IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131220

Docket: 16515

Registry:
Nelson

Between:

Tabatha Kerr

Plaintiff

And

Thomas Hall

Defendant

Before:
The Honourable Mr. Justice Melnick

Reasons for Judgment

[1]            
This is an action for damages arising out of a motor vehicle accident. 
By agreement, this trial was restricted to the issue of liability.

I.        BACKGROUND

[2]            
On November 12, 2009, Tabatha Kerr (“Ms. Kerr”) had parked her
Pontiac motor vehicle in the Gerick Cycle parking lot adjoining Highway 3B in
Trail.  This parking lot is located near to the intersection of Highway 22 and
Highway 3B.  Essentially, from the intersection, Highways 22 and 3B (also
called Rossland Avenue at that point in Trail) go southeast to Rossland, Highway
22 north to Castlegar and Highway 3B goes in the direction of Salmo to the
east.  I have taken judicial notice of these directions only for the ease of
describing the movement of the vehicles involved.  These directions have no
significance in themselves.

[3]            
Ms. Kerr said that she was leaving the Gerick Cycle parking lot
with the intention of going downtown.  That intent required her to make a
right-hand turn from the parking lot so that she could proceed in an easterly
direction on Highway 3B which, at that point, has two east-bound lanes.  Ms. Kerr
says she stopped at the exit from the parking lot and looked to her left.  She
says that she looked up Rossland Avenue as well as Highway 3B.  However, I got
the impression from her evidence that she meant she looked up both the roadway
to Castlegar and the roadway to Rossland as both roadways were to her left.

[4]            
It was her evidence that from where she stopped to exit from the parking
lot, one can see up Rossland Avenue a bit but not as far as “the yield sign”
very well.  Access onto Highway 3B east-bound from Rossland Avenue (Highways 22
and 3B) is controlled by a yield sign.  It was Ms. Kerr’s estimate that
this yield sign was about 60 to 100 feet from the exit from the parking lot.  Ms. Kerr
said she was very familiar with the Gerick Cycle parking lot having used it
frequently.  Ms. Kerr said that before exiting the parking lot she looked
left for a few seconds.  She saw no vehicle approaching from Rossland Avenue. 
She said she then began to leave the exit to drive into the curb lane of Highway
3B.  She was not fully out of the exit she said, her vehicle essentially
rolling forward as she transferred her foot from the brake to the accelerator,
when her vehicle was struck on the front left side by a vehicle driven by
Thomas Hall (“Mr. Hall”).  Ms. Kerr said that she did not see Mr. Hall’s
vehicle before she began to pull onto Highway 3B.

[5]            
Mr. Hall says that he did see Ms. Kerr’s vehicle stopped at
the exit from the Gerick Cycle parking lot.  Given the time of year, he said,
shrubbery planted on the roadside that would appear to have the potential to
restrict one’s view between Rossland Avenue and the parking lot exit was bare
of leaves and therefore not a visual impediment.  He said he, too, was familiar
with the area involved although had not been a frequent user of the Gerick
Cycle parking lot.  He described there being a slight down grade as one
travelled from Rossland Avenue into Trail.  He said that as one travels on Rossland
Avenue toward the intersection, the speed limit is 50 kilometres per hour.  He
said he was not exceeding the speed limit.  He did a shoulder check to his left
in the direction of Castlegar and determined that it was safe to proceed
through the yield sign onto Highway 3B.  He, too, was intending to drive into
the east-bound curb lane of Highway 3B.

[6]            
Mr. Hall said that after he went past the yield sign, he saw Ms. Kerr’s
vehicle start to move.  At this point, he said, he was 100 feet or less from
her vehicle.  He said he was proceeding about 30 kilometres per hour as he went
past the yield sign then began to accelerate.  When he saw Ms. Kerr’s
vehicle pull out in front of him, he tried to avoid a collision by driving
toward the centre east-bound lane.  But, he said, Ms. Kerr did not remain
solely in the curb lane but in fact carried on into the centre lane.  She went
straight out from the parking lot, he said.  Thus, he could not drive around
her, locked up his brakes, and the front right corner of his vehicle struck Ms. Kerr’s
vehicle.  It was not put to Ms. Kerr on cross-examination that she had
driven partially into the centre lane.

[7]            
Following the collision, Mr. Hall backed his vehicle out of the way
of traffic in the centre lane.  He noted that, in hindsight, he should not have
moved his vehicle.

[8]            
Both parties denied being under the influence of alcohol or drugs.  It
is common ground that the accident happened in the area of 4 o’clock in the
afternoon.  Ms. Kerr said that following the collision Mr. Hall came
up to her vehicle and swore at her, saying he was on his way to work.  On his
examination for discovery, Mr. Hall had denied swearing at Ms. Kerr
but admitted doing so at trial.  He denied saying he was on his way to work as
he was, he said, coming from work although he was on his way to perform a task
connected to his employment.

