BC Court of Appeal Finds 60/40 Split of Fault Appropriate For Left Hand Turn Crash at Uncontrolled Intersection

Reasons for judgement were published this week by the BC Court of Appeal overturning a trial result and finding that a 60/40 split of fault was appropriate following a collision involving a left hand turning vehicle at an uncontrolled collision.

In the recent case (Randhawa v. Evans) the Respondent Evans was turning left at an uncontrolled intersection.  There were three lanes in the opposite direction of travel.  The traffic in the two lanes closest to the Respondent stopped.  Believing the curb lane was clear the Respondent commenced a left turn. At the same time the Appellant Ms. Paul was travelling in the curb lane in the the opposite direction.  She failed to realize the vehicles to her left had stopped to allow the Respondent to turn left.  At the same time the Respondent failed to realize the Appellant was travelling int he curb lane and the vehicles collided.

At trial the REspondent was found 10% at fault for the crash with the Appellant shouldering 90% of the blame.  The BC Court of Appeal found this apportionment was wrong and substituted a finding of 60% blame for the left turning vehicle and 40% for the ongociming Appellant.  In reaching this liability split the Court provided the following reasons:

[19]         Moses v. Kim, 2009 BCCA 82, sets out the standard of review of a trial judge’s apportionment of fault under the Negligence Act, R.S.B.C. 1996, c. 333 [NA]:

[33]      The standard of review of a trial judge’s apportionment of fault pursuant to the Negligence Act, R.S.B.C. 1996, c. 333 is also subject to a stringent standard.  Appellate courts may not interfere with a trial judge’s apportionment of liability unless there is a “gross disproportion” between the apportionment of fault as determined by the trial judge and the apportionment the appeal court would have made:  Crown West Steel Fabricators v. Capri Insurance Services Ltd., 2002 BCCA 417, 214 D.L.R. (4th) 577 at para. 27; Rimmer (Guardian ad litem of) v. Langley (Township), 2007 BCCA 350, 48 M.V.R. (5th) 1 at para. 64.  In earlier authority, this threshold was described as requiring “very strong and cogent reasons” to disturb the apportionment of liability as determined by a trial judge:  Stermer v. Lawson (1979), 17 B.C.L.R. 181; Swyrd v. Tulloch, [1954] S.C.R. 199.

[20]         On the appeal, Ms. Paul submitted that the trial judge had erred in law by not recognizing and applying the appropriate legal priority between the duties of a left‑turning driver and the duties of a driver passing another vehicle on the right. While this Court in Nerval found that the duties under s. 174 of the MVA on a left-turning driver take priority over the obligation under s. 158 of the driver passing another vehicle on the right, such a finding is not determinative in considering their respective degrees of fault. Indeed, in Nerval itself, the Court acknowledged that a through-driver may indeed be negligent, even to a greater degree of fault than the servient driver: at para. 38.

[21]         Section 1 of the NA reads as follows:

(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.

[22]         In Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219 (C.A.), this Court emphasized that the inquiry under s. 1 is focussed exclusively on the degree to which each party’s conduct represented a departure from the expected standard of care. It is not an inquiry into other considerations that might connect the actions of one party more closely than the other with the damage that occurred. Mr. Justice Lambert, for the majority, said:

[19]      … The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”. …In this context, “fault” means blameworthiness.  So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances.

. . .

[24]      In the apportionment of fault there must be an assessment of the degree of the risk created by each of the parties, including a consideration of the effect and potential effect of occurrences within the risk, and including any increment in the risk brought about by their conduct after the initial risk was created.  The fault should then be apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties.

[23]         In Alberta Wheat Pool v. Northwest Pile, 2000 BCCA 505, Finch J.A. (as he then was) explained that fault or blameworthiness covers a continuum of conduct:

[46]      Fault or blameworthiness evaluates the parties’ conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care. Fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.

[24]         Ms. Evans departed from safety rules when she entered the intersection when it was unsafe to do so. She did not keep a proper lookout. She failed to yield the right of way. Ms. Paul was not speeding, but she was at fault for not recognizing that the vehicles to her left had stopped and failing to slow down. I note that the traffic to her left had only come to a stop in the moments before Ms. Evans commenced her turn. Once Ms. Evans pulled into the curb lane, Ms. Paul had no opportunity to avoid the collision. In considering the nature and extent of the departure from the respective standards of care of each of the parties, I am of the view that the conduct of Ms. Evans was clearly more blameworthy. With respect, I find that the trial judge’s apportionment of fault was grossly disproportionate to the apportionment the appeal court would have made. I would apportion liability 60% to Ms. Evans and 40% to Ms. Paul.