IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130521

Docket: M104368

Registry:
Vancouver

Between:

Shaeanna Vukelich,
by her Litigation Guardian, Mike Vukelich

Plaintiff

And

Christine
Vliegenthart, Jesse Young, Chrysler Financial
Services Canada Inc. and Richard Chad Brooks

Defendants

– and –

Docket: M122424

Registry:
Vancouver

Between:

Maxen Vukelich, by
his Litigation Guardian, Mike Vukelich

Plaintiff

And

Christine
Vliegenthart, Jesse Young, Chrysler Financial
Services Canada Inc. and Richard Chad Brooks

Defendants

– and –

Docket: M122425

Registry:
Vancouver

Between:

Jaden Vukelich, by
her Litigation Guardian, Mike Vukelich

Plaintiff

And

Christine
Vliegenthart, Jesse Young, Chrysler Financial
Services Canada Inc. and Richard Chad Brooks

Defendants

– and –

Docket: M122426

Registry:
Vancouver

Between:

Milan Vukelich, by
his Litigation Guardian, Mike Vukelich

Plaintiff

And

Christine
Vliegenthart, Jesse Young, Chrysler Financial
Services Canada Inc. and Richard Chad Brooks

Defendants

– and –

Docket: M114008

Registry:
Vancouver

Between:

Christine
Vliegenthart

Plaintiff

And

Jesse Young,
Chrysler Financial Services
Canada Inc. and Richard Chad Brooks

Defendants

Before:
The Honourable Mr. Justice Butler

Reasons for Judgment

[1]            
At approximately 6:15 p.m. on May 15, 2010, Christine Vliegenthart
was driving westbound on Highway 10 (also called 56th Avenue) in Surrey. It was
a sunny day, the visibility was good and the roads were dry. She had four of
her children, Shaeanna, Maxen, Jaden and Milan (the “Infant Plaintiffs”) in her
2009 Infiniti QX 56 Sport Utility Vehicle (the “SUV”). She entered the left
turn lane at the intersection of Highway 10 and 192nd Street in order to turn
south. After the car in front of the SUV completed a left turn, Ms.
Vliegenthart noticed that the light had turned yellow. She proceeded to make
her left turn without noticing the approaching 2007 Dodge Ram 150 pick-up truck
(the “Truck”).

[2]            
Jesse Young was driving the Truck on Highway 10 in an easterly
direction. She was with her infant son and a friend, Elise Cleland and her
young son. As she approached the intersection, she did not take note of the
Advance Warning Flasher (the “AWF”) which would have been activated 5.6 seconds
before the light at the intersection with 192nd Street turned yellow. Ms. Young
intended to proceed through the intersection in the right through lane and so
she maintained her speed. She noted that the light turned yellow before she
entered the intersection and decided it would not be safe to stop. She
proceeded into the intersection and did not notice the SUV turning into her
path until shortly before the collision. The force of the collision was
considerable. The SUV was flipped on its side. The damage to both vehicles was
such that neither was repairable.

[3]            
Ms. Vliegenthart and her four children all suffered injuries in the
collision and they each commenced an action against Ms. Young and her husband,
Richard Chad Brooks, the registered owner of the Truck, and Chrysler Financial
Services Canada Inc., the lessor of the Truck. Ms. Vliegenthart is named as a
defendant in the four actions commenced by the Infant Plaintiffs. The five
actions were ordered to be tried together for the purpose of determining the
issue of liability as between Ms. Young and Ms. Vliegenthart. The issue as to
the liability of Mr. Brooks as owner and Chrysler as lessor pursuant to
s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “Act”)
was adjourned by consent.

[4]            
The issues to be determined in this trial are thus:

1.       Was
the accident caused or contributed to by the negligence of Ms. Vliegenthart?

2.       Was
the accident caused or contributed to by the negligence of Ms. Young?

3.       If
the negligence of both Ms. Vliegenthart and Ms. Young contributed to the
accident, how should liability be apportioned?

