IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151007

Docket: M125980

Registry:
New Westminster

Between:

Robert Miller

Plaintiff

And

Alison Dent, Sharon
Dent and
Howard Bruce Dent also known as Howard Dent

Defendants

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.
introduction

[1]
These are the Reasons for Judgment in the new trial on liability ordered
by our Court of Appeal: Miller v. Dent, 2014 BCCA 234, rev’g 2013 BCSC
489.

[2]
On August 29, 2008, the plaintiff was turning left at a large busy
intersection when his car was struck by a large pickup truck proceeding straight
through the intersection. The defendant Alison Dent (the “defendant driver”) was
driving the pickup truck, which was jointly owned by the defendants Sharon Dent
and Howard Dent.

[3]
For the reasons that follow, the Court finds the defendant driver to be
entirely responsible for the collision.

II.
background

[4]
I have had the benefit of evidence that was not before the trial judge
at the first trial, including expert accident reconstruction reports and
testimony, details of the traffic signal timing at the intersection, and a
written statement made by Ms. Kemppi, an important witness, which the
Insurance Corporation of British Columbia (“ICBC”), through oversight, had not
disclosed prior to the first trial.

[5]
The accident occurred shortly after 3 p.m. at the intersection of Austin
Avenue and Gatineau Place in Burnaby, B.C. The intersection is controlled by
lights in all directions. At the intersection, Austin Avenue runs east/west and
has seven lanes in total: three in each direction and one dedicated left turn
lane. Gatineau Place runs north/south and has two lanes in each direction.

[6]
Dr. Toor, one of the accident reconstruction experts, testified that
the inner shape of the intersection is a parallelogram. The east and west sides
of the parallelogram are each approximately 27 metres long.

[7]
An illustrative photograph of the intersection is attached as Appendix A
to these Reasons. The photograph is from Dr. Toor’s expert report which
was entered as Exhibit #6 at trial.

[8]
Mr. R. Brown, the other accident reconstruction expert, stated in
his report that Austin Avenue ascends a 5% gradient in the eastbound direction.
Gatineau Place ascends a 3% gradient in the northbound direction.

[9]
At the time of the accident, the road and weather conditions were good.
The asphalt was dry. There was clear visibility.

[10]
There is no advance left turn signal for northbound or southbound
traffic on Gatineau Place.

[11]
The north/south traffic signal timing at the intersection is green, then
amber for 4.0 seconds, and then red in all directions for 1.0 second before the
east/west lights turn green.

[12]
At the following kilometres per hour, one is travelling at the corresponding
metres per second:

[13]
Using 30 km/h as an example, a representative calculation is:

30 km/h = (30 x 1000 metres)/(60
minutes x 60 seconds) or 30,000/3,600 = 8.33 m/sec

[14]
Counsel told the Court that the speed limit for southbound traffic on
Gatineau Place is 50 km/h.

[15]
The post-accident photographs show extensive damage to each vehicle. The
initial contact was between the right front panel area of the plaintiff’s car
(a 2004 Chevrolet Aveo) and the right front headlight area of the defendant
driver’s truck (a 1993 GMC Sierra pickup, extended cab). From the damage, it is
readily apparent that the collision was violent.

[16]
The plaintiff and the defendant driver were each familiar with the
intersection.

III.
witnesses

A.
The Plaintiff, Mr. Miller

[17]
The plaintiff testified that he was travelling northbound on Gatineau
Place as he approached the intersection. The northbound light was red and he
stopped at the stop line in the left northbound lane. He was returning home
from grocery shopping and wished to turn left to go westbound on Austin Avenue.
He activated his left turn signal.

[18]
Across the intersection in the left southbound lane, a sports utility
vehicle (SUV) was stopped at its stop line with its left turn signal activated,
showing that its driver planned to turn left to go eastbound on Austin Avenue.

[19]
After the light turned green, the plaintiff proceeded into the
intersection. As noted, there is no advance left turn signal in either
direction on Gatineau Place.

