IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Randall v. Ramia, 2006 NSSC 291
Date: 20060629
Docket: SH 201563
Registry: Halifax
Between:
Hector J. Randall
Plaintiff
v.
Nahda Ramia and Jean Ramia
Defendants
Judge: The Honourable Justice M. Heather Robertson
Heard: June 28 and 29, 2006, in Halifax, Nova Scotia
Written Decision: October 16, 2006 (Orally: June 29, 2006)
Counsel: Jeffrey S. Moors and Pamela Earle, for the plaintiff
J. William Collette, for the defendants
Robertson, J.: [Orally]
[1] This action is for damages rising out of a motor vehicle accident which took place on June 5, 2001 near the intersection of Chebucto Road and Windsor Street in Halifax.
[2] Here now are my findings of fact based on the evidence I have heard.
[3] The plaintiff Hector Randall resided at 6144 Chebucto Road in Halifax on the date of the collision. The property is a house located on the south side of Chebucto Road, and is beside a Needs Convenience Store, which is located at the intersection of Windsor Street and Chebucto Road. Mr. Randall lived at this address for approximately 3 years. His driveway is located 110' from Windsor Street.
[4] Mr. Randall testified that he parked his car in the driveway of 6144 Chebucto Road and was backing out of his driveway into morning traffic. He was driving a 1977 Cadillac Catera, owned by his girlfriend, Donna Worthington. He intended to proceed east on Chebucto Road and eventually turning right and proceeding south on Windsor Street. Mr. Randall backed out of the edge of his driveway and waited for the traffic to clear.
[5] A Plymouth van driven by David Currie proceeding east on Chebucto Road stopped in advance of Mr. Randall’s driveway and waived for him to proceed backing out of his driveway.
[6] Mr. Randall began to back out across the front of the van when the rear bumper of his car collided with the front, passenger-side wheel of a 1995 Hyundai operated by the defendant Nahda Ramia.
[7] Mrs. Ramia testified that she was proceeding east on Chebucto Road and saw the van stopped. She believed that there was room to the left of the van to pass and then allow her to proceed into the left turning lane at the intersection. It was at this point that her vehicle collided with Mr. Randall’s.
[8] Mrs. Ramia did not recall if in making this move to the left of the van, she crossed the solid yellow lane that demarks the centre line of Chebucto Road.
[9] Her defence is that she was passing the van with the appropriate caution in the “defacto left lane” when the plaintiff backed out of his driveway into the traffic. She did not see the plaintiff’s car until it was too late although she did apply her brakes and slowed down, but not soon enough to avoid collision.
[10] There is little disagreement among the witnesses and parties to this accident as to how this accident occurred.
[11] The two witnesses Mr. David Currie and Ms. Lise Godbout gave very clear and consistent evidence about how the accident happened. I accept their evidence.
[12] David Currie driving the Plymouth van was stopped in a line of traffic approaching the intersection. He was stopped a sufficient distance back from the plaintiff’s driveway to allow the plaintiff to safely back out and enter the line of traffic. The defendant’s car passed him on the driver’s side approximately an 18" to 2' distance from his car, and may have been over the yellow centre line, but he could not say for sure. When Mr. Currie stopped, the traffic immediately in front of his vehicle proceeded toward the intersection and there was thus created a gap in traffic between his van and the cars nearest the intersection.
[13] Ms. Godbout’s car was immediately behind the Currie van and the defendant Mrs. Ramia passed both Ms. Godbout’s car and Mr. Currie’s van just before the accident occurred. Ms. Godbout saw the plaintiff pulling out of his driveway and knew that a collision was imminent as the defendant passed her car and the van. She had concern for the defendant’s grandchildren who she could see were in the back seat.
[14] The defendant Mrs. Ramia did not see Mr. Randall backing out his driveway, because she had proceeded to pass the two vehicles. She did not see the plaintiff’s car reversing into the opening created for him by Mr. Currie. The defendant was not driving at an excessive rate of speed. I accept that she was merely driving at “traffic speed” as she approached the intersection, as evidence by Mr. Currie’s testimony.
[15] Mr. Randall did stop at the sidewalk before proceeding into the traffic lane opened up to him by the van. He looked west and east to assess the oncoming traffic.
