In Theiss v. Shorter, the Plaintiff was injured in a motor vehicle accident when she turned left on an amber light, and was struck by the Defendant, who had been traveling at an excessive rate of speed. The Plaintiff commenced formal legal proceedings, and eventually there was a liability only trial, rather than a trial on quantum and liability at the same time.

 

In the vast majority of cases, left turning vehicles at an intersection are deemed to be at fault when struck by an oncoming motorist.

 

In the case at bar, ICBC’S lawyer argued that the Plaintiff was negligent by making a left turn across the Defendant’s path when the Defendant was so close to the intersection that he constituted an immediate hazard. Counsel for the Plaintiff argued that the accident was caused by the excessive speed of the Defendant.

 

In relation to the left turning vehicle, the Court considered section 174 of the Motor Vehicle Act, which reads :

 

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.

 

With respect to the issue of speed, the Court considered section 140 of the Motor Vehicle Act, which reads :

 

Where traffic control devices as indicated in section 138 or 139 are erected or placed on the highway, a person must not drive or operate a vehicle at a greater rate of speed than, or in a manner different from, that indicated on the signs.

 

The Court found there to be inconsistencies in the Defendant’s testimony, and preferred the Plaintiff’s evidence.

 

The Plaintiff relied on the report of an engineering and accident reconstuctionist, and the Defendant relied on an expert to critique the report, however the Court preferred the evidence of the Plaintiff’s expert.

 

The Court would eventually find the Defendant to be solely liable for the accident, focusing on the issues of the speed that the Defendant’s vehicle was traveling at, and how the Plaintiff was there to be seen.

 

[45]         I found the opinions in Mr. Dinn’s report, reinforced by his response to rigorous cross-examination and some questions from the Court, to be logical, reasonable and persuasive, and the assumptions on which he based his opinions to be supported by the evidence.  I conclude that Mr. Shorter was travelling at an excessive rate of speed as he approached the intersection − probably a speed in excess of 100 kph and possibly as great as 110 kph − more than twice the posted speed limit.

 

[46]         Ms. Theiss commenced her left turn when the defendant’s vehicle − had it not been been travelling at an excessive speed − was sufficiently far from the intersection that it did not pose a hazard.  She could not, in my view, have anticipated that the approaching vehicle was travelling at twice the posted speed limit.  As such, and given that she was well into her turn when Mr. Shorter approached the intersection, he was obliged to yield to her.

 

[47]         Mr. Shorter knew, I conclude, that the light at Chancellor Avenue for traffic on Helmcken Road had been green almost from the time he entered Helmcken Road and should have anticipated that it would turn to amber or red before he reached the intersection.  He also knew that there was a southbound vehicle stopped at the intersection waiting to make a left turn.  He was aware there was no left turn light and that vehicles wishing to turn left often did so on an amber light.  Had he not been driving at an excessive rate of speed he could have stopped before entering the intersection, or had a greater opportunity to consider his options and to avoid the swerve to the right that was a contributing factor in the collision.

 

[48]         This is, in my view, one of those rare instances in which the left-turning servient driver is not at fault.  Ms. Theiss drove in a prudent and reasonable manner − stopping twice to check the distance from the intersection of the oncoming vehicle; and checking to ensure no pedestrians or cyclists were in the crosswalk. She was familiar with the intersection and able to make a reasonable estimate of when she could safely make it through the intersection before oncoming traffic reached the intersection.  She could not reasonably have predicted the highly excessive rate of speed at which I have concluded Mr. Shorter was travelling.

 

[49]         I find Mr. Shorter’s negligence in driving at an excessive rate of speed and failing to keep a proper look-out for left-turning vehicles to be the sole cause of the accident.

 

In Swieczko v. Nehme, the Plaintiff was injured in a motor vehicle accident at an intersection when attempting to turn left, at which point she was struck by the Defendant, who was proceeding through the intersection from the opposite direction. As if often the case with ICBC claims involving intersection collisions involving a left turning vehicle, liability is often contested. The Plaintiff commenced an action against the Defendant. In a separate action, the Defendant commenced an action against the Plaintiff.

 

In the case at bar, where the Plaintiff was suing the Defendant, both parties had diametrically opposed versions of events. The Plaintiff maintained that the Defendant entered the intersection while her light was red, however the Defendant maintained that the accident occurred after she had entered the intersection, when the light was changing from green to amber.

