Glavica v. Lott

2014 BCSC 2238 Glavica v. Lott

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Glavica v. Lott, 2014 BCSC 2238 Date: 20141128 Docket: M67424 Registry: Nanaimo Between: Biserka Glavica Plaintiff And: Patrick Lott Defendant Before: The Honourable Madam Justice Watchuk Reasons for Judgment Counsel for the Plaintiff: Dylan M. Kozlick James A. Vanstone, Q.C. Counsel for the Defendant: Meganne E. Cameron Place and Dates of Trial: Nanaimo, B.C. June 10-11, 2014 Place and Date of Judgment: Vancouver, B.C. November 28, 2014 I. INTRODUCTION [1] On the evening of September 3, 2011 a motor vehicle collision between the plaintiff, Biserka Glavica, and the defendant, Patrick Lott occurred on Zorkin Road, which is the exit road from the Departure Bay ferry terminal in Nanaimo, B.C. [2] This trial was limited to the determination of liability. [3] It is the plaintiff's position that the defendant, on turning left on to the exit road from a parking lot, caused his vehicle to collide with the left side of her vehicle. She submits that the defendant is 100% at fault for the collision. [4] The defendant submits that the plaintiff suddenly changed lanes into his lane of travel and that she is therefore liable for the collision. In the alternative, he submits that the plaintiff was contributorily negligent because she did not see him, a potential hazard, waiting at the stop sign to exit the parking lot. II. THE EVIDENCE A.

Facts Not in Dispute [5] The following evidence is not in dispute. The disputed evidence will be set out below in the evidence of both parties and the two witnesses. Where findings of disputed fact must be made, they will be addressed in the analysis. [6] In order to determine liability, one fact which must be determined is whether Ms. Glavica was driving in the left or right hand lane of Zorkin Road at the time that Mr. Lott drove past the stop sign and exited the parking lot. [7] September 3, 2011 was the Saturday night of the Labour Day long weekend. The collision occurred in the evening at approximately 9:30 p.m. The roads were dry and it was dark but Zorkin Road has streetlights. [8] The plaintiff's daughter, Faith Siklic, had been in Vancouver that day for a shopping trip with Helen Bergstrom, a local chiropractor, and her two daughters. Dr. Bergstrom and the three girls were returning from Vancouver by ferry to Departure Bay in Nanaimo. [9] The plaintiff picked up the group at the Departure Bay ferry terminal. She was driving her 2009 Pontiac G3 hatchback. As she arrived late, there was no other traffic leaving or arriving at the terminal at the time of the collision. They were the last people to leave the terminal. [10] During the drive, Dr. Bergstrom was the front passenger. Faith Siklic sat in the rear middle seat and Dr. Bergstrom's daughters sat in the rear left and

rear right seats. The rear seat passengers did not witness the collision. [11] From the foot passenger pick-up area of the terminal, the exit road makes a 90° turn to the left and then becomes Zorkin Road. Zorkin Road curves to the right shortly before reaching the intersection with Stewart Avenue. Zorkin Road has two lanes of travel heading away from the ferry terminal toward Stewart Avenue and one lane of travel in the opposite direction. The two lanes heading away from the terminal are separated by a broken line road marking in the area of the collision. [12] Near the end of the right hand curve there is an exit from a parking lot on the left side of Zorkin Road. There is a stop sign at that exit. The parking lot contains several businesses, including Beefeater's Restaurant and Miller's Landing Pub. [13] Past the parking lot exit near the Stewart Avenue intersection, the two lanes on Zorkin Road split into four lanes: two left turn lanes, one lane for travel straight through the intersection, and one lane for travel straight through the intersection or turning right. The left lane divides into the two left turn lanes and the right lane divides into the latter two lanes. Zorkin Road then becomes Brechin Road on the other side of Stewart Avenue. [14] Mr. Lott met his friend Brendan Lindgren for dinner at Beefeater's Restaurant near the ferry terminal between 5:30 and 6:00 p.m.

