IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120509

Docket: M095861

Registry: Vancouver

Between:

Jamie Kimber

Plaintiff

And:

Nyuk Yeut Wong and Jyh Sang Tong

also known as Jackson Tong

Defendants

Before: The Honourable Mr. Justice
Pearlman

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff, Jamie Kimber, claims
damages for injuries he sustained on June 14, 2008, when his bicycle collided
with a motor vehicle driven by the defendant Nyuk Yeut Wong and owned by her
husband, the defendant Jackson Tong.

[2]            
The plaintiff was
attempting to ride through the intersection of East 49^th Avenue and Ross Street when he was struck by the defendant’s left-turning vehicle.

[3]            
The injuries for
which the plaintiff claims damages include a fractured pubic bone, fractured
left wrist, sprained back, broken teeth and multiple lacerations, abrasions and
soft tissue injuries.  Liability and quantum have been severed.  These Reasons
for Judgment deal only with liability.

The
Facts

[4]            
The plaintiff is a
44-year-old construction contractor and is an experienced cyclist.  For about
12 years prior to the accident, he trained for and competed in triathlon races.

[5]            
Mr. Kimber was
travelling eastbound on East 49^th Avenue on his triathlon racing
bicycle when the accident occurred at approximately 4:00 p.m. at the
intersection of East 49^th Avenue and Ross Street.

[6]            
East 49^th
Avenue and Ross Street form a T-intersection with Ross Street intersecting the south side of East 49^th Avenue.  Ross Street has one northbound lane and one southbound lane.  East 49^th Avenue at Ross Street has one eastbound lane and one westbound lane. 
There is no traffic light or stop sign controlling the movement of traffic
travelling east or west through the intersection.  There is a stop sign that controls
northbound traffic at Ross Street.  The speed limit is 50 kilometres per hour.

[7]            
The accident scene
was measured by the defendant’s accident reconstruction expert, Mr. Kurt
Ising.  The eastbound lane on East 49^th Avenue is 6.2 metres wide. 
There were vehicles parked along the eastbound curb.  Mr. Ising testified that
parked vehicles generally use 2 metres of that space, leaving 4.2 metres, or
13.75 feet, for eastbound vehicles and bicycles to travel.

[8]            
As he approached
the intersection, the plaintiff was riding about two feet left of the vehicles
parked along the curb and about three to four feet to the right of motor
vehicles travelling in the eastbound lane. 

[9]            
It was a sunny,
dry Saturday afternoon.  Mr. Kimber, who lives on East 49^th, was
nearing the end of a training ride over a route he knew well.  As was typical
on Saturday afternoons, traffic on East 49^th Avenue was heavy.

[10]        
Mr. Kimber
testified that he was travelling at about 28 to 30 kilometres per hour as he
approached the intersection and that his last memory before the collision was
of getting to within one or two car lengths of the intersection.

[11]        
On June 24, 2008,
the plaintiff gave a statement to the defendant’s insurer in which he said that
he was going at an easy speed of 35 kilometres per hour downhill at the time of
the accident.  At trial, Mr. Kimber testified he gave that statement about
three days after he was released from the hospital at a time when he was in
pain and on medication.  The plaintiff said that he subsequently returned to
the scene of the accident and determined that he was riding uphill as he
approached the intersection.

[12]        
Mr. Kimber
testified that approaching the Ross Street intersection from the east, East 49^th Avenue changes from a moderate downhill gradient to an uphill grade
beginning one to two blocks west of the intersection.  Mr. Ising reported that
East 49^th Avenue slopes upward to the east at a grade of 2.2
percent. 

[13]        
I accept the
plaintiff’s evidence that he was riding uphill at the time of the accident and
that in the final cool-down phase of his ride he would not be riding more than
30 kilometres per hour on an uphill gradient.  I find that he was travelling
between 28 and 30 kilometres per hour.

[14]        
The plaintiff
followed a strict training regime while he was cycling and was very familiar
with his own performance and that of his machine.  As the plaintiff approached
the intersection of East 49^th Avenue and Ross Street, he passed on
the right side of a number of vehicles.  He did not slow down before entering
the intersection.  Eastbound traffic was heavy.  Cars were moving slowly in
stop-start conditions. 

