Talaat Saleh - v. -, 2011 SKPC 25

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 025 Date: January 6, 2011 File: 246 of 2009 Location: Regina _____________________________________________________________________________ Between: Talaat Saleh - and - Kent Nicolson _____________________________________________________________________________ JUDGMENT M.HINDS , J _____________________________________________________________________________ Introduction [ 1 ] On February 26, 2009 at approximately 12:45 p.m. the Plaintiff, Talaat Saleh and the Defendant, Kent Nicolson were driving their respective vehicles northbound on Prince of Wales Drive in the City of Regina.

The Plaintiff, Mr. Saleh was driving his 1993 Toyota Privia motor vehicle (herein after referred to as the “Privia”). The Defendant, Mr. Nicolson was driving his Toyota ForeRunner motor vehicle (herein after referred to as the “ForeRunner”). A collision occurred between the two motor vehicles. The front end of Mr. Nicolson’s ForeRunner collided with the rear end of Mr. Saleh’s Privia. It was a cold winter day in Regina. At 1:00 p.m. the temperature was -22 C. The roads were icy. Mr. Saleh claims Mr. Nicolson is soley responsible for the accident. Mr. Nicolson takes the position that Mr.

Saleh is soley responsible for the accident. The Plaintiff’s Evidence

[ 2 ] Prior to collision Mr. Saleh was driving his Privia motor vehicle west bound on a road leading away from the Real Canadian Superstore gas bar and the Real Canadian Superstore parking lot in east Regina. Mr. Saleh brought his vehicle to a stop at a stop sign where the road intersected with Prince of Wales Drive. At that point Prince of Wales Drive has four northbound lanes of traffic. The southbound lanes are separated from the northbound lanes by a cement boulevard. Prior to turning right into the curb lane on Prince of Wales Drive Mr. Saleh looked to his left, for oncoming northbound traffic. Mr.

Saleh testified that he did not see any northbound traffic on Prince of Wales Drive it was “clear to go”. Mr. Saleh then turned right into the most easterly (curb lane) on Prince of Wales Drive and began to drive northbound. He also put his left signal light on as he intended to make a left hand turn onto Victoria Avenue which was a short distance away. He testified that although he engaged his left turn signal he did not make a left lane change. Mr. Saleh testified that the roadway was icy and his vehicle’s traction was weak.

After making the right turn from the Superstore gas bar road onto Prince of Wales Drive Mr. Saleh estimated that he got his speed up to 15 kilometers per hour. Mr. Saleh also checked his rear view mirror and observed Mr. Nicolson’s Forerunner vehicle speeding towards him in the curb lane. Mr. Saleh estimated Mr. Nicolson’s speed to be 50 kmph. [ 3 ] Mr. Saleh testified he remained in the northbound curb lane and traveled just past a light pole (about 20 meters) from his exit to Prince of Wales Drive when Mr. Nicolson hit the left back end of his Privia.

After the collision occurred the two driver’s got out of their vehicles. Mr. Selah testified that Mr. Nicolson said “ I should not be on the road at this time.” [ 4 ] Murray Klatt was called as an expert witness on behalf of the Plaintiff, Mr. Saleh. Mr.

Klatt was qualified to provide opinion evidence in the area of traffic collision reconstruction, which includes testimony respecting: (1) time - distance, being the time it takes for a vehicle to travel a certain distance at a certain speed (2) the stopping distance of vehicles on difference road surfaces (3) driver strategies and tactics and (4) vehicle dynamics and damage analysis. [ 5 ] Mr. Klatt did not observe the collision between Mr. Saleh and Mr. Nicolson. His testimony is based upon his own observations and photographs of the collision area and upon the evidence provided by Mr. Saleh. [ 6 ] Mr.

Klatt took five photographs of the Prince of Wales Drive near Victoria Avenue in Regina on October 13, 2010, which were entered into evidence as Exhibit P 5. Mr. Klatt testified the posted speed limit on Prince of Wales Drive at that location is 50 kilometers per hour. Mr. Klatt also testified that at the point where the road leading from the Superstore gas bar intersects with Prince of Wales Drive there are four northbound lanes of traffic on Prince of Wales Drive. Mr. Klatt also took measurements of certain distances along Prince of Wales Drive. He measured the distance from where Mr.

