2008 BCSC 716 Quade v. Schwartz

Before: The Honourable Madam Justice Griffin

Reasons for Judgment

Counsel for Plaintiff	C. McTavish
Counsel for Defendant	M. Wilhelmson, T. Jones
Date and Place of Hearing:	April 24 & 25, 2008
	Vancouver, B.C.

INTRODUCTION

[1] On November 2, 2004, Jesko Quade was riding his bicycle through the intersection of Main Street and East 2^nd Avenue in Vancouver when he collided with a BMW car driven by Glen Schwartz. The accident occurred shortly after 6:00 p.m., well after sunset. Mr. Quade’s bicycle was not equipped with a headlamp or any reflectors and he was wearing all black clothing. Mr. Quade’s face hit the passenger window of the car with enough force to smash the glass and he suffered personal injuries. He is suing Mr. Schwartz, claiming that Mr. Schwartz was negligent in turning left in front of him.

[2] Both parties agreed to have a summary trial of the issue of liability by Rule 18A. I have concluded that I am able to find the necessary facts on the evidence to determine liability.

FACTS

[3] On the evening of the accident, Mr. Schwartz was driving south on Main Street. He intended to turn left at the intersection with East 2^nd Avenue.

[4] The intersection of East 2^nd Avenue and Main Street is a large and busy intersection in an urban industrial area of Vancouver. Main Street is a major arterial route for north/south traffic into and out of the downtown core of the city. Main Street has seven lanes divided by a cement median. There are three through lanes in each direction and dedicated left-turn lanes opposite each other for left-turning vehicles.

[5] There is a fairly steep downhill grade for northbound traffic on Main Street approaching the intersection, which flattens out at the intersection.

[6] East 2^nd Avenue is also a major arterial route for east/west traffic and has seven lanes with the same configuration of three through lanes in each direction and dedicated left-turn lanes for left-turning vehicles.

[7] As Mr. Schwartz arrived at the Main Street intersection with East 2^nd Avenue, he turned on his left-turn signal and stopped in the left turn lane. The traffic light was green for north/south traffic. Mr. Schwartz recalls his vehicle being the first vehicle in the left-turn lane, although an independent witness, Mr. Ryan Harper, saw a number of cars turn left onto 2^nd Avenue heading east ahead of Mr. Schwartz making his left turn.

[8] Mr. Schwartz brought his BMW to a full stop at the edge of the east/west crosswalk on the north side of the intersection and waited for the northbound traffic to clear. As he waited, he drove the car forward just past the crosswalk and came to another full stop.

[9] Mr. Schwartz says that he checked to ensure that the northbound traffic had cleared before he proceeded with his left turn. The light was still green for the traffic flowing north and south.

[10] After Mr. Schwartz initiated his left turn, but before he reached the crosswalk running north/south on the east side of the intersection, he suddenly became aware of a fast moving object to his right, visible through his passenger side window. He immediately braked and, within a second, Mr. Quade collided with his car.

[11] The collision was initially around the front passenger wheel well and front fender. Mr. Quade then hit the side of the car and the side-view mirror, and his face smashed into and broke the passenger door window. He fell to the ground.

[12] Mr. Schwartz remembers braking and stopping his BMW almost immediately. He then moved his car forward approximately three feet east of its initial resting position.

[13] Mr. Quade has no memory of the accident.

[14] It is agreed on Mr. Quade’s behalf that his bicycle was black and dark green in colour and it had no reflectors or headlamp. Mr. Quade had no helmet, although the defendant is not advancing any allegations of contributory negligence based on the lack of a helmet. Mr. Quade was dressed in black clothing.

FACTUAL ISSUES

[15] There are certain factual issues which need to be analyzed in order to determine whether Mr. Schwartz fell below the standard of care expected of a driver in the circumstances of this case and whether there was any contributory negligence on the part of Mr. Quade. These factual issues include the following:

(a) the speed of the car;

(b) the speed of the bicycle;

(d) the location of the bicycle when the car began its left turn into the northbound lanes; and

(e) the response time of the bicycle rider.

[16] Both the plaintiff and defendant filed expert evidence of professional engineers who are accident reconstruction experts to assist the court in determining the factual issues. There was considerable common ground between the experts. Where they differed was in the speed of the car at the point of impact, and the location of the bicycle just prior to and during Mr. Schwartz’s left-hand turn.

(a) Speed of Car

[17] The plaintiff filed the expert evidence of Mr. Gerald Sdoutz, P. Eng., an accident reconstruction engineer, by way of a report dated October 19, 2007. He reconstructed the speed of the car at the time of impact by looking at the initial resting position of the BMW. In his analysis, he estimated that the BMW travelled 10 to 12 metres from the accident location to its resting position. Based on the assumption that Mr. Schwartz braked from impact to resting position, an assumption borne out in the evidence, assuming his braking was at maximum, and utilizing the roadway coefficient of friction at 0.7 at the accident scene for the deceleration during this maximum braking, Mr. Sdoutz estimated the BMW was travelling at approximately 43 to 46 km per hour at the time of impact.

[18] Mr. Schwartz relied on the expert evidence of Mr. Brian Thicke, P. Eng., also an accident reconstruction expert, who prepared reports dated February 8, 2007 and February 8, 2008.

[19] Mr. Thicke attempted no calculation of the speed of the BMW. He simply assumed based on “typical left turn manoeuvres” that the car was “likely travelling at 20 to 30 km/h at impact”.

[20] Two independent witnesses described Mr. Schwartz’s left-hand turn as a “normal left turn”. One of those witnesses, Mr. Harper, an American citizen, estimated the BMW’s speed at the time of the accident as approximately “35-45”, which was likely a reference to miles per hour based on his description of the speed for the bicycle in miles per hour.

[21] I expect that Mr. Harper is not an expert in estimating speed and he may have over-estimated the speed of the BMW. Nevertheless, his view that the BMW made a “normal” left turn has to be considered in light of his view that turning at a speed of 35 to 45 miles per hour would be normal.

[22] However, Mr. Sdoutz calculated that if at impact the car was travelling at between 43 and 46 km per hour, and it travelled to the point of impact from its stopped position prior to the turn, which was just clear of the north crosswalk, a distance of approximately 22 to 24 metres, the acceleration rate would have been approximately 0.32 to 0.35g. He referenced studies that suggest the average acceleration for a car is around 0.28g. An acceleration of 0.32 to 0.35g is not significantly higher than the average reported in the literature and is well within the capabilities of the 2004 BMW 330i being driven by Mr. Schwartz. Certainly driving at that speed through such a large intersection would not be considered abnormal and would be consistent with observations of witnesses that it was a “normal” left turn.

[23] Given the more detailed analysis by Mr. Sdoutz, I prefer his expert opinion and conclusion over that of Mr. Thicke, and I find that at the time of the collision the BMW was likely travelling at a speed in the range of 43 to 46 km per hour.

(b) Speed of Bicycle

[24] There is near agreement between the experts as to the rate of speed of Mr. Quade on his bicycle prior to the impact. Mr. Thicke estimated the mountain bike’s speed, just prior to impact and prior to braking, as 35 to 40 km per hour. Mr. Sdoutz estimated that Mr. Quade’s speed was 29 to 36 km per hour prior to braking and prior to impact. I conclude that Mr. Quade was travelling at a speed in the range of 30 to 40 km per hour.

[25] Both experts agreed that Mr. Quade attempted to brake before impact to avoid the collision, and may have been travelling at a speed of 15 to 20 km per hour at impact.

(c) Light Conditions

[26] The accident occurred in the evening after sunset. It was a cloudy evening, but dry.

[27] Photographs indicate street lights at approximately the area of the crosswalks. A short distance south of the south-east corner of the intersection along the east side of Main Street is a building that is quite close to the street. Mr. Quade would have passed by this building before entering the intersection. This building is approximately 3 to 4 car lengths before the intersection, judging from the aerial photographs. There are also street lights parallel to this building. The defendant claimed that this building creates a shadowy effect for traffic moving close to the building. This is possible; however, the street lights are in front of the building next to the road.

