Beier v. Nosek Date:, 2012 BCPC 434

Citation: Beier v. Nosek Date: 20121130 2012 BCPC 0434 File No: 1240724 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GARRETT BEIER CLAIMANT AND: ALLISON NOSEK DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L. A. KAHN Appearing in person: Garrett Beier

Counsel for the Defendant: Kevin Yee Place of Hearing: Vancouver , B.C. Date of Hearing: November 7, 2012 Date of Judgment: November 30, 2012 [ 1 ] This matter came before me on November 7, 2012 pursuant to the Simplified Trial Rules under the Small Claims Act . [ 2 ] During his testimony, the Claimant, Garrett Beier (“Mr. Beier”) confirmed that the facts set out in his Trial Statement were true and accurate to the best of his knowledge.

Likewise, Kevin Yee, counsel for the Defendant, confirmed that the Defendant’s Trial Statement was true and accurate. [ 3 ] The Claimant disagrees with the apportionment of liability determined by I.C.B.C. An adjuster decided that the Claimant was 75% liable, but after a claims assessment review, an external arbiter, Don Unrau, on June 11, 2012, found that the parties were liable 50/50. [ 4 ] Mr. Beier and counsel for Ms. Nosek agreed that this hearing is a trial de novo. I am to weigh the evidence and reach my own conclusion. It is not an appeal of the external arbiter’s decision. [ 5 ] In his discussion, Mr.

Unrau said, as follows: However, what is noticeably missing in Mr. Beier’s statement evidence and in his self-reflection as to the actions he took, is any indication that he mirror or shoulder checked before making his left turn. He admits to an awareness, generally, of traffic behind him. He even admits that he may have moved slightly to the right i.e. “opening up” the left portion of his lane, yet he did not exercise the additional, reasonable caution required to mirror and shoulder check to ensure that vehicles behind him did not present a hazard as he was executing his left turn. Clearly, Ms.

Nosek was travelling fairly closely behind him and was very much “there to be seen” prior to and as Mr. Beier was executing his left turn (as is evidenced by the fact that there was a “front to front” impact here i.e. Mr. Beier had “just” commenced his left turn when the impact occurred). Had he mirror or shoulder checked he could have had the opportunity to at least briefly “hold back” and avoid a collision. Had Mr. Beier in fact been in the process of attempting a U-turn here (as is the belief not only of Ms. Nosek but the independent witness behind her), he would have been in violation of

Section 168(

a) and (b)(

v) of the Motor Vehicle Act for making his move while interfering with other traffic and while being specifically prohibited by

Section 168 for making a U-turn in a business district. At the same time, there are several strikes against Ms. Nosek here. She sees Mr. Beier’s signal light, she notes that he is travelling slow and slows down even further after activating his left turn signal light. She can see that there is a break in the centre median and that there is a driveway on the left side of the roadway. Nonetheless, with all this knowledge in mind she continues to proceed forward in her lane after Mr. Beier moved slightly to his right. It is my opinion that both drivers were negligent here – it is just a matter of the degree of same.

Had there been no evidence with respect to a “U-turn”, Mr. Beier’s vehicle would have maintained the “dominant” position throughout and I would place most of the blame for the accident on Ms. Nosek’s shoulders, with probable 25% contributory negligence against Mr. Beier for failing to mirror and/or shoulder check after he signalled to the left and moved to his right and prior to commencing his left turn/U-turn. In this case, however, independent witness evidence was adduced that speaks strongly of a potential U-turn on the part of Mr. Beier.

Accordingly, the argument emerges that he thus “gave up” his dominant position on the roadway – at least briefly – while moving to his right. This tends to put both driver into more of an equal status” scenario, in my respectful opinion. In conclusion, again, I find that there is evidence of negligence on the part of both drivers and for my stated reasons I do not believe that there is definitive evidence that one driver’s negligence was greater than the others, under all these circumstances.

I thus conclude by deciding this case on an equal division of liability. [ 6 ] The basic facts are not in dispute. [ 7 ] On March 31, 2012, at approximately 4 pm, the Claimant was driving north on Production Way in Burnaby, B.C. This commercial or industrial area is known as the Lake City Business Centre. [ 8 ] As is depicted in the photograph at tab 7, no. 5 of the Defendant’s Trial Statement, the accident took place in a wide open area. There is one northbound and one southbound lane that are separated by a low concrete divider.

Both parties explained that the lanes are wide enough to accommodate a driving lane and a parking lane in each direction, although these lanes are not separated by lane markers. This description is readily apparent from photograph no. 5 noted above. [ 9 ] The Claimant was intending to park his truck to take the Skytrain to Vancouver.

As explained in his Trial Statement, because he could not find parking on the north bound lane, he decided to park in the south bound lane, but needed to turn around to do so. [ 10 ] The Claimant testified that he was turning left at the driveway leading into a warehouse and, once in the driveway, he was going to return to the street and turn right so that he would be heading south on Production Way. [ 11 ] At the time of the accident, it was raining. The Claimant was travelling about 20 to 30 km per hour. The Claimant slowed down as he began to make his turn.

Prior to turning left, the Claimant activated his left-hand turning signal.

[ 12 ] The Defendant was about 3 to 4 car lengths behind the Claimant. [ 13 ] The controversy in the evidence relates to the driving action taken by the Claimant. He says that he moved slightly to the right in order to turn left into the driveway. The Defendant says that the Claimant moved almost to the curb, and rather than turning into the driveway, he did so to make a u-turn. [ 14 ] The only independent witness was Tim Hsiao. Not only did he testify, he also provided a witness statement for I.C.B.C. In his witness statement (Tab 6 of the Defendant’s Trial Statement), Mr.

