IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Boyd v. Baldwin, |
| 2015 BCSC 887 |
Date: 20150528
Docket: M124105
Registry:
Vancouver
Between:
Angela Boyd (aka
Angela Huttunen)
Plaintiff
And
Ronald William Baldwin
and Shayne
Christopher Martineau
Defendants
And
Shayne
Christopher Martineau and
Ronald William Baldwin
Third
Parties
Before:
The Honourable Mr. Justice Fitch
Reasons for Judgment
Counsel for the Plaintiff: | Britni |
Counsel for Defendant and Third Party, Baldwin: | Romany K. |
Counsel for the Defendant and Third Party, Martineau: | Karen M. Finnan |
Place and Date of Trial: | Vancouver, B.C. April 8-10, 2015 |
Place and Date of Judgment: | Vancouver, B.C. May 28, 2015 |
A. Introduction
[1]
This action concerns the determination of liability for injuries the
plaintiff, Angela Boyd ("Boyd"), says she sustained in a motor
vehicle accident that occurred July 22, 2010, at the intersection of Fraser
Street and East 12th Avenue in Vancouver.
[2]
The plaintiff was a front seat passenger in a vehicle, a standard
transmission 2000 Pontiac Sunfire, being driven by the defendant and third party,
Ronald Baldwin ("Baldwin").
[3]
The accident occurred when Baldwin, who was travelling northbound on
Fraser Street, turned left at the intersection of Fraser Street and East 12th
Avenue to proceed westbound on East 12th Avenue.
[4]
Baldwin says he turned left only after the light governing traffic
travelling north and south on Fraser Street switched to red. He says the
defendant and third party, Shayne Martineau ("Martineau"), driving a
1997 Ford Explorer, came through the intersection against the red light and
struck his vehicle.
[5]
Martineau was travelling southbound in the curb lane on Fraser Street,
approaching its intersection with East 12th Avenue. Martineau says
the light turned yellow just as he entered the pedestrian crosswalk on the
north side of the intersection. He says Baldwin quickly and unexpectedly
turned left against the yellow light and drove into his path. Martineau says
the collision occurred when the light was still yellow for northbound and
southbound traffic. He says he briefly attempted to brake, realized he could
not stop, and then swerved his vehicle to the right to avoid a head-on
collision. Martineau’s vehicle came to rest on the sidewalk on the southwest
corner of the intersection, narrowly missing a pedestrian standing on that
corner.
[6]
The plaintiff claims to have suffered soft tissue injuries in the
accident. Damages will be assessed at a subsequent trial following the
determination of liability.
[7]
The central issue in this case is a factual one – whether the light was
yellow or red when Baldwin turned left, heading westbound from the northbound
lane of Fraser Street, and Martineau entered the intersection from the opposite
direction, travelling southbound.
[8]
Boyd testified. On completion of her evidence, the parties agreed that
she in no way contributed to the accident and that the accident was caused by
the negligence of one or both of the defendants.
[9]
Both Baldwin and Martineau contend that the other is 100% liable for the
accident.
[10]
Baldwin called Anthony Cornish, an independent witness to the accident.
Unfortunately, his recollection of events is fragmentary.
[11]
Martineau called Cst. Spence of the Vancouver Police Department,
who attended the scene of the accident.
[12]
No engineering or accident reconstruction evidence was tendered at
trial.
B. The Scene of the Accident
[13]
At its intersection with East 12th Avenue, Fraser Street
consists of two lanes for northbound traffic and two lanes for southbound
traffic. The northbound and southbound lanes are fairly narrow. The speed
limit on Fraser Street is 50 km/h. At its intersection with Fraser Street,
East 12th Avenue consists of two lanes for westbound traffic and two
lanes for eastbound traffic.
[14]
The intersection of East 12th Avenue and Fraser Street is
governed by a traffic light. The light stays green for traffic travelling northbound
and southbound on Fraser Street for 20 seconds. The light then switches to yellow
for 3.5 seconds. Traffic lights are red in all directions for 1.5 seconds. The
traffic signal then switches to green for eastbound and westbound traffic on
East 12th Avenue.
[15]
There is no dedicated left turn lane, nor is there an advance green light,
for left-turning vehicles proceeding northbound and southbound on Fraser Street
at its intersection with East 12th Avenue.
[16]
The stop lines for traffic proceeding northbound and southbound on
Fraser Street are well marked and located before the eastbound and westbound
pedestrian crosswalks.
[17]
The accident occurred in the late afternoon of a sunny, summer day. Weather
conditions played no role in the accident.
[18]
There is no evidence that either Baldwin or Martineau was distracted at
the time of the accident. There is no evidence that either driver was fatigued
at the time of the accident. Although Baldwin consumed one beer shortly before
the accident, I am satisfied that alcohol played no role in the accident.
[19]
Neither Baldwin nor Martineau was ticketed as a result of the accident.
The police officers who attended the scene made no determination of fault. After
giving an account of the accident to the police, both drivers were permitted to
proceed on their way. The damage to the vehicles was minimal.
