IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140919

Docket: M091319

Registry:
Vancouver

Between:

Mark Richmond

Plaintiff

And

Perminder Kaur
Channa, Jaspal Singh Channa,

City of Surrey,
Tien Sher Q5 Development Group Inc.,

Tien Sher
Development Group Inc., and Tien Sher Construction Group Ltd.

Defendants

– and –

Docket: M092432

Registry:
Vancouver

Between:

Perminder Kaur
Channa

Plaintiff

And

City of Surrey,
Tien Sher Q5 Development Group Inc.,

Tien Sher Surrey
Development Group Inc., and Tien Sher Construction Ltd.

Defendants

Before:
The Honourable Mr. Justice Skolrood

Reasons for Judgment

Introduction

[1]            
On November 21, 2008, a car driven by Mark Richmond collided with a car
driven by Perminder Channa (the “accident”) within the intersection of East
Whalley Ring Road (“Ring Road”) and 107A Avenue in Surrey, British Columbia
(the “intersection”). Mr. Richmond was travelling north on Ring Road and Ms.
Channa was travelling west on 107A Avenue.

[2]            
Ring Road is a through street that is divided into north and south lanes
by a solid yellow line. There are no traffic control devices for vehicles on
Ring Road where it intersects with 107A Avenue. 107A Avenue is a side street
with no dividing lines. It is normally controlled by stop signs located on the
east and west sides of Ring Road where the two streets intersect.

[3]            
It is common ground that Ms. Channa did not stop prior to entering the
intersection. However, Ms. Channa says that she did not see a stop sign controlling
traffic on 107A Avenue. As will be seen, the permanent stop sign at the
intersection was temporarily enclosed and obscured by construction fencing
erected on or adjacent to 107A Avenue in connection with the construction of a
condominium project on the north east corner of the intersection. The project
was being constructed by the Tien Sher defendants who I will refer to
collectively as “Tien Sher”. Tien Sher attached a temporary stop sign to the
construction fence which Ms. Channa says was not visible to drivers proceeding
west on 107A Avenue.

[4]            
Each of Mr. Richmond and Ms. Channa have commenced actions claiming
damages for the injuries they suffered in the accident. In his action, Mr.
Richmond has sued Ms. Channa, Jaspal Singh Channa, who is the owner of the vehicle
being driven by Ms. Channa, Tien Sher and the City of Surrey (the “City”). In
her action, Ms. Channa has sued Tien Sher and the City.

[5]            
Pursuant to an order dated February 15, 2013, liability in both actions
was severed from quantum and ordered to be tried together.

[6]            
While the City is a named defendant in both actions, both plaintiffs
have agreed to discontinue the actions against the City.

Summary of the Evidence

[7]            
The first witness to testify was the plaintiff, Mark Richmond, who is
currently 29 years old.

[8]            
On November 21, 2008, he worked at his normal job as a mechanic with
Short Stop Automotive in Surrey. While he normally worked from 9:00 a.m. to
5:00 p.m., on that day he stopped work at 3:00 p.m. He said that it was the day
before his birthday so he got off early.

[9]            
When he left work, Mr. Richmond drove his 1989 Honda Civic to a gas
station at 104 Avenue and King George Highway. After filling his car, he turned
onto King George Highway then right onto 104 Avenue and then left onto Ring
Road. He was heading home. He then travelled about three blocks along Ring Road
before colliding with Ms. Channa’s car.

[10]        
According to Mr. Richmond, the day was overcast but it was not raining
at the time of the accident. Because the accident occurred at about 3:00 p.m. or
3:15 p.m., it was still light out.

[11]        
Mr. Richmond was familiar with the area and with the route as he
travelled it regularly to and from work. He was wearing his seat belt and he
estimates that he was going about 50 km/hr at the time of the accident.

[12]        
He says that he looked at his speedometer just as he turned on to Ring
Road. Mr. Richmond was cross-examined on the fact that in his statement to
ICBC, given December 1, 2008 shortly after the accident, he estimated that he
was going 50 – 60 km/hr. He agreed that he may have given that estimate at the
time but at trial he was certain that he was travelling at 50 km/hr.

[13]        
Mr. Richmond described Ring Road as a main road whereas 107A is more of
a side street. As noted, there are no traffic control devices on Ring Road at
the intersection whereas there are stop signs for the traffic on 107A Avenue.

[14]        
As Mr. Richmond entered the intersection, he says that Ms. Channa’s car
appeared in front of him suddenly. He glimpsed it with his peripheral vision
but had no time to react. The front of his car struck the driver’s side door of
Ms. Channa’s car. Mr. Richmond described the impact as extreme. It was
sufficient to cause Mr. Richmond to strike his head on the windshield and to
send his toolbox, which was loose in the back seat, through the rear passenger
side window.

[15]        
Police, ambulance and fire emergency personnel attended the scene of the
accident. Mr. Richmond’s car had to be towed and it was later written off.