[5]            
In any case where a collision occurs between a left-turning vehicle and
a through vehicle, the court must consider all of the circumstances confronting
both drivers as they approached the intersection. Having considered all of the
circumstances in this case, I conclude that Ms. Vliegenthart and Ms. Young were
both negligent and both are at fault for the accident. In order to explain my
reasons for arriving at this conclusion, I have considered the first two issues
together. I have set out the position of the parties, the relevant statutory
provisions, my findings of fact and my analysis of the liability of the two
drivers. Finally, in accordance with the provisions of the Negligence Act,
R.S.B.C. 1996, c. 333, I have apportioned fault 25% to Ms. Young and 75%
to Ms. Vliegenthart.

Liability of the Drivers

Position of the Infant Plaintiffs

[6]            
The Infant Plaintiffs say Ms. Vliegenthart was negligent because she
failed to notice the oncoming Truck and commenced a left turn when it was
unsafe to do so. The road and traffic conditions were such that there is no
reasonable excuse for her actions. They say Ms. Young was negligent because she
failed to see the AWF and thus failed to prepare to stop as she approached the
intersection. Having missed that advance warning, she approached the
intersection at a high speed and without keeping a sufficient lookout for other
vehicles at the intersection.

[7]            
In the circumstances of this accident, the Infant Plaintiffs say that it
is not possible to distinguish the degrees of fault as between the two drivers.
Accordingly, they argue that liability should be apportioned equally between
the drivers. In support of this position, the Infant Plaintiffs rely on three
decisions of this Court: Mitchell v. ICBC, 2004 BCSC 983; Luvera v.
Benedict, 2010 BCSC 1781; and McPherson v. Lange, 2012 BCSC 36.

Position of Ms. Vliegenthart

[8]            
Ms. Vliegenthart argues that the accident was caused because Ms. Young
was driving at a speed in excess of the speed limit and failed to heed the AWF.
If she had seen that signal and taken the appropriate action, she would have
been able to slow down and stop at the intersection and the accident would have
been avoided. Ms. Vliegenthart denies any negligence as she entered the
intersection on a stale yellow light as she is entitled to do. She says that
Ms. Young should be found to be 100% at fault. If Ms. Vliegenthart is found to
be at fault, she says that liability should be apportioned at least 80% to Ms.
Young.

[9]            
Ms. Vliegenthart says that courts in British Columbia have found that
left-turning drivers have no obligation to wait until all oncoming traffic has
stopped at an intersection before proceeding. Rather, a left-turning driver is
entitled to assume that the through driver will proceed lawfully and will not
breach statutory duties. Ms. Vliegenthart relies on Morgan v. Hauck (1988),
27 B.C.L.R. (2d) 118 (C.A.); Henry v. Bennett, 2011 BCSC 1254;
Kokkinis v. Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.); and Hutchings v.
Dow, 2006 BCSC 629, decisions where through drivers have been found 90% or
100% at fault for collisions with left-turning vehicles.

Position of Ms. Young

[10]        
Ms. Young argues that she was in the dominant position as the through
driver. She says the accident occurred solely because Ms. Vliegenthart started
her left turn without paying attention to oncoming traffic. As a left-turning
vehicle, she was required to yield the right of way to through traffic and
should not have proceeded in the face of an immediate hazard. She says that Ms.
Vliegenthart should be found 100% at fault. If Ms. Young was also negligent,
she remained the dominant driver and so if any fault is attributed to her it should
be 20% or less.

[11]        
Ms. Young relies on the decisions in Nerval v. Khehra, 2012 BCCA
436 and Pacheco v. Robinson (1993), 22 B.C.A.C. 185, as setting out the
proper approach for determining liability of a left-turning vehicle. She also
cites the decisions in Miller v. Dent, 2013 BCSC 489; Djukic v. Hahn,
2006 BCSC 154; and Hall v. Guo, 2007 BCPC 397, which are similar cases
where the left-turning driver was found 100% at fault.

