Tag: left hand turn cases

Can A Driver Be At Fault For A BC Car Crash If They Have The Right of Way?

The answer is yes and reasons for judgement were released today by the BC Court of Appeal discussing this area of law.
In today’s case (Salaam v. Abramovic) the Plaintiff was injured in a 2005 car crash in Surrey, BC.  She sued for damages.  At trial her case was dismissed (you can click here to read my post summarizing the trial judgement) .  She appealed and the BC High Court overturned the judgement finding that the other motorist was 25% to blame for the crash.
By way of background the crash happened at a “T” intersection.  The Plaintiff was faced with a stop sign.  She attempted to make a left hand turn across a through highway.   The Defendant, travelling down the highway, had the statutory right of way and is considered the ‘dominant driver‘.  As he approached the intersection the Plaintiff entered into his lane and the crash happened.  In finding that the Defendant was partially at fault for the crash despite having the right of way the BC Court of Appeal stated as follows:

[26] The oft-quoted passages from the concurring judgment of Cartwright and Locke JJ. in Walker v. Brownlee, [1952] 2 D.L.R. 450 at 460-61 (S.C.C.), succinctly set out the duties of a driver in the dominant position:

The duty of a driver having the statutory right-of-way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided.”

While the judgment of the Court of Appeal in that case was set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in the judgments delivered in this Court to throw any doubt on the accuracy of the statement quoted.

In applying this principle it is necessary to bear in mind the statement of Lord Atkinson in Toronto R. W. Co. v. King, 7 C.R.C. 408 at p. 417, [1908] A.C. 260 at p. 269: “Traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less upon the assumption that the drivers of all the other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.”

While the decision of every motor vehicle collision case must depend on its particular facts, I am of opinion that 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.

[27] The defendant also cites the judgment of this Court in Pacheco (Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 at 277, 43 M.V.R. (2d) 44:

[15]      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.

[28] In Pacheco, the question was whether the plaintiff ought to have anticipated that the defendant, who was turning left at a controlled intersection, might proceed into his path when it was unsafe to do so.  In my view, the hazard posed by the plaintiff’s vehicle in this case is not analogous to the hazard posed by the defendant’s vehicle in Pacheco.  The defendant in the Pacheco case had done nothing to foreshadow that she would unlawfully cross into the plaintiff’s line of travel.  In contrast, in this case, the plaintiff had been in violation of the rules of the road continuously almost from the moment that the defendant saw her: she proceeded through a stop sign without coming to a full stop and continued to pull forward into his lane of travel as he approached the intersection.  Although he changed lanes to pull around her, she continued forward in a halting manner, not stopping at any time.

[29] The question in this case is whether the defendant exercised reasonable care in approaching the intersection.  When he was 350 feet away, the plaintiff’s vehicle started crossing the road and entered into his lane of travel.  A reasonable driver would have been put on notice that the plaintiff was not obeying the rules of the road and posed a hazard.  A reasonable driver would have exercised increased caution, paid close attention to the plaintiff’s vehicle and prepared to stop or to give it a wide berth.  Instead, the defendant insisted on his right of way.  A mere 100 feet from the intersection, when the plaintiff’s vehicle was fully in his lane of travel and still proceeding forward, the defendant changed lanes in an attempt to drive around her.  Until the last moment, he maintained his speed.  In the best case scenario, if the plaintiff had seen the defendant’s vehicle and stopped abruptly, the collision would have been avoided by mere inches.  Instead, the plaintiff continued forward, and the defendant’s vehicle struck the middle of the plaintiff’s vehicle.  In the circumstances, the defendant’s negligence contributed to the accident…

[34] In applying the “immediate hazard” test in order to determine negligence, the trial judge erred in law.  Applying the correct legal test to the defendant’s conduct (i.e., the test enunciated in Walker v. Brownlee), the defendant had a duty to take care when he approached the plaintiff’s car in the intersection, having had ample warning that she was not following the rules of the road.  A reasonable driver would not have insisted on right of way, and certainly would not have driven aggressively through the intersection, aiming to pass within inches of the plaintiff’s moving vehicle…

[38] I would find the plaintiff 75% at fault and the defendant 25% at fault.

