IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Rackstraw v. Robertson, |
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2011 BCSC 947 |
Date: 20110714
Docket: M075011
Registry: Vancouver
Between:
Aaron William Rackstraw also known as Aaron William Peters and Simon Peter Rackstraw, Infants by their Litigation Guardian, Gertie Rackstraw, Gertie Rackstraw and Andrew Travis Rackstraw also known as Andrew Travis Peters
Plaintiffs
And
William J. Robertson, A.M. P.M. Landclearing & Demolition Ltd,
Matsqui-Sumas-Abbotsford
General Hospital, Fraser Health
Authority, Dr. John Doe #1, Dr. John Doe #2, Dr. John Doe #3, Dr. John
Doe #4, Dr. John Doe #5; Nurse Jane Doe #1, Nurse Jane Doe #2, Nurse Jane
Doe #3, Nurse Jane Doe #4, Nurse Jane Doe #5, Physiotherapist Jane Doe #1,
Physiotherapist Jane Doe #2, John Doe #1, John Doe #2, John Doe #3
Defendants
Before: The Honourable Madam Justice Fisher
Reasons for Judgment
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Counsel for the plaintiffs: |
D.M. Mah |
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Counsel for the defendants William J. Robertson and A.M. P.M. Landclearing & Demolition Ltd: |
A. Leoni |
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Place and Date of Trial: |
Vancouver, B.C. July 5, 2011 |
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Place and Date of Judgment: |
Vancouver, B.C. July 14, 2011 |
[1] On November 22, 2005, Peter Rackstraw was injured in a tragic motor vehicle accident. He subsequently died in hospital. His wife and children claim damages against the defendants William Robertson and A.M. P.M. Landclearing & Demolition Ltd. under the Family Compensation Act, R.S.B.C. 1996, c. 126, for negligence arising from the accident. These defendants seek a dismissal of the claim against them under Rule 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. The plaintiffs have discontinued the action against the remaining defendants.
[2] The plaintiffs do not dispute the suitability of a summary trial to determine the issue of liability for the motor vehicle accident. The essential facts are not in dispute.
[3] Section 2 of the Family Compensation Act provides:
If the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not resulted, have entitled the party injured to maintain an action and recover damages for it, any person, partnership or corporation which would have been liable if death had not resulted is liable in an action for damages, despite the death of the person injured, and although the death has been caused under circumstances that amount in law to an indictable offence.
[4] The plaintiffs claim that the accident was caused in part by the negligence of the defendant Robertson, who was driving a vehicle owned by the defendant company. These defendants say that the accident was caused solely by the negligence of Mr. Rackstraw.
[5] The accident occurred shortly before 7:00 am on November 22, 2005, at the intersection of Mount Lehman Road and Sunset Crescent in Abbotsford, B.C. Mount Lehman Road and Sunset Crescent meet in a T-intersection. Mount Lehman Road runs north-south and Sunset Crescent, which runs east-west, meets Mount Lehman on the west side. There are no traffic lights at the intersection. A stop sign governs the eastbound traffic on Sunset Crescent. The roads are straight and flat. Mount Lehman Road has one lane of travel in each direction, separated by a single, broken line in the vicinity of the intersection.
[6] The speed limit on Mount Lehman Road was 60 kph[1], except for a school zone that is south of Sunset Crescent, where the speed limit was 50 kph at the time of day the accident occurred.
[7] Mr. Robertson was driving a large tractor-trailer, traveling north on Mount Lehman Road. He decided to pass a northbound vehicle ahead of him. He did so at the end of the school zone where the centre line was broken. As the cab of his truck was just about at Sunset Crescent, Mr. Robertson first saw the vehicle driven by Mr. Rackstraw, about a car and a half length from the stop sign on Sunset. He said that he could only see the first 20 to 25 feet of Sunset because the view is obstructed by a house and a hedge. Mr. Robertson also saw the vehicle proceed around the corner to head south on Mount Lehman, without stopping at the stop sign. At that point, he had not completed his pass and the trailer was still in the southbound lane. He felt the Rackstraw vehicle hit the driver’s side front axle of the trailer. Mr. Robertson estimated that he was traveling approximately 65 kph at the time of the collision. He said in discovery that did not honk his horn because he had “no time to do anything.”
[8] Mr. Robertson pulled over and stopped his vehicle. The other northbound vehicle did the same. Mr. Rackstraw’s vehicle was in a ditch on the west side of Mount Lehman Road and Mr. Rackstraw had been thrown out of the vehicle through the passenger side windshield.
