IN
THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Bathgate v. Korolek, |
| 2010 BCSC 37 |
Date: 20100113
Docket:
06 1225
Registry: Victoria
Between:
Bonnie-Jean Bathgate
Plaintiff
And
Rodney Richard Korolek
Defendant
Subject to Rule 68
Before: The Honourable Mr. Justice Walker
Reasons for Judgment
Counsel for the Plaintiff: | B. Flewelling |
Counsel for the Defendant: | J.D. Martin |
Places and Dates of Trial: | May Williams
October November Vancouver,
|
Place and Date of Judgment: | Victoria, B.C. |
Introduction
[1]
The plaintiff, Bonnie-Jean Bathgate, seeks
damages from the defendant, Rodney Richard Korolek, arising from a motor
vehicle accident that occurred near Williams Lake, BC on April 14, 2004.
[2]
Contact between the two vehicles owned and
operated by Ms. Bathgate and Mr. Korolek (respectively) took place near the
intersections of Highway 97 South and an access road that connects to Lakeside
Road and Bass Road.
[3]
Both liability and quantum of damages
potentially recoverable are in dispute.
The
Motor Vehicle Accident
The
accident scene and facts agreed upon by the parties:
[4]
The facts set out in this portion of my reasons
for judgment come from photographs marked in evidence and, inter alia, facts
contained in an agreed statement of facts. References to right or left in
this section are from the vantage point of the parties, who were heading south
on Highway 97 at the time the accident occurred.
[5]
The parties agree that the accident took place
at or near the intersection of Highway 97 and a short access road that leads to
Bass Road and Lakeside Road. That intersection is located a few kilometres
from Williams Lake. The collision occurred at approximately 11:24 a.m.
[6]
Highway 97 consists of single lane traffic in
each direction. Ms. Bathgate and Mr. Korolek were both travelling south on
Highway 97 before the accident occurred.
[7]
Photographs of Highway 97 and the intersection
with the access road show a large shoulder on the right or west side of Highway
97 as it nears that intersection. That shoulder is marked on its left or east
side with a single white line. A ditch sits adjacent to its right or west side
before the highway intersects with the access road.
[8]
The short access road that intersects Highway
97, Lakeside Road, and Bass Road does so in the form of a T. Lakeside
and Bass Roads run parallel to Highway 97.
[9]
The photographs also show a road, running
(approximately) parallel to Highway 97 to the left or east, albeit at a higher
elevation. I am not able to determine from the photographs if that road
intersects with Highway 97.
[10]
Ms. Bathgate was the owner and operator of a 1987
Mercury Topaz. Mr. Korolek was the owner and operator of 1998 Chevrolet
four-wheel drive pick-up truck; he was towing a utility trailer.
[11]
Before reaching the intersection, the parties
drove on a stretch of the highway that curves. The curve straightens out just
prior to the intersection. Sitting in the middle of the highway, in the midst
of the curve, is a median designated by a yellow line on its outer side (which
is to the left or east). Those yellow lines are located on the left or east side
of the median; in addition, photographs show diagonal yellow lines contained
within the median itself. Unfortunately, the yellow demarcation line marking
the right or west side of the median was almost obliterated at the time of the
accident.
[12]
The median comes to an end at a point that is
almost directly aligned with the access road where it intersects with Highway
97.
[13]
The speed limit along this portion of Highway 97
is 80 kph.
[14]
There is no evidence as to the length or dimensions
of the curve on Highway 97, the width of the north and south bound lanes
of traffic, or the width of the shoulder. No accident reconstruction evidence
was tendered.
Ms.
Bathgates version of events:
[15]
Ms. Bathgate was heading to her home, where she
had lived since 2001, for a lunch break from her work as a travelling insurance
agent. She had been on the road that morning selling policies and collecting
premiums from policy holders.
[16]
Ms. Bathgate was driving her vehicle southbound
on Highway 97. The weather was sunny and warm. Although she could not recall
if she had taken any that morning, Ms. Bathgate had at that time been taking
Tylenol 3s for pain relief for her ongoing shoulder and neck pain.
[17]
According to Ms. Bathgate, she activated her
right turn signal as she approached the intersection of Highway 97 and the
access road to indicate her intention to turn right. Ms. Bathgate said she
slowed down as she started to make her turn. Ms. Bathgate estimated her speed
to be between 10 to 15 kph as she began to make that right hand turn.