[15]        
The defendant, Ms.
Wong, was travelling west on East 49^th Avenue in a white 1993 Toyota
Corolla owned by her husband, the defendant Jackson Tong.  She was returning
home from a shopping trip to Metrotown.  Ms. Wong, who lives on East 50^th Avenue, was familiar with the intersection of East 49^th
Avenue and Ross Street.  Ms. Wong stopped at the intersection to make a left
turn onto Ross Street.  She had turned on her left turn signal and waited for
about a minute for traffic in the intersection to clear.  Ms. Wong testified
that traffic was backed up through the intersection in the eastbound lane.

[16]        
A gap opened in
the intersection when Ms. Desiree Cravagna, who was travelling in the eastbound
lane on East 49^th, stopped her Hyundai Accent vehicle about a third of
a car length west of the entrance to the intersection.  Ms. Cravagna waved to
Ms. Wong to make her left turn.

[17]        
Before she began
her left turn, Ms. Wong did look for eastbound traffic attempting to pass Ms. Cravagna’s
vehicle on its right side.  Ms. Wong was aware that cyclists used East 49^th
Avenue and was aware that with backed-up traffic there could be cyclists riding
to the right of the cars in the eastbound lane.  However, from her stopped
position in the westbound lane, Ms. Wong could not see into the eastbound lane
beyond the right pillar of the front windshield of Ms. Cravagna’s Hyundai.  Ms. Wong
also checked for pedestrians crossing Ross Street before commencing her left
turn.

[18]        
Ms. Wong testified
that some time after she began her turn she glanced to her right but did not
see Mr. Kimber.  I find this was no more than a cursory glance made as Ms. Wong
accelerated through the turn.  Ms. Wong either made her glance while her view
was still obscured by the Hyundai windshield, or her glance was so fleeting
that she failed to observe the plaintiff.  According to Mr. Ising, whose
evidence I accept, neither party had a sight-line of the other until they were
clear of the Hyundai stopped at the west side of the intersection.

[19]        
Mr. Ising reported
that if Mr. Kimber was travelling at 28 kilometres per hour, Ms. Wong had her
first sight-line of him when he was about 7.4 to 8.8 metres away from impact,
and as the front of her vehicle crossed the centre line and entered into the
eastbound lane.  That vantage point is illustrated by figure six of Mr. Ising’s
report.

[20]        
Mr. Kimber could
have first seen Ms. Wong’s vehicle when he cleared the Hyundai vehicle to his
left and was between 3.3 and 4.9 metres from the point of impact.  In the
event, neither the plaintiff nor the defendant saw the other before impact.

[21]        
Ms. Wong estimated
her speed as she made the left turn at the point of collision at about 20
kilometres per hour.  According to Mr. Ising, at an average rate of
acceleration, Ms. Wong would have been travelling at between 15 and 19
kilometres per hour when she reached the point of impact 2.7 metres into the
intersection.  Ms. Cravagna testified in her direct examination that Ms. Wong
accelerated at a normal rate of speed.  I find that Ms. Wong’s vehicle was
travelling at between 15 and 20 kilometres per hour when the collision
occurred.

[22]        
The plaintiff’s
bicycle struck the front right side of Ms. Wong’s vehicle.  As a result of the
impact, the plaintiff was thrown into the air before he struck the pavement in
the intersection.

[23]        
As Ms. Wong made
her turn in front of Ms. Cravagna’s vehicle, Ms. Cravagna saw Mr. Kimber pass
the right side of her vehicle and then run into the right side of Ms. Wong’s Toyota.  Ms. Cravagna testified that the plaintiff was travelling quickly and that the
collision occurred seconds after she first saw Mr. Kimber.  According to Ms. Cravagna,
the plaintiff was leaning forward toward his handlebars as he entered the
intersection.

