IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20140130

Docket: M102348

Registry:
Vancouver

Between:

Nguyen
Dinh Luu Le (aka Nguyen Le)

Plaintiff

And

Charla Grace Point

Defendant

Before:
The Honourable Madam Justice Russell

– and –

Docket: M112766

Registry:
Vancouver

Between:

Nguyen Dinh Luu Le

Plaintiff

And

Nancy M. Dickson

Defendant

Reasons for Judgment

Introduction

[1]            
The plaintiff, Mr. Le, was involved in two collisions.

[2]            
In the first collision, which occurred on September 3, 2008 (the “2008
Collision”), liability is admitted. In the second collision, which occurred on
March 23, 2010 (the “2010 Collision”), liability is contested.

[3]            
The plaintiff claims non-pecuniary damages, past wage loss, future wage
loss, loss of capacity, and special damages arising from both the 2008
Collision and the 2010 Collision.

[4]            
The defendant in the 2010 Collision contests liability and says the
plaintiff failed to keep a proper lookout as he came through the intersection. She
says the plaintiff is liable for his own injuries resulting from the collision.

[5]            
For reasons that will be articulated below, this decision will only
address the issue of liability for the 2010 Collision.

Liability for the 2010 Collision

The Plaintiff

[6]            
On the date of the 2010 Collision (March 23, 2010), the plaintiff was
heading west on West 33^rd Avenue in the early morning when he came
to the intersection of  33^rd and Arbutus Street. He was riding his
mother’s small Honda scooter and wearing a snowboarding helmet instead of a
standard motorcycle helmet. There was a car ahead of him turning left to travel
southbound on Arbutus.

[7]            
He says there were other cars in front of him passing the left-turning
car on the right.

[8]            
He agrees that he would not be very visible to cars heading eastbound on
Arbutus and therefore needed to be cautious as he passed the left-turning car
on the right.

[9]            
He pulled out to pass on the right. He was not travelling quickly. He
says he signalled and pulled out to pass the left-turning car at a speed of
about 35 to 45 km/h. As he came through the intersection a car driven by the
defendant Dickson turning left from 33^rd eastbound to go north on
Arbutus, was completing its turn. He tried to swerve around the car, but he
clipped its right rear taillight. He lost his balance and fell on his left side
on the road.

[10]        
It is his belief that he made contact with the left-turning car driven
by the defendant Dickson in the middle of the intersection, but he does not
remember the impact. He also does not recall whether he braked to avoid impact.

[11]        
He cannot say if he had noticed the left-turning vehicle before he
entered the intersection but says the intersection was clear.

[12]        
The scooter was written off. The defendant’s vehicle suffered only the
loss of the plastic cover over the right rear taillight. There was debris found
in the northeast corner of the intersection from the defendant’s rear
taillight.

[13]        
His helmet bore some scratches post-impact and without being certain, he
says he may have momentarily suffered a loss of consciousness although he
reported to others that he did not suffer any loss of consciousness. Fortunately,
he did not suffer any concussion.

[14]        
He had on a heavy jacket but suffered some abrasions to his left side
from contact with the road.

[15]        
He landed on his left shoulder, arm and hip when he hit the pavement.

[16]        
Immediately after he fell onto the pavement, he says he smelled gas. He
was fearful of a fire or explosion but passersby reassured him and persuaded
him not to move until the ambulance arrived.

Nancy M. Dickson

[17]        
Ms. Dickson, the defendant in the 2010 Collision, was on her normal
route to head downtown on the morning of the accident.

[18]        
She was driving alone and recalls that the weather was dry.

[19]        
She has owned her Honda CRV since she bought it in 2003 and, as far as
she knows, it was in good mechanical condition at the time of the collision.

[20]        
The defendant is familiar with the intersection of 33^rd and
Arbutus and has driven through it many times.

[21]        
She was traveling eastbound on 33^rd and on the green light,
moved into the intersection of 33^rd and Arbutus, and rolled forward
slowly while planning to turn left which would allow her to drive north along
Arbutus. There was a white car facing her in the westbound lane of Arbutus that
was waiting to turn left and therefore, south on Arbutus.

[22]        
She does not recall seeing any cars in front of her in her lane.

[23]        
She looked across the intersection and saw no one approaching. It is her
practice to turn wide at this intersection to avoid the traffic sitting in the
left, southbound lane on Arbutus.