 

The Court considered the evidence of many witnesses, including the Plaintiff and the Plaintiff’s passenger, the Defendant and the Defendant’s passenger, and the drivers of two other cars close by.

 

The Court considered Section 174 of the Motor Vehicle Act, which reads :

 

Yielding right of way on left turn

 

174      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.

 

The Court would find, on a balance of probabilities, that the light was in the early red or all-red stage at the moment of impact. The Court would also give significant weight to the testimony of the Plaintiff and the Plaintiff’s passenger, which it found to be more credible and reliable. The Court chose not to rely on the Defendant’s evidence, which it found to be unreliable and inconsistent. The Court noted that in the Defendant’s statement, four days after the accident, she stated that the light was yellow as she entered the intersection, however at trial she stated that the light was green when she entered into the intersection.

 

[33]         In my view, the plaintiff in this case acted with reasonable care in making his left turn.  He entered the intersection on a green light and as the light turned amber, he waited and watched for the westbound traffic to come to a stop.  He did not make his turn until he saw that two vehicles had stopped in the westbound inside lane, and from his view at that point, the curb lane was clear.  He could not reasonably have been expected to remain stopped in the intersection as the light continued to turn from late amber to all-red, and then to early red.  He was therefore entitled to proceed on the assumption that oncoming traffic would act in accordance with the law.

 

[34]         The defendant, on the other hand, was required under the Motor Vehicle Act to stop her vehicle before entering the intersection.  As I have found above, the evidence establishes that she entered the intersection on a late amber or all-red.  Had she been as responsive to the light as she was obligated to be by ss. 128 and 129 of the Motor Vehicle Act, I find that she would have had sufficient time to stop her vehicle safely before entering the intersection.  This finding is supported by my findings as to the late stage of the Westminster Highway light, and the fact that several vehicles had already come to a stop in the other two westbound lanes before the defendant entered the intersection.

 

[38]         I therefore find, pursuant to the analysis set out in Lozinski and Miller v. Dent, 2014 BCCA 234, that the plaintiff, as the left-turning driver, was dominant, and the defendant, as the straight-through driver, was servient.  The defendant was thus obliged under s. 174 of the Motor Vehicle Act to yield the right of way to the plaintiff.  As a result of her failure to do so, and to stop her vehicle safely before entering the intersection, I find that the defendant should bear 100% of the liability for the Accident.

In Miller v. Dent, the Plaintiff was involved in a motor vehicle accident when turning left at an intersection and being struck by a vehicle proceeding straight through the intersection. At the original trial, the Plaintiff’s action was dismissed, prompting the Plaintiff to appeal. The British Columbia Court of Appeal allowed the appeal, ruling that the trial judge had erred in his analysis of Section 174 of the Motor Vehicle Act by first not making the necessary findings of fact to support that analysis. A new trial was ordered.

 

At the new trial, the trial judge had the benefit of evidence that was not before the original trial, such as expert accident reconstruction evidence, details of the traffic signal timing, and a witness statement that ICBC’S lawyer, through oversight, had not originally disclosed.

 

The trial judge accepted the evidence of the Plaintiff that the light was red before he turned left, and rejected the Defendant’s evidence that her light was green when she entered the intersection. The testimony of a key witness also corroborated the Plaintiff’s version of events. The trial judge also had issues with the credibility of the Defendant, ruling that her trial testimony was at variance with her original statement to ICBC and her evidence given at the first Examination for Discovery.

 

The trial judge also gave judicial consideration to Sections 128(1) and 174 of the Motor Vehicle Act, citing the previous Court of Appeal decision in Kokkinis v. Hall as being applicable to the case at bar. That case concerned the situation where there is a driver turning left, and the driver from the opposite direction fails to stop when he knew or ought to have known that the traffic light had turned yellow for his direction of traffic at a time when he could have stopped safely.

 

The trial judge ruled that the Defendant was fully liable for the accident.

