IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110706

Docket: M084112

Registry:
Vancouver

Between:

Fawzi Ziani

Plaintiff

And

Michael Matthews
Thede

Defendant

Before:
The Honourable Madam Justice Bruce

Reasons for Judgment

INTRODUCTION

[1]          
The plaintiff’s action arises out of a motor vehicle accident that
occurred on October 3, 2006, at the intersection of Boundary Road and Kingsway,
in Vancouver, B.C. The parties obtained an order severing the issues of
liability and damages. This judgment solely addresses liability.

[2]          
The issue in this case involves the competing duties of a driver who is
operating a vehicle that is in the process of turning left and a driver of an
oncoming vehicle in a controlled intersection.

SUMMARY OF THE EVIDENCE

[3]          
The accident occurred between 8:00 p.m. and 9:00 p.m. on the
evening of October 3, 2006. It was dark, but the weather was clear and the
roads were dry. There is no evidence that either the plaintiff’s or the
defendant’s view of the traffic or the intersection was obstructed.

[4]          
The plaintiff and his wife were proceeding west on Kingsway in a black
Jetta with a standard transmission. The plaintiff had recently installed new
headlights that offered a brighter and better view of the road. As a
consequence, he had very good visibility for night driving. The plaintiff
testified that he and his wife were on their way to a mosque located a short
distance from Boundary Road and Kingsway. They were not in a hurry and had
plenty of time to reach the mosque before the ceremony began.

[5]          
Kingsway has four lanes of travel in the east and the westbound
directions as one approaches the intersection of Boundary Road and Kingsway.
There is a dedicated left turn lane, two lanes for through traffic, and a right
turn lane. The plaintiff was travelling in the through lane next to the right
turn lane as he approached the intersection.

[6]          
From quite a distance the plaintiff could see the light at the
intersection was green and had been for some time. Anticipating that it would
soon change to amber, the plaintiff reduced his speed and shifted into third
gear, preparing to stop. The plaintiff got closer to the intersection and the
light had not turned amber. As a consequence, he prepared to increase his speed
by putting the vehicle in fourth gear in order to speed up and clear the
intersection before the light turned amber. Immediately after shifting gears
the light turned amber. The plaintiff did not recall how far from the
intersection he was when the light turned yellow. He guessed it must have been
two or three car lengths.

[7]          
The plaintiff decided that he could not safely stop his vehicle given
his speed and distance from the intersection when the light turned amber. In
this regard, the plaintiff believed he could not stop before the stop line at
the entrance to the intersection. Coincidently with the light turning amber,
the plaintiff saw the defendant slowly attempting to make a left turn from
Kingsway going north on Boundary Road. The plaintiff decided that he had to
continue going through the intersection and if he did so in the same lane he
may strike the defendant’s van. Accordingly, the plaintiff changed lanes to the
left, flashed his high beams at the defendant, and continued to travel in the
through lane closest to the dedicated left turn lane. At the same time, the plaintiff
increased his speed in an effort to avoid a collision. At this point the
defendant stopped moving forward and the plaintiff realized his vehicle would
now collide with the defendant’s. He applied the brakes and struck the
defendant’s van just behind the front wheel on the passenger side. The
plaintiff testified that only seconds passed between the light turning amber
and the moment of impact. As he proceeded through the intersection, the
plaintiff acknowledged that he was travelling at least 50 kph, and probably
faster.

[8]          
The plaintiff testified that when he entered the intersection the light
was amber and at the time of impact the light was red. He testified there were
no vehicles ahead of his travelling west. Nor were there any vehicles to his
left or to his right. He noted one vehicle turned left ahead of the defendant.

[9]          
The defendant was operating a blue mini-van on the evening of the
accident. He had helped a friend move and stopped for a glass of wine at the
Eldorado pub on Kingsway. His route home to Port Coquitlam was along Kingsway
east to Boundary Road and then a left turn onto Boundary Road going north.
There is no evidence that the alcohol he consumed was a factor in the accident.
The defendant switched lanes to enter the left turn lane on Kingsway when the
light was red. There was one other vehicle ahead of him in the lane. When the
green arrow appeared both vehicles proceeded to turn left. The first vehicle
cleared the intersection and the defendant proceeded into the intersection
behind this first vehicle. He noted that the east/west through traffic was
stopped on Kingsway. As the defendant proceeded slowly in the intersection he
looked left, then right and then left again to ensure there were no pedestrians
in the crosswalk.

