IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110920

Docket: M112392

Registry:
New Westminster

Between:

Bethann Nerval

Plaintiff

And

Ramandeep Kaur
Khehra and

Surjit Kaur Khehra

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

– and –

Docket: S021071

Registry:
Chilliwack

Between:

Ramandeep Kaur
Khehra, aka Khera

Plaintiff

And

Bethann Louise
Nerval

Defendant

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

[1]          
On October 16, 2007, a car accident occurred at the intersection of Blue
Jay Street and Sandpiper Drive in Abbotsford (the “Intersection”). Bethann Nerval
was attempting a left turn at the Intersection at the same moment Ramandeep
Khehra was proceeding southbound through the Intersection.  Neither woman saw
the other in time and Ms. Khehra’s vehicle struck Ms. Nerval’s vehicle
broadside. Both parties were injured and have sued one another. This trial was
restricted to the issue of which driver’s negligence caused the collision. The
measure of fault attributed to each party will govern the apportionment of
their entitlement to damages, which will be tried separately from the liability
issue.

Undisputed Facts

[2]          
The collision occurred sometime between 8:15 and 8:24 a.m. The weather conditions
on that day were not a factor in this collision.

[3]          
Ms. Khehra was 18 years of age and held a BC driver’s license
restricting her right to drive; she was required to have with her another
occupant aged 25 years or older holding a valid BC driver’s license. At the
time of the collision she was in breach of this condition of her license.

[4]          
Ms. Khehra was driving a 2001 Ford Explorer southbound on Blue Jay
Street to her work place.

[5]          
Ms. Nerval was a 29 year-old business student and mother of three infant
children, Simran, Jasmine, and Kiran, who were passengers at the time of the
accident.

[6]          
Ms. Nerval was driving a 2002 Ford Windstar van and was returning to her
home at Onyx Place in Abbotsford; this was a short distance from the Intersection.

[7]          
Blue Jay Street is a two-lane north/south road with one lane running in
each direction. The Intersection is controlled by stop signs for east west
traffic; there are no restrictions on traffic on Blue Jay.  Approximately 600
metres south of the Intersection Blue Jay also intersects with Blue Ridge
Street.

[8]          
From Blue Ridge to Sandpiper, Blue Jay slopes downhill for approximately
400 metres after which the road levels out for approximately 630 feet leading to
the Intersection. Blue Jay remains a level roadway south of the Intersection.

[9]          
Ms. Nerval drove northbound on Blue Jay and came to a stop at the Intersection.
She was intending to make a left turn onto Sandpiper.

[10]       
As Ms. Nerval approached the Intersection she observed a white van
stopped, in the southbound lane across from her at the Intersection and signalling
its intention to turn left onto Sandpiper. She waited several seconds before
starting to turn across the southbound lane toward the westbound lane on
Sandpiper.

[11]       
Ms. Khehra entered onto Blue Jay at Blue Ridge. She travelled south toward
the Intersection and observed the white van travelling in front of her. It reached
the Intersection ahead of her and she observed it activate a left turn signal.

[12]       
Ms. Khehra continued southbound. As Ms. Nerval started her left turn,
Ms. Khehra proceeded into the Intersection and drove into the side of the the
Nerval vehicle. The damage to both vehicles was extensive. There is
disagreement on the question of whether Ms. Khehra travelled around the white
van or simply followed through after the van completed its left turn.

[13]       
The identity of the driver of the white van was not discovered by the parties.

The Issues

[14]       
Ms. Khehra argues that Ms. Nerval breached her duty of care in failing
to yield the right of way. Ms. Khehra submits that she was the dominant driver
and Ms. Nerval was the servient driver immediately prior to the collision. Consequently,
Ms. Khehra claims Ms. Nerval was obliged to delay her left turn until she could
complete that manoeuvre without causing Ms. Khehra to take some sudden or
violent action to avoid the threat of collision.

