Robertson v. Rim Date:, 2016 BCPC 179

Citation: Robertson v. Rim Date: 20160609 2016 BCPC 0179 File No: 1346108 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: COURTENAY ROBERTSON CLAIMANT AND: YONGNAM RIM DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Claimant: Jackson Doyle Counsel for the Defendant: Diana Klassen Place of Hearing: Vancouver , B.C. Date of Hearing: March 18, 2016 Date of Judgment: June 9, 2016

INTRODUCTION [ 1 ] This matter arises from a collision that occurred on Sunday, March 24, 2013, at approximately 1:45 p.m. at the intersection of Griffiths Avenue (“Griffiths”) and Kingsway in Burnaby, British Columbia. At that intersection Kingsway has six lanes, three going east and three going west. [ 2 ] There is no dispute that the claimant was driving westbound on Kingsway at that time. The claimant wanted to make a left turn southbound onto Griffiths. At that intersection there is neither a dedicated left turn lane nor an advance left turn signal. The claimant entered the intersection and made a left turn.

The claimant maintains she entered the intersection on the green light, waited and after the traffic light changed to yellow executed a left turn. The claimant says she was three quarters of the way through the intersection, turning left, when she was struck by the defendant’s vehicle. She says her vehicle was struck on the rear quarter panel on the passenger side. [ 3 ] The defendant was driving eastbound on Kingsway and proceeding straight through the Griffiths intersection.

She maintains the traffic light was green at the time she entered the intersection and turned yellow just after she entered the intersection. She acknowledges there was a collision. However, she maintains it was not her fault but says suddenly the claimant came out of nowhere and collided with her vehicle. [ 4 ] The only issue in this case is liability. In order to determine which of the two drivers is liable, or whether they are both liable, I need to consider the duties of motorists when approaching a yellow traffic light as well as the duties of motorists in relation to a left turns.

The claimant maintains she complied with all the Motor Vehicle Act requirements in executing her left turn and therefore the responsibility for the collision is entirely that of the defendant. The defendant on the other hand maintains she entered the intersection just at the point when the traffic signal turned yellow. She maintains she acted safely and prudently and liability for this accident should not fall on her but on the claimant.

SUMMARY OF THE EVIDENCE The claimant’s evidence [ 5 ] That Sunday afternoon the claimant was driving a 2005 Saturn Ion, a four-door sedan, westbound on Kingsway. The traffic was moving at a regular pace even though it was Sunday. The weather was dry and clear. The claimant was driving at 50 km/h in the left hand lane. There were no pedestrians at the intersection. As she approached the intersection of Griffiths and Kingsway the traffic light was green. She turned on her left turn indicator as she drove up to the green traffic light. She was at the green traffic light for about five or six seconds.

In cross-examination the claimant confirmed she arrived at the intersection on a green traffic light and waited for some time before proceeding into the intersection. She scanned the intersection for pedestrians and oncoming traffic. She looked down Kingsway and also looked down Griffiths. She slowly entered the intersection and came to a full stop. The claimant was already in the intersection on a green traffic light when the traffic light turned yellow. [ 6 ] After the traffic light on Kingsway turned yellow, the claimant waited for a few seconds .

In cross-examination, the claimant acknowledged her time estimates were just a general estimate. She acknowledged it was possible she was waiting on the yellow traffic light more or less than three seconds. It was possible she turned left on the yellow traffic light before three seconds elapsed. She noted there was an eastbound vehicle across the intersection from her in the leftmost lane which had come to a complete stop for the yellow traffic light. She said that vehicle had not made a sudden stop. She started to complete the left turn.

She did not see any other vehicles coming toward her. [ 7 ] In cross-examination, it was suggested to the claimant that she had turned quite quickly to get through the yellow traffic light. She said that was not the case. She remembered that she travelled at a safe, normal, and slow speed. She did not think she went through the yellow traffic light quickly. She travelled at a regular, slow speed. It was suggested to her that she turned hastily because she could not see oncoming traffic.

The claimant said she did not believe she turned hastily. [ 8 ] In cross-examination, the claimant was asked about oncoming traffic. She acknowledged that the vehicle in the leftmost lane facing her was a van which had stopped before the crosswalk on Kingsway. That van obstructed her view of other oncoming vehicles. She acknowledged she was not able to verify whether the other lanes were clear because the van was in the way. She waited three seconds before she started her turn because she could not fully see the other lanes of oncoming traffic.

