Tag: intersection collisions

Servient Driver Found 100% at Fault for Intersection Collision

Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection collision.
In today’s case (Minosky v. Brar) the motorists were involved in a two vehicle collision.  They both claimed the other was at fault and both sued each other.  Both trials were heard at the same time.
The collision occurred at the intersection of 121st Street and 64th Avenue in Surrey, BC.  The Minosky vehicle was heading northbound on 121st.  He was faced with a stop sign.  The Brar vehicle was heading in the ‘fast’ eastbound through lane on 64th.  As the Minosky vehicle attempted to drive through the intersection he struck the Brar vehicle.

Madam Justice Brown found the Minosky vehicle 100% at fault for the collision for failing to yield the right of way and not complying with the duty set out in s. 175 of the Motor Vehicle Act.  In coming to this conclusion the Court provided the following useful reasons:

[8] I conclude that the Brar vehicle was much closer than Mr. Minosky believed it to be when he left the intersection.  It was an immediate hazard.  Ms. Brar was not speeding and was attending to traffic.  She had no opportunity to stop and avoid the collision.

[9] Mr. Minosky argues that, based on Ms. Brar’s estimates of speed and distance, Ms. Brar would have had ample opportunity to avoid Mr. Minosky’s vehicle if she saw him moving out from the stop sign.  Mr. Minosky argues that Ms. Brar said that she was some two to five car lengths from Mr. Minosky when she concluded that he wasn’t going to stop.  Had this been so, she would have travelled by Mr. Minosky before he had an opportunity to enter her lane of travel.

[10] This argument places too much weight on Ms. Brar’s estimates of distance.  When she first concluded that Mr. Minosky was not going to stop, it would have been an emergency situation.  She said she slammed on her brakes and honked, but was not able to avoid the collision.  In these circumstances, I do not expect that a person would be able to measure with precision the distance between her vehicle and the vehicle with which she was about to collide.  I give little weight to Ms. Brar’s estimates of distance.  Many people are poor judges of distance.  However, I do accept her evidence of how the collision happened.

[11] Section 175 of the Motor Vehicle Act places the burden on Mr. Minosky to yield to traffic that is approaching so closely that it constitutes an immediate hazard.  Mr. Minosky has not satisfied me that he yielded as required.  Rather, I have concluded that when he entered the intersection, the Brar vehicle was an immediate hazard.  I find that Mr. Minosky is 100% at fault.

Jury Dismissal Of Intersection Crash Claim Upheld on Appeal


(Accident Reconstruction Software courtesy of SmartDraw)
Adding to this ever-growing database of BC motor vehicle liability cases, reasons for judgement were released this week by the BC Court of Appeal upholding a Jury Verdict dismissing an injury claim following an intersection crash.
In today’s case (Bailey v. Jang) the Plaintiff was driving in a restricted-traffic curb lane as she approached an intersection.  At the same time the main lane in her direction of travel was backed up leaving a gap at the intersection.  The Defendant tried to make a left hand turn through the gap and the vehicles collided.  The Plaintiff sued for damages but her claim was dismissed with the Jury finding that the Defendant was not negligent.  The Plaintiff’s appeal was also dismissed with the Court finding that the jury’s verdict was not unreasonable.  In doing so the BC Court of Appeal provided the following reasons addressing some of the principles that come into play for crashes involving left-hand turning vehicles:

[11] Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, states:

Yielding right of way on left turn

174.     When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[12] Although, as asserted by the appellant, it is a logical corollary of the jury’s verdict that they concluded the appellant was 100% at fault for the accident, it is important to remember that the principal focus of this appeal is whether there was evidence on which the jury properly could have found that the respondent was not negligent.

[13] The appellant relies on Pacheco v. Robinson, (1993), 75 B.C.L.R. (2d) 273 para. 15 where this Court stated:

… 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. …

These comments were noted in Salaam v. Abramovic, 2009 BCSC 111 para. 26.

[14] The quotation of legal principle from Hiscox v. Armstrong, 2001 BCCA 258 and Pacheco is based on circumstances where the left-turning driver “proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way”. In Pacheco this Court found that the defendant “totally failed to determine whether [the] turn [could] be made safely”. In Salaam, the court held that the dominant driver “was there to be seen from 450 feet away” and that “[t]he plaintiff did not determine whether her turn could be done safely”. Such drivers cannot shift responsibility to the driver who has the right-of-way.

