IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120117

Docket: M092458

Registry:
Vancouver

Between:

Brenda
Yamakami

Plaintiff

And

Walter
Francis Whittey and Accent Leasing & Sales Ltd.

Defendant

Before:
The Honourable Judge Fitch

Reasons for Judgment

A. Introduction

[1]            
This action arises out of a motor vehicle accident that occurred on July
30, 2007 at the intersection of Jellicoe Street and S.E. Marine Drive in
Vancouver. The accident occurred when the plaintiff, Brenda Yamakami, who was
proceeding westbound on S. E. Marine Drive, turned left off Marine Drive to
proceed south on Jellicoe Street. As the plaintiff was 90 degrees into her
turn, and about halfway across the three oncoming eastbound lanes, she was
“T-boned” by an eastbound vehicle driven by the defendant, Walter Whittey, and
owned by Mr. Whittey’s employer, the corporate defendant Accent Leasing
& Sales Limited. It is agreed that if the defendant, Walter Whittey, is
found to have been operating his vehicle in a negligent manner at the time of
the accident, Accent Leasing & Sales Limited is vicariously liable for that
conduct both as his employer and pursuant to s. 86 of the Motor Vehicle
Act, R.S.B.C. 1996, c.318 (“MVA”).

[2]            
The plaintiff contends that she turned left to proceed on Jellicoe
Street after the east/west traffic light at the intersection at Jellicoe and S.E.
Marine Drive turned red. She testified that other vehicles in the eastbound
curb and centre-line lanes had, by then, already come to a stop. She was aware
of Mr. Whittey’s vehicle as it approached the intersection in the
eastbound centre lane, but it was not so close as to constitute an immediate
hazard. Believing that Mr. Whittey could (and would) come to a stop at the
red light, she proceeded with the left turn onto Jellicoe Street. When Mr. Whittey
came through the intersection against the red light, she could not avoid the
collision.

[3]            
Mr. Whittey, who was 81 years of age when the accident occurred,
died before trial but after his examination for discovery was completed on May
11, 2010. Counsel for the defendants applied at the outset of the trial to have
his examination for discovery admitted in evidence for the truth of its
contents under the principled approach to the hearsay rule. The application was
opposed. As Mr. Whittey was deceased at the time of trial, the necessity
criterion was met. Counsel for the plaintiff argued that despite the existence
of process-based substitutes compensating for the loss of an ability to engage
in contemporaneous cross-examination of the defendant (the oath,
cross-examination and the existence of a verbatim record of the examination for
discovery) the evidence Mr. Whittey gave on the examination for discovery
was so inherently unreliable that the test of threshold reliability at the
admission stage was not met. In oral reasons for judgment delivered November 4,
2011, I concluded that the process-based compensators present in this case
provided a satisfactory basis for evaluating the reliability of the evidence in
issue. Accordingly, I exercised my discretion to admit the evidence but made
clear that it was for me, at the end of the day, to determine the ultimate or
actual reliability of the evidence and the weight it should be accorded.

[4]            
Mr. Whittey testified on the examination for discovery that he was
about 10 feet from the intersection at S.E. Marine Drive and Jellicoe Street
when the light turned yellow. He testified that he was traveling about 40 to 45
km/hr and was so close to the intersection when the light changed to yellow
that he could not possibly come to a safe stop and had no choice but to proceed
through. When the plaintiff turned left in front of him, he immediately applied
his brakes but was unable to avoid the collision.

[5]            
The parties to this action obtained an order severing the issues of
liability and damages. This judgment addresses liability only.

[6]            
For the reasons that follow, I find the defendants wholly responsible
for the collision.

B. Summary of the Evidence

(a) The Plaintiff

[7]            
Ms. Yamakami, who was 36 years of age time of the accident, is an
elementary school teacher. She was off work for the summer. At about 6:15 p.m.
on July 30, 2007 she was driving her Acura Integra westbound in the centre-line
lane on S.E. Marine Drive from a nearby mall to her residence which is located
close to the intersection of S.E. Marine Drive and Jellicoe Street. It was a
sunny day and the roads were dry. Ms. Yamakami was not in a hurry.

