IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101213

Docket: M062695

Registry:
Vancouver

Between:

Peter Schurmann

Plaintiff

And

Bruce Jay Hoch

Defendant

Before:
The Honourable Madam Justice Maisonville

Reasons for Judgment

1. Introduction

[1]            
This is an action for damages brought by the plaintiff, Peter Schurmann,
relating to a motor vehicle accident which occurred on January 10, 2006 in
Langley, British Columbia. Both liability and quantum are in issue. The
defendant, Bruce Jay Hoch, brings this application pursuant to Rule 18(A)
of the Rules of Court seeking that the issue of liability only, be determined
by means of a summary trial.

2. Factual Overview

The Accident

[2]            
This accident occurred two minutes before sunset on January 10,
2006 at 4:33 p.m. The defendant, Bruce Hoch, was 18 years of age at the time of
the accident, having been born in 1987. He was driving a navy blue
quarter-tonne Ford pickup westbound on
56th Avenue in the City of Langley. A through road, 56th Avenue intersects with
213A Street forming a “T” intersection. A stop sign faces the drivers on 213A traffic
seeking to enter 56th
Avenue where 213A intersects with 56th
Avenue.

[3]            
The plaintiff, Mr. Schurmann, was 36 years of age and was the
director of facilities for the Christian Life Assembly Church located at 21277-56th Avenue, in Langley,
B.C., for whom he had worked for 17 years. Adjacent to the church is a parking
lot. On the day of the accident, he left the parking lot which then joins 213A
and pulled up to the stop sign seeking to turn left. At that location, 56th Avenue has two lanes
and Mr. Schurmann, in order to turn left, would have to cross the oncoming
westbound traffic lane.

[4]            
Mr. Schurmann pulled out onto
56th Avenue, attempting to turn left, when his vehicle was immediately struck
by the defendant Bruce Hoch’s navy pickup.

3. Is a Summary Trial 18(A)
appropriate?

[5]            
A preliminary issue in this case is whether I can find the necessary
facts to determine the issue of liability on a summary trial basis. There is no
issue that I may weigh the evidence and find facts even where they are controverted.
Placer Development Ltd. v. Skyline Explorations Ltd., [1985] B.C.J.
No. 1874, 67 B.C.L.R. 366 (B.C.C.A.); Orangeville Raceway Ltd. v. Wood
Gundy Inc., 1995 B.C.J. No. 1254, 6 B.C.L.R. (3d) 391 (B.C.C.A.); MacMillan
v. Kaiser Equipment Ltd., 2004 BCCA 270. It is not necessary that I accept
uncritically every statement in an affidavit, particularly where to do so would
be inconsistent with other undisputed evidence, or be inherently improbable:
see Bank of British Columbia v. Anglo-American Cedar Products Ltd.,
[1984] B.C.J. No. 2690, 57 B.C.L.R. 350 (B.C.S.C.).

[6]            
I find the factual issues can be discerned from the affidavit evidence.
I am satisfied that it is not a matter of credibility, rather a matter of resolving
the affidavit evidence.

4. Overview of the accident circumstances

[7]            
The plaintiff had been working the day of the accident at the facilities
of Christian Life Assembly Church. As noted, he has been an employee and a
member of the Christian Life Assembly Church for 17 years. He was accordingly
very familiar with this intersection. He is married and has two children in
elementary school. Mr. Schurmann’s usual practice in 2006 was to leave
work prior to 3:30 p.m.; however, on occasion, when extra work was needed and
matters to be reviewed with other employees, he would stay late. The day of the
accident was one of those days. He was speaking with Jonathan Withers, a maintenance
worker, on that day in the hallway where the lighting was particularly bright
with neon lighting fixtures. Both he and Mr. Withers then left at
approximately the same time. Both of their cars were in the parking lot northeast
of a quadrangle shaped building in the area adjacent to the church. From this
parking lot, one can join 213A Street, which in turn joins 56th Avenue. The intersection in 2006 was
not lit by street lighting. It had a stop sign facing drivers on 213A only and no
traffic signals. There were no stop signs on
56th Avenue where it intersects 213A.

[8]            
There is no dispute on the evidence that the accident occurred at
approximately 16:33 or 16:34 hours. Russ Jenkins, District Chief of the
Township of Langley Fire Department, attended the ensuing motor vehicle
collision. He noted that the time of the call to the fire department was at 16:36
hrs. and he deposed it took several minutes for the crew to be prepared and
load onto the truck which resulted in him arriving at the scene about 7 to 10
minutes after the initial phone call.

[9]            
Constable Shawn MacNeil of the Langley RCMP Detachment further deposed that
the time of the 9-1-1 call was at 16:33 hours.

