2008 BCSC 673 MacLaren v. Kucharek

Before: The Honourable Madam Justice Boyd

Reasons for Judgment

Counsel for the Plaintiff:	D.G. Crane
Counsel for the Defendant:	A.J. DuPlessis
Date and Place of Trial:	May 12-15, 2008
	Vancouver, B.C.

Introduction:

[1] The plaintiff claims damages arising from an accident which occurred on October 3, 2003, when he was struck by the defendant’s left turning vehicle while attempting to ride his bicycle through an intersection. Both liability and the quantum of damages (other than his pecuniary loss) are in issue.

Background:

[2] The plaintiff is 53 years of age. For approximately 20 years he has worked as an ambulance paramedic, latterly as a member of the Advanced Life Support team. In addition to his regular paramedic duties, he also serves as a member of the Ambulance Services Bike squad as well as the Urban Search and Rescue Team and the Anti-Terrorist Bio-Chemical team.

[3] Approximately ten years ago, in preparation for his Bike squad duties, he underwent intensive bicycle training, learning to handle and manoeuvre a bicycle while carrying two heavy panniers in urban traffic. Given his training and background, I am satisfied that on the date of the accident, the plaintiff was an experienced, trained cyclist, very much familiar with the challenges of urban vehicular traffic.

[4] October 3, 2003 was a clear, dry fall day. The accident occurred at 5:30 p.m., in full daylight hours. There were no visibility difficulties.

[5] Following his usual bicycle commuting route to work, the plaintiff was riding his mountain bicycle southbound on 140th Street in Surrey. He was wearing a blue bicycle helmet, a bright yellow riding jacket and red riding pants, as well as riding shoes and gloves. He intended to travel southbound on 140thStreet, passing Laurel Drive to his west, then through the intersection of 96th Avenue and 140th, and then some two blocks later, to turn onto a bicycle path leading to the rear of the Surrey Memorial Hospital grounds.

[6] The very unusual layout of the various roads and intersections at and near the scene of the accident must be appreciated in determining the issue of liability. While the layout has changed somewhat since the date of the accident, on the date of the accident the layout was as follows:

On 140th Street, in the stretch North of Laurel Drive, there are two lanes of traffic, although there are no lines dividing the two lanes. As the Speed Scene Diagram (Exhibit 2) demonstrates, at this point the southbound roadway is 24’4” wide, just slightly narrower than the northbound lanes of traffic which, at that juncture, are divided by broken painted lines. As the black tire and grease markings in the aerial view of the intersection demonstrate, (Exhibit 1, Tab 7), in this stretch of the southbound roadway north of Laurel Drive, the vehicular traffic regularly travels side by side in two distinct lanes. To the south of the intersection of 140th Street and 96th Avenue, the road widens to a full 34’6”, allowing 10’3” for a mandatory left turn lane, 12’ for a through lane, and 12’3” for a mandatory right turn lane.

[7] The plaintiff explained that historically, as he approached the intersection of 140th Street and 96th Avenue, he would not travel in the curb lane (where he would normally cycle on any roadway), since, beyond the intersection, such a route would lead him directly into the mandatory right hand turn lane on 140th Street. In his view, since he intended to proceed straight ahead on 140th Street and not turn right, it was dangerous if not illegal to travel in the curb lane. Moreover, in his view, it would be dangerous to wait until after passing through the Laurel/140th Street intersection, before moving back into the southbound through lane. In his view, to adopt such a route would fail to provide other motorists with as much notice as possible of his intended route and thus potentially give rise to confusion or surprises, and hence perhaps an unnecessary accident.

[8] On the date of the accident, following his usual pattern, he coasted down 140th Street towards the intersection of 140th and 96th Avenue. He could not recall noticing any southbound vehicular traffic to his left which was stopped, either waiting to turn left or waiting to travel through the intersection of 140th Street and 96th Avenue. Nor did he recall seeing a break in stopped traffic at the intersection of 140th Street and Laurel Drive. His only recollection was looking ahead and seeing that southbound traffic was moving through the intersection on a green light. He testified he was “coasting” downhill. He estimated his speed to be approximately 25-30kph. The posted speed limit was 50kph.

