IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100205

Docket:
M041049

Registry: Vancouver

Between:

Spiro
Ismirnioglou

Plaintiff

And

Greater
Vancouver Transportation Authority
and Bernard Kelly

Defendants

Before: The Honourable Madam Justice Kloegman

Reasons for Judgment

[1]            
On March 14, 2002, the plaintiff was driving a
1989 Dodge Caravan when he collided with a bus owned by the defendant, Greater
Vancouver Transportation Authority and driven by the defendant, Bernard Kelly. 
The collision occurred at about 4:00 p.m. on Granville Street, just north of
the intersection between Granville and Helmcken Street in downtown Vancouver. 
The plaintiff blames the defendants for injuries that he claims he suffered as
a result of the accident.

[2]            
The plaintiff, who was representing himself, was
not ready to proceed with his damages claim despite having already received an
adjournment in June 2009.  The defendants, who were represented by counsel,
agreed to proceed before me on the issue of liability only and if necessary, to
continue the issue of damages at a later date.

[3]            
The plaintiff’s version of the accident was that
he was travelling west bound on Helmcken Street, having just turned right off
Richards Street.  He stopped for the red light at the intersection of Helmcken
and Granville Street.  He turned his right signal light on and waited for the
traffic light to turn green.  When the light changed to green, he pulled into
the intersection to turn right but there were people walking both directions on
the cross-walk on Granville Street, so he edged halfway into the curb lane on
Granville Street and waited for the cross-walk to clear.  There was a steady
flow of pedestrians that kept on going for a long time.  Finally, the last
person ran across the cross-walk from the east side of Granville Street to the
west side.  The plaintiff was in the process of finishing his turn when he was
struck by the defendants’ bus.

[4]            
The defendant Kelly said he had turned the bus right
off Davie Street onto Granville Street, and was travelling north in the second
lane from the curb.  He crossed the intersection at Helmcken Street and was
gradually moving into the curb lane to position himself at the bus stop just
north of the intersection.  Suddenly, the plaintiff’s van materialized under
his bumper and the right front corner of the bus hit the right front quarter
panel of the plaintiff’s van.  Mr. Kelly braked as hard as he could, but the
plaintiff’s vehicle was pushed against the curb and into a light pole.

[5]            
A witness, Richard Boone, was riding the bus
that afternoon.  He had boarded the bus at the bus stop on the corner of
Granville and Davie Street, and was sitting in the right window seat of the
second bench from the back.  He said the bus was just entering the intersection
of Granville and Helmcken Street when he saw the plaintiff pull up to the
lights at Helmcken Street, stop, looked toward the bus, then “gun it”, that is,
accelerate quickly into a right turn, trying to get in front of the bus.  The
bus driver slammed the brakes hard and honked the horn, but could not avoid
impact with the plaintiff’s vehicle.

[6]            
The plaintiff was consistent in his version of
the actual collision, although his evidence on matters leading up to how he
found himself on Helmcken and Granville, or his planned route of subsequent
travel, was unclear and contradictory.  Similarly, Mr. Kelly and Mr. Boone were
consistent about how the accident occurred, but their evidence was inconsistent
with regard to certain collateral matters such as whether Mr. Kelly honked
his horn or not.

[7]            
Regardless of the inconsistencies, the evidence
clearly established that the light on Granville Street was green as the bus
approached the intersection, entered the intersection and travelled through the
intersection.  Both Mr. Kelly and Mr. Boone were adamant on this point and were
uncontradicted by the plaintiff, who had not observed the color of the traffic
light on Granville Street or Helmcken Street when he proceeded to complete his
turn.  The plaintiff openly admitted that he did not check to see if the light
on Helmcken had changed to yellow or red while he was waiting for the
pedestrians to cross, or after the last pedestrian had run across the crosswalk. 
More importantly, he did not shoulder check for oncoming traffic north bound on
Granville Street before he completed his turn.  He simply focused on the
pedestrians and when the last of them had run across the street, he moved to
complete his turn without checking and was struck by the bus.

[8]            
The plaintiff submitted that he had no
obligation to check the status of the traffic light on Helmcken or Granville
Street, or to check the north bound traffic on Granville Street, because he was
already in the turning lane when the collision occurred.  However, even on his
own evidence, only the front half of his vehicle was in the turning lane.  At best
he was at a forty-five degree angle to the turning lane.

[9]            
The most telling evidence is that the point of
impact on the plaintiff’s vehicle was by the front left wheel base and on the
bus at the front right corner.  If the plaintiff had been fully in the turning
lane, he would have been hit towards the rear, not the front of his vehicle. 
The damage to the plaintiff’s van suggests that he had only nosed his vehicle
into the turning lane when he was hit.

[10]        
I find that even if the plaintiff may have already
edged part way into the turning lane, he chose to complete his turn at a time
when it was unsafe to do so.  When the bus proceeded through the intersection,
the light on Granville Street was green, which meant the light on Helmcken Street
was red.

[11]        
Section 129(3) of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 states:

Despite subsection (1), and except when a
right turn permitted by this subsection is prohibited by a sign at an
intersection, the driver of a vehicle facing the red light, and which in
obedience to it is stopped as closely as practicable to a marked crosswalk on
the near side of the intersection, or if there is no marked crosswalk, as
closely as practicable to the intersection, may cause the vehicle to make a
right turn, but the driver must yield the right of way to all pedestrians and
vehicles lawfully proceeding as directed by the signal at the intersection.

[Emphasis added]

[12]        
At the time of impact, the defendant Kelly had
the right-of-way and was the dominant driver.  The plaintiff, as servient
driver, made a right turn when it was unsafe to do so in contravention of s.
129(3) of the Motor Vehicle Act.  Furthermore, the plaintiff’s failure
to shoulder check for oncoming traffic was not in accordance with the standard
of care of a reasonable, prudent driver in the circumstances.

[13]        
I am aware that even though the defendant Kelly
had the right of way, he was under a duty to avoid a collision if reasonable
care on his part would have prevented it: Walker v. Brownlee, [1952] 2
D.L.R. 450 (S.C.C.).  However, there was no evidence that the defendant Kelly
failed to keep a proper lookout.  The witness Boone testified that the
plaintiff came out “suddenly” and the defendant Kelly testified that the
plaintiff simply “materialized” at his bumper.  There was nothing the defendant
Kelly could do to avoid the collision.

[14]        
I find the plaintiff 100 percent responsible for
the accident and his case against the defendants is dismissed with costs.

“The Honourable Madam Justice Kloegman”