next question is the manner in which Ms. Lozinski executed her
turn and, in particular, whether she kept a proper lookout as she made the
turn.
[57]
Ms. Lozinski testified that she paused for two to three seconds
after the light turned red and then moved slowly, inching past Ms. Armstrongs
car, while keeping a lookout and trying to see into the space where Mr. Ward
was travelling. She said she maintained this focus throughout the turn but
could not see into that space, and did not see Mr. Wards vehicle until it
was too late. Her evidence, on discovery, was somewhat different but, in my
view, not materially so. Although there were some differences in her evidence,
there were also variations in the questions asked. In particular, she was not
shown to have given inconsistent answers to the specific question of whether,
as she moved into the turn, she continued to focus on the space adjacent to Ms. Armstrongs
car. Further, while the answers she gave during her discovery as to her speed
as she turned suggest that she could not say specifically how fast she was
going, she also said that it wouldnt be very fast and you dont want to just
hastily gun it. In my view, these answers do not establish that she proceeded
blindly and without due care.
[58]
In Diack v. Bardsley (1983), 46 B.C.L.R. 240 at 247 (S.C.), affd
(1984), 31 C.C.L.T. 308 (C.A.), McEachern C.J.S.C. said the usefulness [of minor
variations between a witnesss evidence at trial and on discovery] is limited
because witnesses seldom speak with much precision at discovery
. In my view
that observation applies to Ms. Lozinskis examination for discovery
evidence. She spoke with much more precision at trial, at least in part because
the questions asked were more precise. Further, her testimony at trial as to
how she completed her turn was, in my view, consistent with that of the other
witnesses, except Ms. Jeanes.
[59]
Ms. Lozinski did not say that she came to a complete stop once she
had completed her turn and was facing south perpendicular to Ms. Armstrongs
car. She merely said that she inched out slowly and tried to see. Mr. Browning
said that the turn was a one-point turn, and that as Ms. Lozinski started
the turn, Mr. Ward entered the intersection almost simultaneously.
However, he also said that Ms. Lozinski was proceeding very slowly, as
slow as a couple of kilometers per hour. In my view there is no material
inconsistency between his evidence and Ms. Lozinskis evidence. Ms. Armstrong
and Ms. Feller both said that they first noticed Ms. Lozinski sitting
stationary in the intersection pointed south. While this suggests that the turn
was not a one-point turn, as observed by Mr. Browning, it could also be
the case that Ms. Lozinski was moving very slowly, so slowly that Ms. Armstrong
and Ms. Feller thought she had stopped. Again, I do not consider there to
be any material inconsistency.
[60]
Having considered all of the evidence, I find that it is more likely
than not that, after sitting in the intersection through the green and the
amber light, Ms. Lozinski paused for a short period of time, approximately
two seconds, after the light turned red because she knew vehicles often passed
on the right as they approached the intersection from the west. She then slowly
commenced her turn and, once she had completed the turn and was pointing south
in front of Ms. Armstrongs vehicle, she briefly stopped or nearly stopped
while maintaining her focus and trying to see into the space adjacent to Ms. Armstrongs
vehicle. She then proceeded slowly into that space and the collision
immediately occurred. It follows that the collision occurred at least two
seconds after the light turned red. Neither driver could see the other until
just before the impact, and neither had time to take evasive action, because
their vision was impeded by the stopped eastbound vehicles.
Legal Principles
[61]
I have found that Ms. Lozinski entered the intersection on a green
light and did not commence her turn until the light turned red. I have also
found that Mr. Ward entered the intersection after the light turned red,
after Ms. Lozinski commenced her turn, and in the course of passing on the
right of Ms. Armstrongs vehicle which was stopped at the red light. In
these circumstances, the relevant statutory duties are those set out in
ss. 129(1), 158 and 174 of the Motor Vehicle Act.
[62]
Section 129 sets out the statutory obligation of a driver faced with a
red traffic light. The material portion of that section provides:
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.
[63]
The circumstances in which a driver may pass on the right are governed
by s. 158 which provides:
158(1) The driver of a vehicle must not cause or permit the
vehicle to overtake and pass on the right of another vehicle, except
(a) when the vehicle
overtaken is making a left turn or its driver has signaled his or her intention
to make a left turn,
(b) when on a laned roadway
there is one or more than one unobstructed lane on the side of the roadway on
which the driver is permitted to drive, or
(c) on a one-way street or a
highway on which traffic is restricted to one direction of movement, where the
roadway is free from obstructions and is of sufficient width for two or more
lanes of moving vehicles.