[15] Other cases relied on by the appellant show that a dominant driver is not without obligation. This was recognized in Pacheco wherein this Court distinguished a decision of the Ontario Court of Appeal on the basis that “[t]here was no indication here that traffic on the left hand side of the plaintiff had stopped so that the plaintiff should have been alerted to a situation of potential danger”. An obligation on a dominant driver to take care was recognized in Berar v. Manhas, [1988] B.C.J. No. 677, Reynolds. v. Weston, [1989] B.C.J. No. 49, and Clark v. Stricker, 2001 BCSC 657.

[16] These cases illustrate the fact that a left-turning driver is not without rights as is clear from the wording of s. 174. Too often drivers proceed through an intersection as if left-turning drivers have no rights. In each situation, the specific circumstances dictate whether a left-turning driver is at fault for a collision, in whole, in part, or not at all.

Bus Driver Found 50% Responsible For Collision With Cyclist Riding in Crosswalk


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a school bus and a cyclist.
In today’s case (Torok v. Sekhon) the Plaintiff was travelling southbound on a sidewalk in Surrey, BC.  He was travelling on the left side of the street.    At the same time the Defendant was operating a school bus and driving in the opposite direction of travel.  As the Defendant approached an intersection he put on his right turn signal and proceeded to make a right turn.  The Plaintiff, who was travelling down hill, did not yield and entered the roadway from the sidewalk.  A collision occurred.
Mr. Justice Smith was asked to determine the issue of fault.  The Court found that both parties were equally at fault for the collision.  In reaching this decision Mr. Justice Smith reasoned as follows:

[18]         The essential fact in this case is that Mr. Sekhon did see Mr. Torok and Mr. Kolba approaching the intersection at which he planned to turn. Moreover, he was driving in an area and at a time of day when the presence of children was to be expected. The duty on a driver in such a situation was recently summarized by Greyell J. in Chen v. Beltran, 2010 BCSC 302 at para. 27:

[27]      The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident. When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances. In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

[19]         The plaintiff in Chen was 11 years old. The plaintiff in this case was somewhat older, but still of an age when a reasonable driver would know that he would not necessarily act “with same care that is expected of adults”. Indeed, the tendency of teenagers to engage in reckless behaviour is well known.

[20]         Having seen Mr. Torok and knowing that their paths were about to cross, the duty of Mr. Sekhon was to proceed with caution and to complete his turn only when he could do so safely. That meant either satisfying himself that he could complete his turn before the boys reached the intersection or, more prudently, slowing or stopping until he knew that the boys had either passed the intersection or had stopped to allow him to pass.

[21]         Mr. Sekhon failed to take either precaution. Although he clearly saw the boys and knew their direction of travel before his turn, he was apparently unaware of their location as he was actually making the turn. There is no evidence of anything that would have prevented Mr. Sekhon from stopping briefly in order to ensure that he could turn safely. I therefore find that, in the circumstances, Mr. Sekhon failed to take sufficient care and was negligent.

[22]         However, I find that Mr. Torok also failed to take reasonable care for his own safety. He was riding his bicycle on a sidewalk, then into a crosswalk, and was riding on the left, rather than the right side of the road. All of those actions are violations of s. 183(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He was also riding without a helmet, in violation of s. 184. Mr. Torok was of sufficient age and experience to know, and in fact did know, that he was riding in an illegal manner. He also knew that he was approaching an intersection at a high speed and needed to be aware of the possibility of vehicles turning either into or from 150th Street. He saw the approaching school bus and failed to notice its turn signal. As a result, I find that Mr. Torok was contributorily negligent.

[23]         In such circumstances, the apportionment of liability must be based on the degree to which each of the parties was at fault, not on the degree to which each party’s fault caused the damage:  Bradley v. Bath, 2010 BCCA 10 at para. 25. In Bradley, the Court of Appeal adopted the following passage from Fleming on The Law of Torts:

[25]      The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:

Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury. The term “contributory negligence” is unfortunately not altogether free from ambiguity. In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct. It does not necessarily connote conduct fraught with undue risk to others, but rather failure on the part of the person injured to take reasonable care of himself in his own interest. … Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt …

[Emphasis in original; footnotes omitted.]

[24]         The facts of Bradley are somewhat similar to this case. There, a bicycle on the sidewalk collided with a vehicle that was coming out of a gas station. The Court of Appeal said at para. 28:

[28]      In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident. Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic. He saw the defendant’s vehicle moving towards the exit he was approaching. Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle. In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station.

[25]         Although I have found that Mr. Torok, at age 14, was old enough to be found contributorily negligent, I must still consider his age in the apportionment of fault. His conduct is to be measured against what is to be expected of a reasonable person of his age and experience, not against the standard of an adult:  see Parker v. Hehr, (20 December 1993), Vancouver B914957 (B.C.S.C.), citing Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.); and McEllistrum v. Etches, [1956] S.C.R. 787.