[9]            
As to Mr. Hall’s speed, he conceded that on his examination for
discovery he said that he had been going 30 kilometres per hour both when he
went past the yield sign and immediately before the collision, but in his
direct evidence he said that he accelerated after passing the yield sign,
although at the most he would have been going not more than 40 kilometres per
hour after having done so.

[10]        
On cross-examination, Mr. Hall maintained that he had been in error
on his examination for discovery when he estimated his distance before the
yield sign when he first saw Ms. Kerr’s vehicle at 200 metres.  He said at
trial that he should have said 200 feet.

[11]        
One further point:  Ms. Kerr says that, after the collision, she
saw Mr. Hall with a cell phone to his ear before he exited his vehicle. 
He denies using a cell phone prior to the accident, saying he then used an
earpiece in any event.  He says that after he exchanged words with Ms. Kerr
after the accident, he went back to his vehicle and called his father.  Ms. Kerr
used her cell phone to call the police.

II.       DISCUSSION

[12]        
Ms. Kerr’s position is that she shoulder checked prior to exiting
onto Highway 3B.  Ms. Kerr’s theory is that Mr. Hall was driving his
vehicle through an intersection familiar to him and, when the traffic lights
were such as to allow him to proceed relative to the traffic on the
Castlegar-bound portion of Highway 22, he accelerated forward into Highway 3B
at a speed that was excessive in the circumstances where there was an issue of
visibility for vehicles exiting the car park.  There is a decline in the grade
of the roadway and there was but a short distance from the yield sign to the
parking lot.  He had seen Ms. Kerr’s vehicle stopped at the exit and
should have exercised caution as he knew she was there.  In fact, he was faced
with a yield sign and should have yielded to her as her vehicle posed an
immediate hazard.

[13]        
Mr. Hall’s position is that he had the right-of-way, that he was
not speeding and that Ms. Kerr has not demonstrated that, as Mr. Hall’s
vehicle was not an immediate hazard, it was safe to pull onto Highway 3B from
the parking lot.  She just did not see Mr. Hall’s vehicle and can only
speculate that the reason his vehicle struck her is because he was speeding. 
The damage to the vehicles is consistent with Ms. Kerr not pulling out
into the curb lane, suggested counsel for Mr. Hall.  Had she done so the
impact would probably have been a rear-end collision.

[14]        
Section 176(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA]
provides:

176 (2) The driver of a vehicle
about to enter or cross a highway from an alley, lane, driveway, building or
private road must yield the right of way to traffic approaching on the highway
so closely that it constitutes an immediate hazard.

[15]        
Thus, Ms. Kerr must establish that when she entered Highway 3B from
the Gerick Cycle parking lot it was safe for her to do so in that Mr. Hall’s
vehicle was not approaching so closely that it constituted an immediate hazard.

[16]        
As well, s. 144(a) of the MVA states:

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.

[17]        
This section is relevant to Ms. Kerr’s position that the collision
must have occurred because Mr. Hall was driving at an excessive speed in
the circumstances or failed to see her as he was not driving with due
attention.

[18]         
Ms. Kerr relies on Thomson v. Hunt, 2010 BCSC 1858. 
In that case, Mr. Justice Schultes found at para. 39, in a situation
similar to the one before me, that:

[39]      I find that the most
likely sequence of events is that Mr. Hunt approached the site of the collision
at a speed in excess of 40 kilometres per hour, which, having regard to the
configuration of Dawes Hill Road, caused him to collide with Mr. Thomson, who
sought to enter the road after having properly checked for oncoming traffic.
The manner in which Mr. Hunt controlled and operated his car could not have
provided him with sufficient time to react to other vehicles, such as Mr.
Thomson’s truck, that might seek to enter the road. Accordingly, I find that
Mr. Hunt’s breach of his duty of care was the cause of the collision.

[19]        
The only evidence I have of the manner in which Mr. Hall controlled
and operated his car is that of Mr. Hall himself.  Although there are some
inconsistencies between his evidence on examination for discovery and trial, on
the whole I find his evidence credible.  I find nothing in his evidence to
suggest that his speed was excessive in all the circumstances.  This
intersection is one which undoubtedly merits caution both when driving from Rossland
Avenue into Highway 3B through the yield sign and, particularly, when entering Highway
3B from the Gerick Cycle parking lot which is located quite close to this large
intersection.

