Cassandra Genoway - v. -, 2017 SKPC 065

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2017 SKPC 065 Date: August 9, 2017 File: SC 89/17 Location: Regina _____________________________________________________________________________ Between: Cassandra Genoway - and - Natassia D'Sena Self Represented For the Plaintiff Thomas Lee For the Defendant _____________________________________________________________________________ JUDGMENT P. DEMONG , J _____________________________________________________________________________ Introduction [ 1 ] Cassandra Genoway, (Ms. Genoway) brings action against Natassia D’Sena, (Ms.

D’Sena) for damages arising from a motor vehicle accident that occurred shortly before 4:00 p.m. on December 8 th , 2016, at the intersection of Prince of Wales Drive and Arens Road in Regina. She alleges that she was proceeding northbound on Prince of Wales Drive through the Arens Road intersection on a green light at about 50 kilometres per hour when suddenly, and without notice, Ms. D’Sena entered the intersection travelling westbound on Arens Road and struck her vehicle broadside at or about the midpoint of the passenger’s side of her vehicle. [ 2 ] Ms. D’Sena has counterclaimed and also seeks damages.

She alleges that she was stopped at the Arens Road intersection at a

red light with the intention of proceeding through that intersection westbound. She maintains that her light turned green and she started to proceed through the intersection when suddenly and without notice Ms. Genoway proceeded through the intersection on a red light at such a speed that Ms. D’Sena was unable to take any defensive action to avoid colliding with the Genoway vehicle. [ 3 ] It is only by the best of good fortune that neither party was injured or killed in this accident.

The forces at play were, however, sufficient to result in both vehicles sustaining damages to the extent of what, in the insurance industry, is described as ‘total loss’ status. Evidence, Analysis and Findings of Fact in Relation to the Accident [ 4 ] Ms. Genoway conceded at trial that she rarely drives on Prince of Wales. Her intention was to travel to Best Buy, a store that is some distance north of the intersection. She says that she was travelling at the speed limit, 50 kilometres per hour, as she proceeded through the intersection on a green light. Ms.

D’Sena, who lives in the area, testified that the default speed on Prince of Wales at that location is 60 kilometres per hour and invites me to conclude therefore, that this was the likely speed at which Ms. Genoway was driving. For reasons which will quickly become apparent, I have only the testimony of Ms. Genoway as to her speed and therefore I accept that she approached and proceeded through the intersection at 50 kilometres per hour. [ 5 ] Each of Ms. Genoway and Ms. D’Sena say that the roads were clear of ice and snow and therefore road conditions did not come into play in this accident.

In addition, this accident occurred at just prior to 4:00 p.m. and therefore, it was still light out. [ 6 ] Ms. Genoway says that as she approached the intersection she was in the median as opposed to the curb lane of the two northbound lanes of traffic. The intersection is set up such that as one approaches the intersection, the road widens, creating two additional lanes, one for vehicles to turn right or left at Arens road. She says that as she approached the intersection there were no vehicles in front of her, behind her, or to the side of her.

She entered the intersection, which I accept as being approximately 28 metres deep, and, she says, she was three quarters of the way through it when she was hit on her passenger side at about the midpoint of her vehicle. The collision was of sufficient force that her vehicle spun 180 degrees in a clockwise direction and came to rest in what would be the left hand turning lane of Prince of Wales Drive facing south. The photographic evidence shows significant intrusion into the passenger side of her vehicle. Ms.

Genoway stated that about ten seconds after the collision a woman in an SUV, which was southbound on Prince of Wales, rolled down her window and asked if she was okay. After explaining that she was unhurt, the vehicle moved on. [ 7 ] Ms. Genoway says that she did not see the D’Sena vehicle until the moment of impact. A description of the intersection, and photographs tendered into evidence satisfy me that while there is a slight bend in Prince of Wales Drive as it intersects with Arens Road, had Ms.

Genoway looked to her right, she had a clear view of any vehicle that may have been at the Arens Road westbound stop line for at least a distance of 40 metres if not more. Ms. Genoway can offer no reason why she did not see the D’Sena vehicle prior to the collision. [ 8 ] Ms. D’Sena testified that she was on her way to work at the time in question. Ms. D’Sena has, or at least had, a busy life. She is a student carrying four classes and carries two part-time jobs in addition.

She says that she regularly starts her shift at work at 4:00 p.m. and that invariably on her way to work she judges her time such that she reaches the Arens Road intersection at Prince of Wales Drive at 3:55 p.m. She says that from practice and experience she knows that it takes her about two minutes to get to work from the Arens Road intersection. [ 9 ] Ms. D’Sena says she was travelling westbound on Arens Road and approached the intersection and was presented with a red light. She says that she waited a couple of minutes (not a precise recollection but an estimate), and then the light turned green.