It was put to her that she waited and then proceeded without verifying if there were other vehicles. The claimant responded – “Yes, I guess”. She said, because of the position of the van, it would have been very difficult for her to verify whether there were vehicles in the other lanes. [ 9 ] The claimant was starting to enter Griffiths when her vehicle was hit on the rear quarter panel. The bumper of her vehicle was almost completely torn off. Her vehicle started to spin slightly as she entered Griffiths.

She gained control of the vehicle and pulled over on Griffiths. [ 10 ] The complainant provided further details of how she executed the left turn. She said she had almost crossed all three lanes of Kingsway and the front of her vehicle had entered Griffiths when the rear of her vehicle was hit. Because she had come to a full stop prior to executing the left turn, she thought she was not travelling more than 10 km/h. Her recollection was she was facing down Griffiths when her vehicle was struck by the other vehicle. The claimant did not hear anything before she was hit.

She did not know which lane the other vehicle was travelling in. She said the impact of the collision was strong and her vehicle started to spin into the oncoming lane of traffic on Griffiths. [ 11 ] The claimant did not have a conversation with the defendant because the defendant did not speak English. Eventually, the claimant’s boyfriend arrived and he tried to take a picture of the other vehicle. However, the defendant got into the vehicle and drove away before he could take the picture. The claimant said the only one thing the defendant said to her was something to the effect: “You

hurt me”. The defendant said this to the claimant before she got into her vehicle and drove away. The defendant’s evidence [ 12 ] The defendant lives close to the intersection where the collision occurred. She knows the area well. At the time of the collision the defendant was on her way to church. She was travelling eastbound on Kingsway. She was driving straight through and the traffic light at the intersection of Kingsway and Griffiths had just turned yellow. She was entering the intersection when the traffic light turned yellow. All of a sudden the collision occurred. The other car came out of nowhere.

She volunteered there were three lanes on her side. However, there is a median that separates one lane (i.e., the curb lane) for right hand turns so a motorist cannot go through on that lane. [ 13 ] The defendant said the traffic light had just turned yellow from green. She thought it was safe to go through the yellow traffic light because there was nothing in her way. She said it was quite a shock for her. She said she was not able to stop. She did not see the other car before the collision happened.

The collision occurred right after she entered the intersection. [ 14 ] The defendant was driving at 45 to 50 km/h. Because she is an older woman when she drives she is very cautious and tries to abide by the law. She could not say how fast the other vehicle was travelling. She did not see the other vehicle. However, if she had seen the other vehicle she did not think she could avoid it. She was asked why she was not able to see the other vehicle. She said she simply could not see any vehicle. She was asked if she had seen a van.

She did not remember seeing a van. [ 15 ] The defendant noted that the claimant testified she had told her something to the effect - “You hurt me”. The defendant said she cannot speak English. She could not say those words in English. She did not say any such thing. [ 16 ] In cross-examination, the defendant said when she approached the intersection the traffic light was green and it was changing from green to yellow. She said a green traffic light means “go” and a yellow traffic light could mean “go” if one is going straight through. She believed she had the right-of-way.

The defendant agreed a vehicle can turn left on a yellow light. However, she noted, that manoeuver should only be done when it’s safe to do so. The defendant agreed that if a traffic light is about to change the driver should approach an intersection with caution. [ 17 ] In cross-examination, the defendant was asked how she determines if a traffic light is going to change. She said when the traffic light is about to change she would know because of the color of the light. For example, if a traffic light is yellow she knows it will be changing to red.

She was asked whether she thought a traffic light might possibly turn yellow if the green traffic light has been on for long period of time. She said “Yes”. [ 18 ] It was suggested to the defendant that she exceeded the speed limit. She adamantly denied that was the case. The defendant said she never goes over the speed limit. She is a very cautious driver and generally travels between 45 to 50 km/h. She acknowledged that at the time the collision happened she did not look at her speedometer. She acknowledged she did not know the exact speed she was travelling.

She also acknowledged there was a possibility she may have been going faster or slower than 45 to 50 km/h. However, when she is driving she always abides by the law and stays within the speed limit. The defendant was asked whether she was aware there was a vehicle in the leftmost lane. She said she was not aware of that. [ 19 ] The defendant was asked a number of questions about the number of eastbound lanes on Kingsway. It was her contention there were three westbound traffic lanes and two eastbound traffic lanes. On the eastbound side she noted there was a third lane which was not a through lane.

The third lane (closest to the curb) was dedicated to right-hand turns. She was asked a number of questions on this point but maintained that when travelling eastbound on Kingsway there are three lanes. However, she said she knew for sure that the right lane is not a through lane because it is dedicated for right turns only. She knows this area very well. A motorist can only turn right from the third eastbound lane (i.e., curb lane). A motorist cannot go straight. [ 20 ] In cross-examination, the defendant was asked whether she saw a stopped vehicle, namely, a van, at the intersection on Kingsway.