[26]         In the circumstances, I find that Mr. Torok and Mr. Sekhon were equally at fault. Each saw the other and each failed to take the necessary precautions to allow for the other’s presence and possible movements. Balancing all of the factors, including Mr. Torok’s violations of the governing statute, his age, and Mr. Sekhon’s knowledge of the nature of the area and the likely presence of young people, I cannot say that one party is more culpable than the other. I therefore find that the defendants must bear 50 per cent of the liability for the accident.

Court of Appeal finds Bicyclist 60% at Fault in ICBC Injury Claim

I am pressed for time today so this ICBC Injury Law update will be short on detail.
In reasons for judgement released today by the BC Court of Appeal (Quade v. Schwartz) a Trial judgement holding a bicyclist 75% at fault for an intersection collision with a motorist was overturned and the Court of Appeal determined that the cyclist was 60% at fault for the the collision.
I blogged about the trial level judgement when it was released and you can read my previous post for background.
Today the Court of Appeal found the trial judgement to be plainly unreasonable and engaged in the following analysis in finding a lesser degree of fault for the cyclist:

[14]            The Negligence Act, R.S.B.C. 1996, c. 333 provides, by s. 6, that apportionment of fault is a question of fact.  Accordingly, apportionment of fault should not be varied on appeal unless the appellant can demonstrate some palpable or overriding error in the trial judge’s assessment of the facts, or there are “strong and exceptional circumstances”: see Stein v. “Kathy K” (The), [1976] 2 S.C.R. 802; Ryan v. Victoria (City), [1999] 1 S.C.R. 201 and Housen v. Nikolaisen, [2002] 2 S.C.R. 235.

[15]            The defendant also relies upon the standard of review applicable on appeal from proceedings conducted on summary trial under Rule 18A.  It must be demonstrated that the judge’s conclusion cannot reasonably be supported: see Orangeville Raceway Ltd. v. Wood Gundy Inc., 59 B.C.A.C. 241, 6 B.C.L.R. (3d) 391, and Colliers Macaulay Nicolls Inc. v. Clarke, [1989] B.C.J. No. 2455.

[16]            Apportionment of fault is made not as an assessment of the relative degrees to which the parties’ conduct is implicated causally in the damages suffered, but rather on the relativeblameworthiness of the parties’ conduct.  In Cempel v. Harrison Hot Springs Hotel Ltd., 100 B.C.A.C. 212, 43 B.C.L.R. (3d) 219 Mr. Justice Lambert 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”. It does not say that the apportionment should be on the basis of the degree to which each person’s fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of 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.

[20]      The approach to apportionment that I have described is supported by the decisions of this Court in Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (see particularly at p.277) and Dao v. Sabatino (1996), 29 C.C.L.T. (2d) 62 (see particularly at p.75). In the Ottosen case the point was put in these words:

The words used are the words of fault. The question that affects apportionment, therefore, is the weight of fault that should be attributed to each of the parties, not the weight of causation.

[Emphasis added]

[17]            In this case, the judge said the plaintiff’s conduct was “extremely careless and showed little concern for safety” (para. 63). 

[18]            In considering the defendant’s relative blameworthiness, the trial judge said only that he should have appreciated the need to be vigilant for the potential of a cyclist approaching in the curb lane. 

[19]            With respect, this characterization of the defendant’s relative degree of blameworthiness fails to take account of a number of matters.  First, there is no reference to the duty owed by a left-turning driver under s. 174 of the Motor Vehicle Act to yield the right of way to oncoming through-traffic that is so close as to constitute an immediate hazard.

[20]            On the trial judge’s findings of fact, there is no doubt that the plaintiff had the statutory right of way.  She found that:

1.         when the defendant was starting to cross the northbound lanes, the plaintiff was in a well-lit area (para. 41);

2.         the defendant should have had an unobstructed view of him (para. 42);

3.         the defendant should have seen the plaintiff before pulling out in front of him because the plaintiff was there to be seen (paras. 43 and 60);

4.         the plaintiff was south of the intersection when the defendant started to turn left; and

5.         the plaintiff was an immediate hazard when the defendant began his left turn (para. 56).

On all of these findings, the plaintiff enjoyed the statutory right of way under s. 174 of the Motor Vehicle Act, and was entitled to expect that the defendant would yield the right of way to him. In the judge’s words, the plaintiff “had no reason to suspect that Mr. Schwartz would pull out in front of him” (para. 57).

[21]            Yet there is no mention of these facts, nor of the defendant’s breach of statutory duty in the trial judge’s assessment of the relative blameworthiness of the two parties. 

