IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130321

Docket: M125980

Registry:
New Westminster

Between:

Robert Miller

Plaintiff

And

Alison Dent,
Sharon Dent and Howard Bruce Dent,
also known as Howard Dent

Defendants

Before:
The Honourable Mr. Justice Blok

Reasons for Judgment

I.        Introduction

[1]            
Robert Miller was injured in a car accident that occurred at an
intersection near Lougheed Mall in Burnaby, B.C. on August 29, 2008.  Both
liability and damages are in issue.

[2]            
On the matter of liability, Mr. Miller’s car was in the
intersection and in the process of making a left turn when it was struck by the
Dent vehicle, which was proceeding straight through.  It is alleged by the
plaintiff that Ms. Dent entered the intersection against a red light.  Ms. Dent
maintains that she entered the intersection on a green light.

[3]            
The issue of damages is very complicated.  The plaintiff alleges that he
suffered a mild traumatic brain injury and, in addition to that, continues to
suffer from post-traumatic stress disorder as a result of the accident.  Mr. Miller
has a pre-existing and very unfortunate history of depression and serious
alcoholism, which greatly complicates the damages picture.  The plaintiff
alleges that he was functional prior to the accident and that the accident
injuries have pushed him into complete dysfunction.  The defendants maintain
that the plaintiff’s difficulties are attributable to pre-existing conditions
and were not caused by the accident.

[4]            
Although there are three named defendants I will refer to the defendant
driver, Alison Dent, as either Ms. Dent or the defendant.  The other two
defendants were the owners of the vehicle, her parents.

II.       Liability

[5]            
The accident occurred on a clear, sunny day at the intersection of
Austin Avenue and Gatineau Place in Burnaby.  The intersection is a very busy
one.  Austin Avenue is fully seven lanes wide at that point.  Gatineau Place,
at its northern end, originates as an exit route from Lougheed Mall, has four
lanes and is relatively short.  On the south side of the intersection, Gatineau
Place passes close to the Lougheed Skytrain station.

[6]            
Three accident witnesses were called, those being the two drivers and an
independent witness.

(a)      Robert Miller

[7]            
Mr. Miller was driving a Chevrolet Aveo proceeding northbound on
Gatineau Place and intending to turn left to go westbound on Austin Avenue.  Mr. Miller
said that the intersection is a very busy one and he is very familiar with it,
having lived in the area for a number of years.  He said “it’s a challenge to
get through this intersection, it always has been”.  That day there was quite a
bit of traffic, both vehicle and pedestrian traffic.

[8]            
The light was red as he approached the intersection and he stopped until
it turned green.  He knew there would be pedestrians crossing Austin Avenue to
his left, so he had his vehicle creep forward a bit and then stop, waiting for
the intersection to clear.  Facing him (that is, facing south) was a large SUV
with its turn signal on, waiting to turn left onto Austin Avenue to proceed
eastbound.  There were one or two vehicles behind that SUV.  He said that,
because of that, he knew it was going to be a challenge to get through the
intersection.  Both the driver of the oncoming SUV and Mr. Miller pulled ahead
into the intersection but came to a stop to wait for their respective left
turns.  Mr. Miller said that he was not sure that the SUV would actually
turn left because cars sometimes go straight through.  The pedestrians cleared
and the green light was getting stale, so he crept forward and stopped again. 
The SUV started making his left hand turn.  By now the light was red, so Mr. Miller
accelerated to commence his turn.  He saw the defendants’ vehicle just
“milliseconds” before the collision, really just seeing the grille and the
headlight.

[9]            
In cross-examination, Mr. Miller said that he crept forward in the
intersection four times, stopping on three of them and proceeding on the
fourth.  The light turned yellow after the third stop.  At that point the pedestrian
“stragglers” were running across Austin Avenue.  He said he could not see what
was coming toward him down the opposing right-hand lane (which I took to be the
farther of the two lanes going south) because of the presence of the large
SUV.  The SUV made its left turn, and at a point when its last corner panel was
still before him he saw nothing coming, the light already being red, so Mr. Miller
proceeded to make his turn.  Later he added that the SUV had half of its
vehicle over the centre line by the point he commenced his own turn.  Mr. Miller
agreed that even at his final temporary stop in the intersection he had still
not reached the midpoint of the intersection itself and in order to carry out
his turn he still had to move forward.  As the SUV turned, he could see
partially up the farther of the oncoming lanes, but he could not see up the
lane occupied by the SUV.  He acknowledged that he commenced his turn even
though he could not see behind the SUV.