[8]            
The intersection at S.E. Marine Drive and Jellicoe is a “T”
intersection. Jellicoe Street proceeds south from the intersection. S.E. Marine
Drive has three lanes for eastbound and three lanes for westbound traffic. In
this judgment, the lanes will be referred to as the curb, middle and centre-line
lanes. There is a dedicated left turn lane for vehicles traveling west on S.E.
Marine Drive and turning onto Jellicoe Street.

[9]            
There are also pedestrian controlled crosswalks immediately to the east
and west of the intersection that permit foot travel north and south across
Marine Drive.

[10]        
The speed limit along S.E. Marine Drive is 50 km/hr.

[11]        
The plaintiff had lived in this neighbourhood for about eight years
prior to the collision and was very familiar with the intersection.

[12]        
As noted above, the plaintiff was traveling westbound in the centre-line
lane as she approached Jellicoe Street. Her headlights were on. She turned her
left signal light on, checked over her shoulder and moved into the left turn
lane. She stopped at the stop line. She then moved into the intersection so
that about three quarters of her vehicle was past the stop line. She stopped
again. Her wheels were facing directly to the west. Her vehicle was entirely
within the designated left turn lane. The plaintiff testified that this was a
conscious decision on her part because eastbound traffic was steady. She also
testified that no one was in front of her or behind her in the left turn lane.
She felt no pressure to complete the turn. Eastbound traffic flowed past her as
she waited during the green light phase. While waiting, she monitored the
intersection, was looking at the traffic light and was glancing south to
Jellicoe Street to check for pedestrians to ensure that she could make her
planned left turn safely. Although it was late in the day and she was looking
to the west, the sun was not impairing her vision.

[13]        
When the light turned yellow, the plaintiff testified that she became
even more conscious of eastbound vehicles as she knew she would have to
consider oncoming traffic before turning left.

[14]        
She observed a red Sunfire hatchback stop at the stop line in the
eastbound curb lane. Then, a light blue or gray car also stopped at the stop
line in the eastbound centre-line lane. The plaintiff also noticed a truck (a
Toyota Forerunner being driven by the defendant, Mr. Whittey) coming
eastbound towards the intersection in the middle lane.

[15]        
The light turned red.

[16]        
Ms. Yamakami scanned the intersection again to ensure she could make
the left turn safely and that her intended path was clear. She testified that
the truck in the middle lane was far enough away from the stop line for
eastbound traffic to come to a safe and controlled stop at the red light.

[17]        
The plaintiff then proceeded with her left turn to continue south on
Jellicoe Street. As her vehicle straddled the middle lane for eastbound travel
on S.E. Marine Drive, she was “T-boned” by the defendant who, she testified,
ran the red light at roughly the speed limit. She did not see the defendant
make a significant or strong effort to brake before the impact. The front of
the defendant’s Forerunner struck the plaintiff’s passenger door at a right
angle. The force of the impact lifted the passenger side wheels of the
plaintiff’s car off the ground and spun her vehicle clockwise. It came to rest
in the eastbound curb lane, facing west. As a result of the collision, the
damage done to the plaintiff’s vehicle would have cost $8,850.00 to repair. It
was written off by the Insurance Corporation of British Columbia (ICBC).

[18]        
Ms. Yamakami testified that she was shocked in the split second
before and after the accident because the light had turned red, two other
eastbound cars had stopped and defendant had enough time to bring his vehicle
to a safe and controlled stop.

[19]        
The plaintiff was cross examined on a sketch she prepared at an ICBC
office after the collision. The sketch did not show the dedicated left turn
lane for westbound travel. It also did not depict the raised, grass medians
that divide the east and westbound lanes on both sides of the intersection.
Further, the sketch suggests that the defendant’s vehicle was very close to the
intersection well before the plaintiff made her left turn onto Jellicoe Street.
The plaintiff testified that the diagram was not as comprehensive or accurate
as she would have liked and that the defendant was not that close to the
intersection when the light turned red.

[20]        
In cross examination, she testified that the defendant was about 35
metres away from the intersection when the light turned red and would have been
able to come to a safe stop. She initially testified on her examination for
discovery that the defendant was about 10 metres away from the intersection
when she commenced her left turn. Later in her examination for discovery,
indeed almost immediately after, she revised that estimate to 20 metres away
from the intersection.