C. Summary of the Evidence
(a) Boyd
[20]
Boyd testified that on the day of the accident Baldwin drove his vehicle
from her residence in Mission to Vancouver. Baldwin is the godfather of Boyd’s
two young daughters. Boyd was a front seat passenger. Her daughters were back
seat passengers. They stopped at a residence on Fraser Street and East 43rd
Avenue to pick up a friend of Boyd’s daughters. They were at this residence
for about one hour. They repacked some bags and set out again, proceeding
northbound on Fraser Street, now with her daughters and her daughters’ friend
in the back seat. Boyd testified they were heading to the Horseshoe Bay ferry
terminal to catch a ferry to attend a community festival on the Sunshine Coast.
Boyd testified they were not in a rush to get to the ferry and had no
reservation.
[21]
Boyd testified that as Baldwin travelled northbound towards the
intersection of Fraser Street and East 12th Avenue, the light was
green. Traffic was moderate to heavy. Baldwin’s left turn signal was activated.
Baldwin stopped his car on the green light behind the crosswalk, before the
intersection. Boyd testified that other southbound vehicles were going
straight through the intersection in the curb lane.
[22]
Boyd testified that Baldwin proceeded straight into the intersection
just after the light turned yellow. Baldwin was driving slowly in first gear.
[23]
Boyd noticed that a heavier vehicle, which she variously described as a
truck, pickup, van and SUV, was in the southbound center lane waiting to turn
left to proceed eastbound on East 12th Avenue. This vehicle had its
left turn signal activated. Boyd described this vehicle as being "opposite
us". She said this vehicle obstructed her ability to see if any other
vehicles were behind it proceeding southbound towards the intersection.
[24]
After proceeding straight into the intersection, Baldwin then slowly
turned left through the intersection, still in first gear. Boyd was unable to
say in her evidence at trial whether the light was yellow or red when Baldwin
turned left. On examination for discovery, Boyd repeatedly testified that the
light switched to red before Baldwin turned left. She acknowledged giving
those answers and testified that she was being truthful at the time. She
testified that the answers she gave on examination for discovery did not
refresh her memory. She said she recalled being in the intersection when the
light was yellow, but that, "as we turned, I couldn’t tell you what colour
the light was".
[25]
Boyd testified that the heavier truck was still in the intersection
waiting to turn left to proceed eastbound on East 12th Avenue when
Baldwin turned left to proceed westbound on East 12th Avenue.
[26]
Boyd did not see Martineau’s vehicle until just before the collision. Martineau’s
vehicle clipped the front end of Baldwin’s vehicle on the driver side. She
said Martineau’s vehicle "flew past us". She testified that while
Martineau’s vehicle was moving quickly, she did not know its exact speed. She
testified that Martineau’s vehicle was travelling above the speed limit, and
agreed with a suggestion put to her in cross-examination by Baldwin’s counsel
that Martineau was travelling too quickly for traffic conditions. On
examination for discovery, Boyd testified Martineau’s vehicle was probably
travelling 70-80 km/h.
(b) Baldwin
[27]
Baldwin testified he consumed one beer when they stopped at the
residence in Vancouver to pick up a friend of Boyd’s children. They were there
for about an hour.
[28]
After leaving the residence, Baldwin drove north on Fraser Street. They
were on route to the Horseshoe Bay ferry terminal with the intention of
proceeding to the Sunshine Coast for a community festival. They did not have a
ferry reservation. Baldwin testified they were not trying to catch a
particular ferry, and were not in a hurry when the accident occurred.
[29]
Baldwin decided to turn left to proceed west on East 12th
Avenue. As he approached the intersection, the light was green. His left turn
signal was on. He stopped in the crosswalk on the south side of the
intersection. He did not advance from this position while the light was green.
He testified that he stopped at the crosswalk because he did not want to impede
southbound traffic turning left to proceed east on East 12th Avenue.
[30]
When the light turned yellow, Baldwin said he eased straight into the
intersection about five or six feet. He then came to another stop.
[31]
Baldwin testified that a larger vehicle travelling southbound was facing
him, waiting to turn left to proceed eastbound on East 12th Avenue.
Baldwin says he commenced his left turn only after the light switched to red. He
explained he did not attempt to turn left before the light switched to red
because the larger vehicle facing him obstructed his ability to see oncoming
traffic approaching the intersection southbound in the curb lane on Fraser
Street. He agreed in cross-examination that this larger left-turning,
southbound vehicle in the center lane was blocking his vision. Baldwin could
not recall whether any other southbound vehicles passed through the
intersection in the curb lane while he was waiting for the light to change.
[32]
Baldwin testified on direct examination that the larger vehicle turning
left to proceed eastbound on East 12th Avenue was still facing him
when he turned left. He was trying to see around it. When Baldwin was asked
in cross-examination whether this larger southbound vehicle was still stopped,
waiting to make its turn, when he started to turn left, Baldwin replied, "I
think so", but said he could not be exact. Later in cross-examination,
Baldwin testified that he was not sure whether the southbound vehicle turning
left was still facing him when he commenced his turn. He agreed it made sense
that if that vehicle had turned through the intersection, he would have had an
unobstructed view of traffic coming towards the intersection in the southbound
curb lane. Baldwin also testified in cross-examination that he has no
recollection of whether anything was blocking his view of the curb lane when he
turned left. He said he did not know how far he could see down the southbound
curb lane when he was stopped at the light. He agreed that it is his habit to
wait for the light to switch to red before turning left through an intersection
if he cannot see. In this case, however, Baldwin testified he was not relying
on his driving habits or usual practices. He testified that he remembers not
turning left until the light switched to red. Baldwin reiterated that he did
not attempt to turn left before the light switched to red because he did not
have a clear view of vehicles coming southbound towards the intersection in the
curb lane.