[10]        
Mr. Miller agreed that the oncoming pickup truck would have had to
cross all four lanes of Austin Avenue to hit him as his vehicle was still on
the south or near side of the intersection midpoint.

(b)      Alison Dent

[11]        
Ms. Dent was driving a 1994 GMC Sierra pickup truck owned by her
parents.  She was very familiar with it as she had learned to drive on it.  She
was 28 years old at the time of trial.

[12]        
Ms. Dent said that the accident occurred around 3:00 p.m. to 3:30
p.m. on a Friday.  She had been shopping at the mall.  She had to go to work at
6:30 p.m. but was not in a rush at the time.  She came out of the mall parking
lot and turned onto Gatineau Place in order to proceed southbound.  The lane into
which she turned was full so she changed lanes to the inner lane and proceeded
southbound.  There were two cars at the “bottom of the lane”, waiting to turn
left.

[13]        
Ms. Dent said that the intersection in question is a very busy
intersection and that she is very familiar with it.

[14]        
Ms. Dent said that her speed at the point she changed lanes was 15
to 20 km/h.  Gatineau Place is slightly downhill at that point.  She said she
then accelerated minimally.  She checked the traffic light and saw that the
light was green for traffic in her direction.  As she entered the intersection
the two cars ahead of her turned left.  After the second vehicle turned she
could see ahead and saw that it was clear.  She said that, suddenly, just as
she passed the halfway point in the intersection, she saw a black car in front
of her.  She had no time to apply the brakes and a collision ensued.

[15]        
Ms. Dent said that she did not notice any change to the colour of
the traffic light after last checking it.  She also did not notice any turn indicator
on the black vehicle.

[16]        
The police attended, but she was not issued a ticket.  She herself
brought a claim for damages, but it has settled.

[17]        
In cross-examination, Ms. Dent was asked about the evidence she
gave at two prior examinations for discovery.  An examination for discovery was
conducted in each of the legal actions commenced, that is, the one brought by Mr. Miller
and the one Ms. Dent brought on her own behalf.  She acknowledged that in
the first examination for discovery she did not say she had seen a dark car
prior to the impact.  She explained that the first discovery occurred after she
had not thought about the accident for a couple of years and that had been the
first in-depth questioning about the sequence of events that she had
undergone.  She said that her memory became clear after she thought about the
events, and she recalled other details that she was able to expand on that she
had not mentioned at her first examination for discovery.  She maintained that
she did in fact recall seeing a dark vehicle in the intersection as she
proceeded.  Asked about her speed in the intersection, she said that as she
entered the intersection she was doing more than 30 km/h but less than 50 km/h,
as she had accelerated “minimally” from 15 to 20 km/h while travelling down the
short stretch of Gatineau Place that is north of Austin Avenue.

[18]        
She denied that she rushed through the light to beat the red light in
her direction, maintaining that the light was green when she entered the
intersection.

(c)      Samantha Kemppi

[19]        
Ms. Kemppi was a pedestrian who was proceeding from the Sears
outlet store (located near the southeast corner of the intersection) and was
proceeding to the Lougheed Skytrain station.  She was familiar with the
intersection as she lived just a few blocks away.  She was walking across the
Sears outlet store parking lot, intending to use the crosswalk at the
intersection in order to cross Gatineau Place.  When she was at a point that
was perhaps 10 to 12 feet from the corner of the parking lot (that is, the
corner nearest the intersection), she heard an accelerating sound of what she
thought was a truck.  Shortly after that, perhaps within two seconds, she heard
the sound of a collision.  As soon as she heard that sound she looked up, saw
that two vehicles had collided and saw that the light was red for traffic proceeding
on Gatineau Place.  She said that the time span between hearing the sound of
the collision and her looking at the light was “as close to immediate as
possible, maybe a second”.

