Weber v. Wolf Date:, 2013 BCPC 329

Citation: Weber v. Wolf Date: 20131211 2013 BCPC 0329 File No: 70433 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MANFRED WEBER CLAIMANT AND: LYNN WOLF and CARMEN WOLF DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: M. Weber Counsel for the Defendants: R. G. Dempsey Place of Hearing: Surrey , B.C.

Dates of Hearing: May 30, December 9, 2013 Date of Judgment: December 11, 2013 Introduction [ 1 ] On October 12, 2010 the Claimant Manfred Weber and the Defendant Lynn Wolf (driving a vehicle owned by and registered to the Defendant Carmen Wolf) were involved in a two car motor vehicle accident occurring on the north side of Highway No. 1 at the 232 nd Street Exit, in the District of Langley, in the Province of British Columbia. The Defendants’ vehicle struck the Claimant’s vehicle from behind. [ 2 ] The Claimant was assessed by the Insurance Corporation of British Columbia (ICBC) as being wholly at fault for the accident because he had entered onto the

section of the road where the collision occurred from a “clover leaf” piece of road which was controlled by a yield sign. In the opinion of the ICBC adjusters, the collision occurred because the Claimant failed to properly yield the right of way to the Defendants’ vehicle. [ 3 ] The Claimant disputes this conclusion. He takes the position that he entered onto this stretch of road giving the Defendant driver plenty of time to slow down and avoid the collision.

He argues that since she struck him from behind after he was established in his lane of traffic, she is at fault for the accident and he asks this court for a finding that the accident was the fault of the Defendant driver. [ 4 ] At the trial of this matter five witnesses were called: the two drivers involved, two ICBC adjusters and a police officer who attended at the scene following the accident. Following is a

summary of the evidence heard, a

summary of the applicable law and the application of that law to these facts.

Summary of Evidence [ 5 ] The diagram below shows the 232 nd Street Exit on Highway 1 (the Trans-Canada Highway). For traffic heading west toward Vancouver, there is a portion of road adjacent to the highway (separated from the highway by a concrete barrier) on which cars exiting the highway and cars entering the highway must travel together along the same stretch of road. To prevent collisions, cars entering onto that shared roadway intending to proceed west onto the highway have a yield sign before going onto that shared roadway. Cars coming off of the highway have the right-of-way.

They have no yield sign, but they are advised to reduce their speed from the posted speed limit of 100 km/hr to a speed of 50 km/hr. [ 6 ] On October 12, 2010 at around 7:25 in the morning, the Defendant driver was driving west on Highway 1 and was leaving the highway, intending to head south on 232 nd street with an ultimate destination of the Tsawaasen Ferry Terminal. The Claimant was planning on getting on to the highway to drive west to his home in Coquitlam, BC. He testified that he stopped at the yield sign to assess oncoming traffic.

He noticed the Defendants’ vehicle and concluded that he had ample time to drive onto the shared road safely without coming into contact with the Defendants’ vehicle. In his evidence in chief, he testified “I could see the Defendant in the – in the – as she exited the highway.” [ 7 ] In a written statement which the Claimant gave to the insurance adjustor on October 13, 2010, the Claimant once again stated that he saw the Defendant’s vehicle exit the highway while he was at the yield sign.

In the statement, the Claimant acknowledged that he saw the Defendant’s vehicle leave the highway when he was at the yield sign. Rather than wait for it to pass, he drove past the yield sign, onto the shared stretch of highway. In his statement he said: “Before getting to the onramp I approached a yield sign. I was travelling at about 40 km/h at the time. I looked to my left and saw a gray car that was heading east bound and had just come off Highway 1. The car was about 100 metres from me at the yield sign. I then past (sic) the yield sign and drove east bound along the on ramp.”

[8] The Claimant drove onto the shared road and was struck from behind on the shared roadway. The damage to the Claimant’svehicle is entirely at the back of the vehicle, on the bumper of his truck on the driver’s side. The Defendants’ vehicle is damaged on thefront, on the passenger’s side of the vehicle.

It is clear that the front of the Defendants’ vehicle had struck the back of the Claimant’svehicle and that more of the passenger’s side of the Defendant’s vehicle came into contact with the left side of the back of the Claimant’svehicle at the time of impact. [9] The parties’ testimony is at odds as to precisely where on the roadway the impact occurred. The Claimant testified that he had driven under the 232nd Street overpass before the collision occurred. If this is true, then by that point he would have been established inhis lane and the collision would have occurred due to the fault of the Defendant.

The Defendant driver testified that the collision tookplace before the Claimant had driven under the overpass and if that is true, then this supports the notion that the Claimant failed to yieldthe right of way to the Defendant. This is a significant distinction. [10] Constable Christa Ballard of the Royal Canadian Mounted Police attended to the scene of the accident shortly after it occurred.She testified that when she arrived at the scene at 7:28 a.m., the vehicles were positioned past the overpass. This is not determinative ofmuch, because the parties would have had to drive forward to pull off of the road.

Constable Ballard spoke to the two drivers. Shetestified that at that time, the Claimant told her that the Defendant “did not slow to let him in.” The Defendant driver told the Constablethat the Claimant had “cut her off.” Applicable Law [11] Section 173(2) of the Motor Vehicle Act places an obligation on a driver facing a yield sign to “yield the right of way to all othertraffic.” The Supreme Court of Canada in Walker v. Brownlee and Harmon (SCC), [1952] S.C.J. No. 56 set out howthe rules of the road respecting right of way are to be applied.

