IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Vahman v. Cutts, |
| 2015 BCSC 298 |
Date: 20150227
Docket: M136313
Registry:
New Westminster
Between:
Salman Vahman
Plaintiff
And
Trevor Cutts,
Maribel Rodriguez Gonzalez, Canadian Road Leasing
Company, Shannon
Wellington, Dollar Thrifty
Automotive Group
Canada Inc., Patrick Smith
Defendants
Before:
The Honourable Mr. Justice Jenkins
Reasons for Judgment on Summary Trial
Counsel for the Plaintiff: | N. A. Mulholland |
Counsel for the Defendant Patrick Smith: | P.A. Mazzone |
Counsel for the Defendant Maribel Rodriguez Gonzalez, Canadian Road Leasing Company | J. D. James |
Place and Date of Hearing: | New Westminster, B.C. February 16, 2015 |
Place and Date of Judgment: | New Westminster, B.C. February 27, 2015 |
[1]
The defendant, Patrick Smith has applied in this action under Rule 9-7
of the Supreme Court Civil Rules, B.C. Reg. 168/2009 for a summary trial
dismissing the claim against him by the plaintiff for damages arising from a
motor vehicle accident which occurred on May 20, 2010. The plaintiff does not
take issue with the appropriateness of this issue being determined on a summary
trial.
[2]
The sole issue before me is whether the claim against Mr. Smith should
be dismissed or whether there should be an apportionment of liability between
the plaintiff and Mr. Smith.
[3]
The defendant Gonzales takes no position on this application. I am
advised that the remaining defendants have not appeared to this action.
Factual Background
[4]
On May 20, 2010, the plaintiff was driving his Volkswagen vehicle northbound
on Lonsdale Avenue in North Vancouver, BC. He had then taken a left turn off of
Lonsdale Avenue to proceed westbound on 23rd Street, with the
intention of making a further left turn off of 23rd Street into a
parking lot adjacent to a Kentucky Fried Chicken outlet [KFC] located on the
southwest corner of Lonsdale Avenue and 23rd Street. As the
plaintiff approached the access to the parking lot on his left, he was faced
with several vehicles waiting in the eastbound left turn lane on 23rd
Street and was faced with having to get through the eastbound vehicles in order
to enter the parking lot.
[5]
Meanwhile, the defendant Patrick Smith was driving his Toyota vehicle
eastbound on 23rd Street approaching the intersection with Lonsdale
Avenue. Mr. Smith intended to travel straight through the intersection
with Lonsdale Avenue. Ahead of Mr. Smith and on his right was the KFC outlet
and the access to the parking lot located behind the KFC outlet. Access to the
parking lot was located approximately 75 feet from Lonsdale Avenue behind the
KFC outlet. A map of the intersection of Lonsdale and 23rd Street is
attached to these reasons as Appendix A.
[6]
Eastbound traffic on 23rd Street near the intersection with
Lonsdale Avenue consisted of two lanes. The left lane was a left turn lane so
traffic in that lane could turn north onto Lonsdale. The lane to the right,
which ran adjacent to a sidewalk, was for through traffic on 23rd
Street and traffic intending to turn right onto Lonsdale. The painted line on
23rd Street between the two lanes was a solid line back from
Lonsdale for approximately 50 feet and then consisted of two broken lines
continuing westward to approximately the west side of the access to the parking
lot, ie. approximately 75 feet from Lonsdale Avenue. Further west from the
parking lot access, eastbound traffic on 23rd Street consisted of
only one lane.
[7]
The plaintiff signalled to turn left off of 23rd Street into
the parking lot and a white SUV vehicle made space for the plaintiff to turn
left off of 23rd Street in front of it. The plaintiff noticed the
woman driver of the SUV signalling by waving her hand for the plaintiff to turn
in front of the SUV. The plaintiff did so and turned southward towards the
entrance to the parking lot, across the left turn lane in front of the SUV when
it impacted with the Toyota being driven by Mr. Smith.
[8]
At about the same time as the plaintiff was turning in front of the
white SUV, Mr. Smith had entered the right or through lane travelling eastbound
on 23rd Street. He deposed that he was travelling in second gear in
his standard transmission Toyota at a speed of approximately 30 km/h. He
deposed that the plaintiffs vehicle popped out between the vehicles lined
up to turn left and there was nothing I could do to avoid the collision. The
contact was between the left front of Mr. Smiths Toyota and the right
front side of the plaintiffs vehicle.