[15]       
Ms. Khehra further argues that her vehicle was an immediate hazard when
Ms. Nerval commenced her left turn into the path of the southbound car. Ms. Khehra
also claims that, on the issues of credibility, Ms. Nerval is not to be
believed; she says Ms. Nerval was not looking or did not stop before making her
turn and that her assertions otherwise are not credible. She submits that Ms.
Nerval was solely responsible for the accident

[16]       
Ms. Nerval argues that Ms. Khehra was traveling at an excessive rate of
speed as she approached the Intersection. The accident occurred in a
residential area with a nearby bus stop and pedestrian traffic. She says that
Ms. Khehra was sufficiently far back from the Intersection when Ms. Nerval
commenced her turn that she was not an immediate hazard; Ms. Nerval submits
that she was in the dominant position. Finally, Ms. Nerval claims Ms. Khehra passed
the white van on the right and failed to establish that, in passing on the
right, she exercised proper care to ensure her movement could be completed
safely.

[17]       
As a result of these factors, Ms. Nerval argues that Ms. Khehra is
solely responsible for the collision.

Legal principles

[18]       
The Motor Vehicle Act, R.S.B.C. 1996, c. 318, creates the
statutory duties of motorists in the circumstances of these parties. They are:

Passing on right

158 (1) The driver of a vehicle must not cause or permit the
vehicle to overtake and pass on the right of another vehicle, except

(a) when the vehicle overtaken is
making a left turn or its driver has signalled his or her intention to make a
left turn,

(b) when on a laned roadway there
is one or more than one unobstructed lane on the side of the roadway on which
the driver is permitted to drive, or

(c) on a one way street or a
highway on which traffic is restricted to one direction of movement, where the
roadway is free from obstructions and is of sufficient width for 2 or more
lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not
cause the vehicle to overtake and pass another vehicle on the right

(a) when the movement cannot be
made safely, or

(b) by driving the vehicle off the
roadway.

…

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.

[19]       
The legal principles governing collisions involving left-turning
vehicles are straightforward. The first question is whether Ms. Khehra
constituted an immediate hazard prior to Ms. Nerval commencing her turn. The
answer to that question will determine which of the two was the dominant driver
prior to the collision.

[20]       
A motor vehicle is an immediate hazard if its driver must take a sudden
or violent action to avoid the threat of collision if a servient vehicle is
about to make a left turn entering or crossing the highway in the path of the
approaching vehicle: Raie v. Thorpe, 43 W.W.R. 405 at 410, [1963] B.C.J.
No. 14 (C.A.) [Raie cited to W.W.R.]. The time to assess the question of
an immediate hazard is when the left-turning vehicle commences the turn: Raie
at 414.

[21]       
If I conclude Ms. Khehra was the dominant driver, she may still be in
breach of her duty of care to Ms. Nerval because she failed to take reasonable
care when passing the other south-facing van on the right and entering into the
Intersection at an unsafe speed when the view of the intersection was obscured
by the white van.

[22]       
The burden of proving that the speed of the dominant vehicle caused or
contributed to the accident rests in this case with the driver in the position
of Ms. Nerval. In Pacheco (Guardian ad litem of) v. Robinson, [1993]
B.C.J. No. 154, 75 B.C.L.R. (2d) 273 (C.A.), the court described the burden as
follows:

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.

[23]       
In Burgess v. Fisher, 2009 BCSC 1766 at para 21, Barrow J.
described the servient driver’s duty as requiring that driver to assess how far
away the through travelling vehicle is from the intersection and how fast it is
travelling.

Ms. Nerval

[24]       
Ms. Nerval was a business student at the local University College. She
obtained her driver’s license in 2002 and owned the Ford Windstar van which she
was driving at the time of the accident.

[25]       
On the morning of October 16, 2007, Ms. Nerval drove from her children’s
school to Blue Jay and travelled north toward the Intersection. Her plan was to
turn left at Sandpiper.

[26]       
Once on Blue Jay she approached the Intersection and noticed a white van
stopped in the southbound lane with its left turn signal activated. She
estimated that the van was one foot away from the center line of the road but
was not in the Intersection.

[27]       
Ms. Nerval could not see through the van but was able to look past the
west side of the van after she had stopped. She was looking to the west of the
van to see if there was traffic in the vicinity of the bus stop immediately to
the west of the roadway. She waited about eight to ten seconds, saw nothing,
and proceeded to complete her turn. The nose of her vehicle had almost reached Sandpiper
when her van was struck on the passenger side by the Khehra vehicle. She did
not see or hear the Khehra vehicle before impact.  Ms. Nerval’s vehicle was
moved south by the force of the Khehra vehicle.