[9] Just as he was about to enter the intersection of 140th Street and Laurel Drive, he suddenly noticed “some movement from a vehicle in the northbound lane”. He stated that in the next instant this vehicle “was basically right in front of me”, attempting to make a left hand turn across his path. He could not recall seeing the vehicle’s turn signal. He said the vehicle was “well into the intersection” when the driver applied his brakes, presumably having seen the plaintiff at the last moment. The plaintiff immediately applied his own bicycle brakes but otherwise he says he had no opportunity to take any evasive action. His bicycle struck the right front passenger side wheel area of the defendant’s vehicle, causing the plaintiff to fly over the hood of the vehicle and land some distance away.

[10] The defendant is a young man who had lived in the vicinity for some period prior to the accident. He admitted that he was familiar with the intersection in issue. Immediately before the accident, he was returning from a soccer game, driving northbound on 140th Street and intending to turn left, across southbound traffic, to travel westbound on Laurel Drive. While he had no recollection of the state of the northbound traffic, he said southbound traffic on 140th Street was “pretty heavy” and was backed up to the north of the intersection, past Laurel Drive.

[11] He testified that at the intersection of 140th Street and Laurel Drive, he brought his SUV truck to a stop and applied his left hand turn signal, waiting for an opportunity to turn left across the southbound lanes. He said a southbound F350 Ford pick up truck stopped, just to the north of Laurel Drive, thus allowing him a pathway across the southbound lanes of traffic. Although the pickup had stopped, the defendant admitted he was aware he would still have to cross a second lane of southbound traffic.

[12] He says that he began to execute his left hand turn and after he reached a point some 2-3 feet beyond the front of the stopped pick up truck, he saw another southbound vehicle on 140th Street, driving in the “shoulder” of 140th Street. Since he was unsure whether that vehicle intended to continue southbound or whether it was going to turn (presumably westbound onto Laurel Drive), he stopped his own vehicle. In the next instant, he says his vehicle was struck by the plaintiff’s bicycle. (While the sequence of events is not clear, I should note that at some point, he observed the second vehicle actually stop just north of Laurel Drive and let a passenger out of the vehicle).

[13] Riding in the defendant’s vehicle were his two friends, a Mr. Kosinski and a Mr. Neil Carroll. Some time ago Mr. Kosinski returned to his native Poland and he has had no further contact with the defendant. Thus he was not called as a witness at trial.

[14] However the second passenger, Mr. Carroll, did testify on behalf of the defence. Mr. Carroll was sitting in the rear passenger side seat of the defendant’s vehicle. Just before the accident, he noted that southbound traffic was backed up on 140th Street. He was aware of his friend’s intention to turn left, across the southbound traffic, so as to proceed onto Laurel Drive. He noted that a vehicle “was letting us through” and that the defendant “was easing into making his turn”, moving “at a crawling speed”. He testified that “the next thing I know we were struck by a bicycle”. He did not see the plaintiff’s bicycle before the collision. He said that just the “tip of the front end” of the defendant’s vehicle was beyond the front of the stopped southbound vehicle when the impact occurred.

[15] This witness’ evidence was significant in the sense that he did not describe the defendant’s vehicle coming to a full stop either prior to the commencement of the left hand turn, or in the course of the turn as the defendant described. Nor did he describe seeing the second southbound vehicle, the presence of which had apparently caused the defendant to suddenly stop his vehicle in the course of his left hand turn. Clearly, the appearance of the plaintiff’s bicycle was a complete surprise to the witness. It is unclear whether this witness was simply not paying particular attention to the situation at hand or whether, given his position in the rear seat of the vehicle, his view of any other oncoming southbound traffic was either partially or totally blocked by the pick up truck at the head of the line of stopped traffic. In any case, I do not find that his evidence is of much assistance in resolving the liability issue at hand.