[16]        
Mr. Richmond testified that at the time of the accident, there was
construction occurring on the north east corner of the intersection. In
connection with the construction, a blue metal fence had been erected that ran
alongside the construction site on 107A Avenue and then in front of the site on
Ring Road. On the 107A side, the fence was situated on the actual road, thus
narrowing the traffic lanes. According to Mr. Richmond, the fence was
approximately eight feet high.

[17]        
A number of photographs of the accident scene were entered into
evidence, some taken on November 21, 2008 shortly after the accident, and some
taken a few days later.

[18]        
It is apparent from both sets of photographs that there is a permanent stop
sign at the intersection for traffic heading west on 107A Avenue. However, at
the time the photographs were taken, that stop sign was well within the
construction fence and, for traffic heading west on 107A Avenue, it was at
least partially obscured by construction materials and equipment also located
within the boundaries of the fence. There is also a stop sign on the opposite
side of the intersection controlling traffic heading east on 107A Avenue.

[19]        
In some of the photographs taken on the day of the accident, a second,
temporary, stop sign can be seen stuck into the fence close to the point where
107A Avenue intersects with Ring Road. The temporary stop sign is smaller than
a normal stop sign and is affixed to the fence at an angle. However, just
before the point where it is affixed, the construction fence curves to the
right such that the temporary stop sign is not clearly visible to vehicles
travelling west on 107A Avenue.

[20]        
In the photographs taken a few days after the accident, there is a new
upright temporary stop sign set up at the point where 107A Avenue intersects
with Ring Road, which would be much more visible to traffic heading west on
107A Avenue.

[21]        
Both sets of photographs were taken by Ms. Channa’s son Davinder. He was
called to the accident scene on November 21, 2008 by a friend of his mother. He
arrived to find his mother still trapped in her car.

[22]        
Emergency personnel had to remove the driver’s side door from Ms.
Channa’s car in order to extricate her. After watching his mother be removed
and taken away in an ambulance, Davinder says that he observed the scene and
took the photographs.

[23]        
The photographs provide a number of different views of the scene. Of
particular note are the photographs taken from a vantage point on 107A Avenue slightly
east of the intersection and facing west. According to Davinder, he was trying
to replicate the view that his mother would have had as she approached the
intersection.

[24]        
As noted above, in many of the photographs the temporary stop sign is
not visible due to the line of the fence. In at least one photograph, taken on
107A Avenue a fair distance east of the intersection and directly adjacent to
the fence, the permanent stop sign inside the fence is not visible. In other
photographs, again taken east of the intersection but across 107A Avenue on the
south side, the permanent stop sign is visible but partially obscured.

[25]        
Davinder Channa returned to the accident scene a few days later and took
the second set of photographs. On his return, he noted that a new upright stop
sign had been erected at the intersection for traffic travelling west on 107A
Avenue and it appeared to him that the fence had been moved back some along
107A Avenue.

[26]        
Ms. Channa also testified about the accident. She is currently 54 years
old and resides in Surrey.

[27]        
At the time of the accident, she was employed as a security guard by
Securitas. On November 21, 2008, she was travelling to the Securitas head
office in Surrey to pick up a lay off slip as her work is seasonal.

[28]        
According to Ms. Channa, she left home at about 2:15 p.m. that afternoon
and travelled to 84 Avenue and 144 Street in Surrey to pick up a friend who was
to accompany her to the Securitas office. She was driving a 2005 silver
Chevrolet Cavalier. Ms. Channa said that it was drizzling and that she had her
wipers on.

[29]        
After picking up her friend, her route took her south on 138 Street then
west on 107A Avenue towards Ring Road. The Securitas office was just off 107A
Avenue on the other side of Ring Road, at 108 Avenue and 138 Street.

[30]        
Ms. Channa said that she was not familiar with 107A Avenue as she
normally approached the Securitas office from a different direction, off King
George Highway.

[31]        
As she travelled along 107A Avenue, Ms. Channa said that she noticed the
blue construction fence on her right side. She says that she was travelling at
50 km/hr but that as she approached the intersection with Ring Road, she took
her foot off the gas and put it on the brake so she was slowing as she entered
the intersection.

[32]        
Ms. Channa was adamant in her evidence that there was no stop sign at
the intersection for traffic going west on 107A Avenue. She therefore entered
the intersection but said that she looked left and right as she did so. She did
not see any traffic in either direction. However, when she got to the middle of
the intersection, a car appeared out of nowhere to her left and struck her. She
said that she had no time to react.

[33]        
After the accident, Ms. Channa was stuck in her car for about an hour
while emergency personnel worked to free her. She was then taken by ambulance
to the hospital.

[34]        
When shown the photographs in evidence, Ms. Channa again insisted that
she did not see a stop sign at the intersection nor did she see any red barrels
located at the intersection. In other words, she said that she saw neither the
permanent stop sign inside the fenced area or the temporary stop sign stuck in
the fence.

[35]        
Ms. Channa was asked in cross-examination if she understood that 107A
Avenue was a side street whereas Ring Road was a main street. She initially
indicated that she did not understand what was meant by a side street, however
she was presented with extracts from her examination for discovery in which she
agreed that she knew she was on a side street and was approaching a major
roadway.

