ICBC Law

It is not uncommon for motorcyclists to travel in a ‘staggered‘ formation when riding in groups.  Typically one motorcyclist will travel within a few feet of the left of their lane of travel (the “A” position) with the following motorist travelling within a few feet of the right side of their lane of travel (the “C” position).  This staggered position is used in part because section 194(4) of the BC Motor Vehicle Act prohibits motorcyclists from operating “their motorcycles side by side in the same direction in the same traffic lane“.

When travelling in groups of two it is important for the rear motorist to leave sufficient space between them and the lead motorist.  Failing to do so could be negligent as was demonstrated in reasons for judgement released last week by the BC Supreme Court, Nanaimo Registry.

In last week’s case (Brooks-Martin v. Martin) the Plaintiff was injured in a 2005 collision in Saanich, BC.  The Plaintiff was travelling in the “C” position behind a motorcycle operated by her husband who was travelling in the “A” position.   Her husband unexpectedly cut in front of her.  In trying to avoid a collision with her husband she lost control, fell down onto the road and was injured.

(Accident Reconstruction Software courtesy of SmartDraw)

She sued her husband for damages.  Mr. Justice Halfyard found that the Defendant “cut in front of the plaintiff’s motorcycle and created an unreasonable risk to her safety.“.  For this reason he was found legally responsible for the Plaintiff’s crash.  The Plaintiff, however, was also found partially at fault and had her damages reduced by 30% as a result.  In finding the Plaintiff partly at fault Mr. Justice Halfyard made the following observations:

[148]     By reason of s. 194(4) of the Motor Vehicle Act, it is not unlawful for two motorcycle drivers to ride side-by-side in the same traffic lane. I accept that it is permissible and common practice among motorcycle riders to ride in their lane of travel in the A position and C position, and then come to a stop at approximately the same time, side-by-side. But in my view, s. 194(4) does not operate for or against the plaintiff in this case…

[162]     I am satisfied that the plaintiff failed to take reasonable care for her own safety, in several respects. In my opinion, a motorcycle driver who possessed reasonable driving skills and who was exercising reasonable care for her own safety would not have been travelling in the C position only two motorcycle lengths behind a lead motorcycle in the A position, at a speed of 40 kph, when both riders were approaching the back end of a stopped pickup truck and when she was not more than 14.56 metres away from that truck (and when the lead motorcycle driver in the A position was closer to that truck and travelling at least as fast as she was).

[163]     I find that when the defendant Martin steered in front of her, the plaintiff was driving without due care and attention and at a speed that was excessive relative to the road and traffic conditions, in relation to both her husband’s motorcycle and the stopped truck. That conduct was contrary to s. 144(1) of the Motor Vehicle Act and also constituted negligence.

[164]     I find also that, at the time the defendant Martin steered in front of her, the plaintiff was following the defendant Martin’s motorcycle more closely than was reasonable and prudent, having due regard for the speeds of the two motorcycles and the presence of the stopped pickup truck ahead of them. That conduct was contrary to s. 162(1) of the Motor Vehicle Act. I find that this conduct also constituted negligence on the part of the plaintiff.

[165]     I am also satisfied that this driving conduct of the plaintiff in breach of the standard of care, was a cause of her losing control of her motorcycle. She put herself into a situation where the defendant Martin (before he swerved) was a potential hazard to her, and the stopped pickup truck was an actual hazard to her safety. If she had been travelling at a slower speed and at a greater distance behind the defendant Martin, and if she had slowed her motorcycle down sooner than she did, the plaintiff could have safely avoided the defendant Martin’s motorcycle and could have safely stopped behind the pickup truck. As it was, the plaintiff’s own negligent driving made it necessary for her to take emergency evasive action, which should not have been necessary. Taking that evasive action caused the plaintiff to lose control of her motorcycle, which resulted in her injury. I find that there was a substantial connection between the negligent driving of the plaintiff, and her injury. In my opinion, the evidence establishes on the balance of probabilities that the plaintiff was contributorily negligent.

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing quantum and liability following a motorcycle accident.

In this week’s case (Langley v. Heppner) the Plaintiff was injured in a 2003 BC collision.  The Plaintiff was operating a motorcycle and was following a vehicle operated by the Defendant.  Both vehicles were behind a slow moving van.  As the motorists approached a straight stretch of road both the Plaintiff and Defendant attempted to pass the van in the on-coming traffic lane.  They did so at almost the same time resulting in a violent crash catapulting the Plaintiff about 60 feet.

Mr. Justice Barrow held that both motorists were at fault with the Defendant bearing 80% of the blame.   Paragraphs 11-37 of the reasons for judgement are worth reviewing for the Courts discussion of liability.

The Plaintiff suffered various injuries.  Most of these went on to heal however he was left with persistent neck and shoulder pain.  Ultimately he was diagnosed with Thoracic Outlet Syndrome.  The limitations related to this were expected to continue to improve however there was a likelihood of long standing symptoms.  Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000.  In doing so the Court provided the following reasons:

[43] Turning to Mr. Langley’s injuries more generally, he suffered a number of bruises and abrasions which resolved unremarkably. His low back was sore, and although it remained sore and painful for a considerable time following the accident, it was asymptomatic by the time of the trial (six years post-accident). His most significant and persistent injury is to his right shoulder and the right side of his neck…

[51] I am satisfied on a balance of probabilities that the plaintiff has thoracic outlet syndrome and that it is a result of the motor vehicle accident…

[58] Mr. Langley’s right shoulder and right neck pain are the most significant consequence of the accident. I accept that he is always in some degree of discomfort in these areas. His level of discomfort increases when he becomes fatigued, but it is most seriously aggravated when he does any activity that involves lifting his right arm to or above shoulder level…

I am satisfied that Mr. Langley’s functional abilities will improve in some respects, although not to a significant degree…

[81] In view of all of the foregoing, an appropriate award for non‑pecuniary damages is $55,000.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the issue of fault following a serious collision between a cyclist and a vehicle.

In today’s case (Ireland v. McKnight) the Plaintiff was a doctor who was involved in a “career-ending road traffic incident” in 2007.   The Plaintiff was travelling southbound on his bicycle on Henderson Road.  At the same time the Defendant passed the Plaintiff in the same direction of travel.  At this time a collision between the bicycle and vehicle occurred.

The Court heard competing theories about how the collision occurred but ultimately found that the Plaintiff drove into the vehicle and was fully responsible for the crash.  In dismissing the lawsuit Mr. Justice Wilson provided the following reasons:

[22]         I find the defendants’ theory of how contact occurred to be the more plausible.

[23]         I find the front wheel of the bike contacted the right rear quarter panel of the car, behind the right rear wheel well.

[24]         If, as the plaintiff argues, the car was on a collision course with the bike, or failed to adjust sufficiently to avoid a collision course, then I find that the right front corner of the car would have struck the bike.  The evidence does not support such a finding.

[25]         I conclude that the plaintiff moved the bike to the left, concurrently with the turn of head in that direction.  But for the plaintiff moving the bike, there would have been no contact between the bike and the car.

[26]         I find the defendant driver passed the bike at a safe distance, and, on the evidence, that at least three-quarters of the car length had passed the bike before contact occurred.

[27]         In result, I find the defendant driver not liable for the incident.  It follows that the plaintiff’s claim against the defendant driver, pursuant to s. 86 of the Motor Vehicle Act, fails.

Accident reconstrucion experts routinely give evidence during BC personal injury lawsuits when fault for a motor vehicle crash is at issue.  One subset of such expert evidence is “occupant dynamic” evidence which seeks to explain how a passenger would be thrown around following a collision.  While this evidence can have some value at trial it is accompanied with certain shortcomings.  These were discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (Byer v. Mills) the Plaintiff was one of two occupants in a vehicle which was involved in an at-fault collision.  The central issue at trial was who the driver of the vehicle was.  The Plaintiff was badly injured and had no recollection of who was driving.  The second occupant of the vehicle died shortly following the crash.  There were no independent witnesses addressing who was driving at the time of the crash and the Court had to decide this issue relying on circumstantial evidence.