(2) Despite subsection (1), a
driver of a vehicle must not cause a vehicle to overtake and pass another
vehicle on the right
(a) when the movement cannot
be made safely, or
(b) by driving the vehicle off the roadway.
[64]
Section 174 of the Motor Vehicle Act sets out the statutory
obligation of a motorist intending to turn left at an intersection. It
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.
[65]
In summary, a driver must not enter an intersection on a red light; may
only pass on the right in certain circumstances and, in any event, only when
the movement may be made safely; and a left-turning driver must yield to
oncoming traffic that is in the intersection or so close as to constitute an
immediate hazard.
[66]
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), 43 W.W.R. 405 at 406 (B.C.C.A.). The point in time to
assess whether the through driver is an immediate hazard is the moment before
the left-turning driver actually starts to make the turn: Raie, at 414.
[67]
The analytical framework that is often applied to the determination of
liability for a motor vehicle accident is based upon one of the drivers being
characterized as dominant and the other as servient. The driver with the
right of way is the dominant driver: Nerval v. Khehra, 2012 BCCA 436 at para. 33.
[68]
When a servient driver proceeds in breach of his or her statutory duty,
in order to attribute fault to the dominant driver, the onus is on the servient
driver to establish that the dominant driver was or ought to have been aware of
the servient drivers disregard of the law and that the dominant driver could
have avoided the accident had he or she acted with reasonable care: Pacheco
(Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 at para. 18
(C.A.); and, Dawes v. Valadas, 2005 BCSC 1319 at para. 31.
[69]
In Nerval, the Court of Appeal ascertained who, as between a
left-turning driver and straight-through driver, has the right of way when
neither of them is facing a traffic light. At paras. 33-38, Harris J.A.
explained that in such a case, dominance turns on whether the straight-through
drivers vehicle was an immediate hazard at the material time. The left-turning
driver bears the initial burden of proving the absence of an immediate hazard
at the moment the left turn begins. In other words, the left-turning driver
bears the burden of establishing that he or she commenced the turn when it was
safe to do so. If the left-turning driver fails to meet that burden, then the straight-through
driver is dominant and the burden of proving negligence rests with the left-turning
driver. On the other hand, if the left-turning driver proves that when he or
she commenced the turn no other vehicles constituted an immediate hazard, the left-turning
driver has the right of way and becomes the dominant driver, and the
straight-through driver bears the burden of establishing that the left-turning
driver was negligent.
[70]
However, in a case involving a left-turning driver and a straight-through
driver who collide in a traffic-light controlled intersection, it is the colour
of the lights that determines which of the drivers has the right of way and,
accordingly, which is dominant: Miller v. Dent, 2014 BCCA 234. Where the
left-turning driver has entered the intersection without breaching traffic
signals and the straight-through driver enters the intersection on a red light,
the left-turning driver is dominant and the straight-through driver is
servient: Miller, at paras. 14 and 16; and, Henry v. Bennett,
2011 BCSC 1254 at para. 73.
[71]
In such a case, the left-turning driver is entitled to proceed on the
assumption that oncoming traffic will act in accordance with the law and, in
particular, will stop for a red light, absent any reasonable indication to the
contrary and provided he or she acts with reasonable care: Kokkinis v. Hall
(1996), 19 B.C.L.R. (3d) 273 (C.A.). See also Uyeyama (Guardian ad litem of)
v. Wittenberg, [1985] B.C.J. No. 1883 (C.A.); Henry; and, Lee
v. Tse, 2013 BCSC 1740 at para. 49. This does not mean that a left-turning
driver is entitled to treat a red light as a guarantee of safe passage. The left-turning
driver is entitled to assume that oncoming traffic will stop at a red light but
must also react reasonably to manifest hazards: Tejani v. Greenan, 2001
BCSC 803 at para. 29.
Analysis
[72]
As this case involves a traffic-light controlled intersection, the first
step in the analysis is to determine the colour of the traffic lights. I have
found that Ms. Lozinski did not commence her turn until after the light
turned red and that Mr. Ward entered the intersection after the light
turned red. Mr. Ward was in violation of his duty under s. 129(1) of
the Motor Vehicle Act. In the circumstances, the obligation on him is almost
too obvious to mention: Miller, at para. 16. However, proceeding
through the red light is only one aspect of his negligence.