[16] The only other witness to the accident was a Mr. Michael Sanchez, an off-duty RCMP officer, who was sitting in his SUV truck, southbound on 140th Street, four to seven vehicles north of the intersection of 140th Street and Laurel Drive. He was sitting in his vehicle in a line of stopped cars, intending to continue to proceed southbound on 140th Street, past Laurel Drive, and then southbound through the intersection of 140th Street and 96th Avenue. Since he was on a downhill grade and sitting somewhat higher than other vehicles in his SUV truck, he says he could see there was a gap in the line of southbound traffic ahead, presumably to allow for northbound vehicles to turn left onto Laurel Drive.

[17] While in his stopped position, he saw the plaintiff’s bicycle pass him on his right, proceeding southbound, “going very fast, at a sprint speed”. In cross examination he conceded that while he was aware the speed limit on the road was 50kph, he was unable to attribute any particular speed of travel to the plaintiff’s bicycle. He could not say if the bicycle was travelling at a speed over the posted speed limit.

[18] As the plaintiff’s bicycle passed him, he says he looked ahead and could see the defendant’s vehicle making a left hand turn westbound “creeping through the intersection—through the gap” at 140th Street and Laurel Drive. He said the defendant’s vehicle was a half a car length through the intersection when the impact occurred. He agreed in cross examination that it appeared the defendant’s SUV had turned right into the path of the plaintiff’s bicycle and that in the circumstances, the plaintiff had no opportunity to avoid the collision.

[19] Like the plaintiff and the defendant, Mr. Sanchez agreed that in the area to the north of Laurel Drive, the usual pattern of traffic was for southbound traffic to divide into two clear lines of traffic—that is (1) vehicles which intended to either turn left or drive straight through the intersection at 96th Avenue and 140th Street, and (2) vehicles which intended to enter the right hand turn lane so as to turn right at 96th Avenue. Had he intended to turn right on 96th Avenue, he testified he would have been travelling along the most westerly of the two southbound lanes on 140th Street rather than sitting in the lane of stopped traffic. Since he intended to travel straight through the 96th Avenue intersection, he remained in the most easterly of the southbound lanes.

Position of the parties:

[20] The plaintiff’s position is that in the circumstances, since he was proceeding southbound, straight through an uncontrolled intersection, he was the dominant driver and that while the defendant, as the servient driver, was allowed to make his left turn this was only after ensuring there were no vehicles approaching so closely as to constitute an immediate hazard. He says that in making his turn, the defendant failed to ensure that before doing so there was no traffic approaching so closely as to constitute an immediate hazard, contrary to s. 174 of the Motor Vehicle Act. Relying on his own evidence and that of Mr. Sanchez, he says there was nothing he could have done to avoid the accident.

[21] The defendant’s position is that in travelling southbound on 140th Street, and passing to the right of the line of stopped southbound vehicles, at or prior to the intersection of Laurel Drive, the plaintiff was riding his bicycle in contravention of s. 158 of the Motor Vehicle Act.

[22] Section 158(1)(b) provides:

The driver of a vehicle must not permit the vehicle to overtake or pass on the right of another vehicle, except

(b) when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive.

[23] Since there is only one marked lane for southbound traffic on 140th Street to the north of Laurel Street, the defence submits the plaintiff was not entitled to pass the stopped southbound vehicles on 140th Street by overtaking them on the right. In effect the defence says that the plaintiff was where he should not have been; that he was illegally overtaking the stopped traffic; and that accordingly the defendant cannot be at fault for colliding with a cyclist who was proceeding illegally through the intersection.

[24] In the alternative, the defence submits that if the Court finds there were two southbound lanes rather than a single southbound lane, then, based on the plaintiff’s as well as Mr. Sanchez’s evidence, the Court ought to find the plaintiff was improperly in the “through” lane, rather than in the unmarked “right” lane at the point of collision. While Mr. Sanchez and other southbound drivers in the “through” lane had stopped and had yielded the right of way to the left-turning defendant’s vehicle, the defence says that the plaintiff wrongfully passed to the right of the stopped vehicles in the “through” lane, contrary to both s. 158 and s. 174 of the Motor Vehicle Act.