[20]
Traffic was busy. The plaintiff could see, including by using his
rear-view and side-view mirrors, vehicles in the right lane of Gatineau Place
travelling northbound to either cross the intersection or to turn right onto
Austin Avenue. There were pedestrians crossing in the west crosswalk of Austin
Avenue. He directed much of his attention to the southbound curb lane north of
the intersection. Understandably, he wished to ensure there were no oncoming
vehicles from that lane before he made his left turn.

[21]
The plaintiff moved forward again and then once more. The SUV also moved
into the intersection. The plaintiff testified that there was at least one
vehicle, and possibly two or three, behind the SUV and they remained behind the
crosswalk. They did not proceed into the intersection. After the three moves
from the stop line, the plaintiff was well into the intersection. Based on his
testimony, his car was approximately in the third eastbound lane north of the
curb of Austin Avenue and in the left northbound lane of Gatineau Place (if the
lanes were to be extended through the intersection).

[22]
The plaintiff saw that the northbound light had turned yellow and then saw
the SUV start to make its turn. The pedestrians in the Austin Avenue crosswalk
were gone. He checked the northbound right lane. He looked up again and the
northbound light was red. He could not see any oncoming vehicles in the
southbound curb lane of Gatineau Place. With the SUV turning left, the plaintiff
saw more of the southbound curb lane of Gatineau Place. With the light red and
a “far enough view” of the southbound curb lane of Gatineau Place, he decided
to proceed with his left turn. He started his left turn and was then hit by the
defendant driver’s truck. He saw the defendant driver’s vehicle only a fraction
of a second before the collision.

[23]
The plaintiff had no doubt that the light was red before he started his
left turn. He felt the need to leave the intersection before the east/west
Austin Avenue lights turned green.

B.
The Defendant Driver, Ms. Dent

[24]
The defendant driver testified that she had been shopping at Lougheed
Mall. She stated that after leaving the Lougheed Mall parking lot and
travelling eastbound on a road which leads from the parking lot to Gatineau
Place, she turned right into the southbound curb lane of Gatineau Place (the
corner is approximately 65 metres north of the intersection where the collision
occurred). Shortly after, she then changed lanes into the left southbound lane
of Gatineau Place. She testified that she was heading home and was not in a
hurry.

[25]
She had changed lanes because she planned to go through the Gatineau
Place/Austin Avenue intersection and there were vehicles lined up in the curb
lane. She guessed her speed when she changed lanes to be 15 to 20 km/h. (She did
not look at her speedometer.)

[26]
The defendant driver testified that as she travelled in the centre lane,
she saw two vehicles in front of her. Both were in the intersection to turn
left. She also testified that she saw a small dark car in the intersection
facing her (the plaintiff’s vehicle).

[27]
She testified that as she approached the intersection, the first and
then the second vehicle ahead of her turned left. She testified that the traffic
light facing her was green as she approached the intersection and was still
green as she entered the intersection. She guessed her speed to be between 30 and
50 km/h as she entered the intersection. (Again, she did not look at her
speedometer.)

[28]
The defendant driver testified that as she drove straight across the
intersection, the plaintiff’s vehicle was “suddenly” in front of her. She had
no time to brake prior to the collision.

[29]
Under cross-examination, the defendant driver agreed that she was
accelerating as she drove through the intersection. She also agreed that she
did not know how fast she was going “exactly”.

[30]
She conceded that in a written statement she gave to ICBC on September 4,
2008, and again at an examination for discovery held on March 24, 2011,
she had made no mention of seeing the plaintiff’s car other than immediately
before impact.

[31]
As noted, at trial she testified that she saw the plaintiff’s vehicle
before entering the intersection (as she had at a second examination for
discovery). At trial, she acknowledged the inconsistency and stated that her
memory had changed as a result of having thought about matters “detail-by-detail”.