The court ruled that when a driver proceeds through a yield sign and isinvolved in a collision with another vehicle having the right of way, that driver is referred to as being in the “servient position.” The lawrequires that the driver in the servient position must prove that the other driver had sufficient opportunity to avoid the accident in a waythat a reasonably careful and skilful driver would have availed himself or herself.

The driver who has the right of way (called the driverin the “dominant” position) must not exercise his or her right of way if the circumstances are such that the result of doing so will be acollision which the dominant driver reasonably should have foreseen and avoided Where there is any doubt as to who was at fault for theaccident, the driver who was in the dominant position is entitled to the benefit of any doubt on the question of liability. [12] The Claimant is also required to prove that the accident was the fault of the Defendants by virtue of the burden of proof whichfalls on the Claimant in a civil case.

The burden of proof in a civil case rests with the Claimant to prove his case on a balance ofprobabilities. As the Supreme Court of Canada stated in F. H. V. McDougall 2008 SCC 53 , [2008] 3 S.C.R. 41, at para. [49]: “[I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.” [13] In a motor vehicle case such as this, the Supreme Court of British Columbia has held (in McIlvenna v.

Viebig 2007 BCSC 288)that the burden of proof is on the Claimant to show that the Defendant driver could reasonably have avoided the collision whichoccurred. Has the Claimant Proven that the Defendant is Liable? [14] The Claimant is presumed at law to be liable for the collision by virtue of the fact that he entered onto the roadway where thecollision occurred in the servient position. He can rebut this presumption by proving that the accident was unavoidable for reasonscaused by the Defendant driver.

In proceeding past the yield sign, it must be clear that it was safe for the Claimant to do so and that hecould enter onto the roadway without putting other drivers at risk. [15] From his own evidence the Claimant admits to being aware of the presence of other motorists using the highway and travellingin the direction of the roadway that he was about to enter onto. Specifically, he admits that he saw the Defendant when he was at theyield sign. He also estimates that when he was at the yield sign, the Defendant was off the highway and was about 100 metres awayfrom him, approximately the length of a football field.

He knew that the Defendant had been travelling at highway speed and wasrequired to decelerate. Because the posted speed for the stretch of roadway was an advisory speed, and because drivers who had beentravelling at highway speed would not immediately be able to decelerate to the suggested speed of 50 km/hr, it was not reasonable forhim to assume that those drivers having the right of way would be able to immediately achieve the advisory speed.

The Claimantpresumed that, even though drivers leaving the highway had the right of way, 100 metres gave him a safe amount of distance to proceedin front of the oncoming vehicle. This assumption on his part appears to be based on the belief that the other vehicle would have toreduce its speed to 50 km/hr within those 100 metres. This was not a reasonable assumption on his part. [16] On the Claimant’s own evidence, he noticed the Defendant’s vehicle 100 metres away when he was at the yield sign. He didnot yield the right of way to that vehicle and a collision resulted.

Prior to the collision, the Defendant was in the dominant position,having the right of way, and the Claimant was in the servient position. Where there is any doubt as to who was at fault for the accident,as there is in this case, the law presumes that driver who was in the dominant position is entitled to the benefit of any doubt on thequestion of liability. [17] The evidence is in conflict as to where the two vehicles were positioned when the collision occurred.

The Claimant testified thatthe accident took place past the underpass, while the Defendant driver testified that the accident took place before the cars drove underthe underpass. The Defendant driver’s version is more likely for several reasons. Firstly, it is unlikely that the Claimant would havetravelled as far as the underpass before being struck if, as he states, the Defendant’s vehicle was only 100 metres away and travellingclose to highway speed when he was at the yield sign. Secondly, his statement to Constable Ballard that Defendant did not slow down to

let him in suggests an error of judgement on his part about whether or not he could safely proceed through the yield sign. [ 18 ] Much of the Claimant’s evidence and argument was focused on his perception of how he was dealt with by the ICBC adjustors and how it was determined for insurance purposes that he was at fault for the accident. In this case two of the witnesses called by the Claimant were ICBC adjusters who determined that the Claimant was at fault for this accident. Their finding is not determinative of the issue and their decision on liability is not binding on this court.

However it is worth noting that the Claimant was very critical of the adjusters for their finding. The adjusters were simply applying the law correctly. The only two witnesses to the accident gave contradicting versions and it was unclear who was at fault. Under such circumstances, the adjusters gave the benefit of the doubt to the Defendant driver, who was in the dominant position, as the law required them to. The Claimant’s antagonism towards the adjusters was unjustified.

Order [ 19 ] The Claimant has failed to prove on a balance of probabilities that the Defendant was at fault for the accident in which the parties were involved in on October 12, 2010. I find that the Claimant is at fault for the accident due to his failure to yield the right of way to the Defendant’s vehicle, as he was required to do pursuant to section 173(2) of the Motor Vehicle Act of British Columbia . [ 20 ] Accordingly, the Claimant’s claim is dismissed. The Defendants are entitled to their costs to be assessed by the Registrar pursuant to Rule 20(3) and (4) of the Small Claims Rules .

Dated at the City of Surrey, in the Province of British Columbia, this 11 th day of December, 2013. ________________________________ The Honourable Judge K. D. Skilnick