[28]       
Under cross-examination Ms. Nerval said she was not in a rush and was
not worried about being late for school. Although the plaintiff raised an issue
about Ms. Nerval being late for a school exam, I conclude that her schedule was
not a factor in this collision.

[29]       
Ms. Nerval did not see any vehicles behind the white van as she
approached the Intersection. She indicated she could see as far as 150 metres
north on Blue Jay after she stopped; she could not see directly behind the white
van, but could see the left side of the van and the bus area. Although she
could see some portion of the road to the north, she did not see the Khehra
vehicle.

[30]       
Ms. Nerval agreed that at the Intersection Blue Jay was wide enough for
a vehicle to pass on the right-hand side. The road widened to accommodate the
bus stop and at that point there was room for a southbound vehicle to travel
past a stopped southbound vehicle and travel into the Intersection.

[31]       
She believed that she was stopped one foot off the center line when she
began her turn; she could see the yellow line. Ms. Nerval indicated that when
stopped her vehicle was on an angle and a little west of the van. This
presumably gave her a better view of the south bound lane.

[32]       
When she approached the Intersection she wondered why the white van
coming towards her was stopped; she had not seen pedestrians in the area.
Contrary to those statements, at her examination for discovery Ms. Nerval had
said she did not recall vehicles coming down the hill and did not remember if
there were pedestrians in the area. In response to counsel’s questions she said,
“Your questions [at the discovery] made me rethink my answers.”

[33]       
Ms. Nerval could not estimate the amount of time that passed between
starting her turn toward Sandpiper and the impact. She described her speed as
“walking speed,” but at her discovery she was unable to remember her speed
after starting the turn.

Ms. Khehra

[34]       
The night prior to the accident Ms. Khehra’s parents were involved in an
unrelated auto accident. They were taken to hospital and Ms. Khehra with her sister
attended the hospital to collect their parents. Ms. Khehra was back in bed by
approximately 2 a.m. and rose the next morning intending to go to work.

[35]       
Unfortunately, her parents were not awake and she was unable to find
money for a taxi so took the Ford Explorer without her parents’ permission. She
was a new driver and was aware she was not permitted to drive alone.

[36]       
Ms. Khehra called her work to say she might be late. She drove along Blue
Ridge Drive to Blue Jay, turned right on to Blue Jay and drove south. She
confirmed that south of the Blue Ridge intersection, Blue Jay declines sharply
for several hundred metres after which the ptich of the road lessens and
eventually levels as it approaches to the Intersection. She said her speed was
between 50 and 55 km/h. She denied the suggestion that she was travelling at 80
km/h.

[37]       
Ms. Khehra testified that there was a white van travelling about 12 feet
in front of her as she drove down Blue Jay and approached Sandpiper; this
vehicle was applying its brakes. In her evidence she could not remember if the
van actually stopped at the Intersection, but when cross-examined on her
evidence at an examination for discovery she said it stopped for a “second or
two” and quickly turned left.

[38]       
On cross-examination she could not remember her discovery evidence that
she saw the white van as she was mid-way down the hill on Blue Jay.

[39]       
Ms. Khehra denied travelling at 80 km/h or more and denied swerving or
turning to go around the stopped white van. She said she did not pass the van
on the right, although she may have been a little more on her right side of the
lane as she drove through the Intersection; she said the lane was quite wide at
that point. She knew there was a bus stop on the right hand side of Blue Jay
before the Intersection and it was common to see pedestrians in the Intersection.

[40]       
She testified that she applied her brakes and slowed to about 50 km/h at
the Intersection. The white van cleared the Intersection and she was suddenly faced
with the Nerval vehicle on an angle facing west. She did not see the Nerval
vehicle before the impact and said she had no opportunity to apply her brakes.

[41]       
Ms. Khehra repeatedly testified to the fact that contradictions between
her discovery evidence and her evidence at trial resulted from the stress of being
unrepresented at the discovery. However, she said she had spoken to a lawyer
before attending at her discovery.