Nicolson was at a stopped at a traffic signal at the north side of Westfair Road where it intersects with Prince of Wales Drive to the southern edge of the road leading away from the Superstore gas bar, where Mr. Saleh was stopped at a stop sign. This distance is 127 meters (see Exhibit P-6). The width of the Superstore gas bar exit road is 5 meters. The distance from the northern edge of the Superstore gas bar exit road to a street light pole adjacent to Prince of Wales Drive where Mr. Saleh sales the collision occurred is 20.3 meters. Thus, the total distance from Westfair Road where Mr.

Nicolson was stopped at a traffic signal light to the street light pole where Mr. Saleh says the collision occurred is 152.3 meters. [ 7 ] Mr. Klatt testified that given the facts as stated by Mr. Saleh, it would have taken Mr. Saleh 10.1 seconds of steady acceleration, getting up to the speed of 15 kilometers per hour to travel the 20 meters from the stop sign on the gas bar road to the light pole where the collision occurred. [ 8 ] Mr. Klatt then did the following three time distance calculations for the distance of 152 meters (being the distance Mr. Nicolson traveled from Westfair Road to the light pole): (

i) At 40 kilometers per hour a vehicle is traveling at 11.1 meters per second. It would take 13.7 seconds to drive from Westfair Drive to the light pole at 40 kilometers per hour. (ii) At 50 kilometers per hour a vehicle is traveling at 13.9 meters per second. It would take 10.9 seconds to drive from Westfair Drive to the light pole (152 meters). (iii) At 60 kilometers per hour a vehicle is traveling at 16.7 meters per second. It would take 9.1 seconds to drive from Westfair Drive to the light pole at 60 kilometers per hour. [ 9 ] Mr.

Klatt next testified about the friction co-efficient of different road surfaces. He testified that “rink ice” has a friction co- efficient of .05, which is “almost no friction at all”. The friction co-efficient of packed snow and ice (surface of Prince of Wales Drive on the date of the accident) is .25. The friction co-efficient of bare pavement is .7. Mr. Klatt explained that if a vehicle locked up its brakes while traveling forward on bare pavement it would take 700 pounds of force to pull a 1000 pound vehicle forward.

[ 10 ] Mr. Klatt next testified that for a vehicle to slow from 60 to 15 kilometers per hour it would take 5.1 seconds and would require 53.3 meters of braking. If a vehicle slowed from 50 kilometers per hour to 15 kilometers per hour it would take 4 seconds and would require 36 meters of braking. If a vehicle slowed from 40 kilometers per hour to 15 kilometers per hour it would take 2.8 seconds and would require 21.5 meters. [ 11 ] Bringing a vehicle to a stop involves two distinct phases (1) driver perception/reaction time and (2) skidding.

Perception/reaction involves the driver seeing something, identifying it as a problem and reacting to it. For a sober rested person this process takes approximately 1.5 seconds. Skid distance is the distance it takes for the vehicle to come to a stop after the brakes are applied. This distance will vary depending on the road surface. [ 12 ] If a driver is traveling at 50 kilometers per hour (a velocity of 13.9 meters per second) and takes 1.5 seconds to react to a situation ahead of him, (13.9 meters/second x 1.5 seconds) he travels a distance of 20.8 meters.

If the same driver traveling at 50 kilometers per hour then applies his brakes on bare pavement (with an estimated coefficient of friction of .7) his vehicle would take a further 14.1 metres to stop (the skid distance). Thus, the total stopping distance for a vehicle traveling on pavement at 50 kilometers per hour and applying the brakes would be 20.8 meters (perception/reaction time) plus 14.1 meters (skid distance)for a total of 34.9 meters. [ 13 ] The skid distance on ice/snow is greater than on bare pavement. Mr.