Hsiao indicated that the Claimant “….moved to the right and then tried making a U-turn and turned to the left”. [ 15 ] Mr. Hsiao said that the green van, that is the car driven by Ms. Nosek, tried passing the truck (referring to the Claimant’s vehicle). Also, he testified that the Defendant accepted fault at the scene. [ 16 ] In his witness statement, Mr. Hsiao said: “I thought the truck was going to wait for traffic to pass, but he pulled out as the van was passing him.” [ 17 ] Mr. Beier admitted that he was aware of the driver behind him.

However, he insisted that he was making a left-hand turn and not a U-turn. [ 18 ] The Claimant did not provide a logical explanation why he needed to move to the right to execute a left-hand turn. Photograph no. 5 above shows that Production Way is very wide. There was no impediment to his turning left into the driveway, as he explained he was doing, had he stayed to the left of the double-wide lane travelling north. [ 19 ] Upon my review of the evidence, I conclude that Mr. Beier was making a U-turn, and was not making a left-hand turn. Where Mr. Beier and his witnesses’ evidence differs with that of Ms.

Nosek and Mr. Hsiao, I prefer the evidence of Ms. Nosek and Ms. Hsiao as it relates to whether or not Mr. Beier was making a left-hand turn or a U-turn. [ 20 ] Having concluded that Mr. Beier was making a U-turn, I must assess liability as between the parties. [ 21 ]

Section 168 of the Motor Vehicle Act (the “Act”) provides, as follows: Reverse turn 168 Except as provided by the bylaws of a municipality or the laws of a treaty first nation, a driver must not turn a vehicle so as to proceed in the opposite direction (

a) unless the driver can do so without interfering with other traffic, or, (

b) when he or she is driving (

i) on a curve, (ii) on an approach to or near the crest of a grade where the vehicle cannot be seen by the driver of another vehicle approaching from either direction within 150 m, (iii) at a place where a sign prohibits making a U-turn, (iv) at an intersection where a traffic control signal has been erected, or (

v) in a business district, except at an intersection where no traffic control signal has been erected. [ 22 ] Section 119 (1) defines “business district” as: “business district” means the territory contiguous to a portion of a highway having a length of 200 m along which there are buildings used for business, industrial or public purposes occupying (

a) at least 100 m of frontage on one side of that portion, or (

b) at least 100 m collectively on both sides of that portion, and includes that portion of the highway; [ 23 ] Mr. Yee argued that the Claimant was prohibited from making a U-turn in the business district. I do not read

Section 168 in that manner. From the evidence, and particularly photograph no. 5, the Claimant was at an intersection in a business district where no traffic control signal had been erected. Therefore, there was no prohibition on the Claimant from making a U-turn, if he could satisfy the requirements of

section 168(a), that is, “unless the driver can do so without interfering with other traffic”. [ 24 ] The responsibilities for Ms. Nosek are covered by the following sections from the Act: Passing on left 159 A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety. Following too closely 162(1) A driver of a vehicle must not cause or permit the vehicle to follow another vehicle more closely than is reasonable and prudent,

having due regard for the speed of the vehicles and the amount and nature of traffic on and the condition of the highway. [ 25 ] I conclude that Ms. Nosek was not travelling too close to the Claimant’s vehicle. Both cars were travelling slowly. The issue to be determined is whether or not Ms. Nosek should have continued, referring to

Section 159 of the Act “in overtaking and passing” the Claimant’s vehicle, knowing that he had slowed down and that he had activated his left-hand signal. [ 26 ] I am of the opinion that Ms. Nosek breached

Section 159 of the Act. She was aware of the left-hand turn signal. She should not have attempted to overtake the Claimant’s vehicle, as he was slowing down, knowing that his left-hand signal had been activated. [ 27 ] The question is whether or not liability should rest solely on Ms. Nosek, as the Claimant insists, or if it should be apportioned in some other fashion. [ 28 ] In reaching my determination of liability, I noted the following: (

a) I place no weight upon the admission of liability made by the Defendant at the accident scene. Not much was made of the acceptance of fault during evidence before me. I attribute this admission as a reaction at the time of the accident, without having being able to consider all of the factors that may be considered to determine liability. (

b) Based on the Defendant’s evidence and that of the independent witness, I cannot conclude that Ms. Nosek thought that the Defendant was going to park. (

c) Mr. Hsiao said that the Claimant was attempting to make a U-turn. Mr. Hsiao did not observe the Claimant’s vehicle parking. In those circumstances, there would have been a much different description as to the manner in which Ms. Nosek was driving. [ 29 ] The Claimant did not make a U-turn at the time when he could do so without interfering with other traffic (Section 168 of the Act). [ 30 ] Counsel for the Defendant provided me with the decision of Madam Justice Baker in Hough v. Wyatt 2010 BCSC 1375 .

Although the case at bar bears some similarity to the Hough case as the same sections of the Act, were in issue, there was significant difference in the speed the cars were travelling. The facts in the Hough case are different than those in the case at bar. I distinguished Hough on that basis. [ 31 ] Having considered all of the evidence and reviewing Mr. Unrau’s independent adjudication, I reached the same conclusion as Mr. Unrau. I apportion the liability for the accident equally between the parties. [ 32 ] As a result, the claim is dismissed. ________________________ Lawrence A. Kahn Adjudicator