Majewski v. Kuang Date:, 2011 BCPC 39

Citation: Majewski v. Kuang Date: 20110218 2011 BCPC 0039 File No: 1029853 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MIROSLAWA MAJEWSKA CLAIMANT AND: CHEN YA KUANG DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP KAREN NORDLINGER Appearing on their own behalf: M. Majewska Counsel for the Defendant: M. Thiessen Place of Hearing: Vancouver, B.C. Date of Hearing: December 8, 2010 Date of Judgment: February 18, 2011 [ 1 ] The Claimant in this matter was travelling south on MacDonald Street in her vehicle on September 30, 2009.

She had a passenger in the car who was a friend from out of town and who did not give evidence at the trial. [ 2 ] The Defendant, in her vehicle, was attempting to cross MacDonald Street at Alamein travelling west. The Defendant had a stop sign. The Claimant had a flashing green light, which was pedestrian controlled. The Defendant’s vision was obstructed by parked vehicles on MacDonald Street. I accept the evidence of the Defendant and the witness, Ruth Tremblay, that the Defendant came to a full stop at the stop sign and then inched her car forward into MacDonald Street in a slow and careful manner.

The Claimant says that she saw the Defendant’s vehicle stopped in the middle of the northbound lane, that is not the lane in which the Claimant was travelling. The Claimant estimated she was travelling at approximately 60 kilometers per hour (in a 50 kilometer per hour zone) and did not slow down, as she thought the Claimant was stopped. However, she then saw the Claimant starting to move, and she took evasive action, fearing that there would be a collision.

As the result of her evasive action, she ended up on the curb on Alamein Avenue and did damage to her car for which she now seeks compensation. [ 3 ] The Defendant’s evidence was that she was stopped in the intersection on MacDonald when she suddenly saw the Claimant’s car swerve into the curb. However, she also says that when she stopped, the Claimant had already swerved into the curb. The Defendant says that she never blocked the lane of travel of the Claimant and there would have been no collision in any event.

[ 4 ] Ruth Tremblay, a retired CRA enforcement officer, was working at a business situated at the corner of MacDonald and Alamein at the time of the accident. She had a clear view of the intersection and had been watching the Defendant’s car, as it had driven into the business’s parking lot for a few minutes. When it pulled out, she observed the Defendant to stop her vehicle at the stop sign and then to inch forward into MacDonald Street. She testified that the Defendant was not moving at all and was stopped in the northbound lane of MacDonald. Ms.

Tremblay saw the Claimant’s car a second or so before the accident. She testified that the Claimant was driving fast, made an evasive move and swerved onto the curb on Alamein Avenue. [ 5 ] I accept the evidence of the independent witness, Ms. Tremblay, that the Claimant was travelling quickly and that the Defendant had come to a stop in the northbound lane of MacDonald Street and not in the lane of travel of the Claimant’s vehicle. However, it may be that the Defendant had not quite stopped when the Claimant first saw her.

I am satisfied, however, that there would have been no collision had the Claimant simply continued to travel south on MacDonald Street. For some reason, and perhaps because she saw the Defendant’s car moving, the Claimant was startled and took the evasive action described. [ 6 ] Under these circumstances, I cannot find that the Defendant was negligent. She complied with her obligations pursuant to

section 186 of the Motor Vehicle Act to stop at a stop sign, and with

section 175 of the Act in that she yielded the right-of-way to the Claimant’s vehicle. She did not impede the Claimant’s travel by entering her lane. [ 7 ] As a result, the Claimant’s claim is dismissed, and the Defendant shall recover costs against the Claimant for the filing fee for Reply, $50, witness fee for Ruth Tremblay of $20, service fee for Ruth Tremblay, $61.68, and service fee for the Claimant, $78.05, for a total of $209.73. ____________________________ Karen F. Nordlingler, Q.C. Adjudicator