IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110627

Docket: M090971

Registry:
Vancouver

Between:

Cauling Candy
Chang

Plaintiff

And

Ignacio Jesus
Ferrer Alcuaz

Defendant

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
This is an action for damages for personal injuries sustained in a motor
vehicle collision which occurred on March 9, 2008.  The parties have agreed to
sever liability from quantum.  The matter proceeded on the question of which
party was responsible for the collision, or if both were at fault, in what
proportions liability ought to be allocated.

II

[2]            
The plaintiff is a licensed Practical Nurse employed at a care facility
called Youville at 4950 Heather Street in Vancouver.  She lives east of Heather
Street, and her route home takes her from the Youville parking lot on Heather
Street onto 33rd
Avenue and then across Cambie Street.  She then proceeds around the northern
perimeter of Queen Elizabeth Park, which takes her back onto 33rd Avenue before it crosses Main
Street, the next major north-south thoroughfare east of Cambie Street.  The
collision between the parties occurred in the intersection
at 33rd Avenue and Main Street, as the plaintiff travelled east and the
defendant proceeded south on Main.  It is controlled by a traffic light in both
directions, and both the plaintiff and the defendant claim they had the benefit
of a green light.

III

[3]            
The plaintiff is 45 years old.  She says that she had just finished her
shift at 7:00 a.m. and was driving home.  March 9, 2008 was a Sunday, and the
plaintiff says it was a short shift because the clocks changed overnight to
daylight saving time.  As a consequence, 7:00 a.m. was what had been 6:00 a.m. 
The plaintiff said that it was dark when she set out and she had her headlights
on.  She said the road was wet because it had been raining.  She was familiar
with the route.  She worked five days a week and had worked at Youville for
5-1/2 years.  She was operating a 1995 Toyota Corolla.

[4]            
The plaintiff recalls driving past a store on the northwest corner of 33rd and Main
Street.  She believes she was travelling 50-60 kilometres per hour.  She
testified that she recalled that the colour of the traffic light was green. 
She did not see or hear another vehicle.  She has no other recollection of the
accident.  Her next memory is of waking up two days later in the hospital.

[5]            
Under cross-examination, the plaintiff acknowledged that she wrote out a
statement to her doctor to advise him what had happened in the collision.  She
noted at the top of the statement that was in writing because her throat was
sore, and she had trouble speaking.  The plaintiff had written:

I had a car accident on March 9
between 7 a.m. & 7:30 a.m. according to my sister. I had no memory at
all for what happened in that morning. All I remembered was I worked night
shift in a nursing home on W 33rd
& Cambie. I as usual went home through the same route daily but
something happened on 33rd
& Main. I woke up semi-consciously according to my sister. [emphasis added.]

[6]            
The plaintiff denied that her present recollection that the light was
green came as a result of discussions with one of the witnesses.  She said that
the meaning of no recollection “in that morning” was limited to “in the
collision.”

[7]            
One of the plaintiff’s co-workers, Rashpal Currimbhoy, testified that
she had witnessed the collision.  She was also making her way home following
her shift at Youville.  She said she followed the plaintiff into the
intersection on a green light and that the defendant’s vehicle came “out of
nowhere”.  By this she means suddenly, because she also testified that
she saw the vehicle enter the intersection from the left.  Ms. Currimbhoy
said that she thought the plaintiff’s vehicle was “finishing” the intersection
when it was hit, but she could not say whether the defendant’s vehicle was in
the inside or the outside of the two  southbound thru-lanes on Main street.

[8]            
In cross-examination Ms. Currimbhoy said she was not a friend of the
plaintiff but merely an acquaintance.  She acknowledged that she had discussed
what happened with the plaintiff.  Ms. Currimbhoy said it was light out at the
time, not dark.  She thought the plaintiff’s vehicle was hit toward its rear. 
When shown a photograph of the damage the plaintiff’s vehicle sustained to its
left front, she said that that was because it hit the bus after the accident. 
She said that she, herself, was travelling at a speed of about 50 kilometres
per hour about one to one and a half car lengths behind the plaintiff.  When
asked to explain how she avoided the accident she said she felt she was just
lucky.  She said the defendant’s vehicle hit a house.  She said she was sure
the defendant’s vehicle had run the red light.

