Robert Martyn - v. -, 2015 SKPC 034

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 034 Date: February 23, 2015 File: 14-0410 Location: Prince Albert _____________________________________________________________________________ Between: Robert Martyn - and - Marva Lubyk Appearing: Robert Martyn For the Plaintiff Marva Lubyk For the Defendant DECISION M. M. BANIAK , J INTRODUCTION: [ 1 ] The Plaintiff, Robert Martyn, claims against the Defendant, Marva Lubyk, for the insurance deductible payable as a result of a motor vehicle accident.

[ 2 ] The Plaintiff asserts that the Defendant’s negligence was the sole cause of the accident. The Defendant denies being at fault. FACTS: [ 3 ] The Plaintiff testified that on February 27, 2014, at approximately 1:00 p.m. he was proceeding north on 4 th Avenue in the City of Prince Albert. The car in front of him (the Defendant’s vehicle) was travelling very slowly – perhaps five kilometres an hour or less. He believed that she was about to turn into the South Hill Mall. [ 4 ] Once the Defendant drove past the turn-off to the mall and continued to drive very slowly the Plaintiff decided to pass her.

As he was in the process of completing the passing manoeuvre the Defendant turned left and struck his vehicle. [ 5 ] He testified that he was not going very fast when he was attempting to pass her. The road was icy and rutted.

He testified that he had followed her for some 200 feet before deciding to pass. [ 6 ] The street was described by the Plaintiff as a narrow residential street that has one lane each way and parking on the sides. [ 7 ] According to him, the Defendant did not signal her intention to turn left. [ 8 ] The Defendant testified that she was proceeding north on 4 th Avenue going to a friend’s place.

In her words, “when I saw the house I put the signal light on and I was going to turn into the driveway.” [ 9 ] As she was executing the left hand turn she collided with the Plaintiff. [ 10 ] During cross-examination, she stated that as soon as she saw the address she signalled and that she would have had to turn into the next or neighbouring driveway as she had by then passed the house that she was going to. [ 11 ] She estimated that her speed was about ten kilometres per hour, and that when she decided to turn, the Plaintiff was still behind her. [ 12 ] During the final summation, the Plaintiff argued as follows: I pulled behind a slow moving vehicle.

Icy rutted street. I felt that I had to pass her. She did not signal or shoulder check. She did not do anything to avoid the accident… my passing was legal and responsible. She was on an unfamiliar road and did not pay attention. She was looking for an address. She didn’t see me. [ 13 ] For her part, the Defendant argued that: I grew up in Prince Albert. I am familiar with the street, I followed rules. I signalled. I shoulder checked. He should have known that I was going to turn when I was going too slow. It wasn’t safe to pass.

ANALYSIS: [ 14 ] “Negligence” is defined in Black’s Law Dictionary as “the omission of that care which a man of common prudence usually takes of his own actions.”

[15] The Shorter Oxford Dictionary defines “negligence” as follows: 1. Want of attention to what ought to be done or looked after; lack of proper care in doing something. 2.

An insistence or act of inattention or careless behaviour. [16] “Contributory negligence” is described as “…any want of ordinary care on the part of the person injured, (or on the part ofanother whose negligence is imputable to him) which combined and concurred with the defendant’s negligence, and contributed to the injury as a proximate case thereof, and as an element without which the injury would not have occurred.”[1] [17] Simply put, it is the negligent act of the Plaintiff, which combined with the negligent act of the Defendant, becomes theproximate cause of the injury or damage. [18] Relevant sections of The Traffic Safety Act, c T-18.1, SS. [19]

Section 2(

k) of The Traffic Safety Act defines highway as “a road, parkway, driveway, square or place designed and intendedfor or used by the general public for the passage of vehicles…” [20]

Section 213 of The Traffic Safety Act: 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. [21] Section 213(3) of The Traffic Safety Act requires that a driver turning left must yield to a vehicle that is approaching from theopposite direction and not execute the turn until that vehicle has passed. [22] In Swenson v Saskatoon (City), (SK KB), [1986] 48 Sask R 266, the Court of Queen’s Bench held asfollows: In determining whether it is safe to turn, the driver must make himself aware of and weigh a variety of circumstances… while left turnsare made innumerable times every day, they frequently involve a complex decision and require considered, albeit rapid judgment.