(a) Evidence of the Plaintiff –
Peter Schurmann

[10]        
The weather conditions were cloudy and overcast. The plaintiff had his
wipers on, however, he could not recall if he turned them on or if they were
already in “on” position when he started his vehicle. The plaintiff also
deposed in his affidavit evidence (which I accept), that the rain had not yet
started although beads of water were on the plaintiff’s car windows, which
reduced the visibility. He had his lights fully on and it was his habit of
turning the lights fully on only if the lighting conditions were not full
daylight or if it was raining. On that day he specifically recalled turning the
lights on because the lighting conditions seem to be low.

[11]        
He deposed that he could only see a bit of lightness low on the horizon,
but everything around him appeared as dark as night. He described it as “socked
in” causing poor visibility. He deposed: [I]t was not foggy, however, when I
was at the stop sign, I noticed that I could really only see silhouettes of
trees with vehicle lights. As I looked at vehicles approaching I could only see
their lights.” The traffic was heavy at that time.

[12]        
Adjacent to the parking lot is the Langley Secondary School parking lot
exit, which, Mr. Schurmann indicated, is 100 metres to the east of the 213A and 56th Avenue
intersection. Many students were walking or cycling westbound along the
shoulder of 56th Avenue,
which the plaintiff observed from behind the stop line. He waited for them to
pass, before proceeding forward to the stop line, to have a better look further
down 56th Avenue.
Traffic was fairly busy in both directions. The plaintiff looked to his left
and saw, what he perceived to be, three vehicles proceeding westbound. The
trees to his left were 20 feet away.

[13]        
I find that the plaintiff had stopped at the stop sign and then pulled
ahead to look to his left to see better and saw three vehicles proceeding
westbound the first of which was less than 100 yards away. He was unable to
make out the type of vehicle or the shape of the vehicles, just that there were
three sets of headlights approaching from the east going westbound. He noticed
that the two eastbound vehicles were not followed closely by another vehicle.
In other words, he saw a gap in the eastbound traffic approaching which would
enable him to cross the westbound traffic and join the eastbound traffic on 56th Avenue. He
looked to his right and two eastbound vehicles passed in front of him. At the
same time, the first and second westbound vehicles were passing in front of
him. He then saw to his right there was a large gap before the next eastbound
vehicle in which he felt could safely pull into and join the eastbound flow. He
looked to his left and noticed that the last of the three westbound vehicles
was just approaching the intersection to pass 213A. He deposed he was also
looking for and double-checking for other vehicles, pedestrians and cyclists.
It was a brief, but he felt thorough, last look, double-checking for any hazard
before he proceeded on his left turn. He saw no vehicles, objects, pedestrians
or cyclists that he had not noticed before. He saw the next vehicle which had
its lights on coming towards him which was just past the entrance to the Langley
Senior Secondary School, which he has deposed was 100 meters to the east of
213A and 56th
Avenue. The next approaching vehicle he estimated as being more than 100 yards
away, but less than 150 yards away. His last actions, prior to pulling out to
make his left turn, were looking briefly to his right for a last double check
for eastbound traffic before proceeding. In his deposition he recalled there
was still a safe gap for him to turn and:

I immediately began proceeding
into my left turn looking 45 degrees approximately to my left; in other words, the
direction towards where I was headed in to my left turn. As soon as I began into
my turn I saw through my left window the chrome trim of an unlit square light
less than an arms (sic) length away from my head, and then “smash”.

He did not have a clear recollection of events after that.

(b) Evidence of Jonathan Withers

[14]        
Mr. Withers had been in the car immediately behind the plaintiff.
He was also employed at the Christian Life Assembly Church and had been working
in the maintenance department alongside Mr. Schurmann for four years prior
to the accident. As a consequence of working there, he too was very familiar
with the intersection as it was the main exit and entrance to their place of
work. He was contacted by ICBC and gave a statement that he had attached to his
affidavit. He deposed that in reviewing his statement he noted that his
statement set out, “the vehicles proceeding east and westbound along 56th Avenue had
their lights on and it was dark out”. Respecting that part of his statement, he
deposed:

I can say that in the time that I
was looking forward waiting for Mr. Schurmann’s vehicle to make his left turn,
I did not see any vehicles without their running and headlights on in the
fairly heavy traffic.

He turned his lights on because
of the dark lighting conditions, before proceeding south on 213A Street. He was
driving a 1991 Honda Civic which does not have automatic running lights. They
must be turned on manually. He does not always turn on the lights in his car when
there is sufficient daylight when he drives. He deposed that:

I recall that when I was travelling
behind Mr. Schurmann down 213A Street my lights were on and I could see my
lights, in contrast to other surrounding darker objects such as trees and the
landscape. Although it was not completely dark it was dark enough that having
the lights on helped see how for (sic) Mr. Schurmann’s vehicle was in
front of me, for example.