Analysis:

[25] While s. 158(1)(b) refers to the duties of the “driver of a vehicle”, I am satisfied the section applies equally to cyclists notwithstanding the definition of “vehicle” found in s. 1 of the Act, which excludes cyclists. Section 183(1) specifically provides that a person operating a cycle on a highway has the same rights and duties as the driver of a vehicle. (see also Rudman v. Hollander 2005 BCSC 1342; Dolphin v. Lepine, [1999] B.C.J. No. 103 (S.C); Hill v. Reekie, [1998] B.C.J. No. 40 (S.C.); and Briscoe v. Hives, [1999] B.C.J. No. 445 (Prov. Ct)).

[26] Notwithstanding the applicability of s. 158(1)(b), I am not persuaded the defence position can prevail here—that is that the evidence supports a finding the plaintiff was illegally passing on the right, in contravention of that section when the collision occurred.

[27] Very clearly all of the parties, including the plaintiff, the defendant and the witness Mr. Sanchez, acknowledged a clear pattern of traffic in this area to the north of Laurel Drive. There were effectively two lanes of southbound traffic, although not divided by marked lines. The defendant admitted that even though the vehicles in the stopped line of southbound “through” traffic were allowing him to begin his left hand turn through the intersection, he was well aware he had yet another lane of southbound traffic to cross.

[28] In the circumstances of this case, I am satisfied the plaintiff was travelling properly in the extreme right side of the southbound through lane, avoiding the mandatory right turn lane, yet travelling in a corridor well to the right of the stopped southbound traffic. I reject the submission that by travelling in that corridor, he was thereby illegally passing on the right of the southbound vehicles and that the defendant could therefore not have anticipated his presence in the through lane.

[29] I also reject the defendant’s alternative argument that assuming two lanes of southbound traffic, rather than travelling in on the right side of the southbound through lane, the plaintiff ought to have been travelling behind other southbound vehicular traffic and ought to have stopped behind that traffic so as to yield to the left turning northbound vehicles. This submission flies in the face of the Motor Vehicle Act which specifically provides that a cyclist must ride “as near as practicable to the right side of the highway” (s. 183(2)(c)). The realities of daily urban traffic is that cyclists regularly travel to the right side of vehicular traffic, often overtaking them in heavy traffic situations. While the cyclist has a duty to keep a proper lookout, I reject the notion that he is confined to travelling behind vehicular traffic.

[30] I accept the plaintiff’s testimony that while he could not recall any vehicular traffic to his left, he was at least travelling as far as practicable to the right side of the highway, although (in the circumstances at hand) not on the farthest right side of the highway. I accept his explanation that this was not possible since he would have found himself in the mandatory right turn bay, thus eventually forcing him, at or near the intersection, to make an abrupt and dangerous move across that lane to the southbound through lane. So as to avoid this situation, he aligned himself to ride just to the left of the western perimeter of the through lane, south of Laurel Drive.

[31] I am satisfied that given the idiosyncrasies of this intersection, and in particular the presence of a mandatory right turn lane of traffic immediately to the south of Laurel Drive, the plaintiff properly positioned his bicycle so that he would enter the right hand side of the through lane once he crossed to the south side of the intersection of 140th Street and 96th Avenue. I find that his position on the roadway was lawful and proper and satisfied his obligation under s. 183((2)(c) to ride “as near as practicable to the right side of the highway”. I find that he was keeping a proper lookout for traffic ahead and saw nothing to alert him that the defendant’s vehicle was about to turn into his pathway.

[32] Before turning left, past the stopped pick up truck and into the next lane of traffic, I find that the defendant failed to ensure there was no traffic approaching so closely as to constitute an immediate hazard. Accordingly I find he was in breach of s. 174 of the Motor Vehicle Act.

[33] My overall sense of the defendant’s evidence was that at some point during his left hand turn his attention was drawn to or momentarily distracted by an approaching southbound vehicle in the curb lane, which he was concerned might either be proceeding straight through or might be turning right at the intersection. At a point when he was halfway across the through lane, he stopped his vehicle to avoid any collision with that vehicle. However in the interim he overlooked that he had driven into the path of the plaintiff’s own oncoming bicycle.