Mr. Lindgren had been out boating that day. After using the boat launch near the ferry terminal that evening, Mr. Lindgren phoned the defendant and invited him for dinner. They left the restaurant shortly before 9:30 p.m. B. The Plaintiff's Evidence [15] Ms. Glavica was very familiar with the area because she had worked for B.C. Ferries out of the Departure Bay terminal for approximately six months in 2006 or 2007. She drove that stretch of Zorkin Road regularly during that period. She knew that she had to be in the left lane before the lanes split to access the left turn lanes at the intersection in order to drive Dr. Bergstrom and her children home and then go to her home. [16] The plaintiff and Dr. Bergstrom testified that the plaintiff was driving in the left lane on Zorkin Road well before the collision. Both gave evidence that the plaintiff changed into the left lane before the 90° curve to the left on the exit road from the terminal, and that she remained in that lane until the collision. She was travelling at 20 to 25 km/h in a 30 km/h zone. [17] Shortly after passing the exit from the parking lot, as Dr. Bergstrom was turned to the left at about 45° and looking behind to speak with her daughter, she saw the defendant's vehicle coming toward them fast. There was no time to react other than to shout something. The plaintiff heard her exclaim "Wow wow" and then

immediately heard the boom of the defendant's vehicle hitting hers. The plaintiff did not see the defendant's vehicle before the collision, but Dr. Bergstrom had a direct view of the defendant's vehicle. The left rear side of the plaintiff's vehicle was struck by the front right corner of defendant's vehicle which had approached from the left rear. [18] Dr. Bergstrom testified that the plaintiff was travelling in the left lane prior to the collision, and that she was not making a lane change. [19] The photographs of the plaintiff's vehicle show damage to the rear portion of its left side, while the photographs of the defendant's vehicle show damage to its front right corner below the headlight. The plaintiff submits that the vehicle damage is consistent with the testimony of Dr. Bergstrom and the plaintiff. C. The Defendant's Evidence [20] The defendant testified that as he was stopped at the stop sign leaving the restaurant parking lot, he saw the plaintiff's vehicle approaching on Zorkin Road from the right in the right lane. There was no other traffic in either direction. He made a safe left turn crossing the sidewalk and the oncoming lane and was fully in the left lane. He had changed into second gear. [21] The plaintiff passed him in the right lane then swerved into his lane. She did not do a shoulder check. The collision occurred when the plaintiff's vehicle made contact

with the right side of his front bumper and quarter panel of his Chevy Cavalier. [22] The defendant's friend, Mr. Lindgren, testified on behalf of the defendant. He and the defendant have known each other since meeting in school in approximately 2002. They have remained friends since. [23] Mr. Lindgren and the defendant left in separate vehicles from the parking lot with the defendant leaving first and Mr. Lindgren stopping behind him at the stop sign at the exit. Mr. Lindgren testified that he saw the plaintiff sideswipe the defendant's vehicle when the defendant pulled out from the parking lot onto the left lane of Zorkin Road. [24] Mr. Lindgren testified that he then backed up and parked in the parking lot, then went to the scene of the collision. He asked if everyone was okay. The defendant says that Mr. Lindgren was through the intersection and parked on Brechin Road and that they texted later. Neither the plaintiff nor Dr. Bergstrom saw Mr. Lindgren or his vehicle near the scene of the collision. III. THE LAW A. Statutory Provisions [25] The relevant statutory provisions are sections 144, 151, 175, 176, and 186 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, [the "MVA"] which are set out below: Careless driving prohibited 144(1) A person must not drive a motor vehicle on a highway (a) without due care and attention, (b) without reasonable consideration for other persons

