IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101105

Docket: M121308

Registry:
New Westminster

Between:

Claudio Nonis

Plaintiff

And

Stefano Granata

Defendant

Before:
The Honourable Madam Justice Fisher

Reasons for Judgment

[1]            
The defendant seeks an order under Rule 9-7 of the Supreme Court
Civil Rules that the plaintiff was negligent and solely liable for a motor
vehicle accident that occurred on March 10, 2009, in Burnaby, B.C.  The
plaintiff agrees that the issue of liability should be determined by way of
summary trial, but seeks an order that the defendant was solely liable for the
accident.

The evidence

[2]            
The essential facts are not in dispute.

[3]            
The accident occurred at about 4:30 pm at the intersection of East
Hastings Street and Madison Avenue.  The weather was clear. The intersection is
controlled by stop signs for traffic on Madison and a pedestrian controlled
light for traffic on Hastings. There are three westbound lanes and three
eastbound lanes on Hastings.  The eastbound curb lane was a designated high
occupancy vehicle (HOV) lane at that time of day. Traffic was heavy in both
directions.

[4]            
The defendant was driving a truck eastbound on Hastings in the curb
lane. The plaintiff, driving a black Ford, was travelling south on Madison. 
After stopping at the stop sign, he attempted to cross Hastings.  The light for
traffic on Hastings was flashing green.

[5]            
While stopped at the stop sign, the plaintiff saw that the intersection
was left open by cars in the westbound lanes and the first two eastbound lanes,
which were either stopped or barely moving.  He did not see any vehicles in the
eastbound curb lane.  He slowly crossed the three westbound lanes, slowed a bit
as he began to cross the first of the eastbound lanes, and then focused his
attention on the eastbound curb lane.  He did not see any vehicles
approaching.  He deposed that he first saw the defendant’s vehicle as the front
of his vehicle had “effectively exited” the south side of the eastbound curb
lane.  Counsel conceded that this evidence likely overstates the point at which
the plaintiff first saw the defendant’s vehicle, as the point of impact was at
the passenger door of the plaintiff’s vehicle behind the wheel well.

[6]            
The defendant had been travelling in the eastbound curb lane on Hastings
for approximately three blocks before he reached the intersection at Madison.
As he approached it he noticed that the traffic around him was moving slowly
and more particularly, that the traffic in the far left lane had stopped.
However, the traffic was not stopped in the curb lane.  He deposed that he saw
the plaintiff’s vehicle for the first time when it was in the middle of his
lane of travel. The defendant was alone in his vehicle.  There is no evidence
that he was speeding.

Legal principles

1.       The Motor Vehicle Act – rules of the road

(a)      Dominant and servient drivers

[7]            
The plaintiff, in attempting to cross the intersection when the flashing
light was in favour of the traffic on Hastings Street, was the driver of the
vehicle in the servient position and as such had the obligation to yield to
vehicles travelling on Hastings.  However, the servient position moves to a
driver in the position of the defendant in certain circumstances. Section 175
of the Motor Vehicle Act, R.S.B.C., c. 318 (the Act), provides:

(1) If a vehicle that is about to enter a through
highway has stopped in compliance with section 186,

(a) the driver of the vehicle
must yield the right of way to traffic that has entered the intersection on the
through highway or is approaching so closely on it that it constitutes an
immediate hazard, and

(b) having yielded, the driver
may proceed with caution.

(2) If a vehicle is entering
a through highway in compliance with subsection (1), traffic approaching
the intersection on the highway must yield the right of way to the entering
vehicle while it is proceeding into or across the highway.

[8]            
An approaching vehicle is an “immediate hazard” when it is so close to
the intersection that a collision threatens unless the driver of the
approaching vehicle takes some violent or sudden action to avoid it.  The time at
which to assess this is the moment immediately before the driver intending to
enter the intersection proceeds to do so: see Hynna v. Peck, 2009 BCSC
1057 at paras. 55, 56, and 60, citing Raie v. Thorpe (1963), 43 W.W.R.
405 (B.C.C.A.), and Keen v. Stene (1964), 44 D.L.R. (2d) 350 (B.C.C.A.).

