Claim No: 420608
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Lilly v. Muise, 2014 NSSM 19
BETWEEN:
VANESSA LILLY
Claimant
- and -
WALTER MUISE
Defendant
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Dartmouth, Nova Scotia on February 17, 2014
Decision rendered on March 7, 2014
APPEARANCES
For the Claimant Andrew Sowerby
Counsel
For the Defendant Peter Kidston
Counsel
BY THE COURT:
1 This is a claim and counterclaim for property damage arising from a motor vehicle accident.
2 On December 21, 2012, Julie Lilly (“Julie”) had driven downtown in her sister’s (the Claimant’s) car to pick up her mother and bring her back to their west end Halifax home. It was the afternoon rush hour, a few days before Christmas. Weather was not a factor. Her chosen route took her down Mumford Road and then right (heading nominally north) on Romans Avenue, with a view to turning left on Bayers Road outbound.
3 As anyone familiar with this area knows, Romans is one of the few through streets between Mumford and Bayers Roads. It is traffic calmed with curves and bumps to keep it from becoming a speedway. And when traffic is lined up, waiting to turn left onto Bayers Road, it can take a long time to travel a short distance.
4 Julie regretted this choice of route soon after turning onto Romans. She was at a standstill behind other vehicles. A few car lengths ahead of her there was an intersection which would allow a left turn into a crescent known at one end as Aikens Ave and at the other end as Archibald Ave. She had already passed the turn onto Aikens, but was just coming toward the turn onto Archibald. She planned to use the crescent as a way to turn around, head back to Mumford and take a different route to her destination.
5 Because the cars were at a standstill ahead of her, Julie had to turn into the empty oncoming lane, to travel the several car lengths to Archibald. Just as she was making her left turn, there was a crash. Either she was hit by the Defendant’s vehicle, as she contends, or vice-versa, as the Defendant claims, or the two vehicles came together at the same moment, each hitting the other. What we know for sure is that the collision was between the driver’s side of the front bumper of the Defendant’s car, and the front passenger side bumper and fender of the Claimant’s car. The bumpers actually locked, and it took some doing to get them apart.
6 The Defendant had been doing some last minute shopping at the Halifax Shopping Centre. He too was looking for a way to Bayers Road and chose Romans. He also regretted the choice and looked for a way to get back to Mumford.
7 The Defendant was several car lengths ahead of Julie, virtually opposite the turn onto Archibald. Directly behind him was a truck which might have obscured his view of what else was behind him. He says that he signalled, looked in his mirror and determined that nothing was coming and that it was safe to make the left turn. He says that he was partway into his turn when the car driven by Julie hit him.
8 The drivers exchanged information and the Defendant called the police on his cell phone. No one was hurt, so the police declined to attend the accident scene. The Defendant attended at the police station the next day and made a report. Julie tried a little later to do the same, but was told that it was not necessary as the Defendant had already reported the accident. This is only significant because the police report only has the Defendant’s version of the event. To that extent, it is of very limited value to the court.
9 The damage to the Claimant’s vehicle was a bit more extensive than that to the Defendant’s vehicle. The damages claimed by the Claimant total $7,216.41, which includes car rental costs and other items such as a new car seat. The claim is actually brought as a subrogated claim by the Claimant’s insurer, which has already compensated its insured under the terms of her policy.
10 The Defendant was uninsured at the time, and claims on his own behalf the sum of $1,210.00 for repairs which he had done on his vehicle.
11 The question for the court is to determine which of the drivers was negligent. If both were negligent, then what would be the appropriate apportionment?
12 Julie says that she never saw the Defendant turn, because she was already in the intersection. She insists that the Defendant hit her. Her counsel relies on the “rules of the road” sections of the Motor Vehicle Act, and in particular s.110, 115 and 119:
Duty to drive on right
110 (1) Upon all highways of sufficient width, except upon one‑way streets, the operator or driver of a vehicle shall operate or drive the same upon the right half of the highway and, subject to Section 131A, shall drive a slow‑moving vehicle as closely as possible to the right‑hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway except when overtaking and passing another vehicle subject to the rules applicable in overtaking and passing set forth in Section 115.
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Driving on left of centre line
115 (1) The driver of a vehicle shall not drive to the left side of the centre line of a highway
(a) when overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be completely made without impeding the safe operation of any vehicle approaching from the opposite direction or of any overtaken vehicle;
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Signal required
119 (1) The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety and if any pedestrian may be affected by such movement shall give a clearly audible signal by sounding the horn if the vehicle is required to be equipped with a horn under this Act, and, whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this Section plainly visible to the driver of such other vehicle of the intention to make such movement.
13 Essentially, the position of the Claimant is that Julie was within her legal rights to pass the stopped vehicles ahead of her, and that she did so with all due caution.
14 The position of the Defendant is that he was also within his rights to make a left turn, which he was able to do without first making a passing manoeuvre, and that he signalled his intention to do so. He says that Julie ought to have seen him and yielded the right of way.
15 Although neither counsel specifically referred to it, section 122 is also relevant, as it deals with the right of way when drivers are making a left turn at an intersection:
Right of way or left turn at intersection
122 (1) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection, and when two vehicles enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield to the driver on the right.
Findings of fact and conclusions
16 The physical evidence is equivocal as to whether the vehicles essentially came together, each hitting the other, or that one hit the other. The damage to the fender of the Claimant’s vehicle can be explained by the fact that it hit the Defendant’s bumper, or vice versa. The greater damage to the Claimant’s vehicle was purely as a result of a more vulnerable part of the body being involved.
17 Initially, at least, both drivers had the right of way, at least until it should have been obvious that one or the other of them was farther into the intersection. There was nothing illegal about Julie’s choice to pass the few vehicles ahead of her, given that there was no oncoming traffic.
18 The testimony of Julie and of the Defendant are not ultimately determinative. They both seem like well-meaning people, who were giving their account as they recalled it. There is nothing to choose between them from a credibility standpoint. The issue is that they each perceived the event a little differently.
19 The way I see it is this: it is all about the angles and the inherent probabilities.
20 Julie would have been looking in a forward direction throughout the process. Had the Defendant made his left turn ahead of her, she inevitably would have seen him in time to stop. He would have been clearly in her line of sight. This suggests that she made it into the intersection first, which would establish the right of way, and that he was just slightly behind her.
21 The Defendant says that he looked in his mirror, and that he probably did a shoulder check before pulling out, but he admits that there was a large truck directly behind him, which could have obscured his line of sight. Assuming he was mostly looking straight ahead as he made the turn, he would not have seen Julie turning ahead of him until it was too late to avoid the collision. He was obviously not expecting someone to be in the intersection.
22 The fact that he may have signalled is irrelevant, because there is good reason to believe that the truck behind him (and ahead of Julie) would have obscured any signal.
23 Many accidents happen because of a momentary lapse of attention, or where an obscured line of sight leaves a driver with less than the full picture of what is happening. This is one of those cases where the Defendant was simply taken by surprise by what he did not expect to be there, namely the Claimant’s vehicle. But, as noted, it had a right to be there and, I find, was first into the intersection. As such, under s.122 she had the right of way.
24 Ironically, perhaps, had Julie’s vehicle been one second later, such that the two vehicles were entering the intersection at the same time, that same section would have given the Defendant the right of way, as he was to the right of Julie.
25 In the result, I conclude that the Defendant was legally responsible for the accident. The scenario that I have set out above is, in my view, by far the most probable. It follows that the counterclaim must be dimissed.
26 There was no real argument about damages. The Claimant is entitled to $7,216.41 and claims interest and costs. The interest would run at 4% from the date the insurer paid out its claim, to the date of judgment. The start date is a bit unclear. It is not the date of the accident. I believe it is reasonable to date the interest from June 8, 2013, which was the date on the letter from TD-Insurance that put the Defendant on notice that a claim would be made against him. I calculate the interest at just about $215.00, and I round it off to that amount. The costs claimed are $193.55 to issue the claim, plus $184.00 for service.
27 There will accordingly be judgment for:
|
Damages |
$7,216.41 |
|
Interest |
$215.00 |
|
Costs |
$377.55 |
|
Total judgment |
$7,808.96 |
Eric K. Slone, Adjudicator