[32]
Under cross-examination, she maintained that what she had told ICBC on
September 4, 2008 was true. She testified:

Q         Now, Ms. Dent, in this statement [the
September 4, 2008 statement to ICBC] on the first page starting with I was
planning on going straight through the intersection of Gatineau and Austin.

A          Okay.

Q         There is a traffic light at this intersection.

A          Mm-hmm.

Q         I had been at Lougheed Mall. I was
exiting the parking lot of the mall and made a right turn onto Gatineau into
the right lane. I then changed lanes into the left lane. This change was
about half a block from the intersection of Gatineau and Austin. There were two
vehicles that were ahead of me in the left lane. The two vehicles ahead of me
were turning left. The first vehicle made the left turn, then the next vehicle
turned. There is not an advance green arrow at this intersection. I didn’t
have to stop behind these left-turning vehicles as there was no northbound
traffic. I proceeded into the intersection on a green light. All of a
sudden I saw a little black car that was proceeding northbound in front of
me making a left turn. I didn’t have enough time to brake.

A          Mm-hmm.

Q         You said that?

A          Yes.

Q         Is that true?

A          Yes.

Q         Is it true today?

A          Yes. In this statement when I say I didn’t
have to stop behind these left-turning vehicles, there was no northbound
traffic, I was referring to the traffic that would have
proceeded northbound through the intersection into Lougheed Mall that would
have stopped the left-turning vehicles. That’s what I meant by that northbound
traffic.

Q         Towards the bottom.

A          Yes, line 4 from the bottom.

Q         I proceeded into the intersection on a green
light.

A          Yes.

Q         All of a sudden I saw a little black car
that was proceeding northbound in front of me making a left turn.

A          Mm-hmm.

Q         That’s correct?

A          Yes.

Q         It was all of a sudden.

A          He was in front of me making a left turn.

Q         All of a sudden.

A          At the time, those are the words I used,
yes.

Q         Okay. So would you have this court believe
that that is the same as you are saying today in your testimony that you did see
that vehicle before the intersection? Is that the same as all of a sudden?

A          Reading it here, all of a sudden I saw
a little black car that was proceeding northbound in front of me making a left
turn, to me, means all of a sudden there was a car in front of me turning
left. That was the vehicle that I hit while I was proceeding straight
through the intersection that turned left in front of me.

Q All of a sudden, your words.

A          Yes.

Q         You didn’t see it before the intersection.

A          Again, at that time, I didn’t mention it
maybe in the statement or they didn’t ask me. I don’t, again, recall —
I don’t recall giving this statement. I know I did.

Q         Ms. Dent, is this true or not?

A          This is true, this is what I said to
ICBC.

[Emphasis in original.]

[33]
Later in cross-examination, the defendant driver addressed the
discrepancy between her evidence at her first and second discoveries:

Q         Question 169 [from the March 24, 2011 first
discovery]:

Q         So you really didn’t see him move until he was
just sort of there.

A          He was just there.

Q         Is that true?

A          At the time of the discovery, yes.

Q         Well, I think we’re having a disconnect, Ms.
Dent. Is it true or not true?

A          It’s true at this — in this discovery, yes,
that’s true, that’s what I believed and that’s what I — that’s how I answered
the questions.

Q         Okay. So your truth is how you remember it.

A          With regards — I — I apologize that my
first discovery changed — or my second discovery changed from my first
discovery. That was never my intent. I answered the questions to the best of my
ability during the first discovery, and approximately a month and a half later,
having, again, been asked these questions and asked to think about the
incident, was able to provide more details that I remembered, and that’s how the
questions — you know, that’s — I’ve never gone back on that. I have fully
admitted that I made the mistake, and I do apologize if there’s been any issues
with it. It was never my intention to deceive, but that’s

Q         But that’s the effect.

A          Again, I do apologize for that.

Q         So my question, Ms. Dent, is if you’re wrong
about something as important as when you first saw the Miller vehicle, you’ll
agree with me that you don’t have a perfect memory.

