Abay v. Keung and Yuen

2006 BCSC 1236 Abay v. Keung and Yuen

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Abay v. Keung and Yuen, 2006 BCSC 1236 Date: 20060814 Docket: M032863 Registry: Vancouver Between: Luel Niguese Abay Plaintiff And Yeung Wai Keung and Yeung Yuen Defendants Before: The Honourable Mr. Justice Cohen Reasons for Judgment Counsel for the plaintiff M.E. Campbell Counsel for the defendants P.T. Gordon Date and Place of Trial: June 19 - 21, 2006 Vancouver, B.C. I. THE ACCIDENT [1] The plaintiff and defendant driver, Mr. Wai Keung Yeung, were involved in a motor vehicle accident on June 13, 2001, at the intersection of Nanaimo Street and Turner Avenue in the City of Vancouver. [2] The Plaintiff was driving his 1991 Acura Integra northbound on Nanaimo Street and making a left hand turn onto Turner Avenue when the 1987 Dodge Caravan driven by the defendant southbound on Nanaimo Street struck the middle of the passenger's side of the plaintiff's vehicle. [3] Nanaimo Street is a major thoroughfare, with each side having two northbound and two southbound lanes for travel separated by a single solid yellow centre line, and a parallel parking lane. I shall hereinafter refer to the travel lane next to the centre line as the outside lane, the next travel lane as the inside lane and the parking lane as the curb lane. The two northbound and two southbound travel lanes are separated by divided white lines; there is no dividing

line between the inside and curb lanes. Turner Avenue intersects with Nanaimo Street at a 90 degree angle and has single lanes for eastbound and westbound traffic. At the intersection of Nanaimo Street and Turner Avenue, the traffic on Turner Avenue is controlled by stop signs. There are no traffic control devices on Nanaimo Street at this location. [4] Each party blames the other for the accident. This decision will deal with liability only. II. SUMMARY OF THE EVIDENCE IN THE PLAINTIFF'S CASE 1. The Plaintiff [5] The plaintiff, who was on his way to a friend's home, was alone in his vehicle at the time of the accident, which took place at about 8:15 p.m. He had not consumed any drugs or alcohol prior to the accident. [6] The plaintiff said that just prior to the accident he was not smoking, listening to the radio or talking on a cell phone. The weather was clear and sunny. He did not recall any cars coming towards him as he approached the intersection at Turner Avenue. He turned on his left turn signal about one half block before he reached the intersection, started to turn left, crossed the outside lane of southbound traffic and was approaching the inside lane when he heard "the voice of brakes". At that moment he saw a white van coming towards him. The driver of the white van was holding a cell phone. The force of the impact between the two vehicles pushed his vehicle over

to rest against the curb on the southwest corner of Turner Avenue. The defendant's vehicle came to rest in the middle of the intersection. [7] The plaintiff said that at the time he approached the intersection he was paying attention for any cars that might be approaching Nanaimo Street from Turner Avenue. He said that his eyes were mostly on Turner Avenue. He did not see any vehicles coming towards him southbound on Nanaimo Street. He heard the sound of brakes, and at the point turned his face to see the white van coming towards him. He repeated in his testimony that the driver of the white van was holding a cell phone in his right hand. [8] The plaintiff testified that the white van was about 15 to 20 feet away from him when he first saw it. He said that the time between when he first saw the white van to when the collision took place was just a few seconds, that the white van was traveling really fast and that when the white van struck his vehicle it was traveling at a speed of over 65 km/h. [9] The plaintiff testified that the white van contacted the passenger's side of his vehicle at about the middle, towards the rear. No horns were sounded before the collision and the only sign of warning he heard was the sound of brakes. [10] The collision broke the front and back passenger's side windows of the plaintiff's vehicle. He did not recall anything between the time of the