[36]        
Ms. Channa steadfastly maintained on cross-examination that there was no
stop sign facing her on 107A Avenue at the intersection. She agreed that she
approached it as an uncontrolled intersection which is why she started to slow
down as she approached and why she looked left and right as she entered the
intersection.

[37]        
Mr. Chuck Pereira was called as a witness by the Tien Sher defendants. Mr.
Pereira is the manager of roads and drainage for the City. He testified that he
is familiar with the intersection.

[38]        
Mr. Pereira described 107A Avenue as a local road, meaning that it is
generally for local or residential traffic. It has stop signs for east and west
bound traffic at the intersection with Ring Road.

[39]        
He described Ring Road as an arterial roadway, meaning that it connects
different parts of the City. There are no traffic control signs or devices on
Ring Road at the intersection with 107A Avenue.

[40]        
Mr. Pereira was also familiar with the construction site on the north east
corner of the intersection. He was also aware that fencing had been erected
around the site. According to Mr. Pereira, because the fencing was erected on
the city streets, a traffic obstruction permit from the City was required.

[41]        
Mr. Pereira identified a Traffic Construction Permit and a City Road and
ROW Use Permit both issued effective June 19, 2007 in connection with the
construction site.

[42]        
Mr. Pereira noted that neither permit required a traffic control plan
for the site but the Traffic Obstruction Permit stipulated that the prime contractor
must comply with the B.C. Traffic Control Manual for Work on Roadways (the “Manual”).

[43]        
Mr. Pereira reviewed the photographs of the accident scene. When showed
a photograph of the temporary stop sign stuck in the construction fence, Mr.
Pereira said it looked like a flag person’s paddle. According to Mr. Pereira,
he would not have accepted the temporary stop sign or paddle simply stuck into
the fence. In cross-examination, he indicated that he would be concerned that
the temporary sign would not be visible to a motorist on 107A Avenue.

[44]        
Mr. Pereira also
identified various Requests for Service forms which he said are forms that are
created when someone requests a particular city service. One of the forms is
dated November 21, 2008 and Mr. Pereira indicated that this request for service
was made following the accident. It was initiated by the RCMP and on the form
it is noted:

RCMP
says Stop sign is too low causing an MVA

and

Stop sign is
surrounded by construction fence-coming out 20’

[45]        
It was this Request for Service that resulted in the erection of the
upright stop sign at the intersection.

[46]        
Mr. Pereira testified that he was not aware of any other accidents
occurring at the intersection during construction or any other problems being
brought to the City’s attention.

[47]        
In cross-examination, Mr. Pereira was shown the Manual and he agreed
that, in accordance with the Manual, Tien Sher should have erected signs on
107A Avenue warning of the obstruction caused by the construction fence.

[48]        
Mr. Ryan Jenkins was the project manager for the construction project,
employed by Tien Sher. He assumed that role at the beginning of 2008 and, as
part of his job, he was responsible for coordinating the design drawings,
working with sub-trades and dealing with budget and timing issues.

[49]        
He said that he had no role with respect to the fencing or traffic
control. Those were the responsibility of site personnel, specifically the site
superintendent Franco Jiminez and the site safety officer Sam Taker.

[50]        
Mr. Jenkins was also shown portions of the Manual and he agreed that it
provides standards and requirements for traffic control on public roadways in
connection with construction projects. Like Mr. Pereira, Mr. Jenkins agreed
that according to the Manual, there should have been warning signs on 107A Avenue
alerting drivers to the obstruction caused by the fence.

[51]        
Mr. Doug Mossey is currently the inspection services manager for the
land development division of the City. In November 2008, he was a capital
projects engineer also employed by the City.

[52]        
Mr. Mossey testified about the permits required when a contractor
intends to obstruct traffic in connection with a project. These again are a
Traffic Obstruction Permit and a City Road and ROW Use Permit, both of which
were issued to Tien Sher in relation to the construction at the intersection.

[53]        
In viewing the photographs of the accident scene, Mr. Mossey testified
that the temporary stop sign stuck in the fence would have been perceived as an
immediate safety concern had he or any other city inspectors seen it.

[54]        
Mr. Sam Taker was the site safety officer employed by Tien Sher at the
construction site in November of 2008. Mr. Taker worked for 32 years in the
forest industry, including the last 16 years up until 2005 as a site
superintendent at a mill. As part of that work history, he received
considerable safety training.

[55]        
He subsequently joined the construction industry and obtained his site
safety ticket from the B.C. Safety Council. As part of that process, there was
some training in traffic control and safety, albeit only for an hour or so.

[56]        
Mr. Taker testified that he erected the temporary stop sign by sticking
the flag person’s paddle into the fence and securing it with wire. He said that
his decision to attach the sign to the fence at that location and in that
manner was based on his experience as well as common sense. He says he placed
it at a height of about six feet again based on common sense. He believed that
it was easily visible to drivers travelling west on 107A Avenue.