In the course of the trial the Court heard evidence from an ‘occupant dynamic‘ expert.   Ultimatley Mr. Justice Harris dismissed the Plaintiff’s lawsuit finding that, on a balance of probabilities, he was likely the driver therefore he was at fault for his own injuries.  This decision was most influenced by lay witness evidence and the occupant dynamic expert testimony was of little value in this particular case.  Mr. Justice Harris provided the following short but useful comment addressing the shortcomings of occupant dynamic evidence:

[54] The principles of occupant dynamics are helpful up to a point. Certainly, they assist in identifying the principal direction of force exerted on occupants. They are also helpful in identifying the point at which an occupant might be expected to make initial contact with the interior of the passenger compartment. In my view, in the circumstances of this collision, the predictive value of principles of occupant dynamics rapidly diminishes once the movement of the passengers is affected by contact with the interior of the compartment and with each other. At that point the situation becomes inherently dynamic and fluid. There are far too many variables involved to make accurate predictions of how the occupants and parts of their bodies would move once they start hitting each other. It must be remembered that if unrestrained an occupant would be traveling within the compartment at a speed of about 55 km/h. I am sceptical that any reliable prediction of how the occupants would interact with each other, with the interior of the passenger compartment and move within it can be undertaken.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, deciding the issue of fault for a two vehicle collision.

In today’s case (Tang v. Rodgers) the Plaintiff was travelling on West 33rd Avenue in Vancouver when he was struck by the Defendant’s vehicle.  There was one lane in the Plaintiff’s direction of travel at the scene of the collision.  The Plaintiff attempted a right hand turn into the driveway to his residence.  At this time the Defendant was attempting to pass the Plaintiff’s vehicle on the right and a collision occurred.

There was conflicting evidence at trial but ultimately the Court found that both motorists were to blame.  The Defendant was faulted for passing on the right when it was unsafe to do so.  The Plaintiff was found 25% at fault for failing to engage his right hand turn signal in a timely fashion.  In arriving at this apportionment Madam Justice Brown provided the following reasons:

[21]         Section 158 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, prohibits passing to the right in most circumstances.  Mr. Rodgers was negligent in passing on the right without ensuring that it was safe to do so.  Mr. Tang was moving slowly in the travel lane when Mr. Rodgers decided to pass.  Mr. Rodgers did not know what Mr. Tang was doing and thought he was confused.  Mr. Rodgers took a significant risk.

[22]         Mr. Tang was also negligent.  Section 167 of the Motor Vehicle Act provides that a driver of a vehicle must not turn the vehicle to the right from a highway at a place other than an intersection unless the driver causes the vehicle to approach the place as closely as practicable to the right hand curb or edge of the roadway.  Mr. Tang did not do so.  Rather, as some drivers do, he placed his vehicle to the left before turning right.  His vehicle was not as close as practicable to the right hand curb or edge of the roadway.  Second, Mr. Tang did not shoulder check or look to his right before turning right.  Finally, Mr. Tang only turned his right turn signal on immediately before the accident, which was too late to give warning to those behind him.

[23]         The circumstances of this case are very similar to the circumstances that were before Mr. Justice Curtis in Boyes v. Mistal, [1990] B.C.J. No. 1755, 1990 CanLII 528 (SC), aff’d 1992 CanLII 1954 (BCCA).  There Mr. Justice Curtis said:

Mrs. Boyes did not give sufficient warning when she signalled.  Like many drivers she signalled and turned almost simultaneously, too late to warn Mr. Mistal.  Nor did Mrs. Boyes turn from as close as practicable to the right hand edge of the roadway, she turned when there was more than a car width to her right - thereby risking the sort of collision that did occur.  Mrs. Boyes is at fault in the collision for these reasons.

I find Mr. Mistal’s fault to be the greater.  Mrs. Boyes was occupying the only lane of travel, she never left her lane, and had a right to be there.  Mr. Mistal chose to pass Mrs. Boyes when she slowed down on the basis of what he assumed was happening.  She had not signalled and Mr. Mistal should have known that in choosing to pass a vehicle which was obviously intending some maneuver not yet signalled, in its own lane, he was taking a significant risk.  I find Mr. Mistal to be 75% at fault and Mrs. Boyes 25%.

[24]         I, too, conclude that Mr. Rodgers’ fault was the greater.  I find Mr. Rodgers 75% at fault and Mr. Tang 25% at fault.

Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, addressing the issue of fault for a single vehicle collision.