[24]        
She began her turn and just before she completed it, she saw movement
out of the corner of her eye at the right rear of her car and realized a
scooter was about to hit the back. At that moment she was at 90 degrees to her
original position from which she began her turn with her front tires already in
the northbound lane of Arbutus.

[25]        
She said the impact was more visual than physical in that she did not
feel the impact to her vehicle.

[26]        
Immediately following the impact of the scooter with the rear of her
car, she pulled her car to the curb, called 911 and got out of her car.

Sergeant Bernardin

[27]        
Sergeant Bernardin is an experienced traffic officer with the Vancouver
Police Department in the Community Policing Division.

[28]        
On the morning of the 2010 Collision, he attended the scene because
there was an injured person present.

[29]        
The call came in at 9:29 a.m. and he was on scene some 10 minutes later.

[30]        
He does not recall if the plaintiff was still at the scene when he
arrived.

[31]        
When he arrived, the defendant’s car was facing northbound on Arbutus
and parked at the curb of the northbound lane.

[32]        
Sergeant Bernardin noted a fresh tire mark located in the northeast
corner of the north to south crosswalk on the east side of 33^rd. He
could not state with certainty whether the skid mark originated with the
scooter but it was dark and fresh and there was only one tire mark, rather than
a pair of tire marks.

[33]        
He also noted debris at the north line of the crosswalk, on the east end
of the crosswalk which crosses the north side of Arbutus. The defendant’s car
was parked just ahead of where he saw the debris.

[34]        
This debris consisted of parts of what turned out to be the right rear tail
light from the Honda CRV belonging to the defendant.

[35]        
The scooter had been taken off the roadway and was lying on the sidewalk
on the northwest corner of the intersection.

[36]        
A patch of Absorball, a product used to absorb fluids spilled and left
in the roadway, was located in the middle of the intersection.

[37]        
Sergeant Bernardin indicated that for a left-turning car to turn into
the curb lane would be a violation of section 172 of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318, but he would be unlikely to issue a violation
ticket for such an offence.

The Motor Vehicle Act

[38]        
The relevant provisions of the Motor Vehicle Act are:

Careless driving prohibited

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.

Passing on right

158 (1)
The driver of a vehicle must not cause or permit the vehicle to overtake and
pass on the right of another vehicle, except

(a) when the vehicle overtaken is
making a left turn or its driver has signalled his or her intention to make a
left turn,

(b) when on a laned roadway there
is one or more than one unobstructed lane on the side of the roadway on which
the driver is permitted to drive, or

(c) on a one way street or a
highway on which traffic is restricted to one direction of movement, where the
roadway is free from obstructions and is of sufficient width for 2 or more lanes
of moving vehicles.

(2) Despite subsection (1), a
driver of a vehicle must not cause the vehicle to overtake and pass another
vehicle on the right

(a) when the movement cannot be
made safely, or

(b) by driving the vehicle off the roadway.

Turning at intersections

165 (2)
When the driver of a vehicle intends to turn it to the left at an intersection
where traffic is permitted to move in both directions on each highway entering
the intersection, the driver must

(a) cause the vehicle to approach
the intersection in the portion of the right 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) keep the vehicle to the right
of the marked centre line or centre line of the roadway, as the case may be, at
the place the highway enters the intersection,

(c) after entering the
intersection, turn the vehicle to the left so that it leaves the intersection
to the right of the marked centre line of the roadway being entered, or if
there is no marked centre line then to the right of the centre line of the
roadway being entered, and,

(d) when practicable, turn the
vehicle in the portion of the intersection to the left of the centre of the
intersection.

(3) When the driver of a vehicle
intends to turn the vehicle left at an intersection where traffic is restricted
to one direction on one or more of the highways, the driver must cause the
vehicle to approach the intersection in the extreme left hand lane available to
traffic moving in the direction of travel of the vehicle, and after entering
the intersection turn the vehicle to the left so as to leave the intersection
as nearly as practicable in the left hand lane available to traffic moving in
the direction of travel of the vehicle on the highway being entered.

(4) If at an intersection there is
a traffic control device indicating the course to be travelled by vehicles
turning at the intersection, a driver must turn a vehicle at the intersection
in the manner directed by the traffic control device.

(5) A person must not turn a
vehicle at an intersection unless it is in the position on the highway required
by this section.