Cst. Jason Baskin

[42]       
Cst. Baskin is a police constable with the Abbotsford Department and
attended at the accident with a training officer, Sgt. Wilcox. Cst. Baskin had
been working as a police officer for about five months and was in the midst of
his training.

[43]       
Cst. Baskin attended at the scene of the accident sometime after 8:24 a.m.
At the accident scene he recorded information from the drivers of the motor
vehicles involved and sometime that day completed a MV6020 along with Sgt.
Wilcox.

[44]       
Cst. Baskin advised that his function at the accident scene was to
record details in his book as an aid to his memory if he goes to court. The
book he used on this occasion had been lost to a theft and all he had with him
were the typed notes that he had compiled after visiting the parties in the
hospital later in the day of the accident. He indicated that depending on the
circumstances of the case the gap between taking his notes of the accident and
transposing the notes into his written report could be one to two hours. He did
not tape record or otherwise record the statements from the parties involved in
this accident.

[45]       
Cst. Baskin did not recall which of the witnesses at the accident scene
he personally interviewed, but reported that he prepared a typewritten report
from the handwritten notes he placed in his regular black book. He said he
prepared this statement sometime after leaving the hospital and after the
vehicles had been towed from the scene. Cst. Baskin indicated that the driver
of a Ford Explorer was the defendant Ms. Khehra and the driver of the Windstar
van was the plaintiff Ms. Nerval.

[46]       
He told the Court that a Toyota Corolla driven by Mr. Malhi and
accompanied by Mr. Sandhu was also involved in the accident. This was a driver
instructional vehicle. Mr. Sandhu was the instructor.

[47]       
Ms. Nerval applied to tender her statement to Cst. Baskin because she
could not recall the events surrounding the collisions. A voir dire was held.
Cst. Baskin reported that Ms. Nerval had told him that she was making a left-hand
turn to go westbound on Sandpiper. At the time there was a van facing
southbound indicating a left turn and an intention to go eastbound on
Sandpiper. She said she did not see any other motor vehicle coming towards her.
She did not remember if she had her signal light on; there was no mention of a
signal light in his notes. Ms. Nerval told him that the other van had its
signal on. That is the totality of his conversation with Ms. Nerval.

[48]       
The defence opposed the admission of this statement into evidence on the
basis that it fails to meet the requirement of necessity. The defence argues
that to be admissible the statement must be used to rebut an allegation of
recent fabrication, be a prior inconsistent statement, or be a statement
contemporaneous with an event reported in the statement.

[49]       
I conclude that the statement is not admissible. The circumstances under
which the statement was taken do not reflect that it was taken
contemporaneously with the event. The evidence did not support the suggestion
that it was a contemporaneous report. There was no suggestion that the
statement was inconsistent with the evidence given by Ms. Nerval at the trial
and no suggestion that the there was an allegation of recent fabrication of
evidence.

[50]       
If I am wrong in my conclusions regarding the admissibility of the
statement, I would otherwise have concluded that the statement did not contain
any information that materially augmented the evidence of Ms. Nerval at trial.

[51]       
Cst. Baskin gave evidence of a statement from Ms. Khehra. He said that
he could not remember if he had interviewed Ms. Khehra at the site of the
accident or the hospital, but that she had responded to his questions. He did not
remember if she had suffered any injuries or anything else about her condition.
He did note on the MV6020 a reference to Ms. Khehra having experienced a head
injury, whiplash, and a note that she was somewhat agitated.

[52]       
Cst. Baskin acknowledged that he wrote notes because he is unable to
remember people and events over long periods of time.

[53]       
He said that it was possible that his notes might have contained more
information, but that he recorded what he thought was important.

[54]       
He said that the ticket issued to Ms. Khehra was for unsafe passing on
the right and driving without a qualified adult in the car.

[55]       
Ms. Khehra apparently reported to him that she was going southbound on Blue
Jay and as she approached the Intersection there was a van with a left turn
signal on ready to go east on Sandpiper. She went around the right side of the
van but did not slow as she observed the van was “making its turn.” She did not
see the Nerval vehicle prior to entering the Intersection.

