IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150302

Docket: M131944

Registry:
Vancouver

Between:

Caroline
Longford

Plaintiff

And

Maria
Celeste Tempesta and Luigi Michael Tempesta

Defendants

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

[1]           
 

INTRODUCTION

[1]           
This trial is about liability only. The plaintiff and defendants agree
as to the amount of damages for the injuries the plaintiff suffered in the
accident.

[2]           
On March 28, 2011, the plaintiff, driving her 50cc ETS Vespa motor
scooter, hit the rear tire wheel of the driver’s side of a 2002 Chevrolet
Cavalier motor vehicle driven by the male defendant and owned by the female
defendant. The male defendant was driving the vehicle with the consent of the
female defendant. I will refer to the male defendant, Mr. Tempesta, as the
defendant in these reasons.

THE PLAINTIFF’S VERSION OF THE ACCIDENT

[3]           
The plaintiff, age 46, was driving her scooter on her way to work. She
was wearing her helmet. The plaintiff’s work was located on the North Shore,
where she works in lighting in the film industry. She left her home at about 6
a.m. She was expected to be at work at about 7:30 a.m. She left for work early
as she wanted to have breakfast at work and to take the slow roads and avoid the
traffic on her way to work. At trial, she was able to describe the route she
took that morning. She had taken that route many times.

[4]           
At the time of the accident, the plaintiff had driven her Vespa for
about five and half years. The plaintiff described the lighting at the time of
the accident as “dark, close to dusk". The roads were wet. She entered
Gilmore Avenue from a side street and then travelled about 500 feet to First
Avenue, where she signalled and turned left down First Avenue. She first saw
the defendant on Gilmore Avenue. He was ahead of her and, he too, was
signalling to turn left on First Avenue.

[5]           
The plaintiff testified that the defendant was about five car-lengths
ahead when he completed the First Avenue turn. Both of them accelerated upon completion
of the turn. Both of them were westbound on First Avenue.

[6]           
The plaintiff testified that the defendant then put on his brakes
aggressively. The plaintiff stated that she slowed down and put on the brakes
of her scooter. The plaintiff testified that the defendant then went to the
right parking lane and stopped, aggressively applying his brakes again, and
then hesitated. The plaintiff testified that she thought the defendant was
parked. The plaintiff said that she moved a little to the left to pass the
defendant, but remained in her lane. As she was approaching him, he did a
U-turn, at which time she was about one car-length away from the defendant’s
car. His car displayed no turn signal. The plaintiff testified that due to the
braking system of her scooter (the front brake is a disc brake and the back
brake is a drum brake), the scooter spun out. The plaintiff’s body flew into
and hit the rear wheel of the driver’s side of the defendant’s vehicle. She
stated that she then “scooted” away from the vehicle. The plaintiff testified
that she lay on the westbound lane near the centreline.

[7]           
A photograph entered into evidence at this trial showed the scooter on
its side very close to the centreline and in the eastbound lane, with an
ambulance in the foreground facing westward. The plaintiff testified that she
ended up in front of the ambulance in the westward lane of First Avenue, and
that the scooter was behind her.

[8]           
The plaintiff testified that a by-stander came to her assistance as she
lay on the ground. She heard the defendant say, “She came out of nowhere and I
am going to move my car next to my workplace”.

The defendant’s version of the
accident

[9]           
The defendant’s version is quite different. The defendant testified that
he was on his way to work. He described the route he took. His place of work
was on First Avenue. He confirmed the road was wet. He said it was dark.

[10]       
The defendant testified that at no time did he ever hear the plaintiff’s
scooter or see the plaintiff, either behind him or in his peripheral vision.

[11]       
The defendant testified that, after turning onto First Avenue, he then
drove up an incline, as shown in photograph #1, up to the driveway of his place
of employment. He testified that his turn signal remained on from the time he
turned on to First Avenue up to and including when he stopped to make a
left-hand turn into the driveway of his workplace. He said he was on an angle
and, as he proceeded left into the driveway, when his vehicle was three
quarters of the way into the driveway and one quarter in the eastbound lane, he
heard a screech and a bang. When he got out of his car, he saw the plaintiff
lying on the road screaming with pain at the centre of the road behind his
vehicle and on the driver side. He testified that the scooter was in front of
the plaintiff. He stated there were no other vehicles on the road.

[12]       
In cross-examination, the defendant was asked whether he stopped east of
the entrance to the driveway of his employment and his answer was “I guess so”.

ANALYSIS

[13]       
The plaintiff has the burden to prove, on a balance of probabilities,
that the defendant was negligent.