impact and the time when the defendant stood beside the driver's side door of the plaintiff's vehicle yelling at the plaintiff that he had made the defendant late for work. The plaintiff got out of his vehicle and exchanged heated words with the defendant for a couple of minutes until passers by broke up their argument. [11] The plaintiff testified that after the accident the defendant was on his cell phone telling someone on the other end of the call that the plaintiff had made him late for work. About 40 minutes after the collision the police attended. They interviewed some of the people in the area, talked to the plaintiff and defendant and then measured the skid marks left on the road. The police were at the scene of the accident for about 30 to 40 minutes (a police report was not available). [12] When asked how he could explain the sudden appearance of the defendant's vehicle the plaintiff did not have an answer, except to suggest that there were other streets in the area where the defendant might have come from, or that he may have been parked on the street. [13] The plaintiff testified that before the collision the defendant's vehicle was changing from the outside lane to the inside lane and that at the time of the collision the defendant's vehicle was at the edge of the separation between the inside lane and the curb lane. [14] The plaintiff was shown a diagram of the accident scene depicting where the vehicles collided in the intersection. He disagreed with the placement of the vehicles in the diagram, stating that he had almost completed his left turn onto Turner Avenue. He said that there were cars parked on both sides of Turner Avenue.

2. Mr. Ashok Murgai [15] Mr. Murgai is an independent witness to the accident. At the time he lived in a house on the north side of Turner Avenue, two houses in from the intersection where the accident took place. He said he was standing in his front yard and first noticed the defendant's vehicle by the sound of the crash coming from the collision at the intersection. [16] He testified that before the collision he could clearly see the whole intersection from where he was standing in his front yard. He said that when he saw the defendant's vehicle enter the intersection it was traveling at a speed of 50 or 60 km/h, maybe more. He saw the defendant's vehicle a few feet before it entered the intersection. [17] He testified that there are no garages on Turner Avenue, explaining that most of the homeowners park their vehicles in front of their homes. He said that in the evening most of the parking spaces on both sides of the street are full. [18] After the accident he saw the plaintiff and defendant arguing. He said that the defendant had a cell phone and that he was talking on the phone. [19] When shown a photograph of a white van he said that he did not recognize it as one of the vehicles in the collision. He recalled that one of the vehicles involved in the accident was blue in colour, and that the other was a van with a straight front like a cargo van with no hood. [20] In

cross-examination, Mr. Murgai said that his attention was drawn to the intersection when he heard a noise at the same time as he saw the collision. He said he saw the white van before it hit the plaintiff's vehicle. He estimated the speed of the white van at 50 to 60 km/h, but agreed that he was not professional at estimating speed. He said that he has been driving for 24 years and that this was his guess at the speed.

3. The Expert [21] Mr. Gerald Sdoutz prepared a report for the defence. However, he was called to testify in the plaintiff's case. He was qualified to testify as a forensic engineer specializing in accident reconstruction. His report, dated March 22, 2006, was filed. Mr. Sdoutz reviewed photographs showing the damage to the parties' vehicles and the accident scene. He concluded: (1) That the impact occurred in the southwest quadrant of the intersection. At impact, the plaintiff's vehicle appeared to have been turned approximately 70 degrees and was headed into the oncoming eastbound lane of Turner Avenue. (2) The defendant's vehicle's impact speed was estimated at 18 to 27 km/h. The plaintiff's impact speed could not be established from the available evidence. (3) Prior to impact, the defendant's vehicle skidded for 15 metres, from pre-braking speed of 55 to 58 km/h. [22] In chief, Mr. Sdoutz testified that skid marks are caused when there is braking to the point where the tires lock. The length of the skid marks represents the energy that the vehicle lost while depositing the skid marks. He also explained that the energy is directly related to the speed the vehicle had. Skid marks show the portion of braking when the tires are locked. If there is braking less than the maximum then the vehicle will slow down but not leave skid marks. [23] Mr. Sdoutz explained that temperature,

