Tim Roberts v. Gibson’s Energy ULC, 2012 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 050 Date: March 30, 2012 File: SC 70-11 Location: Moose Jaw, SK _____________________________________________________________________________ Between: Tim Roberts and Gibson’s Energy ULC - and - Kevin Chow For the Plaintiff Mr. Tim Roberts For the Defendant Mr. Grant Chow _____________________________________________________________________________ DECISION M. T.

GORDON, J _____________________________________________________________________________ [ 1 ] The Plaintiff and Defendant were in a motor vehicle accident June 26, 2011 at the corner of High Street and 3 rd Avenue Northwest in Moose Jaw, Saskatchewan. The Plaintiff claims the Defendant was negligent and solely responsible for the accident. Evidence According to the Plaintiff: [ 2 ] Tim Roberts testified that he has been a truck driver for 30 years and that on the day in question he was proceeding east on High Street in the right-hand lane. He was going to make a right-hand turn at 3 rd Avenue.

He was following the truck route to his destination and therefore he checked his left mirror, saw a small grey car, then checked his right mirror and did not see any vehicles. He shifted down and re-checked his mirrors again. At that time he saw the grey car had slowed down. He also noticed a parked vehicle. At that time, thinking it was clear, he swung his tractor slightly into the left-hand lane with the trailer staying entirely in the right-hand lane. He testified he was half to three-quarters the way into his right-hand turn when something hit the right side of his trailer.

He immediately stopped, got out of his truck, and saw the Defendant’s vehicle which had been caught by his trailer unit and was now facing northwest. He checked to make sure that no one was hurt. Kevin Chow, the driver of the vehicle, said that he was concerned about his headphones

in the back of his car and that he was in a hurry to get to Regina. Mr. Roberts had decreased his speed and he was down to twenty to twenty-five kilometres per hour in third gear. He testified that the Defendant drove between him and the curb essentially in the parking lane. [ 3 ] On cross-examination, Mr. Roberts stated he is in good physical health, he was driving a newer trailer that had newer tires, and the brakes were in good shape. The tractor unit was a 2000 Mack, the mirrors were clean and there was an empty load. He did not hear the Defendant honking his horn. Mr.

Roberts agreed that Exhibit P-1 and Exhibit P-2, being photos of the accident and the damage to the vehicles, were accurate. [ 4 ] Murray Fernell was called by the Plaintiff. He stated that on the date in question he was a passenger in a vehicle being driven by his wife west on High Street in Moose Jaw. His two children were in the back seat. He observed the Plaintiff’s semi unit in the process of making a right-hand turn on 3 rd Avenue. He observed a car making a right-hand turn as well and then saw that the truck trailer caught the car’s back end and turned it around. Mr.

Fernell said that the truck’s signal light was on and that the trailer stayed in the right-hand lane. He noted that the truck trailer caught the back end of the car about halfway back by the ladder. [ 5 ] Upon cross-examination Mr. Fernell said he knew Mr. Roberts, just to see him. He said that the Defendant’s car was behind the Plaintiff’s vehicle and also travelling east. What he observed was the Plaintiff’s truck went slightly to the left as the Plaintiff started going around the corner. The Defendant’s car started to turn the corner as well and the trailer caught the back end of the Defendant’s car.

The Evidence According to the Defendant [ 6 ] Kevin Chow testified he was driving his 2003 Toyota Camry east on High Street on June 26, 2011. He was going to Regina with some friends to drop off a CD. He was not speeding. He stated he was in the right-hand driving lane. The semi truck was also heading east on High Street. Mr. Chow testified he slowed down and slammed on his brakes when he realized the truck was making a right-hand turn. Mr. Chow thought he was going to be in the clear when his vehicle was struck by the ladder on the trailer of the truck and his car was swung around. Mr.

Chow was adamant that at no time was the Plaintiff’s tractor trailer in the right lane. He says that the Plaintiff was in the left lane. The Defendant says he realized what was happening when the Plaintiff started turning and that was when he slammed on the brakes. He says he was trying to pass the Plaintiff and was going about 50 kilometres per hour. [ 7 ] Jamie Mason is a full-time student at the University of Regina and works part-time. She was the front seat passenger in Kevin Chow’s car on June 26, 2011. She says the Defendant was not speeding.

She stated Kevin travelled from the 9 th Avenue Bridge and was driving east on High Street in the right-hand lane. She observed the semi in the left lane and this made her nervous. She said that they were behind the semi for about one block and started to catch up to the semi and alongside the semi for two to three blocks when the semi turned. She saw no signal light. She says she saw the Plaintiff’s face in his mirror looking to the left and then saw the semi turning right. It was at this point that Kevin Chow, the driver, slammed on his brakes.

They were hit from behind with the trailer and spun around. [ 8 ] Grant Chow, father of Kevin, commenced his testimony by outlining his educational and employment background. He is a Civil Engineer, retired, and among other qualifications, is a qualified draftsperson. He obtained actual measurements of this corner and the relevant driving lanes from the City of Moose Jaw and drew a very detailed drawing to scale that was entered by consent of the Plaintiff as Exhibit P-3.