[15]        
Mr. Withers indicated that he saw an SUV with its lights on
approaching from the east, going westbound. It was behind this vehicle that the
pickup truck of the defendant was travelling. Mr. Withers deposed as
follows:

It was only a moment or a second
later that I saw the dark moving vehicle, the small pick-up truck, about a
vehicle length to the left of the intersection, observing this moving vehicle
for perhaps a second before impact. At that point of impact I cannot say how
far to the right or how many car lengths to the right the SUV was. I can say
the impact happened only seconds after the SUV had passed the intersection.

He had noted in his statement that the small pickup truck
was travelling closer to the centre line than to the curb line, which would
have rendered it more difficult to see from the position of one at the stop
sign on 213A, as it was behind the SUV and unlit.

[16]        
Mr. Withers endeavoured to warn Mr. Schurmann of the
defendant’s vehicle by honking his horn before he started his left turn, but he
did not have sufficient time to do so. He concluded that Mr. Schurmann had
been unable to see the defendant in part because his view may have been
partially obstructed by the SUV. Mr. Schurmann’s Honda Civic was struck
directly in the driver’s side of the vehicle by the defendant Mr. Hoch’s
vehicle. Mr. Schurmann’s Honda Civic vehicle spun 90 degrees and then
reversed westbound a distance of four vehicle lengths into the oncoming lane
before the vehicle turned sharply in a northbound direction. It then proceeded
two vehicle lengths going northbound and in the process knocked over a wooden
post going into the church grounds. The vehicle next hit the curb and continued
reversing, bouncing into the church parking lot, when it turned into an
eastbound direction, colliding with the curb in the parking lot and finally
coming to a rest.

[17]        
After the collision, Mr. Withers placed a call to 9-1-1 at 16:33 hrs.
according to his work cell phone records, which he verified prior to swearing
his affidavit. He immediately exited his vehicle to attend to
Mr. Schurmann. Mr. Schurmann was in pain. Ultimately, the ambulance
services arrived followed by the fire department, as deposed to by Fire Deputy
Chief Russ Jenkins, Relief District of the Fire Department.

(c) Bruce Hoch

[18]        
In 2006, Mr. Hoch was 18 years of age. He had graduated from an L licence
to an N license designation in March 2005. At the time of the accident, he
was still driving with his N designation.

[19]        
The examination for discovery for Mr. Hoch was placed into evidence
at the summary trial. It was evident from his answers that he had little memory
of conditions and had no memory of whether there were clouds in the sky or the amount
of traffic on the road or other details. He deposed that he was traveling west
on 56th Avenue from
216th Street to 213A
Street and was travelling the same speed as the flow of traffic; however, he
was not looking at his speedometer and does not know precisely what his speed
was. He recalls following a white Ford pickup truck and that there was another vehicle
behind him. As the white Ford pickup passed the intersection of 213A Street he
was still following behind it. Mr. Hoch deposed that when the accident
occurred he had no time to try to steer to avoid hitting the car.

(d) Brian Clunas

[20]        
On January 10, 2006 Mr. Clunas was driving his 1994 Toyota Corolla
westbound on 56th
Avenue with one of his students in the passenger seat and was coming from the
DW Poppy School where he worked as a teacher. He deposed that traffic was
moderately heavy in both directions at that time. He was following two to three
car lengths behind the defendant’s vehicle. He then saw the plaintiff’s vehicle
pull out from the stop sign. “I do not think the driver of the Ford Ranger
pickup had time to brake or swerve prior to the impact that occurred,” he
deposed. Mr. Clunas attached to his affidavit his statement to the adjuster where
he indicated that he went over to Mr. Hoch to give him witness
information. Counsel for Mr. Hoch has suggested that, given that Mr. Clunas
provided him his witness information rather than giving it to Mr. Schurmann,
the court could draw an inference as to Mr. Clunas’ assessment on fault. I
decline to do so as at the time there is no question Mr. Clunas also noted
in his statement that the plaintiff driver, Mr. Schurmann, appeared to be
semi-conscious and obviously in a lot of pain. I find he would not have been in
a condition to deal with contact information given his condition. I do not draw
any inference from the failure to provide the plaintiff with the contact
information given those circumstances and given that he was shortly under the
care of the ambulance attendants.

(e) Colin Thatcher

[21]        
Colin Thatcher was driving in the other direction eastbound on 56th Avenue heading
towards 213A Street. He was at least 300 feet away when he saw the accident
occur and he had seen the defendant’s pickup truck coming westbound towards him
on 56th Avenue.