rain, and the volume of traffic will wear skid marks off a roadway, explaining that after five days to a week skid marks will start to fade. The onset area of the skid marks will be the first aspect of the skid marks to fade. [24] The diagram of the accident scene shown to the plaintiff was drawn by Mr. Sdoutz. He created the drawing to scale and placed the skid marks on the diagram by reference to the photos he was given of the accident scene. He also used vehicle damage to assess the speed of the vehicles because skid marks do not tell the whole story. He said that incorrect information about vehicle damage would impact his conclusions. [25] In cross-examination, Mr. Sdoutz testified that if the van he had observed in the photos he was provided was not the van involved in the collision the use of the photos would eliminate one of his checks. He said that the main speed calculations were based on the plaintiff's vehicle but these would be less reliable if he had been given photos of a different van. [26] He also explained that he determined the point of impact by the change in the direction of the skid marks. He was told the skid marks were 15 metres in length and based on this information and what he observed in the photos he estimated where the vehicles were positioned at the time of impact. He said that if the information he received was wrong and the van he observed in the

photos was not the van involved in the accident then the information he used was pretty thin. He said that using as information only the damage to one vehicle is not very reliable. [27] Mr. Sdoutz said that an average driver perceives an event and responds in about 1.1 seconds, with the minimum being about .75 seconds. He explained that this is the minimal amount of time in which a person can factually put together everything he or she is faced with. [28] Using the diagram, Mr. Sdoutz said that the plaintiff's vehicle traveled 11 metres after it crossed the centre line of Nanaimo Street. He said that at 30 km/h a vehicle travels at 8.3 metres per second. Thus, if the plaintiff's vehicle was making a left turn he would get to the point of impact in 1.3 seconds. If he was traveling at 20 km/h it would be just shy of 2 seconds. If the plaintiff was traveling at 20 km/h, given that an average person requires 1.1 seconds to perceive an event and take evasive action, the defendant would have less than 1 second to try to avoid a collision. III. SUMMARY OF EVIDENCE IN THE DEFENDANT'S CASE [29] The defendant testified that on the day of the accident he was driving a van owned by his sister. Just prior to the accident he was traveling on Hastings Street in a westbound direction (Hastings Street runs parallel to, and is two blocks north of, Turner Avenue). He made a left hand turn onto

Nanaimo Street to proceed southbound. He was traveling at about 40 to 45 km/h. He said that the plaintiff's vehicle turned into him, and that he "t-boned" the plaintiff's vehicle on the passenger's side. [30] The defendant said that he did not see the plaintiff's vehicle's left turn signal. When he saw the plaintiff's vehicle turn he stepped on his brakes but could not avoid hitting the vehicle: it happened so fast. [31] The defendant said that he had a cell phone, but that he was not talking on his cell phone at the time of the accident. He also said that he was not doing anything to distract him and that as he approached the intersection of Nanaimo Street and Turner Avenue he was driving at a constant speed. [32] Following the accident he had a heated argument with the plaintiff. They each accused the other of being in the wrong and causing the accident. IV. THE PLAINTIFF'S SUBMISSIONS [33] In her submissions, plaintiff's counsel referred to the plaintiff as a credible witness. At the time of the accident he held a class 4 driver's license, and was not in a rush to go anywhere. He had slept following his night shift employment and was refreshed and was on his way to his friend's house on Turner Avenue, a block from the intersection, after taking a route that he was very familiar with. [34] She noted that Nanaimo Street is a wide street with two traveling lanes in each

direction. Turner Avenue, on the other hand, is made narrow by reason of the fact that there are no garages or laneways and therefore the residents park their vehicles on both sides of the street. This, she said, has an impact upon the speed at which a vehicle can enter Turner Avenue, given that vehicles traveling east and westbound on Turner Avenue have to share a single lane. She said that the plaintiff did not attempt to cut the corner when making his turn, but rather approached the entrance to Turner Avenue in a correct and reasonable manner. [35] Counsel argued that a close review of the position of the vehicles in the expert's diagram indicated that the plaintiff's vehicle was half way into the curb lane on the west side of Nanaimo Street at the point of impact. She said that if the defendant had kept his vehicle in the centre of the inside lane he would have struck the rear of the plaintiff's vehicle. [36] Counsel said that while the plaintiff had difficulty with estimating distances and speed he was not attempting to deceive the Court. The plaintiff understood that he would have to enter Turner Avenue at a slow speed. On the other hand, she submitted that the Court could infer from the evidence that the defendant was in a rush, noting that he was in an agitated state following the accident because the collision had made him late for work. [37] Counsel said that the fact