[9]            
While the servient driver has the obligation to yield, the dominant
driver has a duty to act so as to avoid a collision if reasonable care on his
part will prevent it.  In Walker v. Brownlee, [1952] D.L.R. 450 (S.C.C.)
Cartwright J. adopted, at p. 460, the principle that the dominant driver ought
not to exercise his right of way if the circumstances are such that the result
of his doing so will be a collision which he reasonably should have foreseen
and avoided.

[10]        
Cartwright J. went on to discuss, at p. 461, what the servient
driver must prove in order to place any fault on the dominant driver:

… when A, the driver in the
servient position, proceeds through an intersection in complete disregard of
his statutory duty to yield the right-of-way and a collision results, if he
seeks to cast any portion of the blame upon B, the driver having the
right-of-way, A must establish that after B became aware, or by the exercise of
reasonable care should have become aware, of A’s disregard of the law B had in
fact a sufficient opportunity to avoid the accident of which a reasonably
careful and skilful driver would have availed himself; and I do not think that
in such circumstances any doubts should be resolved in favour of A, whose
unlawful conduct was fons et origo mali.

[11]        
This has not been interpreted to mean that the dominant driver is
required to take extraordinary steps to avoid the collision.  In Salaam v.
Abramovic, 2010 BCCA 212, the court stated at para. 25:

A driver like the defendant, who
is in a dominant position, will not typically be found to be liable for an
accident.  Drivers are generally entitled to assume that others will obey
the rules of the road.  Further, though defensive driving and courteous
operation of motor vehicles are to be encouraged, they do not necessarily
represent the standard of care for the purposes of a negligence action.  A
driver will not be held to have breached the standard of care
simply because he or she failed to take extraordinary steps to avoid an
accident or to show exceptional proficiency in the operation of a motor
vehicle.

(b)      Flashing green lights

[12]         
A driver approaching a flashing traffic signal also has a duty to
proceed with caution.  Section 131(5) provides that when a flashing green light
is exhibited by a traffic control signal at an intersection,

(a) the driver of a vehicle
approaching the intersection or signal and facing the signal must cause it to
approach the intersection or signal in such a manner that he or she is able to
cause the vehicle to stop before reaching the signal or any crosswalk in the
vicinity of the signal if a stop should become necessary, and must yield the
right of way to pedestrians lawfully in a crosswalk in the vicinity of the
signal or in the intersection …

[13]        
Although this section has been held to advantage pedestrians, the
presence of a flashing green light may be considered in assessing the potential
liability of a dominant driver involved in a collision with another vehicle: Gautreau
v. Hollige, 2000 BCCA 390.  Accordingly, in the circumstances of this case,
I am entitled to consider the flashing green light as a factor in assessing the
driving of the defendant and his obligation to respond to the danger that was
presented by the plaintiff.

(c)      HOV lanes and passing vehicles

[14]        
Sections 152 and 158(1) may also have some relevance in this case. 
Section 152 simply prohibits a person from using a “high occupancy vehicle lane”
(HOV lane) unless permitted by the regulations.  The regulations permit only
“high occupancy vehicles”, which are those carrying the minimum number of
persons specified by the traffic sign, to use an HOV lane.  Section 158(1) prohibits
a driver from overtaking and passing another vehicle on the right except in
specified circumstances.  Subsection (b) permits passing

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.

2.       Common law duty of care

[15]        
The provisions of the Act do not provide a complete legal framework
but are to be regarded as guidelines for assessing fault in motor vehicle
accident cases.  In Salaam at para. 21, the court held:

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.

[16]        
More particularly, the court said this about s. 175 of the Act,
at para. 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, in themselves, define the standard of
care in a negligence action.

3.       Apportionment of liability

[17]        
Finally, if I determine that the damage or loss was caused by the fault
of both parties, I must apportion liability between them.  Section 1 of the Negligence
Act, R.S.B.C. 1996, c. 333, provides:

(1) If by the fault of 2 or more persons damage or loss
is caused to one or more of them, the liability to make good the damage or loss
is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1),
if, having regard to all the circumstances of the case, it is not possible to
establish different degrees of fault, the liability must be apportioned
equally.

