Shortt v. Chow, 2011 ABQB 81

Court of Queen ’ s Bench of Alberta Citation: Shortt v. Chow, 2011 ABQB 81 Date: 20110214 Docket: 0803 07010 Registry: Edmonton Between: Mandy Eileen Shortt Plaintiff - and - Angelina Soo-Har Chow and Sun Yee Chow Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A. Verville _______________________________________________________ Introduction [ 1 ] Mandy Eileen Shortt (the “plaintiff”) was involved in a motor vehicle accident in the City of Edmonton on November 26, 2007 (the “Accident”) while making a left hand turn. Liability is in issue. Facts

[ 2 ] The plaintiff was proceeding in an easterly direction on 111 Avenue at about 3:25 p.m. and attempted to make a left hand turn at the intersection of 111 Avenue and 126 Street (the “Intersection”) to proceed north on 126 Street when the Accident occurred. There were no traffic lights at the Intersection, the nearest traffic lights being at the intersection of 111 Avenue and 127 Street, one block to the west. [ 3 ] The plaintiff was the owner and operator of a 2001 Honda Accord (the “Honda”).

Sun Yee Chow was the owner and his wife Angelina Soo-Har Chow the operator (the “defendants”) of a 1996 Acura TL (the “Acura”). The front airbags of the Acura and the side airbag of the Honda were deployed in the Accident. [ 4 ] 111 Avenue in the vicinity of the Intersection has three eastbound and three westbound lanes. Although the Intersection was clear, westbound traffic in the lane nearest the centre line of 111 Avenue (the “Number 3 lane”) and the centre lane (the “Number 2 lane”) was stopped and backed up to the east of the Intersection because the traffic light one block to the west at 127 Street was red.

The Accident occurred in the curb lane (the “Number 1 lane”). 111 Avenue for several blocks to the east and west of the Intersection is straight and level. The speed limit on 111 Avenue at the time of the Accident was either 50 or 60 km/h. [ 5 ] No independent witnesses to the Accident came forward to testify. Angelina Soo-Har Chow (“Ms. Chow”) is deaf and gave her evidence through the assistance of sign-language interpreters.

Her first language is Chinese but she has some ability to express herself in written English. [ 6 ] Two accident reconstruction engineers whose credentials were admitted gave expert testimony with respect to the Accident. James Graham testified on behalf of the plaintiff and Mark Sawa testified on behalf of the defendants. Evidence [ 7 ] Constable Mark Farnell a member of Edmonton Police Service arrived at the scene of the Accident at about 4:30 p.m. and prepared a collision report. He recalled that it was minus 17 Celsius, that there was snow on the road and that the road surface was icy.

A notation in his collision report stated “road conditions extremely dangerous”. He designated the plaintiff’s Honda as vehicle #1 and the defendants’ Acura as vehicle #2 in his report, which indicated that in his opinion the driver of the Honda was at fault.

However, he stated that given the circumstances of the Accident including the weather conditions and the fact the plaintiff had substantially completed the left hand turn, he exercised his discretion and did not lay charges. [ 8 ] Constable Farnell did not have a clear recollection of events given the passage of time and the fact that he has investigated numerous other accidents. He stated that he could not determine the point of impact as there were no debris or skid marks on the road when he arrived. He did not take photographs or make any measurements.

He believed that the Honda had not been moved after the Accident but could not recall whether the Acura had been moved. He estimated that the Honda had come to rest on 126 Street facing in a southerly direction between 5 and 10 metres north of the north curb line of 111 Avenue. [ 9 ] Constable Farnell stated that he was aware that there was a communication issue with Ms.

Chow by the way she was using her hands and acknowledged that they had difficulty communicating. [ 10 ] The plaintiff testified that prior to the Accident she had picked up her sister Kristina MacGregor and two year old niece at her sister’s home which was the second house in on 126 Street on the north side of the Avenue and that they had driven to the Westmount Shopping Centre. She recalled that at around 3:00 p.m. it started to snow. On leaving the shopping centre it was her intention to drive her sister and niece home, which was about a five minute drive and then proceed on to work.