[24]        
Ms. Bobbi-Lee Reid
was the front seat passenger in Ms. Cravagna’s vehicle.  She testified that
traffic on East 49^th Avenue was bumper to bumper.  Ms. Reid
confirmed that Ms. Cravagna had come to a stop at the intersection and allowed
Ms. Wong to begin her left turn when traffic in the intersection had
cleared.  Ms. Reid observed the plaintiff from the corner of her eye travelling
quite fast as he passed Ms. Cravagna’s vehicle and then struck the defendant’s
vehicle.

[25]        
Ms. Opneet Maghera
was driving east on East 49^th Avenue in her grey Honda Civic.  She
also testified that traffic in the eastbound lane was heavy.  She stopped
behind Ms. Cravagna’s Hyundai at Ross Street with traffic backed up behind her.

[26]        
While she was
stopped behind Ms. Cravagna’s vehicle, she noticed the plaintiff cycling past
her vehicle on the right side.  Ms. Maghera testified that Mr. Kimber flew
by her and was going pretty fast.  She described the accident as occurring
instantly after she saw Mr. Kimber pass her vehicle.

[27]        
Mr. Cravagna and
Ms. Reid from their position in the Hyundai stopped near the entrance to the
intersection would only have observed Mr. Kimber as he travelled for a distance
of little more than a car length before striking the defendant’s vehicle.  Ms.
Maghera would have observed him for slightly longer.  Mr. Ising testified that
a car length is about five metres long on average.

[28]        
At the speed of
between 28 and 30 kilometres per hour, Mr. Kimber would have been travelling at
about eight metres per second.  It is probable that none of the three
independent witnesses observed Mr. Kimber for much more than a second before
the collision. 

[29]        
Each of the
independent witnesses was forthright and did their best to describe the
accident as they recalled it.  However, while all three had the impression that
the plaintiff was travelling fast, none were able to provide a reliable
estimate of his speed in the very brief time they observed him.  Further, each
of the witnesses and Mr. Ising agreed that they were familiar with the phenomenon
where an object moving very close to a person may appear to be travelling
faster than when the object is observed farther away.

[30]        
Again, on the
balance of probabilities, I find that Mr. Kimber was travelling at between 28
and 30 kilometres per hour at the time of the collision.

[31]        
Mr. Kimber was not
travelling in a designated or marked cycling lane at the time of the accident. 
The plaintiff was wearing a helmet.  He was also listening to music on an iPod
equipped with earphones configured at a 90 degree angle to his ears.  Mr.
Kimber testified he rode with the music at a volume that did not interfere with
his ability to hear what was going on around him and the sounds of his bike on
the road.

[32]        
Section 60(a) of City of Vancouver Street and Traffic Bylaw No. 2849 prohibits cyclists from riding while
wearing headphones or other devices capable of transmitting sound.  Although Mr.
Kimber’s use of the iPod contravened the bylaw, the defendant has not
established that this was a contributing factor to the accident.

[33]        
Mr. Kimber’s
bicycle was equipped with aerobars which extend vertically from the handlebars
and permit the rider to adopt an aerodynamic low-crouch position.  The
plaintiff testified that he did not use the areobars when travelling in traffic
where he might have to stop quickly.  Instead, at the time of the accident, he
was leaning forward with his hands on the handlebars and his fingers touching
the brake levers. 

[34]        
Again, as an
experienced cyclist travelling in heavy traffic, it is more probable than not
that Mr. Kimber had his hands on the handlebars within easy reach of the brake
levers and that while he was leaning forward, he was not in the crouch position
that he would adopt when using the arerobars.

[35]        
Mr. Kimber has no
recollection of seeing eastbound vehicles to his left stopped at the
intersection, nor does he recall seeing the defendant’s vehicle before the
collision.

[36]        
Mr. Ising
testified that neither the plaintiff nor the defendant had a sight-line to the
other until they were clear of Ms. Cravagna’s Hyundai Accent stopped at the
west side of the Ross Street intersection.  From her stopped position at the
intersection, Ms. Wong could not see into Mr. Kimber’s line of travel beyond
the Hyundai’s windscreen.  Mr. Ising also gave evidence that at Ms. Wong’s rate
of acceleration through the intersection any cyclist travelling at a speed of
10 kilometres per hour or more would not have been able to avoid colliding with
her as she drove through the intersection. 