Yielding right of way on left turn

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.

Analysis

[39]        
The plaintiff submits that Ms. Dickson is completely liable for the
2010 Collision. He claims that Ms. Dickson breached her obligation as the
left turning driver to yield to the through traffic and violated the Motor
Vehicle Act in making a wide turn.

[40]        
The defendant argues that Ms. Dickson had become the dominant
driver and that the plaintiff was obligated to yield the right-of-way to her.
As such, the defendant submits that the plaintiff is 100% liable for the 2010
Collision.

[41]        
The obligation imposed on a left turning driver by s. 174 of the Motor
Vehicle Act not to start a turn if there is an immediate hazard has
priority over the obligation imposed on a through driver by s. 158 not to
pass a vehicle on its right unless it is safe to do so. This was well described
in Nerval v. Khehra, 2012 BCCA 436 at para. 35 by Harris J.A.:

[35] The effect of s. 174 is
to cast the burden of proving the absence of an immediate hazard at the moment
the left turn begins onto the left turning driver. This result flows inevitably
from the wording of the section itself, given the nature of the absolute
obligation the section creates. If a left turning driver, in the face of this
statutory obligation, asserts that he or she started to turn left when it was
safe to do so, then the burden of proving that fact rests with them.

[42]        
Accordingly, Ms. Dickson bears the onus of demonstrating that Mr. Le
was not an immediate hazard when she began her left turn.

[43]        
A vehicle is an immediate hazard if “it is so close to the intersection
when a driver is about to make a left turn that if the turn were made the
approaching driver would have to take some sudden or violent action to avoid a
threat of a collision”: Raie v. Thorpe (1963), 43 W.W.R. 405 at 410
(B.C.C.A.). I rely again on Harris J.A.’s articulation in Nerval at para. 33:

[33]      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.

[44]        
Based on the evidence presented at trial, I find that Mr. Le was
not an immediate hazard when Ms. Dickson began her turn and she therefore
became the dominant driver. I do not accept Mr. Le’s evidence that he was
following other vehicles through the intersection. If there were other vehicles
proceeding through the intersection directly in front of Mr. Le, Ms. Dickson
would have hit those vehicles in conducting her turn.

[45]        
Sergeant Bernardin reported that he found debris from Ms. Dickson’s
vehicle in the northeast corner of the intersection and one fresh tire mark at
the entrance to the intersection. This evidence corroborates the testimony of Ms. Dickson
in which she stated that she had almost completed her turn when the plaintiff
entered the intersection and collided with the rear right taillight of her
vehicle.

[46]        
The fact that she had nearly completed her turn when Mr. Le struck
her vehicle’s rear end indicates that there was a gap in traffic before Mr. Le
proceeded through the intersection.

[47]        
I am satisfied that Ms. Dickson has demonstrated that she commenced
her turn when it was safe to do so. It was incumbent on Mr. Le to yield to
Ms. Dickson as he approached the intersection.

[48]        
I now turn to the apportionment of fault. Neither establishing who had
the right-of-way nor considering who violated provisions of the Motor
Vehicle Act is sufficient to assess liability for a motor vehicle accident.
In Salaam v. Abramovic, 2010 BCCA 212 Groberman J.A. stated for the
court:

[18] While the statutory provisions provide guidelines for
assessing fault in motor vehicle accident cases, they do not, alone, provide a
complete legal framework.

[21] In the end, a court must determine whether, and to what
extent, each of the players in an accident met their common law duties of care
to other users of the road. In making that determination, a court will be
informed by the rules of the road, but those rules do not eliminate the need to
consider the reasonableness of the actions of the parties. This is both because
the rules of the road cannot comprehensively cover all possible scenarios, and
because users of the road are expected to exercise reasonable care, even when
others have failed to respect their right of way. While s. 175 of the Motor
Vehicle Act and other rules of the road are important in determining
whether the standard of care was met, they are not the exclusive measures of
that standard.

[33] The words “immediate hazard”
appear in both ss. 174 and 175 of the Motor Vehicle Act and are
used to determine when a vehicle may lawfully enter an intersection. They
determine who is the dominant driver, but do not, by themselves, define the
standard of care in a negligence action.

[49]        
Despite the finding that Ms. Dickson was the dominant driver, Mr. Le
may still demonstrate that she breached her duty of care. In Pacheco
(Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 at para. 18
(B.C.C.A.) Legg J.A. commented:

18        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….