[33]
After proceeding about 5 to 10 feet into his left turn, Baldwin says
Martineau, who was proceeding southbound on Fraser Street in the curb lane,
came through the red light. Baldwin testified that the nose of his vehicle had
entered the southbound curb lane when he saw Martineau’s vehicle. Baldwin
testified Martineau’s vehicle was just coming into the intersection when he
first saw it. Baldwin immediately applied his brakes to avoid a collision. He
says his tires left a short skid mark, about a foot in length, on the road. Despite
his efforts to stop, Baldwin was unable to avoid a collision. The nose of
Baldwin’s vehicle was clipped by Martineau’s vehicle as it passed through the
intersection.
[34]
Baldwin testified he could tell that Martineau was going well above the
speed limit when Martineau entered the intersection. He testified Martineau
was travelling at least 70 km/h.
[35]
Baldwin testified he has a criminal record for theft and possession for
the purposes of trafficking. While the existence of a criminal record is a
factor potentially relevant to the assessment of credibility, it is not a
relevant factor in the circumstances of this case. Counsel for Martineau does
not suggest otherwise. Accordingly, I have not relied on the existence of the
record to discount Baldwin’s credibility as a witness.
(c) Cst. Spence
[36]
Cst. Spence, one of the two officers who attended at the scene of
the accident, testified that his partner made an approved screening device
demand of Baldwin at the scene. Baldwin complied with the request. He blew
.02, below the .05 reading that could attract a driving suspension, and well
below the .08 reading that could attract criminal sanctions. Baldwin was
permitted to leave the scene of the accident with the children in the back seat.
Cst. Spence confirmed that Baldwin would not have been allowed to leave
the scene if he was impaired.
(d) Martineau
[37]
Martineau testified he was travelling southbound in the curb lane on
Fraser Street in his 1997 Ford Explorer. He had been in the curb lane for at
least a block before reaching the intersection of Fraser Street and East 12th
Avenue.
[38]
Martineau testified he lives eight blocks from the scene of the accident
and drives that route all the time. He was heading to a car wash at the time
of the accident. He was not in a hurry.
[39]
Martineau had turned left onto Fraser Street from East Broadway. It is
300 metres from the intersection of East Broadway and Fraser Street to the
intersection of Fraser Street and East 12th Avenue. Martineau
agreed that you can see the lights at the intersection of Fraser Street and
East 12th from the intersection of East Broadway and Fraser Street.
[40]
Martineau testified he was travelling 40 to 45 km/hour as he approached
the intersection of Fraser Street and East 12th. His speed was
constant. He neither accelerated nor decelerated as he approached the
intersection.
[41]
Martineau testified there was nothing in front of him in the southbound
curb lane, but a large pickup truck with a canopy was stopped ahead of him in
the center lane for southbound traffic. This large truck was stopped about
halfway into the intersection, waiting to turn left to travel east on East 12th
Avenue. The driver of the truck was signalling to turn left. Martineau
described this vehicle as a two-tone, brown and tan coloured F350 truck with an
8-foot box and a canopy. He said at trial that this vehicle did not have a
rack on top of the canopy. He testified on examination for discovery that the
vehicle had a rack on top of it. Martineau said he has no recollection now of
the vehicle having a rack on top, but agreed that his memory would have been
better at the time of the examination for discovery.
[42]
The light was green as Martineau approached the intersection. It
remained green until he passed the stop line and entered the pedestrian crosswalk
on the north side of the intersection. The southbound truck turning left was
in the same position when Martineau entered the intersection and began passing
it on the right.
[43]
Martineau said he was about 20 feet from the stop line when he first saw
the roof of Baldwin’s vehicle in the center lane for southbound traffic. Baldwin’s
vehicle was moving straight forward. He knew Baldwin was waiting to turn left,
but did not anticipate that Baldwin would turn into his path. Martineau
testified that Baldwin’s vehicle came into full view when he was beside the
truck that was turning left.
[44]
Martineau was asked in examination in chief if he noticed the colour of
the light as he approached the intersection. He responded, "Yes, of
course". He was then asked when he first noticed the light. He testified
he first noticed the colour of the light when he was behind the left-turning
truck in the center lane. The light was green. It turned yellow just as he entered
the pedestrian crosswalk.
[45]
Martineau did not change his speed when the light turned yellow. He
never saw Baldwin’s vehicle come to a full stop. He testified Baldwin
accelerated quickly into a left turn and the front end of Baldwin’s vehicle
entered the curb lane for southbound traffic. He testified that the light was
yellow when Baldwin turned. He heard Baldwin’s tires "chirp" when he
accelerated, and then heard the screeching of Baldwin’s tires when Baldwin saw
Martineau in the intersection and tried to stop.