She says that she looked to her left for oncoming traffic but does not say at what point she looked to her left. I cannot determine from her evidence whether or not it was, or was not, just as the light turned green. She says that she then started to accelerate and had travelled a very short distance and drove directly into the side of Ms. Genoway’s vehicle. Based on the evidence at trial I am satisfied that her vehicle would have moved a distance of not greater than 11 metres. Ms.

D’Sena says that she was comfortable with her determination that she had the green light not only from having observing it turn green, but also because she observed an SUV which had been travelling south on Prince of Wales Drive come to a stop at the intersection, presumably in response to the red light which would have existed for southbound vehicles. [ 10 ] On the evidence I am satisfied that from where her vehicle was situated, while she allegedly waited for the light to turn green, Ms. D’Sena would have been able to see any vehicle approaching from Ms.

Genoway’s direction from a distance of at least 40 metres, but Ms. D’Sena testified that she did not see the Genoway vehicle until the point of impact. No other witnesses testified as to having seen the accident. [ 11 ] By consent of the parties, a report was tendered into evidence which had been authored by Craig Muz, a Technical Research Services employee at SGI. The report is an analysis of the Crash Data Retrieval imaging which was attached to Ms. D’Sena’s Airbag Control Module. That module records deployment events of airbags. Ms. D’Sena’s airbag had in fact deployed.

The recording indicated the movement of the D’Sena vehicle for the five seconds prior to the accident. The module reflected that at five seconds prior to the collision the D’Sena vehicle was stationary. At four seconds prior, the vehicle was stationary. At three seconds prior, the vehicle was stationary. At two seconds prior, it was travelling at 8 miles per hour or 12.8 kilometres per hour, and at the time of collision it was proceeding at 14 miles per hour, or 22.4 kilometres per hour.

The report indicated that the accelerator pedal position changed from 0 percent to 23 percent and then stayed at 25 percent for the last two seconds. From this I conclude that Ms. D’Sena proceeded from a stopped position and applied about one fourth full force on her accelerator pedal when she proceeded into the intersection. I conclude that the vehicle was at rest for at least two seconds and then it started to accelerate commencing at second three. [ 12 ] The report is compelling evidence. It is consistent with Ms. D’Sena’s evidence that she was stopped at the intersection for at least some period of time.

I find it difficult to conclude that Ms. D’Sena would approach this intersection, come to a stop and then for reasons unknown, decide to leisurely enter the intersection on a red light. I find it far more likely that in fact she had been sitting at the intersection on a red light and then, when the light turned green, she entered into the intersection. This is consistent with her evidence of the green light, consistent with her observation that she observed a SUV come to a stop while south bound on Prince of Wales Drive, and

consistent with the Airbag Control Model imaging. [ 13 ] Where the evidence conflicts in relation to which party had the red light and who had the green light I prefer the evidence of Ms. D’Sena. She gave her evidence in a forthright fashion. I believe that the evidence that she gave as to her damages was sincere and not overstated. They are rather nominal. The consequences of a finding against her are inconsequential in a monetary sense. Her evidence was not contradicted in any material manner in cross-examination. The report is consistent with her version of the events. [ 14 ] Comparatively speaking, Ms.

Genoway has no corroborating evidence to support her assertion that she had the green light. I also note that her risk of financial loss, and therefore the temptation to present her evidence in a manner most agreeable to her financial interest, is more keen. She had no insurance on her vehicle at the time of the accident. As such, she may, depending on the outcome of this trial, be exposed not only to the cost of her own vehicle, which equates to $2,272.00 but also the actual value of the D’Sena vehicle which has been written off, and, of course, Ms.

D’Sena’s economic loss following this accident. [ 15 ] I have listened to, and I accept the light sequencing evidence tendered by Ms. Genoway’s father, who attended at the scene of the accident on numerous occasions after the accident, at least in so far as he speaks to the sequential timing of the lights from green to amber to red on Prince of Wales Drive for north and south traffic at that intersection at or about 4:00 p.m. on any given day.

He says that the light remains green for 58 seconds, turns to yellow for two seconds and then to red for approximately 28 seconds and then repeats. [ 16 ] Based on a reasonable

interpretation of the evidence I am satisfied on the balance of probabilities that:

i) Ms. Genoway was approaching the intersection at 50 kilometres per hour which is 13.8 metres per second and that she kept her speed at this constant rate up to the point of the collision. There is no evidence to conclude that she ever slowed her vehicle or attempted to avoid the accident; ii) When Ms. D’Sena entered the intersection her light was green. It would have taken perhaps a second for her to identify the green light and react to it by starting to accelerate her vehicle.