[18]
She looked in her rear view mirror when she
activated her right turn signal and did not observe anyone behind her. She
admitted that she did not pay attention to traffic behind her when she began to
make her turn; she did not check her rear view or side mirrors or carry out a
shoulder check before making the turn.
[19]
Ms. Bathgate was positive she activated her
right turn signal. At first she claimed that she recalled doing so; later, she
added that it was also her standard practice to activate it before turning
right at the intersection.
[20]
Ms. Bathgate said her vehicle was travelling in
the main lane of Highway 97 heading southbound. By that, she meant the
traffic lane heading southbound as opposed to the wide shoulder to the right.
She denied changing the position of her vehicle, either to the left into the
median in the middle of the highway, or to the right into the shoulder, before
commencing her right hand turn. She claimed that she never drove on the
shoulder after she did so on a prior occasion and suffered a flat tire.
[21]
When it was put to Ms. Bathgate in cross
examination that she was in fact attempting to make a wide right turn from the
median of Highway 97, in order to make what was in effect a U-turn (or 180
degree turn) from the Highway onto Bass Road, Ms. Bathgate asked for the
question to be explained:
Q Isnt
it true that you were attempting to make a wide right turn from the median, so
you could circle around, do a one-eighty back onto Bass Road?
A You
will have to explain that a little clearer to me.
Her answer to the last question was
surprising since up until that point Ms. Bathgate appeared to have no trouble
comprehending questions put to her, whether in examination in chief or in cross
examination, in relation to the circumstances surrounding the accident.
[22]
The question was rephrased:
Q
Okay. What I am suggesting to you is that because you had to turn all
the way around, like a U-turn
A Right.
Q —
to get back onto Bass Road, you made a wide turn. You started out wide, to the
left, and then you turned a big turnaround to the right.
A I
stayed in my lane and made the turn.
[23]
Ms. Bathgate was then asked whether she made a
wide turn. She did not answer the question directly:
Q Do you agree you made a wide turn?
A I didnt go
over the yellow line. I stayed in my lane, and got to the point where the
access road was there, so that I was fully on the road at all times and be
able to make that U-turn.
[24]
Ms. Bathgate also denied looking over papers in
her vehicle while driving and denied speaking on her cell phone just prior to
the accident.
[25]
Ms. Bathgate lived in a mobile home nearby,
located on Bass Road. She said she had made that right hand turn onto the access
road and onto Bass Road hundreds of times before; as a result, she agreed,
she did not need to concentrate on the turn since she had done it so many
times.
[26]
Ms. Bathgate said that as she began to make her
turn, she felt something hit her from behind without warning. This was, she
said, the initial contact. Later, in cross examination, she described it as a
bang. Shortly thereafter, she said she was hit again when she was mid-way
through her turn. Ms. Bathgate could not explain why the right front side of
her vehicle and the left side of Mr. Koroleks pickup truck were damaged if her
vehicle was hit from behind as she claims. In any event, although she tried to
apply her brakes, she said my vehicle was bouncing back and forth. She only
remembered seeing black when she looked to the right.
[27]
When asked if, at the point when her vehicle
turned to make its right hand turn, the right front corner of her Topaz hit the
left door of Mr. Koroleks pick-up truck, Ms. Bathgate said she could not
recall.
[28]
After her vehicle came to a full stop, Ms.
Bathgate put it in reverse and pulled off to the side of the road.
[29]
She described some people, two to three of
them, approaching her, yelling and screaming at me. She felt a little bit
dizzy. She locked the doors to her car and called 911 even though she agreed
circumstances were somewhat blurry. She does not recall what anyone said,
describing it as a real blank. Ms. Bathgate said she was in a state of shock
immediately following the accident, as well as suffering from a headache, light
headedness, and dizziness, all of which she claims affected her ability to
recall certain events.
[30]
Ms. Bathgate could not recall if Mr. Korolek and
his wife asked her why she drove her vehicle to the left before turning right
and why she had not activated her right turn signal. She did recall that she
refused to speak with them.
[31]
The police arrived. Ms. Bathgate was taken to
the local hospital by ambulance.
Mr.
Koroleks version of events:
[32]
Mr. Korolek was driving his pick-up truck (with
five by eight foot trailer attached) at the time of the accident. He is 56
years old and lives now, as he did at the time of the accident, in Grand
Forks. He is a millwright. Mr. Korolek built the trailer that was attached to
his vehicle.
[33]
Mr. Korolek remembers the circumstances leading
up to the accident very well. He was driving from Fort St. James that morning,
heading towards Vernon. He was rested, having slept well the night before.
Mr. Korolek denied having used alcohol or prescription medications immediately
prior to the accident. The passengers in the vehicle were his wife (front
passenger seat) and father-in-law (sitting in the middle of the rear seat).
While en route to Vernon that morning, they made two stops to allow their dog a
break from the ride. Mr. Korolek was wearing his glasses, which he uses for
reading and to see the first five or ten feet of distance.
[34]
His pick-up truck was in excellent mechanical
condition. He had the brakes checked three months prior to the accident. He
had not experienced any mechanical problems with his truck on the trip.
[35]
He described Highway 97 as comprised of two
lanes of traffic. The speed limit is 80 kph. According to Mr. Korolek, he was
travelling at or slightly below that speed. The weather was excellent, he said,
as was overall visibility.
[36]
Mr. Korolek described the events immediately
leading up to the accident. He was driving southbound, on a straight stretch
of the highway, which turned into a gradual curve. He first observed Ms.
Bathgates vehicle travelling in the same direction on the highway, in front of
him, before the curve began. He estimated she was about seven to eight car
lengths ahead of his vehicle at that point.
[37]
That distance decreased once Ms. Bathgates vehicle
came to what Mr. Korolek described as the inside curve. At that point,
Ms. Bathgates vehicle began moving over to the left. As she did, and only at
that point, the speed of her vehicle began to slow down. Ms. Bathgates
vehicle then moved completely into the median.
[38]
Mr. Korolek described the median as shaped like
a teardrop. Its width, at its widest point he said, was more than the width
of a vehicle and as wide as the lane of traffic in which he was travelling.
[39]
As Ms. Bathgate began to move into the first
part of the median, the distance between their vehicles decreased to three to
five car lengths. Thereafter, once the Bathgate vehicle was completely within
it, the distance between the two vehicles decreased to two to three car
lengths. Mr. Korolek did not appreciate that it was a median: he thought it
was a left turn lane. Mr. Korolek said the demarcation line to the right or
west side of the median was almost entirely obliterated. As I have noted, the
photographs also show that to be the case: the right side line of the median,
which at one time was yellow, is very difficult if not impossible to see. Mr.
Korolek was not able to see the median before the curve on Highway 97 starts
to straighten out.
[40]
As well, it was not until he made his way
through the curve could he see the intersection with the access road. Mr.
Korolek described it this way in cross examination:
Q Yes.
Your visibility, in other words your ability to see this intersection, was not
affected by that curve in the highway?
A To see that
intersection, yes. When you are coming around the curve you dont see the
intersection until youre the curve kind of it starts to straighten out.
Thats when you see the intersection.
[41]
Mr. Korolek now knows the area that the Bathgate
vehicle moved into is a median.
[42]
Even though he never saw a turn signal activated
on Ms. Bathgates vehicle, Mr. Korolek thought Ms. Bathgate was going to turn
left since he thought the median was a left turn lane.
[43]
When he first observed the Bathgate vehicle
begin to move into the median, Mr. Korolek remained in his lane of traffic; he
did not reduce his speed. As he put it: I didnt slow down I had no reason
to because it looked like she was making a left turn.
[44]
Within a couple of seconds, Mr. Korolek
realized that there was no place for Ms. Bathgate to turn left. He also
observed the T intersection leading to Bass and Lakeside Roads to the right.
Ms. Bathgates vehicle was clearly in the median at this time. That is when
Mr. Korolek backed off, which he explained meant that he took his foot off
the gas pedal entirely. It was at that point that Ms. Bathgate commenced a
right hand turn, from the southernmost point of the median. According to Mr.
Korolek, it was a sharp turn, which he also described as a 90 degree turn.
By this time, their vehicles were very close to each other.
[45]
Mr. Koroleks attention was not distracted at
any time.
[46]
After backing off, Mr. Korolek perceived that
a collision was imminent since he now knew that Ms. Bathgate could not turn
left: I anticipated she was going to turn before she started to turn. As he
did, Mr. Korolek prepared to drive his vehicle to the right, off the highway,
onto a wide gravel shoulder (approximately the width of a vehicle) that has
grass and a shallow ditch to its right.
[47]
Once Mr. Korolek saw the Bathgate vehicle start
to turn, which was as his vehicle was coming up alongside the T intersection
with the access road, he aimed his pick-up truck directly at the shoulder and
ditch on the right, which meant it was travelling in a direction diagonal to
Highway 97. He also slammed on his brakes. His vehicle skidded forward, with
its right wheels moving partially into the ditch, and the front end moving into
the access road. Mr. Korolek attributes the skidding to his ABS brakes. In
describing this sequence of events, Mr. Korolek testified:
Q So what was your reaction when you
first saw her turn to the right?
A Well,
that was thats when I like I said I already backed off just previous to
that and I slammed aimed for the ditch and slammed on the brakes all pretty
much the same time. I aimed, well, not totally for the ditch, but for the edge
of the shoulder.
Q And why did you do that?
A Because I wanted to avoid the
accident.
…
Q Well, can you describe the
shoulder of the road?
A Okay. How wide the shoulder was?
Q Yes.
A Okay.
That shoulder was, I would say, approximately about the width of a vehicle.
[48]
Ms. Bathgates vehicle made contact with the
Korolek pick-up truck. She drove into the drivers door right behind the
front fender. After that impact, Mr. Koroleks vehicle continued to move
forward. As it did, the Bathgate vehicle continued to make contact with it,
scraping the drivers door and continuing to scrape the body of the pick-up
truck behind it.
[49]
No damage was caused to the front end of Mr.
Koroleks pick up truck. Damage was caused to his truck starting at a point
just forward of the wheel well on the drivers side; the damage extended horizontally,
to the rear of the vehicle and then onto the trailer (its axle was bent). Mr.
Korolek believes the Bathgate vehicle made additional contact with his trailer
due to the surge he felt following the initial contact.
[50]
Mr. Korolek is positive that he never rear-ended
Ms. Bathgates vehicle and never struck it from behind. He could not recall
ever being shown or seeing damage to the rear bumper of Ms. Bathgates
vehicle.
[51]
Once Ms. Bathgates vehicle came into contact
with Mr. Koroleks, her vehicle spun around. The passenger side of her vehicle
ended up right beside the passenger door to the Korolek vehicle (where Ms.
Korolek was sitting).
[52]
Both vehicles came to a stop. The Bathgate
vehicle was sitting to the right (or west) of and at a 45 degree angle to the
Korolek vehicle.
[53]
Mr. Korolek was unharmed. He did not lose
consciousness and was not hurt.
[54]
Mr. and Mrs. Korolek were unhappy that the
accident occurred, but still wanted to make sure Ms. Bathgate was okay. They
got out of their pick-up truck and approached her vehicle to see if she was all
right. The drivers window to the Bathgate vehicle was open. Mr. Korolek saw
Ms. Bathgate speaking on a cell phone, and heard her tell someone to call 911
in order to get the police to come to the accident scene. Mr. Korolek
described Ms. Bathgate yelling into the telephone that there had been an
accident, and mentioning children. When he asked her if she was okay, Ms.
Bathgate rolled up her window. She told the Koroleks to go away.
[55]
He agreed he might have remarked to Ms. Bathgate
that it would have been helpful if she had used her turn signal. He denied
yelling or screaming at her, and denied expressing anger towards her.
[56]
Mr. Korolek believes he did everything he could
to avoid the collision. He believes he sounded his horn, but candidly admitted
that he could not be sure that he did.
Ms.
Koroleks version of events:
[57]
Ms. Korolek was riding as a passenger in the
front seat of her husbands vehicle when the accident occurred. She is
presently 57 years old.
[58]
Ms. Koroleks recollection and account of the
accident was quite clear. She and her husband were travelling from Fort St.
James, heading to Grand Forks by way of Vernon. Her father, who has since
passed away, was riding in the back seat.
[59]
She described the weather as beautiful and
sunny; there were no visibility problems. She said that her husband was
driving at 80 kph on Highway 97, which was the posted speed limit.
[60]
Ms. Bathgates vehicle was travelling several
car lengths ahead when Ms. Korolek first saw it. There were no vehicles
separating them, nor were there any travelling behind the Korolek vehicle. Ms.
Korolek had an unobstructed view of Ms. Bathgates vehicle well prior to
the collision.
[61]
Suddenly, and without warning, Ms. Bathgates
vehicle pulled to the left, moving into what Ms. Korolek thought at that time
was a left hand turn lane. It took a minute for Ms. Korolek to realize it
was not a left hand turn lane, but a median in the centre of the highway. At
no time during the sequence of events leading up to the accident did Ms.
Bathgate activate her left or right hand turn signals.
[62]
The Bathgate vehicle moved into the middle of
the median, completely out of the lane of traffic heading south. In fact, Ms.
Korolek said, [Ms. Bathgate] was so far over I thought she was turning left
[the Bathgate vehicle] had slowed right down.
[63]
Mr. Korolek slowed down. The Koroleks remarked,
between themselves, upon the movement of the Bathgate vehicle. They concluded
Ms. Bathgate was turning left. For that reason, Mr. Korolek decided to
continue straight ahead on the highway. Ultimately, Ms. Korolek realized that
Ms. Bathgate was turning right, and would turn right into their vehicle. At
that point, the front portion of the Koroleks pick-up truck was just about at
the access road and the Bathgate vehicle was a few feet away from the Korolek
vehicle. The Koroleks vehicle had remained in its lane travelling south on
the highway throughout. Mr. Korolek took evasive action by driving his pick-up
truck to the right, towards the shallow ditch to the right of their lane of
travel; even so, his vehicle was struck by the Bathgate vehicle.
[64]
Ms. Korolek saw the front of the Bathgate
vehicle continuing to come towards their pick-up truck. The front passenger
side of the Bathgate vehicle first came into contact with the Koroleks truck
door behind the front tire on the drivers side. From there, and even though
Mr. Korolek took evasive action, the Bathgate vehicle remained in contact with
the Koroleks truck, causing damage down its drivers side, and onto the left
side of the trailer. Eventually, both vehicles came to a stop. The Koroleks
pick-up truck was approximately 10 steps behind the Bathgate vehicle.
[65]
The Koroleks were not injured. Ms. Korolek got
out of the pick-up truck and went to see if Ms. Bathgate was all right. When
she got to the Bathgate vehicle, she saw her drivers window partially open and
observed Ms. Bathgate speaking on a cellular telephone. She heard Ms. Bathgate
telling someone to call 911. She said this several times, and it was clear to
Ms. Korolek that Ms. Bathgate was not speaking directly to emergency services
or the police. Ms. Korolek also observed papers all over Ms. Bathgates front
passenger seat. Ms. Bathgate then started yelling at Ms. Korolek to leave her
alone. According to Ms. Korolek, Ms. Bathgate was frantic about saying Go
away, leave me alone, while she was talking on the phone. Ms. Korolek denied
being angry or upset towards or yelling at Ms. Bathgate.
Photographs:
[66]
The damage to the vehicles shown in the
photographs marked in evidence is consistent with the description of the
accident given by Mr. and Ms. Korolek. There is no evidence of damage to the
rear end of the Bathgate vehicle. Indeed, damage to that vehicle is shown to
be to the front passenger side headlight and turn indicator (completely
removed) and denting to the rear passenger side of the rear portion of the body
of the vehicle just above the right rear wheel well. Damage to the Korolek
vehicle is shown to be a large dent to the lower portion of the front drivers
side door, with a long horizontal scrape mark running to the rear of the
vehicle.
Mr. Brian
MacDonald:
[67]
Mr. MacDonald was called to provide evidence
that the turn signal indicators on the Bathgate were working at the time of the
accident.
[68]
Mr. MacDonald is a 45-year old truck driver who
was formerly a mechanic who worked on heavy duty equipment, farm and logging
equipment, as well as trucks. He and Ms. Bathgate have known each other for
approximately eight to nine years, and have in the past maintained an intimate
relationship.
[69]
Mr. MacDonalds evidence was vague and
unhelpful. The attitude he displayed while giving evidence, i.e., curt and
indifferent, was also unhelpful.
[70]
Mr. MacDonald described what he did in terms of
checking and changing lights, including turn signal indicator bulbs, all of
which he claimed to recall doing within a week before the accident. He said
that Ms. Bathgate asked him to inspect the vehicle to make sure it was safe.
He said he had previously carried out mechanical repairs on Ms. Bathgates
vehicle.
[71]
It quickly became apparent that Mr. MacDonalds
recollection was suspect. He could only speak of matters he believed to have
happened. He could not recall which bulbs he replaced let alone where they
were located, nor could he recall who was with him to assist in conducting the
vehicle test (he was not sure if it was his brother or Ms. Bathgate). Mr.
MacDonald could not recall if Ms. Bathgate had asked him to inspect the vehicle
on any previous occasion. He did not keep any records. Further, even though he
said he helped fix other friends vehicles, he could not recall if he worked on
any others during that week. Despite Mr. MacDonalds attempts to stick to what
appeared to be a memorized sequence of matters he attended to on Ms. Bathgates
vehicle, which he said occurred over five years ago (in April 2004), he had
trouble with dates. For example, he could not recall over what period of time
he worked on Ms. Bathgates vehicle.
[72]
I do not accept Mr. MacDonalds evidence as
proof that the turn signal indicators on Ms. Bathgates vehicle were working at
the time of the accident. In my opinion, he is guessing about what he did. In
any event, Mr. MacDonalds evidence is unhelpful in terms of resolving the
issue of liability since it does not prove that Ms. Bathgate actually
activated her right turn signal indicator before the accident occurred.
Analysis
and Determination:
[73]
I prefer the evidence of Mr. and Ms. Korolek to
that of Ms. Bathgate concerning the circumstances surrounding the accident. I
accept the Koroleks evidence as an accurate account of the circumstances of
and those leading up to the accident. The Koroleks presented as very honest
and credible witnesses, providing a candid account of the circumstances leading
up to the accident. I accept that Mr. Korolek was not able to see the
intersection with the access road until the curve on the highway began to
straighten out, which is very close to that intersection. The evidence that
Mr. Korolek gave at his examination for discovery in relation to visibility of
the intersection of the access road with Highway 97 is not, as suggested by
counsel for Ms. Bathgate, inconsistent with his evidence at trial and does not
impact upon my view of the veracity of the whole of his evidence given at
trial.
[74]
Moreover, and quite importantly, the photographs
showing the damage to both vehicles corroborates Mr. and Mrs. Koroleks
description of the accident.
[75]
Ms. Bathgates account is not borne out by the
photographs. Her vehicle was not struck from behind. In addition, despite her
clear recollection of facts and events that would assist her case, throughout
her evidence Ms. Bathgate displayed a tendency to not recall events or to fail
to comprehend questions when the proposition put to her would, if true, be
adverse to her case. As well, she claims to have been shocked and dazed after
the accident. Her account of events is not reliable.
[76]
Also, Ms. Bathgates version of events makes no
sense. She was not hit from behind, yet she described the initial impact as
coming from behind. The photographs do not show any evidence of an impact to
her vehicle from behind. Later, Ms. Bathgate said that the initial impact was
to her vehicles right rear quarter panel above the wheel well. If the
accident occurred the way she says it did, it means the front end of Mr.
Koroleks vehicle, especially the left front end, would be damaged (which it
was not the damage consists of horizontal scratch marks on the left side of
his truck and a dent on his drivers side door).
[77]
In summary, the photographic evidence is
consistent with Ms. Bathgate turning into Mr. Koroleks vehicle: as he
continued to move forward, her Topaz continued to make contact with his truck,
causing the scratch marks.
[78]
I do not accept Ms. Bathgates evidence that she
called 911 and the RCMP for assistance. The sequence of events (including
timing) described by Ms. Bathgate and the Koroleks lead me to conclude
that she asked someone else to make that call for her.
[79]
Ms. Bathgate is at fault and her fault caused
the accident. I find that she:
(a) drove her
vehicle directly into the median;
(b) never activated her turn signal, contrary to s. 170 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 (MVA) ;
(c) failed to indicate her intention, at any time, to turn
right onto the access road; and
(d) made a sudden right hand turn onto the access road in a
dangerous manner, from the median situated in the middle of the road, and did
not check for traffic around and behind her, all of which is contrary to ss.
144(1), 151 (c) and (e), and 165(1) of the MVA.
[80]
I must now determine whether there was any fault
on the part of Mr. Korolek, and if there was, whether it contributed to the
accident.
[81]
Counsel for Ms. Bathgate submits that even if I
were to find her client at fault, Mr. Korolek was also negligent in three
respects:
(a) he was driving too fast and too close to Ms. Bathgate in
all of the circumstances,
(b) he should have slowed down when Ms. Bathgate first entered
the median given his uncertainty as to her intentions and her failure to
activate her left turn signal; and
(c) once he appreciated that Ms. Korolek was about to turn
right onto the access road, Mr. Korolek should have sounded his horn.
[82]
Respectfully, and in spite of the valiant
submissions of Ms. Bathgates counsel, I do not agree that Mr. Korolek was
negligent in the circumstances of this case.