She stated that traffic was busy like rush hour. [ 11 ] She recalled driving through the intersection of 111 Avenue and 127 Street while the light was green and stated that she then proceeded to make a left hand turn to proceed north from the Number 3 eastbound lane of the Avenue when she arrived at 126 Street. Ms. MacGregor was in the right front passenger seat and her niece was in a car seat in the middle of the back seat. [ 12 ] The Plaintiff stated that westbound traffic in the Number 3 and Number 2 westbound lanes of 111 Avenue was backed up to

the east of the Intersection because the traffic light was red at 127 Street, but that the Intersection was open. She recalled the first two vehicles on the east side of the Intersection were a red vehicle in the Number 3 westbound lane and a large ETS wheelchair bus or DATS bus (the “DATS bus”) in the Number 2 westbound lane. As the driver of the red vehicle waived her to go through she commenced her left hand turn.

She then continued her left hand turn into the Number 2 lane as the driver of the DATS bus also waived her through. [ 13 ] The plaintiff testified that she stopped briefly in front of the DATS bus but as it obscured her vision of westbound traffic in the Number 1 lane she then cautiously drove her vehicle forward to the point where the middle of the right front tire of the Honda was at the north edge of the DATS bus and almost perpendicular to 126 Street at which time both she and her sister looked down the Number 1 lane and saw that it was clear.

She testified that she could see down the Number 1 lane for approximately a block. She stated immediately after confirming that the Number 1 lane was clear she proceeded to complete the left hand turn driving slowly across the Number 1 lane as she knew 126 Street was slippery and she did not want lose control. [ 14 ] The plaintiff testified that she had almost completed her turn onto 126 Street when her vehicle was struck by the Acura driven by Ms. Chow. She believed everything but the back tire and bumper of the Honda was on 126 Street north of 111 Avenue.

She stated that the collision with the Acura caused her vehicle to spin around three times and come to rest on 126 Street facing in a southerly direction. She said that she had no idea where the Acura had come from. [ 15 ] The plaintiff testified that she moved from Edmonton to Fort McMurray in November of 2010. She was referred during examination in chief to certain diagrams prepared Mr. Graham, the accident reconstruction expert retained to give expert testimony on her behalf.

She stated that the orientation of her vehicle in the diagrams was incorrect in that her vehicle was more perpendicular to 126 Street than at the angle depicted therein and that the right front tire of the Honda would have been further out into the lane past the DATS bus. She testified that she had first seen animations prepared by Mr. Graham while she and her sister were being briefed for trial on Saturday, January 29, 2010. She stated that in her view the animation indicated that she was on a suicide mission when attempting the left hand turn. She testified that she and her sister subsequently met with Mr.

Graham to give him further information with respect to the orientation of the Honda and where it was stopped in relation to the DATS bus prior to proceeding through the Number 1 lane in order to enter 126 Street. [ 16 ] Ms. MacGregor, the plaintiff’s sister, testified that she did not have driver’s license or learner’s license at the time of the Accident. She confirmed that she was seated in the front passenger seat of the Honda as the plaintiff drove from the shopping centre towards the Intersection.

She was could not recall whether the road surface was icy or whether it was snowing. [ 17 ] She recalled that when they arrived at the Intersection it was open but that vehicles were stopped in the Number 3 and Number 2 lanes on the east side, and that the plaintiff proceeded to make the left hand turn onto 126 Street. She saw the driver of the DATS bus waive her sister forward and stated the Honda came to a stop with its nose a bit past the DATS bus so that they could have a clear view of the Number 1 lane. She stated that the Honda at this point was more perpendicular to 126 Street than at an angle to it. Ms.

MacGregor stated that she could see two blocks down the Number 1 lane, that it was completely clear and she told her sister to go. [ 18 ] Ms. MacGregor stated that she was looking north as the Honda began crossing the Number 1 lane to enter 126 Street but recalled turning her head to the east just as the Acura struck the Honda causing it to spin around. She testified that she had no idea where the Acura came from or how fast it was going. She stated that the Honda was not going very fast as it crossed the Number 1 lane as neither she nor her sister had seen anyone coming.

