BC Court of Appeal – It Is Negligent To “Not See What’s There To Be Seen”

“I never saw the other vehicle before the crash” is rarely a satisfactory answer in absolving a party from liability.  Reasons for judgement were published today by the BC Court of Appeal discussing this principle finding that it is reversible legal error not to consider if a party is liable for failing to see something that is there to be seen.

In today’s case (Sharma v. Kandola) the Plaintiff was injured in a two vehicle collision.  At the time she was in the process of making a U‑turn from the south to the north side of the street in a school zone.  The Defendant, who was travelling behind her, attempted to pass her in the westbound lane.  The vehicles collided.  The Plaintiff never saw the Defendant prior to the crash.

At trial the Court found the Defendant fully liable for “travelling too close to Ms. Sharma’s car and driving too fast, he failed to keep a proper look out, and he was attempting to pass Ms. Sharma’s vehicle in the westbound lane, an activity prohibited in a school zone“.

The Defendant appealed.  The BC Court of Appeal found that the Defendant was largely to blame but the plaintiff also bore some liability for failing to see the Defendant prior to the crash.  In reaching this decision the Court provided the following reasons:

[17]       I turn now to what became, in my mind, the most significant issue on the appeal: the judge’s failure to address the evidence that Ms. Sharma, although checking for vehicles behind her before starting her turn, did not see the van. Indeed, she did not see the van until immediately before the collision.

[18]       It is necessary to proceed on the basis that Ms. Sharma did check to see if any vehicles were behind her, and did not see any. The van was, however, there to be seen. It is a large white van. It could not have been far from her. The street is long and straight. As the judge noted, it is straight and flat, without any visual blockages. In my view, Ms. Sharma failed to see what was plainly there to be seen. Put shortly, she ought to have seen the van, as any driver adequately keeping a proper lookout would have. On the judge’s findings, the van was travelling close to her, it was moving quickly, and was attempting to pass her in the westbound lane. With respect, it is an inescapable conclusion that Ms. Sharma’s negligent failure to see the van, and to wait until she could ascertain whether it was safe to start her turn, was a legal cause of the accident.

[19]       The judge fell into reversible legal error by failing to analyse the implications of Ms. Sharma’s failure to see the van as she ought to have. This is not a case where a finding that a party was not negligent raises a question of mixed fact and law, reviewable on a standard of palpable and overriding error: see Tabori v. Renaud, 2017 BCCA 189 at para. 2. Here, the error lies in failing to assess the relevance for liability of uncontested and obviously material evidence. This is a legal error.

[20]       The judge’s findings are sufficient to lay a foundation to determine both that Ms. Sharma’s negligence was a cause of the collision, and also to determine relative fault for the purposes of the Negligence Act, R.S.B.C. 1996, c. 333. In my view, it is not necessary to send this matter back to trial. The judge’s findings of fact are sufficient to apportion liability.

[21]       As is well‑known, apportioning fault is a matter of assessing blameworthiness, not causation: Cempel v. Harrison Hot Springs Hotel Ltd., [1998] 6 W.W.R. 233 (B.C.C.A.) at para. 19. Here, Mr. Kandola was driving too fast and/or too close to Ms. Sharma. He failed to see her brake or signal. He did not maintain a proper lookout. He attempted to pass her in the westbound lane when he was not entitled to do so. His obligation was to remain in the eastbound lane until the respondent had cleared the lane for him. Had he been directly behind the respondent, she would have been entitled to assume that he would wait for her to complete her turn. Had he been in the eastbound lane, the respondent’s turn would have cleared the eastbound lane for him to continue. On the basis of the judge’s findings, the appellant was at fault in a variety of different and cumulative ways.

[22]       By contrast, the negligence of the respondent derives from failing to see what she should have seen, even though she attempted to do what she ought to have done. In attempting a reverse turn, the respondent was statutorily obliged not to interfere with other traffic. To ensure that she did not do so, she needed to be aware of her total surroundings. As she was in a school zone, she was under a heightened duty to ensure that she was attempting her turn in a safe manner. She attempted to fulfil her obligations by checking for vehicles behind her, but she failed to do so adequately. She did, however, brake and slow down or stop before starting to turn, and she used her signals to indicate her intention to begin her turn.

[23]       In conclusion, in my opinion, Ms. Sharma’s blameworthiness is substantially lower than Mr. Kandola’s. I would apportion fault at 75% to Mr. Kandola and 25% to Ms. Sharma.

[24]       Given the view I have taken of the respective liability of the parties, I do not find it necessary to further address the alleged error that the judge failed to analyse the obligations of a driver engaged in a reverse turn under the Motor Vehicle Act. Those obligations have been considered, to the extent that statutory breaches may be evidence of negligence, in my analysis.

[25]       Mr. Kandola’s main position in the court below was that the respondent was wholly liable for the accident. Indeed, he brought a no evidence motion at the completion of the plaintiff’s case. As I see it, the possibility of apportionment was treated as a remote possibility. In this Court, Mr. Kandola maintained in his factum that the appeal should be allowed, an order entered that the respondent was wholly liable for the collision, and the action dismissed. The request for a new trial was put as an alternative, although it was the order sought at the conclusion of the oral hearing.

[26]       In these circumstances, even though I would allow the appeal, I regard success to have been mixed, and would order each party to bear their own costs. I would remit the disposition of trial costs to the trial judge.

[27]       In the result, I would allow the appeal, set aside the order on liability entered below and substitute an order that Mr. Kandola be declared 75% at fault for the accident and Ms. Sharma be declared 25% at fault.