[56]       
Neither Ms. Khehra nor Ms. Nerval was cross-examined on the statements
given to the police. Neither statement was admissible for the truth of its contents.

[57]       
Cst. Baskin also took a statement from Parvinder Sandhu, the driving
instructor. He suffered no apparent physical injuries. Mr. Sandhu said that he
was stopped when he observed the Khehra vehicle coming fast, estimating her
speed at 65 km/h. He said that there were two other witnesses at the accident.
Cst. Baskin was never able to talk to one of the witnesses and another witness declined
to speak to him.

[58]       
Cst. Baskin confirmed that the northbound lane of Blue Jay at the
Intersection was approximately 22 feet wide and that the average vehicle width
was 7 to 8 feet. He agreed that two vehicles could safely drive on the northbound
lane in which the accident happened.

[59]       
Cst. Baskin reviewed photographs of the accident scene and confirmed
they showed an accurate picture of the physical shape of the road and the lines.
He said at the Intersection the road surface was pretty flat and wide open and
that the visibility for north and south would have been excellent.

Lakhbir Rai

[60]       
Lakhbir Rai is a 40-year-old construction worker and crane operator. Mr.
Rai observed the accident and testified about the speed of the Khehra vehicle.
He based his estimates on his job experience as a concrete finisher and using
machines that travel 60 km/h. He had also driven a Ford Explorer on one
occasion. He did not testify as to his general experience driving automobiles.
He had no driver training in speed estimation and no experience with radar
devices.

[61]       
On the day of the accident he was driving a Ford F150 pick-up truck and
had parked that vehicle on the side of Blue Jay near the intersection of Blue Jay
and Blue Ridge. He walked his child to a nearby school; he returned to his
truck and as he prepared to start driving when he noticed a Ford Explorer travel
past him at what could be best described as a high rate of speed. Mr. Rai estimated
that this vehicle was travelling in excess of 80 km/h.

[62]       
He pulled on to Blue Jay and drove south. He observed the Khehra vehicle
ahead of him and noticed that the gap between his truck and the Khehra vehicle
was increasing. From the point where he entered Blue Jay he said there was a
steep slope to the south. He said he heard a loud noise as this vehicle moved
ahead of him and could hear the motor racing as the vehicle was heading down
the hill toward Sandpiper. He said that the Khehra vehicle did not have brake
lights on as it travelled down the steepest part of Blue Jay and he did not see
any brake lights on her vehicle from that point until the collision. He said
that she was “pulling away from him.”

[63]       
As the Khehra vehicle drove south, he noticed a white van in the Intersection
signalling to turn left. He could see a green van (the Nerval vehicle) intending
to turn west on Sandpiper. He saw the Khehra vehicle swerve to the right to
pass the left turning white van and was surprised to see the Nerval vehicle
turning to the left. He saw the Nerval vehicle start to turn and as the Khehra vehicle
passed to the right around the south facing white van the two vehicles collided.

[64]       
Mr. Rai was cross-examined on his estimate of the Khehra vehicle’s
speed. He acknowledged that at the time of the collision he was 165 yards south
of the Intersection. He said the space between his vehicle and the Khehra vehicle
continued to expand as he drove southbound. He said the Khehra vehicle did not
appear to slow as it reached the Intersection and swerved to pass the white van
as it signalled its intention to make a left turn westbound onto Sandpiper.

[65]       
He was also able to see the Nerval vehicle turning left at the Intersection.
It is significant that Mr. Rai saw the Nerval vehicle before the collision yet
Ms. Khehra did not see the Nerval vehicle before it pulled in front of her.

[66]       
He eventually conceded he did not know Ms. Khehra’s exact speed before
the impact, but he did not waiver from his estimate that Ms. Khehra was moving
very fast; he said her speed was phenomenal. He repeatedly said he believed she
was travelling more than 80 km/h.

[67]       
Mr. Rai was challenged about his perception of the time elapsing while
Ms.  Khehra approached Sandpiper. He realized his estimate of time was likely
incorrect, but that correction did not impact on his estimate of her speed.