She said she did not see it. She could not say whether there was a van there or not. However, that did not concern her. At that intersection Kingsway is straight. There are no hills, no branches, and no other obstructions. [ 21 ] She was asked about the circumstances preceding the collision. She said the moment the traffic light turned from green to yellow was when she was entering the intersection. She was looking at the traffic light facing in her direction. It was suggested to the defendant that she was focused on the traffic light and not on the traffic.

She responded that when she was driving her view allowed her to see the traffic light and what was in front of her. [ 22 ] The defendant said her recollection of the collision is that it happened suddenly. The other car turned left into her vehicle. She was asked whether she agreed that her right front bumper hit the claimant’s right rear bumper.

She said that she came in contact with the other vehicle, for the other vehicle it was the rear; for her vehicle it was the front. [ 23 ] The defendant maintained she was going straight through when the light just turned yellow and the other car came out of nowhere and hit her car. She could not see the other car. It was put to her, given her evidence, that one would expect the damage to be to the front of the claimant’s car. She said – That I do not know. The defendant said the intersection was clear. She was driving straight through. She believed that traffic going straight through has the right-of-way.

She did not see the claimant’s car before the collision. She only realized that the claimant’s car was crossing her path after the collision. [ 24 ] The defendant was asked whether it was possible that the traffic light was red when the collision occurred. She said “No”; when the collision occurred the traffic light was yellow. It was put to the defendant that she did not see the light when the collision occurred with the claimant’s vehicle.

She said although she did not see the light at the precise moment of the collision, after she and the other driver had pulled over she then noted the traffic light had just turned red. The defendant was asked how she knew the light had just turned red if she had not seen the yellow light. She responded that after the collision she and the claimant pulled their cars over to the side of the road. At that point she took a look and the light was red.

She maintained that when the collision happened the light was yellow and after the collision, once the cars had pulled over, she turned around and saw that the light was red. At that point in her evidence she added that the traffic on Kingsway, both westbound and eastbound, was all stopped because the light was yellow, but the

traffic on Griffiths was just moving. [25] In cross-examination just before the lunch break the defendant was asked whether she had applied her brakes at the moment ofor just before the collision. She gave an answer that was not responsive to the question. She was asked by the court whether she appliedthe brakes at the moment of or just prior to the collision. She said “Yes”, she had to get the car out of the way. It was not clear if byusing the word “stopped” the defendant meant she applied the brakes. She was asked what she meant by that word.

She responded byasking - whether she had pressed onto the brake - and said “Yes” that it was correct. After the collision she did not get out of her car butstayed in it and pulled the car over. [26] After the lunch break she was asked again whether she applied or used the brakes just before the collision. She said “Yes” shedid. In re-direct she was asked whether the claimant was in the intersection. The defendant said that she only knew the claimant was inthe intersection when the collision occurred. She had no time to press the brakes before the collision. She pressed the brakes right afterthe collision.

In re-direct, her lawyer asked the defendant whether she had been referring to after the collision when the claimant’scounsel had asked her about using the brakes. The defendant said right at the moment of the collision she came to a stop. However, shehad to clear the way so she pulled over to the side. The defendant was again asked by her lawyer whether she had pressed the brakes. She responded by asking whether the brake was for going fast. Her lawyer responded “No” it was for stopping.

The defendant thenreplied that she put her foot on the brake after the collision but not before. [27] The defendant was asked whether the statement she provided to ICBC would be a better recollection of the event than theevidence she provided at the trial. She agreed it would be more accurate. In re-direct she was asked about the statement. She said shedoes not speak English and a member of her church helped her with the statement. Her friend was on the telephone with her to ICBC.

Her friend translated for her. [28] In re-direct she was asked whether there was anything in the statement provided to ICBC that she wanted to comment on. Inthis regard it should be noted that only an English version of her statement was given on the telephone. The Korean version was atranslation from the English statement. The defendant said when the accident happened she believed that the contents of the statementwould be more accurate. [29] In re-direct she was asked to comment on why it said two lanes in her statement but a photograph entered as an exhibit showedthree lanes.

The defendant said that technically there are three lanes eastbound on Kingsway. However, the lane closest to the curb isdedicated to right turns. Accordingly, in her mind she characterized it as two lanes. It was suggested to her in re-direct that it wasdifficult for her to remember how many lanes there were. She said she didn’t know that it was difficult for her to remember. The rightlane is just for right turns.