the defendant did not produce cell phone records, as requested of him at his discovery, to confirm or deny that he was talking on a cell phone at the time of the collision, goes to his overall credibility. She said that he was being most deceptive in his evidence about whether he owned a cell phone, or whether he was using a cell phone at the time of the accident. [38] Counsel also said that if the Court accepts the defendant's testimony that he turned left at Hastings Street and proceeded southbound on Nanaimo Street in the outside lane then the evidence establishes that he made a lane change. She noted his testimony that he always does a shoulder check when he changes lanes. Counsel submitted that just before the collision the defendant was looking back over his shoulder and had the added distraction of using a cell phone, which together delayed his reaction time. She also said that there was speed involved. She referred to the evidence of the skid marks and Mr. Murgai's evidence about his estimate of the defendant's speed and submitted that the defendant must have been traveling at 50 to 60 km/h at the time of the impact. [39] Counsel said that Mr. Sdoutz's report provides an indication of the minimum speed at which the defendant was traveling just prior to braking. She submitted that the Court can infer a higher speed given that: the damage to the defendant's vehicle as

portrayed in the photos is not consistent with the defendant's description of the damage to his vehicle from the collision; and, the evidence that after several days skid marks will fade and the fact that the photos relied upon by the expert were five to seven days old. Thus, as damage is a significant factor in the expert's calculations, he would have underestimated the speed of the defendant's vehicle. [40] Counsel argued that speed and the lane change were contributory causes of the accident. She said that if the defendant had not changed lanes he would not have struck the plaintiff's vehicle. Moreover, if the defendant was not speeding the plaintiff would have completed his left turn before the defendant arrived at the intersection. She said that the defendant was moving from the fast outside lane into the inside lane while exceeding the speed limit. [41] Counsel argued that there is grave difficulty in finding the truth in the defendant's testimony. She submitted that he has obstructed a just and fair review of the evidence and that in the circumstances there should be a presumption in favour of the plaintiff. She said that the Court can reasonably infer that the defendant failed in his duty of care towards the plaintiff and that the plaintiff should receive the benefit of the doubt. V. THE DEFENDANT'S SUBMISSIONS [42] Defence counsel argued that if the defendant was not

paying attention as plaintiff's counsel submitted, then he would not have braked before he collided with the plaintiff's vehicle. Counsel said that the defendant perceived, acted and reacted to the circumstances he was facing, which is shown by his having braked hard enough to cause a lengthy skid mark. [43] Counsel submitted that the onus is on the plaintiff to show that when the plaintiff turned left that the oncoming vehicle could have avoided the accident by the driver taking an evasive manoeuvre. He said that the plaintiff has not even attempted to show that. He argued that there is not one shred of evidence that the defendant could have or should have done anything differently. He also said that any doubt on this point must be resolved in the favour of the defendant as the dominant driver. [44] Counsel submitted that there was no evidence that the defendant was traveling faster than 50 km/h, or that if he was that it would have made a difference. He said that the plaintiff's evidence about speed is unreliable; he lied and was prepared to make up evidence to suit the strength of his case. Counsel also said that Mr. Sdoutz's conclusions rebut the evidence of the plaintiff and Mr. Murgai about how fast the defendant was traveling. [45] Counsel also said that even if the defendant was traveling at the speed the expert calculated, 50 to 55 km/h pre-braking, then it raises the

question: was driving 5 km/h above the speed limit causative? Counsel said that there was no compelling or convincing evidence that driving 55 km/h rather than 50 km/h would have made a difference. He noted that at 5 km/h a vehicle is traveling at 1.4 metres per second and submitted that it would not have been enough to make a difference in this case. He submitted that if a driver pulls in front of you the speed of your vehicle may be irrelevant. [46] As for the allegation that the defendant was using a cell phone at the time of the accident, counsel submitted that use of a cell phone is not illegal if while using it the driver still maintains a proper lookout. He also said that no negative inference should be drawn from the absence of the cell phone records: there was conflicting evidence from the witnesses about the time of the accident, the plaintiff placing the time of the accident at about 8:15 p.m. and Mr. Murgai stating that it was about an hour or so earlier. In such a situation there is no way that cell phone records might assist the Court to establish with any degree of certainty whether a cell phone was being used by the defendant at the exact time of the collision. [47] As for the evidence about the defendant's vehicle, counsel noted that the expert assumed the van shown in the photos was the defendant's vehicle and, on cross-examination, the defendant said that the

