White v. Craigon, 2013 BCSC 845

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: White v. Craigon, 2013 BCSC 845 Date: 20130515 Docket: 11-1346 Registry: Victoria Between: Treena Joy White Plaintiff And Ian William Craigon and Claire Ardele Craigon Defendants Before: The Honourable Mr. Justice Bowden Reasons for Judgment Counsel for the Plaintiff: J.S. Godfrey Counsel for the Defendants: H.H. Urdahl Place and Date of Trial: Courtenay, B.C. April 15 and 16, 2013 Place and Date of Judgment: Victoria, B.C.

May 15, 2013 [ 1 ] The plaintiff seeks damages for personal injuries suffered by her in a motor vehicle accident that occurred on December 4, 2009, on a bright sunny day in Courtenay, British Columbia. [ 2 ] The only issue in this trial is liability. [ 3 ] Each party submits that the other party was entirely responsible for the accident. [ 4 ] The accident occurred at the intersection of Rye Road and Old Island Highway (the “Highway”).

A drawing of that intersection may be found in the expert’s report, which is Exhibit 2 in these proceedings. [ 5 ] Just before the collision, the defendant’s vehicle was facing south on the Highway waiting to turn left and proceed westbound on Rye Road. The defendant was planning to make a sharp left turn onto Rye Road and waited for a break in the northbound traffic before turning. He came to a complete stop, signaled his intention to turn and waited for about 15 seconds.

He looked down Rye Road and south down the Highway. [ 6 ] The defendant said that he had a clear line of sight looking south and a clear line of sight up Rye Road and there were a number of northbound cars on the Highway. When there was a break in the traffic he turned left and that is when the collision occurred. He said that he did not expect a car to be coming out of the parking lot from the 7-Eleven. He does not recall his vision being impaired in any way. He said that he did not take note of cars in the area around the 7-Eleven and his primary focus was on cars coming towards him on the Highway.

He did not see the plaintiff’s vehicle until the collision. The evidence suggests that he could have seen the plaintiff’s vehicle had he looked towards the 7-Eleven. This is somewhat confirmed by the photograph at page 1 of Tab 4 in Exhibit 1. [ 7 ] The plaintiff’s vehicle was facing northwest and proceeding from the laneway beside the 7-Eleven towards the Highway. She had pulled out of the parking lot on the northeast side of the 7-Eleven and proceeded along the side of the building, as shown in photo 1 of Tab 4 in Exhibit 1, to a point near Rye Road with the intention of merging northbound onto the Highway.

A blue dumpster and hedges to the south of her vehicle, depicted in that photo, obscured her vision to the south on the Highway so that she had to travel close to Rye Road in order to observe the northbound traffic on the Highway. [ 8 ] The plaintiff had just entered Rye Road and was looking to the south for northbound traffic while she was intending to merge onto the Highway. It is not clear, but the plaintiff said she believed that she stopped before proceeding to the Highway from Rye Road. At the time of the collision she had not yet looked forward nor had she looked north which was to her right.

Prior to the collision she had not seen the defendant’s car or how fast he was going, nor did she see how long the defendant had waited before making a left turn. [ 9 ] The engineer’s drawing in Exhibit 2 is to scale and shows the location of the defendant’s vehicle as box number “2,” both as it was stopped before the defendant proceeded with a left turn, and then at the point his vehicle first made contact with the plaintiff’s vehicle. The plaintiff’s vehicle is shown as box number “1”.

[10] The location of the collision is also marked by the parties on the photograph at page 5 of Tab 4 in Exhibit 1. The defendantmarked the point of the collision to be slightly south of where it was marked by the plaintiff with a “W”. Both parties agree that theplaintiff’s vehicle was not on the travelled portion of the Old Island Highway when the collision occurred. I.

Submissions [11] The plaintiff submits that, while proceeding towards the Highway, she was driving lawfully and prudently on a laneway withthe intent of looking to the south before merging on to the Highway. [12] The plaintiff says that it does not matter that she did not see the defendant’s vehicle until the collision because she hadestablished her line of travel while travelling lawfully. Had she seen the defendant, she could assume that the defendant would let herproceed and not turn because the plaintiff was in the same position as a vehicle travelling northbound on the Highway.

She argues thatthe defendant’s vehicle was in the servient position. [13] The plaintiff relies on Brooks v. Ward, (SCC), [1956] S.C.R. 683 [Brooks], for the proposition that the failureby the defendant to take evasive action when he could and should have seen the plaintiff’s vehicle amounted to negligence and causedthe collision. [14] The plaintiff says that the defendant did not observe the plaintiff’s vehicle prior to the collision even though he had ample timeand an unobstructed view of the scene.

The defendant acknowledged that had he seen the plaintiff’s vehicle before he turned, he wouldnot have made the turn or he would have taken evasive action. [15] The plaintiff says that, if the Court finds that her failure to see the defendant amounts to some degree of negligence, theplaintiff’s negligence is far less than that of the defendant. [16] The defendant submits that he acted reasonably and carefully and did not anticipate that the plaintiff would disregard herstatutory duty of yielding the right of way.

The defendant points out that, according to the expert evidence, the plaintiff was travelling 23kilometres per hour, when she entered Rye Road, and two to four seconds before the collision. The expert also confirmed that she did notstop on entering Rye Road.

The expert said that it was most likely that the plaintiff’s vehicle was moving when the collision occurred.She did not look forward or to her right but only to the left as she was attempting to merge onto the Highway. [17] The defendant argues that s. 176(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [Act], provides that a vehicle entering ahighway from an alley, lane, driveway or private road must yield the right of way to traffic approaching on a highway so closely that itconstitutes an immediate hazard.