[10]       
Coincidently with the defendant’s checking left, right and then left
again, he felt the impact of the plaintiff’s vehicle. The defendant did not see
the plaintiff’s vehicle before impact. Although the defendant testified that he
looked ahead to oncoming traffic and saw none, it is apparent that this
occurred at the time of the collision with the plaintiff’s vehicle.

[11]       
Ms. Gjerding was a witness to the accident. She was travelling north on
Boundary Road and came to a stop at the intersection of Boundary and Kingsway.
Ms. Gjerding was in the through lane next to the dedicated left turn lane. The
through traffic on Boundary Road had a red light when she arrived at the
intersection. Ms. Gjerding noticed two vehicles in the left turn lane eastbound
on Kingsway. The defendant’s blue van was first in the lane and a red vehicle
was behind the van. Both vehicles were stationary in the intersection waiting
for east/west traffic to clear so that they could complete their turn. There
were no vehicles immediately ahead of Ms. Gjerding in her lane that obstructed
her view.

[12]       
Ms. Gjerding testified that the east/west traffic light turned amber and
she geared up to drive through the intersection. At this time Ms. Gjerding saw
the plaintiff’s vehicle come “flying” through the intersection, striking the
defendant’s van. When the impact occurred she noted the east/west traffic had a
red light. As the plaintiff’s vehicle came through the intersection, Ms.
Gjerding noticed that other east/west travelling vehicles had already stopped
at the intersection. Ms. Gjerding believed the plaintiff was travelling very
fast and she observed no braking. It was a heavy hit, which she described as
“crash test dummies” moving backwards and forwards with the force of the
collision. While she estimated the plaintiff’s speed at more than 60 kph, Ms.
Gjerding also acknowledged that vehicles appear to be travelling faster when
viewed from a stationary position. In Ms. Gjerding’s view there was no question
that the plaintiff “ran the yellow light” and entered the intersection in
dangerous circumstances.

[13]       
Mr. Fortuna also witnessed the accident. He was in a Ford F350 and
stopped at a red light on Boundary Road facing north at the Kingsway
intersection. There were two or three vehicles ahead of Mr. Fortuna in the lane
but he had an unobstructed view of the intersection. While waiting at the
intersection, Mr. Fortuna heard tires squealing to his right and when he looked
up he saw the plaintiff’s vehicle travelling westbound on Kingsway through the
intersection and collide with the defendant’s van. At the time of the
collision, the defendant’s van was in the middle of the intersection attempting
to turn left. After the collision, Mr. Fortuna observed skid marks going west
on Kingsway and he estimated these were 70 to 80 feet long. Mr. Fortuna also
observed that at the time of the collision the lights were red for east/west
through traffic on Kingsway. Although Mr. Fortuna believed the defendant had a
green light to turn left at the time of the collision, he did not actually see
the light.

[14]       
By consent, both parties entered a report from the Municipality of
Burnaby describing the light sequences at the Boundary Road and Kingsway
intersection. This report indicates that the amber light for westbound Kingsway
traffic stays on for 3.5 seconds during each sequence. The report also
indicates that the dedicated left turn lanes in either direction for east and
west travel completes before the through lane travel is given a green light. A
driver may continue to turn left after the green advance signal has completed
as long as he waits for the through traffic going west and east on Kingsway to
clear. This is called a protected/permitted left turn signal.

ARGUMENT

[15]       
The plaintiff argues that both the light sequence evidence and the
testimony of the independent witnesses to the accident make it impossible for
the defendant to have proceeded into his left turn with the advance green arrow
in his favour. As a consequence, the plaintiff maintains the defendant had a
duty to observe s. 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318
[Motor Vehicle Act], which requires the servient left turning driver to
yield the right of way to oncoming traffic that is either in the intersection
or so close as to constitute an immediate hazard. The plaintiff argues the
defendant failed to yield to him as the dominant driver who posed an immediate
hazard.

[16]       
The plaintiff also argues the defendant failed to keep a proper lookout
for oncoming traffic due to a mistaken belief that he had the advance green
arrow in his favour. While the defendant looked left, right and then left
again, he failed to look ahead and thus did not observe the oncoming vehicle.
The plaintiff says there was nothing to obstruct the defendant’s view of his
vehicle.

[17]       
The plaintiff maintains that he was entitled to expect the defendant
would comply with the appropriate traffic rules. Further, it is not expected
that the plaintiff will use perfect judgment when making a split second
decision about the best means to avoid a collision with the defendant’s
vehicle. It is immaterial that he may have been exceeding the speed limit at
the time of the collision. The onus rests with the servient driver to prove
that the accident could have been avoided even if he had kept a proper lookout.