She remembered the side airbags going off and stated that after the Accident she had to exit the Honda through the front driver’s door by climbing over the console as the front passenger’s door could not be opened. [ 19 ] Ms. Chow testified that prior to the Accident she had been shopping for groceries in Chinatown on 97 Street. She recalled entering 111 Avenue at 101 Street, it being her recollection on reflection that she could not make a left hand turn at 97 Street.

She stated that after entering the Avenue in the Number 3 lane and driving for a short distance in that lane she moved to the Number 2 lane where she continued to drive in a westerly direction until she reached 125 Street. [ 20 ] She stated that just as she passed 125 Street the traffic in the Number 2 lane came to a stop because the light was red at 127 Street. She testified that her vehicle was the last one in line and that after coming to a stop she changed into the Number 1 lane which was clear of traffic. Ms.

Chow stated that it was cold outside and that the Number 1 lane was icy and more slippery than the other two lanes. She could see tracks in the snow in this lane, which was less travelled, left by vehicles that had preceded her. She stated that except for a bit of snow that was falling, her visibility was clear and that she was not bothered by the sun as it was overcast.

[ 21 ] Ms. Chow was not able to give an estimate of her speed in the Number 1 lane other than to say that it was slower because there was ice on the road and she always drives slower in winter. She stated that it was her intention to continue to driving in the Number 1 lane for some distance further west. She recalled seeing the DATS bus and confirmed that it blocked her view of traffic in the Number 3 and 2 lanes. She stated that as she proceeded in a westerly direction in the Number 1 lane her front airbags suddenly went off causing her to have a bloody nose.

She testified that she never saw the plaintiff’s Honda prior to the airbags deploying. She said that she had no chance to brake or steer away as everything happened so quickly and she could not recall braking after the airbags deployed. She stated that she never saw the Honda in front of the DATS bus waiting to turn and stated further that she had no warning that a vehicle was going to make a turn. [ 22 ] Ms. Chow indicated that she was in shock after the Accident and had difficulty communicating to the plaintiff and Constable Farnell the fact that she was deaf.

She testified that she made a written request for an interpreter when Constable Farnell arrived but that none was forthcoming and that after waiting at the Accident scene for several hours she eventually went to the police station where she prepared a short collision statement. [ 23 ] Mr. Graham testified that he did not examine the vehicles after the Accident but simply looked at photographs depicting the damage and appraisal sheets which identified certain damage. Further, he obtained an aerial photograph of the Intersection and scaled City of Edmonton drawings from which he calculated certain distances.

He also attended at the Accident scene several years after it occurred. He stated that the distance between 125 Street and 126 Street is approximately 115 to 120 metres and that there is an alleyway about half way in between. He also obtained the specifications for the Honda and Acura and confirmed that each of the vehicles in question would have been equipped with daytime running lights. [ 24 ] Mr. Graham confirmed that he prepared three reports, namely his initial report of January 21, 2010, a rebuttal report to a report of Mr.

Sawa dated January 24, 2011 and finally a report dated January 31, 2011 (the “Revised Analysis”) based on new information gleaned from the evidence of Constable Farnell, the plaintiff and Ms. MacGregor. Constable Farnell had given his testimony on January 24, 2011 as he was not available to testify during the trial which commenced on January 31, 2011. [ 25 ] After receiving the new information, Mr. Graham used an accident simulation and reconstruction program known as PC Crash to do a further accident analysis in order to prepare the Revised Analysis.

This simulation included a number of assumptions including that the Honda was almost perpendicular to the DATS bus when in front of the DATS bus, and that prior to proceeding through the Number 1 lane the plaintiff initially stopped the Honda such that the front end up to about the front axle was protruding north of the DATS bus. From the Honda specifications he calculated this to be a distance of approximately 99 cm. [ 26 ] Mr.

