Schatroph v. Abou-Khazaal, 2022 BCPC 324

Citation: Schatroph v. Abou-Khazaal 2022 BCPC 324 Date: 20220113 File No: 1826295 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Motor Vehicle Accident BETWEEN: ALEX NICHOLAS SCHATROPH CLAIMANT AND: RABIH ABOU-KHAZAAL, RANIA HAFIZA BOTTS, SAMER ABOUKHAZAAL AND VALLEY TRAFFIC SYSTEMS INC. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Claimant (Alex Nicholas Schatroph): T. H. Pettit Counsel for the Defendant (Valley Traffic System Inc.): J. Tennant Counsel for the Defendants (Rabih Abou-Khazaal, Rania Hafiza Botts and Samer Aboukhazaal): R.

McQuarrie Place of Hearing: North Vancouver , B.C. Dates of Hearing: April 23, May 27, 28 and June 10, 2021 Date of Judgment: January 13, 2022 [ 1 ] Mr. Schatroph is claiming for personal injury damages as a result of a collision between his vehicle and the Abou-Khazaal

[ 1 ] Mr. Schatroph is claiming for personal injury damages as a result of a collision between his vehicle and the Abou-Khazaal vehicle. The accident occurred on October 13 th , 2017 at 10:30 a.m. at the intersection of Keith Road and Brooksbank Street in North Vancouver. The weather was clear and dry. [ 2 ] The claimant says a flagger employed by Valley Traffic Systems was also at fault because they directed the claimant to turn left when it was not safe to do so. BACKGROUND [ 3 ] At the time of the collision the intersection was in the area impacted by construction of the Lower Lynn interchange.

Brooksbank was referred to in evidence as running in a north/south direction while Keith was referred to as running in an east/west direction. Brooksbank ended in a T at Keith, however there was a temporary works yard which opened onto Keith from the north. Brooksbank is now a through road which leads to an overpass. [ 4 ] Mr. Schatroph was the sole occupant of his vehicle and was travelling west bound on Keith intending to turn left to go south on Brooksbank.

The left turn lane for westbound traffic had been partially closed with orange plastic bollards allowing only enough room for one or two vehicles to activate the pressure plate for the advance green left turn arrow. [ 5 ] The Abou-Khazaal vehicle was travelling east bound on Keith in the lane closest to the centre line. The middle lane was closed by bollards. The curb lane was open for eastbound traffic to turn south onto Brooksbank. [ 6 ] The light was green in both directions at the time of the collision. [ 7 ] The flagger, Ms.

Vrablik, was on Brooksbank on the south side of the intersection directing anyone travelling south on Brooksbank into the curb lane as the northbound lanes were blocked by a large piece of equipment known as a Zoom Boom. [ 8 ] There was a vehicle in front of Mr. Schatroph which turned left either through a solid green light or the advance green arrow. Mr. Schatroph followed that vehicle as he believed the flagger was directing both vehicles to turn. He was struck in the intersection on his passenger side by the front end of the Abou-Khazaal vehicle. [ 9 ] Mr.

Schatroph suffered an injury to his hand and a blow to his head as well as soft tissue injuries. THE LAW [ 10 ] The law which applies to the circumstances before the Court is not in dispute. [ 11 ]

Section 141 of the Motor Vehicle Act requires drivers to obey the directions of any flagger.

Section 127 provides that drivers may proceed through or turn left or right on a green light, however, must yield to any pedestrians or vehicles in the intersection.

Section 174 requires drivers making left turns to yield to oncoming vehicles which are an immediate hazard. [ 12 ] The common law duty for drivers to exercise due care exists in addition to these statutory provisions as they do not constitute a complete code: Cook v. Teh (1990), B.C.L.R. (2d) 194. [ 13 ] Flaggers must exercise reasonable care in the manner in which they control traffic. While a driver is obliged by s. 141 of the MVA to obey the directions of flaggers, even when they are being so directed they must still exercise reasonable care: Kelly v. Lowe , 2007 BCSC 596 at paragraphs 50 and 55 .

EVIDENCE ON LIABILITY [ 14 ] The determination of liability rests on the reliability of the evidence of Mr. Schatroph, Mr. Abou-Khazaal, Ms. Vrablik and her supervisor, Ms. Robichaud, as to who was where and what was occurring immediately before and at the time of the collision. All of the witnesses in this matter testified honestly and to the best of their recollections. [ 15 ] Mr. Schatroph is 83 years of age. He is now retired. He has lived in the Vancouver area since he left Shanghai at the end of the war. His father had been in the navy when the war broke out and Mr.