Additionally, at that juncture the defendant volunteered that if she had come to a complete stop because of thelight change there was greater risk that the car behind her could hit her car. [30] In re-direct it was put to the defendant that there were some things she was sure about and others not. She said she was sure ofsome things but not sure whether there were things she was not sure of. She was asked to explain what she was sure of. The defendantsaid she was sure she was going eastbound, that the traffic light just changed to yellow, and that she was going straight through.

She saidshe probably just proceeded going straight forward because she thought it was safe and if she had come to a sudden complete stop therewas a risk a car behind her could hit her car. CREDIBILITY ASSESSMENT [31] Some of the facts surrounding the collision between the defendant’s vehicle and the claimant’s vehicle on Sunday, March 24,2013, are uncontroversial. However, the evidence of the claimant and the defendant, the only two witnesses who gave evidence at trial,is at odds on a number of significant points regarding the collision. Accordingly, I must consider the accuracy and reliability of theirtestimony.

Much has been written on the issue of assessing credibility. [32] In Wu (Litigation Guardian) v. Zhang, [2011] B.C.J. No. 1687 (BCSC), Savage J. set out the following review of the legalprinciples respecting the assessment of credibility: 32 Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 is frequently cited on the subject of credibility assessment.Mr. Justice O'Halloran observed at 357 that: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. 33 McIntyre J., in R. v.

Béland, (SCC), [1987] 2 S.C.R. 398 at 418-419 said that: ... in the resolution of disputes in litigation, issues of credibility will be decided by human triers of fact, using their experience of humanaffairs and basing judgment upon their assessment of the witness and on consideration of how an individual's evidence fits into thegeneral picture revealed on a consideration of the whole of the case. 34 How then does a trier of fact assess what evidence is in "harmony with a preponderance of the probabilities"? As Ryan J.A.recently stated in her concurring reasons in R. v.

Sue, 2011 BCCA 91 at para. 47: Doubtless, a skilled liar or a good actor can easily feign sincerity. But it is also the case that most people of average intelligence cantailor a story to fit the circumstances if they put their minds to it. Thus, a trier of fact will test a story for both its logic and, with theappropriate cautions, the manner in which it was told. 35 In testing the witness' evidence, a court may consider the following factors, summarized by Thomson J. in Unique Tool & Gauge

Inc. v. Impact Tool & Mould Inc. , [2002] O.J. No. 681 (Ont. S.C.J.) at para. 121 : ... [The witness'] ability and opportunity to observe; his appearance and manner while testifying; his power of recollection; any interest, bias or prejudice he may have; any inconsistencies in his testimony and, the reasonableness of his testimony, when considered in the light of its harmony with the preponderance of the probabilities that the evidence was credible, believable and reliable. 36 In the present case, a relevant factor to consider in assessing credibility is the party's interests.

However, as Rowles J.A. said in R. v. R.W.B. , [1993] B.C.J. No. 758 (C.A.) at para. 28 : [28] ... Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of a witness, but it is not the only factor to be considered. ... [I]t is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented. ... [ 33 ] Applying the above noted principles to the case before me, I find the defendant was not an accurate and reliable witness.

I have not concluded that the defendant attempted to lie to or mislead the court. However, after considering all of the evidence, I conclude that the defendant’s recollection of events on the day of the collision is not trustworthy for a number of reasons including: • First, I have taken into account the passage of time. By the time the matter came to trial almost three years had passed from the date of the collision. The defendant’s recollection of events was not particularly clear.

It was difficult to say whether this was because she was not an observant witness at the time or whether her memory of the event had diminished because of the passage of time.

Whatever the reason, the defendant was not able to provide specific details about how the incident occurred and in some instances she was not able to provide details at all, for example, she could not recall what lane she was travelling in. • Second, the defendant’s testimony at trial was more fulsome than the statement provided to ICBC on April 3, 2013, which was limited to very basic observations. • Third, there were inconsistencies in the evidence before the court, for example, in the statement provided to ICBC the defendant said she entered the intersection and the other car turned left.

However, at trial she testified that the claimant’s car came out of nowhere. Another example of an inconsistency is that in cross-examination she said she applied the brakes before the collision whereas in re-direct she said she applied the brakes after the collision. • Fourth, the defendant had limited recall of the mechanism of the collision.