 

[69]        Justice Newbury, writing for our Court of Appeal in Kokkinis v. Hall (1996), 1996 CanLII 2404 (BC CQ), 19 B.C.L.R. (3d) 273 (C.A.) describes the application of ss. 128(1) and 174 of the Motor Vehicle Act where there is a left turning driver and the ongoing driver fails to stop his or her vehicle before the intersection when, as the trial judge had found, “he [or she] knew or ought to have known that the traffic light had turned yellow for [his or her direction of traffic] at a time when he [or she] could have stopped in ‘safety’.” Justice Newbury stated at para. 10:

 

[10]      I must say this argument [that the left hand turning driver cannot assume the oncoming driver will obey the law] has given me pause; but ultimately I resolve it by asking whether in law Mrs. Kokkinis [the left turning driver] should be faulted for diverting her attention momentarily from oncoming traffic to check cross traffic at the point in time in question, i.e., as she prepared to start her turn – to see if any of those cars had jumped the light or were going to pose a threat to her turn. Was this an unreasonable or careless thing to do? I think not, given both the realities of the situation (which of course occurred over only a few seconds) and past decisions of this Court that have imposed on left-turning drivers the duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians, and whatever else may be present in the intersection. To say that the plaintiff can be found at fault because she relied on the assumption that Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as the other traffic did. An amber light is not, as the current witticism suggests, a signal to accelerate or to pass traffic that is slowing to a stop. Indeed, as Mr. Justice Esson noted in Uyeyama, in a busy city like Vancouver and at a busy intersection like 25th and Granville, an amber is likely the only time one can complete a left turn. Drivers approaching intersections must expect that this will be occurring. Putting a burden on a left-turning driver to wait until he or she sees that all approaching drivers have stopped would, in my view, bring traffic to a standstill. We should not endorse such a result.

 

[Emphasis in original.]

 

[70]        The rule set forth in Kokkinis applies to the facts of the case at bar. The defendant driver is entirely responsible for the collision. The three defendants must bear the liability.

In Kuma-Mintah v. Delange, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering, as well as other heads of damages. The Plaintiff had been traveling westbound through an intersection. The Defendant had been traveling southbound, before stopping for a red light, and then proceeding, at which point a collision occurred with the Plaintiff. Both parties claimed to have had the green light. Evidence of the traffic signal sequence was ultimately used to rule in favour of the Plaintiff. The Defendant had originally said she had been stopped for 30 seconds before proceeding, however the evidence of the traffic signal sequence proved that it could only have been about 11 seconds. This discrepancy in her evidence did not bode well for the Defendant.

 

[24] Ms. Delange’s vehicle was the only one present at or near the Intersection that could have triggered any of the embedded traffic sensors. And as I have pointed out, I find that other than Ms. Delange’s vehicle, there was no traffic on the Lougheed Highway or United Boulevard during the relevant time before the accident occurred that would have made any difference to the traffic signals affecting Mr. Kuma-Mintah. That means that if Ms. Delange was stopped at the Intersection as she claims, then she would have been waiting for only 11.3 seconds, and not 30 seconds, before she could proceed to make her left-hand turn. Her vehicle would have automatically triggered the various traffic signals controlling the Intersection to change in accordance with the sequence design.

 

[29] I find that Ms. Delange proceeded into the Intersection on a red traffic signal and collided with the vehicle being driven by Mr. Kuma-Mintah, contrary to s. 129(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. Mr. Kuma-Mintah was entitled to proceed through the Intersection on a green traffic signal pursuant to s. 127(1). I accept his explanation that there was insufficient time for him to have taken evasive action.

 

In Le v. Point, the Plaintiff was on a scooter when he was involved in a collision with a motor vehicle attempting to turn left at an intersection. The Plaintiff had originally been traveling behind another vehicle, and when it became apparent that this vehicle would be turning left, the Plaintiff pulled out into the next lane prior to entering an intersection. A vehicle traveling in the opposite direction, attempted to turn left in front of the Plaintiff‘s path, and had almost cleared the intersection, when the Plaintiff‘s scooter struck the right rear corner of the Defendant‘s vehicle. The Plaintiff was injured, and brought an ICBC claim for non-pecuniary damages, as well as other types of damages. ICBC’S lawyer argued that the Plaintiff was solely responsible for the accident. The Court held that the Defendant was the dominant driver at the time of the collision, however nevertheless found the Defendant to be 30% liable for the collision for attempting to make a wide left turn into the curb lane.

 

[51] I find that Mr. Le did not keep a proper lookout as he entered the intersection. If he had, he would have seen Ms. Dickson’s vehicle conducting a left turn. By the time he entered the intersection, Ms. Dickson’s vehicle was in the northeast corner of the intersection, which was directly in front of his line of vision.