[9] Sander Ketellapper was the driver of the other northbound vehicle. He deposed that the tractor-trailer pulled into the southbound lane to pass him before he reached Sunset Crescent and was almost back into the northbound lane when it collided with the other car. He estimated that he was driving approximately 45 kph and the tractor-trailer accelerated to a speed over 60 kph when passing.
[10] There is some inconsistency in the evidence about the weather and road conditions. Mr. Robertson deposed that the weather was clear, the roads dry and it was dark out with the temperature close to freezing. In discovery, Mr. Robertson described the condition as “early light” with good visibility. Mr. Ketellapper deposed that it was dark and foggy and the road was damp but not icy. Given the evidence that Mr. Robertson was only able to see 20 to 25 feet down Sunset and that he saw the Rackstraw vehicle as it was approaching the intersection, I do not think that much turns on whether it was foggy or clear. The accident occurred before 7:00 am in November, so it would not have been completely dark.
[11] Police attended at the scene very shortly after the collision. Constable Leisa Shea was the principal investigating officer. She deposed that she observed the windows of the Rackstraw vehicle to be icy and non-transparent. The driver’s side windshield had a 12 by 24 inch area where the ice had been scraped and there was one patch on the driver’s side window, approximately 12 inches high, which had also been scraped. The passenger side window had not been scraped. It was not possible to determine the state of the passenger side windshield, as it had broken away when Mr. Rackstraw was ejected from the vehicle.
[12] The plaintiffs admit that Mr. Rackstraw had a duty to stop at the stop sign on Sunset Crescent and failed to do so, and consequently he shares liability for the accident. They say that Mr. Robertson also shares liability because he was negligent in attempting to pass another vehicle in the southbound lane of Mount Lehman Road when it was not safe to do so.
[13] These defendants say that the accident was caused solely by the negligence of Mr. Rackstraw in failing to stop at the stop sign, failing to clear the windows of his vehicle, failing to keep a proper lookout and failing to yield to through traffic on the highway that was so close as to constitute an immediate hazard.
[14] Mr. Rackstraw, in approaching the intersection of Sunset Crescent and Mount Lehman Road against a stop sign, was the driver of the vehicle in the servient position and as such had the obligation to yield to vehicles travelling on Mount Lehman Road. Section 186 of the Motor Vehicle Act, R.S.B.C., c. 318 [the Act] requires a driver to stop at a marked stop line, or if there is no stop line at the point nearest the intersecting highway from which the driver has a view of approaching traffic. Section 175 requires a driver who has stopped at a stop sign to yield the right of way to traffic on the through highway:
(1) If a vehicle that is about to enter a through highway has stopped in compliance with section 186,
(a) the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and
(b) having yielded, the driver may proceed with caution.
[15] It is only where the driver has complied with s. 175(1) that the servient position moves to a driver in the position of Mr. Robertson. Subsection (2) provides:
(2) If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway.
[16] In this case, Mr. Rackstraw did not comply with s. 186 or s. 175(2), so the Robertson vehicle maintained the dominant position.
[17] While the servient driver has the obligation to yield, the dominant driver has a duty to act so as to avoid a collision if reasonable care on his part will prevent it. In Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) Cartwright J. adopted the principle that the dominant driver ought not to exercise his right of way if the circumstances are such that the result of his doing so will be a collision which he reasonably should have foreseen and avoided.
[18] Cartwright J. went on to discuss at p. 461 what the servient driver must prove in order to place any fault on the dominant driver:
... 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.
[19] This has not been interpreted to mean that the dominant driver is required to take extraordinary steps to avoid the collision. In Salaam v. Abramovic, 2010 BCCA 212, the court stated at para. 25:
A driver like the defendant, who is in a dominant position, will not typically be found to be liable for an accident. Drivers are generally entitled to assume that others will obey the rules of the road. Further, though defensive driving and courteous operation of motor vehicles are to be encouraged, they do not necessarily represent the standard of care for the purposes of a negligence action. A driver will not be held to have breached the standard of care simply because he or she failed to take extraordinary steps to avoid an accident or to show exceptional proficiency in the operation of a motor vehicle.
[20] Rules with respect to overtaking vehicles in circumstances similar to this case are set out in ss. 157(1), 159 and 160 of the Act:
157 (1) Except as provided in section 158, the driver of a vehicle overtaking another vehicle
(a) must cause the vehicle to pass to the left of the other vehicle at a safe distance, and
(b) must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle.