[57]        
According to Mr. Taker, the temporary sign was there for at least two or
three months before the accident occurred and there were no previous incidents
attributable to the sign. He did not think it was necessary to put up any
advance warning signs on 107A Avenue because the temporary stop sign was
clearly visible.

[58]        
Mr. Taker said that he was not familiar with the Manual or the
requirements set out in the Manual for temporary traffic control signs.

[59]        
Tien Sher relies on the expert opinion of Timothy Leggett, P. Eng., a
mechanical engineer and an expert in accident reconstruction. Mr. Leggett
prepared an animation purporting to depict the accident as well as a related
report dated June 9, 2014.

[60]        
The essence of Mr. Leggett’s opinion is that each of Mr. Richmond’s and
Ms. Channa’s vehicles were visible to the other driver for between 2 – 2.9
seconds prior to impact which should have allowed them to take evasive action.

[61]        
In response, Ms. Channa, in her capacity as plaintiff in her action,
relies on the expert opinion of Amrit Toor, P. Eng., who like Mr. Leggett is a
mechanical engineer and an accident reconstruction expert. Mr. Toor prepared a
technical evaluation and critique of Mr. Leggett’s animation and report.

[62]        
Mr. Toor disputes Mr. Leggett’s opinion. According to Mr. Toor, there
are numerous flaws and inaccuracies in the animation such that it presents a
misleading depiction of what occurred. Mr. Toor also opines that the software
used by Mr. Leggett to create the animation is not industry standard.

[63]        
I will return to the expert reports below.

The Parties’ Positions

[64]        
Mr. Richmond submits that he bears no responsibility for the accident
and that liability must be apportioned between Ms. Channa and Tien Sher. It is
his position that he was travelling lawfully along Ring Road at the posted
speed limit through an intersection in which he had the right of way.

[65]        
According to Mr. Richmond, Ms. Channa’s vehicle appeared out of nowhere
and he had no time to react or to take evasive action. As such, he says this
case is distinguishable from cases in which a dominant driver has been found to
be contributorily negligent for failing to adequately recognize and respond to
a hazard when it presented.

[66]        
Ms. Channa was represented by separate counsel in her different roles as
plaintiff in her own action and as a defendant in Mr. Richmond’s action. In her
capacity as plaintiff, Ms. Channa submits that Tien Sher is 100% liable for the
accident as it created the hazard that resulted in the accident. Ms. Channa’s
counsel in her role as a defendant in the Richmond action supports this
position but submits in the alternative, that Mr. Richmond was contributorily
negligent in that he failed to slow down when entering a construction zone and
failed to appreciate the potential hazard created by the construction.

[67]        
Tien Sher acknowledges that its placement of the temporary stop sign was
not optimal but submits that both Mr. Richmond and Ms. Channa failed to
exercise reasonable care when approaching the intersection and both should
therefore bear a significant degree of liability.

Analysis

The Expert Evidence

[68]        
Before turning to an assessment of each party’s conduct, it is useful to
touch further on the expert evidence.

[69]        
As noted, Mr. Leggett produced an animation purporting to demonstrate
what occurred in the accident. As explained by Mr. Leggett, an animation is
different from a simulation, another tool often used in accident reconstruction.
For an animation, the animator provides the computer with a number of key
factors such as the speed of the vehicles, the layout of the accident scene,
the location of the collision and any structures or other physical features in
the vicinity. The computer software then generates a depiction of what occurred.

[70]        
In contrast, a simulation is more of an investigative tool. For example,
in a simulation, the investigator may enter data such as the location and
length of skid marks and then the software uses that information to determine
the speed of the vehicles involved.

[71]        
In this case, Mr. Leggett again produced an animation to demonstrate
what may have occurred based on the information he was provided. It follows
that the animation is only as accurate as the underlying data or information
that went into its creation.

[72]        
It is on this point that Mr. Toor takes issue with the animation and
with Mr. Leggett’s accompanying report. He identifies a number of inaccuracies
in the animation including the following:

a)    Mr. Leggett
relied on a Google Earth aerial photograph of the intersection taken in April
2008 to place the blue construction fence yet the photographs taken on the day
of the accident suggest that the fence was in a different location;

b)    The photographs
also indicate significantly more equipment and construction materials located
inside the fence than what is depicted in the animation;

c)     The fence
itself is depicted in the animation as simply having horizontal bars yet the
actual fence has both horizontal and vertical bars which provides for less
visibility;

d)    The temporary
stop sign placed in the construction fence appears much larger in the animation
than it actually was. It was acknowledged that the temporary sign was in fact a
flag person’s paddle whereas a full-sized stop sign is used in the animation;
and

e)    The animation
does not include a number of features present at the accident scene that may
have affected the drivers’ visibility, including foliage along a fence on the
south east corner of the intersection.

[73]        
Mr. Toor also takes issue with the time/distance analysis in Mr. Leggett’s
report, where he opines that if both vehicles were travelling at 50 km/hr as they
approached the intersection, they would have seen each other about 2 seconds
prior to impact. That interval expands to 2.9 seconds if Ms. Channa was
travelling at 30 km/hr.