[52] However, Ms. Dickson has admitted that she violated s. 165 of the Motor Vehicle Act by turning wide into the northbound curb lane of traffic on Arbutus rather than the lane of traffic closest to the centre line. While this in itself is not sufficient to establish that she breached her duty of care, if she had turned into the nearest northbound lane as required, it is likely she would have been clear of the intersection by the time that Mr. Le entered it and the collision may never have occurred. On this basis, I find Ms. Dickson was contributorily negligent in causing the collision despite the fact that she was the dominant driver.

[53] In closing arguments the plaintiff referred to several cases in which a left turning driver was held 100% liable for collisions: Andrews v. Mainster, 2012 BCSC 823, Clarke v. Stephan, 1993 CanLii 1554 (B.C.S.C.), Djukiv v. Hahn, 2006 BCSC 154, Tait v. Dumansky, 2012 BCSC 332, Pasemko v. Van Varner, 1994 CanLii 1043 (B.C.S.C.). These cases are not of assistance to the Court in deciding the issues at hand. In all of these cases it was found that the left turning driver failed to observe traffic which constituted an immediate hazard and breached an obligation to yield the right-of-way. Since I have found that Mr. Le was not an immediate hazard and Ms. Dickson was the dominant driver, these cases are distinguishable on their facts.

In Lee v. Tse, the Plaintiff was injured in an intersection collision, and consequently brought an ICBC claim for damages for pain and suffering, as well as various other forms of damages. The Plaintiff maintained he was injured when the Defendant ran a red light as the Plaintiff was turning left. The Defendant maintained that he had a green light, and that the Plaintiff unlawfully turned left into his path. The evidence at trial consisted of the testimony of the two drivers and their passengers, the evidence of two accident reconstructionists, as well as diagrams and photos of the scene. The Court, primarily based on some inconsistencies in the Defendant driver’s evidence, ruled that the Defendant was entirely at fault for the accident.

 

[48] In summary then, the MVA requires a left turning driver to yield to oncoming traffic that is in the intersection or so close as to constitute an “immediate hazard”. A driver facing a yellow light must stop before entering an intersection unless the stop cannot be made in safety. A driver must not enter an intersection on a red light.

 

[57] The courts have often considered the meaning of “immediate hazard” for left turning drivers. It is well established that an approaching vehicle is an “immediate hazard” if it is so close to the intersection that its driver must take some sudden or violent action to avoid the threat of a collision with the vehicle that is attempting a left turn: Raie v. Thorpe, [1963] BCJ No 14 (CA) [Raie]. The point in time to assess whether the through driver is an “immediate hazard” is the moment before the driver who proposes to turn left actually starts to make the turn: see Raie at para. 25; Nerval at para. 35.

 

[61] The plaintiff’s evidence in essence was that after he observed the defendant approaching the intersection from a safe distance away, he commenced his left turn and the impact occurred all of a sudden. He did not see the defendant swerve to the right and enter the intersection. The defendant argued that rather than focusing on oncoming traffic and any potential hazards the plaintiff was looking at the traffic light. The expert evidence of Mr. Bowler is helpful in this regard. His opinion was that the plaintiff could have avoided the collision if he started his perception reaction phase one second after starting his left turn. However, Mr. Brown’s report also included evidence that the defendant started to swerve right 1.2 seconds after the plaintiff started to turn left which Mr. Bowler also assumes. Taken together this evidence leads to the conclusion that one second after the plaintiff started to turn, the defendant had not yet swerved sharply to the right. There was no reason then for the plaintiff to attempt to stop his left turn at that point. None of the evidence before me suggests that it was possible for the plaintiff to observe the defendant and avoid the collision after the defendant commenced his swerve to the right, and therefore I conclude the plaintiff was not negligent by failing to keep a proper lookout.

 

In Shallow v. Dyksterhuis, the Plaintiff was traveling in front of the Defendant. The Defendant then entered the lane of oncoming traffic in order to pass the Plaintiff, however the Plaintiff also attempted to make a left hand turn at the same time at an intersection, and an accident occurred. The Plaintiff sustained injuries, and brought an ICBC claim for damages for pain and suffering, income loss, out of pocket expenses, and future care. The Defendant was found fully liable for the accident.

[25] There is no dispute that Mr. Dyksterhuis tried to pass the plaintiff on the left in a no passing zone. There was a solid double yellow line on the highway, but it was covered with snow.