[21]        
She explained at trial that while she was able to accurately judge
distances by reference to visual landmarks, her ability to accurately quantify
or assign numeric values to distances was not her strength. She testified that
she was uncomfortable with the estimates she had given during her examination
for discovery and went back to the intersection and paced off the distance to
get a more accurate measurement of how far the defendant was away from the
intersection when the light turned red.

[22]        
The plaintiff denied that her memory of the accident was impaired or
significantly compromised as a result of head injuries she sustained in the collision.
She testified that she has, however, suffered impairment of her ability to
memorize or learn new information. She testified that she was "very
certain" that the light was red when she turned left.

[23]        
The plaintiff was also cross examined on a medical report prepared by Dr. Feldman
that was attached to an affidavit sworn by her on July 19, 2010. The plaintiff
was asked to account for the fact that in Dr. Feldman’s recitation of the
events underlying the accident, he makes no mention of the fact that the
plaintiff told him the defendant ran a red light. The plaintiff testified that
she told Dr. Feldman how the accident occurred, including the fact that
the defendant ran a red light, but suggested that Dr. Feldman was not
interested in how the accident occurred, but in how the accident impacted on
her well-being.

(b)  The Examination for Discovery of Walter Whittey

[24]        
Mr. Whittey testified on his examination for discovery that at the
time of the accident he was traveling eastbound on S.E. Marine Drive on route
to a car dealership in New Westminster. As noted above, he testified that he
was about 10 feet from the intersection when the light changed to yellow. He
did not see the plaintiff’s vehicle at all until, “all of a sudden she appeared
right in front of me."  The following excerpt from the defendant’s
examination for discovery captures the essence of his evidence on this point:

Q  And you were going to stop for
the yellow light?

A  Was I going to stop for the
yellow light? That’s a good question, because there was nothing in front of me,
the red — amber light was there, and I had no other choice but to go through.

Q  And why was that?

A  Because I was right up on the–
on the light doing 40 mile — 40 kilometres.

Q  Okay. So you’re saying that when
you saw the light turn from green to yellow, you did not think you could stop
safely before the stop sign?

A  Well, I had no thought at that
time. There was nothing in front of me and I’m going right through. But she
dashed in front of me. She tried to get ahead of me.

Q  Right.

A  Why she didn’t wait ‘till I went
through, I don’t know.

[25]        
Later in the examination for discovery, when asked to account for why he
did not see the plaintiff’s vehicle until it was already in motion and almost
immediately in front of his own vehicle, Mr. Whittey testified that he was
“not looking over in the other lane to see what’s going on”. He testified that it
was, “not important to me. I’m in my lane.”

[26]        
Mr. Whittey testified that he applied his brakes immediately and
was almost stopped when he hit the plaintiff’s car. He estimated that he was
going 5 km/hr or less at the point of impact.

[27]        
Mr. Whittey also testified that as he approached the intersection,
another eastbound traveling car was in the curb lane about 6 to 10 feet behind
him. Mr. Whittey initially testified that this car, which was traveling at
the same speed he was, stopped at the stop line after the collision. He later
conceded, however, that he was not sure about whether this car was stopped at
the stop line before he entered the intersection. He did not think that it was.

(c) The Evidence of Kevin Fulton and the Traffic Light
Sequencing at the Intersection of S.E. Marine Drive and Jellicoe Street

[28]        
Kevin Fulton was called by the defendants at trial. He has a diploma in
structural engineering technology. At the time of the accident he lived a short
distance from the intersection in question.

[29]        
He testified that at about 4:45 p.m. on the day of the accident he was
standing on the northwest corner of S.E. Marine Drive and Jellicoe Street
facing south. He pressed the pedestrian crosswalk button on a lamp standard
located on the northwest corner of the intersection in order to walk south
across S.E. Marine Drive. He noticed the east and westbound traffic begin to
slow and deduced that the light had turned yellow. As he saw no other
pedestrians or traffic at the top of Jellicoe Street, he was sure that he
activated the light sequence by pressing the pedestrian crosswalk button. He
testified that because he was standing under the traffic lights on the
northwest corner of the intersection, he could not actually see the lights from
his vantage point.

