September 30th, 2013
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing fault for a collision involving a vehicle overtaking another.
In last week’s case (Shallow v. Dyksterhuis) the Defendant was driving behind the Plaintiff when the Plaintiff vehicle slowed near an intersection. The Defendant attempted to pass the vehicle by overtaking it on the oncoming lanes. At the same the time the Plaintiff attempted a left hand turn and a collision occurred. In finding the Defendant fully liable for the collision Mr. Justice Kelleher provided the following reasons:
 The accident took place on March 24, 2008 in the area of Charlie Lake, northwest of Fort St. John, B.C. Ms. Orcutt was driving south on the Alaska Highway, Highway 97. She intended to turn left onto an access road, two kilometers south of the junction with Highway 29.
 Highway 97 has one southbound lane in this area. However, there is a right turn lane and a left turn lane, as well as the through lane, at this intersection. The intersection is not controlled by a traffic light. The northbound lanes and southbound lanes are separated by a solid double yellow line, making it a no passing lane.
 The accident occurred at 8:30 a.m. There was daylight. The roads were covered with snow and it was continuing to snow. Visibility was satisfactory. Ms. Orcutt testified that she had her left turn signal on. As she commenced her turn, the defendant’s vehicle struck her vehicle as he was attempting to overtake her by passing her on the left.
 The defendant testified that he was driving south in a loaded logging truck. He had started work at 12:30 a.m. that day and was hauling the logs from an area north of the accident scene to a mill south of Fort St. John. This was his second load of the day.
 Mr. Dyksterhuis testified that he was travelling in the one southbound lane. He noticed the plaintiff’s car driving south in front of him. He saw the vehicle slow down and saw that the brake lights were coming on and off. Mr. Dyksterhuis knew that Ms. Orcutt was at an intersection, but assumed, mistakenly, that there was no left turn possible there. He presumed, then, that the plaintiff was either turning right or stopping on the highway.
 The defendant decided it was safe to pull out and pass her on the left. As he came up on her left, she began her left turn. His front bumper struck her vehicle. ..
25] There is no dispute that Mr. Dyksterhuis tried to pass the plaintiff on the left in a no passing zone. There was a solid double yellow line on the highway, but it was covered with snow.
 Mr. Dyksterhuis should not have attempted to pass Ms. Orcutt. First, he was in a no passing zone. Second, he wrongly assumed that she was not able to turn left at that place. Third, he was passing against a double solid line and did not sound his horn to warn Ms. Orcutt that he intended to overtake her.
 The defendant received a Violation Ticket charging him with two offences: unsafely passing on the left (s. 159) and following too closely (s. 162(1)). The defendant did not dispute the ticket. Therefore, he is deemed to have pleaded guilty: Offence Act, R.S.B.C. 1996, c. 338, s. 14(11).
 The defendant concedes he was partly to blame for the accident, but argues that Ms. Orcutt was also partly to blame. This is said to be based on her admission that she did not look over her left shoulder to determine whether there was a vehicle passing her before commencing her left turn.
 I am not persuaded that Ms. Orcutt’s action in not looking over her shoulder, amounts to a failure to take reasonable care. She was making a lawful left turn. She was in an area where passing was not permitted. She was in the left turn lane. The defendant did not sound his horn to warn her.
 Mr. Dyksterhuis faced a situation in which the intention of Ms. Orcutt was uncertain to him. His decision to pass her when faced with that uncertainty gives rise to total liability. For these and the above reasons, I conclude that the defendant is 100% at fault.