[26] Mr. Dyksterhuis should not have attempted to pass Ms. Orcutt. First, he was in a no passing zone. Second, he wrongly assumed that she was not able to turn left at that place. Third, he was passing against a double solid line and did not sound his horn to warn Ms. Orcutt that he intended to overtake her.

[27] The defendant received a Violation Ticket charging him with two offences: unsafely passing on the left (s. 159) and following too closely (s. 162(1)). The defendant did not dispute the ticket. Therefore, he is deemed to have pleaded guilty: Offence Act, R.S.B.C. 1996, c. 338, s. 14(11).

[28] The defendant concedes he was partly to blame for the accident, but argues that Ms. Orcutt was also partly to blame. This is said to be based on her admission that she did not look over her left shoulder to determine whether there was a vehicle passing her before commencing her left turn.

[29] I am not persuaded that Ms. Orcutt’s action in not looking over her shoulder, amounts to a failure to take reasonable care. She was making a lawful left turn. She was in an area where passing was not permitted. She was in the left turn lane. The defendant did not sound his horn to warn her.

[30] Mr. Dyksterhuis faced a situation in which the intention of Ms. Orcutt was uncertain to him. His decision to pass her when faced with that uncertainty gives rise to total liability. For these and the above reasons, I conclude that the defendant is 100% at fault.

 

In Chingcanguo v. Herback, the Plaintiff was injured as a passenger in a motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, and cost of future care. The Plaintiff maintained that she was traveling through an intersection in the centre through lane, when the Defendant turned left in front of her, thereby causing the collision. The Defendant maintains that he believed he had time and room to turn left, as the Plaintiff was in the right lane, but at the last moment changed into the centre lane. The judge rejected the evidence of the Defendant, finding the Defendant negligent for the accident.

 

[92]        Rafael and the plaintiff say they were proceeding in the center through lane and that Herback’s vehicle suddenly turned in front of them.  Herback says he saw the plaintiff’s vehicle in the right turn lane, and that he thought it was safe for him to turn left and that the plaintiff’s vehicle moved to the center through lane immediately before the collision occurred. 

 

[93]        Herback was somewhat equivocal when giving his evidence.  He stated that he “didn’t believe” the plaintiff’s vehicle was always in the centre through lane.  He appeared to be reluctant to give his evidence in this respect with certainty.

 

[94]        I have no reason to disbelieve the plaintiff’s and Rafael’s versions of the event.  I found them to be credible witnesses.  They were taking their normal route home from the CRA office.  Rafael was familiar with the intersection of 88^th Avenue and 156^th Street.  He would have had no reason to be in the right turn lane when, to go home, he would have to proceed through the intersection. 

 

[95]        When the driver of a vehicle intends to turn left at a controlled intersection with a green light exhibited, he/she must yield the right of way to approaching traffic.  In order to fix any blame on the approaching driver, he/she must establish that the approaching driver had sufficient opportunity to avoid a collision, opportunity of which a reasonable, careful and skilful driver would have availed him or herself of.  Any doubt is to be resolved in favour of the approaching driver:  McCowan v. Arjune, 2002 BCCA 267 (CanLII), 2002 BCCA 267 at paras 19 and 20.

 

[96]        I find that Herback’s vehicle attempted to beat the plaintiff’s oncoming vehicle by making a left turn across its path when it was unsafe to do so.  There was no evidence that Rafael had sufficient opportunity to avoid the collision.

 

In Schafer v. Whiteley, the Plaintiff was injured in an intersection collision, and consequently brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, and cost of future care. The Plaintiff had been traveling in the far right curb lane as she approached an intersection with the intent of proceeding through the intersection. There were three lanes of travel in her direction. The Defendant, traveling in the opposite direction, where there were also three lanes of travel, turned left across the intersection into the path of the Plaintiff, with a collision resulting. Liability was in dispute.

 

The Plaintiff maintained that the Defendant was solely liable for the accident for turning left across her path when she was in the intersection, or was so close as to constitute an immediate hazard. ICBC’S lawyer maintained that the Plaintiff should be partially liable for the accident for having her right turn signal on, thereby giving the impression to the Defendant that she would not in fact be proceeding straight through the intersection, and also for not taking measures to avoid the accident when the Defendant was clearly there to be seen. ICBC’S lawyer submitted that liability should be apportioned at 75% for the Plaintiff, and 25% for the Defendant.

 

The Court found in favour of the Plaintiff, holding the Defendant to be 100% negligent for the accident.