...
159 A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety.
160 A driver of a vehicle must not drive to or on the left side of the roadway, other than on a one way highway, unless the driver has a clear view of the roadway for a safe distance, having regard for all the circumstances.
[21] The provisions of the Act do not provide a complete legal framework but are to be regarded as guidelines for assessing fault in motor vehicle accident cases. In Salaam at para. 21, the court held:
In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.
[22] More particularly, the court said this about s. 175 of the Act, at para. 33:
The words “immediate hazard” appear in both ss. 174 and 175 of the Motor Vehicle Act and are used to determine when a vehicle may lawfully enter an intersection. They determine who is the dominant driver, but do not, in themselves, define the standard of care in a negligence action.
[23] Finally, if I determine that the damage or loss was caused by the fault of both Mr. Rackstraw and Mr. Robertson, I must apportion liability between them. Section 1 of the Negligence Act, R.S.B.C. 1996, c. 333, provides:
(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.
(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.
(3) Nothing in this section operates to make a person liable for damage or loss to which the person's fault has not contributed.
[24] There are a number of factors that may be considered in assessing the relative degrees of fault. These are summarized in Cavezza Estate v. Seifred, 2009 BCSC 447, aff’d 2010 BCCA 404. Counsel for the plaintiffs relied on these factors as a basis for establishing liability. This is not correct. In the context of apportionment, the court assesses degrees of fault, or blameworthiness. Blameworthiness is not the degree to which each party’s fault has caused the loss but rather the degree to which each party is at fault.
[25] Mr. Rackstraw owed a duty of care to other drivers travelling on Mount Lehman Road, in particular Mr. Robertson. He breached that duty by failing to stop at the stop sign, failing to keep a proper lookout and failing to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road. Mr. Rackstraw was the servient driver at all times.
[26] Mr. Robertson also owed a duty of care to other drivers travelling on Mount Lehman Road when he decided to pass the vehicle in front of him and enter the southbound lane. The plaintiffs say that Robertson breached his duty by failing to ensure that he had a clear view of the roadway for a safe distance, including eastbound traffic on Sunset Crescent. With respect, I disagree.
[27] Mr. Robertson complied with ss. 157(1), 159 and 160 of the Act. He had a clear view of Mount Lehman Road for a safe distance ahead before he started his pass. He did not look for traffic approaching from Sunset Crescent. The law imposes a duty on him to keep a lookout for what was ahead of him: see Samograd v. Collison (1995), 17 B.C.L.R. (3d) 51 (C.A.). It does not impose a duty to keep a lookout for traffic on intersecting roads; to do so would indeed be dangerous. Mr. Robertson was entitled to assume that other drivers would observe the rules of the road, particularly those in the position of Mr. Rackstraw, who was governed by a stop sign and an obligation to yield: Salaam; Pacheco (Guardian ad litem) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.).
[28] Mr. Robertson was at all times the dominant driver. However, in accordance with Walker, he had a duty to act so as to avoid a collision if reasonable care on his part would have prevented it. In order to ground any liability on Robertson, the plaintiffs have to establish that after he became aware, or should have become aware, that Rackstraw was proceeding on to the roadway without stopping, he had a sufficient opportunity to avoid the accident.
[29] The plaintiffs point to three things: Robertson’s speed, his failure to sound his horn and the size of his vehicle.
[30] Robertson was travelling at approximately 65 kph in a 60 kph zone. The plaintiffs say that he started his pass when he was still in the school zone, where the speed limit was 50 kph at that time of day. However, the evidence does not establish precisely where the school zone stopped and the 60 kph speed limit resumed. While there is a posted 60 kph limit on Mount Lehman Road just south of Sunset Crescent, s.147(1) of the Act provides:
A person driving a vehicle on a regular school day and on a highway where signs are displayed stating a speed limit of 30 km/h, or on which the numerals "30" are prominently shown, must drive at a rate of speed not exceeding 30 km/h while approaching or passing the school building and school grounds to which the signs relate, between 8 a.m. and 5 p.m., or subject to subsection (1.1), between any extended times that are stated on the signs. [Emphasis added.]
[31] The evidence shows that Robertson began his pass when the centre line became a broken line, which appears to be after he had passed the school grounds.