Statutory Provisions

[12]        
The relevant provisions of the Act include the following:

119 (1) In this Part:

…

“traffic control device” means a sign, signal, line, meter,
marking, space, barrier or device, not inconsistent with this Part, placed or
erected by authority of the minister responsible for the administration of the Transportation
Act, the council of a municipality or the governing body of a treaty first
nation or a person authorized by any of them to exercise that authority;

…

125      Unless otherwise directed by a peace officer or a
person authorized by a peace officer to direct traffic, every driver of a
vehicle and every pedestrian must obey the instructions of an applicable
traffic control device.

…

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,

…

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.

…

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.

Findings of Fact

[13]        
In addition to Ms. Young and Ms. Vliegenthart, I heard evidence from Ms.
Cleland, the passenger in the Truck, and three other witnesses: Cecil Erickson,
Dominic Levy and Sally Thompson. There was a surprising level of consistency in
the witnesses’ description of the accident. As counsel noted, the two drivers
were excellent witnesses. They gave their evidence frankly without overstating
their positions. They both made appropriate concessions to matters they could
not recall or explain. I conclude that both are credible witnesses.

[14]        
My conclusions of fact follow. I do not attribute the evidence to any
witness except where there are discrepancies between the witnesses. I commence
this review with the evidence regarding the light sequencing at the
intersection.

[15]        
Kenedee Ludwar gave evidence regarding the light sequencing at the
intersection and produced a Signal Display Schematic report which describes the
signal operation at the relevant time on May 15, 2010. The report notes that
the yellow light for traffic travelling east and west on Highway 10 remains
activated for 4.5 seconds between the green and red sequences. Following the
yellow light, the lights are red for all directions of travel for a short
period of time – 1.4 seconds.

[16]        
Ms. Ludwar also described the AWFs located on Highway 10 for both
eastbound and westbound traffic. These were located approximately 80 – 90
metres before the intersection with 192nd Street. An AWF has two amber lights
in the upper corners of the sign, an image of a traffic light surrounded by a
diamond and the words “Prepare to Stop” in large capital letters across the
bottom of the sign. The amber lights are programmed to begin flashing a
calculated number of seconds in advance of the display of a yellow light at the
intersection such that a driver travelling the speed limit who passes the AWF a
fraction of a second before activation will clear the intersection prior to the
change to a yellow light.

[17]        
The AWF for eastbound traffic on Highway 10 was programmed to start
flashing 5.6 seconds before the traffic light facing the eastbound traffic
turned yellow. Accordingly, any driver travelling east at, or slightly in
excess of, the speed limit who sees the amber lights on the AWF start flashing
before he or she passes beneath the AWF would be facing a yellow light as he or
she approaches the intersection with 192nd Street. In other words, the driver
is given an advance warning that the green light at the intersection is about
to change to yellow and will do so before the car reaches the stop line.

[18]        
A number of facts which are important to the determination of liability
were not controversial. Most of the witnesses agreed that the collision
occurred when the light for eastbound traffic was yellow. Mr. Levy is the
exception but he stated that he was uncertain as to whether the light was red
or yellow. I reject his evidence as it is contrary to the evidence of all other
witnesses and he was not in as good a position to observe that timing as most
of the other witnesses.  All of the witnesses agreed that the Truck entered the
intersection on a yellow light. There is also no doubt that Ms. Vliegenthart
began her left turn on the yellow light. Accordingly, there is a 4.5 second
period of time during which Ms. Vliegenthart initiated her left turn, Ms. Young
entered the intersection, and the collision took place.

[19]        
There is also no question that Ms. Vliegenthart did not see the oncoming
Truck. She approached the intersection following a number of other left-turning
vehicles. Two or three vehicles made their left turns during the advance left
turn signal. Ms. Vliegenthart was left behind a single vehicle which had moved
into the intersection intending to turn left. Ms. Vliegenthart watched as that
vehicle completed its turn all the way through the intersection and onto 192nd
Street. At that point she noted that the traffic light had turned to yellow.
She says she was in the intersection at that point in time and had to complete
her turn. She did so without seeing the approaching Truck. There was nothing
blocking her vision of the oncoming traffic. There were no other vehicles
heading eastbound or intending to turn left to go northbound. She simply failed
to see the approaching traffic. She assumed she could turn left because the
light was yellow.