using the highway, or (c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions. (2) A person who contravenes subsection (1) (a) or (b) is liable on conviction to a fine of not less than $100 and, subject to this minimum fine, section 4 of the Offence Act applies. Driving on laned roadway 151 A driver who is driving a vehicle on a laned roadway (a) must not drive it from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that movement can be made with safety and will in no way affect the travel of another vehicle, (b) must not drive it from one lane to another if that action necessitates crossing a solid line, (c) must not drive it from one lane to another without first signalling his or her intention to do so by hand and arm or approved mechanical device in the manner prescribed by sections 171 and 172, Emerging from alleys 176(1) The driver of a vehicle in a business or residence district and emerging from an alley, driveway, building or private road must stop the vehicle immediately before driving onto the sidewalk or the sidewalk area extending across an alleyway or private driveway, and must yield the right of way to a pedestrian on the sidewalk or sidewalk area. (2) The driver of a vehicle about to enter or cross a highway from an alley, lane, driveway, building or private road

must yield the right of way to traffic approaching on the highway so closely that it constitutes an immediate hazard. Stopping at intersections 186 Except when a peace officer directs otherwise, if there is a stop sign at an intersection, a driver of a vehicle must stop (a) at the marked stop line, if any, (b) before entering the marked crosswalk on the near side of the intersection, or (c) when there is neither a marked crosswalk nor a stop line, before entering the intersection, at the point nearest the intersecting highway from which the driver has a view of approaching traffic on the intersecting highway. B. Credibility and Reliability [26] As the issue of liability arises from the different versions of events presented by the witnesses, an assessment of the credibility and reliability of the witnesses is necessary. [27] The approach to the assessment of credibility is set out in Hardychuk v. Johnstone, 2012 BCSC 1359 at paras. 8-10 as follows: [8] The factors to be considered when assessing credibility were summarized by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398, as follows: 186 Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of

assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356). [10] The typical starting point in a credibility assessment is to presume truthfulness: Halteren. Truthfulness and reliability are not, however, necessarily the same. A witness may sincerely attempt to be truthful but lack the perceptive, recall or narrative capacity to provide reliable testimony. Alternatively, he or she may unconsciously indulge in the human tendency to reconstruct and distort history in a manner that favours a desired outcome. There is, of course, also the

possibility that a witness may choose, consciously and deliberately, to lie out of perceived self-interest or for some other reason. Accordingly, when a witness's evidence is demonstrably inaccurate the challenge from an assessment perspective is to identify the likely reason for the inaccuracy in a cautious, balanced and contextually sensitive way. [28] If all witnesses appear credible, the following principle set out in Hou v. McMath, 2012 BCSC 257 at para. 27 is applicable: [27] When all witnesses appear credible, and it is difficult to choose between two possible scenarios, it is not enough to say the plaintiff has not made out her case. As the trial judge, I must go on to consider from an objective basis, which scenario is more in harmony with the preponderance of probabilities: Faryna v. Chorny (1951), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171. See also Gariepy v. Ritchie, [1993] B.C.J. No. 2304, 1993 CarswellBC 2058 (S.C.). C. The Plaintiff's Submissions [29] In applying these principles, the plaintiff submits that her testimony and that of Dr. Bergstrom is more credible, reliable and in harmony with the preponderance of probabilities than that of the defendant or Mr. Lindgren. In support of that conclusion the plaintiff submits: (a) The plaintiff was a very credible witness. She has a clear recollection that she was driving in the left lane well before the Collision

occurred and prior to passing the exit from the parking lot. (b) The plaintiff knew the area and the traffic patterns well. She had previously worked for BC Ferries for six months in 2006 or 2007 and drove that same stretch of Zorkin Road regularly during that time. She had driven past an overhead sign at the beginning of Zorkin Road which says to "KEEP LEFT" [in] order to go South. She was planning to turn left onto Stewart Avenue and knew that she needed to be in the left lane in order to access the left turning lanes at the intersection. It does not accord with common sense to suggest that the plaintiff, having such knowledge of the area and knowing her destination, would be driving in the right lane all the way from the ferry terminal and then suddenly change lanes at the last moment right before the intersection. (c) Dr. Bergstrom is the only truly independent witness to the Collision. Neither she nor her daughters were injured or have any claims of their own regarding the Collision. She is merely an acquaintance, not a friend, of the plaintiff. She has no interest in the outcome of this matter. (d) Dr. Bergstrom's evidence was clear, straightforward, and entirely consistent with the evidence given by the plaintiff. (e) Dr. Bergstrom had turned to speak to her daughter in the rear left seat at the time of the Collision. She saw the defendant's car drive quickly into the