[32] In any event, the fact that Robertson was travelling over the speed limit will only constitute negligence if his speed is what prevented him from taking reasonable evasive action: see Cooper v. Garrett, 2009 BCSC 35 at para. 42. In my view, there is no evidence which establishes that Robertson’s speed prevented him from doing so. His truck was just about at the intersection when he first saw Rackstraw’s vehicle, and only his trailer, or part of it, was still in the southbound lane when the impact occurred. Robertson’s evidence about this was consistent with that of the only other witness, Mr. Ketellapper, who placed Robertson’s truck and trailer almost back into the northbound lane when the collision occurred.
[33] Robertson did not sound his horn. While he acknowledged that it would normally take him a second to do so, he said that he had no time to do anything. While it may have been prudent for Robertson to have sounded his horn as a warning, there is again no evidence that he had sufficient reaction time or that a warning would have made any difference. The circumstances here are quite different from those in Pipe v. Dusome, 2007 BCSC 1066, and Eccleston v. Dresen, 2009 BCSC 332, cited by the plaintiffs. In each of those cases, the defendant attempted to pass the plaintiff’s vehicle when there was some uncertainty about what the plaintiff was going to do and there was no suggestion that the defendant had insufficient time to sound a warning.
[34] The plaintiffs say that Robertson’s conduct in attempting to pass on an urban, residential road in a large tractor-trailer created a serious risk of injury to Mr. Rackstraw and other motorists. They submitted that because the vehicle was much longer than a conventional one, Robertson knew or ought to have known that any pass should have been carried out only where all traffic – oncoming, eastbound and westbound – could be seen. They also submitted that in these circumstances, Robertson should have completed his pass before he reached the intersection.
[35] I have already concluded that Robertson did not have a duty to keep a lookout for traffic on intersecting roads. I cannot accept the plaintiff’s submission that Robertson created a serious risk of injury by passing another vehicle while driving a large tractor-trailer. The rules of the road apply to all vehicles. While the nature of a vehicle may have a bearing on what is reasonable conduct, in the circumstances of this case, I cannot conclude that Robertson breached his duty of care. There is no basis to find that he ought to have completed his pass before he reached Sunset Crescent.
[36] The circumstances of this case are similar to those in Ferguson v. All-Can Express Ltd. et al, 2001 BCCA 57, where the plaintiff was in a similar position as Mr. Robertson. While the plaintiff was attempting to pass a large truck and trailer, the defendant entered the highway from a driveway on the left side of the road and turned right, into the lane in which the plaintiff was approaching. The plaintiff had no opportunity to see the other vehicle until it entered the highway and neither party was able to take any steps to avoid the collision. The trial judge found the plaintiff to be partially at fault, but this was reversed on appeal. After referring to Walker, McEachern, C.J.B.C. held for a unanimous court:
[23] As I see it in this case, the plaintiff was clearly in the position of the dominant driver. The defendant was the serviant driver. The plaintiff could only be found to have not used reasonable care if he should have become aware of the defendant's failure to comply with the obligation cast by law upon him and if the plaintiff had sufficient opportunity to avoid the accident of which a reasonable, careful and skilful driver would have availed himself.
[24] As I see it there was no opportunity for the plaintiff to avoid this accident. As he was engaged in a lawful manoeuvre I cannot agree with the learned trial judge, with respect, when she found an apportionment of liability should be made against the plaintiff.
[25] In my judgment this accident was caused solely by the failure of the defendant to comply with the statutory requirements and with the common law that imposed upon him an obligation not to put him in the position where an accident of this kind would be inevitable once he entered upon the highway without making sure he could do so without safety.
[37] Similarly, it is my opinion that the accident in the case at bar was caused solely by the failure of Mr. Rackstraw to stop at the stop sign, to keep a proper lookout and to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road. When Robertson started his pass, there was no reason for him to believe that he could not do so safely or that he would interfere with the travel of another vehicle. As in Ferguson, he was engaged in a lawful manoeuvre. He did not see, and could not reasonably have seen, the Rackstraw vehicle until he was just about at the intersection and he had no reasonable opportunity to avoid the collision.
[38] In these circumstances, the plaintiffs’ claim in negligence against William Robertson and A.M. P.M. Landclearing & Demolition Ltd. must be dismissed, with costs to the defendants.
“Fisher J.”
[1] This was confirmed in a video taken by one of the plaintiffs depicting the northbound route on Mount Lehman Road towards Sunset Crescent, which shows a 60 kph sign before the school zone begins. While there is no evidence as to when the video was taken, both counsel agreed that the video is an accurate depiction of the state of the roadway as of the date of the accident. There is another posted 60 kph sign just south of Sunset Crescent, which is shown in photographs.