[34] While the defence raised the suggestion the plaintiff’s bicycle approached at such a high speed that he could not be seen by the defendant, there was no evidence to support such a theory. As I noted earlier, Mr. Sanchez was unable to attribute any speed to the plaintiff’s bicycle. Nor was it put to the plaintiff on cross examination that he was speeding down the hill as he approached the intersection. To the contrary he testified that he was not speeding and estimated his own speed at 25kph-30kph, well below the 50kph speed limit. I find there is no evidence that excessive speed played any role in this accident. The burden is on the servient driver to establish that the speed of the dominant vehicle prevented its driver from taking reasonable measures to avoid the accident. That burden has not been met here.

[35] Thus, in all of the circumstances, I find that the plaintiff was travelling lawfully along 140th Street at Laurel Drive when the defendant turned into his path. The defendant negligently failed to ensure he could complete his left hand turn without first ensuring before doing so that there was no traffic approaching so closely as to constitute an immediate hazard, thus breaching s. 174 of the Act. By the same token I find the plaintiff had no opportunity to avoid the collision and that accordingly he was not contributorily negligent.

Damages- Non Pecuniary:

[36] As I noted earlier, the plaintiff struck the right passenger wheel area of the defendant’s SUV and was catapulted through the air, landing on the roadway nearby. While he was stunned for a moment, he admitted he was unaware of any loss of consciousness. Almost immediately he attempted to assume a seated position but could not do so, given the extreme pain in his pelvis and hip area. He was transported by ambulance to the local Emergency Department of the Surrey Memorial Hospital where he complained of pain in the neck, right hand, arm and shoulder, as well as the back, pelvis and right hip. He was x-rayed and no fractures were identified, He was released some hours later with instructions to take Tylenol #3 for pain and to report to his own family doctor for follow-up.

[37] That night the plaintiff was in such extreme pain his paramedic wife insisted he return to the Emergency but he refused. His wife attended the Emergency herself where the doctors provided her with a prescription for a narcotic drug (Percoset) to tide him over for a few days until he was well enough to attend on his doctor. On October 6, 2003, he attended upon his family physician, Dr. Fransen, who diagnosed soft tissue injuries of the low back, right hip, right shoulder and left hand.

[38] The plaintiff was unable to work for approximately one month, thus losing 18 shifts of work as a paramedic and the ability to participate in a Justice Institute training course he was scheduled to teach.

[39] The plaintiff’s overall recovery has been remarkable, no doubt as a result of his excellent physical conditioning. For years he has followed a regular weight training and fitness program. Within a week or so of the accident, his right arm and hand pain had resolved. The hip and pelvic pain also resolved quickly. By October 31, 2003, he described himself to his doctor as “80% improved”. The low back pain persisted for approximately 3-4 months post accident. The neck pain was not resolved until approximately 1½ years post accident.

[40] Clearly, the most protracted injury concerns the plaintiff’s right shoulder soft tissue injury. For the first several months, he was plagued by continuing pain and discomfort in the right shoulder, associated with some numbness of his right hand. In November 2003, Dr. Fransen referred him to physiotherapy which the plaintiff testified was not particularly helpful. While the plaintiff enjoyed some general improvement over time, he testified that by October 2006, some three years post accident, his condition had more or less plateaued.

[41] While he has been able to return to his full time duties as a paramedic and a member of the various additional groups (ie. Bike Squad, Urban Search & Rescue; Chemical Biological Radioactive Explosive team), he continues to suffer some limitations. After bicycling to work he notes some pain and discomfort in his right shoulder, numbness in his right hand and some thumb pain (“as if my thumb had been hit with a hammer”). He shakes the arm and hand for a period and the numbness and pain go away. He has also learned to modify his regular home weight training routine to entirely avoid bar dips and chin-ups which he has learned trigger the shoulder pain.

[42] In his report of March 9, 2006, his family physician opines that the prognosis for a full recovery of the right shoulder is guarded, given the persistence of his symptoms.