 

[43]        As to the plaintiff, I find that she honestly believed in the truth of her testimony. Notwithstanding her reluctance to admit the possibility that she was mistaken, that possibility does exist. But I am not persuaded that the plaintiff was mistaken, and so I am not prepared to reject her testimony on this point.

 

[44]        The burden of proof rests on the defence. Even if Ms. Whiteley believed that the plaintiff’s right turn signal was on, I am not satisfied that she was not mistaken. In that respect, I find that the defence has failed to meet the burden of proof. I am not persuaded that it is more probable than not that the plaintiff’s right signal light was on at the time of the accident. There is a possibility that the signal light was activated, but that falls far short of the standard of proof required. I find that the defence has failed to prove the first allegation on which the defence of contributory negligence is based.

 

[61]        The burden of proof is on the defence. In my opinion, the defence has failed to establish that, after she ought to have seen Ms. Whiteley’s vehicle turning left, the plaintiff had sufficient time and distance within which to avoid the collision, and that a reasonable driver in Ms. Schafer’s position would have avoided the collision.

 

[62]        For the reasons I have outlined, I conclude that the defendants have failed to prove that the negligence of the plaintiff (i.e., her failure to see the defendants’ vehicle) was a cause of the accident. The defence of contributory negligence fails. The defendants are 100% liable for the damages that are to be awarded for the plaintiff’s injuries.

 

In Stewart v. Dueck, the Plaintiff was driving in the left lane. Ahead of her, in the right lane, was a large commercial vehicle, which started to make a right turn at an intersection after making sure that there were no vehicles approaching it. Due to its’ size, the large truck had to cross into the left lane so that it could make a broad, sweeping turn to the right. At this point, a collision ensued with the Plaintiff. The Plaintiff suffered injuries, and brought an ICBC claim, which would eventually be dismissed by the Court, which found the driver of the large truck did not act negligently.

 

[25]         Prior to initiating his turn, Mr. Dueck described that he first checked the traffic. He was satisfied that he could safely initiate his manoeuvre, as the traffic was a safe distance behind him. He then signaled a left turn and moved from the slow or curb lane into the fast lane. He blocked the lanes by crossing the dotted dividing line. He then turned his Unit into and through the left turn lane to make his turn. He says he never had his Unit entirely in the left turn lane but rather, he turned his Unit through the lane in “an arc”. He described his turning manoeuvre, which he says he executes routinely, as being designed to discourage other drivers from passing him on either side while he is executing his turn.

 

[34]         It is Ms. Stewart’s position that because he was driving in a negligent manner Mr. Dueck should be found entirely at fault or, in the alternative, primarily at fault for the accident.

 

[35]         Ms. Stewart does not take issue with Mr. Dueck’s assertion that the turning manoeuvre he undertook was appropriate for executing a right-turn at this particular Intersection. Rather, Ms. Stewart’s essential contention is that Mr. Dueck should have slowed down or stopped before initiating his right turn so that he could have first ascertained Ms. Stewart’s position. Her counsel disputes that Mr. Dueck activated his four-way flashers.  In any case, if it is found that Mr. Dueck did activate his four-way flashers Ms. Stewart argues that this did not constitute sufficient warning of his manoeuvre.

 

[36]         The defendants deny that Mr. Dueck was negligent and submit that Ms. Stewart bears the entire responsibility for the accident. Their primary contention is that the accident can only be explained by Ms. Stewart’s lack of due care and attention. The defence vigorously challenges the reliability of Ms. Stewart’s evidence.

 

[55]         In my view, the preponderance of the evidence supports a finding that Ms. Stewart failed to exercise due care in all of the circumstances. A reasonable driver in her position would have been put on notice that she should proceed with caution. Mr. Dueck’s 72-foot Unit with 14 flashing lights proceeding at 15 kph was clearly there to be seen. Contrary to the assertions of Ms. Stewart’s counsel, such a large vehicle “does not turn suddenly.” Ms. Stewart did not testify that she was watching the Unit and that Mr. Dueck failed to activate his four-way flashers or the right turn signal. She merely says that she did not observe his four-way flashers or the right turn signal. Had she been paying due care and attention to the roadway ahead of her, the operational flashing signals of his Unit – seven signal lights located at intervals down the length of each side of the Unit – would have been clearly visible to her. The four-way flashers and right turn signal would have been fully visible from the rear and passenger side of the Unit.