In today’s case (Bassi v. Bassi) the Plaintiffs were passengers in a vehicle driven by the Defendant.  The Defendant lost control resulting in a roll-over crash.   The passengers were injured and sued for compensation claiming the Defendant was careless.  The Defendant argued that he was not and that he lost control due to a deer in the roadway.  Mr. Justice Cullen found the Defendant entirely at fault for the crash and in doing so provided the following analysis:

[20]         As I see it, the issue in the present case is whether the defendant’s explanation of the accident, involving as it does the mechanism of a deer running onto the highway from his left, neutralizes the inference that by leaving his lane of travel onto the right gravel shoulder, then crossing both lanes of the highway to the opposite gravel shoulder, and ultimately losing control of his vehicle and causing it to roll over involved negligent driving on his part.  In my view, it does not.  Although the deer running onto the highway presents a basis for an explanation that the accident could have happened without negligence, the explanation actually advanced by the defendant is inadequate to offset the inference that his negligence had a significant role in the accident.

[21]         In the first place, there is no clear evidence where the deer was in relation to the defendant’s vehicle when he saw it or whether the action he took was the only or most effective way to evade the deer.  The defendant said he swerved because he “got a little nervous.”  It is unclear whether he was simply startled and overreacted or whether he took the only evasive manoeuvre open to him in the circumstances.  There is simply no evidence of what actual crisis the defendant was confronted with or how imminent it was.

[22]         Secondly, although the defendant asserts the deer came from his left from behind the bluff and he noticed it partway through the curve, it appears from the plaintiff Ms. Bassi’s uncontradicted pictures - and explanation that the defendant’s vehicle did not swerve off the road to the right until some distance past the corner down the straightaway which cast some doubt in the absence of the clearer evidence as to the nature and duration of the defendant’s reaction to seeing the deer or where he was when he reacted or where the deer was when he first saw it.

[23]         Third, the defendant asserts, at least in his affidavit, that the reason he went across the highway to the left gravel shoulder was because “the turn in the highway was so sharp.”  It is evident, however, from the defendant’s evidence on discovery and the photographs that the curve in the highway is not sharp, but is, in fact, quite gradual.  Moreover, based on the uncontradicted photographs and affidavit of the defendant, Ms. Bassi, at the point where the van turned back onto the highway from the right gravel shoulder, it was well out of the curve and on the straightaway.  There was no turn in the highway at all to cause the defendant to go “right across the highway and onto the left shoulder.”

[24]         In his discovery, the defendant testified that when he tried to bring the van back onto the highway, “The turn was so sharp, it started going the other way right away on the other side of the highway.”  It is not clear in that passage whether he was referencing the turn in the road or his own turn of the van in trying to bring the vehicle back onto the highway.  Although he clarified that in his affidavit, his explanation appears quite at odds with the nature of the highway where he is said to have lost control and that significantly attenuates the value of his explanation because it fails to answer why he veered back across the highway to the opposite side.

[25]         The defendant’s explanation also lacks any indication that he considered or attempted any other means of avoiding the accident such as by braking either when he first saw the deer or as he veered off the road to the right.  There is no evidence of any skid marks, brake marks, distances, or reaction times that would aid in understanding how the accident took place or whether the defendant’s explanation could adequately account for what occurred.

[26]         In my view, this is a case in which the plaintiffs have established a prima facie case of negligence and, while the defendant has offered an explanation of what occurred, it lacks cogent detail and is not sufficiently full, complete, or consistent with the existing conditions to neutralize the inference of negligence arising from the circumstances of the accident.  In short, the defendant’s explanation does not adequately ground a non-negligence version of how and why he came to lose control of his vehicle.

[27]         I conclude that all the circumstances, including the evidence that the defendant had not slept for nearly 24 hours and had driven for about four-and-a-half hours through the night before the accident occurred, establishes on a balance of balance of probabilities that the accident was a product of his negligence notwithstanding the explanation he advanced involving his reaction to seeing a deer coming onto the highway from his left.  I, therefore, find liability in favour of the plaintiffs.

Reasons for judgement were released today by the BC Court of Appeal dismissing ICBC’s appeal of judgment finding them liable for injuries caused during a 2004 “gas and dash” incident.

In today’s case (Nayar v. ICBC) the Plaintiff was the owner of a gas station.  An unknown motorist fuelled her vehicle and attempted to drive away without paying.  The Plaintiff confronted the unknown motorist and stood in front of her vehicle.  The motorist then inched forward and revved her engine.  The Plaintiff placed his palms on the hood of the vehicle at which time the motorist “accelerated to 100 kph while (the Plaintiff) lay on the hood of the vehicle, and then turned sharply, throwing him to the pavement“.