side of Ms. Glavica's car. She confirms that the plaintiff was travelling in the left lane well before the Collision. (f) The defendant suggests that the plaintiff drove by him in the right lane after he had pulled into the left lane. He asserts that the plaintiff drove past nearly the full length of [his] vehicle, apparently without the plaintiff or Dr. Bergstrom noticing his vehicle, and then made a sharp lane change into the front right corner of his car. All of this, the defendant alleges, occurred within about two to three car lengths of the exit from the parking lot. He had just shifted into second gear. It is submitted that the defendant's version of events is highly implausible. A much more likely explanation is that the defendant was simply mistaken about which lane the plaintiff was travelling in when he pulled out. It was dark and he made a mistake in judgment. (g) The defendant's testimony at trial was significantly different than his examination for discovery evidence regarding Mr. Lindgren's actions after the Collision. At the examination for discovery of March 28, 2014, less than three months ago, he stated in precise detail that Mr. Lindgren had pulled out from the stop sign, drove past the scene of the collision, went through the intersection, pulled over onto the shoulder of Brechin Road 10-20 metres past the intersection, turned on his hazard lights and

observed the parties through his tinted rear truck window (Mr. Lindgren testified that his rear window was not tinted). At trial, the defendant initially testified that he did not recall what Mr. [Lindgren] did after the Collision. In cross-examination, he agreed that his evidence at the discovery was accurate, including the fact that Mr. Lindgren did not get out of his vehicle after the Collision. (h) Mr. Lindgren has been a close friend of the defendant for more than a decade. He is not a truly independent witness. His evidence at trial was not just casual. It was flippant and cavalier. He did not [take] these proceedings or his role in them seriously. (j) Mr. Lindgren testified that, at the time of the Collision, he was even further back from stop sign than the view shown in Exhibit 2, Tab 4. Although he was adamant in cross-examination that he could see cars coming from the right along Zorkin Road from that location, that contention is not consistent with the photographic evidence. His view of traffic approaching from the right would clearly have been blocked by the building located to the right of the stop sign. The defendant himself agreed that he did not have a good view of the traffic coming around the corner on Zorkin Road until he pulled right up to the stop sign. Therefore, the plaintiff submits that Mr. Lindgren did not have an adequate opportunity to accurately

determine which lane Ms. Glavica was travelling in as she approached the parking lot exit on Zorkin Road. (k) Mr. Lindgren testified that the Collision occurred as soon as the defendant pulled out from the stop sign. Mr. Lindgren says it happened so fast that he did not have time to pull up to the stop sign himself. That short timeline is more consistent with the plaintiff's version of events than that of the defendant. (l) Mr. Lindgren testified that, after the Collision, he parked his truck in the parking lot directly across from the area where plaintiff's and defendant's vehicles were stopped on Zorkin Road. He stated that he got out of his truck and stood beside it but did not approach the parties. Contrary to the signed statement that he provided to ICBC on September 15, 2011 in which he said "I did not hear their conversation", Mr. Lindgren testified at trial that he was able to hear "exactly" the conversations of the parties at the scene. Neither the plaintiff, Dr. Bergstrom, nor the defendant recall Mr. Lindgren standing anywhere near the scene, let alone close enough to hear their conversations. (m) There were various inconsistencies between the evidence of the defendant and that of his own witness, Mr. Lindgren. For example, the defendant says that he did not have any conversations or communications with Mr. Lindgren at the scene of the Collision. He says that they

