Anand v. Bunton Date:, 2014 BCPC 417

Citation: Anand v. Bunton Date: 20140305 2014 BCPC 417 File No: 13-44607 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: KAPIL ANAND CLAIMANT AND: DAVID A. BUNTON AND EDITH A. BUNTON DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing on their own behalf: K. Anand Counsel for the Defendant: S. Khan Place of Hearing: Vancouver , B.C. Date of Hearing: February 5, 2014

Date of Judgment: March 5, 2014 [ 1 ] This case concerns a motor vehicle accident that occurred on Monday, July 11, 2011 at the intersection of King Edward and Granville Street, Vancouver, BC at approximately 5:30 p.m. [ 2 ] On January 27, 2014, His Honour Judge St. Pierre ordered that the Defendant, David A. Bunton (“Mr. Bunton”), appear by telephone. Apparently, he is working in China for 1½ years. He was contacted using the Claimant’s telephone, as the Court telephone was not programmed to permit long distance telephone calls. I confirmed with Shazia Khan (“Ms.

Khan”), counsel for the Defendants, that I.C.B.C. would reimburse the Claimant, Kapil Anand (“Mr. Anand”), for the cost of the telephone call, in any event. I trust those arrangements can be made without my further involvement. [ 3 ] Mr. Bunton was affirmed. Although there were some instances when I was concerned whether he could hear all of the proceedings, the telephone connection was satisfactory, although I excused him for the submissions with the agreement of his counsel and the Claimant. [ 4 ] The Claimant was travelling eastbound on King Edward in the curb lane. He was stopped at a red light. Mr.

Bunton was travelling southbound on Granville in the left-hand lane. He entered into the intersection on a green light, but was stopped because the car immediately in front of him was turning left to travel east on King Edward. [ 5 ] King Edward has a boulevard that separates the east and west lanes. [ 6 ] When the light turned red, Mr. Bunton, after the vehicle in front of him had cleared the intersection, continued south on Granville.

The vehicles collided at a fairly slow rate of speed near the east/west crosswalk at the south of the intersection. [ 7 ] Neither the parties saw each other prior to the collision. Mr. Bunton says that he proceeded cautiously through the intersection looking to his right to make certain that it was safe to continue. Mr. Bunton says he used his horn to alert the eastbound cars. [ 8 ] Mr. Anand said that his view was blocked by a larger vehicle travelling in the lane immediately to his left, and that he did not see Mr. Bunton’s car until the collision.

He testified that he entered the intersection slowly, proceeded cautiously, and that he did not hear Mr. Bunton’s horn. [ 9 ] Rio Deleen witnessed the accident and provided a statement to I.C.B.C. She was travelling north on Granville about two or three cars back from the intersection. She realized that Mr. Bunton’s car was “stuck” in the middle of the intersection when the light turned red. She confirmed that Mr. Bunton was travelling slowly, although she did not hear Mr.

Bunton’s horn. [ 10 ] Each party says the other was responsible for the accident, and that each should have taken a more defensive action to avoid the accident. [ 11 ] Counsel for the Defendants says that Mr. Anand had a duty when he entered the intersection to ensure that it was clear, particularly as his vision to his left was blocked by a larger car. [ 12 ] Mr. Anand says that Mr. Bunton had a duty before proceeding to clear the intersection to ensure that none of the eastbound cars were entering the intersection on a green light and, therefore, it was up to Mr.

Bunton to make certain that there was going to be no collision. [ 13 ] Ms. Khan referred me to section 127(1)(iii) of the Motor Vehicle Act [RSBC 1996]

Chapter 318, as follows: 127(1) When a green light alone is exhibited at an intersection by a traffic control signal, (

a) the driver of a vehicle facing the green light … (iii) must yield the right of way to vehicles lawfully in the intersection at the time the green light became exhibited, and [ 14 ] Ms. Khan also referred me to the decision of Madam Justice Fisher in Bains v. Shafron 2009 BCSC 543 . I refer to the headnote in that decision, as follows: HELD: …Because she was already in the intersection, Shafron was the dominant driver and had a statutory right of way. Shafron lawfully entered the intersection. She was travelling very slowly at the time of impact, having just started to move from a full stop.

She was only halfway through the intersection when her light turned red. Bain was likely travelling at 50 kph when he struck Shafron’s vehicle. Given this speed, it was not reasonable for Bain to have relied on the other vehicles next to him proceeding through the intersection in assuming it was safe to proceed through the intersection. Neither Bain nor Shafron had an obstructed view of the other. Bain should have seen Shafron’s vehicle. Shafron should have been watching for a vehicle coming from her left as she moved through the intersection on a red light.

However, given Bain’s speed, there was nothing Shafron could have done to avoid the collision. [ 15 ] Also, paragraphs 11 to 13 of Madam Justice Fisher’s decision say, as follows: [11] As I explained below, I have found that Ms. Shafron lawfully entered the intersection of Oak and Broadway. Accordingly, she had a statutory right of way under s. 127(1)(1)(iii) of the Motor Vehicle Act and Mr. Bain was obligated to yield to her right of way when he entered the intersection: 127

(1) When a green light alone is exhibited at an intersection by a traffic control signal,

(

a) the driver of a vehicle facing the green light (iii) must yield the right of way to vehicles lawfully in the intersection at the time the green light became exhibited… [12] Ms. Shafron as the driver of the vehicle with the right of way was the dominant driver and Mr. Bain was the servient driver. Adominant driver does not lose that position by unreasonable actions but the existence of a right of way does not entitle the dominantdriver to disregard an apparent danger: Atchison v. Kummetz, (1995), (BC CA), 59 B.C.A.C. 81 at para. 19, AbbottEstate v. Toronto Transportation Commission, (SCC), [1935] S.C.R. 671.

