IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120622

Docket: M093570

Registry:
Vancouver

Between:

Grace Catherine
Tan

Plaintiff

And:

Srdjan Nenadic,
Wing Kit Kwong and
Transportaction Lease Systems Inc.

Defendants

Before:
The Honourable Mr. Justice Wong

Oral Reasons for Judgment

Introduction

[1]            
THE COURT: This is a motor vehicle accident case involving a
collision between a motorcyclist striking a car negotiating a left turn in a
controlled traffic light intersection.  The plaintiff, Grace Tan, a passenger,
was seated behind her boyfriend, the defendant Srdjan Nenadic, who was
operating the motorcycle.  The defendant Wing Kit Kwong was the driver of the
left‑turning car.  The impact caused Ms. Tan to be thrown from the
motorcycle, resulting in serious injuries.

[2]            
Assessment of Ms. Tan’s entitlement for damages is to be assessed
at a later date.  At issue now is the appropriate apportionment of liability between
the two defendants, Nenadic and Kwong.  Transportaction Lease Systems Inc. is
the registered owner of the vehicle leased to Mr. Kwong.

[3]            
I have concluded that liability should be apportioned equally.  These
are my reasons.

The Background

[4]            
The accident occurred on May 9, 2008, at approximately 7:30 a.m. at the
intersection of Boundary Road and Imperial, right on the boundary between
Burnaby and Vancouver.  On the Vancouver side, Imperial becomes 49th Avenue. 
It was a bright, dry, sunny morning.  Imperial/49th Avenue is a main
thoroughfare between Burnaby and Vancouver.  The speed limit is 50 kilometres
per hour but, depending on the flow of traffic, vehicles routinely exceed the
speed limit by 10 to 20 kilometres per hour.

[5]            
Ms. Tan and Mr. Nenadic had planned to take the ferry to
Vancouver Island to spend the day visiting a relative and sightseeing. 
Mr. Nenadic was an experienced motorcycle operator and owned a Honda Magna
motorcycle which was in good mechanical condition.  Both he and Ms. Tan wore
appropriate protective gear.  They left Mr. Nenadic’s home in Burnaby and
proceeded westbound on Imperial towards Vancouver.

[6]            
There are four westbound and eastbound lanes at the intersection of
Boundary and Imperial: a left‑turn lane, a right‑turn lane, and two
through lanes.  If the lanes were numbered 1 to 4, with 1 being the right‑turn
lane and 4 being the left‑turn lane, Mr. Nenadic was in Lane Number
2, the right travelling lane.  The intersection is controlled by red, green,
and amber lights with left‑turn advance arrows as well.

[7]            
Mr. Kwong was driving a black 2001 BMW 330Ci convertible automobile
eastbound on 49th Avenue, intending to turn left to go northbound on Boundary
to attend his place of employment.  He had entered the intersection, stopped to
wait for oncoming traffic to clear, before commencing his left turn.  Oncoming
westbound traffic in the left travelling lane came to a stop when the light
changed to amber.  It is unclear how many stopped vehicles were in that lane,
but at least two to three, possibly more.

[8]            
Clear visibility of the right westbound travelling lane would likely be
obscured by the line of stopped vehicles in the left westbound travelling lane
for Mr. Kwong.  Mr. Kwong proceeded to make his left turn in one
continuous sweep over the left westbound travelling lane, and proceeded halfway
into the right westbound travelling lane, when he was struck by
Mr. Nenadic’s motorcycle approaching from the east.  The car and
motorcycle collided in the intersection.  The motorcycle went straight into the
right front corner of the BMW, throwing Ms. Tan and Mr. Nenadic from
the motorcycle.  There was considerable damage to the BMW.  Mr. Kwong
apparently did not see Mr. Nenadic’s motorcycle until just before the
impact.