communicated via text messages later that evening after they both had left the area. Mr. Lindgren, on the other hand, testified that he went onto Zorkin Road and helped the defendant replace the headlight that had detached from the defendant's car in the Collision. Mr. Lindgren denied communicating with the defendant by phone or text message that evening. D. The Defendant's Submissions [30] The defendant's submissions are focused primarily on the relevant legal principles rather than on the specific facts of this case. The defendant made the following arguments: (a) Based on his position, the defendant had a clear view of the plaintiff's vehicle as it drove towards the location where the collision took place. (b) The plaintiff clearly testified that she did not see the defendant's vehicle because she had her eyes on the road. She should have been checking to see if any vehicles were exiting or preparing to exit from the parking lots. Her testimony indicates that the plaintiff failed to scan the area for potential hazards as she was driving. (c) Dr. Bergstrom, the passenger in the plaintiff's vehicle, saw the defendant's vehicle and exclaimed "wow wow" before the collision. If the plaintiff had been using due care and attention, she should have been able to see what her passenger was seeing. IV. ANALYSIS [31] It is first necessary to determine the factual issue of the lane in

which Ms. Glavica was driving. If she was driving in the right lane as the defendant alleges, the collision occurred when she changed lanes. If, however, her lane of travel was the left lane, the collision occurred when the defendant collided with her as he entered that lane. [32] The nature of the vehicle damage does not assist either party's position since the damage is consistent with both versions of events that they have put forth. The damage could have been caused by the fault of either party. [33] The evidence of the plaintiff and Ms. Bergstrom was clear, internally and externally consistent and unimpeached on cross-examination. I prefer the evidence of the plaintiff where it differs from that of the defendant. [34] The plaintiff was familiar with the area and knew where she had to turn left at Stewart Avenue. I find as fact that she was in the left lane as she approached the intersection to make that left turn. [35] The defendant's actions on his evidence that he turned into the left lane when the plaintiff was in the right lane at that location are not indicative of careful driving but of haste. There were no other vehicles on the road at the time. If his intention was as stated to make a safe left turn into the left lane, there was no need for haste when seconds later the plaintiff's vehicle would have passed by and the road would be clear. This was not a situation

where a driver was attempting to fit into a line of traffic. [36] I further find that the evidence of Mr. Lindgren is not reliable. He did not appear to appreciate the seriousness of these court proceedings. His opportunity to observe was impaired. While waiting near the stop sign, his line of vision to the right was partially blocked by a shed to the right of the stop sign. It is highly unlikely that he would have seen the plaintiff's vehicle approaching from his vantage point behind the defendant's vehicle. I find that, at best, he was mistaken about the nature of the collision. [37] The defendant exited quickly having changed into second gear in the short distance between the stop sign and the left lane. I find that in his haste he was mistaken as to the location of the plaintiff's vehicle, which was in the left lane as it had been for some distance prior to the collision. [38] I find that the defendant's vehicle hit the plaintiff's vehicle as the plaintiff's vehicle was travelling in the left lane and the defendant attempted to enter the lane in which her vehicle was located. [39] The defendant also cites s. 151(b) of the MVA and submits that Ms. Glavica breached that provision when she crossed a solid line. This argument is based on Ms. Glavica's testimony that she changed lanes before the 90° turn on the exit road and crossed a solid line while doing so. Although I have

found as fact that Ms. Glavica did cross a solid line at that time, no liability flows from that lane change because it was not a cause of the collision. [40] Section 144(1)(a) and (b) of the MVA prohibit driving a motor vehicle on a highway without due care and attention, or without reasonable consideration for other persons using the highway. [41] Section 186 of the MVA requires a driver of a vehicle to stop at a stop sign at an intersection. In this case, there was a stop sign at the exit of the parking lot. Since there was no marked stop line or marked crosswalk, the defendant was required to stop, pursuant to s. 186(c), before entering the intersection, at the point nearest the intersecting highway from which he had a view of approaching traffic on the intersecting highway. [42] Once the defendant stopped pursuant to s. 186 to wait to enter the highway, s. 176 of the MVA was engaged and required him to yield the right of way to traffic on the highway which was approaching so closely that it constituted an immediate hazard. The plaintiff's vehicle constituted an immediate hazard when the defendant turned onto Zorkin Road. Hers was the dominant vehicle. [43] In this case the public parking lot driveway leading up to the stop sign falls within the meaning of "driveway" in s. 176 of the MVA. Therefore, s. 176(2) required the defendant to yield the right of way to any traffic