[46]
Martineau testified that he put his foot on the brake for a split
second, but quickly realized he could not bring his vehicle to a stop before
colliding head-on with Baldwin who was stopped right in front of him. To avoid
a collision, Martineau swerved sharply to the right. He testified that his
vehicle skimmed the front end of Baldwin’s vehicle. He said the light was
still yellow when the impact occurred.
[47]
Martineau braked hard after swerving to avoid a head-on collision. He
ended up on the sidewalk on the southwest corner of the intersection about 20
feet from the point of impact. Martineau narrowly avoided striking a
pedestrian standing on the southwest corner of the intersection. He was unable
to say whether the southbound truck that was waiting to turn left actually
completed its turn in the same signal cycle.
[48]
In examination in chief, Martineau testified that the time between the
light changing to yellow and the collision was "one to two seconds, tops".
When it was put to Martineau in cross-examination that two seconds passed from when
he first saw Baldwin’s vehicle to the point in time at which Baldwin turned
left, Martineau replied that he could not say because it would just be a guess.
[49]
In cross-examination, Martineau testified the light at the intersection
was green when he approached it and switched to yellow as he entered the
pedestrian crosswalk just before the intersection.
[50]
Martineau denied a suggestion that he was not looking at the traffic
light, and testified he was aware of everything as he approached the
intersection.
[51]
It was subsequently put to Martineau that he had confirmed in direct
examination that the first time he saw the traffic light was when he was coming
up to the back of the southbound truck that was turning left from the center
lane. After a brief pause, Martineau responded, "If that’s what I said".
Later in cross-examination, it was put to Martineau that he observed the
traffic light and took note of Baldwin’s vehicle at approximately the same time.
He replied that it was hard to answer the question but generally agreed.
(e) Cornish
[52]
Anthony Cornish ("Cornish") is a retired 71-year-old former
police officer. He was driving the first westbound vehicle in the center lane
of East 12th Avenue at its intersection with Fraser Street. He later
testified he thinks he was stopped at the intersection waiting for the light to
turn green, but acknowledged he may have been moving and further away from the
intersection when the accident happened. From his vantage point, Cornish was
closest to the northbound lanes of Fraser Street and perpendicular to the
accident scene.
[53]
Cornish saw Martineau’s vehicle go through the intersection and onto the
curb of the southwest corner of Fraser Street and East 12th Avenue. He
first saw Martineau’s vehicle as it was halfway through the intersection.
[54]
Cornish remembers travelling west through the intersection "immediately"
and "very shortly" thereafter, but was unable to say with any further
particularity what that meant. He could only say that he moved forward when
his light (governing eastbound and westbound traffic) turned green, very
shortly after Martineau’s vehicle went through the intersection.
[55]
Cornish, by his own admission, can remember only "bits and pieces "of
what he observed. He could not say whether his light had turned green when
Martineau proceeded southbound through the intersection.
[56]
Cornish’s evidence does not directly assist in resolving whether the
traffic light governing northbound and southbound traffic on Fraser Street had
turned red when Martineau came through the intersection. The uncertainty
characterizing Cornish’s evidence on a number of issues is such that I cannot
rely on it unless it is confirmed by other evidence.
[57]
With this caution in mind, there is, however, one aspect of Cornish’s
evidence I wish to highlight. In direct examination, Cornish initially
testified he saw a southbound vehicle in the center lane stopped in the middle
of the intersection. Later in his direct examination, Cornish testified that
he thought something was wrong when Martineau’s vehicle entered the
intersection because there were already vehicles stopped in the intersection. He
thought perhaps there had already been an accident, and that Martineau came
through the intersection with nowhere to go, causing him to veer off onto the
curb.
[58]
In cross-examination, Cornish testified that his vision of Martineau’s
vehicle was blocked by the vehicle already in the intersection. The vehicle
was in the center part of the intersection and going west. Cornish testified
he could not remember any vehicles in the intersection other than this
westbound vehicle. When asked if it was possible there was a large southbound
vehicle in the center lane that was stopped and waiting to make a turn to go
eastbound on East 12th Avenue, Cornish responded that it was possible,
but that he could not recall.
D. Framework for the Analysis and Positions of the Parties
[59]
In determining whether, and to what extent, parties to an accident met
their common law duties of care, a court will be informed by the rules of the
road. While the rules of the road provide guidelines for assessing fault in
motor vehicle accident cases, they do not, standing alone, provide a complete
legal framework. As noted in Salaam v. Abramovic, 2010 BCCA 212 at para. 21,
"[t]his 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".
[60]
The following provisions of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318 ("the Act") are of potential relevance to the
determination of this case:
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.
146 (1) Subject to this section, a
person must not drive or operate a motor vehicle on a highway in a municipality
or treaty lands at a greater rate of speed than 50 km/h, and a person must not
drive or operate a motor vehicle on a highway outside a municipality at a
greater rate of speed than 80 km/h.
Passing on right
(a) when
the movement cannot be made safely, or
(b) by
driving the vehicle off the roadway.
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.
[61]
In support of his argument that Baldwin is completely at fault for the
accident, Martineau relies on the principles laid down in Pacheco (Guardian
ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.), and applied
in numerous subsequent cases, including Nerval v. Khehra, 2012 BCCA 436.
