IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131107

Docket:
M115107

Registry:
Vancouver

Between:

Roger Ekman

Plaintiff

And

Lynn Marie Cook
and William Joseph Cook

Defendants

Before: The Honourable Mr.
Justice G.C. Weatherill

Reasons for Judgment

INTRODUCTION

[1]            
This is the trial on the issue of liability for an accident that
occurred on June 11, 2011 on a rural street in Surrey British Columbia.

[2]            
The accident occurred on 16 Avenue west of its intersection with 184 Street. 
Lighting and weather were not contributing factors.  It was a flat and straight
paved roadway.  There was one lane in each direction, separated by a broken
yellow line signifying that passing was permitted.

[3]            
The defendant, Lynn Marie Cook (“Ms. Cook”), was driving westbound on 16
Avenue in a 2002 Ford F250 pick-up truck (“Truck”) owned by her son, the
defendant William Joseph Cook, with his consent.  The Truck was towing a horse
trailer (“Trailer”) containing one horse.  It was approximately eight feet
tall.

[4]            
Ms. Cook intended to turn left into the driveway (“Driveway”) of her
property, Thunder Valley Ranch, located at 18150 16 Avenue.  She and the
traffic behind her had slowed to nearly a complete stop.

[5]            
The plaintiff was also driving westbound along 16 Avenue.  He was driving
a motorcycle behind the Truck and Trailer and at least one other vehicle.

[6]            
The accident occurred when the plaintiff was attempting to pass those
vehicles and the Truck turned left to enter the Driveway.  The plaintiff’s motorcycle
collided with the Truck in the area immediately ahead of the rear wheel-well on
the driver’s side.  The plaintiff sustained serious injuries.

EVIDENCE AT TRIAL

A.  The Plaintiff’s Case

The Plaintiff

[7]            
The plaintiff was 40 years old at the time of the accident.  He described
himself as a “moderately” experienced and “cautious” motorcycle rider.

[8]            
As a result of his injuries, including a head injury, the plaintiff
remembers nothing of the accident itself.  He does recall that prior to the
accident he had been on a motorcycle trip from Surrey to Chilliwack with two
others whom he had met that day through an internet motorcycle social network.

[9]            
Subsequent to the accident, the plaintiff attended the scene and
measured the width of the eastbound lane to be ten feet, seven inches.  He
confirmed that the posted speed limit at the stretch of 16 Avenue where the
accident occurred was 60 km/h.

[10]        
The plaintiff agreed on cross examination that, if the traffic ahead of
him on 16 Avenue was stopped, it was likely stopped for a reason.

[11]        
The plaintiff was charged with an offence, presumably under the Motor
Vehicle Act.  The police officer who laid the charge did not show up at
trial.  The charge was dismissed.

Joel Bellefleur

[12]        
Mr. Bellefleur met the plaintiff for the first time on the day of the
accident.  He, the plaintiff and a woman were introduced through an on-line
motorcycle site.  They rode their respective motorcycles together from Surrey
to Chilliwack and had lunch.

[13]        
The plaintiff and Mr. Bellefleur returned to Surrey together without the
woman they had been travelling with.  The plaintiff took the lead as he was
more familiar with the route than Mr. Bellefleur was.

[14]        
Mr. Bellefleur recalls that they proceeded westbound on 16 Avenue
through the traffic lights at 184 Street.  He was approximately one to two
motorcycle lengths behind the plaintiff.

[15]        
The traffic ahead of them slowed down and had almost stopped when the
plaintiff turned into the eastbound oncoming lane to pass the almost stopped
vehicles ahead of them.

[16]        
Mr. Bellefleur also turned into the eastbound lane to follow the
plaintiff, but he saw a vehicle approaching in the eastbound lane.  He
concluded that, although there was sufficient time and distance for the
plaintiff to pass safely, there was insufficient time and distance for him to
do so.  Just as he made his decision to abort an attempt to pass the westbound vehicles,
the Truck turned left across the eastbound lane directly into the plaintiff’s
path and the collision occurred.

[17]        
The existence of the Driveway was not readily apparent.  Mr. Bellefleur
did not see the left turn signals on the Truck and Trailer were in operation.

[18]        
On cross examination, Mr. Bellefleur agreed that, although he had felt
safe following the plaintiff’s lead during their trip to and from Chilliwack,
there were instances shortly before the accident when, in his judgment, he felt
the plaintiff was taking risks passing other vehicles.