Why a Speeding Vehicle is not Always at Fault for a Car Crash

As a personal injury lawyer I often hear comments along the following lines during initial consulrations “The cops didn’t give me a ticket so I’m not at fault” or “the other guy was ticketed for speeding so he was totally at fault“.  
A common misconception is that if a driver is in violation of the motor vehicle act they are always at fault if involved in a motor vehicle collision.  This is not the case and reasons for judgement were released today by the BC Supreme Court illustrating this principle.
If a person is violating the motor vehicle act at the time of the collision that violation has to be a causative factor in a collision for the act to constitute negligence.  For example, a drunk driver who is clearly in violation of the motor vehicle act could have his/her vehicle rear-ended and be faultless for the collision despite being drunk.  
In today’s case the Plaintiff (a taxi driver) was travelling through an intersection in Vancouver, BC with the right of way.  He was travelling an estimated 85 kmph which was above the posted speed limit.  At the same time the Defendant, coming from the opposite direction, turned left in the path of the Plaintiff’s vehicle and a collision occurred.  
The Plaintiff argued that the defendant was fully at fault for failing to yield the right of way, the Defendant argued that the Plaintiff was at fault for speeding and had the Plaintiff been driving a lawful speed this collision would not have occurred.
Here the court found that the left hand turning vehicle was 100% at fault for this collision despite the Plaintiff’s speeding.  The key analysis takes place at paragraphs 35-45 of the reasons for judgement which I reproduce below:

[35]            Section 174 of the MVA provides:

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.

[36]            In Raie v. Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.), Tysoe J.A. stated at 410 that:

[18]      …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 [now s. 174].

[37]            Mr. Naeem was entitled to assume that all other drivers would observe the rules of the road.  He was not required by law to slow down as he approached the intersection.  The existence of the eastbound left turn lane did not cast a duty on Mr. Naeem to take extra care: Pacheco at para. 15.

[38]            Mr. Garrett never saw the taxi before the collision so that those cases where a left-turning driver wrongly estimates the speed of the approaching vehicle are not of assistance.

[39]            Mr. Garrett, if he exercised reasonable care, should have been able to see the taxi coming east past Fremlin Street more than a block away.  While he suggests that perhaps a traffic sign partially blocked his view, I find, based on the videotape, that was not the case.  If I am wrong and the traffic sign partially blocked his view, he should have taken more reasonable care before he encroached into the westbound lane.

[40]            Mr. Garrett would have seen the taxi if he had been looking.  He saw the two westbound vehicles turn right onto the Oak Street on-ramp.  He saw the right turn signal of one of those vehicles.  He may have been so focussed on the right-turning vehicles that he did not see Mr. Naeem, but that does not absolve him from liability.  The law required him to yield the right of way to the westbound vehicles.

[41]            If Mr. Garrett seeks to cast any blame onto Mr. Naeem for the collision, he must establish that after Mr. Naeem became aware, or by the exercise of reasonable care should have become aware, of Mr. Garrett’s disregard of the law, he had sufficient opportunity to avoid the accident:  Walker v. Brownlee at 461.

[42]            Travelling over the speed limit will only constitute negligence if the speed prevented the driver from taking reasonable measure to avoid the collision.  However, the experts agree that the moment that Mr. Garrett encroached onto the westbound lane, it was impossible for Mr. Naeem to avoid the collision.

[43]            The next issue is whether the collision could have been avoided if Mr. Naeem drove at a lower speed or at the speed limit.  The speed of a vehicle and the location of the vehicle are related.  It is impossible for Mr. Naeem to have been travelling at about 85 kilometres per hour along Marine Drive and then instantly change to the posted speed limit 40 metres from where the collision occurred.  As Mr. Naeem argues, if he had kept to 30 kilometres per hour from the outset, he would have been back in Burnaby when Mr. Garrett ploughed across oncoming traffic that morning.  If he sped along at 120 kilometres per hour he would have cleared the area well before Mr. Garrett made his left-hand turn.

[44]            While it seems attractive to attribute blame based on the speed of the dominant driver and hypothesize on what would have happened if Mr. Naeem kept to the speed limit, the fact is that Mr. Naeem drove at the speed he did and there was nothing he could have done, driving at the speed he did, to avoid the collision.  When Mr. Garrett decided to proceed with his left-hand turn, Mr. Naeem was approximately 40 metres away.  He was an immediate hazard and Mr. Garrett should have yielded to him.

[45]            I find Mr. Garrett fully at fault for the accident.

[46]            I note that counsel for the plaintiffs made no argument as to the costs.  If the parties have not otherwise agreed, I find Mr. Garrett liable for the costs of the two actions.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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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