Although the definition of “highway” in the Act includes a lane or alley, they are included in s. 176(2)because they are a particular kind of highway. [18] The defendant says that the plaintiff was required to yield to vehicles on a highway such as the defendant’s vehicle. Thedefendant’s vehicle turning from onto a highway was the dominant vehicle and, based on Walker v.

Brownlee, (SCC),[1952] 2 D.L.R. 450 (S.C.C.) [Walker], he had the right to assume that the plaintiff would obey the highway laws before entering theHighway and yield to him. [19] The defendant submits that the plaintiff was the servient driver and the defendant’s vehicle turning onto Rye Road posed animmediate hazard. [20] The plaintiff’s vehicle was 12 metres back in the laneway and the defendant had the right to assume that she would stop andallow him to pass as the dominant driver. [21] The defendant argues that, at the time he began his turn, the plaintiff was well back in the lane near the 7-Eleven and thedefendant’s vehicle was there to be seen, but the plaintiff was looking left and not forward or to the right.

It was negligence on the part ofthe plaintiff not to see the defendant’s vehicle. The defendant had no opportunity to react after carefully assessing northbound traffic, andthe plaintiff disregarded her statutory obligation to yield the right of way. The defendant refers to Salaam v. Abramovic, 2010 BCCA 212[Salaam]. II.

Analysis [22] The onus in this case is on the plaintiff to prove on a balance of probabilities that the defendant’s negligence caused orcontributed to the collision. [23] The plaintiff must establish that the operation by the defendant of his automobile fell below the standard of care of a reasonablycareful driver. [24] In the case at bar neither driver observed the other driver’s vehicle until the collision occurred.

This necessitates a considerationof whether either driver had a statutory right-of-way before entering the intersection of the Highway and Rye Road. [25] Section 176(2) of the Act provides: s.176 (2) The driver of a vehicle about to enter or cross a highway from an alley, lane, driveway, building or private road must yield theright of way to traffic approaching on the highway so closely that it constitutes an immediate hazard. [26]

Section 2 of the Act defines “highway” to include:

s. 2(

b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles … [ 27 ] It is not disputed that the plaintiff was travelling on an alley or lane beside the 7-Eleven before she attempted to merge onto the Highway. In my view the plaintiff was required by s. 176(2) to yield the right of way to traffic approaching on the highway so closely that it constituted an immediate hazard.

While a lane is included in the definition of the term highway, by virtue of s. 176(2) , a vehicle about to enter another highway from a lane or alley must yield the right of way to traffic approaching on the highway that constitutes an immediate hazard. [ 28 ] This

interpretation of s. 176(2) accords with common sense, which suggests that someone entering onto a busy highway from a lane or alley should be required to yield to traffic on the highway. [ 29 ] In Walker , the Supreme Court of Canada said at para. 50: While the decision of every motor vehicle collision case must depend on its particular facts, I am of (sic) opinion that when A, the driver in the servent (sic) 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. [ 30 ] In my view, even if I assume that the defendant, by the exercise of reasonable care, should have become aware of the plaintiff’s disregard of the law, based on the speed of the plaintiff’s vehicle determined by the expert, the defendant did not have a sufficient opportunity to avoid the collision. [ 31 ] Our Court of Appeal in Salaam states at para. 25 : A driver like the defendant, who is in a dominant position, will not typically be found to be liable for an accident.

Drivers are generally entitled to assume that others will obey the rules of the road. Further, though defensive driving and courteous operation of motor vehicles are to be encouraged, they do not necessarily represent the standard of care for the purposes of a negligence action.

A driver will not be held to have breached the standard of care simply because he or she failed to take extraordinary steps to avoid an accident or to show exceptional proficiency in the operation of a motor vehicle. [ 32 ] The facts in Brooks are distinguishable because the evidence in that case established that the respondent driver had plenty of opportunity to avoid the collision. In the case at bar, the plaintiff was travelling at 23 kilometres per hour, three seconds before the collision.

In my view, the defendant did not breach the standard of care because he did not take extraordinary steps to avoid the accident. I think that the defendant’s counsel properly characterized the plaintiff’s vehicle as “shooting out” to the point of contact with the defendant’s vehicle. [ 33 ] This Court considered similar facts in Aymont v. Capp , 2010 BCSC 1011 [ Aymont ]. In Aymont , the accident occurred on a highway at the driveway to a Petro-Canada service station.

The plaintiff was in the process of exiting the service station when her vehicle collided with the defendant’s vehicle which was travelling on the highway. Madam Justice Gropper considered s. 176(2) of the Act and held that the plaintiff was the servient driver. She found that the plaintiff did not yield to the defendant’s vehicle which was approaching on the highway and that the defendant was entitled to assume that the plaintiff would obey the rules of the road.

Also, by the time that the defendant observed the plaintiff’s vehicle there was not enough time for him to avoid the collision. [ 34 ] In my view the same may be said of the plaintiff’s operation of her vehicle. She was not looking forward or to the right on her path of travel and had accelerated to 23 kilometres per hour, just three or four seconds before the point of impact, which was the first time she observed the defendant’s car. Clearly the plaintiff did not yield the right of way to the defendant as she was required to do under s. 176(2) of the Act .

At the same time, even if the defendant, by exercising reasonable care, should have seen the plaintiff, in my view he did not have sufficient opportunity to avoid the collision.

If there is any doubt about that conclusion, as stated in Walker , it should be resolved in the defendant’s favour. [ 35 ] The plaintiff has not established that by the exercise of reasonable care the defendant should have become aware of the plaintiff’s disregard of the law namely, the requirement that she yield the right of way to the defendant’s vehicle, or that the defendant had a sufficient opportunity to avoid the collision. [ 36 ] In the end result and considering the circumstances of this case I find that the plaintiff is 100% at fault for the collision. “Bowden J.”