James Tait

[68]       
Mr. Tait is an accident investigator called by the defendants. He took photographs
of the scene and produced a video of Blue Jay leading up the point of the
collision. He measured the distance from Blue Ridge to Blue Jay at 600 metres
and from the flat lower portion of Blue Jay to Sandpiper at 512 feet. He said
the drive from Blue Ridge to Sandpiper at 50 km/h occupied 47 seconds. I found
Mr. Tait to be a little unclear as to where he actually commenced his
measurements; however, I am satisfied that within a reasonable margin of error
of his measurements are helpful.

[69]       
The video showed at the trial was of modest assistance in giving the Court
a general perspective on the area. I did not find the video helpful in
re-creating in any way the events leading up to the collision.

Analysis

[70]       
Both Ms. Nerval and Ms. Khehra had statutory obligations concerning
their driving at the time of the accident. Ms. Nerval, pursuant to s. 174, had
to yield to vehicles approaching that were so close as to constitute an
immediate hazard. Ms.  Khehra, pursuant to s. 158, could not pass the white van
on the right unless the movement could be made safely.

[71]       
The factual issues to be resolved are these:

·        
how far from the Intersection was Ms. Khehra when Ms. Nerval
commenced her left turn;

·        
whether Ms. Khehra passed the white van on the right as opposed
to following straight after the white van made its turn; and

·        
what speed was Ms. Khehra travelling.

[72]       
I find that Ms. Khehra was so close to the Intersection when Ms. Nerval
commenced entry into the southbound lane as to constitute an immediate hazard,
thereby giving Ms. Khehra the right of way as the dominant vehicle.

[73]       
Generally speaking, Ms. Khehra, the dominant driver, was entitled to
proceed through the Intersection and Ms. Nerval, the servient driver, was required
to yield the right-of-way: Pacheco at para. 15.

[74]       
However, the caveat to the proposition set out in Pacheco is
whether Ms. Khehra’s speed was such that she failed to achieve the status as
the dominant driver at the moment Ms. Nerval began her turn: Carich v. Cook,
[1992] B.C.J. No. 446, 90 D.L.R. (4th) 322 at 326 (C.A.). The burden is on Ms.
Nerval to establish that after she entered into the Intersection Ms. Khehra
became or should have become aware of Ms. Nerval’s presence and had a
sufficient opportunity to avoid the accident, of which “a reasonably careful
and skilled driver would have availed himself”: Pacheco at para. 18.

[75]       
Ms. Nerval testified that she stopped for five to eight seconds before
starting her turn and looked down Blue Jay 150 metres. She must establish on
the balance of probabilities that Ms. Khehra’s lack of care or speed deprives
her of the right-of-way in the circumstances of this incident.

[76]       
There were no opinions of accident reconstruction engineers to assist in
speed analysis, perception response analysis, or evasion potential. There was
no opinion evidence as to the location of the impact. I was provided with
photographs of the accident scene which showed the front left of the Khehra
vehicle close to the right rear of the Nerval vehicle. A review of the
photographs suggests that impact was on the right side of the southbound lane.
The photos suggest that the Nerval vehicle moved west after impact and the Khehra
vehicle was turned sideways. The damage to both vehicles was extensive, but I
am unable to draw any conclusions as to speed based on the damage or location
of the vehicles.

[77]       
The speed limit on Blue Jay was 50 km/h. I was given the calculations of
speed reduced to metres per second for 50 km/h, 55 km/h, and 80 km/h. A motor
vehicle traveling at those speeds would be moving at 13.88 m/sec, 15.27 m/sec,
and 22.22 m/sec, respectively. Ms. Nerval believed she was able to see 150 metres
north on Blue Jay before commencing her turn. The length of time required by the
Nerval vehicle to clear the Intersection was not in evidence. Approximately 6.75
seconds would have elapsed from the time Ms. Khehra was 150 metres away until
the collision if she had maintained a constant speed of 80 km/h until the
impact.

[78]       
Ms. Nerval was unable to give the speed of her vehicle during the turn;
she mentioned “walking speed” but this evidence was inconsistent with her
discovery testimony. If Ms. Nerval had travelled the seven meters plus the
length of her van across Blue Jay (the distance required for the rear of her
van to reach Sandpiper) at 10 kmh, she would have required 7.2 seconds to clear
the southbound lane.  This calculation is made made based on the possible, not
proven speed of Ms. Nerval prior to impact.