5. Factual issues to decide

[22]        
In this case, the factual issues to be determined are: (1) the lighting
conditions at the time of the accident, (2) the actions of the plaintiff and
the sufficiency of his examination of the traffic conditions prior to leaving
his point of safety at the stop sign into traffic, and lastly (3) the actions
of the defendant Mr. Hoch in failing to put on his running lights in the
circumstances.

The Lighting Conditions

(a) Report of Michael Inch

[23]        
Michael Inch, an electrical engineer, tendered by the plaintiff, as an
expert witness, had prepared a report. Placed into evidence was his report on
lighting conditions at the accident scene. Insofar as Mr. Inch’s report was
made with respect to certain conditions that occurred 46 minutes after sunset,
given that the time of the accident on all the evidence was clearly closer to
two minutes before sunset, I must reject this evidence. However, concerning the
photograph he took two minutes before sunset on May 13, 2008, I find that the
photograph more fairly depicts the conditions at the time of the accident. The
photograph was put to the witnesses in an effort to seek comments on the
lighting conditions at the scene of the accident.

[24]        
It is not in dispute that the accident occurred at approximately 4:33
p.m. on January 10, 2006. It is clear from the photograph that lighting
conditions would have posed visual problems for a person attempting to turn
left, as the plaintiff was at that time. The colours of the surroundings are
indistinguishable except that the red running lights on cars are visible.
Otherwise it is difficult to see across the road distinctly and clearly apart
from visualizing that there is a tree and bushes. I find that it would have
been very difficult to see an unlit vehicle more than 100 meters away.
Additionally, at that time, as confirmed by Mr. Inch in his report, there
was no other lighting at that intersection.

(b) Jonathan Withers

[25]        
When shown the photograph taken by Mr. Inch on May 13, 2008 at two
minutes before sunset, Mr. Withers deposed that in his opinion, it depicted the
roadway lighting conditions at the time of the collision.

[26]        
In respect of that photograph, Mr. Withers deposed:

[T]he lighting conditions shown
in this photograph appear to be very similar to the lighting and road
conditions at the time of this collision. I can only add that the clouds or
lighting above the horizon in the photo were at the time slightly darker than
portrayed in the photograph. I also believe the road was dry just before the
collision, as in the photograph the roadway appears to be wet and giving off
some reflection.

(c) Peter Schurmann

[27]        
The plaintiff deposed as follows:

[A]s I pulled up to the
intersection and looked straight ahead, there was a bit of lightness low in the
horizon but everything else around me or above appeared as dark as night. The
presence of rain and a low visibility made the weather appear what I would
describe as “socked in”; sort of like a light mist in the air causing poor
visibility it was not foggy, however, when I was at the stop sign, I noticed
that I could really only see silhouettes of trees with vehicle lights. As I
looked at vehicles approaching I could only see their lights.

[28]        
I accept the plaintiff’s evidence that he could only see the cars that
were illuminated by running lights having their headlights on.

(d) Colin Thatcher

[29]        
The witness, Colin Thatcher, did not directly depose to the lighting
conditions in his affidavit, but did attach his statement in which he indicated
that “I always drive with my headlights on,” and “[i]t was still daylight at
the time of the accident.” This statement was dated December 11, 2007. In
his statement, he indicated he could clearly see the vehicles in the accident;
however, those vehicles would have been illuminated by driving with his
headlights on. He was heading east towards Abbotsford on 56th Avenue. He was at
least 300 feet from the intersection when the accident happened and he saw the
small pickup coming from the west. He also saw the plaintiff’s vehicle come up
to the stop sign and make what he indicated was a quick stop, and then pull
out. He cannot remember whether the defendant’s truck was travelling close to
the curb, centre line or middle of the westbound lane. Insofar as Mr. Thatcher’s
evidence suggests the plaintiff did not stop for an adequate period, I reject
it as being contrary to all other evidence.

(e) Brian Clunas

[30]        
Brian Clunas who, as noted, had provided an affidavit in this
matter, had also provided a statement where he indicated the accident occurred
between 4 and 5 p.m. It was a cloudy day, but was not raining at the time of
the accident. His statement was attached to his affidavit. In his statement,
dated March 24, 2006, he said:

As far as I could remember, the
roads were bare and dry but it did start to rain after the accident. It was
dusk but not dark enough that you would have to use your headlights. If you did
turn your headlights on, it would not make any difference in your ability to
see. There was nothing to restrict visibility such as smoke, fog or haze.

[31]        
He was driving westbound
on 56th Avenue at the time of the accident and he noted that he did not
see the defendant’s vehicle’s tail lights illuminated. He noted that Mr. Hoch’s
vehicle was a dark blue, Ford Ranger midsize, truck that had a canopy on the
back. He does not indicate whether Mr. Hoch had his headlights on or not.
Mr. Clunas had the order of emergency vehicles arriving as being the fire department
first, followed by the ambulance, followed by the police. I prefer the evidence
of the deputy fire chief who indicated that he arrived at the scene following
the ambulance.