A          Yes, I do agree
with you.

[34]
Under cross-examination she maintained as true that the southbound traffic
light was green as she entered the intersection.

C.
Ms. Samantha Kemppi

[35]
Ms. Kemppi was an independent witness called by the plaintiff.

[36]
Ms. Kemppi was near the intersection and was walking towards it at
the time of the collision. She was southeast of the intersection on a knoll several
feet higher than the intersection.

[37]
On June 23, 2009, Ms. Kemppi provided a written statement to
ICBC. Through oversight, ICBC did not disclose a copy of Ms. Kemppi’s
statement prior to the first trial. Plaintiff’s counsel only became aware of
the existence of the statement recently.

[38]
Ms. Kemppi had been subpoenaed to testify at trial. It was apparent
that she was miffed by the inconvenience of having to testify a second time.
After a short break, she returned and after being given the opportunity to
review her testimony at the first trial and her June 23, 2009 written
statement, she gave further testimony with a proper attitude.

[39]
In her June 23, 2009 written statement, Ms. Kemppi stated, in
part:

…As I was walking towards this intersection I recall
hearing the sound of an older truck engine revving as if it was accelerating.
I next recall observing a car turning left off Gatineau Place and
attempting to proceed westbound on Austin Road which leads to Lougheed Highway.
This car had been travelling in the inside or left lane on Gatineau Place
before attempting its left turn at Austin Road. Moments later, I observed
the older truck, travelling southeast on the Lougheed exit/entrance way,
accelerate as it approached and entered the intersection at Austin Road. This
vehicle was travelling in the inside or left lane. The older truck appeared to
want to cross Austin Road and continue along Gatineau Place, Moments later,
I observed the front passenger side of this truck to collide with the rear
passenger side of the car that was in the middle of its left turn through the
intersection. I do not recall whether there was any braking by either
vehicle before contact and neither vehicle appeared to attempt to change its
direction before the accident occurred. I was approximately 10-15 feet from the intersection when it occurred.
I did not observe the colour of the light as the vehicles entered the
intersection, but approximately a second after the accident occurred, I looked
up at the traffic light facing me and it was red. This traffic light was for
vehicles traveling northwest off Gatineau Place at Austin Avenue, This was the
same traffic light facing the car as it attempted its left turn.

[40]
At trial, Ms. Kemppi confirmed that her June 23, 2009 written statement
was true and that the statement and the transcript of her testimony from the
first trial had served to refresh her memory.

[41]
At trial, Ms. Kemppi testified that “[t]he acceleration of that big
engine” had first caught her attention. The sound was from the defendant driver’s
truck. She also testified that “like a snap of a finger” after the collision,
she looked at the northbound traffic signal and it was red.

D.
Accident Reconstruction Experts

[42]
The plaintiff and the defendants called Mr. R. Brown and Dr. A
Toor, respectively, as accident reconstruction experts. Both were qualified to
provide expert testimony as accident reconstruction experts.

[43]
Mr. R. Brown placed the point of impact just south of the centre of
the intersection in the left southbound lane of Gatineau Place (if the lane
were to be extended into the intersection). Dr. Toor placed the point of
impact approximately 5 metres south of Mr. Brown’s estimate.

[44]
Both experts were hampered in their respective analysis by the fact that
neither vehicle was available for inspection. Only photographs of the damage to
the two vehicles were available. Precise measurement of the actual damage to
vehicles may assist greatly in an accident reconstruction analysis. Similarly,
tire marks shown in photographs of the accident scene could not be measured
with precision.

IV.
Findings

[45]
The Court finds that the northbound traffic signal (and therefore also
the simultaneous southbound traffic signal) had turned red before the plaintiff
started his left turn after he had moved forward into the intersection three
times.