van in the photos was his van. However, the plaintiff had earlier led evidence from Mr. Murgai that the defendant had been driving a different vehicle at the time of the collision. Counsel submitted that the plaintiff's evidence about the vehicle does not take the plaintiff's case anywhere - the real issue to be determined is why the plaintiff turned left in front of the defendant's oncoming vehicle. VI. CREDIBILITY OF THE PARTIES [48] There are significant credibility gaps in both parties' testimony. In my opinion, the parties were more intent on giving evidence to bolster their cases than on being completely frank or forthright with the Court. [49] In cross-examination, the plaintiff estimated that his speed proceeding through the intersection was about 10 to 20 km/h. Defence counsel pointed out to the plaintiff that during his examination in chief he had estimated his speed to be 25 to 30 km/h and at his discovery, when he was asked how fast his vehicle was going when it was hit, he had estimated not more than 35 to 40 km/h. The plaintiff insisted that he was merely guessing at his speed. [50] Defence counsel asked the plaintiff whether before he turned left he could see northbound on Nanaimo Street up to Hastings Street. He said he could not. Counsel then pointed out to him that at his discovery he said he could see as far as Hastings Street. He said that his discovery

answer was the truth. [51] The plaintiff also said that he was guessing when he estimated that he did not see the defendant's van until it was 10 to 15 feet away. He said that when he saw the van he was able to estimate its speed and to observe the driver of the van holding a cell phone in his right hand up to his ear. He also said that his best estimate of the time it took the van to travel the 10 to 15 feet before the collision was maybe two to three minutes. [52] However, contrary to his evidence in cross-examination, in re-examination, the plaintiff said that he heard the sound of brakes, turned his head and saw the white van coming - and that the time that elapsed was only seconds. [53] Furthermore, counsel pointed out to the plaintiff that at his discovery, he said that he first saw the defendant talking on the phone when he stopped and the plaintiff looked at him, testifying, "I get out, move my car. He was still in the car and talking on the phone." The plaintiff then claimed that he did not recall the questions or his answers. [54] The plaintiff also disagreed with his own expert's evidence. The plaintiff testified that the expert's diagram placing the vehicles in the intersection at the point of impact put the defendant's van in the wrong place. He said that the van did not travel in a straight line but curved. He thought the point of impact should have been shown

further to the west (further from the middle of the intersection and closer to where he would have completed his left hand turn). He also claimed that the position of his vehicle on the diagram was wrong. [55] Thus, there are major conflicts in the plaintiff's testimony on his speed when traveling through the intersection; his visibility of oncoming traffic; the time that elapsed between the first time he noticed the defendant's vehicle and the collision; and, whether he saw the defendant talking on a cell phone before the collision. Furthermore, he disagreed with some of the expert evidence of his own witness. In my view, these conflicts cast serious doubt on the reliability of the plaintiff's version of the events leading up to the collision. [56] By the same token, the defendant's testimony is fraught with conflicts and is, in my opinion, not only generally unreliable, but on some points also untruthful. [57] The defendant displayed a selective memory. For example, while he was absolutely certain that he was not talking on a cell phone just prior to the collision, he said he could not recall which lane he was traveling in when he turned onto Nanaimo Street. He then claimed that he remained in the outside lane and that just before the accident he thought he was in the inside lane, but then said he could not remember whether he was in the inside or outside lane, because the