[30]        
Mr. Fulton noticed a car in the eastbound centre-line lane coming
to a stop. He did not see what eastbound traffic was doing in the middle or curb
lanes and agreed that his vision may have been blocked by the car stopping in
the centre-line lane. He was also unable to comment on whether westbound
traffic continued to pass directly in front of him either immediately before or
at the time of the collision.

[31]        
Contrary to the evidence of the plaintiff, Mr. Fulton testified
that the left turn lane for westbound traffic turning onto Jellicoe had at
least two cars in it. The plaintiff’s vehicle, which was first in line, was within
her lane but part of the way into the intersection waiting for the light. The
plaintiff turned left to proceed down Jellicoe when she was struck by an
eastbound vehicle that came through the intersection as she was in her turn. Mr. Fulton
did not see the defendant’s vehicle before the collision. He described the
impact as "big", and was worried about the people involved.

[32]        
Mr. Fulton testified that there was a significant delay, which he
estimated as being 2 to 3 seconds, between the impact and the “Walk” signal for
southbound pedestrians. He agreed, in cross-examination, that he was not
absolutely sure about the length of delay between the impact and walk signal,
but remembers clearly that he had to wait "quite a while" for the
walk signal to come on. He acknowledged that he wanted the light to change as
quickly as possible so he could get over to offer his assistance. He also
acknowledged understanding that the delay may have seemed longer than it
actually was given what he had observed and his heightened concerns about the
welfare of the people involved in the accident.

[33]        
In cross-examination, Mr. Fulton rejected a suggestion that the
delay could have been 1.5 to 2.5 seconds. He testified that the delay was 2 to
3 seconds, and maybe even 4 seconds, but definitely not 1.5 seconds. He acknowledged
that the delay could have been 2.5 seconds, and expressed some concern about
the precision being required of him. He reasserted, however, that the delay
could not be 1.5 seconds which he described as, “pushing it too far”.

[34]        
In re-examination, Mr. Fulton clarified that, at the time of the
accident, he was sure that the vehicle in the eastbound centre-line lane was
stopped.

[35]        
The evidence of Mr. Fulton takes on additional potential
significance as a consequence of a letter, entered at trial on the agreement of
the parties, from the City of Vancouver. That letter sets out the light
sequence at the intersection of S.E. Marine Drive and Jellicoe Street at the
time of the accident. The report indicates that 7 seconds after activation of
the call button for pedestrians seeking to cross S.E. Marine Drive, the traffic
signal governing east and westbound traffic on S.E. Marine Drive turns amber
and remains amber for 3.5 seconds. The traffic lights (and pedestrian crosswalk
signals) then turn red. The red light (and “Don’t Walk” signal) remain in
effect for all directions for a further 2.5 seconds. In the result, 6 seconds
pass between the yellow light for east and westbound traffic and the “Walk”
signal for pedestrians walking south across S.E. Marine Drive.

C. Legal Framework

[36]        
The provisions of the MVA that were relied upon by the parties
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….

Red light

129 (1) Subject to subsection (2), when a red light
alone is exhibited at an intersection by a traffic control signal, the driver
of a vehicle approaching the intersection and facing the red 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, and subject to the provisions of subsection (3), must not cause
the vehicle to proceed until a traffic control signal instructs the driver that
he or she is permitted to do so.

…

Careless driving prohibited

144 (1) A person must not drive a motor vehicle on a
highway

(a) without due care and attention,

(b) without reasonable
consideration for other persons using the highway, or

(c) at a speed that is excessive
relative to the road, traffic, visibility or weather conditions.

…

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.

[37]        
A determination that one party has the statutory right of way is
informative. It does not, however, determine liability in an accident. Drivers
with the statutory right of way must still exercise caution to avoid accidents
where possible: Walker v. Brownlee, [1952] 2 D.L.R. 450, per Cartwright,
J. (at paras. 46-47).