Nino Bucceri

[19]        
Mr. Bucceri was the driver of the eastbound vehicle that Mr. Bellefleur
had seen and that caused him to decide not to attempt to pass the westbound
vehicles.  Mr. Bucceri testified that there was no other eastbound traffic.

[20]        
He saw one motorcycle and then a second pull out of the westbound lane
into the eastbound lane.  He was not concerned.  He felt the motorcycles had
sufficient time and room to pass the westbound vehicles.  In his words, “they
were quite a distance away”, a couple of hundred meters.

[21]        
Seconds later, the Truck turned slowly into the eastbound lane to enter
the Driveway.

[22]        
He was unable to say whether or not the Truck’s turn signal was on prior
to it commencing its turn.

[23]        
The collision occurred a couple of seconds after the Truck began its
left turn.  It had not yet entered the Driveway at the time of the collision. 
He did not actually witness the impact because it occurred on the side of the
Truck that was not visible to him.

[24]        
He could not recall the discussion he had with the R.C.M.P. officer
after the accident.

Vanessa Bucceri

[25]        
Ms. Bucceri was a passenger in the eastbound vehicle being driven by her
husband, Mr. Bucceri.

[26]        
Ms. Bucceri testified that there was no other eastbound traffic.  There
was some oncoming westbound traffic.

[27]        
She saw two motorcycles pull out from behind the westbound traffic into
the eastbound lane, one ahead of the other.  She estimated the distance between
her vehicle and the motorcycles was approximately 200 to 300 meters.  She too was
not concerned because she felt that the motorcycles had sufficient time and
distance to safely pass the westbound vehicles.

[28]        
A few seconds later, the Truck began to slowly and gradually turn left
into the eastbound lane.  She did not see whether or not its turn signal was
on.  She did not see the collision because it occurred on the side of the Truck
that was not visible to her.

B.  The Defendants’ Case

Lynn Marie Cook

[29]        
Ms. Cook was driving the Truck at the time of the accident.  She was
driving her daughter and her daughter’s friend, Ashley Henry, home from a horse
riding event.  She testified that, both when she hooked up the Trailer to the
Truck earlier that day and when she left the event, she confirmed that the
Trailer’s brake and signal lights were operating properly.

[30]        
Ms. Cook estimated the Trailer’s length to be 10 to 12 feet.  On cross
examination, her examination for discovery transcript was put to her in which
she had testified that the trailer’s length was 16 feet.

[31]        
Ms. Cook testified that the distance along 16 Avenue from the
intersection of 184^th Street and the Driveway is approximately 300
meters.  The Driveway was marked with an orange traffic cone on one side and a
mail box on the other.

[32]        
Ms. Cook estimates that her speed after the 184 Street intersection
increased to approximately 30 to 40 km/h before she began to slow down and put
her left turn signal light on.  She noticed that there were vehicles behind
her.

[33]        
She testified that she came to a complete stop because one or two
eastbound vehicles had to go by before she could turn.  Once that traffic
cleared, she began her left turn.  There was an oncoming vehicle in the eastbound
lane approximately 500 meters away.

[34]        
She testified that, before commencing the turn, she looked over her left
shoulder and did not see the motorcycles.

[35]        
On cross examination, the plaintiff said that she also checked the
Truck’s side mirrors prior to turning.  However, in the statement she provided
to ICBC three days after the accident, she did not mention having looked in the
mirrors.  She only mentioned doing a shoulder turn.

[36]        
During her examination for discovery, she twice failed to mention checking
the mirrors when asked whether she had turned directly from where she had
stopped or whether she had accelerated in the westbound lane before commencing
the turn.   Again, she mentioned only a shoulder turn.  However, later in her
examination for discovery she did state that she also checked the mirrors.

[37]        
Ms. Cook testified that it typically takes approximately 30 seconds to
complete the turn from 16 Avenue to the Driveway with the Truck towing the
Trailer.  On cross examination, her examination for discovery transcript was
put to her in which she stated that the turn takes approximately eight to 10
seconds.

[38]        
She testified that she began to turn at approximately 5 km/h and that
all four tires of the Truck had reached the gravel of the Driveway when the collision
occurred.  She did not see the motorcycle before the collision.  She also
testified that she believes Ms. Henry told her she had not seen the motorcycles
prior to the accident either.

[39]        
Ms. Cook testified that she did not move the Truck after the collision.

[40]        
Ms. Cook retained counsel three days after the accident to advance a
claim on her behalf.