Graham concluded that there were a series of impact speeds that were dynamically possible stating that there is an inverse relationship between the speed of the Honda and the speed of the Acura, the range in his opinion being between 10 km/h for the Honda and 40 km/h for the Acura and 15 km/h for the Honda and 35 km/h for the Acura. From a complete stop it would have taken approximately 3.8 seconds prior to impact for the Honda to achieve a speed of 10 km/h at impact and 2.5 seconds prior to impact to achieve a speed of 15 km/h at impact. [ 27 ] Mr.

Graham testified that individuals have different perception and reaction times (“PRT”) when facing a potentially dangerous situation, the accepted range being between 1 and 1.8 seconds for approximately 84% of the population. He prepared an Avoidance Analysis

Summary which indicated that the Accident could have been avoided by Ms. Chow braking on all occasions where for example the speed of the Honda was between 10 and 14 km/h and the inverse speed of the Acura between 40 km/h and 36 km/h. Further, he calculated that the Accident could have been avoided in all instances where the Honda speed was 15 km/h and the Acura 35 km/h except where Ms. Chow’s PRT was 1.7 or 1.8. In other words the Accident would only have been unavoidable if the Honda had accelerated to a speed of 15 km/h and the speed of the Acura was 35 km/h and Ms.

Chow’s PRT was 1.7 or 1.8 seconds. [ 28 ] He agreed that his calculations assumed the PRT commenced almost immediately after the Honda began to move from a standing stop. He acknowledged on cross-examination that he was familiar with the text R. Dewar and P. Olson, eds., Human Factors in Traffic Safety , 2d ed. (Tucson: Lawyers and Judges Publishing Company Inc., 2007). [ 29 ] He was referred to a passage which stated in part:

.... It is unfair to apply this response time to a case where a vehicle is accelerating from a stopped position. When a vehicle starts to accelerate from a stop at a moderate rate the forward motion cue for the first second or so is very weak, hardly comparable to something like finding a sizeable piece of junk in the road over a hillcrest. and stated that he did not have an opinion with respect to the scenario of adding extra time when a stopped vehicle begins to move. [ 30 ] Mr. Sawa reviewed Mr.

Graham’s Revised Analysis together with his PC Crash support documents and in response prepared a report dated February 1, 2011, critiquing the Revised Analysis. He noted in his report: “...Mr. James Graham, has redone his entire analysis to incorporate the latest police and witness testimony”. He further noted: “... when the latest information is utilized, the latest Graham Ryan report confirms that the Acura was travelling below the speed limit.” [ 31 ] Mr. Sawa testified that, like Mr.

Graham, he did not examine the vehicles after the Accident but simply looked at photographs depicting the damage and appraisal sheets which identified certain damage.

He stated that the plaintiff’s evidence with respect to where her vehicle was struck was incorrect as the photos clearly indicate that the Honda was initially struck in about the middle just behind the front passenger door. [ 32 ] He stated that ideally when preparing an accident reconstruction report he would want to physically inspect both vehicles, look for physical evidence at the accident scene and obtain photographs and measurements from the police. He stated further that he would also like to know such things as the point of impact, the rest positions of the vehicles, the roadway friction and so on.

He stated that numerous assumptions had to be made in the instant case as none of the above information was available. [ 33 ] Mr. Sawa stated that it was his understanding that the speed limit on 111 Avenue was 50 km/h and noted that Mr. Graham’s calculations indicated that the Acura was travelling 10 to 15 km/h below the speed limit. He reiterated that there was insufficient hard evidence with which to do calculations and that accordingly it was necessary to make assumptions. He noted that Mr.

Graham’s calculations were based on a variety of assumptions and stated that one’s conclusions can change with minimal changes to certain assumptions. [ 34 ] He did not disagree with any of Mr. Graham’s mathematical calculations but was of the opinion that a speed of 10 km/h for the Honda was unrealistic as it would assume an unreasonable acceleration rate of 0.075 g namely one that was similar to that of a tractor trailer unit.