[38]        
In Henry v. Bennett, 2011 BCSC 1254, Ballance J. addressed
the duties placed on left turning drivers and affirmed that they have an
obligation to act reasonably in all the circumstances, and are not “entitled to
proceed blindly on the assumption that oncoming drivers will obey the rules of
the road” (at para 72). However, a left turning driver, acting
reasonably, is entitled to rely on the assumption that the approaching driver
will obey the rules of the road and will not proceed through the intersection
deep into an amber light, or on a red light, unless there is reason to know
otherwise.

[39]        
This is position is grounded in the following passage from Kokkinis
v. Hall (1996), 19 B.C.L.R. (3d) 273, 71 B.C.A.C. 97:

To say that the [left turning driver] can be found at fault
because she relied on the assumption that the [oncoming driver] would stop, and
because she checked cross traffic, would in my view subvert the duty placed on
the [oncoming driver] to bring his vehicle to a safe stop at the amber light as
other traffic did.

Putting a burden on the left turning
driver to wait until he or she sees that all approaching drivers
have stopped would, in my view, bring traffic to a standstill. We should
not endorse such a result (emphasis in original; per Newbury J.A. at para.10).

D. Position of the Parties

(a) The Plaintiff

[40]        
Counsel for the plaintiff invites me to conclude that Ms. Yamakami
drove in an alert, aware and safe manner, with attention to the traffic signal,
to oncoming eastbound vehicular traffic and to whether any pedestrian traffic
crossing Jellicoe Street, at its southerly intersection with S.E. Marine Drive,
could impair her ability to safely complete the left turn. He invites me to
find the plaintiff was a responsive, careful and credible witness who gave
richly detailed testimony about the events leading up to the collision. While
the plaintiff acknowledged that she was not adept at quantifying distances, he
invites me to conclude that this was not an effort on Ms. Yamakami’s part
to tailor her evidence in her own self-interest.

[41]        
He suggests that she was unshaken in her qualitative assessment that the
defendant had sufficient time and distance to honour the light change and
safely stop in a controlled fashion as other eastbound cars had done.

[42]        
He argues that the plaintiff’s testimony that the light had changed to
red before she commenced her turn was confirmed by the evidence of Mr. Fulton
that at least one eastbound vehicle had come to a full stop in the centre-line
lane before the collision.

[43]        
Counsel for the plaintiff argues that the evidence of Mr. Whittey
taken on his examination for discovery and admitted at trial is unreliable and,
in any event, demonstrates his complete lack of attention to what was happening
in front of him as he approached the intersection.

[44]        
With respect to the evidence of Mr. Fulton, counsel for the
plaintiff argues that the assessment of this witness as to the length of time
that passed between the collision and the “Walk” signal was likely the product
of time seeming to pass more slowly for him in the immediate aftermath of the
collision as he was upset and highly motivated to rush across the road to
render aid to the drivers involved. In any event, counsel for the plaintiff
argues that Mr. Fulton’s evidence must be assessed in light of his clear
testimony that at least one vehicle in the eastbound centre-line lane had
already come to a stop when the collision occurred. Counsel for the plaintiff
suggests that a 1.5 or 2 second passage of time between the collision and the
“Walk” signal is entirely consistent with the plaintiff’s evidence that the
light had turned red when she proceeded. It will be recalled, in this regard,
that when the light turns red at this intersection, it stays red in all
directions of travel for 2.5 seconds. Even accepting a 2.5 second gap between
the collision and “Walk” signal, the plaintiff contends that the defendant
would, at minimum, have entered the intersection very deep into the amber
light.

[45]        
Relying on Kokkinis, and Uyeyama (Guardian ad litem of) v.
Wittenberg, [1985] B.C.J. No. 1883 (C.A.), counsel for the
plaintiff argues that she was entitled, in all the circumstances, to reasonably
assume that the defendant would stop before entering the intersection.

(b) The Defendant

[46]        
Counsel for the defendant invites me to accept the evidence of Mr. Whittey
that the light turned yellow when he was about 10 feet away from the
intersection and at a point in time when he could not bring his vehicle to a
safe stop. He contends that the plaintiff, by virtue of her negligent failure
to keep a proper lookout, did not recognize that the defendant’s vehicle was so
close to the intersection when the light turned yellow that it constituted an
immediate hazard requiring her to yield the right of way to him. He submits
that the plaintiff’s sense of timing and distance is suspect as evidenced by
the fact that she revised upward, on two occasions, her estimate of the
distance the defendant was away from the stop line when the light turned red.