[20]        
As I have noted, Ms. Vliegenthart said she followed the preceding car
into the intersection and was actually in the intersection waiting before she
initiated the actual turn. Her evidence in that regard is supported by the
evidence of Mr. Levy but is not consistent with the evidence of Ms. Thompson
and Ms. Cleland.

[21]        
Ms. Thompson was a passenger in a car driven by her husband. They were
in the right lane of through traffic heading westbound on Highway 10. In this
position, the SUV was on Ms. Thompson’s left with one lane in between their
vehicles. Ms. Thompson stated that their vehicle was slowing to stop at the
yellow light when the SUV accelerated past them and started to turn left. If
this is correct, then the SUV must have entered the intersection after the
light turned yellow. Ms. Thompson also stated that she could see the
approaching Truck very close to the intersection and realized when the SUV
began to initiate the left turn that a collision was inevitable.

[22]        
Mr. Erickson did not give evidence on this issue, but Mr. Levy did. He
saw the SUV as it waited behind another vehicle and then saw it move towards
the middle of the intersection before commencing its turn. Ms. Young saw the
SUV waiting to turn left but did not say if the SUV was in the intersection
when she first saw it. Ms. Cleland said that when she first saw the SUV, it was
at the stop line for left-turning vehicles and was not in the intersection.

[23]        
I accept Ms. Vliegenthart’s evidence on this issue. She stressed that
she was focusing her attention on the vehicle turning left in front of her and
she followed it into the intersection before she initiated her turn. She was
quite certain of this fact and was in the best position to know where she was
before turning. Mr. Levy had a good angle to see the position of the SUV and
stated that it was in the intersection. Ms. Cleland was in a poor position to
determine if the SUV had crossed the stop line and moved into the intersection.
Ms. Thompson did not state directly that the SUV started its turn from outside
of the intersection; this was only implied by her other evidence. In addition,
Ms. Thompson did not have a good vantage point and was not focusing on the
precise location of the SUV as it started the turn. Rather, her focus was on
the fact that by initiating the left turn, the SUV was going to be struck by
the oncoming Truck. Ms. Thompson came to that conclusion as soon as she saw the
SUV start to turn.

[24]        
There was also contradictory evidence regarding the speed of Ms. Young’s
vehicle. Ms. Young was a relatively new driver at the time of the accident. She
had been driving for only two years. However, she was very familiar with the
road in question and was accustomed to driving the Truck. She indicated that
she was travelling at the speed limit as she approached the intersection. She
was confident of this fact because she is a cautious driver, particularly when
her infant son is in the vehicle with her. Ms. Young says she did not actually
look at the speedometer, however it was her practice to never drive knowingly
in excess of the speed limit. Accordingly, she says she would not have exceeded
the 70 km/hr speed limit as she approached the intersection. In cross-examination
she conceded that it is possible she was travelling slightly faster as she
drove down the hill towards the intersection. She said that she did not slow
down as she approached the intersection until just before the collision when
she applied her brakes.

[25]        
Ms. Cleland’s evidence was similar to that of Ms. Young. She agreed that
Ms. Young is a cautious driver generally and that she was not exceeding the
speed limit just prior to the accident. Mr. Erickson offered no evidence
regarding the speed of the Truck. Ms. Thompson said that the Truck’s speed did
not draw her attention.

[26]        
Mr. Levy gave contradictory evidence. He was the first car heading north
waiting for the red light to change at 192nd Street. He said that he estimated
the Truck’s speed at 80 – 90 km/hr as it approached the intersection. He
made two quick glances to his left as he was waiting for the light to change.
When he first glanced to the left, he saw the Truck a little ways up the hill.
He turned back towards the intersection and noticed that the light changed from
green to yellow after which the SUV started to turn. He then looked to his left
again and the Truck was just about to enter the intersection and knew at that
point that the SUV was going to be hit. He concluded that the Truck was
travelling faster than the speed limit based on his first observation up the
hill. He thought it looked like it was moving at a high rate of speed. He has
no training or experience in estimating the speed of moving vehicles.