Schatroph had to be left behind for the duration of the war. Once in Canada he played in the American Hockey League for a number of years following which he worked in the automobile industry. He has been married for 61 years, has two adult children and many grandchildren. He has been driving since 1954 and said he has had only one accident for which he was at fault. [ 16 ] He was stopped in the left turn lane behind another vehicle waiting to turn at the intersection and saw the flagger to his left with a paddle sign up in her right hand with the yellow or “go ahead” side facing him.

The flagger was “waving us on - saying get going” by motioning with her left hand. His evidence was inconsistent as to the motion she was making which he described both as lifting her hand to her shoulder and as a sweeping motion across her body. He believed the flagger was directing both vehicles to turn left. [ 17 ] He was aware the light was green. In his verbal statement to the police he said he was not looking at the lights. He did not check to see if there were any eastbound vehicles approaching the intersection which would present an immediate hazard.

He followed the vehicle in front of him and said he was 2 to 3 feet behind it. He saw the Abou-Khazaal vehicle just after he started his turn and had no opportunity to take evasive action. [ 18 ] Prior to the collision he placed Ms. Vrablik as being on the east side of the intersection, about 15 feet east of Brooksbank, being 15 feet to the east of his vehicle, and 25 feet to the south of the intersection. She was to the left of his vehicle and he had to turn his head to see her.

He recalled there was a second flagger on the west side of the intersection directing eastbound traffic turning right to go south bound on Brooksbank. He agreed there were no flaggers dealing with eastbound through traffic on Keith. He said one of the flaggers ran into a work shed and changed from a yellow hard hat into a green one immediately after the collision.

[ 19 ] Ms. Vrablik had been working as a flagger in the area for around a year. She said she was 3 to 5 car lengths or 45 feet to the south of Keith Road standing in the centre/median lane southbound a short distance to the north of the Zoom Boom. She had her paddle in her left hand. When the vehicle in front of Mr. Schatroph had turned and started southbound toward her she raised her paddle with the yellow “Slow” side showing and pointed to the curb lane by bringing her right hand across her body. The vehicle was just passing by her in the curb lane when she heard the impact.

In her statement she said she saw Mr. Schatroph turn but no longer remembered that detail when testifying. [ 20 ] She said that unless the control lights for the intersection are turned off the lights continue to control the intersection. If the control lights were turned off it would require 3 or 4 flaggers to control the intersection. [ 21 ] Ms. Vrablik had activated the pedestrian crossing control to allow the Zoom Boom out of the yard, across Keith Road and onto Brooksbank. Her attention was solely on directing southbound traffic around the Zoom Boom.

She was not required to assist with the movement of any other equipment or direct any other traffic at the material time. There was no evidence that any northbound traffic was of concern to her or was distracting her. [ 22 ] There were no other flaggers in the area around the intersection when the collision occurred.

She had asked for assistance with the traffic northbound on Brooksbank as, depending on how long the Zoom Boom was there, the traffic would need to be directed around the Zoom Boom in each direction which would require a second flagger. [ 23 ] Although there is a downslope on Brooksbank she believed that people in vehicles on Keith would have been able to see her. She did not signal any other vehicles or make eye contact with any drivers. [ 24 ] Immediately after the collision, she turned her attention to directing traffic around it.

She did not go into a work shed and change her hard hat. [ 25 ] In cross examination by counsel for Mr. Schatroph she said she was following the provisions of the company’s Health and Safety Manual. Specifically, she said her signals were clear and precise. She was within 25 meters of the Zoom Boom due to the circumstances. [ 26 ] Monique Robichaud was the Traffic Control supervisor for the area. She could not recall if Ms. Vrablik had asked her to bring another flagger or if she was doing so as she had expected this would be required.

She approached the intersection from the west, stopping at the corner on Keith in the right turn lane. Both she and the other flagger were still in her vehicle when the collision occurred. Neither of them changed their hard hats after the accident and there was no shed for them to use in the immediate area. [ 27 ] Ms. Robichaud testified she could see Ms. Vrablik some distance to the south on Brooksbank standing in the centre lane southbound.

She described the distance as 4 to 5 car lengths in her direct evidence, 10 to 15 meters in her will-say statement and gave a guesstimate of 25 feet in cross examination. [ 28 ] A vehicle turned in front of Ms. Robichaud and, once it was facing Ms. Vrablik on Brooksbank, she saw Ms. Vrablik signal that vehicle to go into the curb lane. She believes the first vehicle turned on an advance green arrow but could not see that side of the light. She saw the light was green for east/west traffic when her attention was drawn to the collision.

