Kerslake v. Kim,


2008 BCCA 220

Date: 20080516

Docket: CA033995


William Kerslake




Young C. Kim and Kevin J. Kim




The Honourable Chief Justice Finch

The Honourable Mr. Justice Mackenzie

The Honourable Madam Justice Levine

Oral Reasons for Judgment

A.M. Gunn
R.W. Parsons

Counsel for the Appellants

W.D. Muissio

Counsel for the Respondent

Place and Date:

Vancouver, British Columbia

16 May 2008

[1]                FINCH, C.J.B.C.: The defendants appeal from the judgment pronounced in the Supreme Court of British Columbia on 3 April 2006 following a trial by judge and jury.

[2]                The plaintiff’s claim arose from a motor vehicle accident on 4 April 2000 on North Road in Coquitlam, opposite an entrance/exit to the Lougheed Mall parking lot.  The plaintiff was travelling south in the right hand lane on North Road.  There was stopped traffic in the two southbound lanes to his left.

[3]                The defendant had been travelling north on North Road, and was in a designated left turn lane intending to turn left into the parking lot entrance.  According to some of the evidence, there was a gap in the two lines of stopped southbound traffic, and the defendant attempted to make his left turn through that gap when his vehicle came into collision with the plaintiff’s southbound vehicle.

[4]                The plaintiff alleged injuries and consequent loss of income and other financial losses caused by the defendants’ negligence.

[5]                At trial, the defendants’ negligence was admitted.  The issues for the jury were whether the plaintiff was contributorily negligent for the losses he suffered, and the quantum of damages under various heads.  The jury found no contributory negligence on the plaintiff.  It assessed general damages for non-pecuniary losses in the sum of $300,000, past loss of income of $275,000, loss of future income earning capacity of $650,000 and cost of future care of $15,000.

[6]                The defendants have appealed the finding of no contributory negligence on the basis of an inadequate charge by the judge as to the nature and extent of the plaintiff’s duties.  The defendants also appeal the various heads of damages.  The defendants seek a new trial, and in the alternative, other relief.

[7]                For his part, counsel for the plaintiff conceded that the award of $300,000 for non- pecuniary losses could not be supported, and asks this Court to substitute an award of $150,000.  Otherwise, the plaintiff supported the verdict and the charge.

[8]                On the issue of contributory negligence, the learned trial judge instructed the jury, among other things, on the provisions of s. 174 of the Motor Vehicle Act, and the burden it imposes on drivers intending to turn left at an intersection.

[9]                Counsel for the defence asked the court also to instruct the jury on the provisions of s. 158 of the Motor Vehicle Act, and the burden it imposes on persons driving on a laned roadway who pass other vehicles on the right. The learned trial judge chose not to instruct the jury on the provisions of s. 158.

[10]            As I have said, the jury returned a verdict that the plaintiff was not contributorily negligent.

[11]            In my opinion it was, in the circumstances of this case, a serious non- direction, amounting to a misdirection, to fail to draw the provisions of s. 158 to the attention of the jury.  Section 158(2)(a) prohibits a driver from overtaking and passing another vehicle on the right when the movement cannot be made in safety.  The jury could not have had a proper understanding of the parties’ relative obligations, and the standard of care each was to observe, without an instruction on the meaning and application of that section.

[12]            I do not think this Court could properly decide how, if at all, fault should be apportioned.  That question requires an appreciation of all the evidence, as well as a consideration of the credibility of the two drivers and the other witnesses.

[13]            In my opinion, there must be a new trial on the issue of contributory negligence.

[14]            Counsel for the plaintiff asked us to hear the appeal on the damage issues even if we were of the view that liability had to be retried.  I do not consider that it would be proper to do so.

[15]            The plaintiff concedes that the award for non-pecuniary damages cannot stand.  The appellant has also raised serious questions as to whether the damage awards under the other heads can be sustained.  Of particular concern is the charge on discounting future losses to a present-day lump sum value.

[16]            Because the issue of contributory negligence must be retried, it would in my view be preferable for all of the contested damage issues to be retried at the same time.

[17]            I would order that the judgment appealed from be set aside, and that the proceeding be returned generally to the Supreme Court of British Columbia for a new trial.

[18]            Neither party is responsible for the mistrial that occurred.  I would order that the parties each bear their own costs of this appeal.

[19]            I would further order that responsibility for the costs of the first trial be in the discretion of the judge who hears the retrial.

[20]            MACKENZIE, J.A.: I agree.

[21]            LEVINE, J.A.: I agree.

[22]            FINCH, C.J.B.C.: So ordered.

“The Honourable Chief Justice Finch”