IV

[9]            
The defendant, Ignacio Alcuaz, testified that he works at Vancouver
General Hospital as a nurse.  On March 9, 2008 he had dropped off his wife, who
also works at Vancouver General Hospital.  He was not on shift on the day of
the accident but his wife had a shift starting at 7:00 a.m.  He was returning
home southbound on Main Street.  He was familiar with the intersection,
although he did not drive it more than four times a month.  He described the
intersection as having two lanes southbound with one left turning lane at the
intersection.

[10]        
The defendant said that the light was red as he approached the
intersection and that he slowed down from 50 kilometres per hour to 10-20
kilometres per hour until the light turned green.  He estimated that he was
some 10-20 feet from the stop line when it turned.  He said he then accelerated
to 20-30 kilometres per hour and thinks he was right in the middle of the
intersection when he saw the plaintiff’s car.  He said a building obstructed
his view on the right side of the intersection.  Following the impact he said
the next thing he knows is his vehicle was “inside” a house.

[11]        
The defendant says that it was still dark out when the collision
occurred.  He said there was little traffic and that he believed his was the
only car on his side of Main Street.

[12]        
In cross-examination, the defendant acknowledged a statement he had made
to a representative of the Insurance Corporation of British Columbia.  He had
said on that occasion, shortly after the accident, that the light “was green
from the moment I saw it.”  He said he was still in shock when he gave that
statement.  He acknowledged that he is not sure of his speed estimates or of
how long after the light turned green he entered the intersection.  He denied
collaborating with any other witness.

[13]        
There were two other witnesses to the collision.  Bryan Jantzen is a
driver for Coast Mountain Bus Company, the firm that operates Vancouver’s city
buses.  He has been driving for 15 years.  On March 9, 2008 he was driving the
#3 bus northbound on Main Street.  He said the stop on the southeast corner of 33rd Avenue and Main is
where a lot of people get off to go to Queen Elizabeth Park.  He said it was
like “dusk” getting close to sunrise.  He thought the time was 6:00 a.m.

[14]        
At the intersection Mr. Jantzen pulled up on the northbound curb land
and stopped for a red light.  He said there was very little traffic.  He was
stopped a few feet south of the crosswalk.  He says he habitually waits for two
seconds when a light turns green.  He said on this occasion his “gut” said
“don’t move.”  He observed a minivan approaching the intersection southbound on
Main Street.  He said it entered on a green light.  He said that the vehicle
had had the green light for a little over a second when it entered the
intersection.  He estimated that it was a half a block north when the light had
turned.  He did not think it was travelling at an unusually fast speed.

[15]        
Mr. Jantzen saw the plaintiff’s east bound vehicle hit the defendant’s
vehicle on the front corner.  He felt the bus was going to be hit by the van
but it veered to the right and into an apartment building on the southeast
corner. The plaintiff’s car hit the bus near the rear wheel area.

[16]        
Mr. Jantzen said that there was no attempt at avoidance on the part of
either of the colliding operators.  He said there was no other traffic in the
immediate aftermath of the collision.

[17]        
In cross-examination, Mr. Jantzen acknowledged a statement he made on
May 8, 2008.  He had said the following:

I was northbound on Main Street.
I had been traveling in the right (curb) lane of the two northbound lanes.
There were 8 to 10 passengers on board on my bus. When I was about ½ block
before East 33rd Avenue,
I noticed a red light ahead at the intersection. I was then slowing down and
subsequently came to a complete stop in my lane before the stop line in front
of the intersection. The traffic light ahead was still red at the time. I was
stopped for just a few seconds when I noticed a wine-colored minivan (maybe a
Chrysler model) approaching in the left lane at the two southbound lanes on
Main Street. This minivan was only about 2 car-lengths before the intersection
and was traveling slightly over the speed limit (i.e. 50 km/h) when I noticed
it. Meanwhile, I also saw from my peripheral view an older model, white or
light-colored Toyota (like a Tercel) approaching the intersection in the left
lane of the two eastbound lanes on East
33rd Avenue. This Toyota was also about 2 car-lengths before the
intersection and was traveling at about the speed limit (i.e. slightly slower
than the minivan) when I saw it. I could see that the minivan and the Toyota
were coming at a right angle towards each other. It was about one second after
I had noticed the minivan when the traffic light ahead (for Main Street)
changed from red to green. The minivan then entered the intersection. I knew
the minivan would not have time/nor to slow down/stop for the red light with
its moving speed. I therefore believe that the driver of the minivan had been
timing the light and so he never slowed down but he entered the intersection as
soon as his light had turned green. … However, the force of impact was strong
enough to knock one of my passengers off his seat and fall on his butt. The
passenger was a Caucasian male who works for Busters Towing.