Klatt testified that estimated coefficient of friction on a road surface consisting of packed snow and ice is 0.25. He testified that the same vehicle traveling at 50 kilometers per hour (posted speed limit on Prince of Wales Drive) on a surface with packed snow and ice has a skid distance of 39.4. Thus, the total stopping distance for a vehicle traveling on packed snow and ice at 50 kilometers per hour and applying the brakes would be 20.8 meters (perception/reaction time) plus 39.4 meters (skid distance)for a total of 60.2 meters. [ 14 ] In

summary, Mr. Klatt testified the difference between the total stopping distance of a vehicle traveling at 50 kilometers per hour on bare pavement is 34.9 meters as compared to the 60.2 meters on packed snow and ice illustrates why it is important for drivers to reduce their speed when driving on a slippery surface. [ 15 ] Mr. Klatt also testified that a four wheel drive vehicle such as Mr. Nicolson’s Forerunner can accelerate more rapidly that a two wheel drive vehicle such as Mr. Saleh’s Privia. He added that a four wheel drive vehicle can not stop any faster than a two wheel drive vehicle. [ 16 ] Mr.

Klatt’s testimony is based on several assumptions. The first assumption is that prior to turning north onto Prince of Wales Drive, Mr. Saleh did not see any vehicles south of him to Westfair Drive. The second assumption is that Mr. Saleh’s Privia got up to the speed of 15 kilometers per hour prior to being hit from behind by Mr. Nicolson. The third assumption is that the collision took place near the light pole. [ 17 ] Despite providing the court with a great deal of information, Mr. Klatt did not express an opinion as to the speed of Mr. Nicolson’s vehicle prior to the collision. Mr. Klatt did state that if Mr.

Nicolson was traveling at 40 kilometers per hour he was not keeping a proper lookout for a vehicle pulling out onto Prince of Wales Drive. Mr. Klatt also stated that if Mr. Nicolson was traveling at 50 kilometers per hour or 60 kilometers per hour he was of the view that these speeds were too fast for the road conditions of packed snow and ice, as Mr. Nicolson would not have enough time to react and apply his brakes in order to avoid a collision with the slower moving vehicle driven by Mr. Saleh or alternatively, to change lanes. [ 18 ] Mr.

Klatt also testified that a driver observing a left hand turn signal engaged on the vehicle in front of them would expect that vehicle to change lanes.

The Defendant’s Evidence [ 19 ] Mr. Nicolson testified that prior to the collision he was stopped at a red light at the intersection of Westfair Road and Prince of Wales Drive. When the light turned green he proceed to drive his Forerunner in a northbound direction on Prince of Wales Drive. He testified that within four to five seconds he was traveling at a speed of approximately 40 kmph. He remained at this speed, due to the icy conditions. He proceeded northbound in the curb lane. Mr. Nicolson first noticed the Privia when he was approximately fifty meters from the gas bar exit.

He testified that at that time he hoped Mr. Saleh would remain stopped at the stop sign. He next observed Mr. Saleh pull out onto Prince of Wales Drive from the gas bar exit into the curb lane and proceed to accelerate and “fish tail” between the curb lane and the adjacent traffic lane. Mr. Nicolson thought that he was approximately 10 metres away from the gas bar exit when Mr. Saleh pulled onto Prince of Wales Drive. Mr. Nicolson testified that he immediately applied his brakes and slid into the back end of the Privia. Mr.

Nicolson maintains that at the point of impact between the two vehicles, his Forerunner was fully within the curb lane while the left front portion of Mr. Saleh’s Privia had crossed over into the traffic lane west of the curb lane. Mr. Nicolson testified that he thought his speed of 40 kmph was safe for the road conditions. Mr. Nicolson did not expect Mr. Saleh to pull out from the stop sign onto Prince of Wales Drive when he did. Mr. Nicolson expressed the view that Mr. Saleh made a right hand turn onto Prince of Wales when it was unsafe to do so, causing his Forerunner to collide with Mr. Saleh’s Privia. Mr.