[74]        
According to Mr. Toor, this analysis does not take account of the
applicable perception/response time of the drivers. He notes that there is
typically a difference in time between when a driver identifies an object in
his or her field of vision and when that object is recognized as a hazard. That
perception/response time may vary from 1.1 – 1.5 seconds. As Mr. Toor notes,
when the perception/response time is factored into the time that Mr. Leggett
says the drivers would have had the other vehicle in their line of sight, it is
clear that there was minimal time to react.

[75]        
In my view, Mr. Toor overstates a number of his criticisms of Mr. Leggett’s
report. For example, he takes issue with the fact that Mr. Leggett did not
account for the fact that it may have been raining at the time of the accident
which would have impaired visibility. Mr. Toor points to a photograph showing
droplets of water on the window of Ms. Channa’s car as some indication of rain.
However, this photograph was taken well after the accident and Mr. Toor’s
criticism ignores the police report that it was not in fact raining at the time
of the accident.

[76]        
Similarly, Mr. Toor criticizes Mr. Leggett for not accounting for the
possibility of parked cars along the south side of 107A Avenue which also would
have affected Ms. Channa’s ability to see along Ring Road in the direction from
which Mr. Richmond was coming. However, there is no evidence that there were in
fact any parked cars and, from the photographs, it is apparent that there was
no place for cars to park for at least half a block on 107A Avenue immediately
before the intersection.

[77]        
Despite Mr. Toor’s overstated criticism of Mr. Leggett’s animation and
report, I agree with Ms. Channa and Mr. Richmond that Mr. Leggett’s evidence
should be accorded minimal weight. In particular, I find that the animation
does not provide an accurate depiction of the scene given the location and
construction of the fence, the absence of various key physical features at the
scene and the misleading size of the temporary stop sign.

[78]        
I also do not accept that Mr. Richmond and Ms. Channa had between 2 and
2.9 seconds in which they would have seen the other car and could have taken
avoidance measures. As pointed out by Mr. Toor, this fails to account for
perception/reaction time and, in any event, is inconsistent with the evidence
of both drivers that they did not in fact see the other vehicle until a split
second before impact.

[79]        
For these reasons, the expert evidence is of no assistance in
determining the liability issues.

[80]        
I turn now to the conduct of each of the parties.

Mr. Richmond

[81]        
Again, the grounds on which it is said that Mr. Richmond was negligent are
that he was speeding into a construction zone and that he failed to look for
possible traffic emerging from 107A Avenue. Tien Sher notes Mr. Richmond’s
evidence that he was not looking for traffic on 107A Avenue but was focused on
the next intersection down the road which was controlled by a traffic light.

[82]        
Tien Sher cites a number of cases dealing with dominant versus servient
drivers in which the dominant driver was found contributorily negligent. See
for example, Neufeld v. McCrae, 2008 BCSC 539, Slinger v.
Krakalovich, [1996] B.C.J. No. 988, Gautreau v. Hollige, 2000 BCCA
390 and Nanji v. Habib, [1996] B.C.J. No. 1136 (S.C.).

[83]        
In each of these cases the dominant driver, who had the right of way,
was nonetheless found to have failed to keep an adequate look out. For example,
in Gautreau, the accident occurred at the intersection of Drake Street
and Burrard Street in Vancouver. Drake Street forms a “T” intersection with
Burrard and is controlled by a stop sign. Traffic on Burrard is controlled by a
flashing green light which when pedestrian activated turns to red.

[84]        
The evidence established that the plaintiff was travelling west on Drake
Street and came to a stop at the stop sign located at the intersection with
Burrard. The defendant was proceeding north on Burrard. The light on Burrard
was flashing green. After stopping at the stop sign, the plaintiff pulled on to
Burrard intending to cross the northbound lanes and turn southbound. While in
the course of making the turn, he was struck by the defendant’s vehicle.

[85]        
The trial judge apportioned liability 50/50 between the two drivers. While
noting that the defendant was in the position of dominance, the trial judge
found that he failed to see the plaintiff stopped at the stop sign on Drake
Street, failed to see the plaintiff enter the intersection and was oblivious to
the flashing green light which should have alerted him to the presence of a
crosswalk and intersection.

[86]        
On appeal by the defendant, the Court of Appeal held that the trial
judge properly considered the presence of the flashing light and the fact that
the plaintiff entered the intersection at a slow and reasonable speed as
factors going to the defendant’s liability. However, the Court of Appeal
reapportioned liability 75% to the plaintiff and 25% to the defendant.

[87]        
The same apportionment was ordered in Neufeld and in Slinger
on the basis that the dominant driver failed to account for the hazard
presented by the servient vehicle when it first appeared.

[88]        
In my view, these cases are distinguishable from the case at bar. Mr.
Richmond’s evidence was that he did not see Ms. Channa’s car until it was
virtually right in front of him and that he had no time to react. Further,
there are no traffic control signals for traffic on Ring Road at the
intersection that might have alerted Mr. Richmond to a potential hazard, as was
the case in Gautreau. Mr. Richmond was familiar with the intersection
and knew that there were stop signs on 107A Avenue. He knew that he had the
right of way.