[18]       
In support of his argument, the plaintiff relies upon Shirley v.
Regier, [1997] B.C.J. No. 1035 (S.C.) [Shirley]; Cooper v.
Garrett, 2009 BCSC 35; Dawes v. Valadas, 2005 BCSC 1319 [Dawes];
and Luvera v. Benedict, 2010 BCSC 1781.

[19]       
The defendant argues that the plaintiff failed to comply with s. 128(1)(a)
of the Motor Vehicle Act when he entered the intersection on an amber
light instead of coming to a stop and there is no evidence that it was unsafe
for the plaintiff to apply his brakes and come to a stop. Instead, the defendant
argues the plaintiff created an extremely unsafe situation by accelerating in
the hope that he would clear the intersection before the light turned red. The
defendant says that if the plaintiff had time to accelerate, change lanes and
signal him with his high beams, the plaintiff should have had time to apply his
brakes and come to a stop before colliding with his vehicle. The defendant also
argues that based on the plaintiff’s distance from the intersection at the time
he saw the amber light, there is no doubt that he could have stopped safely in
compliance with the Motor Vehicle Act.

[20]       
The defendant also argues that, on one view of the evidence, the
plaintiff entered the intersection on a red light and is thus 100% responsible
for the collision. If the Court finds the plaintiff entered the intersection on
an amber light, the defendant says his excessive speed and failure to brake in
time caused the accident.

[21]       
In support of his position, the defendant relies on the following
authorities: Uyeyama v. Wittenberg, 1985 CarswellBC 1799 (C.A.); Brucks
v. Caslavsky (1994), 45 B.C.A.C. 62 [Brucks]; Kokkinis v. Hall (1996),
19 B.C.L.R. (3d) 273 (C.A.); and Wevill (Guardian ad litem of) v. Whelan,
1999 CarswellBC 1639 (S.C.).

DECISION

[22]       
The relevant provisions of the Motor Vehicle Act are as follows:

Yellow light

128 (1)  When
a yellow light alone is exhibited at an intersection by a traffic control
signal, following the exhibition of a green light,

(a)   the driver of a vehicle
approaching the intersection and facing the yellow light must cause it to stop
before entering the marked crosswalk on the near side of the intersection, or
if there is no marked crosswalk, before entering the intersection, unless the
stop cannot be made in safety,

…

Yielding right of way on left turn

174   When a vehicle is in an
intersection and its driver intends to turn left, the driver must yield the
right of way to traffic approaching from the opposite direction that is in the
intersection or so close as to constitute an immediate hazard, but having
yielded and given a signal as required by sections 171 and 172, the driver may
turn the vehicle to the left, and traffic approaching the intersection from the
opposite direction must yield the right of way to the vehicle making the left
turn.

[23]       
A dominant driver is the driver who has the right of way in an
intersection. Where a driver proceeds through a controlled intersection on a
green light, he has the right of way and a left turn driver, who is not facing
an advance green light, must yield to this driver and stay out of his lane of
travel. If the left turning driver, as the servient driver, fails to yield, he
bears the onus of proving the dominant driver was negligent. As Stromberg-Stein
J. says in Dawes at para. 31:

The servient driver bears the onus
of proving that the dominant driver was negligent.  To discharge this burden,
the servient driver must prove: (a) the dominant driver either became
aware of the servient driver’s breach, or should have become aware of the
breach by exercising reasonable care; (b) the dominant driver had an
opportunity to avoid the accident after becoming aware of the servient driver’s
breach; and (c) the dominant driver could have avoided the accident by
exercising reasonable skill and care.

[24]       
On the facts of this case, the plaintiff entered the intersection on a
yellow light and thus cannot be said to have the right of way. I am also
satisfied that the defendant did not have an advance green light in his favour
when he was attempting to turn left. Given the timing of the light sequences,
and the evidence of the two independent witnesses, it would have been
impossible for the defendant to have faced a green light when he was attempting
to turn left. Had the defendant faced an advance green turn signal, the
witnesses would not have seen a red light for oncoming east/west traffic at the
time of the collision. Next in the sequence would have been a green light for
through traffic on Kingsway. Moreover, Ms. Gjerding clearly testified that the
defendant’s blue van was stopped in the left turn lane waiting for the through
traffic to clear. This evidence is inconsistent with the defendant having the
right of way with an advance green light.