[73]
Mr. Ward passed on the right as he entered the intersection. On a
plain reading of s. 158(1), Mr. Ward was not permitted to pass on the
right at all. Ms. Armstrong was not turning left and there was no evidence
that she had signalled an intention to turn left. Pitt River Road is not a
laned roadway which is defined in s. 119 of the Motor Vehicle Act
as a roadway or part of a roadway that is divided into 2 or more marked lanes
for movement
in the same direction. Pitt River Road is not a one-way street
or highway on which traffic is restricted to one direction of movement.
[74]
Even if s. 158(1) technically permitted Mr. Ward to pass on
the right, that permission is subject to s. 158(2) which prohibits him
from doing so unless the movement can be made safely. He was driving a relatively
small car. He acknowledged that as he approached the intersection, his view was
impeded by the eastbound cars that had stopped. He passed on the right so that
he could get into the intersection notwithstanding that he was doing so blindly
and without even checking the colour of the traffic light at the time. In the
circumstances, the movement could not be made safely.
[75]
For these reasons, I find the accident was caused by Mr. Wards
negligence. He is liable. However, his negligence does not absolve Ms. Lozinski
from her duty to conduct herself as a reasonably prudent driver would do.
[76]
Mr. Ward submits that his car was an immediate hazard at the time Ms. Lozinski
commenced her turn and, accordingly, she breached the duty imposed upon her
under s. 174 and is at least equally at fault. In determining her
liability, the central question is whether, as the servient driver, Mr. Ward
has established that a reasonable and prudent driver in the position of Ms. Lozinski
would have seen that he was not going to stop at the red light and could have
avoided the accident had she acted with reasonable care.
[77]
Mr. Ward concedes that if the light was red when he entered the
intersection, he bears the burden of establishing her negligence. However, he
says he has satisfied that burden and has established that Ms. Lozinski
failed to take adequate steps to ensure she could make the turn safely. He
relied on several cases where left-turning drivers were found liable for
failing to take into account the immediate hazard of an oncoming straight-through
driver. However, in most of those cases, there was nothing obscuring the left-turning
drivers view of the oncoming vehicle and the left-turning driver was found to
have failed to keep a proper lookout towards the oncoming traffic.
[78]
In McPherson v. Lange, 2012 BCSC 36, the left-turning driver had
seen the other vehicle approaching in the distance but she did not look down
the road in order to assess its location, distance, and speed prior to starting
her turn on an amber light. In Mitchell v. ICBC, 2004 BCSC 983, the left-turning
driver made her turn, on an amber light, between two straight-through vehicles,
the van that hit her and the car which preceded it through the intersection,
and she did not see the van approaching in circumstances where there was
nothing preventing her from seeing it. In Tejani, the straight-through
vehicle entered the intersection on an amber light. Justice McEwan emphasized
that there was no evidence suggesting some reason why the left-turning driver
did not see the other driver approaching, and he held that the straight-through
vehicle must have been visible, and the fact that it was not slowing down
should have been apparent (para. 29). In Ziani v. Thede, 2011 BCSC
895, the left-turning driver followed another vehicle into the left turn on an
amber light, looking only to the right and left to ensure there were no
pedestrians in the crosswalk, and only looked ahead to the oncoming traffic at
the time of the collision with the straight-through vehicle.
[79]
Mr. Ward also relied on Wattar, which was a case where the left-turning
drivers view of the opposite curb lane was impeded by stopped traffic. Justice
Smith found that the left-turning driver diverted his attention and looked over
his left shoulder and as such was not focusing completely on the oncoming
traffic (para. 13). Liability was apportioned 50% to the left-turning
driver.
[80]
Finally, Mr. Ward also relied on Nerval for the proposition
that the obligation imposed on the left-turning driver takes priority over that
imposed on a driver passing on the right. He emphasized that the Court of
Appeal in Nerval referred to the obligation imposed on a left-turning
driver by s. 174 as absolute. However, as I have already explained, Nerval
did not involve a traffic light and the Court of Appeal expressly distinguished
cases involving drivers who proceed into an intersection in breach of an
obligation to obey traffic signals (para. 42). Further, what was said
about the s. 174 obligation being absolute was said in the context of
explaining that, in a case that does not involve traffic lights, s. 174
casts the initial burden on the left-turning driver to establish that he or she
started the turn when it was safe to do so. However, that determines only
whether the left-turning driver has established dominance. In any event, in Nerval,
the trial judge found that while the left-turning driver could not see the
approaching vehicle when she started her turn, she had time to see it while
making the turn and ought to have seen it (para. 20).