(f) Constable MacNeil

[32]        
Constable MacNeil attended the scene immediately after the accident, arriving
after the fire department. He re-attended the accident scene the following day and
had obtained from the internet the information respecting the timing of sunset which
was in the materials before the court on this application. Regrettably, it was the
timing of sunset for the day following, that is, January 11, 2006, and
accordingly would not be exactly the conditions of January 10, 2006.
Nevertheless, the sunset for January 11, 2010 was indicated for Vancouver
to be at 16:36 hrs. It is important to note that Langley is east of Vancouver
and accordingly I take judicial notice that the sun would set earlier there than
at the Vancouver International Airport.

[33]        
Constable MacNeil in his report does not indicate exactly when he
re-attended on the following date. There is also no issue that it started to
rain within moments of the accident and the plaintiff in fact had his wipers on
but could not depose whether they were left in the “on” position when he parked
the vehicle in the morning or whether he had activated them in the evening
after leaving work. The Constable deposed that his check of the lighting
conditions the next day at the scene at the time of the accident revealed that
Mr. Schurmann should have been able to see Mr. Hoch. There is no
evidence, however, on how he made this observation. However, his report notes
that when he first arrived at the scene of the accident on January 10, which
would have been only minutes after the accident, that visibility was a very serious
issue. I am satisfied that in all the circumstances that visibility was very
much an issue.

(g) Scott Richardson

[34]        
Scott Richardson also deposed to the lighting conditions. He was an
internet technician employed by the Christian Life Assembly at the time and
immediately following the accident was contacted by Jonathan Withers to advise
that the accident had occurred. He went straight outside right away, walking
through the parking lot and came upon the scene of the collision.

[35]        
Mr. Richardson was later shown the photograph which was taken by Mr. Inch
on May 13, 2008 at 8:40 p.m. E.S.T., two minutes before sunset and deposed that
“I have looked at this photograph and say that the lighting conditions depicted
in the photograph approximate the lighting conditions when I came out to look
for the accident scene.” He noted that when he first came out there was a light
rain or “spitting” at the time, but by the time the emergency vehicles had
arrived, it was raining considerably harder.

(h) Bruce Hoch

[36]        
The defendant, Mr. Hoch, indicates that:

When the within motor vehicle
accident happened it was not yet quite dusk. It was still light out to the
extent that headlights would not be required. Visibility was not a problem for
me as I could see vehicles and objects around me and ahead of me quite easily.

[37]        
It is not in dispute however that Mr. Hoch had a limited memory at
his examination for discovery. At the examination for discovery, he stated that
he had in fact gone on to the internet with his father to ascertain when sunset
was on that date. He had not independently arrived at that memory of dusk given
his earlier evidence on the examination for discovery that he only learned this
when he went on the internet with his father.

6. Finding on lighting
conditions

[38]        
I accept that the lighting conditions were limited. I find that with the
assistance of the photograph taken by Mr. Inch and the separate evidence
of the deputy fire chief and the evidence of Mr. Withers that the visibility
was limited at the scene of the accident. I accept that for drivers on the road
following traffic, that head lamps and those of other vehicles would have
illuminated 56th Avenue
to the extent of lighting
other vehicles. However, from the vantage point of the plaintiff (facing 56th
Avenue from 213A) without having overhead street lighting and without having
running lights or head lamps on, the defendant’s dark navy pickup truck would
have been difficult to see. I find the defendant, despite the circumstances of
the cloudy inclement weather and poor lighting conditions, did not put on his
vehicle’s running lights or his headlights at all. Thus, he fell below the
standard of care expected of the driver in the circumstances of the case and
was negligent.

7. Relevant sections of the
legislation

[39]        
Two important pieces of legislation address the facts before the court.

[40]        
The Motor Vehicle Act Regulations, B.C. Reg. 26/58, Divisions
1-4, Division 4-Lamps (the “Regulations”) sets out:

4.01 A person who drives or operates a vehicle on a
highway must illuminate the lamps required by this Division

(a)  from 1/2 hour after sunset to 1/2 hour before sunrise,
and

(b)  at any other time when, due to insufficient light or
unfavourable atmospheric conditions, objects on the highway are not clearly
discernible at a distance of 150 m.

[41]        
It is important to note here that no witness described seeing objects at
a distance beyond 300 feet, which is considerably short of 150 meters.

[42]        
The defendant argued that as the dominant driver that the provisions of
s. 175 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, governed the
situation and that as the servant driver the plaintiff was wholly responsible
for the accident:

Entering through highway

175 (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. Analysis

[43]        
I conclude that the area of the intersection was not illuminated by
street lighting and that the only lighting provided was that of the headlights
of the cars along the highway, as well as of the plaintiff’s headlight directly
on to the cars that were immediately in front of him.