[47]        
Most importantly, counsel for the defendant argues that the evidence of Mr. Whittey
is supported by Mr. Fulton’s testimony and the agreed upon evidence
respecting the light sequencing at this intersection. Specifically, he argues
that the plaintiff would have travelled about 7 metres from her stopped
position in the left turn lane of the intersection to the point of impact and
that this Court should take judicial notice of the fact that this would
probably take about 2 seconds. He reminds me of Mr. Fulton’s evidence that
there was a significant delay between the collision and the “Walk” signal – a
delay of up to 4 seconds. He reasons from here that the plaintiff likely began
her turn about 6 seconds before the pedestrian signal changed to “Walk” for Mr. Fulton.
Consistent with Mr. Whittey’s evidence, he points out that if this
timeline is accepted, it means that the plaintiff must have started her turn
immediately after the light turned yellow.

[48]        
Counsel for the defendant suggests that the plaintiff was likely under a
mistaken belief that the light had turned red because she saw one or two other
eastbound vehicles slow down or come towards a stop at the intersection.

[49]        
Even if this Court were to find that the defendant ran the light just as
it changed to red, counsel for the defendant argues that the plaintiff, had she
exercised appropriate caution, would have realized that the defendant was not
stopping and would have been able to delay her turn, thus avoiding the
collision. As a result, the defendant argues in the alternative that the
plaintiff was contributorily negligent.

E. Discussion and Factual Findings

[50]        
I found the plaintiff to be an intelligent, careful, conscientious and
reliable witness. Significantly, her evidence was confirmed, and on material
points, by the evidence as a whole. For example, her evidence that the light
turned red before she turned left is supported by the fact that other eastbound
vehicles had come to a stop in both the curb and centre-line lanes. That at
least one eastbound vehicle was stopped at the intersection in the centre-line
lane before the collision occurred is confirmed by Mr. Fulton.

[51]        
Neither her credibility nor reliability as a witness was significantly
undermined in cross-examination. While the plaintiff clearly has difficulty
quantifying distances, I do not attribute this to any effort on her part to
provide evidence that would frame her action in its most favourable light. I
accept that the plaintiff is a person who must verify distances by reference to
visual landmarks. She did so in this case and I have no hesitation in accepting
her qualitative assessment that Mr. Whittey had ample opportunity to bring
his vehicle to a stop, as other eastbound vehicles had managed to do, before
reaching the intersection.

[52]        
Similarly, I find that the ICBC sketch prepared by the plaintiff did not
undermine her credibility or the reliability of the testimony she provided at
trial. The sketch was the product of a brief meeting with an ICBC
representative that covered a broad range of issues including an overview of
the accident, damage done to the plaintiff’s vehicle and treatment of her
injuries. The meeting only lasted about 30 minutes. The sketch prepared by the
plaintiff was just that – a very rough outline designed to convey to the ICBC
representative a broad overview of how and where the accident occurred. It was
not designed to be more than that. Specifically, I am satisfied that it was
neither intended to be a detailed reconstruction of the accident nor designed
to relate precise information about the timing of events leading up to the
collision.

[53]        
Finally, it is unremarkable that Dr. Feldman made no specific note
of the plaintiff’s contention that the defendant ran a red light under the
“History” subheading of his medical report. For obvious reasons, Dr. Feldman
would be concerned with the impact of the accident on his patient, not on
precisely how the accident occurred or who was at fault.