[28] Mr. Schwartz’s evidence was that the illumination in the intersection itself was excellent, but somewhat less than excellent over the crosswalks. He is very familiar with the intersection and drives through it all the time. He has observed that the far eastern portion of the roadway approaching the intersection at East 2^nd Avenue (the northbound lane of Main Street closest to the east sidewalk) is shadowy after dark, even after the overhead street lighting comes on.

[29] Cst. Jim Ann, a police officer with the Vancouver Police Department, was at the scene of the accident on November 2, 2004. He was driving his marked Vancouver Police vehicle at the time, heading north on Main Street (the same direction as Mr. Quade), but in the left-turn lane intending to proceed westbound on 2^nd Avenue. For a short time before the accident, his car would have been opposite Mr. Schwartz’s car as they both prepared to turn left in opposite directions.

[30] Cst. Ann recalls that at the time of the accident the street lights had come on, providing artificial illumination up and down Main Street, including the area of the intersection of Main Street and East 2^nd Avenue.

[31] I conclude that the area of the intersection, including the crosswalks, was well lit. The streets approaching the intersection were also illuminated by street lighting, but not as brightly as the intersection itself.

(d) Location of Bicycle When Car Began Left Turn

[32] The engineering experts have extrapolated backwards from the scene of the accident and the calculation of the location of impact, to estimate the approximate location of Mr. Quade on his bicycle when Mr. Schwartz commenced his left turn in the intersection. Those experts’ conclusions depend somewhat on their opinions regarding the speed of Mr. Schwartz’s car. The faster that one assumes Mr. Schwartz’s car was travelling during the turn, the more likely it is that Mr. Quade was very close to or in the intersection and in a well-lit area at the time the turn commenced. This would make him more visible to Mr. Schwartz and would increase the likelihood that Mr. Schwartz should have seen him before turning.

[33] Mr. Sdoutz was of the opinion that Mr. Quade was approximately 34 to 45 metres from the point of impact when Mr. Schwartz began his turn, which works out to 53 to 63 metres south of Mr. Schwartz.

[34] Mr. Thicke concluded that, in his opinion, Mr. Schwartz made the decision to make a left turn about 4 to 6 seconds before impact. On his estimate, Mr. Quade’s bicycle was located about 50 to 75 metres to the south of Mr. Schwartz at that time.

[35] Both experts therefore place Mr. Quade south of the intersection when Mr. Schwartz began his left turn. Nevertheless, Mr. Quade was riding his bicycle along the street that was illuminated by street lamps. I accept Mr. Sdoutz’s evidence that a moving object is more conspicuous than a still object.

[36] In my view, the analysis does not stop at the point when Mr. Schwartz began his left turn. The intersection is very wide and at the beginning of his left turn he was getting into position but he was not yet blocking northbound traffic. He still had to keep a lookout for approaching traffic. It is important to note that Mr. Thicke goes on to say that Mr. Schwartz could have stopped his left turn at any time from the start of his turn up to about 2.2 seconds prior to impact.

[37] Mr. Thicke prepared a diagram illustrating the location of the BMW and the location of Mr. Quade’s bicycle about 2 seconds prior to impact. Based on Mr. Thicke’s analysis, the bicycle was at the crosswalk bordering the intersection and about to enter the intersection. This was a well-lit area. According to Mr. Thicke’s diagram, the BMW was only part-way into its left turn and the angle of the car was such that it had an unobstructed view of the bicycle. The car was just beginning to block part of the first northbound lane of traffic but had not yet moved fully in front of that lane, nor had it moved in front of the two remaining lanes, including the far curb lane in which Mr. Quade was travelling.

[38] Mr. Sdoutz placed Mr. Quade’s bicycle closer to Mr. Schwartz’s car and already in the intersection when the BMW began to cross into the northbound lanes in the commencement of its left turn.

[39] Mr. Harper, who was in his car heading west on 2^nd Avenue, was stopped at the red light at Main Street. His was the first car in line at the intersection in the middle westbound through lane. He saw cars southbound on Main Street turning left onto 2^nd Avenue and heading east, followed by Mr. Schwartz in his BMW.