[20]        
In response to further questioning, Ms. Kemppi said that she
observed the plaintiff’s Aveo prior to the collision; it was pulled forward
ahead of the stop line, preparing to go left.  She did not observe the Dent
pickup truck prior to the collision.  Also, she did not recall any other
vehicles in motion.  She did not see a turn signal on Mr. Miller’s car,
but said she was not paying that close attention before the accident happened.

[21]        
In cross-examination, Ms. Kemppi said that when she heard the
revving sound, there was no traffic in the intersection other than the
plaintiff’s car and, in particular, no vehicles turning left from Gatineau
(that is, exiting from the Lougheed Mall area) to go eastbound on Austin.  She
said, “Those lanes were completely clear”.  Somewhat inconsistently, insofar as
she said in her evidence in chief that she did not remember seeing the Dent truck
prior to the collision, in cross-examination Ms. Kemppi testified that
when she looked up, after hearing the engine revving, the Dent vehicle had not
yet entered the intersection and it was 10 to 15 feet back from the stop line. 
She was unable to say, however, what the colour of the traffic light was at
that point.  At that moment, the plaintiff’s Aveo was one car length past the
southern crosswalk and not yet up to midpoint of the intersection.

[22]        
Ms. Kemppi acknowledged that the Dent pickup truck had to cross
four lanes of travel on Austin Avenue to just get to the midpoint of the
intersection and then somewhat further to get to the point where the
plaintiff’s car was located, as his vehicle was back from the midpoint by some
distance.  She confirmed that the point of collision was on the south side of
the midpoint of the intersection.

(d)      Other Liability Evidence

[23]        
There was no accident reconstruction evidence and no evidence concerning
the duration of the traffic lights at the intersection.  Photographs of the
plaintiff’s vehicle appear to show a first point of contact about the midpoint
of the right front fender, approximately centred on the right front tire.  The
damage to the Dent pickup truck is primarily to the right front half of that
vehicle.

III.       Submissions on Liability

[24]        
The plaintiff submits that the combined effect of the evidence of Mr. Miller
and Ms. Kemppi should result in the conclusion that the traffic light was
red when Ms. Dent’s vehicle entered the intersection.

[25]        
The defendant submits that the evidence shows that her vehicle entered
on a green light and that Mr. Miller commenced a left turn when he was
unable to see whether there were any approaching vehicles that would constitute
an imminent hazard.

IV.      Discussion

(a)      Credibility

[26]        
I begin with some credibility observations.  It was my impression that
the three liability witnesses were honest and were doing their best to relate
the events as they remembered them.  Whether these recollections were accurate
and reliable is the real question.

[27]        
Though he has had many medical and psychological difficulties in his
life and, as a possible consequence of that, has had problems with his memory, Mr. Miller
was clear in his testimony that he commenced his left turn as the SUV facing
him turned left and, most importantly, after the traffic light turned red.

[28]        
As to Ms. Dent, plaintiff’s counsel made much of certain
differences between the details given by Ms. Dent in her 2008 statement to
the adjuster, her two examinations for discovery in 2011 and her evidence at
trial.  The primary inconsistency relates to her seeing the Miller vehicle
prior to the collision.  In her statement she said words to the effect that
there was no northbound traffic and “all of a sudden I saw a little black
car”.  In her first examination for discovery she said she did not see any
northbound vehicles coming from Gatineau.  At her second examination for
discovery, and again at trial, she said the Miller vehicle was waiting and that
she knew it was there.  Ms. Dent explained that the first examination for
discovery came at a time when she had not thought about the accident for a
couple of years and that the first discovery was the first in-depth questioning
on the sequence of events.  She said that after the first examination for
discovery she thought further about it and recalled other details that she had
not mentioned, including that she had seen a dark vehicle in the intersection
as she approached.

[29]        
As I have said, plaintiff’s counsel made much of these and other
inconsistencies, suggesting that Ms. Dent was shading the events in her
favour because of the financial interest she had in the outcome.  I am unable
to accept that submission.  I found her explanation believable; further, by the
time of the trial she no longer had a financial interest in the outcome because
she had settled her case.

[30]        
Most of the other alleged inconsistencies I found either inconsequential
or not inconsistencies at all.  Two of the alleged inconsistencies depend on
what evidence is accepted and therefore are not internal inconsistencies in her
own evidence.  These are: (1) whether the light was green as Ms. Dent
entered the intersection (said to be inconsistent insofar as Ms. Kemppi
said the light was red when she looked at it, post-collision); and (2) whether Ms. Dent
merely “minimally accelerated” along Gatineau as she approached Austin Avenue
(said to be inconsistent insofar as Ms. Kemppi heard the revving of what
she thought was a truck engine).  I leave these to a later discussion.

[31]        
Ms. Kemppi was an honest, disinterested witness, but I find the
value of her evidence to be limited in some respects, perhaps because, as she
admitted, she was not paying close attention to things before the accident
happened.  Of primary significance is her evidence about the colour of the
light after she heard the sound of the collision.  Her evidence is clear
and believable enough on this issue, but it refers to a point in time that is
not directly relevant to liability, although certainly the inferences that
might be drawn from this evidence are of very direct relevance.  More
problematic, from a credibility point of view, were other inconsistencies, or
seeming inconsistencies.  These were as follows:

(a)      asked in her evidence in
chief if she made any pre-collision observation of the Dent vehicle (after
being asked about her first observations of the Aveo), she said “not that I can
remember”.  In cross-examination, however, she said when she first saw the Dent
vehicle it was 10 to 15 feet before the stop line (adding that she did not note
the colour of the traffic light at that time).  These two statements seem to be
inconsistent, though on a charitable reading it is at least possible she felt
she was being asked about observations made by her at slightly different
periods of time;

(b)      she testified that the
southbound lanes on Gatineau were completely clear, yet this seems at odds with
the presence of both the Dent vehicle and the vehicle that was unquestionably
in front of it, the left-turning SUV.  As to the latter, she specifically said
she did not recall any vehicle turning left to go eastbound on Austin Avenue, towards
North Road (which is the direction that the SUV turned).

[32]        
In submissions, plaintiff’s counsel emphasized the mention by Ms. Kemppi
of a yellow light, said to have been present during Ms. Kemppi’s
final pre-accident scan of the scene.  Because of the importance of the issue I
again reviewed her evidence on this point, through the digital recording.  Her evidence
was as follows:

Q.        The moment just before the impact, what were
the other vehicles doing?  Not the truck and not the Aveo.

A.         The intersection
was quiet, and the light was, obviously it was yellow at the time before the
accident took place because it was red when I looked up after the accident.  So
all of the other vehicles were stopping or stopped at the time.

[33]        
It would appear from this that Ms. Kemppi may not have actually seen
a yellow light but instead inferred that it was yellow by reasoning backward
from the time she saw the red light.  In these circumstances I find that I
cannot rely on this evidence as demonstrating that the traffic light was yellow
at that point in time.

[34]        
For these various reasons I find Ms. Kemppi’s evidence concerning
her pre-accident observations to be unreliable.  I accept her evidence that the
traffic light was red when she looked at it after she heard and then saw the
collision.

(b)      Analysis

[35]        
The statutory obligation imposed on a driver intending to turn left at
an intersection is set out in s. 174 of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 [the Act]:

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.

[36]        
The statutory obligation on a motorist faced with a yellow traffic light
is set out in s. 128(1) of the Act:

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 [.]

[37]        
The obligation on a driver to stop at a red traffic light is almost too
obvious to mention.  That obligation is set out in s. 129(1) of the Act.