[18]        
In this context, “fault” means blameworthiness.  As Ballance J.
explained in Hynna at para. 88, blameworthiness is the degree to which
each party is at fault and not the degree to which each party’s fault has
caused the loss.  In Alberta Wheat Pool v. Northwest Pile Driving Ltd.,
2000 BCCA 505, the court stated at para. 46:

Fault or blameworthiness
evaluates the parties’ conduct in the circumstances, and the extent or degree
to which it may be said to depart from the standard of reasonable care.

[19]        
In assessing the relative degrees of fault, a number of factors may be
considered.  These factors were summarized by Groves J. in Aberdeen v.
Langley (Township), 2007 BCSC 993 at paras. 62-63, citing Heller v.
Martens, 2002 ABCA 122 at para. 34 and David Cheifetz, Apportionment of
Fault in Tort (Aurora, Ont.: Canada Law Book, 1981), at 102-104:

1.         The
nature of the duty owed by the tortfeasor to the injured person.

2.         The
number of acts of fault or negligence committed by a person at fault.

3.         The
timing of the various negligent acts. For example, the party who first commits
a negligent act will usually be more at fault than the party whose negligence
comes as a result of the initial fault.

4.         The
nature of the conduct held to amount to fault. For example, indifference to the
results of the conduct may be more blameworthy.  …Similarly, a deliberate
departure from safety rules may be more blameworthy than an imperfect reaction
to a crisis.

5.         The
extent to which the conduct breaches statutory requirements.  For example, in a
motor vehicle collision, the driver of the vehicle with the right of way may be
less blameworthy.

6.         The
gravity of the risk created.

7.         The
extent of the opportunity to avoid or prevent the accident or the damage.

8.         Whether
the conduct in question was deliberate, or unusual or unexpected.

9.         The knowledge one person had or
should have had of the conduct of another person at fault.

[20]        
In most motor vehicle cases, the driver in the servient position will
bear a greater degree of responsibility: see Gautreau at para. 18.

The positions of the parties

[21]        
The defendant says that the plaintiff, in attempting to cross Hastings
Street, was at all times the servient driver with the obligation to yield to
traffic.  He concedes that when the plaintiff first entered the intersection,
the defendant’s vehicle did not constitute an immediate hazard, as it had not
yet reached the intersection.  However, he submits that the plaintiff failed to
proceed with caution as he is required to do under s. 175(1)(b) of the Act
and therefore he continued to have the obligation to yield to the defendant’s
vehicle.  He says that the plaintiff’s failure to proceed with caution is
evidenced by his failure to see the defendant’s vehicle as he approached the
curb lane when it was there to be seen.  Moreover, the defendant had no
opportunity to avoid the collision, as he did not see the plaintiff’s vehicle
until it was in front of him.

[22]        
The plaintiff says that at all times he proceeded through the
intersection with caution in compliance with s. 175(1) of the Act. 
Therefore, the defendant became the servient driver and was required to yield
under s. 175(2).  He submits that the defendant failed to keep a proper lookout
because he proceeded without regard to the fact that vehicles in the lanes to
his left had either stopped or were barely moving.  He says that s. 131 of the Act
is instructive, as it requires a driver approaching an intersection with a flashing
green signal to approach the intersection in such a manner that he is able to
cause the vehicle to stop before reaching the signal.

[23]        
The plaintiff also submits that the defendant should not have been
driving in the curb lane at all, as it was a designated HOV lane and he was in
breach of s. 152 of the Act, being the only occupant in his vehicle; had
the defendant complied with s. 152 this accident would not have occurred.  He
further submits that because the defendant was not permitted to drive in the
HOV lane his conduct in proceeding past the vehicles in the lane to his left
constituted illegal passing on the right, contrary to s. 158(1)(b).  He says
that because the defendant was in breach of these sections of the Act he
was an immediate hazard and the plaintiff had no opportunity to avoid the
collision.

Analysis and findings

[24]        
As the driver of a vehicle entering a through highway, the plaintiff was
in a servient position.  As indicated by s. 175(1) of the Act, this
required him to yield the right of way to traffic on Hastings Street that was
in or so closely approaching the intersection as to constitute an immediate
hazard.  At the moment when he proceeded to cross, there was no traffic in the
intersection or approaching it so closely that was an immediate hazard. 
Consequently, there were no vehicles to which he had to yield the right of
way.  He was entitled to enter the intersection but he had a duty to proceed
with caution.

[25]        
I find that the plaintiff did proceed with caution through the three
westbound lanes and the first two eastbound lanes.  However, he failed to see
the defendant’s vehicle until he entered the eastbound curb lane.  There is no
evidence that explains why the plaintiff did not see the defendant’s vehicle.

[26]        
The defendant was driving a truck that was there to be seen.  In the
absence of evidence that the defendant was speeding, the only reasonable
inference to draw from the evidence is that the plaintiff failed to keep a
proper lookout as he proceeded through the eastbound curb lane, contrary to the
ordinary duty of a reasonably careful driver.  Moreover, he did not comply with
s. 175(1)(b) of the Act, as he failed to proceed with caution in his attempt
to proceed across Hastings Street.  As the Court of Appeal noted in Salaam
at para. 17:

Section 175(2) conditions any
duty of the defendant to yield the right of way to the plaintiff on the
plaintiff having complied with her own statutory obligations.

[27]        
Accordingly, the plaintiff was not relieved of his obligation to yield
the right of way to the defendant and he remained in the servient position.

[28]        
The defendant, while the dominant driver, proceeded toward an
intersection with a flashing green light in circumstances where the traffic in
the immediate two lanes to his left had either stopped or was barely moving.  In
my view, he had a duty – consistent with s. 131(5) of the Act – to slow
down sufficiently to be able to cause his vehicle to stop should this become
necessary.  This he did not do.  His evidence was that he was driving at
approximately 40 kilometres per hour.  Had he slowed down, he would have had a
sufficient opportunity to avoid the collision, as he would have been in the
same position as the vehicles to his left.  His failure to keep a proper
lookout contributed to the accident.

[29]        
The defendant was in a position similar to that of the defendant in Andrews
v. Roffel (1997), 38 B.C.L.R. (3d) 159 (S.C.). There, the plaintiff was
attempting to turn left on a busy through street in heavy traffic, where the
cars had left a gap at the intersection.  The defendant, in approaching the
intersection, could see that traffic was backed up.  The Court held that a
driver in the defendant’s position was in a position either to see the gap, or
to apprehend the possibility that traffic may be yielding for turning vehicles,
and to adjust accordingly. In that circumstance, both drivers had a duty to
keep a proper lookout.  A similar situation arose in Carich v. Cook,
[1992] 90 D.L.R. (4th) 322 (C.A.).

[30]        
Similarly, in Salaam, the plaintiff began crossing an
intersection, turning left into the defendant’s lane of travel.  The trial
judge found the plaintiff 100% liable for the accident.  On appeal, the Court
held that the defendant, although the dominant driver, was 25% at fault
because, in accordance with Walker v. Brownlee, he had ample warning
that the plaintiff was not following the rules of the road and ought not to
have exercised his right of way in the circumstances.

[31]        
I do not agree with the plaintiff that the defendant’s breach of s. 152
of the Act for driving in the HOV lane is a factor that bears on the
issue of negligence.  Nor do I accept his submission that the defendant was
improperly passing vehicles on the right.  In my view, overtaking and passing
on the right contemplates a driver changing lanes and increasing speed in order
to overtake other vehicles, as was the case in Weaver v. Robinson,
[1992] 74 B.C.L.R. (2d) 240 (C.A.). In this case, the defendant remained in the
same lane at a constant speed.

[32]        
In any event, while the defendant did not have the statutory right to
drive in the HOV lane, the fact remains that both parties had a duty to keep a
proper lookout as I have already explained.  As the Court of Appeal said in Salaam,
while the provisions of the Act are important in determining whether the
standard of care was met, they are not the exclusive measures of that standard. 
In the end, I must determine whether, and to what extent, each party met his
common law duty of care.

Conclusion

[33]        
For all of these reasons, it is my view that both parties were at fault
for this collision.  Because the defendant was the dominant driver, I consider
him to be less at fault.  Although he failed to slow down, he was not speeding,
as were the defendants in both Andrews and Hynna. Under the Negligence
Act, I find the plaintiff 75% at fault and the defendant 25% at fault.

[34]        
No submissions were made as to costs. Counsel will have leave to make
submissions if they cannot otherwise agree.

“Fisher
J.”