[46]
The plaintiff’s testimony was clear in describing the events associated
with his left turn in the busy intersection. He was not distracted and was
attentive to the relevant surroundings. Cross-examination did not shake his
testimony that the northbound light was red before he started his left turn
from his position in the intersection.

[47]
Ms. Kemppi’s testimony corroborates the plaintiff’s testimony. Her observation
of a red light when she looked up after the collision, although not dispositive,
is consistent with the plaintiff’s testimony that the light was red before he
started his left turn from the intersection. If she had observed either a green
or a yellow light, doubt may have been cast on the plaintiff’s testimony.

[48]
I accept that the plaintiff was mistaken in his belief that there may
have been several vehicles behind the SUV that remained behind the crosswalk after
the SUV turned left. The plaintiff’s primary focus was on the southbound curb
lane of Gatineau Place. In the surroundings of a busy intersection, the
plaintiff’s mistake is understandable.

[49]
I do not accept the defendant driver’s testimony that her light was
green as she entered the intersection.

[50]
I did not find the defendant driver to be a reliable witness.

[51]
Her testimony was inconsistent with her September 4, 2008 statement to
ICBC and with her evidence at her first discovery on March 24, 2011.

[52]
At trial, she testified that she saw the plaintiff’s car before entering
the intersection. In her ICBC statement, she said she did not see the
plaintiff’s car until “all of a sudden” before impact. At the first discovery,
she said she did not see the plaintiff’s car until it “darted” in front of her.

[53]
The defendant driver attributed this inconsistency to having only
thought over the accident “detail-by-detail” at the first discovery. In
cross-examination at trial, she testified:

Q         You — you will agree with me that your
beliefs about how this accident have changed over time.

A          Whether I saw him
in the intersection, yes, that changed between the first and second discovery.

[54]
The defendant driver is university-educated, and would have had no
difficulty in understanding the importance of the statement and the first
discovery, nor in describing the important details of the collision.

[55]
With respect to the accident reconstruction experts, the same
observation I made in Al-Tamimi v. Ricci, 2015 BCSC 59 applies in
the case at bar. In Al-Tamimi, I stated:

[20]      From the testimony and
reports of the three experts, it is readily apparent that there are many
variables that must be considered and estimated in reconstructing the
collision. Although the same laws of physics apply to the collision of two cars
as to the collision of two billiard balls on a billiards table, the number of
the variables associated with the collision of two cars that cannot be
determined with certainty is far greater.

[56]
The testimony and reports of the two experts are also not dispositive as
to the colour of the northbound traffic signal at the time the plaintiff
started his left turn after he had moved forward three times into the
intersection. However, they did not cast any real doubt on the plaintiff’s
testimony that the light was red at that time.

[57]
As noted, I have found that the light had turned red before the
plaintiff started his left turn. Accordingly, the light would have been red for
at least some time before impact.

[58]
Dr. Toor estimated that the defendant driver’s truck was travelling
at 41 km/h at the time of the impact. In the context of the evidence of
acceleration from Ms. Kemppi, the defendant driver’s acknowledgment in
cross-examination that she was accelerating and she did not know her speed “exactly”,
and the speed limit, Dr. Toor’s estimate of 41 km/h is likely low.

[59]
Dr. Toor estimated the point of impact to be 22 to 23 metres south
of the stop line. His estimate was based in large measure on tire tracks, the
exact location of which could only be estimated from photographs.

[60]
Mr. Brown’s estimate of the point of impact was about 5 metres
north of Dr. Toor’s estimate. This location is closer to the plaintiff’s testimony.
That said, Mr. Brown’s analysis had the plaintiff starting his left turn
further south than what the plaintiff had testified.

[61]
Based on the plaintiff’s testimony, and, in particular, his description
of his three moves forward from the stop line before the light changed to red,
I find the position of impact to be north of Dr. Toor’s location by
approximately 5 metres, but still south of the middle of the intersection. This
would be close to Mr. Brown’s estimated point of impact. In other words, I find
the point of impact to be in the eastbound left turn lane of Austin Avenue and
the left southbound lane of Gatineau Place, if the lanes were to be extended
through the intersection.