[18]        
Mr. Jantzen had estimated that 9-10 passengers were on the bus, and he
had said that one, a Caucasian male who worked for Buster’s towing, had been
knocked out of his seat.

[19]        
Mr. Jantzen reiterated firmly that he had no concern about the
southbound minivan as it approached the intersection.

[20]        
Warren Humphrey was a passenger on the bus.  He said he was facing the
scene and observed the accident.  He was sure the light was green for traffic
on Main Street when the defendant’s minivan entered the intersection.  He
thought the driver of the minivan accelerated for the green light and that the
plaintiff’s eastbound vehicle was speeding.  He saw no other vehicles.

[21]        
Mr. Humphrey did encounter a woman 5-6 minutes after the impact had
occurred, and after the paramedics had arrived, who said she was behind the
plaintiff and had observed the collision.  Mr. Humphrey felt that that was not
possible.  He had gone to check out the plaintiff immediately after the
impact.  He estimated that the paramedics attended about 3 minutes after the
accident.

[22]        
Mr. Humphrey said the bus was starting to move when the van was in the
intersection but it stopped as the plaintiff’s vehicle came into view.  In
cross-examination, he said that he was in a position to observe the westbound
light change from yellow to red before the plaintiff entered.

[23]        
Mr. Humphrey said he was jostled and knocked off his seat.  He said he
had to grab the bar.  He said there was only one other passenger on the bus. 
He was sitting near the left rear wheel well.  He said he had noticed a woman
who said she saw the accident pull up about two minutes after the collision. 
The woman said she was a co-worker of the plaintiff.

V

[24]        
The evidence included an ambulance crew report.  Counsel agreed that it
was not to be admitted for the accuracy of the medical observations contained
in it but that it accurately reflected the time it took to reach the scene.

[25]        
There was also an unanswered Notice to Admit establishing that the defendant
was the holder of a class 7 learner’s license that required him to have a
supervisor with him while driving.  The defendant had explained in
cross-examination that that was not his understanding, and that he had applied
for his license in Canada after some years of driving in the Philippines and in
the U.K.  He said he thought he was entitled to drive on that license for one
year in British Columbia.  There is no question that he was unaccompanied when
the collision occurred.

[26]        
A letter from the City of Vancouver Engineering Services manager
established the timing of the lights at that intersection as follows:

[27]        
An engineering report tendered by the defence gave some timing
information based on the assumption that the defendant had the benefit of the
green light.  A report in response, based on essentially the same assumptions,
suggested that the defendant could have avoided the collision if he had been
travelling at 36 kilometres per hour or less, and that such a speed could have
been achieved if the defendant had braked “for the 14 metres his vehicle was in
the intersection.”  It also suggested that:

If the Pontiac had stopped at the
north stop line or slowed to a speed of 30 km/h or less and then accelerated at
an average rate the Toyota would have cleared the path of the Pontiac and in
some cases the intersection and the collision would be avoided.

VI

[28]        
The evidence in this case is contradictory and unreliable in many of its
details.  It is often difficult, in cases of this kind, to put much reliance on
estimates of time and distance given by witnesses in connection with a
surprising and traumatic event.  It is very hard to see, for example, how Ms. Currimbhoy
simply could have been one or two car lengths behind the plaintiff without
being involved in the collision.  There are several other examples of
distances, some in metres, some in feet, that simply do not support reliable
inferences.  The same is true of some time estimates.  Except to indicate that
an event happened too fast to react to it, or to allow time to react, I do not
think much can be based on estimates of time, distance or speed.

[29]        
Liability comes down to two questions:

(1)  who had the benefit of the
light, and

(2)  was the operator of the vehicle
with the benefit of the light, nonetheless responsible to some degree, in the
circumstances.

[30]        
Respecting the first question, there is reason to doubt the plaintiff’s
assertion that she had the benefit of a green light as she now asserts.  She
was unconscious following the accident and her original statement is at odds
with what she presently says.  It would be difficult to accept her version of
the event without corroboration.