[50]        
Based on the evidence, I find that Ms. Dickson was aware of the
risk that other vehicles in the oncoming lane could pass to the right of the
stopped left turning vehicles and exercised reasonable care in looking for such
oncoming traffic before beginning her turn. Given that Mr. Le did not reach
the intersection until Ms. Dickson had nearly completed her turn, it
appears most likely that Mr. Le did not move to pass on the right until
after Ms. Dickson commenced her turn. He was not there to be seen
proceeding to the right of the stopped vehicles when Ms. Dickson began the
turn.

[51]        
I find that Mr. Le did not keep a proper lookout as he entered the
intersection. If he had, he would have seen Ms. Dickson’s vehicle
conducting a left turn. By the time he entered the intersection, Ms. Dickson’s
vehicle was in the northeast corner of the intersection, which was directly in
front of his line of vision.

[52]        
However, Ms. Dickson has admitted that she violated s. 165 of
the Motor Vehicle Act by turning wide into the northbound curb lane of
traffic on Arbutus rather than the lane of traffic closest to the centre line.
While this in itself is not sufficient to establish that she breached her duty
of care, if she had turned into the nearest northbound lane as required, it is
likely she would have been clear of the intersection by the time that Mr. Le
entered it and the collision may never have occurred. On this basis, I find Ms. Dickson
was contributorily negligent in causing the collision despite the fact that she
was the dominant driver.

[53]        
In closing arguments the plaintiff referred to several cases in which a
left turning driver was held 100% liable for collisions: Andrews v. Mainster,
2012 BCSC 823, Clarke v. Stephan, 1993 CanLii 1554 (B.C.S.C.), Djukiv
v. Hahn, 2006 BCSC 154, Tait v. Dumansky, 2012 BCSC 332, Pasemko
v. Van Varner, 1994 CanLii 1043 (B.C.S.C.). These cases are not of
assistance to the Court in deciding the issues at hand. In all of these cases
it was found that the left turning driver failed to observe traffic which
constituted an immediate hazard and breached an obligation to yield the right-of-way.
Since I have found that Mr. Le was not an immediate hazard and Ms. Dickson
was the dominant driver, these cases are distinguishable on their facts.

[54]        
In the circumstances of this case, I apportion the fault for the 2010
Collision as 70% to Mr. Le and 30% to Ms. Dickson.

Damages

[55]        
I find myself in the unfortunate position of being unable to make any
findings regarding damages for the injuries Mr. Le has suffered.

[56]        
Counsel for the defendants made submissions based on the assumption that
Mr. Le was completely liable for the 2010 Collision and only entitled to
damages for the 2008 Collision. He provided no alternative submissions
regarding damages for the 2010 Collision, the divisibility of injuries, and the
apportionment of damages between the defendants.

[57]        
Counsel for the plaintiff made submissions based on the assumption that Ms. Dickson
was completely liable for the 2010 Collision and Mr. Le was entitled to
damages for both accidents. He similarly provided no alternative submissions. When
asked during the hearing what his client’s position was regarding apportionment
of damages if the plaintiff was found contributorily negligent for the 2010
Collision, plaintiff’s counsel insisted that there was no way that contributory
negligence could be found. When further pressed, he made a bald statement that
the injuries must be indivisible and did not provide any submissions on the calculation
of damages.

[58]        
The lack of sufficient argument on these points is disappointing when
apportionment of liability for the 2010 Collision between the plaintiff and the
defendant was a distinct possibility.

[59]        
It would not be fair to the parties to make findings on damages without
knowing their positions and without receiving argument on the matter. Counsel
will provide written submissions detailing their positions and arguments on
whether Mr. Le’s injuries are divisible or indivisible and how to calculate
and apportion damages between the defendants under each head of damages given
the finding of liability for the 2010 Collision and contributory negligence.

[60]        
I leave it to counsel to set their own timelines for the exchange and
submission of such arguments.

[61]        
If they are unable to set reasonable timelines, they may request an
appearance before me through the Registry.

Costs

[62]        
I will deal with costs once I have reviewed and come to conclusions on
counsel’s submissions on damages.

“L.D. Russell J.”

_______________________________________

The
Honourable Madam Justice Loryl D. Russell