[40] Mr. Harper said that when the BMW was about half-way through its turn onto 2^nd Avenue, he suddenly caught sight of a cyclist to his left heading northbound. He saw him pedaling to go faster downhill towards the intersection. He said when he first saw Mr. Quade, Mr. Quade was just about to enter the intersection.

[41] I accept Mr. Sdoutz’s evidence that Mr. Quade was at the crosswalk or into the intersection when the BMW was turning left into the northbound lanes. As noted above, Mr. Sdoutz’s analysis is based in part on his more detailed analysis of the speed of the BMW. This would put Mr. Quade only 11 to 14 metres from the point of impact when Mr. Schwartz was crossing those northbound lanes. This was a well-lit area and Mr. Schwartz should have seen him.

[42] Even on Mr. Thicke’s evidence, 2 seconds from impact Mr. Quade was close enough to the intersection to be within the illuminated area of the street lights. Mr. Schwartz should have had an unobstructed view of him based on the diagram prepared by Mr. Thicke. Any comment on this is noticeably absent from Mr. Thicke’s opinion.

[43] I conclude, based on all of the evidence, that Mr. Schwartz should have seen Mr. Quade riding the bicycle before pulling out in front of him.

(e) Response Time of Bicycle Rider

[44] Mr. Sdoutz provided the opinion that Mr. Quade had only 0.8 to 0.9 seconds to avoid a collision once the BMW was in his path entering into the northbound lanes of traffic. His conclusion was based on the analysis of the location of impact and the speeds of the vehicles.

[45] Mr. Thicke’s conclusion was that Mr. Quade probably had an opportunity to brake for about 1 second prior to impact.

[46] I conclude that Mr. Quade had only 1 second or less to avoid the accident.

RELEVANT SECTIONS OF THE MOTOR VEHICLE ACT

[47] The following sections of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 are relevant to this proceeding:

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.

...

Rights and duties of operator of cycle

183 (1) In addition to the duties imposed by this section, a person operating a cycle on a highway has the same rights and duties as a driver of a vehicle.

…

(6) A cycle operated on a highway between 1/2 hour after sunset and 1/2 hour before sunrise must have the following equipment:

(a) a lighted lamp mounted on the front and under normal atmospheric conditions capable of displaying a white light visible at least 150 m in the direction the cycle is pointed;

(b) a red reflector of a make or design approved by the Insurance Corporation of British Columbia for the purposes of this section;

CONTRIBUTORY NEGLIGENCE OF MR. QUADE

[48] Mr. Quade was not speeding and was properly riding his bicycle in the correct lane, the curb lane, and in accordance with the traffic signals.

[49] It is undisputed that Mr. Quade was in breach of the Motor Vehicle Act by failing to have a headlamp or reflectors on his bicycle.

[50] Mr. Quade admitted that the seat of the bicycle was adjusted so that he was in a somewhat forward riding position on the seat of the bicycle, with his upper body closer to being parallel to the road rather than perpendicular.

[51] Given that he had no headlamp or reflectors on his bicycle, Mr. Quade was also negligent in wearing dark clothing instead of bright and reflective clothing.

[52] Mr. Quade had no opportunity to avoid the collision. Even though the BMW was clearly poised to make a left turn and had its left turn signal activated, there was no reason for Mr. Quade to expect that the BMW would turn in front of him. He would have seen that it had given way to other traffic.

NEGLIGENCE OF MR. SCHWARTZ

[53] Section 174 of the Motor Vehicle Act provides that when a driver is in an intersection and intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction, that is either in the intersection or so close as to constitute an immediate hazard. However, having yielded and given a signal that the driver is turning left, 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.

[54] The British Columbia Court of Appeal provided this definition of “immediate hazard” in Raie v. Thorpe (1963), 43 W.W.R. 405 at p. 410:

For the purposes of this appeal, it is sufficient for me to say that, in my opinion, if an approaching car is so close to the intersection when a driver attempts to make a left turn that a collision threatens unless there be some violent or sudden avoiding action on the part of the driver of the approaching car, the approaching car is an “immediate hazard” within the meaning of s. 164 [for our purposes, s. 174].