It was his view that an unreasonable acceleration rate for the Honda resulted in attribution of an overly large amount of time for the driver of the Acura to perceive and react to the Honda. Accordingly, it was his opinion that the Honda’s impact speed of 10 km/h represented an unreasonable scenario when used to assess impact avoidance. Further he disagreed with Mr.

Graham’s opinion that a Honda can accelerate at a reasonable rate of acceleration of about 0.125 g from a stop on winter roadway conditions. [ 35 ] He stated that a speed of 15 km/h assumed an acceleration rate of 0.17 g which in his view was on the slower end of a reasonable rate. His opinion was that in winter roadway conditions a reasonable rate of acceleration for a stopped Honda was in the range of .15 g. to .2 g whereas in the summer it would be between .25 g and .3 g.

He noted the Revised Analysis indicated that the Honda had to start accelerating approximately 2.5 seconds prior to impact to achieve a speed of 15 km/h at impact, and that if the Acura was proceeding at a constant speed of 35 km/h it would have only been 25 metres down the road when the Honda began to accelerate. [ 36 ] Mr. Sawa was asked to assume that the plaintiff’s testimony was correct that she stopped in front of the DATS bus and then inched out about 99 cm and came to a second stop in order to get a clear view of the Number 1 lane before attempting to proceed with her left hand turn through that lane.

He agreed that in this scenario the Honda was there to be seen by Ms. Chow who depending on her speed would have been approximately 55 metres to the east of the Intersection. He disagreed however with the suggestion that a fully stopped Honda with its front end protruding past the DATS bus would be perceived as a threat, stating that if anything it would be perceived as yielding the right of way to the Acura. [ 37 ] Assuming the Honda commenced accelerating from a stop after approximately 99 cm of its front end protruded past the DATS bus, Mr.

Sawa noted in his report that it barely moves initially as in the first half second it would only have moved 21 cm and travelling at 3 km/h which movement would be difficult to perceive. He went on to state in his report:

The difficulty of when a through driver should first perceive a vehicle accelerating from a stop was identified by Robert Dewar and Paul Olson, eminent experts in the field of human factors and perceptions/reaction ... For the situation faced by the Acura driver, the authors indicate that the “forward motion cue for the first second or so is very weak”. As such, it is more reasonable for Mr. Graham to have started the driver’s perception response process after the first second (1 second) of the Honda acceleration. [ 38 ] Mr.

Sawa concluded that if the Honda started to accelerate 2.5 seconds prior to impact, the PRT for Ms. Chow would have started 1.5 seconds prior to impact and that she would not even have had time to brake if her PRT was 1.5 seconds or longer. Further, he stated that if Ms. Chow’s PRT was 1.0 second (the fastest reasonable perception response time), the Acura would impact the right rear of the Honda at 23 km/h. He stated that in his opinion the scenario presented by Mr. Graham actually indicates that the collision was unavoidable for the Acura driver.

Positions of the Parties [ 39 ] The plaintiff argues that the defendants should be found to be at least 50% liable for failing to avoid the Accident. Further, the plaintiff challenges Ms. Chow’s credibility and submits that she could have come to a complete stop and avoided the Accident. The defendants submit that the plaintiff should be found 100% liable for the Accident. They assert that the plaintiff has continued to massage her evidence to put it in the best possible light and they challenge her credibility.

Negligence Law [ 40 ] The legislation in force at the time of the Accident was the Traffic Safety Act , R.S.A. 2000, c. T-6. The parties refer to the following regulations passed pursuant to the Act : Driving at appropriate speed 2(1) A person shall not do any of the following: (

a) notwithstanding that a speed limit is prescribed by or pursuant to the Act or any other Act in respect of a highway, drive a vehicle on that highway at any rate of speed that is unreasonable having regard to all the circumstances, including without restricting the generality of the foregoing, the following: (

i) the nature, condition and use of the highway; (ii) the atmospheric, weather or other conditions that might affect the visibility of the driver or the control of the vehicle; (iii) the amount of traffic that is or that might reasonably be expected to be on the highway; (iv) the mechanical condition of the vehicle or any equipment on the vehicle; Right of way at intersections 34(1) Except as otherwise provided in this Part or

Part 2, when 2 vehicles approach or enter an intersection from different highways at approximately the same time, the person driving the vehicle to the left shall yield the right of way to the vehicle on the right.