[20]        
As the plaintiff, the burden of proof lies upon Ms. Kerr to
establish that Mr. Hall’s vehicle was not an immediate hazard.  He does
not have the burden of proving that her vehicle was not an immediate hazard of
which he was aware unless it is first demonstrated by her that there was some
fault with his driving.  In Currie v. Taylor, 2012 BCSC 1553, Mr. Justice
Armstrong, in a case involving an accident in an intersection where s. 175
of the MVA was engaged, helpfully summarized the law as follows at
paras. 65 to 68:

[65]      The leading authorities that inform the Court on
liability assessment in these kinds of collisions are: Keen v. Stene
(1964), 44 D.L.R. (2d) 350 (B.C.C.A.); Raie v. Thorpe (1963), 43 W.W.R.
405 (B.C.C.A.); and, Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450
(S.C.C.). The principles include the following:

a)  a vehicle is an immediate
hazard in circumstances where the oncoming driver is required to take a sudden
or violent action to avoid threat of the collision if the servient driver fails
to yield the right-of-way: Raie at 406.

b)  it is the movement of the
servient vehicle into the through street in the absence of an immediate hazard
that gives it the right-of-way, rather than its mere presence at the stop sign;
Keen at 360.

c)  consideration is given to the
interval of time elapsing to allow a careful oncoming driver to realize that
the servient driver is making an entry resulting in the danger of collision; Keen
at 360.

d)  the hazard is immediate if a
reasonable danger of such future collision may be apprehended at the time of
the proposed entry by the servient driver; Keen at 364 and Raie
at 405.

e)  if the dominant driver has
become aware, or should become aware that the servient driver has entered the
intersection in disregard of the law, then a duty arises to take sufficient steps
to avoid the accident was; Keen at 367.

[66]      In Keen, Mr. Justice Davey adopted the
following definition of “immediate hazard” at 359:

[A]n approaching car is an
immediate hazard if the circumstances are such as to require the driver of that
car to take some sudden or violent action to avoid threat of a collision if the
servient driver fails to yield the right-of-way. …

[67]      Mr. Justice Harris (as he then was ) in Knight
v. Li, 2011 BCSC 184 said:

[12] Note that it is the action
required of the servient driver to avoid the threat of collision – and not to
avoid the collision itself – which is relevant to assessing whether the
dominant driver constituted an immediate hazard.

[68]      The observations of Davey J.A. at 359 are pertinent
to the facts of this claim:

…"Speed and distance
generally determine what constitutes an immediate hazard", or as it was
put by Cannon J., in Swartz Bros. Ltd. v. Wills, [1935] 3 D.L.R. 277 at
279, [1935] S.C.R. 628 at p. 632: "…distances must be translated into
time in order to determine what are the rights of the parties."

But having said that, I must add
that in most automobile collision cases estimates of time, speed and distance
do not lend themselves to exact mathematical analysis, because the estimates
are by their very nature uncertain[…]

In my opinion s. 165 [now s. 175], dealing with
rights-of-way of drivers proceeding along through streets, and stopped at stop
signs on intersecting streets, is to be applied broadly from the point of view
of the motorist sitting in the driver’s seat, and not meticulously by a Judge
with the benefit of afterthought. The situation confronting a motorist, even
one waiting at a stop sign, is not a static, but a fluid one, calling for quick
appreciation and judgment. A driver waiting at a stop sign ought not to enter a
through street unless it is clear that oncoming traffic does not constitute an
immediate hazard. Excessive refinement of what traffic is an immediate hazard
will defeat the purpose of the right-of-way regulations contained in s. 165
[now s. 175], and make them an inadequate and confusing method of regulating
traffic at intersections on through streets.

[21]        
In Turner v. Dos Santos, 2012 BCSC 1382, Mr. Justice Goepel,
as he then was, dealt with a case that involved s. 176(2) of the MVA. 
At para. 30 he referred to the decision of Madam Justice Dickson in Rollins
v. Lovely, 2007 BCSC 1752 at paras. 34 to 38 respecting what constitutes an
immediate hazard:

[30]      In Rollins v. Lovely, 2007 BCSC 1752 [Rollins],
Dickson J. at paras. 34-38, concisely summarized the law interpreting the
meaning of the phrase “immediate hazard”:

[34]      When does an approaching
vehicle constitute an “immediate hazard”?  This question was considered by the
British Columbia Court of Appeal in Raie v. Thorpe (1963), 43 W.W.R.
405, a left turn case. In Raie, Tysoe J.A. stated at p. 410:

I do not propose to attempt an
exhaustive definition of “immediate hazard”. For the purposes of this appeal it
is sufficient for me to say that, in my opinion, if an approaching car is so
close to the intersection when a driver attempts to make a left turn that a
collision threatens unless there be some violent or sudden avoiding action on
the part of the driver of the approaching car, the approaching car is an
“immediate hazard” within the meaning of section 164.