[31]        
The assistance offered by the witness, Ms. Currimbhoy, is highly debatable. 
She, alone, among the witnesses, suggests that the event happened in daylight. 
On a common sense basis, as I have indicated, she could not be right about her
proximity to the plaintiff at the time of the collision.  There is also the
difficulty that none of the other witnesses saw any other vehicle proximate to
the collision.  There is a further difficulty posed by Mr. Humphrey’s flatly
stated observation that he saw the woman who identified herself as a co-worker
pull up after the collision.  It is not conclusively established that
that was the same person, but it is telling that neither Mr. Jantzen, nor Mr.
Humphrey, who observed the entire incident, noted any other vehicle near the
scene.

[32]        
The defendant, Mr. Jantzen and Mr. Humphrey all say firmly that the
defendant had the benefit of the green light when he entered the intersection. 
Mr. Jantzen’s impression that the defendant may have been “timing” the light is
borne out in the defendant’s description of what occurred, in that he says he
slowed and then accelerated when he saw the light turn green.

[33]        
The evidence from the City of Vancouver respecting the timing of the
lights that day at that intersection is also useful.  If the light was turning,
an eastbound driver had 3.5 seconds of an amber light before the change.  For
1.5 seconds traffic in all directions is governed by a red light.  This means
that by the time the light turns to green, eastbound traffic, at any reasonable
speed, has had a warning and ample time to stop.

[34]        
The scenario posted by the plaintiff that the light was green or green
turning amber as she hit the intersection would imply a red light north and
southbound that continued for five seconds after the defendant entered the
intersection.  This would preclude any impression of the defendant “timing” the
light because he would have entered fully on red.  That is not in accordance
with the observation of Mr. Jantzen or of his passenger, Mr. Humphrey.  Both
were credible and balanced witnesses who were not caught up in the event themselves
except to witness it.  Mr. Jantzen, in particular, was paying specific
attention to the light because he had been waiting for it to change.  His view
was unobstructed.

[35]        
I am satisfied, on the basis of a consideration of all the evidence,
that at the time the collision occurred the defendant had the benefit of the green
light and that the plaintiff should not have been in the intersection when the
collision occurred.

VII

[36]        
The answer to the second question turns, in the plaintiff’s submission,
largely on whether the defendant was going too fast.  The plaintiff summarizes
the factors as follows:

55.   Assuming
the court rejects the above evidence, we then turn to analyze the Defendant
evidence.

56.   In
particular, we look at the evidence of Mr. Jantzen and the evidence of the
Defendant himself.

57.   What seems to be consistent among this evidence is
this:

–      The
Defendant’s view of 33^rd Avenue east of the intersection was at
least partially obscured by a corner building.

–      The Defendant was familiar with the intersection and
was aware of this.

–      The Defendant was approaching a red light.

–      The red
light changed to green when the Defendant was 10-20 feet (1-2 car lengths) from
the intersection.

–      The
Defendant did not see the Plaintiff until he was in the middle of the
intersection.

58.   Key to
this is the speed of the Defendant’s vehicle when the light changed from red to
green.

59.   We
submit the court should prefer Mr. Jantzen’s initial statements to ICBC – ie.
that he thought the Defendant was exceeding the speed limit, and that he
thought the Defendant was timing the light. This was when Mr. Jantzen first saw
the Defendant.

60.   If this
is accepted, we submit that the Defendant is negligent for approaching a red
light at an unsafe rate of speed, either oblivious to its colour or hoping it
would change.

61.  Mr. Brown’s engineering report
details that, were the Defendant to have been going at a slower, and we say
more reasonable, rate of speed, the accident could have been avoided.

[37]        
With respect to Mr. Jantzen’s statement, it is not quite a matter of
preferring his first statement, but a matter of whether the statement
undermines the credibility of his testimony in court.  Mr. Jantzen was firm
that the defendant’s driving was not a concern to him.

[38]        
I think Mr. Jantzen’s evidence in another respect helps to frame this
issue accurately.  He said that his training caused him to pause two seconds
after a light change for safety reasons.  That is 3.5 seconds after traffic in
the opposite direction at the intersection should have stopped.  The plaintiff,
in effect, suggests that there is an overlap when both drivers may have reason
to believe they can proceed.

62.   If the court accepts that the Defendant entered the
intersection just as his light was turning green, this would mean that the
Plaintiff, for her part, may also have been entering the intersection when her
light was either a late amber, or an early red. This would depend on the speed
of the vehicles, on which there is little reliable evidence.