(2) A person driving a vehicle shall not turn or attempt to turn the vehicle to the left across the path of an approaching vehicle unless theturn can be completed in safety. [41] The plaintiff cites a number of authorities including: Hanson v. Heuchert (1997), (AB KB), 197 A.R. 46,[1997] A.J. No. 53 (Q.B.), Moulton v. Harrold (18 June 2008), Edmonton 0503-14019 (Alta.Q.B.), rev’d 2009 ABCA 176, 454 A.R.395, Mah v. Coulson (1992), (AB KB), 136 A.R. 313, [1992] A.J. No. 1115 (Q.B.), Au v. Carnegie, 2003 ABQB893, 345 A.R. 50, aff’d 2005 ABCA 43, 363 A.R. 118, Jomha v. Hicks, 2010 ABQB 551, Dubitski v.

Barbieri, 2004 ABQB 187, 355A.R. 81, aff’d 2006 ABCA 304, 397 A.R. 345, and Amato v. Carr, [1993] O.J. No 2836 (Gen.Div.). [42] The defendants cite some of the same authorities and in addition: Ward (Next Friend of) v. Ward, 2010 ABQB 654 and Kingv. Singh, [2002] A.J. No. 1653 (Q.B.), aff’d 2004 ABCA 124. Analysis [43] The above authorities espouse the following principles: 1. There is an onus on all drivers to comply with their duties to observe all of the rules of the road and a driver in the dominantposition (having the right of way) cannot simply blindly proceed without regard to the circumstances. 2.

A dominant driver will be absolved of all liability unless the servient driver can show that the dominant driver was, or ought tohave been, aware of the impending accident and should have been able to avoid the accident. 3. A dominant driver has the right of way and is entitled to assume the left turning vehicle will not cut unsafely across its path,because taking into account reaction times and the short distance a vehicle travels when it turns, it is difficult for the oncoming vehicle toavoid a collision at the posted speed limits. 4.

There is no duty upon the dominant driver to anticipate the possibility of danger, nor is there negligence in failing to takeextraordinary precautions. 5. The dominant driver is entitled to assume the servient driver will obey the rules of the road. Without such an assumption, trafficwould come to a standstill. The dominant driver does not have to slow down at an intersection. 6. The dominant driver shall not exercise his right of way if, under the circumstances, it is reasonably foreseeable that a collisionwould result which could have been avoided. 7.

The dominant driver is presumed to be driving at a reasonable rate of speed unless and until the servient driver displaces thatassumption by proving, on a balance of probabilities, that the dominant driver was driving at an unreasonable rate of speed. 8. The speed limit is not determinative of reasonableness. A speed substantially in excess of the posted speed may be reasonablewhile a speed below the limit may not. 9. All of the circumstances must be examined in order to determine whether the dominant driver’s actions were reasonable and theservient driver has the onus of establishing they were not.

10. Any doubt is not to be resolved in favour of the servient driver who has disregarded his duty to yield the right-of-way. [ 44 ] The evidence is that the Accident occurred while the plaintiff was attempting to make a left hand turn from busy major thoroughfare to a residential street during daylight hours. Light snow was falling but did not have any significant impact on visibility.

However, neither driver saw the other prior to the Accident. [ 45 ] The defendants submit that the plaintiff is not credible, that her version of how the Accident happened has continued to evolve and that her evidence is unreliable. The defendants submit that the first version is set out in paragraph 1 of the statement of claim which states in part: Traffic had backed up in the westbound lanes and two lanes of oncoming traffic had stopped to let her turn left.

The Plaintiff commenced her turn and stopped in the second lane to look down the third lane east bound and when no traffic was coming she started to cross the third lane when suddenly a vehicle (“Defendant vehicle”) .... changed lanes into the third lane and accelerated into the intersection and violently struck the Plaintiff’s vehicle on the rear passenger side, spinning it around three times. [ 46 ] The defendants also cited a portion of a medical report prepared by Dr. A.H. McKenzie an orthopaedic surgeon which stated: ... Ms.