[62]
In Pacheco, the plaintiff, an eastbound cyclist, entered an
intersection just as the traffic light turned yellow. He was cycling immediately
behind and to the right of an eastbound motor vehicle which passed him as they
both entered the intersection, obscuring his visibility to the defendant. The
defendant, who was travelling west, was attempting to negotiate a left turn at
the intersection. She waited for the eastbound motor vehicle to pass before
commencing her turn. The defendant struck the plaintiff cyclist in the
intersection. Neither saw the other before the collision because their view of
one another was obstructed by the eastbound motor vehicle. In finding the
defendant entirely liable for the accident, the court stated:
10.
A defendant who wishes to make a left hand turn in
an intersection has an obligation to yield to on-coming traffic which is in the
intersection under the provision of s. 176 of the Motor Vehicle Act.
11. The plaintiff was not bound to guard against every
conceivable eventuality but only against such eventualities as a reasonable
person ought to have foreseen as being within the ordinary range of human
experience. The plaintiff was entitled to proceed on the assumption that all
other vehicles will do what it is their duty to do, namely observe the rules
regulating traffic.
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 party’s 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.
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. As stated by Cartwright, J. in Walker v. Brownlee, [1952]
2 D.L.R. 450 (S.C.C.), at 461:
While the decision of every motor
vehicle collision case must depend on its particular facts, I am of opinion
that when A, the driver in the servient position, proceeds through an
intersection in complete disregard of his statutory duty to yield the
right-of-way and a collision results, if he seeks to cast any portion of the
blame upon B, the driver having the right-of-way, A must establish that after B
became aware, or by the exercise of reasonable care should have become aware,
of A’s disregard of the law B had in fact a sufficient opportunity to avoid the
accident of which a reasonably careful and skilful driver would have availed
himself; and I do not think that in such circumstances any doubts should be
resolved in favour of A, whose unlawful conduct was fons et origo mali.
19. The plaintiff in the case under appeal entered the
intersection on a green light and was in the intersection when the light
changed to amber. The defendant was initiating her left turn when the light
turned to amber.
20. The earliest that the plaintiff could have become
aware of the defendant’s disregard of the law was when the defendant made a
partial left hand turn when the light changed to amber. At that point the
plaintiff was already in the intersection. The evidence shows that if he had
braked when the light changed to amber, he would have slid into the centre of
the intersection but would have been unable to avoid the accident.
21. To quote Cartwright, J. in Walker v. Brownlee
at p. 461:
. . . [W]hen the time arrived at which he [the plaintiff]
could reasonably have been expected to realize that [the defendant] was not
yielding the right of way, it would have been too late for him to do anything
effective to prevent the collision.
[63]
In Nerval, the court held at para. 29 that the reasoning in Pacheco
supported a conclusion that the obligation created by s. 174 of the Act has
priority over the obligation created by s. 158.
[64]
The court in Nerval further addressed at paras. 33-35 the
principles laid down in Pacheco:
[W]hen a left turning driver is assessing making a left turn
in an intersection he or she must yield the right of way to oncoming traffic
unless it is not an immediate hazard. Describing a driver as dominant means no
more than that driver has the right of way, whereas the servient driver has the
obligation to yield the right of way. The obligation imposed by s. 174 on
the left turning vehicle is that it "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". 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.
As observed in Salaam v. Abramovic, 2010 BCCA 212 at para. 33,
the words "immediate hazard" 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."
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.
[65]
The classic statement of law as to when an oncoming vehicle constitutes
an "immediate hazard" is found in Raie v. Thorpe (1963), 43
W.W.R. 405 (B.C.C.A.) at 410, where Tysoe J.A. held that:
if an approaching car is so
close to the intersection when a driver attempts to make a left turn that a
collision threatens unless there be some violent or sudden avoiding action on
the part of the driver of the approaching car, the approaching car is an "immediate
hazard" within the meaning of sec. 164 [now s. 174].
[66]
If the through driver is the dominant driver by virtue of being an
immediate hazard at the time the left-turning driver commences his turn, the
through driver does not lose his position as the dominant driver by virtue of
negligence on his part. While the dominant driver will not typically be found
liable for an accident (Salaam at para. 25), where the through
driver breaches his common law and/or statutory obligations he may be
contributorily negligent. The issue then becomes one of apportioning fault.
[67]
Counsel for Martineau recognizes that the first step in the liability
analysis for a collision between a left-turning driver and a through driver is
the colour of the traffic light when the left-turning driver commenced his
turn: Miller v. Dent, 2014 BCCA 234 at para. 16.
[68]
Applying these principles, Martineau invites me to find that: he was
proceeding toward the intersection below the speed limit; the light turned
yellow just as he entered the pedestrian cross walk to the north of the
intersection; he could not then bring his vehicle to a safe stop at the
intersection; he was the dominant vehicle; Baldwin, whose view was obstructed
by the southbound, left-turning vehicle facing him, did not see Martineau
approaching the intersection in the curb lane when he commenced his turn on the
yellow light; Martineau had no reason to believe that Baldwin would turn left
into his path; and, when Baldwin did so, Martineau took the only evasive action
reasonably open to him to attempt to avoid the collision.