The Law and Analysis

[9]            
In the March 2006 issue of The Verdict magazine, a publication of
the B.C. Trial Lawyers Association at page 40, there is a useful discussion of
the jurisprudence in the article entitled "Intersection/Right‑of‑Way
Cases ‑ Making Sense of the Law", authored by Barbara J.
Flewelling.  At page 44, the author states:

There is a conflict in the cases about whether or not a
left-turning driver must wait until all other vehicles have nearly or actually
come to a stop before proceeding to make their turn.  Whereas the British
Columbia Court of Appeal in Kokkinis v. Hall, [1996] B.C.J. No. 1560,
has indicated that it is not necessary, in Mitchell v. ICBC, [2004]
B.C.J. No. 1600, on a Rule 18A application, Mr. Justice Edwards was of the view
that the interpretation of the obligations of a left-turning driver as set out
in Kokkinis would invite left-turning drivers to assume rather than
determine that oncoming through drivers will stop as the light turns yellow and
requires through drivers to conduct themselves on the basis left-turning
drivers will do so.  Edwards J. felt that due to the fact that many drivers
regard an amber light as a signal to accelerate through an intersection, the Kokkinis
principle seems to endorse a hazardous assumption of the part of the
left-turning drivers.

In the Mitchell case, the
left-turning plaintiff turned left on an amber light.  Mr. Justice Edwards
found that the dominant through driver entered the intersection on an amber
light, the collision occurred when the light was red, and that he was
speeding.  Even though the judge said he could infer that the dominant driver
would have had time to stop after the light turned yellow or could but was
unable to stop due to speed, he still found that the left-turning servient
driver had a duty to take account of manifest hazards and, by failing to see or
react to the fact the van was approaching fast and not stopping, was
negligent.  He apportioned liability equally relying on s. 1(2) of the
Negligence Act as he was unable to determine different degrees of fault.

[10]        
The author concludes in her summary at page 45 as follows:

Summary

Intersection/right-of-way cases are very fact dependent and
it can be very difficult to assess liability with any precision.  However, there
are some general principles that can be gleaned from the case law:

Although a driver who enjoys the right of way is entitled to
assume that others will obey the law and the rules of the road, this is not
absolute and if she is aware or ought to have been aware of the other driver’s
disregard of the law and fails to take reasonable care to avoid a collision,
she may be found partially or even wholly liable.

In determining if a dominant driver ought to have been aware
of another’s disregard of the law, the courts seem to be taking a realistic
approach to the exigencies of making rapid decisions in circumstances where a
reasonable driver also has to check for cross-traffic and pedestrians.  The
courts generally have recognized that at very busy intersections, there are
times when the only way a driver can execute a left turn is on an amber light
and a dominant driver may be found liable for failing to stop at an amber
light.

The onus is on the servient driver to prove that the dominant
driver was also negligent in that his or her negligence was a cause of the
accident.

There is some conflict in the case law about whether a
left-turning driver is obligated to wait until the oncoming traffic is nearly
or completely stopped.  Some cases stand for the proposition that it is not
necessary while others state that it is prudent to do so and that a
left-turning driver who fails to do so will be found partially liable.

A servient left-turning driver
has an obligation to take reasonable steps to determine if the dominant driver
poses an immediate hazard.  The time this is determined is at the moment just
before the turn is commenced.  There is some conflict in the law about whether
that requires a servient driver to determine if the dominant driver is speeding
and may not stop at the light.

[11]        
Like my late colleague, Mr. Justice Edwards, factually I have also
concluded that both defendants were equally at fault.  Mr. Nenadic should
have approached the intersection with more caution in order to be able to stop
safely.  Mr. Kwong failed to take into account the manifest hazard in the
case of Mr. Nenadic’s approaching motorcycle speeding towards him.  Had he
paused for a better look before entering the right westbound oncoming lane,
instead of casually continuing on, he would have avoided the collision.

[12]        
Accordingly, all defendants were equally culpable in fault.

Conclusion

[13]        
The plaintiff is entitled to judgment of equal liability against all
defendants.

[14]        
Any issue as to costs?

[15]        
MR. JAMES:  I think we can sort that out, My Lord.

[16]        
MR. VILVANG:  Yes, My Lord, I agree with my friend.

[17]        
THE COURT:  All right.  I might say for the benefit of the parties,
counsel has basically said all that can be said for their respective sides.

“Wong
J.”