[89]        
In terms of his speed, I accept Mr. Richmond’s evidence that he was
travelling at 50 km/hr, the posted speed limit. I also accept that he was alert
to his surroundings and was driving with due care and attention.

[90]        
In my view, to find Mr. Richmond even partially liable in the
circumstances of this case for failing to avoid an unforeseen hazard would be
to hold him to an unfair and unrealistic standard of perfection beyond what the
law requires.

[91]        
The facts of this case are similar to those in Callard v. Whitely,
[1993] B.C.J. No. 334 (S.C.) which involved a collision at the intersection of
60 Avenue and 132 Street in Surrey. According to the facts set out in the
judgment, 60 Avenue runs east/west and 132 Street runs north/south. On the westerly
approach of 60 Avenue to 132 Street, there is a “stop ahead” sign and, just
before the intersection, a white “stop bar” is painted on the pavement. While
there was normally a stop sign at the intersection as well, at the time of the
accident, it had been removed by persons unknown.

[92]        
The plaintiff was driving west on 60 Avenue. She testified that she was
unfamiliar with the intersection and that she did not see either the “stop
ahead” sign or the painted stop bar. She said that she thought that it was an
uncontrolled intersection and she slowed as she entered it. She was struck by
the defendant’s vehicle that was travelling north on 132 Street.

[93]        
The plaintiff sued both the defendant and the City of Surrey. Her action
against the defendant was dismissed. Mr. Justice Millward found that the
defendant was familiar with the intersection as he drove through it regularly
on his way to and from work. He was aware that there were stop signs on 60
Avenue and 132 Street. The defendant was travelling at the posted speed limit
and had a clear view of the intersection. Mr. Justice Millward found that the
defendant did not see the plaintiff’s vehicle until a moment before impact, at
which time he slammed on his brakes.

[94]        
In the circumstances, Mr. Justice Millward concluded that the defendant
“did everything that could reasonably be expected of him”.

[95]        
I find the same to be true of Mr. Richmond in this case. He bears no
responsibility for the accident.

Tien Sher

[96]        
In assessing the conduct of Tien Sher, the requirements set out in the
Manual are relevant. A very helpful discussion of the Manual and its
application can be found in Van Tent v. Abbotsford (City), (25 May
2012), Vancouver M060300 (BCSC), aff’d 2013 BCCA 236 where Madam Justice
Ballance described the Manual in these terms at paras. 5 – 6:

The Manual sets forth basic principles and prescribes
standards for the design, application, installation and maintenance of the
types of traffic control used in work and construction zones. Traffic control
devices discussed in the Manual include signs, signals, lighting devices,
markings, barricades, channelization, and hanging signalling.

The traffic control standards
detailed in the Manual apply to all work zones on all streets and highways open
to public travel, irrespective of the type of roadway or the authority having
jurisdiction over it. The Manual provides that the function of traffic control
devices is to ensure roadway safety in two main ways. First, to provide for the
orderly and safe movement of vehicles throughout the road system; and second,
to provide guidance, regulation, and warning as is needed to ensure the safe
passage of the individual elements of the traffic stream. The traffic control
devices are meant to assist motorists [to] safely traverse any facility open to
public travel.

[97]        
Madam Justice Ballance went on to note at para. 11 that the Manual
expressly states that the traffic control guidelines and the standards that it
prescribes are generally the minimum required.

[98]        
Later in her Reasons, Madam Justice Ballance discussed the relevance of
the Manual when considering the standard of care applicable to a contractor
performing work on a public roadway (at para. 71):

In this case, the standard of
care is greatly informed, although not dictated, by the collection of uniform
traffic control standards detailed in the Manual. By virtue of performing
construction work on a provincial highway, the defendants were required, at a
minimum, to abide by the principles and guidelines it contained. The applicable
standards endorsed in the Manual accord with common sense and the conduct
expected of a prudent contractor in the circumstances in relation to the task
of ensuring the safety of the users of the road and work crews during times of
construction and maintenance.

[99]        
Without going through the Manual in detail, it is apparent that the
temporary stop sign was not placed in accordance with many of the guidelines
and requirements set out therein.

[100]    
For example, section 1.1.3, titled “Driver Information Needs in Work Zones”
notes:

The usefulness of traffic control devices intended to assist
motorists in guidance and navigation tasks depends on whether the devices
satisfy a driver’s need for information. Both the message content and the
placement of traffic control devices must be carefully considered.

Inappropriate or unclear messages
and/or incorrect placement of signs, markings, and other traffic control
devices can mislead and confuse the motorist.

[101]    
Specifically, with respect to the posting of temporary signs, the Manual
stipulates in section 2.1.1:

Signs may be attached to posts or
to portable supports. Most signs should be post-mounted on long-term projects. Temporary
STOP and YIELD signs should be mounted at approximately the same height and in
approximately the same position as for permanent installations.