[69]
I do not understand Baldwin to take issue with the general principles
set out herein. Against these foundational principles, Baldwin invites me to
find that: he did not commence his left turn until after the light turned red;
he then slowly proceeded into his left turn, trying to see around the
southbound left-turning vehicle facing him; he was the dominant driver when he
turned left; just as he turned left, Martineau, travelling well above the speed
limit, passed the southbound left-turning vehicle on its right and entered the
intersection; Martineau did not observe the traffic signal until he was almost
at the intersection; exercising reasonable care, Martineau could have brought
his vehicle to a stop at the intersection; Martineau entered the intersection
as the traffic signals governing all directions of travel were red; and Martineau
passed another vehicle on the right when it was unsafe to do so, failed to
yield the right-of-way under ss. 128(1), 129(1) and 174 of the Act, and
proceeded into the intersection without due care and attention contrary to
s. 144(1) of the Act.
[70]
Baldwin asserts that when the light changed to red, he was, despite the
visual obstruction facing him, entitled to assume that all oncoming traffic had
or would obey the rules of the road and come to a stop.
[71]
Baldwin places particular reliance on: Morgan v. Hauck (1988),
27 B.C.L.R. (2d) 118 (B.C.C.A.); Kokkinis v. Hall (1996), 19 B.C.L.R.
(3d) 273 (B.C.C.A.); Frankson v. Myre, 2008 BCSC 795; Ruscheinski v.
Biln, 2011 BCSC 1263; and Henry v. Bennett, 2001 BCSC 1254. All
these authorities involve motor vehicle accidents between through and
left-turning drivers.
[72]
In Morgan, Frankson and Henry, the through driver
was found to have proceeded through the intersection against a red light. In Kokkinis
and Ruscheinski, the court found that after the light turned yellow, the
through driver had ample time to stop in safety before entering the intersection
as other drivers had done.
[73]
On the basis of these authorities, Baldwin asserts that a left-turning
driver who has complied with their statutory and common law duties is entitled
to assume that other drivers will obey the rules of the road. In the
circumstances of this case, Baldwin asserts that when the light turned red and
he commenced his left turn, he was the dominant driver and Martineau was the
servient driver who had an obligation to yield to him the right of way.
E. Findings of Fact and Credibility
[74]
A number of factors have negatively influenced my assessment of Baldwin’s
credibility, and undermined the reliability of his testimony and the faith I
can have in it. For example:
·
Baldwin testified at trial they were not trying to catch a
particular ferry to the Sunshine Coast and were not in a hurry. On examination
for discovery, he testified that "we missed the ferry we were going for so
we had to sit and wait a little bit…";
·
Baldwin testified at trial there was at least one large truck
facing him in the southbound center lane waiting to turn left to go east on
East 12th Avenue. On examination for discovery, Baldwin testified
that he thought there were two cars (not trucks) stopped at the intersection
waiting to turn left on Fraser to go east on East 12th Avenue. Baldwin,
who was present in court for the testimony of Boyd, explained that his memory
was refreshed by hearing Boyd’s testimony that the vehicle facing them and turning
left was a large truck. I am skeptical of Baldwin’s contention that his memory
of events, close to five years after the accident, was refreshed by hearing
Boyd’s account;
·
Baldwin’s recollection of the location of the larger left-turning
vehicle facing him in the intersection evolved over the course of the trial to
such an extent that it affects my assessment of his credibility, and the
reliability of his account;
·
Baldwin testified at trial that he initially stopped in the
crosswalk on the south side of the intersection and did not proceed into the
intersection until the light turned yellow. On examination for discovery,
Baldwin testified that he pulled directly into the intersection and waited for
the light to turn yellow;
· Baldwin
testified at trial that the light switched to red before he commenced his left
turn. On examination for discovery, Baldwin generally maintained that position
but also gave this evidence:
Q. So you’re
saying that you never actually began your final turn until the light went red,
is that it, or was it still yellow?
A. By my recollection — by what I
think, I can’t be exact, but I wouldn’t have proceeded through unless it was
red, because that’s my normal way.
When asked in
cross-examination if he was relying on his usual practices, Baldwin insisted he
was not, and that the light had switched to red when he turned left. When
asked in cross-examination why he had given this evidence on examination for
discovery if he was certain he did not turn until the light was red, Baldwin replied
that the discovery occurred three years after the accident and he could not
remember. That being the case, there is little reason for the Court to believe
that two years after the examination for discovery, and five years after the
accident, Baldwin now has a clear and exact recollection of the colour of the
light when he turned — a recollection he did not have on examination for
discovery;
·
When asked if he told the police he turned on a yellow light,
Baldwin replied, "No. I don’t think so";
·
I think it most unlikely that if Baldwin had the clear
recollection he purported to have at trial (that he turned only after the light
switch to red) he would not have answered the questions posed in the previous
two bullets in the way he did. The cross-examination of Baldwin on these two
points undermines my assessment of the reliability of his trial testimony;
·
I cannot accept Baldwin’s evidence (even though it is confirmed
by Boyd to some extent) that Martineau was travelling well above the speed
limit, at least 70 km/h when he entered the intersection. The reality is
Baldwin had no opportunity to assess the speed of Martineau’s vehicle. I would
say the same about Boyd. Martineau’s vehicle was upon them before either
Baldwin or Boyd even saw it. That Baldwin was prepared to give this evidence
undermines his credibility and the reliability of his evidence because it
suggests a willingness on his part to attribute conduct to Martineau (speeding)
that would shift blame away from himself and onto Martineau. This evidence is
also inconsistent with the fact that Martineau was able to bring his vehicle to
a complete stop in something less than the span of the intersection; and,
·
Baldwin’s evidence that when he turned left he had "just
barely got going" and travelled only about 5 to 10 feet to the point of
impact is difficult to reconcile with his evidence that when he braked upon
seeing Martineau’s vehicle coming into the intersection, he left a foot-long
skid mark. The skid mark Baldwin says his vehicle left on the road is more
consistent with rapid acceleration and an abrupt stop than it is with the
version of events Baldwin gave at trial. It is more consistent with Martineau’s
evidence that Baldwin accelerated quickly into the turn and then braked hard
when he saw Martineau’s vehicle. It is also more consistent with Boyd’s
version of events that Baldwin entered the intersection when the light turned
yellow and turned left without stopping again.