63.   Under this scenario, we
submit that both parties are equally to blame for this collision occurring –
the Plaintiff for trying to get through a late amber or fresh red, and the
Defendant for speeding into the intersection on a late red or fresh green.

[39]        
This submission fails to account for the 1.5 seconds before the defendant
could proceed on green:  there is no effective overlap of a “late red” and an
“early red.”  If the light was green for the defendant, as I have found, the
only question, really, is whether the defendant was obliged to exercise an
extra degree of caution notwithstanding his entitlement to the right of way.

[40]        
The duty on a driver facing a green light is set out in section 127 of
the Motor Vehicle Act, R.S.B.C. 1996, c. 318:

127 (1) When a green light alone is
exhibited at an intersection by a traffic control signal,

(a) the driver of a vehicle facing the green light

(i)  may cause the vehicle to proceed straight through
the intersection, or to turn left or right, subject to a sign or signal prohibiting
a left or right turn, or both, or designating the turning movement permitted,

(ii)  must yield the right of way to pedestrians
lawfully in the intersection or in an adjacent crosswalk at the time the green
light is exhibited, and

(iii)  must yield the right of way to vehicles lawfully
in the intersection at the time the green light became exhibited, and

(b) a pedestrian facing the green light may proceed
across the roadway in a marked or unmarked crosswalk, subject to special
pedestrian traffic control signals directing him or her otherwise, and has the
right of way for that purpose over all vehicles.

[41]        
The plaintiff submits that there is little case law on the question of
whether a driver approaching a red light at a higher rate of speed than is prudent
is negligent.  She cites MacCrimmon v. Cherniwchan, 2005 ABQB 195. 
There, the court, per Clackson J., considered an intersection collision
involving a left turning driver and a vehicle with the right of way that had
going through:

11  The Highway Traffic Act RSA 1980 was in force
at the time of this collision. Section 95(2) provides:

A driver intending to turn left across the path of any
vehicle approaching from the opposite direction shall not make or attempt to
make the left turn unless the turn can be completed in safety.

12  I have found that while the Plaintiff entered
the intersection on a flashing green advance, that arrow turned amber just as
she commenced crossing the imaginary line marking the eastern edge of the
southbound traffic lanes of 97th Street. As such she did not then have the
right of way and she was obliged to ensure that her turn could be completed in
safety. It is of note that the traffic control device facing her would have
gone to solid green after the flashing arrow was extinguished. That means that
she would be free to complete her left turn once the intersection had cleared
of southbound traffic.

13  There is no doubt that the principle that
underlies the statutory admonition is a sound one. On our busy streets where
traffic routinely travels at 60 km per hour, it behooves the person who must
slow and who seeks to cut across oncoming traffic to take care in so doing.
That simple rule allows those who have the right of way proceeding at a lawful
speed to have the confidence that they may do so in safety. Even the properly
trained and defensive driver makes that very assumption many times while
driving in our communities.

14  In this case, the focus is on whether, in the
circumstances, the dominant driver must do something other than blithely rely
upon his right of way.

15  It is trite law that a driver with the right of
way entering an intersection is not obliged to yield or stop or plan to do
either in deference to an unexpected and unlawful manoeuver by a servient
driver. Much of the authority provided to me by the parties confirms that
principle.

16  However, it is also clear that a driver in a
dominant position (having the right of way) cannot simply blindly proceed
without regard to the circumstances.

17  The balance is struck by casting an onus on the
person who seeks to have the dominant driver found negligent. In this case, Ms.
MacCrimmon has that onus. Ms. MacCrimmon must show that the dominant driver,
Mr. Cherniwchan, knew or by exercise of reasonable care ought to have known
that a servient driver was about to encroach on his path of travel. The
servient driver, Ms. MacCrimmon, must also show that the dominant driver would
of had sufficient time to avoid the accident at the moment of real or imputed
knowledge and that a reasonably careful and skillful driver in his position at
that time would have acted to avoid a collision.

18  In this case, the Plaintiff relies upon the
following circumstances to justify the conclusion that the Defendant had an
obligation to avoid the collision are:

1.   That just before the accident other
vehicles had just completed turning across the southbound lanes of 97th Street;

2.   That the Defendant’s focus was not
upon the traffic in front of him but the lights controlling turning traffic. In
short he was timing the lights.