The Plaintiff could not ascertain the identity of the driver so he sued ICBC for compensation under section 24 of the Insurance (Vehicle) Act.  At trial ICBC argued that “the plaintiff is wholly to blame for his injuries“.  Madam Justice Gropper disagreed finding ICBC liable to pay the Plaintiff damages.  In doing so the Court made the following findings:

[]           It is unfortunate that the plaintiff placed himself in front of the Volkswagen, but Jane Doe was entirely at fault.  The events and the injuries which the plaintiff sustained were due to Jane Doe’s blameworthiness.  Even if the plaintiff should have followed the gas-and-dash instructions, and even if he went in front of the Volkswagen, and even if he made a stop motion and placed his hands on the hood of the Volkswagen, the blameworthiness or fault which caused the plaintiff’s injuries were the actions of Jane Doe.

[]           Unfortunately, since the date of this incident, another gas attendant not following the gas-and-dash instructions was dragged to his death by a customer who did not pay for his gas purchase.  The Legislature has responded by implementing a system where customers must pre-pay for their gas purchases.  This is a much more infallible gas-and-dash avoidance procedure.

[]           In the result, I find Jane Doe to be solely responsible for the event which occurred and the plaintiff’s injuries which resulted.

[]           Judgment is therefore entered against the nominal defendant, ICBC.

ICBC appealed this finding although the appeal was dismissed for lack of timely prosecution.  ICBC Applied to reinstate the appeal but this failed as well with the BC High Court finding that ICBC’s appeal was ‘doomed to failure’.  The Court of Appeal provided the following useful reasons:

[6] I am unable to see any error in principle in the reasons expressed for dismissing the application to reinstate the appeal. In my view, it is clear Groberman J.A. considered each of the criteria that govern the kind of application that was before him. As he stated, it was not for him to assess whether the appeal would succeed or fail save for the very limited purpose of deciding whether it was appropriate to reinstate it. That required him to consider the merit in the one ground of the appeal advanced. Having done so, he determined it was insufficient to justify reinstatement, which was the issue before him. That was his determination to make. I see nothing inconsistent in his effectively characterizing the merits of the appeal as being so very weak as to render the appeal doomed to failure. For the purpose of considering reinstatement, he did not have to decide there was absolutely no merit in the appeal to conclude it was doomed, only that there was insufficient merit to justify its being reinstated.

Further to last week’s post on this topic, reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for intersection crashes.  This week’s case is of particular interest because a ‘dominant‘ driver was found completely at fault for striking a left hand turning vehicle at an intersection.

In today’s case (Kelly v. Yuen) the Plaintiff was attempting a left hand turn at a light controlled intersection in Vancouver, BC.   As she turned the Defendant, who was approaching from the opposite direction, entered the intersection resulting in a collision.  The Defendant was travelling in the curb lane which, at the time of the crash, was restricted to buses and bicycles.  The Defendant argued that he had a green light and the Plaintiff was fully at fault.  The Plaintiff argued that the Defendant should not have been in the restricted lane and was fully at fault.  Ultimately the Court sided with the Plaintiff and allocated 100% of the responsibility for the crash on the through-driver.  Mr. Justice MacKenzie provided the following summary of some legal principles at play in these types of cases:

[23]         The legal principles with regards to left turn situations have been addressed in many cases. In Pacheco (Guardian ad litem) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 15, Legg J. stated:

In my opinion, a driver who wishes to make a left hand turn at an intersection has an obligation not to proceed unless it can be done safely. Where each party’s vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way. The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. Where the defendant, as here, has totally failed to determine whether a turn can be made safely, the defendant should be held 100 percent at fault for a collision which occurs.