[81]
As I noted in Glanville v. Moberg, 2014 BCSC 1336 at para. 100,
it does not necessarily follow from the fact that the left-turning driver did
not see the straight-through driver, that the left-turning driver failed to
keep a proper lookout or otherwise acted unreasonably. In several cases where
it was not reasonably possible for a left-turning driver to have perceived a straight-through
driver as an immediate hazard just before proceeding into the turn, the left-turning
driver has not been found negligent. This was the outcome where the left-turning
drivers vision was impeded by an SUV stopped in the oncoming opposite left-turn
lane and where the straight-through driver entered the intersection just as the
light was turning red (Henry), where the left-turning driver commenced
his turn before the straight-through driver swerved sharply to the right and
entered the intersection on a red light (Lee), and where the left-turning
driver, having looked to her right down the oncoming curb lane and seeing no
hazard, then looked to her left in the direction of her turn to ensure there
were no pedestrians while, in the meantime, the straight-through driver
approached at an excessive speed in the curb lane and struck her car (Kelly
v. Yuen, 2010 BCSC 1794).
[82]
In some circumstances, even diverting ones attention from oncoming
traffic does not constitute negligence. In Kokkinis, the straight-through
driver sped into the intersection on either a late-stage amber or a red light
and collided with the left-turning driver who did not see the oncoming vehicle
until it was on the top of her. The left-turning driver had diverted her
attention momentarily from the oncoming traffic to check cross traffic as she
commenced her turn and the Court of Appeal, in reapportioning fault 100% to the
straight-through driver, held that, in the circumstances, this was not an
unreasonable or careless thing to do.
[83]
Ultimately, while the case law is essential for discerning the
applicable legal principles, resolving liability in a case like this is
predominantly a fact-intensive exercise. As already noted, the question is
whether Mr. Ward, as the servient driver, has established that Ms. Lozinski
ought to have been aware of his disregard of the law and would have avoided the
accident had she acted with reasonable care.
[84]
Mr. Ward submits that Ms. Lozinski turned before determining
whether there was approaching traffic in the space adjacent to the stopped eastbound
cars and, as such, she failed to take into account the manifest hazard
resulting from the configuration of the traffic which impeded her vision. He
submits that had she turned more slowly and inched in front of Ms. Armstrongs
car she would have avoided the collision. To put it directly, he submits that
it was possible for her to orient her car into a positon in front of Ms. Armstrongs
car from which vantage point she would have been able to see him coming with
enough time to stop and avoid the accident.
[85]
As I have already noted, there was no expert accident-reconstruction
evidence that would support such a conclusion. No eyewitness testified that
this was possible. Ms. Lozinski said she did look but she could not see
into the space adjacent to Ms. Armstrongs car until Mr. Ward was
right there. I have found that it was not until Ms. Lozinskis vehicle
and Mr. Wards vehicle got to a point of inevitable collision that they
became visible to one another and, at that point, neither of them could have
prevented the collision.
[86]
Mr. Wards submission seemed to depend almost entirely on the
pattern of damage to the vehicles. As already noted, the photographs showed
that the front of Ms. Lozinskis car came into contact with the side of Mr. Wards
car. Mr. Ward submitted that this establishes that his car was already in
the intersection when Ms. Lozinski commenced her turn, and that if she had
inched forward in front of Ms. Armstrongs car or, in other words, done a
two-point turn, she would have seen Mr. Ward who was already there. However,
this hypothesis does not account for the relative speed of the two vehicles. Before
the impact, Ms. Lozinski had turned completely to the south, become
perpendicular to Ms. Armstrongs car, and stopped or nearly stopped. If Mr. Ward
was already there she would have seen him. If he was already there earlier, when
she commenced her turn, he would have cleared the intersection before she got
into the space in which he had been travelling.
[87]
Mr. Ward has not established that Ms. Lozinski ought to have
seen him before commencing her turn. She could not see him because her vision
was impeded by Ms. Armstrongs vehicle and possibly other eastbound
vehicles behind her. She paused after the light turned red in case a vehicle
was passing on the right. At that point, she had to clear the intersection. Mr. Ward
has not established that Ms. Lozinski failed to maintain her focus on the
space adjacent to Ms. Armstrongs car as she made the turn. Further, it
could not be said that Ms. Lozinski erroneously concluded that there were
no vehicles in close proximity. To the contrary, she could not see and was
still trying to ascertain whether a vehicle might be passing on the right when
the impact occurred. Similarly, Mr. Ward did not establish that Ms. Lozinski
could have oriented her vehicle, during the turn, into a position from which
she could have seen Mr. Ward in time to avoid the accident.
[88]
As a result, I am not persuaded that Ms. Lozinski was negligent. I
conclude that the accident was caused solely by the negligence of Mr. Ward.
Warren
J.