[62]
As noted, the defendant driver guessed that her speed was between 30 and
50 km/h as she entered the intersection. At 30 km/h, the defendant driver would
have travelled 25 metres in 3 seconds. For this calculation I have ignored any
acceleration. With acceleration, the time to travel 25 metres would be less.

[63]
As noted, Dr. Toor placed the point of impact 22 to 23 metres from
the stop line. As the light was yellow for four seconds, the defendant driver
would have had at least a full second to stop after the light had turned yellow
and before she entered the intersection. A full second would have given the
defendant driver 8.33 metres in which to stop prior to entering the
intersection.

[64]
If she were travelling faster than 30 km/h or with the point of impact
further north (as I have found it was, by approximately 5 metres), she would
have had more time and also distance before entering the intersection after the
signal changed from green to yellow.

[65]
In sum, on a balance of probabilities, I find that the traffic
signal was red as the plaintiff started to turn left from where he had stopped
in the intersection. The traffic signal was yellow, or possibly red, when the
defendant driver entered the intersection. After the light turned yellow, I
find she could have easily stopped before entering the intersection.

V.
The Law

[66]
The key statutory provisions are ss. 128(1)(a) and 174 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318:

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,

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.

[67]
Sections 128 and 174 of the Motor Vehicle Act are statutory rules
of the road which apply in the context of each party’s common law duties.

[68]
Justice Groberman, writing for our Court of Appeal in Salaam v.
Abramovic, 2010 BCCA 212, stated:

[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.

[69]
Justice Newbury, writing for our Court of Appeal in Kokkinis v. Hall
(1996), 19 B.C.L.R. (3d) 273 (C.A.) describes the application of ss. 128(1)(a)
and 174 of the Motor Vehicle Act where there is a left turning driver
and the ongoing driver fails to stop his or her vehicle before the intersection
when, as the trial judge had found, “he [or she] knew or ought to have known
that the traffic light had turned yellow for [his or her direction of traffic]
at a time when he [or she] could have stopped in ‘safety’.” Justice Newbury stated
at para. 10:

[10]      I must say this argument [that the
left hand turning driver cannot assume the oncoming driver will obey the law] has
given me pause; but ultimately I resolve it by asking whether in law Mrs.
Kokkinis [the left turning driver] should be faulted for diverting her
attention momentarily from oncoming traffic to check cross traffic at the point
in time in question, i.e., as she prepared to start her turn – to see if any of
those cars had jumped the light or were going to pose a threat to her turn. Was
this an unreasonable or careless thing to do? I think not, given both the
realities of the situation (which of course occurred over only a few seconds)
and past decisions of this Court that have imposed on left-turning drivers the
duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians,
and whatever else may be present in the intersection. To say that the plaintiff
can be found at fault because she relied on the assumption that Mr. Hall
would stop, and because she checked cross-traffic, would in my view subvert the
duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as
the other traffic did. An amber light is not, as the current witticism
suggests, a signal to accelerate or to pass traffic that is slowing to a stop.
Indeed, as Mr. Justice Esson noted in Uyeyama, in a busy city like
Vancouver and at a busy intersection like 25th and Granville, an amber is
likely the only time one can complete a left turn. Drivers approaching
intersections must expect that this will be occurring. Putting a burden on a
left-turning driver to wait until he or she sees that all approaching
drivers have stopped would, in my view, bring traffic to a standstill.
We should not endorse such a result.

[Emphasis in original.]

VI.
Application of the law

[70]
The rule set forth in Kokkinis applies to the facts of the case
at bar. The defendant driver is entirely responsible for the collision. The
three defendants must bear the liability.

VII.
conclusion

[71]
The defendants are solely liable for the damages arising from the
collision.

“Funt J.”

Appendix
A