3.   That the only way the Defendant
could have been travelling at or near the speed limit just before his light
turned green was if he was timing the light by reference to the turning lights
governing vehicles turning from 97th Street south and east onto 137th Avenue.

4.   That had the Defendant been focused
on the traffic before him he should have seen the Plaintiff and stopped.

5.   A prudent driver would have slowed
for the red light to a speed far less than Mr. Cherniwchan’s given that the
light governing his travel did not turn green until he was approximately one
car length from the intersection.

19  I accept the Plaintiff’s characterization of
the circumstances and the Defendant’s actions. As such I am satisfied that the
Defendant ought to have known that his path was encumbered by the Plaintiff’s
vehicle and had he exercised reasonable care and skill he would have been in a
position to avoid or at least significantly reduce the force of impact.

20  Furthermore, there was a sign just before the
intersection warning Mr. Cherniwchan that he was approaching a high collision
location. That sign should have served to alert him and cause him to increase
his level of caution.

21  However, it is also clear that the Plaintiff
has not discharged her obligation to establish that her turn could be completed
in safety. In fact she could have stopped and waited for southbound traffic to
clear and then proceeded to complete her turn. However, she effectively
soldiered on expecting southbound traffic to accommodate her.

IV.  Summary

22  In my view, liability must be apportioned for
this accident as both drivers acted negligently. However, it seems to me that
the Plaintiff was more responsible as she clearly proceeded in a fashion which
required Ms. McMillan’s vehicle to brake for her and in circumstances where she
had to appreciate that she would be forcing those persons lawfully proceeding
in the Defendant’s lane to stop for her. She was effectively trusting that
dominant drivers would not only yield to her but would also have time to yield
to her. Her negligence was in my view the predominant cause of the accident.

23  I would assess Ms.
MacCrimmon at 65% responsible for the accident and Mr. Cherniwchan as 35%
responsible for the accident.

[42]        
MacCrimmon is an example of a driver with the right of way
“timing” the lights, but in other respects I think it must be approached with
caution.  There is a well-established body of case law respecting intersection
collisions involving either pedestrians or left-turning vehicles.  In both sets
of circumstances, the driver in a dominant position may find the presumption
that he or she has the right of way displaced by known or knowable exigencies. 
In such circumstances, it is trite to observe that a driver may not blithely
carry on without modifying his or her behaviour to fit the known conditions. 
The law is as set out in Karran v. Anderson, 2009 BCSC 1105 at para. 32:

[32]  It was submitted by the defence that because
the defendant had a green light she had no duty to anticipate the situation or
maintain a lookout.  Fraser J. considered the defence argument and went on
to give a thorough explanation of the law with respect to the duty imposed on a
driver approaching a green light.  His Lordship summarized the law at p.
553, as follows:

I agree with Shaw J., in Gill Estate v. Greyhound Lines
Can. Ltd. that the real question to be asked is whether the possibility of
danger emerging was reasonably apparent and, if so, what precautions should
have been taken in those circumstances. This is the language of Cartwright J.
in Johnson National Storage Ltd. v. Mathieson. There is a duty upon
motorists and pedestrians alike to be vigilant for a reasonably apparent
potential hazard. To apply the absolute formulation of Eva would amount
to disregarding the pronouncements of the Supreme Court of Canada in B.C.
Electric Railway Co. v. Farrer and Johnson National Storage.

I conclude that the law can be stated as follows:

(1) Users of the streets are entitled to proceed upon the
assumption that other users of the streets will observe traffic regulations;

(2) The right to drive or walk on that assumption is not an
absolute one;

(3) There is no obligation, as one proceeds, to maintain
special preparation for an unforeseen emergency or a mere possibility;

(4) If, on the other hand, the possibility of the danger
which in fact materialized is reasonably apparent, the failure to take
precautions is negligence.

[43]        
This is no more than to say that where one has the right of way, one
must still be alert to signs of danger, or to actual conditions suggesting that
there may be a danger, in presuming the right of way will be respected.  The
cases where this becomes applicable all reflect some situation calling upon the
driver to modify his or her operation of a motor vehicle to accommodate a known
or reasonably apparent or developing hazard.