There is a duty of care to avoid a collisionwhen the dominant driver sees or ought to see that the other driver is not yielding the right of way: Bedwell v. McGill, 2008 BCCA 6. Inorder for the plaintiff in this case to prove that the defendant was negligent, Mr. Bain must establish that Ms. Shafron should havebecome aware that he was not yielding and that she had a sufficient opportunity to avoid the collision. Any doubts should not beresolved in favour of the plaintiff: Walker v. Brownlee, (SCC), [1952] 2 D.L.R. 450 (S.C.C.) at para. 50, Brewster(Guardian ad litem of) v.

Swain, 2007 BCCA 347, Kerr (Litigation Guardian of) v. Creighton, 2008 BCCA 75. [13] The standard of care of a driver is not one of perfection, but whether the driver acted in a manner which an ordinarily prudentperson would act: see Hadden v. Lynch, 2008 BCSC 295 at para. 69 and the cases cited therein. (my emphasis) [16] Mr. Anand referred me to the following cases: Walker v. Brownlee (SCC), [1952] 2 D.L.R. 450 Atchison v. Kummetz [1995] B.C.J. No. 1128 Salaam v. Abramovic, 2010 BCCA 212 Woodward v. Harris (SCC), [1952] 1 D.L.R. 82 Schlappner v. Serfas & Peknik 2009 BCPC 239 , 2009 BCPC 0239 Twining v.

Huang, (BCSC) Beecroft v. Ravenek [1997] B.C.J. No. 2899 [17] In Walker v. Brownlee, Chief Justices Locke and Cartwright of the Supreme Court of Canada stated, as follows: 45 The more difficult question is whether Harmon should be found to be to blame in part. The difficulty arises not so much instating the applicable principles as in applying them to the particular facts. (my emphasis) 46 The duty of a driver having the statutory right-of-way has been discussed in many cases.

In my opinion it is stated briefly andaccurately in the following passage in the judgement of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris,[1951] O.W.N. 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even althoughhe has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.

To put it another way: heought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonablyshould have foreseen and avoided.” … 48 In applying this principle it is necessary to bear in mind the statement of Lord Atkinson in Toronto R.W. Co. v.

King, 7 C.R.C.408 at p. 417, [1908] A.C. 260 at p. 269: “Traffic in the street would be impossible if the driver of each vehicle did not proceed more ofless upon the assumption that the drivers of all the other vehicles will do what is their duty to do, namely, observe the rules regulating thetraffic of the streets.” 49 While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that when A, thedriver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and acollision results, if he seeks to case any portion of the blame upon B, the driver having the right-of​-way, A must establish that after Bbecame aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficientopportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think thatin such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali. [18] In Atchison v.

Kummetz, Madam Justice Rowles of the B.C. Court of Appeal stated, as follows: 24 The duty on a driver having a statutory right of way was referred to by Cartwright J. in Brownlee v. Walker, (SCC), [1952] 2 D.L.R. 450 at p. 460: The duty of a driver having the statutory right-of-way has been discussed in many cases. In my opinion, it is stated briefly andaccurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodword [sic] v.

Harris,[1951] O.W.N. 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even althoughhe has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it. To put it another way: heought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonablyshould have foreseen and avoided.” 25 In the present case, the defendant had lawfully entered the intersection and, as a result, had the statutory right of way.

Thestatutory right of way did not absolve him of the common law duty of care to avoid a collision which he reasonably should have foreseenand avoided. Instead of proceeding with the degree of caution required when traffic coming from his right was almost a certainty, thedefendant went forward, heedless of the likelihood of collision.

[ 19 ] In Salaam v. Abramovic, Mr. Justice Groberman said the following: [21] In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties.

This 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. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of case was met, they are not the exclusive measures of that standard. … [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. (my emphasis) … [33] The words “immediate hazard” appear in both ss. 174 and 175 of the Motor Vehicle Act and 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. [34] In applying the “immediate hazard” test in order to determine negligence, the trial judge erred in law. Applying the correct legal test to the defendant’s conduct (i.e., the test enunciated in Walker v. Brownlee ), the defendant had a duty to take care when he approached the plaintiff’s car in the intersection, having had ample warning that she was not following the rules of the road.

A reasonable driver would not have insisted on a right of way, and certainly would not have driven aggressively through the intersection, aiming to pass within inches of the plaintiff’s moving vehicle. [ 20 ] Mr. Bunton was driving the dominant car, and Mr. Anand was driving the servient car. Therefore, Mr. Anand had to take on a greater responsibility to avoid a potential collision. [ 21 ] That intersection is wide, that is, the distance from the entrance travelling north to south is considerably wider because of the boulevard that separates the east and westbound lanes. [ 22 ] Mr.

Anand testified that he was unable to see to his left because of a larger car. Therefore, he knew or ought to have known that entering the intersection, regardless of the cautious driving that he says he utilized, may not be safe. He had, in my opinion, sufficient time to realize that the car on his left hand side had not entered the intersection. Therefore, his decision to do so was negligent. There was time for Mr.

Anand to determine if there were cars in the intersection travelling south, which he could not observe, because of the larger car to his left. [ 23 ] Accordingly, I find that the Claimant was responsible for the accident. [ 24 ] I dismiss the case, but without cost to either party, save for the responsibility of I.C.B.C. to reimburse the Claimant for the cost of the long distance telephone call to permit Mr. Bunton to testify. __________________________ Lawrence A. Kahn