She did not see the collision but heard it. [ 29 ] She believes the first vehicle had completely cleared the intersection before Mr. Schatroph commenced his turn. She testified that 3 to 5 seconds passed between the first car making the turn and the collision, however, also described the interval as being almost immediate or within seconds. [ 30 ] Mr. Rabih Abou-Khazaal was driving his cousin’s Highlander eastbound on Keith Road. He was towing a trailer. He said he was approaching the intersection in the centre lane going around 40 kmh. He estimated he was a half block to a block away when the light turned green.

A vehicle turned left in front of him. Mr. Schatroph’s car was stopped waiting to turn left and suddenly turned in front of him just after he had crossed the lines for the intersection. He was unable to avoid the collision. [ 31 ] He said he saw a flagger in the middle of the road on the south side of the intersection parallel with the cross walk or 2 to 3 feet south of it. Her back was to the south with her left side was toward him and she had a “flag” in her left hand. He conceded his attention was on the green light and the intersection. He did not see her making any hand signals.

His impression was that the flagger was directing southbound traffic into the curb lane. FINDINGS OF FACTS ON LIABILITY [ 32 ] The evidence of Mr. Schatroph is not capable of establishing to the balance of probability that either the flagger or Mr. Abou- Khazaal were negligent. [ 33 ] I do not accept his recollection that Ms. Vrablik was positioned to the east of the intersection. If this was where she was situated then it should have been apparent to Mr.

Schatroph that she could not have been engaged in giving any signals to or directing southbound traffic to turn left through a green light for oncoming traffic as she would have been out of the line of sight for left turning vehicles. [ 34 ] Mr. Schatroph also testified that there was a flagger at the southwest corner directing traffic turning right off Keith on to Brooksbank. I do not accept this to be accurate. It is of particular significance that he did not make any observations regarding how oncoming eastbound traffic was being controlled.

He testified he did not turn his mind to this despite being aware the light was green. [ 35 ] Ms. Vrablik was a careful and articulate witness who gave her evidence in a fair and balanced manner. She was clear about what she was doing and why which was consistent with the task at hand. She described where she was positioned on Brooksbank even if she was not able to say precisely how many feet or meters south of the intersection she was standing. Her testimony as to her position and the signals she gave to the vehicle which turned before Mr. Schatroph was corroborated by Ms. Robichaud. I find that Ms.

Vrablik had not taken control of the intersection and was engaged solely in directing traffic facing her on Brooksbank into the curb lane.

[ 36 ] The evidence of Mr. Abou-Khazaal was that Ms. Vrablik was visible from Keith Road and was not signalling to any vehicles at the time Mr. Schatroph turned in front of him. I have given little weight to his recollections of specifically where Ms. Vrablik was standing or what she was doing given that his attention was focused on the light and the road in front of him. However, I find his evidence corroborates that there was only one flagger in the area immediately before the collision. I also accept that Mr.

Schatroph did not immediately follow the car which turned in front of him and had stopped, albeit briefly, before proceeding to turn. [ 37 ] The statements attributed to the witnesses by the police which referenced “flagman” or multiple flaggers is the result of there having been three flaggers at the intersection immediately after the accident and does not detract from the reliability of their evidence that there was only one flagger in the area immediately before the collision. [ 38 ] I find it likely that Mr.

Schatroph has innocently confabulated where the flaggers were after the accident with what was happening before the accident. He also testified that one of the flaggers went into a shed and changed their hard hat. I do not accept that this occurred. I find his recollection of this is the result of confusion arising from the impact. [ 39 ] Having considered the evidence of Mr. Schatroph in light of all of the evidence, I find his evidence as to where Ms.

Vrablik was situated and what she was doing immediately prior to the collision is unreliable and can be accorded little weight. [ 40 ] I accept the evidence of Ms. Vrablik that she was performing her duties competently and safely and that nothing she or Ms. Robichaud did contributed to the collision. To the contrary, I find that Mr. Schatroph failed to consider all the circumstances when he erroneously jumped to the conclusion that Ms. Vrablik was directing him to turn left through a green light. [ 41 ] I am also unable to conclude to the balance of probability that Mr. Abou-Khazaal was negligent to any degree.

I accept his evidence that he was driving at or below the speed limit and that Mr. Schatroph was stopped and suddenly turned in front of him while he had the green light in his direction of travel. [ 42 ] I find Mr. Schatroph was negligent in failing to yield to Mr. Abou-Khazaal‘s vehicle despite it being an immediate hazard and is solely at fault for the collision. [ 43 ] Given my finding on the issue of liability I need not address the issue of damages. ______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia