COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Smeltzer v. Merrison, |
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2012 BCCA 13 |
Date: 20120112
Docket: CA038695
Between:
Kelly Smeltzer
Appellant
(Plaintiff)
And
Krystal Merrison,
Jim Pattison Industries Ltd.
doing business as Jim Pattison Lease and
Craftsman Collision (1981) Ltd.
Respondents
(Defendants)
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Before: |
The Honourable Mr. Justice Lowry |
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The Honourable Mr. Justice Frankel |
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The Honourable Madam Justice Neilson |
On appeal from: Supreme
Court of British Columbia, December 3, 2010
(Smeltzer v. Merrison, Vancouver Docket M095170)
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Counsel for the Appellant: |
R. N. McFee, Q.C. |
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Counsel for the Respondents: |
J. D. James |
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Place and Date of Hearing: |
Vancouver, British Columbia December 8, 2011 |
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Place and Date of Judgment: |
Vancouver, British Columbia January 12, 2012 |
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Written Reasons by: |
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The Honourable Mr. Justice Lowry |
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Concurred in by: |
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The Honourable Mr. Justice Frankel The Honourable Madam Justice Neilson |
Reasons for Judgment of the Honourable Mr. Justice Lowry:
[1] Kelly Smeltzer was injured when the vehicles she and Krystal Merrison were driving collided. Her action for damages was tried before Mr. Justice Stewart. It was dismissed. For reasons given orally, the judge found Ms. Smeltzer was solely at fault; she had not discharged her onus of proving that negligence attributable to Ms. Merrison caused the accident. Ms. Smeltzer appeals, contending the judge erred. She says Ms. Merrison was solely at fault.
[2] On November 16, 2007, Ms. Smeltzer turned south onto a two-lane road at an intersection. The road was divided by a solid yellow line. She travelled only 135 feet and then stopped to turn left, across the northbound lane, into a parkade. The driver of a truck proceeding north stopped and motioned to her to make her turn in front of him. There was then a gap between the truck and vehicles backed up from the intersection ahead of it. Ms. Merrison was travelling north following two or three cars that were behind the truck. Starting about 200 feet from the intersection, the northbound lane widened (narrowing the southbound lane) to ultimately accommodate a second northbound lane, marked with a white line about 95 feet in length, for vehicles turning right at the intersection. Cars were parked along the east side of the road. Ms. Merrison was travelling at about the posted speed limit (50 kph) and slowed. She intended to turn right at the intersection so she proceeded to pass the stopped cars and the truck ahead of her on their right, and the parked cars on her right, to enter the marked turning lane. Ms. Merrison would have travelled no more than 100 feet before reaching the beginning of the white line marking the right-turn lane, which was about 35 feet beyond the truck. Ms. Smeltzer proceeded with her turn past the front of the truck. Neither she nor Ms. Merrison saw each other before they collided.
[3] The submissions before the judge focused on ss. 158 and 166 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. They provide:
158 (1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except
(a) when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn,
(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, or
(c) on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles.
(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right
(a) when the movement cannot be made safely, or
(b) by driving the vehicle off the roadway.
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119 ...
“laned roadway” means a roadway or the part of a roadway that is divided into 2 or more marked lanes for the movement of vehicular traffic in the same direction;
* * *
166 A driver of a vehicle must not turn the vehicle to the left from a highway at a place other than an intersection unless
(a) the driver causes the vehicle to approach the place on the portion of the right hand side of the roadway that is nearest the marked centre line, or if there is no marked centre line, then as far as practicable in the portion of the right half of the roadway that is nearest the centre line,
(b) the vehicle is in the position on the highway required by paragraph (a), and
(c) the driver has ascertained that the movement can be made in safety, having regard to the nature, condition and use of the highway and the traffic that actually is at the time or might reasonably be expected to be on the highway.
[4] The judge began by saying:
[7] Counsel’s submissions focused to such an extent on whether the plaintiff or the defendant or both were in violation of a provision contained in the Motor Vehicle Act that I make it clear that I am alive to the fact that the breaching of a statutory duty is not proof of negligence and that the statutory duties imposed on these drivers – and any breaching of them – can be taken into account in setting the standard of care or as evidence of negligence, nothing more: The Queen (Can.) v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; and Jordison v. Graham, 1999 BCCA 245 at paragraph 14.
[8] I make it clear that I have not lost sight of the Motor Vehicle Act sections brought to my attention by counsel. But because – as will become clear – I am dealing with a de facto lane of travel and not a “laned roadway” within the meaning of the Act, it is only some of the sections that are of interest.
[5] Citing this Court’s decision in MacLaren v. Kucharek, 2010 BCCA 206 at para. 20, the judge found that at some point south of the commencement of the white line marking the right-turn lane for the intersection, the road “must become a de facto two-lane road for northbound traffic”. He then found a reasonable northbound driver would begin to treat the road as having two such lanes several car lengths south of where the collision occurred and found Ms. Merrison was in “the de facto right lane” proceeding north because she intended to turn right at the intersection.
[6] The judge found Ms. Smeltzer executed her left turn as a reasonably prudent driver would except that she did not comply with s. 166 of the Act. Having regard for the configuration and width of the road, she was negligent because, having passed in front of the truck, she did not stop to verify it was safe to proceed and, in particular, that the de facto lane was free of northbound vehicles. The judge found that it was her negligence that caused the collision.
[7] The judge said Ms. Merrison was the dominant driver; she had the right of way. He appears to have said s. 158 was not directly relevant. He said further there was no doubt Ms. Merrison passed the vehicles to her left “without taking reasonable steps to assure herself that the gap she ought reasonably to have seen to her left was not present because a car was turning left”. But he said that does not mean Ms. Merrison “should have become aware that the driver of a left turning vehicle was in fact failing to give way to northbound traffic in the de facto lane; and [that Ms. Merrison] had sufficient opportunity to avoid the accident”. He then found Ms. Merrison “could not have avoided the collision” short of slowing to a crawl or stopping before passing the truck, which was not a duty the law imposes. He concluded it had not been established that Ms. Merrison was negligent. I take him to have meant negligent in a manner that caused the two vehicles to collide.
[8] Ms. Smeltzer contends the judge erred in law in failing to have proper regard for s. 158 of the Act, which she says prohibited Ms. Merrison from passing the truck and the cars behind it on the right. She maintains the failure to respect the prohibition would lead to unpredictability and potential chaos on the roads, citing R. v. Dickson, 2003 BCSC 437, 36 M.V.R. (4th) 235 at paras. 9-11 and 13. Ms. Smeltzer maintains the judge’s references to the existence of a de facto lane in which Ms. Merrison was said to be travelling in passing the cars on her right, and his apparent reliance on MacLaren in that regard, were misplaced. The Act makes no provision for such and it does not justify the way in which Ms. Merrison proceeded. Ms. Smeltzer says it was Ms. Merrison’s breach of the Act, coupled with her failure to maintain a proper lookout ahead and to her left, that were the cause of the collision. Had she not passed on the right in contravention of the Act, Ms. Smeltzer’s left turn would have been safely made. Ms. Smeltzer says further she can in no way be faulted for not having seen Ms. Merrison’s car approaching because she was entitled to assume other drivers, like Ms. Merrison, would adhere to the rules of the road and not pass on the right, citing Salaam v. Abramovic, 2010 BCCA 212, 4 B.C.L.R. (5th) 117 at para 25.
[9] Finally, and in any event, Ms. Smeltzer says, even if Ms. Merrison was in the circumstances entitled to pass on the right, by failing to keep a proper lookout, she exercised her right of way in a manner that resulted in a collision that, by keeping a proper lookout, she could reasonably have avoided, and accordingly bears some if not all of the fault for what happened, citing Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) at 460-61.
[10] Ms. Merrison maintains s. 158(1)(b) permits one vehicle to pass another on the right when it is travelling in an unobstructed lane, citing Kerslake v. Kim, 2008 BCCA 220, and Dickson, supra, at paras. 8-11. She says the judge made no error in finding she was travelling in a de facto lane such that she was permitted to pass the cars she did on the right. Relying on MacLaren, which recognized the existence of de facto lanes in what are said to be essentially the same circumstances in material respects, Ms. Merrison contends the distance from where the northbound lane widened to the beginning of the white line marking the turning lane (about 100 feet) was a de facto lane. It is, she says, essential that it be recognized as such. A right-turning northbound vehicle is prohibited from crossing the white line marking the right-turn lane, citing Stulec v. Johnson, 2000 BCSC 584, 3 M.V.R. (4th) 295. Hence, a right-turning vehicle must be aligned with the right-turn lane some distance before reaching it. Of necessity, such a vehicle must travel some distance in what is an unmarked de facto lane leading to where the white line marking the right-turn lane begins. It must then be accepted there may be vehicles travelling side-by-side in de facto lanes. This is especially the case where, as here, traffic may be backed up in one of the lanes. The length of a de facto lane becomes a question of fact in any given circumstance.
[11] Ms. Merrison then contends the judge made no error in finding Ms. Smeltzer was solely at fault. She was turning across a solid yellow line to leave the road as permitted by s. 166 but failed to ascertain her left turn could be executed safely and without unreasonably affecting the travel of another vehicle. Ms. Merrison relies, by analogy, on the decisions of this Court in Pacheco (Guardian ad litem) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.), and Dhah v. Harris, 2010 BCSC 172, with respect to left-turning drivers at intersections having to give way to vehicles having the right of way, as she maintains she had. Further, relying on Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273, Ms. Merrison says Ms. Smeltzer did not discharge the onus she bore of proving Ms. Merrison could, by the exercise of reasonable care, have avoided the accident such that the judge’s determination in that regard cannot now be disturbed.
[12] The primary question on which the appeal turns is the extent to which s. 158 of the Act applies. Did it prohibit Ms. Merrison from proceeding to pass on the right as she did and, if so, did her breach of the statute cause the collision?
[13] Dickson, an appeal of a cyclist’s conviction for passing on the right, contains the most complete discussion of s. 158 to which we are referred. I would respectively endorse what was said there. Section 158(1) prohibits one vehicle passing another on the right: “The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle...” There are only three exceptions. Essentially, passing on the right is permitted when the overtaken vehicle is turning left, when passing on a laned roadway, or when passing on a one-way street where room permits. A “laned roadway” is defined. It means a road that is divided into two or more marked lanes for vehicles proceeding in the same direction. The exceptions are qualified by subsection (2) which prohibits any passing on the right when it cannot be done safely or by driving off the road.
[14] Despite the recognition of a de facto lane in MacLaren, I do not consider the concept can afford any further exception to the three for which s. 158(1) provides. In MacLaren, a cyclist was injured at an intersection which he entered passing on the right of vehicles where there was what was said to be a de facto lane to his right, being a widened part of the road that accommodated vehicles turning right, but was not marked. He was faulted for riding between two lanes instead of positioning himself between the vehicles he passed on the right. It was specifically said (at para. 28) that no determination was being made with respect to whether s. 158 permitted the cyclist to pass on the right.
[15] I am unable to accept that s. 158(1)(b) permitted Ms. Merrison to pass two or three cars and the truck on the right as she contends. The exception is confined to passing on the right where there are two marked lanes for vehicles proceeding in the same direction and only then when passing can be undertaken in safety. Here, there was only one such lane regardless of whether there was what might be called a second de facto lane. I recognize this means drivers proceeding to turn right at the intersection, as Ms. Merrison was, could not align their vehicles to enter the 100-foot marked lane until it was virtually reached, if there were vehicles ahead in the “through” lane that were not turning left, but that is what the Act provides and it appears to me to be with good reason. If it were otherwise, drivers would be entitled to pass on the right wherever the road is sufficiently wide for two vehicles to pass. Drivers do not expect to be passed on the right when they are not travelling on a road with more than one designated lane. They generally expect to be able to turn off of the road to their right, whether into intersecting streets or driveways, or to pull over to the side of the road or off the road altogether without being obstructed by vehicles passing to their right.