[27]        
None of the parties presented accident reconstruction evidence. The
other evidence which is relevant to the speed of Ms. Young’s vehicle includes:

·      
she did not brake prior to entering the intersection;

·      
the light turned yellow before she entered the intersection; and

·      
according to Ms. Young, the Truck was a bus length away from the
intersection when the light turned yellow. She is not good at estimating
distances and so she agreed in cross-examination that she may have been further
away from the intersection.

[28]        
I conclude from all of the evidence that Ms. Young was travelling at the
speed limit or slightly above it as she approached the AWF, drove down the
slight incline and entered the intersection. In other words, she was travelling
between 70 and 80 km/hr. As I have already indicated, I found Ms. Young, like
Ms. Vliegenthart, to be a truthful witness who was striving to give accurate
testimony. The evidence of Ms. Cleland was corroborative. To a lesser extent,
so was Ms. Thompson’s statement. Mr. Levy’s estimate of speed must be given
less weight as it was based on a momentary sideways glance. I find that he
believed the Truck to be travelling faster than it was as a result of his close
proximity to the sudden and violent collision, and because his car was impacted
by the SUV after it was flipped.

[29]        
From the evidence regarding speed and Ms. Ludwar’s report, I can also
conclude that the AWF was activated before Ms. Young passed beneath it. In
other words, she had the opportunity to see the amber flashing lights of the
AWF but failed to notice or take heed of the flashing lights. Of course, given
that she did not take notice of the AWF, she did nothing to follow the
direction given; she did not “prepare to stop”.

[30]        
The final factual findings I must make are whether the Truck posed an
immediate hazard to Ms. Vliegenthart when she commenced her turn, and whether
Ms. Young was in a position to bring her vehicle to a safe stop when the light
turned yellow. These findings involve consideration of Ms. Young’s speed as
well as the evidence as to the distance of the Truck from the intersection when
the light turned yellow and the time available to Ms. Young to stop once the
SUV commenced its turn.

[31]        
In addition to Ms. Young’s estimate that she was about a bus length from
the intersection when the light turned yellow, there was considerable evidence
as to the passage of time between the yellow light and the collision. The time
estimates of the witnesses varied. However, I have concluded that these
estimates of time should be regarded with considerable caution. It is extremely
difficult to make an accurate estimate after the fact of a very brief time
period, especially where the time period ends with a shocking and unexpected
collision. The time estimates are really better described as reconstructed
guesses and I do not find them to be particularly helpful.

[32]        
Ms. Vliegenthart thought she waited three seconds after she noticed that
the light turned yellow before initiating her turn. I reject this evidence as
it would mean more than 4.5 seconds passed from the time the light turned
yellow until the collision. That would mean that the Truck entered the
intersection on a red light which is contrary to the balance of the evidence.
Mr. Erickson thought that “probably three seconds” passed between the change of
the light and the collision. He saw the light turn yellow and, of course saw
and heard the collision. Ms. Thompson thought that five seconds may have passed
from the time her husband started to slow down to the collision but she did not
see the light turn yellow. Of course, Mr. Thompson may have been slowing down
because he took note of the AWF. As a result, her evidence is not a good guide
to determining the time between the yellow light and the collision.

[33]        
In chief, Mr. Levy stated that he believed the SUV turned on a late yellow.
Mr. Levy gave a time estimate of about four seconds between the light turning
yellow and the collision, although this seemed to be a reconstruction based on
his knowledge of the light sequence and his belief that it was a late yellow.
Ms. Young and Ms. Cleland did not give time estimates but both were certain
that Ms. Young did not have time to safely stop the Truck before the
intersection when the light turned yellow.

[34]        
I cannot come to a definite conclusion as to the amount of time that
passed between the appearance of the yellow light and the collision. Similarly,
I cannot conclude with any precision how far the Truck was from the stop line
at the intersection when the light turned yellow. It might have been possible
to come to definite conclusions on these issues if accident reconstruction
evidence had been presented. However, I do not have the benefit of any such
expert evidence.