[38]        
In Nerval v. Khehra, 2012 BCCA 436 [Nerval], the Court of
Appeal reiterated earlier analyses of left-turn cases and s. 174 of the Act. 
The Court quoted with approval the following passages from Pacheco (Guardian
ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.):

15  In my opinion, a driver who wishes to make a left hand
turn at an intersection has an obligation not to proceed unless it can be done
safely. Where each party’s vision of the other is blocked by traffic, the
dominant driver who is proceeding through the intersection is generally
entitled to continue and the servient left-turning driver must yield the right
of way. The existence of a left-turning vehicle does not raise a presumption
that something unexpected might happen and cast a duty on the dominant driver
to take extra care. …

16  I find support for that conclusion in the unreported
decision of Mr. Justice McKenzie in Bond v. Chernoff
(14 October 1985), Vancouver 27420/73 (B.C.S.C.). The accident in that
case occurred at the intersection of Broadway and Victoria Drive. The plaintiff
was proceeding east on Broadway. When the plaintiff’s vehicle had entered the
intersection he was confronted by the defendant’s vehicle which was heading
westbound making a left hand turn in front of his vehicle.

17  Mr. Justice McKenzie said:

I think the accident is readily
explainable in that neither of the parties could see the other party because
the view to [sic] one another was denied to each of them by the presence of the
line of eastbound vehicles that were waiting in the eastbound lane for the
foremost of those vehicles to make a left hand turn. It was not until the
Plaintiff’s vehicle and the Defendant’s vehicle got to a point of inevitable
collision that they became visible to one another and at that point each driver
was helpless to prevent an accident.

I think the law is clear under the circumstances that the
obligation of the Defendant doing the left turn was an absolute obligation
and I am unable to discern, on the facts of this case, that the Plaintiff was
negligent. [Emphasis added in Nerval.]

[39]        
Mr. Miller’s evidence was that: (1) a large SUV was facing him,
waiting to turn, and there were one or two vehicles behind the SUV; (2) he
could not see up the SUV’s lane because the SUV blocked his view; and (3) he
commenced his turn even though he could not see behind the SUV.  Accordingly,
he not only commenced his turn even though he was unable to see behind the SUV,
it appears he did so when he was aware there were vehicles behind it.  In doing
so, he was negligent because he turned without ascertaining whether
through-driving vehicles behind the SUV that were lawfully in the intersection
might also have to clear the intersection.

[40]        
The question, then, is whether the defendant was also negligent.

[41]        
As to the duties on motorists concerning yellow or amber lights, the
plaintiff relied on the following passage from Kokkinis v. Hall (1996),
19 B.C.L.R. (3d) 273 (C.A.) [Kokkinis]:

10  … An amber light is not, as the current witticism suggests,
a signal to accelerate or to pass traffic that is slowing to a stop.  Indeed,
as Mr. Justice Esson noted in Uyeyama, in a busy city like
Vancouver and at a busy intersection like 25th and Granville, an amber is
likely the only time one can complete a left turn.  Drivers approaching
intersections must expect that this will be occurring.  Putting a burden on a
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.]

[42]        
However, it is important to note that in Kokkinis the
through-driver conceded that he proceeded into the intersection aware of the
yellow light and at a time when he could have stopped in safety.  As revealed
in the earlier, excised portion of the paragraph quoted above, the question in Kokkinis
was whether fault should also be attributed to the left-turning driver for
relying on the through-driver to stop and for checking the state of the
cross-traffic:

10  I must
say this argument has given me pause; but ultimately I resolve it by asking
whether in law Mrs. Kokkinis should be faulted for diverting her attention
momentarily from oncoming traffic to check cross traffic at the point in time
in question, i.e., as she prepared to start her turn – to see if any of those
cars had jumped the light or were going to pose a threat to her turn.  Was this
an unreasonable or careless thing to do?  I think not, given both the realities
of the situation (which of course occurred over only a few seconds) and past
decisions of this Court that have imposed on left-turning drivers the duty to
be aware not only of oncoming traffic, but also of cross traffic, pedestrians,
and whatever else may be present in the intersection.

To say that the plaintiff can be
found at fault because she relied on the assumption that Mr. Hall would
stop, and because she checked cross-traffic, would in my view subvert the duty
on Mr. Hall to bring his vehicle to a safe stop at the amber light as the
other traffic did. …

[43]        
Unlike the situation in Kokkinis, the question whether Ms. Dent,
as the through-driver, failed to stop in the face of a yellow or red light is
very much a live issue in this case.  The same distinction applies to the other
case cited by the plaintiff, Henry v. Bennett, 2011 BCSC 1254, where the
trial judge found that by the time the through-driver reached the near side of
the intersection the traffic light was an “extremely stale amber, about to turn
red”, that it changed to red as his vehicle passed into the intersection, and
that two other vehicles travelling in the same direction had stopped for the
light.