Nicolson testified he did not attempt to change lanes as Mr. Saleh’s vehicle was fish tailing between the two lanes. [ 20 ] Mr. Nicolson testified in chief that when Mr. Saleh pulled onto Prince of Wales Drive he was focused on avoiding a collision with Mr. Saleh and did not observe a left turn signal light engaged on the Privia. Mr. Nicolson conceded on cross examination that Mr. Saleh’s left signal light may have been on. [ 21 ] On cross examination he testified that after the accident he told Mr.

Saleh that he wished he wasn’t on the road that day as it was very cold outside, the roads were icy and he had just been involved in an accident. Mr. Nicolson added “In hindsight, I wish I hadn’t been on that road”. ISSUE Has the plaintiff proved on a balance of probabilities that the defendant is responsible for the accident in whole or in part?

ANALYSIS [ 22 ] The following subsections of The Traffic Safety Act S.S. c.T-18.1 (hereinafter referred to as “the Act”) apply to the fact situation before the court: Driving with due care required 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. Rules re traffic lanes 228(1) If a highway is divided into traffic lanes, the following rules apply: (

a) no driver of a vehicle shall fail to drive as nearly as is practicable entirely within one lane or shall drive from that lane to another unless it is safe to do so; [ 23 ] In the present case, it was necessary for both Mr. Saleh and Mr. Nicolson to keep a proper lookout and to drive their vehicles with due care. I am of the view that neither did so. [ 24 ] I found Mr. Nicolson provided his evidence in a reliable and accurate manner. I accept Mr. Nicolson’s evidence that he was driving northbound on Prince of Wales Drive at the speed of 40 kilometers per hour. I also accept Mr.

Nicolson’s evidence that he first noticed Mr. Saleh’s Privia when he was approximately fifty meters from the gas bar exit. Mr. Nicolson candidly testified that when he saw Mr. Saleh, he hoped Mr. Saleh would remain stopped at the stop sign. A more prudent driver would not have relied on such a hope and would have driven with greater care in these circumstances. Had Mr. Nicolson taken due care and allowed for the possibility that Mr. Saleh might pull out onto Prince of Wales Drive, he could have slowed his vehicle immediately upon seeing Mr. Saleh or

alternatively he could have made a lane change. He did neither. Rather he proceeded forward at 40 kilometers per hour in the curbside lane on the snow packed icy roadway until he saw Mr. Saleh turn onto Prince of Wales Drive. As a result of my findings, I am of the view that Mr. Nicolson was negligent in the operation of his motor vehicle and that his negligence contributed to the collision which occurred between the two vehicles. [ 25 ] I find that Mr. Saleh also drove his vehicle without due and attention. I do not accept Mr.

Saleh’s evidence that prior to making a right hand turn on Prince of Wales there was no northbound traffic on Prince of Wales Drive. I find Mr. Saleh was mistaken on this point and that he failed to see Mr. Nicolson’s vehicle approaching him from the south. I am of the view that given the proximity of Mr. Nicolson’s approaching vehicle and the slippery road conditions Mr. Saleh proceeded from a stop sign and made a right hand turn onto Prince of Wales Drive when it was unsafe to do so. In addition, once Mr.

Saleh pulled out onto Prince of Wales Drive from the gas bar exit into the curb lane he attempted to accelerate on the packed snow and ice which caused his vehicle “fish tail” or move between the curb lane and the adjacent traffic lane with his left hand signal light engaged. In doing so, I find that Mr. Saleh was not driving entirely within his own curbside lane in contravention of subsection 228(1) of the Act. As a result of my findings I am of the view that Mr.

Nicolson was negligent in the operation of his motor vehicle and that his negligence contributed to the collision which occurred between the two vehicles. [ 26 ]

Section 2 of The Contributory Negligence Act, R.S.S. 1978, c. C-31 reads as follows: 2(1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault, but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.

(2) Nothing in subsection (1) operates so as to render any person liable for any damage or loss to which his fault has not contributed. [ 27 ] In this case having regard to all the circumstances of the case I do not find it possible to establish different degrees of fault as between the two parties. As a result I therefore find each party to be fifty percent 50% liable for the accident. No costs are ordered. ________________________ M. Hinds, J