Shortt said that while travelling eastbound, she had entered an intersection on a green light and was preparing to make a left run to go northbound when the light changed to yellow and she had to wait for all westbound traffic to stop before completing her left turn. She said that with traffic stopped in the inside two westbound lanes, she proceeded slowly through her left turn in front of a car in the inside westbound lane and an ETS bus in the middle westbound lane and when she saw no traffic in the westbound curb lane, she began to cross the westbound curb lane.

She said that at the same time, she was told that a car that had been stopped behind the bus in the middle westbound lane suddenly pulled out from behind the bus into the westbound curb lane and sped into the intersection through the red light. ... [ 47 ] The defendants further submit that the plaintiff had an epiphany on the eve of the trial with respect to the orientation and location of her vehicle which contradicted her evidence given at the examination for discovery: Q. And did the DATS bus obstruct your view of vehicles in the curb lane? A. No. Q.

So even though there was a large DATS bus in front of you, it wasn’t in your way of seeing straight down 111 th Avenue for vehicles in that curb lane? A. No. Q. Why not? How did you see through that DATS bus? A. I didn’t see through the DATS bus. But if you pull up just a little tiny bit that you’re not going to go into the lane, my sister looked over, and I also leaned over to see, and I looked to make sure nothing was coming. Q. So are you saying you put the nose of your vehicle past the DATS bus so that you could see what was coming down 111 th ? A.

Yes, I did, a little bit. [p. 35 ll. 2 - 17] [ 48 ] The defendants submit it was passing strange that the plaintiff could recall in detail at trial the position of her right front tire in relation to the edge of the DATS bus, but when asked at trial how close her vehicle was to the DATS bus she said, “I don’t know, it was 3 years ago now”.

[ 49 ] Further the defendants note that both Mr. Graham and Mr. Sawa were in agreement that the plaintiff’s testimony that the Honda spun around three times after being struck by the Acura was inaccurate and not possible under any scenario. Finally, the defendants submit that the plaintiff gave inaccurate evidence as to where the damage to her vehicle was located, which was contradicted by the photographic evidence and the evidence of Mr.

Sawa. [ 50 ] In my view, it is not uncommon for honest witnesses to make mistakes when involved in motor vehicle accidents which usually happen quite quickly, nor to later exaggerate or rationalize what happened. I am also mindful that medical reports prepared by physicians often contain some inaccuracies with respect to how a motor vehicle accident occurred. [ 51 ] However, there is no doubt that neither the plaintiff nor her passenger could have looked a block or two blocks down the Number 1 lane and seen that it was clear.

In fact, if the defendants’ vehicle was travelling at 35 km/h, it would have only been about 25 metres to the east. Further, I accept the evidence of Mr. Sawa that the initial collision with the Honda occurred just behind the front passenger door. This likely explains why Ms. MacGregor could not open her door and had to climb over the console and exit through the driver’s door. Clearly the Honda did not spin around three times after being struck.

I find the plaintiff’s testimony that she stopped in front of the DATS bus, then pulled out to where the right front wheel was even with the bus, and stopped again before slowly crossing the Number 1 lane to be in the best possible light a self-serving attempt to rationalize what happened and at worst contrived. In the circumstances of this case, I find the evidence of the plaintiff to be generally unreliable. [ 52 ] I am mindful that the plaintiff has also challenged the credibility of Ms.

Chow suggesting that she had ample time to think about what to say in her collision statement which was made at the police station approximately five hours after the Accident. Ms. Chow testified that she requested an interpreter at the Accident scene due to her deafness but that none was forthcoming. I accept her evidence on this point. Constable Farnell testified that he had difficulty understanding Ms. Chow at the scene.