The accident occurred two seconds after she entered the intersection, and therefore, more likely than not, her light would have been green for approximately three seconds; iii) If Ms. D’Sena’s light was green for three seconds prior to the collision, then Ms. Genoway would have been presented with a yellow light for two seconds as she approached the intersection and then with a red for another three seconds until the moment of the collision; iv) The collision occurred when Ms. Genoway was 20 metres into the intersection and Ms. D’Sena was 7 to 11 metres into the intersection;

v) Based on Ms. Genoway’s speed she would have been 69 metres from the intersection when the light turned to amber. When it turned to amber she travelled approximately 27.6 metres (13.8 metres per second x’s 2 seconds = 27.6 metres), and then travelled another 41 metres or so while, presented with a red light (13.8 metres per second x’s 3 seconds = 41.4 metres). vi) Ms. Genoway was presented with a yellow light well in advance of the intersection and chose to ignore it or didn’t notice it and failed to reduce her speed; vii) Ms.

Genoway failed entirely to observe the D’Sena vehicle as it was entering into the intersection on a green light and therefore failed to take any evasive action whatsoever; viii) Ms. D’Sena had the opportunity, had she looked to her left immediately upon the light turning green, to see the Genoway vehicle approaching. Because she had an unobstructed view to her left, to a distance of at least 40 metres, she had three full seconds prior to the collision to determine whether or not she should enter the intersection.

She did not check to see if the Genoway vehicle was approaching before entering the intersection, or if she checked she did so well prior to the time that the Genoway vehicle would have been clearly visible to her and at a distance which would afford Ms. D’Sena every reasonable opportunity to choose not to enter the intersection; ix) Had either or both parties been vigilant, Ms. Genoway had five seconds and Ms. D’Sena had at least three seconds to take reasonable steps to avoid this collision. I am satisfied that each party failed to observe the other driver and take reasonable steps to avoid the collision.

The Law

[17] I do not feel the need to cite case authority for the general legal proposition that every operator of a motor vehicle inSaskatchewan owes a duty of care to operate that vehicle in a manner which does not pose an unreasonable risk of danger to others. In theexercise of that duty a certain standard of care is required, and I do not feel the need to cite case law for the further legal proposition thatthe common law standard of care imposed on operators of motor vehicles in Saskatchewan is that of a reasonably prudent, careful, andskilful driver.

If an operator of a vehicle fails to meet this standard of care, and injury or loss results, then they are in breach of their dutyof care and a Court is entitled to conclude that their actions were negligent and assess damages in favour of the aggrieved party. [18] Sections 213 and 235(3) and (5) of The Traffic Safety Act, SS 2004, c. T-18.1 read: 213(1) No Person shall drive a vehicle on a highway without due care and attention.

(2) No person shall drive a vehicle on a highway without reasonable consideration for other persons using the highway. … 235(3) If a traffic light at an intersection displays only an amber light; (

a) the driver of a vehicle facing the light shall stop at the crosswalk, but, if the vehicle cannot be brought to a stop with safety, thedriver may drive cautiously through the intersection, and …

(5) Subject to subsection (6), if a traffic light at an intersection displays only a red light: (

a) The driver of a vehicle facing the light shall stop at the intersection; … [19] This Court can, and often does, look to the Act to identify the appropriate standard of care of drivers on Saskatchewanhighways.

While a breach of these rules of the road do not always determine whether a standard of care has not been met (there may beexceptional circumstances in any given situation) it is clear that a breach of a statutory condition is relevant in establishing a standard ofcare. [See, generally, the decision of Barclay J. in Szekely v Chandler; Szekely v Bauer et al., (SKQB) at para 11]. [20] I see no exceptional reasons why, in the instant circumstances, Ms. Genoway should not have complied with the statutoryprovisions set out above.

I find that she was negligent when she failed to slow her vehicle when presented with the yellow light; that shecompounded her negligence when she failed to bring her vehicle to a stop when presented with the red light; and then compounded hernegligence further when she failed to notice and react to Ms. D’Sena’s vehicle as it entered the intersection. [21] I also find that Ms. D’Sena was negligent in the operation of her vehicle when she failed to observe the approaching Genowayvehicle and chose to enter the intersection when it was unsafe to do so.

Some Saskatchewan drivers incline to the view that when theyare presented with a green light they have the absolute right to proceed regardless of existing circumstances. I wish to dissuadeSaskatchewan drivers from that false assumption. Our Court of Appeal, in Mallin v Clark, (SKCA) dispelled thatnotion some 62 years ago.

Citing both the Ontario Court of Appeal and the Supreme Court of Canada, it noted at paras 10 and 16 of thatdecision: [10] … Authority is not required in support of the principle that a driver entering an intersection, even although he has the right ofway, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.

To put it another way: he ought not toexercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should haveforeseen and avoided. [16] … As was stated in Wills v Swartz Bros. and Hudson supra at p. 634, ‘where there is nothing to obstruct the vision, andthere is a duty to look, it is negligence not to see what is clearly visible’. With deference I must agree with the learned trial judge that thedefendant was negligent in not keeping a proper lookout.