[44]        
I conclude, however, on the facts before the court that the defendant, driving
a dark navy pickup truck without running lights or headlights in effect at
approximately less than five minutes before sunset in conditions where there
were clouds and it had commenced spitting and light raining, was negligent and failed
to act reasonably in all of the circumstances by not putting on the running
lights and headlights of his vehicle to make himself visible to other
motorists.

A. Breach of Statute and
Application to Finding of Negligence

[45]        
I find that the defendant by failing to have his running lights on was
negligent. His actions created an objectively unreasonable risk of harm. The
defendant argues that he was in compliance with the statute insofar as it was
not necessary to have the lights of his vehicle on as it was not yet sunset. I
find however that section 4.01(a) of the Regulations speaks to
ideal weather conditions, not conditions as they existed on the afternoon and
early dusk of January 10, 2006. Those were cloudy conditions in circumstances
where it had just begun to rain. Accordingly this situation was governed by s.
4.01(b) of the Regulations.

[46]        
In considering the issue of the impact of breach of a statute, Dickson
J., as he then was, held at page 225:

Breach of statute, where it has
an effect upon civil liability, should be considered in the context of the
general law of negligence. Negligence and its common law duty of care have
become pervasive enough to serve the purpose invoked for the existence of the
action for statutory breach: see Canada v. Saskatchewan Wheat Pool,
[1983] 1 S.C.R. 205.

[47]        
It must not be forgotten that the other elements of tortious
responsibility equally apply to situations involving statutory breach, i.e. principles
of causation and damages. To be relevant at all, the statutory breach must have
caused the damage of which the plaintiff complains. Should this be so, the
violation of the statute should be evidence of negligence on the part of the
defendant (see Saskatchewan Wheat Pool).

[48]        
The defendant submitted to the court that in order to find negligence
one must first find a breach of the statute. I am mindful of the comments of
Dickson J. Other elements of tortious responsibility equally apply – it is not
necessary to find breach or for that matter compliance with a statute to find
actions that created an objectively unreasonable risk of harm.

B. Causation

[49]        
I find further that the defendant’s actions materially contributed to
the accident. In Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R.
333, Chief Justice McLachlin stated:

21  First, the basic test for determining
causation remains the “but for” test.  This applies to multi-cause injuries. The
plaintiff bears the burden of showing that “but for” the negligent act or
omission of each defendant, the injury would not have occurred. Having
done this, contributory negligence may be apportioned, as permitted by statute.

22  This fundamental rule has never been
displaced and remains the primary test for causation in negligence
actions. As stated in Athey v. Leonati, at para. 14, per Major
J., “[t]he general, but not conclusive, test for causation is the ‘but
for’ test, which requires the plaintiff to show that the injury would not have
occurred but for the negligence of the defendant”. Similarly, as I noted
in Blackwater v. Plint, at para. 78, “[t]he rules of causation
consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages
would have been incurred on a balance of probabilities.”

23  The “but
for” test recognizes that compensation for negligent conduct should only be
made “where a substantial connection between the injury and the defendant’s
conduct” is present.  It ensures that a defendant will not be held liable
for the plaintiff’s injuries where they “may very well be due to factors
unconnected to the defendant and not the fault of anyone”: Snell v. Farrell,
at p. 327, per Sopinka J.

[50]        
In this case, but for the defendant not having his running or head
lights on, the plaintiff would have seen him, and would not have attempted the
turn. The defendant thus breached the duty of care he owed to the plaintiff
causing the plaintiff the unforeseen risk of injury ─ and he did in fact
suffer injury.

[51]        
The question now becomes whether there was also negligence with respect
to the plaintiff’s care or lack of care for his own safety.

C. Negligence Act
─ Apportionment

[52]        
Pursuant to the provisions of the Negligence Act, R.S.B.C. 1996, c. 333,
I find that there is fault of the plaintiff that must be apportioned to him. Sections 1
and 8 state:

Apportionment of liability for damages

1  (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.

…

Further application

8  This Act applies
to all cases where damage is caused or contributed to by the act of a person
even if another person had the opportunity of avoiding the consequences of that
act and negligently or carelessly failed to do so.

[53]        
Mr. Schurmann was negligent in failing to take a more thorough
viewing of the traffic coming both ways given the reduced lighting in all of
the circumstances. As noted, in his own affidavit, he had the windshield wipers
going and there were beads of water on his side windows. In his affidavit he
attests to the fact that he had taken a look left, then a last look right, to
ensure there was sufficient space before the next eastbound vehicle. He then
looked left only to the extent necessary to see where he was going and did not
do a complete examination to the left to ensure that there was no vehicle
following the last lighted vehicle following after the white SUV which was immediately
ahead of the defendant’s unlit dark, navy, pickup truck. I, accordingly, must apportion
the degrees of fault.

[54]        
In that regard, I have reviewed the Court of Appeal’s decision in Quade
v. Schwartz, 2009 BCCA 73 [Quade], although I note that the events in
that decision occurred after sunset. The Court noted however that there was a
finding of negligence made as against an individual cyclist who did not have a
headlight on their bicycle making it more difficult for oncoming motorists to
see them. On apportionment, the trial judge found the plaintiff cyclist was 75%
liable, and the defendant motorist was 25% liable. In that decision, the Court,
at para. 24, noted the reasons in Chesley v. Irvine, [1987] B.C.J. No. 520
(C.A.) [Chesley] in which Mr. Justice Taggart held:

Each driver here had a duty of care to the other. Each was
required to maintain an appropriate look-out for other vehicles. Each had a
duty to take care to avoid an accident. In addition, the defendant, as the
driver turning left across two lanes in which southbound traffic might be expected,
had an obligation to insure that she could safely make the turn.

The judge found her look to the north for southbound traffic
was casual and insufficient. I see no basis upon which we could or should
interfere with that conclusion. But what the defendant was looking for was a
vehicle with lights on. That is what she should have been looking for. She did
not see that kind of vehicle for the good reason that it was not there. The
vehicle that was there had no lights on.

In my opinion, the plaintiff in these circumstances cannot
rely on his full dominant position on the highway and the judge was in error in
according him that dominant position. Furthermore, the defendant’s vehicle was
there to be seen by the plaintiff. Unlike the plaintiff’s motorcycle, the
lights of the defendant’s vehicle were on, as was her left turn signal. The
plaintiff failed to see it and, consequently, failed to take, so far as can be
ascertained, any action to avoid the collision.

In the circumstances of this case
I think we are entitled to intervene and reapportion the degrees of fault. I
would allow the appeal and find the plaintiff 60% at fault and the defendant
40%.

[55]        
Chief Justice Finch, who wrote for the Court in Quade, at para.
25, reviewed as well the reasoning of Lambert J.A. in Chesley:

The Supreme Court of Canada adopted the line of English
authorities. The stricture is imposed on this court that we should not vary an
apportionment unless we are convinced it is clearly wrong. Mr. Justice Ritchie,
for the Supreme Court of Canada, said it would require a very strong and
exceptional case.

But when we can identify the specific point on which we
conclude there was an error by the trial judge that affected his apportionment
then that will be a very powerful circumstance to persuade us that his
apportionment must be reconsidered.

In this case, immediately before the trial judge made his
apportionment he said:

“Nonetheless he was in the dominant position.”

Referring to the plaintiff on his
motorcycle. But the significant factor is that the headlight of his motorcycle
was not on. The fact that that headlight was not on did not cause him to lose
his dominant position, but it made the dominant position much less significant
a factor than it would otherwise have been. That reduced significance does not
seem to have been considered by the trial judge at the point in his judgment
where he made his apportionment.

[56]        
Chief Justice Finch concluded by saying in a circumstance where the
cyclist had failed to have headlights on, in which he was the dominant driver where
the defendant’s vehicle turned left in front of him that the same reasoning in Chesley
applied. The fact that the headlight was not on resulted in the dominant
position being a far less significant factor. Finch C.J.B.C. held:

28  The same reasoning [as Chesley] may
be said to apply in this case. However, the significant difference between the
two cases is that in the circumstances of the case at bar the trial judge
specifically found that the defendant should have seen the plaintiff
before he pulled out in front of him, and the plaintiff was there to be seen. I
interpret these findings to mean that although the absence of a headlight on
the bicycle was a negligent act on the plaintiff’s part, it had relatively little
to do with the defendant’s failure to see the plaintiff given the well-lit
nature of the intersection. According to the judge’s findings, even without a
headlight the defendant should have seen the plaintiff and should have yielded
the right of way to him. Thus, while the absence of a headlight on the
plaintiff’s bicycle may have diminished the importance of his statutory right
of way it cannot be said to have displaced it to the extent that is seen in Chesley.

[Original emphasis.]

Accordingly the appeal court changed the apportionment
of liability holding the plaintiff and defendant equally at fault for the
accident in that case.

[57]        
Applying the reasoning in Chesley to this case, I find that until
the defendant was closer to the intersection of 213A Street, the plaintiff
would not have been able to see the defendant and certainly the defendant would
not have been discernibly lit at a distance of 150 meters from a driver at the
stop sign on 213A facing
56th Avenue. The only illumination on the vehicles directly in front of
the vehicle stopped on 213A facing
56th Avenue were the plaintiff’s and Mr. Withers’ headlights and other
vehicles going east and westbound on 56th Avenue which had their headlights on
as well. The importance of the defendant’s statutory right of way was thus diminished.