[9]
In the plaintiffs affidavit, he deposed:
10. As I passed the white SUV, I recall being able to
see a short distance west on 23rd Street but do not recall seeing
the defendant Smiths vehicle until an instant before impact.
11. As I made my turn, my
front right fender was struck by the front bumper of the Smith vehicle. At the
point of impact, my vehicle was facing south, directly towards the KFC
entrance. My vehicle was not spun or propelled in any direction by the impact.
The statement by the
plaintiff that his vehicle had not spun or been propelled in any direction
lends credibility to the statement by Mr. Smith that Mr. Smiths Toyota was
travelling at approximately 30 km/h and I accept his evidence on that point.
Mr. Smith also deposed that:
7.
As I approached the last of
the vehicles in the left turn lane I was able to steer my vehicle into the
right lane as my intention was to proceed through the intersection at Lonsdale
Avenue. I slowed my vehicle as the traffic light at Lonsdale Avenue was red for
my direction of travel.
[10]
The plaintiff also deposed that after reviewing his statement to ICBC,
there were 5 or 6 eastbound vehicles stopped behind the white SUV, west of the
KFC entrance which suggests that Mr. Smiths vehicle must have turned into the
right hand lane several feet west of where the right lane begins or at least
where the painted line markings begin.
[11]
Finally, the plaintiff deposed that he believed that the gap in the line
of eastbound vehicles, ie. the gap into which he turned towards the entrance to
the KFC parking lot, was approximately 1.5 car lengths. Based upon
submissions, the plaintiff argues that the gap between the white SUV and the
vehicle ahead of the SUV should have been noticed by Mr. Smith who should in
turn have taken extra care and considered a vehicle may travel through the gap.
[12]
Portions of the transcript of the examination for discovery of the
plaintiff were exhibited to Mr. Smiths affidavit. During the examination for
discovery of the plaintiff held in August 2012, he was asked the following
questions and gave the following answers:
115. Q At
that point youve indicated though that where you had stopped, if you then
consider the eastbound roadway, its one lane at that point?
A. The east and west are single
lanes at that point.
116. Q And
I think in your prior evidence you said that the lanes really only break a few
metres, was your phrase, before the intersection.
A. Correct.
In his affidavit sworn
January 20, 2015, the plaintiff corrected the above answers by stating:
9. While my recollection
at the time of the August 8, 2014 examination for discovery was that the lane
markers on 23rd Street at the time of the accident commenced east of
the KFC entrance, it appears from the exhibits to Mr. Williams affidavit that,
in fact, they commenced exactly even with the western edge of the entrance.
[13]
I agree that it is clear from the photographs attached to the affidavit
of Mr. Williams, who is a transportation technologist employed by the City
of North Vancouver, that the pavement markers clearly start even with the
western edge of the entrance to the parking lot. In other words, at the point
where the plaintiff turned left in front of the white SUV, the photographs
clearly indicate a passing lane and a through lane to the right for the
eastbound traffic.
Applicable Law
[14]
Section 166 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318
states as follows:
Turning left other than at an intersection
166. A driver of a vehicle must not
turn the vehicle to the left from a highway at a place other than at 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 to 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.
[15]
Section 174 of the Motor Vehicle Act relates to left turns in
intersections. In Gradek v. Daimler Chrysler Financial Services Canada Inc.
and Fletcher, 2009 BCSC 1572, Savage J., as he then was, stated at para.
20:
[20] Section 174 concerns
left turns at intersections. Section 166 concerns left turns at places other
than intersections. Section 166 is the applicable section here although
decisions involving section 174 are instructive and were cited by both counsel.
[16]
Section 174 states:
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.
[17]
In Gradek, Mr. Justice Savage referred to the decision of Goepel
J. in Robinson v. Wong, 2007 BCSC 708 which considered a left turn at a
controlled intersection from a dedicated left turn lane. In Robinson, Mr.
Justice Goepel, after a review of authorities, stated that the liability of
left turning drivers varied from 20% to 100% and said:
[13] There are numerous cases which have considered
accidents arising during a left hand turn. The governing principles are set out
in Pacheco (Guardian ad litem) v. Robinson (1993), 75 B.C.L.R. 2d 273
(C.A.) at paras. 15.