[37]        
In
cross-examination, Mr. Ising testified that if the defendant had pulled forward
and paused as she crossed the centre line into the eastbound lane, she could
have avoided the accident.  Mr. Ising agreed with the proposition put to him by
plaintiff’s counsel that had Ms. Wong paused as she entered the eastbound lane
for even a second, Mr. Kimber would have passed safely in front of her.

[38]        
I begin by
considering the relevant provisions of the Motor Vehicle Act, R.S.B.C.
1996, c. 318.  I do so bearing in mind that these provisions are not
determinative of the common law duty of care, although proof of a breach of the
Motor Vehicle Act causative of damages may be evidence of negligence: Canada
v.  Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; Karran v. Anderson,
2008 BCCA 429 at para. 10.

[39]        
Section 183 of the
Motor Vehicle Act provides that cyclists have the same rights and duties
as motor vehicle drivers.  Section 183(1) provides:

183  (1) In
addition to the duties imposed by this section, a person operating a cycle on a
highway has the same rights and duties as a driver of a vehicle.

Subsection
(2) provides:

(2) A person
operating a cycle

(c) must,
subject to paragraph (a), ride as near as practicable to the right side of the
highway

[40]        
Section 183(14) provides:

183  (14) A
person must not operate a cycle

(a)
on a highway without due care and attention or without reasonable consideration
for other persons using the highway

[41]        
Section 158 of the
Act provides:

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.

[42]        
Section 158(2) provides:

(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.

[43]        
As a driver making
a left turn, Ms. Wong was bound by s. 174 of the Motor Vehicle Act,
which provides:

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.

[44]        
The plaintiff
submits that Ms. Wong was negligent in accelerating through her left turn into
the intersection when she knew that cyclists might be travelling on the roadway
to the right of eastbound vehicles and in failing to pause her vehicle at a
point where she had a sight-line past the Hyundai’s windshield where she could
see any oncoming cyclist.

[45]        
Mr. Kimber argues
that he was riding as near as practicable to the right side of the road in an
unobstructed lane and as such was the dominant driver with the right of way as
he entered the intersection.

[46]        
The plaintiff
relies on Jang v. Fisher, [1990] B.C.J. No. 2560, and Holliday v. Ventura,
(7 July 2009) Vancouver M081324.

[47]        
In Jang,
the plaintiff cyclist and the defendant motorist were both travelling west on
Broadway at the intersection of Broadway and Commercial in Vancouver.  The
plaintiff, as he approached the intersection, was cycling in the curb lane to
the left of parked vehicles.  The defendant collided with the plaintiff when
she turned from the centre lane into the curb lane.  The trial judge dismissed
the plaintiff’s action after finding that there was no basis for the defendant
to think that a cyclist would be coming up the curb lane, passing the parked
the cars and having on his left cars stopped at the intersection.

[48]        
In the Court of
Appeal, after citing s. 160(1)(b) of the Motor Vehicle Act, R.S.B.C.
1979, c. 288, which is now s. 158(1)(b) of the current Act, Mr. Justice
Lambert stated at p. 3 of his reasons:

The
question is whether, in the circumstances of this case, and in the application
of that s.160(1)(b) to a cyclist who is overtaking and passing, a lane can be
regarded as "unobstructed" if there are parked vehicles in the lane. 
In my opinion, if the parked vehicles leave ample room between the position in
which they are parked and the marked lane line for a bicycle to pass freely
then that is an "unobstructed" lane for a cyclist.

The court
allowed the plaintiff’s appeal and apportioned liability equally between the
defendant and the plaintiff cyclist.  In Jang, unlike the case at bar,
the cyclist was travelling in a marked curb lane.

[49]        
In Holliday,
the plaintiff cyclist was travelling east on West 7^th Avenue toward
Cambie Street when she was struck by the defendant’s vehicle as it made a left
turn from the lane.  West 7^th is a designated bicycle route,
although there are no marked lanes on the roadway.