[102]    
Section 2.1.2 addresses the issue of sign size:

In any given work zone…Regulatory
sign sizes should not be smaller than those normally required on a roadway with
a similar legal speed limit.

[103]    
Particularly troublesome when considering Tien Sher’s conduct is the
fact that its safety officer, Mr. Taker, who installed the temporary stop sign,
testified that he had no understanding or even awareness of the Manual and its
requirements. In this regard, section 1.1.4 of the Manual states:

Personnel whose actions affect
work zone safety should receive training appropriate to the job decisions those
individuals are required to make. Only those individuals who are qualified in
safe traffic control practices and have a basic understanding of the principles
established by applicable standards and Regulations, should supervise the
selection, placement and maintenance of traffic control devices in work zones.

[104]     Clearly,
Mr. Taker was not adequately trained to make decisions about the location, and
placement, of the temporary stop sign.

[105]     Tien Sher
acknowledges that it owed a duty of care to protect the public from its
construction activities, which included a duty to ensure that traffic in the
vicinity of the construction site could continue to safely use the affected
roads. It further acknowledges that the temporary stop sign was not placed in
accordance with the Manual. However, Tien Sher notes Madam Justice Ballance’s
comments in Van Tent that the standard of care is informed rather than
dictated by the Manual. It further notes that many of the guidelines contained
in the Manual are not mandatory in that they use the term “should” rather than
“shall,” and that it obtained the required permits from Surrey authorizing the
placement of the fence around the construction site.

[106]     Tien Sher
submits further that principal fault for the accident lies with Ms. Channa who
paid little attention to the conditions around her as she proceeded through the
construction zone and into the intersection. Tien Sher says that had Ms. Channa
been paying proper attention, she would have seen the permanent stop sign
located inside the construction fence and would also have seen the temporary
stop sign and the warning barrels located at the intersection.

[107]     Ms. Channa
again disputes the notion that she is in any way liable. She insists that she
approached and entered the intersection with due care and attention but was
prevented from seeing the stop sign by reason of Tien Sher’s negligence.

[108]     Ms. Channa
cites the decision of the Alberta Court of Queen’s Bench in Campbell v.
Calgary, [1984] A.J. No. 908 which involved an accident that occurred when
a driver failed to stop at a stop sign that was obscured by a large bush. The
evidence established that because of the bush, a motorist approaching the
intersection could not see the stop sign at any point before actually entering
the intersection or perhaps a fraction of a second before.

[109]     In finding
the city liable for the accident, the court held that having erected the sign,
the city had a duty to maintain it and the site around it, which it failed to
do.

[110]     In the
case at bar, I find that Tien Sher bears primary responsibility for the
accident. It is clear from the evidence that the temporary stop sign, which
again was in fact a flag person’s paddle, was placed on the construction fence
at a point where the line of the fence had already started to curve to the
right or to the north. As such, it was not visible to vehicles travelling west
on 107A Avenue until just before those vehicles actually enter the intersection
with Ring Road.

[111]     Further,
the size and placement of the temporary stop sign was wholly inadequate. As
noted, it was much smaller than a normal or permanent stop sign. Moreover, its
placement on the fence at an awkward downward pointing angle would not
necessarily signal to drivers that it was intended to function as a regular
stop sign and to control west bound traffic on 107A Avenue.

[112]     It is
particularly telling that Mr. Pereira and Mr. Mossey, employees of the City,
both identified the temporary stop sign as a safety hazard.

[113]     Tien
Sher’s failure to ensure proper placement and size of the temporary stop sign
was compounded by its failure to provide drivers with advance warning of the
sign. Such advance warning would have been a reasonable and prudent measure in
the circumstances, given that the temporary sign was located well away from
where the permanent stop sign was situated and, again, was obscured to drivers.

[114]     In the
circumstances, I find that Tien Sher’s conduct created an objectively
unreasonable risk of harm to drivers of vehicles proceeding west on 107A Avenue
towards the intersection (Ryan v. Victoria (City), [1999] 1 S.C.R. 201
at para. 28). I find further that Tien Sher’s negligence caused the accident in
that but for its conduct, the accident would not have occurred (Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 14; Resurfice Corp. v. Hanke, [2007]
1. S.C.R. 333 at paras. 21 – 23 and Clements v. Clements, [2012] 2
S.C.R. 181 at para. 8). In this regard, I accept Ms. Channa’s evidence that had
she seen a stop sign, she would have stopped before entering the intersection.

[115]     The
question then becomes whether any degree of liability should be apportioned to
Ms. Channa.

Ms. Channa

[116]     Tien Sher
submits that Ms. Channa breached her duty to take reasonable care in a number
of respects:

a)    She failed to
slow down when proceeding through a construction zone;

b)    She failed to
account for the fact that she was on a side street and approaching a major
roadway;

c)     She failed
to look for or see traffic control devices; and

d)    she entered the
intersection without adequately checking for traffic that might pose an
immediate hazard.

