IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120222

Docket: M110677

Registry:
Vancouver

Between:

Su Xiang Hou

Plaintiff

And

Lloyd McMath

Defendant

Before:
The Honourable Madam Justice Kloegman

Reasons for Judgment

[1]            
This is a personal injury claim brought by the plaintiff for damages she
allegedly suffered as a result of a motor vehicle accident on April 17, 2010.

[2]            
Both parties desired to sever the issue of liability from damages and
proceed on the question of liability alone. However, due to the defendant’s
position that this accident caused no damage or compensable injury to the
plaintiff, I refused to make an order severing liability from quantum. It is
basic tort law that without damages there can be no finding of negligence or
liability. I suggested instead that we proceed to hear viva voce
evidence on the sole issue of “fault” for the accident; that is, who breached
the standard of care of the reasonable, prudent driver in the circumstances?

[3]            
The answer to this question turns on the colour of the traffic light
when the plaintiff and the defendant each entered the intersection of 53rd
Avenue and 204th Street in Langley, British Columbia, at around noon on April
17, 2010.

[4]            
The subject intersection consists of four legs. To the south is a
two-lane, two-way local road with parking on both sides and ending at a dead
end. To the north is a two-lane, two-way collector road with parking on both
sides. To the east is a four-lane, two-way arterial roadway with no parking on
either side. To the west is a two-lane, two-way arterial road with parking on
both sides. 53rd Avenue runs in an east/westerly direction, and 204th Street
runs in a north/southerly direction.

[5]            
There are traffic lights facing 204th Street in both directions and
traffic lights facing 53rd Avenue in both directions. At the corners of the
intersection, there are pedestrian crossings with accompanying pushbutton pedestrian
signals. There are vehicle detection loops on the southern leg of the
intersection, just behind the stop line in the northbound lane.

[6]            
At the time of the accident, the plaintiff was travelling northbound on
204th Street in a 2004 Honda Civic. The defendant was travelling eastbound on
53rd Avenue in a Toyota SUV. They both agree that the collision took place at a
point on the scale map that appears to be south of the center of the
intersection. The right front corner of the defendant’s vehicle collided with
the left front corner of the plaintiff’s vehicle.

[7]            
The defendant and the plaintiff also agree that there were two bushes (or
trees), and a mailbox on the southwest corner of the intersection that
partially obstructed their view. The plaintiff had trouble seeing down the
eastbound lane of 53rd Avenue, and the defendant had trouble seeing down the
northbound lane of 204th Street.

[8]            
Both parties agreed that there was no other traffic in the area.

[9]            
The parties diverge in their evidence regarding the colour of the
traffic lights facing them when they entered the intersection. They both say
that the light facing them was green, which is impossible, short of a traffic
light malfunction. Mr. Vlieg, an engineer with the Parks and Engineering
Department of Langley, testified that there were no complaints of malfunction
that day and he is not aware of any malfunction in the traffic lights at that
intersection. Therefore, either the plaintiff or the defendant is mistaken in
their belief that they entered the intersection on a green light.

[10]        
The plaintiff is a 47-year-old woman who at the time was the holder of a
valid B.C. learner’s driver licence. Her husband, holder of a valid Class 5
B.C. driver’s licence, was a passenger in the front seat. He was training her
to drive and watching for hazards in accordance with his duty as a driver
accompanying a learner.

[11]        
The plaintiff testified that on the day of the accident, she and her
husband had driven south on 204th Street looking for a Vietnamese restaurant at
which to eat lunch before going shopping at Costco. They had not found the
restaurant by the time they reached the dead end, so they turned the car around
to head north on 204th Street back to Costco. They had decided that if they
found the restaurant on the way they would stop, otherwise they would simply
proceed to Costco.

[12]        
The plaintiff testified that after she had turned around at the end of
204th Street, she drove slowly north toward the intersection. The traffic light
facing her was red. She stopped behind the white stop line and waited for the
light to turn green. She estimated that she waited about 8-10 seconds and
then the red light changed to green. She did a shoulder check from left to
right, then back to center. The intersection was safe. She started to move her
vehicle forward, slowly.