[50]        
Following Jang,
Mr. Justice Willcock held in Holliday at para. 29 that:

The
plaintiff while proceeding through an intersection in an unobstructed lane was
the dominant driver, while the defendant making a left-hand turn across
oncoming traffic was the servient driver.

The court
found that the defendant once motioned to turn by a driver stopped in the
eastbound lane did so rapidly and without inching out to ensure that there were
no cyclists in the lane of travel available to them.  The defendant in Holliday
was negligent in failing to keep a look-out and proceeding with the left-hand
turn when the plaintiff was an imminent hazard. 

[51]        
The court then
applied the test stated in Walker v. Brownlee (1952), 2 D.L.R. 450 (S.C.C.),
to consider whether the plaintiff was aware, or by the exercise of reasonable
care, should have become aware of the defendant’s disregard of the law in time
to avoid the collision.  After finding that the plaintiff was not negligent in
focusing on the path of travel ahead of her and that the defendant was not
within her sight-line, Mr. Justice Willcock continued at para. 34:

In
this regard, I am considering the realities of daily urban traffic as described
in MacLaren v. Kucharek, 2008 BCSC 673.  It was not necessary or
reasonable for the cyclist to wait behind traffic and given the fact that the
intersection should have been kept clear and the relatively light traffic into
lanes as opposed to streets, I find the plaintiff could reasonably have
expected to drive up to Cambie Street without encountering cross-traffic.  Her
position on the roadway was lawful and proper.

[52]        
In MacLaren v.
Kucharek, the plaintiff cyclist was struck by the defendant’s left-turning
vehicle while he attempted to ride through an intersection.  The road layout
was unusual.  The plaintiff was proceeding south on 140^th Street
near the intersection of Laurel Drive in Surrey.  North of Laurel Drive there
were two lanes of southbound traffic that were not marked or divided by lines. 
South of the intersection the road widened to three marked lanes, including a
mandatory right-turn lane.  Due to the configuration of the intersection, the
plaintiff cyclist could not proceed through the intersection in the curb lane
because it became a mandatory right-turn lane.  He therefore changed lanes and
travelled on the extreme right side of the southbound through lane.

[53]        
In MacLaren v.
Kucharek, 2008 BCSC 673 at para. 29, the trial judge rejected the
defendant’s argument that the plaintiff, rather than travelling on the right
side of the southbound through lane, ought to have travelled behind other
southbound vehicular traffic and to have stopped behind that traffic so as to
yield to left-turning northbound vehicles.  Madam Justice Boyd observed at
para. 29 that the realities of dealing with urban traffic are that cyclists
regularly travel to the right of vehicular traffic and often overtake them in
heavy traffic situations.  In the result, the trial judge found the defendant
100 percent at fault.

[54]        
In the Court of
Appeal, the defendant argued that the plaintiff had contravened s. 158(1) by
riding to the right of the centre lane and passing vehicles travelling in that
lane on the right.  The court found it unnecessary to determine whether s. 158
would permit Mr. MacLaren to pass on the right.

[55]        
In MacLaren v.
Kucharek, 2010 BCCA 206 at paras. 28 and 29, Madam Justice Ryan for
the court held:

[28]  The
respondent argued that the appellant’s proposed interpretation of s. 158 of the
Motor Vehicle Act would lead to absurdities.  I do not propose to
analyze these arguments as it is unnecessary to determine whether s.158 would
permit Mr. MacLaren in this case to pass on the right.  In my view it is not so
much that Mr. MacLaren was passing on the right when he was struck by the
appellant, but that he was riding between what were effectively two lanes of
travel before entering the Laurel Drive intersection.  In my view, s. 183(2)(c)
(which required him to ride as near as practicable to the right side of the
highway), did not authorize him to ride between two lanes of travel.  For Mr.
MacLaren to ride between two unmarked but commonly travelled lanes immediately
prior to reaching the Laurel Drive intersection was dangerous because a
northbound left-turning driver would have little opportunity to see him as he
cycled alongside vehicles to his left.  In my view, given the configuration of
the roadway and the pattern of traffic in this case, for Mr. MacLaren to cycle
alongside vehicles to his left created a danger both to himself and to the
appellant.