[16] All of these four witnesses agreed that they had seen left turning vehicles on other occasions approaching the intersection from west to east, often pass the right turning line of traffic some distance before the intersection despite the fact that the clear markings allowing 2 lanes of traffic, are only located very near the intersection.
[17] No one offered clear evidence as to whether the defendant’s vehicle crossed this yellow centre line in passing these vehicles, moments before the accident occurred.
[18] I do accept that when the accident occurred the plaintiff’s vehicle had reversed out beyond the stopped van by approximately 18" at the point of impact of his rear bumper with the defendant’s right passenger front wheel well.
[19] I have examined the photographic evidence before me, the aerial photo showing Chebucto Road and Windsor Street which clearly shows the location of the plaintiff’s driveway and the intersection itself.
[20] I also examined the photos taken by the witness Ken Connors, the insurance adjustor who assessed the accident scene. While these photos were interesting they were not very instructive. They were taken two years after the accident and failed to photograph the center line of the street in relation to vehicles forming a left turning line of traffic well in advance of the intersection.
[21] The City of Halifax traffic map establishes that there had not been any changes in the pavement markings on Chebucto Road from 2001 forward.
[22] The aerial photo and the plan show the creation of left and right hand turning lanes for traffic proceeding east on Chebucto Road, at the intersection with Windsor Street. The entry point at the intersection has been widened to 30' to allow traffic to turn both right and left.
[23] The white line showing the demarcation of these two lanes is no longer than 2 car lengths back from the intersection. The width of the east travelling lane on Chebucto Road before the intersection is no less than 15.9' and no more than 16', on the evidence before me.
[24] The only issue is whether there are in fact two lanes of traffic on Chebucto Road for vehicles moving eastward toward the Windsor Street intersection, at the location of the plaintiff’s residence at 6144 Chebucto Road. In the event that I determine there is but one lane of traffic at this point, did the defendant Nadha Ramia in passing the two vehicles in front of her make this manoeuver safely and what responsibility should the plaintiff bear in reversing out of his driveway into oncoming traffic?
[25] Although any breach of the provisions of the Motor Vehicle Act is not determinative of the issue of liability the provisions offer me some guidance.
Section 115 (2)(c) requires that vehicles shall not drive to the left side of the centre line of the highway and in particularly part
(c) where the highway is marked with one single line, broken or solid, the driver of a vehicle shall drive the vehicle to the right of the line, except only when passing a vehicle proceeding in the same direction.
and s. 115 (3)(a) states that
Subsection (2) shall not apply
(a) where a vehicle is entering or leaving the highway at a place other than an intersection;
Section 114 states:
Overtaking and passing
114 Except as otherwise provided in Section 115, the following rules shall govern the overtaking and passing of vehicles:
(a) the driver of a vehicle overtaking another vehicle proceeding in the same direction shall not pass until after he has given a suitable and audible signal, and shall pass to the left of the overtaken vehicle at a safe distance and shall not again drive to the right side of the highway until safely clear of the overtaken vehicle.
(b) the driver of an overtaken vehicle shall give way to the right in favour of the overtaking vehicle on suitable and audible signal and shall not increase the speed of his vehicle, until completely passed by the overtaking vehicle;
Speed was not a factor here of course.
(c) in the event vehicles on a street or highway are moving in two or more substantially continuous lines, clauses (a) and (b) shall not be considered as prohibiting the vehicles in one such line overtaking or passing the vehicles in another such line either upon the right or left, nor shall clauses (a) and (b) be construed to prohibit a driver overtaking and passing upon the right another vehicle which is making or about to make a left turn. R.S., c. 293. 114.
[26] I note that the defendant Mrs. Ramia did not activate her horn when passing the other two vehicles. Counsel have canvassed all the available case law and both agree that there are no cases dealing specifically with this situation where you have the convergence of a passing vehicle and a vehicle reversing from a driveway. The issue is whether the defendant was “safely clear” when attempting to pass these two vehicles.
[27] Section 111 of the Motor Vehicle Act provides
111 Whenever a street or highway has been divided into clearly marked lanes for traffic, drivers of vehicles shall obey the following regulations:
(b) a vehicle shall be driven as nearly as is practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that the movement can be made with safety;
[28] Sections 120 and 136 address vehicles reversing out of driveways.
Backing and turning around
120 (1) The driver of a vehicle shall not back the vehicle unless such movement can be made in safety.
Driveway
136 (1) The driver of a vehicle within a business or residence district emerging from an alley, driveway or building shall stop the vehicle immediately prior to driving on a sidewalk or on the sidewalk area extending across an alley way.
[29] I find that the roadway adjacent to 6144 Chebucto Road is a single lane of traffic for east bound vehicles.
[30] Although east bound vehicles intending to turn right on Windsor Street may position themselves closer to the curb, there is insufficient roadway in my opinion to allow for two lanes of traffic to safely move east bound at this point and that any vehicle that passes the line of traffic adjacent to 6144 Chebucto Road does so at its peril.
[31] The left turning lane is not created until the traffic is approximately two to three car lengths from the line of Windsor Street at the intersection at a point where the road widens to accommodate east bound traffic turning right and left on Windsor Street.
[32] I do not accept the defence that there was a “defacto left lane” that could allow the defendant to make the passing manoeuvre that she did.
[33] In any event I find that she did not make this move with sufficient caution and had she done so the collision could have been avoided.
[34] I also find that although the plaintiff met the duty to reverse safely from his driveway. He stopped at the sidewalk. He cautiously looked east and west. He cautiously manoeuvred out into the lane of traffic opened to him.
[35] Mrs. Ramia had she been more vigilant would have seen him entering the traffic lane, as did Ms. Godbout just one car length in front of her.
[36] As she stated in her evidence she saw the opportunity to pass and did so, not seeing the plaintiff’s manoeuvre until it was too late.
[37] I find that the defendant is therefore solely liable for this accident.
[38] As to the damages sustained by the plaintiff Mr. Randall, I accept that he suffered a moderate injury to his shoulder and back as the result of this accident.
[39] I have little evidence before me of any pre-existing back injury that would affect my assessment of damages in this case.
[40] I am, however, concerned about the degree of his injuries; that is to say the duration of recovery and severity of the injury he experienced over time. I find that he could have mitigated these injuries had he seen his physician early, begun physiotherapy immediately and accepted the full course of treatment prescribed. Instead he skipped treatment and failed to return to his physician for treatment throughout the life of this injury.
[41] He attended physiotherapy on five occasions and saw his physician for the first time six weeks after the accident and only a few occasions thereafter.
[42] While I am satisfied with Dr. Cloney’s report of April 3, 2003 and accept it I note her comments on page 3 of that report:
Certainly every time that I saw Mr. Randall, between the 23rd of July, 2001 and the 2nd of October, 2002, he had significant pain with limitation of movement in his back, but certainly was not compliant about getting his Physiotherapy when it was initially suggested in July of 2001. Mr. Randall was then not seen until 7th of October, 2001.
I have to say that the frequency of his visits into see me are certainly out of keeping with the amount of discomfort Mr. Randall appears to be in when he does come in for a visit. I do not think that his treatment has been optimal and I certainly do not know his present status as to whether he had the bone scan done but it was requested on the 2nd of October, 2002.
I do not know presently if Mr. Randall is working or if he has been functioning well, either at home, or at work, since the time of the accident. I [sic (am)] wondering if the injuries I saw on the initial visit of July 2001 were partly or totally a result of the accident or if they contribute to his state of discomfort and unemployment.
Mr. Randall did not attend a hospital to have a bone scan.
[43] In these circumstances the plaintiff has a duty to mitigate his damages and he has failed to do so.
[44] Although I accept that Dr. Cloney could not have been more specific about the consequence of his non-compliance with medical treatment she did testify that it “probably affected the duration of his symptoms.”
[45] I have reviewed the case law offered as to the range of damages for an injury of this sort.
[46] In this circumstance, I assess his damages at $18,000 for the injury sustained.
[47] There is little evidence of Mr. Randall’s lost income. It appears that he was only without work for the period immediately following the accident, June 5 to September 1, less the two week period of employment in late July early August, when he earned $1495 working for Provincial Foundations.
[48] I find no loss of earning opportunity after September 1, 2001.
[49] I note that Mr. Randall failed to provide particulars of his income prior to June 5, 2001, as undertaken at earlier discoveries and offered no further evidence of lost income after that date.
[50] Mr. Randall shall have reimbursement for physiotherapy treatment as requested in the sum of $193.
[51] Failing your agreement on cost, I will hear from you. Thank you counsel for the assistance you have both been to the court in your presentation of this case. Good day.
Justice M. Heather Robertson