approaching on Zorkin Road so closely that it constituted an immediate hazard, in this case, the plaintiff's vehicle. [44] I find that the defendant's car was stopped at the stop sign. He was not doing anything out of the ordinary to alert the plaintiff that he would leave the stop sign and enter her lane. The plaintiff had the right of way and was entitled to assume that the defendant would yield. [45] I further find that the defendant's vehicle struck the rear left side of the plaintiff's vehicle, which is consistent with the defendant not leaving the stop sign until the plaintiff was already passing the exit. [46] Finally, I find that Dr. Bergstrom only witnessed the collision because she was turned toward the back of the plaintiff's vehicle when the collision occurred. The plaintiff did not have any reasonable opportunity to avoid the collision. [47] In these circumstances the defendant's conduct fell below the standard care required of a reasonably careful and prudent driver. He was driving without due care and attention and without due regard for other users of the roadway. He left the stop sign, failed to yield to a closely approaching vehicle which was an immediate hazard, and collided with the plaintiff's vehicle. I find the defendant liable for the collision which was the cause of the plaintiff's ensuing damages. [48] Regarding the allegation of contributory

negligence, the burden is on the defendant to establish that the plaintiff had a sufficient opportunity to avoid the collision if she had been driving prudently (Scholpp v. Porter et al., 2002 BCSC 1372 at para. 8). Put another way, the defendant must prove that the plaintiff's failure to take reasonable care, if any, was a proximate cause of the collision. [49] In Scholpp, Madam Justice Stromberg-Stein, as she then was, considered the obligations of a driver who has stopped at a stop sign at an intersection. That driver must yield the right of way to traffic that has entered the intersection or is approaching so closely that it constitutes an immediate hazard (para. 8). Users of the highway are entitled to proceed on the assumption that other users will observe the traffic regulations. Although the right to drive on that assumption is not absolute, there is no obligation to maintain special preparation for unseen emergencies or mere possibilities (para. 8). A standard of perfection is not imposed on every driver that requires the driver to be on the lookout for every conceivable eventuality (para. 18). [50] In Niloufari v. Movahedi, 2014 BCSC 680, the plaintiff made a right-hand turn to enter the highway from a parking lot. He made a wide turn to get past parked cars, and in doing so, his front driver's side struck the side of the defendant's vehicle as it went past the exit

in the opposite direction (para. 37). Pursuant to s. 176(2) of the MVA, the defendant was the dominant driver having the right of way. Madam Justice Fitzpatrick found that the defendant did absolutely nothing to contribute to the accident because she was entitled to assume that the plaintiff would remain stopped and allow her vehicle to pass by, unless he could make his turn safely (para. 43). The Court also found that the defendant's vehicle was "clearly an immediate hazard by reason of the fact that the collision occurred" (para. 43). [51] The plaintiff, like the defendant in Niloufari, was entitled to assume that Mr. Lott would not leave the parking lot exit until she had passed by him and his turn could be made in safety. The plaintiff's vehicle was clearly an immediate hazard and Mr. Lott was required to yield to her. [52] The plaintiff had the right of way while the defendant was at the stop and she was entitled to assume that the defendant would yield. The defendant made a left turn and rapidly speeded up into second gear. The evidence indicates that the accident happened very quickly. In these circumstances I do not find that Ms. Glavica breached the standard of care of a reasonably prudent driver by failing to respond to the defendant's driving. [53] There is no evidence that the plaintiff caused or contributed to the collision. Therefore, the defendant is solely at fault for the collision. [54] Liability is therefore assessed 100% to the defendant. [55] The plaintiff is entitled to her costs on Scale B unless there are matters of which I am unaware. If either party wishes to make submissions as to costs, submissions may be made in writing within 30 days of today's date with reply 15 days thereafter. "The Honourable Madam Justice Watchuk"