[43] The defence relies on the report of Dr. Marc Boyle dated January 5, 2008 (Exhibit 1, Tab 4). Regarding the right shoulder Dr. Boyle notes in the report:

The physical examination is unrewarding. The history was suggestive of a mild impingement syndrome. There was no prior history of such. His complaints are likely secondary to the MVA. There is possibility of a progression over time with symptoms that will recur with repeated overhead use. In his age group, the likelihood is for chronic recurring discomfort. He is aware of the precipitating factors and is avoiding these.

There is no likelihood of late degenerative changes arising in the shoulder since this is a soft tissue problem of a rotator cuff tendonitis and subdeltoid bursitis.

Medical management should be in the form of stretching and strengthening exercises for the rotator cuff, and the use of anti-inflammatories.

Should his symptoms become more pronounced and in any way limiting, the next step in treatment would be a subacromial injection of Xylocaine and Depo-Medrol.

Should his symptoms progress further, then he would benefit from a subacromial decompression. This would likely be done arthroscopically. Disability on the order of roughly eight weeks would be considered appropriate and perhaps up to 12 weeks for his work as an ambulance attendant.

The patient indicated that he is likely to retire in two to three years. It is this writer’s opinion that his symptoms are very unlikely to progress to the point where any disability would occur related to his work.

(my emphasis)

[44] Relying on Dr. Boyle’s report, I am satisfied that the plaintiff’s shoulder injury has not resolved entirely and that he faces the likelihood of chronic recurring discomfort. Further, there is a risk of his symptoms progressing, perhaps some day necessitating arthroscopic surgery. Based on the last paragraph above, I conclude that while the progression of the symptoms is not likely to occur within the next 2-3 years, there is indeed a possibility this progression of symptoms may occur during the plaintiff’s retirement years, exposing him to a period of reduced capacity and perhaps ultimately to surgery.

[45] In this regard, the plaintiff is concerned that while his shoulder injury may not presently interfere with his work as a paramedic, it may very well interfere with this retirement plans.

[46] Some time ago, he and his wife purchased a 400 acre ranch near Williams Lake. The land comprises 100 acres of hay and 300 acres of pasture. The plan is to raise hay, alfalfa, and cattle. The plaintiff had not planned to hire any ranch hands, but rather to handle the ranch on his own, with the help of his wife. He is concerned that if the condition of his shoulder worsens, there may be a period when he will not be able to handle the large animals nor bale and stack hundreds of 40 lb. bales of hay. While his counsel has not articulated any specific future pecuniary loss, he submits that the award of general damages ought to reflect this future risk—that is the diminishment of his ability to physically manage the ranch single-handedly.

[47] The plaintiff submits that in all of the circumstances an appropriate range of damages is $35,000-$40,000 (Nisbet v. Pare 2007 BCSC 1173; Ho. v Meghani 2004 BCSC 320; White v. Stonestreet 2006 BCSC 801; Beick v. Webb 2003 BCSC 1251; Park v. Arthur 2007 BCSC 1365.

[48] The defence submits the injuries are not as serious and suggests an award of $20,000 would be appropriate. (Ferreira v. Sahota, (April 23, 1993, Vancouver Registry No. B914814; Xu v. Insurance Corp. of British Columbia 2001 BCSC 830; and Foreman v. Moritz 2001 BCSC 95.)

[49] Considering the plaintiff’s ongoing shoulder symptoms, the likelihood of ongoing chronic discomfort, the risk of some progression of symptoms in the future and the attendant risk of the diminishment of his capacity to physically manage his ranch single-handedly in future, I find an appropriate award of general damages to be $35,000.

Pecuniary Loss

[50] It was agreed between counsel that the wage claim here amounts to $8,750.36. I will award that amount and leave it to counsel to calculate the necessary tax deductions.

Special Damages:

[51] The plaintiff’s bicycle and helmet were damaged and replaced at a cost of $809.33 which amount is also awarded.

Costs:

[52] Since I am unaware of whatever offers of settlement have been exchanged, I will leave it to counsel to address this issue. If they are unable to resolve it between themselves, they ought to contact the Registry to make arrangements to file written submissions on the issue.

“The Honourable Madam Justice Boyd”

Citation:	*MacLaren v. Kucharek,*
	2008 BCSC 673