[35]      The question of immediate
hazard and right of way is to be assessed temporally in the moment before the
driver proposing to make the manoeuvre at issue commences to make it: Raie,
pp. 413-414. If an approaching car does not present an immediate hazard when
the manoeuvre is commenced but later creates one by unreasonable conduct such
as speeding the approaching driver will be held responsible for an ensuring
collision: Devidi v. Filatow (1998) CanLII 6405 (BCSC).

[36]      When a driver concludes,
reasonably, that no immediate hazard is posed by oncoming traffic and commences
to cross a multi-lane highway care must be taken to keep a proper lookout as
each lane is crossed: Carich v. Cook [1992] 90 D.L.R. (4th) 322 (BCCA)
p. 326. In the words of Lambert J.A. in Carich, another left turn case
that applies by analogy:

The question as a driver turns left
is whether there is any vehicle in any approaching lanes that constitutes an
immediate hazard. If there is, the turn should not be made. If there is not,
then the turn can be made and of course, care should be taken throughout the
turn and as each new lane is entered to make sure that the situation as it was
assessed when the turn started has not changed in the meantime. But that care
is more a matter of the ordinary duty of a reasonably careful driver and not a
duty, in my view, imposed specifically by s. 176 which, in my view, states the
situation when the turn is commenced. Once the turn is commenced both of the
drivers in that situation, the one who is doing a left turn and the ones that
are approaching straight ahead in a situation where a vehicle could turn in
front of them, all must keep a proper look-out.

[37]      Drivers are generally
entitled to assume others will observe the rules of the road, except where they
know or should know otherwise: Kamoschinski v. Hein [1989] B.C.J. No.
909. As noted by Drossos, Co.Ct.J. in Kamoschinski, however, this
general rule is limited to the extent described by Lord Dunedin in Fardon v.
Harcourt-Rivington (1932), 48 T.L.R. 215 as follows:

The root of this liability is
negligence, and what is negligence depends on the facts with which you have to
deal. If the possibility of the danger emerging is reasonably apparent, then to
take no precautions is negligence; but if the possibility of danger emerging is
only a mere possibility which would never occur to the mind of a reasonable
man, then there is no negligence in not having taken extraordinary precautions.

[38]      All drivers, whether
dominant or servient, have a common law duty of care to avoid a collision which
can reasonably be foreseen and avoided: Atchison v. Kummetz (1995), 14
M.V.R. (3d) 271 (BCCA). Where a dominant driver poses an immediate hazard, the burden
of proof on the servient driver to cast a portion of the blame on the dominant
driver is significant. In the words of Cartwright J. in Walker v. Brownlee
[1952] 2 D.L.R. 450 (SCC):

While the decision of every motor vehicle collision case
must depend on its particular facts, I am of the opinion that when A, the
driver in the servient position, proceeds through an intersection in complete
disregard of his statutory duty to yield the right-of-way and a collision
results, if he seeks to cast any portion of the blame upon B, the driver having
the right-of-way, A must establish that after B became aware, or by the
exercise of reasonable care should have become aware, of A’s disregard of the
law B had in fact a sufficient opportunity to avoid the accident of which a
reasonably careful and skilful driver would have availed himself; and I do not
think that in such circumstances any doubts should be resolved in favour of A,
whose unlawful conduct was fons et origo mali.

[22]        
I conclude that, notwithstanding her evidence that she looked in the
direction of Rossland Avenue and did not see the approach of Mr. Hall’s
vehicle, Ms. Kerr has not satisfied me that Mr. Hall’s approaching
vehicle was not an immediate hazard.  He saw her vehicle stopped at the exit
from the Gerick Cycle parking lot.  He proceeded at a speed that I find was not
excessive in all the circumstances.  After he has passed the yield sign, Ms. Kerr
made her move forward.  Mr. Hall did not fail to yield at the yield sign
to Ms. Kerr’s vehicle.  She had not yet begun to exit the roadway.  At the
point in time that she did so, Mr. Hall was already past the yield sign. 
His vehicle, the dominant vehicle, was then an immediate hazard to Ms. Kerr’s
vehicle, the servient vehicle.  She had the duty to yield to him.

[23]        
In my view, it matters not in which lane the accident occurred.  Mr. Hall
may well have had the impression that Ms. Kerr drove further out into the
roadway than she did.  But assuming she was only partially into the curb lane
from the exit, that just emphasizes the fact that Mr. Hall’s vehicle was
very close indeed for her to have driven such a short distance into the roadway
before being struck.

III.       CONCLUSION

[24]        
I conclude that Ms. Kerr has not made out that she entered Highway
3B at a time when it was safe for her to do so in that Mr. Hall’s
approaching vehicle was not an immediate hazard.  Her case is dismissed with
costs to Mr. Hall on Scale B.

“Melnick
J.”