[44]        
The plaintiff’s case rests on the assertion that the defendant entered
the intersection against a red light and that instead of stopping safely she
accelerated in order to run the light.  This assertion rests on inferences
drawn from three points of evidence:

a)    Mr. Miller’s
evidence that he started his turn only after the light turned red;

b)    Ms. Kemppi’s 
evidence that when she looked at the light after the collision, it was red for
cars travelling on Gatineau;

c)     Ms. Kemppi’s
evidence that a few seconds before the collision she heard the sound of an
accelerating truck.

[45]        
I deal with the third item first.  The problem with this evidence is
that it was not established that the accelerating engine sound came from the
Dent pickup truck.  Ms. Kemppi did not say that the sound came from the
Dent vehicle, saying merely that she heard the sound.  It seems at least
plausible that the sound came from the left-turning SUV.  That SUV, described
by Mr. Miller as a large SUV, was accelerating from a full stop in order
to carry out a left turn, whereas the Dent truck, if it was accelerating, was
accelerating while already in motion on a street with a slight downhill grade. 
In these circumstances I am unable to conclude that the Dent vehicle probably
was the source of the engine sound.  Accordingly, I am unable to conclude from
that evidence that the Dent vehicle was accelerating aggressively into the
intersection.

[46]        
The problem with the first two points listed above is that they do not
provide direct evidence of the state of the traffic signal at the time Ms. Dent
entered the intersection.  The plaintiff asks the Court to infer that, because
the traffic light was red for Gatineau traffic later on, as two of the
witnesses testified, it must have been red (or perhaps a late yellow) at the
material time.  Certainly a Court can draw inferences if there is a sufficient
evidentiary basis to do so, but the state of the evidence here is wanting.  I
do not know, for example, whether the intersection’s traffic lights had a short
yellow or long yellow sequence, or somewhere in-between.  The only evidence on
this was Mr. Miller’s testimony in cross-examination that “it doesn’t stay
yellow very long.”  The intersection in question is unusually broad and the
Dent vehicle had to travel across four or five lanes, perhaps even more, to get
to the far side of the intersection midpoint, which is the spot where the
collision occurred.  Whether this could be done within the light change time, allowing
perhaps for a lawful entry into the intersection on an early yellow light, given
the reported speed of the Dent vehicle or at least within a range of likely or
possible speeds, is unknown because the plaintiff called no evidence about the
timing or duration of the traffic lights or the distances involved at this
intersection; in other words, evidence from which conclusions could reliably be
drawn by working backwards from later observations of the red light.

[47]        
Ms. Dent said that when she checked the traffic light just before
entering the intersection it was green for traffic in her direction.  The
plaintiff asserts that this cannot be, given that the same light was red no
later than one second after the collision.  I found Ms. Dent to be
reasonably credible so I did not consider that her evidence ought to be
rejected out of hand.  It is of course possible that she is mistaken, but on
the state of the evidence before the Court I am unable to conclude that because
the light was red at a somewhat later point, she must be mistaken about
the colour of the light as she approached or entered the intersection, which
was the principal basis for the plaintiff’s submission that Ms. Dent’s
evidence ought to be rejected.

[48]        
As a result, I conclude that the plaintiff has failed to prove that (1) the
defendant entered the intersection against a red light; (2) she entered the
intersection on a yellow light in circumstances where she could have stopped
safely; or (3) the defendant’s speed of 30 to 50 km/h was negligent in the
circumstances.  In short, the plaintiff has failed to show negligence on the
part of the defendant.

V.       Conclusion

[49]        
The plaintiff has not shown, on a balance of probabilities, that the
defendant driver was negligent.  In the circumstances, there is no need to
address damages.  The action is dismissed.

“Blok J.”