[83]
In my opinion, Mr. Korolek was reasonably
entitled to think that at the point in time when Ms. Bathgate began to enter
the median, she was going to make a left hand turn. Ms. Bathgate did nothing
to indicate or suggest that she was intending to turn right at any time.
Viewed objectively, there was nothing to require Mr. Korolek to brake his
vehicle at the point when the Bathgate vehicle began to move into the median.
[84]
In addition, the median could have been
construed, at least initially, as a left turn lane given that the demarcation
line on the right (west) side was virtually obliterated. Although Mr. Korolek
did not remark on it, the road running parallel to the left or east side of
Highway 97 would, in terms of its visibility as shown in the photographs, afford
a basis for a reasonable driver in the circumstances to conclude that Ms.
Bathgate was going to turn left to connect with that road.
[85]
Mr. Korolek continued to observe Ms. Bathgates
vehicle as she moved fully into the median. As soon as Mr. Korolek became
uncertain as to what her vehicle was going to do, he took his foot off the gas
pedal. His vehicle slowed down. Moments later, he realized there was no place
for her to turn left; he concluded she was going to turn right onto the access
road. As he considered evasive action, she commenced her sudden and sharp
turn. Mr. Korolek slammed on his brakes and aimed his vehicle towards the
ditch to the right of the shoulder. Nonetheless, Ms. Bathgate drove into
his vehicle and continued to make contact as Mr. Koroleks vehicle headed
away from the highway. Clearly, Ms. Bathgate was not paying attention. In my
opinion, Mr. Korolek took appropriate action to avoid what he perceived as an
impending collision.
[86]
It was submitted that Mr. Korolek owed a greater
responsibility than Ms. Bathgate in the circumstances since he was the
overtaking driver. Respectfully, I do not agree with that characterization.
This is not a case where Mr. Korolek sought to overtake the Bathgate
vehicle on the left. He was entitled to think, as he did for that brief period
of time when he thought Ms. Bathgate was intending to turn left, that he could
continue to proceed in his lane of travel which was entirely free of vehicles.
[87]
Even if Mr. Koroleks vehicle could be
characterized as the overtaking vehicle, liability does not necessarily
follow. The respective obligations of the parties are, as Finch J.A. (as he
then was) said in Samograd v. Collison (1995), 17 B.C.L.R. (3d) 51, 67
B.C.A.C. 223 (C.A.): entirely dependent upon the facts of the case
(para. 62). There is no general principle of law that an overtaking
driver owes a greater obligation than the other driver.
[88]
In that case, the driver who pulled out to pass
on the left (and was thus the overtaking driver) was considered to have had the
best physical position to foresee a possible collision since he only had to
keep a look-out for what was ahead of him, whether on-coming traffic or
vehicles he was intending to pass. The left turning driver, however, had to
keep a look-out in both directions, that is, for on-coming traffic approaching
him as well as for traffic behind him which might be in the course of
overtaking (para. 62).
[89]
In quoting from Samograd, Mr. Justice
Barrow said, in Eccleston v. Dresen, 2009 BCSC 332, at para. 26:
Thus, the law
does not impose a greater obligation on either the passing driver or the driver
being overtaken simply by virtue of whether the driver was overtaking or being
overtaken; rather, their respective obligations are to be assessed in relation
to the circumstances they faced and within that assessment the question of who
had the better opportunity to avoid the collision is relevant.
[90]
In the circumstances of this case, it was Ms.
Bathgate who had the only opportunity to avoid the collision.
[91]
Even if it could be said that Mr. Korolek should
have slowed the speed of his vehicle sooner once he saw Ms. Bathgates
vehicle slow down and enter the median without an activated turn signal so
that he was negligent, there is no evidence from which I can conclude that such
negligence contributed to the accident. Given the lack of any evidence showing
relative distances, including the length of the median, there is no evidence
from which I can conclude, either directly or through inference, that if Mr.
Korolek had slowed his vehicle sooner even at the outset when the Bathgate
vehicle began to enter the median the accident would have been avoided.
[92]
In terms of sounding the horn, Ms. Bathgate has
not proven, on a balance of probabilities that Mr. Korolek failed to sound his
horn, or even that if he did not, that there is a nexus between that alleged
failure and the accident.
[93]
Ms. Bathgates claim is dismissed with costs.
P.
Walker J.
_______________________________________
The Honourable Mr. Justice Paul Walker