The evidence satisfies me that the defendant, if keeping a proper lookout,should have become aware of the plaintiff’s vehicle and thereupon by the exercise of reasonable and prudent care should have avoidedthe accident.

[ 22 ] I am satisfied that Ms. D’Sena had the opportunity, albeit a lesser opportunity than Ms. Genoway, to avoid the accident had she taken the reasonable step of looking to her left when the light turned green, in order to assure herself that it was safe to enter the intersection, and that had she done so she could have taken some steps to avoid this collision. [ 23 ] Under the circumstances, I find Ms. Genoway’s negligence, compounded not once but twice, to be the predominant cause of the accident and find her to be 75% at fault for the accident. I hold Ms. D’Sena 25% at fault for the accident.

Damages [ 24 ] As a result of the accident Ms. Genoway sustained damages to her ‘total loss’ vehicle which were estimated by SGI, and agreed to by Ms. Genoway, to equate to the sum of $2,277.00. The defendant has not challenged that quantum. As Ms. D’Sena is 25% responsible for the accident I award Ms. Genoway the sum of $569.25. [ 25 ] Ms. D’Sena seeks recovery of the $100.00 that she paid pursuant to her deductible together with further out of pocket expenses she incurred as a result of being denied the use of her vehicle for a period of time.

She also seeks non-pecuniary damages for what she describes as ‘stress’, which she says she suffered following the accident for a period of time, and which she says caused her to be less attentive to her final exams, resulting in her receiving a lower mark the she would otherwise have obtained. [ 26 ] I accept that as a consequence of the accident Ms. D’Sena had to use buses and taxis for a period of time. Even though she did not file proof of purchase of a city bus pass for the one month period that she was without a vehicle, I accept her evidence that she spent $66.00 in that regard.

This common sense solution to her lack of access to a vehicle strikes me as reasonable and I accept her evidence in this regard, absent the provision of proof of purchase. She also seeks the cost of a number of taxi fares that she says that she incurred going to and from work and school. Her evidence on this point is a little more problematic. She can prove some but not all of the taxi fares and she invites the Court to accept her guesstimate in this regard. I am not prepared to accept her guesses but I do accept that she spent at least the sum of $69.78, based on her documentary evidence. [ 27 ] Ms.

D’Sena also indicated that she lost time from work, not only for her shift commencing on the day in question at 4:00 p.m. but a number of others. I accept that she lost her six hour shift on the evening of the accident which equates to six hours of lost work at the rate of $15.00 per hour for a total of $90.00, but I do not accept her remaining guesstimates of how many other shifts she may have lost. [ 28 ] Ms. D’Sena seeks the sum of $500.00 for the stress that she says that she endured following the accident. No medical evidence has been tendered to identify a medical condition following the incident.

There is no evidence that Ms. D’Sena sought the attention of a medical services provider, costs for medication or other treatment. I am satisfied that the problems that she complains of are the normal and incidental consequences that befall most people following an accident and the incidental loss of use of a vehicle for a period of time. Importantly, I am satisfied that a claim for stress, as opposed to inconvenience, is in the nature of a claim for bodily injury, as a physiological response incidental to the motor vehicle accident. Ms.

D’Sena has not led evidence to show that she has had opted out of the no-fault provisions of The Automobile Accident Insurance Act , RSS 1978, c A-35 as amended, and s. 40.1(

b) of that Act reads: Actions for bodily injury prohibited 40.1 Notwithstanding any other Act or law but subject to

Part II.1, this Part,

Part VI and

Part VIII; (

a) no person has any right of action respecting, arising out of or stemming from bodily injuries caused by a motor vehicle arising out of an accident that occurs on or after the day this

Part comes into force; and (

b) no action or proceeding lies or may be commenced in any court respecting, arising out of or stemming from bodily injuries caused by a motor vehicle arising out of an accident that occurs on or after the day this

Part comes into force. In the absence of any proof of injury other than Ms D’Sena’s own characterization of the stress she incurred, and in light of s. 40.1(

b) of the Act , I refuse to make an award for non-pecuniary damages. [ 29 ] Ms. D’Sena has provable losses equal to the sum of $325.78. As Ms. Genoway was 75% at fault for the accident I award Ms. D’Sena the sum of $244.34. [ 30 ] Since insurance matters are ongoing, I choose not to direct set-off of these sums which are due and owing one to the other. I elect not to calculate prejudgment interest as those sums are exceedingly small. As the results are mixed, I make no order as to costs in favour of either party. [ 31 ] Each of the parties are directed to present SGI with a copy of this decision that it may, if necessary, amend its records to reflect the decision of this Court.

_____________________ P. Demong, J