accident was so long ago. He conceded in cross-examination that he might have changed lanes a block after he turned onto Nanaimo Street. [58] As for traffic, the defendant first said that there was no traffic around, that the street was pretty empty. He then said that there was a car here and there, now and then - that it was not like a ghost town, but it was also not like rush hour. When referred to his discovery evidence that there was no traffic, he said his answer was correct. [59] The defendant was most evasive about whether he had a cell phone with him on the day of the accident and whether he was using a cell phone just before the accident. He testified that he always had a cell phone with him. However, at his discovery he said that he was never using a cell phone prior to the accident, and that he was not borrowing a cell phone on the day of the accident, and that he did not use a cell phone on the day of the accident. He then said that what he meant to say was that he might have used a cell phone on the day of the accident, but not while he was driving. He also claimed that he had two hands on the wheel. [60] When counsel suggested to the defendant that he did not notice the plaintiff until he was into the intersection, the defendant said that he saw the plaintiff's vehicle coming towards him but he did not think that he would turn in front of him. Counsel then put to

the defendant his discovery answer that he was just in the intersection when he first saw the plaintiff, and that the plaintiff suddenly came in front of him. The defendant said that his discovery answer was true. He then said that he saw the plaintiff's vehicle, but that he did not know that he was going to turn in front of him. [61] The defendant said that he always does a shoulder check when changing lanes. Counsel suggested to the defendant that just as he approached the intersection he was going to change lanes, that he did a shoulder check, was on his cell phone and did not see the plaintiff's vehicle. The defendant denied that he changed lanes, or that he was on a cell phone. [62] The defendant said that a few weeks after the accident ICBC contacted him and asked him to bring in his vehicle. The defendant identified the vehicle shown in the photos marked as Exhibit 3 as the vehicle he was driving on the day of the accident. The van shown in Exhibit 3 has only some minor damage to the front end. Counsel suggested to the defendant that his vehicle sustained a great deal more damage in the collision than that depicted in the exhibit. She then referred the defendant to his discovery answers, where he testified: Q Now, just tell me the damage to the vehicle, if you could? A Whose damage, his, mine? Q Yours. A The whole front is gone. Q Were the lights smashed in? A The

grills, the light, and the radiator is leaking. The whole front is crunched in? Q So the front part of the vehicle was crunched in? A Yes. [63] The defendant said that he gave the answers and that they were true. Counsel also suggested to the defendant that the license plate shown on the vehicle depicted in Exhibit 3 looks like it had gone through an accident. The defendant said that the license plate had belonged to another vehicle and was transferred onto the vehicle shown in the exhibit. He said he could not explain how the license plate got so banged up. [64] The defendant could not recall having a heated argument with the plaintiff following the accident and accusing the plaintiff of making him late for work. [65] The defendant disagreed with counsel's suggestion that if he had remained in the inside lane there would not have been an accident. He said it did not matter which lane he traveled in because the plaintiff turned in front of him. VII. DECISION [66] Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, provides, as follows: When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn

the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn. [67] The law surrounding the responsibility of a left-turning driver was succinctly stated by Donald J.A., speaking for the Court, in Hiscox v. Armstrong, 11 M.V.R. (4th) 34, 154 B.C.A.C. 184, 2001 BCCA 258, at para. 4, as follows: As a left-turning motorist the plaintiff had to be sure that he could clear each lane in safety. The defendant had the right-of-way. In order for the plaintiff to succeed in attaching any negligence to the defendant he had to present evidence in accordance with the often quoted words of Mr. Justice Fauteux in Walker v. Brownlee and Harmen, [1952] 2 D.L.R. 450 at 461: While the decision of every motor vehicle collision case must depend on its particular facts, I am of opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A's disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have

availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali. [68] Defence counsel argued that the defendant could not have avoided the accident in the instant case as the collision occurred only a few seconds, at most, after the defendant would have been able to perceive the plaintiff turning into his path of travel. He also argued that the fact that the defendant braked, leaving skid marks in the very few seconds or even fraction of a second available to him proved that he was maintaining a proper lookout. With respect, I disagree with the defence position. [69] The law is clear: liability for a collision may not always rest entirely with a left-turning driver who fails to yield the right-of-way; to avoid possible liability, the dominant driver must, if reasonable, neutralize the left-turning driver's failure to yield the right-of-way by taking steps to avoid a collision. In my opinion, doing the best that I can with the highly unreliable state of the parties' testimony, I find that both parties should be held partially responsible for the accident. [70] It is at least common ground that on the day of the accident, it was clear and sunny; there was little or no traffic on Nanaimo Street; there were no obstructions to block either party's view of the intersection; and, both parties