[54]        
At the same time, I can give virtually no weight to the evidence of Mr. Whittey
given on his examination for discovery. His version of events is not only
implausible; it is inconsistent with the objectively verifiable circumstances
surrounding this accident. That I am unable to credit Mr. Whittey’s
version of events is the result of the cumulative force of a number of
considerations. I emphasize that no one consideration would necessarily be
significant, let alone determinative, standing alone. Having said that, I have
come to this conclusion having collectively considered the following aspects of
Mr. Whittey’s testimony:

1.              
he recalls the accident occurring at 1:30 p.m. when, on all the other
evidence, it occurred much later in the day;

2.              
he was unable to recall the day of the week the accident occurred;

3.              
he was unable to recall that the accident occurred at the intersection
of S.E. Marine Drive and Jellicoe Street;

4.              
he incorrectly testified that there were only two eastbound lanes of
travel;

5.              
he incorrectly positioned himself in the eastbound centre-line lane as
he approached the intersection;

6.              
he incorrectly testified that there was nothing separating the east and
westbound lanes of travel on Marine Drive when there is, in fact, a raised,
grass median separating the lanes as one approaches the intersection;

7.              
he testified that there were no cars in front of him and he did not see
the plaintiff’s vehicle at all until she pulled into his lane of travel. No
explanation is provided by the defendant as to why he failed to observe both
the plaintiff’s vehicle in the westbound turn lane and the eastbound
vehicle in the centre-line lane that the plaintiff and Mr. Fulton agree
was stopped at the stop line as he approached the intersection;

8.              
the defendant’s version that he was 10 feet from the intersection when
the light changed to amber is inconsistent with the evidence of the plaintiff
and Mr. Fulton, which I accept, that an eastbound vehicle had already come
to a stop in the centre-line lane before the collision occurred;

9.              
he testified that he applied his brakes immediately and was going 5 km/hr
or less at the point of impact. This evidence is wholly unreliable. As a result
of the impact, the plaintiff’s vehicle was written off by ICBC. Mr. Fulton
described the “big” impact that occurred in the intersection and was very
concerned about the welfare of the two drivers. By the defendant’s own
admission on his examination for discovery, he was “worked up” immediately
after the collision about whether the plaintiff was hurt. It is difficult to
reconcile this body of evidence with the defendant’s testimony that he was
almost stopped at the point of impact;

10.          
he testified that another eastbound vehicle, traveling his speed, was
about 6 to 10 feet behind him in the curb lane as they approached the
intersection, but that this vehicle managed to come to a stop at the stop line
after the collision. It is difficult to conceptualize how, if the defendant was
10 feet away from the stop line when the light turned yellow and unable to
stop, a vehicle traveling at the same speed such a short distance behind him
was able to come to a stop at the stop line. In any event, the defendant
admitted that he did not know for sure whether the eastbound vehicle in the
curb lane was stopped at the stop line before he entered the
intersection. When asked whether he was positive that this driver did not stop
at the stop line before he entered the intersection, the defendant
replied, “I would say…I don’t think so. I’m not sure” ;

11.          
he was unable to recall the make or colour of the plaintiff’s vehicle;

12.          
he candidly acknowledged that he did not see the plaintiff’s vehicle
because he was, “not looking over in the other lane to see what’s going on” because
it was "not important to him";

13.          
finally, the defendant appeared confused during the examination for
discovery on basic points and had difficulty recalling his own address.

[55]        
Some of these lapses may be attributable to nervousness on the
examination for discovery, or relate to details a witness might not reasonably
be expected to remember so far removed from the event. I note that the
plaintiff also had difficulty recalling some of the details of the accident. But
too many other matters, central to the unfolding of the narrative, cannot be
explained by reference to these kinds of considerations. The reality is that
the defendant’s version of events leaves unexplained his failure to see and
take account of the plaintiff’s vehicle and the fact that at least one other
eastbound vehicle (and possibly two) were stopped or stopping at the
intersection when he drove through it.

[56]        
I recognize that Mr. Whittey’s evidence does not stand in isolation
and that I must consider it together with the evidence of Mr. Fulton and
the agreed upon facts concerning the light sequencing at this intersection
before assessing its ultimate reliability.

[57]        
As noted above, counsel for the defendant relies heavily on the
testimony of Mr. Fulton, taken in combination with light sequencing evidence,
to support the defendant’s version of events that he entered the intersection
just as the light changed to yellow.