Ashley Henry

[41]        
Ms. Henry and Ms. Cook’s daughter are friends.  Both were passengers in
the Truck at the time of the accident.  Ms. Henry was seated in the rear seat
on the driver’s side.

[42]        
Ms. Henry described the traffic along 16 Avenue as average.  In the
Truck’s wide side mirror she noticed two motorcycles weaving in and out of the
traffic behind the Truck.

[43]        
The Truck proceeded westbound after the intersection at 184 Street.  She
heard the noise of the signal light come on.  She testified that the Truck came
to a complete stop to wait for oncoming traffic to clear.

[44]        
Just as the Truck began to turn left across the eastbound lane, she
looked behind because she was concerned the weaving motorcycles were going to
try to pass the Truck.  She saw a motorcycle collide into the Truck.  She
believes that the Truck was touching the gravel Driveway but was unable to say
how far into the Driveway it was at the time of the collision.

[45]        
Ms. Henry testified that, after the accident, the plaintiff was found
behind the rear wheel of the Truck either under or near it.  Ms. Cook moved the
truck forward to make room for those who were attending to the plaintiff.

[46]        
After the accident, Ms. Cook and Ms. Henry checked the brake and signal
lights of the Truck and Trailer and found them to be in working order.

[47]        
On cross examination, Ms. Henry stated that, since the accident, she had
not spoken with Ms. Cook about it.

[48]        
It was also put to her that she did not mention the weaving motor cycles
to either the police or to Ms. Cook immediately after the accident.  She had no
explanation for not having done so.

Deidre Reid

[49]        
Ms. Reid was the front seat passenger in a vehicle being driven by her
husband.  They had been driving westbound along 16 Avenue for some distance. 
She described the traffic as quite heavy.

[50]        
She testified that two motorcycles passed her vehicle in what she
described as a “reckless” manner, travelling at speeds that were substantially
higher than the speed of the other traffic along 16 Avenue, pulling out and in
between the vehicles.

[51]        
Her vehicle stopped at a red traffic light at the intersection of 16
Avenue and 184 Street.  The Truck and Trailer were first in line, then another
car, then the two motorcycles (the same motorcycles she described earlier),
then another vehicle and then Ms. Reid’s vehicle.  When the light turned green,
these vehicles began to accelerate and then slowed down fairly quickly.  She
could not recall whether they came to a stop but testified that her speed was a
maximum of 20 to 25 km/h.

[52]        
She saw that the Truck’s left turn signal light was on.  It was obvious
to her that the driver was intending to make a left turn.  Ms. Reid agreed on
cross examination that the fruit stand on the right side of 16 Avenue was very
visible to traffic and that the Driveway on the left side was difficult to see.

[53]        
She testified that, approximately one to two seconds after she saw the
Truck’s left turn signal and just after the Truck began to make a left turn,
the lead motorcycle turned into the eastbound lane to pass the vehicles ahead
of it, followed by the second motorcycle.  Ms. Reid gasped.  The collision
occurred one to two seconds later.  Shortly before the collision, she saw the first
motorcycle brake hard enough for the rear wheel to lift off the ground.  The
total time between when she saw the Truck’s turn signal and the collision was
approximately 3 to 4 seconds.

[54]        
Ms. Reid estimated that the plaintiff’s motorcycle accelerated from
almost stopped to approximately 40 to 50 km/h prior to the collision.

Constable Bonnie Sauve

[55]        
Cst. Sauve has been an R.C.M.P. officer for approximately five and one
half years.  She was on duty on June 11, 2011 and attended the scene of the
accident.  She observed the plaintiff lying on the road.  It appeared to her
that his legs were pinned underneath the Truck.

[56]        
Cst. Sauve examined the Truck and Trailer and determined that all signal
lights were in working order.

[57]        
Cst. Sauve testified on cross-examination that, during her interview of
Ms. Henry, no mention was made by Ms. Henry that she had seen the
motorcycles prior to the accident.

ANALYSIS

[58]        
Liability in motor vehicle accident cases is determined on their
individual facts: Shallow v. Dyksterhuis, 2013 BCSC 1761 at para. 16.

[59]        
Although not in and of itself a basis for a finding of negligence, the Motor
Vehicle Act does set out the respective obligations of drivers who are
passing on the left and of drivers who are making a left turn.

[60]        
A driver passing another vehicle must not do so unless it can be done
safely having regard for all the circumstances:

Passing on left

159 A driver of a vehicle must not drive to the left side of
the roadway in overtaking and passing another vehicle unless the driver can do
so in safety.