[58]        
However, I find that the plaintiff should have had a more thorough look
before he left his point of safety into the traffic, given the conditions at
the time.

[59]        
In Diamond v. Butler, 2005 NLTD 34 [Diamond], a decision
of the Newfoundland and Labrador Supreme Court Division, Chief Justice Green
examined a factual situation much the same as that involving the plaintiff and
defendant here. In Newfoundland, however, there is a statutory provision that the
headlights and running lights have to be illuminated before sunset. In Diamond,
as here, the plaintiff did not look to reassess the situation before she
proceeded through to the intersection and it was noted that visibility at the
accident scene was difficult. At paras. 8, 12-17, Green C.J. noted:

8  The plaintiff claims she brought her car
to a stop, looked left, then right and left again before proceeding into the
intersection. She says she did not see the defendant’s unlighted vehicle
approaching. She attributes that to the fact that the defendant’s headlights
were not on (indeed nor were there any daytime running lights on the
defendant’s vehicle), making it impossible for her to see the vehicle at any
distance because of the darkness and the foggy and rainy conditions. The
defendant, on the other hand, claims that even though his car was unlighted,
the conditions were such that he could and should have been seen by anyone
approaching the intersection and that the reason why the collision occurred was
because the plaintiff did not bring her vehicle to a stop and did not look
before proceeding into the intersection.

…

12  Even if the plaintiff did not in fact
see the defendant’s approaching vehicle, however, that does not end the matter.
Negligence law deals in objective, not subjective, fault. The question becomes,
therefore, whether a reasonable person in the position of the plaintiff would
or should have seen the defendant before venturing into the defendant’s line of
travel. That engages the question whether the surrounding circumstances or the
actions of the defendant were such as to affect the ability of a reasonable
person in the plaintiff’s position to anticipate the approaching presence of
the defendant’s vehicle and the attendant risk of collision if the plaintiff
were not to remain at the stop sign until the defendant’s vehicle passed by.

13  If the conclusion is that a reasonable
person would have seen the defendant’s vehicle or appreciated the risk of
collision, then responsibility for the accident will rest with the plaintiff.
On the other hand, if it is concluded that a reasonable person would not have
seen the defendant’s vehicle or appreciated the risk, three consequences could
potentially flow from that conclusion.

14  The first consequence is that the
plaintiff would have a significant explanation for why she entered the
intersection and therefore could, assuming the absence of any other relevant
factors, resist any claim by the defendant in respect of his counterclaim. In
short, the plaintiff would not be negligent.

15  The second consequence is that, if the
actions of the plaintiff in entering the intersection were the result of acts
or omissions amounting to negligence on the part of the defendant, the
plaintiff would, in addition to resisting the defendant’s claims, be also
entitled to maintain her claim for damages against the defendant, because
causative responsibility for the accident would then rest, at least in part,
with the defendant.

16  It does not follow, therefore, that just
because the plaintiff has an acceptable explanation for acting as she did —
and therefore was not negligent herself — the plaintiff would then succeed in
her claims against the defendant. To do that, she would have to go further and
show that the second consequence was engaged, namely that the reason for her
actions was related to and caused by not just the circumstances surrounding the
accident but to some actual negligence on the part of the defendant.

17  The third
possible consequence is that if, on the evidence, one concludes that a
reasonable person in the position of the plaintiff would have acted more
prudently in entering the intersection and at the same time, the defendant
should have been more cautious in his driving (such as using headlights, which
might have been more effective in bringing home to the plaintiff the need to
pause before entering), it is possible that the collision could be said to have
been caused by the fault of both parties with the result that both parties
could be found contributorily negligent.

[60]        
The Chief Justice found in the circumstances that the plaintiff did
bring her vehicle to a stop before the stop sign and looked to her left, but
that she did not stop again after pulling up to the sign, and did not look
again to reassess the situation before she moved into the intersection. The
defendant, who had the right of way noted that the collision had occurred
around or shortly after sunset, but indicated his belief that he did not feel
that headlights were necessary to see. The plaintiff and the defendant were
found equally at fault for the accident.

9. Conclusion

[61]        
I find that the defendant owed a duty of care to the plaintiff to have a
lighted vehicle in these conditions. But for the defendant’s actions, the
accident would not have occurred; however, the plaintiff should have reassessed
prior to pulling out. Accordingly, I find both parties are equally at fault for
the accident and apportion liability 50% – 50%.

10. Costs

[62]        
Each party shall bear 50% of the costs on this application.

“The Honourable Madam
Justice Maisonville”