[44]        
The basic position is stated in Pacheko (Guardian ad litem) v.
Robinson, [1993] B.C.J. 154 (C.A.) at paras. 18-21:

18  In my opinion, when a driver in a servient
position disregards his statutory duty to yield the right of way and a
collision results, then to fix any blame on the dominant driver, the servient
driver must establish that after the dominant driver became aware, or by the
exercise of reasonable care should have become aware, of the servient driver’s
own disregard of the law, the dominant driver had a sufficient opportunity to
avoid the accident of which a reasonably careful and skilful driver would have
availed himself. In such circumstance any doubt should be resolved in favour of
the dominant driver. As stated by Cartwright, J. in Walker v. Brownlee,
[1952] 2 D.L.R. 450 (S.C.C.) at 461:

While the decision of every motor vehicle collision case
must depend on its particular facts, I am of opinion that 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.

19  The plaintiff in the case under appeal entered
the intersection on a green light and was in the intersection when the light
changed to amber. The defendant was initiating her left turn when the light
turned to amber.

20  The earliest that the plaintiff could have
become aware of the defendant’s disregard of the law was when the defendant
made a partial left hand turn when the light changed to amber. At that point
the plaintiff was already in the intersection. The evidence shows that if he
had braked when the light changed to amber, he would have slid into the centre
of the intersection but would have been unable to avoid the accident.

21  To quote Cartwright, J. in Walker v.
Brownlee at p. 461:

. . . [W]hen the time arrived at which he [the plaintiff]
could reasonably have been expected to realize that [the defendant] was not
yielding the right of way, it would have been too late for him to do anything
effective to prevent the collision.

[45]        
A further statement of the principle is found in Salaam v. Abramovic,
2010 BCCA 212 at paras. 25-26:

[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.

[26]  The oft-quoted passages from the concurring
judgment of Cartwright and Locke JJ. in Walker v. Brownlee, [1952]
2 D.L.R. 450 at 460-61 (S.C.C.), succinctly set out the duties of a driver in
the dominant position:

The duty of a driver having the statutory right-of-way has
been discussed in many cases.  In my opinion it is stated briefly and
accurately in the following passage in the judgment of Aylesworth J.A., concurred
in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at
p. 223: “Authority is not required in support of the principle that a
driver entering an intersection, even although he has the right of way, is
bound to act so as to avoid a collision if reasonable care on his part will
prevent it.  To put it another way: he ought not to exercise his right of
way if the circumstances are such that the result of his so doing will be a
collision which he reasonably should have foreseen and avoided.”

While the judgment of the Court of Appeal in that case was
set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in
the judgments delivered in this Court to throw any doubt on the accuracy of the
statement quoted.

In applying this principle it is necessary to bear in mind
the statement of Lord Atkinson in Toronto R. W. Co. v. King, 7
C.R.C. 408 at p. 417, [1908] A.C. 260 at p. 269: “Traffic in the
streets would be impossible if the driver of each vehicle did not proceed more
or less upon the assumption that the drivers of all the other vehicles will do
what it is their duty to do, namely, observe the rules regulating the traffic
of the streets.”

While the decision of every motor vehicle collision case
must depend on its particular facts, I am of opinion that 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.

[46]        
In the present case it is possible to extrapolate back from the event and
by changing some of the variables to posit circumstances that would have
prevented the collision from occurring.  The plaintiff’s engineering report was
to this effect.  Had the defendant been operating his vehicle somewhat below
the speed limit, the plaintiff may have cleared the intersection before he got
there.  More generally, had the defendant operated his vehicle suspicious that
at each crossroads some danger may be lurking, he might have avoided the
accident.  Of course, in other ways, such behaviour might in itself create other
kinds of hazard.

VIII

[47]        
There is simply no reliable evidence that the defendant did anything
other than assume that others would obey the rules of the road.  Particularly
where there is no apparent potential hazard (as there often is in the case of
left turning traffic, for example) drivers are entitled to that assumption.  A
driver who runs a red light on a city street with buildings obscuring all but
the last few meters of the intersecting roadway may leave the other operator
very little opportunity to avoid a collision.  That is what occurred in this
case.  The plaintiff ran a red light and the defendant was not in a position to
react in time to avoid a collision, in circumstance where that lack of
opportunity was not attributable to any want of care on his part.

[48]        
The plaintiff is, therefore, solely responsible for the collision and
the action is dismissed.

“The Honourable Mr. Justice McEwan”