[29] 
While Mr. MacLaren did the right thing by moving out of the curb lane, he
should have moved in behind the vehicles travelling toward the “through” lane,
not beside them.  By cycling between lanes Mr. MacLaren did not show sufficient
care for his own person to avoid a finding of contributory negligence.  Taking
a lane was the only way, in my view, that a bicyclist could have satisfied the
mandate of s. 183(2)(c) to safely travel as near as practicable to the right of
the highway.

The Court
of Appeal apportioned fault equally between the parties.

[56]        
Although MacLaren
v. Kucharek involved an idiosyncratic road layout, it does stand for the
principle that the configuration of the roadway and pattern of traffic may require
cyclists to take the lane and move into the line of vehicular traffic when
travelling through an intersection in order to render themselves visible to
oncoming left-turning drivers.

[57]        
In Smeltzer v.
Merrison, 2012 BCCA 13, the southbound plaintiff was attempting to turn
left into a parkade across one marked lane of northbound traffic when the
defendant motorist travelling north and to the right of stopped northbound
traffic struck her vehicle.  The trial judge found that Ms. Merrison was
travelling in an unobstructed de facto lane and that s. 158 did not
prohibit her from passing vehicles on the right.

[58]        
In Smeltzer
at para. 14, Mr. Justice Lowry stated that:

[14] 
Despite the recognition of a de facto lane in MacLaren, I do not
consider the concept can afford any further exception to the three for which s.
158(1) provides … 

His
Lordship went on to note that in MacLaren the court specifically said
that it was making no determination with respect to whether s. 158 permitted
the cyclist to pass on the right.

[59]        
The exception in
s. 158(1)(b) is confined to passing on the right where there are two marked
lanes for vehicles proceeding in the same direction, and only when passing can
be undertaken safely: Smeltzer at para. 15.

[60]        
In Smeltzer,
the court found that the defendant was negligent in passing vehicles on the
right in contravention of s. 158 and by failing to proceed cautiously while
maintaining a proper lookout.  The plaintiff was also negligent in failing to
inch her way over the solid line until she could see there was no obstacle to
her completing the turn.  Had she done so, the collision would have been
avoided.  The court apportioned liability equally.

[61]        
Here, East 49^th Avenue was not a laned roadway within the meaning of s. 119 of the Motor
Vehicle Act.  Under that section, a laned roadway means a roadway, or part
of a roadway, that is divided into two or more marked lanes for the movement of
vehicular traffic in the same direction.

[62]        
The plaintiff was
cycling in heavy traffic.  He was approaching an intersection where he knew or
ought to have known that it was likely that oncoming vehicles could be turning
left.  Eastbound vehicles to his left were stopped at the intersection.  Unlike
Holliday v. Ventura where the defendant driver was turning from a lane
rather than a heavily travelled street, this was not a case where Mr. Kimber
could reasonably have expected to cycle on East 49^th Avenue without
encountering cross-traffic.  Those facts distinguish Holliday from this
case.  Furthermore, when Mr. Justice Willcock decided Holliday, he
did so before the Court of Appeal had rendered its judgments in MacLaren
and Smeltzer.

[63]        
As he approached
the intersection the plaintiff ought to have observed the stopped vehicles to
his left.  A prudent driver should anticipate that there is a reason for
traffic to his left being stopped at an uncontrolled intersection: Clark v.
Stricker, 2001 BCSC 657. 

[64]        
Furthermore,
because cyclists are less visible and more vulnerable than other road users,
they must take reasonable care to ensure that they see and are seen by oncoming
traffic: Hersh v. Stinson, [1992] B.C.J. No. 1428 (S.C.).