[75]
I accept Boyd was being truthful at trial when she testified she could
not say whether the light was yellow or red when Baldwin turned left. However,
the fact that she repeatedly testified on examination for discovery that the
light was red when Baldwin turned left undermines her credibility and the
reliability of her account on other issues, including the speed at which
Martineau was travelling when he entered the intersection.
[76]
When Boyd was being cross-examined at trial by Baldwin’s counsel on the
evidence she gave in examination for discovery regarding the colour of the
light when Baldwin turned left, I expressed the view that Boyd had not, in law,
"adopted" the evidence she gave on examination for discovery and that
it was, as a consequence, not admissible for its truth. I took this position
because Boyd, despite the evidence she gave on examination for discovery,
repeatedly testified at trial she has no current recollection as to the colour
of the light when Baldwin turned left, and no current recollection that the
light was red when Baldwin made that turn.
[77]
Counsel for Baldwin did not contest the Court’s preliminary assessment
of the limited use to which Boyd’s evidence given on examination for discovery
could be put.
[78]
Nevertheless, Baldwin’s counsel submitted in closing argument that
Baldwin’s evidence that the light was red when he turned left is confirmed by
the evidence of Boyd, who was said to have adopted the evidence she gave on
this point on examination for discovery.
[79]
With respect, I cannot agree with the position counsel for Baldwin
advanced in closing argument. In my view, Boyd cannot be said to have adopted
the evidence she gave on examination for discovery, and that evidence is not
admissible for its truth. In coming to this conclusion, I rely on R. v.
Kelly, 2011 ONCA 549 at para. 41:
Under the prevailing authority a
witness cannot adopt a prior inconsistent statement unless that witness has a
present recollection of the events referred to in the statement and can attest
to the accuracy of the statement based on a present recollection of those
events. A witness who has no present recollection of the events but insists
that the statement was true because, for example, she would not lie to the
police, has not adopted the prior statement and subject to some other rule of
evidence, the prior statement is not admissible for its truth: see R. v.
Toten (1993), 83 C.C.C. (3d) 5, at p. 23 (Ont. C.A.); R. v.
McCarroll (2008), 238 C.C.C. (3d) 404, at paras. 38-39 (Ont. C.A.)
[80]
Given Boyd’s clear evidence at trial that she has no present
recollection as to whether the light was yellow or red when Baldwin turned, it
cannot be said that she adopted the evidence she gave on examination for
discovery.
[81]
There are fewer factors that negatively impact my assessment of the
credibility of Martineau and the reliability of his evidence. As noted
earlier, Martineau testified on examination for discovery that the truck
turning left in the center southbound lane had a rack on top of it – something
he did not mention at trial. Counsel for Baldwin submits that Martineau adopted
the evidence he gave on examination for discovery on this point. Again, I
cannot agree. Martineau testified he has no current recollection of the truck
having a rack on top of its canopy. Counsel for Baldwin’s argument that the
rack may have further obstructed Martineau’s sight line as he approached the
intersection is speculative.
[82]
Further, while counsel for Baldwin suggested that Martineau’s vision may
have been impaired by the setting sun, the submission is also a speculative one
with no basis in the evidence.
[83]
Counsel for Baldwin submits that I should understand Martineau’s
evidence at trial to be that he did not notice the colour of the light at all
until he was immediately behind the truck turning left from the southbound
center lane, or about 20 feet from the intersection. The submission rests on
what I consider to be a literal interpretation of an isolated portion of
Martineau’s evidence – one not borne out by his evidence as a whole.
[84]
Martineau’s recollection of events was more detailed than that given by
Baldwin and more consistent with the evidence as a whole. On the whole of his
evidence, I am satisfied Martineau knew the light was green as he travelled
towards the intersection well before he was at the pedestrian crosswalk
immediately to the north of the intersection.