[13]        
The plaintiff testified that while she was checking to her left and
right, her husband said, “green light is on, you can go.” She moved slowly
forward, then all of a sudden, the defendant came from her left and collided
into her vehicle. At the time of collision, she was looking straight ahead.

[14]        
The plaintiff was asked if she saw any pedestrians before she entered
the intersection. She said there were no pedestrians crossing the intersection
or in the area of the intersection. However, she noticed two pedestrians
further north on the east side of 204th Street while she was waiting at the
stop line for the green light, and when she started checking for traffic. The
plaintiff estimated that 3-5 seconds had passed from when the light turned
green to when the collision took place. She said that at the time of impact,
she was going slowly, about 20 kilometers per hour.

[15]        
The plaintiff denied that she was distracted by anything. She knew that
her husband expected her to concentrate and check the road conditions and not to
do anything else.

[16]        
The plaintiff’s husband testified and corroborated the plaintiff’s
evidence in all respects, except that he did not agree they were still looking
for the restaurant at the time of the accident, or discussing going to Costco.
He also admitted that he was aware that they could not see down 53rd Avenue
past a certain point because of the trees and mailbox. He did not tell the
plaintiff to pull further forward, but he said she entered the intersection
slowly. The light was green and there were no cars at the stop line of 53rd
Avenue.

[17]        
The defendant testified that just before the accident he was travelling
straight down 53rd Avenue, eastbound, from his home about three blocks away. He
had driven this route hundreds of times before. He was going to pick up his
daughter from a friend’s house.

[18]        
He stopped at the intersection of 53rd Avenue and 203rd Street because
the light was red. A car went south through that intersection. When the light
turned green he proceeded east toward 204th Street. He knew that the south side
of 204th Street led to a dead end. He also knew that if a car came up to the
intersection on 204th Street, the traffic lights would change. He said the
traffic light on 53rd and 204th Street was solid green as he drove toward it.
He knew that if there was no traffic travelling north or south on 204th Street,
the light on 53rd Avenue would not change from green.

[19]        
The defendant testified that as he approached 204th Street, his ability to
see traffic on the south side of the intersection was blocked by two bushes,
and that he could not see much at the stop line on 204th Street.

[20]        
At trial, the defendant said he was travelling at the speed limit of
50 kilometers per hour and that he first saw the green light on 53rd
Avenue and 204th Street when he was about 100 meters away. He said that
the light stayed green from when he first saw it to when he entered the
intersection. He calculated, at the request of plaintiff’s counsel, that it
took him 13.8 seconds to travel at a steady rate of 50 kilometers per
hour over the 100 meters, from when he first saw the green light to when
he entered the intersection. Both counsel checked the defendant’s calculations
and are in agreement that it takes 7.2 seconds to travel 100 meters
at 50 kilometers per hour, not 13.8 seconds.

[21]        
The defendant further testified that before he entered the intersection,
he looked to the right and left and did not see any cars or pedestrians. When
he was close to midway through the intersection he saw a white car out of the
corner of his eye, to his right. He swerved to the left but was unable to avoid
hitting it.

[22]        
One of the pedestrians seen by the plaintiff, a Mr. Hannam, testified
that he was at the northeast corner of the intersection with his roommate when
he observed the collision. Unfortunately, he could not say what the colour of either
traffic light was at the time of impact. He saw the plaintiff’s vehicle pull up
to the stop line on 204th Street, stop and remain stationary for a time.
He also saw the defendant’s vehicle approaching and anticipated the collision.

[23]        
The other piece of relevant evidence came from Mr. Vlieg, who explained
that when facing northbound at that intersection, approximately
6.4 seconds will pass from the time a vehicle triggers the loop, until the
light on 204th Street changes from red to green. He derived this figure by
adding one second for the sensor in the loop to communicate with the computer,
plus 3.5 seconds for the opposing light on 53rd Avenue to remain yellow,
plus 1.9 seconds for all the lights to be red before the light on 204th
Street turns green.