[24]         In Carich v. Cook (1992), 90 D.L.R. (4th) 322 at 326 (B.C.C.A.), Lambert J.A. had this to say:

… The question as a driver turns left is whether there is any vehicle in any approaching lanes that constitutes an immediate hazard. If there is, the turn should not be made. If there is not, then the turn can be made and of course, care should be taken throughout the turn and as each new lane is entered to make sure that the situation as it was assessed when the turn started has not changed in the meantime. …

[25]         Of course, each case must be determined on its own particular facts. For example, in Uyeyama (Guardian ad litem of) v. Wittenberg, [1985] B.C.J. No. 1883 (C.A.), the BC Court of Appeal determined that a left-turning was not negligent for having entered an intersection, having failed to detect the excessive speed of the defendant’s vehicle. In addition, the left-turning driver was entitled to assume that the oncoming vehicle would stop at a red light and according to traffic law. The court concluded at para. 44 that the left turning driver had “exercised due care and commendable prudence in taking the action she did in attempting to make a difficult left turn.”

[26]         This case was cited with approval by the BC Court of Appeal in Kokkinis v. Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.).

[27]         The court in Kokkinis considered other cases where the court held in favour of the servient driver. The court looked to Morgan v. Hauck (1988), 27 B.C.L.R. (2d) 118 (C.A.), a case where the BC Court of Appeal held that a dominant vehicle which had accelerated towards an intersection despite amber warning lights and then entered the intersection when the light was red could not rely on the relevant section of the Motor Vehicle Act to escape liability. In Kokkinis at para. 6, Newbury J.A. speaking for the court summarized the position taken in Morgan as follows:

… Esson, J.A. (as he then was), for example emphasised the “heavy onus which rests upon drivers approaching signals of this kind to make due allowance for the possibility that there will be a vehicle seeking to make a turn such as the plaintiff was making on this day. Their clear duty is to comply with the warning lights and to not ‘run the red’.”  But for the fact that appellate courts should, he said, vary apportionments of blame made by trial judges only in very rare circumstances, Esson, J.A. (with whom Macfarlane, J.A. concurred) would have considered setting aside even the 10 percent allocation of fault.

[28]         At para. 7 of Kokkinis, Newbury J.A. considered the Court of Appeal’s decision in Brucks v. Caslavsky, 45 B.C.A.C. 62, and stated the following:

A more recent case from this Court along similar lines is Brucks et al. v. Caslavsky et al. (19 April 1994) Vancouver Registry CA016390 (B.C.C.A.), which apparently was not cited to the trial judge. There, this Court rejected the argument that the onus placed by s. 176 of the Act is “absolute” and that in deciding whether an oncoming car constitutes an “immediate hazard”, a left-turning driver must consider the possibility that any oncoming motorist may intend to speed through an intersection and disobey the traffic signal. Taylor, J.A. for the Court quoted the well-known statement of principle of Lord Atkinson in Toronto Ry. Co. v. King et al. [1908] A.C. 260, at 269:

. . . traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less on the assumption that the drivers of all other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.

[29]         Even though Kokkinis and Morgan dealt with vehicles which approached an intersection and turned left on an amber light, the principles and observations stated in these decisions are helpful. At para. 10 of Kokkinis the court stated that the servient driver should not be faulted for having diverted her attention momentarily from oncoming traffic to check cross traffic. This is because servient drivers have “the duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians, and whatever else may be present in the intersection.”

[30]         At the same paragraph, the court added:

… To say that the plaintiff can be found at fault because she relied on the assumption that Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as the other traffic did. …

[31]         The authorities make it clear in my opinion that for liability to be found against the dominant driver in situations where the servient driver is making a left turn in front of stopped traffic, the evidence must establish that the dominant driver had a sufficient opportunity to avoid the accident, of which a reasonably careful and skilful driver would have availed him or herself (Pacheco, para. 18).

In finding the Defendant fully at fault the Court reasoned as follows:

[59]         The circumstances here are significantly different. This is not a situation where the servient driver has disregarded her statutory duty. Here it is just the reverse. Mr. Yuen flagrantly ignored the restriction on travel in the curb lane in a clear attempt, in my opinion, to drive along the restricted lane in order to get to his destination earlier rather than wait like other responsible drivers who were complying with the curb lane restriction. As Esson J.A. said in Morgan, I am satisfied that Mr. Yuen should have made “due allowance for the possibility that there will be a vehicle seeking to make a turn such as the plaintiff was making on this day”.

[60]          As Ker J. said in Rothenbusch at para. 149, “Who has the statutory right of way is informative; however, it does not determine liability in an accident. Drivers with a statutory right of way must still exercise caution to avoid accidents where possible.”