[55] The respective obligations of parties in similar circumstances were set out by the British Columbia Court of Appeal in Pacheco (Guardian ad Litem) v. Robinson (1993), 75 B.C.L.R. (2d) 273 at paras. 15 and 18 as follows:

In my opinion, a driver who wishes to make a left hand turn at an intersection has an obligation not to proceed unless it can be done safely. Where each party’s vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way. The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care.

…

In my opinion, when a driver in a servient position disregards his statutory duty to yield the right of way and a collision results, then to fix any blame on the dominant driver, the servient driver must establish that after the dominant driver became aware, or by the exercise of reasonable care should have become aware, of the servient driver’s own disregard of the law, the dominant driver had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself. In such circumstance any doubt should be resolved in favour of the dominant driver.

[56] I conclude that Mr. Quade presented an immediate hazard as Mr. Schwartz began to turn the vehicle to the left even though Mr. Quade was south of the intersection. Mr. Quade was travelling in the curb lane lit by street lights. Mr. Schwartz could not execute his turn without cutting off Mr. Quade’s path, thereby threatening a collision unless Mr. Quade could succeed in a sudden avoiding action.

[57] This was not a two-lane road with one lane in either direction, where the commencement of a left turn means that the car has turned to block the opposite lane. This was a seven-lane intersection with two left-turn lanes opposite each other. At the commencement of the left turn, Mr. Schwartz’s car was not blocking oncoming traffic but he had several lanes to cross before he could complete the turn. Before he moved his car across the northbound lanes to block traffic, Mr. Quade should have been clearly visible to Mr. Schwartz. There was nothing obstructing Mr. Schwartz’s path of vision and he should have seen Mr. Quade had he looked carefully. Mr. Harper was able to see the approaching bicycle. Mr. Quade had no reason to suspect that Mr. Schwartz would pull out in front of him, and no opportunity to avoid the accident once Mr. Schwartz did so.

[58] In reaching this conclusion, I accept that the intersection presented a “complex field of vision”, as described by the defendant’s expert, Mr. Thicke. Mr. Schwartz would have had lights of oncoming cars in his eyes just prior to making his turn. He also would have necessarily been keeping a proper lookout of the crosswalk running north/south across East 2^nd Avenue to ensure that he did not collide with any pedestrian who might have been crossing that intersection. Nevertheless, these complexities should have simply increased the caution that Mr. Schwartz ought to have exercised before executing and completing his left turn.

[59] Mr. Schwartz was familiar with the Main Street and East 2^nd Avenue intersection, the lighting conditions and the possibility of cyclists travelling through the intersection in the curb lane.

[60] I have concluded that Mr. Quade was on the roadway to be seen by Mr. Schwartz at the commencement of the turn. This distinguishes the facts of this case from the facts of a case relied upon by the defendant, Chan v. Catroppa, [1995] B.C.J. No. 13 (S.C.), aff’d [1996] B.C.J. No. 2735 (C.A.) (Q.L.), where the cyclist was travelling on the sidewalk and hidden by parked vehicles.

[61] Mr. Schwartz should have considered Mr. Quade to be an immediate hazard and should not have proceeded with the turn until Mr. Quade was safely through the intersection. As such, Mr. Schwartz was negligent.

APPORTIONMENT OF LIABILITY

[62] The streets of Vancouver are shared by drivers and cyclists. Those who use the streets must anticipate each other and the limitations inherent in each other’s response time and visibility.

[63] The plaintiff took a very big risk by riding his bicycle in the dark without any form of illumination or reflection. He ought to have appreciated the difficulty that drivers of motor vehicles have in seeing fast-moving dark objects. While he may have counted on the street lights to illuminate him, he was extremely careless and showed little concern for safety.

[64] In deciding to make a left turn across the intersection, Mr. Schwartz should have appreciated the need to be vigilant for the potential of a cyclist approaching in the curb lane.

[65] In conclusion, I apportion fault for the accident 75% to the plaintiff and 25% to the defendant.

____________________________________

Madam Justice Susan A. Griffin

Citation:	*Quade v. Schwartz,*
	2008 BCSC 716