Clear view on passing

160 A driver of a vehicle must
not drive to or on the left side of the roadway, other than on a one way
highway, unless the driver has a clear view of the roadway for a safe distance,
having regard for all the circumstances.

[61]        
A driver turning left is obliged to look out for both oncoming traffic and
traffic from behind:

Turning left other than at intersection

166 A driver of a vehicle must not turn the vehicle to the
left from a highway at a place other than an intersection unless

(a) the driver causes the vehicle to approach the place on
the portion of the right hand side of the roadway that is nearest the marked
centre line, or if there is no marked centre line, then as far as practicable
in the portion of the right half of the roadway that is nearest the centre
line,

(b) the vehicle is in the position on the highway required by
paragraph (a), and

(c) the driver has ascertained
that the movement can be made in safety, having regard to the nature, condition
and use of the highway and the traffic that actually is at the time or might
reasonably be expected to be on the highway.

[62]        
The leading British Columbia authority on the relative duties of drivers
when passing is Samograd v. Collision, 1995 CarswellBC 1106 (C.A.), aff’g
1993 CarswellBC 2649 (S.C.).  In that case, the appellant on his motorcycle was
passing the respondent on a highway.  The appellant did not see that the
respondent’s left turn signal light was on.  The respondent looked in his
rear-view mirror but did not look in his side mirror before commencing to turn
left.  The trial judge apportioned liability 40:60 against the plaintiff.  The
Court of Appeal upheld that finding but, in the process, stated that the law
does not impose a greater obligation on the passing vehicle or on the
left-turning vehicle.  Both drivers’ obligations are to be assessed in relation
to the circumstances they face.  A relevant consideration is which of them had
the better opportunity to see the potential for a collision before it occurred
and therefore had a correspondingly greater opportunity to avoid it.

[63]        
It is not unusual in actions involving motor vehicle accidents for
witnesses, both those who are parties with something to gain or lose and those
who are non-parties with nothing to gain or lose, to give evidence regarding
estimates of speed, dimensions and distance with exactitude and to testify
based upon habit rather than distinct recollection.  That is not a criticism.  It
is human nature to attempt to assist the finder of fact.  In such circumstances,
the court must do its best to determine the course of events with a discerning
eye for this phenomenon.  That is the situation in this case.

[64]        
Mr. and Ms. Bucceri testified that there was no other eastbound
traffic.  Ms. Cook and Ms. Henry testified that they had to wait for other
eastbound traffic to clear before Ms. Cook could make the turn.  Neither Ms.
Reid nor Mr. Bellefleur mentioned that there was any other eastbound traffic.

[65]        
Mr. and Mrs. Bucceri testified that they were 200 to 300 meters away
from the Truck when the accident occurred.  Ms. Cook testified that the Bucceri
vehicle was 500 meters away.

[66]        
Ms. Cook and Ms. Henry testified that the Truck had come to a complete
stop.  Ms. Reid and Mr. Bellefleur thought that the traffic had almost stopped.

[67]        
When given four separate opportunities to do so, once in her statement
to ICBC, twice during her examination for discovery and once during her
evidence in chief, Ms. Cook made no mention of looking in the side mirrors
before commencing her turn.  Her later evidence during her examination for
discovery and on cross-examination that she had looked in the mirrors was more suggestive
of her habit of doing so rather than of a recollection that she did so at the
time of the accident.

[68]        
Ms. Cook testified during her evidence in chief that it takes 30 seconds
for the Truck and Trailer to complete a turn into the Driveway.  During her
examination for discovery, she estimated that time to be eight to 10 seconds.

[69]        
Ms. Reid testified that the Truck commenced its left turn immediately
before the plaintiff pulled into the eastbound lane to pass.  The Bucceris and
Mr. Bellefleur testified that the plaintiff pulled out to pass seconds before
the Truck began to turn.

[70]        
Ms. Cook testified that all four wheels of the Truck were on the gravel Driveway
at the time of the accident.  Ms. Henry believes that the Truck had just
entered the Driveway when the impact occurred.  Lining up the skid marks shown
in the police photographs with the point of impact on the Truck makes it the clear
that only the front two wheels of the Truck could have been in the Driveway at
the time of the collision.  The photos also show that the impact occurred to
the north of the solid white fog line on the south side of the eastbound land.

[71]        
Ms. Henry testified that the Truck was moved forward immediately after
the accident in order to extricate the plaintiff from under it.  Ms. Cook said
that the Truck was not moved.