He also had drawn the vehicles to scale and positioned them on the map showing where they would be based on the Plaintiff’s evidence and then based on the Defence evidence and what he says would be the final resting position of the vehicles. He maintains that based on the evidence of his son and Ms. Mason, and the undisputed evidence that it was the ladder on the trailer that caught the Chow vehicle, that the truck was not around the corner as far as the Plaintiff had indicated.

If the truck was half to three- quarters into its turn, Grant Chow says that the car would not have been caught by the ladder on the trailer. He also pointed to the location of the broken blue glass that is shown in the photos. The ladder came into contact with the rear of the car, the car was moved forward and started to spin around and the glass flew out onto the street. He says Photo 11 shows the distance that the car was dragged. [ 9 ] The final Defence witness was Kerry Lewis, a driver examiner with SGI for the past 10 years.

His job is an examiner for road tests which include about one semi-truck every week. He noted

section 218 of The Traffic Safety Act which states that one must make a right-hand turn from the right-hand driving lane. He also talked about his work at SGI and how, in carrying out his duties, he tests for drivers’ right-hand turns. He pointed to the Saskatchewan Professional Driver’s Handbook 2011, in particular pages fifty-eight and fifty- nine. This book was marked as Exhibit D-1. He stated that when making a right-hand turn, a trucker should go into third gear and be travelling at a speed of about fifteen to twenty kilometres per hour. The trucker must be in a position to stop the vehicle if necessary.

He did say that speed is not that relevant as long as the trucker is making the turn safely. [ 10 ] In referring to the photographs in Exhibit P-1, particularly Photo 12, he indicated for the trailer to be parallel after the accident, he would have had to have gone out into the left-hand lane. He assumes that the truck went into the left-hand lane before turning, although he says it is hard to say. He is certainly familiar with the particular corner and testified there are situations where the driver may have to swing out before making the turn, as long as there is no traffic.

He says it actually depends on the intersection. He prefers that truck drivers, when making right-hand turns, go further into the intersection, if safe to do so, before making their right-hand turn. [ 11 ] Mr. Lewis said that assuming that everything was in good mechanical condition, a tractor trailer unit such as this only with a full load travelling at fifteen kilometres, should be able to stop in about twenty-five feet. If empty, of course it would be able to stop quicker. From the diagram it appears that the Plaintiff’s vehicle did not stop for one hundred feet.

This could be because he did not see the vehicle or he was travelling too fast.

Summary of the Position of the Parties

[ 12 ] The Plaintiff, Mr. Roberts, briefly summed up his position saying that he is an experienced driver and that he followed proper procedure. There were no distractions and he took all necessary precautions when he was turning right onto 3 rd Avenue. He said his trailer never entered the left-hand lane and the independent witness, Mr. Fernell, confirmed this. [ 13 ] Grant Chow, in his closing remarks on behalf of his son, said that his son, the driver, and witness, Ms. Mason, all pointed to the fact that the Plaintiff’s truck was in the wrong lane; in other words, in the left-hand lane.

The Defendant said that the Plaintiff needed to ensure it was safe for him to turn and that he did not see the car and therefore the Plaintiff was negligent. [ 14 ] Mr. Chow argues that the Defendant witness, the passenger Ms. Mason, was in the best position to see it all happen. That, along with the detailed diagrams and position of the vehicles based on the Defence evidence, should indicate to the Court that the Defendant was not responsible in any way for the accident.

Analysis [ 15 ] The Plaintiff must prove his case on the civil burden, being the balance of probabilities. [ 16 ] Both parties testified that the other driver was negligent and at fault for this accident. [ 17 ] Based on all of the evidence, I conclude that the Plaintiff has proved on the balance of probabilities that the accident was a result of the Defendant’s negligence. [ 18 ] From all of the evidence I find that the Plaintiff’s vehicle was in the right-hand lane travelling east. This is the proper lane to make a right-hand turn. He was driving an empty unit. He signaled.

He slowed to third gear to twenty to twenty-five kilometres per hour to initiate the turn. This is within the recommended speed according to Mr. Lewis. Mr. Roberts had checked for vehicles in both mirrors before and after gearing down. He observed a different vehicle, the grey car in his left mirror, slow down. He was half to three- quarters into his turn when the impact occurred. This makes sense as the undisputed evidence is that the ladder on the trailer caught the back end of the Chow vehicle and spun it around. [ 19 ] I found Murray Fernell’s evidence to be clear and straightforward.

He has no interest in the outcome of the case. I accept his evidence as the best description of what occurred. [ 20 ] Kevin Chow stated he was going to Regina to deliver a CD. He had three passengers. Kevin said that he slammed on his brakes and thought he was okay until the impact and his vehicle was spun around. Mr. Roberts was asked if he heard the Defendant honk his horn which he did not. [ 21 ] A semi truck and trailer are large units. Mr. Roberts testified that the tractor was twenty-two to twenty-five feet and the trailer fifty-three feet long and eight feet wide. The trailer was empty.