[61]         In these circumstances, I am satisfied a reasonably careful and prudent driver would not have pulled into the restricted curb lane, as Mr. Yuen did with limited vision, and accelerate towards a backed up intersection at an excessive rate of speed. As the dominant driver, Mr. Yuen was not required to take “extraordinary steps to avoid an accident or to show exceptional proficiency in the operation of a motor vehicle.” (Salaam v. Abramovic, 2010 BCCA 212 at para. 25). However, I am satisfied a reasonably prudent driver, exercising reasonable caution, would have had a sufficient opportunity to avoid the accident.

[62]         Furthermore, Ms. Kelly did not breach her statutory duty under s. 174 to yield the right of way. She took reasonable steps to determine she could make the left turn safely. The evidence which I have accepted establishes that when Ms. Kelly looked right and entered the curb lane, the Yuen vehicle was not “so close as to constitute an immediate hazard”.

[63]         As a result, I am satisfied that the accident was caused solely by the negligent driving of Mr. Yuen. The defence has not established any contributory negligence on the part of Ms. Kelly.

In British Columbia motorist’s obligations to turn headlights on are set out in section 4.01 of the Motor Vehicle Act Regulations.  This section state that :

4.01 A person who drives or operates a vehicle on a highway must illuminate the lamps required by this Division

(a)  from 1/2 hour after sunset to 1/2 hour before sunrise, and

(b)  at any other time when, due to insufficient light or unfavourable atmospheric conditions, objects on the highway are not clearly discernible at a distance of 150 m.

Reasons for judgement were released today by the BC Supreme Court considering this section and determining whether a motorist can be partially at fault for a crash for failing to have their lights on prior to sunset.

In today’s case (Schurmann v. Hoch) the Plaintiff was involved in a two vehicle collision.  He was leaving a stop sign and attempting to turn left at an intersection when the Defendant, approaching from the Plaintiff’s left, struck the Plaintiff’s vehicle.   The Defendant was the ‘dominant‘ driver and had the right of way.  The Plaintiff was found at fault for leaving a stop sign when it was unsafe to do so.  However the Court was also asked to determine if the Defendant was partially at fault.

At the time of the crash it was a few minutes prior to sunset.  The lighting conditions “posed visual problems for a person attempting to turn left“.  The Defendant was driving a dark pick-up truck and did not put on his vehicle’s running lights or headlights.   The Defendant was found 50% at fault for this failure.  In arriving at this decision Madam Justice Maisonville provided the following reasons:

[44]         I conclude, however, on the facts before the court that the defendant, driving a dark navy pickup truck without running lights or headlights in effect at approximately less than five minutes before sunset in conditions where there were clouds and it had commenced spitting and light raining, was negligent and failed to act reasonably in all of the circumstances by not putting on the running lights and headlights of his vehicle to make himself visible to other motorists.

[45]         I find that the defendant by failing to have his running lights on was negligent. His actions created an objectively unreasonable risk of harm. The defendant argues that he was in compliance with the statute insofar as it was not necessary to have the lights of his vehicle on as it was not yet sunset. I find however that section 4.01(a) of the Regulations speaks to ideal weather conditions, not conditions as they existed on the afternoon and early dusk of January 10, 2006. Those were cloudy conditions in circumstances where it had just begun to rain. Accordingly this situation was governed by s. 4.01(b) of the Regulations.

[46]         In considering the issue of the impact of breach of a statute, Dickson J., as he then was, held at page 225:

Breach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence. Negligence and its common law duty of care have become pervasive enough to serve the purpose invoked for the existence of the action for statutory breach: see Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205.

[47]         It must not be forgotten that the other elements of tortious responsibility equally apply to situations involving statutory breach, i.e. principles of causation and damages. To be relevant at all, the statutory breach must have caused the damage of which the plaintiff complains. Should this be so, the violation of the statute should be evidence of negligence on the part of the defendant (see Saskatchewan Wheat Pool).

[48]         The defendant submitted to the court that in order to find negligence one must first find a breach of the statute. I am mindful of the comments of Dickson J. Other elements of tortious responsibility equally apply – it is not necessary to find breach or for that matter compliance with a statute to find actions that created an objectively unreasonable risk of harm…

50] In this case, but for the defendant not having his running or head lights on, the plaintiff would have seen him, and would not have attempted the turn. The defendant thus breached the duty of care he owed to the plaintiff causing the plaintiff the unforeseen risk of injury ─ and he did in fact suffer injury.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, summarizing some useful legal principles Judges look at when deciding the issue of fault following intersection crashes.