15 In my opinion, a driver who wishes to make a left
hand turn at an intersection has an obligation not to proceed unless it can be
done safely. Where each partys vision of the other is blocked by traffic, the
dominant driver who is proceeding through the intersection is generally
entitled to continue and the servient left-turning driver must yield the
right-of-way. The existence of a left-turning vehicle does not raise a
presumption that something unexpected might happen and cast a duty on the
dominant driver to take extra care. Where the defendant, as here, has totally
failed to determine whether a turn can be made safely, the defendant should be
held 100 percent at fault for a collision which occurs.
Mr. Justice Goepel continued at
para. 18:
. . . In such circumstances any doubt should be resolved in
favour of the dominant driver. As stated by Cartwright, J. in Walker v.
Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) at 461:
While the decision in 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 As 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.
[18]
Mr. Justice Savage concludes in Gradek:
[23] Gradek cites Robinson for the proposition
that when a driver in the servient position makes his turn, when it is unsafe
to do so, the driver in the servient position must establish that the dominant
driver had a sufficient opportunity to avoid the accident, with any doubts
resolved in favour of the dominant driver. The unlawful conduct of the servient
driver is fons et origo mali.
The Latin phrase above
translates to the source and origin of the evil.
Decision
[19]
Section 166 of the Motor Vehicle Act dictates that a driver must
not turn left from a highway unless he or she has ascertained that the
movement can be made in safety, having regard to the nature, condition and use
of the highway and current traffic. Pacheco (Guardian ad litem) v. Robinson
(1993), 75 B.C.L.R. 2d 273 (C.A.), cited in Robinson above, involved
a left turn at an intersection; however, the words of the Court of Appeal in
that case are, in my opinion, even more applicable to the situation of a left
turn being attempted other than at an intersection. Mr. Justice Legg for the
Court said at para. 15, In my opinion, a driver who wishes to make a left hand
turn at an intersection has an obligation not to proceed unless it can be done
safely. Even more caution should be exercised if turning left other than at an
intersection as the driving public would be less likely to expect those kinds
of left turns.
[20]
In this case, as was the case in Pacheco, each partys vision was
blocked by traffic. The dominant driver, who in this case was Mr. Smith, was proceeding
in the eastbound right-hand through lane towards the red light at Lonsdale
Avenue and was entitled to continue. The plaintiff as the servient left-turning
driver was obliged to yield the right of way. The plaintiff failed to determine
whether he could continue his left turn safely and as a result, is wholly
responsible to the dominant driver, ie. Mr. Smith. The plaintiff, who
first stated on discovery that he thought that there was only one eastbound
lane on 23rd Street, was mistaken and agreed in his affidavit that
there was a through lane at least commencing to the west side of the entrance
to the KFC parking lot.
[21]
Mr. Smith would have had no reasonable opportunity to avoid the
collision. He was travelling at a very safe speed in the circumstances, ie. 30
km/h, and even exercising reasonable care in the circumstances, it would not
have been reasonably expected that a vehicle would suddenly appear before him
coming through the line of vehicles waiting to turn left. When the plaintiff
proceeded to turn left through the gap in front of the white SUV, he would
have been blocked from being able to see any eastbound vehicle in the through lane,
and by proceeding through the gap he was doing so at his own risk. The
plaintiff, acknowledged in his affidavit that there was an eastbound through
lane beside the turning lane eastbound on 23rd Street and should
have anticipated that traffic would be proceeding in that lane. Either he
proceeded without regard for the presence of eastbound through traffic or
failed to take steps to see if there may have been eastbound traffic
approaching in the through lane.
[22]
I do not accept the plaintiffs submission that Mr. Smith should have
expected someone to turn through the gap of 1.5 car lengths. Even at the
conservative and modest speed Mr. Smith was travelling, he would have had
little if any opportunity to avoid impacting the plaintiffs vehicle once it
appeared in front of him, even if he were aware of the gap in front of the
white SUV. It would have been unreasonable for him to have expected a vehicle
would be turning through the line of vehicles waiting in the turning lane.
[23]
I conclude that the claim of the plaintiff against Mr. Smith is
dismissed.
[24]
Unless there are facts of which I am not aware, and either of the
parties wish to make submissions on costs, I am inclined to order costs to the
defendant Mr. Smith in light of his success in having the action against
him dismissed.
Jenkins
J.
Appendix
A