[117]     Ms. Channa
denies that she was negligent. She submits that she slowed as she approached
the intersection, looked both left and right and entered the intersection
carefully. She notes that if the intersection had been uncontrolled, which she
considered it to be given that she did not see a stop sign, she would have in
fact had the right of way vis-à-vis Mr. Richmond’s vehicle as she was to his
right (McIlvenna v. Viebig, 2012 BCSC 218 at paras. 39 – 40).

[118]     I find
that Ms. Channa bears some responsibility for the accident. While she testified
that she looked left and right before entering the intersection, she failed to
see either the temporary stop sign or the three orange safety barrels located
along the fence to her right. She also failed to see Mr. Richmond approaching
from the left, notwithstanding that Ring Road runs straight and flat as it
approaches the intersection. Thus I find that if Ms. Channa did look to each
side as she entered the intersection, it was at best a cursory look.

[119]     I also
find that Ms. Channa failed to adequately account for the fact that she was
travelling through a construction zone in which the construction fence was
erected on 107A Avenue and extended onto Ring Road. The photographs in evidence
make it clear that visibility to the right along Ring Road to the north was
obscured for drivers in Ms. Channa’s position due to the fence and the
materials and equipment inside the fence. This should have caused her to take
greater care as she approached the intersection.

[120]     Ms. Channa
testified that she did slow down although her evidence was vague as to whether
she simply covered the brake or applied it. Given Mr. Richmond’s evidence that
Ms. Channa’s car appeared in front of him very suddenly, it seems doubtful that
she slowed to any significant degree.

[121]     Finally,
while acknowledging that she was travelling on a local or side road towards a
larger road, Ms. Channa did not adjust her behaviour to account for this fact. Moreover,
had she been more alert to her circumstances and surroundings, it is likely
that she would have noticed the stop sign on the opposite side of the
intersection controlling traffic heading east on 107A Avenue, which would have
alerted her to the need to stop before proceeding.

[122]     Based on
these factors, I find that Ms. Channa failed to exercise the level of care
expected of a reasonably prudent driver in the circumstances that presented and
that her conduct played a causative role in the accident. This case may be
distinguished from Campbell in that while the temporary stop sign may
have been obscured, there were other factors that should have alerted Ms.
Channa and caused her to exercise greater care.

Apportionment between Tien Sher and Ms. Channa

[123]    
In considering the issue of apportionment, the court must examine the
extent of each party’s blameworthiness, meaning the degree to which each party
is at fault and not the degree to which each party has caused the loss. In Aberdeen
v. Township of Langley, Zanatta, Cassels, 2007 BCSC 993, rev’d in
part, 2008 BCCA 420, Mr. Justice Groves set out a number of factors that go
into the apportionment analysis:

[62] Thus, fault is to be determined by
assessing the nature and extent of the departure from the standard of care of
each of the parties. Relevant factors that courts have considered in assessing
relative degrees of fault were summarized by the Alberta Court of Appeal in Heller
v. Martens, supra, at ¶ 34 as follows:

1. The nature of the duty owed by
the tortfeasor to the injured person

2. The number of acts of fault or
negligence committed by a person at fault

3. The timing of the various
negligent acts. For example, the party who first commits a negligent act will
usually be more at fault than the party whose negligence comes as a result of
the initial fault

4. The nature of the conduct held
to amount to fault. For example, indifference to the results of the conduct may
be more blameworthy… Similarly, a deliberate departure from safety rules may be
more blameworthy than an imperfect reaction to a crisis

5. The extent to which the conduct
breaches statutory requirements. For example, in a motor vehicle collision, the
driver of the vehicle with the right of way may be less blameworthy

[Authorities omitted.]

See also Vigoren v. Nystuen, supra, at ¶ 90
(summarizing these same factors).

[63] Many of the above-noted factors are
discussed in Chiefetz, Apportionment of Fault in Tort, supra, at
pp. 102-104. Considering that, I conclude it would be appropriate to add the
following as relevant factors:

6. the gravity of the risk created;

7. the extent of the opportunity to
avoid or prevent the accident or the damage;

8. whether the conduct in question
was deliberate, or unusual or unexpected; and

9. the knowledge one person had or should have had of the
conduct of another person at fault.

[124]     I have already found that Tien Sher bears primary responsibility for
the accident. It’s failure to comply with the minimum standards set out in the
Manual, due in large measure to the fact that its designated safety officer did
not even know of the Manual’s existence, its failure to erect adequate, or any,
warning signs, and its wholly inadequate placement and sizing of the temporary
stop sign demonstrates a disregard for the safety of drivers using 107A Avenue
and constitutes conduct that is significantly more blameworthy than that of Ms.
Channa.

[125]     I apportion liability 75% against Tien Sher and 25% against Ms.
Channa.

Conclusion

[126]     In summary, I find that Tien Sher is 75% liable and Ms. Channa 25%
liable for the accident. Mr. Richmond bears no responsibility.

[127]    
If the parties cannot agree on costs, they may
make arrangements to speak to the issue.

“Skolrood J.”