Her main recollection was that the collision occurred but she was unable to provide many additional details. • Fifth, she was not a careful witness. • Sixth, she was fairly categorical in some of her answers and did not appear to admit the possibility that she may have been mistaken. [ 34 ] I found the claimant to be a relatively reliable and accurate witness. There were some things she did not recall. However, in the main, she provided details about the collision and the circumstances leading to the collision. She had a good recollection of the incident and details about the sequence of events.

The statement provided to ICBC on March 29, 2013 was fairly detailed. In cross-examination she readily admitted points that could potentially be contrary to her interests. FINDINGS OF FACT [ 35 ] I have kept the observations of Mr. Justice Savage in mind in assessing the reliability and accuracy of the evidence of the claimant and the defendant in the course of arriving at my findings of fact. Uncontroversial facts i. The collision occurred on Sunday, March 24, 2013, at approximately 1:45 p.m. at the intersection of Griffiths Avenue and Kingsway in Burnaby, British Columbia. ii.

At the area of that intersection there a total of six lanes, three eastbound and three westbound. I find that eastbound curb lane goes straight through the intersection. However, there is a small median separating the right-hand portion of the curb lane, near the crosswalk, for the use of drivers turning right. iii. The claimant was driving westbound on Kingsway. She was driving in the lane immediately adjacent to the centreline because she wanted to make a left turn. iv. The defendant was driving eastbound on Kingsway and was proceeding straight through the Kingsway and Griffiths intersection.

She was not certain about what lane she was travelling in but submits it was the centre lane of the three eastbound lanes.

v. The weather was dry and clear. vi. The traffic was not particularly busy but there was some traffic on the road even though it was a Sunday. vii. That intersection does not have a dedicated left turn lane on Kingsway. On the evidence presented I find that at the time there was no dedicated left turn traffic signal on Kingsway. viii. There were crosswalks and stop lines at each of the four entrances to the intersection. I base this conclusion on the photographs of the intersection entered as exhibits at trial. Findings on factual issues in dispute i.

Where was the claimant’s vehicle immediately before the collision? I accept the claimant’s evidence that prior to the collision she was in the left lane adjacent to the centre line and arrived at the intersection of Kingsway and Griffiths while the traffic light was green. She waited at the green light for approximately 5 or 6 seconds. After that brief stop she entered the intersection. I also accept her evidence that she came to a full stop once she was in the intersection. ii. Had the claimant signaled her intention to turn?

I find that prior to entering the intersection the claimant indicated her intention to turn by using the left turn signal in her vehicle. iii. What was the color of the traffic light immediately before the collision? I accept the claimant’s evidence that when she proceeded into the intersection the traffic light was green but changed to a yellow while she was in the intersection. I find the claimant came to a complete stop in the intersection. iv. Was there a vehicle (a van) in the eastbound left lane? I accept the claimant’s evidence that there was a van facing her on the opposite side of the intersection.

That van was travelling eastbound and was in the left lane closest to the centre line. The van had come to a complete stop for the yellow traffic light. I accept the claimant’s evidence that the van had stopped on Kingsway before the crosswalk (i.e. it had not entered the crosswalk). It had not made a sudden stop in doing so. v. Where was the claimant’s car at the point she began to execute the left turn? I find the claimant was in the intersection at Kingsway and Griffiths. I find that an eastbound van, which was stopped across the way from the claimant, obstructed her view of other oncoming vehicles.

She was not able to verify whether the other lanes were free. She waited for a few seconds before she started her turn onto Griffiths from inside the intersection because she could not fully see the other lanes of oncoming traffic. vi. What was the color of the traffic light when the defendant entered the intersection? I reject the defendant’s evidence that when she entered the intersection the traffic light was still green and turned yellow immediately thereafter. Instead, I find that the defendant entered the intersection on a stale yellow light.

Given my findings about the position of the claimant’s vehicle and that she waited in the intersection once the light turned yellow, and that there was a van in the eastbound left lane that had come to a full stop, it is more likely than not that the defendant’s vehicle had not entered the intersection on the green traffic light before it turned to yellow. vii. What was the color of the traffic light at the time of the collision ? I find that at the time of the collision the traffic light on Kingsway at the intersection was a stale yellow light. viii.

Where was the claimant’s vehicle at the point when the collision occurred? I accept the claimant’s evidence that when the collision occurred her vehicle was at the point of entering or had just entered onto Griffiths. In other words, the claimant’s car had almost crossed all three eastbound lanes of Kingsway. In reaching this finding I reject the defendant’s evidence about the location of her vehicle at the moment the vehicles collided. The defendant maintains the claimant’s vehicle came out of nowhere.