[35]        
The best evidence as to whether the Truck was in a position to stop
safely when the light turned yellow was that of Ms. Young and Ms. Cleland. I
accept their evidence and conclude that Ms. Young’s decision to proceed into
the intersection was reasonable given the speed she was travelling.

[36]        
A vehicle is an immediate hazard if it is so close to the intersection
that the through driver is required to take sudden or violent action to avoid
the threat of a collision when the left-turning vehicle commences its turn: Raie
v. Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.). The best evidence as to whether
the Truck posed an immediate hazard to Ms. Vliegenthart when she started her
turn was the direct observation of that fact by four witnesses. While I
rejected Ms. Thompson’s evidence as to Ms. Vliegenthart’s position when she
initiated her turn, I accept Ms. Thompson’s evidence regarding the proximity of
the Truck to the intersection when the SUV commenced the left turn. Her
evidence is consistent with the evidence of both Ms. Young and Ms. Cleland. It
is also consistent with Mr. Levy’s observation that the SUV was “not going to
make it”. The gist of the evidence of all four witnesses was that the Truck was
so close to the intersection when the SUV began to turn that Ms. Young had no
chance to avoid the collision given the speed at which she was travelling.
Applying the Raie test to the circumstances of this case, I conclude
that when Ms. Vliegenthart started to turn left, the Truck was so close to the
intersection that it constituted an immediate hazard.

Analysis

[37]        
The provisions in the Act that govern the obligations of a
through driver and a left-turning driver are ss. 128(1)(a) and 174. The
question as to whether the through vehicle was an immediate hazard when the
left-turning vehicle commenced its turn is the starting point for the analysis.
I have already concluded that the Truck posed an immediate hazard to Ms.
Vliegenthart at the time she commenced her left turn. Given this finding, there
is no question that Ms. Vliegenthart drove negligently. Either she failed to
look for oncoming traffic or she did so negligently. A failure to look and a failure
to see what was clearly there to be seen are equally negligent acts for a
driver turning left.

[38]        
I have concluded that Ms. Young did not breach her statutory obligation
under s. 128(1)(a) because when the light turned yellow she was travelling
at such a speed and was so close to the intersection that she could not safely
bring her vehicle to a stop. However, that finding does not end the analysis. I
also must consider Ms. Young’s manner of driving as she approached the
intersection. She did not take heed of the AWF, as a result of which she did
not obey the sign; she did not “prepare to stop” as required by the warning
device. She was thus in breach of the duty under s. 125 to “obey the
instructions of an applicable traffic control device”. In arriving at this
conclusion I have taken into account the comments of Esson J.A. in Morgan,
at 122-23, about the importance of AWF signals in intersection safety:

… I think it is time,
therefore, to emphasize the heavy onus which rests upon drivers approaching signals
of this kind to make due allowance for the possibility that there will be a
vehicle seeking to make a turn such as the plaintiff was making on this day.
Their clear duty is to comply with the warning lights; and to not “run the red”.

[39]        
Ms. Young did not pay proper heed to the circumstances facing her as she
approached the intersection. She was not paying sufficient attention to her
driving and did not prepare to stop as instructed. As a result, she approached
the intersection at or above the speed limit without paying attention to the
possibility of a left-turning vehicle. Her failure to obey the AWF, to slow
down and prepare to stop at the time of an impending light change was
negligent.

[40]        
I reject Ms. Young’s submission that no liability should be found against
her given Ms. Vliegenthart’s breach of s. 174 of the Act. Such a
conclusion would effectively mean that AWFs do not need to be obeyed. I can
take judicial notice of the fact that AWFs are now in wide use at busy
intersections. They are one of the many traffic control devices which assist in
maintaining safe roads and highways. They are a significant tool for
controlling traffic at intersections particularly at higher speed limits. When
a driver ignores or fails to obey an AWF, her actions are not only in breach of
a statutory obligation but also the common law duty to other users of the road.