[22]            I infer from the trial judge’s holding that the plaintiff was “extremely careless”, and from the apportionment of fault that she made, that she considered the plaintiff’s negligence in failing to have a lighted headlight on his bicycle to be far more blameworthy conduct than the negligence of the defendant as detailed above. It is difficult to understand why this would be so, and the judge provides no explanation.

[23]            There is no doubt that in riding at night without a lighted headlight, the plaintiff demonstrated a lack of reasonable care for his own safety.  There is also little doubt that the absence of a headlight on the bicycle made it more difficult for oncoming motorists to see the plaintiff. 

[24]            In Chesley v. Irvine, [1987] B.C.J. 520 (C.A.), a motorcyclist rode into a Kamloops intersection in the hours of darkness without a headlight on the motorcycle.  The cyclist collided with the defendant who was making a left turn in his vehicle in the intersection.  The trial judge held the motorcyclist 40% responsible, and the driver of the left turning vehicle 60% responsible.  In this Court, Mr. Justice Taggart said:

Each driver here had a duty of care to the other. Each was required to maintain an appropriate look-out for other vehicles. Each had a duty to take care to avoid an accident. In addition, the defendant, as the driver turning left across two lanes in which southbound traffic might be expected, had an obligation to insure that she could safely make the turn.

The judge found her look to the north for southbound traffic was casual and insufficient. I see no basis upon which we could or should interfere with that conclusion. But what the defendant was looking for was a vehicle with lights on. That is what she should have been looking for. She did not see that kind of vehicle for the good reason that it was not there. The vehicle that was there had no lights on.

In my opinion, the plaintiff in these circumstances cannot rely on his full dominant position on the highway and the judge was in error in according him that dominant position. Furthermore, the defendant’s vehicle was there to be seen by the plaintiff. Unlike the plaintiff’s motorcycle, the lights of the defendant’s vehicle were on, as was her left turn signal. The plaintiff failed to see it and, consequently, failed to take, so far as can be ascertained, any action to avoid the collision.

In the circumstances of this case I think we are entitled to intervene and reapportion the degrees of fault. I would allow the appeal and find the plaintiff 60% at fault and the defendant 40%.

[25]            Lambert J.A. in concurring reasons said:

The Supreme Court of Canada adopted the line of English authorities. The stricture is imposed on this court that we should not vary an apportionment unless we are convinced it is clearly wrong. Mr. Justice Ritchie, for the Supreme Court of Canada, said it would require a very strong and exceptional case.

But when we can indentify the specific point on which we conclude there was an error by the trial judge that affected his apportionment then that will be a very powerful circumstance to persuade us that his apportionment must be reconsidered.

In this case, immediately before the trial judge made his apportionment he said:

“Nonetheless he was in the dominant position.”

Referring to the plaintiff on his motorcycle. But the significant factor is that the headlight of his motorcycle was not on. The fact that that headlight was not on did not cause him to lose his dominant position, but it made the dominant position much less significant a factor than it would otherwise have been. That reduced significance does not seem to have been considered by the trial judge at the point in his judgment where he made his apportionment.

[26]            In the result, the Court varied the parties’ relative degrees of fault, holding the defendant 40% at fault, and the plaintiff 60% contributorily negligent. 

[27]            In that case, the trial judge’s error appears to have been in holding that the plaintiff continued to enjoy the statutory right of way when his failure to have a lighted headlight made it more difficult for the defendant to see her approaching.  In the words of Lambert J.A., the absence of a headlight on the plaintiff’s vehicle: “made the dominant position much less significant a factor than it would otherwise have been”.

[28]            The same reasoning may be said to apply in this case.  However, the significant difference between the two cases is that in the circumstances of the case at bar the trial judge specifically found that the defendant should have seen the plaintiff before he pulled out in front of him, and the plaintiff was there to be seen.  I interpret these findings to mean that although the absence of a headlight on the bicycle was a negligent act on the plaintiff’s part, it had relatively little to do with the defendant’s failure to see the plaintiff given the well-lit nature of the intersection. According to the judge’s findings, even without a headlight the defendant should have seen the plaintiff and should have yielded the right of way to him.  Thus, while the absence of a headlight on the plaintiff’s bicycle may have diminished the importance of his statutory right of way it cannot be said to have displaced it to the extent that is seen in Chesley. 

[29]            In my respectful view, the trial judge’s apportionment of fault, on her findings of fact, was plainly unreasonable and a palpable and overriding error. 

[30]            I would allow the appeal and vary the apportionment of liability by holding both the plaintiff and the defendant equally at fault for the accident.

 

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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