[25]       
Thus on the facts of this case, the competing duties described in ss. 174
and 128 of the Motor Vehicle Act are squarely in issue. The burden of
proof described in Dawes is not applicable where neither of the drivers
had a presumptive right of way. Instead, the Court must examine the conduct of
each driver to determine if they complied with their respective duties under
ss. 174 and 128 of the Motor Vehicle Act.

[26]       
Turning to the plaintiff’s actions, s. 128 of the Motor Vehicle
Act imposes upon a driver a positive obligation to cause his vehicle to
stop at an intersection when he faces a yellow light. The only exception to
this duty is when a stop cannot be made safely. The onus rests with the
plaintiff to prove that he was unable to stop safely in all of the
circumstances. It is the plaintiff who is uniquely positioned to provide this
evidence to the Court. In this case, the plaintiff asserts he was unable to
stop prior to the intersection; however, he provided no evidence to support
this bare assertion. In my view, the evidence supports the opposite conclusion.
The plaintiff was unable to say how far he was from the intersection when the
light turned yellow. His estimate of two to three car lengths was only a guess.
However, he had time to change from third to fourth gear, increase his speed
over the 50 kph limit, and change lanes before he entered the intersection. The
light sequence evidence also indicates that the yellow light remained on for
3.5 seconds before turning red at this intersection and the collision occurred
when the light was red for oncoming traffic. If the plaintiff had sufficient
time to first decide to speed up to pass through the intersection before the
light turned red (thereby necessitating a change of gears prior to the increase
in speed) and then to decide to change lanes to avoid a collision with the
defendant, he would also have had sufficient time to apply his brakes and come
to a safe stop.

[27]       
In my view, it is apparent that the plaintiff decided to increase his
speed and “run” the yellow light in contravention of s. 128 of the Motor
Vehicle Act in order to avoid the red light. It was only coincidental with
the light turning yellow that he saw the defendant’s vehicle. It was not the
presence of the defendant’s vehicle that led to the plaintiff’s decision to
increase his speed in order to avoid a collision.

[28]       
Turning to the defendant’s actions, s. 174 requires the left
turning driver to yield to oncoming traffic that has entered the intersection
or that is so close as to constitute an immediate hazard. A vehicle presents an
immediate hazard if it is so close to the intersection when a driver is about
to make a left turn that if the left turn was made the approaching driver would
have to take some sudden or violent action to avoid a threat of a collision: Dawes
at para. 34. While the plaintiff may have been an immediate hazard
given his speed and his distance from the intersection when the light turned
yellow, a left turn driver does not have to assume an oncoming driver will
disobey the rules of the road to satisfy the duty imposed by s. 174 of the
Motor Vehicle Act. As the Court of Appeal said in Brucks at para. 10:

In this, as in other situations,
a driver is entitled, in my view, to assume that others will obey the rules of
the road, and until the contrary becomes apparent to rely on that assumption in
deciding whether or not an oncoming vehicle constitutes an “immediate hazard”.

[29]       
In this case, however, I find the defendant did not assess whether the
plaintiff was an immediate hazard or not when deciding to proceed with the left
turn. Instead, the defendant wrongly assumed that he had the right of way due
to the presence of an advance green signal. Instead of focusing on the oncoming
traffic and any potential hazards created by those drivers, the defendant
concentrated on ensuring there was no cross traffic or pedestrians in the
crosswalk while he turned left. He looked left, then right, then left again
before he looked ahead at oncoming traffic. By this time it was too late
because the collision had already occurred. In my view, the defendant neglected
to take the proper steps to ensure there was no oncoming traffic before he
proceeded into the left turn. In this regard, I find the facts of this case are
similar to those in Shirley where Mackenzie J. (as he then was)
concluded that both drivers were at fault, the oncoming driver for running a
yellow light and the left turning driver for proceeding into the turn when her
view of the intersection and the oncoming traffic was partly blocked.

[30]       
For these reasons, I find that both the plaintiff and the defendant are
at fault and their respective negligence both contributed to the accident. The
degree of fault does not differ significantly. The defendant proceeded into a
left turn without keeping a lookout for oncoming traffic due to his mistaken
assumption that he had an advance green light. The plaintiff was equally at
fault for increasing his speed and attempting to travel through the
intersection before the light turned red and following an established amber.
Accordingly, I find the plaintiff and the defendant each 50% responsible for
the accident.

[31]       
Each party shall bear their own costs as a result of the divided success
on the question of liability.

“Bruce J.”