[41]        
The proper approach to the consideration of liability and fault where
both the through driver and the left-turning driver are negligent and in breach
of their statutory obligations was recently considered in Nerval. The
circumstances in Nerval have some similarity to those in the present
case. The trial judge concluded that the through driver was speeding. In
addition, the through driver swerved around a vehicle that had come to a stop
at the intersection and passed that vehicle on the right when it was unsafe to
do so, contrary to s. 158 of the Act. The trial judge found that
the left-turning driver breached her obligation by commencing a left turn when
she could not see traffic in the lane beside the stopped vehicle; she turned
without having sufficient knowledge of oncoming traffic. Having concluded that
both drivers breached statutory duties and failed to meet their common law
duties, the trial judge apportioned liability 60% to the left-turning vehicle
and 40% to the through driver.

[42]        
The Court of Appeal upheld the trial decision. At para. 29, Harris
J.A. found that the trial judge “correctly concluded that the obligation
created by s. 174 has priority over the obligation created by s. 158.”
He went on to explain the extent of the obligation owed by a left-turning
vehicle at para. 33:

… The obligation imposed by s.
174 on the left turning vehicle is that it “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”.  A left turn must not be
commenced unless it is clearly safe to do so.  If there are no vehicles in the
intersection or sufficiently close to be an imminent hazard, the driver may
turn left and approaching traffic must yield the right of way.  In other words,
if a left turning driver complies with his or her obligation only to start the
left turn when no other vehicles are in the intersection or constitute an
immediate hazard, then the left turning driver assumes the relationship of
being the dominant vehicle and approaching vehicles become servient and must
yield the right of way.

[43]        
Applying this analysis to the present circumstances, there is no question
that Ms. Vliegenthart was the servient driver when she commenced the left turn.
The Truck was in close proximity to the intersection and travelling at such a
speed that it was an immediate hazard. Accordingly, Ms. Vliegenthart was
obliged to yield the right of way. She did not do so because she failed to
notice the oncoming Truck. Unlike the situation in Nerval, there were no
vehicles blocking Ms. Vliegenthart’s view. The Truck was in plain view. There
is no justification for Ms. Vliegenthart’s failure to take notice of the
oncoming traffic.

[44]        
In Nerval, Harris J.A. went on to explain at para. 38 that a
pre-existing breach of a statutory duty by the through driver does not mean
that the through driver loses her position as the dominant driver:

Whether a through driver is
dominant turns on whether the driver’s vehicle is an immediate hazard at the
material time, not why it is an immediate hazard.  Dominance identifies who
must yield the right of way.  One consequence of this analysis is that
negligence on the part of a through driver does not disqualify that driver as
the dominant driver.  The through driver remains dominant, even though their
conduct may be negligent.  Indeed, the through driver’s fault may be greater
than the servient driver’s fault.  In other words, a through driver may be an
immediate hazard even though that driver is speeding and given her speed would
have to take sudden action to avoid the threat of a collision if the left
turning driver did not yield the right of way.  The correct analysis is to
recognize that the through driver is breaching his or her common law and
perhaps statutory obligations and to address the issue as one of apportioning
fault, not to reclassify the through driver as servient based on the degree to
which the through driver is in breach of her obligations.

[45]        
Here, I have concluded that Ms. Young drove negligently as she
approached the intersection by failing to heed the AWF. Ms. Young’s negligence
preceded the negligence of Ms. Vliegenthart. However, that does not relieve the
latter of responsibility. Ms. Young’s proximity to the intersection and her
speed should have been evident to Ms. Vliegenthart. Accordingly, at the
intersection the obligation imposed by s. 174 had priority over the
obligation created by s. 125. Under the Nerval analysis, Ms. Young,
as the through driver, remained in the dominant position.