In today’s case (Luvera v. Benedict) the Plaintiff was injured in a 2005 motor vehicle collision.  He was driving his motorcycle and entered an intersection with the lights “probably in the late amber phase“.  At the same time, the Defendant who was approaching from the opposite direction of travel, “attempted her left turn only when the light turned from green to amber…(and) did not see the oncoming motorcycles“.  The Plaintiff drove into the right rear quarter panel of the Defendant’s vehicle.

Mr. Justice Wong found that both the Plaintiff and the Defendant were equally at fault for the crash.  Before reaching this conclusion the Court set out the following summary of principles of law:

[5]             In the March 2006 issue of the Verdict magazine, a publication of the B.C. Trial Lawyers Association, at page 40, there is a useful discussion of the jurisprudence in the article entitled, “Intersection/Right-of-Way Cases - Making Sense of the Law” authored by Barbara J. Flewelling.  At page 44, the author states:

There is a conflict in the cases about whether or not a left-turning driver must wait until all other vehicles have nearly or actually come to a stop before proceeding to make their turn.  Whereas the British Columbia Court of Appeal in Kokkinis v. Hall, [1996] B.C.J. No. 1560, has indicated that it is not necessary, in Mitchell v. ICBC, [2004] B.C.J. No. 1600, on a Rule 18A application, Mr. Justice Edwards was of the view that the interpretation of the obligations of a left-turning driver as set out in Kokkinis would invite left-turning drivers to assume rather than determine that oncoming through drivers will stop as the light turns yellow and requires through drivers to conduct themselves on the basis left-turning drivers will do so.  Edwards J. felt that due to the fact that many drivers regard an amber light as a signal to accelerate through an intersection, the Kokkinis principle seems to endorse a hazardous assumption of the part of the left-turning drivers.

In the Mitchell case, the left-turning plaintiff turned left on an amber light.  Mr. Justice Edwards found that the dominant through driver entered the intersection on an amber light, the collision occurred when the light was red, and that he was speeding.  Even though the judge said he could infer that the dominant driver would have had time to stop after the light turned yellow or could but was unable to stop due to speed, he still found that the left-turning servient driver had a duty to take account of manifest hazards and, by failing to see or react to the fact the van was approaching fast and not stopping, was negligent.  He apportioned liability equally relying on s. 1(2) of the Negligence Act as he was unable to determine different degrees of fault.

[6]             The author concludes in her summary at page 45 as follows:

Summary

Intersection/right-of-way cases are very fact dependent and it can be very difficult to assess liability with any precision.  However, there are some general principles that can be gleaned from the case law:

Although a driver who enjoys the right of way is entitled to assume that others will obey the law and the rules of the road, this is not absolute and if she is aware or ought to have been aware of the other driver’s disregard of the law and fails to take reasonable care to avoid a collision, she may be found partially or even wholly liable.

In determining if a dominant driver ought to have been aware of another’s disregard of the law, the courts seem to be taking a realistic approach to the exigencies of making rapid decisions in circumstances where a reasonable driver also has to check for cross-traffic and pedestrians.  The courts generally have recognized that at very busy intersections, there are times when the only way a driver can execute a left turn is on an amber light and a dominant driver may be found liable for failing to stop at an amber light.

The onus is on the servient driver to prove that the dominant driver was also negligent in that his or her negligence was a cause of the accident.

There is some conflict in the case law about whether a left-turning driver is obligated to wait until the oncoming traffic is nearly or completely stopped.  Some cases stand for the proposition that it is not necessary while others state that it is prudent to do so and that a left-turning driver who fails to do so will be found partially liable.

A servient left-turning driver has an obligation to take reasonable steps to determine if the dominant driver poses an immediate hazard.  The time this is determined is at the moment just before the turn is commenced.  There is some conflict in the law about whether that requires a servient driver to determine if the dominant driver is speeding and may not stop at the light.

[7]             Like my late colleague, Mr. Justice Edwards, factually I have also concluded that both parties were equally at fault.  Mr. Luvera should have approached the intersection with more caution in order to be able to stop safely.  Ms. Benedict failed to take into account the manifest hazards in this case of approaching motorcycles speeding towards her.