As well, the relevant time is immediately prior to the commencement of the turn. It avails the driver nothing to say that he misjudged thespeed or distance and didn’t realize the true situation until he was into the turn. In the event of uncertainty, the turn must not be started. [23] Section 225(1) of The Traffic Safety Act addresses the following “too close” issue and states as follows: 225(1) No driver of a vehicle on a highway shall follow another vehicle more closely than is reasonable having regard to: (

a) the speed of another vehicle; (

b) the amount and nature of traffic on the highway; and (

c) the condition of the highway. [24] When interpreting this section’s predecessor, the Saskatchewan Court of Appeal in Kosinski v Snaith and Dawson TransportLtd., (SK CA), [1983] 25 Sask R 73, held as follows: There is a clear and well defined standard of care imposed upon the driver of a vehicle which follows another. He must keep areasonable distance behind the vehicle ahead; he must keep his vehicle under control at all times; he must keep an alert and properlookout; and he must proceed at a speed which is reasonable, relative to the speed of the other vehicle.

He must anticipate that, forwhatever reason, the vehicle ahead may stop. He need not anticipate the reason. He must proceed with that care which will enable him

to avoid colliding with it. [ 25 ] Our Court of Appeal adopted the reasoning of a much older decision of the Quebec Court of Appeal in the case of Montreal Tramways Co. v Deslauriers, [1952] CC 5 No 1133 at 252, wherein it was held that: The underlying principle is one of common sense; the driver of the vehicle ahead – in this case a motor vehicle – is required to keep a careful lookout ahead and can do no more than have a casual look to his rear. He warns the vehicle behind him of proposed change of pace or direction in the usual manner and can do no more.

When therefore there is a collision between two vehicles moving in the same direction there is a natural presumption of fact that, failing an explanation, the driver of the vehicle in the rear is guilty of failure to keep reasonable distance behind the leading car or govern his speed by the speed of the leading vehicle. He must keep his vehicle under control at all times. [ 26 ] At the same time it must be acknowledged that the driver of the vehicle in the rear will not always be at fault for a collision with a vehicle in front of him.

Similarly, failure to comply with The Traffic Safety Act does not automatically render the driving negligent – it is simply one factor to consider in deciding whether a driver acted or drove negligently. [ 27 ] In this case, the Plaintiff followed a slow-moving vehicle for some 200 feet before he decided to pass. I do not believe that this was sufficiently long to determine the reason for her reduced speed. Slow speed may be due to poor road conditions; poor visibility; or the driver’s inability to locate a street sign or residential address.

In this instance it was incumbent for the Plaintiff to exercise some prudent judgment and driving etiquette. [ 28 ] Generally, a vehicle should not travel so slow as to impede the normal flow of traffic. However, there are times when a vehicle will reduce its speed when circumstances warrant – and, at such times the vehicle behind should not attempt to pass until it determines, firstly, the likely reason for the reduced speed and, secondly, that it is safe to pass. [ 29 ] The Plaintiff, I find, became annoyed by the Defendant’s slow speed and made the hasty decision to pass her.

His vehicle’s close proximity to the Plaintiff’s vehicle did not allow him to see the Defendant’s signal light if the same was engaged at the last moment. [ 30 ] The Defendant, for her part, by slowing down and not engaging the signal light until she actually passed her intended turn-off and attempted to turn left at the next available driveway did not transmit or signal her intention in a timely manner. Her last moment decision to turn left occurred at the very instant that the Plaintiff decided to pass her.

This action resulted in the collision and the attendant damage. [ 31 ] It is understandable that each party feels or believes that the other was at fault. However, examining the evidence, and the sequence of events, as well as the demeanour of the parties at trial, I find that both parties were equally at fault for the accident: the Plaintiff for being annoyed, impatient and hasty in his decision to pass before ascertaining that it was safe to do so; and the Defendant for failing to engage her signal indicator in a timely manner so as to transmit her intention to anyone behind her that she was going to turn left.

It is also probable that she did not notice the Plaintiff attempting to pass her when she turned left. [ 32 ] As a consequence, I find both parties to be equally at fault for the resulting accident. [ 33 ] Dated this 23 rd day of February, A.D. 2015, at the City of Prince Albert, in the Province of Saskatchewan. ______________________ M. M. Baniak, J