[14]       
Both the plaintiff and the defendant were travelling on Gilmore Avenue
in Burnaby, British Columbia on March 28, 2011 between 6:15 and 6:30 a.m. Both
of them turned into First Avenue, both displaying their turn signals so as to
travel westward on First Avenue. Both the scooter and the car’s headlights were
on. The road surface was wet, but it was not raining. It was dark or becoming
dusk. There was no other traffic on the road.

[15]       
The plaintiff was aware of the defendant’s vehicle which was some five
car-lengths in front of her on First Avenue.

[16]       
I conclude that the plaintiff was aware of the defendant’s vehicle and where
it was as she turned up First Avenue until and including the accident.

[17]       
The plaintiff, in her examination for discovery, on October 9, 2013 was
asked the following questions and gave the following answers:

Q         Did you actually see Mr. Tempesta turn left onto
Gilmore?

A          Did I see him turn left onto – you mean onto
1^st?

Q         Onto 1^st, sorry, yes, thank you.

A          I — yeah, I did
see him turn, turn left onto 1^st. I can’t tell you how far behind
him I was. I wasn’t really paying attention.

[18]       
The defendant’s interpretation of these answers is that the plaintiff
was not paying attention. I do not accept that interpretation. She explained
that this answer related to how far behind she was to the defendant’s car.

[19]       
 I accept that, after the plaintiff’s scooter and the defendant’s car
turned onto First Avenue, both of them accelerated and were travelling at a
speed of about 50 kilometres per hour down First Avenue. I accept the
plaintiff’s evidence that the defendant braked aggressively and that the
plaintiff slowed down and put on her brakes. I find that the defendant pulled
to the right into a parking lane and then braked aggressively again. I find
that the defendant remained in the parking lane briefly, during which time the
plaintiff moved to the left, leaving room between the plaintiff’s scooter and
the defendant’s car, but still remaining in the westbound lane. As this
occurred, the defendant shot out of the parking space without signalling and
was about a car-length in front of the plaintiff. The plaintiff testified that
she could do nothing other than to apply the brakes of her scooter. She
testified it was too late for her to honk her horn or avoid the collision. The
plaintiff’s body hit the left rear tire of the defendant’s vehicle.

[20]       
I do not accept the defendant’s version of the accident. The point of
collision could not have occurred when the defendant was three quarters of the way
in the driveway of his workplace. Had that happened, then the plaintiff’s body,
and probably the scooter, would have been on or near the edge of the eastbound lane,
not at the centre of the road where the defendant acknowledged the plaintiff
was.

[21]       
Nor would it have been reasonable for the plaintiff to have left the
westbound lane, travelled into the eastbound lane, when, as stated by the defendant,
he slowed down, was stopped and signalling the left-hand turn into the
driveway. I find that the plaintiff, from the time she turned on First Avenue
from Gilmore, and as she travelled up First Avenue, observed and knew what the
defendant was doing.

[22]       
I find from the moment the defendant got out of his car, he was
contemplating avoiding legal liability. He did not help the plaintiff despite
his first level first aid course. I find that the defendant, despite his
denial, while the plaintiff was being looked after by a by-stander, could only
have been the person who stated that the plaintiff came out of nowhere and that
he was going to move his car. The plaintiff testified that when she heard those
words, she felt vulnerable and told the by-stander helping her not to let the
defendant leave.

[23]       
I find the defendant did move his car.

[24]       
There were other inconsistencies in the defendant’s testimony. At trial,
the defendant stated he spoke to no one at the time the accident. Further, at
the discovery he said that the police were the first to arrive. On the day of
the accident, he emailed Constable Morosoff and he acknowledged the police
arrived after the ambulance and the fire truck. He also states in the email “I
had witnesses across the street at T. Moscone Brothers and so one of the guys
said to call 911”.

[25]       
The defendant’s email was intended to put the entire blame for the
accident on the plaintiff. In the email, the defendant does not advise the
policeman that he slowed down and then came to a stop before turning left into
the driveway.

[26]       
The defendant’s estimate of the distance from the turn from Gilmore
Avenue to the driveway changed from a few hundred feet in his statement to the
Insurance Corporation of British Columbia (“ICBC”) to 150 feet at his discovery
and 100 feet at this trial. The plaintiff argues that the changes of distances
by the defendant would lessen any realistic fact that the signal was on
throughout.

[27]       
The defendant argues:

12.       The Plaintiff was aware
that drivers generally do not see bikes and ought to have taken this into
consideration regardless of whose version of the events is more credible.