[79]       
The burden of proof that, but for Ms. Khehra’s speed, the collision
might not have happened rests with Ms. Nerval. The evidence on this issue is
unclear and I am unable to say that Ms. Khehra was not a hazard when Ms. Nerval
commenced her turn.

[80]       
It is clear to me that the Khehra vehicle was not observed by Ms. Nerval
because her line of vision was obscured by the south-facing white van at the
moment she commenced her turn. Ms. Nerval does not appear to have looked to the
north at any time during her left turn and before the impact. In my view, Ms.
Nerval erroneously concluded that there were no vehicles in close proximity to
the Intersection.

[81]       
I accept the evidence of Mr. Rai that Ms. Khehra was travelling at a
high rate of speed as she approached the Intersection.  Although he eventually
acknowledged he was not certain of her speed, he left no doubt that she was
travelling very fast. I do not conclude that she was going 80 km/h or more but
I accept that she was travelling more than 50 km/h. I am also satisfied that he
was correct in his observation that Ms. Khehra swerved to the right to pass the
stopped white van. When she did so she was heading directly toward the impact.
Ms. Nerval did not expect Ms. Khehra to appear; she clearly misjudged the prospect
of a vehicle coming from behind the stopped white van.

[82]       
Ms. Khehra was a new driver and did not have an 25 year old licence
holder with her.  I do not accept her evidence that she was travelling at 50 km/h
prior to the collision. Mr. Rai had no interest in the outcome of this trial.
Ms. Khera’s evidence at trial contradicted her discovery testimony; I did not
accept that the errors in her discovery evidence stemmed from the stress of
being unrepresented at the time.

[83]       
I find that Ms. Nerval has not met the burden of proof that the Khehra
vehicle was not an immediate hazard when she began her turn. There were between
seven and eleven seconds during which Ms. Nerval ought to have seen the Khehra
vehicle; she simply misjudged the risks. Ms. Nerval failed to see the Khehra
vehicle which was obviously on the road. In these circumstances, Ms. Nerval was
the servient vehicle.

[84]       
However, the circumstances of this accident also engage s. 158 of the Motor
Vehicle Act. When Ms. Khehra passed the white van on the right she was
obliged not to do so unless the passage could be made safely.

[85]       
In Sandhu v. Gill, [1999] B.C.J. No. 2742, 49 M.V.R. (3d) 32
(S.C.), Burnyeat J. reviewed the authorities involving the obligations set out
in ss. 158 and 174 of the Motor Vehicle Act. He found that the
obligation created by s. 174 has priority over the obligation created by s.
158; however, the onus on the left turning driver is not absolute, and may be
qualified based on the conduct of the through driver.

[86]       
I find that Ms. Khehra drove her vehicle along Blue Jay toward the Intersection
at a high rate of speed. On nearing the Intersection she was aware of the white
van indicating it was intending to make a left turn. She chose to pass the van
on the right. The proximity of Ms. Khehra’s vehicle and her speed resulted in
Ms. Nerval commencing her turn at a time when Ms. Khehra was an immediate
hazard. It is unclear why Ms. Nerval did not see Ms. Khehra other than to
specualte that the white van obscured the view both parties had of the other. If
she had been travelling at a more responsible speed there might have been
sufficient time for Ms. Nerval to clear Ms. Khehra’s path.

[87]       
Ms. Khehra was an inexperienced driver who was required by the Motor
Vehicle Act to have a 25-year-old driver present with her at all times
while driving. She was also late for work.

[88]       
Ms. Khehra’s evidence in relation to her speed was unreliable; where it
conflicted with Mr. Rai’s evidence I accept his comments that she was
travelling faster than the speed limit. Ms. Khehra was not travelling 12 feet
behind the white van, she was travelling well in excess of 50 km/h, she swerved
to pass the white van on the right, and she should have been more cautious when
passing on the right because her visibility was obscured. Mr. Rai saw the
Nerval vehicle before the impact and it was on the road to be seen.

