Sylvia Kalyn - v. -, 2012 SKPC 155

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 155 Date: September 20, 2012 File: SC#316 of 2011 Location: Saskatoon _____________________________________________________________________________ Between: Sylvia Kalyn - and - Lance Schuman Self For the Plaintiff Self For the Defendant _____________________________________________________________________________ JUDGMENT M.L.

GRAY , J _____________________________________________________________________________ BACKGROUND [ 1 ] This claim arises from a motor vehicle collision which the Plaintiff alleges was caused by the Defendant’s negligence. She further seeks an order finding the Defendant entirely responsible for the damage caused and the costs of bringing this action. The parties are in agreement with the circumstances leading up to and including the collision. The only dispute is with respect to who was at fault.

EVIDENCE Sylvia Kalyn [ 2 ] On the morning of April 27, 2011 at about 7:30 a.m., the Plaintiff left the downtown area of Saskatoon and drove north on Warman Road. She took the exit onto Circle Drive to go west toward Millar Avenue and the north industrial area of the city where she worked.

When the end of the exit ramp which she took meets Circle Drive, the lane widens slightly and continues under the Warman Road overpass. [ 3 ] The parties agree that although the road widens slightly, there are no signs or markings creating two separate lanes; however, two lines of vehicles tend to form particularly during peak traffic times. Vehicles travelling straight west on Circle Drive are advised by a merge sign that vehicles on the Warman Road exit ramp will be merging into their lane.

It was in this westbound through lane of Circle Drive that the Defendant was travelling. [ 4 ] Rather than fully merge onto Circle Drive from the exit ramp, the Plaintiff joined a line of vehicles moving slowly along the right-most side waiting to manoeuver into position to turn right onto Millar Avenue. In order to accomplish that turn, she had to merge with another line of traffic formed by southbound vehicles which exited Warman Road to go west on Circle Drive.

That line occupies the extreme right lane which must turn right onto Millar. [ 5 ] The line which the Plaintiff joined was long and moving very slowly as they waited to join the lane to turn onto Millar Avenue. The part of the road occupied by the Plaintiff and other vehicles in her line of traffic was slightly wider than usual, leaving room for two lines of ordinary-sized vehicles to form. Thus, average-sized vehicles coming from the east and continuing west on Circle Drive, could drive past the waiting line of vehicles and continue on their way. Mr.

Schuman was driving one of those westbound vehicles, but it, unfortunately, was wider than average. As a result, the ladder on the side of the box of the truck which he was driving struck the driver’s side mirror of the Plaintiff’s car. The truck continued on its way. [ 6 ] The Plaintiff pursued the truck and eventually located it on Highway 11 and signalled the driver to stop. The Plaintiff spoke to the Defendant who was operating the truck, and they exchanged names and insurance particulars. [ 7 ] Replacement of the mirror and repair of the other resulting damage cost $999.50.

Lance Schuman [ 8 ] The Defendant was driving through Saskatoon on Circle Drive in a gravel truck with a ladder positioned on the side of the box. At its widest, the truck is 11 feet and 7 inches. He has a permit to haul wide loads and was under the 12 foot limit which would require that he be accompanied by pilot vehicles. When he reached the point where the Warman Road exit ramp met Circle Drive, he encountered the Plaintiff’s line of vehicles on his right.

He went straight on, following a line of traffic which was continuing westbound on Circle across Millar Avenue. [ 9 ] The Defendant says and the Plaintiff does not dispute, that he was driving about 40 kph with the flow of traffic in his lane. When he passed the Plaintiff’s line of vehicles, unbeknownst to him, the ladder attached to the box of his truck sideswiped the Plaintiff’s car. He only became aware of the collision when the Plaintiff stopped him on the highway.

ISSUE Was the Defendant negligent in the operation of his motor vehicle as asserted by the Plaintiff and thus liable for the damage caused? ANALYSIS [ 10 ] There are no clearly marked lines indicating where the merge lane for northbound traffic off Warman Road ends. It appears that the purpose of the slightly wider single lane is to give vehicles using the exit ramp time to merge into the through lane on Circle Drive.

Drivers pull to the far right out of courtesy to allow vehicles coming from the east and intending to continue straight on Circle Drive to go by and thus prevent traffic jams. [ 11 ] It is also worth noting that farther on, solid white meridian lines prohibit vehicles in the line in which the Plaintiff was waiting from entering the turn lane to Millar Avenue until a certain point. Prior to that point the lane is used for vehicles using the southbound exit ramp. The southbound exit ramp has a distinct lane and does not merge with through traffic on Circle Drive.

Drivers coming off the southbound ramp not wanting to turn right onto Millar Avenue must execute a left lane change in order to continue west on Circle Drive. [ 12 ] At the point where all other vehicles, i.e. those coming from the east on Circle Drive and those merging from the northbound exit ramp from Warman Road, are allowed to enter the right turn lane, their lane has narrowed to the usual size and there is no longer room for two lines of vehicles to proceed side by side.

This would suggest that the Plaintiff’s line of vehicles had crossed the solid meridian markings in order to make room for the through traffic to go past. If the line of traffic in which the Plaintiff found herself had fully merged onto Circle Drive, rather than hug the right side, the through traffic could not have gone by, thus slowing the flow of traffic.

All of this supports the proposition that there is one lane which widens to allow traffic to merge and it is only driver courtesy which creates two lanes of vehicles. [ 13 ] The question is whether the evidence establishes, on a balance of probabilities, that either party operated a vehicle in a negligent fashion.

On the evidence, the damage to the Plaintiff’s vehicle was caused by the Defendant passing the Plaintiff in the same lane. [ 14 ] Section 213(1) of The Traffic Safety Act 2004, c.T-18.1 provides: Driving with due care required 213(1) No person shall drive a vehicle on a highway without due care and attention. [ 15 ] According to R. v.

Dookhun , 2010 SKQB 100 , in order to establish the offence of driving without due care and attention: ...the Crown must prove beyond a reasonable doubt that the defendant’s manner of driving, viewed objectively, is a departure from the standard a reasonable and prudent driver would have observed in all the circumstances. The Crown must show a sufficient departure from the standard of a prudent and reasonable driver to make the driving “deserving of punishment.” [ 16 ] The Defendant is not charged with an offence under The Traffic Safety Act, but the rules of the road do apply in determining

whether there was negligence. The Defendant passed the Plaintiff’s vehicle when it was in front of him and stationary. Although the traffic ahead of him could safely pass, he was obliged to take care that his wider vehicle could do the same. It is true that the Defendant remained in his proper lane throughout and that the vehicles in the Plaintiff’s line should have completely merged in order to form one lane of traffic rather than the two that were created for the purpose of expediting the flow. Despite this, the Plaintiff was within the confines of a lane and in front of the Defendant.

The Defendant thus had a duty to pay due care and attention to that line of vehicles before he passed by them. It is evident from the damage to the Plaintiff’s vehicle that the Defendant’s truck was too wide to do so safely. In other words, the Defendant was in the best position to avoid the collision and failed to exercise the proper care to prevent it. CONCLUSION [ 17 ] The Court is satisfied, on a balance of probabilities, that the Defendant failed to pay due care and attention as required by The Traffic Safety Act while passing the Plaintiff’s vehicle.

He was thus negligent in the operation of his motor vehicle and 100 percent at fault for the accident. [ 18 ] Accordingly, the Plaintiff is entitled to any costs associated with issuing of this claim and of serving documents. The Court further orders that a copy of this judgment be provided to the insurer, Saskatchewan Government Insurance. ___________________ M.L. Gray, J