were there to be seen by the other. [71] In all of the circumstances, I find that the plaintiff is partially responsible for the accident for not maintaining a proper lookout and not yielding the right-of-way while making his left turn from Nanaimo Street to proceed westbound on Turner Avenue. In my opinion, the primary reason why the plaintiff did not see the defendant's vehicle closely approaching the intersection was because, as he admitted in chief, his eyes were mainly focused on completing his left hand turn. His attention was focused on Turner Avenue because cars were parked on both sides of the street thus narrowing the street for two-way traffic. Because of this situation, he knew from past experience that he had to keep a close watch for vehicles traveling eastbound and exiting from Turner Avenue. [72] I find the plaintiff's speculation about why he did not see the defendant's vehicle until just prior to the collision completely implausible. He thought that the defendant might have come from a nearby street or may even have been parked. This evidence is in direct conflict with the evidence that the plaintiff read in to his case from the defendant's discovery that he was proceeding southbound on Nanaimo Street just prior to the accident. [73] I also find that the defendant was partially responsible for the accident. I find that just prior to the accident the defendant

turned left from Hastings Street to proceed southbound on Nanaimo Street in the outside lane. In the short distance between Hastings Street and Turner Avenue the defendant, for an unexplained reason, decided to make a lane change from the outside lane to the inside lane. I find that in making this lane change the defendant was not maintaining a proper lookout, because as he changed lanes he was looking over his shoulder and not paying attention to traffic in the upcoming intersection. Although I find that the defendant had a cell phone in his vehicle, I cannot conclude that the defendant was talking on the cell phone at the time of the collision, as there is strongly conflicting evidence on this point. However, I am satisfied that the lane change was made unsafe by reason of the defendant looking over his shoulder, and the fact that the defendant's vehicle was exceeding the speed limit. On this latter point I turn to the following evidence. [74] Mr. Murgai, whose evidence I accept on this point, testified that when the defendant entered the intersection he was traveling at a speed of 50 to 60 km/h, or even more. Mr. Sdoutz concluded that the defendant's van had a pre-skid speed of 55 to 58 km/h. Obviously, Mr. Sdoutz's assessment of speed was based partly on the minimal damage shown to the defendant's vehicle in Exhibit 3, whereas according to the defendant's discovery

testimony, which he accepted as true, the damage to his vehicle was far more extensive than that depicted in the exhibit. Hence, I think it can be reasonably inferred that prior to impact the defendant was probably traveling at a speed greater than 55 to 58 km/h. I think this reinforces the speed estimate made by Mr. Murgai, and strongly belies the defendant's testimony that his speed was only 40 to 45 km/h. [75] While I am mindful that traveling over the speed limit does not in and of itself constitute negligence, it will constitute contributory negligence if excessive speed probably prevented the driver from taking reasonable measures to avoid the accident: See Santos (Guardian ad litem of) v. Raes, [1998] B.C.J. No. 389 (S.C.) (QL) at para.

15. In my opinion, the combination of the defendant making a lane change, looking over his shoulder at the time and driving in excess of the speed limit all contributed to the accident. I think that with the exercise of reasonable care the defendant should have been aware of the presence of the plaintiff, who was well into completing his left hand turn, and would have had a sufficient opportunity to avoid colliding with the plaintiff's vehicle. [76] Section 1 of the Negligence Act, R.S.B.C. 1996, c. 333, provides that liability among contributing tortfeasors should be allocated in proportion to the degree to which each was at fault. Fault is measured in terms of relative or comparative blameworthiness or culpability, i.e. the extent to which each of the parties departed from the norm of reasonable conduct: See Anderson v. Stevens (1981), 29 B.C.L.R. 355 at p. 362, 125 D.L.R. (3d) 736 (S.C.), adopting Clyke v. Blenkhorn (1958), 13 D.L.R. (2d) 293 at p. 304, 41 M.P.R. 1 (N.S.C.A.). [77] In the circumstances of the case at bar, I find each party 50% liable for the accident. "B.I. Cohen, J." The Honourable Mr. Justice B.I. Cohen