[46]        
As explained in Nerval, once a court concludes that both drivers
are negligent the issue becomes one of apportionment. This is to be
distinguished from the situation where the only negligence alleged on the part
of the through driver is that he or she failed to stop when the light turned
yellow, but the evidence fails to establish negligence on the part of the
driver in the dominant position. In those situations, the oft-quoted passage at
para. 18 in Pacheco applies:

In my opinion, when a driver in a
servient position disregards his statutory duty to yield the right of way and a
collision results, then to fix any blame on the dominant driver, the servient
driver must establish that after the dominant driver became aware, or by the
exercise of reasonable care should have become aware, of the servient driver’s
own disregard of the law, the dominant driver had a sufficient opportunity to
avoid the accident of which a reasonably careful and skilful driver would have
availed himself. In such circumstance any doubt should be resolved in favour of
the dominant driver.

[47]        
However, I have concluded that both Ms. Vliegenthart and Ms. Young
breached their statutory duties and did not meet the standard of care expected
of drivers in their circumstances. As a result of that conclusion, the other
decisions which the parties relied on where liability was found entirely
against either the through or left-turning driver are distinguishable. In Henry,
the court concluded that the through driver could have safely brought his
vehicle to a stop after the light turned yellow. By not doing so he created a
situation which was described as extremely unsafe. In Kokkinis, the
defendant through driver admitted liability. He was speeding as he approached
the intersection and the trial judge concluded that he could have stopped
safely once the light turned yellow.

[48]        
In Miller, the court found the left-turning driver 100% at fault
for the accident. The conclusion is not surprising as the trial judge found no negligence
on the part of the through driver. Similarly in both Hall and Djukic,
the courts found no negligence on the part of the through drivers who were
travelling at the speed limit and could not have stopped safely when the lights
turned yellow.

Apportionment of Liability

[49]        
Having concluded that both Ms. Young and Ms. Vliegenthart were
negligent, I must apportion fault between them in accordance with the
provisions of s. 1 of the Negligence Act. The leading decision in
British Columbia regarding apportionment of liability is Cempel v. Harrison
Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219 (C.A.). At para. 19,
the court notes that apportionment is to be determined based on “the degree to
which each person was at fault”, not the degree to which the fault of each
caused the damage. Fault requires a consideration of blameworthiness which is
“a gauge of the amount by which each proximate and effective causative agent
fell short of the standard of care that was required… in the circumstances.”

[50]        
Ms. Vliegenthart’s argument that Ms. Young should bear most of the fault
is based on a cause analysis rather than a fault analysis. She says that Ms.
Young’s failure to heed the AWF was the negligent act which put in place the
sequence of events which caused the collision, as a result of which Ms. Young
should bear the majority of the fault. I reject this argument as it fails to
take into account the relative blameworthiness of the two drivers. Here, Ms. Vliegenthart’s
turn into the path of the oncoming Truck made the accident unavoidable. The day
was sunny, the roads were dry, there were no vehicles impeding her vision and
she had no reason to expect that the Truck would come to a stop at the
intersection. The weight of her fault is certainly greater than that of Ms.
Young.

[51]        
I have considered the cases cited by the Infant Plaintiffs where
liability was apportioned equally between the left-turning driver and the
through driver. In those cases the court was unable to establish different
degrees of fault. In Mitchell, the through driver was travelling in
excess of the speed limit and had an opportunity to stop at the intersection
after the light turned yellow. Similarly, in McPherson, the through
driver entered the intersection very late in the amber or after the light
turned red. In both cases the left-turning vehicle initiated the left turn in
the face of an immediate hazard. Similar findings were also made in Tejani
v. Greenan, 2001 BCSC 803, and that court apportioned liability equally.

[52]        
When I compare the degree of fault of the through drivers in those cases
with that of Ms. Young, I conclude that her degree of blameworthiness is
somewhat less. Unlike those drivers, she could not have stopped safely when the
light turned yellow and was not travelling at an excessive speed relative to
the speed limit. Nevertheless, her failure to notice and obey the AWF was a
significant breach of duty falling well short of the standard of care.

[53]        
I conclude that liability should be apportioned 75% to Ms. Vliegenthart
and 25% to Ms. Young. Such an apportionment fairly reflects the extent to which
their respective breaches of duty fell short of the standard of care required
in the circumstances.

[54]        
If counsel are unable to agree on costs, they may make arrangements with
Supreme Court scheduling to appear before me to make submissions.

“Butler J.”