[16] As quoted from his reasons, the judge said that, while he had not lost sight of the provisions of the Act, he was concerned with a de facto lane of travel, not a “laned roadway” within the meaning of the Act such that only some of the sections were of interest. I am unable to accept he was correct in law to consider Ms. Merrison passing on the right was not prohibited by s. 158, as it appears he did, on that basis. As the judge said, she was not travelling in a “laned roadway” within the meaning of the Act: s. 158(1)(b) did not apply. If she entered a de facto lane, meaning the road became wide enough to permit her to pass the cars and the truck ahead of her on the right, she was, in the circumstances, prohibited from passing them. She was required not to pass the vehicles in front of her until she entered the marked right-turn lane.
[17] I consider Ms. Merrison was negligent in passing the three cars and the truck on the right in contravention of s. 158. She was negligent because it was reasonably foreseeable that passing on the right, in contravention of a statutory prohibition, could be dangerous to other motorists on the road. Her negligence was, on what the judge said, compounded by her failure to proceed cautiously while maintaining a proper lookout. Had Ms. Merrison not proceeded to pass on the right as she did, the collision would not have occurred. It follows that her negligence was a cause of the accident and the injury Ms. Smeltzer suffered.
[18] It remains to consider how the legal error identified alters the judge’s conclusion that Ms. Smeltzer was herself negligent such as to cause the injury she suffered. The judge’s finding in that regard was premised on Ms. Merrison having been entitled to proceed to pass on the right as she did in approaching the point where the collision occurred. Given she was prohibited from proceeding in that way, the question becomes whether Ms. Smeltzer can still be faulted for what happened and, if so, to what extent.
[19] In Salaam, this Court found a defendant driver who had the right of way at an intersection negligent for having failed to take the steps it was said a reasonable driver would have taken in the circumstances to avoid a collision once it became apparent the plaintiff, who bore the greater proportion of fault, was not yielding as required. In reviewing the governing authorities and drawing in particular on what is often cited from Walker v. Brownlee, supra, Cartwright and Locke JJ. concurring at 460-461, the following was said:
[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] While that general principle may apply where the driver of a vehicle fails to give way to another which has the right of way in circumstances where each driver was or ought to have been aware of the other’s vehicle, I do not consider it serves to relieve a driver in Ms. Smeltzer’s position from complying with the provisions of the Act as is now contended. Section 166(c) required her to ascertain whether her left turn across the northbound lane could be made safely. It could not. Had she done what was required of her, the collision would not have occurred.
[21] This is not a case where it is suggested Ms. Smeltzer was required to take exceptional steps to avoid an accident or show exceptional proficiency. She was turning left, other than at an intersection, over a solid yellow line to leave the road. Her doing so was governed by s. 166(c). She was not to turn without making certain it was safe to do so having regard for the nature, condition and use of the road and the traffic that actually was or might reasonably be expected to be on the road.
[22] Ms. Smeltzer may not have expected a vehicle would proceed toward the right-turn lane as Ms. Merrison did. However, given the width and configuration of the road with the right-turn lane beginning a short distance to her left, the traffic with which she was confronted, the parked cars, and the limitation on what she could see, I consider it to have been incumbent on Ms. Smeltzer to “inch” her way over the solid line and past the truck, as drivers do, until she could see there was no obstacle to her completing her turn – no car was in fact approaching in a manner she did not expect – rather than turning blindly in front of the truck and proceeding as she did. She could easily have done this and the collision would have been avoided. In the result, Ms. Smeltzer bears a measure of fault for the injury she suffered.
[23] This accident happened because neither driver saw the other before they collided. That was because both proceeded in a manner that contravened the provisions of the Act: Ms. Merrison breached s. 158 and Ms. Smeltzer breached s. 166. Ms. Merrison could not see Ms. Smeltzer’s vehicle while she was wrongfully passing the cars and the truck ahead of her on the right and she was not looking where she should have been; Ms. Smeltzer could not see Ms. Merrison’s car while her vision was obstructed and she did not take steps to ascertain her turn could be safely made. I do not consider it is possible to establish different degrees of fault in the circumstances of this case such that in accordance with s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, liability is to be apportioned equally.
[24] I would allow the appeal, set aside the judge’s order, and replace it with an order declaring Ms. Merrison to be liable for 50% of Ms. Smeltzer’s injury and consequent loss.
“The Honourable Mr. Justice Lowry”
I agree:
“The Honourable Mr. Justice Frankel”
I agree:
“The Honourable Madam Justice Neilson”