[89]       
I conclude that Ms. Khehra was travelling much faster than the speed
limit and that passing the stopped white van without slowing or ascertaining
that the movement could be made safely exposed both parties to a greater risk
of collision. In the manner in which she passed the white van on the right,
pursuant to s. 158 of the Motor Vehicle Act, she did not do so safely.

[90]       
I adopt the statement of Catliff J. in Santos (Guardian ad litem of)
v. Raes, [1998] B.C.J No. 389 (S.C.):

[11]      While travelling with
other traffic over the speed limit does not itself constitute negligence in
this case, it will constitute contributory negligence if excessive speed probably
prevented the defendant from taking reasonable measures to avoid the
accident. 

[91]       
The servient vehicle, Ms. Nerval, did not observe and did not yield to
Ms. Khehra, an immediate hazard and the dominant vehicle; however, in this
case, the dominant vehicle was travelling well above the speed limit and passed
the stopped white van on the right. She was permitted to execute that change in
direction only if the movement could be made safely. The combination of speed
and direction change constituted a breach of her duty of care to Ms. Nerval,
contributing to the collision.

[92]       
The distinguishing feature of this accident compared with the
authorities cited by counsel (Sandhu, supra; Kelly v. Yuen,
2010 BCSC 1794; Reynolds v. Weston, [1989] B.C.J. No. 49 (S.C.); Pacheco,
supra; Santos, supra; and Sabastiao v. Martin, [1991] B.C.J.
No. 191 (S.C.)) is that each of those cases involve circumstances in
which the dominant driver occupied one of several marked lanes of traffic. In
my view, that fact distinguishes those cases from the present. In this case, at
the Intersection Blue Jay was a single southbound lane. Therefore, when Ms. Khehra
“swerved” around the stopped southbound van she failed to see what, if anything,
was at or in the Intersection. Similarly, Ms. Nerval was unable to see behind
the stopped van and, although she saw some portion of the road north of the
white van, she could not have seen directly behind that vehicle.

[93]       
When Ms. Khehra’s vision of the Intersection was compromised she was
obliged to take additional care while swerving around the stopped white van;
there was the possibility of left-turning vehicles or crossing pedestrians that
might become hazards in her way. Ms. Nerval, however, carried a much higher
obligation to delay her turn until her turn could be made safely. In Burgess,
supra, Barrow J. states the servient driver must assess the distance and
speed of the through travelling vehicle from the intersection. Ms. Nerval could
not see the Khehra vehicle and so could not assess distance or speed. In my
view, when Ms. Nerval, as the left turning vehicle, could not see the full
roadway behind the opposite turning vehicle, she took the risk of starting the
turn without sufficient knowledge of the oncoming traffic.

[94]       
Ms. Nerval was required to prove that “by the exercise of reasonable
care” Ms. Khehra “should have become aware, of the servient driver’s own
disregard of the law” as stated in Pacheo at para 18. Ms. Nerval
did not meet this burden of proof.

[95]       
Liability in this situation is determined according to the rules of the
road and the reasonableness of the actions of the parties. While referring to
s. 175 of the Motor Vehicle Act, I find the statement of principle of
Groberman J.A. in Salaam v. Abramovic, 2010 BCCA 212, applicable to the
circumstances of this case:

[21]      In the end, a court
must determine whether, and to what extent, each of the players in an accident
met their common law duties of care to other users of the road. In making that
determination, a court will be informed by the rules of the road, but those
rules do not eliminate the need to consider the reasonableness of the actions
of the parties. This is both because the rules of the road cannot
comprehensively cover all possible scenarios, and because users of the road are
expected to exercise reasonable care, even when others have failed to respect
their right of way. While s. 175 of the Motor Vehicle Act and other
rules of the road are important in determining whether the standard of care was
met, they are not the exclusive measures of that standard.

[96]       
I have concluded that both parties failed to meet their common law
duties of care to each other. Ms. Khehra was the dominant vehicle but her
conduct was a subsantial contributing factor to this collision. For these
reasons I conclude that the liability for this collision rests 40% with Ms. Khehra
and 60% with Ms. Nerval.

[97]       
The parties will have liberty to address the question of costs.

“Armstrong J.”