[28]       
The plaintiff’s scooter was entitled to be on the road. The scooter was
driving with its lights on, making it visible. The defendant should have seen
the plaintiff’s scooter in his rear-view mirror, his side mirrors or peripheral
vision. He did not see the scooter and he never heard the scooter. While he
drove, he assumed he was the only car and driver on First Avenue and he could
make a U-turn with impunity.

[29]       
The defendant argues that, assuming the plaintiff’s version is correct,
on the westbound lane there was a “no parking” sign and the plaintiff should
have known that there was no parking and that the plaintiff should have known
that the defendant would not have parked there. Firstly, the plaintiff
testified, and I accept, that she did not know that there was no parking on the
westbound lane and in particular that side of the road. The plaintiff testified
that she saw a vehicle parked there just before the accident. She learned later
there was no parking on that side of the road when she returned to the area to
put up posters seeking witnesses that may have seen the accident. Secondly, the
plaintiff could not conclude that people do not park in no parking zones for
long or short terms; they do so frequently.

[30]       
I reject the defendant’s argument that the plaintiff should not have
passed the defendant and should have assumed that he was not parking. The
plaintiff testified that the defendant’s actions were that he was going to
park. I find that it was reasonable for the plaintiff to rely on the
defendant’s action when she passed him.

[31]       
The plaintiff, in her statement to ICBC, stated she assumed the
plaintiff missed his turn to the driveway at his work. The plaintiff testified that
is not what she thought just before the accident; it was something she
considered at the time of giving her statement. Her evidence was clear that she
believed, as she was about to pass the defendant, that he was parked and would
remain parked.

[32]       
In Zarifeh v. Narcisse, 2006 BCSC 969, Madam Justice Baker
concluded the plaintiff was in violation of a section of the Motor Vehicle
Act when driving his vehicle. The plaintiff argued that the defendant was
also negligent in that the defendant should have seen the plaintiff’s illegal
and negligent actions and should have taken evasive action.

[33]       
Madam Justice Baker concluded that the defendant was not required to
anticipate the plaintiff’s actions unless the actions were perceived as a
danger and the defendant had an opportunity to avoid the collision.

[34]       
I find that the plaintiff could not have anticipated that the defendant,
after briefly stopping, would then turn in front of her. Nor do I find that she
had enough time to observe the defendant’s actions and avoid the accident.

[35]       
The plaintiff did not state that the defendant was driving erratically
when he stopped aggressively in front of her and when he parked. The defendant
in his written argument, states:

14.       The Plaintiff in her statement seems to have
assumed that the Defendant had missed his turn, was driving erratically and
ought to have anticipated some other erratic move from the Defendant and driven
accordingly.

15.       Further, the physical
evidence of where the collision took place is more consistent with the
Defendant’s version of events than the Plaintiff’s. Impact occurred very near
the centre of the road when the Defendant’s vehicle had almost left the west
bound lane. This would mean for the Plaintiff’s version to be correct the
Defendant would had to have started from a complete stop accelerated through a
turn and almost completed it before the Plaintiff arrived at the impact site.

[36]       
This does not coincide with the defendant’s evidence that he was three
quarters of the way in his driveway, having crossed the eastbound lane.

[37]       
In Rai v. Fowler, 2007 BCSC 1678, Madam Justice Holmes stated:

[34]      In Tucker (Public
Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.) at 195-6, Madam
Justice Southin noted that drivers are entitled to assume that other drivers
will obey the rules of the road, and are required to anticipate, in other
drivers, "only those follies which according to the teachings of
experience commonly occur". By implication, and as explained in Walker
v. Brownlee, [1952] 2 D.L.R. 450 at 461 from which Southin J.A. quoted, a
driver may bear liability if he or she became aware of another driver’s
disregard of the law, or by the exercise of reasonable care should have become
aware, and unreasonably failed to avoid the accident that followed from that
disregard.

[38]       
When the defendant stopped aggressively in front of the plaintiff, she
slowed down and was able to stop. I find there was no erratic driving on the
part of the defendant such that she could anticipate that the defendant would
perform a U-turn in front of her.

[39]       
I conclude that the defendant stopped as he realized that he had
overshot the driveway to his workplace. I find he then went to the right,
stopped again as to park, intending to go into the driveway and, in doing so,
crossed the path of the plaintiff on her scooter. At no time did the defendant
observe the scooter and he should have. I find that the plaintiff has met the
burden of proof and that the defendant was negligent when he turned from where
he was parked and into the path of the plaintiff driving her scooter. The
defendant is 100% responsible for the accident. The defendant’s actions were
negligent.

[40]       
The plaintiff will have her costs and disbursements pursuant to Appendix
B, Scale B of the Supreme Court Civil Rules, B.C. Reg. 168/2009.

“H.C. Hyslop J.”

HYSLOP J.