However, as noted above, I find that the claimant’s car had been stopped inside the intersection when the traffic light turned yellow. The claimant had come to a complete stop and she was proceeding slowly rather than speeding through the intersection. Consequently, the point of impact (i.e. the rear quarter panel of the claimant’s vehicle) supports the claimant’s evidence as to where she was when the collision occurred.

If the collision had occurred as described by the defendant, it is more likely than not that the damage would have been closer to the front of the claimant’s vehicle rather than the back end of her vehicle. Further, the damage to the defendant’s vehicle was at the right front bumper area of her vehicle. This suggests that the claimant’s vehicle had traveled well beyond the middle eastbound lane where the defendant submits she was likely travelling. ix. What was the length of the yellow light phase at that intersection?

The parties submitted a joint book of documents which contained a letter from the City of Burnaby engineering department. That letter provided timing information for the traffic lights at the intersection of Griffiths and Kingsway for the date and time in question. The length of the yellow phase was constant at 3.5 seconds. APPLICABLE LAW

[36]

Section 174 of the Motor Vehicle Act, sets out the statutory obligations of a driver who intends to make a left turn: 174 When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approachingfrom the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given asignal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from theopposite direction must yield the right of way to the vehicle making the left turn. [37] Section128 sets out the statutory obligations of motorists faced with a yellow traffic light: Yellow Light 128

(1) When a yellow traffic light alone is exhibited at an intersection by a traffic control signal, following the exhibition of a greenlight, (

a) the driver of a vehicle approaching the intersection and facing the yellow traffic light must cause it to stop before entering themarked crosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stopcannot be made in safety [38] The Motor Vehicle Act requires a left turning driver to yield to oncoming traffic that is in the intersection or so close as toconstitute an "immediate hazard". A driver facing a yellow traffic light must stop before entering an intersection unless the stop cannotbe made in safety: see Lee v.

Tse, 2013 BCSC 1740 para. 49 The duty placed on a left turning driver pursuant to s.174 of the Motor Vehicle Act is not absolute. It is well established that left turningdrivers are entitled to rely on the assumption that other drivers will obey the rules of the road, absent any reasonable indication to thecontrary. In particular, a left turning driver is not required to wait until he or she sees that all approaching drivers have stopped: seeKokkinis v. Hall, (BC CA), [1996] B.C.J. No. 1560; Uyeyama (Guardian ad litem of) v. Wittenberg, [1985] B.C.J.No. 1883. [39] In Swieczko v.

Nehme, 2016 BCSC 399, Koenigsberg J. considered a case that involved a collision between a left-turningvehicle and a vehicle going straight-through. In that case the court accepted the plaintiff’s evidence that he was making a left-hand turnat Westminster Highway when the traffic light was in the late yellow stage. She concluded that at the time the accident occurred thelight was in the early red or all-red stage. She also found that the traffic light was in the late yellow stage or early red stage as thedefendant entered the intersection.

She concluded that the light had turned yellow when the defendant was well before the intersectionand could have safely stopped. [40] She relied on the law as set out in Lozinski v. Maple Ridge (District), 2015 BCSC 1277 at paras. 70 and 71: However, in a case involving a left-turning driver and a straight-through driver who collide in a traffic-light controlled intersection, it isthe colour of the lights that determines which of the drivers has the right of way and, accordingly, which is dominant: Miller v. Dent,2014 BCCA 234.

Where the left-turning driver has entered the intersection without breaching traffic signals and the straight-throughdriver enters the intersection on a red light, the left-turning driver is dominant and the straight-through driver is servient: Miller, atparas. 14 and 16; and, Henry v. Bennett, 2011 BCSC 1254 at para. 73. In such a case, the left-turning driver is entitled to proceed on the assumption that oncoming traffic will act in accordance with the lawand, in particular, will stop for a red light, absent any reasonable indication to the contrary and provided he or she acts with reasonablecare: Kokkinis v.

Hall (1996), (BC CA), 19 B.C.L.R. (3d) 273 (C.A.). See also Uyeyama (Guardian ad litem of) v.Wittenberg, [1985] B.C.J. No. 1883 (C.A.); Henry; and, Lee v. Tse, 2013 BCSC 1740 at para. 49. This does not mean that a left-turningdriver is entitled to treat a red light as a guarantee of safe passage. The left-turning driver is entitled to assume that oncoming traffic willstop at a red light but must also react reasonably to manifest hazards: Tejani v.

Greenan, 2001 BCSC 803 at para. 29. (Paras. 70 and 71). [41] In the case before her Madam Justice Koenigsberg concluded: [33] In my view, the plaintiff in this case acted with reasonable care in making his left turn. He entered the intersection on a greenlight and as the light turned amber, he waited and watched for the westbound traffic to come to a stop. He did not make his turn until hesaw that two vehicles had stopped in the westbound inside lane, and from his view at that point, the curb lane was clear.

