Tag: Burgess v. Fisher

Last week reasons for judgment were released in a case discussing applicable legal principles when motorists are involved in left hand turn collisions.
In last week’s case (Burgess v. Fisher) the litigants were involved in a 2 vehicle collision in Vernon, BC.  The Crash occurred when the Defendant vehicle left a stop sign and attempted to make a left hand turn at a through roadway.  To complete the turn the Defendant had to first clear two westbound lanes.  The curb westbound lane approaching the Defendant vehicle was full of cars and limited the defendants view of vehicles in the inner westbound lane.  The Plaintiff vehicle was travelling in this inner westbound lane.  As the Defendant vehicle entered the inner westbound lane the collision occurred.  There was evidence that the Plaintiff vehicle in the westbound lane was speeding, although not significantly, at the time of the collision.
Both motorists said the other was to blame.  Mr. Justice Barrow, before addressing the issue of fault, succinctly discussed the governing legal principles for these types of cases.  He summarized the law as follows:

[17] Section 175(1) of the Motor Vehicle Act provides that the driver stopped at a stop sign must, before entering an intersection, yield to through or crossing traffic that has either entered the intersection on the through road or “is approaching so closely on it that it constitutes an immediate hazard”. Similar language is found in s. 174 which governs left turns at intersections. It provides that left turning vehicles must yield the right of way to approaching traffic that is “in the intersection or so close as to constitute an immediate hazard”.

[18] In Rae v. Thorpe, [1963] 43 W.W.R. 405 (B.C.C.A.), Tysoe J.A. considered the meaning of “immediate hazard” in the context of s. 164 (the predecessor of the current s. 174). Although he did not attempt to exhaustively define the phrase, he wrote at para. 18 that:

…if an approaching car is so close to the intersection when a driver attempts to make a left turn that a collision threatens unless there be some violent or sudden avoiding action on the part of the driver of the approaching car, the approaching car is an “immediate hazard” within the meaning of sec. 164.

The point at which the determination of whether the through travelling motor vehicle is an immediate hazard is the moment before the serviant vehicle begins to encroach on the through vehicle’s lane of travel (Rae at para. 25).

[19] Ballance J. adopted both of the foregoing propositions in Hynna in the context of s. 175 of the Motor Vehicle Act. In addition, she distilled two further principles applicable to the analysis required by s. 175 from Keen v. Stene, [1964] 44 D.L.R. (2d) 350 (B.C.C.A.). In that case, Davey J.A. wrote at para. 46 that:

…A driver waiting at a stop sign ought not to enter a through street unless it is clear that oncoming traffic does not constitute an immediate hazard. Excessive refinement of what traffic is an immediate hazard will defeat the purpose of the right?of?way regulations contained in s. 165 [ now s. 175], and make them an inadequate and confusing method of regulating traffic at intersections on through streets.

Sheppard J.A., in a separate concurring judgment, made the point that the hazard to which the section is directed extends to the threat of collision as opposed to simply a collision itself.

[20] One final general principle applicable to the analysis comes from the frequently quoted observation of Cartwright J. in Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.). There, at p. 461, he wrote:

…when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right?of?way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right?of?way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[21] Whether a through travelling vehicle constitutes an immediate hazard to a crossing or left turning vehicle is a function of at least two things: how far away the through travelling vehicle is from the intersection and how fast it is travelling. Both of these are matters that the servient driver must estimate before entering the intersection. In making those estimates, the servient driver is entitled to assume, in the absence of evidence suggesting otherwise, that crossing or approaching vehicles will observe and obey the rules of the road.

The Court went on to hold that the left turning vehicle was entirely at fault for the crash despite the evidence that the Plaintiff vehicle was speeding.  In coming to this decision Mr. Justice Barrow held as follows:

[32] The law obliged Mr. Karol to either remain at the stop sign or at least not to proceed into the westbound lane of through traffic on 43rd Avenue unless he could determine that approaching in that lane did not pose an immediate hazard. In order to make that determination, he had to be able to see far enough down the westbound lane to determine whether approaching traffic travelling at or near the speed limit would pose an immediate hazard. The hazard, it is to be recalled, is not just a collision but the immanent prospect of one…

[38] Returning to the matter at hand, as noted, Mr. Karol had a limited view of on?coming dominant traffic. Both he and Ms. Faucher testified that the Fisher vehicle was 10 or 15 feet away when they first saw it. I accept that their attention was focused on the through westbound lane of traffic. Neither formed an opinion as to its speed based on observations made prior to the impact. Further, Mr. Karol did nothing to avoid the accident, not because he was not paying attention or failed to appreciate the collision before it happened but because he had no time. His obligation was to assume that through traffic would be proceeding at least at the speed limit. Even if he could see more than 10 or 15 feet into that lane when he proceeded to encroach on it, I am satisfied that he could not see much further than that. He could not see far enough to assess whether he would pose an immediate hazard to traffic travelling at or near the speed limit. He was, therefore, negligent.

[39] The next issue is whether Ms. Fisher was also negligent. Mr. Karol has the onus of establishing that on a balance of probabilities. The question turns not on whether, had she been driving the speed limit, the accident would not have happened because she would not have been there, but rather on whether a reasonable driver, that is, one driving the speed limit, would have had a sufficient opportunity to observe the encroaching vehicle and taken the necessary evasive action.

[40] I am not satisfied that Mr. Karol has established negligence on the part of Ms. Fisher. I accept that she was speeding but not markedly or excessively so. More to the point, I am satisfied that she was so close to the intersection when Mr. Karol encroached on her lane of travel that, even had she been travelling at or near the speed limit, the opportunity she would have had to take evasive action was not such that, with exercise of reasonable skill, the collision would have been avoided.