However, these units do not make quick turns. A semi unit, even empty, takes time to initiate and complete a turn. [ 22 ] I conclude that the Chow vehicle was driving in the curb lane, and did not keep a proper lookout as to what the semi was doing. I accept that Mr. Roberts, as confirmed by Mr. Fernell, had his right signal light on. Mr. Chow did not see it and was hoping to get by the semi. Mr. Chow stated he was in a hurry. [ 23 ] The evidence of Ms. Mason and her description of events do not make sense. Ms.

Mason’s evidence suggests that for about three blocks the semi truck and the Chow car are alongside of each other, going the same speed. However, the evidence is clearly established that the semi truck slowed down to make the turn and that the Chow vehicle was going the speed limit of 50 kilometres/hour. As well, if the Plaintiff was driving in the left lane (and there are two east lanes plus the curb lane) the semi would not need to turn out to the left at all to make the corner. Ms. Mason, in my view, is mistaken.

She testified she was nervous when the Chow vehicle was alongside the semi and the trauma of the event has had an impact on her recollection. [ 24 ] The fact that she saw the Plaintiff looking in his left mirror does not mean he did not look into the right. She just did not observe that. [ 25 ] Grant Chow, the father of the Defendant Kevin Chow, testified. He wanted to be qualified as an expert. In order to be allowed to give opinion evidence, the Court requires evidence as to the proposed expert’s qualifications and area of expertise.

To be admissible expert evidence, it must meet the following criteria: 1) relevant; 2) necessity in assisting the trier of fact; 3) the absence of any exclusionary rule; and 4) a properly qualified expert. I acknowledged Grant Chow’s qualifications and extensive and varied work experience. However, after some questioning by the Court, he was not sure in what area that he could be qualified and other than being a professional engineer, he did not present any evidence showing a specialized knowledge of the subject about which he wanted to testify, being accident reconstruction. [ 26 ] Mr.

Grant Chow wanted to give his opinion as to how the collision occurred. However, I did not qualify him as an expert. Something more than a university education, even in Engineering, and a solid work record, is required. [ 27 ] In addition, Mr. Grant Chow is not a disinterested party. I observed him to be very passionate and overly confident as to the manner in which the accident occurred. He stated, and I have no doubt, he has devoted many hours to reviewing, in minute detail, the photographs and making a sketch of the scene. [ 28 ] Grant Chow is obviously a man of many talents.

I accept his drawing of the accident scene, showing the dimensions of the streets. [ 29 ] However, I do not accept that as a result of the above I must conclude that the Plaintiff’s evidence is not to be believed. [ 30 ] The evidence of Kerry Lewis about the proper way for a truck driver to make a right-hand turn, in order to pass the road test

confirms my position. There must be compliance with

section 218 of The Traffic Safety Act , turning right from the right-hand driving lane being in third gear, travelling fifteen to twenty kilometres per hour in a position to stop the vehicle. He then said speed is not as relevant so long as the turn can be safely executed. If there is no traffic and no parked vehicles, a speed of twenty to twenty-five kilometres per hour is acceptable. From Photograph 12, the Plaintiff’s semi would have had to go to the left and then make the wide turn. Mr. Lewis has turned that corner and agreed there are situations where a driver might have to swing out to the left. Mr.

Lewis made assumptions about some of the facts were not established by the evidence. [ 31 ] Mr. Roberts saw a small grey vehicle, perhaps a Pontiac Sunfire, when he initially checked his left-hand mirror. He did not see any vehicle in his right mirror. He noticed the grey vehicle had slowed down. This was not the Defendant’s vehicle. However, I accept that Mr. Roberts was clearly aware of his surroundings. [ 32 ] Mr.

Fernell said this grey car was behind the semi and then as the Plaintiff moved slightly to the left before turning, the Chow car started to turn the corner before the ladder portion of the trailer came into contact with the left-hand side of the Chow vehicle. Whether Mr. Chow’s vehicle was going to make a right turn or keep proceeding east does not matter. Perhaps it appeared to be turning right as an evasive action. The Chow vehicle was driving in the curb lane, travelling faster than the Plaintiff’s truck and trying to get ahead of the truck.

The Defendant did not account for the fact that the truck could be turning. He failed to notice the signal light which I accept had been activated. [ 33 ] Mr. Lewis testified that if the ladder had not caught the car, the outcome would have been far more serious. I take that to mean the people in the car could all have been seriously injured or died. No wonder Ms. Mason was nervous that the Defendant was passing this large semi truck and trailer on the right in the curb lane. He was travelling faster than the truck unit and trying to get past the truck.

For whatever reason he did not notice the signal light on the truck, did not observe the truck executing the turn, until almost too late. [ 34 ] Therefore, upon the evidence I accept, I find that Plaintiff has proven his claim that the Defendant operated his vehicle in a negligent manner and the Defendant is 100% responsible for the accident. The Defendant’s counterclaim for the cost of his headphones and other items must be dismissed. It is only the claim for the deductible that is allowed in the no fault system of vehicle insurance.

Dated at Moose Jaw, Saskatchewan, this ____ day of March, 2012 __________________________________________ M.T. Gordon, J