[58]        
Mr. Fulton is an independent witness who was doing his best to
recall and relate to the Court the somewhat traumatic events he witnessed. I
accept his evidence that an eastbound vehicle in the centre-line lane was not
merely coming to a stop when the collision occurred, but was, in fact, stopped
at the stop line. I note that this accords with the evidence of the plaintiff. I
also accept that Mr. Fulton’s ability to see into the eastbound curb lane
was likely obstructed by the vehicle stopped in the centre-line lane – a
possibility he acknowledged in cross-examination.

[59]        
Mr. Fulton testified that the volume of traffic proceeding in both
directions along S.E. Marine Drive was significant at the time of the
collision. Although he was able to say with certainty that the eastbound
vehicle in the centre-line lane was stopped when the collision happened, he was
unable to recall anything about the flow of westbound traffic on S.E. Marine
Drive at this point in time. When he made his observations, Mr. Fulton was
standing immediately adjacent to the westbound lanes and looking across them
waiting for his walk signal. It is a reasonable inference, and one I am
prepared to draw, that Mr. Fulton recalled nothing about vehicular travel
in the westbound lanes when the collision occurred because it, too, had stopped
with the changing of the light.

[60]        
While Mr. Fulton was doing his best to estimate the time that
passed between the collision and the “Walk” signal (between 2 and 3 seconds),
given what he witnessed and his anxious desire to render aid, I find it more
likely than not that he overestimated the time that elapsed between these two
events. On all the evidence, including Mr. Fulton’s own evidence that one
eastbound vehicle had come to a stop at the stop line before the collision
occurred, I find that the time that actually elapsed was, at maximum, at the
very bottom end of the estimate the witness provided.

[61]        
I do not accept counsel for the defendant’s position that Mr. Fulton’s
evidence, taken together with the other evidence I do accept, supports a
conclusion that something in the order of 4 seconds elapsed between the
collision and the changing of the signal. His best estimate was that the
interval was 2-3 seconds. Nor do I accept the defendant’s position that this Court
should take judicial notice of the fact that it would take the plaintiff as
much as 2 seconds to travel from her stopped position in the intersection to
the point of impact. In the result, I do not accept the defendant’s position
that the evidence supports a conclusion that the plaintiff’s version of events
is not only unlikely, but impossible, and that she must have turned left as
soon as the light changed to yellow.

[62]        
Against the background of this discussion, I make the following factual
findings:

1.              
the plaintiff began her left turn immediately after the light for east
and westbound traffic changed to red;

2.              
two other vehicles traveling east had come to a stop at the intersection
in the curb and centre-line lanes;

3.              
the plaintiff was cognizant of, and attentive to, the considerations one
would expect to be in the mind of a reasonably prudent driver including the
colour of the traffic light, the location and speed of oncoming traffic, the
location of Mr. Whittey’s vehicle at various points in time, including
when the light turned red, and the potential for there to be pedestrians
walking to the south in her intended path of travel;

4.              
Mr. Whittey had ample time to stop before the intersection and do
so in safety, just as two other eastbound vehicles had done, when the light
changed to yellow;

5.              
the plaintiff concluded, and was entitled in fact and in law to
conclude, that the defendant’s vehicle did not present a hazard, that he had
plenty of time stop (as other vehicles had done) and that it was safe for her
to proceed with her left turn;

6.              
the defendant was not being attentive to the factors a reasonably
prudent driver would have been attentive to before the collision, including the
presence of the plaintiff’s vehicle in the westbound left turn lane immediately
in front of him or the fact  that a car had already come to a stop ahead of him
in the eastbound centre-line lane. This conclusion is supported by the
defendant’s own admission that he was not looking at the left turn lane for
westbound traffic as he approached the intersection because it was not
important for him to do so;

7.              
Mr. Whittey entered the intersection after the light turned red;

8.              
the plaintiff could not possibly have taken evasive action at that point
to avoid the collision.

[63]        
Applying these facts to the applicable law, I am satisfied that this
accident was caused solely by the negligent driving of the defendant, Mr. Whittey.
As noted above, the defendant, Accent Leasing & Sales Ltd., acknowledges its
liability for Mr. Whittey’s conduct.

[64]        
The plaintiff is entitled to her costs. If the parties are unable to
agree on costs within 60 days of the release of these Reasons for Judgment,
they should reserve a date through Supreme Court Scheduling to speak to the
matter.

“Fitch J.”