[65]        
A cyclist passing
a line of stationary cars on his left and entering an intersection is
undertaking a dangerous manoeuvre and has a duty to take care to maintain a
proper lookout: Chang v. Thandi, [1987] B.C.J. No. 1200 (S.C.).

[66]        
By passing to the
right of the stopped eastbound vehicles, Mr. Kimber put himself in a position
where he was not visible to a left-turning driver and where his own view of
traffic turning across his path was blocked by the vehicles to his left.

[67]        
The plaintiff
maintains that he was the dominant driver with the right of way as he
approached the intersection and that under s. 174 of the Motor Vehicle Act,
and that Ms. Wong, as the servient driver intending to turn left, was
required to yield the right of way to him. 

[68]        
As Madam Justice
Ballance observed in Henry v. Bennett, 2011 BCSC 1254 at para. 73:

The
dominant/servient driver analysis in Walker is predicated on the footing
that the dominant driver has proceeded lawfully

[69]        
Here, that analysis does not apply where Mr. Kimber was in breach of s.
158 of the Motor Vehicle Act and his common law duty to take reasonable
care by keeping a proper lookout.

[70]        
However, that does
not absolve Ms. Wong from liability.  Ms. Wong made the left turn knowing
cyclists using the oncoming lane often rode to the right of vehicles.  She knew
she had to keep a lookout and would have to yield to any oncoming traffic,
including cyclists that presented an immediate hazard. 

[71]        
She began her turn
from a point where she was unable to see beyond the windshield of the vehicle
stopped at the western entrance to the intersection.   She made a continuous
accelerating turn and did not stop or pause when she reached the point, just
across the centre line, where she had a sight-line that would have enabled her
to see the plaintiff.  Had she inched forward or stopped when she had a clear sight-line,
the plaintiff would have passed safely in front of her and the accident would
have been avoided.

[72]        
I find that in
heavy traffic and where her view of the eastbound lane was limited, Ms. Wong
was negligent in failing to inch forward until she could see whether there was
an obstacle to her safely completing her left-hand turn.

[73]        
I turn now to
consider whether the plaintiff was contributorily negligent.  As he passed
stopped traffic on the right, Mr. Kimber ought to have been alert to the
potential danger.  He failed to keep a proper lookout before entering the
intersection.  He failed to take reasonable care for his own safety or that of
other road users.  Here, the plaintiff could have pulled into the line of slow
moving or stopped vehicles and then taken his turn to pass through the
intersection.  Alternatively, the plaintiff ought to have been alert to the
danger of passing stopped traffic at the intersection and ought to have brought
his cycle to a stop to the right of the red Hyundai where he could observe
traffic turning into the intersection.  Had he done so the collision would have
been avoided.  I find that the plaintiff was also negligent and that his
negligence was a cause of the accident.

[74]        
The apportionment
of liability requires a consideration of the degree to which each party is at
fault.  Fault is apportioned on the basis of the nature and extent of the
departure from the respective standards of care of each of the parties: Cempel
v. Harrison Hot Springs, [1997] B.C.J. No. 2853 at para. 24 (B.C.C.A.).

[75]        
Here, the
plaintiff and the defendant were both familiar with the intersection where the
accident occurred.  For her part, the defendant was aware of the risk of
cyclists approaching to the right of oncoming eastbound traffic but made her
left turn without maintaining a proper lookout for a known risk.

[76]        
For his part, the
plaintiff ought to have slowed down and entered the line of eastbound vehicles
before passing through the intersection, or if he remained to the right of the
line of stopped vehicles, he ought to have stopped alongside the stationary
Hyundai before proceeding into the intersection, where he would have had an
unobstructed view of the hazard ahead.

[77]        
In my view, the
plaintiff and the defendant are equally at fault.  I apportion liability 50
percent to each of the plaintiff and the defendant.

[78]        
Finally, I would
like to thank all counsel for their very thoughtful submissions, which were of
considerable assistance to me.

[79]        
Unless there is
anything else, we will adjourn.

[80]        
MR. PARSONS: 
Thank you, My Lord.

[81]        
MR. GREWAL:  Thank
you, My Lord.

“PEARLMAN J.”