[72]        
Ms. Henry testified that she never spoke to Ms. Cook after the accident
about it.  Ms. Cook said they did discuss the accident.

[73]        
Ms. Henry testified that she saw the motorcycles weaving in and out of
traffic immediately prior to the accident, yet she made no mention of this to
Cst. Sauve.  Ms. Cook testified that she believes Ms. Henry made no mention of
this to her either.

[74]        
On the whole of the evidence, I find that Ms. Cook’s recollections of
time, distances, measurements and the steps she took to determine whether her
left turn could be made safely is generally unreliable.  I prefer the evidence
of Mr. Bellefleur and of Mr. and Mrs. Bucceri, all of whom were disinterested
parties.  I also prefer the evidence of Ms. Reid except her evidence related to
the timing of when the Truck began to turn in relation to when the plaintiff
started to pass.  It defies common sense that the plaintiff would begin to pass
a vehicle as well as a large pickup truck towing a horse trailer when that
Truck was already occupying the eastbound lane to turn left.  Each of the
Bucceris and Mr. Bellefleur testified that the plaintiff pulled out to pass
before the Truck began to turn.

[75]        
I am satisfied on the whole of the evidence that the following is probably
what happened:

a)    the Truck slowed
down to make a left turn.  Ms. Cook turned the Truck’s and Trailer’s left turn
signal lights on.  They were operating properly;

b)    shortly after
the signal lights were activated, the plaintiff accelerated to pass the
westbound vehicles and did not see the signal lights;

c)     there was
no eastbound traffic approaching other than the Bucceri vehicle, which was
approximately 300 meters away.  If there had been other oncoming traffic, the
plaintiff would have had to wait for it to clear before starting his passing
manoeuvre;

d)    Ms. Cook felt
she had enough time to safely turn the Truck and Trailer into the Driveway
before the Bucceri vehicle reached her.  She slowed down to a near, but not
complete, stop before commencing the left turn into the Driveway.  Her focus
was on the approaching Bucceri vehicle and was not on the vehicles behind her.  She
either did not perform a shoulder check or look in the Truck’s side mirror
before commencing the turn or, if she did, she did not do so immediately prior
to commencing her left turn, otherwise she would have seen the plaintiff’s
motorcycle that had started to pass a matter of seconds before;

e)    Ms. Cook began
to make a left turn while the plaintiff was passing the vehicle that was
immediately behind the Truck and Trailer.  The plaintiff had accelerated to the
point that he was probably exceeding the posted speed limit of 60 km/h.  The
skid marks shown in the police photographs confirm that the plaintiff braked
hard and skidded for more than the length of the Trailer before impact.  That
is circumstantial evidence as to where the plaintiff was on the road when he
became aware that Ms. Cook was turning left; and

f)      the
impact occurred when the Truck was straddling the white fog line along the
south side of the eastbound lane.

[76]        
Ms. Cook knew she was driving slowly towing a horse trailer along a
straight roadway where passing was permitted.  She ought reasonably to have
been alive to the possibility of a passing vehicle.  She should have looked in
her side mirror and done a shoulder check in a manner timely to the
commencement of her left turn.  If it is true that Ms. Henry noticed weaving
motorcycles and was concerned they were going to try to pass, so too should Ms.
Cook have.

[77]        
Each of the plaintiff and Ms. Cook were obliged to ensure that their
respective manoeuvre could be performed safely.  I find on the balance of
probabilities that both the plaintiff and Ms. Cook failed to exercise the
appropriate standard of care expected of them in the circumstances and was
negligent and that their respective negligence caused the accident.  Each is
partly liable for the accident.

[78]        
I also find that, of the two of them, the plaintiff had the better
opportunity to assess the circumstances and avoid the collision.  It should
have been evident to him that the traffic ahead of him had slowed almost to a
stop for a reason, including the possibility that a vehicle ahead of him was
preparing to turn left.  The Truck/Trailer’s left turn signal should have been
evident to him.  It is incumbent upon drivers who are uncertain as to what is
going on ahead of them on a highway to proceed with caution when attempting to
pass.  The plaintiff did not do so.

[79]        
In my view, the appropriate apportionment of liability is 75% to the
plaintiff and 25% to Ms. Cook.  The defendant William Joseph Cook is
vicariously liable for Ms. Cook’s negligence by virtue of s. 86 of the Motor
Vehicle Act.

[80]        
The parties are at liberty to make submissions as to costs.

“Weatherill J.”