He could notreasonably have been expected to remain stopped in the intersection as the light continued to turn from late amber to all-red, and then toearly red. He was therefore entitled to proceed on the assumption that oncoming traffic would act in accordance with the law. [34] The defendant, on the other hand, was required under the Motor Vehicle Act to stop her vehicle before entering the intersection. As I have found above, the evidence establishes that she entered the intersection on a late amber or all-red.

Had she been as responsiveto the light as she was obligated to be by ss. 128 and 129 of the Motor Vehicle Act, I find that she would have had sufficient time to stopher vehicle safely before entering the intersection.

This finding is supported by my findings as to the late stage of the WestminsterHighway light, and the fact that several vehicles had already come to a stop in the other two westbound lanes before the defendantentered the intersection. (emphasis added) [42] Madam Justice Koenigsberg concluded the defendant was required, under the Motor Vehicle Act, to stop her vehicle beforeentering the intersection. She found the evidence established that the defendant entered the intersection on a late amber or an all red.

Ifshe had complied with ss.128 and 129 of the Motor Vehicle Act she would have had sufficient time to stop before entering theintersection. Her findings in that regard were supported by the fact that several vehicles, travelling the same direction as the defendant,had already come to a stop.

[43] In that case, the defendant argued that the plaintiff was responsible for the accident because he had an obligation not to make aleft-hand turn until it could be done safely. Madam Justice Koenigsberg did not accept that argument. She accepted the plaintiff’saccount that the defendant’s vehicle was not visible to him as an immediate hazard because his view was obstructed by stopped cars inthe inside westbound lane. That entitled the plaintiff to assume that any traffic still present in the curb lane would follow the rules of theroad.

She said that taking the defendant’s argument on this point to its logical conclusion would create a legal stranglehold that wouldmake left-turning drivers always completely at fault for red and yellow light collisions. That would be directly contrary to the clearwording of s.174 of the Motor Vehicle Act. ANALYSIS [44] In this case, I found that the claimant, Ms. Robertson, entered the intersection when the light was green. She made a full stopand after the light turned yellow she waited a few seconds at the intersection.

The claimant began making the left turn from within theintersection when the traffic light was yellow, in my view verging on stale yellow. By the time the collision occurred the traffic light atthe intersection was a stale yellow. Accordingly, I must consider the provisions of s. 174 of the Motor Vehicle Act which provides thatthe driver of the vehicle making a left turn at an intersection shall yield the right-of-way to oncoming traffic that is either in theintersection or so close as to constitute an immediate hazard. It has been noted in many cases that that

section of the Motor Vehicle Actplaces a burden on the left turning driver. [45] The defendant, Ms. Rim, relies on Pacheco v. Robinson, 1993 CanLll (BCCA). for the proposition that the driver who wishes tomake a left turn at an intersection has an obligation not to proceed unless it can be done safely. The defendant points out that in that casethe court also said: ... Where each party’s vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection isgenerally entitled to continue and the servient left-turning driver must yield the right of way.

The existence of a left- turning vehicle doesnot raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. (para.15) [46] In a more recent case, Nerval v.

Khehra, 2012 BCCA 436, the court described the two-part burden placed upon a left turningdriver under s. 174, as follows: (1) to demonstrate that when the left turning driver commenced his or her turn, there was no immediate hazard; and (2) if the through driver is found to be the dominant driver, to show that the through driver nonetheless was negligent and at fault forcausing or contributing to the accident. [47] I have kept that burden in mind in this case.

However, I must also consider that s. 128 of the Motor Vehicle Act provides thatthe driver of a vehicle approaching an intersection and facing a yellow traffic light must cause it to stop before entering a markedcrosswalk on the near side of the intersection unless the stop cannot be made in safety. In this case I found that the defendant, Ms. Rim,entered the intersection when the traffic light was already yellow and not when it was green as she claimed.

In my view, based on thetiming of the yellow phase of the traffic lights, by the time the collision occurred the light was more likely than not a stale yellow. [48] In assessing the application of s.128, I have taken into account the comments of the Court of Appeal in Pirie v. Skantz, 2016BCCA 70. In that case the court noted that a through driver can, in appropriate circumstances, be found wholly at fault for an accidentinvolving a driver who turns left on a stale yellow light.