[85]
Martineau was not shaken in his evidence that, when the light turned
yellow, he was entering the pedestrian crosswalk and was at the back of the
southbound truck in the center lane that was turning left. Martineau’s
evidence that the light was yellow is supported by the body of evidence that
the left-turning truck in the southbound center lane was still in the
intersection facing Baldwin and waiting to turn left to go east on East 12th
Avenue when Baldwin turned left to go west on East 12th Avenue. Had
the light either been late into its yellow phase or red before Baldwin
commenced his turn, it is very unlikely that the truck facing Baldwin would
still have been in the intersection in the position described by the witnesses.
[86]
I am mindful of Martineau’s evidence that "one to two seconds, tops"
elapsed between the light changing to yellow and the collision. If this is a
fair estimate, Martineau would likely have been farther back from the
intersection than the pedestrian crosswalk when the light changed to yellow. Assuming
a speed of 40 km/h and a one-second interval between these two events,
Martineau would have been 36.5 feet from the point of the collision when the
light turned yellow. Assuming a speed of 40 km/h and a two-second interval
between these two events, Martineau would have been 73 feet from the point of
the collision when the light turned yellow. Assuming a speed of 45 km/h and a
one-second interval between these two events, Martineau would have been 41 feet
from the point of collision when the light turned yellow. Assuming a speed of
45 km/h and a two-second interval between these two events, Martineau would
have been 82 feet from the point of collision when the light turned yellow.
[87]
Having said this, human experience suggests that witnesses have an
easier time describing their position at a particular point in time by
reference to context; in other words, by describing where they were in relation
to other things. Generally speaking, witnesses have a more difficult time
estimating the seconds that may have passed in describing a traumatic event. The
point is illustrated by the evidence in this case. Martineau was unshaken in
cross-examination about where he was in relation to the southbound truck
turning left when the light turned yellow. While Martineau testified in chief
that he was "one to two seconds, tops" from the intersection when the
light turned yellow, in cross-examination he acknowledged that accurately
translating his experience of events into seconds was an exercise in guesswork.
[88]
Martineau’s proximity to the intersection when Baldwin turned left is
confirmed by the following evidence:
·
Baldwin’s vehicle was struck almost immediately upon entering the
southbound curb lane;
·
Boyd did not see the Martineau vehicle until it was colliding
with Baldwin’s vehicle; and,
·
The nose of Baldwin’s vehicle had only reached the midpoint of
the curb lane before impact. The vehicle was not perpendicular to Martineau’s
vehicle when the impact occurred.
[89]
The evidence of Cornish simply confirms, in my view, the presence of the
southbound, left-turning vehicle in the intersection that was facing Baldwin as
Baldwin commenced his turn to proceed west on East 12th Avenue.
[90]
Taking all of these considerations into account, I make these factual
findings:
1.
The light was early into its yellow phase when Baldwin turned left into
Martineau’s path;
2.
Baldwin’s vision of oncoming traffic was obstructed by the truck
immediately opposite him that was waiting to turn left to go eastbound on East
12th Avenue;
3.
Baldwin did not, as a consequence of the visual obstruction created by
this truck, see Martineau approaching the intersection in the southbound curb
lane when he commenced his turn;
4.
Baldwin commenced his turn when it was unsafe for him to do so;
5.
Despite the fact that Baldwin’s vision was obstructed, he proceeded
quickly with his left turn shortly after the light switched to yellow and
braked hard when he saw Martineau’s approaching vehicle, causing his tires to
screech and leave a skid mark on the road before he came to a stop part way
through the southbound curb lane;
6.
Martineau approached the intersection at or below the speed limit. His
evidence on this point is confirmed by the fact that he was able to bring his
vehicle to a stop a short distance after taking evasive action in the middle of
the intersection to avoid a head-on collision with Baldwin;
7.
Martineau did not accelerate or decelerate before entering the
intersection;
8.
When Martineau first saw Baldwin’s vehicle, it was moving in the intersection
but going straight; it was not yet turning left;
9.
Martineau had no reason to believe that the Baldwin was going to turn
left early into the yellow light until he did so;
10.
On the facts as I have found them, Martineau was entitled to assume that
Baldwin would yield the intersection to him;
11.
Martineau was very close to the intersection when the light turned
yellow and, exercising reasonable care, could not have brought his vehicle to a
safe stop before the intersection;
12.
Martineau was, when the light turned yellow, an immediate (but
unobserved) hazard;
13.
Martineau was the dominant driver when he entered the intersection; and,
14.
Once Baldwin proceeded with his turn, Martineau’s options were limited: he
could stay in his lane and brake hard in order to reduce the force of the
head-on impact, or steer sharply to the right to avoid the impact, and brake
hard after being clear of it. He chose the latter course. I cannot fault him
for doing so.
[91]
In light of these findings, Baldwin is entirely liable for the accident.
[92]
The action against Martineau is dismissed, with costs.
[93]
Counsel for Martineau seeks a further order that the costs of the
plaintiff incurred in connection with this trial be borne by the defendant,
Baldwin. Martineau seeks this further order as a consequence of Baldwin’s
refusal to admit prior to the trial that Boyd bore no responsibility for the
accident – an admission made by Martineau. Martineau submits that the
involvement of Boyd’s counsel at trial would have been unnecessary had Baldwin
made this reasonable admission in advance of the trial. I agree with the
position of Martineau’s counsel on this point and order that the costs of the
plaintiff in connection with the trial be borne by Baldwin.
"Fitch J."