As previously stated, Constable Farnell did not have a clear recollection of events given the passage of time and the fact that he has investigated numerous other accidents. [ 53 ] Further, the plaintiff suggested that Ms. Chow gave inconsistent evidence with respect to the use of a brown paper bag after the Accident. At trial, Ms. Chow indicated that she was given a brown paper bag to puff into by a fireman after the fire department arrived at the scene. Although plaintiff’s counsel suggested it was because she was hyperventilating, she was unable to explain why she was using it.

While this evidence was somewhat confusing, it did not in my view impact on her credibility. I find that her evidence (given with the assistance of interpreters) was straightforward. She did not try to give favourable evidence as to her speed other than to say she was driving slowly because of winter conditions. I note that even the plaintiff’s expert’s scenarios have her travelling 10 to 15 km/h under the speed limit if it was 50 km/h in 2007 or 20 to 25 km/h under the speed limit if it was 60 km/h.

Further, she did not try to insist that the plaintiff suddenly and without warning drove into her path but simply said she did not see the plaintiff’s vehicle and was first aware of the Accident when her front airbags deployed. I find that Ms. Chow was a credible witness. [ 54 ] This case essentially evolved into a battle of experts with Mr. Graham having to substantially rely on the testimony of the plaintiff and her sister in order to prepare the Revised Analysis. Mr.

Sawa stated that there were many other scenarios as to how the Accident may have happened and because of the lack of hard evidence the scenarios were substantially based on assumptions. He testified that in this case it was necessary to assume the approach speed of the Acura, the acceleration rate of the Honda, the stopped position of the Honda in front of the DATS bus, the east/west positioning of the DATS bus, the braking capability of the Acura or coefficient of friction on the roadway and so on. He did not concede that the Accident happened within the parameters selected by Mr.

Graham but simply critiqued his approach acknowledging that depending on the assumptions and variables a range of scenarios would exist where the Ms. Chow could have avoided the accident and where the accident avoidance would have been impossible. [ 55 ] I accept his evidence that the acceleration rate used by Mr. Graham of 0.075 g to achieve a speed of 10 km/h at impact, was that of a tractor trailer unit and accordingly completely unreasonable.

Further I find it reasonable to allow for a 1.0 second lag time for a stopped vehicle which begins to accelerate (the plaintiff’s version at trial) before taking into consideration PRT. I accept his evidence that even if the plaintiff’s testimony at trial was accepted, a 1.0 lag time together with a 1.0 PRT (the lowest end of the range) for Ms. Chow would have resulted in an unavoidable accident regardless of Ms. Chow’s actions. [ 56 ] The rules of the road clearly establish that the dominant driver is not given a carte blanche to proceed blindly.

However, there is no duty upon the dominant driver to anticipate the possibility of danger, nor is there negligence in failing to take extraordinary precautions. The dominant driver is entitled to assume the servient driver will observe the rules of the road, and that a left turning vehicle will not cut unsafely across its path, otherwise traffic would come to a standstill. In this case, the Accident did not happen at a major intersection where the dominant driver might be more cognizant of the possibility of left turning vehicles.

The servient driver has the onus of showing that the dominant driver’s actions were not reasonable. Any doubt is not to be resolved in favour of the servient driver who has disregarded his duty to yield the right of way.

[ 57 ] In the circumstances of this case, I am of the view that the plaintiff has failed to discharge the onus of showing the dominants driver’s actions were not reasonable. Further, in my view that there are simply too many unknowns to find that Ms. Chow could have avoided the Accident. Such a proposition is entirely speculative. Accordingly, I find the plaintiff’s negligence was the sole cause of the Accident. Conclusion [ 58 ] The plaintiff is 100% liable for the Accident.

Costs [ 59 ] If the parties are unable to agree on costs they may arrange a further hearing in that regard within 30 days of the date of this decision. Heard on the 24 th day of January, 2011and January 31to February 3, 2011. Dated at the City of Edmonton, Alberta this 11 th day of February, 2011. Gerald A. Verville J.C.Q.B.A. Appearances: Terrence M. Kulasa James H. Brown & Associates for the Plaintiff Leslie C. Paetz Chomicki Baril for the Defendants