The court went on to say at para. 14: As a practical matter, a driver like the respondent, who is in a dominant position, will not typically be found to be liable for an accident:Salaam v. Abramovic, 2010 BCCA 212 at para. 25.

Having said that, where a through driver: (1) approaches an intersection at anexcessive rate of speed or otherwise conducts himself in such a way as to deprive the left-turning driver of the ability to reasonablyanticipate he is about to enter the intersection on a stale yellow light; (2) fails to bring his vehicle to a stop in circumstances where othervehicles travelling in the same direction have already done so; or (3) should have become aware of the left-turning driver's own disregardof the law in circumstances that afforded him a sufficient opportunity to avoid the accident through the exercise of reasonable care, thethrough driver may be found wholly or primarily at fault for the accident: Pacheco (Guardian ad litem) v.

Robinson (1993), (BC CA), 75 B.C.L.R. (2d) 273 (B.C.C.A.); Walker v. Brownlee, (SCC), [1952] 2 D.L.R. 450 (S.C.C.). [49] I will first address whether the defendant’s vehicle was an immediate hazard when the claimant, started to turn left. A vehicleis an immediate hazard if it is so close to the intersection that the through driver is required to take sudden or violent action to avoid thethreat of a collision when the left-turning vehicle begins its turn: Raie v. Thorpe (1963), (BC CA), 43 W.W.R. 405.

The defendant’s evidence is not helpful in this regard because, as she testified, the only things she was sure of was that she wastravelling eastbound, that the traffic light had just changed to yellow and that she was going straight through. She also said she probablyjust proceeded straight forward because she thought it was safe and if she had come to a sudden complete stop there was a risk a carbehind her could hit her car. As I have already noted, I have serious reservations about the accuracy and reliability of her testimony.

Additionally, her evidence that she was concerned about what would happen if she stopped suggests that she may have been morefocused on what was behind her than what was ahead of her. [50] On the other hand, I have accepted the evidence of the claimant. On the evidence I have accepted, which has been set out earlierin these reasons and will not be repeated here, I am satisfied that by the time the claimant started her turn, and definitely by the time thecollision occurred, the traffic light was a stale yellow.

Furthermore, another vehicle, the van, that was travelling eastbound in the samedirection as the defendant had come to a full stop even before the claimant began her left turn. The claimant acknowledged that her viewof the oncoming traffic was obstructed by the eastbound van. [51] I am satisfied, on a balance of probabilities:

a) by the fact that the van, which was travelling in the same direction as the

defendant’s vehicle was able to come to a full stop in a timely fashion without making a sudden stop,

b) that a number of seconds passed after the van stopped before the complainant began her turn, and

c) several more seconds passed before the collision, that the defendant’s vehicle was not an immediate hazard. I conclude the defendant’s vehicle was not so close to the intersection that the defendant was required to take sudden or violent action to avoid the threat of a collision. There was no direct independent evidence regarding the location of the defendant’s vehicle and the speed it was travelling. The parties did not present any accident reconstruction evidence or any expert evidence regarding the estimation of speed, distances etc.

Accordingly, I have done my best to deduce what most likely happened (on a balance of probabilities) based on that evidence which was presented and accepted at trial. [ 52 ] Each case must be decided on its own particular facts. In this case the claimant acted reasonably in the circumstances in making her left turn. She stopped at the green light. She entered the intersection on the green light and stopped again. The light turned yellow and she waited some more.

Before she began to turn left from the intersection onto Griffiths, the complainant noted that a van facing her in the leftmost eastbound lane had come to a complete stop on the yellow light. She only made the turn once she saw that vehicle had come to a full stop in the left oncoming lane. I appreciate that the claimant’s view of the other lanes was obstructed, at least in part, by the van. Nevertheless, as noted in Swieczko v. Nehme , she could not reasonably have been expected to remain stopped in the intersection as the light continued to turn from stale yellow to an early red.

In the circumstances I am satisfied that the claimant was entitled to proceed on the assumption that oncoming traffic would act in accordance with the law. As previously noted, the defendant was required to stop her vehicle before entering the intersection pursuant to s.128 of the Motor Vehicle Act . I have rejected the defendant’s evidence that she entered on the green light just as it was changing to yellow. Instead, I found that when the defendant entered the intersection the light was yellow and more likely than not a stale yellow.

I am satisfied that if the defendant had been more aware of her surroundings she would have had sufficient time to stop before crossing the crosswalk and entering the intersection. Accordingly, I conclude that the defendant is entirely at fault for the collision that ensued and the claimant’s claim as to liability is allowed. ____________________________ The Honourable Judge M. Giardini Provincial Court of British Columbia