[24]        
I found all the witnesses to be credible and forthright. Defendant’s
counsel submitted that the plaintiff and her husband were argumentative, but I
did not find that to be the case. They were testifying through an interpreter which
can be a frustrating process.

[25]        
The defendant submitted that the plaintiff and her husband were
inconsistent in their testimony with each other, and with the statement made by
the plaintiff to an ICBC adjuster three days after the accident. The defendant
submitted that the plaintiff’s evidence was therefore not reliable and did not
meet the onus upon her to establish, on a balance of probabilities, that she
entered the intersection on a green light and the defendant entered on a red
light.

[26]        
I agree with defendant’s counsel that the plaintiff bears the onus of
proof, but I found both her and her husband to be consistent throughout their
testimony, despite rigorous cross-examination. The defendant, on the other
hand, did admit to guessing at how fast the plaintiff was going when she
entered the intersection; he did not know.

[27]        
When all witnesses appear credible, and it is difficult to choose
between two possible scenarios, it is not enough to say the plaintiff has not
made out her case. As the trial judge, I must go on to consider from an
objective basis, which scenario is more in harmony with the preponderance of
probabilities: Faryna v. Chorny (1951), [1952] 2 D.L.R. 354, 4 W.W.R.
(N.S.) 171. See also Gariepy v. Ritchie, [1993] B.C.J. No. 2304, 1993
CarswellBC 2058 (S.C.).

[28]        
I agree with plaintiff’s counsel that from a common sense point of view,
it is more likely that the plaintiff was paying close attention to the traffic
light and was very aware of its colour when she entered the intersection. She
was learning to drive and knew she had to focus on the driving conditions. Her
husband was beside her, coaching. He too was focused on the driving conditions.
They were in an area unfamiliar to them. They had stopped at the light because
it was red. They did not know at the time that they were triggering the light
change or how long it would take to change. They were aware of pedestrians on
the side of the road. The plaintiff checked side to side before slowly entering
the intersection. The plaintiff’s husband specifically noted that the light was
green and told the plaintiff “green light is on, you can go.”

[29]        
The defendant, on the other hand, was driving his usual route. He knew
that the lights would stay green on 53rd Avenue, unless triggered to change by
a car at the intersection. He did not see any cars. In fact, he did not see the
pedestrians either. He saw the light was green from a distance. He entered the
intersection from a continuous speed of 50 kilometers per hour. I find
that he probably did not expect the light to change and did not notice it had
changed.

[30]        
I am somewhat supported in this finding by the calculations of the
defendant and Mr. Vlieg. If the defendant had first seen the light was green at
the intersection from 100 meters away, as he testified, then it took him
7.2 seconds to travel from that point to the point of impact.

[31]        
The plaintiff testified that she was at the stop line 8-10 seconds
before her light turned green. Therefore she must have been at the stop line for
about 1-3 seconds when the defendant first saw his green light. On the
evidence of Mr. Vlieg, once the plaintiff had  triggered the loop, the
defendant’s light would have turned yellow for 3.5 seconds and then turned to
red.

[32]        
Therefore, although the defendant saw that the light was green from
100 meters away, about 5-6 seconds later his light would have turned
red when he had not yet reached the intersection. Thus he entered the intersection
on a red light.

[33]        
The mathematical calculations are not conclusive because they rely on
the plaintiff’s estimate of how long she was at the light. However, the
calculations do show that if one accepts the evidence of both the plaintiff and
the defendant, even allowing for a margin of error, it was more likely than not
that the light was red when the defendant entered the intersection.

[34]        
I conclude, from all of the evidence and on a balance of probabilities,
that it was more likely than not that the defendant entered the intersection on
a red light. Therefore, the defendant is 100% at fault for the motor vehicle
accident.

“Kloegman
J.”